Page images

chancellor and register, &c. in the ecclesiastical courts, are within the statute 5 Edw. VI, cap. 16. The words of which statute are, "Any office, &c. wblch shall in any wise touch or concern the administration or execution of justice." And the words are strongly penned against corruption of officers; for they are, “ Which shalt in any wise touch or concern the administration,” &c. And the preamble : “And for avoiding of corruption, which may bereafter happen to be in the officers and ministers of those courts, places, and rooms, wherein there is requisite to be had the true adminis. tration of justice, in service of trust: and to the intent that persons, worthy and meet to be advanced to the places where justice is tó be ministered, in any service of trust to be executed, shall be nreferred to the same, and none other.” Which aet, being made for avoiding of corruption in officers, &c. and for the advancement of persons more worthy and sufficient for to execute the said offices, by which justice and right shall be also advanced, shall be expounded most beneficially to suppress corruption. And, inasmuch as the law allows ecclesiastical courts to proceed in case of blasphemy, beresy, schism, incontinence, &c. and the loyalties of matrimonies, of divorce, of the right of tithes, probate of wills, granting of administrations, &c. And that from these proceedings depend not only the salvation of souls, but also the legitimation of issues, &c.

• And that no debt or duty can be recovered by executors, or administrators, without probate of testaments, or letters of administrations, and other things of great consequence: It is most reason that officers which concern the administration and execution of justice in these points, which concern the salvation of souls, and the other matters aforesaid, shall be within this statute, than officers which concern the administration or execution of justice in temporal matters; for this, that corruption of offices, in the said spiritual and ecclesiastical causes, is more dangerous than the officers in temporal causes; for the temporal judge commits the party convict to the gaoler, but the spiritual judge commits the person excommunicate to the devil, Also those officers do not only touch and concern the administration of justice, &c. but also are services of great trust for this, that the principal end of their proceedings is, Pro Salute Animarum, &c. and there is no exceptor or proviso in the statute for them.'

It was resolved that such offices were within the purview of the said statute. Here follows the Duty of a Gaoler to his Prisoners, with his and other

Oficers' Fees due by Law. BY

Y the common law we find, as Bracton, lib iji. fol. 105.

Gaolers are ordained to hold prisoners, not to punish them.' For imprisonment by the law is (neither ought to be) no more than a bare restraint of liberty, without those illegal and unjust distinctions of close and open prison (as is usual.) See Stamf. Plac. Cor, fol. 70.

Therefore Cook, in his 3 Inst. 91, saith, “That if a gaoler keep the prisoners more straightly than he ought of right, whereof the prisoner dieth, this is felony in the gaoler by the common law*. And this is the cause, that, if the prisoner die n prison, the core ner ought to sit upon him t'. See also the said Cook, fol. 34. cap. Petty-treason ; bow prisoners are to be useb, wherein is also an account of an indictment of a gaoler for evil usage of his prisoner, fol. 35. in Trin. 7 Ed. III. cor. Rege Rot. 44.—That whereas one R. B. of T. was taken and detained in the prison of Lincoln castle, for a certain debt of statute-merchant , in the custody of T. B. constable of the castle L. aforesaid ; that the said T. B. put the said R. into the common gaol amongst thieves in a filthy prison, contrary to the form of the statute, &c. and there detained him till he had paid him a fine of forty shillings. Whereupon Cook makes this observation, 'So as hereby it appeareth, where the law requireth that a prisoner should be kept in safe and sure custody, yet that must be without any pain or torment to the prisoner.'

So Cook 3 Inst. 52, saith, “If a prisoner by duress, that is, hard usage of the gaoler, cometh to untimely death, this is murder in the gaoler,; and in the law implieth malice in respect of the cruelty.'

Horn, in the Mirror of Justice, p. 288, saith, “That it is an abusing of the law, that prisoners are put into irons, or other pain, before they are attainted.' See also Cook 3 Inst. 34, 35. And Horn also, p. 34, 36, reckons the starving of prisoners by famine, to be among the crimes of homicide in a gaoler. Vox Plebis, part I. f. 55, 56.

Which also Cook, in his 3 Inst. cap. 29. tit. Felony in gaolers by duress of imprisonment, &c. by statute and by the common law, fol. 91.

And, next, let us see what the law saith for the fees due to gaolers: The Mirror of Justice, pag. 288, tells us, That it is an abusing of the law, that prisoners, or others for them, pay any thing for their entries into the gaol, or for their going out. This is the common law, there is no fee due to them by the common law. See what the satutes say:

The statute of Westm. I. cap. 26. saith, “That no sheriff, or other minister of the king, shall take reward for doing their offices, but what they take of the king; if they do, they shall suffer double to the party aggrieved, and be punished at the will of the king.' Under this word, minister of the king, are included all escheaters, coronors, gaolers, &c. as Cook, 2 Inst. fol. 209. affirms; and agreeable is Stampf. Placit. Coron. 49. Nay, by the statute of 4 Ed. III. cap. 10, gaolers are to receive thieves and felons, taking nothing by way of fees for the receipt of them. So odious is this extortion of gaolers, that very thieves and felons are exempt from payment of fees.

And we find in our law-books, That no fees are due to any officer, gaoler, or minister of justice, but only those which are given by act of parliament; for, if a gaoler will prescribe for any fees, the prescription is void, because against this act of parliament,

• Britton, fol. 18. * Flet. Lib. i. cap. 26. 11. Ed. III. ap. 7.

[ocr errors]

made 3 Ed. I, being an act made within time of memory, and takes away all manner of pretended fees before, and we are sure, none can be raised by colour of prescription since; and therefore we find, by the books of 8 Ed. IV, fol. 18, “That a marshal or a gaoler cannot detain any prisoner after his discharge from the court, but only for the fees of the court, (the court being not barr'd by this statute of Westm. 1. aforementioned) and, if he do, he may be indicted for extortion.' And agreeable to this is the book of 21 E. VII, fol. 16, where, amongst other things, it is held for law, • That, if a gaoler, or guardian of a prison, takes his prisoner's proper garment, cloke, or money from him, it is a trespass, and the gaoler shall be answerable for it.' So that we may undeniably conclude, That there is no fee at all to any gaoler, or guardian of a prison, from the prisoner, but what is due unto him by special act of parliament. And, if a gaoler, or guardian of a prison, shall take any thing as a fee of his prisoner, he may and ought to be indicted of extortion, and, upon conviction, to be removed from his office; and, if his prisoner, by constraint, menace, or duress, be forced to give him money, he may recover that money against the gaoler again, in an action of the case at common law.

Item, The king, considering the great perjury, extortion, and oppression, which be, and have been in this realm, by bis sheriffs, under-sheriffs, and their clerks, bailiffs, and keepers of prisons, &c. hath ordained by authority aforesaid, in eschewing all such extortion, perjury, and oppression, That no sheriff * shall let to farm, in any manner, his county, nor any of his bailiwicks. Nor that any of the said officers and ministers, by occasion, or under colour of their office, shall take any other thing by them, nor by any other person to their use, profit, or avail, of any other person by them, or any of them, to be arrested or attached, for the omit. ting of any arrest or attachment to be made by their body, or of any person by them, or any of them (by force or colour of their office arrested or attached) for fine, fee, suit of prison, main-prize, letting to bail, or shewing any ease or favour (to any such person arrested or to be attached) for their reward or profit, but such as follow; that is to say, for the sheriff 20d. The officer wbich maketh the farrest or attachment 4d. And the gaoler of the prison, if he be committed to ward, 4d. And that all sheriffs, bailiffs, gaolers, or any other officers or ministers, which do contrary to this odinance, in any point of the same, shall lose to the party, in this behalf, indamaged or grieved, his treble damages, and shall forfeit the sum of 401. I for every such offence; the one moiety to the king, the other to the prosecutor, to be recovered at common law, in either of the courts of king's-bench, or common-pleas, at Westminster.

This is a perfect account of the gaoler's fees in all cases, where persons are laid in prison upon civil matters and causes, which fee of 4d. is more than any other statute or law allows them to take

• Stat. 23, H. vl. cap. 10. Stat 4. H. iv. 5. Rast, Prædict, fol. 318. Cook Prudict, 365. 21. II. Vil. 7. fol. 16. 7 Rast, Prædict, fol. 371. Stat, 21. F.d. lii.

from their prisoners : but, in such cases where the king is party, it is established, • That the prisoners in all the king's prisons should be maintained at the king's charge, and out of the king's revenues, according to the old law of the land:' much less to have money extorted from him by the gaoler. But look into the prisons in and about the city of London, what horrible oppressions, extortions, and cruelties, are exercised upon the free-born people of England, yea in most prisons throughout this kingdom?

So that by the law of the land-it appears, that those who sell, or take any manner of reward for any publick office or place, or those who do receive any greater fee than therein is expressed, have no more property, right or interest to do it, than the pirate has to the peaceable merchant's ship, a robber to the innocent traveller's purse, or the wolf to the blood of the harmless lamb.

Thus we have traced our distempers to their very spring and original. We have shewn you the danger of our present condition, the true cause from whence it arose, and 'prescribed an effectual remedy against it for the future. It is the magistrate's duty now to accomplish and perfect the cure. I confess a great fdeal of resolution is requisite to make a thorough reformation, and stop all those bleeding wounds through which the government is insensibly breathing out its very life. Yet we are willing to assume more than an ordinary confidence of the good success of this under. taking, considering that our great senate, to their immortal glory, in their last address to his majesty, have so eminently signalised their vigorous zeal, and unshaken resolution, of reducing not only our own, but the grand enemy of Europe, to reason. I am persuaded that no one thing can contribute more to the accomplishment of so glorious a design, than a timely and general redress of the grievances here exposed and complained of. How chearfully would the people of England receive the news of the parliament's going about a work of this nature, in relieving them from an oppression, under the weight of which every individual, at one time or other, has more or less suffered? This would not only enlarge their hearts, but make their purses, too, more free and open, in furnishing the necessary supplies which is majesty's affairs at this time so earnestly require.

It must, indeed, be acknowledged, that (through the negligence or remissness of the magistrates) an evil custom may sometimes obtain and fix itself so firm in the interest or opinion of the people that there shall be less danger in conniving at it, than in endeavour ing to suppress it. But then it must not be such as directly and designedly aims at the very being of government itself, as this does, which we now so justly regret. In short, the redress of this fatal calamity can offend none but such contemptible creatures, whom it is niore honourable and safe to distaste than oblige; and sure it can reflect no blemish upon a government to say, they have taken away from villains the very means and temptation of being unjust and dishonest.

But, as the easing of oppression, and unloading the shoulders of

the poor, is the main argument of this treatise, so, to push on the great cause before us yet a little further, the author hereof declares he is ready to demonstrate those reasonable methods for employing all the necessitous poor, and likewise for encouraging many thousands of idle persons to set themselves to work, though they are not reduced to the necessity of the former; which will be of such publick service and general advantage, that even the profits of iheir labours and industry shall more than advance the whole taxes now raised; with several other useful proposals, abundantly conducing to the benefit of trade, improvement of navigation, increase of seamen, &c. which, too long to be here set down, would require a treatise of itself.

Now, to conclude, I cannot but a little take notice of the great neglect of the pulpit, when those spiritual pilots at the helm of religion, who preach, or at least ought to preach universal charity, and denounce the comminations and judgments against all oppres. sions and injustice, have not publickly bore their testimony against this crying sin, in the particular national grievances before mentioned. Nor does the duty of this publick remonstrance lie less upon the great statesmen of the nation, the steerers at the temporal helm, but rather more, by so much as the immediate care and welfare of the national interest is their nearer and more particular charge and province.

But, if all we have here urged in so just a cause, shall be utterly neglected, we have one farther unhappy circumstance to add to these deplorable calamities now threatening us, which is, that oppression and extortion will receive an encouragement even from these very papers, when the cry of justice, unheard and unredressed, will but harden their iniquity; whilst their impunity, like an ignoramus to a capital indictment, will be looked upon as their justification.

And then what assurance can we possibly have of enjoying our rights, liberties, and estates safe from the invasion of ravenous and mercenary extortioners, who make no scruple of turning butchers to the people's privileges, and conspirators against their rights and properties? Or, what prospect can we flatter ourselves with, of bringing' our national endeavours to a successful conclusion, while judgment is turned back, justice stands afar off, our ancient and fundamental laws of mercy, as well as the express commands of God are turned into a shadow; and those who would reclaim these evils (in order to avert the just judgment and indignation of God, ready to break out against us) only draw on themselves the frowns and displeasure of inraged violence, as a recompence of their pains and labour?


« PreviousContinue »