Imágenes de páginas

sureties; and they might by warrant send for the party, directing their warrant to the sheriff or constable, as they please, to arrest the party, and bring him before them. This they used to do when complaint was made by any that he stood in fear of another, and so took his oath; or else, where the conservator himself did, without oath or complaint, see the disposition of any man inclined to quarrel and breach of the peace, or to misbehave himself in some outrageous manner of force or fraud, there, by his own discretion, he might send for such a fellow, and make him find sureties of the peace, or of his good behaviour, as he should see cause; or else commit him to the gaol if he refused.

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They are to suppress riots and tuthe justices of mults, to restore possessions forcibly whom run all taken away, to examine all felons apvices unto the prehended and brought before them; to see impotent poor people, or maimed soldiers provided for according to the laws, and rogues, vagabonds, and beggars punished. They are both to license and suppress alehouses, badgers of corn and victuals, and to punish forestallers, regrators, and engrossers.

Beating, killing, burning of houses, attach

ty of the peace.

man will beat him, or kill him, or burn
his house, are to send for the party by
warrant of attachment, directed to the ments for sure-
sheriff or constable, and then to bind
the party with sureties by recognisance to the
king to keep the peace, and also to appear at the
next sessions of the peace; at which next ses-
sions, when every justice of peace hath therein
delivered all their recognisances so
taken, then the parties are called, and
the cause of binding to the peace ex-
amined, and both parties being heard,
the whole bench is to determine as they see cause,
either to continue the party so bound, or else to
discharge him.

Recognisance livered by the


the peace dejustices a

their sessions.

Quarter sessions

tices of the

The justices of peace in their sessions are attended by the constables held by the jus and bailiffs of all hundreds and liberties peace. within the county, and by the sheriff or his deputy, to be employed as occasion shall serve in executing the precepts and directions of the court. They proceed in this sort: the sheriff doth summon twenty-four freeholders, discreet men of the said county, whereof some sixteen are selected and sworn, and have their charge to serve as the grand jury, the party indicted is to traverse the indictment, or else to confess it, and so submit himself to be fined as the court shall think meet, (regard had to the offence,) except the punishment be certainly appointed, as often it is, by special statutes.

The justices of peace are many in every county, and to them are brought all traitors, felons, and other malefactors of any sort upon their first apprehension, and that justice to whom they are brought examineth them, and heareth their accusations, but judgeth not upon it; only if he find the suspicion but light, then he taketh bond, with sureties of the accused, to appear either at the next assizes, if it be matter of treason or felony, or else at the quarter sessions, if it be concerning riot or misbehaviour, or some other small offence. And he also then bindeth to appear those that give testimony and prosecute the accusation, all the accusers and witnesses, and so setteth the party at large. And at the assizes or sessions (as the case falleth out) he certifieth the recognisances taken of the accused, accusers, and witnesses, who being there are called, and appearing, the cause of the accused is debated according to law for his clearing or condemning.

The authority

of justices of

the peace out of their sessions.

But if the party accused seem upon pregnant matter in the accusation, and to the justice to be guilty, and the offence heinous, or the offender Through these in effect run all the county ser- taken with the manner, then the justice is to comvices to the crown, as taxations of subsidies, mus-mit the party by his warrant called a mittimus to tering men, arming them, and levying forces, that the gaoler of the common gaol of the county, is done by a special commission or precept from the king. Any of these justices, by oath taken by a man that he standeth in fear that another

there to remain until the assizes. And then the justice is to certify his accusation, examination, and recognisance taken for the appearances and

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hundreds, and

was confirmed

causes touching

The king, not able to despatch business in his own person, erected the Court of King's Bench;* that not able to receive all, nor meet to draw the The authority people all to one place, there were orof tourns, leets, dained counties and the sheriff's tourns, law-days, as hundred courts, and particular leets, to some special and law-days, as before mentioned, the public good. which dealt only with crown matters for the public; but not the private titles of lands or goods, nor the trial of grand offences, of treasons, and felonies, but all the counties of the realm were divided into six circuits. And two learned men well read in the laws of the realm were assigned by the king's commission to every circuit, and to ride twice a year through those shires allotted to that circuit, making proclamation beforehand, a convenient time in every county, of the time of their coming, and place of their sitting, to the end the people might attend them in every county of that circuit.

They were to stay three or four days in every county, and in that time all the causes of that county were brought before them by the parties grieved, and all the prisoners of the said gaol in every shire, and whatsoever controversies arising concerning life, lands, or goods.

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court of Common Pleas


erected in H. 3. the Third's time, there was erected the Court of Common Pleas at Westminster, in which court have been ever since, and yet are begun and handled the great suits of lands, debts, benefices, and contracts, fines for assurance

1. King's Bench. 2. Marshal's Court, 3. County Court. 4. Sheriff's Tourns. 5. Hundred Leets and Law-days. All

which dealt only in crown matters; but the Justice in eyre dealt in private titles of lands or goods, and in all treasons and felonies, of whom there were twelve in number, the whole realm being divided into six circurs. England divided

into six circuits, and two learned men in the laws, assigned by the king's commission to ride twice a year through those shires allotted to that circuit, for their trial of private titles to lands and goods, and all treasons and felonies, which the county courts meddle not in.

The justices of

this day five which they sit.

of lands and recoveries, which were wont to be either in the King's Bench, or else before the justices in eyre. But the statute of Mag. Char. cap. 11. 5. is negative against it, viz. Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco Certo; assize have at which locus Certus must be the Com- commissions by mon Pleas; yet the judges of circuits have now five commissions by which they sit. The first is a commission of oyer and terminer, directed unto them, and many 2. Gal deliothers of the best account, in their take assizes. circuits; but in this commission the Prius. 5. Of judges of assize are of the quorum, so as without them there can be no proceeding. This commission giveth them power to deal with treasons, murders, and all manner of felonies and misdemeanors whatsoever; and this is the largest commission that they have.

1. Oyer & term.

very. 3. To 4. To take Nisi the peace.

Oyer and Ter.

miner, in which of the quorum, largest commis

the judges are and this is the

sion they have.

to judges them



The second is a commission of gaol delivery; that is, only to the judges themselves, and the clerk of the assize associate: and by this commission they are to deal with every prisoner in the gaol, for what offence soever he be there; and to proceed with him according to the laws of the realm, and the quality of his offence: Gaol delivery and they cannot, by this commission, di fute ne do any thing concerning any man but of the as those that are prisoners in the gaol. The course now in use of execution of this commission of gaol delivery is this. There is no prisoner but is committed by some justice of peace, who, before he committed him, took his examination, and bound his accusers and witnesses to appear and prosecute at the gaol delivery. This justice doth certify these examinations and bonds, and thereupon the accuser is called solemnly into the court, and when he appeareth he is willed to prepare a bill of indictment against the prisoner, and go with it to the grand jury, and give evidence upon their oaths, he and the witnesses, which he doth; and then the grand jury write thereupon either billa vera, and then the prisoner standeth indicted, or else ignoramus, and then he is not touched. The grand jury deliver these bills to the judges in their court, the proceedings and so many as they find endorsed of circuits in billa vera, they send for those prisoners, then is every man's indictment put and read to him, and they ask him whether he be guilty or not. If he saith guilty, his confession is recorded; if he say not guilty, then in use with the he is asked how he will be tried; he execution of the answereth, by the country. Then the gaol delivery. sheriff is commanded to return the names of twelve freeholders to the court, which freeholders be sworn to make true delivery between the king and the prisoner, and then the indictment is again read, and the witnesses sworn to speak thei: knowledge concerning the fact, and the prisoner

The manner of of the justices their circuits.

The course now

judges for the

commission of

vers other of larized in sevethe stat. of 19

are appointed to

Eliz. the judges allow clergy, buried in the discharge the

and to see them

is heard at large what defence he can make, and to the judges; and lastly, by a statute ing, and in dithen the jury go together and consult. And after made 18 Elizabeth, the judges them- fences particu a while they come in with a verdict of guilty or selves are appointed to allow clergy to ral statutes. By not guilty, which verdict the judges do record such as can read, being not such offendaccordingly. If any prisoner plead not guilty ers from whom clergy is taken away upon the indictment, and yet will not put himself by any statute, and to see them burned to trial upon the jury (or stand mute), he shall be in the hand, and so discharge them pressed. without delivering them to the bishop, how beit the bishop appointeth the deputy to attend the judges with a book to try whether they could read or not.

hand, and to

prisoners with out delivering them to the


which they are called justices of assize, and the office of those justices is to do right upon writs called assizes, brought before them by such as are wrongfully thrust out of their lands. Of which number of writs there was far greater store brought before them in ancient times than now, for that men's seisins and possessions are sooner recovered by sealing leases upon the ground, and by bringing an ejectione firme, and trying their title so, than by the long suits of assizes.

The judges, when many prisoners are in the gaol, do in the end before they go peruse every one. Those that were indicted by the grand jury, and found not guilty by the select jury, they The third commission that the judges of cirjudge to be quitted, and so deliver them out of cuits have, is a commission directed to themselves the gaol. Those that are found guilty by both only, and the clerk of assize to take assizes, by juries they judge to death, and command the sheriff to see execution done. Those that refuse trial by the country, or stand mute upon the indictment, they judge to be pressed to death: some whose offences are pilfering under twelvepence value they judge to be whipped. Those that confess their indictments, they judge to death, whipping, or otherwise, as their offence requireth. And those that are not indicted at all, but their bill of indictment returned with ignoramus by the grand jury, and all other in the gaol against whom no bills at all are preferred, they do acquit by proclamation out of the gaol. That one way or other they rid the gaol of all the prisoners in it. But because some prisoners have their books, and be burned in the hand and so delivered, it is necessary to show the reason thereof. This having their books is called their clergy, which in ancient time began thus.

Book allowed

scarcity of

posed in reli.

For the scarcity of the clergy, in the to clergy for the realm of England, to be disposed in them to be dis religious houses, or for priests, deagious houses. cons, and clerks of parishes, there was a prerogative allowed to the clergy, that if any man that could read as a clerk were to be condemned to death, the bishop of the diocess might, if he would, claim him as a clerk, and he was to see him tried in the face of the court.

Whether he could read or not, the book was prepared and brought by the bishop, and the judge was to turn to some place as he should think meet, and if the prisoner could read, then the bishop was to have him delivered over unto him to dispose of in some places of the clergy, as he should think meet. But if either the bishop would not demand him, or that the prisoner could not read, then was to be put to death. Concerning the And this clergy was allowable in the ancient times and law, for all offences Clergy allowed whatsoever they were, except treason except treason and robbing of churches, their goods churches, and and ornaments. But by many statutes by many statutes. made since, the clergy is taken away 2. In burglary. for murder, burglary, robbery, pursecutting, horse-stealing, and divers other

allowing of the clergy to the prisoner.

in all offences

and robbing of

now taken away

1. In treason.

3. Robbery. 4. Puse-cutting.

Horse steal felonies particularized by the statutes

4. Commission


Prius, and this


to take Nisi directed to the clerk of the Nisi Prius.

two judges and


The fourth commission is a commission to take Nisi Prius directed to none but to the judges themselves and their clerks of assizes, by which they are called justices of Nisi Prius. (These Nisi Prius happen in this sort, when a suit is begun for any matter in one of the three courts, the King's Bench, Common Pleas, or the Exchequer here above, and the parties in their pleadings do vary in a point of fact; as for example, if an action of debt upon obligation, the defendant denies the obligation to be his debt, or in any action of trespass grown for taking away goods, the defendant denieth that he took them, or in an action of the case for slanderous words, the defendant denieth that he spake them, &c.

Then the plaintiff is to maintain and prove that the obligation is the defendant's deed, that he either took the goods, or spake the words; upon which denial and affirmation the law saith, that issue is joined betwixt them, which issue of the fact is to be tried by a jury of twelve men of the county where it is supposed by the plaintiff to be done, and for that purpose the judges of the court do award a writ of venire facias in the king's name to the sheriff of that county, commanding him to cause four and twenty discreet freeholders of this county, at a certain day, to try this issue so joined, out of which four and twenty only twelve are chosen to serve. And that double number is returned, because some may make default, and some be challenged upon kindred, alliance, or partial dealing.

These four and twenty the sheriff doth name and certify to the court, and withal that he hath warned them to come at the day according to their

to another, by these four manner of ways;

1. By Entry.

writ. But, because at his first summons their | Property in Lands is gotten and transferred by one falleth no punishment upon the four and twenty if they come not, they very seldom or never appear The manner of upon the first writ, and upon their deproceeding of fault there is another writ* returned to the sheriff, commanding him to distrain

justices of circuits in their circuits.

judges hold in


mission concerning the taking of nisi prius.

The course the them by their lands to appear at a certheir circuit intain day appointed by the writ, which of their com is the next term after, Nisi Prius justiciarii nostri ad assizas capiendas venerint, &c. of which words the writ is called a nisi prius, and the judges of the circuit of that county in that vacation and mean time before the day of appearance appointed for the jury above, here by their commission of Nisi Prius have authority to take the appearance of the jury in the county before them, and there to hear the witnesses and proofs on both sides concerning the issue of fact, and to take the verdict of the jury, and against the day they should have appeared above, to return the verdict read in the court above, which return is called a postea.


And upon this verdict clearing the matter in fact, one way or other, the judges above give judgment for the party for whom the verdict is found, and for such damages and costs as the jury do assess.

5. Commission

2. By Descent.

3. By Escheat.

4. Most usually by Conveyance.

of property of gained by entry.

All lands in

England were

1. Property by entry is, where a man findeth a piece of land that no other us to be possesseth or hath title unto, and he that so findeth it doth enter, this entry gaineth a property; this law seemeth to be derived from this text, terra dedit filiis hominum, which is to be understood, to those that will till and manure it, and so make it yield fruit; and that is he that entereth into it, where no man had it before. But this manner of gaining lands was in the first days, and is not now of use in England, for that by the conquest all the land of this nation was in the Conqueror's hands, and appropriated unto him, except re-or's and a proligious and church lands, and the lands upon the conin Kent, which by composition were left to the former owners, as the Conqueror found them, so that no man but the bishopricks, churches, and the men of Kent, can at this day make any sea belongeth to greater title than from the conquest to any lands in England; and lands possessed without any such title are in the crown, and not in him that first entereth; as it is by land left by the sea, this land belongeth to the king, and not to

the Conquer. priated to him

quest of Eng

land, and held 1. Religious lands. 2. The

of him, except

and church

lands of the Den of Kent. Land left by the

the king.

By those trials called Nisi Prius, the juries and the parties are eased much of the charge they should be put to, by coming to London with their evidences and witnesses, and the courts of West-him that hath the lands next adjoining, which minster are eased of much trouble they should have if all the juries for trials should appear and try their causes in those courts; for those courts above have little leisure now; though the juries come not up, yet in matters of great weight, or where the title is intricate or difficult, the judges above upon information to them, do retain those causes to be tried there, and the juries do at this day in such causes come to the bar at Westminster. The fifth commission that the judges is a commission in their circuits do sit by, is the commission of the peace in every county of their circuit. And all the justices of the peace, having no lawful impediment, are bound to be present at the assizes to attend the judges, as occasion shall call out; if any make default, the The justices of judges may set a fine upon him at their the sheriff are to pleasure and discretions. Also the sheriff in every shire through the circuit is to attend in person, or by a sufficient deputy allowed by the judges, all that time they be within the county, and the judges may fine him if he fail, or for negligence or misbehaviour in his office before them; and the judges above may also fine the sheriff for not returning or not sufficient returning of writs before them.

of the peace.

the peace and

attend the judges in their county.

* Distringas.

was the ancient sea banks. This is to be under-
stood of the inheritance of lands; viz. that the
inheritance cannot be gained by the first entry.
But an estate for another man's life by out-laws
may, at this day, be gotten by entry. As a man
called A. having land conveyed unto him for the
life of B. dieth without making any estate of it
there, whosoever first entereth into the land after
the decease of A. getteth the property in the land
for time of the continuance of the estate which
was granted to A. for the life of B. which B. yet
liveth and therefore the said land cannot revert
till B. die. And to the heir of A. it cannot go,
for that it is not any state of inheritance, but only
an estate for another man's life; which is not de-
scendable to the heir, except he be specially
named in the grant: viz. to him and his heirs.
As for the executors of A. they cannot have it,
for it is not an estate testamentary, that it should
go to the executors as goods and chattels should,
so as in truth no man can entitle himself unto
those lands; and therefore the law preferreth him
that first entereth, and he is called occu- Occupancy
pans, and shall hold it during the life
of B. but must pay the rent, perform the condi-
tions, and do no waste. And he may by deed
assign it to whom he please in his life time.
But if he die before he assign it over, then it shall

go again to whomsoever first entereth and holdeth. | ther had died, or had not entered in the life of the And so all the life of B. so often as it shall happen.

Likewise if any man doth wrongfully enter into another man's possession, and put the right owner of the freehold and inheritance from it, he thereby getteth the freehold and inheritance by disseisin and may hold it against all men, but him that hath right, and his heirs, and is called a disseisor. Or if any one die seised of lands, and before his heir doth enter, one that hath no right doth enter into the lands, and holdeth them from the right heir, he is called an abator, and is lawful owner against all men but the right heir. And if such person abator, or disseisor (so as the disseisor hath quiet possession five years next after the disseisin) do continue their possession, and die seised, and the land descend to his heir, they have gained the right to the possession of the land against him that hath right till he recover it by fit action real at the common law. And if it be not sued for at the common law within threescore years after the disseisin, or abatement committed, the right owner hath lost his right by that negligence. And if a man hath divers children, and the elder, being a bastard, doth enter into the land and enjoyeth it quietly during his life, and dieth thereof so seised, his heirs shall hold the land against all the lawful children and their issues.


father, either by such entry or conveyance, then
the youngest brother should inherit the land that
the father had, although it were a child by the
second wife, before any daughter by the first.
The third rule about descents. That land pur-
chased so by the party himself that dieth is to be
inherited; first, by the heirs of the father's side;
then, if he have none of that part, by Descent.
the heirs of the mother's side. But
lands descended to him from his father or mother
are to go to that side only from which they came,
and not to the other side.

Those rules of descent mentioned before are to be understood of fee simples, and not of entailed lands, and those rules are restrained by some particular customs of some particular Customs of cer places; as, namely, the custom of tain places. Kent, that every male of equal degree of childhood, brotherhood, or kindred, shall inherit equally, as daughters shall, being parceners; and in many borough towns of England, and the custom alloweth the youngest son to inherit, and so the youngest daughter. The custom of Kent is called gavelkind. The custom of boroughs, burgh English.

And there is another note to be observed in feesimple inheritance, and that is, that every heir having fee-simple land or inheritance, be it by common law or by custom of either gavelkind or burgh English, is chargeable so far forth as the value thereof extendeth with the binding acts of the ancestors from whom the inheritance descendeth; and these acts are collateral encumbrances, and the reason of this charge is, qui sentit commodum, sentire debet et incommodum sive onus. As for example, if a man bind himself and his heirs in an obligation, or do covenant by writing for him and his heirs, or do grant an annuity for him if he be named. and his heirs, or do make a warranty of land, binding him and his heirs to warranty, in all these cases the law chargeth the heir, after the death of the ancestor, with this obligation, covenant, annuity, and warranty, yet with these three cautions: first, that the party must by special name bind himself and his heirs, or covenant,

Every heir hav

in th binding acts of

bound by the his ancestors

Property of lands by descent is, Property of lands by de. where a man hath lands of inheritance, and dieth, not disposing of them, but leaving it to go (as the law casteth it) upon the heir. This is called a descent of law, and upon whom the descent is to light, is the question. For which purpose the law of inheritance preferreth the first child before all others, and amongst children the male before the female, and amongst males the first born. If there be no children, then the brother; if no brothers, then sisters; if neither brothers nor sisters, then uncles; and for lack of uncles, aunts; if none of them, then cousins in the nearest degree of consanguiof descent, nity, with these three rules of diversithree rules, ties. 1. That the eldest male shall solely inherit; but if it come to females, then they, being all in an equal degree of nearness, shall in-grant, and warrant for himself and his heirs, herit altogether, and are called parceners, and all they make but one heir to the ancestor. 2. That Brother or sis no brother nor sister of the half-blood ter of the hilf shall inherit to his brother or sister, but

blood shall not

inherit to his

but only as a child to his pa


otherwise the heir is not to be touched. Secondly, that some action must be brought Dyer, 114. against the heir whilst the land or other Plowd. inheritance resteth in him unaliened away: for if brother or sister, as a child to his parents, as for ex- the ancestor die, and the heir, before an action ample: If a man have two wives, and be brought against him upon those bonds, coveby either wife a son, the eldest son nants or warranties, do alien away the land, then overliving his father is to be preferred to the in- the heir is clean discharged of the burden, except heritance of the father, being fee-simple; but if the land was by fraud conveyed away of purpose he entereth and dieth without a child, the brother to prevent the suit intended against him. Thirdshall not be his heir, because he is of the half-ly, that no heir is further to be charged nyer, 149. blood to him, but the uncle of the eldest brother than the value of the land descended Plowd. or sister of the whole blood; yet if the eldest bro- unto him from the same ancestor that made the

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