However that may be, the Conqueror’s Law forms too remarkable a feature in his Legislation to be passed over in silence. It forbids the punishments of death and hanging for any crime, but orders, that the eyes of the offenders should be plucked out, or their feet or hands &c. amputated, ita quod truncus vivus remaneat in signum proditionis et nequitiæ suæ!! (LL. Gul. Conq. p. 218. Ed. Wilkins.)
[37] “Theft and manslaughter,” says the Regiam Majestatem, “belong to the Sheriff when any certain accuser appears: not so when those crimes are taken up by dittay.” (c. 1. L. 1.) “The Sheriff in the Tourn (for that is to be intended) held plea of Theft,” says Lord Coke. But this part of his jurisdiction was taken away by 17. c. Mag. Cart. (Vide 2 Inst. 30-1.)
[38] Medletis, or, as in Harl. Cotton. and Bodl. MSS. melletis. From Bracton it is to be collected, that some instances of this offence fell under the Jurisdiction of Lords of Franchise, and on their default, reverted to the Sheriff; whilst other instances fell under cognizance of the crown, a distinction confirmed by the Reg. Majestatem (vide Bracton 154. B. Reg. Maj. L. 1. c. 2.) The term is said to be derived from the French mesler. (Vide 3 Inst. 66. Spelm. Gloss. and Cowell’s Interpreter.)
[39] The Reg. Maj. makes this allegation a ground of the Sheriff’s Jurisdiction (L. 1. c. 3.) “In this distinction, between the Sheriff’s Jurisdiction and that of the King, we see the reason of the allegation in modern Indictments and Writs, “vi et armis,” “of the king’s crown and dignity,” “the king’s peace,” and “the peace,” this last expression being sufficient, after the peace of the Sheriff had ceased to be distinguished as a separate Jurisdiction.” (Vide Reeves’s Hist. Eng. Law. 1. 113.)
[40] Our author explains this term, B. 9. c. 11.
[41] Recognitiones. Upon the words facere recognitionem, Sir Edward Coke thus comments.—“Cognitio is knowledge or knowledgement, or opinion, and Recognition is a serious acknowledgement, or opinion upon such matters of fact as they shall have in charge, and thereupon the Jurors are called Recognitores Assisæ,” (Vide Co. Litt. 158. b.) Our author treats largely on Recognitions in the [12th Book], to which we refer the reader.
[42] We learn from Bracton, that the Sheriff was in the habit of exercising Jurisdiction over many Pleas which did not belong to him ex officio; but, in such cases, he acted by the King’s precept, not as Sheriff, but as Justiciarius Regis, (Bracton 154. b.) The distinction is important, and seems not unknown to the Grand Custumary of Normandy. (Vide c. 2.)
[43] Breve, a Writ. When causes became so frequent that the king was unable to attend to them, says Craig, he remitted them to the Judge, by means of Instruments containing a brief summary of the chief points. Hence the name Breve. (Craig Jus Feud. L. 2. Dieg. 17, s. 24.) So early as Henry the first we find, that contemptus Brevium was an offence, subjecting the person guilty of it to be amerced to the king. (LL. Hen. 1. c. 14.)
[44] Clamat. Vide Spelm. Gloss. ad voc. Craig Jus Feud. L. 2. Dieg. 17. s. 25. and L. 3. Dieg. 5. s. 2.
[45] Vide Fitz. Nat. Brev. p. 5. Ed. 1687. As this is the first writ we meet with, it may not be improper to observe, that, in rendering the writs, the Translator has for obvious reasons endeavoured to adhere to the technical phraseology generally used in that species of process.