" ❝ venison, unless he be taken within the mainour, or else indicted "after the form before specified: And then the chief warden shall let him to mainprise till the eyre of the forest, without any thing taken for his deliverance. And if the said warden (a) F. N. P. 67. " will not so do, he shall have a (a) writ out of the chancery, &c. Register, 80. "to be at mainprise till the eyre. And if the warden shall not (b) F. N. B. 67. " obey such writ, the plaintiff shall have a (b) writ to the sheriff Register, 80. 4 Inst. 290. Register, 80. F. N. B. 67. 45 Ed. 3. 7. 2 Hale, 132. to 135. (c) S. P. C. 74. Dalton, c. 114. 1 Roll. 268. 15 H. 7. 9. Kelynge, 90. 3 Bulst. 113, 114. 66 "to attach the said warden before the king, at a certain day, &c. "And the sheriff (the verderers being called to him) shall "deliver him that is so taken, by good mainprise, in the presence "of the verderers, and shall deliver the names of the mainpernors to the same verderers, to answer in the eyre before the justices, &c." And it is further enacted, by 7 Rich. 2. c. 4. That no man shall be imprisoned by any officer of the forest "without due indictment, or being taken with the mainour, or "trespassing in the forest, &c." Sect. 39. And NOTE, That persons so indicted, or taken with the mainour, being imprisoned by such officers, have their election either to be mainprised by twelve mainpernors, by virtue of homine replegiando, given by the said statute of 1 Edw. 3. c. 8. or to be bailed upon a habeas corpus, by the judges of Westminster Hall, &c. And if a person be imprisoned for any offence relating to the forest, without having been first indicted for it, or taken with the mainour, there seems to be no doubt but that he may have an action of false imprisonment, and may also be mainprised or bailed in the manner above-mentioned. And Now I am to consider that part of the purview of the above-recited statute of Westminster the First, c. 15. which shews what other persons are not replevisable, of which there are two sorts. FIRST, Such as are excluded from the benefit of a replevin, in respect of the notoriety of their offence. SECONDLY, Such as are excluded from it in respect of the heinousness of the crime alleged against them. Persons excluded from the benefit of a replevin, in respect of the notoriety of their offence, are of two kinds : First, Those who, by an express or implied judgment, sentence or conviction, or their own confession, appear to be guilty. 66 Secondly, Those who are under violent presumptions of guilt. Sect. 40. And First, Of those who by judgment, sentence, Summary, 101. conviction, or confession, appear to be guilty, some are excluded from the benefit of a replevin by the express words of the statute; as "those who are outlawed, or have abjured the realm; persons excommunicate, taken at the request of the bishop, " and provers." And all other (c) persons who are condemned, or convicted of felony, or any other (d) heinous crime whatsoever, whether by their own confession, or by verdict general or special; (e) and also all those (f) who on their examination own themselves guilty of a felony alleged against them, and are charged in their mittimus with a felony so confessed, seem to be (d) Vide infra, sect. 44. (e) Dyer, 179. 15 H. 7. 9. 1 Roll. 268. 4 Inst. 178. excluded excluded from it by parity of reason, and the manifest intent of the statute; for (a) bail is only proper where it stands indifferent (a) 2 Inst. whether the party be guilty or innocent of the accusation against Dyer, 179, him, as it often does before his trial; but where that indifferency Summary, 100, is removed, it would, generally speaking, be absurd to bail him : And agreeably hereto the statute of 2 Hen. 5. c. 2. provides, even as to civil causes, "that if upon a writ of certiorari, or corpus "cum causâ, out of chancery, it shall be returned, that the prisoner "is condemned by judgment given against him, he shall be re"manded, &c." Also 23 Hen. 6. c. 10. which ordains, that sheriffs, &c. shall let out of prison persons in their custody by force of any writ, &c. in personal actions, or on indictments of trespass, by sufficient sureties, &c. expressly excepts" all such "as shall be in their ward by condemnation, execution, &c." And therefore it cannot be but reasonable to intend, that the said statute of Westminster the First put the cases of persons See the books outlawed and excommunicate as examples only; meaning thereby above cited, to intimate, that all other persons under the like circumstances S. P. C. 74. Summary, 101. should be in like manner irreplevisable yet it is certain, that 2 Inst. 188. the court of king's bench may, in their discretion, in some special cases, bail a person upon an outlawry of felony; as (b) (b) 5 H. 7. 16. where he pleads that he is not of the same name, and therefore not the same person with him that was outlawed; or alleges (c) (c) 19 H. 6. 2. any other error in the proceedings. Also it seems, that the court of king's bench, or justices of gaol-delivery, may bail (d) a (d) B. Mainp, person convicted of manslaughter, or as some say, of any other 94 Summary, 101, felony, for which he afterwards gets the king's pardon. And (e) 105. there seems to be no doubt at this day, but that they may also (e) Summary, bail any person who is guilty before them of homicide in self- 101. 105. defence, or by misadventure. Also it is certain, that if a person F. Corone, 297. appear to be imprisoned for an excommunication, in a cause of 354. contra, & which the spiritual court hath no conusance, he may be deli- S. P. C. 74. vered either upon a habeas corpus, or by quashing or superseding quere. the writ of excommunicato capiendo. SECONDLY, Of those who are under violent presumptions of guilt, and in that respect are excluded by the statute from the benefit of a replevin, there are several kinds. F. N. B. 246. Sect. 41. I. Those who are taken with the mainour (or rather Summ. 101, the mainer, that is, with the thing stolen, as it were in their 102. Carthew, 79. hands, and by parity of reason, those who are taken freshly upon Inst. 188. a hue and cry. 1 Hale, 187. 348. 2 Hale, 133. 156. Vide c. 18. s. 1. & 4. Sect. 42. II. Those who have broken the king's prison, and by the same reason, those who have broken any other prison, which the law presumes that no innocent person will do. Sect. 43. III. Those who are appealed by provers, who re- Summary, 102. gularly are not bailable, because the approver, by confessing his 2 Inst. 188. own guilt, induces a strong presumption against those whom he Register, 269. accuses of the same crime of which he owns himself guilty; yet by the express words of the statute, "If the person appealed by "an approver be of good reputation, he may be bailed, even in "the life of the approver; and, unless he be a notorious felon, "he (a) 25 Ed. 3. 42. Summary, 102. 211. 17 Assize, 4. 11 Assize, 27. (f) Sum. 102. (g) Dalt. c. 114. (h) B. Mainp. 62. (i) Coke, B. & (k) Keilw. 165. 13 H. 7. 21. Rastal, 380. (1) Sum. 168. (m) 6 H. 7. 1. "he may be bailed after his death." And by parity of reason, he may also be bailed if the approver wave (a) his appeal, or be vanquished, (b) unless there be some other cause to detain him in prison, as the appeal of some other approver, &c. And if a person disabled by law to become an approver, as one attainted, (c) &c. appeal another of high treason, it seems that the person so appealed ought to be bound (d) to his good behaviour towards the king: but (e) if such person had appealed him of felony only, it seems that he ought to have been wholly discharged, if there had been no other accusation against him. Sect. 44. IV. Thieves openly known and notorious, who, as it seems, ought not to be bailed for any fresh felony, whereof there is probable evidence against them. But how far persons accused of any crime shall be so far esteemed likely to have committed it, from their former scandalous behaviour, as to be presumed guilty upon slight evidence, seems in great measure to be left to the discretion (f) of the person who has power to bail them; who, upon consideration of the circumstances of the whole matter, and the probabilities of both sides, if he find it reasonable strongly to presume them to be guilty, ought not bail but commit them. Sect. 45. V. Persons taken for open and manifest offences, which seems to be understood of inferior crimes of an enormous nature, under the degree of felony, as dangerous riots, (g) favouring of high treason, (h) scandalous extortions, conspiracies, (i) by justices, &c. violent and exorbitant rescouses (k) of persons arrested by virtue of the king's writs, misprision (7) of treason, præmunire, (m) maim, and such like heinous offences, whereof no one who is notoriously guilty seems to be bailable by the intent of this F. Execu. 147. statute; for notwithstanding, in the latter part of it, it be said generally, that those who are accused of a trespass, to which a man shall not lose life or member, are replevisable; yet upon the construction of the whole it seems reasonable to qualify the generality of that expression with this limitation, that such accusation ought to be either on a light suspicion; or, if it be on plain and unquestionable evidence, that the offence ought to be inconsiderable; for if all persons whatsoever shall be replevisable for offences not touching life or member, let their guilt be never so notorious, the abovementioned general unlimited clause, that those who are taken for open offences shall be irreplevisable, must be restrained to felonies and offences touching member, which seems contrary to the most obvious reasonable purport of it, and also to common practice, and that allowed general rule, that bail is only then proper where it stands indifferent whether the party were guilty or innocent; sed quere. Yet it seems to be in great measure left to the discretion of the person who has power to admit others to bail, to judge in what cases their crime is so flagrant and enormous, that they ought not to have the benefit of it. Sup. sect. 44. Of those who are excluded by the purview of the said statute from the benefit of a replevin, in respect of the heinousness of the crime alleged against them, there are four kinds. 1. Those 1. Those who are taken for arson. 2. Those who are taken for false money. 3. Those who are taken for falsyfying the king's seal. 4. Those who are taken for treason which touches the king himself. Sect. 46. All such persons being expressly declared to be irreplevisable, it seems clear, that they can in no case be delivered out of prison by the sheriff, either by virtue of the said writ of homine replegiando, or without it: yet if a person at large be accused before a sheriff, on a light suspicion, of any of these, or of any other of the abovementioned crimes, which always have been agreed to be irreplevisable, as of homicide, &c. it seems by no means to follow either from the words or intention of the statute, that the sheriff is bound to keep him in prison till he be delivered by due course of law, but in such case it seems to be more reasonable that he take surety of him to appear in a proper court to answer such accusation; for it seems extremely harsh, and contrary to the first principles of the law, which favours nothing more than the liberty of the subject, to put an officer under a necessity of depriving a man of his liberty upon every accusation of such a crime, be it never so weakly grounded. And the words of the statute, declaring persons to be irreplevisable for such crimes, seem clearly applicable to such only as are under an actual imprisonment, and not to those who are barely accused; for that none can be properly said to be replevied, but those who, being actually imprisoned, are, upon finding pledges, delivered out of custody; from which it follows, that persons not imprisoned are not within the statute: nay, the law is so far from obliging a sheriff to imprison a man upon every accusation whatsoever of such crimes, that it subjects him, as well as any other person, to an action of false imprisonment, if he do it without a reasonable ground; as hath been more fully shewn in the chapter concerning Arrests. But if a person be actually under an arrest, either of a magistrate or of a private person, for any of the above-mentioned crimes, it seems clear, from the express words of the statute, that the sheriff cannot replevy him; and it seems, that at the common law he ought to have safely detained the party so arrested till he could have obtained his legal deliverance, and that the person so arrested had no remedy but by indictment or action of false imprisonment against those who arrested and delivered him to the sheriff on a groundless suspicion. But how far the law may at this day be altered in this point, by the universal and allowed practice of sheriffs receiving no person into their custody for any crime without the warrant of some magistrate, shall be more fully considered in the next chapter. 2 Hale, 129. Sect. 47. It is certain, that the court of king's bench still may, 2 Inst. 189. and always might, bail persons in custody for any of these 40 Assize, 33. crimes, notwithstanding this statute; yet in discretion it seldom 134. 148. uses this power but in very special cases, as shall be shewn in the following part of this chapter. 5 Modern, 323. And now I am to consider that part of the purview of the Hale, 134, said statute, which shews what persons are replevisable. 135. For 2 Inst. 190. S. P. C. 74. Summary, 106. 29 Assize, 44. Dalt. c. 114. 16 Ed. 4, 5. Coke, B. and Mainp. c. 5. For the better understanding whereof, I shall endeavour to explain, 1. The branch relating to persons accused as principals. 2. That which concerns those who are charged as accessaries. As to the FIRST BRANCH, relating to persons accused as principals. Sect. 48. Those who are indicted of larceny by inquests taken before sheriffs, or bailiffs, by their office, that is, before sheriffs in their torns, and lords in their leets, are expressly declared to be replevisable; and according to some opinions, those who are indicted or appealed in any other court, of any other felony, not expressly declared by the statute to be irreplevisable, as robbery or burglary, &c. are replevisable by the sheriff er officio, without writ, within the equity of this clause: yet the authorities which are brought to warrant this opinion, relate only to the bailment of persons by superior courts, upon indictments or appeals of such crimes before such courts, and do by no means prove that such persons are replevisable by the sheriff ex officio, without writ: and Reg. 270,271. it is observable, that the writs of mainprise in the Register, for persons indicted only of trespass, before justices of peace, expressly declare that such persons cannot be delivered out of prison without the king's special command; from whence it seems to follow, that such persons are not within the common benefit of a replevin by the sheriff, without some such special command. And if persons indicted of trespass only, before justices of peace, are not within the ordinary remedy of a replevin by the sheriff without a writ, surely it cannot be thought that persons indicted of higher crimes, and before superior courts, can be any way intitled to it. However, inasmuch as the said statute of Westminster the first expressly allows persons indicted of larceny before the sheriff the ordinary remedy of a replevin, and expressly excludes some other particular felonies, and says nothing of others, it seems a reasonable construction of the statute, that the sheriff might, by virtue of it, either with or without writ, replevy those who were indicted before himself, or at a court-leet, of those other felonies not expressly excepted, as well as those indicted of larceny only. And the statute leaving such a latitude to the sheriff in relation to the persons so indicted before himself, or at a court-leet, it hath been usual for superior courts (who, though they be not within the statute, have yet always had a great regard to the rules prescribed by it) to use the same liberty in relation to such crimes, and sometimes greater, for such special reasons, and in such special cases, as shall be set forth more at large in the following part of this chapter. Yet, notwithstanding the statute seems generally to allow the benefit of a replevin to all those who are indicted of larceny, &c. without any limitation; yet it hath been always construed to intend only, that such persons indicted Summary, 100. of a grand larceny as are of good reputation, shall be replevisable; and therefore if there be strong presumptions of their guilt, it seems that they ought not to be bailed; but this is in great measure to be left to discretion. Register, 269. 2 Inst. 190. 16 Ed. 4, 5. S. P. C. 74. Sect. 49. SECONDLY, Those who are imprisoned for a light suspicion, |