pety Constable is over the Towne or Village 2. The other is the Court Leete unto which the Constable is a proper attendant and minister for there the Constables are chosen by the Jury there they are sworne and there that part of their Office which concerneth information is principally to be performed for the Jury is to present offences and the offenders are chiefly to take light from the Constables of all matters of disturbance and nusance of the people which they in respect of their Office are presumed to have best and most particular knowledge of CHAP. XX Three ends of the Institution of the Court Leete 1. THe first end of the institution of the Court Leet is To take the oath of Allegeance of all males above the age of twelve yeers 2. The second To enquire of all offences against the peace and for those that are against the Crowne and Peace both to enquire of onely and certifie to the Justices of Gaole delivery but those that are against the peace simply they are to enquire and punish 3. The third is To enquire of punish and remove all publick nusances and grievances concerning infection of Ayre corruption of victuals ease of chaffer and contract of all other things that may hurt or grieve the people in generall in their health quiet and welfare And to these three ends as matters of policie subordinate the Court Leet hath power to call upon the pledges that are to bee taken for the good behaviour of the resiants that are not tenants and to enquire of all defaults of Officers as Constables Ale-tasters c. and for choyce of Constables as aforesaid The jurisdiction of these Leets is ever remaining in the King and in that case exercised by the Sheriffe in his turne which is the grand Leete granted over to subjects but yet it is still the Kings Court 2. To the second as was said The election of the pety Constable is at the Court Leet by the Inquest that makes the presentments the election of the head Constables is by the Justices of the peace at their quarter Sessions 3. To the third The Office is annuall except they be removed 4. To the fourth They bee men as it is now used of inferiour yea of base condition which is a meere abuse or degenerating from the first institution for the pety Constables in Townes ought to be of the better sort of resiants in the said Towne save that they ought not to bee aged or sickly but men of able bodies in respect of the keeping watch and toyle of their place neither ought they to be in any mans livery And the high Constables ought to bee of the ablest sort of free-holders and of the substantial'st sort of Yeomen next to the degree of Gentlemen but they ought to bee such as are not incumbred with any other Office as Maior Undersheriffe Bailiffe c. 5. To the fifth They have no allowance but are bound by dutie to performe their Offices gratis which may the rather be endured because it is but annuall and they are not tyed to keep or maintaine any servants or under-ministers for that every one of the Kings people are bound to assist them 6. To the sixth Upon complaint made of his refusall to any one Justice of peace the said Justice may binde him over to the Sessions where if hee cannot excuse himselfe by some just allegation hee may bee fined and imprisoned for his contempt 7. To the seventh The authority of Constables as it is substantive and of it selfe or substituted and astricted to the warrants and commands of the Justices of peace so again it is originall or additionall for either it was given them by the common Law or else annexed by divers statutes And as for subordinate power wherein the Constable is onely to execute the commandements of the Justices of peace and likewise the additionall power which is given by divers Statutes it is hard to comprehend them in any brevitie For that they doe correspond to the Office and Authority of the Justices of peace which is very large and are created by the branches of severall Statutes which are things of divers and dispersed natures But for the originall and substantive power of a Constable it may be reduced to three heads 1. For matter of peace onely 2. For matter of peace and the Crowne 3. For matter of nusance disturbance and disorder although they bee not accompanyed with violence and breach of peace For pacifying of quarrels begunne the Constables may upon hot words given or likelihood of breach of peace to ensue command them in the Kings name to keep the peace and depart and forbeare And so hee may where an affray is made part the same and keepe the parties asunder and arrest and commit the breakers of the peace if they will not obey and call power to assist him for the same purpose For punishment of breach of peace past the law is very sparing in giving any authority to Constables because hee hath no power judiciall and the use of his Office is rather for preventing or staying of mischiefe then for punishing of offences for in that part hee is rather to execute the Warrants of the Justices or when sudden matter ariseth upon his view or notorious circumstances to apprehend offenders and carry them before the Justice of peace and generally to imprison in like cases of necessity where the case will not endure the present carrying before the Justices And thus much for the matters of peace For matters of the Crowne the Office of the Constable consisteth chiefly in foure parts 1. The first is Arrest 2. The second is Search 3. The third is Huy and Cry 4. And the fourth is Seizure of Goods All which the Constable may performe of his owne authority without any warrant of the Justices of peace 1. For first If any man will lay murder or felony to anothers charge or doe suspect him of murder or felony hee may declare it to the Constable and the Constable ought upon such declaration or complaint carry him before a Justice and if by common voyce or fame any man bee suspected the Constable of duty ought to arrest him and bring him before a Justice though there be no other accusation 2. If any house bee suspected for the receiving or harbouring of any felon the Constable upon complaint or common fame may search 3. If any flye upon the felony the Constable ought to raise Huy and Crie and search his goods and keepe them safe without impairing and to inventary them in the presence of honest neighbours 4. For matters of common nuzance and grievance they are of a very variable nature according to the severall comforts which mans life and society requireth and the contraries which infest the same In all which bee it matter of corrupting ayre water or victuals or stopping straightning or indangering passage or generall deceipts in weights measures sizes or counterfeiting wares and things vendible
the Office of the Constable is to give as much as in him lies information of them and of the offendors in Leets that they may bee presented But because Leets are kept but twice in the yeere and many of these things require present or speedy remedy the Constable in things of notorious and vulgar nature ought to forbid and represse them in the meane time 8. To the eighth They are for their contempt to bee fined and imprisoned by the Justices in their Sessions 9. To the ninth The Oath they take is in this manner You shall sweare that you shall well and truely serve the King and the Lord of this Law-day and you shall cause the peace of our Lord the King to bee well and duely kept to your power And you shall arrest all those that you see committing riots debates and affrayes in breach of peace And you shall well and duely endeavour your selfe to your best knowledge that the Statutes of Winchester for Watch Huy and Cry and the Statutes made for the punishment of sturdy beggars vagabonds rogues and other idle persons coming within your Office bee truly executed and the offenders punished And you shall endevour upon complaint made to apprehend barreters and riotous persons making affraies and likewise to apprehend Felons and if any of them make resistance with force and multitude of mis-doers you shall make out-cry and pursue them till they bee taken and shall looke unto such persons as use unlawfull games and you shall have regard unto the maintenance of Artilery and you shall well and duely execute all processe and precepts sent unto you from the Justices of peace of the County and you shall make good and faithfull presentments of all bloudsheds out-cries affraies and rescues made within your Office and you shall well and duely according to your power and knowledge do that which belongeth to your Office of Constable to doe for this yeere to come So help c. 10. To the tenth The authority is the same in substance differing only in extent The pety Constable serving onely for one Towne Parish or Borough the head Constable serving for the whole Hundred Neither is the pety Constable subordinate to the head Constable for any commandement that proceeds from his owne authority but it is used that the precepts of the Justices bee delivered unto the high Constables who being few in number may better attend the Justices and then the head Constables by vertue thereof make their precepts over to the pety Constables 11. To the eleventh In case of necessity he may appoint a deputy or in default thereof the Steward of the Court Leet may which deputy ought to bee sworne Now to conclude the Office of Constables consists wholly in these three things viz. Their Office concerning 1. The conservation of the peace 2. The serving the Precepts and Warrants of the Justices 3. Their attendance for the execution of Statutes CHAP. XXI Of the jurisdiction of Iustices itinerantos in the Principality of Wales THese Justices have power to heare and determine all criminall causes which are called in the Lawes of England the Pleas of the Crowne and herein they have the same jurisdiction that the Justices have in his Majesties Bench commonly called the Kings Bench They have jurisdiction to heare and determine all civill causes which are called in the Lawes of England Common Pleas and doe take knowledgement of all fines levyed of lands or hereditaments without suing out any Dedimus potestatem and herein they have the same jurisdiction that the Justices of the common Pleas doe execute at Westminster Also they may heare and determine all Assises upon disseisines of lands or hereditaments wherein they equall the jurisdiction of the Justices of Assise Justices of Oyer Terminer may heare and determine all notable violences and outrages perpetrated or done within their severall precincts of the Principalitie of Wales The Prothonotary his Office is to draw all pleadings and to enter and engrosse all Records and Judgements in civill causes The Clerk of the Crowne his Office is to draw and engrosse all proceedings arraignements and judgements in criminall causes The Marshall whose Office is to attend the persons of the Judges at their comming sitting and going from the Sessions or Court The Crier hee is tanquam publicus Praeco to call forth such persons whose appearances are necessary and to impose silence to the people There is a Commission under the great Seale of England to certaine 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 bee called the Justices of peace and every of them may well and truly be called and termed Eirenarcha The chiefe 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 c. esse volumus and without some one or more of them of the Quorum no Sessions can bee holden And for the avoyding of a superfluous number of such Justices for through the ambition of many it is counted a credit to be burthened with that authority the Statute of 38. H. 8. hath expressely prohibited that there shall bee but eight Justices of Peace in every County These Justices doe hold their Sessions quarterly In every Shire where the Commission of the peace is established there is a Clerk of the peace for the entring and engrossing of all proceedings before the said Justices And this Officer is appointed by the Custos Rotulorum Every Shire hath its Sheriffe which word being of the Saxon English is as much to say as Shire Reeve or Minister of the County His Function of Office is twofold 1. Ministeriall 2. Judiciall As touching his ministeriall Office hee is the minister and executioner of all the processe and precepts of the Courts of Law and thereof ought to make returne and certificate As touching his Judiciall Office hee hath authority to hold two severall Courts of distinct natures The one called the Tourne because he keepeth his turne and circuit about the Shire and holdeth the same Court in severall places wherein he doth enquire 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 criminall offences and it held twice every yeere The other is called the County Court wherein hee doth determine all petie and small causes civill under 40.5 arising within the said County and thereof it is called the County Court The jurisdiction of this Court is derived from Justice Commutative and is held every moneth The Office of the Sheriffe is annuall and in the Kings gift whereof he is to have a Patent Every Shire hath an Officer called an Escheator which is an Office to attend the Kings Revenue and to seize into his Majesties hands all lands either escheated goods or lands forfeited and therefore is called Escheator And hee is to enquire by good enquest of the death of the Kings Tenants and to whom their lands are descended and to seize their bodies and lands for Ward if they bee within age and is accomptable for the same and this Officer is named by the Lord Treasurer of England There are in every Shire two other Officers called Crowners or Coroners they are to enquire by inquest in what manner and by whom every person dyeth of a violent death and to enter the same of Record which is matter criminall and a plea of the Crowne and therefore they are called Corones or Crowners as one hath written because their enquiry ought to be publick in Corona populi These Officers are chosen by the freeholders of the Shire by vertue of a writ out of the Chancery De Coronatore elegendo and of them I neede not to speake more because these Officers are in use elsewhere Forasmuch as every Shire is divided into Hundreds it is also by the said Statute of 34. H. 8. cap. 26. ordered that two sufficient Gentlemen or Yeomen shall bee appointed Constables of every Hundred Also there is in every Shire one Gaole or Prison appointed for the restraint of liberty of such persons as for their offences are thereunto committed untill they shall be delivered by course of law In every Hundred of every Shire the Sheriffe thereof shall nominate sufficient persons to be Bailiffes of that Hundred and Underministers of the Sheriffe and they are to attend upon the Justices in every of their Courts and Sessions FINIS Kings Bench Common Pleas Just of Assise In the Kings gift 〈◊〉 the disposing of the â—udge â—â—ese Justices â—â—â—ointed by L. Keeper 34. H. 8. cap. 16. 〈…〉 H. 8.20 Constables of the Hundred Gaolers Office
cannot In felony there followeth corruption of bloud except it bee in cases made felony by speciall Statutes with a proviso that there shall be no corruption of bloud In felony lands in fee simple and goods and chattels are forfeited and the profits of estates for life are likewise forfeited but not lands intailed And by some customes lands in fee simple are not so forfeited The Father to the bough The Sonne to the Plough as in Gavel-kinde in Kent and other places In felony the Escheats goe to the Lord of the Fee and not to the King except hee be Lord But profits for the estates for lives or in taile during the life of tenant in taile goe to the King And the King hath likewise annum diem vastum In felony lands are not in the King before Office nor in the Lord before entrie or recovery in a writ of Escheate or death of the party attainted In felony there can bee no proceeding with the accessary before there bee a proceeding with the principall If hee die or plead his pardon or have his Clergie before attainder the accessary can never be dealt with In felony if the party stand mute and will not put himself upon tryall or challenge peremptorily above that the law allowes hee shall have judgement not of hanging but of penance of pressing to death but there he saves his lands and forfeits only his goods In felony at the common law the benefit of Clergie or Sanctuary was allowed but now by Stat. it is taken away in most cases In felony baile may be admitted where the fact is not notorious and the person not of ill name In felony no Councell is to bee allowed to the party no more then in treason In felony if the fact bee committed beyond the Seas or upon the Seas super altum mare there is no tryall at all in one case nor by course of Jury in the other but by the Jurisdiction of the Admiralty In felony no witnesse shall bee received upon oath for the parties Justification no more then in treason In felony if the party bee non sonae memoria although it bee after the fact hee cannot be tryed nor adjudged except it be in course of Outlawry and that is also erroneous In felony the death of the party before conviction dischargeth all proceedings and forfeitures In felony if the party bee once acquit or in perill of Judgement of life lawfully hee shall never be brought in question againe for the same fact In felony the prosecution may bee either at the Kings suit or by way of appeale the defendant shall have his course and produce witnesses upon oath as in civill causes In felony the King may grant hault justice to a subject with the Regality of power to pardon it In felony the tryall of Peeres is all one as in case of treason In felony the proceedings are in the Kings Bench or before Commissioners of Oyer and Terminer or of Gaol delivery and in some case before Justices of the Peace CHAP. IX Cases of Felony de se with the punishment triall and proceedings IN the civill law and other lawes they make a difference of cases of felony de se for where a man is called in question upon any capitall crime and killeth himselfe to prevent the law there they give the judgement in all points of forfeiture as if they had beene attainted in their life time And on the other side where a man killeth himselfe upon impatience of sicknesse or the like they doe not punish it at all but the law of England taketh it all in one degree and punisheth onely with losse of goods to bee forfeited to the King who generally grants them to his Almoner where they bee not formerly granted unto speciall liberties CHAP. X. Cases of Premunire WHere a man purchaseth or accepteth any provision that is collation of any spirituall benefice or living from the Sea of Rome it is Premunire Where a man shall purchase any proces to draw any people of the Kings allegeance out of the Realme in plea whereof the cognizance pertaines to the Kings Court and commeth not in person to answer his contempt in that behalfe before the King and his Councell or in his Chancery it is Premunire VVhere a man doth sue in any Court which is not the Kings Court to defeate or impeach any judgement given in the Kings Court and doth not appeare to answer his contempt it is Premunire VVhere a man doth purchase or pursue in the Court of Rome or elsewhere any processe sentence of excommunication bull or instrument or other thing which toucheth the King in his Regality or his Realme in prejudice it is Premunire VVhere a man doth affirme or maintaine any forraigne kinde of Jurisdiction spirituall or doth put in ure or execution any thing for the advancement or setting forth thereof such offence the second time committed is Premunire VVhere a man refuseth to take the oath of Supremacy being tendred by the Bishop of the Diocesse if it bee an Ecclesiasticall person or by a Commission out of the Chancery if it bee a temporall person it is Premunire VVhere a Deane and Chapter of any Church upon the Conge de Lier of an Archbishop or Bishop doth refuse to elect any such Archbishop or Bishop as is nominated unto them in the Kings Letters missive it is Premunire Where a man doth contribute or give reliefe to any Jesuite or Seminary Priests or to any person brought up therein and called home and not returning it is case of Premunire Where a man is a Broker of an usurious contract above ten in the hundred it is Premunire CHAP. XI The punishment triall and proceeding in cases of Premunire THe punishment is by imprisonment during life forfeiture of goods forfeiture of lands in fee simple and forfeiture of the profits of lands intailed or for life The triall and proceeding is as in cases of misprision of Treason and the tryall is by Peers where a Peer of the Realme is the offender Striking any man in the face of the Kings Courts is forfeiture of lands perpetuall imprisonment and losse of that hand CHAP. XII Cases of Abjuration and Exile and the proceedings therein WHere a man committeth any felony for the which at this day hee may have priviledge of Sanctuary and confesseth the felony before the Coroner he shall abjure the liberty of the Realme and chuse his Sanctuary and if hee commit any new offence or leave his Sanctuary hee shall lose the priviledge thereof and suffer as if hee had not taken Sanctuary Where a man not coming to the Church and being a Popish Recusant doth perswade any the Kings subjects to impugne his Majesties Authority in causes Ecclesiasticall or shall perswade any subject to come to any unlawfull conventicles and shall not after conforme himselfe within a time and make his submission hee shall abjure the Realme and forfeit his goods and lands during life and if hee depart
not within the time prefixed or returne hee shall bee in the degree of a Felon Where a man being a Popish Recusant and not having lands to the value of 20. Marks per annum nor goods to the value of 40. l. shall not repaire to his dwelling or place where hee was borne and there confine himselfe within the compasse of five miles hee shall abjure the Realme and if he returne he shall be in case of a Felon Where a man kils the Kings Deere in Chases or Forrests and can finde no sureties after a yeeres imprisonment he shall abjure the Realme Where a man is a trespasser in Parkes or in Ponds of fish and after three yeeres imprisonment cannot finde sureties hee shall abjure the Realme Where a man is a Ravisher of any childe whose marriage belongs to any person and marrieth the said childe after yeeres of consent and is not able to satisfie for the marriage hee shall abjure the Realme CHAP. XIII Cases of Heresie and the triall and proceedings therein THe declaration of Heresie and likewise the proceedings and judgement upon Hereticks is by the common lawes of this Realme referred to the Jurisdiction ecclesiasticall and the secular arme is reached to them by the common Lawes and not by any Statute for the execution of them by the Kings writ de Haeretico comburendo CHAP. XIIII The Kings Prerogative in Parliament THe King hath an absolute negative voyce to all Bils that passe the Parliament so as without his royall assent they have a meere nullity and not so much as Authoritas praescripta or Senatus consulta had notwithstanding the intercession of Tribunes The King may summon Parliaments dissolve them prorogue them and adjourne them at his pleasure The King may add voyces in the Parliament at his pleasure for hee may give priviledge to Borough Townes as many as hee will and may likewise call and create Barons at his pleasure No man can sit in Parliament except hee take the oath of Allegeance CHAP. XV The Kings Prerogative in matters of Warre or Peace THe King hath power to declare and proclaime warre and to make and conclude peace and truce at his pleasure The King hath power to make leagues and confederacies with forraigne States more straight and lesse straight and to revoke and disannull them at his pleasure The King hath power to command the bodies of his Subjects for the service of his warres and to muster traine and levie men and to transport them by sea or land at his pleasure The King hath power in time of warre to execute Marshall Law and to appoint all Officers of warre at his pleasure The King hath power to grant his Letters of Mart and reprisall for remedy to his Subjects upon forraigne wrongs at his pleasure The King hath power to declare Lawes by his Letters Patents for the government of any place conquered by his Armes at his pleasure The King may give Knight-hood and thereby enable any subject to performe Knights service at his pleasure CHAP. XVI The Kings Prerogative in matters of moneys THe King may alter his standard in basenesse or finenesse of his coyne at his pleasure The King may alter his stampe in forme at his pleasure The King may alter the valuations of his coyne and raise and fall moneys at his pleasure The King by his Proclamation may make moneyes of his owne currant or not currant at his pleasure The King may take or refuse the Subjects bullion and coyne more or lesse money The King by his Proclamation may make forreigne money currant or not currant CHAP. XVII The Kings Prerogative in matters of Trade and Traffick THE King may constraine the person of any of his subjects not to goe out of the Realme at all The King may restrain any of his subjects to goe out of the Realme into any speciall part forreigne The King may forbid the exportation of any commodities out of the Realme The King may forbid the importation of any commodities into the Realme The King may set a reasonable Impost upon any forreigne wares that come into the Realme and so of native wares that goe out of the Realme CHAP. XVIII The Kings Prerogative in the persons of his Subjects THe King may create any Corporation or Bodie politick and enable them to purchase and grant and to sue and bee sued and that with such restrictions and modifications as he pleases The King may denizen and enable any forreigner for him and his descendents after the Charter though hee cannot naturalize nor enable him to make pedegree from Ancestors Paramount The King may enable any attainted person by his Charter of pardon to purchase and to purge his bloud for the time to come though hee cannot restore his bloud for the time past The King may enable any dead person in law as men professed to take and purchase to the Kings benefit CHAP. XIX An Answer to the Question proposed by Sir Alexander Hay Knight touching the Office of Constables 1. TO the first Of the originall of the Authority of Constables it may bee said Caput inter nubila condit for the Authoritie was granted upon the ancient Lawes and Customes of this Kingdome practised long before the Conquest and intended and instituted for the conservation of the peace and repressing of all manner of disturbance and hurt of the people and that as well by way of prevention as punishment but yet so as they have no judiciall power to heare and determine any cause but onely a ministeriall power as in the answer of the seventh Article more at large is set downe As for the Office of the High Constable the originall of that is yet more obscure for though the High Constables Authority hath the more ample circuit hee being over the Hundred and the petie Constable over the Village yet I doe not finde that the petie Constable is subordinate to the High Constable or to bee ordered or commanded by him and therefore I doubt the High Constable was not ab origine but that when the businesse of the Country increased the authority of the Justices of peace was enlarged by divers Statutes then for conveniencie sake the Office of High Constables grew in use for the receiving of the commands and precepts from the Justices of peace and distributing them to the petie Constables and in token of this the election of High Constables in most parts of the Kingdome is by the appointment of the Justices of peace whereas the election of the petie Constable is by the people But there bee two things unto which the Office of Constable hath speciall reference and which of necessity or at leaâ—â— a kind of congruity must precede the Jurisdiction of that Office either the things themselves or somewhat that hath a similitude or analogie towards them 1. The one is the division of the Territory or grosse of the Shires into Hundreds Villages and Townes for the High Constable is Officer over the Hundred and the