Witham deceased WRit of Error on a Judgment given in B. R. for Sir John Witham and Sir Richard Dutton and the Award of Execution thereof upon Scire Fac ' brought by the Defendants as Executors of Sir John Witham and affirmed in the Exchequer Chamber in Trespass and False Imprisonment The Case on the Record was thus The Plaintiff William did declare versus Dutton for that he with Sir Robert Davis Baronet Sir Timothy Thornhill Henry Walrond Thomas Walrond and Samuel Rayner did 14 Octob. 36 Car. 2. at L. in Par ' Ward ' c. assault beat and wound the Plaintiff and imprisoned him and his Goods then found did take and seize and the Plaintiff in Prison and the Goods and Chattels from the Plaintiff did detain and keep for three Months next following by which the Plaintiff lost the Profit he might have made of his Goods and was put to Charges c. Contra pac ' ad damp ' 13000 l. The Defendant pleads Not Guilty as to the Venir ' vi armis and all the Assault Imprisonment and Deteiner in Prison before the Sixth of November and after the Twentieth of December in the same Year and as to the beating and wounding and taking seizing and detaining his Goods and thereupon Issue is joyned and as to the assault taking and imprisoning the Plaintiff the Sixth of November and detaining him from thence until in and upon the Twentieth of December The Defendant doth justifie for that long before viz. the 28th of Octob. 32 Car. 2. by his Letters Patents shewn to the Court did constitute and appoint the Defendant his Captain General and Chief Governour in and upon the Islands of Barbadoes and c. and the rest of the Islands lying c. and thereby commanded him to do and execute all things that belonged to that Government and the Trust in him reposed according to the several powers and directions granted to the Defendant by the Letters Patents and Instructions with them given or by such other powers or instructions as at any time should be granted or appointed the Defendant under the King's Sign Manual and according to the reasonable Laws as then were or after should be made by the Defendant with advice and consent of the Councel and Assembly of the respective Islands appoints twelve Men by name viz. Sir P. L. H. D. H. W. S. N. T. W. J. Witham the Plaintiff J. P. J. S. R. H. E. S. T. W. and H. B. to be of the King's Counsel of the Island during the pleasure of the King to be assistant to the Defendant with their Counsel in the management of the Things and Concerns of the Government of the said Island in relation to the King's Service and good of his Subjects there and gives power to the Defendant after he himself had taken the Oath of Office to administer to every Member of the Councel and Deputy Governour the Oaths of Allegiance and Supremacy and the Oath of Office with further power to the Governour by advice and consent of Counsel to summon and hold a General Assembly of the Freeholders and Planters there and to make Laws Statutes and Ordinances for the good Government of the Island and to be as near and consonant as convenlently may to the Laws and Statutes of England which Laws were to be transmitted to be allowed by the King here with power also by advice and consent of Counsel to erect and establish such and so many Courts of Judicature as he shall think fit for hearing and determining all Causes as well Criminal as Civil according to Law and Equity and to appoint Judges Justices of Peace Sheriffs and other necessary Officers for administring of Justice and putting the Laws in execution provided Copies of such Establishments be transmitted to the King to be allowed and with further power to the Governour to constitute and appoint Deputy Governours in the respective Islands and Plantations which then were or should be under his Command to all and every which respective Governours the King by these Letters Patents gave power and authority to do and execute what should be commanded them by the Governour according to the power granted to him by this Commission And the Governor's Authority to continue during the good will and pleasure of the King The Defendant further pleads That after the making of the Letters Patents and before the time of the Assault and Imprisonment viz. 1 Mart. 33 Car. 2. he arrived at Barbadoes and by virtue of the Letters Patents aforementioned he took upon him and exercised the Government of that and the other Islands and continued to do so till the first of May 35 Car. 2. when he had license to return to England That he before his departure by virtue of the said Letters Patents by a certain Commission under his Hand and Seal did constitute the Plaintiff in his absence to be his Deputy Governour in the said Islands of Barbadoes to do and execute the Powers and Authorities granted to the Defendant by the said Letters Patents That the first of August following the Defendant arrived at London in England that the fourth of May 35 Car. 2. after the Defendants departure the Plaintiff took upon himself the Administration of the Government of the Island of Barbadoes that the Plaintiff not regarding the Trust reposed in him by the Defendant nor the Honour of that Supreme Place and Office did unlawfully and arbitrarily execute that Government and Office to the Oppression of the King's Subjects viz. apud Lond ' praed ' in Par ' Ward ' praed ' That after the Return of the Defendant to the Barbadoes viz. 6 Nov. 35 Car. 2. at a Councel holden for the Island of Barbadoes at St. Michael's Town before the Defendant H. W. J. P. E. S. T. W. F. B. which five are of the twelve named Councel in the Letters Patents and Sir Timothy Thornhill and Robert Dawes Counsel for the Island aforesaid the Plaintiff then and there was charged that he in the absence of the Defendant misbehaved himself in the Administration of the Government of the said Island Non tantum in not taking the usual Oath of Office and not observing the Act of Navigation And by his illegal assuming the Title of Lieutenant Governour and altering and changing Orders and Decrees made in Chancery of the said Island according to his own will and pleasure at his own Chamber and altering the Sense and Substance of them from what was ordered in Court by and with the consent of the Councel upon which it was then and there ordered in Councel by the Defendant and Councel that the Plaintiff Sir John Witham should be committed to c. until he should be discharged by due Course of Law by virtue of which Order the Plaintiff the said sixth of Nov. was taken and detained until the 20th of Dec. upon which day he was brought to the Court of the General Sessions of Oyer and Terminer and then by
to be the same i.e. in general the Common Law to govern in both places from the difference assigned between Ireland and Scotland it lies not to Scotland because a distinct Kingdom and governed by distinct Laws and it lies to Ireland because ruled by the same and consequently if a Writ of Error lies on the final Judgment there it 's a good Argument that the same Law prevails there These Plantations are parcel of the Realm as Counties Palatine are Their Rights and Interests are every day determined in Chancery here only that for necessity and encouragement of Trade and Commerce they make Plantation-Lands as Assets in certain Cases to pay Debts in all other things they make Rules for them according to the common Course of English Equity The distance or the contiguity of the thing makes no alteration in the Case And then 't was said as at first That this then was the same case as if the Imprisonment had been in England or on Shipboard as to the Rules of Justification that if there were another Law which could justifie it the same ought to have been certainly pleaded As to the Instructions those do not appear and therefore are not to be considered in the Case and they should have been set forth and no extraordinary Power is to be presumed unless shewn for every Man in pleading is thought to make the best of his own Case and consequently that if 't would have made for him the same would have been shewn and because they are not shewn they must be thought directive of a Government according to the Laws of England since 't is to a Subject of this Realm to govern other Subjects of this Realm living upon a part of this Realm and from the King thereof who must be supposed to approve those Laws which make him King and by which he reigns Then 't was argued Suppose this Governour had borrowed Money of a Man in the Island and then had returned to England and an Action had been brought for it and he had pretended to ustifie the receipt of it as Governour he must have shewn his Power the Law and how he observed that Law the like for Goods the same reason for Torts and Wrongs done vi armis Now the Court below could consider no other Power or Law to justifie this act but the Common Law of England and that will not do it for the Reasons given and if it be justifiable by any other it must be pleaded and what he hath pleaded is not pursued c. As to the Commitment by a Council of State what it means is hardly known in the Law of England and that Authority which commits by our Law ought to be certain and the Cause expressed as all the Arguments upon the Writ of Habeas Corpus in old time do shew but here 's no Councel and 't is not said so much as that he was debito modo onerat ' And as to the Demurr ' that confesses no more then what is well pleaded And as to Consequences there 's more danger to the Liberty of the Subject by allowing such a Behaviour then can be to the Government by allowing the Action to lye And therefore 't was prayed that the Judgment might be affirmed It was replyed on behalf of the Plaintiff in the Writ of Error That notwithstanding all that had been said the Laws there were different tho' the Foundation of them was the Common Law that they would not enter into that Question What sort of Title at first gave Right to these Lands but that this was a Commitment by a Councel of State And as to the Objection of too general Pleadings in male arbitrarie exercendo c. tho' the inducement of the Plea was so There were other Matters more particularly pleaded the altering the Decrees in his Chamber which was sufficient And as to the Objection That 't is not alledged in the Pleadings that the Charge in Councel against Wytham was upon Oath they answered That 't is not effential tho' prudent to have the Charge upon Oath before Commitment Matters may be otherwise apparent And as to the Objection That the Warrant of the Councel for the Commitment was not shewn they said that it lay not in their power because 't was delivered to the Provost Marshal as his Authority for the Capture and Detention of him and therefore did belong to him to keep And that the Councel tho' they were not a Court yet they had Jurisdiction to hear the Complaint and send him to another Court that could try the Crime and tho' it did not appear that the King gave any Authority to the Governour and Councel to commit yet 't is incident to their Authority as being a Councel of State the Councel here in England commit no otherwise and where the Commitment is not authorized by Law the King's Patent gives no power for it But the Government must be very weak where the Councel of State cannot commit a Delinquent so as to be forth-coming to another Court that can punish his Delinquency And therefore prayed that the Judgment should be reversed and the same was accordingly reversed Philips versus Bury WRit of Error to reverse a Judgment given for the Defendant in the Court of King's Bench where the Case upon the Record was thus Ejectione firme on the Demise of Painter as Rector and the Scholars of Exeter Colledge in Oxon for the Rector's House The Defendant pleads specially That the House in question is the Freehold of the Rector and Scholars of the Colledge but he says That he the said Dr. Bury was then Rector of that Colledge and that in right of the Rector and Scholars he did enter into the Messuage in question and did Eject the Plaintiff and so holds him out absque hoc That Painter the Lessor of the Plaintiff was at the time of making the Lease in the Declaration Rector of that Colledge hoc paratus est verificare c. The Plaintiff replys That the Messuage belongs to the Rector an Scholars but that Painter the Lessor was Rector at the time of the Lease hoc petit quod inquiratur per Patriam c. and thereon Issue is joyned and a Special Verdict The Jury find that Exeter Colledge is and was one Body Politick and Corporate by the Name of Rector and Scholars Collegij Exon ' infra Vniversitat ' Oxon ' that by the Foundation of the Colledge there were Laws and Statutes by which they were to be governed and that the Bishop of Exeter for the time being and no other at the time of founding the Colledge was constituted by virtue of the Statute concerning that Matter hereafter mentioned ordinary Visitor of the same Colledge secundum tenorem effectum statut ' eam rem concernent ' That the Bishop of Exeter who now is is Visitor according to that Statute Then they find the Statute for the Election of a Rector prout c. Then they find
notice that such Process did not lye and if any Man hath by our Law any Estate Right or Priviledge by any particular means he is bound to take notice of all the Conditions and Qualifications annexed thereto And the Reason is just because the same means by which he had notice of the Benefit gives him notice of the restrictive Limitation and Penalty and so was it held in the Case of Fry and Porter By our Law no Benefit can accrue to a Man by a Judgment given on a Thing arising extra potestatem Curiae in case of a particular and limited Jurisdiction as in the Case of Kingston upon Hull March 8. which held Plea of Debt upon a Bond made extra Jur ' c. and a Jud ' and Capias executed and an Escape and no Action lay for the Escape because all was void and coram non Judice In the same Book March 117 118. Dye and Olive's Case in False Imprisonment Plea that he was Serjeant at Mace belonging to a Court of Record and that a Warrant was directed to him to Arrest the Plaintiff pro quodam Contemptu and held not good because not shewn in what Action and how within the Jurisdiction and if not within it 't was coram non judice and void argued by Rolls and Maynard Then 't was argued That this was a limited qualified Power that the Visitor was a Creature of the Founders and if it had been the Heir of the Founder he had been as much bound and restrained by the Statutes as a Stranger and tho' the Law should be agreed to be as is pretended that it appoints a Visitor yet still whether he be the Heir or Nominee of the Founder he is an Officer only within the Limits and Rules of the Foundation and the Statutes made thereupon As he hath a Visitatorial Power only over this Colledge so he hath it only after the manner in which 't is given to him If the Founder had made no particular Visitor but yet had appointed that the same should be visitable at such a time and in such a form he himself had been bound by these Rules and if he would have been so confined with much more or at least with the same Reason ought his Nominee for cujus est dare ejus est disponere and every Argument which hath been urged for the Rector's being subject to the Rules of the Foundation may likewise be applied to that of the Visitor He that made the Visitor may restrain shape and modifie the Power which he gives him He might have made him Visitor only once in his Life or only upon Request and have left all other Jurisdiction to the Rector and Fellows But further here he is found to be Visitor only secundum formam statut ' vigore statut ' and to execute those Statutes and that which makes him a Visitor makes him such thus and thus qualified and no otherwise whatsoever Power or Authority the Name or Office of a Visitor may import ex vi termini no Man can say but this Visitor is controuled by the Statutes which make him so now had there been no Statutes he had never been Visitor then these Statutes making him a Visitor upon particular Terms and Conditions Times and Occasions extra these Terms and Conditions he is no Visitor at all this seems plain and natural So that if he exceeds the Bounds prescribed to him as Visitor he doth not act as Visitor for all Powers Authorities and Jurisdictions especially such as are created by private Persons must be executed according to the express Institution or plain meaning of the Party that created them and according to the Circumstances with which he hath circumscrib'd them So is the Rule in Berwick's Case 5 Rep. 94. and 1 Inst 113. and 258. An Executor is an Officer or Person instrusted which is taken notice of by the Law yet in his Creation he may be limited quoad the Estate in one Country or quoad one Particular and he can't intermeddle any further but Administration shall be granted as to the rest Then 't is observable That this Statute Visitor is not a Court of Record nor any Court at all but rather like an Arbitrator under certain Directions he can neither meddle at another Time or with other Matters or in other Manner then what is prescribed But admitting it a sort of Judicature here 's no Appeal or Writ of Error or Prohibition or Mandamus lies nay the Visitor himself cannot relieve against his own Sentence or restore the Party deprived the next day but the Place being vacant a right of Election accrues to the Fellows 't is therefore unreasonable to suppose him not restrained or that his Acts if exceeding the Limits and Rules set him shall be conclusive and binding This is like a Lay-Hospital 't is not a Religious Body tho' some call it mixt and in case of Temporal Lay-Offices there must be some Remedy at Law as is 13 Rep. 70. so is Dyer 209. and 3 Inst 340. Where no Appeal is allowed another Examination must be admitted and thus seems the 8 Assis pl. 29. tho' it hath been quoted on the other side If the Warden of an Hospital be irregularly deprived he shall have his Remedy at Law and 13 Assis 2. to the same effect Bagges's Case 11 Rep. repeats the same Case which shews Coke's Opinion to concur with it and tho' an Assize doth not properly lye yet the meaning is he shall have Relief i. e. such Suit at Law as is proper to his Case The same Distinction is allowed in Dr. Sutton's Case Latch 229. And that a Remedy is given by the Law in this Case of a Temporal Property seems to be plainly affirmed in the Statute of 24 Hen. 8. cap. 12. And further Tho' strictly and properly it were not of Common Law connusance yet it falling incidently to be a Question upon trial of a Title the Court before whom that Suit depends must examine that incident as in case of an Issue lawfully joyned in Marriage or not the Trial shall be by Certificate of the Ordinary but if it be a Question upon the Trial of a Title to Land the Matter shall be tried and judged without Certificate The wisdom of our Law hath been such as very rarely to trust any of the Courts of Justice with the final determination of matters of Law in the first Instance and 't would be strange that this Case of a Visitor should stand single by it self Besides to prevent a failure of Justice the Law doth of necessity admit of several other provisions and methods of Examination or Tryal than what the subject matter or person would properly in their own nature require especially in point of remedy and relief as appears in Dormer's Case 5 Rep. 40. and 1 Inst 54. 2 Roll's Abridg 587. now here is no other remedy nor other way of trial for Deprivation is not triable by Certificate but only in case of an Ecclesiastical
Ancient Legislators The wise Solon who founded that Popular Government of Athens was not so fond of his own Frame as to recommend it to other places tho' he believed that it suited best with the Infirmities of the People And even in Rome before she acquired any great Reputation there was a Senate under Kings it had one nor doth it appear that a Senate was adjudged useless when it became and was called a Common-wealth And as soon as the Senate lost its Authority a Tyranny was set up This may be called their Aristocratical Part and whosoever reads the Lives of those Roman Worthies Cato Vticensis c. that nobly attempted to defend the Liberties of their Country will find That it was for the upholding the Authority of the Senate that they contested fought and died Machiavel indeed in his Discourses upon the Decades of Titus Livius has strained almost every thing in favour of Democracy and with extream Art and Labour hath illustrated a Popular State and made Rome the Example of it and yet even in those Discourses he sometimes shews the Necessity of an Aristocratical Mixture to make a just and regular and happy and lasting Government Nay Algernoon Sydney himself that famous Assertor of Liberty doth almost every where prefer the Aristocracy and he was confirmed in that Sentiment by the Views he had taken of former and present Governments and by the Knowledge he had of what formerly was our own Constitution till Henry the Sevenths Reign For that Prince as the Lord Bacon rightly observes was rather cunning in relation to his own Times then a Person that had a full prospect of what would afterwards be the Consequence of his Measures or that had a due regard to Posterity No Man can wish that the House of Lords should be made Cyphers if they could once again be made the Natural Balance between the King and People There drop even from Mr. Sidney's Pen Expressions enough to prove that a just Composition of the Three Powers Monarchical Aristocratical and Democratical would have been reckoned even by him an equal Government Such a Mixture even our Government was and tho' some perhaps out of meer Ignorance have disputed the Democratical and others the Monarchical part of our Constitution yet no Body ever to this day could pretend that our Barons those Majores Regni had not originally a Share both in the Legislature and Administration within this Kingdom The Fact is not necessary to be proved because 't is not denied and the reasonableness of it is apparent There 's no occasion to Complement them for what their Ancestors did in procuring of Magna Charta which the judicious and indefatigable Antiquary Sir Henry Spelman saith was only an Ascertainment or Recompilement of our Old Laws It would be of Publick Service to have a just State of the true Powers of the House of Lords in their Judicial and Legislative Capacities according to the true English Constitution that we might be familiarized to the almost antiquated Notions of the Aristocratical part of our Government and so may neither be over-run with the Schemes of Absolute Monarchy-Men who would have all Judicial Power even the Dernier Resort lodged in the Crown or in Delegates appointed by it and not in the Parliament nor be crumbled into the Disorders which must follow the Notions of those who aim at a pure Democracy But to write an Exact Discourse upon this Head would require more Lines then can become a Preface The Reader therefore must not here expect an Account of the Growth and Decays of their Power and the true Reasons of Each and the Regulations or Restrictions that will be needful if they ever happen in any degree to be restored to the Preheminence and Authorities which they formerly enjoyed among us It is enough for the present to say That all the Measures taken and used in the Exercise of their Judicature are observed without Doors especially by the Persons concerned their Relations and Friends That the Errors in such Exercise if any are only to be corrected by themselves and no ways proper or fit to be suggested by any private Person much less to be published in Print However it may be hoped that these Reports may probably convince the young Nobles of this Realm and all who are imployed in and about their Education that some general Knowledge of the Laws of England and some Acquaintance with History and other Learning cannot be unworthy the Ambition of every Noble-man's Son who has any hopes to sit as Judge in that August Assembly where the nicest of Questions in Cases of the greatest Consequence and between the greatest of Subjects and many times between the King and his People do frequently come under Consideration And these Papers may likewise remember them what just Liberty of Arguing and Debating hath been allowed to Counsel and with what Candour and Patience they have been heard even in the most tender Points As also shew them what Resolutions were taken upon those Debates and Arguments that the Law may be consistent with it self and remain as it is a certain Rule of doing Right As to the present Performance the Reader is desired to pardon all Mistakes in Grammar and in the Figures of Folio's and Pages and other common Errata of the Press which by reason of multiplicity of other Business could not easily be attended to and observed Omari Res ipsa negat THere will shortly be Printed The Historical Library of Diodorus the Sicilian the whole Fifteen Books Translated from the Greek with all the Fragments And will be Sold by Awnsham and John Churchill in Pater-noster-row Dominus Rex Viscount Purbeck UPON a Petition the Question was in the House of Lords Whether the Dignity of a Viscount could be surrendred to the King by a Fine And it was Argued at the Bar by three Counsel for the Petitioner and by the Attorney General for the King It was urged on behalf of the Petitioner That a Dignity cannot be surrendred to the Crown and that for these Reasons 1. It is a Personal Dignity annexed to the Blood and so inseparable and immoveable See Ratcliff's Case 3 Rep. Rutland's Case 6 Rep. 53. that it cannot be either transferred to any other Person or surrendred to the Crown it can neither move forward nor backward but only downward to Posterity and nothing but a Deficiency or a Corruption of the Blood can hinder the Descent as if the Ancestor be Attainted of Treason or Felony c. For in that Case the Heir conveying no Inheritable Blood cannot make any Claim to that which is annexed to the Inheritable Blood and besides there is a tacite Condition of Forfeiture annexed to those Dignities by the Breach of which Condition the Dignity is determined but by the Act of the Party there can be no Determination of it unless there be an Attainder which corrupts the Blood And he took a difference between Ancient Honours and Dignities which were
Honour is Surrendred and a new Honour granted the former is either extinguished or not before the other takes effect if not then the Party hath both together against the will of the Donor and perhaps the new Honour may be of that Name and Place and those Persons may be concerned in it that will not permit it to be effected and if it be in the power of the Ancestor for the advantage of his Posterity by the Surrender of one Honour to take a greater it may be also in his power to do it for his prejudice As to the Objection That by the same Reason an Honour may be extinguished it may also be Transferred he answered That there was a great disparity betwixt them for as to Alienations of Honours there 's a great reason they should be disallowed for they all flow from the Prince and therefore 't is not fit they should be conferred on any but by the Prince tho' the King 's of England have granted power to a General to give the Honour of Knighthood c. in the Field for the Reward and Incouragement of Valour yet this granting of Nobility is a Prerogative peculiar to the King's Person alone no Man else can ennoble another Time was indeed when the Earls of Chester having Counties Palatine by virtue of their Jura Regalia did create Barons yet they never sate in Parliament as Peers because Peerage being a thing of so high a nature cannot be given by any but a Soveraign and is given as a Trust and Obligation so that common Reason saith they are not transferrable It is said in our Law that where Offices are granted to a Man in Fee See Jones 122 123. he may grant it over yet in some Cases they are so near to the Crown that they cannot be transferred but must descend with the Blood upon the same Reason no Man can ever transfer an Honour for the near Relation which it hath to the Crown but in case of Extinguishment that Relation and Trust ceaseth and so they are different Cases Then lastly as to the great Objection of the Judgment of the House of Lords in Roger Stafford's Case Anno 1640. he answered That notwithstanding that Case their Lordships had given him leave to argue it and therefore they intended not that should be any Impediment 2. That is no Judgment for they being a Court of Judicature do as other Judges judge of the Matter before them only Then the Question was Whether an Honour could descend to the half Blood They refetred it to the Judges who were of Opinion that it should Thereupon ariseth another Question Whether a Man might Convey or Transfer his Honour to another 'T was resolved he might not This drew another Question whereupon they resolved that a Lord could not Surrender his Dignity the Original Cause was about a Descent to the half Blood the Resolution is he cannot Surrender how then can they pretend that to be a Judgment when the Question in point of Judgment was not before them Suppose it had been resolved and it 's a wonder it had not all that time that a Lord could not forfeit and that had been a third step to have made it a perfect Business for considering the times it had been a most convenient Resolution But besides all that the King's Counsel were never heard in the point and the rejecting the Opinions of Learned Men shows it was no Resolution of the whole House tho' entred upon the Journal and therefore he prayed Judgment against the Petitioner The Earl of Shaftsbury spoke in the House for the Petitioner The stress of the Argument for the King in this Case is founded upon these two Assertions 1 That Honours are taken to be within the Statute de Donis c. and the general Rules of that Statute 2. And then secondly That Honours are to be governed as other Inheritances by the Rule of the Common Law As for the first it hath not been proved for the Resolution in Nevil's Case 2 Jac. was Extrajudicial and no Judgment of any Cause before them and in such Cases the Judges do not hold themselves to be upon Oath and if there be two or more of another Opinion they do not refuse to sign the Resolution of the major part and so it goes under the denomination of all the Judges but if it were a Judgment of them altogether they could neither alter nor make new the Law neither could they make that intended within the Statute de Donis c. which was not in being till many Ages after Beauchamp in Richard the Second's time being the first Honour that was entailed by Patent 2. The second Assertion is contrary to the Opinion of the most Learned Men the Honour and Dignity of the House the constant practise of Westminster-hall and the direct Evidence of the thing it self Justice Berkley a very learned Judge declared his Opinion Febr. 6. 1640. as appears by the Records of this House That Honours descend from the first that was seized of them contrary to the Rules of other Inheritances and that Honours are not governed by the Rules of the Common Law Justice Dodderidge in Jones 207. is of opinion That Honours are Personal Dignities which are affixed to the Blood the Lords never yet suffered their Honours to be tried at any Court at Law or any other where save before themselves tho' their other Inheritances are tried there as well as other Mens So possessio fratris holds of Lands but not of a Dignity which is not disposed of as other Inheritances nor will it be guided by the strict Rules of Law The Lord Coke is of Opinion in Bedford's Case That an Honour could not be taken away but by Act of Parliament therefore it will be allowed that the concurrence of all Parties concerned may extinguish this as well as other Inheritances but the Concurrence of all can't be without Act of Parliament for the whole Kingdom have an Interest in the Peerage of every Lord It is a dangerous Doctrine to say our Judicature and Legislature is our own only The House of Lords is the next thing to the Crown tho' that be far above them yet those that reach at that must take them out of the way first they were voted useless and dangerous before the Crown was laid aside and as in Descent of the Crown the whole Kingdom hath such an Interest in it as the King cannot Surrender or alien it so in a proportionable degree tho' far less the King and Kingdom have an Interest in their Lordships and Dignities and Titles It is true they may be forfeited but it doth not follow that they may be extinguished by Surrender There be two Reasons for the Forfeiture 1. There is a Condition in Law that they shall be true and loyal to the Government 2. Honours are inherent in the Blood and when that is corrupted that which is inherent is taken away but in case of a Surrender these Reasons do
Court recommitted which is the same Assault Taking and Imprisonment and Traverses absque hoc that he was guilty of the Assaulting Taking or Imprisoning him within the time last mentioned at London or elsewhere then in the Isle of Barbadees or otherwise or in other manner then as before The Plaintiff demurred and the Defendant joyn'd in Demurrer and Judgment was given for the Plaintiff and a Venire awarded tam ad triand ' exitum quam ad inquirend ' de dampnis c. and the Issue was found pro quaerent ' and 6 d. Damages and on the Demurrer 500 l. Damages and Judgment for Damages and Costs amounting in the whole to 590 l. The Plaintiff Sir J. Witham dying Trin. 2 Wil. Mar. the Judgment was revived by Scire Facias brought by Howel Gray and Chaplain Executors of Sir J. W. quoad omnia bona catalla sua except one Debt due by Bond from Henry Wakefield And at the Return of the Scire Fac ' the Defendant appears and demurs to the Scire Facias and there is an Award of Execution and thereupon a Writ of Error is brought in the Exchequer Chamber and the Judgment was affirmed Then a Writ of Error is brought in Parliament and the General Error assigned And here it was argued on the behalf of the Plaintiff in the Writ of Error that this Action did not lye against him because it was brought against him for that which he did as a Judge and so it appeared on the Record according to 12 Rep. 25. that the Rule seems the same for one sort of Judge as well as for another that this Person was lawfully made a Governour and so had all the Powers of a Governour that this was a Commitment only till he found Security tho' not so Expressed that this is not counsable here in Westminster-hall that he was only censurable by the King that the Charge is sufficient in that Sir J. W. had not taken the Oaths that male arbitrarie executus fuit is Charge enough to warrant a Commitment that this was a Charge before a Councel of State and there need not be all the Matters precisely alledged to justifie their Acts and by the same reason Actions may lye against the Privy Counsellors here and enforce them to set forth every particular which would be of dangerous Consequence the Plea might have been much shorter as only that he was committed by a Counsel of State and the addition of the other Matters shall not hurt and that the Charge was upon Oath shall be intended no Presumption shall be that the Supream Magistracy there did irregularly 't is a power incident to every Council of State to be able to commit This action cannot lye because the Fact is not triable here the Laws there may be different from ours Besides no Action lies unlefs 't were a malicious Commitment as well as causeless and that no Man will pretend that an Action can lye against the chief Governour or Lieutenant of Ireland or Scotland and by the same reason it ought not in this Case he had a power to make Judges and therefore he was more than a Judge and they have confessed all this Matter by the Demurrer The Statute of Car. 1. which restrains the power of our Councel of State supposes that they could Commit that in case of Crimes there they are punishable in that place and in Sir Ellis Ashburnham's Case there was a Remanding to be tried there and if so it can't be examinable here and if not this Action will not lye And further that what was done here was done in a Court for so is a Councel of State to receive Complaints against State Delinquents and to direct their Trials in proper Courts afterwards that there was never such an Action as this maintain'd and if it should it would be impossible for a Governour to defend himself First For that all the Records and Evidences are there 2. The Laws there differ from what they are here and Governments would be very weak and the Persons intrusted with them very uneasie if they are subject to be charged with Actions here for what they do in those Countries and therefore 't was prayed that the Judgment should be reversed On the other side 't was argued for the Plaintiff in the Original Action That this Action did lye and the Judgment on 't was legal That supposing the Fact done in England the Plea of such Authority so executed at Plymouth or Portsmouth or the like had been ill for that Liberty of Person by our Law is so sacred that every Restraint of it must be justified by some lawful Authority and that Authority must be expresly pursued That here was no Authority to commit for that must be either as a Court of Record or as Justices of Peace Constable or other Officer constituted for that purpose that the Letters Patents are the only Justification insisted on and that gives none 't is true the power of Committing is incident to the Office of a Court here 's only the Government of the Place committed to Sir Richard Dutton with a power to erect Courts and appoint Officers but none to himself He in Person is only authorized to manage and order the Affairs and the Law of England takes no notice of such an Officer or his Authority and therefore a Court of Law can take notice of it no further or otherwise then as it doth appear in pleading The Councel is not constituted a Court they are by the Letters Patents only to advise and assist the Governour and the Governour hath no power to commit or punish but to form and establish Courts to do so which imports the direct contrary that he had no such power The Ends of appointing the Councel as mentioned in the Letters Patents are quite different viz. to aid the Regent by their Advice not to act as of themselves and if neither the Governour of himself nor the Councel of it self had such a power neither can both together have it A Court of Justice is not to be intended unless the same be specially shewn Excepting the Case of the common known general Courts of Justice in Westminster-hall which are immemorial if any thing be justified by the Authority of other Courts the same must be precisely alledged and how their Commencement was either by Custom or Letters Patents Here it appears by the Plea it self that they had Justices of Oyer and Terminer appointed It doth not appear that he or the Councel were Judges of things of this kind Besides when a Councel is constituted as here was Twelve by Name that must be the Majority as is the Dean and Chapter of Femes Case Davis's Rep. 47. and that 's Seven at least which are not in this Case There must be a Majority unless the Erection did allow of a less Number The practise of the Courts of Westminster-hall do not contradict this for there 't is a Court whether more or less and so
Suspended were Seniors to the Consenting Scholars Then they find that after this Sentence Painter was elected into the Rectorship Concurrentibus omnibus requisitis si praedict ' Officium Rectoris eo tempore fuit vacans and that Dr. Bury 1 June Anno Jac. 2. semper postea usque sententiam praedict ' si sententia in contrar ' non valeat semper postea fuit adhuc est verus legitimus Rector Collegij praedict ' That William Painter as Rector and the Scholars of the said Colledge did make the Demise in the Declaration and thereon the Plaintiff entred and Dr. Bury enters on him and holds and yet doth hold him out modo forma prout in nar ' c. sed utrum super totam materiam praedict ' locus Rectoris per privation ' praedictam praed ' Arthuri legitime vacavit nec ne the Jury are ignorant si per inde locus praedict ' legitime vacavit tunc pro quaerent ' si non tunc pro Defendent ' It was argued on the behalf of the Plaintiff in the Writ of Error That this Judgment was illegal and the general Question was Whether this Sentence of Deprivation thus given by the Visitor against Dr. Bury did make the Rectorship void as to him and so consequently gave a Title to the Lessor of the Plaintiff But upon this Record the Questions were two 1. Whether or no by the Constitution of this Colledge the Bishop had a Power in this Case to give a Sentence 2. Supposing that he had such a Power Whether the Justice of that Sentence were examinable in Westminster-hall upon that Action And 1. 't was argued That the Bishop had such a Power to give a Sentence and it was agreed that he could make his Visitation but once in five Years unless he be called by the Request of the Colledge and if he comes uncalled within the five Years his Visitation would be void But yet the Visitation of the 24th of July was a good Visitation and consequently the Sentence upon it is good that there was no colour to make Dr. Masters's coming in March to examine Colmer's Appeal upon the Visitor's Commission to be a Visitation and that because it was a Commission upon a particular Complaint made by a single expelled Fellow for a particular Wrong and Injury supposed to be done to him and not a general Authority to exercise the Visitatorial Power which is to inquire into all Abuses c. Colmer complains that he was expelled without just Cause and seeks to the Visitor for redress they having expelled him for an Offence of which he thought himself innocent and the Visitor sends his Commissary to examine this particular matter Then 't was urged That tho' a Visitor be restrained by the Constitutions of the Colledge from visiting ex officio but once in five Years yet as a Visitor he had a constant standing Authority at all times to hear the Complaints and redress the Grievances of the particular Members and that is part of the proper Office of a Visitor to determine particular Differences between the Members and thus is Littleton's Text sect 136. that complaint may be made to the Ordinary or Visitor praying him that he will lay some Correction and Punishment for the same and that such Default be no more made c. And the Ordinary or Visitor of right ought to do this c. and so was it held in Appleford's Case in the Court of King's Bench who was expelled upon a like occasion as Colmer was he appealed to the Bishop of Winton who was Visitor and he confirmed the Expulsion and held to be good upon the Appeal for the hearing of Appeals is a standing fixed constant Jurisdiction Visiting is one Act or Exercise of his Power in which he is limited as to time but redressing of Grievances is another and his proper Office and Business at all times 'T is the Case of all the Bishops of England they can visit by Law but once in three years but their Courts are always open to hear Complaints and Determine Appeals so that here tho' but one Visitation can be in five years without request yet the Power and Authority to hear and examine any difference between the Members and to relieve against any particular Injury that 's continual and not limited Then 't was argued That tho' what was done upon the 16th of June was with an Intention to Visit yet being denied to enter the Chappel where the Visitation was appointed to be held it was none and his Calling over the Names was only to know who hindred the Visiting and his making an Act of it afterwards or administring an Oath at the time can never be called one tho' it hath been below said to be a tacking that of June to that of July but that cannot be for then it continued much longer than was intended nay much longer then it can by the Statutes of the Colledge for that is to cease in three days It turns rather the other way having been hindred in June he makes an Act of it in July in order to call them to an account for it as for a Conturnacy and to bring them to Judgment at his Visitation 'T was no more then taking an Affidavit of the Service of a Citation The appointment of a Visitation in the Hall was occasioned by the Obstruction met with at the Chappel and 't would be a very strange Construction that when he designed a Visitation and was hindred that the Hinderance and his Inquiry about it should be called a Visitation and a former Contumacy in opposing an intended Visitation should prevent their being subject to an actual true one Then 't was argued That there was no necessity that there should be the Consent of the four Senior Fellows to the Deprivation of the Rector and by one of the Counsel 't was owned that if such Consent had been necessary the Sentence had been a Nullity But as this Statute is framed 't was argued that the Bishop might deprive tho' they did not concur for these Reasons 1. By the Statutes the Bishop for the time being is made the ordinary Visitor of Exeter Colledge and that where any one is Visitor of a Colledge he hath full and ample Authority to Deprive or Amove any Member of the Colledge quatenus Visitor 2. There is an express Power given to the Bishop to proceed to the Deprivation of the Rector or the Expulsion of a Scholar and this in his Visitation And 3. The qualifying words do not restrain it to be with the Consent of the four Fellows the word is Deprivatio as to the Rector and Expulsio as to the Scholar tho' they are synonymous as to real Sense yet by this Statute they are differently applied Then it says If the Bishop do proceed c. that only relates to the Case of a Scholar because the word there used is Expulsio which is never applied but to the amotion
of a Scholar and it is impossible to relate to the Rector for then he must consent to his own Deprivation for his particular Consent is mentioned and required and that is not to be expected And in this case the Consent of the Senior Fellows without that of the Rector is not sufficient But then the subsequent words are That if the Rector be deprived by the Bishop's Commissary with the Consent of the Senior Fellows he may appeal to the Bishop 'T is true the Rector hath that liberty if the Commissary do deprive him but there are no words that do abridge the Bishop's own Power The Commissary's Power is restrained by those words To have the Consent c. but the Bishop's own Power hath no such qualification It is objected That 't is unreasonable to imagine a greater Power in the Visitor over the Rector then over the Scholars But the Question is not What was fit and reasonable for the Founder to have done but to consider upon perusal of the Statutes what he hath done Suppose he doth give such an absolute Authority 't is what he had over the thing granted he might have reserved to himself a Power of Revocation or what other Power he thought fit and by the same reason he might give the like to a Visitor of his appointment and having done so it must be supposed that he had some Reasons for so doing The Rector hath a Priviledge not to be deprived without the benefit of Appeal if 't were by the Commissary The Scholars have no Appeal He might think fit to trust the Rector with his Visitor the Bishop as supposing more care would be taken by him of the Head of the Colledge then of Inferiour Members But the Query is not What Reason induced the Founder to make those Appointments He was Master of his own Charity and might qualifie it as he pleased and he hath given it under this qualification That the Bishop is made Visitor and might deprive the Rector as he hath done according to the Statutes and Constitutions of this Colledge Then 2. the sufficiency of the Cause of this Deprivation is never to be called in question nor any Inquiry to be made in Westminster-hall into the Reasons or Causes of such Deprivation if the Sentence be given by him that is the proper Visitor created so by the Founder or by the Law 'T was urged That there are in Law two sorts of Corporations aggregate consisting of many Persons such as are for Publick Government and such as are for Private Charity Those that are for Publick Government of a City Town Mystery or the like being of Publick Concern are to be governed according to the Laws of the Land and to be regulated and reformed by the Justice of Westminster-hall of these there are no private Founders and consequently no particular Visitors There are no Patrons of these they only subsist by virtue of the King's Letters Patents or Custom and Usage which supposes Letters Patents and are supported and ruled by the Methods of Law Therefore if a Corporation be made for the Publick Government of a Town or City and there is no Provision in the Charter how the Succession shall be the Law supplies the Defect of that Constitution and says it shall be by Election as Mayor Aldermen and Common-Council-men and the like and so is 1 Rolls Abridg. 513. But private and particular Corporations for Charity Founded and Endowed by private persons are subject to the particular Government of those who Erect them therefore if there be no visitor appointed in all such cases of Elemosmary Corporations the Law doth appoint the Founder and his Heirs to be Visitors They are Patrons and not to be guided by the common known Laws and Rules of the Kingdom but such Corporations are as to their own Affairs to be governed by the particular Laws and constitutions assigned them by the Founder Though some have said that the Common-Law doth not appoint any Visitation or Visitor at all yet 't is plain that it doth in defect of a particular appointment it makes the Founder Visitor and it is not at his pleasure whether there shall be a Visitor or not but if he is silent during his Life-time the right will descend to his Heirs and so is Yelv. 2 Cro. where it is admitted on all hands that the Founder is Patron and as Patron is Visitor if no particular Visitor be assigned 8. Edw. 7 8. 8 Assis ' 29.9 Hen. 6.33 1 Inst 96. so that Patronage and Visitation are necessary consequents one upon another for this Visitatorial Power was not introduced by any Canons or Constitutions Ecclesiastical it is an appointment of the Law it ariseth from the property which the Founder had in the Lands assigned to support the Charity And as he is the Author of the Charity the Law gives him and his Heirs a Visitatorial Power i.e. an Authority to inspect their Actions and regulate their Behaviour as he pleaseth For it is not fit that the Members who are indowed and that have the Charity bestowed upon them should be left to themselves but they ought to pursue the intent and designs of him that bestowed it upon them Where the Poor are not incorporated i.e. they who are to have the Charity but Trustees are appointed there is no Visitatorial Power because the interest of the Revenue is not vested in them but when they who are to enjoy the benefit of the Gift are incorporated there to prevent all perverting of the Charity there the Law doth not establish a Visitatorial Power and it being a Creature of the Founders 't is reasonable that he and his Heirs should have that Power unless it were devolved elsewhere 'T was further argued that in our Old Books deprived by Patron and deprived by Visitor are all one for this Authority to visit is a benefit that naturally springs out of the Foundation and it was in his power if he pleased to transfer it to another and where he hath done so the other will have the same right and Authority as the Founder had There 's no manner of difference between an Hospital and a College except only in degree An Hospital is for those that are poor and mean or Sick c. a College is for another sort of persons and to another intent the former is to maintain and support them this is to Educate them in Learning that have not otherwise wherewithal to do it But still it is much within the same reason of that of an Hospital and if in an Hospital the Master and Poor are incorporated 't is a College having a common Seal to act by though it bears not that name because it is of an inferiour degree and in both cases there must be a Visitor as both are Elemosinary A Visitor being then of necessity created by the Law as 8 Edw. 3.69 70. Every Hospital is visitable if lay by the Patron if Spiritual by the Ordinary he is to Judge
person As to the Objection from Appleford's Case Sid. 71. there that Writ was fully answered and they could not Examine into the truth and falsity of that Answer but must leave the party to his Action and it doth not thence follow That in an Action there 's no remedy But the strongest Objection is that in pleading a Deprivation you need not shew the Cause and it must be taken sor just and good as Moore 781. Jones 393. Moore 228. 2 Roll's Abridg. 219. 9 Edw. 4.25 that need only shew by whom All these stand upon the same foundation they were by Authority Ecclesiastical and must stand till Repealed and even those Cases of the High Commission Court they were by the course of the Ecclesiastical Law which was saved to them by the Proviso in 1 Eliz. and therefore shall be intended so till the contrary appear and even there 't was debito modo privatus which implies all due requisites but here the whole is disclosed upon a special Verdict 't is not found here that he was duly deprived but that he was deprived after such a manner which if it appears to have been without Authority must be null As to Ley's Opinion in Davis 47. that a Sentence of Deprivation in case of a Donative by an Ordinary was effectual in Law till Reversed that 's not Law for 't was all coram non judice Bro. Praemunire 21. Nat. Br. 42. the Ordinary cannot visit a Benefice Donative Then they Object That this is an Elemosinary interest and the Rector took it under those terms of subjection to such a Visitor but that is the Question what those terms are and the consequences of such an Opinion may be dangerous to the Universities those Nurseries of Learning and good Manners 't is to make them too precarious and dependent upon will And as to the pretence that the Land was the Founders and he might dispose of it at pleasure it was answered that before the Gift the Lands and the Profits and the Ownership were all subject to the Common-Law and the Owner could not give such a Power as is pretended no more than he could oblige all differences about his Estate to be finally determined by a particular person and his Heirs or Successors no Absolute Power can be fixed in this Nation by Custom but rather then the same shall be allowed the Custom shall be void 1 Inst 14. Davis 32. 2 Roll's Abridg. 265. Copyholds were Anciently at mere will and pleasure but the Lord is now obliged to and by certain Rules by our Law the Power of Parents over Children is qualified and restrained 't is no Argument to say that the Visitor comes in loco or vice fundatoris for the Alienation and the Statutes did oblige even himself and though perhaps if no Statutes had been made his Visitatorial Power had been much larger yet since 't is limitted to once in five Years and his Acts to be with others consent 't is as much as if he had given the Colledge a priviledge of exemption by Words Express from any Visitation at all other times and in all other manners than those which are mentioned then was Cited the Case of Terry and Huntington in Scaccar ' Trin. 20 Car. II. in Hardres's Rep. 480. before Sir Matthew Hale Trover for Goods seized by Warrant of the Commissioners of Excise the Query was when they adjudged low Wines to be strong Wines perfectly made upon 12 Car. II. cap. 23. whether it might be drawn in Question again by an Action in Westminster-Hall and held it might though they were Judges and though the Statute gave an Appeal and the reasons given there seem to reach this Case because they had a stinted limitted Jurisdiction and that implies a Negative viz. that they shall not proceed at all in any other Cases and that special Jurisdictions might be and frequently were circumscribed 1. with respect to place as a Leet or a Corporation Court 2. with respect to persons as in the Case of the Marshalsea 3. with respect to the subject matter of their Jurisdiction And if Judgment be given in another place or upon other persons or about other matters that all was void and coram non judice and though 't was objected that strong Wines were within their Jurisdiction and that 't was only a mistake in their Judgment yet it appearing upon the special Verdict that they were low Wines the Action was held maintainable this is so plain it needs no Application Then it was argued that this Sentence was void 1. because there was no Authority to visit at this time there having been a Visitation by the Commissary within five Years before that no words in the Statute make him a Visitor generally but only secund ' stat ' i.e. upon request or without request a quinquennio in quinquenium Semel now here 's no request found then the Act of Dr. Masters as Commissary is an exercise of the Visitor's Office Colmer's Appeal was to the Bishop as Visitor Semel implies a negation of having it more frequent according to Grammar it signifies once and not often er or once for all If Semel comes alone without any other Particle then 't is but once and if with another as ne Semel 't is not once or never and the liceat Semel can have no other Construction it can't mean once at the least as was argued below especially as opposed to request and no Argument can be drawn from the necessity of frequent Visitations for that Evils are not to be presumed and over inferior Members there 's a Power in the Rector and four Seniors now Dr. Masters was not requested by the Colledge nay they protest against it in some Degree i. e. so far as relates to Colmer's restitution the Oath of a Scholar being against Appeals and the Oaths and the Contents of them are to be deemed part of their Constitution But supposing that Business might be examined as a thing proper for Consideration when an inquiry is made into the State of the College and the admission continuance and removal of the Members is certainly one Article of such inquiry yet that must be done in Visitation and as Visitor for there 's no other Power found in the serdict but that 2. Admitting that no Action of Dr. Masters to be Visitation yet this Sentence is void because it held above three days and the Statutes say after three days it shall be taken pro terminat ' dissolut ' On the 16. of June he comes with intention to visit doth an Act proper to his Office and Business examines the Summoner about the Citation if he had come and only examined and made no Decree it had been a Visitation and either 't is a quinquennial one of it self or it is a Commencement of one and either one way or other it makes the Deprivation void 't is afterwards entred as a Visitatorial Act Eundem actum pro parte hujusmodi negotii Visitationis
Ordinary thought him able to take Orders and Preach in his Diocess therefore another must deem him able and sufficiently Learned tho' he knows the contrary to accept a Benefice in his Diocess 't is Absurd that upon a Presentation he is to be Examined but not refused tho' found inhabilis and this because he was in Orders and he could not be Presented unless in Orders and yet tho' in Orders if he be Presented he must be Examined but to what purpose passeth all understanding if his Priesthood or Orders presumes him to be qualified 'T is likewise to suppose Learning and Ability to be an inseparable quality That an ordinary Scholar can never become less so By the Old Law the Bishop had two Months time to Examine 2 Roll's Abr. 354. by Hob. 317. He hath a convenient time and by Can. 1 Jac. 1 cap. 95. the two Months is reduced to 28 Days And the Ordinary both in Conscience and by the Obligations which his very Order doth import is obliged to Judge for himself as well as to Examine the contrary is repugnant to his Office of a Judge to be forced or compelled to institute every Presentee fit or unfit Besides the Ordinary pro Tempore hath the particular care of all the Diocess and during a vacancy is to take care of supplying every particular Cure within his District then when he admits and institutes the very form of Words is Accipe curam meam tuam which renders it more Absurd that nolens volens he must transfer his Cure to a Man not able in his Judgment to execute it 'T is against the Rule of Law for that the Words of it are express articuli Cleri cap. 13. and this Cooke declares to be Affirmative of the Common-Law Item petitur quod personae Ecclesiast ' quas Dominus Rex ad beneficia presentet Ecclesiastica si Episcopus eas non Admittat ut puta propter defectum Scientiae vel aliam causam rationabilem non Subeant examinationem Laicar ' personar ' in casibus antedictis prout his temporibus attentetur de facto contra Canonitas sanctiones sed adeant Judicem Ecclesiasticum ad quem de jure pertinet pro Remedio prout justum fuerit consequendo respons ' de Idonietate persone presentate ad beneficium Ecclesiasticum pertinet Examinatio ad Judicem Ecclesiasticum ita est hactenus usitatum fiat in futurum Here is Idoneitas persone praesentate and the words of the Writ are quod permittat praesentare Idoneam personam And if the Presentee were not a fit person no such Writ can be maintained Then my Lord Coke in his Comment upon that Statute in 2 Inst 631 632. saith that there may be diverse Exceptions to Persons presented as Bastardy Villenage Outlawry Excommunication Laity Under age or Criminal and Lewd in his Conversation or inability to discharge his Pastoral duty as if he be Unlearned and the Examination of the Ability and Sufficiency of the Person presented belongs to the Bishop who is the Ecclesiastical Judge and not a Minister and may and ought to refuse the Person presented if he be not Idonea persona And if the cause of refusal be default of Learning Heresie or the like belonging to the knowledge of the Ecclesiastical Law then he must give notice to the Patron so that default of Learning is by him who was no great friend to the Jurisdiction of Court Christian agreed to be Subject to the Ecclesiastical inquiry and then in Pleading he must show the cause of refusal and the Party may deny the same and then the Court shall write to the Metropolitan or to the Guardian of the Spiritualities sede vacante to certifie if the cause be thus and his Certificate is conclusive if the Presentee be Dead it shall be tried by a Jury 15 Hen. 7.7 the Bishop is declared to be a Judge and not a Minister in this case of Examining a Man's Ability he is a Judge in this case as he is in case of a Resignation for an Ordinary may refuse it and without his acceptance 't is no Resignation and must be so Pleaded Noy 147. Bro. tit Bar. 81. 2. Cro. 197. and so agreed even in the Case of Leach and Thompson in Reg. 53. is a Consultation upon this very surmise that inability ad Retinend ' beneficium propter Crimina belongs to Court Christian and that the Ordinary is Judge thereof which is much stronger than our case because there was a Freehold vested by induction But this hath been agreed by that Court from whose Judgment the present Appeal is that a refusal may be upon insufficiency appearing upon an Examination upon a new Presentation and constant practise proves it The greater if any doubt is upon the Plea if good it says that he was Examined and upon Examination was found incapable The Exception taken to it is that it doth not set forth the particular parts of Learning in which he is deficient that the Temporal Court may Judge if it were a sufficient cause of refusal which is to change and turn it ad aliud examen that Learning is requisite for a Presentee to be Benefic'd they would not have the Ordinary to determine what Qualifications a person ought to have in order to take a Benefice but the Judges in Westminster-Hall They can have no colour for this pretence but that the Ordinary may have refused when competently Learned in their Opinions and they cannot say that the Law hath settled any Rules or measures of Learning requisite Some say Latin is not requisite since the Liturgy is now in English and therefore they would Judge of it others say the less Learning the better Preacher if can Read and Pray and Preach and be indued with Spiritual Gifts and so is their Replication others say that the Ordinary's Judgment must be submitted to the Judge's Opinion of the proportion of Knowledge necessary then they have a Popular pretence that this will give the Bishops too great a Power of refusal and so restrain Patrons from their privilege of Presenting and thereby make themselves Collators But there 's no danger of that because there must be notice and a convenient time for another Presentation and the danger of this restraint is as much the other way for then the Temporal Courts are to do it and it s much at one to the Patron which is to declare the inability the Ordinary or the Temporal Courts On both sides it must be agreed that default of Literature is a good and just cause of refusal the Question is who shall judge of it it is said minus Sufficiens in Literatura ca ratione inhabilis i.e. it being indefinite in omni Literatura necessaria But they Cavil at the Word minus sufficiens as if that agreed him somewhat Learned and forget that 't is said ac perinde incapax And minus sufficiens is in Lawyer 's Latin totally insufficient and so 't is used in all
upon grievous pain sometimes before the King himself sometimes before the King's Council sometimes to the Parliament to answer thereof anew to the grievance of the Parties and in Subversion of the Common-Law of the Land 't is Enacted that after Judgment the Parties shall be in Peace until the Judgment be undone by Attaint or Error this is agreed and amplified 3 Bulst 47.115 Here is mention even of the Parliaments Summoning persons to Answer in Subversion of the Laws There are other Statutes not Printed as 4 Edw. 3. numb 6. Cotton's Abridg. 7. and the same in 2 Inst 50. The Lords gave Judgment of Death without Indictment upon some who were not their Peers and agreed in full Parliament that they should be discharged of so doing for the future and that it should not be drawn in President that the like should not be done on any but their Peers 't is a Declaration of the Lords nay 't is an Act of Parliament and penned in the same manner as 29 Edw. 1. Statute del Estoppel at a Parliament agreed 33 Edw. 1. by common accord and 9 Edw. 2. the King in Parliament by Advice of his Council and these are held to be Statutes This was not only an acquittal from the trouble but a clear denial of the Power as appears by the words before that they had assumed upon themselves and the words subsequent that the like should not be done again The Complaint was because it was intermedling with Commoners after that manner Suppose this House should make an Order upon this matter which is a Law business and not of Equity no Execution can be made of it but Commitment There is the 15 Edw. 3. now insisted on Printed in the Old Statute Book but omitted in this 't is in Cotton 28.33 and 't is thus the Commons complained of breaches of Magna Charta c. and pray remedy with this Conclusion That every Man may stand to the Law according to his Condition and the Lords pray that Magna Charta may be observed and further that if any of what Condition soever should break it he should be adjudged by the Peers of the Realm in Parliament the next Parliament and so from Parliament to Parliament and it was Enacted accordingly This was Specious the same being only for the breakers of Magna Charta but in 17 Edw. 3. that whole Parliament i. e. all the Acts of it are Repealed which Repeal seems designed for the Petitioners for it Repeals the supposed Laws which make both their Title and this Jurisdiction which they would support 'T is observable what is said in the Repeal that the Act was contrary to the King's Oath in prejudice of his Crown and Royalty and against the Ancient Law And such is this for here 's no use of the King 's Writ no Address to or Command by the King for this Proceeding nor any mention of his name in the Petition By 1 Hen. 4. cap. 14. Appeals in Parliament for Offences are declared against as contrary to Reason and the Constitution this is such This is not incident to the Power of Hearing and Determining upon the Writ of Error because as was said before it belongs properly to the Chancery to Issue a Writ Commanding it to be done Si ita est as is Suggested By 12 Rep. 63. the King himself cannot take any Cause out of the Court where it depends and give Judgment on it himself And this House can make no Order upon this Petition that will be a Record as in Hob. 110. The Petition is in the name of a Person not party to the Record which seems very new for 't is by a Stranger in the eye of the Law to the Cause and consequently ought not to be joyned in any legal proceeding if this be such This is not incident to the Jurisdiction of the Error no more than Amendment of an Error in the Court from whence the Record comes or the filing of a Baile a Declaration or a Warrant of Attorney or the Sueing out another Process in Defect of one lost or the like These things are never Examinable in the Superior Court for in these Collateral things the other are intrusted Here 's no Hardship upon the Petitioner for he might have been Non-suite or have given this Repeal'd Act in Evidence at first and then have demurr'd on the Defendant's Evidence or might have Sued a Writ on the Statute of Westminster 2. But suppose this House should Examine this matter and find the Petition to be groundless will such Determination prevent the Judges from being troubled by Sueing of the Writ afterwards Suppose it E contra that this House should punish the Judges and commit them and award Damages or make other Order in favour of the Petitioners would such Order bar or stop the legal process afterwards can any Order made here be used below as a Recovery or Acquittal as an Auterfoits Convict or Auterfoits Acquitte If there be any thing in it 't is a breach of a Statute Law for which they are punishable at the King's Suit will the proceeding here save them from the trouble of answering to an Indictment or Information for the same thing Then since a Writ lies to Command them to Seal this Bill and since an Act of Parliament directs it if it were a true one perhaps it may be Questionable if they do not break their Oaths in case they Sign it in Obedience to any other direction If they did it in Obedience to the Royal Word Signet or Privy Seal of the King their Master 't would be a breach of their Oath Then as to presidents of the Exercise of such a Jurisdiction none come near this And abundance of particular Cases were put and answered but the considerable one was Jeffery Stanton's Case 14 Edw. 3.31 Cot. 30. The Case is odd 't is in Fits Abridgment tit voucher 119. there is a Writ directory to the Judges to proceed to Judgment or to bring the Record before the Parliament that they might receive an Averment c. To this Case it was Answered That the same was long before most of the Statutes aforementioned and in full Parliament and in that Case Stone would not agree to it but adhered to the Law according to his Opinion 't is true Shard in the absence of Stone gave Judgment according to that Advice but a Writ of Error was afterwards brought in the King 's Bench and the Judgment was Reversed 15 Edw. 3. B. R. even contrary to the Advice of Parliament to the other Judges As to the other Cases of Property Examined here either the Parties submitted to Answer or they were at the Suit or Complaint of the Commons or by Consent of the King and Commons but none of them carry any resemblance to this where the Judges insist upon it that there is another and a proper Remedy All the Cases in Ryley's Placita Parliamentaria are either Ordinances of Parliament or directions to follow
another Subject 2. If this Commendam Retinere and to take the Profits to his own use was not a Service of this Prerogative turn 3. Supposing that there be such a Prerogative and that the Commendam makes no Alteration in the Case then if this Vacancy of this Church be subject to this Prerogative As to the first it was argued That where an Incumbent is promoted to the Order and Degree of a Bishop his Living or Benefice becomes void and that where a Bishop is Patron and the Advowson and Bishoprick are become void at a time there the King shall present because while the Temporalties are in his hands he is lawful Patron for that time and consequently had a Right to present but not by virtue of any Special Prerogative but only as a Temporary qualified Patron like a Dominus pro Tempore of a Mannor may do Acts of Necessity which regularly belong to the very true Lord himself and this perhaps gave the Colour for this pretended Prerogative and in truth it answers every thing that can be suggested from any ancient Authority whether President Book Case or Opinion It is otherwise where a Subject is Patron and the King hath no Possession of or a Right to the Patronage at that time In such case he cannot present and there is no Prerogative given by our Law for to warrant such a Right to that Presentation All Prerogatives are founded upon some reason of Benefit to the People either in respect of the Government in general or else of some particular Subjects but this hath neither And in 3 Cro. 527. 't is agreed that there is no Reason for such a Prerogative but 't is added and the Addition is somewhat strange that many Prerogatives have no reason in them or for them and that 't is unmannerly to Enquire or Doubt if they are reasonable whereas it might be thought that unreasonableness in the Matter contended for had been an Argument against any thing but an Act of Parliament In Dyer 228. Sir Henry Sidney's Case versus the Bishop of Glocester by Dyer 't was agreed That the Queen had no such Prerogative and he adds quod sic alij Socii mei sentiebant so that 't was not his single Opinion against it but the whole Court of C. B. Then 't was said that the ancient Law knew nothing of his Prerogative all the Records Law Books and even Histories have been searched for the Maintenance of it and no footsteps can be found for it No Bracton or Fleta no Dr. and Student or Stamf. that treats of the Prerogative hath any thing of it Now all Prerogatives are and must be time out of mind or not at all And then if this be not so it must be an Usurpation and being not time out of mind it cannot be a Prerogative because not part of the Common Law In the great Case which they so much insist on of Woodley in 2 Cro. 691. Justice Hutton who was an ingenious Man a good Lawyer and a true English Judge that argued against Ship-money he expresly denies that there was any such Prerogative that the King had no Title to present but where himself is Patron and that there was no such Presentment till of late days nor any Book of Law to warrant it but that Case which is in Bro. Abr. Presentment al' Esglise 61. Then 't was urged That a few years Practise can no more make a Prerogative then it can Repeal an Act of Parliament 'T is true that in the Report of that Case Crook seems to admit that Winch was of Opinion for the Prerogative and only Hutton against it for he makes Winch to say That the King has an Absolute Title by his Prerogative as well in the Case of Common Persons Patronage as where himself is so But as 't is in Winches Reports 96. where the Case is reported again there they are both of Opinion against it and Winch ridiculed the Opinion of Bro. Presentment 61. as the saying of the Bishop of Ely who was then Chancellor and might have right to present to it by force of his Place if the King had such a Prerogative And indeed Bro. himself makes a Remark upon it as a thing never heard of before by a quod nota The King hath presented to Livings of other Mens Patronages but that was not by force of this Prerogative but on other grounds as 40 Ed. 3.40 the King presented to a Prebendary when the Prebend was made a Bishop And the reason of that Case makes for the Plaintiff in Error i.e. because the Temporalties of the Bishop who was Patron of that Prebendary was then in the King's Hands and then the King was Patron so long and he did present as such So is the 41 Edw. 3.5 the same as Patron having the Temporalties in his hand So is 44 Edw. 3.24 upon another reason a Parson is made a Bishop and the King presented not Jure Prerogative but because that the Patron was the King's Tenant in Capite and the Heir was in Ward to the King and so he had Jus Patronatus in him The King hath it where he has the Temporalties so is Fitzh Grand Abridgment Title Quare Impedit pl. 35. the King claimed Title to present to the Provostry of Wells in the Gift of the Bishop void upon the Provost being made Dean because the Temporalties of the Bishop were in the King's hands at that time The 11 Hen. 4.37 59 and 76. tho' cited on the other side below is a full Authority 't is a noted Case the ancientest Case in our Law concerning Commendams The Case in short is thus The King brings a Quare Impedit and makes his Title by the Creation of the Incumbent to be a Bishop There was some Debate on the Declaration but the Defendants plead that the King granted the Temporalties to the new Bishop before the Living became vacant Then the King waives that Declaration and betakes himself to another Title and Declares on the Statute of Provisors because the Pope had usurped a Power which that Statute denied him and there 's no Judgment in the Case upon the first point but 't is most clear that the King's Counsel in that Case were of Opinion against this Prerogative because they did not stand to that Title but amended their Declaration and took to another This Point was directly to have been judged in the Case if they had thought fit to abide by it So that 't is plain that they took the Plea to be good if the Temporalties were in the King's hands then the King was to present if not that he had no such Prerogative And this is a great Authority that the King had no such Prerogative because he waives that Title and goes to another 5 Edw. 2. Maynard 148. Hugh de Courtney brings a Quare Impedit against Thomas de Hutwet for the Church of Bingham and sets forth that Isabel de Force Countess of Aumerle presented such a one
upon the Livings becoming void by Cession viz. by the Incumbents being made a Bishop but never a word of the King's Title in all the Case or any such Prerogative as is now contended for And in Owen's Rep. 144. Walmesly cites a President which he had seen in Edward the Second's time adjudged that the King had no such Prerogative and all that was said for it was eight or nine Presidents in Tradition or History of a Patron being complemented out of his Right but not one Law-Book for it Coke 4 Inst 356 357. who wrote and published much he never mentions this Prerogative but says that the Law is otherwise for upon his Observation on a Record of 24 Edw. 3. Rot. 25. coram Rege Cornub ' Admittitur Episcopus Exon ' pro fine 200 merc ' pro contemptu in non admittendo presentatum Regis ad Ecclesiam de Southwel pro quo contempt ' omnia temporalia Seisita fuerunt in manus Regis tunc temporis ante finem fact ' vacavit Archidiaconat ' Cornubiae ratione quod Incumbens Electus fuit in Archiepiscopunâ— Dublin ' in Hibernia Temporalibus Episcopi Exon ' ad tunc in manibus Regis existent per quod Dominus Rex recuperavit versus Episcopum dict' Archidiaconat ' Upon this Record he makes two Conclusions 1. Tho' Ireland be a distinct Kingdom yet 't is governed by the same Law as England in these Matters 2. That when the Arch-Deacon was by the King preferred to an Archbishoprick he had the Presentation to the Arch-deaconry in respect of the Temporalties of the Bishop of Exeter Patron of the Arch-deaconry and not by any Prerogative Here 't is observable That my Lord Coke took it that the Patronage by reason of the Temporalties gave to the King this Right and not the Prerogative Then his next Paragraph is stronger If a Bishop in England be made a Cardinal the Bishoprick becomes void and the King shall name his Successor because the Bishoprick is of his Patronage All which implies That if 't were not of his Patronage 't would be otherwise else why is that reason added Obj. But then say they The Pope's Usurpation prevailed in all those times and the Pope had it when Provisions were in use But that can be no Argument to give the Crown a Prerogative for the Pope was a Tyrant over the English Church and by the same Reason the King may claim to be above all Laws because some Judges said as Hank did in Hen. 4. quod Papa potest omnia at that rate no Act of Parliament shall bind the King because the Pope thought himself bound by no Law of ours Besides There were several of our English Monarchs and English Parliaments that boldly withstood these Usurpations and there were divers Intervals of Liberty and Freedom from that Romish Yoke and we never read of any Exercise of this Prerogative in those Intervals 'T is questioned in 41 Eliz. and in Owen's Rep. 't is said that the Pope's practise was no Authority to warrant a Prerogative for they used to do strange things and the Clergy then made his Will a Law and our English Lawyers have always complained of it Obj. There 's no ancient Books that mention Title by Lapse But 't was answered That in Caudries Case 't is fetch'd from the Reign of Edw. 3. and that is no very late Reign and Lapse is so ancient as it appears by the close Roll 21 Hen. 3. in n. 12. that the Deâ— and Chapter pretended to it during a Vacancy of a See upon an Advowson of the King 's own but it appears there by a Writ to that purpose that no Lapse per tempus semestre accrued on the King which shews that 't was old Law for the Subjects Pryn 2.481 By a Writ 8 Hen. 3. num 4. Dorso Prynne 2 Vol. 389. it appears the Archbishop of York was to present si ultra tempus sex mensium vasari contigerint and 1 Inst. 2 Inst. and all the Booksare full of it and Doctor and Student which is no new Book treats of it cap. 31. Besides that and this are different Cases there is a necessity of such a Law for the Service of the Church the King is by the Constitution intrusted with the Supreme Care of his People both for Religion and Property and if a Patron will not do it in reasonable time 't is reasonable he should lose it and the King present But to make that a similar Case they should shew that these Prerogatives were of equal duration and that there 's as much reason for the one as for the other but because the King hath preferred the Patron 's Friend therefore the King shall have it that cannot hold upon a toties quoties when the Friend is dead and three or four more of the King 's presenting for by this means the Patron may never present to his Church 2. The next Query was Whether this Commendam for above the six Months with power to take the Profits to his own use shall be a fulfilling of this turn or otherwise prevent the Operation of the Prerogative on it by this he was a plenary Incumbent after Consecration and he had the Profits to his own use He was not meerly the Ordinary's Deputy to supply the Cure during six Months but hath it in his own right and this with the King's concurrence The Prerogative could only work upon an Avoidance by Promotion and that is upon Consecration this becomes void at the expiration of therein limited T is to be considered That this is none of the old Prerogatives of the Crown which in a Competition are to be preferred before the Subject's Right it is a Prerogative not to be favourably interpreted but stricto Jure for 't was only taken up as a Papal Right and so 't is plain from 2 Rolls Abridg. 358 359. As such a Papal Right it ought to be interpreted stricto Jure even by the Pope's Law being against the Patron 's ordinary Right and so 't is nature odiose there might be cited Suares and others to this purpose Perhaps the Pope's Right was not so much allowed here as to make it clear with him in this Point for Dr. and Student cap. 36. 37. says that the Pope's Collection of Benefices vacantium in Curia was held to be within the Statute concerning Provisions viz. 25 Edw. 3. This Prerogative hath been construed stricto Jure here 1. In the Case which the Lord Chief Justice Vaughan Reports where the Crown upon the promotion of an Incumbent to the Bishoprick of Oxford and who by Dispensation retained his Living till death would have presented to the Living when it fell vold by the Incumbent the Bishop's Death it was resolved that the King's Prerogative was not to present to the next Avoidance after the Promotion but to the next Avoidance by the promotion which in that Case was none for that the Avoidance was by Death 2. In the Case my Lord Chief
is generally known That the use of Sirname was not settled amongst us till long after the Conquest that before then they were named by their Titles Offices Places of Birth or Residence or Employments as doth appear plainly by Dugdale 1. Monast 37. In those Days Miles was used instead of the Sirname immediately after the Christian Name as Ego Wolwardus Miles and many more such Selden's Tit. of Hon. 637 638. thus in 1 Monast 166. Domim Algari militis 2 Monast 173.853 thus it was in the time of Hen. 2. then after Sirnames came to be used this Title of Miles was also used as an Addition or Inlargement after the Sirname Cambden's Treatise of Sirnames in his Remains and Kennell's Parochial Antiquities lately Printed at Oxford in 4to do shew this That the Title of Knight came after the Sirname as an increase not in Reu of it as Merchant Mercer c. Professor of Divinity Law Musick Master of Arts c. for further Distinction sake Then it was said That this use of Sirnames holds not in case of Bishops Dukes or Earls for they add only the Place and therefore the Descent or Accession of the Honour comes instead of the Sirname so is 2 Inst 666. but now William Theckston when made a Knight he remains William Theckston still he loses no part of his former Name tho' the same be inlarged if it had been otherwise 't would have merged the Sirname but his Title makes no Alteration therein at all The Law doth require a Man to be named only by his Christian and Sirname unless somewhat comes in lieu of the last or the first be altered by Confirmation a Grant is good if the Party be so described as that he may be known tho' there be a Mistake in it yet 't is good as a Grant to an Earl or Bishop by a wrong Christian Name hath been held 2 Rolls Abr. Tit. Grants 44. Dyer 376. 't is the Identity of the Person which the Law doth most regard and value and therefore since there was no presence but that the same Person who granted it to Pierse was intended by and in the King's Patent it was hoped That such a Nicety should not lose the Subjects Inheritance in this Advowson which he had bought for a valuable Consideration Further it was said this could not hurt upon the Oyer of this Grant in this Record as this Case stood and should be further shewn anon Then it was argued That either take the Case upon the Declaration and Plea alone or take it as it stands upon the Letters Patents alone either of these two ways 't is with the Subject If the Patent be considered by it self there 's nothing appears to make it void the King had a Power to grant and there are Words sufficient to pass it Then consider the Declaration and Plea there 's a good barr to the Title laid in the Declaration so that the only Objection can be upon the Rules of pleading as it stands all together and the Query is If P. hath owned or confess'd any such thing as is pretended of a Seisin in gross in Eliz. anno 12. and if it be admitted whether the King can take an Advantage of the Variance between the Patent set forth on Oyer and that which is pleaded the same being only pleaded by way of Inducement whether the King can waive his own Title and question the Defendants in this Case As to the first it was said That this Grant was not void by reason of any such Admission the King declared his full Intention That Sir William should fully and freely enjoy this Advowson any Defects to the contrary notwithstanding that 't is not admitted in this Case to have been an Advowson in gross in the 12th of Q. Eliz. no such thing doth appear and then the Grant of Car. 1. is good and if it did so appear yet the Grant is good The Plea doth say that Car. 1. came to it by Descent but that doth not admit her seized in gross That Allegation in the Declaration is mear Surplusage and Immaterial and cannot hurt the Party which makes it tho' contradictory to or inconsistent with his Title Nor can it benefit the other side to deny it for if he had denied it it could have done him no good and consequently to admit it shall not hurt him Now 't is not necessary in a Quare Impedit to alledge a time of Seisin a Seisin generally in time of Peace is enough then the not denying admits only what is materially alledged Suppose the Defendant had pleaded absque hoc that Queen Elizabeth did present Tymmes modo et forma and it had appeared upon the Trial that he was presented in the 43d Year of her Reign it must have been against the Defendant Even where time is required to be alledged another time may be proved as in Trespass Battery c. The most that can be pretended to is that here is an Admission of her being seized in gross after the Grant to the Earl and it might be appendant then and afterwards got to the Crown by Presentations there 's no colour to suppose an admission of the time Hob. 71. The Case of Sherly and Wood and 2 Leon. 99. prove that neither alledging or confessing a thing immaterial shall hurt the Reason is the same for both There was a plain Artifice in this Pleading the Declaration mentions a Presentation prout per Inrolment which cannot be unless in the same Court otherwise you must plead an Exemplification Wymock's Case 5 Rep. If the Declaration had been in the common usual way setting out the Queen to have been seized generally or to have presented generally there had nothing appeared to have hurt this Grant for it might then have been appendant and if it might be so it shall be intended to be so for he is not bound to aver it to be appendant for upon Oyer every thing shall be intended to make a Grant good unless the contrary doth appear 2 Cro. 679. he need not plead that it was appendant at the time of the Grant to the Earl Concessit is enough and that tho' in general words 35 Hen. 8. Bro. Pleading 143. Kelway 43. 1 Rolls Abridg. 405. Then suppose it did appear that this Advowson was not appendant in the 13th Eliz. yet it doth pass There is but one supposed Falsity and that is Dr. Wilson's Presentation by Lapse which is admitted to be pleno jure First The Grant is full express and large enough Know ye therefore c. All our Right c. as full words as can be used without any restriction whatsoever And as to the Suggestions there 's not any Mistake in them 'T is not suggested that 't was ever appendant not suggested that it did pass by those Letters Patents nor that it came to Th. but only that he claimed it and the word claim doth not always import a lawful Claim for a Man is amerciable pro falso