| Chap. 170. |
Arrest and Imprisonment.
of another without Offence of the Law, is one of the Kings Royal Prerogatives,
and only annexed to the Crown. |
447 |
P. Accus. 1.
5 E. 3. c. 9. |
Also by the Statute Magna Charta, made 9
H. 3. c. 29. no Free-man
shall be taken or imprisoned, &c. but by the lawful judgment of his
Equals, (sc. upon his Conviction (for some offence) by the Verdict
of a
Jury of 12 good and lawful Men) or by the Law of the Realm. See Petition
Anno 3 Caroli Regis, & Stat. 5 Ed. 3. cap. 9. |
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| Co. 10. 74. |
And by the Statute of Magna Charta, every
Arrest or Imprisonment,
and every Oppression against the Law of the Land, is forbidden; and if
any Judge, Officer or other Person, against the Law, shall usurp any Jurisdiction,
and by colour thereof shall arrest, imprison or oppress any Man,
it is punishable by the Statute. See Co. 10. 75. |
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' This Grand-Charter is a Declaration of the antient
Common Law,
' Co. 10. 48. And the Statute of Magna Charta, & Charta
Forestæ, for
' their excellency have since been confirmed by the authority of above
' 30 several Parliaments. See Co. Prefac. to the 8 Report. |
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Note, That all Jurisdiction ought to be either by
Charter or Prescription,
Co. 11. 99. |
§. 4.
Jurisdiction. |
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Also by the Statutes of 25 E. 3. c. 4.
28 E. 3. c. 3. & 42 E. 3. c. 3. no
person shall be taken or imprisoned, nor put to answer, unless it be by
Indictment or Presentment (of a Jury) before Justices, or by matter of
Record, or by due Process made by Writ Original at the Common Law.
See P. Accusation 1. & 42 Ass. 5. And Br. Faux
Impris. 30. 2 H. 4. the
Body of a Man shall not be taken but by Process out of a COurt of
Record. |
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A Commission to arrest or take a Man (and his Goods)
was holden to
be against Law, for that his ought to be either upon Indictment, or
suit of the party, or other due Process of Law, Br. 15, 16. &
Faux Impris.
9. & Indictment 38. 42 Ass. 5. 12. 24 E.
3. 9. Co. 5. 64. ' Et les Commissioners
' de Oyer & Terminer poent prendre tiel Commission del party,
&
' rem. ceo al Counsel le Roy, car est enconter Ley. |
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And so note, that no man shall be arrested for Debt,
Detinue, Trespass,
or other cause of Action, but only by virtue of a Precept or Commandment
out of some Court of Record. |
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Neither shall any Man commit another to prisoner,
except he be Judge
of Record, Co. 10. 103. |
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See Co. 3.
11. 2. |
But yet for misdemeanours done against the Kings
peace, (as for Treason,
Felony, or breaking of the Peace, &c.) the Offenders as well by
the Common Law, as by divers Statutes, may be arrested and imprisoned
by the Officers of Justice, and sometimes by private persons (as
hereunder followeth) without either Presentment, Process, Precept,
Warrant, or other Commandment. And these being by the Law of the
Realm, are warranted by the aforesaid Statute of Magna Charta. |
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And Mr. Bracton (l. 5 in fine)
saith thus; In eriminalibus causos, ubi
sequi debet capitale judicium, vita viz. vel mutilatio membrorum, non sequitur
Attachiamentum aliquod, sed corpus tale (quiennque fuerit ille) ab
omnibus arrestatur qui sunt ad fidem Domino Regis, sive inde Præceptum
habuerint, sive non habuerint. |
§. 5.
By a private
Man. |
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And yet you must observe, that for arresting of
the Body of a Man in
such cases there must be some just cause, or some lawful and just suspition
at the least. And therefore where a Man is indicted of Felony, that
is a good cause for any Man to arrest him. But if an Appeal of Felony
be commenced against another, that is no sufficient cause, for it is but
a
private suspition, &c. |
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