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his charter of pardon, and purge the blood for time to come, though he cannot restore the blood for the time past.

4. The king may enable any dead person in the law, as men professed in religion, to take and purchase to the king's benefit.

A twofold power of the law.

2. Correction: In this respect the king is above the law; for it may not correct him for any offence.

A twofold power in the king.

1. His absolute power, whereby he may levy forces against any nation.

2. His limited power, which is declared and ex

1. A direction: In this respect the king is under-pressed in the laws what he may do. neath the law; because his acts are guided thereby.

AN EXPLANATION

WHAT MANNER OF PERSONS THOSE SHOULD BE THAT ARE TO
EXECUTE THE POWER OR ORDINANCE

OF

THE KING'S PREROGATIVE.

him withal, can neither subordinate any other judge to govern by that knowledge, which the king can no otherwise, than by his known will, participate unto him and if any such subordinate judge shall obtain commission according to the discretion of such judge to govern the people, that judge is bound to think that to be his soundest discretion, which the law, in which is the king's known will, showeth unto him to be that justice which he ought to ad

1. THAT absolute prerogative, according to the king's pleasure, revealed by his laws, may be exercised and executed by any subject, to whom power may be given by the king, in any place of judgment or commission, which the king by his law hath ordained in which the judge subordinate cannot wrong the people, the law laying down a measure by which every judge should govern and execute; against which law if any judge proceed, he is by the law questionable, and punishable for his trans-minister; otherwise he might seem to esteem himgression.

in this nature are all the judges and commissioners of the land, no otherwise than in their courts, in which the king in person is supposed to sit, who cannot make that trespass, felony, or treason, which the law hath not made so to be, neither can punish the guilty by other punishment than the laws have appointed.

This prerogative or power, as it is over all the subjects, so being known by the subjects, they are without excuse if they offend, and suffer no wrong if they be justly punished; and by this prerogative the king governeth all sorts of people according unto known will.

2. The absolute prerogative, which is in kings according to their private will and judgment, cannot be executed by any subject; neither is it possible to give such power by commission; or fit to subject the people to the same; for the king, in that he is the substitute of God immediately, the father of his people, and head of the commonwealth, hath by participation with God, and with his subjects, a discretion, judgment, and feeling love towards those, over whom he reigneth, only proper to himself, or to his place and person; who, seeing he cannot in any others infuse his wisdom, power, or gifts, which God, in respect of his place and charge, hath enabled

self above the king's law, who will not govern by it, or to have a power derived from other than from the king, which in the kingdom will administer justice contrary unto the justice of the land: neither can such a judge or commissioner under the name of the king's authority shroud his own high action, seeing the conscience and discretion of every man is particular and private to himself, so as the discretion of the judge cannot be properly or possibly the discretion or the conscience of the king; and if not his discretion, neither the judgment that is ruled by another man's only.

Therefore it may seem they rather desire to be kings than to rule the people under the king, which will not administer justice by law, but by their own will.

3. This administration in a subject is derogative to the king's prerogative; for he administereth justice out of a private direction, being not capable of a general direction how to use the king's subjects at pleasure, in causes of particular respect; which if no other than the king himself can do, how can it be so that any man should desire that which is unfit and impossible, but that it must proceed ont of some exorbitant affection? the rather, seeing such places be full of trouble and altogether unnecessary, no man will seek to thrust himself into them but for

hopes of gain. Then is not any prerogative oppugned, but maintained, though it be desired, that every subordinate magistrate may not be made supreme, whereby he may seize upon the hearts of the people, take from the king the respect due unto him only, or judge the people otherwise than the king doth himself.

4. And although the prince be not bound to render any account to the law, which in person he administereth himself, yet every subordinate judge must render an account to the king, by his laws, how he hath administered justice in his place where he is set. But if he hath power to rule by private direction, for which there is no law, how can he be questioned by a law, if in his private censure he offends ?

5. Therefore, it seemeth, that in giving such authority, the king ordaineth not subordinate magistrates, but absolute kings: and what doth the king leave to himself, who giveth so much to others, as he hath himself? Neither is there a greater bond to tie the subject to his prince in particular, than when he shall have recourse unto him, in his person, or in his power, for relief of the wrongs which from private men be offered; or for reformation of the oppressions which any subordinate magistrate shall impose upon the people. There can be no offence in the judge, who hath power to execute according

to his discretion, when the discretion of any judge shall be thought fit to be limited, and therefore there can be therein no reformation; whereby the king in this useth no prerogative to gain his subjects right; then the subject is bound to suffer helpless wrong; and the discontent of the people is cast upon the king; the laws being neglected, which with their equity in all other causes and judgments, saving this, interpose themselves and yield remedy. 6. And to conclude, custom cannot confirm that which is any ways unreasonable of itself. Wisdom will not allow that, which is many ways dangerous, and no ways profitable.

Justice will not approve that government, where it cannot be but wrong must be committed.

Neither can there be any rule by which to try it, nor means of reformation of it.

7. Therefore, whosoever desireth government must seek such as he is capable of, not such as seemeth to himself most easy to execute; for it is apparent, that it is easy to him that knoweth not law nor justice, to rule as he listeth, his will never wanting a power to itself: but it is safe and blameless, both for the judge and people, and honour to the king, that judges be appointed who know the law, and that they be limited to govern according to the law.

THE OFFICE OF CONSTABLES,

ORIGINAL AND USE OF

COURTS LEET, SHERIFF'S TURN, ETC.

WITH THE ANSWERS TO THE QUESTIONS PROPOUNDED BY SIR ALEXANDER HAY, KNT. TOUCHING THE OFFICE OF CONSTABLES. A. D. 1608.

1. Question. "What is the original of constables?" Answer. To the first question of the original of constables it may be said, " caput inter nubila condit;" for the authority was granted upon the ancient laws and customs of this kingdom practised long before the Conquest, and intended and executed for conservation of peace, and repression 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 judicial power, to hear and determine any cause, but only a ministerial power, as in the answer to the seventh article is demonstrated.

As for the office of high or head constable, the original of that is yet more obscure; for though the high constable's authority hath the more ample circuit, he being over the hundred, and the petty constable over the village; yet I do not find that the petty constable is subordinate to the high constable, or to be ordered or commanded by him; and there

fore, I doubt, the high-constable was not ab origine; but that when the business of the county increased, the authority of justices of peace was enlarged by divers statutes, and then, for conveniency sake, the office of high constable grew in the use for the receiving of the commandments and prescripts from the justices of peace, and distributing them to the petty constables: and in token of this, the election of high-constable in most parts of the kingdom is by the appointment of the justices of the peace, whereas the election of the petty constable is by the people.

But there are two things unto which the office of constable hath special reference, and which of necessity, or at least a kind of congruity, must precede the jurisdiction of that office; either the things themselves, or something that hath a similitude or analogy towards them.

1. The division of the territory, or gross of the shires, into hundreds, villages, and towns; for the

high constable is officer over the hundred, and the | under-ministers, for that every one of the king's peopetty constable is over the town or village.

2. The court leet, unto which the constable is attendant and minister; for there the constables are chosen by the jury, there sworn, and there that part of their office which concerneth information is principally to be performed: for the jury being to present offences and offenders, are chiefly to take light from the constable of all matters of disturbance and nuisance of the people; which they, in respect of their office, are presumed to have best and most particular knowledge of.

The jurisdiction of the court-leet is to three ends. 1. To take the ancient oath of allegiance of all males above twelve years.

2. To inquire of all offences against the peace; and for those that are against the crown and peace both, to inquire of only, and certify to the justices of gaol delivery; but those that are against the peace simply, they are to inquire of and punish.

3. To inquire of, punish, and remove all public nuisances and grievances concerning infection of air, corruption of victuals, ease of chaffer, and contract of all other things that may hurt or grieve the people in general, in their health, quiet, and welfare.

And to these three ends, as matters of policy subordinate, the court-leet hath power to call upon the pledges that are to be taken of the good behaviour of the resiants that are not tenants, and to inquire of all defaults of officers, as constables, ale-tasters, and the like and likewise for the choice of constables, as was said.

The jurisdiction of these leets is either remaining in the king, and in that case exercised by the sheriff in his Turn, which is the grand leet, or granted over to subjects; but yet it is still the king's court.

2. Quest. Concerning the election of constables ? Answ. The election of the petty constable, as was said, is at the court-leet by the inquest that make the presentments; and election of head constables is by the justices of the peace at their quarter sessions.

3. Quest. How long is their office?

ple within their limits are bound to assist them.

6. Quest. What if they refuse to do their office? Answ. Upon complaint made of their refusal to any one justice of peace, the said justice may bind them over to the sessions, where if they cannot excuse themselves by some allegation that is just, they may be fined and imprisoned for their contempt. 7. Quest. What is their authority or power?

Answ. The authority of the constable, as it is substantive, and of itself, or substituted, and astricted to the warrants and commands of the justices of the peace; so again it is original, or additional: 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 only to execute the commands of the justices of peace, and likewise the additional power which is given by divers statutes, it is hard to comprehend them in any brevity; for that they do correspond to the office and authority of justices of peace, which is very large, and are created by the branches of several statutes: but for the original and substantive power of constables, it may be reduced to three heads: namely.

1. For matter of peace only.

2. For peace and the crown.

3. For matter of nuisance, disturbance, and disorder, although they be not accompanied with violence and breach of the peace.

First, for pacifying of quarrel begun, the constable may, upon hot words given, or likelihood of breach of the peace to ensue, command them in the king's name to keep peace, and depart, and forbear: and so he may, where an affray is made, part the same, and keep the parties asunder, and arrest and commit the breakers of the peace, if they will not obey; and call power to assist him for that purpose.

For punishment of breach of peace past, the law is very sparing in giving any authority to constables, because they have not power judicial, and the use of his office is rather for preventing or staying of mischief, than for punishment of offences; for in

Answ. The office of constable is annual, except that part he is rather to execute the warrants of they be removed.

4. Quest. Of what rank or order of men are they? Answ. They be men, as it is now used, of inferior, yea, of base condition, which is a mere abuse or degenerating from the first institution; for the petty constables in towns ought to be of the better sort of resiants in the same; save that they be not aged or sickly, but of able bodies in respect of keeping watch and toil of their place; nor must they be in any man's livery. The high constables ought to be of the ablest freeholders, and substantialest sort of yeomen, next to the degree of gentlemen; but should not be encumbered with any other office, as mayor of a town, under-sheriff, bailiff, &c.

5. Quest. What allowance have the constables ? Answ. They have no allowance, but are bound by duty to perform their office gratis; which may the rather be endured because it is but annual, and they are not tied to keep or maintain any servants or

the justices; or, when sudden matter ariseth upon his view, or notorious circumstances, to apprehend offenders, and to carry them before the justices of peace, and generally to imprison in like cases of necessity, where the case will not endure the present carrying of the party before the justices. And so much for peace.

Secondly, For matters of the crown, the office of the constable consisteth chiefly in these four parts: 1. To arrest.

2. To make hue and cry. 3. To search.

4. To seize goods.

All which the constable may perform of his own authority, without any warrant from the justices of the peace.

1. For, first, if any man will lay murder or felony to another's charge, or do suspect him of murder or felony, he may declare it to the constable, and the

constable ought, upon such declaration or complaint, to carry him before a justice of peace; and if by common voice or fame any man be suspected, the constable of duty ought to arrest him, and bring him before a justice of peace, though there be no other accusation or declaration.

2. If any house be suspected for receiving or harbouring of any felon, the constable, upon complaint or common fame, may search.

Answ. Their authority is the same in substance, differing only in the extent; the petty constable serving only for one town, parish, or borough; the head constable for the whole hundred: nor is the petty constable subordinate to the head constable for any commandment that proceeds from his own authority; but it is used, that the precepts of the justices be delivered unto the high constables, who being few in number, may better attend the justices,

3. If any fly upon the felony, the constable ought and then the head constables, by virtue thereof, make to raise hue and cry.

4. And the constable ought to seize his goods, and keep them safe without impairing, and inventory them in presence of honest neighbours.

Thirdly, for matters of common nuisance and grievances, they are of very variable nature, according to the several comforts which man's life and society requireth, and the contraries which infest the same. In all which, be it matter of corrupting air, water, or victuals, stopping, straitening, or endangering of passages, or general deceits in weights, measures, sizes, or counterfeiting wares, and things vendible; the office of constable is to give, as much as in him lies, information of them, and of the offenders, in leets, that they may be presented; but because leets are kept but twice in the year, and many of those things require present and speedy remedy, the constable, in things notorious and of vulgar nature, ought to forbid and repress them in the mean time: if not, they are for their contempt to be fined and imprisoned, or both, by the justices in their sessions. 8. Quest. What is their oath ?

Answ. The manner of the oath they take is as followeth :

"You shall swear that you shall well and truly serve the king, and the lord of this law-day; and you shall cause the peace of our sovereign lord the king well and truly to be kept to your power; and you shall arrest all those that you see committing riots, debates, and affrays in breach of peace: and you shall well and truly endeavour yourself to your best knowledge, that the statute of Winchester for watching, hue and cry, and the statutes made for the punishment of sturdy beggars, vagabonds, rogues, and other idle persons coming within your office be truly executed, and the offenders be punished: and you shall endeavour, upon complaint made, to apprehend barreters and riotous persons making affrays, and likewise to apprehend felons; and if any of them make resistance with force, and multitude of misdemeanors, you shall make outcry and pursue them till they be taken; and shall look unto such persons as use unlawful games; and you shall have regard unto the maintenance of artillery; and you shall well and truly execute all process and precepts sent unto you from the justices of the peace of the county and you shall make good and faithful presentments of all bloodsheds, out-cries, affrays, and rescues made within your office: and you shall well and truly, according to your own power and knowledge, do that which belongeth to your office of constable to do, for this year to come. So help," &c. 9. Quest. What difference is there betwixt the high constables and petty constables?

:

their precepts over to the petty constables.

10. Quest. Whether a constable may appoint a

deputy?

Answ. In case of necessity a constable may appoint a deputy, or in default thereof, the steward of the court-leet may; which deputy ought to be sworn before the said steward.

The constable's office consists in three things: 1. Conservation of the peace.

2. Serving precepts and warrants.

3. Attendance for the execution of statutes.

Of the Jurisdiction of Justices itinerant in the Principality of Wales.

1. They have power to hear and determine all criminal causes, which are called, in the laws of England, pleas of the crown; and herein they have the same jurisdiction that the justices have in the court of the king's bench.

2. They have power to hear and determine all civil causes, 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.

The prothonotary's office is to draw all pleadings, and entereth and engross eth all the records and judgments in all trivial causes.

These offices are in the king's gift

The clerk of the crown, his office is to draw and engross all proceedings, arraignments, and judg ments in criminal causes.

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persons, whose misdemeanors may tend to the disquiet of the people; and these be called justices of the peace, and every of them may well and truly be called Eirenarcha.

The chief of them is called Custos rotulorum, in whose custody all the records of their proceedings are resident.

Others there are of that number called justices of peace and quorum, because in their commission they have power to sit and determine causes concerning breach of peace and misbehaviour. The words of their commission are conceived thus, Quorum, such and such, unum vel duos, etc. esse volumus; and without some one or more of the quorum, no sessions can be holden; and for the avoiding of a superfluous number of such justices, (for through the ambition of many it is counted a credit to be burthened with that authority,) the Justices of peace appoint statute of 38 H. VIII. hath expressly ed by the lord prohibited that there shall be but eight keeper. justices of the peace in every county. These justices hold their sessions quarterly.

In every shire where the commission of the peace is established, there is a clerk of the peace for the entering and engrossing of all proceedings before the said justices. And this officer is appointed by the custos rotulorum.

The Office of Sheriffs.

Every shire hath a sheriff, which word, being of the Saxon English, is as much as to say shire-reeve, or minister of the county: his function or office is twofold, namely,

1. Ministerial. 2. Judicial.

1. He is the minister and executioner

34 H. 8. cap. 16. of all the process and precepts of the

courts of law, and therefore ought to make return 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.

2. The County Court, wherein he doth determine all petty and small causes civil under the value of forty shillings, arising within the said county, and therefore it is called the county court.

The jurisdiction of this court is derived from justice commutative, and is held every month. The office of the sheriff is annual, and in the king's gift, whereof he is to have a patent.

The Office of Escheator.

Every shire hath an officer called an Escheator, which is to attend the king's revenue, and to seize into his Majesty's hands all lands escheated, and goods or lands forfeited, and therefore is called escheator; and he is to inquire by good inquest of the death of the king's tenant, and to whom the lands are descended, and to seize their bodies and lands for ward, if they be within age, and is accountable for the same; he is named or appointed by the lord treasurer of England.

The Office of Coroner.

Two other officers there are in every county called Coroners; and by their office they are to inquest in what manner, and by whom, every person dying of a violent death, came so to their death; and to enter the same of record; which is matter criminal, and a plea of the crown: and therefore they are called coroners, or crowners, as one hath written, because their inquiry ought to be in corona populi.

These officers are chosen by the freeholders of the shire, by virtue of a writ out of the chancery de coronatore eligendo: and of them I need not to write more, because these officers are in use every where. General Observations touching Constables, Gaolers, and Bailiff's.

Forasmuch as every shire is divided into hundreds, there are also by the statute of 34 H. VIII. cap. 26, ordered and appointed, that two sufficient gentlemen or yeomen shall be appointed constables of every hundred.

Also there is in every shire a gaol or prison appointed for the restraint of liberty of such persons as for their offences are thereunto committed, until they shall be delivered by course of law.

In every hundred of every shire the sheriff thereof shall nominate sufficient persons to be bailiffs of that hundred, and under-ministers of the sheriffs : and they are to attend upon the justices in every of their courts and sessions.

Note. Archbishop Sancroft notes on this last chapter, written, say some, by Sir John Dodderidge, one of the justices of the king's bench, 1608.

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