The Plaintiff, Sir J. Witham, dying, Trin. 2 Will. & Mar. the Judgment was revived by Scire facias brought by Howel, Gray and Chaplain, Executors of Sir J. W. quoad omnia bona & catalla sua, except one Debt due by Bond from Henry Wakefield. And at the Return of the Scire fac', the Defendant appears and demurs to the Scire facias, and there is an Award of Execution; and thereupon a Writ of Error is brought in the Exchequer Chamber, and the Judgment was affirmed. Then a Writ of Error is brought in Parliament, and the General Error assigned.
Argument for the Plaintiff in Error.—And here it was argued on the Behalf of the Plaintiff in the Writ of Error, that this Action did not lie against him, because it was brought against him for that which he did as a Judge, and so it appeared on the Record, according to 12 Rep. 25. that the Rule seems the same for one sort of Judge, as well as for another; that this Person was lawfully made a Governor, and so had all the Powers of a Governor; that this was a Commitment only till he found Security, tho' not so expressed; that this is not conusable here in Westminster-hall; that he was only censurable by the King; that the Charge is sufficient, in that Sir J.W. had not taken the Oaths; that male & arbitrarie executus fuit, is Charge enough to warrant a Commitment; that this was a Charge before a Council of State, and there need not be all the Matters precisely alledged to justify their Acts; and by the same reason Actions may lie against the Privy Counsellors here, and enforce them to set forth every Particular, which would be of dangerous Consequence; the Plea might have been much shorter, as only that he was committed by a Council of State, and the Addition of the other Matters shall not hurt; and that the Charge was upon Oath shall be intended; no Presumption shall be, that the Supream Magistracy there did irregularly; 'tis a Power incident to every Council of State to be able to commit: This Action cannot lie, because the Fact is not triable here; the Laws there may be different from ours. Besides no Action lies unless 'twere a malicious Commitment as well as causeless: And that no Man will pretend that an Action can lie against the chief Governor or Lieutenant of Ireland or Scotland; and by the same Reason it ought not in this Case; he had a Power to make Judges, and therefore he was more than a Judge; and they have confessed all this Matter by the Demurrer. The Statute of Car. 1. which restrains the Power of our Council [28] of State supposes that they could commit; that in case of Crimes there they are punishable in that Place; and in Sir Ellis Ashburnham's Case there was a Remanding to be tried there, and if so, it can't be examinable here; and if not, this Action will not lie. And further, that what was done here, was done in a Court; for so is a Council of State to receive Complaints against State Delinquents, and to direct their Trials in proper Courts afterwards; that there was never such an Action as this maintained; and if it should, it would be impossible for a Governor to defend himself: First, For that all the Records and Evidences are there. 2. The Laws there differ from what they are here; and Governments would be very weak, and the Persons intrusted with them very uneasy, if they are subject to be charged with Actions here for what they do in those Countries; and therefore 'twas prayed that the Judgment should be reversed.
Argument for the Defendants in Error.—On the other side 'twas argued for the Plaintiff in the Original Action, That this Action did lie, and that the Judgment upon it was legal: That supposing the Fact done in England, the Plea of such Authority so executed at Plymouth, or Portsmouth, or the like, had been ill; for that Liberty of Person by our Law is so sacred, that every Restraint of it must be justified by some lawful Authority, and that Authority must be expressly pursued: That here was no Authority to commit; for that must be either as a Court of Record, or as Justices of Peace, Constable, or other Officer constituted for that Purpose; that the Letters Patent are the only Justification insisted on, and that gives none; 'tis true, the Power of Committing is Incident to the Office of a Court; here's only the Government of the Place committed to Sir Richard Dutton, with a Power to erect Courts, and appoint Officers, but none to himself: He in Person is only authorized to manage and order the Affairs; and the Law of England takes no Notice of such an Officer, or his Authority; and therefore a Court of Law can take Notice of it no further, or otherwise, than as it doth appear in pleading: The Council is not constituted a Court; they are by the Letters Patent only to advise and assist the Governor; and the Governor hath no Power to commit or punish,
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