1

In felony, the escheats go to the lord of the fee, | and not to the king, except he be lord: but the profits of estate for lives, or in tail during the life of tenant in tail, go to the king; and the king hath likewise, in fee-simple lands holden of common lords, annum, diem, et vastum.

In felony, the lands are not in the king before office, nor in the lord before entry or recovery in writ of escheat, or death of the party attainted.

In felony, there can be no proceeding with the accessary before there be a proceeding with the principal; which principal if he die, or plead his pardon, or have his clergy before the attainder, the accessaries can never be dealt with.

In felony, if the party stand mute, and will not put himself upon his trial, or challenge peremptorily above the number that the law allows, he shall have judgment not of hanging, but of penance of pressing to death; but then he saves his lands, and forfeits only his goods.

had been attainted in their life-time: And on the other side, where a man killeth himself upon impatience of sickness or the like, they do not punish it at all but the law of England taketh it all in one degree, and punisheth it only with loss of goods to be forfeited to the king, who generally granteth them to his almoner, where they be not formerly granted unto special liberties.

OFFENCES OF PRÆMUNIRE.

Cases of præmunire.

Where a man purchaseth or accepteth any provision, that is, collation of any spiritual benefice or living, from the see of Rome, it is case of præmunire.

In felony, at the common law, the benefit of clergy or sanctuary was allowed; but now by statutes it is taken away in most cases.

In felony, no counsel is to be allowed to the party, no more than in treason.

In felony, no witness shall be received upon oath for the party's justification, no more than in treason. In felony, if the fact be committed beyond the seas, or upon the 66 seas, super altum mare," there is no trial at all in the one case, nor by course of jury in the other case, but by jurisdiction of the admiralty.

In felony, if the party be "non sanæ memoriæ," although it be after the fact, he cannot be tried or adjudged, except it be in course of outlawry, and that is also erroneous.

In felony, the death of the party before conviction dischargeth all proceedings and forfeitures.

In felony, if the party be once acquitted, or in peril of judgment of life lawfully, he shall never be brought in question again for the same fact.

In felony, the prosecution may be either at the king's suit, by way of indictment, or at the party's suit, by way of appeal; and if it be by way of ap1 peal, the defendant shall have his counsel, and produce witnesses upon oath, as in civil causes.

In felony, the king may grant " hault justice" to a subject, with the regality of power to pardon it. In felony, the trial of peers is all one as in case : of treason.

answer his contempt, it is case of præmunire.

Where a man doth purchase or pursue in the court of Rome, or elsewhere, any process, sentence of excommunication, bull, instrument, or other thing which touches the king in his regality, or his realm in prejudice, it is a case of præmunire.

Where a man doth affirm or maintain any foreign authority of jurisdiction spiritual, or doth put in use or execute any thing for the advancement or setting forth thereof; such offence, the second time committed, is case of præmunire.

Where a man refuseth to take the oath of supremacy, being tendered by the bishop of the diocess, if he be an ecclesiastical person; or by commission out of the chancery, if he be a temporal person, it is case of præmunire.

Where the dean and chapter of any church upon the Congé d'elire of an archbishop or bishop, doth refuse to elect any such archbishop or bishop as is nominated unto them in the king's letters missive, it is case of præmunire.

Where a man doth contribute or give relief unto any Jesuit or seminary priests, or to any college of Jesuits or seminary priests, or to any person brought up therein, and called home, and not returning, it is case of præmunire.

Where a man is broker of an usurious contract above ten in the hundred, it is case of præmunire.

of peace.

Cases of felonia de se, with the punishment, trial, and proceeding therein.

In the civil law, and other laws, they make a dif ference of cases of felonia de se: for where a man is called in question upon any capital crime, and killeth himself to prevent the law, they give the same judgment in all points of forfeiture, as if they

præmunire.

The punishment is by imprisonment during life, and forfeiture of the profits of lands entailed, or for forfeiture of goods, forfeiture of lands in fee-simple,

life.

The trial and proceeding is as in cases of mis

prision of treason; and the trial is by peers, where a peer of the realm is the offender.

Where a man committeth any felony, for the which at this day he may have privilege of sanctuary, and taketh sanctuary, and confesseth the felony before the coroner, he shall abjure the liberty of the realm, and choose his sanctuary; and if he commit any new offence, or leave his sanctuary, he shall lose the privilege thereof, and suffer as if he had not taken sanctuary.

Where a man not coming to the church, and, being a popish recusant, doth persuade any of the king's subjects to impugn his Majesty's authority in causes ecclesiastical, or shall persuade any subject from coming to church, or receiving the communion, or persuade any subject to come to any unlawful conventicles, or shall be present at any such unlawful conventicles, and shall not after conform himself within a time, and make his submission, he shall abjure the realm, and forfeit his goods and lands during life; and if he depart not within the time prefixed, or return, he shall be in the degree of a felon.

Where a man being a popish recusant, and not having lands to the value of twenty marks per annum, nor goods to the value of 401. shall not repair to his dwelling or place where he was born, and there confine himself within the compass of five miles, he shall abjure the realm; and if he return, he shall be in the degree of a felon.

Where a man kills the king's deer in chases or forests, and can find no sureties after a year's imprisonment, he shall abjure the realm.

Where a man is a trespasser in parks, or in ponds of fish, and after three years' imprisonment cannot find sureties, he shall abjure the realm.

Where a man is a ravisher of any child within age, whose marriage belongs to any person, and marrieth the said child after years of consent, and is not able to satisfy for the marriage, he shall abjure the realm.

OFFENCE OF HERESY.

Cases of heresy, and the trial and proceeding therein.

The declaration of heresy, and likewise the proceeding and judgment upon heretics, is by the common laws of this realm referred to the jurisdiction ecclesiastical, and the secular arm is reached unto them by the common laws, and not by any statute for the execution of them by the king's writ "de hæretico comburendo."

CASES OF THE KING'S PREROGATIVE.

The king's prerogative in parliament.

1. The king hath an absolute negative voice to all bills that pass the parliament, so as without his royal assent they have a mere nullity, and not so much as authoritas præscripta, or senatus consulta had, notwithstanding the intercession of tribunes.

2. The king may summon parliaments, dissolve them, adjourn and prorogue them at his pleasure. pleasure, for he may give privileges to borough 3. The king may add voices in parliament at his towns, and call and create barons at his pleasure.

4. No man can sit in parliament unless he take the oath of allegiance.

The king's prerogative in matters of war and peace. 1. The king hath power to declare and proclaim war, and make and conclude peace.

2. The king hath power to make leagues and confederacies with foreign estates, more or less strait, and to revoke and disannul them at his pleasure.

3. The king hath power to command the bodies of his subjects for the service of his wars, and to muster, train, and levy men, and to transport them by sea or land at his pleasure.

4. The king hath power in time of war to execute martial law, and to appoint all officers of war at his pleasure.

5. The king hath power to grant his letters of mart and reprisal for remedy to his subjects upon foreign wrongs.

6. The king may give knighthood, and thereby enable any subject to perform knight's service.

The king's prerogative in matter of money.

1. The king may alter his standard in baseness or fineness.

2. The king may alter his stamp in the form of it. 3. The king may at his pleasure alter the valuations, and raise and fall moneys.

4. The king may by proclamation make moneys of his own current or not.

5. The king may take or refuse the subjects' bullion, or coin for more or less money.

6. The king by proclamation may make foreign money current, or not.

The king's prerogative in matters of trade and traffick.

1. The king may constrain the person of any of his subjects not to go out of the realm.

2. The king may restrain any of his subjects to go out of the realm into any special part foreign.

3. The king may forbid the exportation of any commodities out of the realm.

4. The king may forbid the importation of any commodities into the realm.

5. The king may set a reasonable impost upon any foreign wares that come into the realm, and so of native wares that go out of the realm. The king's prerogative in the persons of his subjects.

1. The king may create any corporation or body politic, and enable them to purchase, to grant, to sue, and be sued; and with such restrictions and limitations as he pleases.

2. The king may denizen and enable any foreigner for him and his descendants after the charter; though he cannot naturalize, nor enable him to make pedigree from ancestors paramount.

3. The king may enable any attainted person, by

his charter of pardon, and purge the blood for time to come, though he cannot restore the blood for the time past.

4. The king may enable any dead person in the law, as men professed in religion, to take and purchase to the king's benefit.

A twofold power of the law.

1. THAT absolute prerogative, according to the king's pleasure, revealed by his laws, may be exercised and executed by any subject, to whom power may be given by the king, in any place of judgment or commission, which the king by his law hath ordained in which the judge subordinate cannot wrong the people, the law laying down a measure by which every judge should govern and execute; against which law if any judge proceed, he is by the law questionable, and punishable for his transgression.

in this nature are all the judges and commissioners of the land, no otherwise than in their courts, in which the king in person is supposed to sit, who cannot make that trespass, felony, or treason, which the law hath not made so to be, neither can punish the guilty by other punishment than the laws have appointed.

This prerogative or power, as it is over all the subjects, so being known by the subjects, they are without excuse if they offend, and suffer no wrong if they be justly punished; and by this prerogative the king governeth all sorts of people according unto known will.

2. The absolute prerogative, which is in kings according to their private will and judgment, cannot be executed by any subject; neither is it possible to give such power by commission; or fit to subject the people to the same; for the king, in that he is the substitute of God immediately, the father of his | people, and head of the commonwealth, hath by participation with God, and with his subjects, a discretion, judgment, and feeling love towards those, over whom he reigneth, only proper to himself, or to his place and person; who, seeing he cannot in any others infuse his wisdom, power, or gifts, which God, in respect of his place and charge, hath enabled

|

him withal, can neither subordinate any other judge to govern by that knowledge, which the king can no otherwise, than by his known will, participate unto him and if any such subordinate judge shall obtain commission according to the discretion of such judge to govern the people, that judge is bound to think that to be his soundest discretion, which the law, in which is the king's known will, showeth unto him to be that justice which he ought to administer; otherwise he might seem to esteem himself above the king's law, who will not govern by it, or to have a power derived from other than from the king, which in the kingdom will administer justice contrary unto the justice of the land neither can such a judge or commissioner under the name of the king's authority shroud his own high action, seeing the conscience and discretion of every man is particular and private to himself, so as the discretion of the judge cannot be properly or possibly the discretion or the conscience of the king; and if not his discretion, neither the judgment that is ruled by another man's only.

:

Therefore it may seem they rather desire to be kings than to rule the people under the king, which will not administer justice by law, but by their own will.

3. This administration in a subject is derogative to the king's prerogative; for he administereth justice out of a private direction, being not capable of a general direction how to use the king's subjects at pleasure, in causes of particular respect; which if no other than the king himself can do, how can it be so that any man should desire that which is unfit and impossible, but that it must proceed out of some exorbitant affection ? the rather, seeing such places be full of trouble and altogether unnecessary, no man will seek to thrust himself into them but for

hopes of gain. Then is not any prerogative oppugned, but maintained, though it be desired, that every subordinate magistrate may not be made supreme, whereby he may seize upon the hearts of the people, take from the king the respect due unto him only, or judge the people otherwise than the king doth himself.

4. And although the prince be not bound to render any account to the law, which in person he administereth himself, yet every subordinate judge must render an account to the king, by his laws, how he hath administered justice in his place where he is set. But if he hath power to rule by private direction, for which there is no law, how can he be questioned by a law, if in his private censure he offends ?

5. Therefore, it seemeth, that in giving such authority, the king ordaineth not subordinate magistrates, but absolute kings: and what doth the king leave to himself, who giveth so much to others, as he hath himself? Neither is there a greater bond to tie the subject to his prince in particular, than when he shall have recourse unto him, in his person, or in his power, for relief of the wrongs which from private men be offered; or for reformation of the oppressions which any subordinate magistrate shall impose upon the people. There can be no offence in the judge, who hath power to execute according

to his discretion, when the discretion of any judge shall be thought fit to be limited, and therefore there can be therein no reformation; whereby the king in this useth no prerogative to gain his subjects right; then the subject is bound to suffer helpless wrong; and the discontent of the people is cast upon the king; the laws being neglected, which with their equity in all other causes and judgments, saving this, interpose themselves and yield remedy. 6. And to conclude, custom cannot confirm that which is any ways unreasonable of itself. Wisdom will not allow that, which is many ways dangerous, and no ways profitable.

Justice will not approve that government, where it cannot be but wrong must be committed.

Neither can there be any rule by which to try it, nor means of reformation of it.

7. Therefore, whosoever desireth government must seek such as he is capable of, not such as seemeth to himself most easy to execute; for it is apparent, that it is easy to him that knoweth not law nor justice, to rule as he listeth, his will never wanting a power to itself: but it is safe and blameless, both for the judge and people, and honour to the king, that judges be appointed who know the law, and that they be limited to govern according to the law.

1. Question. "What is the original of constables ?" Answer. To the first question of the original of constables it may be said, "caput inter nubila condit;" for the authority was granted upon the ancient laws and customs of this kingdom practised long before the Conquest, and intended and executed for conservation of peace, and repression of all manner of disturbance and hurt of the people, and that as well by way of prevention as punishment; but yet so, as they have no judicial power, to hear and determine any cause, but only a ministerial power, as in the answer to the seventh article is demonstrated.

As for the office of high or head constable, the original of that is yet more obscure; for though the high constable's authority hath the more ample circuit, he being over the hundred, and the petty constable over the village; yet I do not find that the petty constable is subordinate to the high constable, or to be ordered or commanded by him; and there

fore, I doubt, the high-constable was not ab origine; but that when the business of the county increased, the authority of justices of peace was enlarged by divers statutes, and then, for conveniency sake, the office of high constable grew in the use for the receiving of the commandments and prescripts from the justices of peace, and distributing them to the petty constables: and in token of this, the election of high-constable in most parts of the kingdom is by the appointment of the justices of the peace, whereas the election of the petty constable is by the people.

But there are two things unto which the office of constable hath special reference, and which of necessity, or at least a kind of congruity, must precede the jurisdiction of that office; either the things themselves, or something that hath a similitude or analogy towards them.

1. The division of the territory, or gross of the shires, into hundreds, villages, and towns; for the