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constable ought, upon such declaration or complaint, Answ. Their authority is the same in substance, to carry him before a justice of peace; and if by differing only in the extent; the petty constable common voice or fame any man be suspected, the serving only for one town, parish, or borough ; the constable of duty ought to arrest him, and bring him head constable for the whole hundred: nor is the before a justice of peace, though there be no other petty constable subordinate to the head constable for accusation or declaration,
any commandment that proceeds from his own au2. If any house be suspected for receiving or har- thority ; but it is used, that the precepts of the jusbouring of any felon, the constable, upon complaint tices be delivered unto the high constables, who or common fame, may search.
being few in number, may better attend the justices, 3. If any fly upon the felony, the constable ought and then the head constables, by virtue thereof, make to raise hue and cry.
their precepts over to the petty constables. 4. And the constable ought to seize his goods, 10. Quest. Whether a constable may appoint a and keep them safe without impairing, and inven- deputy ? tory them in presence of honest neighbours.
Answ. In case of necessity a constable may apThirdly, for matters of common nuisance and griev- point a deputy, or in default thereof, the steward of ances, they are of very variable nature, according to the court-leet may; which deputy ought to be sworn the several comforts which man's life and society before the said steward. requireth, and the contraries which infest the same. The constable's office consists in three things : In all which, be it matter of corrupting air, water,
1. Conservation of the peace. or victuals, stopping, straitening, or endangering of 2. Serving precepts and warrants. passages, or general deceits in weights, measures, 3. Attendance for the execution of statutes. sizes, or counterfeiting wares, and things vendible; the office of constable is to give, as much as in him
Of the Jurisdiction of Justices itinerant in the lies, information of them, and of the offenders, in
Principality of Wales. leets, that they may be presented; but because leets 1. They have power to hear and determine all are kept but twice in the year, and many of those criminal causes, which are called, in the laws of things require present and speedy remedy, the con- England, pleas of the crown; and herein they have stable, in things notorious and of vulgar nature, the same jurisdiction that the justices have in the ought to forbid and repress them in the mean time: court of the king's bench. if not, they are for their contempt to be fined and 2. They have power to hear and determine all imprisoned, or both, by the justices in their sessions. civil causes, which in the laws of England are called 8. Quest. What is their oath ?
common-pleas, and to take knowledge of all fines Answ. The manner of the oath they take is as levied of lands or hereditaments, without suing any followeth :
dedimus potestatem ; and herein they have the same “ You shall swear that you shall well and truly jurisdiction that the justices of the common-pleas do serve the king, and the lord of this law-day; and execute at Westminster. you shall cause the peace of our sovereign lord the 3. They have power also to hear and determine king well and truly to be kept to your power ; and all assizes upon disseisin of lands or hereditaments, you shall arrest all those that you see committing wherein they equal the jurisdiction of the justices of riots, debates, and affrays in breach of peace: and assize. you shall well and truly endeavour yourself to your 4. Justices of oyer and terminer therein may hear best knowledge, that the statute of Winchester for all notable violences and outrages perpetrated within watching, hue and cry, and the statutes made for the their several precincts in the said principality of punishment of sturdy beggars, vagabonds, rogues, Wales. and other idle persons coming within your office be The prothonotary's office is to draw These offices truly executed, and the offenders be punished: and all pleadings, and entereth and engross- are in the you shall endeavour, upon complaint made, to appre-eth all the records and judgments in all king's gilt. hend barreters and riotous persons making affrays, trivial causes. and likewise to apprehend felons; and if any of The clerk of the crown, his office is to draw and them make resistance with force, and multitude of engross all proceedings, arraignments, and judg. misdemeanors, you shall make outcry and pursue
ments in criminal causes. them till they be taken; and shall look unto such The marshal's office is to attend the
These offices persons as use unlawful games; and you shall have persons of the judges at their coming, are in the regard unto the maintenance of artillery; and you sitting, and going from their sessions judges dispa shall well and truly execute all process and precepts or court. sent unto you from the justices of the peace of the The crier is “tanquam publicus præco," to call county: and you shall make good and faithful pre- for such persons whose appearances are necessary, sentments of all bloodsheds, out-cries, affray and and to impose silence to the people. rescues made within your office: and you shall well and truly, according to your own power and know
The Office of Justice of Peace. ledge, do that which belongeth to your office of con There is a commission under the stable to do, for this year to come. So help," &c. great seal of England to certain gentle- justice of
9. Quest. What difference is there betwixt the men, giving them power to preserve high constables and petty constables ?
the peace, and to resist and punish all turbulent
The office of
persons, whose misdemeanors may tend to the dis The jurisdiction of this court is derived from jusquiet of the people; and these be called justices of tice commutative, and is held every month. The the peace, and every of them may well and truly be office of the sheriff is annual, and in the king's gift, called Eirenarcha.
whereof he is to have a patent. The chief of them is called Custos rotulorum, in whose custody all the records of their proceedings
The Office of Escheator. are resident.
Every shire hath an officer called an Escheator, Others there are of that number called justices which is to attend the king's revenue, and to seize of peace and quorum, because in their commission into his Majesty's hands all lands escheated, and they have power to sit and determine causes con- goods or lands forfeited, and therefore is called cerning breach of peace and misbehaviour. The escheator; and he is to inquire by good inquest of words of their commission are conceived thus, Quo- the death of the king's tenant, and to whom the rum, such and such, unum vel duos, etc. esse volu- lands are descended, and to seize their bodies and mus; and without some one or more of the quorum, lands for ward, if they be within age, and is accountno sessions can be holden; and for the avoiding of able for the same; he is named or appointed by the a superfluous number of such justices, (for through lord treasurer of England. the ambition of many it is counted a credit to be burthened with that authority,) the
The Office of Coroner. peace appoint. statute of 38 H. VIII. hath expressly Two other officers there are in every county called edeby the lord prohibited that there shall be but eight Coroners; and by their office they are to inquest in keeper
justices of the peace in every county. what manner, and by whom, every person dying of These justices hold their sessions quarterly. a violent death, came so to their death; and to enter
In every shire where the commission of the peace the same of record; which is matter criminal, and is established, there is a clerk of the peace for the a plea of the crown: and therefore they are called entering and engrossing of all proceedings before coroners, or crowners, as one hath written, because the said justices. And this officer is appointed by their inquiry ought to be in corona populi. the custos rotulorum.
These officers are chosen by the freeholders of the The Office of Sheriffs.
shire, by virtue of a writ out of the chancery de
coronatore eligendo : and of them I need not to write Every shire hath a sheriff, which word, being of more, because these officers are in use every where. the Saxon English, is as much as to say shire-reeve, or minister of the county: his function or office is General Observations touching Constables, Gaolers, twofold, namely,
and Bailiffs. 1. Ministerial.
Forasmuch as every shire is divided into hun2. Judicial.
dreds, there are also by the statute of 34 H. VIII. 1. He is the minister and executioner cap. 26, ordered and appointed, that two sufficient 34 H. 8. cap. 16.
of all the process and precepts of the gentlemen or yeomen shall be appointed constables courts of law, and therefore ought to make return of every hundred. and certificate.
Also there is in every shire a gaol or prison ap2. The sheriff hath authority to hold two several pointed for the restraint of liberty of such persons courts of distinct natures : 1. The Turn, because he as for their offences are thereunto committed, until keepeth his turn and circuit about the shire, holdeth they shall be delivered by course of law. the same court in several places, wherein he doth In every hundred of every shire the sheriff thereof inquire of all offences perpetrated against the com shall nominate sufficient persons to be bailiffs of mon law, and not forbidden by any statute or act of that hundred, and under-ministers of the sheriffs : parliament; and the jurisdiction of this court is de- and they are to attend upon the justices in every of rived from justice distributive, and is for criminal | their courts and sessions. offences, and held twice every year.
2. The County Court, wherein he doth determine Note. Archbishop Sancroft notes on this last all petty and small causes civil under the value of chapter, written, say some, by Sir John Dodderidge, forty shillings, arising within the said county, and one of the justices of the king's bench, 1608. therefore it is called the county court.
ARGUMENT OF SIR FRANCIS BACON, KNIGHT,
HIS MAJESTY'S SOLICITOR GENERAL,
IN THB CASB OF
THE POST-NATI OF SCOTLAND,
IN THE EXCHEQUER CHAMBER,
BEFORE THE LORD CHANCELLOR, AND ALL THE JUDGES OF ENGLAND.
be given ; but have chosen rather to come yourself PLEASE YOUR LORDSHIPS,
to this assembly; all tending, as I said, to this end, This case your lordships do well perceive to be whereunto I for my part do heartily subscribe, ut of exceeding great consequence. For whether you vincat veritas, that truth may first appear, and then do measure that by place, that reacheth not only to prevail. And I do firmly hold, and doubt not but the realm of England, but to the whole island of | I shall well maintain, that this is the truth, that Great Britain ; or whether you measure that by Calvin the plaintiff is ipso jure by the law of Engtime, that extendeth not only to the present time, land a natural-born subject, to purchase freehold, and but much more to future generations,
to bring real actions within England.
In this case Et nati natorum, et qui nascentur ab illis :
I must so consider the time, as I must much more
consider the matter. And therefore, though it may And therefore as that is to receive at the bar a full draw my speech into farther length, yet I dare not and free debate, so I doubt not but that shall receive handle a case of this nature confusedly, but purpose from your lordships a sound and just resolution ac to observe the ancient and exact form of pleadings; cording to law, and according to truth. For, my which is, lords, though he were thought to have said well, First, to explain or induce. that said that for his word, Rex fortissimus ; yet Then, to confute, or answer objections. he was thought to have said better, even in the And lastly, to prove or confirm. opinion of the king himself, that said, Veritas fortissima, et prævalet : And I do much rejoice to ob And first, for explanation.
The outward quesserve such a concurrence in the whole carriage of tion in this case is no more, but, Whether a child, this cause to this end, that truth may prevail. born in Scotland since his Majesty's happy coming
The case no feigned or framed case; but a true to the crown of England, be naturalized in England, case between true parties.
or no ? But the inward question or state of the The title handled formerly in some of the king's question evermore beginneth where that which is courts, and freehold upon it; used indeed by his confessed on both sides doth leave. Majesty in his high wisdom to give an end to this It is confessed, that if these two realms of Enggreat question, but not raised; occasio, as the school. land and Scotland were united under one law and men say, arrepta, non porrecta.
one parliament, and thereby incorporated and made The case argued in the king's bench by Mr. as one kingdom, that the Post-natus of such an Walter with great liberty, and yet with good appro- union should be naturalized. bation of the court: the persons assigned to be of It is confessed, that both realms are united in the counsel on that side, inferior to none of their quality person of our sovereign; or, because I will gain and degree in learning; and some of them most con- nothing by surreption, in the putting of the quesversant and exercised in the question.
tion, that one and the same natural person is king The judges in the king's bench have adjourned of both realms. it to this place for conference with the rest of their It is confessed, that the laws and parliaments are brethren. Your lordship, my lord chancellor, though several. So then, Whether this privilege and beneyou be absolute judge in the court where you sit, fit of naturalization be an accessory or dependency and might have called to you such assistance of upon that which is one and joint, or upon that which judges as to you had seemed good ; yet would not is several, hath been and must be the depth of this forerun or lead in this case by any opinion there to question. And therefore your lordships do see the
state of this question doth evidently lead me by way to dissolve the kingdom, and to establish another of inducement to speak of three things : The king, form of estate, answered, “Sir, begin to do that the law, and the privilege of naturalization. For if which you advise first at home in your own house :" you well understand the nature of the two principals, noting, that the chief of a family is as a king; and and again the nature of the accessory; then shall that those that can least endure kings abroad, can you discern, to whether principal the accessory doth be content to be kings at home. And this is the properly refer, as a shadow to a body, or iron to an first platform, which we see is merely natural. adamant.
The second is that of a shepherd and his flock, And therefore your lordships will give me leave, which, Xenophon saith, Cyrus had ever in his mouth. in a case of this quality, first to visit and open the For shepherds are not owners of the sheep; but foundations and fountains of reason, and not begin their office is to feed and govern: no more are kings with the positions and eruditions of a municipal law; proprietaries or owners of the people ; for God is for so was that done in the great case of mines; and sole owner of people. “ The nations," as the Scripso ought that to be done in all cases of like nature. ture saith, "are his inheritance:" but the office of And this doth not at all detract from the sufficiency of kings is to govern, maintain, and protect people. our laws, as incompetent to decide their own cases, And that is not without a mystery, that the first king but rather addeth a dignity unto them, when their that was instituted by God, David, for Saul was but reason appearing as well as their authority doth an untimely fruit, was translated from a shepherd, show them to be as fine moneys, which are current as you have it in Psalm lxxviii. "Et elegit David, not only by the stamp, because they are so received, servum suum, de gregibus ovium sustulit eum,but by the natural metal, that is, the reason and wis- pascere Jacob servum suum, et Israel hæreditatem dom of them.
suam.' This is the second platform a work likeAnd master Littleton himself in his whole book wise of nature. doth commend but two things to the professors of The third platform is the government of God himthe law by the name of his sons; the one, the in. self over the world, whereof lawful monarchies are quiring and searching out the reasons of the law ; a shadow. And therefore both amongst the heaand the other, the observing of the forms of plead- then, and amongst the christians, the word, sacred, ings. And never was there any case that came in hath been attributed unto kings, because of the conjudgment that required more, that Littleton's advice formity of a monarchy with the Divine Majesty : should be followed in those two points, than doth never to a senate or people. And so you find it the present case in question. And first of the twice in the lord Coke's Reports; once in the second king.
book, the bishop of Winchester's case ;' and his It is evident that all other commonwealths, mon fifth book, Cawdrie's case; and more anciently in archies only excepted, do subsist by a law precedent. the 10 of H. VII. fol. 18, “Rex est persona mixta For where authority is divided amongst many cum sacerdote ;” an attribute which the senate of officers, and they not perpetual, but annual or tem-' Venice, or a canton of Swisses, can never challenge. porary, and not to receive their authority but by So, we see, there be precedents or platforms of monelection, and certain persons to have voice only to archies, both in nature, and above nature; even that election, and the like; these are busy and from the Monarch of heaven and earth to the king, curious frames, which of necessity do pre-suppose a if you will, in a hive of bees. And therefore other law precedent, written or unwritten, to guide and states are the creatures of law; and this state only direct them: but in monarchies, especially hereditary, subsisteth by nature. that is, when several families, or lineages of people, For the original submissions, they are four in do submit themselves to one line, imperial or royal, number: I will briefly touch them: The first is the submission is more natural and simple, which paternity or patriarchy, which is when a family afterwards by laws subsequent is perfected and made growing so great as it could not contain itself within more formal; but that is grounded upon nature. one habitation, some branches of the descendants That this is so, it appeareth notably in two things; were forced to plant themselves into new families, the one the platforms and patterns, which are found which second families could not by a natural instinct in nature of monarchies; the original submissions, and inclination but bear a reverence, and yield an and their motives and occasions. The platforms are obeisance to the eldest line of the ancient family three:
from which they were derived. The first is that of a father, or chief of a family; The second is, the admiration of virtue, or gratiwho governing over his wife by prerogative of sex, tude towards merit, which is likewise naturally inover his children by prerogative of age, and because fused into all men. Of this Aristotle putteth the he is author unto them of being, and over his ser case well, when it was the fortune of some one man, vants by prerogative of virtue and providence, (for either to invent some arts of excellent use towards he that is able of body, and improvident of mind, is man's life, or to congregate people, that dwelt scatnatura servus,) that is the very model of a king. tered, into one place, where they might cohabit with So is the opinion of Aristotle, lib. iii. Pol. cap. 14, more comfort, or to guide them from a more barren where he saith, “ Verum autem regnum est, cum land to a more fruitful, or the like; upon these de- . penes unum est rerum summa potestas : quod reg- serts, and the admiration and recompence of them, num procurationem familiæ imitatur.”
people subinitted themselves. And therefore Lycurgus, when one counselled him The third, which was the most usual of all, was
conduct in war, which even in nature induceth as herit them by testament at pleasure, and the like. great an obligation as paternity. For as men owe Yet no man will affirm, that the obedience of the their life and being to their parents in regard of child is by law, though laws in some points do generation, so they owe that also to saviours in the make it more positive: and even so it is of allewars in regard of preservation. And therefore we giance of subjects to hereditary monarchs, which is find in chap. xviii. of the book of Judges, ver. 22, corroborated and confirmed by law, but is the work “ Dixerunt omnes viri ad Gideon, Dominare nostri, of the law of nature. And therefore you shall find tu et filii tui, quoniam servasti nos de manu Madian.” | the observation true, and almost general in all states, And so we read when it was brought to the ears of that their lawgivers were long after their first Saul, that the people sung in the streets, "Saul hath kings, who governed for a time by natural equity killed his thousand, and David his ten thousand” of without law : so was Theseus long before Solon in enemies, he said straightways: “ Quid ei superest Athens : so was Eurytion and Sous long before nisi ipsum regnum ?” For whosoever hath the mili- Lycurgus in Sparta : so was Romulus long before tary dependence, wants little of being king.
the Decemviri. And even amongst ourselves there The fourth is an enforced submission, which were more ancient kings of the Saxons; and yet is conquest, whereof it seemed Nimrod was the the laws ran under the name of Edgar's laws. And first precedent, of whom it is said : “ Ipse cæpit in the refounding of the kingdom in the person of potens esse in terra, et erat robustus venator coram William the Conqueror, when the laws were in Domino." And this likewise is upon
some confusion for a time, a man may truly say, root, which is the saving or gift as it were of life that king Edward I. was the first lawgiver, who and being; for the conqueror hath power of life enacting some laws, and collecting others, brought and death oveté his captives; and therefore where he the law to some perfection. And therefore I will giveth them themselves, he may reserve upon such conclude this point with the style which divers acts a gift what service and subjection he will. All of parliaments do give unto the king: which term these four submissions are evident to be natural and him very effectually and truly,“ our natural sovereign more ancient than law.
liege lord.” And as it was said by a principal To speak therefore of law, which is the second judge here present when he served in another place, part of that which is to be spoken of by way of and question was moved by some occasion of the inducement. Law no doubt is the great organ by title of Bullein's lands, that he would never allow which the sovereign power doth move, and may be that queen Elizabeth (I remember it for the efficacy truly compared to the sinews in a natural body, as of the phrase) should be a statute queen, but a comthe sovereignty may be compared to the spirits : mon-law queen: so surely I shall hardly consent for if the sinews be without the spirits, they are that the king shall be esteemed or called only our dead and without motion ; if the spirits move in weak rightful sovereign, or our lawful sovereign, but our sinews, it causeth trembling : so the laws, without natural liege sovereign; as acts of parliament the king's power, are dead; the king's power, speak: for as the common law is more worthy than except the laws be corroborated, will never move the statute law; so the law of nature is more worthy constantly, but be full of staggering and trepidation. than them both. Having spoken now of the king But towards the king himself the law doth a double and the law, it remaineth to speak of the privilege office or operation : the first is to entitle the king, and benefit of naturalization itself; and that accordor design him: and in that sense Bracton saith well, ing to the rules of the law of England. lib, 1, fol. 5, and lib. 3, fol. 107. “Lex facit quod Naturalization is best discerned in the degrees ipse sit Rex;" that is, it defines his title ; as in whereby the law doth mount and ascend thereunto. our law, That the kingdom shall go to the issue For it seemeth admirable unto me, to consider with female; that it shall not be departable amongst what a measured hand and with how true proportions daughters; that the half-blood shall be respected, our law doth impart and confer the several degrees and other points differing from the rules of common of this benefit. The degrees are four. inheritance. The second is that whereof we need The first degree of persons, as to this purpose, not fear to speak in good and happy times, such as that the law takes knowledge of, is an alien enemy; these are, to make the ordinary power of the king that is, such a one as is born under the obeisance of more definite or regular: for it was well said by a a prince or state that is in hostility with the king of father, “
plenitudo potestatis est plenitudo tempes- England. To this person the law giveth no benefit tatis.” And although the king, in his person, be or protection at all, but if he come into the realm solutus legibus, yet his acts and grants are limited after war proclaimed, or war in fact, he comes at his by law, and we argue them every day.
own peril, he may be used as an enemy: for the law But I demand, Do these offices or operations of accounts of him but, as the Scripture saith, as of a law evacuate or frustrate the original submission, spy that comes to see the weakness of the land. which was natural ? Or shall it be said that all And so it is in 2 Ric. III. fol. 2. Nevertheless this allegiance is by law ? No more than it can be said, admitteth a distinction. For if he come with safethat potestas patris, the power of the father over conduct, otherwise it is : for then he may not be the child, is by law; and yet no doubt laws do di- violated, either in person or goods. But yet he versely define of that also ; the law of some nations must fetch his justice at the fountain-head, for none having given fathers power to put their children to of the conduit-pipes are open to him ; he can have death; others, to sell them thrice; others, to disin no remedy in any of the king's courts; but he must