of the week, such a Saint's day or eve, to-day, distinction of name and addition, but the notes to-morrow; these are names of times. fall out to be of equal dignity all of name or addition.

But the day that I was born, the day that I was married; these are but circumstances and addition of times.

And therefore if I bind myself to do some personal attendance upon you upon Innocents' day, being the day of your birth, and you were not born that day, yet shall I attend.

There resteth two questions of difficulty yet upon this rule: first, Of such things whereof men take not so much note as that they shall fail of this distinction of name and addition.

As, my box of ivory lying in my study sealed up with my seal of arms; my suit of arras with the story of the nativity and passion: of such things there can be no name but all is of description, and of circumstance, and of these I hold the law to be, that precise truth of all recited circumstances is not required.

But in such things ex multitudine signorum box colligitur identitas vera, therefore though my were sealed, and although the arras had the story of the nativity, and not of the passion, if I had no other box, nor no other suit, the gifts are good; and there is certainty sufficient, for the law doth not expect a precise description of such things as have no certain denomination.

Secondly, Of such things as do admit the

As prata mea juxta communem fossam in D. whereof the one is true, the other false; or tenementum meum in tenura Guilielmi quod perquisivi de R. C. in prædict' indent' specificat', whereof one is true, and two are false; or two are true, and one false.

So ad curiam quam tenebat die Mercurii tertio die Martii, whereof the one is true, the other false.

Vide livers

In these cases the former rule, ex multitudine signorum, &c. holdeth not; neither is the placing of the falsity or verity first or last material, but all must be true, or else the grant is void; always understood, that if you can re- avant dit pur concile all the words, and make no falsity, that is quite out of this rule, which hath place only where there is a direct contrariety or falsity not to be reconciled to this rule.

cest auxi.

As if I grant all my land in D. in tenura I. S. which I purchased of I. N. specified in a devise to I. D. and I have land in D. whereof in part of them all these circumstances are true, but I have other lands in D. wherein some of them fail, this grant will not pass all my land in D. for there these are references, and no words of falsity or error, but of limitation and restraint.

THE

USE OF THE LAW,

PROVIDED FOR

PRESERVATION OF OUR PERSONS, GOODS, AND GOOD NAMES.

ACCORDING TO THE

PRACTICE OF THE LAWS AND CUSTOMS OF THIS LAND.

The use of the

THE use of the law consisteth prin

law, and where cipally in these three things:

in it principally consisteth.

der, battery,&c.

If any man beat, wound, or maim Action of the another, or give false scandalous words case, for slanI. To secure men's persons from that may touch his credit, the law death and violence. giveth thereupon an action of the case, for the II. To dispose the property of their goods and slander of his good name; and an action of batlands. tery, or an appeal of maim, by which recompense III. For preservation of their good names from shall be recovered, to the value of the hurt, shame and infamy. damage, or danger.

Surety to keep the peace.

For safety of persons, the law provideth that any man standing in fear of another, may take his oath before a justice of peace, that he standeth in fear of his life, and the justice shall compel the other to be bound with sureties to keep the peace.

next of kin.

If any man kill another with malice, Appeal of murthe law giveth an appeal to the wife der given to the of the dead, if he had any, or to the next of kin that is heir in default of a wife, by which appeal the defendant convicted is to suffer death, and to lose all his lands and goods. But if the

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.

Manslaughter, and when

If one kill another upon a sudden feiture of goods, quarrel, this is manslaughter, for which and when not. 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

no lands.

The office of the constable.

The office of the constable was, to 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 high constables, two of every hundred petty constables, one in every village; stable for every they were, in ancient time, all village. 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

they anciently

stituted, and in what matters

The sheriff's Tourn is a court very ancient, incident to his office. At the first, it was erected by the conqueror, and called the King's Bench, appoint- had jurisdicing 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 Marshalsca erected, twelve miles of the chief tunnel which is the

and its jurisdiction 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

lord or earl, did direct that those earls, | and all writs of execution of the law, according
to judgments of superior court, for taking of men's
goods, lands, or bodies, as the cause requireth.
The hundred courts were most of
them granted to religious men, noble- to whom they
men, and others of great place. And granted.
also many men of good quality have attained by
charter, and some by usage, within manors of their
own liberty, of keeping law days, and to use
there justice appertaining to a law day.

instituted upon within their limits, should look to the
England into matter of the peace, and take charge
charge of this 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
keep 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-
giance. And the court was called Curia Franci
Plegii, a view of the Pledges of Freemen; or,
Turnus Comitatus.

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.

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.

Justices of peace ordained

Beating, kill houses, attachty of the peace.

ing, burning of ments for sure

man will beat him, or kill him, or burn
his house, are to send for the party by
warrant of attachment, directed to the
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 Recognisance
taken, then the parties are called, and of the peace de-
the cause of binding to the peace ex- justices at
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.

livered by the

their sessions.

tices of the

The justices of peace in their ses- Quarter sessions sions are attended by the constables held by the jusand 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 the peace are out of use, and in lieu of doth summon twenty-four freeholders, discreet them there are ordained justices of men of the said county, whereof some sixteen are of place just peace, assigned by the king's commis-selected and sworn, and have their charge to delegated from sions in every county, which are movechancellor. 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

vators. Power

of placing and displacing

by

the king to the

They are appointed to keep four sessions every year; that is every quarter These sessions are a sitting of the justices to despatch the affairs of their commissions. They have power to hear and determine in their sessions all felonies, breaches of the peace, contempts, and trespasses, so far as to fine the offender to the crown, but not to award recompense to the party grieved.

R. 2. cap. 10 &
Ils. ount poiar

v. Dier, 69 b.

d'inquier de murder car. ce felon.

Authority of

peace, through"

the county ser

crown.

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 of justices of 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 out of their sessions.

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, 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 stalers, 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 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

may, when they come, readily proceed with him as the law requireth.

Judges of assize

of the ancient

the

The judges of the assizes, as they be come in place now become into the place of the anjudges in eyre cient justices in eyre, called justiciarii of R. 2. itinerantes, which, in the prime kings after the conquest, until Henry the Third's time especially, and after, in lesser measure, even to Richard the Second's time, did execute the justice of the realm; they began in this sort.

The justices of

this day five which they sit.

prosecution of the witnesses, so as the judges | 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 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.

hundre ls, 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 it 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.

The authority translated by parliament to justices of as

size.

1. Oyer & term. very. 3. To

2. Gal delitake assizes. Prius. 5. Of

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

clerk of the as

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, directed only do any thing concerning any man but selves, and the those that are prisoners in the gaol. The course now in use of execution of this com. mission 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 The business of the justices in eyre, standeth indicted, or else ignoramus, and then he of the justices and of the justices of assize at this day is not touched. The grand jury deliver lessened by the is much lessened, for that, in Henry these bills to the judges in their court, the proceedings the Third's time, there was erected the and so many as they find endorsed of 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 in use with the judges for 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 their knowledge concerning the fact, and the prisoner

The authority of these judges in eyre is in part translated 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.

The authority

of assizes much

court of Common Pleas, erected in H. 3. time.

* 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 manner of of the justices their circuits.

The course now