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The Commission of Bankrupts giveth power to the Commissioners to take order by their discretions both with the body and goods of the bankrupt and to set the bankrupt out of his house, and him to imprison; and all this is referred to the discretion of the Commissioners: but this is by authority of Parliament, Anno 13 Eliz. cap. 7.
The punishment and examination of such as counterfeit letters or privy tokens is referred to the discretions of the Justices of peace in every county : but this is by Parliament, Anno 33 Hen. 8th, cap. 1.
The examination of Riots, Routs, and such like misdemeanors in the Star Chamber is referred to the discretion of the Judges of the Court: but this is by Parliament, Anno 3 Hen. 7. cap. 1. et 21 Hen. 8. cap. 20.
The examination of unlawful hunting in the King's warrens &c. is referred to the discretion of the Justices of peace, and if the offender deny his hunting, then it is felony. This also is by Parliament, Anno 1° Hen. 7. cap. 7.
The rate, taxation, and punishment of servants labourers and of their wages is referred to the discretion of the Justices of peace in every county. And this also is by Parliament, Anno 5° Eliz. cap. 4.
The examination of Rogues and vagabonds, with the forms of their punishment, is referred to the Justices, but by Parliament.
The determination of all causes in Wales is referred to be ended by the King's Council there established by their wisdoms and discretions: but yet this is by Parliament.
The grant of the pluralities, tot quot qualifications, dispensations, licenses, and tolerations, is referred to the discretion of the Archbishop of Canterbury: but this is by Parliament.
The dealings and examinations of High Commissioners are authorised altogether by Parliament.
And to be short, ye shall find in the great volume of the Statutes near the number of forty Acts of Parliament that do refer the examination or punishment of offenders to the wisdom and discretion of the Justices; whereupon I note that if the King by prerogative might have done all things by Commission or by Charter, that it had been vain to have made so many laws in Parliament for the same, &c. And to make the law more manifest in this question, Anno 42 Ed. 3. lib. Assis. N° 5. a commission was sent out of the Chancery to one I. S. and others, to arrest the body and goods of A. B. and him to imprison. And the Justices gave judgment that this Commission was directly against the law, to take any man's body without indictment; and therefore they took the Commission from the Commissioners to the intent to deliver the same to the King's Council, quod nota.
And I do find also in the 24th of Ed. 3. this precedent; that a Commission was granted unto certain persons for to indict all those that were notoriously slandered for any felonies, trespasses, or for any other misdemeanors, yea although they were indicted for the same; and it was adjudged that this commission was directly against the law.
And [thus]' I do conclude upon the whole matter that the Commission of Bridewell would be well considered of by the learned Counsell of the city ; for I do not think the contrary but that there be learned ? that by their great knowledge in the law are well able either in a quo warranto, or any other action brought to defend the same, &c.
I “ These" in MS.
2 So in both MSS. I take the general meaning to be, that though he has given reasons for doubting the validity of the Charter, yet it may be that the City counsel may be able to defend it.
THE Dedication and first four of these Arguments were printed by Blackbourne in 1730, from Sloane MS. 4263., a MS. largely corrected by Bacon himself. The Dedication, as first copied in the uncorrected draft, must have been written while Coke was Chief Justice of the Common Pleas, i. e. before Mich. Term, 1613; but, if I am right in identifying the Case of Impeachment of Waste with Lewis Bowles' Case, the transcript must have been made after Easter Term, 1615. Bacon's interlineations fix his revision as of the time when he was a Privy Councillor and Coke Chief Justice of the King's Bench, i. e. 1616, and before November of that year.
These four Arguments are given in the order of the MS. The others follow in their own chronological order.