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s, ma asures, size 3, or counterfeiting wares, vendible; the office of constable is to h as in him lies, information of them, the offenders, in leets, that they may be ted; but because leets are kept but twice t.e year, and many of those things require ent and speedy remedy, the constable, in

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.

s notorious and of vulgar nature, ought to frbid and repress them in the mean time: if not, Of the Jurisdiction of Justices itinerant in the Prin

they are for their contempt to be fined and imprisoned, or both, by the justices in their sessions. 8. Question. What is their oath ?

cipality of Wales.

1. They have power to hear and determine all criminal causes, which are called, in the laws of

Answer. The manner of the oath they take is England, pleas of the crown; and herein they as followeth:

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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, which 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 all 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.

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 comriting 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 ery, 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 shail endeavour, upon complaint made, to apprehend barreters and riotous persons making affrays, and likewise to apprehend felons; and if any of t make resistance with force, and multitude of misdemeanours, you shall make outery, and pursue them till they be taken; and shall look to such persons as use unlawful games; and you shall have regard unto the maintenance of ailery; 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 blood-persons of the judges at their coming, dispo sheds, outeries, affrays, and rescues made within sitting, and going from their sessions sition. yar fee: and you shall well and truly accord- or court. ing 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. Question. What difference is there betwixt ta high constables and petty constables?

Jwer. Their authority is the same in subo, differing only in the extent; the petty enstable serving only for one town, parish, or hough, 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. Question. Whether a constable may appoint a deputy?

Answer. In case of necessity a constable may

The prothonotary's office is to draw These offices are all pleadings, and entereth and engros- in the king's gift seth all the records and judgments in all 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 These offices

are in the

The crier is, tanquam publicus præco, to call for such persons whose appearances are necessary, and to impose silence to the people.

The office of jus tice of peace.

The Office of Justice of Peace. There is a commission under the great seal of England to certain gentlemen, giving them power to preserve 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 misbeha

viour. The words of their commission are conceived thus: quorum such and such, unum vel duos, &c., 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 burthened peace appiated with that authority,) the statute of 38 H. VIII. hath expressly prohibited that there shall be but eight justices of the peace in every county. These justices hold their sessions quarterly.

Justice of

by the

keeper.

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, shirereeve, or minister of the county: his function or office is twofold, namely,

1. Ministerial.

2. Judicial.

1. He is the minister and executioner

34 H. S. c. 16. of all the process and precepts of the

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 ap pointed 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 death; and to enter the same of record; which person, dying of a violent death, came so to their 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 d: coronatore eligendo: and of whom I need not to write more, because these officers are in use everywhere.

courts of law, and therefore ought to make return General Observations, touching Constables, Jailers, and certificate.

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.

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 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

and Bailiffs.

Forasmuch as every shire is divided into hun dreds, 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 jail or prison appointed for the restraint of liberty of such per sons 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 sheriff; and they are to attend upon the justices in every of their courts and ses

sions.

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.

AN

ACCOUNT OF THE LATELY ERECTED SERVICE,

CALLED THE OFFICE OF

COMPOSITIONS FOR ALIENATIONS.

WRITTEN [ABOUT THE CLOSE OF 1598] BY MR. FRANCIS BACON,

AND PUBLISHED FROM A MS. IN THE INNER-TEMPLE LIBRARY.

The sundry

ALL the finances or revenues of the imperial crown of this realm of England be either extraordinary or ordinary. Those extraordinary be fifteenths and tenths, subsidies, loans, benevolences, aids, and such others of that kind, that have been or shall be invented for supportation of the charges of war; the which, as it is entertained by diet, so can it not be long maintained by the ordinary fiscal and receipt.

Of these that be ordinary, some are certain and standing, as the yearly rents of the demesne or lands; being either of the ancient possessions of the crown, or of the later augmentations of the same.

Likewise the fee-farms reserved upon charters granted to cities and towns corporate, and the blanch rents and lath silver answered by the sheriffs. The residue of these ordinary finances be casual, or uncertain, as be the escheats and forfeitures, the customs, butlerage, and impost, the advantages coming by the jurisdiction of the courts of record and clerks of the market, the temporalities of vacant bishoprics, the profits that grow by the tenures of lands, and such like, if there any be.

The pipe.

And albeit that both the one sort and other of these be at the last brought unto that office of her majesty's exchequer, which we, by a metaphor, do call the pipe, as the civilians do by a like translation mame it fiscus, a basket or bag, because the whole receipt is finally conveyed into it by the means of divers small pipes or quills, as it were water into a great head or cistern; yet, nevertheless, some of the same be first and immediately left in other several places and courts, from whence they are afterwards carried by silver streams, to make up that great lake, or sea, of money.

As for example, the profits of wards and their lands be answered into that court which is pro

The hanaper.

per for them; and the fines for all original writs, and for causes that pass the great seal, were wont to be immediately paid into the hanaper of the chancery; howbeit, now of late years, all the sums which are due, either for any writ of covenant, or of other sort, whereupon a final concord is to be levied in the common bench, or for any writ of entry, whereupon a common recovery is to be suffered there; as also all sums demandable, either for license of alienation to be made of lands holden in chief, or for the pardon of any such alienation, already made without license, together with the mean profits that be forfeited for that offence and trespass, have been stayed in the way to the hanaper, and been let to farm, upon assurance of three hundred pounds of yearly standing profit, to be increased over and above that casual commo- derived out of dity, that was found to be answered in the hanaper for them, in the ten years, one with another, next before the making of the same lease.

This office is

the banaper.

And yet so as that yearly rent of increase is now still paid into the hanaper by four gross portions, not altogether equal, in the four usual open terms of St. Michael, and St. Hilary, of Easter, and the Holy Trinity, even as the former casualty itself was wont to be, in parcel meal, brought in and answered there.

And now forasmuch as the only mat- The name of ter and subject about which this far- the office. mer or his deputies are employed, is to rate or compound the sums of money payable to her majesty, for the alienation of lands that are either made without license, or to be made by license, if they be holden in chief, or to pass for common recovery, or by final concord to be levied, though they be not so holden, their service may therefore very aptly and agreeably be termed the office of compositions for alienations. Whether the ad vancement of her majesty's commodity in this

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The first part

First, that these fines, exacted for such alienations, be not only of the greatest antiquity, but are also good and reasonable in themselves; secondly, that the modern and present exercise of this office is more commendable than was the former usage; and, lastly, that as her majesty hath received great profit thereby, so may she, by a moderate hand, from time to time reap the like, and that without just grief to any of her subjects. As the lands that are to be aliened, of this treatise be either immediately holden in chief, or not so holden of the queen, so be these fines or sums respectively of two sundry sorts; for upon each alienation of lands, immediately held of her majesty in chief, the fine is rated here, either upon the license, before the alienation is made, or else upon the pardon when it is made without license. But generally, for every final concord of lands to be levied upon a writ of covenant, warrantia chartæ, or other writ, upon which it may be orderly levied, the sum is rated here upon the original writ, whether the lands be held of the queen, or of any other person; if at the least the lands be of such value, as they may yield the due fine. And likewise for every writ of entry, whereupon a common recovery is to be suffered, the queen's fine is to be rated there upon the writ original, if the lands comprised therein be held of her by the tenure of her prerogative, that is to say, in chief, or of her royal person.

The king's

tenant in chief alin without

could never

license.

1 E. III.

6. 12.

So that I am hereby enforced, for avoiding of confusion, to speak severally, first of the fines for alienation of lands held in chief, and then of the fines upon the suing forth of writs original. That the king's tenant in chief could not in ancient time alien his tenancy without the king's license, it appeareth by the statute, 1 E. III. cap. 12, where it is thus written: "Whereas divers do complain that the lands holden of the king in chief, and aliened without license, have been seized into the king's hands for such alienation, and holden as forfeit: the king shall not hold them as forfeit in such a case, out granteth that, upon such alienations, there shall be reasonable fines taken in the chancery by due process.

So that it is hereby proved, that before this statute, the offence of such alienation, without license, was taken to be so great, that the tenant tid forfeit the land thereby; and, consequently,

that he found great favour there by this statute, to be reasonably fined for his trespass.

And although we read an opinion 20 lib. Assis. parl. 17, et 26, Assis. parl. 37, which also is repeated by Hankf. 14,H. IV. fol. 3, in which year Magna Charta was confirmed by him, the king's tenant in chief might as freely alien his lands without license, as might the tenant of any other lord; yet, forasmuch as it appeareth not by what statute the law was then changed, I had rather believe, with old Judge Thorpe and late Justice Stanford, that even at the common law, which is as much as to say, as from the beginning of our tenures, or from the beginning of the English monarchy, it was accounted an offence in the king's tenant in chief, to alien without the royal and express license.

And I am sure, that not only upon the entering, or recording, of such a fine for alienation, it is wont to be said pro transgressione in hac parte facta; but that you may also read amongst the records in the Tower, Fines 6 Hen. Reg. 3, Memb. 4, a precedent of a capias in manum regis terras alienatas sine licentia regis, and that, namely, of the manor of Coselescombe in Kent, whereof Robert Cesterton was then the king's tenant in chief. But were it that, as they say, this began first 20 H. III., yet it is above three hundred and sixty years old, and of equal, if not more antiquity than Magna Charta itself, and the rest of our most ancient laws; the which never found assurance by Parliament until the time of King Edward I., who may be therefore worthily calles, our English Solon or Lycurgus.

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Now, therefore, to proceed to the reason and equity of exacting these fines for such alienations, it standeth thus: when the king, whom our law understandeth to have been at the first both the supreme lord of all the persons, and sole owner of all the lands within his dominions, did give lands to any subject to hold them of himself, as of his crown and royal diadem, he vouchsafed that favour upon a chosen and selected man, not minding that any other should, without his privity and good liking, be made owner of the same; and, therefore, his gift has this secret intention enclosed within it, that if his tenant and patentee shall dispose of the same without his kingly assent first obtained, the lands shall revert to the king, or to his successors, that first gave them. And that also was the very cause, as I take it, why they were anciently seized into the king's hands, as forfeited by such alienation, until the making of the said statute, 1 E. III., which did qualify that rigour of the former law.

Neither ought this to seem strange in the case of the king, when every common subject, being lord of lands which another holdeth of him, ought not only to have notice given unto him upon every alienation of his tenant, but shall, by the like im

plied intention, re-have the lands of his tenants dying without heirs, though they were given out never so many years agone, and have passed through the hands of howsoever many and strange possessors.

Not without good warrant, therefore, said Mr. Fitzherbert, in his Nat. Brev. fol. 147, that the justices ought not wittingly to suffer any fine to be levied of lands holden in chief, without the king's license. And as this reason is good and forcible, so is the equity and moderation of the fine itself most open and apparent; for how easy a thing is it to redeem a forfeiture of the whole lands forever with the profits of one year, by the purchase of a pardon? Or otherwise, how tolerable is it to prevent the charge of that pardon, with the only cost of a third part thereof, timely and beforehand bestowed upon a license?

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Touching the king's fines accustomably paid for the purchasing of writs gal original, I find no certain beginning of them, and do therefore think that they also grew up with the chancery, which is the shop wherein they be forged; or, if you will, with the first ordinary jurisdiction and delivery of justice itself. For, when, as the king had erected his courts of ordinary resort, for the help of his subjects in suit one against another, and was at the charge not only to wage justices and their ministers, but also to appoint places and officers for safe custody of the records that concerned not himself; by which means each man might boldly both crave and have law for the present, and find memorials also to maintain his right and recovery, forever after, to the singular benefit of himself and all hts posterity; it was consonant to good reason, that the benefited subject should render some small portion of his gain, as well towards the maintenance of this his own so great commodity, as for the supportation of the king's expense, and the reward of the labour of them that were wholly employed for his profit.

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And therefore it was well said by Littleton, 34 H. VI. fol. 38, that the chancellor of England is not bound to make writs, without his due fee for the writing and seal of them. And that, in this part also, you may have assurance of good antiquity, it is extant among the records in the Tower, 2 H. III. Memb. 6, that Simon Hales and others gave unto him their king, unum palfredum pro summonendo Richardo filio et hærede Willielmi de Hanred, quod teneat finem factum coram justiciariis apud Northampton inter dictum Willielmum et patrem dicti Arnoldi de feodo in Barton. And besides that, in oblatis de Ann. 1, 2, and 7, regis Johannis, fines were diversely paid to the king, upon the purchasing writs of mort d'auncestor, dower, pone, to remove pleas, for inquisitions, trial by juries, writs of sundry summons, and other more. Hereof then it is, that upon every writ pro

VOL. III —41

cured for debt or damage, amounting to forty pounds or more, a noble, that is, six shillings and eight pence, is, and usually hath been paid to fine and so for every hundred marks more a noble; and likewise upon every writ called a præcipe of lands, exceeding the yearly value of forty shillings, a noble is given to a fine; and for every other five marks by year, moreover another noble, as is set forth 20 R. II. abridged both by Justice Fitzherbert and Justice Brooke; and may also appear in the old Natura Brevium, and the Register, which have a proper writ of deceipt, formed upon the case, where a man did, in the name of another, purchase such a writ in the chancery without his knowledge and consent.

20 Rich. II.

And herein the writ of right is excepted, and passeth freely, not for fear of the words Magna Charta, Nulli vendemus justitiam vel rectum, as some do phantasy, but rather because it is rarely brought; and then also bought dearly enough without such a fine, for that the trial may be by battle, to the great hazard of the champion.

The like exemption hath the writ to inquire of a man's death, which also, by the twenty-sixth chapter of that Magna Charta, must be granted freely, and without giving any thing for it; which last I do rather no、e, because it may be well gathered thereby, that even then all those other writs did lawfully answer their due fines; for otherwise the like prohibition would have been published against them, as was in this case of the inquisition itself.

I see no need to maintain the mediocrity and easiness of this last sort of fine, which in lands exceedeth not the tenth part of one year's value, in goods the two hundredth part of the thing that is demanded by the writ.

Right, or

some word of seems to be

the like import,

omitted here.

Neither has this office of ours* originally to meddle with the fines of any other original writs, than of such only as whereupon a fine or concord may be had and levied; which is commonly the writ of covenant, and rarely any other. For we deal not with the fine of the writ of entry of lands holden in chief, as due upon the original writ itself; but only as payable in the nature of a license for the alienation, for which the third part of the yearly rent is answered; as the statute 32 H. VIII. cap. 1, hath specified, giving the direction for it; albeit now lately the writs of entry be made parcel of the parcel ferm also; and therefore I will here close up the first part, and unfold the second.

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