but to form and establish Courts to do so; which imports the direct contrary, that he had no such Power: The Ends of appointing the Council, as mentioned in the Letters Patent, are quite different, viz. to aid the Regent by their Advice, not to act as of themselves; and if neither the Governor of himself, nor the Council of it self, had such a Power, neither can both together have it: A Court of Justice is not to be intended, unless the same be specially shewn: Excepting the Case of the common known general Courts of Justice in Westminster-hall, which are immemorial; if any Thing be justified by the Authority of other Courts, the same must be precisely alledged, and how their Commencement was, either by Custom or Letters Patent: Here it appears by the Plea it self, that they had Justices of Oyer and Terminer appointed: It doth not appear that he or the Council were [29] Judges of Things of this kind. Besides, when a Council is constituted, as here was Twelve by Name, that must be the Majority, as is the Dean and Chapter of Fernes Case, Davis's Rep. 47. and that's Seven at least, which are not in this Case. There must be a Majority, unless the Erection did allow of a less Number. The Practise of the Courts of Westminster-hall does not contradict this, for there 'tis a Court, whether more or less, and so 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 Council, because but five of them present.
The Council have not the Power, but the Governor with the Advice and Assent of the Council; 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 Council, neither Person nor Thing are within its Jurisdiction; for if their Doctrine be true, that by being Governor, 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 Governor 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 Governor, nor who was to administer it; so that non constat, whether 'twas his Fault or the Governor's; besides, that's no cause of Imprisonment, for any Thing which appears in the Plea. 2. Assuming illegally the Title of Lieutenant Governor; that is so trivial, as it needs no Answer; for Deputy Governor and Lieutenant Governor are all one, locum tenens is a Deputy, & ceontra. 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 ve-[30]-rum 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 Council 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 'tis 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 'tis not
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