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land into

Counties, &c. Likewise call sus franci ple

led "Curia vi

gii."

every county to a lord or earl, did direct that those earls, within their limits, should look to the matter of the peace, and take charge of the constables, and reform public annoyances, and swear the people to the crown, and take pledges of the freemen for their allegiance; for which purpose the county did once every year keep a court, called the Sheriff's 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."

Subdivision of the county court into hundreds.

At which meeting or court there fell, by occasion of great assemblies, much 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.

The charge

of the county

taken from the earls, and

committed to

the sheriff.

But in the end, the kings of this realm found it necessary to have all execution of justice immediately from themselves, 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 executing, 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 that was laid upon the sheriffs. So as now the sheriff doth all the king's business in the county, and that is now 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.

The sheriff is judge of all

hundred

courts, &c.

He hath another court called the County court kept monthly county court, belonging to his office, by the sheriff. wherein men may sue monthly for any debt or damages under 40s. and may have writs for to replevy their cattle distrained and impounded by others, and there try the cause of their distress; and by a writ called justicies, a man may sue for any sum; and in this court the sheriff by a writ called an exigent doth proclaim men sued in courts above to render their bodies, or else they be outlawed. This sheriff doth serve the king's The office of writs of 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 requireth.

the sheriff.

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hundred to

bles.

What matters

court, is to appoint two high constables Lord of the of the hundred, and also is to appoint appoint two in every village a petty constable, with high constaa 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 inquire freemen, and giving the oath of allegi- of in leets and law-days. 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 sheriff's lawdays and leets, and the offices of high constables, petty constables, and tithing-men; howbeit, with some further additions by statute laws, laying charge upon them for taxation for poor, for soldiers, and the like, and dealing without corruption, and the like.

Conservators of the peace term of lite, or by writ for at the king's pleasure.

office was.

Conservators of the peace were in ancient times certain which were assigned by the king to see the peace maintained, and they were called to the office by the king's writ, to continue for term of their lives, or at the king's pleasure. For this service, choice was made of What their the best men of calling in the country, 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

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To fine offenders to the crown, but not to recompense the party grieved. Parl. stat. 17 R. 2. cap.

10. et. v. Dyer 69. b. Ils ount poier d'in

quier de mur

der car ceo est felon.

one.

They are appointed to keep four sessions every year; that is, every quarter These sessions are a sitting of the justices to despatch the affairs of their commissions. They have power to hear and determine, in their sessions, all felonies, breaches of the peace, contempts and trespasses, so far as to fine the offender to the crown, but not to award recompence to the party grieved. Authority of They are to suppress riots and tuthe justices of mults, to restore possessions forcibly peace, &c. 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. king. Any of these justices, by oath ing, burning taken by a man that he standeth in fear of houses. 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 Attachments for surety of sheriff or constable, and then to bind the peace. the party with sureties by recognisance to the king to keep the peace, and also to appear at the next sessions of the peace; at which next sesRecognisance 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. called, and the cause of binding to 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.

Quarter ses

sions held by

the peace.

The justices of peace in their sessions are attended by the constables and bailiffs of all hundreds and liberties within the justices of the county, and by the sheriff or his deputy, to be employed as occasion shall serve in executing the precepts and directions of the court. They proceed in this sort: The sheriff doth summon twenty-four freeholders, discreet men of the said county, whereof some sixteen are selected and sworn, and have their charge to serve as the grand jury; the party indicted is to traverse the indictment, or else to confess it, and so submit himself to be fined as the court shall think meet, regard had to the offence, except the punishment be certainly appointed, as often it is, by special statutes.

sions.

The justices of peace are many in The authority every county, and to them are brought of justices of the peace out all traitors, felons, and other malefac- of their ses tors of any sort upon their first apprehension; and that justice to whom they are brought examineth them, and heareth their accusations, but judgeth not upon it; only if he find the suspicion but light, then he taketh bond with sureties of the accused to appear either at the next assizes, if it be 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.

of the ancient

The judges of the assizes as they be Judges of asnow come into the place of the ancient size in place justices in eyre, called "justiciarii itine- judges in eyre, rantes," which in the prime kings after Tem. R. II. the conquest, until H. III.'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 marshal's court of king's bench. That not able to receive all, nor meet to draw the people all to one place, there were ordained counties, and the sheriff's turns, hundred courts, and particular ters; justices in eyre dealt leets, and law-days, as before men- in private tioned, which dealt only with crown matters for the public; but not the private titles of lands, or goods, nor the

court, county

court, sheriff's turns, hundreds, leets, and law-days, dealt only in crown mat

titles of lands or goods, and in all treasons which the

and felonies,

county courts trial of grand offences of treasons and
meddled not
felonies. All the counties of the realm
in.
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 before-
hand, 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.

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Justices of assize much lessened by the court of common pleas, erected in H. III.'s time.

The business of the justices in eyre, and of the justices of assize at this day, is much lessened, for that in H. III.'s time there was erected the court of common 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 sequantur curiam nostram, sed teneantur in aliquo loco certo;" which locus certus must be

Justices of as

size sit by five the common pleas; yet the judges of commissions. circuits have now five commissions by which they sit.

Over and terminer, in which the judges are of the Quorum,

The first is a commission of oyer and terminer, directed unto them, and many others of the best account, in their circuits: but in this commission the judges of assize are of the Quorum, so as without them there can be no proceeding.

&c.

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.

ings of the

took his examination, and bound his accusers and
witnesses to appear and prosecute at the gaol-de-
livery. 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
standeth 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-
him, whether he be guilty or not: if he justices of cir-
saith, Guilty, his confession is recorded;
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 judges
names of twelve freeholders to the court, for the gaol.
delivery.
which freeholders be sworn to make
true delivery between the king and the prisoner;
and then the indictment is again read, and the wit-
nesses 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 mute,
he shall be pressed.

cuits.

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 preGaol-delivery The second is a commission of gaol-ferred, they do acquit by proclamation out of the directed only delivery, that is only to the judges themselves, and the clerk of the assize associate and by this commission they are to deal with every prisoner in the gaol, for what offence soever he be there, and to proceed with him according to the laws of the realm, and the quality of his offence; and they cannot by this commission do any thing concerning any man, but 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

to the judges and clerk of

assize.

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.

Books allowed, clergy, &c.

For the scarcity of the clergy in the realm of England, to be disposed in 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

of the diocess might, if he would, claim him as a clerk, and he was to see him tried in the face of the court whether he could read or not. The book was prepared and brought by the bishop, and the judge was to turn to some place as he should think meet; and if the prisoner could read, then the bishop was to have him delivered over unto him, to dispose of in some places of the clergy as he should think meet: but if either the bishop would not demand him, or that the prisoner could not read, then was he to be put to death.

Clergy allowed anciently in

all offences, except treason

and robbing of

churches; now taken away, 1. In murder. 2. In burglary. 3. Robbery. 4. Purse-cut

ting. 5. Horsestealing, and

And this clergy was allowable, in the ancient times and law, for all offences, whatsoever they were, except treason, and the robbing of churches of their goods and ornaments. But by many statutes made since, the clergy is taken away for murder, burglary, robbery, purse-cutting, horse-stealing, and divers other felonies particularized by the statutes to the judges; and lastly, by a statute made 18 Elizabeth, the judges themselves are appointed to allow clergy to such as can read, being not such offenders from whom clergy is taken away by any statute, and to see them charge the pri- burned in the hand, and so discharge soners without delivering them, without delivering them to the them to the bishop; howbeit, the bishop appointeth bishop. the deputy to attend the judges with a book to try whether they can read or not.

in divers other
offences. By
the stat. of
18 E. judges
are to allow
clergy, and to
see them burn-

ed in the hand,
and to dis-

The third commission that the judges of circuits have, is a commission directed to themselves only, and the clerk of assize, to take assizes, by which they are called justices of assize; and the office of those justices is to do right upon writs called assizes, brought before them by such as are wrongfully thrust out of their lands. Of which number of writs there was far greater store brought before them in ancient times than now; for that men's seisins and possessions are sooner recovered by sealing leases upon the ground, and by bringing an ejectione firma, and trying their title so, than by the long suits of assizes.

4. Commission to take Nisi prius, directed to two judges, and the clerk of the assize. Nisi Prius.

issue of the fact is to be tried by a jury of twelve men of the county, where it is supposed by the plaintiff to be done, and for that purpose the judges of the court do award a writ of Venire facias in the king's name to the sheriff of that county, commanding him to cause four and twenty discreet freeholders of his county, at a certain day, to try this issue so joined; out of which four and twenty only twelve are chosen to serve. And that double number is returned, because some may make default, and some be challenged upon kindred, alliance, or partial dealing.

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Distringas.

The manner of justices of of proceeding circuits. The judges hold in the taking of Nisi prius.

course the

These four and twenty the sheriff doth name and certify to the court, and withal, that he hath warned them to come at the day according to their writ But because at the first summons there falleth no punishment upon the four and twenty if they come not, they very seldom or never appear upon the first writ; and upon their default there is another writ returned to the sheriff, commanding him to distrain them by their lands to appear at a certain day appointed by the writ, which is the next term after, "Nisi prius justiciarii nostri ad assisas capiendas venerint," etc. of which words the writ is called a Nisi prius, and the judges of the circuit of that county in that vacation, and mean time, before the day of appearance appointed for the jury above, here by their commission of Nisi prius have authority to take the appearance of the jury in the county before them, and there to hear the witnesses and proofs on both sides, concerning the issue of the fact, and to take the verdict of the jury, and against the day they should have appeared above, to return the verdict read in the court above, which return is called a Postea.

Postea.

And upon this verdict clearing the matter in fact, one way or other, the judges above give judgment for the party for whom the verdict is found, and for such damages and costs as the jury do assess.

By those trials called "Nisi prius," the juries and the parties are eased much of the charge they should be put to, by coming to London with their evidences and witnesses; and the courts of Westminster are eased of much trouble they should have, if all the juries for trials should appear and try their causes in those courts; for those courts above have little leisure now. Though the juries come not up, yet in matters of great weight, or where the title is intricate or difficult, the judges above, upon information to them, do retain those causes to be tried there, and the juries do at this day, in such cases, come to the bar at Westminster.

The fourth commission is a commission to take Nisi prius, directed to none but to the judges themselves, and their clerks of assizes, by which they are called justices of Nisi prius. These Nisi prius happen in this sort; when a suit is begun for any matter in one of the three courts, the king's bench, common pleas, or the exchequer here above, and the parties in their pleadings do vary in a point of fact; as for example, if in an action of debt upon obligation the defendant The fifth commission that the judges denies the obligation to be his debt; or in any action of in their circuits do sit by, is the comtrespass grown for taking away goods, the defend- mission of the peace in every county of ant denieth that he took them; or in action of the their circuit. And all the justices of case for slanderous words, the defendant denieth the peace, having no lawful impediment, that he spake them, &c. Then the plaintiff is to are bound to be present at the assizes maintain and prove that the obligation is the de- to attend the judges, as occasion shall county. fendant's deed, that he either took the goods or spake fall out; if any make default, the judges may set the words: upon which denial and affirmation the a fine upon him at their pleasure and discretions. law saith, that issue is joined betwixt them, which | Also the sheriff in every shire through the circui is

5. Commismission of the peace. The justices of the sheriff are to judges in their

sion is a com

peace and the

attend the

to attend in person, or by a sufficient deputy allowed |
by the judges, all that time they be within the
county, and the judges may fine him if he fail, or
for negligence or misbehaviour in his office before
them, the judges above may also fine the sheriff, for
not returning, or not sufficient returning of writs be-
fore them.

Property in lands, how gotten or transferred.
I. By entry.

II. By descent.

III. By escheat.

IV. Most usually by conveyance.

Of the proper

ty of lands to be gained by

entry.

of him, except, 1. Religious and

church lands

2. The lands

of the men of

Kent.

Land left by

pay the rent, perform the conditions, and do no waste: and he may by deed assign it to whom he please in his life-time. But if he die before he assign it over, then it shall go again to whomsoever first entereth and holdeth; and so all the life of B. so often as it shall happen.

Likewise, if any man doth wrongfully enter into another man's possession, and put the right owner of the freehold and inheritance from it, he thereby getteth the freehold and inheritance by disseisin, and may hold it against all men, but him that hath right, and his heirs, and is called a disseisor. Or if any one die seised of lands, and before his heir doth enter, one that hath no right doth enter into the lands, and holdeth them from the right heir, he is called an abator, and is lawful owner against all men but the right heir.

And if such person abator or disseisor, so as the disseisor hath quiet possession five years next after the disseisin, do continue their possession, and die seised, and the land descend to his heir, they have gained the right to the possession of the land against him that hath right, till he recover it by fit action real at the common law. And if it be not sued for at the common law, within threescore years after the disseisin, or abatement committed, the right owner hath lost his right by that negligence. And if a man hath divers children, and the elder, being a bastard, doth enter into the land, and enjoyeth it quietly during his life, and dieth thereof so seised, his heirs shall hold the land against all the lawful children, and their issues.

scent.

I. Property by entry is, where a man findeth a piece of land that no other possesseth, or hath title unto, and he that so findeth it doth enter, this entry gaineth a property. This law seemeth to be derived from this text, "Terram dedit filiis hominum," which is to be understood, to those that will till and manure it, and so make it yield fruit: and that is he that entereth into it, where no man had it before. But this manner of All lands in England were gaining lands was in the first days, and the Conquer. or's, and held is not now of use in England, for that by the Conquest all the land of this nation was in the Conqueror's hands, and appropriated unto him; except religious and church lands, and the lands in Kent, which by composition were left to the former owners, as the Conqueror found them; so that none but the bishoprics, churches, and the men of Kent, can at this day make any II. Property of lands by descent is, Property of greater title than from the Conquest, to any lands where a man hath lands of inheritance lands by dein England. And lands possessed without any and dieth, not disposing of them, but such title, are in the crown, and not in him leaving it to go, as the law casteth it, upon the that first entereth; as it is in land left heir. This is called a descent in law, and upon the sea belong by the sea; this land belongeth to the whom the descent is to light, is the question. For eth to the king. king, and not to him that hath the which purpose, the law of inheritance preferreth lands next adjoining, which was the ancient sea the first child before all others, and amongst chilbanks. This is to be understood of the inheritance dren the male before the female; and amongst of lands, namely, that the inheritance cannot be males the first born. If there be no children, then gained by the first entry. But an estate for another the brother; if no brother, then sisters; if neither man's life by occupancy, may at this day be gotten brothers nor sisters, then uncles, and for lack of by entry. As a man called A. having land conveyed uncles, aunts; if none of them, then cousins in the unto him for the life of B. dieth without making nearest degree of consanguinity, with these three any estate of it, there, whosoever first entereth into rules of diversities. 1. That the eldest the land after the decease of A. getteth the property male shall solely inherit; but if it come in the land for time of the continuance of the estate to females, then they being all in an which was granted to A. for the life of B. which B. equal degree of nearness shall inherit all together, yet liveth, and therefore the said land cannot revert and are called parceners, and all they make but one till B. die. And to the heir of A. it cannot go, for heir to the ancestor. 2. That no Brother or sisthat it is not any estate of inheritance, but only an brother or sister of the half blood shall ter of the half blood shall not estate for another man's life; which is not descend-inherit to his brother or sister, but as inherit to his able to the heir, except he be specially named in a child to his parents: as for example, brother or sis the grant, namely, to him and his heirs. As for if a man have two wives, and by either a child to his the executors of A. they cannot have it, for it is not wife a son, the eldest son over-living parents. an estate testamentary, that it should go to the exe- his father, is to be preferred to the inheritance of cutors as goods and chattels should, so as in truth the father, being fee-simple: but if he entereth and no man can entitle himself unto those lands; and | dieth without a child, the brother shall not be his therefore the law preferreth him that first entereth, heir, because he is of the half blood to him, but the and he is called occupans, and shall uncle of the eldest brother or sister of the whole Occupancy. hold it during the life of B. but must blood: yet if the eldest brother had died, or had

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Of descent: three rules.

ter, but only as

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