Volume 25, Page 232 View pdf image (33K) |
232 Proceedings of the Council of Maryland, 1707.
Lib. C. B. that have made these objections but Satisfied that the habs Corpus Act 31° Car 2d Rs Cap. 11. which Mr Smithson has altogether proceeded (did it Extend to this province) has neither Expression nor Intent to bayle any but such who are comitted for such Supposed Criminall Matters for which they are Lyable to be Indicted. The Jurisdiction of the Courts of Starr Chamber and high Ecclesiasticall Courts with others of that nature having Long before Vanished and not left any Shaddow behind them at the time of the making that Act. 2dly As to the Courts of comon Law having enlarged psons comitted for contempts in the Court of Chanry as weli as in the high Comission Court will not be denyed, And in the latter Severall comitted for contempt of their Decrees and even in the Case of Alymony But the reason is plain because of its being an inferiour Court to the K. B. And that those Comissioners had either taken upon them that for which an Action lay at Comon Law, as in Sr Anthony Ropers Case in hughes Abr. about the pension &c or because they have Exceeded their Authority given by by fining and Impri soning where they had no such Authority of any Legall proceedings in the Spirituall Courts before that time Used p. 103 (even under the Usurpation of the pope) to Warrant them And as to persons enlarged on 2 H. 4. 15. by the Bishops for Heresie not being fundamentall the Case is as wide because their Authority was declared by Stat. which they Exceeded in not confining themselves to the Heresies declared by the first four Generall Councells &c. And therefore it was the Court of the Kings Bench adjuvantib alijs Iusticiarijs dni Reg were able to Judge as well of that fact as their authoritys to Imprison &c. But as to persons in the contempt of the De crees of the high Court of Chancery being bayled on habs Corpus by one Iustice I know no Presidents, tho. I must acknowledge the Judges of the said Courts of Comon Law have resolved to bayle on comtempts in not obeying Injunc tions and Especiall where the Complaints had remedy at Comon Law or where barred by Stat. of premunire to re examine their Iudgmt given in the Kings Courts. Yet note that where any such Enlargments have been It was p tot. Cur. & non p mo Capital Justit. As to this perticular case surely Mr Smithson never under stood its Circumstances, for when I reflect that the Court of Chancery in England has power to relieve in any case where the Comon Law is defective, certainly this new Settled province where there is no Stat. to prohibite her Majestys being also Supreme as well in Spiritualls as Temporalls and
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Volume 25, Page 232 View pdf image (33K) |
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