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
whom of right it doth belong to grant that Office whensoever it shall be void It was then further insisted on and proved That there are in the nature of Clerks three considerable Officers of the Court of King's Bench The first and chiefest is the Clerk of the Crown called sometimes Coronator Attornat ' Domini Regis c. his Business is to draw all Indictments Informations c. in Pleas of the Crown This Officer being the chief Clerk in Court is always made by Patent under the Great Seal The second Officer is this the Prothonotary or chief Clerk for inrolling Pleas between Party and Party in Civil Matters He and his Under-Clerks do inroll all Declarations Pleadings c. in Civil Causes especially where the Proceedings are by Bill This Clerk files in his Office all Bills Declarations c. and all the Writs of this Court in Civil Matters are made by him and his Under-Clerks and tested by the Chief Justice And he hath the custody of all Returns of Elegits Executions Scire Facias's and the filing of all Villes every of which are in the Eye and Judgment of the Law in the hands of the Chief Justice whose Clerk this Officer is The third is the Custos Brevium who keeps all the Rolls and Records of Judgments in this Court which are also said to be in the custody of the Chief Justice And this Office when void is in his Gift and Disposal It was further shewn on the behalf of the Defendants That in the Statute of Edw. 6. against the Sale of Offices there is a Salvo to the two Chief Justices and Judges of Assize to dispose of the Offices in their disposition as they used formerly And ever since that Statute these two Offices of chief Clerk to inroll the Pleas c. and the Custos Brevium have without controul been disposed by the Chief Justice of the Court of King's Bench. And it is also observed That in the Grant of this Office to Mr. Bridgman the Plaintiff it is recited that Henly and Wightwick were debito modo admitted to this Office and yet they never had any Grant from the Crown nor any other Grant except that from the Chief Justice before mentioned Then to prove the Defendant's Title to the Office the Grant of the now Chief Justice to them for their Lives was produced and read and proved that they were admitted and sworn To answer all this Evidence there was produced the Copy of an Act of Parliament which was made in 15 Edw. 3. to this effect It is consented that if any of the Offices aforesaid which are other great Offices mentioned in the Act or the Controller or chief Clerk in the Common Bench or King's Bench by Death or other Case be ousted of their Office the King with the consent of the great Men c. shall put another fit person in such Office From whence the Plaintiff's Counsel would have inferred That the King had a right to grant this Office and that this Act was declaratory of such his Right and that all the Grants from the Chief Justices ever since that Act were but Usurpations on the Crown and that no Usage of granting it by the Chief Justices could prevail against the King's Right To this it was replied That the Act was repealed as did appear by the Record it self as well as by their own Copy produced And for a further Answer 't was said That the Office in question was not the Office mentioned in that Act for that Act mentions the chief Clerk of the King's Bench which is the Clerk of the Crown and so called in the 2 H. 4. the Statute against Extortion and he is in reality the chief Clerk in that Court and hath precedency of this Officer both in Court and elsewhere And that this Officer is not called chief Clerk in the King's Bench altho' he is the chief for inrolling of Pleas Civil in that Court And the constant Usage explains the meaning of that Act. And that the Officer called chief Clerk was meant to be the Clerk of the Crown for that that Office hath been always granted by Letters Patents according to that Act And the Office in question was never enjoyed one day by virtue of a Grant from the Crown The Defendants did further insist That it was a Scandalous Imputation upon all those chief Justices who were Persons of Probity and Virtue and had clear Reputations to surmise that they imposed and usurped upon the Crown as they must all have done if the right of granting this Place be in the King And Sir Robert Heath that was the King's Attorney took a Grant of the Office in question from the Chief Justice and upon his Admittance the right of the Chief Justice to grant it is affirmed upon Record Then all this Evidence on both sides being given and the same being strong on the Defendants behalf the Court proposed to the Plaintiff's Counsel to be Nonsuit which they would not but prayed the Court to direct the Jury some of them saying that they would take another Course And then the Court did briefly sum up the same and particularly the Evidence of the Act 15 Edw. 3. and what was urged from it by the Plaintiff and the Answers made thereto and left the Matter to the Jury upon the whole The Jury withdrew and after some time gave a Verdict for the Defendants Upon this Verdict the Counsel for the Plaintiff prayed leave to bring in a Bill of Exceptions and produced in Court and tendred to the three Judges to be sealed a Parchment Writing in form of such a Bill in which after a Recital of the Declaration and Issue in the Cause 't is alledged That the Plaintiff's Counsel produced in Evidence the Grant of the Office to the Plaintiff and that they shewed to the Court and Jury that the Office is of the Grant of the Crown And that to make out the Right of King Charles the Second to grant this Office to the Plaintiff they gave in Evidence the 15 Edw. 3. which in the Bill is set out at large and is in Substance as is before set forth And 't is further alledged in the Bill That the Justices refused to allow admit and receive the Allegations and Matters given in Evidence as sufficient to prove the Plaintiff's Title to this Office by reason whereof the Jury found That the Defendant did not disseize the Plaintiff and prays that the Justices would put their Seals to it according to the Statute of Westminster 2. cap. 31. The Justices upon reading this Bill did refuse to Seal it 1. Because 't is asserted therein That the Plaintiff's Counsel did show that this Office was of the Gift and Grant of the King whensoever it should be void whereas there was no such Evidence to show any such Right in the King offered or pretended to besides the Patent in question and the Act of Edw. 3. 2. That the Judges refused to allow admit and
good for them and that they had the like Power of Appeals Writs of Error and Impeachments c. and that the Cognizance of such Appeals in England would produce great inconveniencies by making poor people to attend here whereas they might with less trouble and expence have Justice at home that this did agree with the reasons of that Ancient Statute 4 Inst 356. that persons having Estates in Ireland should Reside in that Kingdom else half of their Estates should go to maintain the Forts there That this practice of receiving Appeals here would be vexatious to the people of that place and that no Court could have Jurisdiction but by grant or prescription and that there could be no pretence for either in this place Then was it ordered in these or the like Words Whereas a Petition and Appeal was offered to the House the Day of last from the Society of the Governour and Assistants London of the New Plantation in Ulster in the Kingdom of Ireland against a Judgment given by the Lords Spiritual and Temporal of Ireland in Parliament there Assembled on the day of last upon the Petition and Appeal of William Lord Bishop of Derry against the Decree or Orders made in the said Cause in the Court of Chancery there Whereupon a Committee was appointed to consider of the proper method of Appealing from Decrees made in the Court of Chancery in Ireland and that pursuant to the Orders of the said Committee and a Letter sent to the Lords Justices of Ireland by Order of this House several precedents have been transmitted to this House by the said Lord Justices Copies whereof were ordered to be delivered to either side After hearing Counsel upon the Petition of the said Society of London presented to this House praying that they might be heard as to the Jurisdiction of the House of Lords in Ireland in receiving and judging Appeals from the Chancery there as also Counsel for the Bishop of Derry after due Consideration of the Precedents and of what was offered by Counsel thereupon It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament Assembled That the said Appeal of the Bishop of Derry to the House of Lords in Ireland from the Decree or Orders of the Court of Chancery there made in the Cause wherein the said Bishop of Derry was Plaintiff and the said Society of the Governour and Assistants London of the New Plantation in Ulster in Ireland were Defendants was coram non judice and that all the proceedings thereupon are null and void and that the Court of Chancery in Ireland ought to proceed in the said Cause as if no such Appeal had been made to the House of Lords there and if either of the said Parties do find themselves Agrieved by the said Decree or Orders of the Chancery of Ireland they are at liberty to pursue their proper Remedy by way of Appeal to this House Sir Caesar Wood alias Cranmer versus Duke of Southampton APpeal from a Decree in Chancery the Case was thus Sir Henry Wood the Appellant's Unkle makes a Settlement in Consideration of a Marriage to be had between his Daughter Mary and the Duke c. to the uses following i.e. in Trust to Receive and Pay out of the Profits 450 l. a Year to the Lady Chester for the Education and Maintenance of his Daughter till twelve years of Age then 550 l. a year till Marriage or Seventeen years of Age which should first happen and in Trust to pay the Residue of the Profits to the Duke after Marriage he first giving Security to the said Trustees to provide Portions and Maintenance for the Daughters of the Marriage equal to the Sum he should receive and in case there should be none then the same Money to remain to the Respondent and if the said Mary should die before Marriage or Age of Seventeen years to such Uses as Sir H. W. should appoint And if Mary after Sir Henry's death die under Sixteen the Respondent then unmarried to any other Woman or after and before Seventeen the Respondent then living and unmarried or if before Seventeen she should marry any other or if she should refuse the Respondent then 20000 l. out of the Profits to the Duke But if the said Marriage shall take effect after Mary's Age of Sixteen years and she shall have Issue Male by the Respondent then for the better Settlement of the Premisses upon the Issue Male and a more ample Provision and Maintenance for the Respondent and his Wife and the longest Liver of them in Trust for the said Duke and Mary for and during their Lives and the Life of the longer liver of them and after their Deaths to the first Son c. in Tail Male and for default of Issue Male to the Daughters And for default of such Issue in Trust for such Persons only as Sir Henry should appoint and in default thereof to the right Heirs of Sir Henry Sir Henry W. at the same time makes his Will tho' dated after the Settlement reciting that he had settled the Premisses upon the Duke and Mary for their Lives and the Life of the Longer liver of them c. and confirms it and in Case the said Martiage should not take effect according to the Limitations of the Settlement or if the said Respondent should die without Issue by Mary or if he have Issue by her and that Issue die without Issue then the Remainder to Mary for Life and afterwards to her first Son and after several mediate Remainders then to the Appellant for Life c. and after to Thomas Webb c. Sir Henry Wood dies the Marriage between Mary and the Duke afterwards takes effect upon her arrival to years of Consent and they lived in that state till she was near Seventeen years of Age and then she dies without Issue The Court of Chancery decreed the Profits of the Estate to the Duke for Life It was argued for the Appellant That here was a precedent Copulative Condition that if the Marriage take effect after Sixteen and there be Issue then to the Duke and neither of these being in the Case the Decree is not consistent with the positive words of the Settlement for that the Duke was to have it upon no other terms That by this Settlement the Duke was thus provided for 1. If the Marriage did not take effect by Mary's refusal or taking another Husband the Duke was to have 20000 l. 2. If the Marriage did take effect and Issue was had then the Duke was to have an Estate for Life but not otherwise that the words are plain and certain that there must not only be a Marriage but Issue Male between them that tho' it should be agreed to be a good Marriage within the intention of the Settlement she living till after Sixteen years of Age yet when a Condition Copulative consisting of several Branches as this doth is made precedent to any Use or
after Judgment affirmed in the Exchequer Chamber Or if that proceeding in the Exchequer Chamber doth not come in lieu of Error in Parliament according to the Statute of Eliz. William Bridgman al' Versus Rowland Holt al' A Writ of Error and Petition in Parliament The Case below was thus William Bridgman brings an Assize for the Office of chief Clerk for inrolling of Pleas in the Court of King's Bench and the Plaintiff declares that the Office of chief Clerk for inrolling of Pleas in the Court of King's Bench was time out of mind granted and grantable by the Kings and Queens of this Realm and that King Charles the Second by Letters Patents under the Great Seal of England Dated the Second of June in the Five and twentieth Year of his Reign after a Recital that Robert Henley and Samuel Wightwick were duly admitted to this Office for their Lives granted this Office upon the Petition of Eliott to Silas Titus so soon as it should become void and that Wightwick was dead and Titus had surrendred his Patent did in consideration of Service done by the Earl of Arlington grant this Office to the Plaintiff and his Heirs for the Lives of the Earl of Arlington Duke of Grafton and Dutchess of Grafton and the longer liver of them from and after the Death Forfeiture or Surrender of Sir Robert Henley and that Sir Robert Henly was dead and that thereupon the Plaintiff became seized and was seized of the Office till the Defendants did disseize him c. The Defendants pleaded that they did not wrong or disseize the Plaintiff Upon the Trial of this General Issue at the Bar of the King's-Bench before the three puisne Judges the Chief Justice then sitting near the Defendant's Counsel upon a Chair uncovered the Plaintiff gave in Evidence the Letters Patents of 2 June 25 Car. 2. Then it was proposed by the Counsel for the Defendant That they would prove their Allegation that the Office was anciently granted by the Kings and Queens of England as was declared but no Evidence was given besides this Patent of Car. 2. Then the Counsel for the Defendant waving the just Exception which they might have taken to the Plaintiff's Grant as to him and his Heirs which ought not to be of such an Office for that by that means it might come to an Infant They insisted upon the meer right of Granting the said Office viz. that it was not grantable by the Crown but was an Office belonging to the Chief Justice of the King's Bench and grantable by him Then to prove this it was shewn That this Officer is to Inroll Pleas between Party and Party only and had nothing to do with any Pleas of the Crown or Criminal Matters that all the Rolls and Records in this Office were in the Custody of the Chief Justice that all the Writs to certifie or remove the Records in this Clerk's Office are directed to the Chief Justice and from the nature of the Imployment 't was insisted that in truth he was but the Chief Justices Clerk and that consequently the same must be granted by the Chief Justice And for further proof it was shown by the Records of the Court that for the space of Two hundred thirty five years past this Office when void had been granted by the Chief Justice and enjoy'd accordingly under such Grants In Trin. 36 Hen. 6. Rot. 36. inter placita Reg. Anno Dom. 1458. It is inrolled thus Be it remembred that the Tenth of July this Term in the Court of our Lord the King at Westminster came William Sond chief Clerk of our Lord the King for inrolling Pleas before the King himself in his proper Person and in the same Court of his Free-will did surrender his said Office into the hands of Sir John Fortescue Kt. Chief Justice of that Court to whom of right it doth belong to grant that Office to whomsoever he pleaseth whensoever that Office shall be void during the time that the said Sir John Fortescue shall be Chief Justice and that Office doth resign and relinquish to the use of William Brome and the said Chief Justice doth accept the said Surrender and doth the same day grant the said Office to the said William Brome who is presently admitted into the said Office for his Life and sworn accordingly Mich. 1. Edw. 4. Rot. 51. Upon Brome's Surrender to Sir John Markham then Chief Justice the Chief Justice grants it to Mr. Sonde who is admitted for Life and sworn Mich. 8 Edw. 4. Rot. 26. 1467. Upon the Surrender of William Sonde to the said Sir John Markham then Chief Justice he grants it to Reginald Sonde who is admitted and sworn Reginald Sonde enjoyed this Office till the time of Henry the Seventh and then Bray came in and was Clerk till the 13 H. 7. and then came in Roper Hill 9 Hon. 8. Rot. 3. Anno 1518. Upon the Surrender of this place to Sir John Fineux Chief Justice by John Roper the Chief Justice grants the Office to Sir John Roper and William Roper who are admitted for their Lives and sworn Hill 1 2 Edw. 6. Anno 1547. Upon the Surrender of William Roper Sir John being then dead to Sir Richard Lister then Chief Justice he grants the Office to William Roper and Rute Heywood and they are admitted and sworn Hill 15 Eliz. 1573. Upon the Surrender of William Roper Heywood being dead to Sir Robert Catlin then Chief Justice he granted this Office to John Roper and Thomas Roper for their Lives and they are admitted and sworn Mich. 14 Jac. 1 Rot. 2. Anno 1616. Upon the Surrender of John Roper Thomas being dead to Sir Henry Mountagne then Chief Justice he grants the Office to Robert Heath and Robert Shute for their Lives who are admitted and sworn thereupon Hill 18 Jac. 1. 1620. Shute being dead upon Sir Robert Heath's Surrender to Sir James Leigh then Chief Justice he grants the Office to Sir Robert Heath and George Paul for their Lives and they are sworn and admitted in Court Mich. 5 Car. 1. Upon the Surrender of Sir Robert Heath and Sir George Paul to Sir Nicholas Hide then Chief Justice he grants it to Robert Henley and Samuel Wightwick for their Lives and they are admitted and sworn Trin. 1654. Upon Wightwick's Surrender to H. Roll then Chief Justice Henly being then under Sequestration the Chief Justice grants it to Sam. Wightwick and to Robert Henly Junior for their Lives and they are admitted and sworn Mich. 12 Car. 2. Upon the Surrender of Samuel Wightwick and Robert Henly to Sir Robert Foster then Chief Justice he grants it to Henly and Wightwick for their Lives and they are sworn Wightwick died soon after and Sir Robert Henly enjoy'd it under that Grant 32 years And it was observed on behalf of the Defendant That in all these Records produced and read in Court after the mention of the Surrender to the Chief Justice there are these words To
receive the Allegations and Matters given in Evidence for the Plaintiff as sufficient to maintain his Title whereas they were given in Evidence and considered and if it be meant as a sufficient Evidence to controul and over-rule all other that doth not belong to the Court in Trials to determine unless referred to them upon demurrer to Evidence but is the proper business of the Jury and if the Party be aggrieved the Remedy is an Attaint Nor can it be pretended that the Defendants Evidence was admitted to over-rule the Record produced because no Objection was made to the Defendants Evidence at the Trial and the same was all given before the Record of 15 Ed. 3. was produced and consequently the Jury must consider the force of it for Evidence on both sides being given by the Law of England the Decision of the Right belongs to the Jury and the Act of Edw. 3. being repealed 't is no Matter of Law but the most which could be made of it was that it was Evidence which must be left to the Jury together with the Defendants Evidence But no Bill of Exception will lye in such a Case by the Statute when the Evidence given is admitted as Evidence and left to a Jury and where no Opposition was made to the Defendants Evidence as here in this Case and therefore in this Case a Bill of Exception could not be warrantable because the Plaintiff's Evidence was not refused or over-ruled nor was the Defendant's Evidence fit to be rejected or so much as opposed by the Plaintiff And as to the Allegations made by the Counsel and not proved those never could be an Exception And for these and other Reasons the Judges refused to Seal their Bill Upon this a Writ of Error is brought and a Petition was exhibited to the Lords Spiritual and Temporal in Parliament assembled in the Name of the Lady Isabella Dutchess of Grafton and William Bridgman her Trustee showing that King Charles the Second granted the Office in question to W. B. for the Lives of Henry Earl of Arlington Henry Duke of Grafton and of the Petitioner the Lady Isabella in Trust for the Duke his Executors and Administrators to commence after the Death of Sir Robert Henly that upon the death of Sir Robert Henly the Petitioner by virtue of the said Grant was well intituled to the said Office but was interrupted in receiving the Profits by Rowland Holt Esq Brother to the Lord Chief Justice Holt and by Edward Coleman Gent. who pretended to be admitted thereto by some Grant from the Chief Justice that thereupon an Assize was brought for the said Office which came to Trial and the Petitioners Counsel insisted upon an Act of Parliament proving the King to have the Right of granting the said Office which the Judges would not admit to be sufficient to prove the King's Right to grant the same That the Petitioners Counsel did thereupon pray the benefit of a Bill therein to be allowed and sealed by the Judges according to Law And the Petitioner's Counsel relying upon the said Act of Parliament as sufficient proof of the King 's Right duly tendred a Bill of Exceptions before Judgment in the Assize which the Judges upon the Trial said they would Seal yet when tendred to them in Court before Judgment would not Seal the same Thereupon Judgment was entred against the Petitioners Title in the Assize by default of the Judges not allowing and sealing the said Bill according to the Duty of their Office by Law whereby they are hindred from making the Matter of the said Bill part of the Record of the said Judgment now brought and depending before your Lordships upon a Writ of Error in Parliament for reversing the said Judgment in the Assize and so are precluded from having the full benefit of the Law by the said Writ of Error to examine reverse and annul the said Judgment Wherefore the Petitioners prayed that their Lordships would be pleased to order the said Judges or some of them to Seal the said Bill of Exceptions to the end the said Case might as by Law it ought come intirely before their Lordships for Judgment c. Upon reading this Petition 't was ordered that the Lord Chief Justice and the rest of the Judges of the Court of King's Bench should have Copies of the Petition and put in their Answer thereunto in Writing on ..... next At the Day appointed there was deliver'd an Answer in these or the like words The Answer of William Dolben William Gregory and Giles Eyre Knights three of their Majesties Justices assigned to hold Pleas in their Court of King's Bench at Westminster to the Petition of the most noble Isabella Dutchess of Grafton and William Bridgman exhibited by them to your Lordships THese Respondents by Protestation not owning or allowing any of the Matters of the Petition to be true as they are therein alledged and saving to themselves the benefit of all the several Statutes herein after mentioned and all the Right they have as Members of the Body of the Commons of England to defend themselves upon any Trial that may be brought against them for any thing done contrary to their Duty as Judges according to the due Course of the Common Law which Right they hold themselves obliged to insist upon in answer to the said Petition think themselves bound to shew and offer to your Lordships consideration That the Petition is a Complaint against them for refusing to Seal a pretended Bill of Exceptions contrary to a Statute in that behalf as the Petition pretends without setting forth the tenour of the said Statute or what that pretended Bill was whereas that Statute is the Statute of Westminster 2. cap. 31. and doth enact That if any impleaded before any Justices doth offer an Exception and pray the Justices to allow the same and they refuse so to do the Party offering the Exception is thereby to write it and pray the Justices to Seal it which they or one of them are thereby enjoyned to do So that if the pretended Bill was duly tendred to these Respondents and was such as they were bound to Seal these Respondents are answerable only for it by the Course of the Common Law in an Action to be brought on that Statute which ought to be tried by a Jury of Twelve honest and lawful Men of England by the Course of the Common Law and not in any other manner And the Respondents further shew and humbly offer to your Lordships consideration That the Petition is a Complaint in the nature of an Original Suit charging those Respondents with a Crime of a very high Nature in acting contrary to the Duty of their Office and so altogether improper for your Lordships Examination or Consideration not being any more triable by your Lordships then every Information or Action for breach of any Statute Law is all which Matters are by the Common Law and Justice of the Land of Common Right to be
be true and duly tendered then this Writ and if it be returned quod non ita est then an Action for a false return and thereupon the surmise will be tried and if found to be so Damages and upon such a Recovery a peremptory Writ Commanding the same that the Law is thus seems plain tho' no precedent can be shewn of such a Writ 't is only for this Reason because no Judge did ever refuse to Seal a Bill of Exceptions and none was ever refused because none was ever tendred like to this so artificial and groundless But that such Actions lie upon this Statute were Cited Regist 174. Nat. Br. 10. and they are called Attachments and Damages shall be to the Party and a Fine to the King so it is in all Cases of Statute Laws which do either prohibit or Command the doing of a thing for the advantage of any person such person if injured by a disobedience to that Law is intitled to an Action tho' the Statute doth not in express words give one 2 Inst 55.74.118.131 and the same holds in judicial proceedings the Case of the Marshalseas 10 Rep. 75. 4 Edw. 4.37 and the same Reason warrants the Action for a Scandal ' Magnat ' But perhaps 't will be said that tho' an Action lies for a disobedience to this Writ yet the Writ not being returnable no Action lies for a false return and consequently no peremptory Writ and by consequence there 's no adequate remedy in case of an unjust Refusal but to this it may be answered That the Writ being Conditional 't is a good Answer to it that the Fact was not as is surmised and that return will justifie the Refusal And certainly such return may be made and if not when the first Writ is proved to be true in all its Suggestions by Judgment in an Action for not obeying it the same Reason will warrant a peremptory Writ But whether this be thus or not it only argues an imperfection in the Law proper for the notice of the Legislature and will not justifie the method of proceeding now attempted here in this place It hath been Objected That such Proceedings are not like to be successful because Judges still are to try those matters but these are Reflections not Arguments and our Constitution is founded on a Notion that parity of Condition is the best Qualification of a trier and here must be a Jury to try the Fact and they are subject to an Attaint if their Verdict contradict the Evidence And no direction of a Judge can excuse them for if it be a point of Law they are not oblig'd to find a special Verdict but may find a general one upon their own peril of an Attaint Then Either this is designed as a Criminal proceeding against the Judges in order to Punishment or as a Civil proceeding for to gain Damages to the Party or else neither one nor the other but to have an Order Commanding the thing to be done which if refused then to have them compelled by Imprisonment quousque c. neither of the first are pretended and the last is not a Warrantble method when the Law hath prescribed a Writ in Chancery and that 's not prosecuted Here cannot be tried the particular requisites to ground such an Order as they desire as whether the Evidence or Exception as stated was offered at the Trial or if offered whether 't was over-ruled nor whether the matter offered were believed for if not believed it makes no Evidence and so can raise no point in Law There can be no Jury impanelled to try this nor can an Issue be directed hence for the trial of it By this means the Judges lose the benefit of that legal Trial by a Jury of their Peers which is their fence and protection against Power Art or Surprize the best for indifference and discovery of Truth The Institution of the Law is cautions and wise in its provision for both Challenges are admitted below 't is derogatory to the Honour of this Court to suppose it necessary here but to have it in Westminster-Hall is however reckoned a Commoner's priviledge and Birth-right there the Law is determined by one and the Fact is ascertained by another here both are in the same hands Not that any Jealousie can be supposed of mischief by it in this House but the practice of it now may give president to future Reigns and Ages in which there may be danger of a partiality Below there are by the Law appointed and provided particular Terms and days for doing Justice and they are certain the distances between them are known according to the nature of the Suit which capacitates the parties concerned their Agents and Witnesses to be ready and there can be no surprize It must not be presumed That this House may err but if any Error be possible 't is impossible for the Judges to be relieved for these Reasons in respect of the Court for no Address can be made in such case but to the same persons who did the wrong which is always with some prejudice or disadvantage because the party Erring is to Judge if he himself hath Erred Then the Proceedings here being in English and Summary it cannot well be made appear what was the proof in the first instance no Record being kept thereof Then suppose Evidence be allowed which is none the person against whom the same is given is remediless these Evils may happen in the repeating of this practise in the next Reign tho' they cannot in the present Then this method is not only against the general tenor and frame of the Common-Law but against divers Acts of Parliament and Declarations of this House Magna Charta 9 Hen. 3. cap. 29. is express per judicium parium vel per legem terre now the latter only refers to such cases which are not Triable per jud ' par ' besides to make it the lex terre there must be Ancient and continual usage 22 Edw. 3. numb 30. shews that no new practice can make a Law By 25 Ed. 3. cap. 4. 't is Enacted That no Man shall be taken by Petition or Suggestion to the King or to his Counsel without Presentment or by process or Writ Original at Common-Law and that none shall be put out of his Franchise or Freehold but by due course of Law before used here the one explains the other by Writ or due course of Law are taken for the same thing and both used in contradistinction to Petition the 28 Ed. 3. cap. 3. is the same Then the 42 Edw. 3. cap. 3. 't is by due process and Original Writ according to the Old Law of the Land the 1 Rich. 2. numb 87. Cott. 162. no Suit to be determined before the Lords or before the Counsel but before the Justices only But the 4 Hen. 4. cap. 23. is fuller it recites That in Pleas as well real as personal in the King's Courts the parties be made to come
Denbigh and Montgomery leaving three Daughters and Coheirs Mary Penelope and Susan Susan married Sidney Godolphin one of the present Appellants In July 1674. Mary and Penelope in consideration of 4000 l. paid to the said Mary by Richard Carew Esq and in consideration of a Marriage to be had and which was afterwards had between Penelope and the said Richard Carew by Lease and Release convey all those their two Parts of the said Lands in Denbigh Salop and Montgomery to Trustees and their Heirs to the use of Richard Carew for Life then to Penelope for Life for her Jointure then to the said Trustees and their Heirs during the Lives of Richard and Penelope to preserve contingent Remainders then to the first and other Sons of Richard and Penelope in Tail-Male successively And in default of Issue-Male to the Daughters of Richard and Penelope in Tail And in default of such Issue as to one Moiety of the said two Parts to the first and other Sons of the said Penelope by any other Husband in Tail the Remainder of all and singular the Premisses to the said Richard Carew and his Heirs for ever subject to this Proviso That if it should happen that no Issue of the said Richard upon the Body of the said Penelope should be living at the decease of the Survivor of them and the Heirs of the said Penelope should within Twelve Months after the decease of the Survivor of the said Richard and Penelope dying without Issue as aforesaid pay to the Heirs or Assigns of the said Richard Carew the Sum of 4000 l. that then the Remainder in Fee-simple so limited to the said Richard Carew and his Heirs should cease and that then and from thenceforth the Premisses should remain to the use of the right Heirs of the said Penelope for ever After this Mary intermarried with the Appellant Sir Evan Lloyd and a Partition was made of the Premisses and the same had been enjoyed accordingly ever since and Mr. Carew and his Lady levied a Fine to Mr. Godolphin and his Lady of his part who did thereupon by their Deed dated 23 Sept. 1676. covenant to levy a Fine of Mr. Carew's two Parts to such uses as he and his Lady should limit and appoint but have not yet levied the said Fine Richard Carew and Penelope his Wife to avoid all Controversies that might happen whereby the Estate of the said Richard Carew or his Heirs might be question'd or incumbred by the Heirs of Penelope and to the End to extinguish and destroy and barr all such Estate Right Title Equitable or other Interest as the said Penelope then had or her Issue and Heirs might have or claim to the same by any Power Settlement or Condition on payment of 4000 l. or otherwise to the Heirs of Richard Carew by the Heirs of the said Penelope and for the settling of the same on the said Richard Carew and his Heirs did in Michaelmas Term 1681. levy a Fine of the Share and Part allotted to them and by Deed of 10 Decemb. 1681. declare that the said Fine should be to the use of the said Richard for Life Remainder to Penelope for Life the Remainder to the said Richard Carew his Heirs and Assigns for ever And do further declare That the Fine agreed to be levied by the Appellants Sidney Godolphin and Susan his Wife by their Deed dated the 23 Sept. 1676. should be to the same uses and then direct the Trustees by the first Settlement to convey to those uses Penelope died without Issue in 1690. Richard Carew made his Will in Aug. 1691. and devised the said Lands to Sir John Carew Baronet his Brother subject to pay all his Debts and Legacies and made Sir John Carew his Executor In Decemb. 1691. Richard Carew died without Issue and Sir John Carew entred and was seized and possessed of the Premisses and paid 4855 l. for the Debts of Richard Carew Sir John Carew died and the Respondent Sir Richard Carew an Infant is his Son Heir and Executor The Appellants Mary and Susan claiming the Lands as Heirs to Penelope by virtue of the said Proviso in the first Settlement upon payment of the 4000 l. exhibited their Bill in Chancery to compel the Trustees to convey the Estate to them upon such payment Upon hearing of this Cause on Bill and Answer the Court ordered a State of the Case to be drawn which was as above and afterwards the Court assisted by the Chief Justice of the Common Pleas and Mr. Justice Rooksby seeing no Cause to relieve the Plaintiffs dismissed their Bill And now it was argued on behalf of the Appellants That such Dismission ought to be set aside and amongst other things it was insisted on in favour of the Appeal that this Proviso was not void that it was within the reason of the Contingent Limitations allowed by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk and there were quoted several Paragraphs in the Argument made by the said Lord Chancellor as that future Interests springing Trusts or Trusts Executory Remainders that are to emerge or arise upon Contingency are quite out of the Rules and Reasons of Perpetuities nay out of the Reason upon which the Policy of the Law is founded in those Cases especially if they be not of remote or long Consideration but such as by a natural and easie Interpretation will speedily wear out and so things come to the right Channel again That tho' there can be no Remainders limited after a Fee-simple yet there may be a Contingent Fee-simple arise out of the first Fee that the ultimum quod sit or the utmost Limitation of a Fee upon a Fee is not yet plainly determined that tho' it be impossible to limit a Remainder of a Fee upon a Fee yet 't is not impossible to limit a Contingent Fee upon a Fee that no Conveyance is ever to be set aside in Chancery where it can be supported by a reasonable Construction especially where 't is a Family Settlement Then these Paragraphs were applied and further urged That there could not in reason be any difference between a Contingency to happen during Life or Lives or within one year afterwards that the true reason of such Opinions which allowed them if happening within the time of the Parties lives or upon their deceases was because no Inconvenience could be apprehended thereby and the same Reason will hold to one year afterwards and the true Rule is to fix Limits and Boundaries to such Limitations when so made as that they prove Inconvenient and not otherwise That this Limitation upon this Contingency happening was the considerate Intention of the Family the Circumstances whereof required Consideration and this Settlement was the Result of it and made by good Advice That the Fine could not barr the Benefit of this Proviso for that the same never was nor ever could be in Penelope who levied the Fine As to the Pretence That if the
not hold there is no Breach of any Condition in Law nor any Corruption of the Blood for these Reasons Felony without Clergy forfeits Honours whereas other Inheritances tho' Fee-simple are lost but for a year and a day and so are Freeholds for Lives which is another clear Instance that Honours are not governed by the Rules of Law It is pressed as a known Law that Honours are grantable for Lives a Point of greater Consequence than the Thing in debate It 's not a fair way of arguing nor to be allowed of As for the Precedents that are Selden 730. is expresly against them for it saith that the Honour of Baronages were in Abbots only in right of their Abbies not inherent in them So that 't is plainly inferred that other Honours are Personal Dignities The Lord Delaware's Case 11 Rep. makes nothing for them for it doth not follow that because he could not Surrender that which was not in him therefore he might Surrender that which was in him As to the other Precedents he gave these three Reasons 1. They were bare Surrenders no Fines 2. All those were made by Persons that had advantage by them having greater Honours granted unto them or such whose Interest was beyond the Seas and therefore were willing to quit their Dependencies here upon good Considerations that pleased them Et volenti non sit Injuria 3. All these Surrenders passed sub silentio and never admitted of any Dispute But as for the sole melancholy Precedent of Roger Stafford 1638. which was condemned in Parliament 1640. 't is to be observed that Resolution can't be condemned because of the Times for the Affront to the Lords in taking such a Fine was in 1638. and when could it be more properly remedied then in 1640. except it be expected there were a Prophetical Spirit of Judgment against a thing not in being there were 94 Lords present and the Vote was Nemine Contradicente which gives it as great an Authority as any Resolution that ever was The King's Counsel were not heard in the Case of Ship-money nor Knighthood-money where they had more right to claim to be heard than in this Case To conclude a Fine is a Judgment in the Common Pleas and your Lordships Honours are not triable in that Court below in Westminster-hall but if this Fine be allowable they must be triable there as well as other Inheritances And as to what has been said That some of your Lordships sit here by Remainders and they are in danger if Honours be not allowed to be intailed it 's denied and if they be intailed it 's not of the same nature with other Inheritances neither doth any Lord sit here by Title of a Remainder but by Virtue of a new Grant in the same Patent 'T was afterwards declared That the Lords Spiritual and Temporal in Parliament assembled upon a very long Debate and having heard his Majesty's Attorney General are unanimously of Opinion and do resolve and adjudge that no fine levied or at any time hereafter to be levied to the King can bar a Peer's Title of Honour or the Right of any Person claiming such Title under him that levied or shall levie such Fine Duval versus Price WRit of Error on a Judgment in the Court of Exchequer affirmed on a Writ of Error before the Keeper of the Great Seal c. in an Action of the Case for Slander The Writ was to this Effect Gullelmus Maria c. Thes Baronibus de Scaccario suo salutem quia in recordo processu ac etiam in redditione judicij loquelae quae fuit in Cur ' nostra de Scaccar ' coram Baronibus nostris praed ' de Scaccar ' nostro praed ' per Billam inter Edward ' Price Arm ' debitor ' nostr ' Johan ' Duvall Arm ' de quadam transgression ' super casum eidem Edwardo per praefat ' Johannem illat ' super quo judicium in Curia nostra de Scaccar ' reddit ' fuit pro praefat ' Edwardo versus dict' Johann ' qua quidem record ' process ' causa Erroris intervenient ' in Camera Consilij juxta Scaccar ' vocat ' le Councel Chamber coram Domino Custod ' Magni Sigilli Angliae vobis praefat ' Thes venire facimus jud ' inde versus praefat ' Johann ' coram c. affirmatum est quia in affirmatione judicij praed ' versus praed ' Johannem coram c. Error ' intervenit manifestus ad grave dampn ' ipsius Johannis sicut ex quaerela sua accepimus quos Error ' si quis fuerit modo debito Corrigi eidem Johanni plenam Celarem justitiam fieri volentes in hac parte vobis Mandamus quod si judicium coram praefat ' c. affirmatum est tunc record ' process ' tam judicii quam affirmation ' praed ' cum omnibus ea tangentibus quae coram vobis jam resident ' ut dicitur nobis in Parliament ' nostro viz. 17 die Septembris prox ' futur ' distincte aperte mittatis hoc Breve ut inspectis record ' processu praedict ' ulterius inde de assensu Dominor ' Spiritualium Temporalium in eodem Parliamento Existent ' pro Errore illo Corrigend ' fieri faciamus quod de jure secundum legem consuetudinem Regni nostri Anglie fuerit faciend ' Teste nobis ipsis apud Westm ' 8 Maii Anno 6. Record ' Process ' de quibus in Brevi de Errore huic Schedule annex ' specificat ' fit mentio sequitur in haec verba Placita coram Baron ' de Scaccar ' c. Midd ' Memorand ' quod alias scilicet c. And by the Bill Price complains of Duvall praesent ' hic in Cur ' eodem die de placito transgr ' super casum pro eo viz. quod cum he was a good Subject and free from all Suspicion of Treason and was a Justice of Peace in Radnor and Montgomery-shire and well performed his Duty and well-affected to the King and Queens Government and ready to oppose all their Enemies c. the Defendant maliciously designing to prejudice the Plaintiff and to bring him into the Displeasure of his Prince c. did tali die anno apud Westm ' in Com' Midd ' habens colloquium of the said Plaintiff say these English words of him He meaning the Plaintiff is disaffected to the Government the Government of the King and Queen meaning and having other Discourse of the Plaintiff and of the Government of the King and Queen did say of the said Plaintiff these other words viz. He meaning the Plaintiff is disaffected to the Government the said Government of the King and Queen meaning By pretext of which said words he was injured in his Credit and fell into the Displeasure of their Majesties and his Office aforesaid by reason thereof did totally lose and remain'd hitherto daily
it hath been time out of Mind But here 's a new Constitution and the Rule holds so in Commissions of Oyer and Terminer if the direction be so as is the Case in Plowden 384. the Earl of Leicester's Case If a Mayor and three Aldermen have Conusance of Pleas what a Mayor and two does is null and void And if there be no direction in particular for the number the Law requires the majority So that here was no Councel because but five of them present The Councel have not the power but the Governour with the Advice and Assent of the Councel and so ought their pleading to have been according to their Case That if a Man justifies as a Judge to excuse him from an Action he must set forth his Authority and the Cause must appear to be within his Conusance and so are multitudes of Cases 3 Cro. 130. 2 Leon. pl. 43. and 1 Cro. 153 557 579 593. 12 Rep. 23 25. Mod. Rep. 119. But taking it as a Councel neither Person nor Thing are within its Jurisdiction for if their Doctrine be true that by being Governour he is so absolute as to be subject only to the King then what Sir John Witham did being while and as Deputy Governour which is the true Governour to all purposes in absentia of the other is not examinable by a Successor But admitting for the present that by the Law one Magistrate may be punishable before his Successor for Miscarriages which were committed colore Officii yet here are no such Miscarriages sufficiently alledged to be charged on him 1. There 's no pretence of an Oath nor Circumstances shewing a reasonable Cause of Suspicion one of which ought to have been 2. In pleading no Allegation is sufficient if it be so general as the Party opponent can't in reason be supposed capable of making an Answer to it and that is the true Cause why our Law requires Certainty He did male arbitrarie execute the Office to the Oppression of the King's Subjects No Man living can defend himself on so general a Charge as this is for if Issue had been taken thereon all the Acts of his Government had been examinable which the Law never allows Then the Particulars are as general 1. That he did not take the usual Oath and it doth not appear what Oath or if any was requirable of a Deputy Governour nor who was to administer it so that non constat whether 't was his Fault or the Governours besides that 's no cause of Imprisonment for any thing which appears in the Plea 2. Assuming illegally the Title of Lieutanant Governour that is so trivial as it needs no Answer for Deputy Governour and Lieutenant Governour are all one locum tenens is a Deputy è contra 3. Altering of Orders at his Chamber ad libitum which were made in Court not said that there was any such Court or what Orders or where made non tantum without etiam or verum etiam is not a sufficient positive Allegation not said that he was guilty but only charged and not said how charged whether with or without Oath in writing or by parol nor said to be in any such manner as that the Councel ought or might receive it tho' Oath be not necessary to be mentioned in the Commitment yet it ought to be alledged in pleading because 't is necessary to warrant the Commitment as was held in the Lord Yarmouth's Case in B.R. It could not be to secure his answering the same for not so expressed and 't is not said that Sureties were demanded or denied or that he had notice of the Charge and surely this was bailable As to the Query If conusable here 't was argued That they had not pleaded to the Jur ' nor any Matter to oust the Court of its Jur ' If they intended by this Plea to have done that they should have given Jur ' to some other Court in some other place but this is not done for if an Injury 't is relievable somewhere in the King's Dominions and whether it be so or not is examinable somewhere Now here is a Wrong complain'd of as done by one English-man to another English-man and a Jur ' attacht in the King's Bench both of Cause and Person by the Bill filed and his Defence to it besides Jur ' could not be examined in the Exchequer Chamber because both the Statute and the Writ of Error expresly provide against it and. this Writ of Error is founded upon that Affirmance and therefore questionable whether that could be insisted on here But supposing it might 't was argued that the Action lies for that 't is a transitory Action and follows the Person wheresoever he comes under the power of the Common Law Process and that a Man may as well be sued in England for a Trespass done beyond Sea as in Barbadoes or the like place as for a Debt arising there by Specialty or other Contract that no Body but Prynne ever denied it and he did so only in case of Bonds dated there That many Actions have been maintained and tried here for Facts done in the Indies notwithstanding special Justifications to them and the Trials have been where the Actions were laid There was quoted Dowdale's Case 6 Rep. 47 48. and 7 Rep. 27. and if otherwise there would be a failure of Justice in the King's Dominions 32 Hen. 6.25 vide Jackson and Crispe's Case Sid. 462. 2 Keeble 391 397. 'T was then argued That whatsoever question might be made about the Trial of the Issue if one had been joyned yet now Demurrer being to the Plea if that Plea be naught then the Plaintiff is to have Judgment upon his Declaration and that is all right It was further said That the Justification of such a tort or wrong ought to be according to the Common Law of England for that Barbadoes is under the same Law as England and if 't were not upon his pleading it must be intended to be so and tho' they should be intended different yet the Defendant in the Action was obliged to the same Rules of Pleading for tho' the Matter may justifie him for an Act done there which would not justifie him for the same Act done here yet he must shew that he hath pursued the Rules of Law in that place or in case of no positive Laws the Rules of Natural Equity for either the Common Law or new instituted Laws or natural Equity must be the Rule in those places 'T was agreed That according to Calvin's Case 7 Rep. 17. upon the Conquest of an Infidel Country all the old Laws are abrogated ex instanti and the King imposes what he pleases and in case of the Conquest of a Christian Country he may change them at pleasure and appoint such as he thinks fit tho' Coke quotes no Authority for it yet 't was agreed that this might be consonant to reason But 't was denied that Barbadoes was a Conquest 't was
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
Visitor not appearing upon Summons refusing to be examined was an Offence and contrary to what the Statutes require He is to inspect the state of the Colledge and each Member's particular behaviour and now when the Visitor comes to make such an Inquisition and the Head or the Members withdraw themselves and will not appear to be examined if this be not a good Cause of Deprivation nothing can be for that nothing else can ever be inquired into As for that Statute which refers to the Causes for which a Rector may be deprived it doth not relate to a Deprivation in a Visitation but shews the manner how the Colledge is to proceed if he be guilty of such Offences they may complain at any time to the Visitor if he wasts the Revenues or behave himself scandalously and upon request will not resign and they may Article against him out of a Visitation but when he comes to execute his Power in his quinquennial Visitation he is not confined to proceed only upon the Information of the Fellows but is to inquire into all the Affairs of the Colledge and may proceed to deprivation as he sees Cause Now Contumacy is a causa of a Forfeiture of his Office which is subject to the power of the Visitor by the original Rules of the Foundation and to evade or contumaciously to refuse or deny a Submission to that Power is an Offence against the Duty of his Place and consequently a just Cause of Deprivation so that upon the whole Matter 't was inferred and urged that the Bishop hath a Visitatorial Power vested in him to deprive the Rector without consent of the four Senior Fellows And 2. that the Justice of the Sentence is not examinable in Westminster-hall And 3. that if it were and the Cause necessary to be shewn here was a good one an affronting the very Power of Visiting and fetting up for Independency contrary to the Will of the Founder and therefore it was prayed that the Judgment should be reversed On the other side 't was argued by the Counsel with the Judgment That this Sentence was void that 't was a meer Nullity that this proceeding had no Authority to warrant it and that it being done without Authority 't is as if done by a meer Stranger and whether it be such an Act or not is examinable at Law for that the Power of a Visitor must be considered as a meer Authority or a Trust and it is one or rather both and then either way 't is examinable for every Authority or Trust hath or ought to have some Foundation to warrant it and if that Foundation which warrants it hath limited any Rules or Directions by which it is to be executed then those Directions ought to be pursued and if they are not 't is no Execution of the Authority given or Trust reposed and if not 't is a void Act a meer Nullity and consequently 't is that of which every Man may take notice and advantage Then 't was said That it must be agreed that of a void thing all Persons may take advantage and contest it in a Collateral Action and that altho' it have the form and semblance of a Judicial Proceeding and for this was cited the Case of the Marshalsea's 10 Rep. 76. as a full Authority the Resolution was That when a Court hath no Jurisdiction of a Cause there all the proceeding is coram non judice and Actions lye against any Person pretending to do an Act by colour of such Precept or Process without any regard to its being a Precept or Process and therefore the Rule qui jussu judicis aliquid fecerit non videtur dolo malo fecisse quia parere necesse est will not hold where there is no judex for 't is not of necessity to obey him who is not Judge of the Cause and therefore the Rule on the other side is true judicium a non suo judice datum nullius est momenti and so was it held in the Case of Bowser and Collins 22 Edw. 4.33 per Pigot and 19 Edw. 4.8 And therefore if the Court of Common Bench held Plea of an Appeal of Felony 't is all void but it must be owned that the meer erroneous procedure of a Court which hath a General Jurisdiction of the Subject Matter is not examinable in a Collateral Action whether upon true Grounds or not and yet if it be a limited Jurisdiction and those limits are not observed even that is coram non judice and holds with respect to Courts held by Authority of Law which are much stronger then the Cases of Power created or given by a private Person A Sheriff is bound by Law to hold his turn within a Month after Michaelmas and he holds it after the Month and takes a Presentment at that time if that be removed into the King's Bench the Party shall not answer it but be discharged because the Presentment was void coram non judice for that the Sheriff at that time had no Authority and yet in that Case his Authority and Jurisdiction extended to the Person and Thing The same Law for a Leet unless Custom warrants the contrary and then that Custom must be pursued The Commissioners of Sewers have a limited Authority and if the number of Persons or other Requisites mentioned in their Commission be not pursued what they do which exceeds it is void and yet they have a kind of Legislative Authority so is it in Sir Henry Mildmay's Case 2 Cro. 336. and there they had an Authority both of Thing and Person but did not observe the Rules prescribed in the Gift of that Authority according to the 23 Hen. 8. cap. 5. and no reason could or can be given for that Resolution but that it was a particular limited Authority And then to apply this to the present Case the Sentence in question can no more aggrieve the Defendant then an Order pronounced or made by a non Judex if it be not agreeable to the Power given by the Statutes and this appears further from Davis's Rep. 46. where the same Distinction is allowed Nay in some Cases the Award of a wrong Process is void as if by a Steward of a Mannor Court that a Capias should issue where the same doth not lye but only an Attachment Turville and Tipper's Case Latch 223. A Court of Pypowders hath Jurisdiction of an Action of the Case yet if it holds Plea of Case for Slander 't is all void tho' the words were spoken within the Boundaries of the Fair because the Jurisdiction is limited so that if the Thing the Time the Person or the Process be not regarded according to the Authority given 't is all void and an Advantage may be taken of it by any Body where the Plaintiff Claims or makes his Demand by colour of such Act. 'T was further argued That the Reason given in that Case of Latch is because the Custom which gave him his Authority gave him
yet where it was good at Law and no Cheat or Imposition upon the Party but he meant as he had undertaken to pay this Money and was not deceived in his Expectation as to the Success of the Respondent's Endeavours 't would be hard in Equity to damn such a Security and therefore 't was prayed that the Decree should be affirmed It was replied That Marriages ought to be procured and promoted by the Mediation of Friends and Relations and not of Hirelings that the not vacating such Bonds when questioned in a Court of Equity would be of Evil Example to Executors Trustees Guardians Servants and other People having the Care of Children And therefore 't was prayed that the Decree might be reversed and it was reversed accordingly The Society of the Governour and Assistants London of the new Plantation of Ulster in the Kingdom of Ireland Versus William Lord Bishop of Derry APpeal from a Judgment by the Lords Spiritual and Temporal of Ireland in Parliament assembled upon the Bishop's Petition and Appeal to their Lordships form an Order in the Chancery touching certain Lands in the County and Liberties of London-Derry It sets forth amongst other things after a recital of the Proceedings in Chancery and the Merits of the Cause that the Appellants were advised that no Appeal lyes to the House of Lords in Ireland from the Court of Chancery there but that all Appeals from thence ought to be immediatly to their Lordships here the Supreme Judicature as well for Matters arising in Ireland as in this Kingdom and therefore in the Conclusion prays that an Order might be made for the said Bishop to appear and put in his Answer thereto that the Matter might be heard before their Lordships here when it should be thought fit and that the Petitioners might receive such relief as should be agreeable to their Lordships great Wisdom and Justice c. Upon presenting this Appeal to the Lords here the House appointed Lords Committees to consider the proper method of Appealing from the Decrees made in the Court of Chancery in Ireland and to report c. Then pursuant to an Order made by the Lords Committees and a Letter sent to the Lords Justices of Ireland by Order of the House of Lords here Some Precedents or Cases from Ireland relating to the method of appealing from the Chancery there were brought before the said Committee and reported to the House whereupon the House ordered that both Parties might have Copies of the same Then the Society took Copies and preferred a short Petition to the House setting forth the said matter and that they were ready by their Councel to offer several things in order to their Lordship's receiving and proceeding upon their said Appeal whereupon a day was appointed for the hearing of Councel on both sides with regard to Jurisdiction And It was accordingly argued on behalf of the said Society that the Judgments in Ireland whether in Law or Equity were not to be finally Determined there that Ireland was dependant upon England 't was urged to prove it that our Money was to be Current there that our Laws did oblige them that they were governed secundum leges consuetudines anglicanas Davis 21. in which Book 24. that the Easterlings in England who first made the Money of this Standard and from whose Name comes that of Sterling were the first Founders of the four Principal Cities of Ireland Dublin Waterford Corke and Limrick and the other Maritime Villes in that Country and were the sole Maintainers of Traffick and Commerce there which were all utterly neglected by the Irish These Cities and Villes were under the Protection of King Edgar and Edward the Confessor before the Norman Conquest and these Easterlings in Ancient Record are called Ostmanni and therefore when Hen. 2. Upon the first Conquest after their Apostacy thought fit to People those Cities and Villes with English Colonies drawn from Exeter Bristol and Chester c. he assigned to them a certain proportion of Land next adjoyning to each of those Cities which Portion is called in the Records in Ancient time Cantreda Ostmannorum Davis 25. says further that Ireland is a Member of England Inhabitantes ibidem legibus Angliae subjiciuntur utuntur In the Statute of Faculties 28 Hen. 8. cap. 19. 't is mentioned to be the King's Land of Ireland and that this the King's Land of Ireland is a Member Appendant and rightfully belonging to the Imperial Crown of the Realm of England and united to the same And in the 33 Hen. 8. cap. 1. by which the Stile and Title of King of Ireland was given to Hen. 8. his Heirs and Successors 't is further Enacted that the King shall enjoy this Stile and Title and all other Royal preeminences Prerogatives and Dignities as united and annexed to the Imperial Crown of England Nay It may be compared to a County-Palatine Created by the King of England for Davis 62. speaking of that he says that a County-Palatine hath in it jura regalia which consists in Royal Jurisdiction and Royal Seignory By the first it hath all its High Courts and Officers of Justice which the King hath and by the latter it hath Royal Services and Royal Escheates as the King hath and therefore in some respects 't is separated and disjoyned from the Crown as is Plowd 215. yet 't is subordinate and dependant though it be said that breve Dom ' Regis non Currit there yet the Writ of Error which is the dernier resort and in like manner an Appeal is excepted out of their Charters so is Dyer 321. and 345.34 Hen. 6.42 and it would be excepted if it were not so expressed for to have the ultimate Judgment is that which the King cannot grant for such grant would if allowed alter the fundamental constitution of the Realm So in Ireland which is a Realm of it self as Consisting of many Counties Erroneous Judgments given in the chief place there shall be reversed in the King's Bench in England Davis quotes Bracton lib. 3. tit ' coron ' cap. 8. that Comites Palatini habent regalem jurisdictionem in omnibus Salvo Dominio Regi sicut principi so that by his Opinion they are much the same and no Man will deny but that in all Proceedings in Law or Equity the last resort is to the Parliament of England there it is that the King 's supreme Authority is exercis'd It must not be said to be a Conquered Country for the Earl of Stassord's sake though Coke and Vaughan have affirmed it so But it may be called a Plantation or Colony dependant upon England and to many purposes parcel of it This hath not only the same person for their King but 't is under the Crown and Government of England there must be in all these Cases a Superiority or superintendency over inferiour Dominions for otherwise as Vaughan puts it 401. the Law appointed or permitted to such places might be insensibly changed within it self
in the Negative doth amount to it viz. that he shall continue no longer especially when the Act recites the Mischief to be a Continuance during Life It implies that the Clerkship of the Peace should be never granted for a longer Interest than the Custos had in his Office The 3 and 4 Edw. 6. doth indeed repeal part of the 37 Hen. 8. not by express words but by a very strong Implication by giving the Chancellor a power to nominate the Custos But the Office of Clerk of the Peace is not toucht by that of Edw. 6. and continues as settled by 37 H. 8. which is during the continuance of the Custos Then 't is the new Statute which gives the occasion of the present Dispute and there 's nothing in this Act which can make such an Alteration in the Law as was below contended for The words So long only as he shall well demean himself are not enlarging of his Estate but Restrictive and whensover 't is considered how to make a Grant for Life to be good you must consider the power and capacity of the Grantor and how the thing is capable of being so granted as in Case of Tenant in Tail or Fee and each make a Lease for Life in the latter Case 't is for the Life of the Lessee and in the former for the Life of the Tenant in Tail because of the different Capacities of the Grantors and so the thing it self is considerable here 's an express Statute that saith it shall be only during the continuance of the Custos now that Provision is to be pursued 'T is said that a Grant quam diu se bene gesserit is for Life but the words themselves do not import any such thing 't is indeed a restrictive Condition which the Law imposes upon all Offices for Misbehaviour in any Office if in Fee is a Forfeiture but the chiefest Consideration is if it be an Office that is capable of being granted for life if it be so these words may amount to a Grant for Life as expounded by usage and the nature or capacity of the Office it self but otherwise if the Office be not grantable for Life such words will not give an Estate for Life These words seem only to be an Expression of what the Law always implieth tho' not particularly expressed If it operate any thing it seems only to have reference to the power of the Grantor as a Restirction on him and not as an Enlargement of the Estate of the Grantee especially where by a Law in being there 's an incapacity upon the very Office not to be granted for life Then it was urged that the Statute of 37 H. 8. was not repealed the 3 and 4 Edw. 6. doth not alter this Matter at all and where it did make any Alteration the same is expresly repealed by this last Act in question It is a settled Rule that if there be two Statutes and both consistent and not contradictory the latter can never be said to repeal the former and so is Dr. Foster's Case 11 Rep. 5 6. so it is in Wills Hodgkinson and Wood Cro. Car. 23. This last Act of Will. et Mar. is consistent with the 37 Hâ—n 8. the one says He shall continue during the time that the Custos doth remain such so as he demean himself well the other says He shall enjoy his place so song only as he demeans himself well in it Now take the Office to be by the 37 Hen. 8. only granâ—able to hold during the continuance of the Custos then suppose in the same Act it should be said to hold so long only as he demean himself well where is the inconsistency or contradiction And if none then this last Act doth not Repeal the former as to this Matter And Mr. Fox's Grant is pursuant to the Statute of Hen. 8. and Mr. Harcourt's hath no relation to it Then 't was argued That 't was unreasonable that a Custos should have an Officer under him of anothers choice when himself is responsible for the Records which such Officer is concerned with The primary Intent of this last Act was only to settle the Doubts about the Keepers of the Great Seal not to alter the Estate of the Office of Clerk of the Peace The Offices of the Judges in Westminster-hall determine with the King's Life who grants them tho ' they are granted to hold during good behaviour In this Act the reason of using these words was for Caution to advertise them that Misbehaviour should forfeit their Places If an Alteration of the Law had been intended they would have said for Life so as he demean himself well especially when as was said before he was removable for Misbehaviour by the former Laws in being Wherefore upon the whole Matter it was prayed that the Judgment might be reversed On the other side it was argued with the Judgment That 't is clear and apparent that this Act of W. M. was made not only to satisfie Doubts and prevent Questions about the Office for the Custody of the Great Seal but to settle the manner of naming the Custos and Clerk of the Peace and that 't is in part introductive of a new Law and in part a reviver of the old But the general end was that that Office of Clerk should be filled and executed by a learned able honest Person because it concerns the Administration of Justice He is the King's Attorney in many respects he not only writes the sense of the Justices in their Orders but draws Indictments and upon Traverses he joyns Issue as one qui pro Domino Rege in ea parte sequitur and prays Judgment for the King in many Cases joyns in Demurrer when occasion requires and is in the Sessions the same as the Clerk of the Crown is in the King 's Bench. Now to accomplish this end of having a Person well qualified and to encourage and oblige him to his good Behaviour it requires a Residence in the County it enjoyns that the Person named be able it subjects him to the Jurisdiction of the Justices who have a daily observance of his demeanour it gives them a power to remove him upon a just Complaint which they could not before it frees him from the usual Temptation to Fraud and Corruption by introducing him gratis sine pretio and to provoke his Care and Diligence it gives him a more durable Estate in his Office then he had before when he bought it viz. Freehold an Estate for his Life That it should be so is convenient because then he will be encouraged to endeavour the increase of his Knowledge in that Employment which he may enjoy during Life whereas precarious dependent Interests in Places tempt Men to the contrary That this is an Estate for Life appears from the words of the Act they do direct how long he shall enjoy his Office so long only as he shall behave himself well If the word only had been omitted
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
All their Arguments will hold as well to a Month Week or Days surviving of the Mother as to this of two Years and therefore it must be thus construed to be her Intent that the Devises over should take effect if the Child should not live to an Age of Maturity and Power of Disposition And as to the pretence of the Child's starving in the mean time there neither is nor can be any weight in that for the Interest and Produce of the whole during all that time must remain and be to and for the benefit of the Child Wherefore upon the whole Matter 't was prayed that the Decree should be affirmed and it was affirmed Philip Jermin and Sarah Vxor ejus ' Plaintiffs Versus Mary Orchard Widow Defendant WRit of Error to Reverse a Judgment of Reversal given in the Exchequer Chamber upon a Judgment given in the Kings Bench for the Plaintiffs in an Action of Trespass for the mean Profits after a Recovery in Ejectment and Possession had thereupon The Case was this upon Record The Plaintiffs declare that the Defendant 1 Sept. 1672. their Close c. vi armis c. did break and upon the Possession of the Plaintiff did enter and the Plaintiffs from their Possession did expel and remove and them so being removed and expelled for a long time viz. from the said 1 Sept. 1672. to the time of exhibiting the Bill viz. 6 May 1685. did hold out from the same by which they lost the Prosits thereof c. Et al' Enormia c. The Defendant by Plea takes Issue as to the Force and Issue thereon and as to part of the Trespass pleads the Statute of Limitations and as to the residue of the Trespass pleads that Sir William Portman made a Lease to one Trowbridge for 1000 years and by mesne Assignments derives a Title down to Thomas Nicholas and that he in his Life time by Indenture assigned to the Defendant The Plaintiffs Reply and as to the first part of the Plea viz. of the Statute of Limitations they demur and as to the other part of the Plea they tender a Traverse and deny that Thomas Nicholas did assign the Premisses to the Defendant The Defendant joyns in Demurrer as to the first part of the Plea viz. the Statute of Limitations And as to the other part she takes Issue upon the Traverse which Issue is joyned and a Venire awarded tam ad triand ' the two Issues quam ad inquirend ' de dampnis upon the Demurrer The Jury find that Thomas Nicholas was possessed in manner as the Defendant in her Plea hath alledged and that he did make Seal and as his Deed deliver the Indenture in the Plea mentioned which said Indenture follows in these words and so set forth the whole in which after a Recital of the Lease and a Deducement of the Title down are these words viz. The said Thomas as well for and in consideration of the natural Love and Affection which he beareth to the Defendant his Grand child as for other good Causes and Considerations hath granted assigned and set over and by these Presents doth grant assign and set over unto the said Mary her Executors Administrators and Assigns all the said Cottage Barn and Lands and all and singular other the Premisses herein before recited or mentioned with the Appurtenances to the same belonging or appertaining together with the said recited Lease and all Writings and Evidences touching the Premisses to have and to hold the said Cottage Barn and Premisses and every part thereof with the Appurtenances unto the said Defendant Mary her Executors Administrators and Assigns from and immediately after the Death and Decease of the said Thomas Nicholas party to these presents and Mary his Wife unto the end of the term and for and during all the rest and residne of the said term of 1000 Years which shall be therein to come and unexpired by and under the yearly Rents Covenants c. expressed in the said Original Indenture of Lease Then the Jury leave it to the Court whether the Deed of Assignment be good in Law or not and conclude specially if the Assignment be not good in Law then they find for the Plaintiffs and Assess Damages 50 l. and 40 s. Costs and thereupon c. And now it was argued for the Plaintiff and it was said in the first place That this Case was extraordinary that tho' the Majority of the Judges in Westminster-hall were of Opinion with the Plaintiffs yet they were forced to sue this Writ they had the four Judges of the King 's Bench and the then Mr. Justice Powell and the then Baron Powell concurring with the King 's Bench and the chief Baron Atkins being absent the other Five in the Exchequer-Chamber reversed the Judgment it having been resolved upon the Stat. of Eliz. which erects that Jurisdiction That the Concurrence of six are not necessary to reverse but only that six must be present to make a Court so that here were six to five for the Plaintiff and yet he hath lost it Then it was argued That there had been two Things insisted on below one was the finding of Damages generally and the other was as to the Validity of the Assignment and as to the finding it was said That the Matter of the Force is meer Form and if there had been no non prosequi the same could not make an Error That in C. B. and B. R. the Issue upon the vi armis c. is seldom or never taken notice of no Entry is made of it upon the postea at all unless a wounding or some such other special Matter were mixt with it in the same Issue That 't is held in the Case of Law and King 1 Saund ' 81. If nothing be answered to the vi armis in a special Plea 't is well upon a general Demurrer and the 7 Hen. 6. 13. and 1 Hen. 7.19 are plain That if the Party have the special Matter which he pleads found for him the vi armis shall not be inquired of So if the Defendant have Judgment against him upon Demurrer to the special Matter pleaded by him the vi armis shall never be tried tho' Issue were joyned upon it but the Party shall be fined upon the Capiatur c. without any Inquiry So is the King and Hopper 2 Cro. 599. in a Scire Facias on a Recognizance for the good Behaviour special Matter pleaded held That the Jury need not inquire about the vi armis if such Special Matter be found for the Defendant much more is it so in case it be found for the Plaintiff for there the Act which is found imports it c. and it shall be intended to be vi armis c. and the Book of Hen. 6. is full in it no need of any Inquiry in such Case And in this Point both the Courts having concurred the Counsel for the Defendant did not contest
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