The fifth

count, for fuppofed fcandalous

and defama

tory words Spoken of a member of

parliament

freeholder, at

ers of that County at

Eplom.

and 400l. intire damages, and a verdict for the defendant as te the refidue. And now it is moved that the judgment may be arrefted, because the words in the two laft counts, or in the latter of thofe counts are not actionable; it is therefore only neceffary to write down here correctly the fifth and fixth counts upon which the plaintiff obtained the verdict, which are as follows.

And whereas he the faid George Onflow, at the time of fpeaking and publishing the feveral falfe, fcandalous and defamatory words herein-after mentioned, and before, was, and yet is knight of the fhire to ferve in parliament for the faid county of Surry, and always conducted and behaved himfelf in his faid character and flation with fidelity, integrity and honour, (to wit) at Epfom aforefaid; and whereas before the fpeaking and publishing the for Surry, by feveral falfe, fcandalous and defamatory words herein-after mendefendant, a tioned, (to wit) on the 26th day of June, in the year of our Lord a meeting of 1769, at Epfom aforefaid, a great number of freeholders of the the freehold faid county of Surry, having a right to vote in the election of knights of the fhire to ferve in parliament for the faid county, affembled and met together to confider of meafures to be taken in fupport of the right of election; and it was then and there at the faid meeting or affembly proposed to inftruct the faid George Onflow, and Sir Francis Vincent Bart. the other knight of the fhire for the faid county, to take meafures, as reprefentatives of the faid county in parliament, in that behalf; at which faid meeting or affembly, the faid John Horne, under pretence of being a freeholder of the faid county of Surry, attended, (to wit) at Epfom aforefaid; yet the faid John Horne well knowing the premifes, but contriving and wrongfully and malicioufly devifing and intending to injure, defame and fcandalize the faid George Onflow, as one of the knights of the fhire to ferve in parliament for the faid county, and to ruin him in the opinion and efteem of the freeholders of the faid county fo affembled as aforefaid, and the other freeholders of the faid county, on the faid 26th day of June in the year aforefaid, at Epfom aforefaid, at the aforefaid meeting or affembly, and in the hearing of divers of the faid freeholders of the faid county fo affembled, falfly and malicioully faid, fpoke, and, with a loud voice, publifhed of and concerning the faid George, as knight of the fhire to ferve in parliament for the faid county, and refpecting the faid proposal, which had been fo made as aforefaid, thefe falfe, fcandalous and defamatory words following, (that is to fay) I (meaning himfelf the faid John Horne) expected to have met George Onflow (meaning the faid George Onflow), but find he (meaning again the aid George Onflow) is not here; for which I (meaning himself, the faid John Horne) am rather forry, as I (meaning himself the

The words laid in the fifth count.

faid John Horne) came here with an intention to have told him (meaning the faid George Onflow) my opinion of him (meaning the faid George Onflow); and if he (meaning the faid George Onflow) would have waived his privilege, I (meaning himself the faid John Horne) would have waived my gown. I (meaning again himself the faid John Horne) know him (meaning the faid George Onflow) very well; I have carried letters from Mr. Onflow (meaning the faid George Onflow) to Mr. Wilkes, full of profeffions of friendShip and fervice, which were never kept; nor indeed is it to be wondered at, fince it is notorious, he (meaning the faid George Onflow) never kept his (meaning the faid George Onflow's) word, unless where his (meaning the faid George Onflow's) own intereft was concerned. As to the inftructing our members (meaning the faid George Onflow, and the faid Sir Francis Vincent) to obtain redrefs, I (meaning himself the faid John Horne) am totally against that plan; for as to infirucling Mr. Onflow (meaning again the faid George Onflow), we might as well inftruct the winds; and fhould he (meaning the faid George Onflow) even promife his (meaning the faid George Onflow's) affiftance, I (meaning himself the faid John Horne) should not expect him (meaning the faid George Onflow) to give it us.

laid in the fixth count.

And the faid John Horne, of his further malice against the The fixth faid George, and contriving, and wrongfully and maliciously de- count. vifing, and intending as laft aforefaid, afterwards, (to wit) on the fame day and year laft above-mentioned, at Epfom aforefaid, at the aforefaid allembly or meeting; and in the hearing of divers of the faid laft mentioned freeholders, fo met and affembled, falfly and malicioufly faid, fpoke, and, with a loud voice, publifhed, of and concerning the faid George Onflow, and refpecting the faid propofal which had been fo made as aforefaid, thefe other falfe, fcandalous and defamatory words following, that is to fay, As to inftrucling our members (meaning the faid George, The words and the faid Sir Francis Vincent) to obtain redress, I (meaning himself the faid John Horne) am totally against that plan; for as to inftructing Mr. Onflow (meaning the faid George Onflow), As to inwe might as well inftruct the winds; and fhould he (meaning the ftructing our faid George Onflow) even promife his affiflance, I (meaning him- obtain refelf the faid John Horne) should not expect him (meaning the faid drefs, I am George Onflow) to give it us. By reafon of the fpeaking and totally against publishing which faid falfe, fcandalous and defamatory words, for as to inhe the faid George Onflow is very much injured in his character ftructing Mr. and ftation of knight of the fhire, to ferve in parliament for the O. we might faid county of Surry, and brought into great fcandal, infamy and at the disgrace, and very much prejudiced in the esteem and opinion of winds; and

members to

that plan;

as well in

fhould he even promife

his affiftance, I should not expect him to give it us. Not actionable.

the freeholders of the faid county of Surry, to the faid George Onflow, his damage of ten thousand pounds, and thereof he brings fuit, &c.

On the 10th day of November, in Michaelmas term laft, Serjeants Glynn and Jephfon, on behalf of the defendant, moved in arreft of judgment, that neither of the fets of words are actionable, and more especially the latter are not: the verdict is taken generally, and the damages are given upon both the counts jointly; fo that if the court fhall be of opinion, that either of thefe fets of words are not in themselves actionable, they will arreft the judgment.

It appears by the declaration, that the words were spoken by a freeholder, at a meeting or affembly of freeholders of the county of Surry, for a lawful purpofe, to confider of measures to be taken in fupport of the right of election; and that it was then proposed to instruct the plaintiff, and the other member of that county, to take measures in that behalf; whereupon, a debate arifing, the defendant Mr. Horne gave his opinion againft inftructing the plaintiff Mr. Onflow, and fpoke the words in the declaration, concluding, "that he was totally against that plan: "for as to inftructing Mr. Onflow, we might as well inftruct the "winds; and fhould he even promife us his affiftance, I should not expect him to give it us." If words of opinion like these, fpoken at a public meeting of a county, or at a meeting of any corporate body, to confider and inquire into the conduct of their fervants, are to be adjudged actionable, and for which large damages are to be given, there will be an end of all freedom of debate in every public affembly in the kingdom met together for lawful purposes; whereupon the court made a rule to fhew caufe, why judgment fhould not be arrefted.

64

November the 26th, in the fame Michaelmas term, Serjeant Whitaker thewed caule for the plaintiff, why the judgment should not be arrested.

Serjeant Whitaker-It is an univerfal principle laid down in the books, that any words whatever fpoken maliciously againft the integrity of a perfon in an office of truft, are, in themselves, actionable; a member of parliament is an office of the greatest truft, and his integrity is of the utmoft confequence to the fubject. I admit the freeholders of the county have a right to instruct their members to take measures in fupport of the right of election, but they have no right to fpeak maliciously against the integrity of their members; and to fay they might as well inftruct the winds, as infruct a certain member; that he never kept his

2

word,

word, unless where his own intereft was concerned; or any scandalous and defamatory words of like import to thofe laid in the declaration, which the jury have found to be spoken maliciously by the defendant upon this occafion.

Applicable to this, is the cafe of Richard Afton Efq. against Jofeph Blagrave, Mich. 11 Geo. B. R. 2 Lord Raym. 1369. In an action for words, the plaintiff declared that he was a juftice of the peace for the county of Berks, and that the defendant, intending to fcandalize him, and bring him into difrepute, having a difcourse with divers of the King's fubjects, at Wantage in Berks, concerning the faid Richard, and concerning his execu tion of his office of a juftice of the peace, in the prefence and hearing of many of the King's fubjects, spoke and published of the faid Richard and of his execution of his faid office, these falfe, fcandalous and defamatory words; viz. "Mr. Afton (meaning the plaintiff) " is a rafcal, a villain, and a liar." "On not guilty pleaded, a verdict was found for the plaintiff, damages 2. 10s. And after feveral motions, that these words were not actionable, because they were general words of uncertain fignification, it was refolved by the whole court-Pratt, Powys, Fortefcue and Raymond-that the words were actionable, they being laid to have been fpoken of the plaintiff in the execution of his office, and fo found: fo that it is the fame as if the defendant had faid, that the plaintiff is a villain in the execution of his office, a rafcal in the execution of his office, and a liar in the execution of his office; which carry with them a great scandal, and, in common understanding, import a great imputation against the plaintiff's integrity and behaviour in that office. And judgment was given for the plaintiff. This cafe of Afton verfus Blagrave, is alfo reported in i Stra. 617. and 8 Mod. 270. So, in the cafe at bar, the words are laid to be spoken with an intention to defame and fcandalize the plaintiff, as one of the knights of the fhire for Surry, (an office of great truft, as I before faid) and import a great imputation against his integrity and behaviour in that office.

In the cafe of Sir Thomas Clarges verfus Roue, Mich. 33 Car. 2. 3 Lev. 30. the plaintiff declared, that he was a proteftant deputy lieutenant of the county of Middlefex, and one of the privy council of Ireland, and, at the time of fpeaking the following words, ftood to be a member of parliament for Chrift-Church in Wiltshire, the defendant falfly and maliciously, and to make him lofe his faid offices; and alfo his election, faid to one A. and divers others of the electors; he is a papift; by which he came within the laws made against papifts, and had loft his offices, and been put to great expence to prove his innocence.

N 3

And,

363. Het.

And, upon not guilty pleaded, and a verdict for 100l. damages, it was moved in arrest of judgment, that the words are not actionable: but after divers motions pro and con. judgment was given for the plaintiff by the whole court; and Windham and Charlton Juftices, held, that to call a common perfon a papift is actionable, in refpect of the penalties of the law againft papifts; and especially at that time, after the popifh plot; for it is dangerous to be called papift, as to their perfons, in refpect of allaults by the rabble; and words are actionable in refpect of fcandal, Stiles 22, 23, damage and danger, which they bring to perfons. But North and Levinz held, that it is not actionable to call a common per. fon a papift, but to call officers papifts it is; in refpect of their Cro. Jac. 56, dignity, and the danger of lofing their offices, of which papists 202.3 Lev. in many cafes are not capable. And in cafes of officers of dig nity, and who are interested in the adminiftration of government, words are actionable which are not actionable in the cafe of common perfons. So in the cafe at bar, if the words had been spoken of a common perfon, perhaps they would not have been action. able; but being spoken of the defendant as a member of parlia ment, and an officer of dignity, (with great deference to the court) I fubmit it, they are actionable,

167. Cro.

Eliz. 193.

51, 68.

In the cafe of offices of profit, words that impute either defect of understanding, of ability or integrity, are actionable; but in offices of credit, words that impute want only of ability, are not actionable. As, of a juftice of peace-" He a justice of peace? "he is an afs, and a beetle-headed juftice!" are not actionable: the reason is, because a man cannot help his want of ability, as 2 Salk. 694. he may his want of honefty or integrity: as in the cafe at bar, where How v.Prinn. the office of member of parliament is an office of credit, and the

party (plaintiff) is charged with inclinations and principles which fhew his want of integrity, and confequently unfit for fo high. an office of trust and credit. Surely the words in the declarations, in both counts, are actionable.

Serjeant Leigh, of the fame fide with the plaintiff, fpoke much to the fame effect as brother Whitaker; and further said, that furely there is a great difference between freedom of debate, and freedom of abufe and malicious flander; of the laft of which, the jury have certainly found the defendant guilty that the defendant Mr. Horne, might have juftified in pleading the words he fpoke in public to the plaintiff, if they were true; but he durft not; well knowing, that the words laid in the declaration were falfe, and could not be juftified; fo he hath pleaded that he never spoke the words: and now he comes to this court, and by his council (in effect) fays, that although "I spoke the words maliciously of the honourable gentleman, (the plaintiff)

66

"yet