« AnteriorContinuar »
his boroe, and the high constable in all his hundred; and these officers ought to see these watches duly set, and kept, and ought also to cause hue and crie to be raysed after such as will not obey the arrest of such watchmen.” This power of arresting suspicious persons, in all towns and boroughs, shews the necessity of having in each town and borough a proper jail, or appointed place of confinement; especially as the common law required, “ that if any man was of so evil credit, that he could not get himselfe to be received into one of these tythings or boroes, that then he should be shut up in prison, as a man unworthy to live at liberty amongst men abroad." (Lambard's Duties of Constables, p. 8.) And the expenses necessary for the building and maintaining such proper places of confinement, might be levied by the court-leet on the inhabitants of each district; for the leet has competent power, according to the common law, to levy taxes for defraying all necessary public works, (see Powell on Court-Leets, p. 163 ;) so that the modern usage of applying to the great national council on such occasions is clearly wrong; because it not only occasions a needless expense, interferes with more important business of the nation, and grievously prolongs the sittings of parliament, but also tends to inure the members to private solicitations in behalf of partial objects ; facilitates the practice of canvassing them individually; and thereby lays them open to influence and temptation in higher matters; whereas frequent but short sessions of newly-elected parliaments, like those of ancient times, would effectually cut up the roots of corruption and undue influence.
In order the more effectually to promote the happy system of government, which I now recommend—viz., “ that all freeborne men" (within this kingdom) “ shoulde cast themselves into tithings," for the common security of all, it was ordained by King William I.
66 Ut onines habeant et teneant, legem regis Edwardi in omnibus rebus adauctis his quæ constituimus" (says the statute of William) “ ad utilitatem Anglorum.” “ That all persons should have and hold the law of King Edward” (wherein the more ancient laws for maintaining the tithings and hundreds are collected and stated) “ in all things, those things being also added which we have ordained" (said King William) " for the use of the English.” And no free nation could reasonably desire more substantial and effectual additions for the security of their own peace and liberty than those additional laws of King William, most of which I have already cited. To these I must now add a farther excellent clause of King William's statute, which is ne
cessary for the better enforcing and promoting King Edward's laws-viz., “ that every man who shall be willing to be deemed a freeman shall be in pledge,” (shall enter himself into some tithing of Frank pledge,)“ that the pledge may have him to justice, if in anything he should offend ; and if any of such" (pledged persons) “should abscond, that the pledges may pay whatsoever damages are laid," (or rather, are proved,) “ and may clear themselves that they knew” (or were privy to) no fraud in the absconded per
Let the hundred" (court) “ be demanded” (or summoned)" and the county" (court) " and those who ought of right to attend" (at either of these courts, as the context requires us to understand) “and shall be unwilling, let them be summoned once; and if to a second” (summons)
they shall not come, let one ox be taken ; and if to a third,” (summons he shall not come, let) “ another ox” (be taken ;) “and if to a fourth” (summons he shall not come,) “ let what is rated be paid out of the effects of this man, which is called ceapgyld, or orfgyld,” Regular summonses, however, were required by law, to be made seven days before any of these courts, unless a legal and admissible excuse could be assigned for the omission, (" et septem diebus antea summoniri, nisi publicum commodum vel dominica regis necessitas terminum præveniat,"
see King Edward's law de Heretochiis, &c.). And a neglect or disregard of a legal summons to a court of law might surely be deemed a contempt of the law, the declared penalties for which (a single or double forfeiture of the man's were) may perhaps help to explain the nature of the amerciaments mentioned above for neglect of sunimonses. “ Et qui leges apostabit, (i. e., violarit,) si fuerit Anglicus, vel Dacus, vel Waliscus, vel Albanicus, vel Insulicola, weræ reus sit apud regem ; et, si secundo id faciat, reddat bis weram suain ; et si quid addat tertio, reus sit omnium quæ habebit.” 66 And whosoever shall neglect (or violate) the law, whether he be Englishman, Dane, Welchman, or Scot, or Islander, shall forfeit his were with the king ; and if he shall do it a second time, let him pay twice his were; and if he shall add a third time, let him forfeit all that he shall have."
To increase amerciaments on the repetition of offences seems to be both just and necessary ; but whether in so enlarged a proportion as that of doubling the were for a second conviction, and forfeit all on a third, may reasonably be questioned ; especially as there is no express exception for second and third offences in the liinitation of amerciaments, ordained by the fourteenth chapter of Magna Charta. Nevertheless, if we consider that a frequent repetition of the
same misdemeanour is undoubtedly a heinous aggravation of it, and that it was always so considered in the common law, and punished accordingly by an aggravation of the mulct, as appears by the laws already cited, we shall perhaps be inclined to believe, that the authors of the said limitation of mulcts in Magna Charta, though they certainly intended to regulate by it the pecuniary penalties of crimes in general, yet, for anything that appears, they had not in contemplation the peculiar circumstance of a contemptuous repetition of any crime, and may therefore be justly supposed not to have intended to abridge the salutary spirit of the common law, so necessary for its own preservation, in duly punishing, by gradual advances of severity, any repeated contempts of its authority.
If all these points be duly considered, it must appear that our common law is already vested with ample powers to enforce a revival of the ancient constitution of this kingdom ; so that nothing is wanting but a general communication of its principles (the purpose of this tract) to engage the will of the public for its reassumption ; that the 6 summa et maxima securitas" of our ancestors (see page 13) may be once more established, the happy effects of which cannot be expressed in stronger terms than in the words of Sir Edward Coke on this very