refused, because none was ever tendred like to this, so Artificial and Groundless. But that such Actions lie upon this Statute, were Cited Regist. 174. Nat. Br. 10. and they are called Attachments, and Damages shall be to the Party, and a Fine to the King. So it is in all Cases of Statute Laws, which do either Prohibit or Command the [123] doing of a Thing for the Advantage of any Person, such Person, if injured by a Disobedience to that Law is intitled to an Action, tho' the Statute doth not in express Words give one. 2 Inst. 55. 74, 118, 131. and the same holds in judicial Proceedings, the Case of the Marshalsea, 10 Rep. 75. 4 E. 4. 37. and the same Reason warrants the Action for a Scandal' Magnat'. But perhaps 'twill be said, that tho' an Action lies for a Disobedience to this Writ, yet the Writ not being returnable, no Action lies for a false Return; and consequently no peremptory Writ; and by Consequence there's no adequate Remedy in Case of an unjust Refusal: But to this it may be answered, That the Writ being Conditional, 'tis a good Answer to it, that the Fact was not as is surmised; and that Return will justify the Refusal. And certainly such Return may be made; and if not, when the first Writ is proved to be true in all its Suggestions, by Judgment in an Action for not obeying it, the same Reason will warrant a Peremptory Writ: But whether this be thus, or not, it only argues an Imperfection in the Law, proper for the Notice of the Legislature, and will not justify the Method of Proceeding now attempted here in this Place.
It hath been Objected, That such Proceedings are not like to be successful, because Judges still are to try those Matters: But these are Reflections not Arguments. And our Constitution is founded on a Notion, that Parity of Condition is the best Qualification of a Trier. And here must be a Jury to try the Fact, and they are subject to an Attaint, if their Verdict contradict the Evidence. And no Direction of a Judge can excuse them: For if it be a Point of Law, they are not obliged to find a special Verdict, but may find a general one upon their own Peril of an Attaint. Then,
Either this is designed as a Criminal Proceeding against the Judges, in order to Punishment; or as a Civil Proceeding, to gain Damages to the Party: Or else neither one nor the other, but to have an Order Commanding the Thing to be done. Which if refused, then to have them compelled by Imprisonment, quousque, &c. Neither of the first are pretended; and the last is not a Warrantable Method, when the Law hath prescribed a Writ in Chancery, and that's not prosecuted.
Here cannot be tried the particular Requisites to ground such an Order as they desire; as whether the Evidence or Exception as stated, was offered at the Trial? Or if offered, whether 'twas over-ruled? Nor whether the Matter offered were believed? For if not believed, it makes no Evidence, and so can raise no Point in Law. There can be no Jury impanelled to try this, nor can an Issue be directed hence for the Trial of it.
By this Means, the Judges lose the Benefit of that legal Trial, by a Jury of their Peers, which is their Fence and Protection against Power, Art or Surprize: the best for Indifference and Discovery of Truth. The Institution of the Law is cautious and wise in its Provision for both. Challenges are admitted below: [124] 'tis Derogatory to the Honour of this Court, to suppose it necessary here; but to have it in Westminster-hall, is however reckoned a Common Privilege and Birthright. There the Law is determined by one, and the Fact is ascertained by another: Here both are in the same Hands. Not that any Jealousy can be supposed of Mischief by it in this House: But the Practice of it now may give Precedent to future Reigns and Ages, in which there may be Danger of a Partiality.
Below, there are by the Law appointed and provided particular Terms and Days for doing Justice; and they are certain; the Distances between them are known, according to the Nature of the Suit; which capacitates the Parties concerned, their Agents and Witnesses, to be ready, and there can be no Surprise.
It must not be presumed, That this House may err; but if any Error be possible, 'tis impossible for the Judges to be relieved, for these Reasons; in Respect of the Court, for no Address can be made in such Case, but to the same Persons who did the Wrong; which is always with some Prejudice or Disadvantage; because the Party erring is to Judge, if he himself hath erred. Then the Proceedings here being in English and Summary, it cannot well be made appear, what was the Proof
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