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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 indict. ed to levy the debt, if the peace were broken. ment or presentment of a lawful inquest and trial But the constable could not arrest any, nor of the offenders before competent judges; where- make any put in bond upon complaint of threatupon being found guilty, he is to suffer death, ening only, except they had seen them breaking and to lose his lands and goods.

the peace, or had come freshly after the peace If one kill another upon a sudden was broken. Also, these constables should keep heritare being the one quarrel, this is manslaughter, for which watch about the town for the apprehension of

the offender must die, except he can rogues and vagabonds, and night-walkers, and read; and if he can read, yet must he lose his eves-droppers, scouts, and such like, and such as goods, but no lands.

go armed. And they ought likewise to raise hue And if a man kill another in his own defence, and cry against murderers, manslayers, thieves, he shall not lose his life, nor his lands, but he and rogues. must lose his goods, except the party slain did Of this office of constable there were first assault him, to kill, rob, or trouble him by high constables, two of every hundred; the highway side, or in his own house, and then petty constables, one in every village ; stil te for every he shall lose nothing.

they were, in ancient time, all apAnd if a man kill himself, all his pointed by the sheriff of the shire yearly, in his

goods and chattels are forfeited, but court called the Sheriff's Tourn, and there they no lands.

received their oath. But at this day they are apIf a man kill another by misfortune, pointed either in the law-day of that precinct

as shooting an arrow at a butt or mark, wherein they serve, or else by the high constable or casting a stone over a house, or the like, this in the sessions of the peace. is loss of his goods and chattels, but not of his The sheriff's Tourn is a court very The King's lands, nor life.

ancient, incident to his office. At the Bench forat is If a horse, or cart, or a beast, or any first, it was erected by the conqueror, there anciently

other thing do kill a man, the horse, and called the King's Bench, appoint- biod. beast, or other thing, is forfeited to the crown, and ing men studied in the knowledge of is called a deodand, and usually granted and the laws to execute justice, as substitutes to him allowed ny the king to the Bishop Almner, as in his name, which men are to be named, Justicigoods are of those that kill themselves.

arii ad placila coram Rege assignati. One of The cutting out of a man's tongue, them being Capitalis Justiciarius called to his fel.

or putting out his eyes maliciously, is lows; the rest in number as pleaseth the king, of mule fo feliny; for which the offender is to late but three Justiciarii, holden by patent. In

suiler death, and lose his lands and this court every man above twelve years of age goods.

was to take his oath of allegiance to the king, if

he were bound, then his lord to answer for him. But for that all punishment is for example's sake ; In this court the constables were appointed and

it is good to see the means whereby offenders are sworn; breakers of the peace punished by fine drawn to their punishment; and first for the mat- and imprisonment, the parties beaten or hurt ter of the peace.

recompensed upon complaints of damages; all The ancient laws of England planted here by appeals of murder, maim, robbery, decided; conthe conqueror were, that there should be officers tempts against the crown, public annoyances of two sorts in all the parts of this realm to pre- against the people, treasons and felonies, and all serve the peace :

other matters of wrong, betwixt party and party,

for lands and goods. 1. Constabularii

But the king seeing the realm grow Court of Mar 2. Conservatores

}Pacis
.

daily more and more populous, and she's creciendo

that this one court could not dispatch weive multies of The office of the constable was, to all, did first ordain that his marshal berdiri tena!

arrest the parties that he had seen should keep a court for controversies which is the breaking the peace, or in fury ready to break the arising within the virge; which is the virgen peace, or was truly informed by others, or by their within twelve miles of the chiefest tunnel of the own confession, that they had freshly broken the court, which did but ease the King's Bench in peace; which persons he might imprison in the matters only concerning debts, covenants, and stocks, or in his own house, as his or their quality such like, of those of the king's household only, required, until they had become bounden with never dealing in breaches of the peace, or consureties to keep the peace; which obligation from cerning the crown by any other persons, or any thenceforth was to be sealed and delivered to the pleas of lands. Insomuch as the king, for further constable to the use of me king. And that the ease, having divided this kingdom into counties, constable was to send to the king's Exchequer or and committing the charge of every county to a

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lord or earl, did direct that those earls, and all writs of execution of the law, according Santiated upon within their limits, should look to the to judgments of superior court, for taking of men's

matter of the peace, and take charge goods, lands, or bodies, as the cause requireth. charge of this of the constables, and reform public The hundred courts were most of earted the came annoyances, and swear the people to them granted to religious men, noble- to exchat they

the crown, and take pledges of the men, and others of great place. And granted. freemen for their allegiance, for which also many men of good quality have attained by

purpose the county did once every year charter, and some by usage, within manors of their kvep a court, called the Sheriff's Tourn; at own liberty, of keeping law days, and to uso which all the county (except women, clergy, there justice appertaining to a law day. children under twelve, and not aged above sixty) Whosoever is lord of the hundred did appear to give or renew their pledges of alle- court is to appoint two high constables biedrect on giance. And the court was called Curia Franci of the hundred, and also is to appoint col'alles. Peqii, a view of the Pledges of Freemen; or, in every village a petty constable, with a tithing Ternus Comitatus.

man to attend in his absence, and to be at his At which meeting or court there fell, commandment when he is present in all services maternellest by occasion of great assemblies, much of his office for his assistance.

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, but

a use of that justice which was formerly executed chers, poulterers, fisbmongers, 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 the the vice, and readily subject to correction courses, or destroy fry of fish, or use of what matmarter my tone for their negligence or abuse; and engines or nets to take deer, conies, presented on the leve as therefore took to themselves the ap- pheasants, or partridges, or build pigeon and law days.

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 whi h 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 sheor the crown 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 how beit, 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

Conservators of the peace were in deb; or damages under forty pounds, and may ancient times certain, which were as- the peace called have writs for to replevy their cattle distrained signed by the king to see the peace write for ferro and impounded by others, and there try the cause maintained, and they were called to or at the king'. of their distress; and by a writ called Justicies, the office by the king's writ, to cona man may sue for any sum; and in this court the tinue for term of their lives, or at the king's sheriff, by a writ called an exigent, doth proclaim pleasure. men sued in courts above to render their bodies, For this service, choice was made of or else they be outlawed.

the best men of calling in the country, This sheriff doth serve the king's and but few in the shire. They might fice w is

writs of process, be they summons, at- bind any man to keep the peace, and to good tachments to compel men to answer to the law, behaviour, by recognisance to the king, with

VOL. III.-32

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ureties; and they inight by warrant send for the man will beat him, or kill him, or burn party, directing their warrant to the sheriff or con- his house, are to send for the party by us, burning of stable, as they please, to arrest the party, and warrant of attachment, directed to the menta lor sure bring him before them. This they used to do sheriff or constable, and then to bind 's of the Peace when complaint was made by any that he stood the party with sureties by recognisance to the in fear of another, and so took his oath ; or else, king to keep the peace, and also to appear at the where the conservator himself did, without oath next sessions of the peace; at which next ses. or complaint, see the disposition of any man in- sions, when every justice of peace hath therein clined to quarrel and breach of the peace, or to delivered all their recognisances so misbehave himself in some outrageous manner of taken, then the parties are called, and at the reste de force or fraud, there, by his own discretion, he the cause of binding to the peace ex. jurize ai might send for such a fellow, and make him find amined, and both parties being heard, suretits of the peace, or of his good behaviour, as the whole bench is to determine as they see cause, he should see cause; or else commit him to the either to continue the party so bound, or else to gaol if he refused.

discharge him. The judges of either bench in West- The justices of peace in their sesminster, barons of the Exchequer, sions are attended by the constables historie jos

master of the rolls, and justices in eyre and bailiffs of all hundreds and liberties peace. and assizes in their circuits, were all, without within the county, and by the sheriff or his de. writ, conservators of the peace in all shires of puty, to be employed as occasion shall serve England, and continue to this day.

in executing the precepts and directions of the But now at this day conservators of court. They proceed in this sort: the sheriff por conect the peace are out of use, and in lieu of doth summon twenty-four freeholders, discreet placinto them there are ordained justices of men of the said county, whereof some sixteen are of peace, use peace, assigned by the king's commis- selected and sworn, and have their charge to dolezite the roma sions in every county, which are move- serve as the grand jury, the party indicted is to

able at the king's pleasure; but the traverse the indictment, or else to confess it, and power of placing and displacing justices of the so submit himself to be fined as the court shall peace is by use delegated from the king to the think meet, (regard had to the offence,) except the chancellor.

punishment be certainly appointed, as often it is, That there should be justices of the peace by by special statutes. commissions, it was first enacted by a statute The justices of peace are many in every county, made 1 Edward III. and their authority augment- and to them are brought all traitors, felons, and ed by many statutes made since in every king's other malefactors of any sort upon their first reign.

apprehension, and that justice to whom they are They are appointed to keep four ses- brought examineth them, and heareth their accu. sions every year; that is every quarter sations, but judgeth not upon it; only if he find one. These sessions are a sitting of the suspicion but light, then he taketh bond, with the justices to despatch the affairs of sureties of the accused, to appear either at the

their commissions. They have power next assizes, if it be matter of treason or felony, 2. cap 10 & to hear and determine in their sessions or else at the quarter sessions, if it be concerning in cont priar all felonies, breaches of the peace, con- riot or misbehaviour, or some other small offence.

tempts, and trespasses, so far as to fine And he also then bindeth to appear those that give

the offender to the crown, but not to testimony and prosecute the accusation, all the award recompense to the party grieved. accusers and witnesses, and so setteth the party at

They are to suppress riots and tu- large. And at the assizes or sessions the justice of mults, to restore possessions forcibly (as the case falleth out) he certifieth ores consta

hom run all taken away, to examine all felons ap- the recognisances taken of the acvices uuto the prehended and brought before them; cused, accusers, and witnesses, who being there

to see impotent poor people, or maimed are called, and appearing, the cause of the accused soldiers provided for according to the laws, and is debated according to law for his clearing or rogues, vagabonds, and beggars punished. They condemning. are both to license and suppress alehouses, bad. But if the party accused seem upon pregnant gers of corn and victuals, and to punish fore- matter in the accusation, and to the justice to be stallers, regrators, and engrossers.

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 lering 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 there to remain until the assizes. And then the the king. Any of these justices, by oath taken justice is to certify his accusation, examination, by a man that he standeth in fear that another and recognisance taken for the appearances and

The power of
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prosecution of the witnesses, so as the judges of lands and recoveries, which were wont to be may, when they come, readily proceed with him either in the King's Bench, or else before the as the law requireth.

justices in eyre. But the statute of Mag. Char. The judges of the assizes, as they be cap. 11. 5. is negative against it, viz. Communia How now become into the place of the an- placita non sequantur curiam nostram, Torte cient justices in eyre, called justiciarii sed teneantur in aliquo loco Certo ;

itinerantes, which, in the prime kings which locus Cerlus must be the Com- comnis inne by after the conquest, until Henry the Third's time mon Pleas; yet the judges of circuits especially, and after, in lesser measure, even to have now five commissions by which they sit. Richard the Second's time, did execute the jus- The first is a coinmission of oyer and lice of the realm; they began in this sort. terminer, directed unto thein, and many 2. 62 deli

The king, not able to despatch business in his others of the best account, in their take assizus. own person, erected the Court of King's Bench;* circuits; but in this commission the Prius. 5. 01 that not able to receive all, nor meet to draw the judges of assize are of the quorum, so The za brily people all to one place, there were or- as without them there can be no proceeding. oltmer, kets, dained counties and the sheriff's tourns, This commission giveth them power

Pone hundred courts, and particular leets, to deal with treasons, murders, and all miner, in which es mind and law-days, as before mentioned, manner of felonies and misdemeanors of the quorum, tie publie zoud. which dealt only with crown matters whatsoever; and this is the largest lave et commi for the public; but not the private titles of lands commission that they have. or goods, nor the trial of grand offences, of trea- The second is a commission of gaol delivery ; sons, and felonies, but all the counties of the that is, only to the judges themselves, and the realm were divided into six circuits. And two clerk of the assize associate: and by this comlearned men well read in the laws of the realm mission they are to deal with every prisoner in were assigned by the king's commission to every the gaol, for what offence soever he be there; and circuit, and to ride twice a year through those to proceed with him according to the laws of the shires allotted to that circuit, making proclama- realm, and the quality of his offence: tion beforehand, a convenient time in every and they cannot, by this commission, county, of the time of their coming, and place of do any thing concerning any man but one or the bene their sitting, to the end the people might attend those that are prisoners in the gaol. them in every county of that circuit.

The course now in use of execution of this coin. They were to stay three or four days in every mission of gaol delivery is this. There is no pricounty, and in that time all the causes of that soner but is committed by some justice of peace, county were brought before them by the parties who, before he committed him, took his exaniigrieved, and all the prisoners of the said gaol in nation, and bound his accusers and witnesses to every shire, and whatsoever controversies arising appear and prosecute at the gaol delivery. This concerning life, lands, or goods.

justice doth certify these examinations and bonds, The authority of these judges in and thereupon the accuser is called solemnly into eyre is in part translated by act of par- the court, and when he appeareth he is willed to liament to justices of assize, which be prepare a bill of indictment against the prisoner,

now the judges of circuits, and they do and go with it to the grand jury, and give eviuse the same course that justices in eyre did, to dence upon their oaths, he and the witnesses, proclaim their coming every half year, and the which he doth; and then the grand jury write place of their sitting.

thereupon either billa vera, and then the prisoner The business of the justices in eyre, standeth indicted, or else ignoramus, and then he of house and of the justices of assize at this day is not touched. The grand jury deliver lesered by the is much lessened, for that, in Henry these bills to the judges in their court, the proceeding

the Third's time, there was erected the and so many as they find endorsed or circuits in

Court of Common Pleas at Westmin- billa vera, they send for those prisoners, ster, in which court have been ever since, and yet then is every man's indictment put and read to are begun and handled the great suits of lands, him, and they ask him whether he be guilty or debts, benefices, and contracts, fines for assurance not. If he saith guilty, his confession

is recorded ; if he say not guilty, then jongens the 1. King's Rench. 2. Marshal's Court. 3. Corinty Court. he is asked how he will be tried; he concertist of the 4. Sheriff's Tourns. 5. Hundred Leets and Law-days. All which dealt only in crown inatters; but the Justice in eyre answereth, by the country. Then the saol delivery. dealt in private titles of lands or goods, and in all treasons sheriff is commanded to return the names of and felonies, of whom there were twelve in number, the twelve freeholders to the court, which freeholders whole realın being divided into six circuis. England divided into six circuits, and iwo learned men in the laws, assigned be sworn to make true delivery between the king by the king's commission to ride twice a year through those and the prisoner, and then the indictment is again skires all ited to that circuit, for their trial of private titles to lands and goods, and all treasons and felonies, which the read, and the witnesses sworn to speak their county courts meddle not in.

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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- fenos parece a while they come in with a verdict of guilty or selves are appointed to allow clergy to al suatures. Bi not guilty, which verdict the judges do record such as can read, being not such offend. E 12 ile uza accordingly. If any prisoner plead not guilty ers from whom clergy is taken away and there, upon the indictment, and yet will not put himself by any statute, and to see them burned furiosite to trial upon the jury (or stand mute), he shall be in the hand, and so discharge them distance the pressed.

without delivering them to the bishop, 'The judges, when many prisoners are in the howbeit the bishop appointeth the de. busus. gaol, do in the end before they go peruse every puty to attend the judges with a book to try

Those that were indicted by the grand jury, whether they could read or not. and found not guilty by the select jury, they The third commission that the judges of cir. judge 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 which they are called justices of assize, and the sheriff to see execution done. Those that refuse office of those justices is to do right upon writs trial by the country, or stand mute upon the in- called assizes, brought beföre them by such as are dictment, they judge to be pressed to death , some wrongfully thrust out of their lands. Of which whose offences are pilfering under twelvepence number of writs there was far greater store brought value they judge to be whipped. Those that con- before them in ancient times than now, for that fess their indictments, they judge to death, whip- men's seisins and possessions are sooner recoping, or otherwise, as their offence requireth. vered by sealing leases upon the ground, and by And those that are not indicted at all, but their bringing an ejectione firme, and trying their title bill of indictment returned with ignoramus by the so, than by the long suits of assizes. grand jury, and all other in the gaol against whom The fourth commission is a commission to take no bills at all are preferred, they do acquit by pro- Nisi Prius directed to none but to the clamation out of the gaol. That one way or other judges themselves and their clerks of si they rid the gaol of all the prisoners in it. But assizes, by which they are called jus- iwo judges and because some prisoners have their books, and be tices of Nisi Prius. These Nisi Prius the clerk of the burned in the hand and so delivered, it is neces- happen in this sort, when a suit is be. Nisi Prics. sary to show the reason thereof. This having gun for any matter in one of the three courts, the their books is called their clergy, which in an- King's Bench, Common Pleas, or the Exchequer cient time began thus.

here above, and the parties in their pleadings do For the scarcity of the clergy, in the vary in a point of fact; as for example, if an ac. be a retrofer the realm of England, to be disposed in tion of debt upon obligation, the defendant denies poned to be it is religious houses, or for priests, dea- the obligation to be his debt, or in any action of

cons, and clerks of parishes, there was trespass grown for taking away goods, the de. a prerogative allowed to the clergy, that if any fendant denieth that he took them, or in an action man that could read as a clerk were to be con- of the case for slanderous words, the defendant demned to death, the bishop of the diocess might, denieth that he spake them, &c. if he would, claim him as a clerk, and he was to Then the plaintiff is to maintain and prove that see him tried in the face of the court.

the obligation is the defendant's deed, that he Whether he could read or not, the book was either took the goods, or spake the words; upon prepared and brought by the bishop, and the judge which denial and affirmation the law saith, that was to turn to some place as he should think issue is joined betwixt them, which issue of the meet, and if the prisoner could read, then the fact is to be tried by a jury of twelve men of the bishop was to have him delivered over unto bim county where it is supposed by the plaintiff to be to dispose of in some places of the clergy, as he done, and for that purpose the judges of the court should think meet. But if either the bishop do award a writ of venire facias in the king's would not demand him, or that the prisoner could name to the sheriff of that county, commanding not read, then was to be put to death.

him to cause four and twenty discreet freeholders And this clergy was allowable in the of this county, at a certain day, to try this issue

ancient times and law, for all offences so joined, out of which four and twenty only Clerey allowed whatsoever they were, except treason twelve are chosen to serve. And that double excepe treason and robbing of churches, their goods number is returned, because some may make de

and ornaments. But by many statutes fault, and some be challenged upon kindred, by many statutes. made since, the clergy is taken away alliance, or partial dealing. In burglary. for murder, burglary, robbery, purse-. 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 Viorse steal. felonies particularized by the statutes / warned them to come at the day according to their

Book allowed

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Concerning the allowing of the clergy to the

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3 Robbery 4. Puse-cutling

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