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
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
CASES IN PARLIAMENT Resolved and Adjudged UPON Petitions and Writs of Error Quicquid sum Ego quamvis Infra Lucili censum ingeniumque tamen me Cum Magnis vixisse invita fatebitur usque Invida Horat. LONDON Printed for A. and J. Churchill at the Black Swan in Pater-noster-Row MDCXCVIII TO THE READER NO Collection of Cases adjudged in Parliament having been yet published a Preface seems necessary to bespeak the Reception of that which is now presented to the World To commend or excuse the Collector will not perhaps be a method to introduce it most to advantage what may be spoken in favour of his diligence or capacity will be censured vain and if any excuse be offered for his inability to have done it better some will be ready to take him at his word and think the Performance comes from a careless or unskilful Hand Whatever the Author is there needs no Apology to be made for the nature or design of the Work it self for the Subject Matter will be useful and entertaining to all Ranks of English Men to whom Books are so that is to all such as understand and love Literature Here is our Municipal Law and the reason of it Equity and the Law of Nations interspersed here is the manner of arguing and the language of the Bar briefly toucht here are the Forms of Proceedings sometimes mentioned but then again those Forms are superseded by the Original and Eternal Rules of Justice By the Debates and Arguments here reported you may be acquainted in some measure with the Rights of the Peers and their incapacity to alien such their Rights with the nature of Slander and some Rules concerning it the Course of Equity in respect of Penalties and Costs The Law of Average in the Case of Partial Losses at Sea the Circumstances upon which Relief may be had in Equity against hard or unreasonable Agreements the Construction of Wills to charitable Uses where the Estate intended is greater in value then the particular Bequests amounts unto the Power of a Council of State to commit with variety of Matter concerning Pleading and the Plantations belonging to England and the Priviledges and Birthrights of the English Subject by the Common Law and how far that Law extends The nature of Colledges Hospitals and other Elemosynary Foundations and the Authority and Power of Visitors and the Methods of their Proceedings the Court of Chivalry or Honour the extent and boundaries of its Jurisdiction before whom held and when and in what Cases a Prohibition lyes to it the power of Lords of Copyhold Mannors to refuse Petitions for the Reversal of Recoveries in their Courts and the Judgment of Equity upon such occasions the right of Dower and the efficacy of a Term attending the Inheritance to prevent its enjoyment and the opinion of Equity thereupon The Preference of an Outlawry upon mesne Process to a Judgment not extended and the practise and reason of the practise of the Court of Exchequer in that case the Consideration which a Court of Equity ought to have of Bonds Bills or Promises made or given upon Condition or Consideration of promoting and procuring Matches The dependency which Ireland hath upon England and her subordination to it and the Authority of the House of Peers in This over the Proceedings in the Chancery of That Kingdom the opinion of Equity upon Conditional Limitations and what will be a Performance of such Conditions and to whom the Profits shall go during the intermediate time c. The qualification requisite in a Presentee to a Benefice and the power of the Ordinary to refuse for defect of Knowledge and how that defect is to be tried the Construction of Law upon a Deed leading the Uses of a Fine of the Wives Land to the Heirs of the Husband's Body the Husband dying afterwards before the Wife the right of the half Blood in the distribution of an Intestates Estate and unto what Share the right of nominating to the Office of chief Clerk for inrolling of Pleas in B.R. and to whom it belongs the nature of a Bill of Exceptions and the Proceedings thereupon and in what Cases the same may be refused and if any Authority in the Lords over the Judges in case of such refusal The Punishment of Treason by the English Laws and the Form of Judgments in that case the nature of contingent Limitations after a Fee and if they may be allowed upon Contingencies to happen at any time after the decease of Persons then in being the manner of declaring the Uses of a Fine and by what Deed or Writing the nature of Wills and of the revocations of them and if a Will whereof the Contents are unknown may revoke a former the efficacy of the acts of one that is Non compos mentis and if and how far void what Deeds altering the Estate of a Testator shall revoke a solemn Will The nature of the Office of a Clerk of the Peace and by whom grantable and for what Interest and how removeable the Prerogative of Presenting to Benefices made void by Promotion and if such Prerogative be served or fulfilled by a Commendam and whether it can operate upon a new created Parish or Rectory the formal reason and essence of Treason and wherein it consists and what is necessary to be alledged in Indictments for that Offence the right of Tythes for Herbage or Agistment of Cattle grazed and fed for Sale tho' formerly used to the Plough The Exposition of a Will of a Native of France and by what measures a Judgment ought to be made of the meaning of Phrases used by such Persons in that Language upon such an occasion the Construction of the word Share in a Will concerning the New-River Water the force or validity of a Grant or Assignment of Land in which the Grantor had a very long term to hold from and after the Grantor's decease the Title of Knight if and how part of the Name and what Allegations in a Count in a Quare Impedit are not needful to be answered to and what may be traversed and what Grants of the Crown shall be good notwithstanding some and what Misrecitals These and many other Particulars worthy of most Mens notice are here debated and it may reasonably be supposed that none will be Enemies to the Design and Publication but those who mislike the small Remainders we have left us of the Aristocratical part of our Government the Gentlemen who do so must be unacquainted with the Grecian and Roman Story as well as with our own or else have read it but superficially for even the most perfect of the Grecian Common-wealths were somewhat Aristocratical That which may be called such is Sparta which tho' it had some Laws we cannot account for yet during several Centuries it maintained its own Liberty and assisted its Neighbours to preserve theirs And notwithstanding some Men may think the contrary Democracy was not the only Favourite Model of the