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Again (p. 280), "The lord of a leet shall not prescribe to amerce the petty jury for their false verdict, the same being found by the grand jury; for it is no good custom, but they may be amerced for concealing of any thing which is presentable there, and this is by custom; M. 9 Hen. 6, 42, Custom."
Greenwood (on County Courts, &c.,) in adverting to the institution of the Court Leet (p. 275), observes, "This court is a court of record in all things that appertain to the tourn or leet, and the sheriff of the tourn or steward of the leet are therein judges of record. For whosoever hath the leet hath the same authority within the precinct as the sheriff hath within the tourn." Again (p. 9), "Every bailiff of franchises, deputy and clerk of every sheriff and undersheriff, and every other person which hath authority or takes upon him to return any inquest, jury or tales, or to intermeddle with the execution of process in any court of record, are, as well as the undersheriff, to take the oath mentioned in that statute for the due execution of their office, or forfeit 407.; 27 Eliz. c. 12."
Scroggs, in his instructions for holding a court leet, after noticing the usual form of proclamation, and that the suit roll should be called over and the constables, &c. questioned as to their compliance with the orders they received at the previous courts, says (p. 15), "Then choose a jury and name a foreman, whose oath is as follows:-You shall well and truly inquire and true presentment make of all such articles, matters and things as shall be given you in charge; the king's counsel, your companions' and your own you shall keep secret and undisclosed. You shall present no man for envy, hatred or malice, nor spare any man for fear, favour or affection, or any hope of reward; but according to the best of your knowledge and the information you shall receive, you shall present the truth, the whole truth and nothing but the truth, so help you God."
Kitchin in his general directions for holding a court leet, (p. 12,) says, "After this (viz. calling the suit roll and entering the essoins), the jury shall be impanelled, and first one shall be sworn, and after three or four together, and the oath shall be as followeth :-You shall inquire and faithfully make presentment of all things which I shall give you in charge; your companions' counsel, the king's and your own you shall keep, and you ought to present the truth and nothing but the truth, so help you God (t).”
Again (p. 13), "If any stranger be there, if there be not sufficient residents there to be impanelled, the steward may impanel a stranger
(t) In terminating the charge to the jury (p. 40), Kitchin says, "Go together and inquire ye of the matter of your
charge, and when you are agreed I shall be ready to take your verdict."
there, for that it is to inquire for the king," &c., cites 3 Hen. 7, 4. Again (p. 224)," If there be not twelve to be sworn, the steward may swear a stranger which comes within the view to be sworn in leet;' cites S. C. And again (p. 89), "If there be not twelve to be sworn, the lord (u) may cause strangers to be of the enquest;" cites 2 Hen. 7, 4.
In the Court Keeper's Companion, printed in 1717, after pointing out that the court leet is to be opened by the bailiff by three proclamations requiring the attendance of the suitors, and that the resiant rolls to be delivered in by the constables or tithing-men should then be called over, the following direction is given (p. 3) :-" The resiants of each tithing being called over, proceed to impanel your juries, by calling upon the bailiff or tithing-man for the return of the court leet jury; and after proclamation made, say: You good men that are returned on the jury to inquire for our sovereign lord the king in this court leet,-answer to your names," &c.
A very useful work intitled "The Compleat English Copyholder," printed in 1735, in the instructions given to stewards of courts leet, says (p. 348)," The steward must call on the reeve or bailiff for a return of the jury, which must consist of twelve at least," and "having made choice of a foreman he must call over the jury, [and] fine those that do not appear," &c.
In Fitzherbert's Nat. Brev. under the title " Writ pro exoneratione secta ad curiam com' vel baron," it is said—
"And if a man have lands within the precinct of several leets or in one county, and he dwell within the precinct of one of them, and he be distrained to come unto another leet within the precinct of which he dwelleth not, then he shall have a writ unto the sheriff or bailiffs of the court, &c. that they do not distrain him to come to that leet within the precinct whereof he dwelleth not; and the writ is such :
"The king to his bailiffs of the honour of C. in the county of Lincoln; or to the bailiff of A. of B. in the county of, &c. greeting: Whereas by the common council, &c. that they who have lands in divers hundreds have no necessity to come to the view of frankpledge except in the bailiwick where they shall be dwelling; we command you that you distrain not A. to come to the view of frank-pledge in your court or in the court of your lord of the honour aforesaid, in the county aforesaid, against the form, &c. and the distress, if any, &c.
"And it appeareth that if the party be distrained after that he hath
(u) Unless this word be meant only to express the power of the court, or be a misprint, an inference might be drawn from the observation that the law permits
the lord to hold his own court leet, contrary to the more general opinion, and to which the author has assented in the beginning of the present section.
sued the writ directed unto the sheriff or bailiffs that they do not distrain him, that he shall have an attachment against them: but it seems reasonable that first he have an attachment against the sheriff, or against the bailiffs who distrained him to come to the leet in the hundred where he is not dwelling, if he be dwelling within the precinct of another leet, because the statute of Marlebridge is a prohibition in itself, and he who doth contrary to the statute doth wrong unto the party, upon which he may have an attachment without suing forth any writ.
Note, That men or women who have entered into religion ought not to come unto the sheriff's tourn or unto the leet of any other without great cause; and if they be distrained to come, they may have a writ out of the Chancery to discharge them, which shall be such:
"The king to the sheriff, &c. Whereas by the common council, &c. that men who have entered into religion have no necessity to come to the sheriff's tourn, &c.; or thus, to the view of frank-pledge, unless their presence be required for some special cause; we command you that you distrain not the abbot of I. to come to your tourn; or thus, to the view of frank-pledge in your hundred of F. against the form of the provision aforesaid, and the distress, &c.
"And the abbot shall have such a writ unto the bailiffs of another lord that they do not distrain him to come to his leet."
The ancient form of precept from the steward to the bailiff on assembling a court leet was as follows:
"W. S. gent. steward of the hundred [or manor] of S. To the bailiff of the same hundred [or manor] greeting. You are hereby required to warn the leet to be kept by your hundred [or manor] [or leet and court baron to be kept for the hundred of S. and manor of A.] the first day of April, &c., by nine of the clock in the forenoon of the same day, at the usual place there [or at the now dwelling house of, &c. as the case is]. Given under my hand, &c." (x).—Or
"J. K. steward to the bailiff thereof, health: I command likewise and appoint, that diligently you give to understand the view of frank-pledge, of the court there to be held against the Thursday, that is to say, the sixteenth day of October next coming after the date of these presents, and have there this command: And as, &c. Dated under my seal the first day of this month of October, &c." (y).-Or thus:
"A. B. gent. steward of the manor or hundred or leet aforesaid. To the bailiff thereof, greeting: I command you, that you summon and warn all the tenants of the said manor, as well residents as not
(*) Shepp. 25.
(y) Kitch. 11; Greenw. 284.
residents, and all customary tenants of the manor aforesaid, that they be before me at H. aforesaid, on Thursday the 26th day of March next coming, to do then suit unto the view of frank-pledge, and all things thereunto belonging, &c. Dated, &c." (z).
The form of precept to the bailiff for assembling the court, given in Scroggs (p. 13,) (and the same form is given in the book called The Compleat English Copyholder, p. 346,) is as follows:
"A precept to warn the tenants, and summon a jury at a court leet.
To the bailiff, &c.
Manor of S. These are to will and require you to give public notice within the said manor, that the court leet and view of frankpledge for the same manor, (with the court baron of A. B. esquire, lord of the said manor,) will be holden at the, on Monday the
day of, at ten of the clock in the forenoon; and that you warn all the tenants of and resiants within the said manor, that do owe any suit or service at the said court, that they and every of them personally be and appear at the time and place aforesaid, then and there to do and perforin the same. And likewise that you summon twenty and four honest and lawful men of the said manor to be and appear at the time and place aforesaid, to inquire for our sovereign lord the king of all such matters as to the said courts do appertain; and that you yourself be then and there also personally present, and have you there the names of such persons as you shall have so summoned, and this precept. Given under my hand and seal, &c."
It is, the author thinks, but a fair conclusion from the foregoing observations and references, that the bailiff of a leet jurisdiction is an indispensable officer, possessing functions of no trivial importance, and bearing a very close resemblance to the sheriff in his present ministerial character, as far, at least, as respects the criminal branch of his office (a).
The remark of C. J. Abbott in the case of Holroyd & Breare, already cited at some length (b), that the steward of a court baron is not a minister of that court, but a constituent and essential part of it, appears to the author to sustain the analogy between the sheriff at this day and the bailiff of a court leet.
No mandate (observed his lordship) is directed to the steward, but
(z) Jenk. Pac. Cons. 3.
(a) But the sheriff is a constituent part of the county court, so that he is not responsible for the acts of his bailiff done in execution of the judgments of the court;
Tinsley v. Nassau, 1 Moody & Malk. 52; ante, p. 689, n. (e).
(b) Ante. p. 605 et seq.; vide Bradley v. Carr, Maude & Wilkinson, 3 Mann. & Gr. 221; ante, 607.
he makes his mandate to the bailiff, and (added the Ch. J.,) there is this material distinction between the mandate of the sheriff and that of the steward of a court baron; in the former, the sheriff commands the bailiff to make the levy, and concludes, " So that I may have the same before the court, &c.;" but in the warrant of the steward, the bailiff is directed to levy, so that he (the bailiff) may have the same before the court on the day appointed.
It is true that in the particular case the question arose upon the execution of the process of the court, which was a court baron, where the suitors are the judges; but if the steward of that court, possessing at most a qualified judicial character, is not responsible for a ministerial act, it is no easy task to reconcile that irresponsibility with the execution of a ministerial duty by the steward of a court leet, who presides as judge of the court, with reference more particularly to the justly admired principles of the trial by jury, ingrafted by act of parliament, or usage, on the Anglo-Saxon jurisprudence; nor does the difficulty seem to be diminished by any supposed amenability of the steward for a violation of his judicial functions.
In the case of The King v. Harrison (c), a motion was made in the Court of B. R. for an information in nature of a quo warranto against the steward of a court leet, (which, according to a MS. note of the late Mr. Serjt. Hill in the margin of the report of this case in the author's possession, was the court of Birmingham,) and against the bailiff and constables, for impanelling a jury not duly summoned, the bailiff being alleged to be the proper officer to summon the jury, who should be all freeholders. It appeared that six persons stated to have no right were sworn, and that six freeholders who were present, and who had not been summoned, refused to be sworn and act with them, and thereupon the steward swore six more, and the jury, so constituted by the steward, chose the bailiff of the manor and constables. A rule was obtained for the defendant to show cause why an information should not go against him. On showing cause he relied on the refusal of the six freeholders to be sworn, and the constant course of choosing such officers, urging that it would be dangerous to make a precedent of trying the right of such choice by a quo warranto. The court observed, that there was no room for any complaint against the constables or bailiff, but, if any, it was against the steward, and a rule was made for him to attend, and to show cause why an attachment should not go;-the rule for the rest was in the meantime enlarged.
With the principal and more important duties of the bailiff of the court leet, the author is disposed, therefore, to class that of im
(c) 8 Mod. 135.