But I cannot thus baulke that observation of that learned Chiefe Justice whoâ—ses that in our old books Actions for scandalls are very rare and such as are brought are for words of eminent slanders and of great importance This must needs bee acknowledged to be a most exact and true observation for in searching of the Books I cannot finde that any Action for scandalous words was brought before E. 3. time and so rare then that I finde but one in 50. yeares of E. 3. and that is Sir Thomas Setons case of Justice for calling of him Traytor Felon and Robber no frivolous cause of action And I finde but three Actions for words brought in 22. yeares of E. 4. and those for one and the same words for publishing one to bee the Pilleine of I. S. a slaunder of no small importance neither for so long as that base and slavish Tenure of Pilleinage held hee that was a Pilleine was subject both in person and estate to the will of his Lord so that he might seize all his estate reall and personall and Vassalize his person at his pleasure so that he did not kill or mayme him In all the 21. yeares of H. 7. there is not one action that I can find brought for scandalous words And in 38. yeares of H. 8. our books tell us but of five actions brought for scandalous words two whereof were in 27. H. 8. so that I find none before that time neither The other were in 30. H. 8. and 28. H. Dyer And these for no trifling words for you shall finde that one of them was for calling a man Heretike another for saying a man was perjured and the other three for calling of one Thiefe all of which are high scandals to a mans reputation and most of them tending to the losse of life and fortunes so that it is very true that that Reverend Chiefe Justice observed that these Actions were very rare in our old bookes and such as were brought were for words of emminent slander and of great importance But these few have now got such a numerous progeny that I feare we cannot turne over many leaves in our new books but wee shall finde one of these Actions They began thus to multiply in the Queenes time as wee finde in my Lord Cockes 4. book where there is no lesse then 17. adjudged cases together upon these Actions And you may easily judge they did not abate in King Iamses his time for if I mistake not there is no lesse then two and twenty adjudged cases upon these Actions in my LORD Hobarts Book And I am certaine they are not fallen in His Majesties Raigne that now is for I my selfe have reported no lesse then three and twenty judgments upon these Actions but from Easter Tearme in the sixteenth yeare of the King to Trinity Tearme in the eighteenth Well therefore might Wray Chiefe Iustice say that the malice of men doth more increase in these times then in times past and as he saith the malice of men ought to be with stood as much as may be which I am sure the too frequent tollerating of Actions of this nature wil not effect no more then fire can be extinguished by adding fewell unto it You have heard my advise and direction before therfore I will here close this with one word though the tongues of men be set on fire I know no reason wherefore the Law should bee used as Bellowes to bow the Coles It is the saying of the Prophet David I will take heed to my ways that I offend not with my tongue I will keepe my mouth as it were with a Bridle It were happy for all men if they could make the like resolution and keep it But seeing that wee are but men whilest wee carry this lump of flesh and masse of corruption about us we shall be subject to the like passions and affections that oâ—â—erâ— have beene before us and the flesh will rebell against the spirit And therefore I have provided this Treatise upon Actions of slander as a Bridle for all rash and inconsiderate â—ongues that seeing the mischiefe they may the better know how to avoyd it And here I shall lay downe this as a generall rule which I shall by the way as I goe make good in every perticular That all scandalous words which touch or concerne a man in his life Liberty or Member or any corporall punishment or which scandall a man in his Office or place of Trust or in his Callâ—ng or function by which he gaines his living or which tend to the slandering of his Title or his disinheritance or to the losse of his advance me it or preferment or any other particular damage or lastly which charge a man to have any dangerous infectious disease by reason of which he ought to seperate himselfe or to be seperated by the Law from the society of men all such words are actionable And first for the first part of this Rule viz. Scandalous words which touch or concerne a man in his life such words are actionable If a man call another Traitor Felon Theefe or Murderer an Action lies for these words because they call a mans life in question So it is all one if one shall say of another that he killed or murdered I. S. or that he stole his goodâ— or that he poysoned him if it appeare to be intended to be wittingly done or the like these words likewise are Actionable as appeares by the Bookes in the Margent So if one shall say of another he hath burnt my Bâ—â—ne with Corne which is Felony this likewise will beare an Action I have a Report of a case which was thus a Servant of one Mr. Roger Brook said of one Mis. Margaret Passey that she sent a Letter to his Master and in the said letter willed his Master to poyson his Wife Bridget Brooke and in this case it is said that upon a Writ of Error brought in the Cnequer Chamber it was resolved the words were actionnable and the judgement affirmed which case I confesse I much doubt because here was but bare advise and nothing appearing to be done like Eatons case in Cooks 4 Booke Where the Defendant said of the Plaintiffe that Hee gave his Champion Councell to make a Dâ—ed of gift of his goods to kill him c. adjudged that the words were not Actionable because that the purpose or intent of a man without act is not punishable by the Law And I conceive it will not be like the case put by Tanfiâ—ld Iust. in Harris and Hixons case where he saith that to say of another that he lay in wait to Rob or to murder I. S. will beare an Action because that he accuses him of an act viz. The preparation and lying in wait which is punishable by the Law but in the former case there is nothing but bare advise which is not punishable by the Law Hawly
you may see that where a man is falsly and malitiously procured to be indicted if he be acquitted a Writ of conspiracy or an action upon the case in nature of a conspiracy as the case shall be will lie and though he be not acquitted yet an action upon the case will lie for the slander and vexation Yet in all these cases there is a prosecution in course of justice but because this prosecution was malitious tending much to the slander and scandall of the plantiffe therefore the action lies But here I would have you observe Reader that the plaintiffe ought in these actions to declare that the defendant falso malitiose procured him to bee indicted because the malice is the ground of the Action and if upon the Tryall it doe appeare that there was Probabilis causa for the indictment and prosecution therevpon the Action will not lie Thus much shall suffice to shewe you in what case a legall prosecution in course of Iustice shall Subject a man to an Action in what not In the next place I shall shew you which I cannot omit For what scandall of a Noble man or great Officer c. an action de scandalis Magnatum will lie upon the Statutes of 3. E. 1. cap. 33. or 2. R. 2. cap. 5. For a Suit or other legall prosecution in course of justice against a Noble man or great Officer no Action lies as is adjudged in the case of Forger of false deeds cited before so that as to this there is no difference betwixt a Noble man and another person but what scandalous words may be Actionable in case of a Nobleman for which an action de scandalâ—â— Magnatum will lie and what not may bee very considerable I shall cite only one case to this purpose which will be as a light to all cases of this nature and therefore give me leave to give it you wholly without dissection or abbreviation as I find reported The Earle of Lincolne brought an Action de scandalis Magnatum upon the Statute of Westm. 1. cap. 33. against one Iohn Righton and recited the Statute and said that the Defendant said of him my Lord is a base Earle and a paltry Lord and keepes none but Rogues and raseals like himselfe Vpon not guilty pleaded it was found for the Plaintiffe and it was moved in arrest of judgement that the words were not actionable for though they were unseemely immodest yet they were not such defamaâ—ory words upon which to ground an Action for though they were true the Earle could not incurre any prejudice by them Crook cont this action de scandalis magnatum is not to be compaâ—ed to other actions upon the case for words spoken of any other persons for this is inhibited by Act of Parliament and if the words bee such that any diâ—cord may arise by them betwixt the King and his Subjects or his Nobles or any slander to them to bring them into contempt this action lies and I have seene a Record of a case in 4. H. 8. of such an action brought by the Duke of Buckingham for such words which might cause him to be in contempt which were holden sufficient upon which to ground an action Hobart Attorney Generall for the Plaintiffe also who said that though an Action doth not lie for words betwixt common persons but in case where they are touched in life or Member or much in reputation yet if one speake any scandalous words of an Earle or other Peere of the Realme which impeaches their credit because that they are of the great Counsell of the King and State and a principall part of the body politique so that their discredit or disparagement is a disparagement to all the Realme therefore every thing which trenches only to their discredit is a cause of action and this was the cause of the judgement in the case of the Ducke of Buckingham in 4 H. 8. Feâ—ner Iust. it seemes to me that the action lies for they are words of great slander to the Earle But where the Statute of Marleb is that Lord shall not distraine the Beasts of the subject of the King and carry them into Castles so that they cannot be replevied and if one say that a Lord hath so done yet an Action will not lie Tanfield Iustice concesset but he saith if one say of a Lord that he used to distraine and put the Beasts in his Castle ut supra an action lies for one act against Law wil not bring him into contempt but if it be usuall for him so to do this is a cause to make him contemptible In the case of the Earle of Arundell who had made Commissions to his Servants to make Leases and improve Rents one said of him My Lord hath sent his Commissioners to spoyle the Country it was adjudged that this action would lie and yet in case of a common person it would not lie without doubt yet because that it may cause the Lord to be in contempt with the King and the People this action lay and so it seemes to me that it will here Williams Iustice to the same purpose and that the Earle is conservator Pacis at common Law and Comes Regis and if any one speake of them any thing which may make them to bee contemned of the King or his people an action lies upon this STATVTE Yelverton Iustice was absent judgement was respited to the intent that the Defendant by his submission might give satisfaction to the Earle Here you see the difference between words actionable in case of a Noble man and of a common person For words only of descredit to a Nobleman and which may bring him to contempt with the King or his People are sufficient to maintaine an action de scandalit magnatum otherwise in case of a common person I have now Reader quite finished my labour of shewing you for what scandals an action will lie for what not But before I conclude there are two things yet in all Actions for words worthy the knowing which I cannot omit The first is to declare unto you the use or office of an innuendo And the next is to shew you where an Averrement will be necessary and where not For the first you may take this for a certaine and infallible rule That an innuendo shall never make words actionable which of themselves are not Actionable And therefore if words be of a double or indifferent meaning and in the one sence actionable in the other not in such case an innuendo shall never make them actionable As if a man bring an Action against another for saying that he hath the Pox innuendo the French Pox or for saying that the Plaintiffe burnt his Barne innuendo a Barne with Corne. In these cases the innuendo where the words are of an indifferent meaning and may be taken so as not to be Actionable shall not straine them to such an intendement as to make them
conceive the judgement of these learned men viz. Fairfax Starkey Yelverton and others ought not to be so undervalued especially upon no lesse then four severall debates of the point as to be called a sudden opinion as it is in Fraunces case in my Lord Cokes 8 book But for the Law in this point certainly it is now setlet and in peace that the Compromittor must take notice of it at his own perill having bound himself to stand to and observe the award In 1 Hen. 7. the opinion was clear saith the book that the Obligorâ— ought to take notice of the award at his own peril because he hath bound himself so to do And in 18 E. 4. by Brian Vavisor and Catesby Justices where an award is made the party ought to take notice of it at his own perill and they say that so it was adjudged in the time of the same King in the Kings Bench. Which cases are agreed for Law in my Lord Cokes 4 book as also in his 8 book Fraunces case where it is said that so is the Law without question And the reason given there is because when a man bindes himself to do or performe any thing awarded by a stranger he doth by this take notice at his perill of all things incident to this for the saving of his obligation And therefore wee may safely conclude the Booke in 7. H. 8. where there is an opinion to the contrary to be no Law but of this sufficient I shall now proceede to shew you in what respects or for what other reaâ—ons an award may be saide to be void in Law the first ground I layde downe was where the award is not according to the submission the next shall be the incertainety Where an award shall be voide in Lawe for the incertainety In all cases where the award is uncertaine it is void for the arbitrators as I have shewed before are Iudges and their judgement must be certain for judicium debet esse cerâ—â—â— And the Law doth in all cases abhorre uncertainty because it is the mother of confusion Samons case the Arbitrator awarded that the one of the parties should enter into a bond to the other and doth not award in what summe the bond shall be adjudged void for the incertainty For as the book saith the arbitrators are judges of the case and their judgement awarded ought to be certain so that by this the controversie be decided that it may not bee the cause through the uncertainty of new controversie Martham and Iennings's case in debt upon an Obligation to stand to the arbitrement of Poly of Grayes Inne for the title of Coppy hold in question betwixt the parties Poly awarded that Iennings should pay to the Plaintiffe 20 marks viz. 6 l. 131. 4d super vicesimum primum diem Maii and 6 l. 13 s. 4d at the Feast of St. Michael next following and that the plaintiffe should release to the defendant all his right in the Coppyhold super predictum primum diem Maii omitting vicesimum where there was no first day named before The Defendant pleaded that there was no award made the Plaintiffe replyed that there was an award made and sets it forth and that the Defendant hath not paid the 6 l. 131. 4d upon the first day of May the Defendant demurred intending that the arbitrement was void for the uncertainty viz. in that it was to be paid super predict primum diem Mitij where there was no first day named before Tanfield Justice the arbitrement is void in the whole because that the day to which the release is referred to be made it uncertain and so it doth not appear when it shall be made and for that it doth appear that the intent of the arbitrator was that it should be made at a day certain and this is not certainly expressed it is void And though that the arbitrement consists upon divers parts and some are certain yet if any part be uncertain all is void if it be materiall and concern a party to the submission as here it doth And it is not like the case of 19 E. 4. 1. for there the award which was void for part that part concerned a stranger not party to the arbitrement but here it concerns both parties to the arbitrement And though that there be another clause that the Plaintiffe shall make further assurance yet his intent was that the other should be also done and because that that is void for the uncertainty all is void for an award is like a judgement which if it be imperfect in any part it is void for the whole and after judgement was given for the Defendant Note here Reader that if an award be made of severall things all within the submission if it be uncertain in part onely it is totally void which doth agree with the differences which I have formerly layd down In 8 E. 4. cited before by Yelverton if an award be made that an action shal be conceived betwixt the parties by the advice of S and F the award is void because saith he every arbitrement ought to be full and certain and so it is not here untill the said S and F. limit the action I must confesse the greater opinion in this case is that the award is good but I conceive the opinion of Yelverton as I formerly said to bee the better opinion because the judgement of Arbitrators ought to bee finall as I shall shew you hereafter and nothing ought to be referred to the judgement of other persons or to the law for by the submission which must be their rule they themselves are to end al suits controversies betwixt the parties and if they do not their award is not according to the submission and therefore void Rudston and Yates's case which I have put often before though to other purposes was thus an Infant and a man of ful age submitted themselves to an award the Arbitrators award that the Infant should pay 5 l. to the other party for quite rents and other small things c. T is true that in this case it was adjudged as I have formerly said that the submission of the Infant was absolutely void But it was also adjudged that the award in this case was void because of the uncertainty of those words other small things it not appearing what those other things were and it may bee they were such things for which an Infant by the Law may not be chargeable and by the same reason they have assessed 5 l. they might have assessed 20 l. Here likewise note Reader that the award being of things within the submission was adjudged totally void for the uncertainty of part only Two submit themselves to the award of I. S. who awards that one of the parties should pay a certaine sum to the other and that the other in consideration of this should discharge him of a bond in which they two were bound