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Bailment.
Next, it followeth that I shew what persons be bailable,
and what
not. |
Chap. 166. |
§. 8.
Persons not
bailable. |
It appears by the Statute of Westm. 1. cap.
15. that in these four cases
following a man was not bailable at the Common Law. Br. Mainp.
47.
F. N. B. 66. e. |
P. Main. 1.
Stamf. 72. |
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1. No person taken for the death of a man,
sc. for Murther, or any
other Homicide, was bailable by the Common Law. |
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And yet the Justices of the Kings Bench do use to
bail them; yea, although
it be for Murther, Br. Mainp. 60, 63, 78, 47. See the Statute
3 H. 7. c. 1. |
B. Mainp.
11, 47, 57,
60, 63, 68.
F. Cor. 361. |
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Also the Stat. 1 & 2 P. & M. cap. 13
seemeth to admit that for Manslaughter,
and all other Homicides (except Murther only) the Slayer may
be bailed by the Justices of the Peace; which also I take to be the common
practice at this day. But let the Justices of peace be sparing and
well advised herein, viz. that the Offence be but Man-slaughter,
and not
Murther. |
P. Just. 107.
Lamb. 336. |
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Also it seemeth the Justices of Peace cannot bail
him that hath committed
Man-slaughter, if either he hath confessed the Offence upon the
Examination, (vide postea, tit. Bailment:) |
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Or that he be taken with the manner: |
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Or that it be apparently know that he killed the
other. Vide pag. sequent. |
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He that hath dangerously hurt another, may go under
Bail, &c. See
before, & Stat. 3. H. 7. cap. 1. |
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2. Secondly, no person taken by the Kings
Commandment was bailable
by the Common Law: but this must be intended of the Kings Commandment
by his own mouth, (when upon his meer motion he commandeth
a man to prison) or by his Privy Council, which are incorporate
to him. See Stamf. 72. e. Br. Mainp. 37. 47. |
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3. Thirdly, no person taken by the Commandment
of the Kings Justices
was bailable by the Common Law: But this must be intended of
their absolute Commandment: as if the Justice commands one to prison
without shewing cause why he doth so command, or for Misdemeanour
done in his presences or for some other cause which lieth in the discretion
of the Justice, (more than is ordinary power, &c.) and that such Imprisonment
be for a punishment. |
Stamf. 73.
See pag.
preced. |
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And therefore if the Lord Chancellor of England,
or Lord Keeper of
the great Seal, (who have power to commit one to prison wheresoever
they are in England) shall command or commit one to prison (by such
their absolute Authority) such person shall not be bailed. |
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And so if the Justices of the Kings Bench shall
command one to prison. |
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And so if the Justices of the Court of Common Pleas
sitting in their
Court. |
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Or Justices of Assize in their places; if these
shall commit any to prison,
they are not bailable. |
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But where any Justice or Justices shall commit one
rather to be safely
kept, than for a punishment, such Commitment may be said to be an
ordinary Commandment; and the party so committed is bailable. Terms
de Ley. |
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4. Fourthly, Trespassers in the Forest were
not bailable by the Common
Law: but that was remedied by the Stat. 1. E. 3. c. 8.
& 7 R. 2. cap. 4.
F. N. B. 67. c. |
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| By Statute. |
But now, for that by the Statute 1 & 2 Ph.
& M. c. 13. it is provided, |
P. Just. 107. |
