Conies, Pheafants, or Partridges, or build Pidgeon-houfes; except he be What Matters Lord of the Manor, or Parfon of the Church. They may alfo take Pre- they enquire fentment upon Oath of the twelve fworn Jury before them, of all Felo-f in the Leets nies; but they cannot try the Malefactors; only they muft by Indenture days. deliver over thofe Prefentments of Felony to the Judges, when they come their Circuits into that County.

11. All the Courts before-mentioned are in Ufe, and exercised as Law at this Day, concerning the Sheriffs Law-days, and Leets, and the Offices of High-Conftables, Petty-Conftables, and Tithing-men; tho with fome farther Additions by Statute-Laws, laying Charge upon them for Taxation for the Poor, for Soldiers, and the like, and dealing without Corruption, and the like.

and Law

12. Confervators of the Peace were in ancient Times certain, and af-Confervators figned by the King to fee the Peace maintained; they were called to the of the Peace Office by the King's Writ, to continue for Term of their Lives, or du- Pleasure. ring the King's Pleasure.

at the King's

13. For this Service, Choice was made of the best Men of Calling in Their Office. the Country, and but few in the Shire. They might bind any Man to keep the Peace, and to good Behaviour, by Recognizance to the King with Sureties; and they might, by Warrant, fend for the Party, directing their Warrant to the Sheriff, or the Constable, to arreft the Party, and bring him before them. This they did when Complaint was made by any one, that he stood in fear of another, and so took his Oath; or elfe, where the Confervator himself did, without Oath or Complaint, fee the Difpofition of any Man inclin'd to Quarrel, and Breach of the Peace, or to misbehave himself in fome outragious manner of Force or Fraud: there at his own Difcretion, he might fend for fuch a Party, and make him find Sureties of the Peace, or of his good Behaviour, as he fhould fee Caufe; or elfe commit him to the Goal, if he refused.

14. The Judges of either Bench in Weftminster, Barons of the Exche- Confervators quer, Master of the Rolls, and Juftices in Eyre, and Affizes, in their Cir- of the Peace by virtue of cuits, were all, without Writ, Confervators of the Peace in all Shires of Eng-their Office. land, and continue to this Day.

15. But now Confervators of the Peace are out of ufe; and in lieu of Justices of them there are ordained Juftices of the Peace, affign'd by the King's Com- the Peace ordained inflead miffions in every County, which are moveable at the King's Pleasure ; of Conferva but the Power of placing and difplacing Juftices of the Peace, is by ufe tors. delegated from the King to the Chancellor.

16. That there fhould be Juftices of the Peace by Commiffions, was first enacted by a Statute made i Edw. III. and their Authority augmented by many Statutes made fince in every King's Reign.

17. They are appointed to keep four Seffions every Year; that is, every Their SionsQuarter, one. Thefe Seffions are a Sitting of the Juftices, to dispatch the and Office. Affairs of their Commiffions.. They have Power to hear and determine in their Seffions, all Felonies, Breaches of the Peace, Contempts and Trefpaffes, fo far as to fire the Offender to the Crown; but not to award Recompence to the Party grieved.

18. They

1

the Peace.

18. They are to fupprefs Riots and Tumults; to reftore Poffeffions forcibly taken away; to examine all Felons apprehended and brought before them; to fee impotent poor People, or maim'd Soldiers, provided for, according to the Laws; and Rogues, Vagabonds, and Beggars punished. They are both to licenfe and fupprefs Ale-houses, Badgers of Corn and Victuals, and to punish Foreftallers, Regraters, and Engroffers.

19. Thro thefe, in effect, run all the County Services to the Crown; as Taxations of Subfidies, muftring of Men, arming them, and levying Forces, by a special Commiffion from the King. Any of thefe Juftices, upon Oath taken by a Man that he stands in fear that another will beat, or kill him, or burn his House, are to fend for the Party, by Warrant of Attachment, directed to the Sheriff or Constable, and then to bind the Party with Sureties, by Recognizance to the King, to keep the Peace; and alfo to appear at the next Seffions of the Peace; at which next Seffions, when every Juftice of Peace has therein delivered all his Recognizances fo taken, 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 fee Cause, either to continue the Party fo bound, or to discharge him.

Quarter-Sef- 20. The Juftices of Peace in their Seffions are attended by the Constafions held by bles and Bailiffs of all Hundreds, and Liberties, within the County; and by the Justices of the Sheriff, or his Deputy, to be employ'd as Occafion ferves in executing the Precepts and Directions of the Court. They proceed thus: The Sheriff fummons twenty-four Free-holders, difcreet Men, of the said County, whereof fome fixteen are elected and fworn, and have their Charge to serve as the Grand Jury. The Party indicted is to traverse the Indictment, or else to confefs it, and fo fubmit himself to be fined as the Court fhall think fit; except the Punishment be certainly appointed, as it often is, by fpecial Statutes.

The Authori

21. The Juftices of Peace are many in every County; and to them are ty of the Juf- brought all Traitors, Felons, and other Malefactors, directly upon their betices of Peace ing first apprehended; and that Juftice to whom they are brought examines out of Seffions. them, and hears their Accufation, but judges not upon it; only if he find the

Sufpicion light, he takes Bond, with Sureties, of the Accufed, to appear either at the next Affizes, if it be a Matter of Treafon or Felony; or elfe at the Quarter-Seffions, if it be concerning Riot or Mifdemeanor, or other small Offence. He alfo then binds thofe to appear that give Teftimony, and profecute the Accufation, and all the Accufers and Witneffes, and fo fets the Party at large. And at the Affizes or Seffions he certifies the Recognizances taken of the Accused, Accufers and Witneffes; who being there, are call'd; and appearing, the Cause of the Accused is debated, according to Law, for his clearing or condemning.

22. But if the Party accufed feem, upon pregnant Matter in the Accufation, and to the Juftice, guilty, and the Offence be heinous, or the Offender taken with the Manner; then the Juftice is to commit the Party, by his Warrant call'd a Mittimus, to the Goaler of the common Goal of the County, there to remain till the Affizes. And then the Justice is to certi

fy

fy his Accufation, Examination, and Recognizance taken for the Appearances and Profecution of the Witneffes; fo that the Judges may, when they come, readily proceed with him as the Law requires.

23. The Judges of the Affize, as they are in Place of the ancient Judges Judges of Afin Eyre, call'd Jufticiarij Itinerantes, which, in the prime Kings, after the fize in the Conqueft, till Henry the Third's Time efpecially, and after in lefs Mea- Place of the ancient Judgfure, even to Richard the Second's Time, executed the Juftice of the es Realm. They began thus. The King, unable to dispatch Business in his own Perfon, erected the Court of King's Bench; and that being unable to receive all, nor proper to draw the People all to one Place; there were ordained Counties, and the Sheriff's Tourns, Hundred-Courts, and particular Leets, and Law-days, as before-mentioned; which dealt only with Crown Matters for the Publick; but not with the private Titles of Lands, or Goods, nor the Trial of grand Offences of Treafons and Felonies: but all the Counties of the Realm were divided into fix Circuits; and two learned Men, well read in the Law of the Realm, were affigned, by the King's Commiffion, to every Circuit; and to ride twice a Year thro thofe Shires allotted to that Circuit; making Proclamation before-hand, a convenient time in every County, of the Day of their coming, and Place of their fitting; to the end that People might attend them in every County of that Circuit. They were to ftay three or four Days in every County; and during that time, all Causes of that County were brought before them by the Parties grieved, and all Prisoners of the faid Goal, in every Shire; and whatever Controverfies arose concerning Life, Lands, or Goods.

ted to the

of Common

24. The Authority of these Judges in Eyre, is in part tranflated by The Authori Act of Parliament to the Juftices of Affize, which are now the Judges of ty of the Circuits; and they to use the fame Courfe that Juftices in Eyre did, to Judges in proclaim their coming every half Year, and the Place of their fitting. Eyre tranfla25. The Business of the Juftices in Eyre, and of the Juftices of Affize, Justices of at this Day, is much leffen'd; for in Henry the Third's Time there Assize. was erected the Court of Common-Pleas at Westminster; in which Court Justices of have ever been fince, and yet are, begun and handled, the great Suits of Alize leffened Lands, Debts, Benefices and Contracts, Fines for Affurances of Lands by the Court and Recoveries, which used to be either in the King's Bench, or before Pleas the Juftices in Eyre. But the Statute of Magna Charta is negative againft it; viz. Communia placita non fequantur curiam noftram, fed teneantur in aliquo loco certo; which Certus Locus must be the Common-Pleas; yet the Judges of Circuits have now five Commiffions, by which they fit. 26. The first is a Commiffion of Oyer and Terminer, directed to them, Their Comand many others of the best Account, in their Circuits; but in this Com-miffions. miffion the Judges of Affize are of the Quorum, fo that without them there yer and can be no Proceeding. This Commiffion gives them Power to deal with Treafons, Murthers, and all manner of Felonies, and Mifdemeanors whatever; and this is the largest Commiffion they have.

Terminer.

27. The Second is a Commiffion of Goal-Delivery; that is only to the Goal-DeliJudges themselves, and the Clerk of the Affize affociate and by this very. Commiffion

The manner

Commiffion they are to deal with every Prisoner in the Goal, for what Offence foever he be committed; and to proceed with him according to the Laws of the Realm, and the Quality of his Offence: and they cannot by this Commiffion do any thing with any Man, but such as are Prifoners in the Goal. The Courfe now used in Execution of this Commiffion of Goal-Delivery, is this. There is no Prifoner committed but by fome Juftice of the Peace, who, before he committed him, took his Examination, and bound his Accufers and Witneffes to appear and profecute at the Goal-Delivery.

28. This Juftice certifies thefe Examinations and Bonds; and thereof Proceeding upon the Accufer is call'd folemnly into the Court; and when he appears, therein. the Juftice is will'd to prepare a Bill of Indictment against the Prifoner, and to go with it to the Grand Jury, and to give evidence upon Oath, he and the Witneffes; which he does: and the Grand Jury write thereupon either Billa vera, and then the Prisoner ftands indicted; or elfe Ignoramus, and then he is not touched. The Grand Jury deliver these Bills to the Judges in their Courts; and fo many as they find indorfed Billa vera, they fend for the Prifoners. Then every Man's Indictment is put and read to him; and they afk him whether he be guilty or not: if he fays Guilty, his Confeffion is recorded; if he fays not Guilty, then he is asked how he will be tried; he answers, by the Country. Then the Sheriff is commanded to return the Names of the twelve Free-holders to the Court; which Free-holders are fworn to make true Delivery between the King and the Prisoner; then the Indictment is again read, and the Witneffes fworn to speak their Knowledge concerning the Fact; and the Prisoner is heard at large what Defence he can make; and then the Jury go together and confult. And after a while they come in with a Verdict of Guilty or not Guilty; which Verdict the Judges record accordingly. If any Prifoner plead not guilty upon the Indictment, and yet will not put himself to trial upon the Jury, or ftand mute, he is to be preffed.

29. The Judges, when many Prifoners are in the Goal, do in the End, before they go, perufe every one. Those that were indicted by the Grand Jury, and found not guilty by the Select Jury, they judge to be quitted; and fo deliver them out of the Goal. Those that are found guilty by both Juries, they judge to Death; and command the Sheriff to fee Execution done. Thofe that refufe Trial by the Country, and stand mute upon the Indictment, they judge to be preffed to Death. Some, whofe Offences are pilfering, under twelve Pence Value, they judge to be whipp'd. Thofe that confefs their Indictments, they judge to Death, Whipping, or otherwife, as their Offence requires. And thofe that are not indicted at all, but their Bill of Indictment returned with Ignoramus by the Grand Jury; and all others in the Goal, against whom no Bills are preferred, they acquit, by Proclamation, out of the Goal; fo that one way or other they rid the Goal of all the Prifoners that were in it. But because fome Prifoners have their Books, and are burned in the Hand, and fo delivered,

it is neceffary to fhew the Reafon thereof. This having their Books, is called their Clergy, which in ancient Time began thus.

30. For the Scarcity of the Clergy in the Realm of England, to be Benefit of difpofed in religious Houses; or for Priests, Deacons, and Clerks of PaClergy. rishes, there was a Prerogative allowed to the Clergy, that if any Man that could read as a Clerk, were to be condemned to Death, the Bishop of the Diocese might, if he would, claim him as a Clerk; and he was to fee him tried, in the Face of the Court, whether he could read or not. The Book was prepared, and brought by the Bishop; and the Judge was to turn to fome Place, as he fhould think proper; and if the Prisoner could read, then the Bishop was to have him delivered over to him, to difpofe of in fome Place of the Clergy, as he fhould judge convenient: but if either the Bishop would not demand him, or the Prifoner could not read, then he was to be put to Death.

31. And this Clergy was allowable in ancient Times and Law, for all Offences whatever, except Treason, and the robbing of Churches. But by many Statutes made fince, the Clergy is taken away for Murder, Burglary, Robbery, Purfe-cutting, Horfe-ftealing, and diverfe other Felonies, particularized by the Statutes to the Judges: and laftly, by a Statute made 18 Elizabeth, the Judges themselves are appointed to allow Clergy to fuch as can read, being not fuch Offenders from whom the Clergy is taken away by any Statutes, and to fee them burned in the Hand, and fo discharge them, without delivering them to the Bishop; tho the Bishop appoints the Deputy to attend the Judges with a Book, to try whether they can read or not.

Affizes.

32. The third Commiffion that the Judges of the Circuits have, is a Commission of Commiffion directed to themselves only; and the Clerk of the Affize to take Affizes; by which they are call'd Juftices of Affize. And the Office of thofe Juftices is to do right upon Writs call'd Affizes, brought before them by fuch as are wrongfully thruft out of their Lands. Of which Number of Writs, there were many more brought before them in ancient Times than now; because Mens Seizons and Poffeffions are fooner recovered by fealing Leafes upon the Ground, and by bringing an Ejectione firme, and trying their Title fo, than by the long Suits of Affizes.

Nifi Prius.

33. The fourth Commiffion, is a Commiffion to take Nifi Prius, di- Commission of rected to none but to the Judges themselves, and their Clerks of Affizes; by which they are call'd Juftices of Nifi Prius. These Nifi Prius happen in this fort. When a Suit is begun for any Matter in one of the three Courts, the King's Bench, Common Pleas, or the Exchequer; and the Parties, in their Pleadings, vary in a Point of Fact: as for Example, if in an Action of Debt upon Obligation, the Defendant denies the Obligation to be his Debt; or in any Action of Trefpafs grown for taking away Goods, the Defendant denies that he took them; or in Action of the Cafe for flanderous Words, the Defendant denies that he fpoke them, &c. then the Plaintiff is to maintain, and prove that the Obligation is the Defendant's Deed; that he either took the Goods, or spoke the Words; upon VOL. II. · Ii

which