Imágenes de páginas

viour. The words of their commission are conceived thus: quorum such and such, unum vel duos, &c., esse volumus; and without some one or more of the quorum, no sessions can be holden; and for the avoiding of a superfluous number of such justices, (for, through the ambition of many it is counted a credit to be burthened Lace appointed with that authority,) the statute of 38 keeper. H. VIII. hath expressly prohibited that there shall be but eight justices of the peace in every county. These justices hold their sessions quarterly.

Justice of


In every shire where the commission of the peace is established, there is a clerk of the peace for the entering and engrossing of all proceedings before the said justices. And this officer is appointed by the custos rotulorum.

The Office of Sheriffs.

into his majesty's hands all lands escheated, and goods or lands forfeited, and therefore is called escheator; and he is to inquire by good inquest of the death of the king's tenant, and to whom the lands are descended, and to seize their bodies and lands for ward, if they be within age, and is accountable for the same; he is named or appointed by the Lord Treasurer of England.

The Office of Coroner.

Two other officers there are in every county called coroners; and by their office they are to inquest in what manner, and by whom every death; and to enter the same of record; which person, dying of a violent death, came so to their is matter criminal, and a plea of the crown: and. therefore, they are called coroners, or crowners, as one hath written, because their inquiry ought to be in corona populi.

Every shire hath a sheriff, which word, being of the Saxon English, is as much as to say, shireThese 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.

2. Judicial.

1. He is the minister and executioner

31 H. S. c. 16. of all the process and precepts of the

d coronatore eligendo: and of whom I need not to write more, because these officers are in use everywhere.

courts of law, and therefore ought to make return General Observations, touching Constables, Jailers, and certificate.

2. The sheriff hath authority to hold two several courts of distinct natures: 1. The turn, because he keepeth his turn and circuit about the shire, holdeth the same court in several places, wherein he doth inquire of all offences perpetrated against the common law, and not forbidden by any statute or act of Parliament; and the jurisdiction of this court is derived from justice distributive, and is for criminal offences, and held twice every year.

The county court, wherein he doth determine all petty and small causes civil under the value of forty shillings, arising within the said county, and, therefore, it is called the county court.

The jurisdiction of this court is derived from justice commutative, and held every month. The office of the sheriff is annual, and in the king's gift, whereof he is to have a patent.

The Office of Escheator.

Every shire hath an officer called an escheator, which is to attend the king's revenue, and to seize

and Bailiffs.

Forasmuch as every shire is divided into hun dreds, there are also by the statute of 34 H. VIII. cap. 26, ordered and appointed, that two sufficient gentlemen or yeomen shall be appointed constables of every hundred.

Also, there is in every shire a jail or prison appointed for the restraint of liberty of such persons as for their offences are thereunto committed, until they shall be delivered by course of law.

In every hundred of every shire the sheriff thereof shall nominate sufficient persons to be bailiffs of that hundred, and under-ministers of the sheriff; and they are to attend upon the justices in every of their courts and



Note. Archbishop Sancroft notes on this last chapter, written, say some, by Sir John Dodderidge, one of the justices of the King's Bench, 1608.







The sundry sorts of the

royal revenue,

The hanaper.

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 made of lands holden in chief, or for the pardon of any such alienation, already made without license, together with the mean profits that be forfeited for that offence and trespass, have been stayed in the way to the hanaper, and been let to farm, upon assurance of three hundred pounds of yearly standing profit, to be increased over and above that casual commo- derived out of dity, that was found to be answered in the hanaper for them, in the ten years, one with another, next before the making of the same lease.

Of these that be ordinary, some are certain and standing, as the yearly rents of the demesne or lands; being either of the ancient possessions of the crown, or of the later augmentations of the same.

Likewise the fee-farms reserved upon charters granted to cities and towns corporate, and the blanch rents and lath silver answered by the sheriffs. The residue of these ordinary finances be casual, or uncertain, as be the escheats and forfeitures, the customs, butlerage, and impost, the advantages coming by the jurisdiction of the courts of record and clerks of the market, the temporalities of vacant bishoprics, the profits that grow by the tenures of lands, and such like, if there any be.

And albeit that both the one sort and other of these be at the last brought unto that office of her majesty's exchequer, which we, by a metaphor,

The pipe.

do call the pipe, as the civilians do by a like translation mame it fiscus, a basket or bag, because the whole receipt is finally conveyed into it by the means of divers small pipes or quills, as it were water into a great head or cistern; yet, nevertheless, some of the same be first and immediately left in other several places and courts, from whence they are afterwards carried by silver streams, to make up that great lake, or sea, of money.

As for example, the profits of wards and their lands be answered into that court which is pro

This office is

the hanaper.

And yet so as that yearly rent of increase is now still paid into the hanaper by four gross portions, not altogether equal, in the four usual open terms of St. Michael, and St. Hilary, of Easter, and the Holy Trinity, even as the former casualty itself was wont to be, in parcel meal, brought in and answered there.

And now forasmuch as the only mat- The name of ter and subject about which this far- the office. mer or his deputies are employed, is to rate or compound the sums of money payable to her majesty, for the alienation of lands that are either made without license, or to be made by license, if they be holden in chief, or to pass for common recovery, or by final concord to be levied, though they be not so holden, their service may therefore very aptly and agreeably be termed the office of compositions for alienations. Whether the ad vancement of her majesty's commodity in this

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 mayhem the chancery, it is neither my part noi purpose to dispute.

The scope of the discourse, and the parts thereof.

But, for a full institution of the service as it now standeth, howsoever some men have not spared to speak hardly thereof, I hold worthy my labour to set down as followeth :

The first part

And although we read an opinion 20 lib. Assis. parl. 17, et 26, Assis. parl. 37, which also is repeated by Hankf. 14 H. IV. fol. 3, in which year Magna Charta was confirmed by him, the king's tenant in chief might as freely alien his lands without license, as might the tenant of any other lord; yet, forasmuch as it appeareth not by what statute the law was then changed, I had rather believe, with old Judge Thorpe and late Justice Stanford, that even at the common law, which is as much as to say, as from the beginning of our tenures, or from the beginning of the English monarchy, it was accounted an offence in the king's tenant in chief, to alien without the royal and express license.

First, that these fines, exacted for such alienations, be not only of the greatest antiquity, but are also good and reasonable in themselves; secondly, that the modern and present exercise of this office is more commendable than was the former usage; and, lastly, that as her majesty hath received great profit thereby, so may she, by a 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 covenant, warrantia chartæ, or other writ, upon which it may be orderly levied, the sum is rated here upon the original writ, whether the lands be held of the queen, or of any other person; if at the least the lands be of such value, as they may yield the due fine. And likewise for every writ of entry, whereupon a common recovery is to be suffered, the queen's fine is to be rated there upon the writ original, if the lands comprised therein he held of her by the tenure of her prerogative, that is to say, in chief, or of her royal person.

The king's


al without license.

I E. III. c. 12.

So that I am hereby enforced, for trant in chief avoiding of confusion, to speak severally, first of the fines for alienation of lands held in chief, and then of the fines upon the suing forth of writs original. That the king's tenant in chief could not in ancient time alien his tenancy without the king's license, it appeareth by the statute, 1 E. III. cap. 12, where it is thus written: "Whereas divers do complain that the lands holden of the king in chief, and aliened without licens, have been seized into the king's hands for such alienation, and holden as forfeit: the king shall not hold them as forfeit in such a case, but granteth that, upon such alienations, there shall be reasonable fines taken in the chancery by due process.

So that it is hereby proved, that before this statute, the offence of such alienation, without license, was taken to be so great, that the tenant did forfeit the land thereby; and, consequently,

sixty years old, and of equal, if not more antiquity than Magna Charta itself, and the rest of our most ancient laws; the which never found assurance by Parliament until the time of King Edward I., who may be therefore worthily called, our English Solon or Lycurgus.

The fine for alienation is moderate.

Now, therefore, to proceed to the reason and equity of exacting these fines for such alienations, it standeth thus: when the king, whom our law understandeth to have been at the first both the supreme lord of all the persons, and sole owner of all the lands within his dominions, did give lands to any subject to hold them of himself, as of his crown and royal diadem, he vouchsafed that favour upon a chosen and selected man, not minding that any other should, without his privity and good liking, be made owner of the same; and, therefore, his gift has this secret intention enclosed within it, that if his tenant and patentee shall dispose of the same without his kingly assent first obtained, the lands shall revert to the king, or to his successors, that first gave them. And that also was the very cause, as I take it, why they were anciently seized into the king's hands, as forfeited by such alienation, until the making of the said statute, 1 E. III., which did qualify that rigour of the former law.

Neither ought this to seem strange in the case of the king, when every common subject, being lord of lands which another holdeth of him, ought not only to have notice given unto him upon every alienation of his tenant, but shall, by the like im

plied intention, re-have the lands of his tenants dying without heirs, though they were given out never so many years agone, and have passed through the hands of howsoever many and strange possessors.

Not without good warrant, therefore, said Mr. Fitzherbert, in his Nat. Brev. fol. 147, that the justices ought not wittingly to suffer any fine to be levied of lands holden in chief, without the king's license. And as this reason is good and forcible, so is the equity and moderation of the fine itself most open and apparent; for how easy a thing is it to redeem a forfeiture of the whole lands forever with the profits of one year, by the purchase of a pardon? Or otherwise, how tolerable is it to prevent the charge of that pardon, with the only cost of a third part thereof, timely and beforehand bestowed upon a license?

The antiquity of fines upon

Touching the king's fines accustom

a moderation ably paid for the purchasing of writs writs original. original, I find no certain beginning of them, and do therefore think that they also grew up with the chancery, which is the shop wherein they be forged; or, if you will, with the first ordinary jurisdiction and delivery of justice itself. For, when, as the king had erected his courts of ordinary resort, for the help of his subjects in suit one against another, and was at the charge not only to wage justices and their ministers, but also to appoint places and officers for safe custody of the records that concerned not himself; by which means each man might boldly both crave and have law for the present, and find memorials also to maintain his right and recovery, forever after, to the singular benefit of himself and all his posterity; it was consonant to good reason, that the benefited subject should render some small portion of his gain, as well towards the inaintenance of this his own so great commodity, as for the supportation of the king's expense, and the reward of the labour of them that were wholly employed for his profit.

Litt. 34 H. 6. fol. 38.

And therefore it was well said by Littleton, 34 H. VI. fol. 38, that the chancellor of England is not bound to make writs, without his due fee for the writing and seal of them. And that, in this part also, you may have assurance of good antiquity, it is extant among the records in the Tower, 2 H. III. Memb. 6, that Simon Hales and others gave unto him their king, unum palfredum pro summonendo Richardo filio et hærede Willielmi de Hanred, quod teneat finem factum coram justiciariis apud Northampton inter dictum Willielmum et patrem dicti Arnoldi de feodo in Barton. And besides that, in oblatis de Ann. 1, 2, and 7, regis Johannis, fines were diversely paid to the king, upon the purchasing writs of mort d'auncestor, dower, pone, to remove pleas, for inquisitions, trial by juries, writs of sundry summons, and other more. Hereof then it is, that upon every writ proVOL. III-41

cured for debt or damage, amounting to forty pounds or more, a noble, that is, six shillings and eight pence, is, and usually hath been paid to fine: and so for every hundred marks more a noble; and likewise upon every writ called a præcipe of lands, exceeding the yearly value of forty shillings, a noble is given to a fine; and for every other five marks by year, moreover another noble, as is set forth 20 R. II. abridged both by Justice Fitzherbert and Justice Brooke; and may also appear in the old Natura Brevium, and the Register, which have a proper writ of deceipt, formed upon the case, where a man did, in the name of another, purchase such a writ in the chancery without his knowledge and consent.

20 Rich. II.

And herein the writ of right is excepted, and passeth freely, not for fear of the words Magna Charta, Nulli vendemus justitiam vel rectum, as some do phantasy, but rather because it is rarely brought; and then also bought dearly enough without such a fine, for that the trial may be by battle, to the great hazard of the champion.

The like exemption hath the writ to inquire of a man's death, which also, by the twenty-sixth chapter of that Magna Charta, must be granted freely, and without giving any thing for it; which last I do rather no、e, because it may be well gathered thereby, that even then all those other writs did lawfully answer their due fines; for otherwise the like prohibition would have been published against them, as was in this case of the inquisition itself.

I see no need to maintain the mediocrity and easiness of this last sort of fine, which in lands exceedeth not the tenth part of one year's value, in goods the two hundredth part of the thing that is demanded by the writ.

Right, or

the like import, seems to be omitted here.

Neither has this office of ours* originally to meddle with the fines of any some word of other original writs, than of such only as whereupon a fine or concord may be had and levied; which is commonly the writ of covenant, and rarely any other. For we deal not with the fine of the writ of entry of lands holden in chief, as due upon the original writ itself; but only as payable in the nature of a license for the alienation, for which the third part of the yearly rent is answered; as the statute 32 H. VIII. cap. 1, hath specified, giving the direction for it; albeit now lately the writs of entry be made parcel of the parcel ferm also; and therefore I will here close up the first part, and unfold the second.

The second


Before the institution of this ferm and office no writ of covenant for the part of this levying any final concord, no writ of entry for the suffering of any common recovery of lands holden in chief, no docket for license to alien, nor warrant for pardon of alienation made, could be purchased and gotten without an oath

All fines upon oath.

called an affidavit, therein first taken either before some justices of assize, or master of the chancery, for the true discovery of the yearly value of the lands comprised in every of the same; in which doing, if a man shall consider on the one side the care and severity of the law, that would not be satisfied without an oath; and, on the other side, the assurance of the truth to be had by so religious an affirmation as an oath is, he will easily believe that nothing could be added unto that order, either for the ready despatch of the subject, or for the uttermost advancement of the king's profit. But quid verba audiam, cum facta videam? Much peril to the swearer, and little good to our sovereign hath ensued thereof. For, on the one side, the justices of assize were many times abused by their clerks, that preferred the recognition of final concords taken in their circuit; and the masters of the chancery were often overtaken by the fraud of solicitors and attorneys, that followed their clients' causes here at Westminster; and, on the other side, light and lewd persons, especially, that the exactor of the oath did neither use exhortation, nor examining of them for taking thereof, were as easily suborned to make an affidavit for money, as post-horses and hackneys are taken to hire in Canterbury and Dover way; insomuch that it was usual for him that dwelt in Southwark, Shoreditch, or Tothill Street, to depose the yearly rent or valuation of lands lying in the north, the west, or other remote part of the realm, where either he never was at all, or whence he came so young, that little could he tell what the matter meaned. And thus consuetudinem peccandi fecit multitudo peccantium. For the removing of which corruption, and of some others whereof I have long since particularly heard, it was thought good that the justice of assize should be entreated to have a more vigilant eye upon their clerks' writing; and that one special master of the chancery should be appointed to reside in this office, and to take the oaths concerning the matters that come hither; who might not only reject such as for just causes were unmeet to be sworn, but might also instruct and admonish in the weight of an oath, those others that are fit to pass and perform it; and forasmuch as thereby it must needs fall out very often, that either there was no man ready and at hand that could, with knowledge and good conscience, undertake the oath, or else, that such honest persons as were present, and did right well know the yearly value of the lands, would rather choose and agree to pay a reasonable fine without any oath, than to advenuire the uttermost, which, by the taking of their oath, must come to light and discovery. It was also provided, that the fermour, and the deputies, should have power to treat, compound, and agree with such, and so not exact any oath at all of them. How much this sort of finance hath been in

creased by this new device, I will reserve, as I have already plotted it, for the last part of this discourse: but in the mean while I am to note first, that the fear of common perjury, growing by a daily and over-usual acquaintance with an oath, by little and little raiseth out that most reverend and religious opinion thereof, which ought to be planted in our hearts, is hereby for a great part cut off and clean removed: then that the subject yieldeth little or nothing more now than he did before, considering that the money, which was wont to be saved by the former corrupt swearing, was not saved unto him, but lost to her majesty and him, and found only in the purse of the clerk, attorney, solicitor, or other follower of the suit; and, lastly, that the client, besides the benefit of retaining a good conscience in the passage of this his business, hath also this good assurance, that he is always a gainer, and by no means can be at any loss, as seeing well enough, that if the composition be over-hard and heavy for him, he may then, at his pleasure, relieve himself by recourse to his oath; which also is no more than the ancient law and custom of the realm hath required at his hands. And the selfsame thing is, moreover, that I may shortly deliver it by the way, not only a singular comfort to the executioners of this office, a pleasant seasoning of all the sour of their labour and pains, when they shall consider that they cannot be guilty of the doing of any oppression or wrong; but it is also a most necessary instruction and document for them, that even as her majesty hath made them dispensators of this her royal favour towards her people, so it behoveth them to show themselves peregrinatores, even and equal distributors of the same; and, as that most honourable lord and reverend sage counsellor, the late Lord Burleigh,* This passage late lord treasurer, said to myself, to ascertain the deal it out with wisdom and good writing. dexterity towards all the sorts of her loving subjects.

date of this

But now that it may yet more parti- The part of cularly appear what is the sum of this each officer. new building, and by what joints and sinews the same is raised and knit together, I must let you know, that besides the fermour's deputies, which, at this day, be three in number, and besides the doctor of whom I spake, there is also a receiver, who alone handleth the moneys, and three clerks, that be employed severally, as anon you shall perceive; and by these persons the whole proceeding in this charge is thus performed.

If the recognition or acknowledg- Proceeding ment of a final concord upon any writ upon fuses. of covenant finable, for so we call that which containeth lands above the yearly value of forty shillings, and all others we term unfinable, be taken by justice of assize, or by the chief justice of the Common Pleas, and the yearly value of those lands be also declared by affidavit made

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