Milwood and Ingram 205 Monke versus Morrice and Clayton 93 Moor and Field 229 Lord Mordant versus the Earl of Peterborough 114 Moreclack and Carleton 73 Mors and Sluce 85 Mosedel the Marshall of the Kings Bench. 116 N. NAylor against Sharply and others 198 Norman and Foster 101 Nosworthy and Wildeman 42 O. OGnel versus the Lord Arlington Gardian of c. 217 Osburn and Walleeden 272 P. PAge and Tulse 239 Parker and Welby 57 Parten and Baseden 213 Parsons and Perns 91 Henry Lord Peterborough versus John Lord Mordant 94 Doctor Poordage 22 Porter and Fry 86 Prin and Smith 19 Pybus and Mitford 121 159 R. RAndal and Jenkins 96 Rawlin's Case 46 Redman and Edelfe 4 Redman 10 Redman and Pyne 19 Dominus Rex versus Vaws 24 Dominus Rex versus Turnith 26 Rich and Morrice 36 Richards and Hodges 43 Roberts and Mariot 42 289 Rogers and Danvers 165 Rogers and Davenant 194 Russel and Collins 8 S. SAvil against the Hundred of 221 Scudamore and Crossing 175 Searl and Long. 248 Sedgewicke and Gofton 106 Earl of Shaftsbury's Case 144 Slater and Carew 187 Smith and Wheeler 16 38 Smith and Bowin 25 Smith Lluellin al. Commissioners of Sewers 44 Smith's Case 209 Smith versus Smith 284 The Chapter of the Collegiate-Church of Southwell versus the Bishop of Lincoln 204 Southcote and Stowell 226 237 The Company of Stationers versus Seymor 256 Stead and Perryer 267 Strode versus the Bishop of Bathe and Wells and Sir George Hornet and Masters 230 T. TAylor and Wells 46 Taylor and Rowse Church-Wardens versus their Predecessors 65 Lord Tenham versus Mullins 119 Thredneedle and Lynham 203 Sir John Thoroughgood 107 Tildell and Walter 50 Tomlin and Fuller 27 Lord Townsend versus Hughes 232 Troy 5 Turner and Benny 61 Turner and Davies 62 V. VAughan and Casewell 7 Vaughton versus Atwood alios 202 Vere and Reyner 19 W. WAldron versus 78 Warren and Prideaux 104 Warren and Sayer 191 Watkyns and Edwards 286 Wayman and Smith 63 Wilbraham and Snow 30 Williams and Lee. 42 Williamson and Hancock 192 Wilson and Robinson 100 Wing and Jackson 215 Wood and Davies 289 Wootton and Heal. 66 Wootton and Penelope 290 Worthy and Liddal 21 Y. YArd and Ford. 69 Z. ZOuch and Clare 92 Errata PAge 40. line 2. a Conveyance with power lege a Conveyance reserving a power p. 50. l. 23. to Nicholas Love the Father if he should so long live lege to Nicholas Love the Father for a term of years if the Cestuy qui vies or any of them should so long live p. 54. l. 22. tenant for life dele for life p. 63. l. 26. pro Quer ' lege pro Defendent ' p. 109. l. 20. if tenant in tail grant a Rent lege if tenant be rendring a Rent p. 112. l. 9. of the month next year lege of the same month p. 127. l. 20. ab inconventi lege ab inconvenienti p. 128. l. 2. and lining thereupon lege and linnen Thereupon c. p. 136. l. 7. left lege lost l. 28. left lege lost p. 145. l. 20 21. repeated lege reported p. 170. l. 2. joyntly to lege joyntly and severally to p. 190. l. 31. A's ground lege B's ground p. 193. l. 5. a stranger a tenant in possession lege a stranger tenant in possession p. 206. l. 20. Shrewsbury the Liberties lege Shrewsbury and the Liberties p. 217. l. 8. shillings given lege shillings be given p. 223. l. 13 Mary it would lege Mary for if it were it would c. p. 245. l. 12. if he had lege that he had p. 262. l. 13. a verbal request lege a verbal discharge p. 271. l. 12. Heley lege Offley p. 285. l. 24. upon the Merchants lege upon the custom of Merchants The Cases of Trin. Term 29 Car. 2. in Com. B. end with page 270. and from that page to page 299. through a mistake of the Composer it 's printed C. B. instead of B. R. which the Reader is desired to to amend with his Pen. REPORTS Of divers Select Cases In the Reign of CAROLI II. Term. Mich. 21 Car. II. 1669. in Banco Regis ONe Mynn an Attorney entred a Iudgment by colour of a Warrant of Attorney of another Term then was expressed in the Warrant The Court consulting with the Secondary about it he said That if the Warrant be to appear and enter Iudgment as of this Term or any time after the Attorney may enter Iudgment at any time during his life but in the case in question the Warrant of Attorney had not those words or at any time after Wherefore the Secondary was ordered to consider the charge of the party grieved in order to his reparation Which the Court said concluded him from bringing his Action on the Case The Secondary said That in Trin. Hil. Term they could not compel the party in a Habeas Corpus to plead and go to Trial the same Term but in Michaelmas and Easter Term they could Mr. Solicitor moved for a new Writ of Enquiry into London and to stay the filing of a former because of excessive damages given but it was denied An Affidavit for the changing of a Venue made before the party was Arrested and allowed Moved in Battery for putting an Arm out of joint that the party might be held to special Bail but denied Twisd Follow the course of the Court. Mr. Sanders moved to quash an Order made by the Iustices of Peace for putting away an Apprentice from his Master and ordering the Master to give him so much Money Keeling The Statute of 5 Eliz. leaves this to their discretion An Indictment was preferred in Chester for a Perjury committed in London For which Keeling threatned to have the Liberties of the County Palatine seized if they kept not within their bounds Goodwin Harlow ERror to reverse a Iudgment in Colchester there being no appearance by the party but Iudgment upon thrée defaults recorded Revers'd Twisd If there be a Iudgment against thrée you cannot take out Execution against one or two Vpon a motion for a new Trial Twisden said That in his practice the Heir in an Action of Debt against him upon a Bond of his Ancestor pleaded riens per discent the Plaintiff knew the Defendant had levied a Fine and at the Trial it was produced but because they had not a Déed to lead the uses it was urged that the use was to the Conusor and his heirs and so the heir in by descent whereupon there was a Verdict against him and it being a just and due Debt they could never after get a new Trial. Gostwicke Mason DEbt for Rent upon a Lease for a year and so from year to year quamdiu ambabus partibus placuerit there was a Verdict for the Plaintiff for two years rent Sanders moved in Arrest of Iudgment that the Plaintiff alledges indeed that the Defendant entred and was possest the first year but mentions no entry as
receive the bodies of James Earl of Salisbury Anthony Earl of Shaftsbury and Philip Lord Wharton Members of this House and keep them in safe custody within the said Tower during his Majesties pleasure and the pleasure of this House for their high Contempt committed against this House And this shall be a sufficient Warrant on that behalf To the Constable c. John Browne Cler ' Parl ' The Earl of Shaftsbury's Counsel prayed that the Retorn might be Filed and it was so And Friday following appointed for the debating of the sufficiency of the Retorn and in the mean time directions were given to his Counsel to attend the Iudges and the Attorny-General with their Exceptions to the Retorn and my Lord was remanded till that day And it was said that though the Retorn was Field the Court could remand or commit him to the Marshal at their Election And on Friday the Earl was brought into Court again and his Counsel argued the insufficiency of the Retorn Williams said That this cause was of great consequence in regard the King was touched in his Prerogative The Subject in his Liberty and this Court in its Iurisdiction The cause of his Commitment which is retorned is not sufficient for the general allegation of high Contempts is too uncertain for the Court cannot judge of the Contempt if it doth not appear in what act it is Secondly It is not shewed where the Contempt was committed and in favour of Liverty it shall be intended they were committed out of the House of Peers Thirdly The time is uncertain so that peradventure it was before the last Act of general Pardon 1 Roll 192 193. and 219. Russells case Fourthly It doth not appear whether this Commitment were on a Conviction or an Accusation only It cannot be denied but that the Retorn of such Commitment by any other Court would be too general and uncertain Moore 839. Astwick was bailed on a Retorn Quod commissus fuit per mandatum Ni. Bacon Mil. Domini Custodis magni Sigilli Angliae virtute cujusdam Contempt ' in Curia Cancellariae fact ' and in that book it appears that divers other persons were bailed on such general Retorns and the cases have been lately affirmed in Bushells case repeated by the Lord Chief Iustice Vaughan where it is expresly said that on such Commitment and Retorns being too general and uncertain the Court cannot believe in an implicite manner that in truth the Commitment was for causes particular and sufficient Vaughans Rep. 14. accord 2 Inst 52 53 55. and 1 Roll 218. And the Commitment of the Iurors was for acquitting Pen and Mead contra plenam manifestam Evidentiam and it was resolved to be too general for the Evidence ought to appear as certain to the Iudge of the Retorn as it appeared before the Iudge authorized to Commit Russells case 137. Now this Commitment being by the House of Peers will make no difference for in all cases where a matter comes in Iudgment before this Court let the question be of what nature it will the Court is obliged to declare the Law and that without distinction whether the question began in Parliament or no. In the case of Sir George Binion in C. B. there was a long debate whether an Original might be Filed against a Member of Parliament during the time of priviledge and it was urged that it being during the Sessions of Parliament the determination of the question did belong to the Parliament But it was resolved an Original might be Filed and Bridgman then being Chief Iustice said That the Court was obliged to declare the Law in all cases that come in Iudgment before them Hill 24 E. 4. Rot. 4. 7. 10. in Scacc ' in Debt by Rivers versus Cousin The Defendant pleads he was a Servant to a Member of Parliament and ideo capi seu arrest ' non debet and the Plaintiff prays Iudgment and quia videtur Baronibus quod tale habetur privilegium quod magnates c. et eorum familiares capi seu arrestari non debent Sed nullum habetur privilegium quod non debent implacitari Ideo respondeat oustr ' So in Treymiards case a question of priviledge was determined in this Court Dyer 60. In the 14 E. 3. in the case of Sir John and Sir Geoffrey Staunton which was cited in the case of the Earl of Clarendon and is entred in the Lords Iournal an Action of Waste depended between them in the Common-Pleas and the Court was divided and the Record was certified into the House of Parliament and they gave direction that the Iudgment should be entred for the Plaintiff Afterwards in a Writ of Error brought in this Court that Iudgment was reversed notwithstanding the Objection That it was given by Order of the House of Lords for the Court was obliged to proceed according to the Law in a matter which was before them in point of Iudgment The construction of all Acts of Parliament is given to the Courts at Westminster And accordingly they have adjudged of the Validity of Acts of Parliament They have searched the Rolls of Parliament Hob. 109. Lord Hudsons case They have determined whether the Iournals be a Record Hob. 110. When a point comes before them in Iudgment they are not foreclosed by any Act of the Lords If it appears that an Act of Parliament was made by the King and Lords without the Commons that is Felo de se and the Courts of Westminster do adjudge it void 4 H. 7. 18. Hob. 111. and accordingly they ought to do If this Retorn contains in it that which is fatal to it self it must stand or fall thereby It hath been a question often resolved in this Court when a Writ of Error in Parliament shall be a Supersedeas And this Court hath determined what shall be said to be a Session of Parliament 1 Roll 29. and if the Law were otherwise there would be a failour of Iustice If the Parliament were Dissolved there can be no question but the Prisoner should be discharged on a Habeas Corpas and yet then the Court must examine the cause of his Commitment and by consequence a matter Parliamentary And the Court may now have cognisance of the matter as clearly as when the Parliament is Dissolved The party would be without remedy for his Liberty if he could not find it here for it is not sufficient for him to procure the Lords to determine their pleasure for his Imprisonment for before his enlargement he must obtain the pleasure of the King to be determined and that ought to be in this Court and therefore the Prisoner ought first to resort hither Let us suppose for it doth not appear on the Retorn and the Court ought not to enquire of any matter out of it that a supposed contempt was a thing done out of the House it would be hard for this Court to remand him Suppose he were committed to a Forreign prison during the
the case for Wares sold unto him and ought to have declared specially according to the truth of his case for Wares sold to his wife for necessary Apparel In an Action of Battery against the Husband and Wife the Plaintiff counted that they both did Assault and beat him Vpon Not-guilty pleaded the Iury found that the Wife alone did make the Assault and not the Husband Yel 106. Darcy Deniers case and the Verdict was against the Plaintiff because now the Plaintiffs Action appeared to be false for the Husband ought not to be joined but for Conformity and there is a special Action for the Plaintiff in that case so this Verdict is against the case because it appears that the Action brought by him is false and that he ought to have brought another Action upon the special matter of his case if any such by Law lye for him Secondly The Iury find that the Defendants wife departed from him against his will and lived from him and that the Defendant before the Wares were sold to his wife did forbid the Plaintiff to trust his wife with any Wares And that the Plaintiff contrary to his Prohibition did sell and deliver those Wares to the wife upon credit and I conceive that this Prohibition doth so far bar or bind the Plaintiff that he shall never have any Action against the Defendant for Wares sold and delivered to his wife after he was prohibited by the husband It is agreéd by all that a Feme Covert cannot generally make any Contract which shall charge or discharge her husband without the authority or consent of the husband precedent or subsequent so that the authority or consent of the husband is the foundation or ground which makes the contract good against him but when the husband forbids a particular person to trust his wife this Prohibition is an absolute Revocation or Countermand as to the person of the general authority which the wife had before and puts him in the same plight as if the wife had never any authority given her It is said by my Brother Twisden and Tyrrell that the Prohibition of the husband is void for says Tyrrell the husband is bound to maintain his wife notwithstanding her departure from him and therefore he cannot prohibit others to do it And Twisden says it is a right vested in her by the Law and therefore the Prohibition of the husband shall not devest or take it away from her I have already answered and disproved these reasons on which they ground their Opinions and will not repeat them here again but admit that the husband were by Law bound to maintain his wife notwithstanding her departure from him against his will and that the Law doth give her or vest a right in the wife to bind or charge the husband by her Contract for necessary Apparel will this be a good consequence thereupon Therefore the husband cannot forbid this or that particular person to trust his wife A man makes a Feoffment in Fée upon condition that the Feoffee shall not Alien this Condition is void Litt. Sect. 360. Were it not a strange conclusion to say thereupon If a man maks a Feoffment in Fée upon Condition that the Feoffee shall not Alien to J. S. that this Condition is likewise void The reason given by Littleton why the Condition is void in the former and not in the later part of this second case is applicable to our case namely the Condition in the first case ousts the Feoffee of all the power which the Law gives unto him which should be against reason and therefore the same is void but in the latter case the Condition doth not take away all the power of Aliening from the Feoffee and therefore it is good so in our case if the Prohibition were so general that the wife were thereby disabled altogether to Cloath her self peradventeur it might be reasonable to say that the Prohibition was void but it being a restriction only to one particular person there is no colour to say that it is not good 'T is true as my Brother Tyrrell says that I cannot discharge others to deal with my wife although I may forbid my wife to deal with them but it follows not thereupon but that my Prohibition to a particular person doth make his dealing with or trusting my wife to be at his own peril so that he shall not charge me thereby in an Action as in case of a Servant who buys Provision for my Houshold by my allowance If I forbid a Butcher or other Victualler to sell to my Servant without ready money and he delivers meat to my Servant afterwards upon trust it is at his peril he shall have no Action against me for it It appears not by this Declaration or Verdict that the Defendants Wife did want Apparel that she ever desired her husband to supply her therewith that he refused to allow her what was fit that the Wares sold to her by the Plaintiff were for necessary Apparel or of what nature or price the Wares were so that the Court may Iudge of the necessity or fitness thereof but only that the Plaintiff did sell and deliver upon credit divers of the Wares mentioned in the Declaration unto the wife whereas none are mentioned therein for 43 l. that this was a reasonable price for these Wares and the same Wares were necessary for her and suitable to the degree of her husband and for these reasons the Defendant ought to have Iudgment in this particular case against the Plaintiff be the Law what it will in general I will conclude all as the seven Princes of Persia who knew Law and Iudgments did in the case of Queen Vasthi Esther 1 Ca. This Deed that this woman hath done in departing from her husband against his will and taking of Clothes upon trust contrary to his Prohibition shall come abroad to all women and if it shall be repeated that her husband by the Opinion of the Judges must pay for the Wares which she so took up whilst she lived from him then shall their husbands be despised in their Eyes But when it shall be known throughout the Realm that the Law doth not charge the husband in this case all the Wives shall give to their Husbands honour both great and small Iudgment for the Defendant Tyrrell Twisden and Mallett dissenting Term. Trin. 29 Car. II. 1677. in B. R. The Earl of Shaftsbury's Case HE was brought to the Bar upon the Retorn of an Habeas Corpus directed to the Constable of the Tower of London The effect of the Retorn was that Anthony Earl of Shaftesbury in the Writ mentioned was committed to the Tower of London 16 Feb. 1676. by virtue of an Order of the Lords Spiritual and Temporal in Parliament assembled The tenour of which Order followeth in these words Ordered by the Lords Spiritual and Temporal in Parliament assembled That the Constable of His Majesties Tower of London his Deputy or Deputies shall
pleasure of the Lords no doubt that would have been an illegal Commitment against Magna Charta and the Petition of Right There the Commitment had been expresly illegal and it may be this Commitment is no less For if it had been expresly shewn and he be remanded he is committed by this Court who are to answer for his Imprisonment But secondly The duration of the Imprisonment during the pleasure of the King and of the House is illegal and uncertain for since it ought to determine in two Courts it can have no certain period A Commitment until he shall be discharged by the Courts of Kings-Bench and Common-Pleas is illegal for the Prisoner cannot apply himself in such manner as to obtain a discharge If a man be committed till further Order he is bailable presently for that imports till he shall be delivered by due course of Law and if this Commitment have not that sense it is illegal for the pleasure of the King is that which shall be determined according to Law in his Courts as where the Statute of Westm ' 1. cap. 15. declares that he is not replevisable who is taken by command of the King it ought to extend to an extrajudicial command not in his Courts of Iustice to which all matters of Iudicature are delegated and distributed 2 Inst 186 187. Wallop to the same purpose he cited Bushells case Vaughan's Rep. 137. that the general Retorn for high Contempts was not sufficient and the Court that made the Commitment in this case makes no difference for otherwise one may be imprisoned by the House of Peers unjustly for a matter relievable here and yet shall be out of all relief by such a Retorn for upon a supposition that this Court ought not to meddle where the person is committed by the Peers then any person at any time and for any cause is to be subject to perpetual Imprisonment at the pleasure of the Lords But the Law is otherwise for the House of Lords is the supream Court yet their Iurisdiction is limited by the Common and Statute Law and their excesses are examinable in this Court for there is great difference betwéen the errors and excesses of a Court betwéen an erroneous proceéding and a proceeding without Iurisdiction which is void and a meer nullity 4 H. 7. 18. In the Parliament the King would have one Attaint of Treason and lose his Lands and the Lords assented but nothing was said of the Commons wherefore all the Iustices held that it was no Act and he was restored to his Land and without doubt in the same case if the party had been imprisoned the Iustices must have made the like resolution that he ought to have been discharged It is a Sollecism that a man shall be imprisoned by a limited Iurisdiction and it shall not be examinable whether the cause were within their Iurisdiction or no. If the Lords without the Commons should grant a Tax and one that refused to pay it should be imprisoned the Tax is void but by a general Commitment the party shall be remediless So if the Lords shall award a Capias for Treason or Felony By these instances it appears that their Iurisdiction was restrained by the Common Law and it is likewise restrained by divers Acts of Parliament 1 H. 4. cap. 14. No Appeals shall be made or any way pursued in Parliament And when a Statute is made a power is implicitely given to this Court by the fundamental constitution which makes the Iudges Expositors of Acts of Parliament And peradventure if all this case appeared upon the Retorn this might be a case in which they were restrained by the Statute 4 H. 8. cap. 8. That all Suits Accusements Condemnations Punishments Corrections c. at any time from henceforth to be put or had upon any Member for any Bill speaking or reasoning of any matters concerning the Parliament to be communed or treated of shall be utterly void and of none effect Now it doth not appear but this is a correction or punishment imposed upon the Earl contrary to the Statute There is no question made now of the power of the Lords but it is only urged that it is necessary for them to declare by virtue of what power they proceed otherwise the Liberty of every Englishman shall be subject to the Lords whereof they may deprive any of them against an Act of Parliament but no usage can justifie such a proceeding Ellismeres case of the Post-nati 19. The Duke of Suffolk was impeached by the Commons of High Treason and Misdemeanors the Lords were in doubt whether they would proceed on such general Impeachment to imprison the Duke And the advice of the Iudges being demanded and their resolutions given in the negative the Lords were satisfied This case is mentioned with design to shew the respect given to the Iudges and that the Iudges have determined the highest matters in Parliament At a conference between the Lords and Commons 3 Aprilis Car. 1. concerning the Rights and Priviledges of the Subject It was declared and agreed that no Freeman ought to be restrained or committed by command of the King or Privy-Council or any other in which the House of Lords are included unless some cause of the Commitment Restraint or Deteynor be set forth for which by Law he ought to be committed c. Now if the King who is the Head of the Parliament or his Privy Council which is the Court of State ought therefore to proceed in a legal manner this solemn resolution ought to end all Debates of this matter It is true 1 Roll 129. in Russells case Coke is of Opinion that the Privy-Council may commit without shewing cause but in his more mature age he was of another Opinion And accordingly the Law is declared in the Petition of Right and no inconvenience will ensue to the Lords by making their Warrants more certain Smith argued to the same purpose and said That a Iudge cannot make a Iudgment unless the Fact appears to him on a Habeas Corpus the Iudge can only take notice of the Fact retorned It is lawful for any Subject that finds himself agrieved by any Sentence or Iudgment to Petition the King in an humble manner for Redress And where the Subject is restrained of his liberty the proper place for him to apply himself to is this Court which hath the supreme power as to this purpose over all other Courts and an Habeas Corpus issuing here the King ought to have an accompt of his Subjects Roll tit Habeas Corp. 69. Wetherlies case And also the Commitment was by the Lords yet if it be illegal this Court is obliged to discharge the Prisoner as well as if he had been illegally imprisoned by any other Court The House of Peers is an high Court but the Kings-Bench hath ever been entrusted with the Liberty of the Subject and if it were otherwise in case of Imprisonment by the Peers the power of the King were
less absolute than that of the Lords It doth not appear but that this Commitment was for breach of priviledge but nevertheless if it were so this Court may give relief as appears in Sir John Benions case before cited for the Court which hath the power to judge what is Priviledge hath also power to judge what is Contempt against Priviledge If the Iudges may judge of an Act of Parliament a fortiori they may judge of an Order of the Lords 12 E. 1. Butlers case where he in Reversion brought an Action of Wast and died before Iudgment and his Heir brought an Action for the same Wast and the King and the Lords determined that it did lye and commanded the Iudges to give Iudgment accordingly for the time to come this is published as a Statute by Poulton but in Ryley 93. it appears that it is only an Order of the King and the Lords and that was the cause that the Iudges conceived that they were not bound by it but 39 E. 3. 13. and ever since have adjudged the contrary If it be admitted that for breach of Priviledge the Lords may commit yet it ought to appear on the Commitment that that was the cause for otherwise it may be called a breach of priviledge which is only a refusing to answer to an Action whereof the House of Lords is restrained to hold plea by the Statute 1 H. 4. And for a Contempt committed out of the House they cannot commit for the word Appeal in the Statute extends to all Misdemeanors as it was resolved by all the Iudges in the Earl of Clarendons case 4 Julii 1663. If the Imprisonment be not lawful the Court ought not to remand to his wrongful Imprisonment for that would be an act of Injustice to imprison him de novo Vaughan 156. It doth not appear whether the Contempt was a voluntary act or an omission or an inadvertency and he hath now suffered five months Imprisonment False Imprisonment is not only where the Commitment is unjust but where the deteynor is too long 2 Inst 53. In this case if this Court cannot give remedy peradventure the Imprisonment shall be perpetual for the King as the Law is now taken may Adjourn the Parliament for ten or twenty years But all this is upon supposition that the Session hath continuance but I conceive that by the Kings giving his Royal Assent to several Laws which have been enacted the Session is determined and then the Order for the Imprisonment is also determined Brook tit Parliament 36. Every Session in which the King signs Bills is a day of it self and a Session of it self 1 Car. 1. cap. 7. A special Act is made that the giving of the Royal Assent to several Bills shall not determine the Session 't is true 't is there said to be made for avoiding all doubts In the Statute 16 Car. 1. cap. 1. there is a Proviso to the same purpose And also 12 Car. 2. cap. 1. 11. R. 2. H. 12. By the Opinion of Coke 4 Inst 27. the Royal Assent doth not determine a Session but the Authorities on which he relies do not warrant his Opinion For 1. In the Parliament Roll 1 H. 6. 7. it appears that the Royal Assent was given to the Act for the Reversal of the Attainder of the Members of Parliament the same day that it was given to the other Bills and in the same year the same Parliament assembled again and then it is probable the Members who had been attainted were present and not before 8 R. 2. n. 13 is only a Iudgment in case of Treason by virtue of a power reserved to them on the Statute 25 E. 3. Roll Parliament 7 H. 4. n. 29. and is not an Act of Parliament 14 E. 3. n. 7 8 9. the Aid is first entred on the Roll but upon condition that the King will grant their other Petitions The inference my Lord Coke makes that the Act for the Attainder of Queen Katherine 33 H. 8. was passed before the determination of the Session is an Error for though she was executed during the Session yet it was on a Iudgment given against the Queen by the Commissioners of Oyer and Terminer and the subsequent Act was only an Act of Confirmation but Coke ought to be excused for all his Notes and Papers were taken from him so that this book did not receive his last hand But it is observable that he was one of the Members of Parliament 1 Car. 1. when the special Act was passed And afterwards the Parliament did proceed in that Session only where there was a precedent agreement betwixt the King and the Houses And so concluded that the Order is determined with the Session and the Earl of Shaftesbury ought to be discharged _____ argued to the same effect and said that the Warrant is not sufficient for it doth not appear that it was made by the Iurisdiction that is exercised in the House of Peers for that is coram Rege in Parliamento So that the King and the Commons are present in supposition of Law And the Writ of Error in Parliament is Inspecto Recordo nos de Consilio advisamento Dominorum Spiritual ' Temporalium Commun ' in Parliament ' praed ' existen ' c. It would not be difficult to prove that anciently the Commons did assist there And now it shall be intended that they were present for there can be no averment against the Record The Lords do several acts as a distinct House as the debating of Bills enquiring of Franchises and Priviledges c. And the Warrant in this case being by the Lords Spiritual and Temporal cannot be intended otherwise but it was done by them in their distinct capacity And the Commitment being during the pleasure of the King and of the House of Peers it is manifest that the King is principal and his pleasure ought to be determined in this Court If the Lords should Commit a great Minister of State whose advice is necessary for the King and the Realm it cannot be imagined that the King should be without remedy for his Subject but that he may have him discharged by his Writ out of this Court This present recess is not an ordinary Adjournment for it is entred in the Iournal that the Parliament shall not be assembled at the day of Adjournment but adjourned or prorogued till another day if the King do not signifie his pleasure by Proclamation Some other exceptions were taken to the Retorn First That no Commitment is retorned but only a Warrant to the Constable of the Tower to receive him Secondly The Retorn does not answer the mandate of the Writ for it is to have the body of Anthony Earl of Shaftesbury and the Retorn is of the Warrant for the imprisonment of Anthony Ashly Cooper Earl of Shaftesbury Maynard to maintain the Retorn The House of Lords is the supream Court of the Realm 'T is true this Court is superiour to all Courts
of ordinary Iurisdiction If this Commitment had been by any inferiour Court it could not have been maintained But the Commitment is by a Court tht is not under the comptroll of this Court and that Court is in Law sitting at this time and so the expressing of the Contempt particularly is matter which continues in the deliberation of the Court 'T is true this Court ought to determine what the Law is in every case that comes before them and in this case the question is only whether this Court can judge of a Contempt committed in Parliament during the same Session of Parliament and discharge one committed for such Contempt When a question arises in an Action depending in this Court the Court may determine it but now the question is whether the Lords have capacity to determine their own priviledges and whether this Court can comptroll their determination and discharge during the Session a Peer committed for Contempt The Iudges have often demanded what the Law is and how a Statute should be expounded of the Lords in Parliament as in the Statute of Amendments 40 E. 3. 84. 6. 8. Co. 157 158. a fortiori the Court ought to demand their Opinion when a doubt arises on an Order made by the House of Lords now sitting As to the duration of the Imprisonment doubtless the pleasure of the King is to be determined in the same Court where Iudgment was given As also to the determination of the Session the Opinion of Coke is good Law and the addition of Proviso's in many Acts of Parliament is only in majorem cautelam Jones Attorney General to the same effect As to the uncertainty of the Commitment it is to be considered that this case differs from all other cases in two circumstances First the person that is a Member of the House by which he is committed I take it upon me to say that the case would be different if the person committed were not a Peer Secondly The Court that doth commit which is a superiour Court to this Court and therefore if the Contempt had been particularly shewn of what Iudgment soever this Court should have been as to that Contempt yet they could not have discharged the Earl and thereby take upon them a Iurisdiction over the House of Peers The Iudges in no age have taken upon them the Iudgment of what is Lex consuetudo Parliamenti but here the attempt is to engage the Iudges to give their Opinion in a matter whereof they might have refused to have given it if it had been demanded in Parliament This is true if an Action be brought where priviledge is pleaded the Court ought to judge of it as an incident to the Suit whereof the Court was possessed but that will be no warrant for this Court to assume a Iudgment of an original matter arising in Parliament And that which is said of the Iudges power to expound Statutes cannot be denied but it is not applicable in this case By the same reason that this Commitment is questioned every Commitment of the House of Commons may be likewise questioned in this Court It is objected That there will be a failer of Iustice if the Court should not discharge the Earl but the contrary is true for if he be discharged there would be a manifest failer of Iustice for Offences of Parliament cannot be punished any where but in Parliament and therefore the Earl would be delivered from all manner of punishment for his Offence if he be discharged For the Court cannot take Bail but where they have a Iurisdiction of the matter and so delivered out of the hands of the Lords who only have power to punish him It is objected That the Contempt is not said to be committed in the House of Peers but it may well be intended to be committed there for it appears he is a Member of that House and that the Contempt was against the House And besides there are Contempts whereof they have cognizance though they are committed out of the House It is objected That it is possible this Contempt was committed before the general pardon but surely such Injustice should not be supposed in the supream Court and it may well be supposed to be committed during the Session in which the Commitment to Prison was It would be great difficulty for the Lords to make their Commitments so exact and particular when they are imployed in the various affairs of the Realm and it hath been adjudged on a Retorn out of the Chancery of a Commitment for a Contempt against a Decreé that it was good and the Decrée was not shewn The limitation of the Imprisonment is well for if the King or the House determine their pleasure he shall be discharged for then it is not the pleasure of both that he should be detained and the addition of these words during the pleasure is no more than was before imply'd by the Law for if these words had been omitted yet the King might have pardoned the Contempt if he would have expressed his pleasure under the Broad Seal If Iudgment be given in this Court that one should be imprisoned during the Kings pleasure his pleasure ought to be determined by Pardon and not by any act of this Court. So that the King would have no prejudice by the Imprisonment of a great Minister because he could discharge him by a Pardon the double limitation is for the benefit of the Prisoner who ought not to complain of the duration of the Imprisonment since he hath neglected to make application for his discharge in the ordinary way I confess by the determination of the Session the Orders made the same Session are discharged but I shall not affirm whether this present Order be discharged or no because it is a Iudgment but this is not the present case for the Session continues notwithstanding the Royal Assent given to several Bills according to the Opinion of Cooke and of all the Iudges Hutton 61 62. Every Proviso in an Act of Parliament is not a determination what the Law was before for they are often added for the satisfaction of those that are ignorant of the Law Winington Solicitor General to the same purpose In the great case of Mr. Selden 5 Car. 1. the Warrant was for notable Contempts committed against us and our Government and stirring up Sedition and though that be almost as general as in our case yet no objection was made in that cause in any of the arguments Rushworths Collections 18 19. in the Appendix But I agree that this Retorn could not have béen maintained if it were of an inferiour Court but during the Session this Court can take no cognizance of the matter And the inconveniency would be great if the Law were otherwise taken for this Court might adjudge one way and the House of Peers another way which doubtless would not be for the advantage or liberty of the Subject for the avoiding of this mischief it was agreed by
this whole Court in the case of Barnadiston and Soames that the Action for the double Retorn could not be brought in this Court before the Parliament had determined the right of the Election lest there should be a difference between the Iudgments of the two Courts When a Iudgment of the Lords comes into this Court though it be of the reversal of a Iudgment of this Court this Court is obliged to execute it but the Iudgment was never examined or corrected here In the case of my Lord Hollis it was resolved that this Court hath no Iurisdiction of a misdemeanour commited in the Parliament when the Parliament is determined the Iudges are Expositors of the Acts and are intrusted with the lives liberties and fortunes of the Subjects And if the Sessions were determined the Earl might apply himself to this Court for the Subject shall not be without place where he may resort for the recovery of his liberty but this Session is not determined For the most part the Royal Assent is given the last day of Parliament as saith Plow Partridges case Yet the giving of the Royal Assent doth not make it the last day of the Parliament without a subsequent Dissolution or Prorogation And the Court Iudicially takes notice of Prorogations or Adjournments of Parliament Cro. Jac. 111. Ford versus Hunter And by consequence by the last Adjournment no Order is discontinued but remains as if the Parliament were actually assembled Cro. Jac. 342. Sir Charles Heydon's case so that the Earl ought to apply himself to the Lords who are his proper Iudges It ought to be observed that these Attempts are primae Impressionis and though Imprisonments for Contempts have been frequent by the one and the other House till now no person ever sought enlargement here The Court was obliged in Iustice to grant the Habeas Corpus but when the whole matter being disclosed it appears upon the Return that the case belongs ad aliud examen they ought to remand the party As to the limitation of the Imprisonment the King may determine his pleasure by Pardon under the Great Seal or Warrant for his discharge under the Privy Seal as in the case of Reniger Fogassa Plow 20. As to the Exception that no Commitment is returned the Constable can only shew what concerns himself which is the Warrant to him directed and the Writ doth not require him to return any thing else As to the Exception that he is otherwise named in the Commitment then in the Writ the Writ requires the body of Anthony Earl of Shaftesbury quocunque nomine Censeatur in the Commitment The Court delivered their Opinion and first Sir Thomas Jones Justice said such a Retorn made by an ordinary Court of Iustice would have been ill and uncertain but the case is different when it comes from this high Court to which so great respect hath been paid by our Predecessors that they deferred the determination of doubts conceived in an Act of Parliament until they had received the advice of the Lords in Parliament But now instead thereof it is demanded of us to comptroll the Iudgment of all the Peers given on a Member of their own House and during the continuance of the Session The cases where the Courts of Westminster have taken cognizance of Priviledge differ from this case for in those it was only an incident to a case before them which was of their cognizance but the direct point of the matter now is the Iudgment of the Lords The course of all Courts ought to be considered for that is the Law of the Court Lane's case 2 Rep. And it hath not been affirmed that the usage of the House of Lords hath been to express the matter more punctually on Commitments for Contempts And therefore I shall take it to be according to the course of Parliament 4 Inst 50. it is said that the Iudges are Assistants to the Lords to inform them of the Common Law but they ought not to judge of any Law Custom or usage of Parliament The objection as to the continuance of the Imprisonment hath received a plain answer for it shall be determined by the pleasure of the King or of the Lords and if it were otherwise yet the King could pardon the Contempt under the Great Seal or discharge the Imprisonment under the Privy Seal I shall not say what would be the consequence as to this Imprisonment if the Session were determined for that is not the present case but as the case is this Court can neither Bail nor discharge the Earl Wyld Justice The Retorn no doubt is illegal but the question is on a point of Iurisdiction whether it may be examined here this Court cannot intermeddle with the transactions of the high Court of Peers in Parliament during the Session which is not determined and therefore the certainty or uncertainty of the Retorn is not material for it is not examinable here but if the Session had béen determined I should be of Opinion that he ought to be discharged Rainsford Chief Justice This Court hath no Iurisdiction of the cause and therefore the form of the Retorn is not considerable we ought not to extend our Iurisdiction beyond its due limits and the Actions of our Predecessors will not warrant us in such Attempts The consequence would be very mischievous if this Court should deliver the Members of the Houses of Peers and Commons who are committed for thereby the business of the Parliament may be retarded for perhaps the Commitment was for evil behaviour or undecent Reflections on the Members to the disturbance of the affairs of Parliament The Commitment in this case is not for safe custody but he is in Execution on the Iudgment given by the Lords for the Contempt and therefore if he be bailed he will be delivered out of Execution because for a Contempt in facie Curiae there is no other Iudgment or Execution This Court hath no Iurisdiction of the matter and therefore he ought to be remanded And I deliver no Opinion if it would be otherwise in case of Prorogation Twisden Justice was absent but he desired Justice Jones to declare that his Opinion was that the party ought to be remanded And so he was remanded by the Court. Term. Trin. 26 Car. II. 1674. in B. R. Pybus versus Mitford ante 121. THis case having been several times argued at the Bar received Iudgment this Term. The case was Michael Mitford was seised of the Lands in question in Fee and had Issue by his second wife Ralph Mitford and 23. Jan ' 21 Jac. by Indenture made betwéen the said Michael of the one part and Sir Ralph Dalivell and others of the other part he covenanted to stand immediately seised after the date of the said Indenture amongst others of the Lands in question by these words viz. To the use of the Heirs Males of the said Michael Mitford begotten or to be begotten on the body of Jane his wife the
the Lady Ann Countess of Newport all that my House called Newport-house and all other my Lands c. in the County of Middlesex for her life And after her death I give and bequeath the premisses to my Grand-child Ann Knollis viz. the Plaintiff and to the heirs of her body Provided always and upon condition that she marry with the consent of my said Wife and the Earl of Warwick and the Earl of Manchester or of the major part of them And in case she marry without such consent or happen to dye without Issue Then I give and bequeath it to George Porter viz. the Defendant The Earl dyed Ann the Plaintiff married Charles the Plaintiff she being then about fourteen or fifteen years old without the consent of either of the Trustees And thereupon now a Bill was preferred to be relieved against this Condition and Forfeiture because she had no notice of this Condition and Limitation made to her c. To this the Defendant had demurred but that was over-ruled Afterwards there were several Depositions c. made and testified on each side the effect of which was this On the Plaintiffs part it was proved by several that it was always the Earls intention that the Plaintiff should have this Estate and that they never heard of this purpose to put any Condition upon her and believed that he did not intend to give away the Inheritance from her But that this Clause in the Will was only in terrorem and Cautionary to make her the more obsequious to her Grandmother The two Earls swore that they had no notice of this Clause in the Will but if they had they think it possible such reasons might have been offered as might have induced them to give their consents to the Marriage and that now they do consent to and approve of the same Some proof was made that the Countess of Newport had some design that the Plaintiff should not have this Estate but that the Defendant should have it But at last even she viz. the Countess was reconciled and did declare that she forgave the Plaintiffs Marriage and that she shewed great affection to a Child which the Plaintiff had and directed that when she was dead the Plaintiff and her Child should be let into the possession of the premisses and should enjoy them c. It was proved also that when there had been a Treaty concerning the Marriage betweén my Lord Morpeth and the Plaintiff and the Plaintiff would not marry him her Grandmother said she should marry where she would she would take no further care about her the Countess was dead at the time of this Suit It was proved that Mr. Fry was of a good Family and that the Defendant had 5000 l. appointed and provided for him by his Grandfather by the same Will On the Defendants part It was sworn by the said late Countess of Newport viz. In an answer made formerly to a Bill brought against her by the now Defendant for preferring of Testimony which was ordered to be read that the Marriage was private and without her consent and approbation and that she did not conceive it to be a fit and proportionable Marriage he being a younger Brother and having no Estate The like was sworn by the Earl of Portland the said Countesses then Husband and that it appeared she leapt over a Wall by means of a Wheel-Barrow set up against it to go to be married and that as soon as the Trusteés did know of the Marriage they did disavow and dislike it and so declared themselves several times and said That had they had any hint of it they would have prevented it Others swore that the Earl of Portland declared upon the day of her going away That he never consented thereto and that the Countess desired then that he would not do any thing like it and that the Earl of Warwick said He would have lost one of his Arms rather then have consented to the said Marriage On hearing of this Cause before the Master of the Rolls viz. Sir Harbottle Grimstone Baronet the Plaintiff obtained a decretal Order viz. That Anne the Plaintiff and her Heirs should hold the Premisses quietly against the Defendant and his Heirs and that there should be an Injunction perpetual against the Defendant and all claiming under him And now there was an Appeal thereupon and re-hearing before Sir Orlando Bridgman Knight then Lord-Keeper assisted by the two Lord Chief Justices and the Chief Baron before whom it was argued thus Serjeant Maynard The Plaintiff ought not to have relief in this Case The Plaintiffs Mother had a sufficient provision by the Earl of Newport's Care And therefore there is less reason that this Estate should be added to the Daughter The noble Lords the Trusteés when the thing was fresh did disapprove the Marriage however they may consent thereunto now The Devise was to the Plaintiff but in tail and afterwards to the Defendant We disparage not Mr. Fry in blood nor Family But people do not marry for that only but for Recompence and like Fortune There was a publique Fame or Report it is to be presumed of this Will in the house and were there not yet it was against her Duty and against Nature that she should decline asking her Grand-Mothers consent and Mr. Fry in Honour and Conscience ought to have asked it And therefore this practice ought not to receive the least encouragement in Equity 'T is true when there was a Demurrer it was over-ruled because the Bill prayed to be relieved against a Forfeiture for which there might be good cause in Equity But now it does not appear there is any in the Case The Estate is now in the Defendant and that not by any act of his own but by the Devisor and the Plaintiff this is a Limitation not a Condition For my Lord Newport had Sons It is somewhat of the same effect with a Condition though it is not so We have a Title by the Will of the dead and the act of the other party without fraud or other act of us and therefore it ought not to be defeated I take a difference betweén a devise of Land and money For Land is not originally devisable though Money is By the Civil Law and amongst civil Lawyers it has beén made a question Whether there shall be Relief against such a Limitation in a Devise But be that how it will Chattels are small things but a Freéhold setled ought not to be devested thus No man can make a Limitation in his Will better and stronger to disappoint his Devise conditionally than this is made If my Lord Newport had béen alive would he have liked such a practice upon his Grand-daughters as want of Notice In Organ's Case and Sir Julius Caesar's Case there was a Grant to an Infant on condition to pay 10 s. and no Notice given thereof before 't was payable yet because no body was bound to give notice it was adjudged
Husband as those persons should approve and this marriage is so approved I rely upon this matter but especially upon the word of Notice Serjeant Ellis There was a Case of a Proviso not to marry but with the consent of certain persons first had in writing Consent was had but not in writing and yet you rul'd it good Had this been a Condition in Law as 't is in fact the Law would have helped her If the Estate had been in her there might have been some reason that she should have 〈◊〉 taken notice how it came to her and of the Limitation c. Had the Earl been alive and consented to the Marriage after it was solemnized he would have continued his affection and the Plaintiffs have had the Estate still Why now the consent of the Lords and Countess is as much as his consent he had tranferred his consent to them This is a Ratihabitio you cannot have a Case of more Circumstances of Equity 1. An Infant 2. No notice 3. Consent after 4. Their Declaration that they thought my Lord meant it in terrorem c. What if two of the Trusteés had died should she never have married surely you would have relieved her Serjeant Baldwin Here is as full a consent to the Marriage as could well be in this Case For since the Plaintiff had no notice of the necessity of the Earls consent before the Marriage it had been the strangest and unexpectedest thing in the world that she should have gone about to have askt it The Heir should not have taken notice of such a Forfeiture and why should a man that is named by way of remainder In case of a personal Legacy this were a void Proviso by the Civil Law For I have informed my self of it It is a Maxim with them Matrimonium esse Liberum This amounts to as much as the Condition that the person should not marry at all For when 't is in the Trustées power they may propose the unagreeablest person in the World 't is a most unreasonable power and not to be favoured Sir Thomas Grimes setled his Land so that his Son should pay portions and if he did not he demised the Lands over and it was adjudged relieveable If I limit that my Daughter shall marry with the consent of two c. if each of them have a design for a different Friend if you will not relieve she can never marry Is it not more probable that if the Earl had lived he would rather have given her a Maintenance than have concluded her under perpetual misfortune and disherison Keeling Chief Justice I do not sée how an averment or proof can be received to make out a mans intention against the words of the Will 4 Co. 4. a. 5 Co. 68. Plo. 345. In Vernon's Case though it were a Case of as much Equity as could be it was denied to be received and so in my Lord Cheney's Case Here was a Case of Sir Thomas Hatton somewhat like this Case wherein no Relief could be had Vaughan Chief Justice I wonder to hear of citing of Presidents in matter of Equity For if there be equity in a Case that Equity is an universal Truth Vi. 1 In. 216. and there can be no President in it So that in any President that can be produced if it be the same with this Case the reason and equity is the same in it self And if the President be not the same Case with this it is not to be cited being not to that purpose Bridgman Lord-Keeper Certainly Presidents are very necessary and useful to us for in them we may find the reasons of the Equity to guide us and beside the authority of those who made them is much to be regarded We shall suppose they did it upon great Consideration and weighing of the matter and it would be very strange and very ill if we should disturb and set aside what has been the course for a long Series of time and ages Thereupon it was Ordered That they should be attended with Presidents and then they said they would give their Opinions Three weeks after they came into Chancery again and delivered their Opinions Seriatim in this manner viz. Hale Chief Baron The general question is whether this Decrée shall pass I shall divide what I have to say into these three questions or particulars First I shall consider whether this be a good Condition or Limitation or conditional Limitation For so I had rather call it It being a Condition to determine the Estate of the Plaintiff and a Limitation to let in the Defendant I think it is good both in Law and Equity and my reasons are first because it is a collateral Condition to the Land and not against the nature of the Estate and she is not thereby bound from Marriage Secondly it obliged her to no more then her duty she had no Mother and in case of Marriage she ought to make application to her Grandmother who was in loco Parentis and since the Estate moved from the Grandfather she was Mistris of the disposition and manner of it 'T is true by the Civil Ecclesiastical Law regularly such a Condition were void And therefore if the question were of a Legacy there might be a great deal of reason to question the validity of it because in those Courts wherein Legacies are properly handled it would have been void But this is a case of Land Devise Indeed it is agreed that this is a good Condition and not to be avoided in it self Secondly This being a good Condition and Limitation over The Question is whether there be relief against it in Equity admitting it were a wilful breach I think there ought not to be any I differ from the reasons pressed at the Bar as first That it was a devise by Will by virtue of the Statute c. but that doth not stick with me For if there may not be a relief against a breach of a Condition in a Will there would be a great shatter and confusion in mens Estates and some of those settled by great advice and there have been Presidents of relief in such cases 2 Car. Fitz versus Seymour And 10 Car. Salmon versus Bernard Secondly It has been urged there should be no relief because there is a Limitation over But that I shall not go upon neither There have been many reliefs in such Cases I will decline the latitude of the Objection for that would go a great deal further then we are aware But yet I think there ought to be no relief in this Case It is not like the case of payment of money because there the party may be answered his debt with damages at another day and so may be fully satisfied of all that is intended him But here my first reason is That it is a Condition to contain the party in that due Obedience which Law and nature require 2 'T is a voluntary settlement to the Grandaughter in