Thesaur' adtunc [14] Existent') de Concilio Justiciar præd' quod in Record' aut processu præd' vel redditione jud' præd' in nullo est Erratum Ideo consideratum est per præd' Custodem Magni Sigilli Angliæ (nullo Thesaur' adtunc Existent) quod judicium præd' in omnibus affirmetur, &c.
Whether the Words be actionable. Argument for the Plaintiff in Error. General Rule.—Upon the General Error assigned here in the Judgment, and Affirmance aforesaid, the single Quære was, If these Words, He is disaffected to the Government, be actionable? And it was argued by the Counsel for the Plaintiff in the Writ of Error, that they were not, because they are general and uncertain, do not import any particular Crime which exposes to any particular Penalty, and they carry no Reference to his Office; and tho' he be alledged to be a Justice of the Peace, yet there's no Colloquium laid concerning his Office. To make Words actionable, they must either tend to the Scandal and Discredit of the Party, or such, if true, as must bring Damage to the Party, of whom they are spoken; otherwise, without special Damage laid and proved, there's no Reason for the Jury to give Damages, because he suffers none. In ancient Time these Actions were rare; the Year-Books are little acquainted with them; and tho' later Ages have countenanced them, yet it hath been under certain Rules and Limitations, as that they ought to be particular and clear; for if they are so general as to be ambiguous, no Action is warrantable upon them; and therefore they must be of a single and known Sense, and such against which no other Intendment can reasonably be admitted. Slander raised by Argument, or Implication, or Inference only, is not enough to maintain an Action: And tho' the Causa dicendi be not inquirable now, after a Jury hath found them spoken as laid, viz. maliciously; yet if the Words themselves do not imply Malice and Damage, the Use of those Adverbs which are commonly mention'd in such Declarations, will not alter the Case; for Men are to be answerable only for their own Words, and not for Words expounded or described in another Manner than the Speaker intended. Here the Word disaffected is none of the plainest; nor is the Word Government much plainer; the first is only a Negative, and to say He is not affected to the Government, goes only to a want of Zeal, or to an Indifference of Temper, and doth not carry in it any Treasonable Intent or Purpose, much less any Act done.
And as to the pretended special Damage, in the Loss of his Prince's Favour, or incurring his Displeasure, that is such an Allegation as should not have been made, 'tis neither mannerly nor justifiable in the Plaintiff to affirm such a Thing upon Record. And as to the Loss of his Office, that can be no Damage, the same being no Place of Profit, but meerly of Burden and Trouble. 'Twas further urged. That if these Words were allowed to be Actionable, Tory, Whig or Jacobite, or any other common rude, uncertain Terms in Discourse, might pretend to it, according to the respective Turn of Times, and consequently no Body would know what Discourse is allowable: As ill Tongues were to be corrected, so Care is to be had of Liberty of Speech, not to [15] make every Thing a Cause of Action; and to justify this, on the same side were quoted Multitude of Cases, too many to deserve a Remembrance.
Argument for the Defendant in Error.—It was argued on the other side, That these Words toucht the Person in the most tender Point, viz. his Loyalty; That it carried Scandal in it self, not to be zealously affected to the Government, which Protects the whole; that it was equivalent in Common Understanding, to the calling him Traytor or Rebel: That this was much more, than affirming one not to be a good Man; that disaffected implied somewhat positive; it's Meaning was, that the Party hath an Aversion, a fixed, settled Enmity to the Government; that this was spoken of an Officer of great Trust; that 'twas a Reflection upon him with regard to his Office, for Loyalty is as necessary as Justice in such a Post; that to slander him in the one, ought to be as actionable as to slander him in the other; which is allowed it will, because of the Reference to the Office in the nature of the Words, without any Special Damage: That to deny these Words to be actionable, would tend to encourage Breaches of the Peace, by provoking Challenges, &c. for that, if Men cannot relieve themselves by Law, they will be tempted to do it of themselves in other Methods; and that these Words were a Reflection on the Government, which imployed Men thus disaffected; and Abundance of the
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