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
very numerous the Parties contesting very violent the Proceedings tumultuous the Polling is sometimes in several Places at once so that the Sheriff can hardly be a Witness of the action and if a dispute be in the House of Commons he is no party to it If after all this the Sheriff who cannot indempnifie himself by security shall be liable to an Action the Service of the Parliament may be reckoned a miserable slavery which is not for their honour As this is dishonourable so it is dangerous to Parliaments It concerns the Kingdom that Returns to Parliament should be upright and impartial that they may be so the Sheriffs should be secure from all fears Judges are not liable to Actions that they may proceed uprightly and impartially if they were subject to Suits for their judgments there is that earnestness and confidence on both sides that one side would be dissatisfied and trouble them and they could not discharge their duty without apprehensions of disquiet If the Sheriffs be exposed to Actions thus let us consider what and whom he is to fear he may fear the Suit of the Party and he may fear the Suit of the King and it follows necessarily that if an Action lies an Information for the King will also lie for the misdemeanour in his Office If it be not a Case priviledged by the Complexion of it as Parliamentary from being examined in Westminster-hall but that he may be punished at the Suit of the Party he may certainly be as well punished at the King's Suit if so where is the Sheriff's security will his own innocency secure him that must be tried by a Jury of the Country where the Parliament sits who are it may be strangers to him as well as to the matter or by a Jury of the Country where the Election was where it may be they will be of an opposite party the Plaintiff may wait his opportunity and question him twenty Years after if he be condemned his punishment is unlimited a Fine may be set to any height for the King the Damages may be given to any value for the party where is his security upon such proceedings will he not be more afraid of such punishment out of Parliament than of any punishment in Parliament will not or may not his terror make them desire to please them that can punish them out of Parliament rather than do right will not that be dangerous to the Constitution of Parliaments As the punishment out of the Parliament may be a terror to those which mean well so colourable punishments may be as mischievous on the other side for they may prevent any punishment in Parliament for Nemo bis punitur pro eodem delicto they may serve for protection of men that do ill when it is seriously weighed of what Consequence this may be the Case at Bar will not be thought a Case fit to be received by the Judges without the countenance of a new Law. They object here is Malice found by the Verdict and there can be no danger or inconveniency that Malice should be punished This Objection fortifies my Opinion for Malice upon which they would have the Scales turn'd in this Case is not a thing demonstrative but interpretative and lies in opinion so that it may give a handle to any man to punish another by The instance of this very Case shews that a good man may reasonably be afraid of the event of his defence in such a Case For although the matter was of great examination in Parliament and at last decided but by few Voices and no observation of the Sheriffs miscarriage there though it appeared upon the Tryal which I may say being present that the Sheriff was guided by the advice of his Friends of Councel and of Parliament-men that told him the only safe course was to make a double Return yet the Jury condemned him to pay 800 l. against the expectation of the Court for the Judges that were present at the Tryal did all declare publickly that they would not have given that Verdict The Judges heard all the Evidence the jury could go upon for being of a remote County to the place of Election the Jury could know nothing of their own knowledge and yet the Judges concurred not with the Jury in opinion I know we are not to examine the truth of the Verdict we must take it for Gospel neither does any partiality in this particular lead me in judgment but I shew it as an instance that Malice is not demonstrative mens minds may be mistaken and innocent men have therefore reason to be afraid especially in ill times and may use such means for their safety as may not be convenient for Parliaments But there can be no danger or inconveniency in the Censure of the Parliament that represents the whole Kingdom who hitherto have alone exercised this Power and who may at any time reform the Law if the present practice be any way inconvenient Upon the Reasons which I have produced I ground my Opinion Now it will be necessary to weigh what has been said in opposition to it The Arguments urged on the other part related either to the Ingredients or Circumstances of the Action or to the Foundation and Substance of it I call the Ingredients and Circumstances of the Action that it is laid with the words falso malitiose deceptive scienter and that here is a Verdict in this Case and Damages are found The words falso malitiose deceptive will sometimes make a thing actionable which is not so in it self without Malice proved though there be the same damage to the party As where a man causeth another to be falsly indicted yet if it be not maliciously no Action lies though there be the same trouble charge and damage in one Case as in the other But it is only where a man is a voluntary Agent for if a man be compellable to act you cannot molest him upon any Averment of Malice as if a Grand Jury-man causeth another to be indicted though you aver Malice you cannot have an Action against him so for a Witness that doth testifie or a Judge that judgeth In the Case at Bar the Sheriff is compellable to act and not barely as a Minister to send the Indenture but as a Judge to say which is the major part of the due Electors and if he mistakes there is no reason it should subject him to an Action upon an artificial Averment of Malice I remember in Shepheard and Wakeman's Case in the Kings-Bench Mr. Justice Wyndham said well that the words falso malitiose were grown words of course and put into every Action and that to his knowledge Juries had many times not regarded them that he looked upon them as words of form If we should make the words falso malitiose support an Action without a fit Subject-matter all the actions of Mankind would be liable to Suit and Vexation they that have the Cooking
practice hath been hitherto to receive double Retorns which therefore in some Cases must be Lawfull and in this very Case the double Retorn was accepted and the Sheriff no way punished for it which he ought to have been if he had been blameable If double Retorns are accepted by the Parliament they are allowed and we must say they are Lawfull which is the ground of my third Reason for which I hold this Action not maintainable My Fourth Reason is that there is no legal Damage occasioned by the Sheriff The Damages laid in the Declaration are First Being kept from Sitting in the House Secondly The Pains and Charges he was put unto to get into the House First That of his being kept from Sitting in the House is as much every Man's Damage in the whole County nay in the whole Kingdom and any Man else might as well have an Action for it as the Member chosen To sit in Parliament is a Service in the Member for the benefit of the King and Kingdom and not for the particular profit of the Member It is a Rule in Law that no particular Man may bring an Action for a Nusance to the King's High-way because all Men in England might as well have Actions which would be infinite and therefore such an Offence is punishable only by Indictment except there be a special Loss occasioned by that Nusance For the same Reason the exclusion of a Member from the House being as much Damage to all Men in England as to himself he nor any Man else in England can have an Action for it but is punishable upon the publick Score and no otherwise For this Reason was the Stat. 23 H. 6. wisely considered By that Statute the Action is not given to the Party for his particular Damage but the Action given is a popular Action only the Party grieved hath a preference for Six months but if he do not Sue for that time every Man else is at Liberty to recover the same Sum. The other point of Damage is the Pains and Charges he was put unto and that is not occasioned by the Sheriff but by the deliberation of the House Why should the Sheriff pay for that It may be if the Parliament had sent for the Sheriff the first day and blamed the double Retorn he would have ventured to determine the matter speedily and there should have been no cause of Complaint for delay But the Parliament saw so much Cause of doubt that they think it not fit to put the Sheriff to determine but resolve to examine the matter and give him directions that may guide him in amending his Retorn thereupon they give day to the Parties on both sides and finding the matter of long Examination and Difficult they deliberate upon it It seems very unreasonable the Sheriff should be made pay for this which he did not occasion but was a course taken by the Parliament for their own Satisfaction who found no fault in the Sheriff for putting them to all that trouble Suppose Sir Samuel Barnardiston had been retorned alone and the Lord Huntingtowr had petitioned against that Retorn there had been the same Charge to have defended the Retorn So it was the contest of the opposite Party that occasioned the Charge the deliberation of the Parliament that occasioned the Delay but neither of them can be imputed to the Sheriff I cannot difference this Case from the Case of bringing an Action against a Jury for malitiously and knowingly and on purpose to put the Party to Charges finding a matter Specially whereby great Delay and great Expences were before the Party could obtain Judgment and yet I think no Man will affirm that an Action will lye in that Case In this Case the Damages are found entire So that if both parts sc the not Sitting in the House and the Pains and Charges are not Actionable causes of Damage it will be intended the Jury gave for both and so the Judgment is for that Cause erronious I suppose the Wages of Parliament will not be mentioned for Damage for in most places they are only Imaginary being not demanded but if there were to be any Consideration of them it will not alter this Case for upon this Retorn they are due as from the first day and so no Damage can be pretended upon that score My Fifth Reason is drawn from the Stat. 23 H. 6. which has been so often mentioned that Statute is a great Evidence to me that no Action lay by the Common Law against a Sheriff for a false Retorn of a Writ of Election to the Parliament and this Evidence is much strengthened by the Observation that hath been made that never any Action was brought otherwise than upon that Statute I must admit that if an Action lay by the Common Law this Statute doth not take it away for there are no negative Words in the Statute but it is not likely that the Parliament would have made that Law if there had been any Remedy for the Party before The Statute observes that some Laws had been made before for preventing false Retorns but there was not convenient Remedy provided for the Party grieved and therefore gives him an Action for 100 l. If the Courts of Justice had by the Common Laws Jurisdiction to examine Misdemeanors concerning the Retorns of Sheriffs to the Parliament what needed the Parliament to be so elaborate to provide Law after Law to give them Power therein and at last to give the Party grieved an Action can any Man imagaine but that the Parliament took the Law to be that the Party was without Remedy I know preambles of Acts of Parliament are not always Gospel but it becomes us I am sure to have respect to them and not to impute any falsity or failing to them especially where constant usage speaks for them It has been Objected that in these times it was reckoned a Damage to be Retorned to serve in Parliament which is the reason that no Man then did bring his Action against the Sheriff for Retorning another in his stead This cannot be true for the Statute calls him the Party grieved and is carefull to provide convenient Remedy for him and we see by the many Statutes about those Times that it was a mischief very frequent and there wanted not occasion for those Actions which doth extreamly strengthen the Argument of the Non user of this pretended Common Law. An Action upon the Case where it may be brought is a Plaister that fits it self for all Times and for all Sores and if such an Action might then have been brought there was no need for the Parliament to provide a convenient Remedy By Littletons Rule often mentioned by my Brothers we may conclude this Action will not lye for if such an Action had lain it would have been brought before this Time. In the Case of Buckley against Rice Thomas in Plowdens Commentaries 118. which appears to have been elaborately Argued at Bar and