of his own seisin; so if I limit a contingent or future use to one being at the time of limitation not seised, but after become seised at the time of the execution of the contingent use, there is the same reason and the same law, and upon the same difference which I have put before. As if I covenant with my son, that, after his marriage, I will stand seised of land to the use of himself and his heirs; and, before marriage, I infeoff him to the use of himself and his heirs, and then he marrieth; he is in by the common law, and not by the statute; like law of a bargain and sale. But if I had let to him for life only, then he should have been in for life only by the common law, and of the fee-simple by the statute. Now let me advise you of this, that it is only a matter of subtilty or conceit to take the law right, when a man cometh in by the law in course of possession, and where he cometh in by the iding for de statute in course of possession; but it is natural for the deciding of many causes and questions, as for warranties, actions, conditions, waivers, suspensions, and divers other provisos. This learning many questions. son stands seised by force of any fine, recovery, feoffment, bargain and sale, agreement or otherwise; but yet the feme is to be restrained for the reason aforesaid. What pers declare a use, It remaineth to show what persons may limit and declare a use: wherein may limit and we must distinguish; for there are two kinds of declarations of uses, the one of a present use upon the first conveyance, the other upon a power of revocation or new declaration; the latter of which I refer to the division of revocation: now for the former. The king upon his letters patent may declare a use, though the patent itself implieth a use, if none be declared. If the king gives lands by his letters patent to I. S. and his heirs, to the use of I. S. for life, the king hath the inheritance of the use by implication of the patent, and no office needeth; for implication out of matter of record amounteth ever to matter of record. If the queen give land to I. S. and his heirs to the use of the churchwardens of the church of Dale, the patentee is seised to his own use, upon that confidence or intent; but if a common person had given land in that manner, the use had been void by the statute of 23 H. VIII., and the use had returned to the feoffor and his heirs. A corporation may take a use without deed, as hath been said before; but can limit no use without deed. An infant may limit a use upon a feoffment, For example; a man's farmer committed waste: after he in reversion covenanteth to stand seised to the use of his wife for life, and after to the use of himself and his heirs; his wife dies; if he be in of his fee untouched, he shall punish the waste; if he be in by the statute, he shall not punish it. So if I be infeoffed with warranty, and I covenant with my son to stand seised to the use of my-fine, or recovery, and he cannot countermand or self for life, and after to him and his heirs; if I be in by the statute, it is clear my warranty is gone; but if I be in by the common law, it is doubtful. So if I have an eigne right, and be infeoffed to the use of I. S. for life, then to the use of myself for life, then to the use of I. D. in fee, I. S. dieth. If I be in by the common law, I cannot waive my estate, having agreed to the feoffment; but if I am in by the statute, yet I am not remitted, because I come in by my own act: but I may waive my use, and bring an action presently; for my right is saved unto me by one of the savings in the statute. Where there is a seisin to the use of another, of the statute. Now on the other side it is to be seen, where is a seisin to the use of and yet it is out another person; and yet it is out of the statute which is in special cases upon the ground, wheresoever cestuy que use had remedy for the possession by course of common law, there the statute never worketh; and therefore if a disseisin were committed to a use, it is in him by the common law upon agreement. So if one enter as occupant to the use of another, it is in him till disagreement. So if a feme infeoff a man, causa matrimonii prælocuti, she hath remedy for the land again by course of the law; and, therefore, in those special cases the statute worketh not; and yet the words of the statute are general, where any per avoid the use, except he avoid the conveyance: contrary, if an infant covenant in consideration of blood or marriage to stand seised to a use, the use is merely void. If an infant bargain and sell his land for money, for commons or teaching, it is good with averment; if for money, otherwise; if it be proved it is avoidable; for money recited and not paid, it is void; and yet in the case of a man of full age the recital sufficeth. Vid. A. Beckwith's case, de cest. matter, If baron and feme be seised in the right of the feme, or by joint purchase during the coverture, and they join in fol. 57. a fine, the baron cannot declare the use for longer time than the coverture, and the feme cannot declare alone; but the use goeth, according to the limitation of law, unto the feme and her heirs; but they may both join in declaration of the use in fee; and if they sever, then it is good for so much of the inheritance as they concurred in; for the law accounteth all one, as if they joined; as if the baron and feme declare a use to I. S. and his heirs, and the feme another to I. D. for life, and then to I. S. and his heirs, ed. Sugd. 448, the use is good to I. S. in fee. See Gilb. Us 449. And if upon examination the feme will declare the use to the judge, and her husband agree not to it, it is void, and the baron's use is only good; the rest of the use goeth according to the limitation of law. THE OFFICE OF CONSTABLES, ORIGINAL AND USE OF COURTS LEET, SHERIFF'S TURN, ETC., WITH THE ANSWERS TO THE QUESTIONS PROPOUNDED BY SIR ALEXANDER HAY, KNIGHT, TOUCHING THE office of CONSTABLES. A. D. 1608. village. 1. Question. WHAT is the original of constables? | and the petty constable is over the town or 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 therefore, 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 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 constables 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 high constable is officer over the hundred, 2. The court-leet, unto which the constable is attendant and minister; for there the constables are chosen by the jury, there sworn, and there that part of their office which concerneth information is principally to be performed for the jury being to present offences and offenders, are chiefly to take light from the constable of all matters of disturbance and nuisance of the people: which they, in respect of their office, are presumed to have best and most particular knowledge of. The jurisdiction of the court-leet is to three ends. 1. To take the ancient oath of allegiance of all males above twelve years. 2. To inquire of all offences against the peace; and for those that are against the crown and peace of both, to inquire of only, and certify to the justices of jail delivery; but those that are against the peace simply, they are to inquire of and punish. 3. To inquire of, punish, and remove all public nuisances and grievances concerning infection of air, corruption of victuals, ease of chaffer, and contract of all other things that may hurt or grieve the people in general, in their health, quiet, and welfare. And to these three ends, as matters of policy subordinate, the court-leet hath power to call upon the pledges that are to be taken of the good behaviour of the resiants that are not tenants, and to inquire of all defaults of officers, as constables, ale-tasters, and the like: and likewise for the choice of constables, as was said. The jurisdiction of these leets is either remaining in the king, and in that case exercised by the sheriff in his turn, which is the grand leet, or granted over to subjects; but yet it is still the king's court. 2. Question. Concerning the election of constables? Answer. The election of the petty constable, as was said, is at the court-leet by the inquest that make the presentments; and election of head constables is by the justices of the peace at their quarter sessions. 3. For matters of nuisance, disturbance, and disorder, although they be not accompanied with violence and breach of the peace. First, for pacifying of quarrel begun, the constable may, upon hot words given, or likelihood of breach of the peace to ensue, command them in the king's name to keep peace, and depart, and forbear and so he may, where an affray is made 3. Question. How long is their office? Answer. The office of constable is annual, ex- part of the same, and keep the parties asunder, cept they be removed. and arrest and commit the breakers of the peace, 4. Question. Of what rank or order of men if they will not obey; and call power to assist are they? him for that purpose. For punishment of breach of peace past, the law is very sparing in giving any authority to constables because they have not power judicial, and the use of his office is rather for preventing or staying of mischief, than for punishment of offences; for in that part he is rather to execute the warrants of the justices; or when sudden matter ariseth upon his view, or notorious circumstances, to apprehend offenders, and to carry them before the justices of peace, and generally Answer. They be men, as it is now used, of inferior, yea, of base condition, which is a mere abuse or degenerating from the first institution; for the petty constables in towns ought to be of the better sort of resiants in the same; save that they be not aged or sickly, but of able bodies in respect of keeping watch and toil of their place; nor must they be in any man's livery. The high constables ought to be of the ablest freeholders, and substantialest sort of yeomen, next to the degree of gentlemen; but should not be incum-to imprison in like cases of necessity, where the bered with any other office, as mayor of a town, under-sheriff, bailiff, &c. 5. Question. What allowance have the constables? Answer. They have no allowance, but are bound by duty to perform their office gratis; which may the rather be endured because it is but annual, and they are not tied to keep or maintain any servants or under-ministers, for that every one of the king's people within their limits are bound to assist them. case will not endure the present carrying of the party before the justices. And so much for peace. Secondly, for matters of the crown, the office of the constable consisteth chiefly in these four parts: 6. Question. What if they refuse to do their justices of the peace. office? Answer. Upon complaint made of their refusal to any one justice of peace, the said justice may bind them over to the sessions, where, if they cannot excuse themselves by some allegation that is just, they may be fined and imprisoned for their contempt. 7. Question. What is their authority or power? Answer. The authority of the constable, as it is substantive, and of itself, or substituted, and astricted to the warrants and commands of the justices of the peace; so again it is original, or additional: for either it was given them by the common law, or else annexed by divers statutes. And as for subordinate power, wherein the constable is only to execute the commands of the justices of peace, likewise the additional power which is given by divers statutes, it is hard to comprehend in any brevity; for that they do correspond to the office and authority of justices of peace, which is very large, and are created by the branches of several statutes: but for the original and substantive power of constables, it may be reduced to three heads; namely, 1. For matter of peace only. 2. For peace and the crown. 1. For, first, if any man will lay murder or felony to another's charge, or do suspect him of murder or felony, he may declare it to the constable, and the constable ought, upon such declaration or complaint, to carry him before a justice of peace; and if by common voice or fame any man be suspected, the constable of duty ought to arrest him, and bring him before a justice of peace, though there be no other accusation or declaration. 2. If any house be suspected for receiving or harbouring of any felon, the constable, upon complaint or common fame, may search. 3. If any fly upon the felony, the constable ought to raise hue and cry. 4. And the constable ought to seize his goods, and keep them safe without impairing, and inventary them in presence of honest neighbours. Thirdly, for matters of common nuisance and grievances, they are of very variable nature, according to the several comforts which man's life and society requireth, and the contraries which infest the same. In all which, be it a matter of corrupting air, water, or victuals, stopping, straightening, or endangering of passages, or general deceits in appoint a deputy, or in default thereof, the steward of the court-leet may; which deputy ought to be sworn before the said steward. The constable's office consists in three things: 1. Conservation of the peace. weights, measures, sizes, or counterfeiting wares, and things vendible; the office of constable is to give as much as in him lies, information of them, and of the offenders, in leets, that they may be presented; but because leets are kept but twice in the year, and many of those things require present and speedy remedy, the constable, in things notorious and of vulgar nature, ought to forbid and repress them in the mean time: if not, Of the Jurisdiction of Justices itinerant in the Prin they are for their contempt to be fined and im- 2. Serving precepts and warrants. 3. Attendance for the execution of statutes. cipality of Wales. 1. They have power to hear and determine all criminal causes, which are called, in the laws of England, pleas of the crown; and herein they have the same jurisdiction that the justices have in the court of the King's Bench. 2. They have power to hear and determine all civil causes, which in the laws of England are called common pleas, and to take knowledge of all fines levied of lands or hereditaments, without suing any dedimus potestatem; and herein they have the same jurisdiction that the justices of the Common Pleas do execute at Westminster. 3. They have power also to hear and determine all assizes upon disseisin of lands or hereditaments, wherein they equal the jurisdiction of the justices of assize. 4. Justices of oyer and terminer therein may hear all notable violences and outrages perpetrated within their several precincts in the said principality of Wales. You shall swear that you shall well and truly serve the king, and the lord of this law-day; and you shall cause the peace of our sovereign lord the king well and truly to be kept to your power: and you shall arrest all those that you see committing riots, debates, and affrays in breach of peace and you shall well and truly endeavour yourself to your best knowledge, that the statute of Winchester for watching, hue and cry, and the statutes made for the punishment of sturdy beggars, vagabonds, rogues, and other idle persons coming within your office be truly executed and the offenders be punished: and you shall endeavour, upon complaint made, to apprehend barreters and riotous persons making affrays, and likewise to apprehend felons; and if any of them make resistance with force, and multitude of misdemeanours, you shall inake outery, and pursue them till they be taken; and shall look unto such persons as use unlawful games; and you shall have regard unto the maintenance of artillery; and you shall well and truly execute all process and precepts sent unto you from the peace justices of the county; and you shall make good and faithful presentments of all blood-persons of the judges at their coming, judges' disposheds, outcries, affrays, and rescues made within sitting, and going from their sessions sition. your office: and you shall well and truly accord- or court. ing to your own power and knowledge, do that which belongeth to your office of constable to do, for this year to come. So help," &c. of the 9. Question. What difference is there betwixt the high constables and petty constables? Answer. Their authority is the same in substance, differing only in the extent; the petty constable serving only for one town, parish, or borough, the head constable for the whole hundred nor is the petty constable subordinate to the head constable for any commandment that proceeds from his own authority; but it is used, that the precepts of the justices be delivered unto the high constables, who, being few in number, inay better attend the justices, and then the head constables, by virtue thereof, make their precepts over to the petty constables. 10. Question. Whether a constable may appoint a deputy? Answer. In case of necessity a constable may in the king's gift The prothonotary's office is to draw These offices are all pleadings, and entereth and engrosseth all the records and judgments in all trivial causes. The clerk of the crown, his office is to draw and engross all proceedings, arraignments, and judgments in criminal causes. The marshal's office is to attend the These offices are in the The crier is, tanquam publicus præco, to call for such persons whose appearances are necessary, and to impose silence to the people. tice of peace. The Office of Justice of Peace. There is a commission under the The office of jus great seal of England to certain gentlemen, giving them power to preserve the peace, and to resist and punish all turbulent persons, whose misdemeanors may tend to the disquiet of the people; and these be called justices of the peace, and every of them may well and truly be called eirenarcha. The chief of them is called custos rotulorum, in whose custody all the records of their proceedings are resident. Others there are of that number called justices of peace and quorum, because in their commission they have power to sit and determine causes concerning breach of peace and misbeha 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. viour. The words of their commission are con- | into his majesty's hands all lands escheated, and ceived thus: quorum such and such, unum vel goods or lands forfeited, and therefore is called duos, &c., esse volumus; and without some one or more of the quorum, no sessions can be helden; 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 peace appointed with that authority,) the statute of 38 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 by the keeper. 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. 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 person, dying of a violent death, came so to their death; and to enter the same of record; which 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 34 H. 8. c. 16. of all the process and precepts of the de 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 hundreds, 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 sions. ses 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. |