2 Hale, 138, 139, 140. Vide sup. 5. cused of it, as it makes him a judge of it, which he cannot be till he comes regularly before him by indictment; and the statutes above-mentioned, specially relating to the power of justices of peace in granting bail, expressly require the conusance of two justices. Sect. 63. SECONDLY, That justices of peace have no power to bail any person not replevisable by the above-mentioned statute of Westminster the first, c. 15. from whence it seems to follow, that a person under the actual commitment or arrest of any other magistrate, or even of a private person, for any crime declared to be irreplevisable by that statute, as treason against the king's person, arson, &c. cannot be delivered from his imprisonment by the bailment of any justice of peace. Yet if a person at large be only accused of such crime, on a slight suspicion, before a justice of peace, it seems that the justice ought not to commit him, but to take surety of him to appear before a proper court, as hath been more fully shewn in relation to the sheriff, section 46. And inasmuch as the above-mentioned statute of 1 and 2 Ph. and Mary, c. 13. expressly mentions the bailing of persons for manslaughter, as well as for other felonies, there can be no doubt, but that justices of peace may, by force thereof, safely bail any person imprisoned on a slight suspicion of a fact, clearly appearing to be no higher an offence than manslaughter, and much more if it appear to amount to no more than homicide by misadventure, or in self-defence. Yet it seems to be agreed, that such justices must, at their peril, take care that the offence in truth amounted not to murder; and that they ought in no case to bail any person who manifestly appears to have been guilty of any of the homicides above-mentioned, either by his own confession, or the notoriety of the fact, not only because the abovementioned statute of Westminster 1. c. 15. which is the pattern Sup. sect. 44, prescribed by 1 and 2 Ph. and Mary, for the direction of justices of peace in relation to bail, expressly excludes all persons from the benefit of it which are guilty of open and manifest offences; but also because the statute of Gloucester, c. 9. is express, that all persons who are guilty of homicide by misadventure or in self-defence, shall be kept in prison till the next coming of the justices itinerant, or of gaol-delivery. 1 Roll. 268. Dalton, c. 114. Lambard, 346, 45. 2 Inst. 314, 315. Dalton, c. 114. Sect. 64. THIRDLY, That the chief import of these statutes is to shew in what manner persons are to be bailed by justices of peace, and not to declare what persons are bailable by them; in relation to which matter, the old rules of the statute of Westminster the first, are generally still to be followed, which, extending only to criminal offences, punishable in the ordinary way by indictment before the sheriff, &c. give no power to bail persons taken on process in civil actions, or for contempts to superior courts, as by process of rebellion out of chancery. And therefore by a reasonable construction of all these statutes, justices of peace have no power in any such cases to admit any person to bail. As to the THIRD POINT, viz. Where bail is grantable by the justices of gaol-delivery. Sect. 131. Dalt. c. 14. 42. Sect. 65. It seems to be clearly settled (a) at this day, that (a) Crom. 154. such justices may bail any person convicted before them of homi- Hale, 129. cide by misadventure or in self-defence, the better to enable him Summary, 101. to purchase his pardon. And if a person convicted of man- 104, 105. slaughter before such justices purchase his pardon, it seems that F. Corone, 361, they may (6) bail him, even after their sessions is determined, till FN.B.246. the next sessions of gaol-delivery, that he may come in then and S. P. C. 15, 16. plead his pardon, for that the power of such justices seems (c) Con. 25 Ed. 3. to continue for such purposes after their sessions. Also (d) if a . P. C. 74. man be convicted of manslaughter before such justices, against F. Corone, $54. plain evidence, it is said that they may bail him till the next ses- B. Mainp. 1. sions of gaol-delivery, in order to purchase his pardon in the meantime. But it seems, (e) that justices of peace have no power to bail a man in any of these cases, because they are tied up for the most part to the rules prescribed by the above-men- (d) Crom. 154. tioned statute of Westminster the first. But this statute, not (f) (e) Summary, extending to justices of gaol-delivery, seems to leave them a dis- 104, 105. cretionary power in those cases wherein it restrains the sheriff Vide sup. sect. from admitting persons to bail. And therefore if a defendant, in Dalton, c. 114. an appeal of death, plead an excommunication in disability of the (f)2 Inst. 185, Crom. 153. Summary, 101. (e) Vide sup. B. Mainp. 94. c. 6. sect. 7. 63. Cont. 186. plaintiff, it seems to be holden by Staundford, (g) that such jus- (g) S. P. C. 72. Salkeld, 61. seems contrary. tices may bail the defendant from day to day till the plaintiff shall be absolved, for that otherwise the defendant might lie in prison for ever, without any opportunity of coming to his trial. But it (h) F. Mainp. 6. is observable, that the books (h) which are cited for the mainte- Assize, 12. nance of this opinion, speak only of an appeal of robbery: yet if justices of gaol-delivery have such power of bailing persons in the case of death, on the circumstances above-mentioned, as it seems agreed in the cases above cited that they have, I do not find any reason why they may not, as well upon other such like circumstances, bail persons indicted or appealed before them of any other crime, in such manner as the court of King's Bench may do, as shall be more fully shewn under the next point. As to the FOURTH POINT, viz. Where bail is grantable by the courts of Westminster-hall, I shall endeavour to shew : I. Where it is grantable by the court of King's Bench. As to the first of these points, I shall consider, 1. Where bail is grantable by the court of King's Bench to a person imprisoned by the king's special command, or by the order of his privy council. 2. Where to a person committed by either house of parlia ment. S. Where to one committed by the court of Chancery. 4. Where to one committed by an inferior court of record. 5. Where to one expressly excluded by the above-mentioned statute of Westminster the first, from the common benefit of a replevin by the sheriff. As to the first of these particulars, viz. Where bail is grant VOL. II. M able a) 5 Mod. 78. 1 Sid. 143. 1 And. 297. 1 Leonard, 70. 1 Burrow, 460. Shebbeare's case, Palmer, 559. b) 1 Leon. 70 1 And. 297. 2 Wilson, 151. Wilkes's case. able by the court of King's Bench to a person imprisoned by the king's special command, or by the order of the privy council. Sect. 66. I do not find but that wherever (a) a commitment by the privy council hath specially expressed the crime for which the party hath been committed, this court has always admitted him to bail, on the like circumstances on which, in discretion, it will grant bail on other commitments. (b) And wherever it has appeared, that persons have been imprisoned by colour of a usurped authority, pretended to be derived from any patent whatsoever, contrary to law, it seems that the said court hath always discharged the persons so imprisoned, without bail. But there c) 33 H.6. 28. have been formerly many opinions, (c) that persons committed by the special command of the king, or of his privy council, without expressing any other cause of the commitment, were not bailable Con. Mo. 859. by any court whatsoever, without some intimation of the king's consent to such bailment, by letter from the privy council, or otherwise. And a distinction (d) was taken by some between a commitment by one of the privy council, and a commitment by the whole body; and that the former ought indeed to set forth some other cause of the commitment besides the command of the person who made it; but that the latter needed not any. 1 And. 298. 1 Roll. 134. 192.219. 1 And. 158. See the argu ments on the habeas corpus concerning loans, 81, 82, &c. (d) 1 Leon. 70, 71. (e) See the arguments on the habeas corpus concerning loans, and Rushworth's Sect. 67. But this matter came afterwards to be very solemnly debated in the famous case (e) of Sir John Corbet and others, who, being imprisoned by a warrant from the privy council, about the third year of the reign of King Charles the First, moved the court of King's Bench to admit them to bail upon their habeas Col. f. 458, &c. corpus; whereupon it was returned, that they were detained in the prison of the Fleet by the special command of the king, signified to the warden by a warrant of some of the members of the privy council; in which warrant no other cause of the imprisonment was contained but such special command: and it was strongly urged on behalf of the prisoners, that such imprisonment is against the statute of Magna Charta, c. 29. which provides, "That no freeman shall be taken or imprisoned, and that "the king will not pass upon him, nor condemn him, but by the "judgment of his peers, or the law of the land;" and also against (f) 25 Ed. 3. 4. many other statutes (ƒ) made in affirmance of Magna Charta, by which it is ordained, That no man shall be taken by petition, or suggestion, made to the king or to his council, unless it be "by indictment or presentment, or by process by original writ; "and that no man shall be imprisoned, &c. without being 28 Ed. 3. 3. 42 Ed. 3. 3. 1 H. 7. 4. 66 66 brought to answer by due process of law; nor be put to an"swer without presentment before justices, or matter of record, "or by due process, and writ original." And it was argued, that the liberty of the subject would be precarious, and lie at the king's mercy, if persons who happen to incur his displeasure, for what perhaps the law esteems no crime, should by means of such a commitment be liable to be for ever imprisoned, without any possibility of redress; and that it seems inconsistent with natural justice to expose a man to so severe a punishment for a supposed crime alleged against him, without giving him an opportunity of clearing himself by a lawful trial. And it was further urged, that according to the opinion of SIR JOHN MARKHAM, in the time of of King Edward the Fourth, the king could not so much as 2 Hale, 131. arrest a man upon suspicion of treason or felony, as any of his subjects may; for that if the king should do wrong, the party could have no action against him. Also it was insisted, that the preamble of the statute of Westminster the first, c. 5. which declares, "That persons imprisoned by the king's command have "always been taken to be irreplevisable," must be intended only of a replevin by the common writ de homine replegiando, or by the sheriff ex officio without writ, for that it speaks only of a replevin by sheriffs and others, and therefore shall not be taken to extend to superior courts. And it was never thought that the court of King's Bench was restrained by it from bailing persons imprisoned for homicide; and yet all such are equally declared by the statute to be irreplevisable. Many precedents, also, were alleged, whereby it appeared, that persons committed by the king's special command, had been discharged upon writs of habeas corpus. (b) S. P. C. 72.7. F. N. B. 6. Sect. 68. But on the other side it was argued, that such commitment could not reasonably be intended to be against the purview of the statutes above cited, inasmuch as the said statute of Westminster the first, c. 15. which was made in the very next reign after that in which the statute of Magna Charta was made, it was declared to be a settled and undoubted point, that persons committed by the command of the king, which, as it seems to be Vide sup. sect. agreed, is to be understood of the king's special, absolute, and 36. extrajudicial command, are not replevisable: and it cannot be imagined that so high a regard should be paid to such a commitment, if it were thought to be illegal, and contrary to Magna. Charta. And it was insisted, that commitments of this kind have often been allowed by the (a) courts of justice, and are mentioned (a) Vide sup. by authors (b) of the best credit since the above cited statutes, sect. 66. without any the least objection to their legality, and as depriving the party imprisoned by them from the common benefit of the writ of replevin. And it was also strongly urged, that there are often secret causes not fit to be divulged, which may make it necessary for the safety of the state, in some particular circumstances, to restrain some persons from their liberty for a certain time, and that the king, who is entirely entrusted with the management of state affairs, shall be presumed always to act for the public good; and that it is immodest for any of his courts to question the justice of his proceedings of this kind, which the law seems wholly to have left to his wisdom, or to suffer a suggestion that he abuses his prerogative to cover oppression; and that the subject is in no danger of perpetual imprisonment on Rush. Col. part this account, for that the court of King's Bench hath always used 1. fol. 510. a discretionary power over such commitments, as well as all others, and therefore upon special circumstances of hardship, may admit persons under such commitments to bail; but that where there was nothing extraordinary in the case, it hath been the general course of the court not to do it without a special order from the council for it, as appeared from the examination of most of the precedents relating to this matter. And therefore in the case above-mentioned, the court of King's Bench was unanimous M 2 1 Roll. 219. See the argu ments on the habeas corpus above mentioned, p. 81. Rush. Col. part 1. 428. 473. 499, &c. Rush. Col. p. 1. fol. 613. (a) Supra, sec. 66. Vide C. Car. unanimous in opinion, that Sir John Corbet, and the other gentlemen so committed by the king's special command, as is abovementioned, had no right, primâ facie, to demand the benefit of bail, without the consent of the council, and therefore remanded them. Sect. 69. But this matter being afterwards considered in parliament, and it being the general opinion, that the chief reason why those gentlemen incurred the king's displeasure was their refusal to pay the loans, which, as they insisted, were demanded of them without sufficient authority; and it being evident, that if there were no certain legal remedy for the liberty of the subject against such a strain of the prerogative, no man could be safe in maintaining his property, either in parliament or out of it, against a disputed demand from the crown, but would be liable to discretionary imprisonment, and that under colour of law, without any certain redress from the law; it was thought necessary on this occasion to draw up the famous Petition of Right, which was afterwards assented to by the king, wherein, among other things, the lords and commons complain to the king, "That against the tenor of the above (a) cited statutes, divers subjects had then of late been imprisoned, without any cause shewed; and when for their deliverance they had been brought before justices by writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause had been certified, but that they were detained by his majesty's special command signified by the lords of his privy council, and yet were returned back to several prisons, without being charged with any thing to which they might make answer according to the law: And thereupon the said lords and commons, among other things, humbly pray, That no freeman, in any such manner as is before-mentioned, be imprisoned, or detained, &c." Sect. 70. And it seems to have been generally agreed, since 507. 579.593. the time of this petition, that wherever any commitment by the privy council hath not expressed, with some convenient certainty, the crime alleged against the party, he ought to be bailed upon his habeas corpus. 2 Hale, 144, 145. Vide s. 16. notes. See Lord Cam den's opinion upon the effect as to its giving an implied power to secretaries of state and privy counsellors to commit, &c. of this statute, 11 State Tr. 319. Sect. 71. And for the greater security of the liberty of the subject against commitments by the command of the king, or of his privy council, it is further provided and enacted, by 16 Car. 1. c. 10. s. 8. "That if any person shall be committed, restrained "of his liberty, or suffer imprisonment by the command or war"rant of the king's majesty, in his own person, or by the com"mand or warrant of the council board, or of any of the lords or "others of his majesty's privy council; that, in every such case, every such person, upon demand or motion to the judges of the King's Bench or Common Pleas, in open court, shall without "delay, upon any pretence whatsoever, for the ordinary fees usually paid for the same, have forthwith granted unto him a writ of habeas corpus, to be directed generally unto all and every sheriff, gaoler, minister, officer, or other person in whose custody the party committed or restrained shall be, and such 66 66 "sheriff, |