Ropers 21 R. 2. doth dispose of the Quarters, and hath other Errors in it; and so have William Bathurst's and Henry South's, which were in 3 H. 4. But from that Time to 26 Car. 2. there's none which do admit it. The four Precedents at the Old Baily were against Popish Priests, and what private politick Reasons or Commands might occasion the Omission, is unknown; and Hampden was not Executed, but his Judgment was upon a Confession, and his Life saved, the Reason of which is also unknown: So that there have been none Executed upon such Erroneous Judgments: And that there are no more Precedents, with the Omission, is a good Argument, that those many which have this Particular in them, are Good and Legal; the constant Current having been this way, proves the same to be the Common Law. And this is the most severe Part of the Punishment, to have his Bowels cut out while alive, and therefore not to be omitted. As to the Earl of Essex's Case in Moore, and Owen's Case in Roll's Rep. the first is only a Report of the Case, and the last a Descant upon the Judgment, but neither do pretend to recite the whole Judgment.
Then to pretend that this Judgment cannot be Executed, is to arraign the Wisdom and Knowledge of all the Judges and King's Counsel in all Reigns: And Tradition saith that Harrison, one of the Regicides, did mount himself, and give the Executioner a Box on the Ear after his Body was opened.
Judgment of Reversal affirmed.—Then 'twas argued, That if it be a necessary Part of the Judgment, and be omitted, it is a fatal Error, and doth undoubtedly in all Cases give a good Reason for the Reversal of such Judgment, as in the Common Case of Debt, where dampna are omitted in the Judgment, tho' for the Advantage of the Defendant, as is Beecher's Case, and Yelv. 107. Besides, if this be legal, then all those Attainders, in which this Particular is inserted, must be illegal; for 'tis impossible that both the Judgments should be right; for either those are more severe than they should be, or this is more remiss. To say that 'tis Discretionary, is to give the Judges a Power, which they themselves have disclaimed; and to Reverse this Reversal, is to tell the Court of King's Bench, that they are not obliged to follow the General Practise of their Predecessors; that they are obliged to no Form in their Judgment for Treason; that nothing but Death, and being drawn to it, are essential; and according to that Doctrine, a Woman might receive the Judgment of Quartering, and a Man might be burnt, and both according to Law. But the Constitution of this Kingdom hath prescribed and fixed Rules and Forms, which the Executive Power is obliged and bound to follow; that as Nothing can be made or construed to be an Offence at the Pleasure of the Court, so no Judgment can be given for any known Offence at Pleasure. But the Law, either Statute or Common, hath established what is an Of-[137]-fence, and what is its Punishment; and there is nothing of Arbitrary Power allowed in respect of either. Wherefore upon the whole it was prayed, that the Reversal might be affirmed, and it was affirmed accordingly.
16 Lds. Jo. 193, and cp. ib. 246, 545, 553.]
Contingent Limitations after a Fee, if allowable, and when. The Proviso.—Appeal from a Decree of Dismission in Chancery. The Case was thus: Rice Tannott died seised in Fee of several Lands in the several Counties of Salop, 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 4000l. 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
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