5. Forasmuch as the censors had their authority by the letters patent and act of Parliament, which are high matters of record, their proceedings ought not to be by parol, & eo potius, because they claim authority to fine and imprison, and therefore, if judgment be given against one in the Common Pleas in a writ of[1] recaption, he shall be fined and imprisoned, but if the writ be vicontiel in the county, there he shall not be fined nor imprisoned, because a writ of the court is not of record, F. N. B. in Recaption; so in F. N. B. 47. a. a plea of trespass vi et armis doth not lie in the county court, hundred court, &c. for they cannot make a record of fine and imprisonment; and regularly they who cannot make[2] a record, cannot fine and imprison. And therewith agrees 27 H. 6. 8. Book of Entries, tit. Account, fol.—. The auditors make a record when they commit the defendant to prison; a Justice of Peace upon view of the force may commit, but he ought to make a record of it. 6. Forasmuch as the act of 14 H. 8. has given power to imprison till he shall be delivered by the president and the censors, or their successors, reason requires that it should be taken strictly, for the liberty of the subject (as they pretend) is at their pleasure: and this is well proved by a judgment in Parliament in this very case; for when this act of 14 H. 8. had given the censors power to imprison, yet it was taken so literally, that the gaoler was not bound to receive such as they should commit to him, and the reason thereof was, because they had authority to do it without any court: and thereupon the statute of 1 Ma.[3] cap 9. was made, that the gaoler should receive them upon a penalty, and yet none can commit any to prison, unless the gaoler receives him: but the first act, for the cause
- ↑ Antes 60. b. 41. a. 8 Co. 41. 11 Co. 43. b. F. N. B. 73. d.
- ↑ Antes fo. 38. b. 41. a. 60. b. F. N. B. 73. d. 10 Co. 103. a. Rep. Q. A. 146.
- ↑ 2 Brownl. 257, 262, 265, 266. Rast Phys. 7. Lit. Rep. 169, 172, 173, 212, 213, 248, 249, 350, 331. Cr. Jac. 121. Cr. Car. 257. 1 Jones 263. Car. 115. 4 Inst. 251.
