Dominions. Now a Writ of Error is a remedial Writ, whereon Right is to be done, and that must be according to the Laws of England; for the King's Bench, in case of a Reversial upon such Writ, is to give a new Judgment, as by Law ought to have been first given. Vaughan 290, 291. says, It lies at Common Law to reverse Judgments in any inferior Dominions; for if it did not, Inferior and Provincial Governments might make what Laws they please; for Judgments are Laws when they are not to be reversed. It lay to Ireland by the Common Law, says Coke 7 Rep. 18. tho' there had been no Reservation of it in King John's Charter. Then 'twas inferred, that the lying of a Writ of Error proves the Laws to be the same, i.e. in general the Common Law to govern in both Places, from the Difference assigned between Ireland and Scotland; it lies not to Scotland, because a distinct Kingdom, and governed by distinct Laws; and it lies to Ireland, because ruled by the same, and consequently, if a Writ of Error lies on the final Judgment there, it's a good Argument that the same Law prevails there. These Plantations are Parcel of the Realm, as Counties Palatine are: Their Rights and Interests are every Day determined in Chancery here, only that for Necessity and Encouragement of Trade and Commerce, they make Plantation Lands as Assets in certain Cases to pay Debts; in all other Things they make Rules for them according to the common Course of English Equity: The Distance or the Contiguity of the Thing, makes no Alteration in the Case. And then 'twas said, as at first, That this then was the same Case, as if the Imprisonment had been in England or on Shipboard, as to the Rules of Justification; that if there were another Law, which could justify it, the same ought to have been certainly pleaded.
As to the Instructions, these do not appear, and therefore are not to be considered in the Case, and they should have been set forth, and no extraordinary Power is to be presumed, unless shewn; for every Man in pleading is thought to make the best of his own Case, and consequently that if 'twould have made for him, the same would have been shewn; and because they are not shewn, they must be thought directive of a Government according to the Laws of England, since 'tis to a Subject of this Realm to govern other Subjects of this Realm living upon a Part of this Realm, and from the King thereof, who must be supposed to approve those Laws which make him King, and by which he Reigns.
[34] Then 'twas argued, Suppose this Governor had borrowed Money of a Man in the Island, and then had returned to England, and an Action had been brought for it, and he had pretended to justify the Receipt of it as Governor; he must have shewn his Power, the Law, and how he observed that Law; the like for Goods; the same Reason for Torts and Wrongs done vi & armis.
Now the Court below could consider no other Power or Law to justify this Act, but the Common Law of England, and that will not do it for the Reasons given; and if it be justifiable by any other, it must be pleaded; and what he hath pleaded is not pursued, &c.
As to the Commitment by a Council of State, what it means is hardly known in the Law of England; and that Authority which commits by our Law, ought to be certain, and the Cause expressed, as all the Arguments upon the Writ of Habeas Corpus in old Time do shew; but here's no Council: And 'tis not said so much as that he was debito modo onerat': And as to the Demurrer, that confesses no more than what is well pleaded: And as to Consequences, there's more Danger to the Liberty of the Subject, by allowing such a Behaviour, than can be to the Government by allowing the Action to lie: And therefore 'twas prayed that the Judgment might be affirmed.
Reply for Plaintiff in Error. Judgment reversed.—It was replied on Behalf of the Plaintiff in the Writ of Error, That notwithstanding all that had been said, the Laws there were different, tho' the Foundation of them was the Common Law, that they would not enter into that Question, What sort of Title at first gave Right to these Lands? But that this was a Commitment by a Council of State: And, as to the Objection of too general Pleadings in male & arbitrarie exercendo, &c. tho' the Inducement of the Plea was so; there were other Matters more particularly pleaded; the Altering the Decrees in his Chamber, which was sufficient: And as to the Objection, That 'tis not alledged in the Pleadings, that the Charge in Council against Witham was upon Oath; they answered, That 'tis
23
