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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 inventory them in presence of honest neighbours.
Thirdly, formatters 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 matter of corrupting air, water, or victuals, stopping, straitening, or endangering of passages, or general deceits in 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 j 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, they are for their contempt to be fined and imprisoned, or both, by the justices in their sessions.
8. Quest. What is their oath?
Answ. The manner of the oath they take is as followeth:
"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 6hall endeavour, upon complaint mnde, 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 misdemeanors, you shall make outcry 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 justices of the peace of the county: and you shall make good and faithful presentments of all bloodsheds, out-cries, affrays, and rescues made within your office: and you shall well and truly, according 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.
9. Quest. What difference is there betwixt the high constables and petty constables?
Answ. 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, may better attend the justices, and then the head constables, by virtue thereof, make their precepts over to the petty constables.
10. Quest. Whether a constable may appoint a deputy?
Answ. In case of necessity a constable may 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.
2. Serving precepts and warrants.
3. Attendance for the execution of statutes.
Of the Jurisdiction of Justices itinerant in the Principality 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, wrhich 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 nil 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.
The prothonotary's office is to draw These office? all pleadings, and entereth and engross- »re to* eth all the records and judgments in all klns s 5111 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
» .i ■ j . .i_ . . These offices
persons of the judges at their coming, are in the
sitting, and going from their sessions jJ^HJ* dlsP»
The crier is "tanquam publicus prseco," to call for such persons whose appearances are necessary, and to impose silence to the people.
The Office of Justice of Peace.
There is a commission under the The office of great seal of England to certain gentle- justice of men, giving them power to preserve peace' 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 misbehaviour. The words of their commission are conceived thus, Quorum, such and such, unum vel duos, etc. esse volumus; and without some one or more of the quorum, no sessions can be holden; and for the avoiding of a superfluous number of such justices, (for through the ambition of many it is counted a credit to be Justices of burthened with that authority,) the peace appoint- statute of 38 H. Villi hath expressly keeper l°rd prohibited that there shall be but eight justices, of the peace in every county. These justices hold their sessions quarterly.
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.
Every shire hath a sheriff, which word, being of the Saxon English, is as much as to say shire-reeve, or minister of the county: his function or office is twofold, namely,
„„„„ 1. He is the minister and executioner
3i H. 8. cap. 16. , •
of all the process and precepts of the
courts of law, and therefore ought to make return
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.
2. 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 is 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 into his Majesty's hands all lands escheated, and goods or lands forfeited, and therefore is called 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.
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.
These officers are chosen by the freeholders of the shire, by virtue of a writ out of the chancery de coronatore eligendo: and of them I need not to write more, because these officers are in use every where.
General Observations touching Constables, Gaolers, 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 gaol 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 sheriffs: and they are to attend upon the justices in every of their courts and sessions.
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.
ARGUMENT OF SIR FRANCIS BACON, KNIGHT,
HIS MAJESTY'S SOLICITOR GENERAL,
IN THE CASE OF
THE POST-NATI OF SCOTLAND,
IN THE EXCHEQUER CHAMBER,
BEFORE THE LORD CHANCELLOR, AND ALL THE JUDGES OF ENGLAND.
May It Please Your Lordships,
This case your lordships do well perceive to be of exceeding great consequence. For whether you do measure that by place, that reacheth not only to the realm of England, but to the whole island of Great Britain j or whether you measure that by time, that extendeth not only to the present time, but much more to future generations,
Et nati natorum, et qui nascentur ab illis:
And therefore as that is to receive at the bar a full and free debate, so I doubt not but that shall receive from your lordships a sound and just resolution according to law, and according to truth. For, my lords, though he were thought to have said well, that said that for his word, Rex /'ort issimus; yet he was thought to have said better, even in the opinion of the king himself, that said, Veritas fortissimo, et preeralet: And I do much rejoice to observe such a concurrence in the whole carriage of this cause to this end, that truth may prevail.
The case no feigned or framed case; but a true case between true parties.
The title handled formerly in some of the king's courts, and freehold upon it; used indeed by his Majesty in his high wisdom to give an end to this great question, but not raised; occasio, as the schoolmen say, arrepta, von porrecta.
The case argued in the king's bench by Mr. Walter with great liberty, and yet with good approbation of the court: the persons assigned to be of counsel on that side, inferior to none of their quality and degree in learning j and some of them most conversant and exercised in the question.
The judges in the king's bench have adjourned it to this place for conference with the rest of their brethren. Your lordship, my lord chancellor, though you be absolute judge in the court where you sit, and might have called to you such assistance of judges as to you had seemed good; yet would not forerun or lead in this case by any opinion there to
be given; but have chosen rather to come yourself to this assembly; all tending, as I said, to this end, whereunto I for my part do heartily subscribe, ut vincat Veritas, that truth may first appear, and then prevail. And I do firmly hold, and doubt not but I shall well maintain, that this is the truth, that Calvin the plaintiff is ipso jure by the law of England a natural-born subject, to purchase freehold, and to bring real actions within England. In this case I must so consider the time, as I must much more consider the matter. And therefore, though it may draw my speech into farther length, yet I dare not handle a case of this nature confusedly, but purpose to observe the ancient and exact form of pleadings; which is,
First, to explain or induce.
Then, to confute, or answer objections.
And lastly, to prove or confirm.
And first, for explanation. The outward question in this case is no more, but, Whether a child, born in Scotland since his Majesty's happy coming to the crown of England, be naturalized in England, or no? But the inward question or state of the question evermore beginnetb where that which is confessed on both sides doth leave.
It is confessed, that if these two realms of England and Scotland were united under one law and one parliament, and thereby incorporated and made as one kingdom, that the Post-natus of such an union should be naturalized.
It is confessed, that both realms are united in the person of our sovereign; or, because I will gain nothing by surreption, in the putting of the question, that one and the same natural person is king of botli realms.
It is confessed, that the laws and parliaments are several. So then, Whether this privilege and benefit of naturalization be an accessory or dependency upon that which is one and joint, or upon that which is several, hath been and must be the depth of this question. And therefore your lordships do see the state of this question doth evidently lead me by way of inducement to speak of three things: The king, the law, and the privilege of naturalization. For if you well understand the nature of the two principals, and again the nature of the accessory; then shall you discern, to whether principal the accessory doth properly refer, as a shadow to a body, or iron to an adamant.
And therefore your lordships will give me leave, in a case of this quality, first to visit and open the foundations and fountains of reason, and not begin with the positions and eruditions of a municipal law; for so was that done in the great case of mines; and so ought that to be done in all cases of like nature. And this doth not at all detract from the sufficiency of our laws, as incompetent to decide their own cases, but rather addeth a dignity unto them, when their reason appearing as well as their authority doth show them to be as fine moneys, which are current not only by the stamp, because they are so received, but by the natural metal, that is, the reason and wisdom of them.
And master Littleton himself in his whole book doth commend but two things to the professors of the law by the name of his sons; the one, the inquiring and searching out the reasons of the law; and the other, the observing of the forms of pleadings. And never was there any case that came in judgment that required more, that Littleton's advice should be followed in those two points, than doth the present case in question. And first of the king.
It is evident that all other commonwealths, monarchies only excepted, do subsist by a law precedent. For where authority is divided amongst many officers, and they not perpetual, but annual or temporary, and not to receive their authority but by election, and certain persons to have voice only to that election, and the like; these are busy and curious frames, which of necessity do pre-suppose a law precedent, written or unwritten, to guide and direct them: but in monarchies, especially hereditary, that is, when several families, or lineages of people, do submit themselves to one line, imperial or royal, the submission is more natural and simple, which afterwards by laws subsequent is perfected and made more formal; but that is grounded upon nature. That this is so, it appeareth notably in two things; the one the platforms and patterns, which are found in nature of monarchies; the original submissions, and their motives and occasions. The platforms are three:
The first is that of a father, or chief of a family; who governing over his wife by prerogative of sex, over his children by prerogative of age, and because he is author unto them of being, and over his servants by prerogative of virtue and providence, (for he that is able of body, and improvident of mind, is natura servux,) that is the very model of a king. So is the opinion of Aristotle, lib. iii. Pol. cap. 14, where he saith, " Verum autem regnum est, cum penes unum est rerum summa potestas: quod regnum procurationem familiar imitatur."
And therefore Lycurgus, when one counselled him
to dissolve the kingdom, and to establish another form of estate, answered, "Sir, begin to do that which you advise first at home in your own house:" noting, that the chief of a family is as a king; and that those that can least endure kings abroad, can be content to be kings at home. And this is the first platform, which we see is merely natural.
The second is that of a shepherd and his flock, which, Xenophon saith, Cyrus had ever in his mouth. For shepherds are not owners of the sheep; but their office is to feed and govern: no more are kings proprietaries or owners of the people; for God is sole owner of people. "The nations," as the Scripture saith, "are his inheritance:" but the office of kings is to govern, maintain, and protect people. And that is not without a mystery, that the first king that was instituted by God, David, for Saul was but an untimely fruit, was translated from a shepherd, as you have it in Psalm Ixxviii. "Et elegit David, servum suum, de gregibus ovium sustulit eum,— pascere Jacob 6ervum suum, et Israel haereditatem suam." This is the second platform; a work likewise of nature.
The third platform is the government of God himself over the world, whereof lawful monarchies are a shadow. And therefore both amongst the heathen, and amongst the christians, the word, sacred, hath been attributed unto kings, because of the conformity of a monarchy with the Divine Majesty: never to a senate or people. And so you find it twice in the lord Coke's Reports; once in the second book, the bishop of Winchester's case; and his fifth book, Cawdrie's case; and more anciently in the 10 of H. VII. fol. 18, "Rex est persona mixta cum sacerdote ;" an attribute which the senate of Venice, or a canton of Swisses, can never challenge. So, we see, there be precedents or platforms of monarchies, both in nature, and above nature; even from the Monarch of heaven and earth to the king, if you will, in a hive of bees. And therefore other ■tates are the creatures of law; and this state only subsisteth by nature.
For the original submissions, they are four in number: I will briefly touch them: The first is paternity or patriarchy, which is when a family growing so great as it could not contain itself within one habitation, some branches of the descendants were forced to plant themselves into new families, which second families could not by a natural instinct and inclination but bear a reverence, and yield an obeisance to the eldest line of the ancient family from which they were derived.
The second is, the admiration of virtue, or gratitude towards merit, which is likewise naturally infused into all men. Of this Aristotle putteth the case well, when it was the fortune of some one man, either to invent some arts of excellent use towards man's life, or to congregate people, that dwelt scattered, into one place, where they might cohabit with more comfort, or to guide them from a more barren land to a more fruitful, or the like; upon these deserts, and the admiration and recompence of them, people submitted themselves.
The third, which was the most usual of all, was conduct in war, which even in nature induceth as great an obligation as paternity. For as men owe their life and being to their parents in regard of generation, so they owe that also to saviours in the wars in regard of preservation. And therefore we find in chap, xviii. of the book of Judges, ver. 22, "Dixerunt omnes viri ad Gideon, Dominare nostri, tu et filii tui, quoniam servasti nos de manu Madian." And so we read when it was brought to the ears of Saul, that the people sung in the streets, " Saul hath killed his thousand, and David his ten thousand" of enemies, he said straightways: "Quid ei superest nisi ipsum regnum?" For whosoever hath the military dependence, wants little of being king.
The fourth is an enforced submission, which is conquest, whereof it seemed Nimrod was the first precedent, of whom it is said: " Ipse ccepit potens esse in terra, et erat robustus venator coram Domino." And this likewise is upon the same root, which is the saving or gift as it were of life and being; for the conqueror hath power of life and death over his captives; and therefore where he giveth them themselves, he may reserve upon such a gift what service and subjection he will. All these four submissions are evident to be natural and more ancient than law.
To speak therefore of law, which is the second part of that which is to be spoken of by way of inducement. Law no doubt is the great organ by which the sovereign power doth move, and may be truly compared to the sinews in a natural body, as the sovereignty may be compared to the spirits: for if the sinews be without the spirits, they are dead and without motion; if the spirits move in weak sinews, it causeth trembling: so the laws, without the king's power, are dead; the king's power, except the laws be corroborated, will never move constantly, but be full of staggering and trepidation. But towards the king himself the law doth a double office or operation: the first is to entitle the king, or design him: and in that sense Bracton saith well, lib. 1, fol. 5, and lib. 3, fol. 107. "Lex facit quod ipse sit Rex;" that is, it defines his title; as in our law, That the kingdom shall go to the issue female; that it shall not be departable amongst daughters; that the half-blood shall be respected, and other points differing from the rules of common inheritance. The second is that whereof we need not fear to speak in good and happy times, such as these are, to make the ordinary power of the king more definite or regular: for it was well said by a father, " plenitudo potestatis est plenitudo tempestatis." And although the king, in his person, be solutus legibus, yet his acts and grants are limited by law, and we argue them every day.
But I demand, Do these offices or operations of law evacuate or frustrate the original submission, which was natural? Or shall it be said that all allegiance is by law? No more than it can be said, that potestas patris, the power of the father over the child, is by law j and yet no doubt laws do diversely define of that also; the law of some nations having given fathers power to put their children to death; others, to sell them thrice; others, to disin
herit them by testament at pleasure, and the like. Yet no man will affirm, that the obedience of the child is by law, though laws in some points do make it more positive: and even so it is of allegiance of subjects to hereditary monarchs, which is corroborated and confirmed by law, but is the work of the law of nature. And therefore you shall find the observation true, and almost general in all states, that their lawgivers were long after their first kings, who governed for a time by natural equity without law: so was Theseus long before Solon in Athens: so was Eurytion and Sous long before Lycurgus in Sparta: so was Romulus long before the Decemviri. And even amongst ourselves there were more ancient kings of the Saxons; and yet the laws ran under the name of Edgar's laws. And in the refounding of the kingdom in the person of William the Conqueror, when the laws were in some confusion for a time, a man may truly say, that king Edward I. was the first lawgiver, who enacting some laws, and collecting others, brought the law to some perfection. And therefore I will conclude this point with the style which divers acts of parliaments do give unto the king: which term him very effectually and truly, " our natural sovereign liege lord." And as it was said by a principal judge here present when he served in another place, and question was moved by some occasion of the title of Bullein's lands, that he would never allow that queen Elizabeth (I remember it for the efficacy of the phrase) should be a statute queen, but a common-law queen: so surely I shall hardly consent that the king shall be esteemed or called only our rightful sovereign, or our lawful sovereign, but our natural liege sovereign; as acts of parliament speak: for as the common law is more worthy than the statute law; so the law of nature is more worthy than them both. Having spoken now of the king and the law, it remaineth to speak of the privilege and benefit of naturalization itself; and that according to the rules of the law of England.
Naturalization is best discerned in the degrees whereby the law doth mount and ascend thereunto. For it seemeth admirable unto me, to consider with what a measured hand and with how true proportions our law doth impart and confer the several degrees of this benefit. The degrees are four.
The first degree of persons, as to this purpose, that the law takes knowledge of, is an alien enemy: that is, such a one as is born under the obeisance of a prince or state that is in hostility with the king of England. To this person the law giveth no benefit or protection at all, but if he come into the realm after war proclaimed, or war in fact, he comes at his own peril, he may be used as an enemy: for the law accounts of him but, as the Scripture saith, as of a spy that comes to see the weakness of the land. And so it is in 2 Ric. III. fol. 2. Nevertheless this admitteth a distinction. For if he come with safeconduct, otherwise it is: for then he may not be violated, either in person or goods. But yet he must fetch his justice at the fountain-head, for none of the conduit-pipes are open to him; he can have no remedy in any of the king's courts; but he must