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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 that circuit.
They were to stay three or four days in every county, and in that time all the causes of that county were brought before them by the parties grieved, and all the prisoners of the said gaol in every shire, and whatsoever controversies arising concerning life, lands, or goods. The
authority of these judges in eyre is in part trans- The authority lated by act of parliament to justices of assize, which be translated by now the judges of circuits, and they do use the same course justices of asthat justices in eyre did, to proclaim their coming every size. half year, and the place of their sitting.
The business of the justices in eyre, and of the justices The authority of assize at this day is much lessened, for that, in Henry the of the justices Third's time, there was erected the Court of Common Pleas lessened by the at Westminster, in which court have been ever since, and court of Comyet are begun and handled the great suits of lands, debts, mon Pleas,
erected in H. 3. benefices, and contracts, fines for assurance of lands and time. recoveries, which were wont to be either in the King's Bench, or else before the justices in eyre. But the statute of Mag. Char. cap. 11. 5. is negative against it, viz. Communia placita non sequantur curiam nostram, sed teneantur The justices of in aliquo loco Certo; which locus Certus must be the Com- assize have at mon pleas; yet the judges of circuits have now five com- commissions by missions by which they sit.
which they sit. The first is a commission of oyer and terminer, directed 1.Oyer & term. unto them, and many others of the best account, in their 2. Gaol delicircuits ; but in this commission the judges of assize are very: 3. Tatake of the quorum, so as without them there can be no pro- take Nisi Prius. ceeding
This commission giveth them power to deal with trea- Oyer and tersons, murders, and all manner of felonies and misdemeanors miner, in which whatsoever ; and this is the largest commission that they of the quorum,
The second is a commission of gaol delivery; that is, largest commisonly to the judges themselves, and the clerk of the assize sion they have. associate: and by this commission they are to deal with every prisoner in the gaol, for what offence soever he be there; and to proceed with him according to the laws of the realm, and the quality of his offence: and they cannot, Gaol delivery by this commission, do any thing concerning any man but directed only those that are prisoners in the gaol. The course now in selves, and the use of execution of this commission of gaol delivery is this. clerk of the asThere is no prisoner but is committed by some justice of size.
5. Of the peace.
and this is the
peace, who, before he committed him, 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 into 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 then the grand jury write thereupon either billa vera, and
then the prisoner standeth indicted, or else ignoramus, and The manner of then he is not touched. The grand jury deliver these bills the proceedings to the judges in their court, and so many as they find inof the justices dorsed billa vera, they send for those prisoners, then is their circuits. every man's indictment put and read to him, and they ask
him whether he be guilty or not. If he saith guilty, his The course now confession is recorded; if he say not guilty, then he is in use with the asked how he will be tried; he answereth, by the country. judges for the execution of
Then the sheriff is commanded to return the names of the commission twelve freeholders to the court, which freeholders be sworn of gaol deli
to make true delivery between the king and the prisoner, very.
and then the indictment is again read, and the witnesses sworn 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 consult. And after a while they come in with a verdict of guilty or not guilty, which verdict the judges do record accordingly. If any prisoner plead not guilty upon the indictment, and yet will not put himself to trial upon the jury (or stand mute), he shall be pressed.
The judges, when many prisoners are in the gaol, do in the end before they go peruse every one.
Those that were indicted by the grand jury, and found not guilty by the select
jury, they judge to be quitted, and so deliver them out of the gaol. Those that are found guilty by both juries they judge to death, and command the sheriff to see execution done. Those that refuse trial by the country, or stand mute upon the indictment, they judge to be pressed to death: some whose offences are pilfering under twelvepence value they judge to be whipped. Those that confess their indictments, they judge to death, whipping, or otherwise, as their offence requireth. And those that are not indicted at all, but their bill of indictment returned with ignoramus by the grand jury, and all other in the gaol against whom no bills at all are preferred, they do acquit by proclamation out of the gaol. That one way or other they rid the gaol
of all the prisoners in it. But because some prisoners have their books, and be burned in the hand and so delivered, it is necessary to show the reason thereof. This having their books is called their clergy, which in ancient time began thus.
For the scarcity of the clergy, in the realm of England, Book allowed to be disposed in religious houses, or for priests, deacons, to clergy for the and clerks of parishes, there was a prerogative allowed to
them, to be disthe clergy, that if any man that could read as a clerk were posed in relito be condemned to death, the bishop of the diocess might, gious houses. if he would, claim him as a clerk, and he was to see 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 some place as he should think meet, and if the prisoner could read, then the bishop was to have him delivered over unto him to dispose of in some places of the clergy, as he should think meet. But if either the bishop would not demand him, or that the prisoner could not read, then was to be put to death.
And this clergy was allowable in the ancient times and Concerning the law, for all offences whatsoever they were, except treason allowing of the and robbing of churches, their goods and ornaments. But clergy to the by many statutes made since, the clergy is taken away for Clergy allowed murder, burglary, robbery, purse-cutting, horse-stealing, in all offences and divers other felonies particularized by the statutes and robbing of to the judges; and lastly, by a statute made 18 Elizabeth, churches, and the judges themselves are appointed to allow clergy to such now taken as can read, being not such offenders from whom clergy is away by many taken away by any statute, and to see them burned in the 1. In treason. hand, and so discharge them without delivering them to 2. In burglary.
3. Robbery. the bishop, howbeit the bishop appointeth the deputy to
4. Purse-cutattend the judges with a book to try whether they could ting. read or not.
Horse-stealThe third commission that the judges of circuits have, is inges and india a commission directed to themselves only, and the clerk of fences particuassize to take assizes, by which they are called justices of larized in seveassize, and the office of those justices is to do right upon the stat. of writs called assizes, brought before them by such as are Eliz. the judges wrongfully thrust out of their lands. Of which number of are appointed to
allow clergy, writs there was far greater store brought before them in ancient times than now, for that men's seisins and posses- burned in the sions are sooner recovered by sealing leases upon the ground, hand, and to
discharge the prisoners without delivering them to the bishop.
and to see them
and by bringing an ejectione firme, and trying their title so, than by the long suits of assizes.
The fourth commission is a commission to take Nisi Prius 4. Commission directed to none but to the judges themselves and their clerks is to take Nisi of assizes, by which they are called justices of Nisi Prius. is directed to These Nisi Prius happen in this sort, when a suit is begun two judges and for any matter in one of the three courts, the King's Bench, the clerk of the Common Pleas, or the Exchequer here above, and the parNisi Prius. ties in their pleadings do vary in a point of fact; as for ex
ample, if in an action of debt upon obligation, the defendant denies the obligation to be his debt, or in any action of trespass grown for taking away goods, the defendant denieth that he took them, or in an action of the case for slanderous words, the defendant denieth that he spake 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 spake the words; upon which denial and affirmation the law saith, that issue is joined betwixt them, which issue of the fact is to be tried by a jury of twelve men of the county where it is supposed by the plaintiff to be done, and for that purpose the judges of the court do award a writ of venire facias in the king's name to the sheriff of that county, commanding him to cause four and twenty discreet freeholders of his county, at a certain day, to try this issue so joined, out of which four and twenty only twelve are chosen to serve. And that double number is returned, because some may make default, and some be challenged upon kindred, alliance, or partial dealing.
These four and twenty the sheriff doth name and certify to the court, and withal that he hath warned them to come at the day according to their writ. But, because at his first summons their falleth no punishment upon the four and
twenty if they come not, they very seldom or never appear The manner of upon the first writ, and upon their default there is another proceedings of writ* returned to the sheriff, commanding him to distrain
circuits in their
them by their lands to appear at a certain day appointed circuits. by the writ, which is the next term after, Nisi Prius justiThe course the ciarii nostri ad assizas capiendas venerint, &c. of which judges hold in their circuit in
words the writ is called a nisi prius, and the judges of the the execution of circuit of that county in that vacation and mean time betheir commis- fore the day of appearance appointed for the jury above, sion concerning the taking of
here by their commission of Nisi Prius have authority to nisi prius.
take the appearance of the jury in the county before them, and there to hear the witnesses and proofs on both sides concerning the issue of fact, and to take the verdict of the jury, and against the day they should have appeared above, to return the verdict read in the court above, which return is called a postea.
Postea. And upon this verdict clearing the matter in fact, one way or other, the judges above give judgment for the party for whom the verdict is found, and for such damages and costs as the jury do assess.
By those trials called Nisi Prius, the juries and the parties are eased much of the charge they should be put to, by coming to London with their evidences and witnesses, and the courts of Westminster are eased of much trouble they should have, if all the juries for trials should appear and try their causes in those courts; for those courts above have little leisure now; though the juries come not up, yet in matters of great weight, or where the title is intricate or difficult, the judges above, upon information to them, do retain those causes to be tried there, and the juries do at this day in such causes come to the bar at Westminster.
The fifth commission that the judges in their circuits do 5. Commission sit by, is the commission of the peace in every county of is a commission their circuit. And all the justices of the peace, having no lawful impediment, are bound to be present at the assizes to attend the judges, as occasion shall fall out; if any make default, the judges may set a fine upon him at their plea- The justices of sure and discretions. Also the sheriff in every shire through the peace and the circuit is to attend in person, or by a sufficient deputy attend the allowed by the judges, all that time they be within the judges in their county, and the judges may fine him if he fail, or for county. negligence or misbehaviour in his office before them; and the judges above may also fine the sheriff for not returning or not sufficient returning of writs before them. Property in Lands is gotten and transferred by one to
another, by these four manner of ways:
1. By Entry.
4. Most usually by Conveyance. 1. Property by entry is, where a man findeth a piece of of property of land that no other possesseth or hath title unto, and he lands to be that so findeth it doth enter, this entry gaineth a property;
gained by entry. this law seemeth to be derived from this text, terra dedit
of the peace.