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their courts. As for example, they may punish innkeepers, victuallers, bakers, brewers, butchers, poulterers, fishmongers, and tradesmen of all sorts, selling at under weight or measure, or at excessive prices, or things unwholesome, or ill made, in deceit of the people. They may punish those that stop, straiten, or annoy the highways, or do not, according to the provision enacted, repair or amend them, or divert water courses, or destroy fry of fish, or use engines or nets to take deer, conies, pheasants, fowl, or partridges, or build pigeon houses (not being lord of the manor, nor parson of the church). They may also take presentment upon oath of the twelve sworn jury before them of all manner of felonies, but they cannot try the malefactors; only they must by indenture deliver over these presentments of felony to the judges, when they come their circuits into that county.
All these things before mentioned are in use and exercised as law at this day, concerning the sheriffs' Law-days and Leets, and the offices of high constables, petty constables, and tithing men; howbeit, with some further additions by statute laws, laying charge upon them of collecting taxation for the poor, for soldiers, and the like, and dealing without corruption, and the like.
Conservators of the peace in ancient times were certain which the King in every county did assign to see the peace maintained; and they were called to the office by the King's writ, to continue for term of their lives, [or at the King's pleasure.]'
For this service, choice was made of the best men of calling in the country, and but few in a shire.
They might bind any man to keep the peace, and to good behaviour, by recognizance to the King with sureties; and might by warrant send for the party, directing their warrant to the sheriff or constable as they please, to arrest the party and bring him before them. This they used to do when complaint was made by any man that stood in fear of another, and so took his oath ; or else, where the conservator did himself, without complaint, see the disposition of any man inclined to quarrel and breach of the peace, or to misbehave himself in some outrageous course of force or fraud, there by his own discretion he might send for such a fellow, and make him find sureties of the peace or good behaviour, as he should see cause; or else commit him to the gaol if he refused.
"This is omitted in Sloane MS.
The judges of the King's Bench? at Westminster, barons of the Exchequer, master of the rolls, and justices in eyre and assizes in their circuits, were all, without writ, conservators of the peace by their office in all shires of England, and so do continue to this day. But now conservators of the peace by writ are out of use; for that in lieu of them there are ordained justices of peace, assigned by the King's commission in every county, which are removeable at the King's pleasure; and the power of placing and displacing justices of the peace is by use delegated from the King to the Chancellor.
That there should be justices of peace by commission, it was first enacted by a statute made 1 Edward III. and their authority augmented by many statutes since made in every King's reign.
They are appointed to keep four sessions every year; that is to say, every quarter one. This session is a sitting time to assemble and dispatch the affairs of their commission. They have power to hear and determine in their sessions all felonies, breaches of the peace, contempts, and trespasses, so far as to fine the offender to the crown, but not to award recompence to the party grieved. They are to suppress riots and tumults; to restore possessions forcibly taken away, to examine all felons apprehended and brought before them; to see impotent poor people or maimed soldiers provided for according to the laws; and rogues, vagabonds, and beggars punished. They are to [license and] suppress alehouses, badgers3 of corn and victuals, and to punish forestallers, regrators, and engrossers.
Through these, in effect, run all the county services to the crown; as taxation of subsidies, mustering men, arming them, and levying forces by commission or precept from the King. Any of these justices, upon oath taken by a man that he standeth in fear that another will beat him, or kill him, or burn his house, are to send for the party by warrant of attachment directed to the sheriff or constable, and they are to bind the party with sureties by recognizance to the King to keep the peace, and also to appear at the next sessions of the peace. At which next sessions, when every justice of peace hath there delivered in all his recognizances so taken, then the parties are called and the cause of binding to the peace examined; and both parties being heard, the whole bench is to determine as they see cause, either to continue the party still bound, or to discharge him.
| The printed text and Sloane MS. have “either bench,” It will be observed that the institution of the Common Pleas is described as subsequent.
2 Harl, MS. has “to cease and suppress : ” Sloane MS. omits the part in brackets. The licensing was not at common law but introduced by statute 5 and 6 Ed. VI. c. 25.
3 Stat. 5 Eliz, c. 12.
These justices at the sessions are attended with the constables and bailiffs of all hundreds and liberties within the county, and with the sheriff or his deputy, to be employed as occasion shall serve in executing the precepts and directions of the court. They proceed in this sort: the sheriff doth summon twenty-four discreet men, freeholders of the county; whereof some sixteen are selected and sworn, and have their charge to serve as the grand jury, to enquire and present all offences which the justices can deal in : to whom all persons grieved prefer Bills of Indictment; and they being found and presented by the grand jury, the party indicted is to traverse the indictment, which is to deny it to be true, or else to confess it, and so submit himself to be fined as the court shall think meet, regard had to the offence, except the punishment be certainly appointed, as often it is, by special Acts of Parliament.
The justices of peace are many in every county. And to them are brought all traitors, felons, and other malefactors of any sort upon their first apprehension in the county; and that justice to whom they are brought examincth them, and heareth their accusation, but judgeth not upon it; only if he find the suspicion but light, then he taketh bond with sureties of the accused to appear either at the next assizes, if it be matter of treason or felony, or else at the quarter sessions, if it be concerning riot, misbehaviour, or some other small offence. And he also bindeth to appear there and give testimony and prosecute the accusation all the accusers and witnesses; and so setteth the party at large. And at the assizes or sessions, as the case falleth out, he certifieth the recognizances taken of the accused, accusers, and witnesses, who being all there called, and appearing, the cause against the accused is dealt in according to law for his clearing or condemning.
But if the party apprehended scem, upon pregnant matter in the accusation and ex:omination, to the justice to be guilty, and the offence heinous, or the offender taken with the mainour, then the justice is to commit the party by his warrant, called a mittimus, directed to the gaoler of the common gaol of the county, there to remain until the assizes come. And then the justice must certify his accusation and examination, and return the recognizance taken for appearance and prosecution of the witnesses ; so as the judges at the assizes may, when they come, readily proceed with him as the law prescribeth.
The judges of circuits as they be now, are come into the place of the ancient justices in eyre, called justiciarii itinerantes, by which the prime Kings after the Conquest, until Hen. III.'s time especially, and after that, in lesser measure, even to Rich. II., did execute the justice of the realm.
They began in this sort :
The King, not able to dispatch matters in his own person, erected the Court of King's Bench: that not able to do all, nor meet to draw the people all to one place, there were ordained counties and then sheriff's turns, hundred courts, and parti. cular leet, and law-days, as is before mentioned; which dealt only with crown matters for the public, but not with private titles of lands or goods, nor the trial of grand offences of treasons and felonies. But all the counties of the realm were divided into six circuits, and two learned men well read in the laws and customs of the realm were assigned by the King's commission to every circuit, to ride twice a year through those shires allotted that circuit, making proclamation beforehand a convenient time, in every county, of the time of their coming and place of their sitting, to the end the people might attend them in every county of the circuit. They were to stay three or four days in every shire, and in that time all the causes of the county were brought before them by the parties grieved, and all the prisoners in the gaols in every shire, and whatsoever controversies arisen concerning life, liberty, lands, or goods.
The authority of these justices in eyre is (in part]' transferred by act of parliament to justices of assize, which be now the judges of circuits; and they do use the same course that justices in eyre did, to proclaim their coming every half year, and the place of their sitting.
The business of the justices in eyre, and of the justices of But the sta. assize at this day, is much lessened; for that, in Hen. III.'s Char.cap. 11. time, there was erected the Court of Common Pleas at West- Brainst it notiz. minster; in which court have been ever since, and yet are,
i Omitted, Sloane MS.
tute of Mag.
is negative a. gainst it: viz. Communia
placita non > Sequantur
tram, sed tencantur in aliquo loco
locus certus must be the Common Pleas.
curiam nos. begun and handled the great suits of lands, debts, covenants, nantur in benefices, and contracts, and fines and recoveries for assurance certo; which of lands, which were wont to be either in the King's Bench, or
else before the justices in eyre. Yet the judges of circuits now have five commissions by which they sit.
One is a commission of oyer and terminer, directed unto them and many others of the best account in the circuits, selected out of all the counties of their precincts; but in this commission the judges are of the quorum, so as without them there can be no proceeding. This commission giveth them power to deal with treasons, murders, and all manner of felonies, offences, and misilenicanors whatsoever; and this is the largest commission of all they have.
One other is a commission of gaol delivery, that is only to the judges themselves, [and the clerk of the assizes associated to them]?: and by this commission they are to deal with every prisoner in the gaol, for what offence soever he be there, to proceed with him according to the laws of the realm and the quality of his offence. And they cannot by this commission do any thing concerning any man but those that are prisoners in the gaol.
The course now in use of execution of this commission of gaol delivery is this. There is no prisoner but is committed by some justice of peace, who, before his cominitting, took his examination, and bound his accusers and witnesses to appear and prosecute at the gaol delivery. This justice doth certify these examinations and bonds; and thereupon the accuser is called solemnly in the court, and when he appeareth he is willed to prepare a bill of indictment against the prisoner, and go with it to the grand jury, and give evidence upon their oaths, he and the witnesses : which he doth; and the grand jury do thereupon write either billa vera, and then the prisoner standeth indicted, or else ignoramus, ard then he is not touched. The grand jury deliver these bills to the judges in open court; and so many as they find indorsed biila vera, they send for those prisoners, and they read every man's indictment unto him, asking him whether he be guilty or not: if he say he is, then his confession is recorded down ; if he say Not guilty, then he is asked how he
This, which in the MSS. and editions stands as part of the text, before the sentence « yet the judges, &c.," is obviously a note correcting it.
? Omitted in Sloanc MS.