Ed. 3. chap. 1. The words are these. It is assented and accorded that the great Charter of England and the Charter of the Forests shall be kept in all points, and if any statute be made to the contrary that shall be holden for none. Hitherto ye see it very plainly that neither procurement nor act done either by the King or any other person, or any act of Parliament, or other thing may in any ways alter or change any one point contained in the said great Charter of England. But if you will note the words, sense, matter, and meaning of the said Charter of Bridewell, ye shall find it all merely repugnant to the said great Charter of England. I do note one special statute made in the said 42nd of Edward the 3rd, the which if it be well compared with the said Charter of Bridewell it will make an end of this contention. The words are these. Item, at the request of the Commons by the petition put forth in this Parliament, to eschew the mischief and damage done to divers of the commons by false accusers which often times have made their accusements more for vengeance and singular profit than for the profit of the King and his people, of which accused persons some have been taken and caused to come &c. against the law; it is assented and accorded for the government of the Commons that no man be put to answer without presentment before Justices, or thing of Record, [or] by due process, as by writ original, according to the old law of the land; and if anything from henceforth be done to the contrary it shall be void in the law and holden for error. As I said before, so say I still, if this statute be in force, as I am sure it is, then is the law clear that the proceedings in Bridewell upon the accusation of whores taken by the Governors of Bridewell aforesaid are not sufficient to call any man to answer by any warrant by them made, without indictment or other matter of Record according to the old law of the land. 1 Such like commissions as this of Bridewell is were granted in the time of K. Edward the Third by especial procurement to enquire of special articles, the which commissions did make their enquiries in secret places &c. It was therefore enacted Anno 42° Ed. 3. cap. 4. that henceforth in all enquiries within the realm Commissions should be made to some Justices of the one Bench or other, or Justices of Assize or Justices In the MS. it appears to be "of the King," obviously by a clerical error. VOL. VII. L L of the Peace with other of the most worthy of the Country. By this Statute we may learn that Commissions of Enquiries ought to sit in open Courts, and not in any close or secret place, and that their enquiries ought to be by juries and by no discretion or examination. If you look upon the Statute of Anno 1° Hen. 8. cap. 8. you shall there perceive the very cause why Empson and Sheffield and others were quite overthrown, the which was, as by the Indictment especially appeareth, for executing Commissions against due course of the common law, and in that they did not proceed in justice according to the liberties of the great Charter or England, and of other laws and statutes provided for the due executing of Justice. There was a Commission granted forth in the beginning of the reign of her Majesty that now is, unto Sir Ambrose Cape, Sir Richard Sackville, and others, for the examination of felons and of other lewd prisoners. It so fell out that many men of good calling were impeached by the accusations of felons. Some great men, and Judges also, entered into the validity of the Commission. It was thought that the Commission was against the law and therefore did the Commissioners give over the Commission, as all men know. And whereas the examination is by the Commission referred to the wisdom and discretion of the Governors of Bridewell, as touching this point I find that the examination of robberies done by sanctuary men was appointed unto the discretion of the Council or unto four Justices of the Peace; but this was not by commission or by grant, but by act of Parliament made Anno 22° Hen. 8. cap. 14. The Justices of both the Benches have used to examine the abilities and disabilities of attornies, and by their discretion to place or remove the same upon their misdemeanors, without any solemnity of trial at the Common Law; and that is and hath been done by the Treasurer and Barons of the Exchequer touching the attorneys: but if you search the cause you shall find the same to be done by authority of Parliament, Anno 4° of Hen. 4. cap. 18. And whereas sundry men are arrested by latitat, capias, attachments, and such like processes whereby their corporal presence is required, yet upon infirmities and other maladies the Justices, having examined the matter, may by their discretions admit them to make attornies; but note you that all this is done by authority of Parliament in Anno 7° H. 46. cap. 13. The Commission of Bankrupts giveth power to the Commissioners to take order by their discretions both with the body and goods of the bankrupt and to set the bankrupt out of his house, and him to imprison; and all this is referred to the discretion of the Commissioners: but this is by authority of Parliament, Anno 13 Eliz. cap. 7. The punishment and examination of such as counterfeit letters or privy tokens is referred to the discretions of the Justices of peace in every county: but this is by Parliament, Anno 33 Hen. 8th, cap. 1. The examination of Riots, Routs, and such like misdemeanors in the Star Chamber is referred to the discretion of the Judges of the Court: but this is by Parliament, Anno 3 Hen. 7. cap. 1. et 21 Hen. 8. cap. 20. The examination of unlawful hunting in the King's warrens &c. is referred to the discretion of the Justices of peace, and if the offender deny his hunting, then it is felony. This also is by Parliament, Anno 1° Hen. 7. cap. 7. The rate, taxation, and punishment of servants labourers and of their wages is referred to the discretion of the Justices of peace in every county. And this also is by Parliament, Anno 5° Eliz. cap. 4. The examination of Rogues and vagabonds, with the forms of their punishment, is referred to the Justices, but by Parliament. The determination of all causes in Wales is referred to be ended by the King's Council there established by their wisdoms and discretions: but yet this is by Parliament. The grant of the pluralities, tot quot qualifications, dispensations, licenses, and tolerations, is referred to the discretion of the Archbishop of Canterbury: but this is by Parliament. The dealings and examinations of High Commissioners are authorised altogether by Parliament. And to be short, ye shall find in the great volume of the Statutes near the number of forty Acts of Parliament that do refer the examination or punishment of offenders to the wisdom and discretion of the Justices; whereupon I note that if the King by prerogative might have done all things by Commission or by Charter, that it had been vain to have made so many laws in Parliament for the same, &c. And to make the law more manifest in this question, Anno 42 Ed. 3. lib. Assis. No 5. a commission was sent out of the Chancery to one I. S. and others, to arrest the body and goods of A. B. and him to imprison. And the Justices gave judgment that this Commission was directly against the law, to take any man's body without indictment; and therefore they took the Commission from the Commissioners to the intent to deliver the same to the King's Council, quod nota. And I do find also in the 24th of Ed. 3. this precedent; that a Commission was granted unto certain persons for to indict all those that were notoriously slandered for any felonies, trespasses, or for any other misdemeanors, yea although they were indicted for the same; and it was adjudged that this commission was directly against the law. And [thus]' I do conclude upon the whole matter that the Commission of Bridewell would be well considered of by the learned Counsell of the city; for I do not think the contrary but that there be learned 2 that by their great knowledge in the law are well able either in a quo warranto, or any other action brought to defend the same, &c. 1 "These" in MS. 2 So in both MSS. I take the general meaning to be, that though he has given reasons for doubting the validity of the Charter, yet it may be that the City counsel may be able to defend it. FINIS. |