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 ap 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 colligitur identitas vera, therefore though my box 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. 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; Vide livers 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 tama where cipally in these three things: I. To secure men's persons from death and violence. Action of the der, battery, &c. If any man beat, wound, or maim another, or give false scandalous words case, for slan that may touch his credit, the law 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. arty to keep 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 mar the law giveth an appeal to the wife deren 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, 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. And if a man kill himself, all his Felon, de se. goods and chattels are forfeited, but no lands. Felony by mischance. If a man kill another by misfortune, as shooting an arrow at a butt or mark, or casting a stone over a house, or the like, this is loss of his goods and chattels, but not of his lands, nor life. If a horse, or cart, or a beast, or any Deodand. other thing do kill a man, the horse, beast, or other th..ng, is forfeited to the crown, and is called a deodand, and usually granted and allowed by the king to the Bishop Almner, as goods are of those that kill themselves. Cutting out of tongues, and putting ut of lony. The cutting out of a man's tongue, or putting out his eyes maliciously, is eyes, made fe felony; for which the offender is to suffer death, and lose his lands and 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 hoe 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; 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 sheriff's Tourn is a court very The Rise ancient, incident to his office. At the a fre first, it was erected by the conqueror, 21-y and called the King's Bench, appointed ing men studied in the knowledge of the laws to execute justice, as substitutes to him in his name, which men are to be named, Justici arii 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 THE ancient laws of England planted here by appeals of murder, maim, robbery, decided; conthe conqueror were, that there should be officers tempts against the crown, public annoy ances of two sorts in all the parts of this realm to pre-other matters of wrong, betwixt party and party, against the people, treasons and felonies, and all serve the peace :— goods. But for that all punishment is for example's sake; it is good to see the means whereby offenders are drawn to their punishment; and first for the matter of the peace. 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 for lands and goods. But the king seeing the realm grow Court of Mer 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 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, within their limits, should look to the matter of the peace, and take charge 4th 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 allegiance. And the court was called Curia Franci Plegii, a view of the Pledges of Freemen; or, Tarnus Comitatus. Hundred courts were at first and all writs of execution of the law, according Lord of the hundred to ap point two high Whosoever is lord of the hundred court is to appoint two high constables of the hundred, and also is to appoint constables. in every village a petty constable, with a tithing Iman to attend in his absence, and to be at his commandment when he is present in all services of his office for his assistance. There have been by use and statute law (besides surveying of the pledges of freemen, and giving the oath of allegiance, and making constables) many additions of powers and authority given to the stewards of leets and law-days to be put in ure in their courts; as for example, they may punish innkeepers, victuallers, bakers, butchers, poulterers, fishmongers, and tradesmen of all sorts selling with under weights or measures, or at excessive prices, or things unwholesome, or ill made in deceit of the people. They may punish those that do stop, straiten, or annoy the highways, or do not, according to the provision in At which meeting or court there fell, by occasion of great assemblies, much bloodshed, scarcity of victuals, mutinies, and the like mischiefs which are incident to the congregations of people, by which the king was moved to allow a subdivision of every county into hundreds, and every hundred to have a court, whereunto the people of every hundred should be assembled twice a year for survey of pledges, and use of that justice which was formerly executed in that grand court for the county; and the count or earl appointed a bailiff under him to keep the bandred court. But in the end, the kings of this realm found it necessary to have all execution of justice immediately from themselves, by such as The chip of were more bound than earls to that ser-enacted, repair or amend them, or divert water vice, and readily subject to correction for their negligence or abuse; and therefore took to themselves the appointing of a sheriff yearly in every county, calling them vicecomites, and to them directed such writs and precepts for executing justee in the county as fell out needful to have been despatched, committing to the sheriff custodium comitetur; 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, y 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. He hath another court, called the Cat C koy County Court, belonging to his office, by the f wherein men may sue monthly for any debt or damages under forty pounds, and may have writs for to replevy their cattle distrained and impounded by others, and there try the cause of their distress; and by a writ called Justicies, a man may sue for any sum; and in this court the sheriti, by a writ called an exigent, doth proclaim men sued in courts above to render their bodies, or else they be outlawed. This sheriff doth serve the king's writs of process, be they summons, attachments to compel men to answer to the law, VOL. III.-32 courses, or destroy fry of fish, or use of what mat engines or nets to take deer, conies, tuire of in lects pheasants, or partridges, or build pigeon and law-days, houses, except he be lord of the manor, or parson of the church. They may also take presentment upon oath of the twelve sworn jury before them 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 called writ for ferm or at the king's by the king's of their lives, 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 the king's pleasure. pleasure the peace, and For this service, choice was made of Conservsion of the best men of calling in the country, what their of and but few in the shire. They might fice wa bind any man to keep the peace, and to good behaviour, by recognisance to the king, with ureties; 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. Bering, kill bosses, allard ty of the peace man will beat him, or kill him, or burn his house, are to send for the party by brof warrant of attachment, directed to the afore 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 sessions, when every justice of peace hath therein delivered all their recognisances so Recognisance taken, then the parties are called, and be peace the cause of binding to the peace ex-J their sta 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 Quarter Ca The justices of peace in their sessions are attended by the constables by the 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 Theaterty (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. 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 taken with the manner, then the justice is to com Through these in effect run all the county serVices to the crown, as taxations of subsidies, mus-mit the party by his warrant called a mittimus 10 tering men, arming them, and levying forces, that 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 the gaoler of the common gaol of the county. there to remain until the assizes. And then the justice is to certify his accusation, examination, and recognisance taken for the appearances and 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 people all to one place, there were ordained counties and the sheriff's tourns, hundred courts, and particular leets, B and law-days, as before mentioned, 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 justices of assize have at this day five which they sit. of lands and recoveries, which were wont to be 2. Ga delitake assizes. Prius. 5. Of very. 3. To 4. To take Nisi the peace. Oyer and Ter miner, in which of the quorum, the judges are and this is the largest commis sion they have. Gaol delivery don to judges them. clerk of the as size. 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 vis, and the 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 The business of the justices in eyre, standeth indicted, or else ignoramus, and then he and of the justices of assize at this day is not touched. The grand jury deliver The manner of 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 are begun and handled the great suits of lands, debts, benefices, and contracts, fines for assurance The authority The authority of these judges in trum and by eyre is in part translated by act of parcafliament 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 suthority of the of much 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 circuts. England divided intaix circuits, and two learned men in the laws, assigned by the king's commission to ride twice a year through those shires all tted 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. of the justices their circuits. jutges for the commission 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 can of 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 |