The late Lord Chief Justice NORTH'S ARGUMENT In the CASE Between Sir WILLIAM SOAMES SHERIFF of SVFFOLK And Sir SAM BARNADISTON Bar. Adjudged in the COURT of Exchequer Chamber UPON A WRIT of ERROR CONTAINING The REASONS of that JUDGMENT LONDON Printed and are to be sold by Randal Taylor 1689. The late Lord Chief Justice North's Argument c. SIR Samuel Barnardiston brings an Action upon the Case in B. R. against Sir William Soame late Sheriff of Suffolk setting forth that a Writ issued for the chusing of a Knight for that County to serve in this Parliament instead of Sir Henry North deceased that at the next County Court the Freeholders proceeded to Election and although the Plaintiff was duly chosen per majorem numerum gentium tunc resident infra dict Comitat. quorum tunc quilibet expendere potuit 40 s. libri ten'ti ultra per annum infra Comitat. illud ac licet praedictus Willielmus praemissa satis sciens postea brevem praed in Cur. Cancellar returnavit simul cum quadam Indentura inter ipsum Vicecomitem praedict Electores ipsius Samuelis de praedicta Electione ipsius Samuelis fact secund Exigentiam brevis praedict praedictus tamen Willielmus ad tunc Vicecomes Officii sui debitum minime ponderans sed machinans maliriose intendens ipsum Samuelem in hac parte minus rite praegravare ac eundem Samuelem de fiducia officio unius Mil. Comitat. praedict in dict Parliamento exercend omnino frustrare deprivare Et praedict Samuelem ad diversas magnas grandes pecuniarum summas expend causare contra debitum officii sui praed falso malitiose scienter deceptive ad tunc in ead Cancellar apud Westmonast praedict retornavit una cum Indentura praedict quandam aliam Indenturam eidem brevi similiter annex specificant ' illam fore fact inter prefat Willielmum c. ex una parte diversas alias personas dict Comitat. in Indentura illa specificat continent quod dictae al. personae ut major pars totius Comitat. praedict in praedicto pleno Comitat. elegerunt quend Lionellum Talmash Bar. alias dict Lionell Dom. Huntingtowr in Regno Scotiae in loco praedicti Henrici North un Mil. Com. Suffolk praedict pro Parliamento praedicto adveniend eidem Parliamento pro Com. il Vbi revera praedictus Lionellus non fuit electus per majorem partem prout per ult Indent falso supponitur Ratione cujus quidem falsi retorn de praedicta al. Indent c. idem Samuel in Domum inferiorem pro Comitat. hujus Regni Angliae c. assemblat admitti non potuit quousque idem Samuel per petitionem suam Comitat. dicti Parliamenti pro remedio congruo exhibit post diversas ingentes denar summas in circa manifestationem verificationem dictae Electionis coram dict Comitat. expendit diversos labores in ea parte sustent postea scil c. per Comitat. in Domum Comitat. praedict admissus fuit electio ipsius Samuelis per Comitat declarat fuit fore bond unde deteriat est damnum habet ad Valenc ' 3000 l. There is a Verdict given for the Plaintiff and Damages found to the value of 800 l. and Judgment thereupon and a Writ of Error is brought to reverse that Judgment I have but little time left me to say what I have to offer it being very late and yet I must desire leave to produce these Reasons I have in maintenance of my Opinion I will be careful to detain you no longer then will be necessary And therefore I will not trouble you to State the Case again nor will I speak of any Exceptions that have been made to the Declaration for I love not the Niceties of the Law in Cases where they do prevail and in this Case I have only considered the foundations of the Action which if I had found well established upon Reason or the Grounds of Law I would have Examined what has been Objected to the Forms of the Declaration which must have brought great weight to have overturn'd those Proceedings But as to the point of the Action upon the most serious Consideration I could have of it and weighing what hath been before now and also at this time said in Support of it I am of Opinion that the Judgment ought to be reversed for that no such Action as this at Bar does lye by the Common Law. Because this is a Cause of considerable value great Damages being recovered because it is a Judgment of great Authority being upon a Cause tried at the King's Bench Bar and given upon deliberation there because it is a Case of extraordinary nature and of great import each Party pretending benefit to the Parliament by it because it is an Action primae impressionis that never was before adjudged the report of which will be listned after I have taken pains to collect and set down the Reasons that I must go upon in determining this Case That as the Judgment had the Countenance of some deliberation in the Court where it was given so the Reversal being with greater deliberation may appear grounded upon Reasons that ought to prevail I can say with my Brother Wyndham that I love rather to affirm Judgments than to reverse them but I can attribute nothing of Authority to the Judgment though it were given in a Superior Court and upon deliberation I must judge upon it as if the Case came to be Originally judged by me The Argument to support a Judgment from the Authority of its self is Exceptio ejusdem rei cujus petitur dissolutio which must not be admitted in Case of Writs of Error We are instructed to Examine and Correct the Errors of that Court and for that purpose we are made Superior to it We must proceed according to our own Knowledge and Discretion else we do not perform the Trust reposed in us I must needs say this is a Cause that imports it more than any Cause I have known come before us for it is a Cause primae impressionis and the Question is whether by this Judgment a change of the Common Law be introduced It is the principal use of Writs of Error and Appeals to hinder the change of the Law and therefore Writs of Error in our Law and Appeals in the Civil Law do carry Judgments and Decrees to be Examined by Superior Courts until they come to the highest who are intrusted that they will not change the Law. Therefore do Writs of Error lie from Ireland which is a Subordinate Kingdom to England by whose Laws it is Governed that they might not be able to change the Law by their Judgments and not so much for the particular right of the Party For otherwise it would be very easie for Judges by Construction and Interpretation to change even a Written Law and it would be most easie for the Judges of the Common Laws of
suppose it to be done malitiously and on purpose to put you to Charges though you suppose it to be done Scienter knowing the Law to be clear for they take but the Liberty the Law has provided for their Safety and there can be no demonstration that they have not real Doubts for those are within their own Breasts It would be very Mischievous that a Man should not have leave to Doubt without so great a Peril The course of Parliament makes out the ground of this Reason to be true in Fact. scil That a double Retorn is Lawfull when the Sheriff doubts for if the Parliament did not allow a double Retorn in doubtfull Cases they ought never to accept a double Retorn if it were in it self a void and unlawfull Retorn they ought not to endure it a moment but send for the Sheriff and compell him forthwith to make a single Retorn But we see that where there is ground of Doubt the Parliament sends not for the Sheriff before they have examined the Case and give particular Directions And it must of necessity be the Course for suppose the Voices are equal suppose the Election is void for force suppose the Sheriff doubts upon the validity of some Voices shall he transmit his doubts specially to the Parliament Was there ever any such thing done Was there ever any other way but to make a double Retorn and leave it fairly to the decision of the Parliament It was said by my Brother that if the Sheriff had retorned in the nature of a Special Verdict the Special Matter and had concluded in this manner viz If the Parliament shall adjudge Sir Samuel Barnardiston to be chosen then he retorns him and if the Parliament shall adjudge the Lord Huntingtowr to be chosen then he retorns him that such a retorn as this had been safe and could not have born an Action This is a pretty Invention found out for Arguments sake but methinks it furnishes no force at all to the part for which it is brought but rather shews the right to be the other way for let any Man of Reason say whether a double Retorn be not the same thing in Consequence Is not a double Retorn as if the Sheriff should say to the Parliament the right of Election is between these two I am in doubt which of them I shall reject and expect your Directions This is the import of a double Retorn and is the same in effect as if it had concluded like a Special Verdict and so by my Brother's instance the Case should not be Actionable though he concluded otherwise That other new-fangled way could not be received for First The Freeholders would never joyn in such a Retorn Secondly Such a Retorn is not capable of being mended by the Sheriff But the Judgment of the Parliament must be entered upon Record to make it any Retorn it concluding nothing of it self as a Verdict concludes nothing till the Judgment of the Court be entered upon the Roll with it Thirdly The Parliament will not as I believe admit of new Devises in the Course of their Proceedings whatsoever we do at Law. But the double Retorn is practicable in the Country for the Freeholders of each part will tender their Indentures Secondly It is easily amended in Parliament by rejecting the Indenture of those Freeholdres that were not the Major part Thirdly The way has been practised in doubtfull Cases for many years So that I apprehend the Case at Bar to be more regular and favourable than the Case my Brother put as a Case that would not bear an Action Again suppose the Sheriff had informed the Parliament of his Doubts and that he could not readily determine where the Majority was but it was betwixt two Persons A. and B. and thereupon desired their favour either to grant him time to determine it if they pleased to command him so to do or else that they would decide it themselves and he would obey what Directions they should make in it and thereupon the Parliament had taken upon themselves to determine it This most clearly had not been Actionable for it was not Actionable to delay a Retorn to any Court of Justice where the Sheriff hath leave from the Court so to do A double Retorn in my Understanding speaks the same thing to the Parliament and upon it they may either direct the Sheriff to make a single Retorn which is to cause him to decide it or they may do it themselves And here I must needs reflect upon the second Reason I gave against the Action that the Matter of it is alieni fori for I find my self and my Brothers that argued for the Action engaged in a Discourse of the nature of a double Retorn and the Course of Parliament upon it which as a Judge I cannot so well speak to I had the Honor to be of this House of Commons and whilst I was there I considered as well as I could the Course of Proceedings of the House and am therefore able to speak something of them and I am brought into this Discourse necessarily by this Action but I must say it is an improper Discourse for Judges for they know not what is the Course of Parliament nor the Priviledge of Parliament When the Lords in Parliament whom they are bound to assist with their Advice ask the Judges any thing concerning the Course or Priviledge of Parliament they have answered that they know them not nor can advise concerning them If in Parliament we do not know nor can advise concerning these things how can we judge upon them out of Parliament We ought to know before we judge and therefore we cannot judge of things we cannot know Our being engaged in a Discourse improper for Judges shews the Action to be improper as much as any other Argument that can be made and this Argument ariseth from my Brothers that argued for the Action But now I am in this Discourse I must go on a little further My Observation of the Course of Parliament has been that they will not permit the Sheriff to delay his Retorn to deliberate and he cannot take Security of either Party and if a single Retorn be not justified by the Committee of Elections he is in danger of the Stat. 23 H. 6. It follows that there is no way for an innocent Sheriff to be safe where he conceives doubt but in making a double Retorn and if that should be Actionable too the Service of the Parliament were the most ungratefull Service in the World. It seems rediculous to me that it should be Objected that this Course of Law is necessary to prevent the great Mischief arising from double Retorns when as it be a Mischief or disliked by the Parliament either in general or any particular Case they may reject them when they please and command the Sheriff to make a single Retorn So that they may remedy it by their practice without help of their Legislative Power Their
as we call it of Declarations in Actions of the Case if they be skilful in their Art will be sure to put in the words falso malitiose let the Case be what it will they are like Pepper and Vinegar in a Cook 's hand that help to make Sauce for any Meat but will not make a Dish of themselves Falso malitiose will not enable an Action against a Judge nor against a Indictor or Witness nor where words are not actionable though the Plaintiff have a Verdict and Damages found nor for a breach of a Trust which is alieni fori The reason of every one of these Cases holds in the Case at Bar and therefore it ought to have the same Resolution As to the word scienter it hath weight sometimes as if an Action be brought for keeping a Dog that worried another's Sheep Sciens Canem ad mordendum oves esse consuetum or for detaining the Servant or Wife of another scienter In these Cases if the Defendant have been told that the Dog did worry Sheep or that it was the Servant or Wife of another though it may be he did not believe it yet it was scienter for the word implies no more than having notice And in those Actions he must inform himself at his peril and may if he doubts avoid danger by putting away those things which give offence But in this Case he could receive Information by none and is not to believe or disbelieve any body but is bound to judge of the thing himself and to act according to his judgment So that no proof could be made of the scienter for one side tells him the Election is one way the other side tells him it is the other way but he being present to the whole Action must follow the dictates of his own judgment Hence it appears scienter in this Case is an empty word not referring to Notice of a Fact but to Matter of Judgment which cannot any way be proved It has been often urged that this Case is stronger being after a Verdict and Damages found by the Jury and it has been said that perhaps upon Demurrer it might have been more doubtful The Case is the same to me upon a Verdict that it would have been upon a general Demurrer and no stronger for a Demurrer is the Confession of the Party of all that can be proved or can possibly be found upon that Declaration It is my Lord Cooke's advice in Cromwell's Case 4 Part 14. a. never to Demur to a Declaration if there be any hopes of the Matter of Fact for the Matter in Law will as well serve after Verdict as upon Demurrer It had been a very odious Case if the Sheriff should have admitted all this Fact to be true by a Demurrer The finding the Plaintiffs Damages adds no strength to the Case for we see every day upon Actions for Words though the Jury find the Defendant guilty of speaking words falso malitiose and find it to be to the Plaintiffs great damages yet if the words are not such as will bear an Action the Court stays Judgment and if Judgment happen to be given it is reversable for Error which shews that the finding of Damages by the Jury cannot make an Action better than if it were to be adjudged upon Demurrer I shall now consider what has been said to maintain this Action upon the main substance and foundation of it They say this is a Case within the general reason of the Common Law for here is Malice Falsity and Damage and where they concur there ought to be remedy and although this be a new Case yet it ought not to be rejected for other kind of Actions have been newly introduced and this is as sit to be entertained as any My Brothers that argued even now for the Action shewed great Learning and great Pains and certainly have said all that can be invented in support of this Case but as far as I could perceive they have spoken only upon general Notions to that purpose I just now mentioned but nothing that I could observe applicable to the reasons and differences I go upon As for the Rule they go upon that where Malice Falsity and Damage do concur there must be remedy I confess it is true generally but not universally for it holds not in the Case of a Judge nor an Indicator nor a Witness nor of words that import not legal slanders through they are found to bring damage as I have shewn before and the reasons that exempt these Cases from the general Rule have the same force in the Case at Bar. I must confess the Judges have sometimes entertained new kinds of Actions but it was upon great deliberation and with discretion where a general inconvenience required it If Slade's Case were new for my Brother Thâ— land observes truly it was said in that Case that there were infinite number Precedents that Case imported the common course of Justice Actions for words that are said to be new though they have been used some hundreds of Years are a necessary means to preserve the Peace of the Kingdom The Case of Smith and Crasshaw Cro. Car. 15. was a Case of general concern being that Prosecutions for Treason may be against any man and at any time But in the case at Bar neither the Peace of the Kingdom nor the Course of Justice is concerned in general but only the Administration of Officers of the Parliament in the Execution of Parliamentary Writs and can never happen but in time of Parliament and must of necessity fall under notice of the Parliament so that if the Law were deficient it is presumed the Parliament would take care to supply it discretion requires us rather to attend that than to introduce new Precedents upon such general Notions that cannot govern the course of Parliaments My Brother said the Common Law complied with the Genius of the Nation I do not understand the Argument Does the Common Law Are we to judge of the changes of the Genius of the Nation whether may general Notions carry us at that rate for my part I think though the Common Law be not written yet it is certain and not arbitrary we are sworn to observe the Laws as they are and I see not how we change them by our Judgments and as for the Genius of the Nation it will be best considered by the Parliament who have Power of the Laws In the Case at Bar I look upon the Sheriff as a particular Officer of the Parliaments for the managing Elections and if he were not Sheriff I look upon the Writ as if it were an Order of Parliament and had not the Name of a Writ I look upon the Course of Parliament which we pretend not to know to be incident to the Consideration of it so that it stands not upon the general Notion of Remedy in the common course of Justice The Arguments of the Falling of the Value of Money whereby the Penalty of 100 l. provided by the 23 H. 6. is become inconsiderable and the encrease of the estimation of being a Member of Parliament if they were true are Arguments to the Parliament to change the Law by encreasing the Penalty but we cannot do it My Brother in his Argument at the Bar would embolden us telling us we are not to think the Case too hard for us because of the Name or Course of Parliament for Judges have punished Absentees they may determine what is a Parliament what is an Act of Parliament how long an Ordinance of Parliament shall continue and may punish Trespasses done in the very Parliament I will not dispute the truth of what hath been said in this but if his Arguments were artificial he might have spared them for they have no manner of effect to draw me beyond my sphear I will not be afraid to determine any thing that I think proper for me to judge but seeing I cannot find the Courts of Justice have at any time medled with Cases of this nature but upon power expresly given them by Acts of Parliament I cannot consent to this Precedent I am confident when there is need the Parliament will discern it and make Laws to enlarge our Power so far as they shall think convenient I see no harm that Sheriffs in the mean time should be safe from this new devised Action which they call the Common Law if they misdemean themselves they are answerable to the Parliament whose Officers they be or may be punished by the Statutes made for the regulating Elections It is time for me to conclude which I shall do by repeating the Opinion I at first delivered viz. That this Judgment is not warranted by the Rules of Law that it introduceth Novelty of dangerous consequence and therefore ought to be reversed Saepe Viatorem nova non vetus orbita fallit FINIS