Common Pleas. Dy. Dyer sometimes Lord Chief Justice of the Common Pleas. Dr. certain Directions or Resolutions of the Judges of Assize Anno 1643. Co. Sr. Edward Coke sometimes Ld. Chief Justice of the King's Bench viz. his Book of Reports Co Lit. Sr. Edw. Coke's first part of his Institutes upon Littleton Fi. M. Hen. Finch Apprentice del Ley. P. Pl. Plow Mr. Plowden's Commentaries Ras. or Rast Rastals Abridgment oâ— the Statutes Lib. Intr. The Book of Entries Cr. Cro. or Crom. Cromptons Justicâ— of the Peace P. Po. or Pol. Mr. Polton's Abridgâ—ment of the Statutes P. R. Mr. Polton deâ— pace Regis B. A. Sr. Francis Bacon his Elementâ— of the common Law B. A. V. his use oâ— the Law Resol of the Judges Resolution of the Judges of Assize Anno 1633. to certain Queries Wing Wingates Abridgment of the Statutes As for the Statutes cited I conclude they are easy to be directed to by what is set down from the Names of the Kings and Queens as 2 R. 2. the Second of Richard the second 6 Hen. 7. the sixth of Henry the 7. P. M. Philip and Mary El. or Eliz. Queen Elizabeth Jâ—c or Jacobi I. King James the first and so of others For where there have been more Kings of a Name than one the figure is set down to distinguish that King in what Reign the Statute was made from the rest as Edw. 1. Edw. 2. Edw. 3. Edw. 4. The Experienced Justice of Peace In Respect to his Power in and out of Sessions in many Cases of great Importance useful for Justices their Clerks and others CHAP. I. The Antiquity of a Justice of the Peace his Power and what he may do the Execution of his Office in many material Cases THE Power of a Justice of the Peace is very great and is a main Propp and Pillar of good Government in taking Care to prevent and Punish Offences whereby the Peace is Conserved and Men maintained in their Rights and the Possessions of their Goods and Chattels c. peaceably whereas were there not such Over-awing Magistrates Offenders would be Imboldened to make more frequent Depredations and Strength and Violence would seize upon what the Weaker could no ways defend against them were not the Law by this means very much their Aid and Safeguard This Office is of great Antiquity and has all along held up a venerable Esteem and Good-liking among the People who find great Advantage and Benefit by those so Commissioned being usually Men of Estates Discreet and Judicious capable of discerning Truth from Falsehood and to relieve the Injured and restrain Oppressors to punish Criminals and Discharge the Innocent and Faultless Justices of the Peace were Created 1 Ed. 3. Chap. 15. Dalt 6. Lamb. 10. But they were first named so by 36 Edw. 3. Chap. 12. A Justice of the Peace is a Judge of Record from whence called Justices and before 1 Ed. 3. they were called Conservators 3. Cro. 29 c. He may take Recognizance of Peace which none can do but a Judge of Record Lam. 186. Dalt 8. Crompt 196. a Num. 1. He is called Commissioner of the Peace by reason he is Authorized by the King's Commission so Custos Pacis or Keeper of the Peace the same with Justiciarius Pacis or Justice of the Peace And the Constitution of Justices of Peace is Inherent and Inseparable from the Crown Stat. 27. Hen. 8. And this Power cannot be Transferred 20 H. 7. His Warrant is not to be disputed by the Constable for any thing wherein he hath Jurisdiction of the Cause Dalt 8. Cap. 147. 6. c. In some Cases the Testimony of a Justice of the Peace is of as great Force and in some Cases greater than an Indictment of 12 Men upon Oath viz. In Case of Presentments of Highways Force Riot Dalt 9. Lamb. 65. A Justice of the Peace being Assaulted may Commit the Party so offending to prison Dalt 371. Lamb. 134. Crompt 68. a. If a Justice see one about to make an Affray and charge him to keep the Peace and he answers he will not he may bind him to his good Behaviour Dalt 294. A Justice of the Peace must proceed by Prescript of the Statute and Commission Dalt 22. Where the Statute referre to the Tryal to the Justice's Discretion it seemeth he may examin upon Oath Dalt 20. Every Justice of the Peace is a proper Conservator of Rivers within his County Lamb. 189. And Justices of the Peace at Sessions are of equal Authority Lamb. 385 c. Vide Crompt 122. a Nu. 33. If a Felon be brought before a Justice of the Peace upon suspicion though it appear to the Justice he be not guilty nevertheless he may not be set at Liberty but so that he may come to his Tryal Lamb. 233. Dalt 389. Cro. 40. b. Nu. 20. Otherways it will prove a voluntary Escape in the Justice for he is not to be delivered by any Man's Discretion Dalt 8. Lamb. 223. CHAP. II. What may be done by a Justice of Peace Ex Officio c. HE may Record a Demurrer upon Evidence Lamb. 539. He may give Day to the Party to bring in Records which is before other Justices which is Pleaded by way of Justification Lamb. 539. In Absence of the King's Attorney a Justice of the Peace may take Issue with one that Pleadeth a Pardon that he is one of the Parties Excepted Lamb. 540. A Justice of the Peace may take Money for the Security of the Peace in deposito where Bail cannot be procured and which upon the Party so depositing the Money breaking the Peace shall be forfeited to the King Just Berkley 1 Cro. 446. If upon supposing an Indictment to be void the Justices have discharged the Prisoner paying his Fees yet upon change of their Opinion they may stay him any time before Judgment Lamb. 540. Justices of the Peace may inquire of all manner of Felonies at the Common Law or given by any Statute and of all manner of Trespasses against the King's Peace and such Trespasses wherein Actions of the Case will lye for Trespasses or Deceit and in the end of the Writ grounded upon the Case It is contained Contra Pacem nostram Crompt 8. a. Num. 25. Defaults against the Statute of 3 Hen. 6. Chap. 11. For Levying of Wages for Knights of the Shire are to be heard and determined by Inquiry for the King or Action for the Party before the Justice of Peace Lamb. 512. A Justice of the Peace has no need to shew his Commission by which he is made Justice of Peace when he Justifieth the doing of any thing as a Justice for he is Justice of Record and the Commission remaineth with the custos Rotulorum of the same County and he is called by Commission in open Assize or Sessions Crompt 120. b. Nu. 13. Lamb. 387. A Justice of Peace may have his Action of the Case against the Party that calleth him false Justice of the Peace it also
c. p. 64 Chap. 30. Penalties upon Forestallers of Markets Fairs c. Badgers Drovers Butchers Tanners Inholders what they may do and what not c. p. 66 Chap. 31. Rates of Wages for Servants according to Statute-Law c. and how to be ordered by Justices of Peace c. p. 70 Chap. 32. The Office of a Coroner his Fees and upon what Statutes and other warrantable Authority he is to proceed p. 72 Chap. 33. Some other Matters relating to the Coroner's Office and Duty in view of Dead Bodies out of Rastal c. p. 75 Chap. 34. Murther how to be taken and what is observable therein to make it so wilfully c. p. 77 Chap. 35. Homicide and Man-slaughter Felo de se c. p. 79 Chap. 36. Involuntary Homicide p. 82 Chap. 37. Customs Advantages c. peculiar to the City of London Statutes made in its favour of the Court of Request commonly called the Court of Conscience c. p. 84 Chap. 38. Where an Action will lie before the day of Payment to find better Sureties by the Custom of London p. 85 Chap. 39. Marking a Cause in the Mayors Court after a Verdict given in the Sherriffs Court to be done p. 90 Chap. 40. Some Matters relating to Orphans in London p. 91 Chap. 41. Of the Court of Common-Council for London p. 94 Chap. 42. The Anâ—iquity of a Constable his Oath and other things concerning his Office c. p. 96 Chap. 43. The Office and Duty of a Constable Headborough c. in Serving or Executing Warrants directed to him by Justices in Commission c. p. 102 Chap. 44. The Office of a Constable c. how it ought to be executed c. relating to Affrays c. p. 105 Chap. 45. The Constables Office relating to Arrests or Escapes of Prisoners Felons c. p. 107 Chap. 46. The Office of a Constable c. relating to Hue and Cry p. 108 Chap. 47. The Constable's Office c. more particularly to the Conservation of the Peace p. 110 Chap. 48. The Office of a Constable c. relating to the strict Observation of the Lord's-day p. 113 Chap. 49. The Constable's Office c. about hired Servants Labourers c. p. 115 Chap. 50. The Constable's Office relating to Popish Recusants and Conventicles p. 118 Chap. 51. A Constable's Office relating to such as shall disturb Ministers in time of Divine Service c. and what relates to Physicians p. 121 Chap. 52. The Constable's Office and Duty in time of Plague and Pestilence c. p. 122 Chap. 53. The Constable's Office c. relating to Routs and Riots and what they are p. 124 Chap. 54. The Constable's Office relating to Rogues Vagabonds sturdy Beggars c. p. 125 Chap. 55. A Copy of a Testimonial as in this Case the Law directs p. 126 Chap. 56. The Constable's Office in disposing of the Wives and Children of Rogues Vagabonds or sturdy Beggars p. 130 Chap. 57. The Constable's Office relating to Ale-houses Inns c. p. 131 Chap. 58. The Constable's Office relating to Weights and Measures in Cities Towns Corporate c. p. 134 Chap. 59. The Constable's Office in seâ—â—ing and ordering the Watches Forcible Entries c. p. 135 Chap. 60. The Constable's Office relating to Hedge-breakers Destroyers of Vnderwoods c. p. 137 Chap. 61. The Constable's Office in case of Landlords Distraining for Rent c. p. 139 Chap. 62. The Constable's Office in providing Carriages for the King c. p. 141 Chap. 63. The Constable's Office relating to the King's Game Fishery Excise and Custom p. 142 Chap. 58. The Constable's Office relating to Clothiers and Irish Cattel c. p. 145 Chap. 64. Rates for the Relief of poor maimed Soldiers Mariners Prisoners c. how to be gathered and ordered c. p. 147 Chap. 65. What particular Things and Matters High Constables ought to return before the Justices in Sessions and to be returned to them by the Petty Constables in their respective Jurisdictions p. 149 Chap. 66. The Constable's Office relating to Stoned Horses p. 151 Chap. 67. The Constable's Office relating to such Persons as prophaâ—ely Swear and Curse p. 152 Chap. 68. The Constable's Office farther relating to Vagabonds and Beggars and Collecting Monies for Building and Repairing Goals p. 154 Chap. 69. The Constable's Office relating to such as make or put bad Mault to Sale c. p. 156 Chap. 70. The Churchwardens Office c. Its Antiquity and Dignity how to be chosen what they are to do in keeping the Lord's-day and what relates to them as to Church-Goods c. p. 157 Chap. 71. The Churchwardens Office in Repairing the Pews seating Persons in the Church c. what Rates to make for the Repair of the Church c p. 160 Chap. 71. Choice of Surveyors giving up their Accompts making Distress Forfeitures Presentments and where they may give them in c. p. 163 Chap. 73. The Grounds of Presentments or Articles given whereon to found Presentments that the Church-wardens may know what to do in this Case p. 165 Chap. 74. Several Matters for the Instruction of Churchwardens c. p. 168 Chap. 75. The Office of the Overseers of the Poor what degrees of Poor to have regard to c. p. 169 Chap. 76. What relates to the Overseers in putting poor Children Apprentice c. p. 174 Chap. 77. How far the Overseer is concerned in settling the Poor also concerning Bastards c. p. 176 Chap. 78. The Office of the Overseers of the Poor in making Rates and making and delivering up their Accompts upon going out of their Offices c. p. 179 Chap. 79. The Office of the Overseers of the Poor in receiving Fines to the Vse of the Poor of Destroyers of Game unlawfully Fishing also relating to Measures and Burying in Woollen p. 183 Chap. 80. Of Fairs Markets â—oll-keepers Clerks of Markets Measuring and Sealing c. p. 185 Chap. 81. The Office of Surveyors of the Highways in mending the Ways and Rating p. 183 Chap. 82. The Office of a Surveyor iâ— draining the Roads making Presentments and how he may be reimbursed for Moneys laid out c. p. 191 Chap. 83. Matters concerning Surveyors c. p. 194 Chap. 84. Directions to Surveyors concerning Wains or Carriages on the Road. p. 195 Chap. 85. Directions to the Scavengers and Managers of Sewers p. 197 Chap. 86. Within what times Rates are to be made and by whom how the Scavengers are to account for them c. p. 200 Chap. 87. Things useful to be known by Surveyors Scavengers c. putting out Lights c. p. 201 READER Observe these short Directions to know the Authors being Alledged or quoted as you find them set down through the whole Book LAm or Lamb. or Lambt Mr. Lambert's Justice of Peace Dal. or Dalt Mr. Dalton's Country Justice of Peace Br. Brook sometimes Ld. chief Justice of the Common Pleas. F. or Fitz. Fitzherbert sometimes one of the Judges of the
Wrongs CHAP. VII What Six Justices of the Peace Conjunct in the Execution of their Office may do c. SIX Justices one being of the Quorum may Execute the Laws of Commissioners of the Sewers Dalt 219. They may appoint a Common-goal for the Sheriff to have the Custody of it 13 Hen. 8. Six Justices in Commission of the Peace with the Justices of Assize by 12 Rich. 2. C. 1. Eight Justices of the Peace beside the Lords by 14 Rich. 2. c. 11. So two Lawyers in every County 18 Edw. 3. c. 2. The greatest part of the Justices of the Peace to order the House of Correction in every County The greatest part to Tax other Parishes for the Poor where there is an Insufficiency in the Parish or Hundred 43 Eliz. c. 2. So to employ the Overplus of the Maimed Soldiers Stock to the Use of the Poor 43 Eliz. c. 3. And to Tax for the Relief of Maimed Soldiers So to Accounts of Treasurers for Maimed Soldiers 43 Eliz. c. 3. CHAP. VIII What is to be considered and meant by the next Justice in a County c. THE next Justice may License Mariners to Beg having been Shipwracked 39 Eliz. c. 4. Lamb. 303. Dalt 209 227. Where the Statute ordereth the Justice most nigh to do Execution c. As in 13 Hen. 4. Of Riots under the Penalty of 100 l. for Forfeiture he is excused if another Justice not next do the Office He may chuse Fishermen to be Mariners by the King's Commission 5 Eliz. c. 5. Lamb. 359. Dalt 139. The next Justice is to send a Prisoner to a Work-house c. 30 Caroli 2. CHAP. IX Of certain Forfeitures by Statute given to 8 Justices of the Peace FOR every Day he sits upon the Statute of Labourers not exceeding 3 Days 5 s. So the Mayor or Head Officer in Corporatins c. Out of the Fines arising on the Stat. c. For every Day which Sessions is kept which may be 3 Days they shall have out of the Fines coming to the Sheriffs Hands by reason of the Sessions 4 s. and their Clerk 2 s. Two Justices of the Peace shall have a part of defective Cloth Seized and Forfeited 5 Edw. 6. Lam. 359. Justices who examine Offences of Deer-Hays and Buck-stalls shall have the tenth part of Forfeiture 19 Hen. 7. c. 11. CHAP. X. The Fees of Justices of the Peace or such as they ought to take in the following Cases according to Crompt 176. a. and Dalt 78. FOR a Recognizance of the Peace 2 s. For a Recognizance to Bail a Prisoner 2 s. For a Supersedeas of the Peace 2 s. For a Warrant of the Peace Sealed 2 s. For a Release of the Peace 2 s. For a Warrant not of the Peace 4 d. For a Recognizance of an Ale-house-keeper 12 d. For the Inrolment of a Deed the Land not exceeding 40 s. per Annum To the Justice one Shilling and to his Clerk one Shilling But if the Land exceed 40 s. then 2 s. 6 d. to the Justice and the like to his Clerk CHAP. XI Where a Justice of the Peace lies liable to be Fined for Neglecting or Transgressing in his Office or Duty c. IN the Case of Bailing one not Bailable and refusing to Bail one Bailable and Detaining him he lies liable to a Fine and to pay double to the Prisoner 3 Edw. 1. C. 15. 23 Hen. 6. C. 10. In the Statute against Riots if he does not Execute it he is Finable 100 l. 13 Hen. 4. So in that of forcible Entry 10 l. 8 Hen. 6. In neglecting to take Order about a House of Correction 5 l. to go towards the building it 1 Jacobi 1. C. 4. Exercising his Office before the Oath taken Dalt 14. For not being present at the Annual Tax of Servants Wages 10 l. 5 Eliz. c. 4. If a Justice of the Peace does not in 40 Days certifie unto the King's-bench Presentments of Extolling the Pope's Power he forfeits 100 l. 5 Eliz. C. 1. For Imbeseling wilfully Raising maliciously Inroling an Indictment not found changing an Indictment of Trespass into Felony is Fine and Imprisonment and loss of Office Lam. 631. CHAP. XII Where a Justice of the Peace lies liable to Punishment HE may be Imprisoned for taking Bond in his own Name and not in Domino Regi the Matter concerning the King 33 H. 8. C. 9. For Conspiring with another to Indict a Stranger at the Sessions otherwise as a thing done by him as Judge Crompt 122. a. Num. 32. Where a Justice fails to do Justice he may be put out of Commission and Punished 4 Hen. 7. C. 12. Crompt 120. H. Num. 6. Lam. 370. So for refusing to take Surety for the Peace when it is Tendred Vide Crompt Jurisdiction of Courts 31 B. For Embeseling and Rasing Records he forfeits his Office and may be Fined Vide antea CHAP. XIII Some Directions in making out or granting Warrants by a Justice of the Peace and how to be Executed A Warrant in Writing must be under the Justices Hand and Seal his Hand at least Dalt 460. Lamb. 85. 88. However it is better if it be Sealed as the usual way is Dalt 460. A Warrant of the Peace or good Behaviour must contain the special Matter Dalt 460. Lamb. 87. A Warrant for Treason Murder or such like capital Offence need not contain the special Matter or Cause Dalt 160. Crompt 148. a. If a Justice of the Peace being out of the County Grants his Warrant to be served in the County the Officer making the Arrrest must carry the Party before some Justice of the Peace within the County Lamb. 91. Dalt 461. A Justice of the Peace may make his Warrant to come before himself yet in a Warrant for the Peace the usual manner is otherways Co. 5. 59. Dalt 461. Upon a General Warrant an Officer may chuse to go before what Justice he pleases Dalt 49. 5. Co. 59. B. If a Justice of the Peace make a Warrant beyond his Authority it is not disputable by a Constable or other Officer but must be obeyed unless it be to do a thing out of the Justices Jurisdiction in a Cause where there is no Judge for if in this latter Case the Officer Execute the Warrant he is punishable Dalt 8. 465. Lamb. 65. Crompt 147. B. Lamb. 91 92. Dalt 865. A Warrant directed to two joyntly to Arrest a Party he may be Arrested by either of them A Warrant made in the King's Name ought to be made to all Ministers as well within Liberties as without Dalt 355. Warrants may be made either 1. in the Name of the King or 2. in the Name of the Justice and either of them must be testified by the Justice from whom they Issue or 3. without stile by Superscription of the Justice Dalt 385. See more of Warrants in the Office of Constable in this Book and how they are to be Executed Sessions held by one Justice of the Peace is not good though
it were Summoned by two and Stiled by their Names but two sufficient Justices Warrants Sealed Quorum c. Vide Dalton c. Quarter Sessions are to be held 4 times in the Year viz. The first Week after St. Michaeâ— The Epiphany the close of Easter and after the Translation of Thomas the Martyr which is July 7. 2 Hen 5. Chap. Lamb. 597. Dalt 531. Justices of the Peace shall hold their Sessions 4 times in the Year viz. One within the Octaves of Epiphany the second in the second Week of Lent the third between the Feasts of Pentecost and St. John Baptist the fourth within the Octaves of St. Michael 36 Edw. 3. Chap. 12. Dalt 531. Crompt 123. B. Nu. 15. c. The place where Sessions is to be held is Arbitrable and therefore though by Summons they are to be kept in one place yet they may be kept in another but then there can be no Amercement for Default of Appearance Lamb. 383. 384. But they must be kept within the County Dalt 531. So in a Town Corporate but not to intermeddle Two Sessions at one time for one County Lawfully Summoned at two Places are good but Appearance at one shall excuse the default of an Appearance at the other and Presentment taken before either of them shall stand good Lamb. 384 But Punishable without notice At a General Sessions all Matters Enquirable by Justices of the Peace either by Statute or their Commission ought to be given in Charge otherwise at special Sessions Lamb. 613. And may be held 3 Days 606. 12 R. 2. Chap. 10. At the Quarter Sessions Officers and Ministers of the Court and Jurors of the County owe their Attendance Lam. 386. Jurors not appearing according to Summons are Punishable for loss of Issues the usual part of Estreats Constables making Default are Fineable The Justices of the Peace if need require may keep a special Sessions by Virtue of their Commission or by the Statute 1 Hen. 5. Chap. 4. Lamb. 623. All Matters within the Commission or Statute may at a special Sessions of the Peace be given in Charge yet they are at liberty to give in Charge either all or any of them Lamb. 623 624. If two Justices of the Peace one being of the Quorum make a Precept to the Sheriff for the holding a Sessions at such a Place and Day and to return a Jury before them other Justices cannot by their Supersedeas Inhibit it Crompt 126. B. But the King by his Writ of Supersedeas may Discharge it Ibid. All that come to the Sessions for publick Service or upon Compulsion upon Complaint and Examination of the Matter upon Oath shall be freed from any Arrest upon Original Process Lamb. Cro. 190. B. Lamb. 402. Indictments are many times Tried the same Sessions wherein the Persons were Indicted yea the same Day before Justices of Goal Delivery or Justices of Oyer c. Dalt 537. 1 Cro. 315 438 448. But in Case of Felony it seems very reasonable to be deferred to the next Sessions upon Cause shewn it being so in an Indictment of Nusance generally and life is more to be valued and favoured c. Dalt 537. Many things of great Import cannot be done but at the Sessions and some but at such a particular Sessions Dalt 537. Of the first sort are the Discharge of Apprentices Ill-used Badgers Licensed Officers Sworn after the Sacrament received proved and declaring against Transubstantiation c. Dalt 538. The second is taking Accounts for Maimed Soldiers of the Treasurers and for Charitable Uses c. 43 Eliz. in Easter Sessions the Rates of Wages in Easter Sessions and 6 Weeks after Dalt 538. Making Order in the Chamber after the Adjournment of the Sessions as for the Bastard-Children and Settlements and some other Things and Matters But not to be tedious to the Reader I shall hear close Treating of Matters of this Kind and proceed to others Executed CHAP. XIV Of Mittimus's and their Form and what is to be considered in them c. A Mittimus must contain the name of the Party or Parties his or their Offences and the time of Imprisonment that it may appear whether the Prisoner be Bailable or not Lamb. 297. Dalt 439 406. Crompt 153. A. Num. 11. If one be Committed without Bail or Main-prise and the Cause be expressed in the Mittimus and yet is Bailable other Justices may Bail him yet Quaere seeing their Authority is equal Dalt 439. But if no Cause be expressed other Justices shall not do well to Bail him without the Privity of the first Justice or Justices because the Cause of Commitment probably may not be Bailable Dalt 439. If the Mittimus be General the other Justices that Bail must take notice at Peril Ibid. There is a Writ called a Mittimus for removing Records of Outlawry Judgment in the King's-bench c. Unto the common Place or an Act of Parliament unto the King's-bench c. See of this 1 Cro. 134 298. Hob. 111 135. The Form of the Mittimus see To send Rioters to Goal Lamb. 321. To send Shooters in Pieces to Goal 229. Dalt 515. To send upon Forcible Entry c. Lamb. 150 520. To send to the House of Correction Dalt 513. To send an Ale-seller without License Dalt 512. To send a Reputed Father of a Bastard Ibid. CHAP. XV. Of Recognizances what they are and how and in what Cases to be taken by a Justice of the Peace c. A Recognizance of a Bond of Record Testifying the Recognizor to owe a certain Summ of Money to some other and that Acknowledgment of the Summ is to remain of Record and none can lawfully take it but a Judge or Officer of Record Dalt 457. Every Recognizance taken by a Justice of the Peace must be made by these words Domino Regi and great Care to be had in so doing for it is Imprisonment for any Person to take it otherwise For these Words Domino Regi import and Imply the Recognizor is bound to our Lord the King and not to any other 33 Hen. 8. Chap. 9. Crompt 196. B. Num. 11. Lamb. 162. Dalt 276. Sureties in Recognizance ought to be Subsidy Men and they must be two besides the Party himself Dalt 276. Lamb. 101. It is in the Discretion of a Justice of the Peace if he take a Recognizance Ex Officio to appoint the Number of the Sureties their Sufficiency in their Goods and Lands and the Summ of Money and how long the Party shall be bound Dalt 275. Lamb. 100. Recognizance for the Peace unless the words be expressed for keeping of the Peace seemeth void Lamb. 103. Dalt 204 276. Coram non Judice So it is if a Recognizance be that the Recognizor shall not Beat or Maim B. without the Expressing the keeping the Peace in it Ibid. A Recognizance expressing no Time of Appearance but generally to keep the Peace is good Ibid. And so these few may serve to give a Light into others for
it 898. and is held to appoint the first High and Petty Constables in England which Offices have ever since continued in good Esteem nay the Saxon Word makes the Antiquity of Constables plain in Etymology The Saxon being Coning or Cyng and Staple or Stable which signifies a Stay or Prop to the King that is to the Government in laying Hands on Offenders and bringing them to Justice and though the High Constable of England's Office usually a Noble Man appointed by the King is ceased yet the High Constables of Hundreds in a great measure retain and hold up the Power as to what concerns the Civil Government and these are chosen most usually in each County by the Justices in their General Quarter Sessions or their respective Divisions for they have Power to give them Authority and to discharge them of their Office as they shall see cause The High Constable is as it were Overseer or Director of the Petty Constables Headboroughs or Tything-men which are chosen under him in the respective Towns Villages or Precincts within his Hundred or such Franchises as are under his Jurisdiction by the consent of the Inhabitants or the Majority of them and their Duty it is to execute the High Constables Office in his Absence in keeping the Peace and good Order in their respective Limits and upon the High Constables Order to be aiding and assisting to him so far as concerns his Office And now since both these are necessarily Sworn upon entring on their respective Offices it will be requisite for the better understanding of what they undertake by entring on so weighty a Trust to set down the Form of their respective Oaths before the Justices c. The Oath to be taken by a High Constable You shall swear that you shall well and truly serve our Sovereign Lord the King in the office of a Constable you shall see and cause his Majestys Peace to be well and truly kept and preserved so far as in your Power lyeth you shall Arrest all such Persons as in your sight or presence shall Ride or go Armed offensively or shall commit or make any Riot Affray or any other Breach of his Majestys Peace you shall do your best Endeavour upon complaint to you made to apprehend all Felons Barretors and Rioters or Persons Riotously assembled and if any such Offenders shall make resistance with force you shall Levy Hue and Cry and shall pursue them till they be taken you shall do your best endeavour that the Watch in and about your Hundred be duly kept for the apprehending Vagabonds Rogues Night-walkers Eves-droppers Scouts and other suspected Persons and of such as go Armed and the like and that Hue and Cry be duly rais'd pursued according to the Statute of Winchester against Murtherers Thieves and other Felons and that the Statutes made for Rogues Vagabonds and such other idle Persons as come within your Bounds and Limits be duly put in Execution you shall have a watchful Eye upon such Persons as shall maintain or keep any Common House or Place where any unlawful Gamâ— is or shall be used as also to such as shall frequent or use such Places or shall use or exerâ—c se any unlawful Games there or elsewhere contrary to the Statutes At your Sessions Aâ— size or Leets you shall present all and every the Offences done contrary to the Statutes of the 1.4 and 21 of James the first to restrain the inordinate haunting and tipling in Inns Ale-houses and other Victualling Houses and for the repressing Drunkeness you shall there likewise true presentment make of all Blood-sheddings Affrays Outcries Rescous and other Offences committed or done against the Kings Majestys Peace within your Limits you shall once every Year during your Office present at the Quarter Sessions all Popish Recusants within your Liberty and their Children above Nine Years Old and their Servants viz. their Monthly Absence from the Church 3 Jacobi 1. Chap. 4. You shall well and duly execute all Precepts and Warrants to you directed from the Justices of the Peace of the County or Superior Officers you shall be aiding to your Neighbours against unlawful purveyances In time of Hay or Corn Harvest upon request you shall cause all Persons meet to serve by the day for the Mowing Reaping or getting in of Corn and Hay you shall in Easter Week cause your Parishoners to chuse your Surveyors for the mending the High Ways in your Parish or Liberty and you shall well and duly according to your Knowledge Power and Ability do and execute all other things belonging to the Office and Duty of a Constable so long as you shall continue in the said Office By this Tenor of an Oath a Constable may gain a considerable Light into what he is to do in the Management and Execution of his Office being as it were an Epitome of what I shall hereafter set down more intelligibly and plainly to be understood But this Oath is often administred in Abstract to a Petty Constable Tything-man c. So that what I now recite suffices The Petty Constable c. his Oath You shall swear that you well and truly execute the Office of a Tything-man of the Tything of B. or Headborough c. his Majesties Peace in your Person you shall keep and see it kept in others as much in you lyeth in the Presence of the High Constable you shall be aiding and assisting to him and in his Absence you shall execute his Office according to your Power and Knowledge till an other be chosen in your Place or you be Legally Discharged So help you God The High Constables in their respective Hundreds are Conservators of the Peace at Common Law as are the Petty Constables in their respective Towns and Liberties and have a large Power to back and support them in the Execution of their Office if they proceed within the Bounds of it for it is so ordered that if an Action be brought against a Constable Headborough c. or their Assistants for any thing done by reason of their respective Offices they may plead the General Issue and give the special matter in Evidence 7 Jac. 1. Chap. 5. 21 Jac. 1. Chap. 22. Wingate's Abridg. Stat. Tit. Evidence c. And if it so happen any Action be brought against one or more of them it is so provided that it shall be layed in the County where the Fact commenced and if the Verdict pass for the Defendant he is to have double Costs and this to be recovered as other Defendants recover their Costs by 7 Jacobi 1. Chap. 5. 21 Jacobi Chap. 1â— Windg Abridg. Stat. Tit. Evidence For indeed a Constable Legally chosen is compelled to serve the Office being a fit Man able of Body and in Substance and it would go hard if for every trivial slip he should run the risk of being Ruined by Vexatious Suits for if a Constable c. Legally Elected to the Office do refuse to serve and take the Oath unless
a Quaker and then according to the late Statute for taking the Oaths c. his Affirmation will hold good in lieu of an Oath he may be bound over by the Justices to the next Sessions or Assize and there Prosecuted for a Contempt But passing over these I now come to direct the Constable c. in the more material Parts of his Office wherein he may readily order and manage his Affairs in d scharge of his Duty without running into Inconveniences or Hazards that may being Trouble and Charges upon him for whatever the Fancy of some is a Constable is no more a Priviledged Man than any other where he exceeds the Bounds of his Office in unaccountable Actions And the first Particular I shall offer is his Duty in Serving of Warrants directed to him by Justices in Commission for the Peace or other Magistrates having Power to grant Warrants and how far he may be safe in this and where he may err CHAP. XLIII The Office and Duty of a Constable Headborough c. in Serving or Executing Warrants directed to him by Justices in Commission for the Peace c. IF a Warrant be brought to a Constable or other Sworn Officer his safest way is to Charge the Party making the Plaine to Assist him in the King's Name and shew him the Party or Parties mentioned in the Warrant unless himself be well acquainted with him or them lest a Mistake by the Names agreeing may run him into an Error in taking the wrong Party and if he be a Sworn known Officer he may refuse to shew his Warrant but must declare to the Party he goes to Arrest what is therein charged against him but it is otherwise where a Warrant is given to be served by one who is not a known Sworn Officer as a Justices Servant c. For there upon demand he must produce the Warrant or the Party on whom it is Served may refuse to Obey and Lawfully Resist If a Constable Arrest a Man or Woman in the Kings Name pretending he has a Warrant and at that time has none but presently goes and gets one the Party may bring an Action of false Imprisonment against him and recover such Damages with Cost as shall be Awarded Coke 6.69 If a Constable have a Warrant against A. B. the Son of L. B. and he takes into his Custody A. B. the Son of R. B. though he happen to be the Offender against whom the Complaint was made yet he goes from his Warrant and doing thereby an unjustifiable Action there lies an Action of false Imprisonment against him 10 E. 4. Fol. 12. If a Constable Arrests a Man with a Warrant from a Justice of the Peace and having him in Custody takes his Word to come again another time by his so dismissing him the Warrant is void and cannot be Served again But if a Rescue be made or the Prisoner Escapes without the Officer's Consent then upon fresh Pursuit he may take him with the same Warrant as often as he is Rescued or Escapes and may pursue him into another Town or County though he be out of sight C ompt 214. a. and 184. Cro. 53 114. If a Justice send a Warrant for a Matter wherein he hath Jurisdiction though he goes beyond his Authority yet the Officer is bound to obey it and his producing his Warrant saves him harmless the Justice being then to answer for it but on the contrary if a Justice Issues out a Warrant for a Matter out of his Jurisdiction where he is no Judge of the Cause the Constable is not bound to Obey it for he is bound to take notice of the Jurisdiction and Authority of the Judge and where the Justice as is said can be no Judge of the Matter charged in the Warrant he is no more bound to Obey him than if he had no Commission 14 H. 8. Co. 10. â—6 If a Warrant be directed to an Officer to serve on a Person for ordinary Matters the Warrant not specifying the Cause but only to answer to all such Matters as shall be objected against him or her this is held to be an illegal Warrant and the Officer that Executes it lies liable to an Action of false Imprisonment Cook 's Institutes part 4. Tit. de Frangent Prison However for Reason of State Warrants for Treason or such as are Granted by the Lords of the Privy Council Secretaries of State or the Lord Chief Justice of England these need not set forth the Cause by reason they are usually granted on Matters of great Importance where Secrecy is required If any Party be taken by a Legal Warrant and make Resistance the Constable in the King's Name may command Assistance and if the Resisting Party be Beaten or Wounded the Amends is in his own Hand for Opposing the King's Authority but if the Constable or any of his Assistants be Beaten or Wounded the Party is Indictable as likewise liable to an Action at Common-law and if any of them Die of the Beating and Wounds within 12 Months it is Murther Persons refusing to assist a known Sworn Officer charging them in the King's Name lye liable to be bound over to the Sessions and Fined at the Discretion of the Justices and the like for those that shall contemn or abuse a Justices Warrant by tearing treading under Foot or any way defacing it c. over and above being bound to the good Behaviour for it is a Contempt against the King's Process Crompt 144. CHAP. XLIV The Office of a Constable c. How it ought to be executed relating to Affrays c. IF a Constable be present at an Affray he may command the standers by in the King's Name to assist him in keeping the Peace and upon Complaint of the Constable the Inquest may Indict the Party refusing and be F ned by the Justices at their Sessions for refusing to do his Duty If a Constable or other such like Officer be present when one Man or Woman Assaults another or with violent Words threatens to beat or kill any one and be in a fury ready to break the Peace In such case the Constable Headborough c. may commit the Offenders to the Stocks or some other safe place of Custody till he can carry them before a Justice who may upon Complaint compel them to find Sureties for the Peace or good Behaviour and for want of such Sureties commit them to Prison 3 Hen. 4 9 and 10. Bacon's use of the Law c. Where any Affray is like to be the Constable in the King's Name may command them to depart on Pain of Imprisonment and if they refuse he may take them into Custody or Indict such as refuse if any harm be done at the next Sessions and if a Constable be present at an Affray and does not his Endeavour to prevent it and seize the Offenders he lies liable upon a Presentment of the Jury to be Fined Dalton's Justice of the Peace c. 1. Fol. 4. 5. A
High Constables of the Hundreds are every Year once in the Year at the General Sessions held for the Peace to present Popish Recusants for their Monthly Absence from Church and return the Names of their Children above Nine Years of Age being then with their Parents also their Servants together with the Age of their Children as near as they can compute or to forfeit 20 s. for every such Default which Presentments the Town-Clerks or Clerks of the Peace are to Record without taking Fees for them under a Penalty of 40 s. 3 Jacobi 1. Chap 4. Wingates Statutes Tit. Crown And if the Minister Petty Constable and Church Wardens of any Parish shall make a Complaint to the Justice of Peace that he or they suspect such a one to be a Popish Recusant but have no Proof of it then the Justice may tender the Party the Oaths in that case appointed and upon Refusal if above the Age of 18 he may commit the Party to Prison till the next Assize and then if again refused it is Premunire in a Man but a Woman Covert shall only suffer Imprisonment and remain without Bail till she take the Oath of Allegiance c. 7 Jacobi 1. Chap. 6. Wingate's Stat. Tit. Crown Dalt Just P. Chap. 45. Folio 108. By a Statute the first of William and Mary no Papist or reputed Papist refusing to make and subscribe the Declaration they are obliged to by the 30 Caroli 2. and the Oaths enjoyned in an Act for removing and preventing all Questions c. about the Assembling and Sitting of this present Parliament shall at any time after the 15th Day of May 1689 have or keep in his own Possession or at his Disposal any Horse or Horses valued above Five Pounds they are to be sold and that any two or more Justices of the Peace by a Warrant under their Hands and Seals may or shall Authorize any Person or number of Persons assisted by a Constable or his Deputy Headborough or Tything-man who are herein required to be Aiding and Assisting to search for and seize to the use of their Majesties and their Successors all such Horses above Five Pounds value as aforesaid And further note that upon any time a Proclamation being issued out to amove Papists at a distance from the City of London and Westminster other Cities and Towns Corporate the Constables by Warrant from the Justices of Peace are to make diligent search and give in the Names and places of Abode of such as stay beyond the time limited that so they may be prosecuted for their Contempt And note that ignorant persons may not be mistaken by bearing too much upon the Act made in the first Year of K. W. Q. M. for Exempting their Majesties Protestant Subjects Dissenting from the Church of England from the penalty mentioned in the 35 of Elizabeth and the 22 Caroli 2. It is thereby Enacted That all persons that take the Oaths and make and subscribe the Declaration therein mentioned shall not be liable to the penalty of the two former penal Acts against Conventicles However if any such Assembly of persons Dissenting from the Church of England meet for Religious Worship with the Doors Locked Barred or Bolted during any times of such Meeting together all and every such person or persons that shall come to and be at such Meeting shall not receive any Benefit from the new Law but be liable to all the Pains and Penalties recited in the Statute of 35 Eliz. and 22 Caroli 2. for such their close and concealed Meeting And further if any person differing from the Church of England a Protestant Dissenter shall be chosen to the Office of High Constable Petty Constable Churchwarden or Overseer of the Poor or any Parochial or Ward-Office any such person shall scruple to take upon him any of the said Offices in regard of the said Oaths or any other Matter or Thing required by the Law to be taken or done in respect of such Office may execute the said Office or Offices by a sufficient Deputy by him to be provided that will comply in taking the Oath c. and such a one as shall be well approved Note that the People called Quakers in Cases of Oaths may tender their Affirmation by Virtue of a late Act of His present Majesty King William the Third and that in Breach of such Affirmation they incur the Penalties as in case of Perjury CHAP. LI. A Constable's Office relating to such as shall disturb Ministers in time of Divine Service c. And what relates to Physicians TO keep Peace and Decency in Churches Chappels and such like Places of Divine Worship Note That if any one not having Authority to do it shall disturb a Preacher Lawfully Licensed Preaching Praying or at the Administration of the Sacrament either by entring into Dispute Humming Talking Laughing or any voluntary Disturbance in Ridiculing c. Any Constable or Church-warden of the place is Authorized immediately to Apprehend him or her so Offending and carry the Party before a Justice of the Peace of the same County who may commit the Offender to safe Custody and within six Days Conjunct with another Justice of the Peace examine the Matter and if it be evidently proved by two Witnesses Commit him or her to the Common-goal there to remain by the space of 3 Months and from thence to the next Quarter Sessions where upon the Offendors Reconciliation and entring into good Security for his good Abearing by the space of one whole Year he may be Released but upon standing in Contempt and remaining obstinate he shall be continued in Prison without Bail till Penitent 1 Mary 1. Sess 3. Chap. 3 Wingate's Stat. Tit. Sacraments c. And any one Rescuing such an Offender shall suffer the like Imprisonment and over and above forfeit 5 l. And the Inhabitants suffering such an Offender to escape upon Presentment before the Justices in their Sessions of the Corporation or County by the Authority aforesaid are liable to forfeit five Pounds In the City of London and seven Miles adjacent the Constables and other Officers are to be Assisting to the President of the Physitians Colledge in order to the due Execution of the Laws and Statutes belonging to the said College on Pain of a Contempt against the King's Majesty according to the Statute of 1 Mary 1. Sess 2. Chap. 9. Wingate's Stat. Tit. Physitians c. CHAP. LII The Duty and Office of a Constable in any Calamitous Time of Plague and Pestilence c. IF Persons Infected with the Plague be by the Constable commanded to keep their Houses and yet Contemptuously go abroad and Converse with other People then having the Plague Sore upon him or her it is Felony and if Infected and not having any Plague Sore yet for such Offence they are liable to be punished as Vagabonds by the Order or Appointment of a single Justice of Peace and further be bound to the good Behaviour for the space of one whole