and at the Trial in giving of Evidence to the Jury he did indeed speak those Words but averr'd that they were pertinent to the Matter and were part of his Instruction It was resolv'd upon a Demurrer That the Plea was good the Words being pertinent though they were false And there is a further Reason given by the Court in that Case viz. The Words appear not to be spoken out of Malice And no Actions of this sort nor will any Indictment of this Nature lie unless there be Malice in the Defendant and where there is any justifiable occasion of speaking words that a man in discharge of his Function or Calling is led by the Subject-Matter of Discourse as a Preacher or Pleader or the like to speak words in such Case it shall be presumed they were not spoken out of Malice In the Case of an Attorney Sir E. C. in his 2d Instit. in his Exposition of the Stat. of Articuli super Chartas 28E 1. c. 10. tells us That in the very next year after the making of that Stat. viz. 29 E. I. Will. de Weston brought an Action of Conspiracy in the Kings Bench against William of Hempswell Parson of Newton and John of Malden Parson of Askerby for causing the Plaintiff to be cited before the Arch-Deacon of Linc. for a Trespass whereof he had been acquitted in the King 's Court. John of Malden pleaded That he was Communis Advocatus pro suo dando and so justify'd as an Attorney and it was found the Parson was Communis Advocatus and so not guilty of the Conspiracy In the Case of a Witness For what he says as a Witness or for what is said against him to disable him from being a Witness or to take off his Credit no Action of Slander will lie 35 H. 6. 14. In an Action of Conspiracy one of the Defendants justify'd as being a Witness to the Jury Crok 432. In the King's Bench Weston against Dobneet in an Action for Slander There was a Suit in the Spiritual Court and the Plaintiff that brought the Action of Slander was produced as a Witness in that Cause and the Defendant in that Suit in the Spiritual Court put in Exceptions against him That he had been perjur'd and therefore ought not to be used as a Witness Thereupon Weston the Witness brought this Action for that Slander And after Arguments the whole Court held that the Action of Slander did not lie for this manner of Slander because it was in a course of Justice and not ex Malicia In a Writ of Conspiracy One of the Defendants pleaded that he was one of the Indictors Judgment si Actio And the Plea is allow'd 20 H. 6 5. 33. Nay though it be not in a course of Justice in a Suit of Law yet if a man be in the doing of his Duty and in discharge of his Function and his lawful Calling and in discoursing of a Subject proper for his Function and enforcing of every mans duty of avoiding of any Sin and in pursuit of it tells a Story which he takes up upon trust and does not know it to be false and it prove at last to be utterly untrue and an innocent person is highly slandered by it yet he shall not be subject to an Action of Slander for it The occasion of speaking shall clear him from the Malice without which the Action will not lie In the Book of Martyrs written by Fox there is a Story of one Greenwood who lived in Suffolk that he had perjur'd himself before the Bishop of Norwich in testifying against a Martyr that was burnt in Queen Mary's time and says Fox this Greenwood afterwards by the just judgment of God had his Bowels rotted in him and so he died This Story by Fox in his Book of Martyrs was utterly false of Mr. Greenwood and after the Printing of that Book of Martyrs Mr. Greenwood was living in that very same Parish One Prist a Parson happen'd to be Presented to the Living of that Parish where this Mr. Greenwood then dwelt and 27. Eliz. in one of his first Sermons happen'd to inveigh against the Sin of Perjury to which his Text did lead him and the better to deter the People from the Sin of Perjury he told this Story out of Fox's Book of Martyrs and named the very Man Mr. Greenwood and Mr. Greenwood himself was then in the Church and heard this Story told of himself but the Preacher knew it not but thought the Story to be true Greenwood brings an Action of Slander against Prist the Preacher and upon the Trial of the Cause before the Lord Chief Justice Wray the Case appearing to be thus he directed the Jury to find for the Defendant for that it appear'd it was not done out of Malice And Ch. I. Popham affirm'd it to be good Law it being a Matter deliver'd after his occasion as Matter of Story This Case is cited by Sir E. C. in Sir Henry Mountagu's Case before mentioned Crook f. 90. With this agrees the Case of the Lord Cromwel against Denny a Vicar 4 Rep. 13. b. in an Action de Scand Magn. There is a Case in many Circumstances of it much resembling our Case It was the Case between Smith and Crashaw and others M. 20 in the Kings Bench in Sir Palmer's Rep. 315. An Action upon the Case is there brought against the Defendants for maliciously causing the Plaintiff to be indicted of Treason upon which Indictment the Grand Jury found an Ignoramus To this Action the Defendants pleaded Not Guilty and were found Guilty It was moved in Arrest of Judgment That to accuse one for Treason was not Actionable for the Safety of the King and State For if a Man be subject to an Action for it it will be a means that Treason shall be smothered and Men will not expose themselves to Actions by making such Discoveries J. Houghton held the Action would not lie upon an Ignoramus found for by that the Party is not acquitted but may be Indicted again and Convicted But he holds That if he be Indicted and upon Trial Legitimo modo acquietatus then he shall have an Action upon the Case in Nature of a Conspirary for now he is absolutely acquitted and cleared of the Accusation and never can be Indicted again for that particular Fact. Dodderidge agrees with Houghton and puts this Case If an Action of Conspiracy be brought against a Man For Indicting the Plaintiff of Treason The Defendant may Plead Specially and that is the safest way of Pleading That he heard the Plaintiff speak such and such Treasonable Words and that he thereupon complained to a Justice of Peace who committed the Plaintiff upon it and this says he shall excuse him Ley Chief Justice inclines too against the Action and gives a strong Reason Because says he it is Misprision to Conceal it and yet if we allow of this Action it shall be Dangerous too to discover it so
the Petition of the Commons admits the matter of the Petition to be true and refers to Usage in former times In the same Fourth Part of Mr. Pryn's Register fol. 643. 5 H. 4. Rot. Parl. num 71 78. On the behalf of Rich. Chedder Esq Menial Servant to Tho. Brook Knight for Somersetshire The Commons Petition'd That whereas After the Custom of the Realm all the Lords Knights Citizens and Burgesses with their Servants coming to Parliament by the Kings Writ in coming going and returning are under your Royal Protection c. And this Petition was answer'd by the Act in Print We may note from hence That their Priviledge and therefore much more their being a Part of the High Court of Parliament it was by Custom of the Realm I would note further since I shall have occasion to use it for another very material Point that this Custom though the then present occasion for the mention of it was from the Servant of a Member of the Commons House yet it is alledg'd as one entire Custom for the whole Parliament viz. all the Lords Knights Citizens and Burgesses They are all but One Body One Court and their Rights and Priviledges are entire and not some for the Lords and other for the Commons but it is a joint Priviledge From hence it follows you cannot invade the Privilege of the one House but you invade both Elsing in his Treatise of Parliaments fol. 145. 'T is also in Sir Rob. Cott. Abr. fol. 433. but not so full In the time of the same King 5 H. 4. num 74. The Commons pray That whereas according to the Custom of the Realm the Lords Knights Citizens and Burgesses coming to Parliament ought not for any Debate c. to be arrested It is said to be the Custom of the whole Realm that is the same with the Common Law and it is made to be one entire Custom both for the Lords and Commons and this is for freedom of Debates and not the same with the last that I cited though in the same year 39 H. 6. Rot. Parl. num 9. On the behalf of W r Clerk Burg of Chippenham in Wiltsh And 17 E. 4. Rot. Parl. num 36. On the behalf of I. at Will. Cit. for Exeter In both these Cases though upon occasion of two particular Members yet the whole House of Commons petition'd And the Petition on the behalf of Wr. Clerk runs thus That whereof time that mans mind is not to the contrary it hath been used c. and then sets forth their Priviledge The Petition of the Commons on the behalf of I. at Will. is in these words viz. The Freedom of which Commons hath ever afore this time been and oweth to be that the Knights of the Shire Citizens of the Cities and Barons of the Cinque-Ports call'd to any of the Parliaments of your Noble Progenitors among other Liberties and Franchises have had and used Priviledge that any of them should not be attached by their Persons or Goods in their coming to any such Parliament their abiding nor returning to their proper homes c. Their Freedom had ever been then it did not begin first nor had they themselves their beginning in 49 H. 3. And oweth to be Then it was not of meer Grace and by Permission but of Right it ought so to be And Two Acts of Parliament pass'd upon those two Petitions which confirm the truth of those Suggestions And another thing I would observe which does naturally and easily flow from these Records and is very useful to us viz. That the Commons Petitioning to have these Freedoms allow'd them does nothing derogate from their Right to those Liberties and Franchises nor is no Argument to prove them to be meer Emanations of Royal Favour for the humble way of Address by the Commons to the King to have their Rights maintained is made use of by our Novellists to prove they were granted from time to time meerly by the Kings Grace I am far from condemning this humble way of Subjects addressing to their Sovereign It becomes the Duty of Subjects and is due to the Majesty of a King to have all decent Reverence shewn But I would not have ill use made of their Humility to deprive them of their Rights It was as I take it the observation of Caesar in his Commentary of the Temper of the old Britains Jam domiti ut pareant non ut serviant In that famous Case of Thomas Thorp the Speaker of the Commons 31 Hen. 6. num 25. there are the very Words of the Petition at large set forth in the fourth Reg. of Mr. Pryn fol. 644. Thorp was taken in Execution at the Suit of the D. of Y. The whole House of Commons petitioned to have their Speaker restored to them And their Petition is in these Words By Common Custom Time out of Memory of Man and ever afore these Times used in every of the Parliaments of the Kings Noble Progenitors c. And so it proceeds to declare the Priviledge of the Commons I would observe also out of these three last Records of Parliament That when any Breach of Priviledge befell but a single Member of that House as that of Walter Clerk and I. at Will. The whole House thought it self concerned and the whole House petitioned especially in this last Case of Thomas Thorp their Speaker to whom the D. of Y. was no Friend This will be useful to my Second Point Hitherto I have presented you with Records of Parliament as being the most proper Proof of the Rights of Parliament much beyond the Reports of our Historians from whom our Innovators fetch most of their Arguments I shall now offer you some Records out of an inferior Court one of the four Courts of Westminster-hall that is out of the Exchequer But they are Judicial Records adjudged by the whole Court by Advice with all the Judges of both Benches to confirm the same Point M. 12. E. 4. and H. 13. E. 4. in the Office of the Pleas in the Exchequer mentioned by Mr. Pryn in his fourth part of his Register of Parliament Writs fol. 752. In a Plea of Debt by Donne against Walsh Walsh was menial Servant to Henry Earl of Essex and he sued out his Writ of Priviledg and the Writ under the Great Seal was of this Tenure viz. Cum secundum consuetudinem in regno hactenus obtentam approbatam Domini Magnates Milites Comitatuum ac Cives Burgenses Civitatum Burgorum ad Parliamenta nostra venientes at eorum Familiares ratione alicujus Transgressionis and so proceeds to enumerate other sorts of Actions dum sic in Parliamentis nostris morentur arrestari aut implacitari minime debeant c. And then the Writ mentions that Action of Debt brought against Walsh menial Servant to the Earl of Essex in that present Parliament Vobis mandamus sayes the King by that Writ of Priviledge to the Barons
hand to give any just occasion of offence to those above me nor yet on the other hand shall I be wanting in that Duty I owe to the Kingdoms Cause I shall speak my mind freely in it and leave the Success to God. And while I must argue for the freedom of acting in Parliament and speak for the Speaker and endeavour to maintain their Rights and Priviledges I may justly claim that ordinary and reasonable Priviledge for my self that if I happen unawares to misplace a Word or to be misapprehended in what I say I may have the liberty instantly to explain my self And I take my self to be under the protection of the Law while I argue the Law. In arguing this Case I shall make three Points or lay down these three Positions 1. That what is done in this Case is done in a course of Justice and that in the highest Court of the Nation the Parliament and according to the Law and Custom of Parliament 2. That however that which is done in this Case is not to be imputed to the Defendant who acted in it but as the Servant or Minister of the Parliament though in a very honourable Station 3. That these being Matters transacted in Parliament and by the Parliament this Court of the Kings Bench ought not to take conusance of them nor hath it any Jurisdiction to judge or determine of them As to the First I shall frame this Syllogism No Indictment or Action lies for what is done in a course of Justice or in a way of Legal Proceeding But what has been done by the Defendant and by the House of Commons in this Case hath been done in a course of Justice and in a way of Legal Proceedings and that in the highest Court of the Nation Therefore what hath been here done is neither subject to an Action or Indictment I shall first prove the Major Proposition That no Indictment or Action lies for what is done in a Course of Justice The Reason of the Law is That the Law and Courts of Law and Justice and Remedies against wrong ought to be free and open and no man must be frighted nor discouraged from a legal Prosecution of his Right To prove this I shall make bold to cite the Opinion and Authority of a Town Clerk. The Report of it is in the Holy Scripture the truest and highest Report It was the Opinion and Advice of the Town Clerk of Athens We read it in the Acts of the Apostles and it instantly still'd and quieted a mighty Uproar it had so much weight in it If any man says he have any matter against another the Law is open and there are Deputies let them says he implead one another The Parties to a Suit in Law the Council the Attorney the Witness the Officers the Jury are all under a protection of the Law for what they do or say in the prosecution of a Suit in Law or any Legal Proceeding I will put some few Cases suited to every one of these who are the several Actors in a Suit. By the Stat. of 3 E. 1. call'd the Stat. of W. 1. He that reports slanderous News whereby Discord may grow between the King and his People or the Great Men of the Realm is to be imprisoned till the first Author of the Tale be brought into the Court. This comes near our Case and this is all the Punishment that the Statute inflicts upon this Crime of reporting such a Slander Sir. E. C. in his Exposition upon this Stat. in his 2d Instit. 228. says That this Stat. extends only to Extrajudicial Slanders And therefore says he if any man bring an Appeal of Murder or Robbery against any of the Peers of the Realm although the Charge be false yet shall not the Peer have an Action De Scandalis Magnatum neither at the Common Law nor by this Stat. of W. I. nor any other Stat. for any such Appeal nor for affirming the Matter of it to be true either to Councel or Attorney or for speaking the same in Evidence to a Jury It was the Lord Beauchamp's Case 13. H. 7. Keilway 26 27 28. Sir Richard Crofts sued a Writ of Forgery of False Deeds against the Lord Beauchamp The Lord Beauchamp sues Sir Richard Crofts in an Action De Scandalis Magnatum upon the Statute of 2 R. 2. c. 5. for this Slander in charging him with Forgery Keble of Council for the Lord B. admits that at the Common Law no Action did lie for this Slander it being in a course of Legal Proceeding But Keble was of Opinion that this Statute of 2 R. 2. did give the Action in such a Case though it were a Slander occasioned by a Suit. But by Brian and the rest of the Court the Action De Scand Magnatum did not lie for such a Slander though the Matter of it were false because it is in prosecution of a lawful Suit. With this agrees Boulton and Clapham's Case in Justice Jone's Rep. 431. and Weston's Case Crok 432. Sir E. C. puts the Difference in his 2 d. Inst. before cited If a man prefer a Bill in the Star-Chamber against a great Peer and charge him with Forgery or Perjury no Action De Scand Magnat lies it being in a legal Proceeding and in a Matter wherein that Court had a Jurisdiction But if in such a Bill in the Star-Chamber a Peer be accused for Felony which that Court hath nothing to do with nor no Jurisdiction in this says Sir E. C. has not the face of a Legal Proceeding and shall not excuse a man in an Action De Scand Magn. Sir Buckley's Case 4 Rep. 14. Cro. Eliz. 230. the same Case Yet where there is but a Mistake of the Jurisdiction if the Suit be once well commenc'd some little Irregularities in the Proceedings shall not expose them to the Action De Scand Magn. As If a man bring an Appeal of Murder and through the ignorance of the Party or his Clerk or Attorney it is made returnable in the Com. Pl. where they have no Jurisdiction in it yet no Action De Scand Magn. lies for this the Suit being well begun and it being in the Nature of a Lawful Suit. So says Sir E. C. In the Case of a Councellor pleading for his Client He likewise in what he affirms or pleads for his Client if it be pertinent to the Matter of the Suit and he has it by instruction from his Client he shall be protected against an Action of Slander for it This is a Point that may concern many of us It was the Case of Sir Hen. Mountagu Recorder of London M. 3 Cro. fo 90. in B. R. Ral. Brook brought an Action upon the Case for Slander against Sir H. M. for saying of the Pl. Brook that he had committed Felony Sir H. M. pleaded specially to the Action That he was a Councellor at Law and was retained against the Pl. Brook
of the Exchequer quod si ita est Those Words do not refer to the Custom set forth nor to the Law upon it but to the Allegation in the Writ of matter of Fact viz. That Walsh the Defendant was menial Servant to the Earl of Essex And then the Defendant does by way of Plea grounded upon that Writ apply the Writ to himself and averrs That he is the same Person mentioned in the Writ and averrs That he was the menial Servant to the E. of Essex and then demands allowance of his Priviledge The Plaintiff in that Suit traverses the Custom and Priviledge alledged in the Writ as to the being impleaded but admits it as to the Freedom from Arrest This Traverse is in the Nature of a Demurrer for it is Quaestio Juris ad quam respondent Judices non Juratores Et super hot viso praelecto brevi praedicto per Barones c. Habitoque Avisamento Justiciariorum Domini Regis de utroque Banco in hac parte Quia videtur praefatis Baronibus de avisamento Justiciariorum praedictorum quod talis habetur habebatur consuetudo quod Magnates Milites Comitatuum ac Cives Burgenses Civitatum Burgorum ad Parliamentum de Sumonitione Regis venientes ac eorum Familiares Ratione alicujus Transgressionis c. dum sic in Parliamento morentur capi aut arrestari non debent But then they adjudge that the Priviledge does hold only against Arresting their Persons but not against the Suing them This strongly proves the Point I have in Hand That the House of Commons have their Priviledges by Custom and therefore the House it self could not have its Original within Time of Memory as 49 H. 3. is in a Legal Understanding It is very useful further to observe That the single and sole Occasion of this Record was from the Priviledge of the Peers from the suing a menial Servant of a Peer No Man denies but the Peers have even been a part of the Parliament Nay our new Modellers of the Government would have the Parliament to consist only of the King and Lords And yet it is said to be a Joint Custom for the Commons as well as for the Lords by express and particular Words Why did they not lay the Custom for the Priviledge of the Lords only that might have serv'd for that present Occasion which was about the Priviledge for a menial Servant of the then E. of Essex But the Custom was an entire Custom for both Houses This proves them to be coaetaneous and Twins by Birth and Original All this is by the Judgment of all the twelve Judges in a Judicial Proceeding And it takes in the Opinion of the Chancellor who issued out that Writ The other Record of the same Court is entred H. 12. E. 4. Rot. 7. inter Ryner Cousin Keeper of the Wardrobe to the King in an Action of Debt too and there the Defendant claims his Priviledge not as Servant to the King but as Servant to Thomas St. Leger Knight of the Shire for Surrey And the Writ of Priviledge sets forth the same entire Custom both for Lords and Commons tho' the Occasion was here from the Commons only and the Court of Exchequer gives the like Judgment as in the former Case by Advice too of all the Judges of both Benches The next Record I shall make use of shall be that of E. 2. which is a most invincible Proof that the Knights Citizens and Burgesses have originally and before 49 H. 3. constituted the House of Commons and have ever been a part of the Parliament The Burgesses of S. Albans in their Petition to the King say That they sicut caeteri Burgenses Regni ad Parliamentum Regis per duos Comburgenses suos venire debeant prout retro-actis temporibus venire consueverant tam tempore Domini Edwardi nuper Regis Angliae Patris Regis which must be E. 1. progenitorum suorum which must be understood of the Progenitors in the plural number of E. 1. for he mentions the then King E. 2. afterwards so that of necessity it must take in King Hen. 3. and his Father King John at the least And this Computation much exceeds the Date given to the House of Commons by these new Authors viz. 49 H. 3. And then the Petition descends to the mention of the then Kings Time viz. E. 2. tempore Domini Regis qui nunc est semper ante instans Parliamentum And the Petition complains of the Sheriff of Hertfordshire who by the Abbots procuring refused to summon that Burrough The Answer by the Councel is Scrutentur Rotuli c. de Cancellaria si temporibus Progenitorum Regis Burgenses praedicti solebant venire vel non This Answer admits the general Usage of Burgesses to be chosen for divers Burroughs in the times of the King's Progenitors For it is absurd to think that that needed any search of the Rolls in Chancery but the Search was to be only Whether that particular Burrough of S. Albans was one of those Ancient Burroughs that had used that Priviledge and had a Right to it which would appear by the Rolls and Returns of Writs of Summons The Record lays the Usage for the Burrough to have been semper ante instans Parliamentum so that the Usage had been from ever In the Rolls of Parliament 11 H. 4. num 59 cited by Mr. Pryn in his Brevia Parliamentaria rediviva fol. 185. There is a Petition of the Commons in French reciting the Stat. of 7. H. 4. c. 15. which Statute as the Petition says was made for the preserving the Franchises and Liberties of the Election of Knights of the Shire used throughout the whole Realm and by the Kings Progenitors from Parliament to Parliament time out of mind observed I will now put the Court in mind of some Acts of Parliament that fully prove this Point The Statute of 5 R. 2. Parl. 2. c. 4. in a time When Parliaments were not so much valued It is thereby Enacted by Assent of the Prelates Lords and Commons that all Persons and Communalties which should have a Summons to Parliament should come from thence-forth to Parliaments in the manner as they were bounden to do and had been accustomed of Old Times otherwise they should be Amerced as of Old Times had been accustomed Rot. Parl. 2. H. 5. Pars 2. Numb 10. This is left out of Sir Rob. Cott. Abr. That Act declares that the Commons had ever been a Member of the Parliament and that no Statute or Law could be made without their Assent I will not spend time in citing those Learned Antiquaries or Historians as Sir Henry Spelman Bedes Eccl. Hist. nor Famous Selden nor Learned Cambden who by general Words used in the Saxon Times for the Assembling of Parliaments tho' not by that Name prove the Commons to be a Part of Them but they do not prove the Commons to be so