Page images

all deeds hollow, and subject to averments, and so in effect, that to pass without deed, which the law appointeth shall not pass but by deed.

Therefore if a man give land to /. D. et I. S. et hagredibus, and do not limit to whether of their heirs, it shall not be supplied by averment to whether of tliem the intention was the inheritance should be limited.

So if a man give land in tail, though it be by will, the remainder in tail, and add a proviso in this manner: Provided that if he, or they, or any of them do any, &c. according to the usual clauses of perpetuities, it cannot be averred upon the ambiguities of the reference of this clause, that the intent of the devisor was, that the restraint should go only to him in the remainder, and the heirs of his body; and that the tenant in tail in possession was meant to be at large.

Of these infinite cases might be put, for it holdeth generally that all ambiguity of words by matter within the deed, and not out of the deed, shall be holpen by construction, or in some case by election, but never by averment, but rather shall make the deed void for uncertainty.

But if it be ambiguitas latens, then otherwise it is: as if I grant my manor of S. to I. F. and his heirs, here appeareth no ambiguity at all; but if the truth be, that I have the manors both of South S. and North S. this ambiguity is matter in fact; and therefore it shall be holpen by averment, whether of them was that the party intended should pass.

So if I set forth my land by quantity, then it shall be supplied by election, and not averment.

As if I grant ten acres of wood in sale, where I have a hundred acres, whether I say it in my deed or no, that I grant out of my hundred acres, yet here shall be an election in the grantee, which ten he will take.

And the reason is plain, for the presumption of the law is, where the thing is only nominated by quantity, that the parties had indifferent intentions which should be taken, and there being no cause to help the uncertainty by intention, it shall be holpen by election.

But in the former case the difference holdeth, where it is expressed, and where not; for if I recite, Whereas I am seised of the manor of North S. and South S. I lease unto you unum manerium dc S. there it is clearly an election. So if I recite, Whereas I have two tenements in St. Dunstan's, I lease unto you unum tenementum, there it is an election, not averment of intention, except the intent were of an election, which may be specially averred.

Another sort of ambiguitas latens is correlative unto these: for this ambiguity spoken of before, ii when one name and appellation doth denominate divers things, and the second, when the same thing is called by divers names.

As if I give lands to Christ-Church in Oxford, and the name of the corporation is " Ecclesia ChrUti in Universitate Oxford," this shall be holpen by averment, because there appears no ambiguity in the words: for this variance is matter in fact, but the averment shall not be of intention, because it doth stand with the words.

For in the case of equivocation the general intent includes both the special, and therefore stands with the words: but so it is not in variance, and therefore the averment must be of matter, that do endnre quantity, and not intention.

As to say, of the precinct of Oxford, and of the University of Oxford, is one and the same, and not to say that the intention of the parties was, that the grant should be to Christ-Church in that University of Oxford.






The use of the The use of the law consisteth prin

I»w, and cipally in these three things:

wherein it r' ° ,

principally I. To secure men's persons from

consisielh. death and vj0lence.

II. To dispose the property of their goods and lands.

III. For preservation of their good names from shame and infamy.

For safety of persons, the law provideth that any man standing in fear of fnJJ^JJa«kM,> 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.

If any man beat, wound, or maim Action for another, or give false scandalous words tery!&c.b*t

[ocr errors]

that may touch his credit, the law giveth thereupon an action of the case for the slander of his good name; and an action of battery, or an appeal of maim, by which recompence shall be recovered, to the value of the hurt, damage, or danger. Appeal of mur- anv man kill another with malice,

der Kiwiyo the law giveth an appeal to the wife of t enexto in. ^ je>^ ,f j,e na(j anVi or to tne 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, yet the king is to punish the offence by indictment or presentment of a lawful inquest and trial of the offender before competent judges; whereupon being found guilty, he is to suffer death, and to lose his lands and goods.

Man-slaugh- ^ one ^ill another upon a sudden feTture of* f°r" 1uarre^' tn's's man-slaughter, for which poods, and the offender must die, except he can when not 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 goods and chattels are forfeited, but no lands.

If a man kill another by misfortune, ch!TMe°yID'S" 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 liis lands nor life.

If a horse, or cart, or a beast, or any other thing do kill a man, the horse, beast, or other thing is forfeited to the crown, and is called a Deodand, and usually granted and allowed by the king to the bishop almoner, as goods are of those that kill themselves.

„ . The cutting out of a man's tongue,

Cottingout ■ , . .. . ,6 .'

tongues, and or putting out his eyes maliciously, is

eyw^elony feny I f°r which the offender is to suffer death, and lose his lands and 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 matter of the peace.

The ancient laws of England, planted here by the Conqueror, were, that there should be officers of two sorts in all the parts of this realm to preserve the peace:

1. Constabularii pacis.

2. Conservatores pacis.

The office of the constable was to u?eeconsCtable. 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 chancery, from whence process should be awarded to levy the debt, if the peace were broken.

But the constables 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.

Of this office of constable there were constahigh constables, two of every hundred; bles for everv petty constables, one in every village: ty consfaWea* they were in ancient time all appointed for every vilby the sheriff of the shire yearly in his lage' court called the Sheriffs Turn, 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 Turn is a court very

ancient, incident to his office. At the P16 , , . t Bench first in

first it was erected by the Conqueror, stituted, and

and called the King's Bench, appoint- j£n'urisdic' 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 " 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.

But the king seeing the realm grow Courtof Mar. daily more and more populous, and shalsea erectthat this one court could not despatch ris'dtctio'rf J"~

all, did first ordain that his marshal w!'nin J* ,' . , . . miles of the

should keep a court, for controversies chief tunnel,

arising within the verge, which was &c'

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 farther sheriff's Turn

ease, having divided this kingdom into instituted up.

counties, and committing the charge of sionofEng

land into every county to a lord or earl, did counties, &c. ',' , .....

Likewise call- direct that those earls, within their

iu"s franc! pie- limits> should look to the matter of the gii-" peace, and take charge of the consta

bles, 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 Turn; at which all the county, except women, clergy, children under twelve, and aged above sixty, did appear to give or renew their pledges for allegiance. And the court was called, " Curia visus franci plegii," a view of the pledges of freemen; or " Turna comitatus."

At which meeting or court there fell, Subdivision of ■ • _ » *. Li: ,

the county by occasion of great assemblies, much

hundreds! blood-shed, 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 hundred court.

•n,. But in the end, the kings of this

The charge , .' °

of the county realm found it necessary to have all

earis"a^°dmthe execution of justice immediately from the'sileriff"1 '° 'hemselves, by such as were more bound than earls to that service, and readily subject to correction for their negligence or abuse; and therefore took to themselves the appointing a sheriff yearly in every county, calling them "Vicecomites," and to them directed such writs and precepts for executiry. justice in the county, as fell out needful to have been despatched, committing to the sheriff custodiam comitatus; by which the earls were spared of their toils and labours, and Th h tri 'hat was laid upon the sheriffs. So as judge* oVaiiS now 'he sheriff doth all the king's

hundred business in the county, and that is now courts, &c. _ . *1 .

called the Sheriff s Turn; 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 court He hath another court called the

kept monthly county court, belonging to his office, by the sheriff. . }. ' 6 s .

wherein men may sue monthly for any

debt or damages under 40*. 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 justifies, a man may sue for

any sum; and in this court the sheriff by a writ

called an eiigent doth proclaim men sued in courts

above to render their bodies, or else they be outlawed.

This sheriff doth serve the king's

Uie^sherlff' °f w"'s °' process, be they summons, or

attachments, to compel men to answer

to the law, and all writs of execution of the law,

according to judgments of superior courts for taking

of men's goods, lands, or bodies, as the cause


The hundred courts were most of them granted to religious men, noble- ro"rts'o men, and others of great place. And '"'^JjJ^' fi*st also many men of good quality have attained by charter, and some by usage within manors of their own, liberty of keeping law-days, and to use their justice appertaining to a law-day.

Whosoever is lord of the hundred court, is to appoint two high constables {ju^^'^ of the hundred, and also is to appoint appoint two in every village a petty constable, with consUr a tithing-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.

There have been, by use and statute law, besides surveying of the pledges of they \nquJre* freemen, and giving l he oath of allegi- °£wj".JaDd ance, and making of constables, many additions of powers and authority given to the stewards of leets and law-days, to be put in use in their courts; as for example, they may punish inn-keepers, 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 enacted, repair or amend them, or divert water-courses, or destroy fry of fish, or use engines or nets to take deer, conies, pheasants, or partridges, or build pigeon-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 lawdays and leets, and the offices of high constables, petty constables, andtithing-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 conservators

ancient times certain which were as- oftbepeace

signed by the king to see the peace term or hie. or

maintained, and they were called to the ai,ne k'ns's

— . r pleasure.

office by the king s writ, to continue for
term of their lives, or at the king's pleasure.

For this service, choice was made of What their the best men of calling in the country, oli'ce and but few in the shire. They might bind any man to keep the peace, and to good behaviour, by recognizance to the king with 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. •

The judges of either bench in West

CThe'ptace8 minster, barons of the exchequer, master

by virtue ot 0f the rolls, and justices in eyre and astheir office. . ..... ,. ...

sizes in their circuits, were all, without

writ, conservators of the peace in all shires of England, and continue to this day. Justices or now at ,n's dRV conservators of

peace ordain- the peace are out of use, and in lieu of ci.nst-rvators. them there are ordained justicesof peace,

I'owerof plac- agsigned by the king's commissions in nig delegated ° ' ...

to the chan- every county, which are movable at

cellor. tne kjng>8 piengure; but the power of

placing and displacing justices of the peace is by use delegated from the king to the chancellor.

That there should be justices of peace by commissions, it was first enacted by a statute made 1 Edw. III. and their authority augmented by many statutes made since in every king's reign. To tine offend- They are appointed to keep four seser» to the sions every year; that is, every quarter crown, but rm. • r

not to recom- one. These sessions are a sitting of

party grieved tne ju8t'ccs *° despatch the affairs of Vari stat. their commissions. They have power

to. et.2v.CDyer to near an& determine,their sessions,

89. b. llsount all felonies, breaches of the peace, conpoierdin- . A . '

quier de mur- tempts and trespasses, so far as to fine

est'ftl'oii060 ^e onren('er ,0 tne crown, but not to award recompence to the party grieved. Authority of They are to suppress riots and tu

tbe justices of mults, to restore possessions forcibly peace. Ice. . r . „ . ,'

taken away, to examine all felons apprehended 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 ale-houses, badgers of corn and victuals, and to punish forestallers, regrators, and ingrossers.

Through these, in effect, run all the county services to the crown, as taxations of subsidies, mustering men, arming them, and levying forces, that is done by a special commission or precept from the Beating, kill- k'nS- Any of these justices, by oath or houses.'"8 ta'ten by a man tnat he standeth in fear that another man will beat him, or kill him, or burn his house, are to send for the party by warrant of attachment directed to the


for surely of sheriff or constable, and then to bind

e peace. ^e 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 ses

Recognisance sions, when every justice of the peace

of the peace hath therein delivered all their recogdelivered by . °

the justices at nisances so taken, then the parties are

their sessions. cajfed Rnd ,he cai)ge of b;naing t0 the

peace examined, 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.

The justices of peace in their sessions are attended by the constables and bai- ^"n^heM by

lifts of all hundreds and liberties within the justices of i , , , , . _ , . the peace,

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, nnd 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 The autriority every county, and to them are brought u(e^usa'pe90°t all traitors, felons, and other malefac- oftlwirses^ tors of any sort upon their first appre- 51onshension ; 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 a 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.

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 mainour, then the justice is to commit the party by his warrant, called a mittimus, to 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 prosecution of the witnesses, so as the judges may, when they come, readily proceed with him as the law requireth.

The judges of the assizes as they be j„djresof as

now come into the place of the ancient »'«in place

., , _ of the ancient

justices in eyre, called "justiciani ltine- judges in eyre,

rantes," which in the prime kings after Tem- R- "•

the conquest,until H. lll.'s time especially,and after

in lesser measure even to R. II.'s time, did execute

the justice of the realm; they began in this sort.

The king, not able to despatch busi- King's bench,

ness in his own person, erected the JjJ^"*1'9

court of king's bench. That not able court,'sheriffs

to receive all, nor meet to draw the V"",9/hu"' • dreris, leets,

people all to one place, there were and law-days, ordained counties, and the sheriff's crown mat'"

turns, hundred courts, and particular ters; justices , , , , , I in eyre dealt

leets, and law-days, as before men- in private

tioned, which dealt only with crown ^"^'^fd9

matters for the public; but not the in all treasons

private titles of lands, or goods, nor the which the

county courts trial of grand offences of treasons and meddfed not fcionieg> Au ,he countieg of the Te^m

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 court.

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 every gaol in the said shire, and whatsoever controversies arising concerning life, lands, or goods.

The authority The authority of these judges in of judges in eyre js jn part translated by act of par&yrc, trunslEit

ed to justices liament to justices of assize, which be or assize. now tne jujgeg 0f circuits, and they to use the same course that justices in eyre did, to proclaim their coming every half year, and the place of their sitting.

The business of the justices in eyre, siremu'cMet ana< °( the justices of assize at this day,

senedbyihe j8 much lessened, for that in H. III.'s court of com- . , , .

mon pleas, time there was erected the court of

IH's time H com"">n 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 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. Chart, cap. 11, is negative

against it, namely, "Communia placita non sequan

tur curiam nostram, sed teneantur in aliquo loco

certo j" which locus certus must be

sKifbyfllJe tne common-pleas; yet the judges of

commissions, circuits have now five commissions by

which they sit.

- ., The first is a commission of oyer and

Over and tei- ...'

miner, in terminer, directed unto them, and many

Judgesof °'hers of the best account, in their cir

'the yuurum, cuits: but in this commission the

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.

Gaol-delivery The second is a commission of gaoltoThe'jud0"^ delivery, tnat is onl>' t0 the judges and clerk of themselves, and the clerk of the assize BM,ie- 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 staiideth 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 indorsed billa vera," they send for those prisoners; then is every man's indict- The manner of

ment put and read to him, and they ask the proceed. . ... . , ., ... mgsofihe

him, whether he be guilty or not: if he justices of cir

saith, Guilty, his confession is recorded; cuit*if he say, Not guilty, then he is asked how he will be tried; he answereth, By the country. Then the sheriff is commanded to return the of the judos names of twelve freeholders to the court, for'the gaolwhich 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 is heard at large what defence he can make, and then the jury go together and consult. And after a while they come in with a verdict of Guilty or Not guilty, which verdict the judges do record accordingly. If any prisoner plead Not guilty upon the indictment, and yet will not put himself to trial upon the jury, or stand mule, he shall be pressed.

The judges, when many prisoners are in the gaol, do in the end before they go peruse every one. 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 twelve pence 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 others 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 are 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.

For the scarcity of the clergy in the realm of England, to be disposed in Stjc^tc. 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

« PreviousContinue »