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wife or heir will not sue or be compounded withal, | Chancery, from whence process should be awardyet the king is to punish the offence by indicted to levy the debt, if the peace were broken. ment or presentment of a lawful inquest and trial of the offenders before competent judges; whereupon being found guilty, he is to suffer death, and to lose his lands and goods.
feiture of goods, and when not.
If one kill another upon a sudden And when for quarrel, this is manslaughter, for which the offender must die, except he can read; and if he can read, yet must he lose his goods, but no lands.
And if a man kill another in his own defence, he shall not lose his life, nor his lands, but he must lose his goods, except the party slain did first assault him, to kill, rob, or trouble him by the highway side, or in his own house, and then he shall lose nothing.
And if a man kill himself, all his Felon. de se. goods and chattels are forfeited, but
The office of
The office of the constable was, to the constable. arrest the parties that he had seen breaking the peace, or in fury ready to break the peace, or was truly informed by others, or by their own confession, that they had freshly broken the peace; which persons he might imprison in the stocks, or in his own house, as his or their quality required, until they had become bounden with sureties to keep the peace; which obligation from thenceforth was to be sealed and delivered to the constable to the use of the king. And that the constable was to send to the king's Exchequer or
But the constable could not arrest any, nor make any put in bond upon complaint of threatening only, except they had seen them breaking the peace, or had come freshly after the peace was broken. Also, these constables should keep watch about the town for the apprehension of rogues and vagabonds, and night-walkers, and eves-droppers, scouts, and such like, and such as go armed. And they ought likewise to raise hue and cry against murderers, manslayers, thieves, and rogues.
Of this office of constable there were 2. High conhigh constables, two of every hundred; petty constables, one in every village; they were, in ancient time, all ap│pointed by the sheriff of the shire yearly, in his court called the Sheriff's Tourn, and there they received their oath. But at this day they are appointed either in the law-day of that precinct wherein they serve, or else by the high constable in the sessions of the peace.
The King's Bench first in
stituted, and in what matters
they anciently jurisdic
The sheriff's Tourn is a court very ancient, incident to his office. first, it was erected by the conqueror, and called the King's Bench, appointing men studied in the knowledge of the laws to execute justice, as substitutes to him in his name, which men are to be named, Justiciarii ad placita coram Rege assignati. One of them being Capitalis Justiciarius called to his fellows; the rest in number as pleaseth the king, of late but three Justiciarii, holden by patent. In this court every man above twelve years of age was to take his oath of allegiance to the king, if he were bound, then his lord to answer for him. In this court the constables were appointed and sworn; breakers of the peace punished by fine and imprisonment, the parties beaten or hurt recompensed upon complaints of damages; all appeals of murder, maim, robbery, decided; contempts against the crown, public annoyances against the people, treasons and felonies, and all other matters of wrong, betwixt party and party, for lands and goods.
Court of Marshalsa erected, weve miles of the chief tunnel which is the
and its juradio. tion within
of the king, full extent of
But the king seeing the realm grow daily more and more populous, and that this one court could not dispatch all, did first ordain that his marshal should keep a court for controversies arising within the virge; which is the virge. within twelve miles of the chiefest tunnel of the court, which did but ease the King's Bench in matters only concerning debts, covenants, and such like, of those of the king's household only, never dealing in breaches of the peace, or concerning the crown by any other persons, or any pleas of lands. Insomuch as the king, for further ease, having divided this kingdom into counties, and committing the charge of every county to a
the division of England into eua'ies, the
charge of this
Court was com buted to the
earl of the same
were at first
and all writs of execution of the law, according
lord or earl, did direct that those earls, stuted upon within their limits, should look to the matter of the peace, and take charge of the constables, and reform public annoyances, and swear the people to the crown, and take pledges of the freemen for their allegiance, for which purpose the county did once every year koep a court, called the Sheriff's Tourn; at which all the county (except women, clergy, children under twelve, and not aged above sixty) did appear to give or renew their pledges of alle-court is to appoint two high constables gice. And the court was called Curia Franci of the hundred, and also is to appoint constables. Plegii, a view of the Pledges of Freemen; or, in every village a petty constable, with a tithing Turnus Comitatus. man to attend in his absence, and to be at his commandment when he is present in all services of his office for his assistance.
The charge of the county taken from the
nitted yearly to such persons as it pleased the king.
Lord of the
bred to ap
point two high
of what mattee
quire of in leets and law-days.
At which meeting or court there fell, the county court by occasion of great assemblies, much bloodshed, scarcity of victuals, muti- There have been by use and statute law (benies, and the like mischiefs which are incident to sides surveying of the pledges of freemen, and the congregations of people, by which the king giving the oath of allegiance, and making constawas moved to allow a subdivision of every county bles) many additions of powers and authority into hundreds, and every hundred to have a court, given to the stewards of leets and law-days to be whereunto the people of every hundred should be put in ure in their courts; as for example, they assembled twice a year for survey of pledges, and may punish innkeepers, victuallers, bakers, butuse of that justice which was formerly executed chers, poulterers, fishmongers, and tradesmen of in that grand court for the county; and the count all sorts selling with under weights or measures, or earl appointed a bailiff under him to keep the or at excessive prices, or things unwholesome, or hundred court. But in the end, the kings of this ill made in deceit of the people. They may purealm found it necessary to have all execution of nish those that do stop, straiten, or annoy the justice immediately from themselves, by such as highways, or do not, according to the provision were more bound than earls to that ser-enacted, repair or amend them, or divert water vice, and readily subject to correction courses, or destroy fry of fish, or use earls, and com for their negligence or abuse; and engines or nets to take deer, conies, therefore took to themselves the ap- pheasants, or partridges, or build pigeon pointing of a sheriff yearly in every houses, except he be lord of the manor, or parson county, calling them vicecomites, and to them di- of the church. They may also take presentment rected such writs and precepts for executing jus- upon oath of the twelve sworn jury before them tice in the county as fell out needful to have been of all felonies; but they cannot try the inalefacdespatched, committing to the sheriff custodium tors, only they must by indenture deliver over comitatus; by which the earls were spared of those presentments of felony to the judges, when their toils and labours, and that was laid upon the they come their circuits into that county. All sheriffs. So as now the sheriff doth those courts before mentioned are in use, and all the king's business in the county, exercised as law at this day, concerning the shenot given away and that is now called the Sheriff's riffs' law days and leets, and the offices of high Tourn; that is to say, he is judge of constables, petty constables and tithing men; this grand court for the county, and also of all howbeit, with some further additions by statute hundred courts not given away from the crown. laws, laying charge upon them for taxation for He hath another court, called the poor, for soldiers, and the like, and dealing withCounty Court, belonging to his office, out corruption, and the like. wherein men may sue monthly for any deb or damages under forty pounds, and may have writs for to replevy their cattle distrained and impounded by others, and there try the cause of their distress; and by a writ called Justicies, a man may sue for any sum; and in this court the sheriff, by a writ called an exigent, doth proclaim men sued in courts above to render their bodies, or else they be outlawed.
The sheriff is Juice of all bundred courts
from the crown.
County Court kept monthly by the sheriff
the peace called writ for term or at the king's
by the king's
of their lives,
Conservators of the peace were in ancient times certain, which were assigned by the king to see the peace maintained, and they were called to the office by the king's writ, to continue for term of their lives, or at the pleasure.
the peace, and
For this service, choice was made of Conservators of the best men of calling in the country, what their of and but few in the shire. They might fice was. bind any man to keep the peace, and to good behaviour, by recognisance to the king, with
ureties; 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.
Conservators of the peace by virtue of their office.
The judges of either bench in Westminster, barons of the Exchequer, master of the rolls, and justices in eyre and assizes in their circuits, were all, without writ, conservators of the peace in all shires of England, and continue to this day.
Beating, kill houses, attach
g, burning of ments for sure
ty of the peace
man will beat him, or kill him, or burn
livered by the
held by the jus
tices of the
The justices of peace in their sessions are attended by the constables 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 But now at this day conservators of court. They proceed in this sort: the sheriff peace on the peace are out of use, and in lieu of doth summon twenty-four freeholders, discreet vator Power them there are ordained justices of men of the said county, whereof some sixteen are of peace by use peace, assigned by the king's commis- selected and sworn, and have their charge to delete from sions in every county, which are move-serve as the grand jury, the party indicted is to chancellor. able at the king's pleasure; but the power of placing and displacing justices of the peace is by use delegated from the king to the chancellor.
in lieu of conser.
of placing and displacing just.
the king to the
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.
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 ce 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 the peace cut 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 taken with the manner, then the justice is to com
Through these in effect run all the county serVices 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 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
the gaoler of the common gaol of the county, there to remain until the assizes. And then the justice is to certify his accusation, examination, and recognisance taken for the appearances and
buadre is, and
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, ladas hundred courts, and particular leets, to some secil 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.
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 circuis. 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 ass.ze have at 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; 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 1. Over & term terminer, directed unto them, and many others of the best account, in their circuits; but in this commission the 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.
2. Ga delitake assizes. Prius. 5. Of
very. 3. To
4. To take Nisi
Oyer and Terthe judges are and this is the
niner, in which of the quorum, largest commis
sion they have.
de nem the as
to judges them. clerk of
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: 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 comission 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, and so many as they find endorsed 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 not. If he saith guilty, his confession is recorded; if he say not guilty, then he is asked how he will be tried; he answereth, by the country. 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 to speak their knowledge concerning the fact. and the prisoner
The manner of
the proceedings of circuits in
of the justices
The course now
use with the execution of the gaol delivery.
judges for the
is heard at large what defence he can make, and then the jury go together and consult. And after a while they come in with a verdict of guilty or not guilty, which verdict the judges do record accordingly. If any prisoner plead not guilty upon the indictment, and yet will not put himself to trial upon the jury (or stand mute), he shall be pressed.
The judges, when many prisoners are in the gaol, do in the end before they go peruse every Those that were indicted by the grand jury, and found not guilty by the select jury, they judge to be quitted, 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, 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.
posed in religious houses.
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, 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 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 allowing of the clergy to the prisoner.
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 and ornaments. But by many statutes by many statutes. made since, the clergy is taken away
ir ail offences
and robbing of churches, and now taken away
1. In treason.
2. In burglary. for murder, burglary, robbery, purse-.
The third commission that the judges of cir cuits have, is a commission directed to themselves only, and the clerk of assize to take assizes, by 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.
to take Nasi
Prius, and this is directed to
two judges and the clerk of the Nisi Prius.
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 ac tion 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
cutting, horse-stealing, and divers other and certify to the court, and withal that he hath
5 Horse steal felonies particularized by the statutes | warned them to come at the day according to their