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In felony, the escheats go to the lord of the fee, had been attainted in their life-time: And on the and not to the king, except he be lord: but the other side, where a man killeth himself upon impaprofits of estate for lives, or in tail during the life tience of sickness or the like, they do not punish it of tenant in tail, go to the king; and the king hath at all : but the law of England taketh it all in one likewise, in fee-simple lands holden of common degree, and punisheth it only with loss of goods to be lords, annum, diem, et vastum.
forfeited to the king, who generally granteth them In felony, the lands are not in the king before to his almoner, where they be not formerly granted office, nor in the lord before entry or recovery in writ unto special liberties. of escheat, or death of the party attainted. In felony, there can be no proceeding with the
OFFENCES OF PRÆMUNIRE. accessary before there be a proceeding with the
Cases of præmunire. principal ; which principal if he die, or plead his pardon, or have his clergy before the attainder, the Where a man purchaseth or accepteth any proaccessaries can never be dealt with.
vision, that is, collation of any spiritual benefice or In felony, if the party stand mute, and will not put living, from the see of Rome, it is case of præmunire. himself upon his trial, or challenge peremptorily Where a man shall purchase any process to draw above the number that the law allows, he shall have any people of the king's allegiance out of the realm, judgment not of hanging, but of penance of pressing in plea, whereof the cognisance pertains to the to death; but then he saves his lands, and forfeits king's court, and cometh not in person to answer his only his goods.
contempt in that behalf before the king and his In felony, at the common law, the benefit of clergy council, or in his chancery, it is case of præmunire. or sanctuary was allowed ; but now by statutes it is Where a man doth sue in any court which is not taken away in most cases.
the king's court, to defeat or impeach any judgment In felony, bail may be admitted where the fact is given in the king's court, and doth not appear to not notorious, and the person not of evil fame. answer his contempt, it is case of præmunire.
In felony, no counsel is to be allowed to the party, Where a man doth purchase or pursue in the no more than in treason.
court of Rome, or elsewhere, any process, sentence In felony, no witness shall be received upon oath of excommunication, bull, instrument, or other thing for the party's justification, no more than in treason. which touches the king in his regality, or his realm
In felony, if the fact be committed beyond the in prejudice, it is a case of præmunire. seas, or upon
super altum mare," there Where a man doth affirm or maintain any foreign is no trial at all in the one case, nor by course of authority of jurisdiction spiritual, or doth put in use jury in the other case, but by jurisdiction of the or execute any thing for the advancement or setting admiralty.
forth thereof; such offence, the second time comIn felony, if the party be " non sanæ memoriæ,” mitted, is case of præmunire. although it be after the fact, he cannot be tried or Where a man refuseth to take the oath of supreadjudged, except it be in course of outlawry, and macy, being tendered by the bishop of the diocess, that is also erroneous.
if he be an ecclesiastical person; or by commission In felony, the death of the party before conviction out of the chancery, if he be a temporal person, it dischargeth all proceedings and forfeitures. is case of præmunire.
In felony, if the party be once acquitted, or in peril Where the dean and chapter of any church upon of judgment of life lawfully, he shall never be brought the Congé d'elire of an archbishop or bishop, doth in question again for the same fact.
refuse to elect any such archbishop or bishop as is In felony, the prosecution may be either at the nominated unto them in the king's letters missive, king's suit, by way of indictment, or at the party's it is case of præmunire. suit, by way of appeal ; and if it be by way of ap- Where a man doth contribute or give relief unto peal, the defendant shall have his counsel, and pro- any Jesuit or seminary priests, or to any college of duce witnesses upon oath, as in civil causes. Jesuits or seminary priests, or to any person brought
In felony, the king may grant “ hault justice” to up therein, and called home, and not returning, it is a subject, with the regality of power to pardon it. case of præmunire.
In felony, the trial of peers is all one as in case Where a man is broker of an usurious contract of treason.
above ten in the hundred, it is case of præmunire. In felony, the proceedings are in the king's bench, or before commissioners of oyer and terminer, or
The punishment, trial, and proceedings in case of of gaol delivery, and in some cases before justices
The punishment is by imprisonment during life, Cases of felonia de se, with the punishment, trial, and forfeiture of the profits of lands entailed, or for
forfeiture of goods, forfeiture of lands in fee-simple, and proceeding therein.
life. In the civil law, and other laws, they make a dif- The trial and proceeding is as in cases of misference of cases of felonia de se : for where a man prision of treason ; and the trial is by peers, where is called in question upon any capital crime, and a peer of the realm is the offender. killeth himself to prevent the law, they give the same judgment in all points of forfeiture, as if they
2. The king may summon parliaments, dissolve OFFENCES OF ABJURATION AND EXILE. them, adjourn and prorogue them at his pleasure. Cases of abjuration and exile, and the proceedings pleasure, for he may give privileges to borough
3. The king may add voices in parliament at his therein.
towns, and call and create barons at his pleasure. Where a man committeth any felony, for the which 4. No man can sit in parliament unless be take at this day he may have privilege of sanctuary, and the oath of allegiance. taketh sanctuary, and confesseth the felony before the coroner, he shall abjure the liberty of the realm, The king's prerogative in matters of war and pecce. and choose his sanctuary; and if he commit any 1. The king hath power to declare and proclaim new offence, or leave his sanctuary, he shall lose war, and make and conclude peace. the privilege thereof, and suffer as if he had not 2. The king hath power to make leagues and taken sanctuary.
confederacies with foreign estates, more or less strait, Where a man not coming to the church, and, be- and to revoke and disannul them at his pleasure. ing a popish recusant, doth persuade any of the 3. The king hath power to command the bodies king's subjects to impugn his Majesty's authority in of his subjects for the service of his wars, and to causes ecclesiastical, or shall persuade any subject muster, train, and levy men, and to transport them from coming to church, or receiving the communion, by sea or land at his pleasure. or persuade any subject to come to any unlawful 4. The king hath power in time of war to execonventicles, or shall be present at any such unlaw- cute martial law, and to appoint all officers of war ful conventicles, and shall not after conform himself at his pleasure. within a time, and make his submission, he shall 5. The king hath power to grant his letters of abjure the realm, and forfeit his goods and lands mart and reprisal for remedy to his subjects upon during life; and if he depart not within the time foreign wrongs. prefixed, or return, he shall be in the degree of a 6. The king may give knighthood, and thereby felon.
enable any subject to perform knight's service. Where a man being a popish recusant, and not having lands to the value of twenty marks per
The king's prerogative in matter of money. annum, nor goods to the value of 401, shall not re- 1. The king may alter his standard in baseness pair to his dwelling or place where he was born, or fineness. and there confine himself within the compass of five 2. The king may alter his stamp in the form of it. miles, he shall abjure the realm ; and if he return, 3. The king may at his pleasure alter the faluhe shall be in the degree of a felon.
ations, and raise and fall moneys. Where a man kills the king's deer in chases or 4. The king may by proclamation make moneys forests, and can find no sureties after a year's im. of his own current or not. prisonment, he shall abjure the realm.
5. The king may take or refuse the subjects' bulWhere a man is a trespasser in parks, or in ponds lion, or coin for more or less money. of fish, and after three years' imprisonment cannot 6. The king by proclamation may make foreign find sureties, he shall abjure the realm.
money current, or not. Where a man is a ravisher of any child within age, whose marriage belongs to any person, and
The king's prerogative in matters of trade and marrieth the said child after years of consent, and
traffick. is not able to satisfy for the marriage, he shall ab- 1. The king may constrain the person of any of jure the realm.
his subjects not to go out of the realm.
2. The king may restrain any of his subjects to OFFENCE OF HERESY.
go out of the realm into any special part foreign.
3. The king may forbid the exportation of any Cases of heresy, and the trial and proceeding therein. commodities out of the realm.
The declaration of heresy, and likewise the pro- 4. The king may forbid the importation of any ceeding and judgment upon heretics, is by the com- commodities into the realm. mon laws of this realm referred to the jurisdiction 5. The king may set a reasonable impost upon ecclesiastical, and the secular arm is reached unto any foreign wares that come into the realm, and so them by the common laws, and not by any statute of native wares that go out of the realm. for the execution of them by the king's writ "de
The king's prerogatire in the persons of his subjects, hæretico comburendo."
1. The king may create any corporation or body CASES OF THE KING'S PREROGATIVE. politic, and enable them to purchase, to grant, to
sue, and be sued; and with such restrictions and The king's prerogative in parliament. limitations as he pleases. 1. The king hath an absolute negative voice to 2. The king may denizen and enable any foreigner all bills that pass the parliament, so as without his for him and his descendants after the charter; though royal assent they have a mere nullity, and not so he cannot naturalize, nor enable him to make pedimuch as authoritas prescripta, or senatus consulta gree from ancestors paramount. had, notwithstanding the intercession of tribunes. 3. The king may enable any attainted person, by
his charter of pardon, and purge the blood for time 2. Correction : In this respect the king is
to come, though he cannot restore the blood for the above the law; for it may not correct him for any 1 time past.
offence. 4. The king may enable any dead person in the law, as men professed in religion, to take and pur
A twofold power in the king. chase to the king's benefit.
1. His absolute power, whereby he may levy
forces against any nation. A twofold power of the law.
2. His limited power, which is declared and ex1. A direction: In this respect the king is under pressed in the laws what he may do. neath the law; because his acts are guided thereby.
WHAT MANNER OF PERSONS THOSE SHOULD BE THAT ARE TO
EXECUTE THE POWER OR ORDINANCE
THE KING'S PREROGATIVE.
1. That absolute prerogative, according to the him withal, can neither subordinate any other judge king's pleasure, revealed by his laws, may be exer- to govern by that knowledge, which the king can no cised and executed by any subject, to whom power otherwise, than by his known will, participate unto may be given by the king, in any place of judgment him: and if any such subordinate judge shall obtain or commission, which the king by his law hath or- commission according to the discretion of such dained: in which the judge subordinate cannot judge to govern the people, that judge is bound to wrong the people, the law laying down a measure think that to be his soundest discretion, which the by which every judge should govern and execute; law, in which is the king's known will, showeth against which law if any judge proceed, he is by unto him to be that justice which he ought to adthe law questionable, and punishable for his trans- minister ; otherwise he might seem to esteem himgression.
self above the king's law, who will not govern by In this nature are all the judges and commission it, or to have a power derived from other than from ers of the land, no otherwise than in their courts, the king, which in the kingdom will administer jusin which the king in person is supposed to sit, who tice contrary unto the justice of the land : neither cannot make that trespass, felony, or treason, which can such a judge or commissioner under the name the law hath not made so to be, neither can punish of the king's authority shroud his own high action, the guilty by other punishment than the laws have seeing the conscience and discretion of every man is appointed.
particular and private to himself, so as the discretion This prerogative or power, as it is over all the of the judge cannot be properly or possibly the dissubjects, so being known by the subjects, they are cretion or the conscience of the king; and if not without excuse if they offend, and suffer no wrong his discretion, neither the judgment that is ruled by if they be justly punished; and by this prerogative another man's only. the king governeth all sorts of people according Therefore it may seem they rather desire to be unto known will.
kings than to rule the people under the king, which 2. The absolute prerogative, which is in kings will not administer justice by law, but by their own according to their private will and judgment, cannot will. be executed by any subject; neither is it possible to 3. This administration in a subject is derogative give such power by commission; or fit to subject to the king's prerogative; for he administereth justhe people to the same ; for the king, in that he is tice out of a private direction, being not capable of the substitute of God immediately, the father of his a general direction how to use the king's subjects people, and head of the commonwealth, hath by at pleasure, in causes of particular respect; which participation with God, and with his subjects, a dis- if no other than the king himself can do, how can cretion, judgment, and feeling love towards those, it be so that any man should desire that which is over whom he reigneth, only proper to himself, or unfit and impossible, but that it must proceed out to his place and person ; who, seeing he cannot in of some exorbitant affection ? the rather, seeing such any others infuse his wisdom, power, or gifts, which places be full of trouble and altogether unnecessary, God, in respect of his place and charge, hath enabled no man will seek to thrust himself into them but for hopes of gain. Then is not any prerogative op- to his discretion, when the discretion of any judge pugned, but maintained, though it be desired, that shall be thought fit to be limited, and therefore every subordinate magistrate may not be made su- there can be therein no reformation; whereby the preme, whereby he may seize upon the hearts of king in this useth no prerogative to gain his subthe people, take from the king the respect due unto jects right; then the subject is bound to suffer him only, or judge the people otherwise than the helpless wrong; and the discontent of the people is king doth himself.
cast upon the king; the laws being neglected, which 4. And although the prince be not bound to ren with their equity in all other causes and judgments, der any account to the law, which in person he saving this, interpose themselves and yield remedy. administereth himself, yet every subordinate judge 6. And to conclude, custom cannot confirm that must render an account to the king, by his laws, how which is any ways unreasonable of itself. he hath administered justice in his place where he Wisdom will not allow that, which is many ways is set. But if he hath power to rule by private dangerous, and no ways profitable. direction, for which there is no law, how can he be Justice will not approve that government, where questioned by a law, if in his private censure he it cannot be but wrong must be committed. offends ?
Neither can there be any rule by which to try it, 5. Therefore, it seemeth, that in giving such au- nor means of reformation of it. thority, the king ordaineth not subordinate magis- 7. Therefore, whosoever desireth government trates, but absolute kings : and what doth the king must seek such as he is capable of, not such as leave to himself, who giveth so much to others, as seemeth to himself most easy to execute ; for it is he hath himself? Neither is there a greater bond to apparent, that it is easy to him that knoweth not tie the subject to his prince in particular, than when law nor justice, to rule as he listeth, his will never he shall have recourse unto him, in his person, or wanting a power to itself: but it is safe and blame in his power, for relief of the wrongs which from less, both for the judge and people, and honour to private men be offered; or for reformation of the the king, that judges be appointed who know the oppressions which any subordinate magistrate shall law, and that they be limited to govern according to impose upon the people. There can be no offence the law. in the judge, who hath power to execute according
THE OFFICE OF CONSTABLES,
ORIGINAL AND USB OP
COURTS LEET, SHERIFF'S TURN, ETC.
WITH THE ANSWERS TO THE QUESTIONS PROPOUNDED BY SIR ALEXANDER HAY, KNT. TOUCHING THE OFFICE OF
CONSTABLES. A. D. 1608.
1. Question. “What is the original of constables?" | fore, I doubt, the high-constable was not ab origine ;
Answer. To the first question of the original of but that when the business of the county increased, constables it may be said, “ caput inter nubila con- the authority of justices of peace was enlarged by dit;" for the authority was granted upon the ancient divers statutes, and then, for conveniency sake, the laws and customs of this kingdom practised long office of high constable grew in the use for the rebefore the Conquest, and intended and executed for ceiving of the commandments and prescripts from conservation of peace, and repression of all manner the justices of peace, and distributing them to the of disturbance and hurt of the people, and that as petty constables: and in token of this, the election well by way of prevention as punishment; but yet so, of high-constable in most parts of the kingdom is by as they have no judicial power, to hear and deter- the appointment of the justices of the peace, whereas mine any cause, but only a ministerial power, as in the election of the petty constable is by the people. the answer to the seventh article is demonstrated. But there are two things unto which the office of
As for the office of high or head constable, the constable hath special reference, and which of neoriginal of that is yet more obscure ; for though the cessity, or at least a kind of congruity, must precede high constable’s authority hath the more ample cir- the jurisdiction of that office ; either the things cuit, he being over the hundred, and the petty con- themselves, or something that hath a similitude or stable over the village; yet I do not find that the analogy towards them. petty constable is subordinate to the high constable, 1. The division of the territory, or gross of the or to be ordered or commanded by him ; and there- / shires, into hundreds, villages, and towns; for the
high constable is officer over the hundred, and the under-ministers, for that every one of the king's peopetty constable is over the town or village.
ple within their limits are bound to assist them. 2. The court leet, unto which the constable is at. 6. Quest. What if they refuse to do their office ? tendant and minister; for there the constables are Answ. Upon complaint made of their refusal to chosen by the jury, there sworn, and there that part any one justice of peace, the said justice may bind of their office which concerneth information is prin- them over to the sessions, where if they cannot cipally to be performed : for the jury being to pre- excuse themselves by some allegation that is just, sent offences and offenders, are chiefly to take light they may be fined and imprisoned for their contempt. from the constable of all matters of disturbance and 7. Quest. What is their authority or power ? nuisance of the people ; which they, in respect of Answ. The authority of the constable, as it is their office, are presumed to have best and most par- substantive, and of itself, or substituted, and astricted ticular knowledge of.
to the warrants and commands of the justices of the
peace; so again it is original, or additional: for The jurisdiction of the court-leet is to three ends. either it was given them by the common law, or
1. To take the ancient oath of allegiance of all else annexed by divers statutes. And as for subormales above twelve years.
dinate power, wherein the constable is only to ex2. To inquire of all offences against the peace; ecute the commands of the justices of peace, and and for those that are against the crown and peace likewise the additional power which is given by both, to inquire of only, and certify to the justices divers statutes, it is hard to comprehend them in of gaol delivery ; but those that are against the any brevity; for that they do correspond to the office peace simply, they are to inquire of and punish. and authority of justices of peace, which is very
3. To inquire of, punish, and remove all public large, and are created by the branches of several nuisances and grievances concerning infection of air, statutes : but for the original and substantive power corruption of victuals, ease of chaffer, and contract of constables, it may be reduced to three heads : of all other things that may hurt or grieve the namely. people in general, in their health, quiet, and welfare. 1. For matter of peace only.
And to these three ends, as matters of policy sub- 2. For peace and the crown. ordinate, the court-leet hath power to call upon the 3. For matter of nuisance, disturbance, and displedges that are to be taken of the good behaviour order, although they be not accompanied with vioof the resiants that are not tenants, and to inquire lence and breach of the peace. of all defaults of officers, as constables, ale-tasters, First, for pacifying of quarrel begun, the conand the like: and likewise for the choice of con- stable may, upon hot words given, or likelihood of stables, as was said.
breach of the peace to ensue, command them in the The jurisdiction of these leets is either remaining king's name to keep peace, and depart, and forbear: in the king, and in that case exercised by the sheriff and so he may, where an affray is made, part the in his Turn, which is the grand leet, or granted over same, and keep the parties asunder, and arrest to subjects ; but yet it is still the king's court. and commit the breakers of the peace, if they will
2. Quest. Concerning the election of constables ? not obey ; and call power to assist him for that
Answ. The election of the petty constable, as purpose. was said, is at the court-leet by the inquest that For punishment of breach of peace past, the law make the presentments; and election of head con- is very sparing in giving any authority to constables, stables is by the justices of the peace at their quar- because they have not power judicial, and the use ter sessions.
of his office is rather for preventing or staying of 3. Quest. How long is their office ?
mischief, than for punishment of offences; for in Answ. The office of constable is annual, except that part he is rather to execute the warrants of they be removed.
the justices ; or, when sudden matter ariseth upon 4. Quest. Of what rank or order of men are they? his view, or notorious circumstances, to apprehend
Answ. They be men, as it is now used, of inferior, offenders, and to carry them before the justices of yea, of base condition, which is a mere abuse or de- peace, and generally to imprison in like cases of generating from the first institution ; for the petty necessity, where the case will not endure the present constables in towns ought to be of the better sort of carrying of the party before the justices. And so resiants in the same ; save that they be not aged or
much for peace. sickly, but of able bodies in respect of keeping Secondly, For matters of the crown, the office of watch and toil of their place; nor must they be in the constable consisteth chiefly in these four parts : any man's livery. The high constables ought to be 1. To arrest. of the ablest freeholders, and substantialest sort of 2. To make hue and cry. yeomen, next to the degree of gentlemen; but should 3. To search. not be encumbered with any other office, as mayor 4. To seize goods. of a town, under-sheriff, bailiff, &c.
All which the constable may perform of his own 5. Quest. What allowance have the constables ? authority, without any warrant from the justices of
Answ. They have no allowance, but are bound by duty to perform their office gratis ; which may 1. For, first, if any man will lay murder or felony the rather be endured because it is but annual, and to another's charge, or do suspect him of murder or they are not tied to keep or maintain any servants or felony, he may declare it to the constable, and the