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Customs, or Statutes of the Realm; then is the Charter void. And it is either by quo warranto or by scire facias (as learned men have left precedents) to be repealed. Anno 19: Ed. 3.

That a King's grant either repugnant to law, custom, or statute is not good nor pleadable in the law, see what precedents thereof have been left by our wise forefathers. It is set down in the 14th Henry the 6th 11, 12. that King Henry the 2d had by his Charter granted to the Prior and Monks of St. Bartholomews in London, that the Prior and his Monks should be as free in their Church as the King was in his Crown; yet by this grant was the Prior and his Monks deemed and taken to be but as subjects, and the aforesaid grant in that respect to be void: for by the law the King may not any more disable himself of his regal superiority over his subjects, than his subject can renounce or avoid his subjection against or towards his King or superior. You know Story would have renounced his loyalty and subjection to the Crown of England and would have adopted himself to have been a subject to King Philip. Answer was made by the Court, for that by the laws of this Realm neither may the King release or relinquish the subjection of his subjects, neither may the subject revolt in his allegiance from the superiority of his Prince.

There are two notable precedents in the time of King Edward the 3d, the which although they take place in some one respect, yet were they not adjudged of according to the mind of the King being the grantor. That is, the King granted unto the Lord William Montague the Isle of Wight, and that he should be crowned King of the same. And he also granted unto the Earl of Darby the Isle of Man and that he should be crowned King of the same. Yet these two personages notwithstanding the said grants were subjects; and their islands were under the dominion and subjection of the King; and in that respect were the grants void.

It was spoken in the 8th of Henry 4th 9., Quod potestas principis non est inclusa legibus: that is, a prince's power is not bounded by rules or limits of the law. Howsoever that sentence is, see the law agreed to the contrary, the 37th of Henry 6th 26, 27. whereas it is agreed for law that it is

1 Dyer, 300.

2 The MSS. have 31 Ilen. 6. but a reference to 37 Hen. 6th is annexed, which is clearly the true one. S. C. Br. Prerog. 103.

not in the King's power to grant by his Charter that a man seised of lands in fee simple may devise by his last will and testament the same lands to another, or that the youngest son by the custom of Borough English shall not inherit; or that lands being frank fee shall be of the nature of ancient demesne; or that in a new incorporated Town an assise of fresh force should be used, or that they shall have toll travers or through toll or such like, &c. 49 Ass. 4, 8.

See also a notable case agreed for law in the 6th of Henry 7th 4. where the justices do affirm the law to be that Rape is made felony by statute, that the same by the law is not enquirable but before justices that have authority to hear and determine of the same: in this case the King cannot by his charter make the same offence to be enquired of in a Lawe day, nor the King cannot grant that a Leet shall be of any other nature than it is by course of the Common Law. So that thereby it appeareth that the King may not either alter the nature of the law, the form of a court, or the manner and order of pleading.

And in the 8th of Henry 6th 19. it is agreed for law that the King may not grant to J. S. that J. S. may be judge in his own proper cause, nor that J. S. shall [not]1 be sued by any action at the Common Law by any other person, nor that J. S. shall have a market, a fair, or a free warren in another man's soil,

And in the long Record, by Hill the reverend judge it is said for law, that whereas the King hath a Prerogative that he shall have the wardship of the body of his tenants although he hold of the King by posteriority, yet if the King grant his signory unto another with like prerogative notwithstanding any posteriority, this prerogative shall not pass, for, saith the book, the King by his charter cannot change the law. The same law is, that the King cannot grant unto another the prerogative of nullum tempus occurrit Regi, nor that a descent shall not take away an entry, nor that a collateral warranty shall not bind, nor that possessio fratris shall not take place, nor that the wife shall not be endowed of her husband's lands, nor that inheritance shall lineally ascend, nor that any subject shall be under protection from arrests and suits and such like, &c.

Yet do not we see daily in experience that whatsoever can be

1 I have added this word conjecturally.

2 14 Hen. 4. 9.

procured under the great seal of England is taken quasi sanctum; and although it be merely against the laws, customs, and statutes of this realm, yet it is defended in such sort, that some have been called rebellious for not allowing such void and unlawful grants?

And an infinite number of such like precedents I could set down to maintain the aforesaid argument, but these few examples shall serve for this time, &c.

But now have we to see if the said Charter granted to the city, concerning the authority of the Governor of Bridewell, stand with the laws, customs, and statutes of this Realm, or not: the effect of which charter in one place is that the Governors have authority to search, enquire, and seek out idle ruffians, tavern haunters, vagabonds, beggars, and all persons of evil name and fame whatsoever they be, men or women, and then to apprehend and the same to commit to Bridewell, or by any other way or means to punish or correct them as shall seem good to their discretions.

Here we see what the words of the said Charter are. Now are we to consider what the words of the Law be.

See Magna Charta of the liberties of England, cap. 29. No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed or exiled, or any other way destroyed, nor we shall not pass upon him nor condemn him but by lawful judgment of men of his degree, or the law of the land.

Now if we do compare the said Charter of Bridewell with the great Charter of England both in matter, sense, and meaning, you shall find them merely repugnant.

In the said great Charter of England, in the last chapter, amongst other things the King granteth for him and his heirs, that neither he nor his heirs shall procure or do anything whereby the liberties in the said Charter contained shall be infringed or broken; and if anything be procured or done by any person contrary to the premises it shall be had of no force. or effect. Here must you note also that the said great Charter of England is not only confirmed by the statute of Marlebridge, cap. 5., but also by many other statutes made in the time of King Edward 3rd, King Richard 2nd, Henry 4th, Henry 5th, and Henry 6th, amongst sundry of which confirmations I note one above the rest, the which is Anno 42

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.


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.


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.

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