administer to every Member of the Council and Deputy Governor the Oaths of Allegiance and Supremacy, and the Oath of Office; with further Power to the Governor, 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 conveniently 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 Governor to constitute and appoint Deputy Governors in the respective Islands [26] and Plantations, which then were, or should be under his Command; to all and every which respective Governors, the King by these Letters Patent gave Power and Authority to do and execute what should be commanded them by the Governor, according to the Power granted to them 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 Patent, 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 Patent 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 Patent, by a certain Commission under his Hand and Seal, did constitute the Plaintiff, in his Absence, to be his Deputy Governor in the said Islands of Barbadoes, to do and execute the Powers and Authorities granted to the Defendant by the said Letters Patent.
That the first of August following, the Defendant arrived at London in England; that the fourth of May, 35 Car. 2. after the Defendant's 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' præd' in Par' & Ward' prad'.
That after the Return of the Defendant to the Barbadoes, viz. 6 Nov. 35 Car. 2. at a Council 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 Council in the Letters Patent, 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 Governor, 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 Council; upon which it was then and there ordered in Council by the Defendant and Council, 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 [27] Court recommitted, which is the same Assault, Taking and Imprisonment, and Traverses absque hoc, that he was guilty of the Assaulting, Taking or Imprisoning him within the Time last mentioned at London, or elsewhere than in the Isle of Barbadoes, or otherwise, or in other Manner than as before.
Demurrer, &c.—The Plaintiff demurred, and the Defendant joined in Demurrer, and judgment was given for the Plaintiff, and a Venire, awarded tam ad triand' exitum quam ad inquirend' de dampnis, &c. and the Issue was found pro querent' and 6d. Damages, and on the Demurrer 500l. Damages, and Judgment for Damages and Costs amounting in the whole to 590l.
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