instructions warrant to restore that right again to the Imperial Throne Charls will follow him from Barcellona with an Army but before he must call a Parliament at Toledo whether by election or affection I dare not divine that Assembly maketh Protestation against their Masters Marriage with England and assign him Isabella of Portugal for a wife the Instruments are sent signed by the Imperial Notary to Henry the 8th And Charls bemoneth the streight he is forced into by them but before all this he had wrought from Rome a Dispensation for his former out-hand Marriage sending not long after Gonzado Ferdinando his Chaplain to invite the Earl of Desmon to rebell in Ireland And to invite James the First by promise of a Marriage to Christian of Denmarks Daughter his Neece to enter the English Borders to busie the English King for asking a strict accompt of that indignity Henry the 8th with Providence and good success over-wrought these dangers and by the League of Italy he forced him to moderate Conditions at the Treaty of Cambray 1529. He being made Caput foederis against the Emperour I may end your Honours trouble with this one Example and with humble prayers That the Catholique may have so much of Princely sincerity as not to intend the like or my good gracious Master a jealous vigilancy to prevent it if it should c. THAT THE SOVERAIGNS PERSON is Required in the Great COUNCELLS OR ASSEMBLIES OF THE STATE As well at the Consultations as at the Couclusions Written by Sir Robert Cotton Knight and Baronet LONDON Printed in the Year 1672. THAT THE SOVERAIGNS PERSON is Required in the Great COUNSELS OR ASSEMBLIES OF THE STATE c. SInce of these Assemblies few Diaries or exact Journal Books are remaining and those but of late and negligently entred the Acts and Ordinances only reported to Posterity are the Rolls this question though clear in general reason and conveniency must be wrought for the particular out of such incident proofs as the Monument of Story and records by pieces leave us And to deduct it the dearer down some essential circumstances of name time place occasion and persons must be in a general shortly touched before the force of particular proofs be laid down This noble body of the State now called the houses in Parliament is known in several ages by several names Consilia the Counsels in the old times after Magnum Commune and Generale Consilium Curia Magna capitalis and Curia Regis sometimes Generale Placitum and sometimes Synodi and Synodalia decreta although aswell the causes of the Common-wealth as Church were there decided The name of Parliament except in the Abbots Chapters not ever heard of until the raign of King John and then but rarely At the Kings Court were these Conventions usually and the Presence Privy Chamber or other room convenient for the King in former times as now then used for what is the presenst House of Lords but so as at this time and was before the fyring of the Pallace at Westminster about the seventeenth of Henry the eighth who then and there recided Improbable it is to believe the King was excluded his own Privie Chamber and unmannerly for guests to barre him the company who gave to them their entertainment It was at first as now Edicto Principis at the Kings pleasure Towards the end of the Saxons and in the first time of the Norman Kings it stood in Custome-Grace to Easter Whitsontide and Christmas fixed The Bishops Earls and Lords Ex more then Assembled so are the frequent words in all the Annalls the King of course then revested with his imperial Crown by the Bishops and Peers assembling in recognition of their pre-obliged faith and present service until the unsafe time of King John by over-potent and popular Lords gave discontinuance to this constant grace of Kings and then it returned to the uncertain pleasure of the Soveraigns summons The causes then as now of such Assemblies were provisions for the support of the State in Men and Money well ordering of the Church and Common wealth and determining of such causes which ordinary Courts nesciebant judicare as Glanvill the grand judge under Henry the second saith where the presence of the King was still required it being otherwise absurd to make the King assentor to the Judgments of Parliament and afford him no part in the consultation The necessity thereof is well and fully deduced unto us in a reverent monument not far from that grave mans time in these words Rex tenetur omni modo personaliter interesse Parliamento nisi per Corporalem agritudinem detineatur Then to acquaint the Parliament of such occasion of either house Causa est quod solebat Clamor Murmur esse pro absentia Regis quia res damnosa periculosa est toto Communitati Parliamenti Regni cum Rex à Parliamento absens fuerit Nec se absentare debet nec potest nisi duntaxat in Causa supradicta By this appeareth the desire of the State to have the Kings presence in these great Counsels by express necessity I will now endeavour to lead the practise of it from the dark and eldest times to these no less neglected of ours From the year 720. to neer 900. during all the Heptarchy in all the Councels remaining composed Ex Episcopis Abbatibus Ducibus satrapis omni dignitate optimatibus Ecclesiasticis scilicet secularibus personis pro utilitate Ecclesiae stabilitate Regni pertractand Seven of them are Rege praecedente and but one by deputy and incongruous it were and almost non-sence to bar his presence that is president of such an Assembly The Saxon Monarchy under Alfred Ethelred and Edgar in their Synods or Placita generalia went in the same practise and since Thus Ethelwald appealed against Earl Leofrick From the County and generale Placitum before King Ethelred and Edgira the Queen against Earl Goda to Eldred the King at London Congregatis Principibus sapientibus Angliae In the year 1502. under Edward the Confessor Statutum est placitum magnum extra Londinum quod Normanni ex Francorum consuetud Parliamentum appellant where the King and all his Barons appealed Goodwin for his Brother Alureds death the Earl denyed it and the King replyed thus My Lords you that are my liege men Earls and Barons of the Land here Assembled together have heard my Appeal and his Answer unto you be it left to do right betwixt us At the great Councel at Westminster 1072. in Easter week the cause of the two Archbishops Lanfrank and Thomas ventilata fuit in praesentia Regis Willielm And after at Winsor finem accepit in proesentia Regis At the same feast in the year 1081. the usual time of such Assemblies the King the Archbishops Bishops
his great Counsel to advise whether he should pass the Seas or no with an Army Royal and they not daring to assent without greater Counsel A Parliament the tenth year to have the advice of the Commons as well as of the Lords was called and how the Realm should be governed in their Sovereign his absence The truce with France was now expired the Parliament was called in the 13th to advise upon what conditions it should be renewed or otherwise how the charge of the War should be susteined at this assembly and by consent of all the Duke of Lancaster is created Duke of Aquitaine the Statute of provisions now past the Commons a party in the Letter to the Pope The year succeeding a Parliament is called for the King would have advice with the Lords and Commons for the War with Scotland and would not without their Counsels conclude a final peace with France The like assembly for the same causes was the year ensuing the Commons interesting the King to use a moderation in the Law of provisions to please at this time their holy Father so that the Statute upon their dislike may again be executed and that to negotiate the peace with France the Duke of Aquitaine may rather than another be imployed To consult of the Treaty with France for Peace the King in the seventeenth calleth a Parliament the answer of the Lords is left unentred in the Roll the Commons upon their faith and allegiance charged advised that with good moderation homage may be made for Guien an appenage of the French Croine so it trench not to involve the other pieces of the English Conquest their answer is large modest and worthy to be marked Now succeedeth a man that first studied a popular party as needing all to support his titles He in the fifth year calleth a Parliament to repress the malice of the Duke of Orleance and to advise of the Wars in Ireland and Scotland neither Counsels or supplies are entred in the Roll and to resist an invasion intended by France and Brittain he assembleth the State again the like was the second year following for France In this the Commons confer with for guard of the Sea and make many Ordinances to which the King assenteth the peace with the Merchants of Bruce and Foins is debated and a Proclamation published as they resolved by the Speaker the Commons complain of 96 pieces of importance lost in Guien the year before need of the defence of the borders and Sea coasts to suppress the Rebellion in Wales and disloyalty of the Earl of Northumberland they humbly desire that the Prince may be dispatched into those parts with speed and that the Castle of Manlion the key of the three realms might be left to the care of the English and not to Charls of Navarre a stranger and to have a vigilant eye of the Scotish prisoners In the tenth the Parliament is commanded to give their advice about the Truce with Scotland and preparation against the malice of the French His Son the wife and happy undertaker advised with the Parliament in the first year how to cherish his Allies and restrain his Enemies for this there was a secret Committee of the Commons appointed to conferr with the Lords the matter being entred into a schedule touching Ireland Wales Scotland Callis Gunien Shipping Guard of the Seas and War provision to repulse the Enemies In the second he openeth to the Parliament his Title to France a quarrel he would prosecute to death if they allowed and ayded death is in his Assembly enacted to all that break the Truce or the Kings safe conduct The year following peace being offered by the French King and the King of the Romans arrived to effect the work the King refuseth any conclusion until he had thereunto advice and assent of the Lords and Commons for which occasion the Chancellor declareth that Assembly In the fourth and fifth no Peace being concluded with France he calleth the State together to consult about the Warr concluding a Treaty of amity with Sigismund King of the Romans by allowance of the three Estates and entred Articles into the Journal Rols The same year by the Duke of Bedford in the Kings absence a Parliament was called to the former purposes as appeareth by the Summons though in the Roll omitted The like in the seventh The Treaty with France is by the Prelates Nobles and Commons of the Kingdom perused and ratified in the 11. of his Raign His Son more holy then happy succeeded adviseth him the second year with the Lords and Commons for the well keeping the Peace with France consulteth with them about the delivery of the Scottish King and the conclusion of it is confirmed by common assent And in the third year they are called to advise and consent to a new Article in the League with Scotland for change of Hostages And in the ninth conclude certain persons by name to Treat a Peace with the Dolphin of France The Treaty at Arras whither the Pope had sent as Mediators two Cardinals not succeeding The King in Parliament Anno 14. sheweth he must either lose his Title Stile and Kingdom of France or else defend it by force the best means for the prevention thereof he willeth them to advise him He summoneth again the next year the State to consult how the Realm might be best defended and the Sea safe kept against his Enemies In the twentieth the Commons exhibite a Bill for the Guard of the Sea ascertain the number of Ships assess wages and dispose prizes of any fortune to which the King accordeth and that the Genoways may be declared enemies for assisting the Turks in the spoyl of the Rhode Knights and that the privileges of the Pruce and Hans Towns Merchants may be suspended till compensation be made to the English for the wrongs they have done them to which the King in part accordeth The King by the Chancellor declareth in Parliament Anno 23. That the Marriage with Margaret the King of Sicils Daughter was contracted for enducing the Peace made with France against which the Lords as not by their advice effected make Protestation and enter it on the Roll. In the 25. the King intended to pass in Person into Franch and there to treat a Peace with the King adviseth with the Lords and Commons in Parliament and Letters of Mart are granted against the Brittains for spoyle done to the English Merchants The Lord Hastings and Abbot of Gloucester declare in Parliament Anno 27. the preparation of the French the breach by them of the Peace the weak defence of Normandy and the expiration shortly of the Truce requiring speedy advice and remedy In the 29. it was enjoined by Parliament to provide for defence of the Sea and Land against the French It was commanded by the King
of supposed prerogative and finding a greedy desire of one Merchant to prevent another of his market restrained by that Act or Statute which tyed them to one time and to one Port Callaice for all staple commodities they used to sell Licences with a clause of Non obstante of any statute whereby they dispensed with multitudes to trade with what commodities and to what places they would To the Merchants of Newcastle Richard 2. gave leave to carry wool-fells c. to any other Port besides Callaice upon condition that they should pay for them Custome and Subsidie according Le sage discretion de vouz ou de vostre sage Counceil To diverse Citizens of London Henry 4. in the like sort dispenceth for great quantity of Tinne for seven years paying 400. 1. yearly above the usual Custome Henry 6. annis 5. 21. 30. reneweth to the Town of Newcastle the same licence they had anno 20. Richard 2. and granteth 600. sacks of Wool to Benedict Benoni Merchant of Florence with non obstante any statute or restraint In this year such Licences were so frequent that the Town of Callaice complained in Parliament of their decay thereby yet without relief as it seemeth For the same King anno 36. giveth leave to Lawrence Barbarico to transport from London to Cicester 12000. sacks of Wool to what Ports he list And Edward 4. anno 10 borrowing 12000 l. of divers Merchants permitteth them non obstante any Law to carry any staple commodities to the Straits of Morocco until they were satisfied their sum Henry the 7. raiseth much money by giving leave to many Merchants to trade inward and outward Commodities prohibited as to Alonso de Burgues great proportions of Ode Anno 6. and to a multitude of others all kind of grain and other forbidden things as in annis 20 21 22. KIngs raise money and improve the Revenues of the Crown by improving customes By 1. Farming out of Ships 2. Raising the book of Rates 3. Farming the Customes 1. Farming out of Ships To the Merchants and taking security of them either to bting in or carry out yearly asmuch Commodities as shall yield the King in Customes the sum agreed on or else to make it up out of their own money Thus did Henry 7. many years not only with his Ships but with divers stocks of money 2. Raising the Book of Rates This was in some sort done Consensis Mercatorum by Edward 1. and Edward 3. and again in Henry 8. time of which the house of Burgundie complained as against the treaty of entercourse and of late so stretched as it is feared it will prove the overthrow of trade neither do I find this course at any other time As a branch of this may aptly fall out the benefit Princes made by a prerogative power of imposing inward and outward upon Commodities over and above the antient Custome of Subsidie The first that used this course after the Statute was settled from a King of voluntary government after the Conquest when as Kings ruled more by the edge of the Sword then by rule of Law was Henry 3. about the entrance of his Reign But finding it to be an apparent overthrow of Commerce and Trade and against the great Charter made proclamation anno 16. in all Ports of England that all Merchants might come faciendo rectas et debitas consuetudines nec sibi timeant de malis toltis for it had no better name then Maletolts Some impositions being laid by Edward 1. he in anno 25. taketh them away with promise that neither he nor his Successors should do any such thing without assent of the Parliament granting in anno 31. to the Merchants many immunities as release of prisage for which they requite him with some increase of Customes but not as imposed by his own power For he in anno 34. declareth that no tallage or aide should be levied without the assent of Parliament nor nothing to be taken of Woolls by colour of Maletolt In Edward 2. time it appeareth that levying of new Customes and raising of old was the destruction of Traffique and therefore repealeth all Maletoltes only in anno 11 12. taketh by way of Lone and with leave of the Merchants some former increase upon Wools ascribing nothing to any supream power to impose The like did Ed. the 3. anno 1. confirming in anno 2. the great Charter for free traffique but having about anno quinto granted certain Commissions for a new kind of raising tallage the People complained the year following whereupon he repealed the said Commissions and promiseth never to assess any but as in time of his Ancestors After in anno 11. by reason of a Statute then made restraining all men upon pain of death for transporting any Wools without licence from the King and Councel Edward the third made great advantage by selling of Dispensations of that Law and grounded upon it many impositions but it grew so heavy upon the People that their discontentments so far increased that the King was enforced to cause the Arch-bishop of Conterbury to perswade them to patience by his Godly exhortations yet notwithstanding he continued by gentle intermissions the advantage he had by that late undecimo taking an improvement of Custome for opening the passage that thereby was shut in anno 13. until the same year the State made purchase of their former freedome and discharge of the Malotolt by granting the tenth sheafe and fleece c. And thus it continued all his reign being a time of great necessity and expence by reason of his Wars he sometimes taking an advantage either to raise an imposition or else to gain aide from the People in discharge thereof they continually urging the injury in barring them their birth-right And the King on the other side the greatness of his own occasions and it may be gathered by Record that thus it held on until the 15. Richard 2. in which year is the last petition against impositions generally grounded in likelyhood from the Kings power in restraining or permitting trade all the time after though licences with non obstante were ordinary yet were they to private persons and for particular proportions of Commodities whereby the Kings succeeding raised no less benefit then by sale of any general permission To this of imposition I may add the rule I find anno 12. Henry 6. made in Councel that the value of all goods for the payment Subsidie shall be rated of Commodities domestique as they may be sold between Merchant and Merchant And if forreign then so it shall appear upon Oath of the Merchant or his Factor they stood them in at the first and the general Maxime which limits all regall advantage upon trade of Merchants is ut Causa honesta sit et necessaria ratio facilis tempus idoneum 3. Farming out of Customes So did Edward 3. with the new
them aswel of things done out of the Forrest of the King as for other things That it would please our said Lord to command those to be delievered that are so taken by special command against the form of the Charters and Statutes aforesaid The Answer is The King is pleased that if any man find himself greived that he come and make his complaint and right shall be done unto him 37. Edward 3. cap. 18. agreeth in substance when it saith Though that it be contained in the great Charter that no man be taken nor imprisoned nor put out of his Freehold without process of the Law Nevertheless divers People make false Suggestions to the King himself as well for malice or otherwise whereof the King is often grieved and divers of the Realm put in damage against the form of the the said Charter wherefore it is ordained that all they which make suggestions shall be sent with the same suggestions before the Chancellour Treasurer and his grand Council and that they there find Surety to pursue their suggestions and incur the same pain that the other should have had if he were attainted in case that his suggestion be found evil and that then process of the Law be made against them without being taken and imprisoned against the form of the Charter and other Statutes Here the Law of the Land in the grand Charter is explained to be without process of the Law 42. Edward 3. at the request of the Commons by their Petitions put forth in this Parliament to eschew mischief and damage done to divers of his Commons by false Accusers which oftentimes have made their accusation more for revenge and singular benefit than for the profit of the King or of his People which accused persons some have been taken and sometime caused to come before the Kings Council by Writ or otherwise upon grievous pains against the Law It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices or matter of Record or by due process and Writ original according to the old Law of the Land and if any thing from henceforth be done to the contrary it shall be void in the Law and holden for Error But this is better in the Parliament-Roll where the Petition and Answer which make the Act are set down at large 42. Edward 3. Rot. Parl. n. 12. The Petition Item because that many of the Commons are hurt and destroyed by false Accusers who make their Accusations more for their revenge and particular gaine than for the profit of the King or his People And those that are accused by them some have been taken and others are made to come before the King's Councel by Writ or other Command of the King upon grievous pains contrary to the Law That it would please our Lord the King and his good Council for the just Government of his People to ordain that if hereafter any Accuser purpose any matter for the profit of the King that the matter be sent to the Justices of the one Bench or the other or the Assizes to be enquired and determined according to the Law and if it concern the Accuser or Party that he take his Suit at the Common Law and that no man be put to answer without presentment before Justices or matter of Record or by due process and Original Writ according to the antient Law of the Land and if any thing henceforward be done to the contrary that it be void in Law and held for error Here by due process and Original Writ according to the antient Law of the Land is meant the same thing as per legem terrae in Magna Charta And the abuse was that they were put to answer by the Commandment of the King The King's answer is thus Because that this Article is an Article of the Grand Charter The King will that this be done as the Petition doth demand By this appeareth that per legem terrae in Magna Charta is meant by due process of the Law Thus your Lordships have heard Acts of Parliament in the point But the Statute of Westminster the first cap. 15. is urged to disprove this opinion where it is expresly said that a man is not replevisable who is committed by command of the King Therefore the command of the King without any cause shewed is sufficient to commit a man to Prison And because the strength of the Argument may appear and the answer be better understood I shall read the words of that Statute which are thus And forasmuch as Sheriffs and others which have taken and kept in Prison persons detected of Felony and oftentimes have let out by Replevin such as were not replevisable because they would gaine of the one party and grieve the other And forasmuch as before this time it was not certainly determined what persons were replevisable and what not but onely those that were taken for the death of a man or by commandment of the King or of his Justices or for the Forrest it is provided and by the King commanded that such Prisoners as before were outlawed and they which have abjured the Realm Provers and such as be taken with the manner and those which have broke the Kings Prison Theives openly defamed and known and such as be appealed by Provers so long as the Provers be living if they be not of good name and such as be taken for burning of Houses feloniously done or for false money or for counterfeiting the Kings Seal or Persons excommunicate taken at the request of the Bishop or for manifest offences or for treason touching the King himself shall be in no wise replevisable by the common VVrit or without VVrit But such as be Indicted by Larceny by Inquests taken before Sheriffs or Bayliffs by their Office or of light suspition or for petty Larceny that amonnteth not above the value of 12 d. if they were not guilty of some other Larceny aforetime or guilty of receipt of Felons or of commandment or force or of aid in Felony done or guilty of some other Trespass for which one ought not to lose Life or Member and a man appealed by a Prover after the death of the Prover if he be no common Thief nor defamed shall from henceforth be let out by sufficient Surety whereof the Sheriff will be answerable and that without giving ought of their Goods And if the Sheriff or any other let any go at large by Surety that is not replevisable if he be the Sheriff Constable or any other Bayliff of Fee which hath keeping of Prisons and thereof be attained he shall lose his Fee and Office for ever And if the Under-Sheriff Constable or Bayliff of such as hath Fee for keeping of Prisons do it contrary to the will of his Lord or any other Bayliff being not of Fee they shall have 3. years imprisonment and make a fine at the King's pleasure And if any
with-hold Prisoners replevisable after they have offered sufficient Surety he shall pay a grievous amerciament to the King and if he take any Reward for the deliverance of such he shall pay double to the Prisoner and also shall be in the great mercy of the King The answer is it must be acknowledged that a man taken by the command of the King is not replevisable for so are the express words of this Statute but this maketh nothing against the Declaration of the Commons for they say not that the Sheriff may Replevin such a man by Surety Scilicet Manucaptores but that he is bayleable by the Kings Court of Justice for the better apprehending whereof it is to be known that there is a difference betwixt Replevisable which is alwayes by the Sheriff upon Pledges or Sureties given and Baileable by a Court of Record where the Prisoner is delivered to his Baile and they are his Jailors and may imprison him and shall suffer for him body for body as appeareth 33. 36. Edward 3. in the title of Mainprise plit 12 13. where the difference betwixt Baile and Mainprise is expresly taken And if the words of the Statute it self be observed it will appear plainly that it extends to the Sheriffs and other inferiour Officers and doth not bind the hand of the Judges The Preamble which is the Key that openeth the entrance into the meaning of the Makers of the Law is Forasmuch as Sheriffs and others which have taken and kept in Prison persons detected of Felony Out of these words I observe that it nominateth Sheriffs and then if the Justices should be included they must be comprehended under the general word Others which doth not use to extend to those of an higher rank but to inferiours For the best by all course is first to be named and therefore if a man bring a writ of Customes and Services and name Rents and other things the general words shall not include homage which is a personal service and of an higher nature but it shall extend to ordinary annual services 31. Edward 1. droit 67. So the Statute of 13. Elizabeth cap. 10. which beginning with Colledges Deans and Chapters Parsons and Vicars and concludes with these words and others and others having spiritual promotions shall not comprehend Bishops that are of an higher degree as appeareth in the Arch-bishop of Canterbury his Case reported by Sir Edward Cook lib. 2. fol. 466. And thus much is explained in this very Statute to the end when it doth enumerate those were meant by the word other namely Under-sheriffs Constables Bayliffes Again the words are Sheriffs and others which have taken and kept in Prison Now every man knoweth that Judges do neither arrest nor keep men in Prison that is the office of Sheriffs and other inferiour Ministers Therefore this Statute meant such only and not Judges The words are further that they let out by replevin such as were not replevisable This is the proper language for a Sheriff Nay more express afterwards in the body of the Statute That such as are there mentioned shall be in no wise replevisable by the common VVrit which is de homine replegiando and is directed to the Sheriff nor withour Writ which is by the Sheriff Ex Officio But that which receives no answer is this That the command of the Justices who derive their authority from the Crown is there equalled as to this purpose with the command of the King aud therefore by all reasonable construction it must needs relate to Officers that are subordinate to both as Sheriffs Undersheriffs Bayliffes Constables and the like and it were an harsh exposition to say that the Justices might not discharge their own command and yet that reason would conclude as much And that this was meant of the Sheriffs and other Ministers of Justice appeareth by the Recital of 27. Edward 3. cap. 3. and likewise by Fleta a Manuscript so called because the Author lay in the Fleet when he made the Book For he Lib. 2. cap. 52. in his Chapter of Turns and the Views of the hundred Courts in the Countrey and setteth down the Articles of the charges that are there to be enquired of amongst which one of them is De replegialibus injuste detentis irreplegialibus dimissis which cannot be meant of not bailing by the Justices For what have the inferiour Courts of the Countrey to do with the Acts of the Justices And to make it more plain he setteth down in his Chapter that concerns Sheriffs onely the very Statute of West 1. cap. 15. which he translates verbatim out of the French into Latine save that he renders Taken by the command of the Justices thus Per judicium Justitiariorum and his Preface to the Statute plainly sheweth that he understood it of Replevin by Sheriffs for he saith Qui non debent per plegios dimitti qui non declaret hoc Statutum and per plegios is before the Sheriff But for direct authority it is the opinion of Newton Chief Justice 22. Henry 6. 46. where his words are these It cannot be intended but the Sheriff did suffer him to go at large by mainprise for where one is taken by the VVrit of the King at the commandment of the King he is replevisable but in such Cases his Friends may come to the Justices for him if he be arrested and purchase a Supersedeas This Judge concludes that the Sheriff cannot deliver him that is taken by the command of the King for that he is irreplevisable which are the very words of the Statute but saith he his Friends may come to the Justices and purchase a Supersedeas So he declares the very question that the Sheriff had no power but that the Justices had power to deliver him who is committed by the Kings command and both the antient and modern practise manifests as much For he that is taken for the death of a man or for the Forrest is not replevisable by the Sheriff Yet they are ordiuarily bayled by the Justices and were by the Kings VVrits directed to the Sheriffs in the times of Edward 1. Edward 2. as it appears in the close Rolls which could not be done if they were not baileable and it is every dayes experience that the Justices of the Kings Bench do baile for murder and for Offences done in the Forrest which they could not do if the word Irreplevisable in Westminster l. were meant of the Justices as well as the Sheriffs For the Authorities that have been offered to prove the contrary they are in number three The first is 21. Edward 1. rot 2. in Scrin which also is in the book of Pleas in the Parliament at the Tower fol. 44. It is not an Act of Parliament but a Resolution in Parliament upon an Action there brought which was usual in those times And the Case is that Stephen Rabab the Sheriff of the County of Leicester and Warwick was questioned for that he
had let at large by Sureties amongst others one William the Sonne of Walter le Persons against the will and command of the King whereas the King had commanded him by Letters under his Privy Seal that he should do no favour to any man that was committed by the command of the Earl of Warwick as that man was VVhereunto the Sheriff answered that he did it at the request of some of the King's Houshold upon their Letters And because the Sheriff did acknowledge the receipt of the King's Letters thereupon he was committed to Prison according to the form of the Statute To this I answer that the Sheriff was justly punished for that he is expresly bound by the Statute of West 1. which was agreed from the beginning But this is no proof that the Judges had not power to baile this man The next Authority is 33. Henry 6 in the Court of Common Pleas fol. 28. b. 29 where Robert Poynings Esq was brought to the Bar upon a Capias and it was returned that he was committed per duos de Concilio which is strongest against what I maintain pro diversis causis Regem tangentibus And he made an Attorney there in an Action Whence it is inferred that the Return was good and the Party could not be delivered To this the answer is plain First no Opinion is delivered in that Book one way or other upon the Return neither is there any testimony whether he were delivered or bailed or not Secondly it appears expresly that he was brought thither to be charged in an Action of Debt at another mans Suit and no desire of his own to be delivered or bailed and then if he were remanded it is no way material to the question in hand But that which is most relyed upon is the Opinion of Stanford in his book of the Pleas of the Crown Lib. 2. cap. 18. fol. 72. 73 in his Chapter of Mainprise where he reciteth the Chapter of West 1. cap. 15. and then saith thus By this Statute it appears that in 4. Causes at the Common Law a man was not replevisable to wit those that were taken for the death of a man by the command of the King or of his Justices or for the Forrest Thus far he is most right Then he goeth on and saith As to the command of the King that is understood of the command by his own mouth or his Council which is incorporated unto him and speak with his mouth or otherwise every Writ of Capias to take a man which is the Kings command would be as much And as to the command of the Justices their absolute commandment for if it be their ordinary Commandment he is replevisable by the Sheriff if it be not in some of the Cases prohibited by the Statute The answer that I give unto this is that Stamford hath said nothing whether a man may be committed without cause by the Kings command or whether the Judges might not baile him in such Case but only that such an one is not replevisable which is agreed for that belongs to the Sheriff and because no man should think he meant any such thing he concludes his whole sentence touching the command of the King and the Justices that one committed by the Justice's ordinary command is replevisable by the Sheriff So either he meant all by the Sheriff or at least it appears not that he meant that a man committed by the King or the Privy Council without cause is not baileable by the Justices and then he hath given no opinion in this Case What he would have said if he had been asked the question cannot be known Neither doth doth it appear by any thing he hath said that he meant any such thing as would be inforced out of him And now my Lords I have performed the command of the house of Commons and as I conceive shall leave their Declaration of personal liberty an antient and undoubted truth fortifyed with seven Acts of Parliament and not opposed by any Statute or Authority of Law whatsoever The Objections of the Kings Councel with the Answers made thereunto at the two other conferences touching the same matter IT was agreed by Master Attorney General that the seven Statutes urged by the Commons were in force and that Magna Charta did extend most properly to the King But he said that some of them are in general words and therefore conclued nothing but are to be expounded by the Presidents and others that be more particular are applied to the suggestions of Subjects aud not to the Kings command simply of it self Hereunto is answered that the Statutes were as direct as could be which appeareth by the reading of them and that though some of themspeak of suggestions of the Subjects yet others do not and they that do are as effectual for that they are in qual reason a commitment by the command of the King being of as great force when it moveth by a suggestion feom a Subject as when the King taketh notice of the cause himself the rather for that Kings seldome intermeddle with matters of this nature but by information from some of their People 2. Master Attorney objected that per legem terrae in Magna Charta which is the Foundation of this question cannot be understood for process of the Law and Original Writ for that in all Criminal proceedings no Original Writs is used at all but every Constable may arrest either for felony or for breach of the Peace without process or Original Writ And it were hard the King should not have the power of a Constable and the Statutes cited by the Commons make process of the Law and Writ Original to be all one The Answer of the Commons to this Objection was that they do not intend Original Writs only by the Law of the Land but all other legal process which comprehend the whole proceedings of Law upon the cause other then the tryal by Jury per judicium parium unto which it is opposed Thus much is imposed ex vi termini out of the word process and by the true acceptation thereof in the Statute have been urged by the Commons to maintain their declaration and most especially in the Statutes of 25. Edward 3. câ— p. 4. where it appeareth that a man ought to be brought in to answer by the course of the Law having made former mention of process made by Original Writ And in 28. Edward 3. cap. 3. by the course of the Law is rendred by due process of the Law And 36. Edward 3. Rot. Parl. nu 20. the Petition of the Commons saith that no man ought to be imprisoned by special command without Indictment or other due process to be made by the Law 37 Edward 3. cap 18. calleth the same thing process of the Law And 42. Edward 3. cap. 3. stileth it by due process and Writ Original where the Conjunctive must be taken for a Disjunctive which change is ordinary
committed for the death of a man by the command of the King or the Justices or for the Forrest did declare that the Justices could not baile such an one and that Replevisable and baileable were Synonyma and all one And that Stanford a Judge of great authority doth expound it acordingly and that neither the Statute not He say replevisable by the Sheriff but generally without restraint and that if the Chief Justiee committed a man he is not to be enlarged by another Court as appeareth in the Register 1. To this it was answered First that the Recital and Body of the Statute relate only to the Sheriff as appeareth by the very words 2. That Replevisable is not restrained to the Sheriff for that the word imports no more that a man committed by the Juftice is baileable by the Court of the Kingâ—s Bench. 3. That Stamford meaneth all of the Sheriff or at the least he hath not sufficiently expressed that he intended the Justices 4. It was denyed that Replevisable and Baileable are the same For they differ in respect of the place where they are used Bail being in the King's Courts of Record Replevisable before the Sheriff And they are of several Natures Replevisable being a letting at large upon Sureties Bailing when one Traditur in ballium and the baile are his Jaylors and may imprison him and shall suffer body for body which is not true of replevying by Sureties And Bail differeth from Mainprize in this that Mainprize is an undertaking in a sum certain Bailing to answer the condemnation in civil Causes and in criminal body for body And the Reasons and Authorities used in the first conference were then renewed and no exception taken to any save that in 22. Henry 6. it doth not appear that the Command of the King was by his mouth which must be intended or by his Councel which is all one as is observed by Stamford for the words are that a man is not replevisable by the Sheriff who is committed by the Writ or Commandment of the King 21. Edward 1. Rot. 2. dorso was cited by the Kings Counsel But it was answered that it concerned the Sheriff of Leicestershire only and not the power of the Judges 33. Henry 6. the King's Attorney confessed was nothing to the purpose and yet that Book had been usually cited by those that maintain the contrary to the declaration of the Commons and therefore such sudden opinion as hath been given thereupon is not to be regarded the Foundation failing And where it was said that the French of 36. Edward Rot. Parl. n. 9. which canreceive no answer did not warrant but what was enforced thence but that these words Sans disturbance metter ou arrese faire l'encontre per special mandement on en autre manere must be understood that the Statutes should be put in execution without disturbance or stay and not that they should be put in execution without putting disturbance or making arrest to the contrary by special command or in other manner The Commons did utterly deny the interpretation given by the Kings Councel and to justifie their own did appeal to all men that understood French and upon the seven Statutes did conclude that their Declaration remained an undoubted truth not controuled by any thing said to the contrary The true Copies of the Records not printed which were used on either side in that part of the deba e. Inter. Record Domini Regis Caroli in Thesaurar recep 〈◊〉 sui sub Custodia Domini Thesaurar Camer ibidem remanen videlicet Plac. coram ipso Domino Rege Concilio suo ad Parliamentum suâ—m post Pasc apud London in Maâ—erio Archâ—â—piscopi Ebor. Anno Regni Domini Regis Edwardi 21. in t al. sic continetur ut sequitur Rot. Secundo in Dorso STephanus Rabar Vic. Leic. Warr. coram ipso Domino Rege ejus Concilio arrenatus ad rationem positus de hoc quod cum Johan Boutetâ—urte Edw. Del Hache W. Havelin nuper in bal. ipsus Vic. per Dominum Regem fuissent assignat ad Goales Domini Regis deliberand idem Vic. quendam Wiâ—hel de Petling per quendam Appellatorem ante adventum eorum justic ibidem appellatorem Captum vivente ipso Appellatore usque diem de liberationis coram eis sact dimisit per plevinam contra formam Statuti c. Et etiam quendam Radum de Cokehal qui de morte horninis judicatus fuit per eundem Vic. Captus idem Vic. per plevinam dimisit contra formam Statuti etiam eundem Radum fine ferris coram eisdem Justic ad deliberationem praed produxit contra consuetudinem Regni Et sci quendam Wilh fllium Walteri la persone qui per praeceptum Com. War Captus fuit per plevinam contra praeceptum Domini Regis cum idem Dominus Rex per literas suas sub privat sigillo suo eidem Vic. praecepit quod nulli per praecept praed Com. War capt aliquam gratiam faceret c. Et super hoc praefat Johannes Botetourte qui praesens est qui fuit primus Justic praedictorum praemissa recordatur Et praedicuts Vic. dicit quoad praedictum Wilh de Petling quod ipse nunquam a tempore Captionis ipsius Wilh per praed Appellat dimissus fuit per plevinam aliquam ante adventum praedictorum Justic Imo dicit quod per dimidium Annum ante adventum eorundem Justic captus fuit semper detent in prisona absque plevina aliqua quousque coram eis damnat fuit Et quoad praedictum Radum bene cognoscit quod ipse dimisit eum per plevinam hoc bene facere potuit ratione authoritat Officii sui eo quod capt fuit pro quadam simplic transgr non pro aliqua felon pro qua replegiari non potuir Et quoad tertium videlicet Wilh silium persone bene cognoscit quod ipse Captus fuit per praecept praed Com. War quod dimisit eum per plevinam Sed dicit quod hoc fecit ad rogatum quorundam de hospitia cur Domini Regis c. qui eum inde specialiter rogaverunt per literas suas Et super hoc idem Vic. quaesit per Dominum Regem quis eum rogavit literas suas ei direxit ubi literae illae sunt dicit quod Walt. de Langton eum per literas suas inde rogavit Sed dicit quod literae illae sunt in partibus suis Leic. Et super hoc idem Vic. profert quoddam brev Domini Regis de privat Sigillo eidem Vic. direct quod testatur quod Dominus Rex ipsi Vic. praecepit quod omnes illos trangressores contra pacem de quibus Com. War ei scire faceret caperet salvo custodiret absque aliqua gratia ei faciend Et quia praed Iustic expresse recordatur quod ipse socii sui per bonum