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either at the next assizes, if it be matter of treason or felony, or else at the quarter sessions, if it be concerning riot, misbehaviour, or some other small offence. And he also bindeth to appear there and 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 recognizances taken of the accused, accusers, and witnesses, who being all there called, and appearing, the cause against the accused is dealt in according to law for his clearing or condemning.
But if the party apprehended seem, upon pregnant matter in the accusation and examination, to the justice to be guilty, and the offence heinous, or the offender taken with the mainour, then the justice is to commit the party by his warrant, called a mittimus, directed to the gaoler of the common gaol of the coun ty, there to remain until the assizes come. And then the justice must certify his accusation and examination, and return the recognizance taken for appearance and prosecution of the witnesses; so as the judges at the assizes may, when they come, readily proceed with him as the law prescribeth.
The judges of circuits as they be now, are come into the place of the ancient justices in eyre, called justiciarii itinerantes, by which the prime Kings after the Conquest, until Hen. III.'s time especially, and after that, in lesser measure, even to Rich. II., did execute the justice of the realm.
They began in this sort:
The King, not able to dispatch matters in his own person, erected the Court of King's Bench: that not able to do all, nor meet to draw the people all to one
place, there were ordained counties and then sheriff's turns, hundred courts, and particular leet, and lawdays, as is before mentioned; which dealt only with crown matters for the public, but not with 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 and customs of the realm were assigned by the King's commission to every circuit, to ride twice a year through those shires allotted 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 the circuit. They were to stay three or four days in every shire, and in that time all the causes of the county were brought before them by the parties grieved, and all the prisoners in . the gaols in every shire, and whatsoever controversies arisen concerning life, liberty, lands, or goods.
The authority of these justices in eyre is [in part]1 transferred by act of parliament to justices of assize, which be now the judges of circuits; and they do use the same course that justices in eyre did, to proclaim their coming every half year, and the place of their sitting.
ute of Mag.
is negative a
The business of the justices in eyre, and of But the statthe justices of assize at this day, is much les- Char. cap. 11. sened; for that, in Hen. III.'s time, there gainst it: viz. was erected the Court of Common Pleas at placita non Westminster ; in which court have been ever curiam nossince, and yet are, begun and handled great suits of lands, debts, covenants,
tram, sed te
the neantur in
bene- certo; which
must be the Common Pleas.1
fices, and contracts, and fines and recoveries for assurance of lands, which were wont to be either in the King's Bench, or else before the justices in eyre. Yet the judges of circuits now have five commissions by which they sit.
One is a commission of oyer and terminer, directed unto them and many others of the best account in the circuits, selected out of all the counties of their precincts; but in this commission the judges 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, offences, and misdemeanors whatsoever; and this is the largest commission of all they have.
One other is a commission of gaol delivery, that is only to the judges themselves, [and the clerk of the assizes associated to them]: 2 and by this commission they are to deal with every prisoner in the gaol, for what offence soever he be there, to proceed with him according to the laws of the realm and the quality of his offence. And they cannot by this commission do any thing concerning any man but 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 his committing, 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 solemn
1 This, which in the MSS. and editions stands as part of the text, before the sentence "yet the judges, &c.," is obviously a note correcting it. 2 Omitted in Sloane MS.
ly in 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 the grand jury do thereupon write 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 open court; and so many as they find indorsed billa vera, they send for those prisoners, and they read every man's indictment unto him, asking him whether he be guilty or not: if he say he is, then his confession is recorded down; if he say Not guilty, then he is asked how he will be tried; he answereth, By the country; and then the 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 and do speak their knowledge concerning the fact, and the prisoner is heard at large what defence he can make, and then the jury go together and consult; and after a while they come in again with a verdict of Guilty or Not guilty, which verdict the judges do record accordingly. If any prisoner plead that he is Not guilty upon the indictment, and yet will not put himself to trial by the jury, he is to be pressed to death.
These judges, where 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 petty jury, they judge to be acquitted, and so deliver them out of the gaol. Those that are found guilty by both juries they judge to death, and command the sheriff to see execution done. Those
that refuse trial by the country, 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 the 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: that is, they first make proclamation, that if any man can say any thing against them they shall be heard; but, no man coming in, then the judges are to declare all these acquitted by proclamation out of the gaol. So that one way or another they rid the gaol of all the prisoners in it.
But because some prisoners that can read 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.
For the scarcity of men that could read, and the multitude requisite in the clergy of the realm to be disposed into religious houses, priests, deacons, 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 diocese might, if he would, claim him as a clerk; and he was then 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 unto him to dispose in some place of the clergy,