Norfolk Record Office, AYL/192
The Argum
of the house of Commons out of Acts of p
and Authorities of lawe expoundinge the same
at
the lib
red deliu
yo
serious Considerac
after longe debate there of divers dayes as well by
solemne Argum
answeres, to the end
mans brest vnsatisfied they haue vppon a full search and
clere vnderstandinge of all things p
vnanimously declared
Comitted or deteined in prison or otherwise restreined by
the Comand of
other vnlesse some cause of the Comittm
be expressed for w
deteined or restreyned, And they haue sent me w
of yo their members to
grounds of such their resoluc
p
to giue yo
and confirmed by the whole state, the Kinge the lor
Spirituall and temporall and Comons by seu
of Parliam
that
or repeale by future statuts, And those that I shall
mynde yo
can beare noe other explanation at all and suer I ame they
are still in force, The first of them is
of the lib
yere of Kinge John. and renewed in the 9th yere of
Kinge Henry
aboue thirty tymes, The words are thus Cha: 29 Nullus
Nullus liber homo Capia vel ymprisonetur aut
diseisetur de libero suo vel libertatibus
vel liberis Consuetbus suis aut vtlagetur aut
exvletur aut alquo mo destruatur nec super eum
ibimus nec super eum demittimus nisi p er legale Iudicium
parium
pariu m suorum vel per le gale Iudicium legem
terre
expMatheue
Paris an author of speciall creditt doth obserue fo: 432.
That
the 17th of Kinge Iohn. in nullo dissimiles are his words
& that of Kinge Iohn he setteth downe verbatim fo: 342.
and there the words are directly Nec eum in carcerem
mittimus
easilie happen twixt 9. H. 3. & 28 when this
Charter was first exemplified but certenly there is
sufficient left in that w
for the words are that no freeman shalbe taken or ymprisoned
but by the lawfull Iudgem
Peeres) for peeres ordinary Iuro
their Peeres) or by the law of the land w
the land must of necessitie be in vnderstood in this notion to
be by due p
gen
call villaines) who are excluded by the word liber for
gen
them at their plesuer w
from the Freemen in respect of their
ymprisoned w
vnderstandinge of these wordp er
legem terre will more
plainely apere by div
expound
grand Ch
to be vnderstood of suyts betwene p
not of them alone, but even of the Kings suyts against his
subiects, as will appere by
Charter w
Kings & their people and therefore p
their power over them, and not to ordinary question betwixt
subiect and subiect 2ly the wordper legale Iudiciu m
parum suorum
per
legem terre
of
Realme be arragned at
Indictment of Murder he shalbe tryed by his peeres
is Nobles but if he be appealed of Murther by a subiect
his tryall shalbe by an ordinary Iury of 12 freehould
as appereth in -10 -. E. 4. 6. .33. H.
Triall .142- Stamford pleas of
fol 152 and
Magna Carta, by the same reson therefore as per
iudicium periu m suorum
soe shall these wordp er legem terre
Parliaments membrano 7. there is a petic
a writ vnder the privie seale went to the Gardians of
the greate seale to cause lands to be seised into the Kings
hands, by force of w
Chancery to the Escheato
of the grand Chart
out noe man of his Freehold w
and
statute did extend to
vppon this p
. 3 . w
. E. 3- Cap: 9 It is ordeined in their words, It is
enacted that no man from thence forth shalbe attached
by any accusation nor foreiudged of lyfe or lymbe, nor,
his lands tenem
hands against the forme of the greate Charter and the
law of the land 25 . E . 3 . Cap . 4 is
more full and doth expound the words of the grand
Charter, And it is thus wheras it is conteyned in
the greate Chart
shalbe ymprisoned or put out of his Freehould nor of his
Franchise nor freecustome, vnlesse
of the land, It is accorded assented and established
that from henceforth none shalbe taken by petic
or suggestion made to o
vnlesse it be by Indictm
lawfull people of the same neigbourhoode where such
deedes be done in due manner or by p
originall at the Comon lawe, nor that none be out of
their Franchises nor his Freeholds vnlesse he be duly
brought in answere and foreiudged of
of the lawe and if any thinge be done against the same
it shalbe redressed & holden for none /
But of this statue I obserue that what in Magna
Carta and the p
lawe of the land is in
by p
is a playne Interpretation of
in
vppon the Comittm
lib
words are not many but very full & significant
estate or Condic
tenem
death he w
here yo
rendred by due p
. 39 . E.3 . Rot Parliam
the petic
out of frenche, it is thus, first That
Ch
be well & firmely kept & put in due execuc
disturbance or makinge arrest contrary to them by speciall
Comand or other manner /
The answere to
Parliam
Earles Barrons &
that
to
to
This Concludes
as
of an act, and many are omitted out of
36 . E . 3 . Rot Parl
further for their
Grand Charter & other statuts
by speciall Comand w
made by
many are hindred taken & ymprisoned w
p
said lord to Comand those to be deliu
Comand against
aforesaid The answere is
The Kinge is plesed that if any man fynde hymselfe greeved
37 .E - 3 - Cap. 18 agreeth in substance when it saith
though
or ymprisoned or put out of his freehold w
Neu
as well for mallice as other wise, whereof
greived, and divers of
of
before
that they their fynde suertie to pursue their Suggestions, and
incurr
attainted, in case that his suggestions be found evill, And
p
ymprisoned against
here
w
42 . E . 3 Cap.3. At
by their petic
and damage done to diuers of his Comons by falce accusers
W
and singuler benefitt then for the p
people w
caused to come before the Kings Councell by writt & otherwise
vppon greivous payne against
It is assented & accordid for
iustics in matt
to
done to
But this is bett
answere w
Rot Parliam
The petic
It
accusors, who make their accusations more for Revenge &
pand
And those that are accused by them some haue byn taken and
others haue bin made to come before
Writt or other Comandem
contrary to
and his good Councell for
ordeyne that if hereafter any accuser propose any matter for
of
determined accordinge to
man be put to answere w
matt
done to
their by due p
lawe of p er legem terre
magna
Carta And
by
The King
Because this Article is an article of the graund Charter
the Kinge will that this be done as
By this apperth that per legem terre
magna Charta
is ment by due p
Thus yo
But the statute of Westm
this poynt opinion where it is expressly said that a man is
not replevisable who is Comitted by
therefore is w
it sufficient to Comitt a man to prison, And because
of
I shall reade
forasmuch as Sheriffs and others w
prison persons detected of felony and often tymes haue let
out by replevie, such as were not replevisable and haue
kept in prison such as were replevisable, because they would
gayne of
And forasmuch as before this tyme
certenly determined what p
not, but only those that were taken for
or by Comandem
It is p
before were out lawed, And they w
provers, and such as be taken w
broken
& such as be appeled by provers, soe as
if they be not of good name, and such as be taken for burninge
of houses feloniously done, of or for money, or for
Counterfeitinge
taken at
or for treason, touchinge
replevisable by
as be indicted of larceny by inquest taken before sheriffe or
Bayliffs by their office or of light suspicion or for pettye
larceney
were not guyltie of some other larceny aforetyme or guyltie
of
felony done or guyltie of some other trespas for w
not to lose life or member, and a man appealed by a prover
after
shall from henceforth be let out by sufficient suerty whereof
their good
or other Bayliffe of Fee w
thereof be attainted he shall lose his fee & office foreu
keepinge of prisons doe it contrary to
or any other bayliffe beinge not of fee, They shall haue three
Yeeres ymprisonm
And if any w
haue offered sufficient suerties, he shall pay a greivous
amerciament to
deliu
shalbe in
The answere
It must be acknowledged
of
of this statute, But this maketh nothinge against
of
a man by suerties
by
it is to be Knowne
w
giuen & baylable w
prisoner is deliu
and may ymprison hym and shall suffer for hym body for body
as appereth 33° et 36 E.3. in
pl: 12 . 13. where
is expressly taken And if
be observed it will appere playnely
& other inferior officers & doth not bynde
The preamble w
meaninge of
& others w
felony, out of these words I obserue,
and then if
vnder the genother w
those of an higher Ranke but to inferiours, for
Course) is first to be named, And therefore if a man bringe
a writt of Customes and servics, and names rents & other things
the gen
and of an higher nature, but it shall extend to ordinary Annuall
services .31. E .1. droit 67 . see
w
& Conculds w
shall not Comprehend Bishopps
Cooke lib: 2 fo: 46. 6. And thus much is explayned in this
very statute towards the end when it doth enumerate those Word
meant by
& Bayliffs againe
taken & kept in prison, Nowe eu
neither arrest nor keepe men in prison That is office of Sheriffs
and other inferior minist
such only and not iudges, the words are further that they let
out by replevin such as were not replevisable this is
language for a Sheriffe, naye more expresse afterwards in
the body of the statute, that such as are there menc
no wise replevisable by homine
replegiando
w
is this that the Comand of the iustices (whoe derive their
authoritie from
purpose w
resonable Construction it must needes relate to officers
that are subordinate to both, as Sheriff
Constables & the like And it were a harshe exposition to say
that the isutices might not discharge there owne Comand
and yet that reson would conclude as much, and that this was
ment of
recytall of 27 . E . 1 . Cap. 3. and like wise by fleta a manuscrip
called soe because the author laye in the Fleete when he made
the booke, for the lib: 2 Cap: 52 in his Chapter of retornes
and the veicees of
the Articles of the Charges, that are there to be enquired of
amongst wis de replegiabilibus iniuste vetentis
et irreplegiabilibus dimissis, w
baylinge by
Cuntry to doe w
playne he setteth downe in this Chappill that concernes Sheriffs
onely
verbatim, out of Frenche into lattine, saue that the Recordes
taken by per Iudicum
Iusticiarioru m
that he vnderstood it of Replevine by
qui de beat p
per plegios is before the Sheriffe, but for direct authoritie
it is Newton the Cheife Iustice in 22 H. 6. 46.
where his words are these It cannot be intended that the
Sheriffe did suffer hym to goe at large by manuprise for where
one is taken by
may come to
Cannot deliu
for that he is irreplevisable w
statute, but saith he his freinds may come to
and purchase a sup
that the Sheriffe had noe power but that the iustices had
power to deliu
And both
much for he that is taken for the death of a man or for the
forrest is not replevisable by
ordinarily bayled by
directed to A As
apperes in
not baylable And it is eu
of the Kings benche doe bayle for murder and for offences
done in the forrest w
irreplevisable in NO. 1. were ment of
as
doe prove
The first is 21 E . 1 . rot 2. in
in
not an act of p
there brought wt in those tymes, And
that Stephen Rabaz
Warwick was questioned for that he had let at large by
suerty as amongst others one Will
Persone against
the Kinge had Comanded hym by lett
that he should doe no favor to any man that was Comitted by
the Sheriffe answered
King
acknowledge
Comitted to prison accordinge to
To this I answere that the Sheriffe was iustly
punished for
w
The next Authoritie is 33 . H . 6 . in
Comon pleas fol 28 . 6 . 29 . where Robt Poygnes Esq
was brought to
was Comitted p
for duos id est duos de Concilio w
What I mayneteyne pro diuersis Causis regem tangentib
And he made an att
This I
that booke one way or other vppon
their any testimony whether he was deliu
2ly it apperes expressly
Charged in an acc
desye of his owne to be deliu
remanded it is noe way materiall to
But
in his booke of
73 in his Chapter of Maniprise where he reciteth the statute
of W . 1 . Cap. 15 And then saith thus by this statute it apperes
that in 4 cases at No not replevisable
to witt those that were taken for the death of a man, by
Comand
farr he is most right then he goeth on & saith as to
of
or his Councell w
w
man w
the C
for if it be their ordinary Comand
Sherife if it be not in some of
The answere that I giue vnto this is That Stamford
hath said nothinge whether a man may be Comitted w
by w whether the Iudges ought not to
bayle hym in such a case but only
W
man should thinke he ment any such thinge he concludes his
Whole sentence touchinge the Comand of
Iustices That one Comitted by
Comand is replevisable by
all by
man Comitted by
not bayleable by
in this case, what he would haue said if he had bene asked the
question cannot be knowne, neither doeth it appere by
any thinge he hath said
be inferred out of hym And now my Lords I haue p
the Comand of
declarac
truth fortified w
by any statute or authoritie of Lawe whatsoeu
The obiecc
answeres made therevnto at
Conferrences touchinge the same matt
It was agreed by M
vrged by Magna Charta did
extend most properly to
of them are in gen
but are to be expounded by
more p
and not to
as could be w
though some of them speake of suggestions of the subiect
yet others do not and they
they are in equall reson a Comittm
beinge of as greate force when it moveth by a suggestion from
a subiect, as when
the rather for that Kinges seldome intermeddle w
this nature, but by informac
Mp er legem terre
Magna Charta
w
for p
proceeding
Constable may arrest either for felony or for breache of the
peace or to p
originall writt, and it were hard
make p
doe not intend originall writt
but all other legall p
of Law vpon cause other then Iuris Iudiciu m parium
vnto wex vi termini
out of the worde proces and by ex acceptac
in the statut
their declarac
Where it appereth
the Course of the lawe havinge form
by originall writ And in
lawe is rendred by due p
No 20 The petic
Cooke 5 111
2R. 3. 18 22
E. 31 .299 . 19
due p
thinge p
p
Statut
w
of Magna Charta by
due proces of
by
due p
thinge the latt
and that all of them ymport any die & reguler p
Lawe vppon a cause other then the tryall by Iury, And this
appereth (Cooke 10 74 in the Case of
Cooke 11 9 9 , James Bagg
of givinge Iurisdiction by Charter of
grounde of a p
noates on Fortescue fo. 29 where it is expounded for lawe
differinge from
and all other Regular p
authoritie to
should not be the true expression of thes wordp er legem terre
The King
w
not put into
And therevppon M
of them thus namely, That there were diu
As
Marshall law & p er legem
terre
and
lawe w
vnderstood by way of excellency when menc
of
lawes w
or act of p
none of them can haue
vnprinted could be shewed to proove That
gen
even by those other lawes a man may not be Comitted w
cause expressed But it standeth w
pp er legem terre
w
Inheritances & therefore if a man speake of Escuage, generally
it is vnderstood as littleton observeth P 99 of
w
Escuage w
p
Record it is ment only of westm inster by way of excellency
Cooke. 6. 20. Gregories Case Soe
simplie spoken doe intend the greater excomunicac
Emperor in his Institutions saith that
spoken gen
lawe of eu
the poet the Grecians vnderstand homer the lattinist
2dly admitt that p er legem terre
yet a man must not be Comitted by any of them but by the due
proceeding
declared Againe it was vrged
is not bounde to expresse a cause of ymprisonm
may be in it matt
least
hand
to restreine all Comittm
publishe
Therevnto it was replied by
may be avoyded by declaringe a gen
suspicion of treson misprision of treson or felony w
then wilbe coniectured by
ymprisonm
It was further alledged that there was a kinde of contradiction
in
w
beinge a kinde of ymprisonm
To this it was answered that it hath alwayes ben
the discrec
by
intended to be done on iust & waightie causes, that they will not
p
obiected against hym on his Ma
inferior officer comitt a man w
instantly deliu
soe
some meane minister of Iustice, Baylinge when it is done by
that baylinge is a grace & favor of a Courte of Iustice and that
they may refuse to doe it, This was agreed to be true in diu
cases As when
expressed for that there is an other way to discharge them in
(and by their tryall (and yet in these cases the
Constant practize hath bene aunciently and modernely to
to bayle men / But where noe cause of ymprisonm ent ymprisoned
is returned, but
such ph abeas Corpus, And
w
Comitted no iffence might be in worse case then a greate offendor
for
other should neu
It was further saide that thouhg
Cap: 15 . as a statute of way of provic
to Sheriffe, yet
4 causes, wherin a man was not replevisable at Comon la
namely those
Comand of
were sinomina & all one And
authoritie doth expounde it accordingly And
Statute nor he saie replevisable by
w
man he is not to be enlarged by an other Courte as appereth
in
body of Sheriffe as appereth by
very wordSheriffe
for
Cheife iustice is baylable by
Stamford meaneth all of Sheriff es
or at least he hath not
sufficiently expressed that he intended
deined
in respect of
KingSherriff es
, And
they are of seu
vppon suerties baylinge beinge when one
&
boddy for body w
And bayle differeth from mayneprise in this
is an vndertakinge in a sum
the Condempnac
for body And
were then renewed & noe exeptions taken to any haue
22 H . 6 . it doth not appere
by his mouth (w
w
Comitted by Kinge writt or Comandm
21. E. 1 Rot
But it was answered that it conc
Shire onely & not
was nothinge to
Cited by those that mayneteyne the Contrary to
of
given thervppon is not to be regarded, the foundac
w
inferred therin but that theis word
en arrest faire et lon com per speciale mandem
auter maniere
in execuc
be put in execuc
to
The Condic Comons did vtterly deny
given by
appeale to all men
Statut
trueth, not controulled by any thinge said to