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, feiture of goods, and when not. If one kill another upon a sudden and when a for quarrel, this is manslaughter, for which the offender must die, except he can read; and if he can read, yet must he lose his goods, but no lands. And if a man kill another in his own defence, he shall not lose his life, nor his lands, but he must lose his goods, except the party slain did first assault him, to kill, rob, or trouble him by the highway side, or in his own house, and then he shall lose nothing. The office of The office of the constable was, to the constable. arrest the parties that he had seen breaking the peace, or in fury ready to break the peace, or was truly informed by others, or by their own confession, that they had freshly broken the peace; which persons he might imprison in the stocks, or in his own house, as his or their quality required, until they had become bounden with sureties to keep the peace; which obligation from thenceforth was to be sealed and delivered to the constable to the use of the king. And that the constable was to send to the king's Exchequer or But the constable could not arrest any, nor make any put in bond upon complaint of threatening only, except they had seen them breaking the peace, or had come freshly after the peace was broken. Also, these constables should keep watch about the town for the apprehension of rogues and vagabonds, and night-walkers, and eves-droppers, scouts, and such like, and such as go armed. And they ought likewise to raise hue and cry against murderers, manslayers, thieves, and rogues. 2. High contable for every hundred. 1. Petty constable for every village. Of this office of constable there were high constables, two of every hundred; petty constables, one in every village; they were, in ancient time, all appointed 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 At the stituted, and in what matters they anciently ho had jurisdic The sheriff's Tourn is a court very ancient, incident to his office. first, it was erected by the conqueror, and called the King's Bench, appointing men studied in the knowledge of the laws to execute justice, as substitutes to him in his name, which men are to be named, Justiciarii ad placita coram Rege assignati. One of them being Capitalis Justiciarius called to his fellows; the rest in number as pleaseth the king, of late but three Justiciarii, holden by patent. In this court every man above twelve years of age was to take his oath of allegiance to the king, if he were bound, then his lord to answer for him. In this court the constables were appointed and sworn; breakers of the peace punished by fine and imprisonment, the parties beaten or hurt recompensed upon complaints of damages; all appeals of murder, maim, robbery, decided; contempts against the crown, public annoyances against the people, treasons and felonies, and all other matters of wrong, betwixt party and party, for lands and goods. Court of Marhas 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 court was com mited to the County: this was likewise called Curia Visus fra pleg. Hundred courts were at first and all writs of execution of the law, according earl of the same 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-court is to appoint two high constables giance. And the court was called Curia Franci of the hundred, and also is to appoint constables. Plegii, a view of the Pledges of Freemen; or, in every village a petty constable, with a tithing Turnus Comitatus. man to attend in his absence, and to be at his commandment when he is present in all services of his office for his assistance. Subdivision of into hundreds. Lord of the hundred to ap point two high At which meeting or court there fell, the county court by occasion of great assemblies, much bloodshed, scarcity of victuals, muti- There have been by use and statute law (benies, and the like mischiefs which are incident to sides surveying of the pledges of freemen, and the congregations of people, by which the king giving the oath of allegiance, and making constawas moved to allow a subdivision of every county bles) many additions of powers and authority into hundreds, and every hundred to have a court, given to the stewards of leets and law-days to be whereunto the people of every hundred should be put in ure in their courts; as for example, they assembled twice a year for survey of pledges, and may punish innkeepers, victuallers, bakers, butuse of that justice which was formerly executed chers, poulterers, fishmongers, and tradesmen of in that grand court for the county; and the count all sorts selling with under weights or measures, or earl appointed a bailiff under him to keep the or at excessive prices, or things unwholesome, or hundred court. But in the end, the kings of this ill made in deceit of the people. They may purealm found it necessary to have all execution of nish those that do stop, straiten, or annoy the justice immediately from themselves, by such as highways, or do not, according to the provision The charge of were more bound than earls to that ser- enacted, repair or amend them, or divert water then the vice, and readily subject to correction courses, or destroy fry of fish, or use of what mat ears, and com for their negligence or abuse; and engines or nets to take deer, conies, ter they in such persons 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 despatched, committing to the sheriff custodium comitatus; by which the earls were spared of their toils and labours, and that was laid upon the sheriffs. So as now the sheriff doth all the king's business in the county, not given away and that is now called the Sheriff's Tourn; that is to say, he is judge of this grand court for the county, and also of all hundred courts not given away from the crown. county mitted yearly to it pleased the king. The sheriff is judge of all hundred courts from the crown. quire of in leets of all felonies; but they cannot try the malefactors, only they must by indenture deliver over those presentments of felony to the judges, when they come their circuits into that county. All those courts before mentioned are in use, and exercised as law at this day, concerning the sheriffs' law days and leets, and the offices of high constables, petty constables and tithing men; howbeit, with some further additions by statute laws, laying charge upon them for taxation for poor, for soldiers, and the like, and dealing without corruption, and the like. Conservators of the peace were in ancient times certain, which were assigned by the king to see the peace maintained, and they were called to the office by the king's writ, to continue for term of their lives, or at pleasure. Conservators of the peace called writ for term or at the king's by the king's of their lives, pleasure. the king's 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. They are to suppress riots and tuthe justices of mults, to restore possessions forcibly whom run all taken away, to examine all felons apvices unto the prehended and brought before them; to see impotent poor people, or maimed soldiers provided for according to the laws, and rogues, vagabonds, and beggars punished. They are both to license and suppress alehouses, badgers of corn and victuals, and to punish forestallers, regrators, and engrossers. Beating, kill ing, burning of ments for sure houses, attach ty of the peace. man will beat him, or kill him, or burn livered by the justices at their sessions. Quarter sessions held by the jus tices of the The justices of peace in their sessions are attended by the constables and bailiffs of all hundreds and liberties peace. within the county, and by the sheriff or his deputy, to be employed as occasion shall serve in executing the precepts and directions of the court. They proceed in this sort: the sheriff doth summon twenty-four freeholders, discreet men of the said county, whereof some sixteen are selected and sworn, and have their charge to 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 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. of justices of But if the party accused seem upon pregnant matter in the accusation, and to the justice to be guilty, and the offence heinous, or the offender 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 The judges of the assizes, as they be Compact now become into the place of the anjudges in eyre cient justices in eyre, called justiciarii 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. hundrels, 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 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 of assizes much court of Common Pleas, erected in H. 3. time. The business of the justices in eyre, of the justices and of the justices of assize at this day lessened by the is much lessened, for that, in Henry the Third's time, there was erected the Court of Common Pleas at Westminster, in which court have been ever since, and yet are begun and handled the great suits of lands, debts, benefices, and contracts, fines for assurance 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 circuits. England divided into six circuits, and two learned men in the laws, assigned by the king's commission to ride twice a year through those shires allotted to that circuit, for their trial of private titles to lands and goods, and all treasons and felonies, which the county courts meddle not in. The justices of this day five which they sit. of lands and recoveries, which were wont to be either in the King's Bench, or else before the justices in eyre. But the statute of Mag. Char. cap. 11. 5. is negative against it, viz. Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco Certo; 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 1. Oyer & term. terminer, directed unto them, and many 2. Ga deli others of the best account, in their take assizes. circuits; but in this commission the Prius. 5. Of 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. very. 3. To 4. To take Nisi the peace. Oyer and Terthe judges are and this is the miner, in which of the quorum, largest commis sion they have. Gaol delivery directed only stand the size. to judges themclerk 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: and they cannot, by this commission, do any thing concerning any man but those that are prisoners in the gaol. The course now in use of execution of this commission of gaol delivery is this. There is no prisoner but is committed by some justice of peace, who, before he committed him, took his examination, and bound his accusers and witnesses to appear and prosecute at the gaol delivery. This justice doth certify these examinations and bonds, and thereupon the accuser is called solemnly into the court, and when he appeareth he is willed to prepare a bill of indictment against the prisoner, and go with it to the grand jury, and give evidence upon their oaths, he and the witnesses, which he doth; and then the grand jury write thereupon either billa vera, and then the prisoner standeth indicted, or else ignoramus, and then he is not touched. The grand jury deliver these bills to the judges in their court, and so many as they find endorsed billa vera, they send for those prisoners, then is every man's indictment put and read to him, and they ask him whether he be guilty or not. If he saith guilty, his confession The course now is recorded; if he say not guilty, then in use with 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 manner of the proceedings of circuits in of the justices their circuits. judges for the commission of vers other of larized in seve the stat. of 19 are appointed to and to see them 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- fences particu a while they come in with a verdict of guilty or selves are appointed to allow clergy to ral statutes. By not guilty, which verdict the judges do record such as can read, being not such offend- Eliz. the judges accordingly. If any prisoner plead not guilty ers from whom clergy is taken away upon the indictment, and yet will not put himself by any statute, and to see them burned to trial upon the jury (or stand mute), he shall be in the hand, and so discharge them pressed. without delivering them to the bishop, out delivering howbeit the bishop appointeth the de- bishop. puty to attend the judges with a book to try whether they could read or not. one. The judges, when many prisoners are in the gaol, do in the end before they go peruse every Those that were indicted by the grand jury, and found not guilty by the select jury, they judge to be quitted, and so deliver them out of the gaol. Those that are found guilty by both juries they judge to death, and command the sheriff to see execution done. Those that refuse trial by the country, or stand mute upon the indictment, they judge to be pressed to death: some whose offences are pilfering under twelvepence value they judge to be whipped. Those that confess their indictments, they judge to death, whipping, or otherwise, as their offence requireth. And those that are not indicted at all, but their bill of indictment returned with ignoramus by the grand jury, and all other in the gaol against whom no bills at all are preferred, they do acquit by proclamation out of the gaol. That one way or other they rid the gaol of all the prisoners in it. But because some prisoners have their books, and be burned in the hand and so delivered, it is necessary to show the reason thereof. This having their books is called their clergy, which in ancient time began thus. Book allowed scarcity of them, to be dis posed in religious houses. For the scarcity of the clergy, in the to clergy for the realm of England, to be disposed in religious houses, or for priests, deacons, and clerks of parishes, there was a prerogative allowed to the clergy, that if any man that could read as a clerk were to be condemned to death, the bishop of the diocess might, if he would, claim him as a clerk, and he was to see him tried in the face of the court. Whether he could read or not, the book was prepared and brought by the bishop, and the judge was to turn to some place as he should think meet, and if the prisoner could read, then the bishop was to have him delivered over unto him to dispose of in some places of the clergy, as he should think meet. But if either the bishop would not demand him, or that the prisoner could not read, then was to be put to death. allow clergy, burned in the discharge the hand, and to prisoners with them to the The third commission that the judges of circuits have, is a commission directed to themselves only, and the clerk of assize to take assizes, by which they are called justices of assize, and the office of those justices is to do right upon writs called assizes, brought before them by such as are wrongfully thrust out of their lands. Of which number of writs there was far greater store brought before them in ancient times than now, for that men's seisins and possessions are sooner recovered by sealing leases upon the ground, and by bringing an ejectione firme, and trying their title so, than by the long suits of assizes. 4. Commission Prius, and this is two judges and assize. The fourth commission is a commission to take Nisi Prius directed to none but to the judges themselves and their clerks of is to take Niss assizes, by which they are called jus- directed to tices of Nisi Prius. These Nisi Prius the clerk of the happen in this sort, when a suit is be- Nisi Prius. gun for any matter in one of the three courts, the King's Bench, Common Pleas, or the Exchequer here above, and the parties in their pleadings do vary in a point of fact; as for example, if an action of debt upon obligation, the defendant denies the obligation to be his debt, or in any action of trespass grown for taking away goods, the defendant denieth that he took them, or in an action of the case for slanderous words, the defendant denieth that he spake them, &c. Then the plaintiff is to maintain and prove that the obligation is the defendant's deed, that he either took the goods, or spake the words; upon which denial and affirmation the law saith, that issue is joined betwixt them, which issue of the fact is to be tried by a jury of twelve men of the county where it is supposed by the plaintiff to be done, and for that purpose the judges of the court do award a writ of venire facias in the king's name to the sheriff of that county, commanding him to cause four and twenty discreet freeholders of this county, at a certain day, to try this issue so joined, out of which four and twenty only twelve are chosen to serve. And that double number is returned, because some may make default, and some be challenged upon kindred, alliance, or partial dealing. These four and twenty the sheriff doth name and certify to the court, and withal that he hath warned them to come at the day according to their |