Imágenes de páginas


Justice of

by the lord keejer.

viour. The words of their commission are con- into his majesty's hands all lands escheated, and ceived thus: quorum such and such, unum vel goods or lands forfeited, and therefore is called duos, &c., esse volumus ; and without some one or escheator; and he is to inquire by good inquest more of the quorum, no sessions can be holden; of the death of the king's tenant, and to whom and for the avoiding of a superfluous number of the lands are descended, and to seize their bodies such justices, (for, through the ambition of many and lands for ward, if they be within age, and is

it is counted a credit to be burthened accountable for the same; he is named or apEi ole ale printed with that authority,) the statute of 38 pointed by the Lord Treasurer of England.

H. VIII. hath expressly prohibited that there shall be but eight justices of the peace in every county. These justices hold their ses

The Office of Coroner. sions quarterly,

Two other officers there are in every county In every shire where the commission of the called coroners; and by their office they are to peace is established, there is a clerk of the peace inquest in what manner, and by whom every for the entering and engrossing of all proceedings person, dying of a violent death, came so to their before the said justices. And this officer is ap- death ; and to enter the same of record ; which pointed by the custos rotulorum.

is matter criminal, and a plea of the crown: and, The Office of Sheriffs.

therefore, they are called coroners, or crowners, Every shire hath a sheriff, which word, being to be in corona populi.

as one hath written, because their inquiry ought of the Saxon English, is as much as to say, shire

These officers are chosen by the freeholders of reeve, or minister of the county: his function or the shire, by virtue of a writ out of the chancery office is twofold, namely, 1. Ministerial.

d: coronatore eligendo: and of whom I need not

to write more, because these officers are in use 2. Judicial. 1. He is the minister and executioner

everywhere. of all the process and precepts of the courts of law, and therefore ought to make return General Observations, touching Constables, Jaiiers, and certificate.

and Bailiffs. 2. The sheriff hath authority to hold two several courts of distinct natures: 1. The turn, be

Forasmuch as every shire is divided into hun cause he keepeth his turn and circuit about the dreds, there are also by the statute of 34 H. VIII. shire, holdeth the same court in several places, cap. 26, ordered and appointed, that two sufficient wherein he doth inquire of all offences perpetrated gentlemen or yeomen shall be appointed con

stables of against the common law, and not forbidden by any statute or act of Parliament; and the juris

Also, there is in every shire a jail or prison diction of this court is derived from justice distri- appointed for the restraint of liberty of such perbutive, and is for criminal offences, and held twice sons as for their offences are thereunto comevery year.

mitted, until they shall be delivered by course The county court, wherein he doth determine

of law. all petty and small causes civil under the value In every hundred of every shire the sheriff of forty shillings, arising within the said county,

thereof shall nominate sufficient persons to be and, therefore, it is called the county court.

bailiffs of that hundred, and under-ministers of The jurisdicrion of this court is derived from the sheriff; and they are to attend upon the justice commutative, and held every month. The justices in every of their courts and sesoffice of the sheriff is annual, and in the king's

sions. gift, whereof he is to have a patent.

Note. Archbishop Sancroft notes on this last The Office of Escheator.

chapter, written, say some, by Sir John Dodde Every shire hath an officer called an escheator, ridge, one of the justices of the King's Bench, which is to attend the king's revenue, and to seize 1608.

31 H. 8. c. 16.

[ocr errors]

every hundred.







The modry sorts of the royal resenue,

The hanaper.

This office is

the hauaper.

All the finances or revenues of the per for them; and the fines for all original writs, imperial crown of this realm of Eng- and for causes that pass the great seal, were wont

land be either extraordinary or ordinary. to be immediately paid into the hanaper Those extraordinary be fifteenths and tenths, of the chancery; howbeit, now of late subsidies, loans, benevolences, aids, and such years, all the sums which are due, either for any others of that kind, that have been or shall be writ of covenant, or of other sort, whereupon a invented for supportation of the charges of war; final concord is to be levied in the common bench, the which, as it is entertained by diet, so can it or for any writ of entry, whereupon a common not be long maintained by the ordinary fiscal and recovery is to be suffered there; as also all sums receipt.

demandable, either for license of alienation to be Of these that be ordinary, some are certain and made of lands holden in chief, or for the pardon standing, as the yearly rents of the demesne or of any such alienation, already made without lands; being either of the ancient possessions license, together with the mean profits that be of the crown, or of the later augmentations of forfeited for that offence and trespass, have been the same.

stayed in the way to the hanaper, and been let to Likewise the fee-farms reserved upon charters farm, upon assurance of three hundred pounds of granted to cities and towns corporate, and the yearly standing profit, to be increased blanch rents and lath silver answered by the over and above that casual commo- drvet rutor sheriffs. The residue of these ordinary finances dity, that was found to be answered be casual, or uncertain, as be the escheats and in the hanaper for them, in the ten years, one forfeitures, the customs, butlerage, and impost, with another, next before the making of the same the advantages coming by the jurisdiction of the lease. courts of record and clerks of the market, the And yet so as that yearly rent of increase is temporalities of vacant bishoprics, the profits that now still paid into the hanaper by four gross porgrow by the tenures of lands, and such like, if tions, not altogether equal, in the four usual open there any be.

terms of St. Michael, and St. Hilary, of Easter, And albeit that both the one sort and other of and the Holy Trinity, even as the former casualty these be at the last brought unto that office of her itself was wont to be, in parcel meal, brought in majesty's exchequer, which we, by a metaphor, and answered there. do call the pipe, as the civilians do by

And now forasmuch as the only mat. The name of a like translation mame it fiscus, a ter and subject about which this farbasket or bag, because the whole receipt is finally mer or his deputies are employed, is to rate or conveyed into it by the means of divers small compound the sums of money payable to her pipes or quills, as it were water into a great head majesty, for the alienation of lands that are either or cistern; yet, nevertheless, some of the same be made without license, or to be made by license, first and immediately left in other several places if they be holden in chief, or to pass for common and courts, from whence they are afterwards car-recovery, or by final concord to be levied, thoug!! ried by silver streams, to make up that great they be not so holden, their service may therefur lake, or sea, of money.

very aptly and agreeably be termed the office of As for example, the profits of wards and their compositions for alienations. Whether the ad lands be answered into that court which is pro- vancement of her majesty's commodity in this

The pipe.

the office.

in which year

The scope of the discourse, and the parts thereof.

The first part

part of her prerogative, or the respect of private that he found great favour there by this statute, to lucre, or both, were the first motives thus to dis- be reasonably fined for his trespass. sever this member, and thereby as it were to And althongh we read an opinion 20 lib. Assis. mayhem the chancery, it is neither my part noi parl. 17, et 26, Assis. parl. 37, which also is re. purpose to dispute.

peated by Hankf. 14 H. IV. fol. But, for a full institution of the ser- Magna Charta was confirmed by him, the king's vice as it now standeth, howsoever tenant in chief might as freely alien his lands

some men have not spared to speak without license, as might the tenant of any other hardly thereof, I hold worthy my labour to set lord ; yet, forasmuch as it appeareth not by what down as followeth:

statute the law was then changed, I had rather First, that these fines, exacted for such aliena- believe, with old Judge 'Thorpe and late Justice tions, be not only of the greatest antiquity, but Stanford, that even at the common law, which is are also good and reasonable in themselves; se as much as to say, as from the beginning of our condly, that the modern and present exercise of this tenures, or froin the beginning of the English office is more commendable than was the former monarchy, it was accounted an offence in the usage; and, lastly, that as her majesty hath re- king's tenant in chief, to alien without the royal ceived great profit thereby, so may she, by a and express license. moderate hand, from time to time reap the like, And I am sure, that not only upon the entering, and that without just grief to any of her subjects. or recording, of such a fine for alienation, it is

As the lands that are to be aliened, wont to be said pro transgressione in hac parte of this treatise be either immediately holden in chief, facta; but that you may also read amongst the or not so holden of the queen, so be these fines records in the Tower, Fines 6 Hen. Reg. 3, Memb. or sums respectively of two sundry sorts; for 4, a precedent of a capias in manum regis terras upon each alienation of lands, immediately held alienatas sine licentia regis, and that, namely, of of her majesty in chief, the fine is rated here, the manor of Coselescombe in Kent, whereof either upon the license, before the alienation is Robert Cesterton was then the king's tenant in made, or else upon the pardon when it is made chief. But were it that, as they say, this began without license. But generally, for every final first 20 H. III., yet it is above three hundred and concord of lands to be levied upon a writ of cove- sixty years old, and of equal, if not more antinant, wirrantia chartæ, or other writ, upon which quity than Magna Charta itself, and the rest of it may be orderly levied, the sum is rated here our most ancient laws; the which never found upon the original writ, whether the lands be held assurance by Parliament until the time of King of the queen, nr of any other person; if at the Edward I., who may be therefore worthily called, least the lan's be of such value, as they may our English Solon or Lycurgus. yield the due fine. And likewise for every writ Now, therefore, to proceed to the rea. of entry, whereupon a common recovery is to be son and equity of exacting these fines suffered, the queen's fine is to be rated there upon for such alienations, it standeth thus: the writ original, if the lands comprised therein when the king, whom our law understandeth to he held of her by the tenure of her prerogative, have been at the first both the supreme lord of all that is to say, in chief, or of her royal person. the persons, and sole owner of all the lands within

So that I am hereby enforced, for his dominions, did give lands to any subject to in chief avoiding of confusion, to speak seve- hold them of himself, as of his crown and royal

rally, first of the fines for alienation of diadem, he vouchsafed that favour upon a chosen

lands held in chief, and then of the and selected man, not ininding that any other fines upon the suing forth of writs original. That should, without his privity and good liking, be the king's tenant in chief could not in ancient made owner of the same; and, therefore, his gist tire alien his tenancy without the king's license, has this secret intention enclosed within it, that if

it appeareth by the statute, 1 E. III. his tenant and patentee shall dispose of the same

cap. 12, where it is thus written: without his kingly assent first obtained, the lands " Whereas divers do complain that the lands shall revert to the king, or to his successors, that holden of the king in chief, and aliened without first gave them. And that also was the very licens”, have been seized into the king's hands cause, as I take it, why they were anciently for such alienation, and holden as forfeit: the seized into the king's hands, as forfeited by such king shall not hold them as forfeit in such a case, alienation, until the making of the said statute, out granteth that, upon such alienations, there 1 E. III., which did qualify that rigour of the shall be reasonable fines taken in the chancery former law. by due process.

Neither ought this to seem strange in the case So that it is hereby proved, that before this sta of the king, when every common subject, being lute, the effence of such alienation, without lord of lands which another holdeth of him, ought license, was taken to be so great, that the tenant not only to have notice given unto him upon every did forfeit the land thereby; and, consequently, (alienation of his tenant, but shall, by the like im

The fine for alitat modernlc.

'The king's

cull never ali without lieetise.

1. III. c. 12.


20 Rich. 11.

[ocr errors]

plied intention, re-have the lands of his tenants cured for debt or damage, amounting to forty dying without heirs, though they were given out pounds or more, a noble, that is, six shillings and never so many years agone, and have passed eight pence, is, and usually hath been paid to through the hands of howsoever many and strange fine: and so for every hundred marks more a possessors.

noble; and likewise upon every writ called a Not without good warrant, therefore, said Mr. præcipe of lands, exceeding the yearly value of Fitzherberi, in his Nat. Brev. fol. 147, that the forty shillings, a noble is given to a fine; and for justices ought not wittingly to suffer any fine to every other five marks by year, moreover another be levied of lands holden in chief, without the 'noble, as is set forth 20 R. II. abridged king's license. And as this reason is good and both by Justice Filzherbert and Justice forcible, so is the equity and moderation of the Brooke; and may also appear in the old Nafine itself most open and apparent; for how easy tura Brevium, and the Register, which have a a thing is it to redeem a forfeiture of the whole proper writ of deceipt, formed upon the case, lands forever with the profits of one year, by the where a man did, in the name of another, purchase purchase of a pardon? Or otherwise, how tole- such a writ in the chancery without his knowrable is it to prevent the charge of that pardon, ledge and consent. with the only cost of a third part thereof, timely And herein the writ of right is excepted, and and beforehand bestowed upon a license ? passeth freely, not for fear of the words Magna The antiquity

Touching the king's fines accustom- Charta, Nulli vendemus justiliam vel rectum, as de biens upcom ably paid for the purchasing of writs some do phantasy, but rather because it is rarely * Fita original. original, I find no certain beginning of brought; and then also bought dearly enough them, and do therefore think that they also grew without such a fine, for that the trial may be by up with the chancery, which is the shop wherein battle, to the great hazard of the champion. they be forged; or, if you will, with the first The like exemption hath the writ to inquire of ordinary jurisdiction and delivery of justice itself. a man's death, which also, by the twenty-sixth

For, when, as the king had erected his courts chapter of that Magna Charta, must be granted of ordinary resort, for the help of his subjects in freely, and without giving any thing for it; soit one against another, and was at the charge which last I do rather noie, because it may be not only to wage justices and their ministers, but well gathered thereby, thut even then all those also to appoint places and officers for safe custody other writs did lawfully answer their due fines; of the records that concerned not himself; by for otherwise the like prohibition would have whieh means each man might boldly both crave been published against them, as was in this case and have law for the present, and find memorials of the inquisition itself. also to maintain his right and recovery, forever I see no need to maintain the mediocrity and after, to the singular benefit of himself and all easiness of this last sort of fine, which in lands bis posterity; it was consonant to good reason, exceedeth not the tenth part of one year's value, that the benefited subject should render some in goods the two hundredth part of the thing that small portion of his gain, as well towards the is demanded by the writ. inaintenance of this his own so great commodity,

Neither has this office of ours* orias for the supportation of the king's expense, and ginally to meddle with the fines of any part of the reward of the labour of them that were wholly other original writs, than of such only employed for his profit.

as whereupon a fine or concord may be Litt. 34 8.6. And therefore it was well said by had and levied; which is commonly the writ of

Littleton, 34 H. VI. fol. 38, that the covenant, and rarely any other. For we deal not chancellor of England is not bound to make with the fine of the writ of entry of lands holden writs, without his due fee for the writing and in chief, as due upon the original writ itself; but seal of them. And that, in this part also, you only as payable in the nature of a license for the may have assurance of good antiquity, it is ex- alienation, for which the third part of the yearly tant among the records in the Tower, 2 H. III. rent is answered; as the statute 32 H. VIII. cap. Memb. 6, that Simon Hales and others gave unto 1, hath specified, giving the direction for it; him their king, unum palfredum pro sunimonendo albeit now lately the writs of entry be made Richardo filio et hærede Willielmi de Hanred, quod parcel of the parcel ferm also; and therefore J teneat finem factum coram justiciariis apud North- will here close up the first part, and unfold the ampton inter dictum Willielmum et patrem dicti second. Arnoldi de feodo in Barton. And besides that, Before the institution of this ferm in oblatis de Ann. 1, 2, and 7, regis Johannis, and office no writ of covenant for the part of this fines were diversely paid to the king, upon the levying any final concord, no writ of purchasing writs of mort d'auncestor, dower, entry for the suffering of any common recovery pone, to remove pleas, for inquisitions, trial by of lands holden in chief, no docket for license to juries, writs of sundry summons, and other more. alien, nor warrant for pardon of alienation made,

Jlereof then it is, that upon every writ pro- could be purchased and gotten without an oath VOL. III —41

•Right, or

the like import, seems to be omitted here.

lol. 39.


The second


called an affidavit, therein first taken All fired upon

creased by this new device, I will reserve, as I cither before some justices of assize, walki. have already plotted it, for the last part of this or master of the chancery, for the true discovery discourse: but in the mean while I am to note of the yearly value of the lands comprised in first, that the fear of common perjury, growing every of the same; in which doing, if a man by a daily and over-usual acquaintance with an shall consider on the one side the care and seve- oath, by little and little raiseth out that most rity of the law, that would not be satisfied without reverend and religious opinion thereof, which an cath; and, on the other side, the assurance of ought to be planted in our hearts, is hereby for a the truth to be had by so religious an affirmation great part cut off and clean removed : then that as an oath is, he will easily believe that nothing the subject yieldeth little or nothing more now could be added unto that order, either for the than he did before, considering that the money, ready despatch of the subject, or for the uttermost which was wont to be saved by the former corrupt advancement of the king's profit. But quid ver- swearing, was not saved unto him, but lost to her wa audiam, cum facta videam? Much peril to the majesty and him, and found only in the purse of swearer, and little good to our sovereign hath the clerk, attorney, solicitor, or other follower of ensued thereof. For, on the one side, the jus- the suit; and, lastly, that the client, besides the tices of assize were many times abused by their benefit of retaining a good conscience in the clerks, that preferred the recognition of final con- passage of this his business, hath also this good cords taken in their circuit; and the masters of assurance, that he is always a gainer, and by no the chancery were often overtaken by the fraud means can be at any loss, as seeing well enough, of solicitors and attorneys, that followed their that if the composition be over-hard and heavy clients' causes here at Westminster; and, on the for him, he may then, at his pleasure, relieve himother side, light and lewd persons, especially, self by recourse to his oath; which also is no that the exactor of the oath did neither use ex- more than the ancient law and custom of the realm hortation, nor examining of them for taking there- hath required at his hands. And the selfsame of, were as easily suborned to make an affidavit thing is, moreover, that I may shortly deliver för money, as post-horses and hackneys are taken by the way, not only a singular comfort to the exeto hire in Canterbury and Dover way; insomuch cutioners of this office, a pleasant seasoning of all that it was usual for him that dwelt in South- the sour of their labour and pains, when they shall wark, Shoreditch, or Tothill Street, to depose the consider that they cannot be guilty of the doing yearly rent or valuation of lands lying in the of any oppression or wrong; but it is also a most jorth, the west, or other remote part of the realm, necessary instruction and document for them, that where either he never was at all, or whence he even as her majesty hath made them dispensators came so young, that little could he tell what the of this her royal favour towards her people, so it matter meaned. And thus consuetudinem peccandi behoveth them to show themselves peregrinatores, fecit multitudo peccantium. For the removing of even and equal distributors of the same; and, as which corruption, and of some others whereof i that most honourable lord and reverend sage have long since particularly heard, it was thought counsellor, the late Lord Burleigh, good that the justice of assize should be en- late lord treasurer, said to myself, to anteria is the treateil to have a more vigilant eye upon their deal it out with wisdom and good writing, clerks' writing; and that one special master of dexterity towards all the sorts of her loving subthe chancery should be appointed to reside in this jects. office, and to take the oaths concerning the mat

But now that it may yet more parti- The part of ters that come hither; who might not only reject cularly appear what is the sum of this each officer. such as for just causes were unmeet to be sworn, new building, and by what joints and sinews the but might also instruct and admonish in the same is raised and knit together, I must let you weight of an oath, those others that are fit to pass know, that besides the fermour's deputies, which, and perform it; and forasmuch as thereby it must at this day, be three in number, and besides the needs fall out very often, that either there was no doctor of whom I spake, there is also a receiver, man ready and at hand that could, with know who alone handleth the moneys, and three clerks, ledge and good conscience, undertake the oath, that be employed severally, as anon you shall or else, that such honest persons as were present, perceive; and by these persons the whole proand did right well know the yearly value of the ceeding in this charge is thus performed. lands, would rather choose and agree to pay a

If the recognition or acknowledg- Proceedings reasonable fine without any oath, than to adven- ment of a final concord upon any writ upon fices. wire the uttermost, which, by the taking of their of covenant finable, for so we call that which oath, must come to light and discovery. It was containeth lands above the yearly value of forty also provided, that the fermour, and the deputies, shillings, and all others we term unfinable, be should have power to treat, compound, and agree taken by justice of assize, or by the chief justice with such, and so not exact any oath at all of them. of the Common Pleas, and the yearly value of

How much this sort of finance hath been in those lands be also declared by affidavit inade

This passage

dale of this

« AnteriorContinuar »