« PreviousContinue »
all deeds hollow, and subject to averments, and so And the reason is plain, for the presumption of in effect, that to pass without deed, which the law the law is, where the thing is only nominated by appointeth shall not pass but by deed.
quantity, that the parties had indifferent intentions Therefore if a man give land to 1. D. et I. S. et which should be taken, and there being no cause to heredibus, and do not limit to whether of their help the uncertainty by intention, it shall be holpen heirs, it shall not be supplied by averment to whether by election. of them the intention was the inheritance should be But in the former case the difference holdeth, limited.
where it is expressed, and where not; for if I reSo if a man give land in tail, though it be by cite, Whereas I am seised of the manor of North S. will, the remainder in tail, and add a proviso in this and South S. I lease unto you unum manerium de manner: Provided that if he, or they, or any of S. there it is clearly an election. So if I recite, them do any, &c. according to the usual clauses of Whereas I have two tenements in St. Dunstan's, I perpetuities, it cannot be averred upon the ambigui- lease unto you unum tenementum, there it is an electies of the reference of this clause, that the intent of tion, not averment of intention, except the intent the devisor was, that the restraint should go only to were of an election, which may be specially averred. him in the remainder, and the heirs of his body ; Another sort of ambiguitas latens is correlative and that the tenant in tail in possession was meant unto these: for this ambiguity spoken of before, is to be at large.
when one name and appellation doth denominate Of these infinite cases might be put, for it holdeth divers things, and the second, when the same thing generally that all ambiguity of words by matter is called by divers names. within the deed, and not out of the deed, shall be As if I give lands to Christ-Church in Oxford, holpen by construction, or in some case by election, and the name of the corporation is “ Ecclesia Christi but never by averment, but rather shall make the in Universitate Oxford,” this shall be holpen by deed void for uncertainty.
averment, because there appears no ambiguity in But if it be ambiguitas latens, then otherwise it the words : for this variance is matter in fact, but is: as if I grant my manor of S. to I. F. and his the averment shall not be of intention, because it heirs, here appeareth no ambiguity at all; but if doth stand with the words. the truth be, that I have the manors both of South For in the case of equivocation the general intent S. and North S. this ambiguity is matter in fact; includes both the special, and therefore stands with and therefore it shall be holpen by averment, whether the words: but so it is not in variance, and thereof them was that the party intended should pass. fore the averment must be of matter, that do endure
So if I set forth my land by quantity, then it quantity, and not intention. shall be supplied by election, and not averment. As to say, of the precinct of Oxford, and of the
As if I grant ten acres of wood in sale, where I University of Oxford, is one and the same, and not have a hundred acres, whether I say it in my deed to say that the intention of the parties was, that the or no, that I grant out of my hundred acres, yet grant should be to Christ-Church in that University here shall be an election in the grantee, which ten of Oxford. he will take.
USE OF THE LAW;
PRESERVATION OF OUR PERSONS, GOODS, AND GOOD NAMES,
ACCORDING TO THE
PRACTICE OF THE LAWS AND CUSTOMS OF THIS LAND.
The use of the The use of the law consisteth prin For safety of persons, the law pro-
videth that any man standing in fear of Surety to keep wherein it
the peace. principally 1. To secure men's persons from another may take his oath before a jusconsiste ih death and violence.
tice of peace, that he standeth in fear of his life, and II. To dispose the property of their goods and the justice shall compel the other to be bound with lands.
sureties to keep the peace. III. For preservation of their good names from If any man beat, wound, or maim Action for shame and infamy.
slander, batanother, or give false scandalous words tery, &c.
Felo de se.
Bench first in
that may touch his credit, the law giveth thereupon required, until they had become bounden with surean action of the case for the slander of his good ties to keep the peace; which obligation from name; and an action of battery, or an appeal of thenceforth was to be sealed and delivered to the maim, by which recompence shall be recovered, to constable to the use of the king; and that the conthe value of the hurt, damage, or danger.
stable was to send to the king's exchequer or chanAppeal of mur
If any man kill another with malice, cery, from whence process should be awarded to der given to the law giveth an appeal to the wife of levy the debt, if the peace were broken. the next of kin.
the dead, if he had any, or to the next But the constables could not arrest any, nor make of kin that is heir, in default of a wife; by which any put in bond upon complaint of threatening only, appeal the defendant convicted is to suffer death, except they had seen them breaking the peace, or and to lose all his lands and goods : but if the wife had come freshly after the peace was broken. Also, or heir will not sue, or be compounded withal, yet these constables should keep watch about the town the king is to punish the offence by indictment or for the apprehension of rogues and vagabonds, and presentment of a lawful inquest and trial of the night-walkers, and eves-droppers, scouts, and such offender before competent judges; whereupon being like, and such as go armed. And they ought likefound guilty, he is to suffer death, and to lose his wise to raise hue and cry against murderers, manlands and goods.
slayers, thieves, and rogues. Man-slaughIf one kill another upon a sudden Of this office of constable there were
High constater, when a for- quarrel, this is man-slaughter, for which high constables, two of every hundred; bles for every goods, and the offender must die, except he can petty constables, one in every village :
ty constables read; and if he can read, yet must he they were in ancient time all appointed for every vil
lage. lose his goods, but no lands.
by the sheriff of the shire yearly in his And if a man kill another in his own defence, he court called the Sheriff's Turn, and there they shall not lose his life, nor his lands, but he must received their oath. But at this day they are lose his goods, except the party slain did first as appointed either in the law-day of that precinct sault him, to kill, rob, or trouble him by the high- wherein they serve, or else by the high constable in way side, or in his own house, and then he shall the sessions of the peace. lose nothing
The Sheriff's Turn is a court very
goods and chattels are forfeited, but no first it was erected by the Conqueror, stituted, and lands.
and called the King's Bench, appoint- iis jurisdicIf a man kill another by misfortune, ing men studied in the knowledge of Elfelony by mis- as shooting an arrow at a butt or mark, the laws to execute justice, as substitutes to him, in
or casting a stone over a house, or the his name, which men are to be named “ Justiciarii like, this is loss of his goods and chattels, but not of ad placita coram rege assignati :" one of them being his lands nor life.
capitalis justiciarius, called to his fellows; the rest If a horse, or cart, or a beast, or any in numbe as pleaseth the king: of late but three Deodand.
other thing do kill a man, the horse, justiciarii holden by patent. In this court every beast, or other thing is forfeited to the crown, and man above twelve years of age was to take his oath is called a Deodand, and usually granted and allowed of allegiance to the king ; if he were bound, then by the king to the bishop almoner, as goods are of his lord to answer for him. In this court the conthose that kill themselves.
stables were appointed and sworn; breakers of the The cutting out of a man's tongue, peace punished by fine and imprisonment; the parCutting out tongues, and or putting out his eyes maliciously, is ties beaten or hurt recompensed upon complaints of putting out
felony; for which the offender is to suf- damages; all appeals of murder, maim, robbery, eyes, felony.
fer death, and lose his lands and goods. decided; contempts against the crown, public annoyBut for that all punishment is for example's sake, ances against the people, treasons and felonies, and it is good to see the means whereby offenders are all other matters of wrong betwixt party and party drawn to their punishment; and first for matter of for lands and goods. the peace.
But the king seeing the realm grow Court of Mar
daily more and more populous, and shalsea erectThe ancient laws of England, planted here by the that this one court could not despatch risdiction Conqueror, were, that there should be officers of two all, did first ordain that his marshal within 12 sorts in all the parts of this realm to preserve the should keep a court, for controversies chief tunnel, peace:
arising within the verge, which was 1. Constabularii pacis.
within twelve miles of the chiefest tunnel of the 2. Conservatores pacis.
court; which did but ease the King's Bench in The office of the constable was to matters only concerning debts, covenants, and such the constable arrest the parties that he had seen like, of those of the king's household only; never
breaking the peace, or in fury ready to dealing in breaches of the peace, or concerning the break the peace, or was truly informed by others, or crown by any other persons, or any pleas of lands. by their own confession, that they had freshly broken Insomuch as the king, for farther
Sheriff's Turn the peace; which persons he might imprison in the ease, having divided this kingdom into instituted up stocks, or in his own house, as his or their quality counties, and committing the charge of Sion of Eng:
miles of the
The office of
the county court into
taken from the
counties, &c. every county to a lord or earl, did The hundred courts were most of
Hundred Likewise call direct that those earls, within their them granted to religious men, noblesus franci ple limits, should look to the matter of the
men, and others of great place. And whom at first
peace, and take charge of the consta also many men of good quality have
bles, and reform public annoyances, and attained by charter, and some by usage within swear the people to the crown, and take pledges of manors of their own, liberty of keeping law-days, the freemen for their allegiance; for which purpose and to use their justice appertaining to a law-day. the county did once every year keep a court, called Whosoever is lord of the hundred the Sheriff's Turn; at which all the county, except court, is to appoint two high constables Lord of the women, clergy, children under twelve, and aged of the hundred, and also is to appoint appoint two above sixty, did appear to give or renew their pledges in every village a petty constable, with
high constafor allegiance. And the court was called,
a tithing-man to attend in his absence, visus franci plegii,” a view of the pledges of free and to be at his commandment when he is present, men; or “ Turna comitatus."
in all services of his office for his assistance. At which meeting or court there fell, There have been, by use and statute Subdivision of
by occasion of great assemblies, much law, besides surveying of the pledges of they inquire hundreds blood-shed, scarcity of victuals, muti. | freemen, and giving the oath of allegi- of in deets and
law-days nies, and the like mischiefs, which are ance, and making of constables, many incident to the congregations of people, by which additions of powers and authority given to the stew. the king was moved to allow a subdivision of every ards of leets and law-days, to be put in use in their county into hundreds, and every hundred to have a courts ; as for example, they may punish inn-keepcourt, whereunto the people of every hundred shoulders, victuallers, bakers, butchers, poulterers, fishbe assembled twice a year for survey of pledges, and mongers, and tradesmen of all sorts, selling with use of that justice which was formerly executed in under-weights or measures, or at excessive prices, that grand court for the county; and the count or or things unwholesome, or ill made, in deceit of the earl appointed a bailiff under him to keep the hun people. They may punish those that do stop, straiten, dred court.
or annoy the highways, or do not, according to the The charge
But in the end, the kings of this provision enacted, repair or amend them, or divert of the county realm found it necessary to have all water-courses, or destroy fry of fish, or use engines earls, and execution of justice immediately from or nets to take deer, conies, pheasants, or partridges, committed to themselves, by such as
or build pigeon-houses; except he be lord of the the sheriff
bound than earls to that service, and manor, or parson of the church. They may also readily subject to correction for their negligence or take presentment upon oath of the twelve sworn abuse ; and therefore took to themselves the appoint- jury before them of all felonies; but they cannot ing a sheriff yearly in every county, calling them try the malefactors, only they must by indenture de“Vicecomites," and to them directed such writs and liver over those presentments of felony to the judges, precepts for executiry, justice in the county, as fell when they come their circuits into that county. All out needful to have been despatched, committing to those courts before mentioned are in use, and exerthe sheriff custodiam comitatus ; by which the cised as law at this day, concerning the sheriff's lawearls were spared of their toils and labours, and days and leets, and the offices of high constables,
that was laid upon the sheriffs. So as petty constables, and tithing-men; howbeit, with some The sheriff is judge of all now the sheriff doth all the king's further additions by statute laws, laying charge upon hundred
business in the county, and that is now them for taxation for poor, for soldiers, and the like, courts, &c.
called the Sheriff's Turn; that is to and dealing without corruption, and the like. say, he is judge of this grand court for the county, and also of all hundred courts not given away from
Conservators of the peace were
Conservators the crown.
ancient times certain which were as- of the peace
by writ for He hath another court called the signed by the king to see the peace term of life, or County court kept monthly county court, belonging to his office, maintained, and they were called to the alethe king's by the sheriff
. wherein men may sue monthly for any office by the king's writ, to continue for debt or damages under 40s. and may have writs for term of their lives, or at the king's pleasure. to replevy their cattle distrained and impounded by For this service, choice was made of others, and there try the cause of their distress; the best men of calling in the country, and by a writ called justicies, a man may sue for and but few in the shire. They might bind any any sum; and in this court the sheriff by a writ man to keep the peace, and to good behaviour, by called an exigent doth proclaim men sued in courts recognizance to the king with sureties, and they above to render their bodies, or else they be outlawed. might by warrant send for the party, directing their
This sheriff doth serve the king's warrant to the sheriff or constable, as they please, The office of writs of process, be they summons, or to arrest the party and bring him before them. This
attachments, to compel men to answer they used to do, when complaint was made by any to the law, and all writs of execution of the law, that he stood in fear of another, and so took his oath; according to judgments of superior courts for taking or else where the conservator himself did, without of men's goods, lands, or bodies as the cause oath or complaint, see the disposition of any man requireth.
inclined to quarrel and breach of the peace, or to
What their othice was.
of the peace
ed in lieu of conservators.
to the chancellor.
To fine offend-
misbehave himself in some outrageous manner of The justices of peace in their sessions force or fraud: there by his own discretion he might are attended by the constables and bai- Quartie ses, send for such a fellow, and make him find sureties liffs of all hundreds and liberties within the justices of of the peace, or of his good behaviour, as he should the county, and by the sheriff or his see cause; or else commit him to the gaol if he deputy, to be employed as occasion shall serve in refused.
executing the precepts and directions of the court. The judges of either bench in West- | They proceed in this sort : The sheriff doth summon Conservators
minster, barons of the exchequer, master twenty-four freeholders, discreet men of the said by virtue of of the rolls, and justices in eyre and as county, whereof some sixteen are selected and sworn, their office.
sizes in their circuits, were all, without and have their charge to serve as the grand jury ; writ, conservators of the peace in all shires of Eng- the party indicted is to traverse the indictment, or land, and continue to this day.
else to confess it, and so submit himself to be fined But now at this day conservators of as the court shall think meet, regard had to the peace ordain- the peace are out of use, and in lieu of offence, except the punishment be certainly appointed,
them there are ordained justices of peace, as often it is, by special statutes. Power of plac assigned by the king's commissions in The justices of peace are many in the authority ing delegated every county, which are movable at
every county, and to them are brought of justices of the king's pleasure ; but the power of all traitors, felons, and other malefac- of their sesplacing and displacing justices of the peace is by tors of any sort upon their first appre
sions. use delegated from the king to the chancellor. hension ; and that justice to whom they are brought
That there should be justices of peace by com- examineth them, and heareth their accusations, but missions, it was first enacted by a statute made judgeth not upon it; only if he find the suspicion 1 Edw. III. and their authority augmented by many but light, then he taketh bond with sureties of the statutes made since in every king's reign.
accused to appear either at the next assizes, if it be They are appointed to keep four ses a matter of treason or felony ; or else at the quarter sions every year; that is, every quarter sessions, if it be concerning riot or misbehaviour, or
These sessions are a sitting of some other small offence. And he also then bind
the justices to despatch the affairs of eth to appear those that give testimony and proseparty grieved. Par), stat. their commissions. They have power cute the accusation, all the accusers and witnesses, 10. et. v. Dyer to hear and determine, in their sessions, and so setteth the party at large. And at the 69. b. Ils ount all felonies, breaches of the peace, con assizes or sessions, as the case falleth out, he certipoier d'inquier de mur- tempts and trespasses, so far as to fine fieth the recognisances taken of the accused, ac
the offender to the crown, but not to cusers, and witnesses, who being there are called,
award recompence to the party grieved. and appearing, the cause of the accused is debated Authority of
They are to suppress riots and tu- according to law for his clearing or condemning. the justices of mults, to restore possessions forcibly But if the party accused seem, upon pregnant peace, &c.
taken away, to examine all felons ap- matter in the accusation, and to the justice, to be prehended and brought before them ; to see impotent guilty, and the offence heinous, or the offender taken poor people, or maimed soldiers provided for, accord with the mainour, then the justice is to commit the ing to the laws; and rogues, vagabonds, and beg- party by his warrant, called a miltimus, to the gars punished. They are both to license and suppress gaoler of the common gaol of the county, there to ale-houses, badgers of corn and victuals, and to remain until the assizes. And then the justice is punish forestallers, regrators, and ingrossers. to certify his accusation, examination, and recogni
Through these, in effect, run all the county ser sance taken for the appearances and prosecution of vices to the crown, as taxations of subsidies, muster. the witnesses, so as the judges may, when they ing men, arming them, and levying forces, that is come, readily proceed with him as the law requireth. done by a special commission or precept from the The judges of the assizes as they be Judges of asBeating, kill. king. Any of these justices, by oath
now come into the place of the ancient size in place ing, burning taken by a man that he standeth in fear justices in eyre, called "justiciarii itine- judges in eyre,
that another man will beat him, or kill rantes,” which in the prime kings after Tem. R. Il. him, or burn his house, are to send for the party by the conquest, until H. III.'s time especially, and after Attachments
warrant of attachment directed to the in lesser measure even to R. II.'s time, did execute for surety of sheriff or constable, and then to bind the justice of the realm ; they began in this sort.
the party with sureties by recognisance The king, not able to despatch busi- King's bench, to the king to keep the peace, and also to appear at ness in his own person, erected the marshal's the next sessions of the peace; at which next ses court of king's bench. That not able court, sheriff's Recognisance sions, when every justice of the peace to receive all, nor meet to draw the turns, hun
dreds, leets, delivered by
hath therein delivered all their recog- people all to one place, there were and law-days, the justices at nisances so taken, then the parties are ordained counties, and the sheriff's dealt only in their sessions.
called, and the cause of binding to the turns, hundred courts, and particular ters: justices peace examined, and both parties being heard, the leets, and law-days, as before men- in private whole bench is to determine as they see cause, tioned, which dealt only with crown
or goods, and either to continue the party so bound, or else to dis- matters for the public; but not the in all treasons charge him.
private titles of lands, or goods, nor the which the
der car ceo est felon.
of the ancient
of the peace
titles of lands
erected in H. III.'s lime.
county courts trial of grand offences of treasons and took his examination, and bound his accusers and meddled not
felonies. All the counties of the realm witnesses to appear and prosecute at the gaol-de
were divided into six circuits : and two livery. This justice doth certify these examinations learned men, well read in the laws of the realm, and bonds, and thereupon the accuser is called were assigned by the king's commission to every solemnly into the court, and when he appeareth, he circuit, and to ride twice a year through those shires is willed to prepare a bill of indictment against the allotted to that circuit, making proclamation before prisoner, and go with it to the grand jury, and give hand, a convenient time, in every county, of the evidence upon their oaths, he and the witnesses; time of their coming, and place of their sitting, to which he doth: and then the grand jury write the end the people might attend them in every thereupon either “billa vera," and then the prisoner county of that court.
standeth indicted : or else “ignoramus," and then They were to stay three or four days in every he is not touched. The grand jury deliver these county, and in that time all the causes of that bills to the judges in their court, and so many as county were brought before them by the parties they find indorsed " billa vera,” they send for those grieved, and all the prisoners of every gaol in the prisoners; then is every man's indict. The manner of said shire, and whatsoever controversies arising con ment put and read to him, and they ask the proceed. cerning life, lands, or goods.
him, whether he be guilty or not: if he justices of cirThe authority
The authority of these judges in saith, Guilty, his confession is recorded; cuits. of judges in
eyre is in part translated by act of par- if he say, Not guilty, then he is asked how he will ed to justices liament to justices of assize, which be be tried; he answereth, By the country. Then the
now the judges of circuits, and they to sheriff is commanded to return the of the judges use the same course that justices in eyre did, to names of twelve freeholders to the court, for the gaol.
delivery. proclaim their coming every half year, and the place which freeholders be sworn to make of their sitting
true delivery between the king and the prisoner ; The business of the justices in eyre, and then the indictment is again read, and the witJustices of assize much les and of the justices of assize at this day, nesses sworn to speak their knowledge concerning sened by the is much lessened, for that in H. III.'s the fact, and the prisoner is heard at large what court of common pleas, time there was erected the court of defence he can make, and then the jury go together
common pleas at Westminster, in which and consult. And after a while they come in with
court have been ever since, and yet are a verdict of Guilty or Not guilty, which verdict the begun and handled the great suits of lands, debts, judges do record accordingly. If any prisoner benefices, and contracts, fines for assurance of lands, plead Not guilty upon the indictment, and yet will and recoveries, which were wont to be either in the not put himself to trial upon the jury, or stand mute, king's bench, or else before the justices in eyre. he shall be pressed. But the statute of Mag. Chart. cap. 11, is negative The judges, when many prisoners are in the gaol, against it, namely, “ Communia placita non sequan- do in the end before they go peruse every one. tur curiam nostram, sed teneantur in aliquo loco Those that were indicted by the grand jury, and
certo ;” which locus certus must be found Not guilty by the select jury, they judge to Justices of ince the common pleas ; yet the judges of be quitted, and so deliver them out of the gaol. commissions. circuits have now five commissions by Those that are found Guilty by both juries, they which they sit.
judge to death, and command the sheriff to see The first is a commission of oyer and execution done. Those that refuse trial by the Over and terminer, in terminer, directed unto them, and many country, or stand mute upon the indictment, they judges are of
others of the best account, in their cir- judge to be pressed to death. Some whose offences The Quorum, cuits: but in this commission the are pilfering under twelve pence value, they judge
judges of assize are of the Quorum, so to be whipped. Those that confess their indictas without them there can be no proceeding. ments, they judge to death, whipping, or otherwise,
This commission giveth them power to deal with as their offence requireth. And those that are not treasons, murders, and all manner of felonies and indicted at all, but their bill of indictment returned misdemeanors, whatsoever; and this is the largest with "ignoramus” by the grand jury, and all others commission that they have.
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 gaol ; that one way or other they rid the gaol of all
themselves, and the clerk of the assize the prisoners in it. But because some prisoners
associate: and by this commission they have their books, and are burned in the hand, and are to deal with every prisoner in the gaol, for what so delivered, it is necessary to show the reason offence soever he be there, and to proceed with him thereof. This having their books is called their according to the laws of the realm, and the quality clergy, which in ancient time began thus. of his offence; and they cannot by this commission For the scarcity of the clergy in the do any thing concerning any man, but those that are realm of England, to be disposed in
ed, clergy, kc prisoners in the gaol. The course now in use of religious houses, or for priests, deacons, execution of this commission of gaol-delivery, is and clerks of parishes, there was this. There is no prisoner but is committed by allowed to the clergy, that if any man that could read some justice of peace, who before he committed him as a clerk were to be condemned to death, the bishop
and clerk of assize.