INter Magnalia Regni; Magnalia Reg­ni, 19. H. 6. Amongst the greatest and most haughty things of this Kingdome; as it is affirmed in the 19. H. 6. Le ley est le pluis hault. Inheritance q. le Roy ad, &c. That is; the Law is the highest Inheritance that the King hath.

For by the Law both the King and all his Subjects are ruled and directed.

The Maximes to direct the King.The Maximes and Rules whereby the King is directed, are the ancient Maximes and Cu­stomes, and States of this Land.

The Maximes. The Maximes are the foundations of the Law, and the full and perfect Conclusions of reason.

The Customes of the Realm. The Customes of the Realme, are properly such things, as through much, often, and long vsage: either of simplicitie, or ignorance, get­ting once an Entrie; are entred and hardned by Succession, and after be defended as firme and stable Lawes.

The Statutes of the Realm. The Statutes of the Realme, are the resolute Decrees, and the absolute Judgements of the Parliament established by the King, with the common consent of the three Estates, who doe represent the whole and entire Body of the Realme of England.

To the purpose of this discourse, The law is: If any Charter bee graunted by the King, the which is repugnant to the Maximes, Cu­stomes, or Statutes of the Realme; Then is the Charter void, and it is either by Quowarranto, or by Scirefacias (as learned men have left Pre­sidents) to bee repealed. As in Anno 19. Ed. 19. Ed. 3. 3.

That a Kings Grant which is either repug­nant to Law, A Kings Grant repug­nant to Sa­tutes &c. not good. Custome, or Statute, is not good nor pleadable in the Law; See what Presidents thereof have beene left by our wise Forefa­thers.

It is set downe in 13. 13. H 6. H. 2. H. 6. That King H. 2. had by his Charter granted to the Pryor and [Page 5]Monks of S. Bartholomews in London, that the Pryor and his Monks should be as free in their Church as the King was in his Crowne.

Yet by this grant was the Pryor and his Monks deemed and taken to be but as Subjects, and the aforesaid grant in that respect to be voide. For by the law the King may not any more disable himself of his regall superiority over his Subjects, then his subjects can re­nounce or avoide their subjection, against or towards their King or Superiour.

Stacyes, ex­ample.You know that Stacy would have renounced his loyalty and subjection to the Crowne of England, and would have adopted himselfe to have been a subject to King Philip of Spaine. But answer was made by the Court; That by the lawes of this Realme, neither may the King re­lease or relinquish the subjection of his sub­ject, neither may the subject revolt in his alle­giance from the superiority of his Prince.

There are two notable presidents in the time of King Edward 3. K. Ed. 3. the which although they take place in some one respect; yet were they not adjudged of according to the minde of the King being the Grantor.

The L. Moun­tague. That is, the King granted unto the Lord William Mountague, the Isle of Wight, and that he should be crowned King of the same.

The Earle of Darby. And he also granted unto the Earle 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, 8. H. 4. and their Islands were under the dominion and subjection of the King, and in that respect were the grants voide.

It was spoken in the 8. 31. H. 6. H. 4. Quod potest as Principis, non est inclusa legibus. That is, a Princes power is not bounded with rules or li­mits of the law: howsoever that sentence is so, the law agreed to the contrary.

The 31 H. 6. whereas it is agreed for law, That it is not in the Kings power to grant by his Charter, that a man seized of land in see simple, may devise by his last Will and Testa­ment the same lands to another, or that the youngest sonne by the custome of Burrough English, shall not inherit; or that lands being Frank fee, should be of the nature of ancient demeasne.

Or that a new incorporated towne, 34. H 8. that an assize of Fresh force should be used, or that they shall have toll, traverse, or through toll, or such like, &c. 37 H. 8. & 49. Ass. 4.8.

See also a notable case agreed for law in 6. H. 7. where the Justices doe affirme the law to be, that Rape is made felony by statute, and that the same by the law is not inquirable but be­fore Justices that have authority to heare and determine of the same.

In this case the King cannot by his Charter [Page 7]make the same offence to be enquired of in a Law day; nor the King cannot grant, that a Leet shall be of any other nature, then it is by the course of Common Law: So thereby it appeareth; that the King may not either alter the nature of the Law, the forme of a Court, or the manner or order of pleading.

And in 8. H. 6. it is agreed for Law; Anno 8. H. 6. That the King may not grant to I. S. That I. S. may be judge in his owne proper Cause; nor that I. S. shall be sued by an action at the Common Law, by any other person; nor that I. S. shall have a Market, a Faire, or a free Warrant in another mans soyle.

Hill Justice.And in the long Record by Hill the reverend Judge, it is said for Law; That whereas the King hath a prerogative, that Hee shall have the worship of the body of His Tenants (al­though be hold of the King but by posteriori­ty) yet if the King grant over his Seigniory un­to another with like prerogative (notwitstan­ding any Posteriority) the prerogative shall not passe: For (saith the Booke) the King by His Charter cannot change the Lawes.

The same Law is; That the King cannot grant unto another the prerogative of Nullum tempus occurrit Regi; nor that a Discent shall not take away an Entry; nor a Collaterall Warrant shall not bind; nor that Possessio Fra­tris shall not take place; nor that the wife [Page 8]shall not be endowed of her husbands lands; nor that Inheritance shall lineally descend; nor that any Subject shall be under protection from arrests, suits, and such like, &c. Yet doe not wee see daily in experience; That whatso­ever can be procured under the Great Seale of England, is taken Quasi sanctim?

And although it be meerly against the Laws, Customes, and Statutes of this Realme; yet it is defended in such sort, that some have been called rebellious, for not allowing such voyd and unlawfull grants.

And an infinite number of such like presi­dents I could set downe to maintaine the afore­said argument, but these few examples shall serve for this time.

The authority of the Gover­nours of Bridewell.But now we have to see, if the said Charter granted to the Citie concerning the authoritie of the Governours of Bridewell, stand with the Lawes, Customes, and Statutes of this Realme or not.

The effect of which Charter in one place is; That the Governours have authority to search, enquire, and seek out idle Ruffians, Taverne­hunters, Vagabonds, Beggars, and all persons of evill name and fame, whatsoever they bee, men or women, and then to send and commit to Bridewell, or by any other wayes or meanes to punish or correct them, as shall seeme good to their discretions.

Here you see what the words of the said Charter are.

Now are wee to consider what the words of the Law be.

See Magna Charta of the Liberties of Eng­land cap. 29. Magna Char­ta cap. 29. 29.

No Freeman shall be taken or Imprisoned, or be Disseised of his Freehold, or Liberties, or free customes, or to be outlawed, or exiled, or any other wayes destroyed, Nor wee shall not passe upon him nor condemne him, but by law­full Judgement of men of his degree, or by the Law of the land.

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

In the said great Charter of England, in the last Chapter amongst other things, the King granteth for him and his heires, That neither he nor his heires shall procure or do any thing, whereby the Liberties in the said Charter con­tained, shall be infringed or broken.

And if any thing be procured or done by any person contrary to the premisses, it shall be had of no force or effect.

Here must you note also, That the said great Charter of England is not onely confirmed by the Statute of Marlebridge cap. 5. Stat. of Malb. cap. 3. but also by many other Statutes made in the time of King [Page 10] Edw. King Ed. 3. R. 2. H. 4. H. 5. H. 6. Anno 43. E. 3. cap. 1. 3. King R. 2. Hen. 4. Hen. 5. and Hen. 6. Amongst sundry of which Confirmations, I do note one above the rest. The which is An. 43. Edw. 3. cap. 1. The words are these viz.

It is assented and accorded, That the great Charter of England, and the Charter of the Forrests, shall be kept in all points: and if any Statute be made to the contrary they shall bee holden for none.

Hitherto you see it very plainly, That pro­curement nor Act done either by the King or any other person, or any Act of Parliament, or other thing; may in any wayes alter or change any one point contained in the said great Charter of England.

But if you will note the words, sence, mat­ter, and meaning of the said Charter of Bride­well, you shall finde it all meerly repugnant to the said great Charter of England.

I doe note one speciall Statute made in the said 43. yeere of King Ed. 3. the which if it be well compared to the said Charter of Bride­well, it will make an end of this contention.

The words are these, viz.

Item, at the request of the Commons, by the Petition put forth in this Parliament, to eschew the mischiefes and damages done to divers of the Commons by false Accusers; which oftentimes have made their Accuse­ments, more for vengeance and singular profit, [Page 11]then 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 the Ju­stices of the King upon Record by due pro­cesse, As by Writ originall, according to the old Law of the land, And if any thing from henceforth be done to the contrary, it shall be void in the Law, and holden for Errour.

As I said before, so say I still; If this Sta­ture be in force, as I am sure it is; then is the Law cleare: That the proceedings in Bride­well upon the accusation of Whoors taken by the Governours 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 King Ed. 3. by especiall procurement, to enquire of speciall Articles, the which Commissioners did make their Inquiries in secret places, &c.

It was therefore enacted, Anno 42. Ed. 3. Anno 42. E. 3. cap. 4. That from henceforth in all Inquiries within the Realme, Commissions should bee made to some Justices of one Bench or other, [Page 12]or Justices of Assize, or Justices of the Peace, with other of the most worthy of the Coun­tie, &c.

By this Statute we may learne, that Com­missioners of Inquiries ought to sit in open Courts, and not in any close or secret place, and that their Inquirie ought to be by Juries, and by no discussion or examination.

If you looke upon the Statute of Anno H. Anno 1. H. 8. cap. 8. 8. cap. 8. you shall there perceive the very cause, why Empson, Sheffeild, and others, were quite overthrown, the which was (as by the Indict­ments 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 of 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 Raigne of Queene Eliza­beth of happie memory unto Sir Ambrose Cave, Sir Richard Sackvile, and others, for the exami­nation of Felons, and of other lewd persons. It so fell out, that many men of good calling were impeached by the accusation of Felons. Some great men and Judges also entred into the vali­dity of the Commission, And 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 wisedome and dis­cretion of the Governours of Bridewell, As touching this point, I find that the examinati­on of robberies done by Sanctuarie men, was appointed to the discretion of the Councell, or to four Justices of the Peace; But this was not by Commission, or by Grant, but by Act of Parliament, made Anno 22. H. 8. cap. 14. Anno 22. H. 8. cap. 14.

The Justices of both the Benches have used to examine the abilities and disabilites of At­tourneys, and by their discretions to place or remove them upon their misdemeanours with­out any solemnitie of triall at the Common-Pleas or Law, And that is and have been done by the Treasurer and Barons of the Exchequer touching their Attourneys.

But if you search the cause thereof, you shall finde the cause to be done by the authoritie of Parliament. An. 4 H. 4. cap. 1. Anno 4 H. 4. cap. 1.

And whereas sundry men are arrested by Latitat, Capias, Attachments, and such like Pro­cesse whereof their corporall presence is requi­red, yet upon infirmities and other maladies, the Justices (having examined the matter) may by their discretions admit them to make Attour­neyes.

But note you in this case, Anno 7. H. 4. cap. 13. that all this is done by authority of Parliament. An. 7. H. 4. cap. 13.

The Commission of Bankrupts gives power [Page 14]to their Commissioners to take order by their discretions both with the body and goods of the Bankrupt, and 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. An. 13. Eliz. cap. 7.

The punishment and examination of such as countefeit Letters of privie tokens, is refer­red to the discretion of the Justices of peace in every Countie; But this is by Parliament. An­no 33. Anno 33. H. 8. cap. 1. H. 8. cap. 1.

The examination of Riots, Routs, and such like misdemeanours in the Star-chamber, is re­ferred to the discretion of the Iudges of the Court; Anno 3. H. 7 cap. 1. Anno 2. H. 8. cap. 20. But this is by Parliament. An. 3. H. 7. cap. 1. & An. 2. H. 8. cap. 20.

The examination of vnlawfull hunting in Parks, warrens, &c. is referred to the discretion of the Iustices of the Peace. And if the Offen­der deny his hunting, then it is felony. This is also by Parliament. Anno 1. H. 7. cap. 7. Anno 1. H. 7. cap. 7.

The Rate, Taxation and punishment of ser­vants, labourers, &c. of their wages, is referred to the discretion of the Iustices of Peace in eve­ry County, and Citie; but this is by Parlia­ment. Anno 5. Eliz. cap. 4. Anno 5. Eliz. cap. 4.

The examination of Rogues and Vagabonds with the forme of their punishment, is referred to the lustices, but by Parliament.

The determination of all causes in Wales, is referred to bee ended by the Kings Councell there established, by their Wisdomes and di­scretions; but yet this is by Parliament.

The Grant of the Pluralities, Tot quots, Qualifications, Dispensations, Licences, an▪ Tollerations, is referred to the discretion of the Arch-Bishop of Canterbury; but this is by Parliament.

The dealings and examinations of High Commissioners are authorized altogether by Parliament.

And to be short, you shall find in the great volume of the Statutes, neere the number of fortie Acts of Parliament, that doe refer the examination and punishment of Offenders to the wisdome and discretion of the Iustices.

Whereupon I doe note:

Nota. That if the King by Prerogative might have done all things by Commission, or by Charter; That it had been in vaine to have made so ma­ny Lawes in Parliament for the same.

And to make the Law more manifest in this question, In ann. 42. Ed. 3. lib. Assiz. 11.5. Ann. 42. E. 3. lib. Assiz 11.5. A Commission was sent out of the Chancerie to one I. S. and others, to arrest the body and goods of A. B. and him to imprison; and the Iustices gave judgement, that this Commissi­on was directly against the Law, to take any ones body without Indictment: and therefore [Page 16]they took the Commission from the Commis­sioners, Nota. to the intent to deliver the same to the Kings Councell, Anno 24. E. 3. Quod nota.

And I doe also find in the 24. yeere of King E. 3. this president, That a Commission was granted to certaine persons, to indict all those who 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 doe conclude upon the whole matter.

That the Commission of Bridewell would bee well considered of by the learned Councell of the citie: For I do not think to the contrary; but that there bee 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.