peers, that is nobles; but if he be appealed of murder by a subject, his trial shall be by an ordinary Jury of 12 ficeholders, as appeareth in 10 E. 4, 6, 33 II. 8, Brooke Title Trials 142. Stan. Cor. li. 3, ca. 1, fol. 152. and in 10 E. 4, 6, it is said, such is the meaning of Magna Charta, for the same reason: therefore as per judicium parium suorum' extends to the king's suit, so shall these words per legem terræ.'

And in 8 E. 2, rot. parl. u. 7, there is a Petition that a Writ under the privy-seal went to the guardians of the great seals, to cause lands to be seized into the king's hands, by force of which there went a writ out of the Chancery to the Escheator, to seize, against the form of the Grand Charter, that the king nor his ministers shall out no man of his freehold without reasonable judgment, and the party was restored to his land: which shewed the statute did extend to the king.

There was no invasion upon this personal liberty, till the time of Edw. S, which was soon resented by the subject; for in 5 E. 3, c. 9, it

is ordained in these words: It is enacted that no man from henceforth shall be attached by any accusation, nor fore-judged of life or limb, " nor his lands, tenements, goods, nor chattels, seized into the king's hands, against the form of the Great Charter, and the law of the land.' 25 E. 3, c. 4, it is more full, and doth expound the words of the Grand Charter, and is thus: Whereas it is contained in the Grand Charter of the franchises of England, that no freeman "shall be imprisoned, nor put out of his freehold, nor free custom, unless it be by the law of the land; it is awarded, assented, and established, that from hence none shall be taken by petition or suggestion, made to our lord the king, or to his council, unless it be by Indictment, or presentment of his good and lawful people of the same neighbourhood; which such deeds shall be done in due manner, or by process 'made by writ original at the common law, nor that none be outed of his franchises, nor of his freehold, unless he be duly brought in to an'swer, and fore-judged of the same by the course ' of the law; and if any thing be done against the same, it shall be redressed and holden for nought'

Here your lordships see the usual words, the law of the land,' are rendered by due proces of the law.

36 E. S, Rot. Parl. n. 9. Amongst the pe titions of the commons, one of them being translated into English out of French, is thus; first, that the Great Charter, and the Charter of the Forest, and other Statutes made in his time, and the time of his progenitors, for the profit of him, and his commonalty, be well and firmly kept; and put in due execution, without putting disturbance, or making arrest contrary to them by special command, or in other manner.

The answer to the Petition, which makes it an act of parliament, is, Our lord the king, by the assent of the prelates, dukes, earls, barons, and the commonalty, hath ordained and established, that the said Charters and Statutes be held, and put in execution, according to the said 'Petition.' It is observable, that the Statutes were to be put in execution according to the said Petition, which is, that no arrest should be made contrary to the Statutes, by special com

mand.

This concludes the question, and is of as great force as if it were printed, for the Parliament Roll is the true warrant of an act, and many are omitted out of the Books, that are extant in the Roll.

S6 E. 3, Rot. Parl. n. 22, explaineth it further; for there the Petition is, Whereas it is 'contained in the Grand Charter and other Statutes, that no man be taken or imprisoned by special command without Indictment, or other due process to be made by the law, and ' oftentimes it hath been, and yet is, many are hindered, taken and imprisoned without Indictment, or other process made by the law upon them, as well of things done out of the Forest of the king, as for other things; that it would therefore please our said lord to command those to be delivered, which are so taken by special command against the form of the Charter and Statutes as aforesaid.'

The Answer is, The king is pleased, that if“ any man find himself grieved, that he come and make his complaint, and right shall be done unto him.' 37 E. 3, c. 18, agreeth in substance with them: it saith, Though 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; neverthe'less divers people make false suggestions to the king himself, as well for malice as otherwise, whereat the king is often grieved, and divers of the realm put in damage, against the form ' of the same Charter; wherefore it is ordained, that all they which make such suggestions, shall be sent with the same suggestions, to the 'Chancellor, 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 the suggestion be found evil; and that then process of law be made against

Charter is explained to be without process of law.

42 E. 3, c. 13. At the request of the Commons by their Petition put forth in this parlinment, to eschew mischief and damage done to divers of his commons by false accusers, which oftentimes have made their accusations, more for revenge and singular benefit, than for the profit of the king, or of his people; of which accused persons some have been taken and caused to come before the king's council by writ, and 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 hence 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 makes the Act, are set down at large, 42 E. 3, Rot. Parl. n. 12.

The Petition.

'Item. Because that many of your commons are hurt and destroyed by false accusers, who make their accusations more for their revenge and particular gain, than for the ⚫ profit of the king, or of his people : and those that are accused by them, some are taken, and others are made to come before the king's council by writ, or other command⚫ment 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 propose any matter for the profit of the king, that the same matter be sent to the justices of the one bench or of 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 the justices or matter of record, and by due 'process and original writ, according to the ancient 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 ancient law of the land, is meant the same thing, as per legem terræ,' in Magna Charta; and the abuse was, 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 willeth that this 'be done, as the Petition doth demand.' By this appeareth that' per legem terræ,' 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, 1. c. 15, is urged to disprove this opinion, where it is expressly said, That a man is

not repleviable, who is committed by the command of the king; therefore the command of the king, without any cause shewed, is sufficient to cominit a man to prison. And because the strength of the Argument may appear, and the Answer be better understood, I will read the words of the Statute, which are thus:

And forasmuch as sheriffs and others, which have taken and kept in prison persons detected for felony, and oftentimes have let out by replevin such as were not repleviable, and have kept in prison such as were repleviable, 'because they would gain of the one party, and grieve the other; and forasmuch as be'fore this time it was not certainly determined what persons were repleviable, and what not, but only those that were taken for the death of a man, or by the commandment of the king, or of his justices, or for the forest; it is provided, and by the king commanded, that such prisoners as were before outlawed, and they which have abjured the realm, provers, and 'such as be taken with the manner, and those which have broken the king's prison, thieves openly defamed and known, and such as be appealed by approvers; so long as the approvers are living, and if they be not of good name, and such as be taken for burning of houses feloniously done, or false money, or 'for counterfeiting the king's 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 repleviable by the common writ, or without 'writ.'

But such as be indicted of larceny by inquests taken before sheriffs or bailiffs by their that amounteth not above the value of twelveoffice, or of light suspicion, or of petty larceny, pence, if they were not guilty of some other larceny aforetime, or guilty of receipt of felons, or of commandment, or of force, or of aid of felony done, or guilty of some other trespass, for which one ought not to lose either life or member: and a man appealed by an approver, after the death of the approver; if he henceforth be let out by sufficient surety, wherbe no common thief or defamed, shall from of the sheriff will be answerable, and that with out giving aught of their goods. And if the sheriff, or any other, let any go at large, by surety, that are not repleviable, if he be sheriff hath a fee, which hath keeping of prisons, and or constable, or any other bailiff, or such as thereof be attainted, he shall lose his office and fee for ever. And if the under-sheriff, constable or bailiff, or such as hath fee for keeping of prisons, do it contrary to the will of his lord, or any other bailiff being not of fee, they shall have three years imprisoment, and make a fine at the king's pleasure; and if any man withhold prisoners repleviable, after that they have offered sufficient surety, he shall pay a grievous amercement to the king; and if he take any reward for the deliverance of such, he shall pay double to the prisoner, and also shall pay a grievous amercement to the king.

The Answer.

:

It must be acknowledged, that a man taken by the commandment of the king is not repleviable, for so are the express words of this Statute: but this maketh nothing against the Declaration of the House of Commons; for they say not, the sheriff may replevy such a one by sureties, scilicet manucuptores, but that he is bailable by the king's court of justice for the better apprehending whereof, it is to be known, that there is a difference between repleviable, which is always by the sheriff upon pledges or sureties given, and bailable, which is by a court of record, where the prisoner is delivered to his bail, and they are his gaolers, and may imprison him, and shall suffer for him body for body, as appeareth 33 & 36 Edw. 3, titulo Mainprize 12 & 13, where the difference betwixt Bail and Mainprize is expressly taken. And if the words of the Statute themselves be observed, it will appear plainly, that it extends to the Sheriff and other inferior officers, and doth not bind the hands 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 have taken and kept in prison persons detected of felony.' Out of these words I observe, that it nominateth Sheriffs, and then if the Judges should be included, they must be comprehended under that general word, 'others;' which doth not extend to those of an higher rank, but to inferiors, for the best by all courses is first to be named. And therefore if a man bing a Writ of Customs and Services, and name Rents and other things, the general shall not include Homage, which is a personal service, and of an higher nature, but it shall extend to ordinary annual service, 31 E. 1, droit 67. So the Statute of 13 Eliz. c. 10, which beginneth with Colleges, Deans and Chapters, Parsons, Vicars, and concludes with these words, and others having spiritual Promotions,' shall not comprehend Bishops that are of an higher degree, as appeareth in the archbishop of Canterbury's Case, reported by sir Edw. Coke, lib. 2, fol. 46, B.

And thus much is explained in the very Statute towards the end, when it doth enumerate those who were meant by the word, others, namely, Under-Sheriffs, Constables, Bailiffs, &c.

Again, the words are, Sheriffs and others which have taken and kept in prison.' Now every man knoweth, Judges do neither arrest, nor keep men in prison; that is the office of Sheriffs and other inferior ministers. Therefore this Statute meant such only, and not Judges.

The words are further, That they let out by replevin such as are not repleviable, that is the proper language for a Sheriff; nay, more express afterward in the body of the Statute, that such as are there mentioned, shall in nowise be repleviable by the common Writ, which is 'De homine replegiando,' and is directed to the Sheriff, nor without 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 equal as to this purpose with the command of the king. And therefore by all reasonable construction, it must needs relate to officers that are subordinate to both, as sheriffs, under-sheriffs, bailiffs, constables, and the like. And it were a 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 sheriff and other ministers of justice, appears by the Recital, 27 Edw. 1, c. 3, and likewise by Fleta, a Manuscript, so called, because the author lay in the Fleet when he made the Book: for be, l. 2, c. 52, in his Chapter of Turns, and the Views of the Hundred Courts in the Country, setteth down the Articles of the Charges that are there to be inquired of; amongst which, one of them is De replegiabilibus injuste detentis et irreplegiabilibus dimissis;' which cannot be meant of not bailing by the Justices; for what have the inferior courts in the country to do with the acts of the Justices?

And to make that more plain, he setteth down in that Chapter, that concerneth Sheriffs only, the very statute of Westminster 1, which he translates verbatim out of the French into the Latin; save that he renders taken by the command of the Justices, thus, per judicium Justiciariorum;' and his Preface to the Statute plainly sheweth, that be understood it of Replevin by Sheriffs; for he saith, ‘Qui debent per plegios dimitti, qui non declarat hoc Statutum;' and 'per plegios' is before the Sheriff. But for direct Authority, It is the opinion of Newton, chief justice, 22 Hen. 6, 46, where his words are these: It cannot be intended that the Sheriff did suffer him to go at large by Mainprize; for where one is taken by the 'writ of the king, or the commandment of the king, he is irrepleviable; but in such case his 'friends may come to the Justices from 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 irrepleviable, which is the very word 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 the Justices had power to deliver him that is committed by the king's command, and both the antient and modern practice manifest as much : for he that is taken for the death of a man, or for the Forest, is not repleviable by the sheriff, yet they are ordinarily bailed by the Justices, and were by the king's writs directed to the sheriffs, in the times of Edw. 1 and 2, as appears in the close Rolls, which could not be done if they were not bailable. And it is every day's experience, that the Justices of the King'sbench do bail for murder, and for offences done in the Forest, which they could not do, if the word irrepleviable,' in Westminster 1, were meant of the Justices, as well as of the Sheriffs.