to imprison a man yet have they not power in any case to deliver a man imprisoned again And therefore if a Constable in case of an Affray commit an Affrayor to the Prison the Constable may not afterward set him at liberty again Or if he take a man upon a suspicion of Fellony and he doth afterwards perceive some cause to make him believe the party apprehended is Innocent in the matter yet may not the Constable deliver him but he must continue in Prison untill he may be delivered by order of Law either at the Sessions or otherwise as the cause shall be And yet if an Officer shall only put the Affrayors apart into the Stocks or into some House or Room as it seems he may untill the hear be past in this case the Officer of his own head may set them at liberty again 21. Every person that shall be Allowance Charge of a Prisoner sent to Gaol by a Justice of Peace having means and ability of his own must bear his own charges to be levyed of his Goods and Chattels by the Constable upon a Warrant to him sent by a Justice of Peace and not having goods then to be born by the Parish where the Fellon is apprehended by an indifferent Assessment to be made by the Constables and Church-wardens and two or more of the Inhabitants by allowance of a Justice Numb 20 of Peace 22. If any of these Officers What Pleas these Officers shall have being said 21 Jac. 12. 7 Jac. 5. shall be sued for any thing done by them in the execution of their Offices or if any suit be brought against their Deputies or any others which in their aide or assistance or by their commandement shall doe any thing touching their Offices this Action must be laid in the County where the thing was done otherwise the Defendant shall be found not guilty howsoever the case be And in all Actions brought against them for the causes aforesaid they need not plead the speciall matter but may plead the generall issue and give the speciall matter in evidence And if the Verdict upon triall pass with the Officer or the Plantiff be Nonsuit or suffer his Action to be discontinued the Defendant shall recover his double costs susteined in Costs the said Suit 23. These Officers all the rest hereafter named must take care that they take nothing of any man for any work they do in the Extortion execution of their office more than is allowed them and is their due for this offence in them is extortion and punishable by Fine and Imprisonment 24. These Officers as well as other Account are to give an account to the Parishoners of the monies they doe any way receive And this if they refuse to doe they may no doubt be compelled unto by the Justices of the Peace at their Quarter-Sessions 25. And as touching Numb 21 the disbursments of these Officers about the execution Expences and disbursments of Officers of their Office as for the carriage of Prisoners to Gaol the conveying of Rogues and the like whereby any speciall Act of Parliament they are to be allowed it or any thing towards it and the means of recovering it is set down there they shall have the same allowance and they must pursue that means for the recovery of it And so in all cases where the offender is sent to Goal by a Justice there is a means appointed by the Statute of 3 Jac. 10. by the sale of the offendors Goods or a Rate by the Parish as before But in other cases also it seems very reasonable that they should be allowed it again from the Parish and if the Parish will not allow it perhaps the Justices of Peace upon the complaint of the Officer may devise some way and doubtlesse they will doe what they can to relieve him And therefore he is to call his Neighbours or as many as will come and with them or without them if they refuse make an equall Rate sufficient to pay all his necessary charges and expences in the doing of his Office and it will be good to get a Justice hand to it if he can and if any refuse to pay it let him complain to the Justice of Peace who will either binde him that refuseth to the Quarter-Sessions or finde some other way to bring him to reason But as touching their ordinary expences for meat drink c. in their travells for this it seems there is no remedy but that the Officers themselves must bear it Howbeit in these things the custome of the place is to be continued SECT 2. Of the Office of the High and Petit-Constable about the Peace THe authority and duty of all these Officers High-Constable and Petit-Constable by the Common-Law consisteth much about the Peace of the Common-wealth and herein in three things First In foreseeing that nothing be done that tendeth either directly or by means to the breach of the Peace Secondly in quieting or pacifying those that are occupied in the breach of the Peace And thirdly In punishing such as have already broken the Peace And here lest any man should be deceived Breach of the Peace what it is in the not understanding what is meant by the breach of the Peace it must be known That by the breach of the Peace is to be understood not only that fighting which we commonly call the breach of the Peace but also that every Murther Rape Man-slaughter and other Fellony whatsoever and every Affraying or putting in fear the People of this Common-wealth whether it be by unlawfull wearing of Armour or by assembling of people to doe any unlawfull act are taken to be disturbances and breaches of the Peace For the better preventing of the breach of Numb 1 the Peace and that nothing be done against it First Any one of these Officers may without Warrant from a Justice of Peace ex officio Against suspected persons as Nightwalkers and the like Stat. of Winchester 13 Ed. 1. 4. 5 Ed. 5. 14. 13 H. 7. 10. Fitz. Office J P. 200. 1 H. 7. 7 Bro. Tres 432. and of his own authority by night or day arrest suspected persons strangers and others that walk in the night and sleep in the day or haunt Bawdy-houses or other suspicious places or shall doe or commit any outrage or misdemeanor For if a Constable be informed of a lewd man and woman that are together and about to be incontinent and lewd he may take with him so many of his neighbours as he will and arrest the same man and woman or any such disorderly person and bring them to a Justice of Peace to be bound to the good behaviour 2. And the better to apprehend such persons Bawdrie they are to see and take care that Watch and Ward be duely kept And for this these things are to be known 1. None but Inhabitants of the same Town are compellable to Watch and Ward 2. It must
such like cases a man may justifie the arresting of the party suspected 3. What shall be said a sufficient cause of suspicion Tryal what not shal be tryed by the Judges 4. It is the duty of these Officers to doe their utmost indeavour with all diligence to finde out and apprehend Fellons And if there shall be herein any neglect found in them especially if it be for favour or reward they may be grievously punished And for this Search cause they may and they must after a Fellony is done either by or without the Warrant of some Justice of Peace make diligent search for him that did it in all such places within their Numb 10 Liberty as they shall understand to be likely to finde him in for it is the chief part of their Office to represse Fellony and albeit it be a mans house he doth dwell in which they doe suspect the Fellon to be in yet they may enter in there to search and if the owner of the house upon request will not open his dores Braking of a house open lawfull it seems the Officer may break open the dores upon him to come in to search And so also it seems the Officer may search for goods stoln as he may for the Fellon himself that doth steal them and if the Officer upon search cannot finde the Fellon it is his duty to raise a Hue and Cry and send him directing it to these Officers whose duty it is carefully to Hue and Cry pursue them as soon as they receive them and it is the duty of all other men being called upon by Officers and at the Cry of the Country to be ready to pursue and arrest Fellons and upon the Hue and Cry any man may atrest him that is taken with the things be he never so honest and he may deliver him and the goods to the Constable of the Town to be kept safely 5. If they be about to arrest any man suspected of Fellony they may require the aid Ayd and help of others both to arrest and carry to prison the party suspected and the parties required must in this case help them at their perill 6. If a private man arrest another man as he may upon his own suspicion and then deliver him to the Constable of the place he 10 Ed. 4. 17. Fitz. J. P. 21. must then look to him that he suffer him not to escape at his perill but that he bring him and the party with him that did arrest him to Carrying of a Prisoner to Gaâ—lâ— a Justice of Peace or that he bring the party arrested to the Gaole for in this case the Constable may not refuse to take charge of a Fellon so brought unto him by another And if there be no Constable of the place where the party is apprehended and the party that doth arrest doth bring the prisoner to the Constable of the next Parish it seems this Constable in this case is bound to take charge of him at his perill 7. If a man flie for Fellonie the Constable Seizâ—re of Goods Fitz. J. P. 201. of the Village where his Goods are must seize them and keep them safe and not part with any of them but so much only as is needfull for the sustentation of the Prisoner and if the Numb 11 goods be impaired the Constable must answer for them and therefore it will be his wisdom to take them by Inventory and in the presence of honest neighbours 8. An Action of Trespass was brought by a man for an Assault and Battery of his Servant whereby he did lose his service three dayes and the Defendant pleaded that A was robbed at midnight of Goods to the value of two pounds whereupon the said A came to the Constable and prayed him to search for the Search suspicious persons and to apprehend and arrest them and accordingly he did search and Arrest found the same servant walking suspiciously in the street in the night and therefore he would have arrested him but the said servant fled and would not yeeld to the arrest and the Defendant by the Constables commandement pursued and took him This was adjudged a good Plea in Barre For when a Fellony is committed the Constable or any others upon suspicion of persons that are suspicious may arrest them and if they will not yeeld to the arrest but assault him or them that doth arrest him they may justifie the beating of him for that he doth resist the Peace Beating justifiable Hue and Cry 29 Ed. 3 9. Pulton de Pace 12. 5 H. 7. 4. and Justice of the Common-wealth when he doth forcibly strive to flie and not to be justified by it If a Hue and Cry be levyed and pursued that a Horse of such a colour or mark so many Beasts of such a sort or age or so many Sheep of such a brand be stoln and Numb 12 one is taken leading or driving of the said Horses Beasts or Sheep In this case it is lawfull for these Officers or any other man to stay and apprehend him and if he that doth apprehend him be not an Officer he may commit him to the Constable of the place where he is apprehended and by him to be put in the Stocks or safe kept until he be delivered by course of Law though the party apprehended be not a man of evill name or fame but a man of good credit for seeing the Law hath by the Hue and Cry accused him he must be by a course of Law again acquitted and discharged And in this case he that is so taken shall not have an Action of Trespass Fals-imprisonment Arrest or other remedy against him that pid apprehend him or against the Constable to whom he was committed albeit he be afterwards acquit of the Fellony In an Action of Fals-imprisonment the Defendant pleaded 27 H. 8. 13. That there was a Fellony done and he suspected the Plaintiff to have done it and therefore he arrested him In this case this was held no good Plea for he should have shewed some ground and cause of his suspicion And in an Action of fall-imprisonment it is no Plea for the Defendant to plead That it was told him that the Plaintiff had brought the Cattel to the Town and put them in a blinde corner and that there was great cause of suspicion that the Plaintiff had stoln them whereupon he did arrest him for suspicion only without a Fellony committed is no cause to arrest another And in an Action of false-imprisonment the Defendant pleaded That J. S. was poysoned and that the common voyce and fame of the Countrie was That the 5 H. 7. 4. 2 H. 7. 15. 11 Ed. 4. 4. Plaintiff had poysoned him whereupon the Defendant apprehended the Plaintiff and committed him to prison as was lawfull for him to doe And this was adjudged a good Plea in Barre of the said Action for common voyce and fame of the Country
Arrest be so as usually it is or put him in some Stocks until he can conveniently have strength to goe with him without carrying him to Stocks a Justice of Peace and then must the party remain in Prison until he shall voluntatily offer and finde Sureties according to the Warrant And if the party upon the first demand thereof made by the Officer doe yeeld to goe and finde Sureties then may not the Officer absolutely arrest him And if he be obstinate and will not yeeld to the Officer but resist him the Officer may justifie the beating Beating or hurting of him And of this Warrants execution and of his proceedings upon it the Officer must give an account to the Justices of the Peace at their next Sessions of the Peace And if the party doth yeeld to goe to a Justice of Peace to give Surety according to the Warrant but will not goe to the same Justice that made the Warrant but to some other Justice he doth name herein the Officer may if he please suffer him to have his will howbeit in this case the Law doth give the election to the Officer and he may bring the party before what Justice of Peace he please And yet if the Warrant be to bring the party before the same Justice of Peace that made it In this case the Officer must bring him before the same Justice and cannot bring him before any other And if the party being before the Justice of Peace refuse to give Surety according to the Warrant and the Warrant have words of authority to the Officer to carry him to the Gaol as most commonly every Warrant hath then Carrying to Gaole may the Officer carry him to prison without any new Warrant from the same or any other Justice of Peace so to doe And in these Cases also the Officer is to consider whether the Warrant doe come directly from the meer authority of the Justice of Peace or else be grounded on a Writ of Supplicavit sent down from the Warrant higher authority which difference ought to appear in all well made Warrants For if the Warrant be grounded on such a Writ then may the Officer compell the party to goe to the very same Justice or Justices of Peace that made the same Warrant or else he may carry Dalt J. P. 137. him to Gaole Neither is it requisite in this case that the Officer should dance up and down after the party untill he can finde out Sureties but he may detain the prisoner untill he can 5 Ed. 4. 6. bring Sureties to the Officer And the Officer that doth arrest a man upon such a Warrant of the Peace or Good-behaviour must see that he doe afterwards bring the party to the Justice of Peace to give Sureties or to the Gaol for if he doe not so he may be punished for it by fine at the Sessions and as it seems also by Action of Fals-imprisonment at the suit of the party arrested And if the party against whom such a Warrant is granted hearing thereof Numb 16 doth as oft times he doth offer himself with Sureties for the cause to some other Justâ—ce of Peace and he doth binde them or he findeth Sureties in some of the Courts at Westminster and so hath a Supersedeas out of Supersedeas the Chancery upper-Bench or from any Justice of the upper-Bench or from any Justice of Peace of that Countie directed to all the Officers of the County to discharge the same Surety of the Peace or Good-behaviour and he hath the same ready to shew to such Officer as shall come to him with the Warrant as Arrest aforesaid and doth shew and deliver the same to him when he is about to execute the same Warrant In this Case the Officer is not to meddle with him For if the Officer shall require the party to obey the arrest he may refuse it and if the Officer shall arrest the patty he may have an Action of False-imprisonment against the Officer for it And by this Supersedeas the Officer is discharged of any duty touching the Warrant of the Justice of Peace directed to him But let the Officer see that he keep his Supersedeas safe for his discharge if he be questioned for not serving the Warrant And it is not amiss for him to give notice of the same to the Justice of Peace from whom he received the commandement of service that thereby he may see the cause why the same was not done But in these Cases some say that another Justice of Peace cannot discharge the Warrant of the first Justice of Peace untill the party be bound indeed Howbeit if such a Supersedeas come to the Officer that hath the Warrant to arrest it seems that by this he is discharged and that he is to obey the Supersedeas especially if he know not whether the party have given Bond or not Hitherto we have spoken of the Office of these Officers set forth by the ancient common Laws of the Nation And now we come to speak of the same as it is enlarged by divers Statutes wherein also we shall finde the same difference we had before That by the same Statutes they are required and enabled to doe something as of their own authority and without any commandement or authority from â—â—hers and other things they are required and enabled to doe when they have commandement from the Justices of Peace or some other superior power so to doe SECT 3. Of the Office of the High-Constable and Petit-Constable against Prophaners of the Lords-Day FOR the better understanding of their Duty herein these things are to be known 1. This day is by every one to be sanctified and kept holy and men must be carefull herein to exercise themselves in the duties of Piety and true Religion publiquely and privately and every one on this day not having a reasonable excuse must diligently resort to some publique place where the service of God is exercised or must be present at some other place in the practise of some Religious duty either Prayer Preaching Reading or Expounding the Scriptures or conferring upon the same 2. None may on this day meet out of their own Parish at any sports whatsoever nor may they meet within their own Parish for Boar-bayting Bull-Bayting Enterludes or other unlawfull exercises under pain to forfeit three shillings four pence for every offence to be levyed by distress and sale of Goods and for lack of distress to sit three hours in the Stocks Nor may any one on this day keep or be present at any Wrestlings Shootings Bowlings Ringing of Bells for pleasure Masque Wake Church-Ale Dancing Games Sport or Pastime whatsoever under pain to forfeit five shillings if he be above fourteen yeers old and twelve pence by him that hath the government of him if he be under fourteen yeers old to be levyed by distress and sale of Goods and if no distress be to be had to
more bound there to doe any of the things that doe belong to their office than any Numb 9 other man is Ninthly that in case of pursuit Ayde Broo. Ry. 3. Tresp 431. 3 H. 7. 10. 13 H. 7. 10. 38 Ed. 3. 8. Dalt J. P. 303. and apprehension of Fellons and carrying them to Gaole in case of suppressing Insurections allaying of Affrayes keeping of the Peace execution of the Warrants of Justices of the Peace and the like any of these Officers when need shall be may require the ayde and assistance of so many of his Neighbours or others of all sorts of able men above fifteen years of age as he shall think meet and so also he may doe in case where a man is hurt and dangerously wounded for the apprehending and arresting of him that gave the wound and so also he may doe when a Warrant is sent unto him for the apprehending of a popish Recusant by speciall provision of the Statute of 3 Jac. cap. 4. And if any such person being required by any of these Officers in any such case shall refuse or neglect to aide them he may be fined and imprisoned for it at the Quarter Sessions Tenthly these Officers if they cannot otherwise Numb 10 get in may justifie the breaking open of Breaking of a house Coo. 5. 92. Dalt J. P. 176. 177. 13 Ed. 4. 9. 3. Jac. 4. any mans house in these Cases following viz. to search after or arrest any Person for Treason or Felony or suspicion thereof that is or is thought to be in the House to take a man that hath dangerously hurt another and is fled into the House to appease an affray that is in the House to apprehend a Popish Recusant upon a Warrant to break open the house and upon a Warrant for the Peace or good Behaviour by the opinion of Popham and Clerk Judges of Assise at Cambridge And so generally in all cases wherein the Keepers of the Liberty are Party or where they have any Interest in the business And yet it seems in case of a Warrant to apprehend an Alehouse-keeper for selling without licence and to carry him to Bridewell upon the second Conviction it was doubted by the Judges in their Resol 1633. Sect. 11. But in all these cases the Officer Numb 11 before he doth break open the house Fresh pursuit Pl. 37. Dalt J. Peace 23. Arrest out of the Officers precinct To what Gaol a Prisoner may be carried must signifie the cause of his comming and require them to open the dores Eleventhly where an Officer hath power to arrest a man and being coming to doe it the party doth flye into another County or Hundred in this case the Officer may presently pursue him whithersoever he shall so flie and arrest him there albeit it be in another Hundred or County out of his own Precinct Twelfthly if a man commit a Fellony in one County and be arrested Numb 12 in another County for the same by the fresh Daltons J. P. 297. 298. pursuit of the Officer or some other pursuing him thither in this case the Prisoner must be carried to the Gaole of the County where he is taken and not to the Gaole of the other County And if a Constable be coming to arrest Affrayors and they fly into another County and he pursue and take them there in this case he must bring them before a Justice of Peace of the same County where they are taken where the Officer can doe no more than a private man But if the flight be only into a priviledged or other place in the same County in this case the Officer may in his fresh pursuit thither take him and diâ—pose of him as an Officer and as if he took him within the limits of his own Parish And if a Constable arrest a man upon a Warrant from a Justice of Peace and after the arrest the party of his own wrong getteth away and flyeth into another County in this case the Officer may pursue him and take him there and bring him back to the same Justice of Peace from whom the Warrant came Thirteenthly Nmb. 13 It is dangerous to oppose or hinder Resisting an Officer Coo. 4. 40. 9. 96. Broo. Tres 296. 21 H. 7. 39. Lamb. J. P. 29. 298. Dalt J. P. 297. Murder Trespasse Good behaviour these Officers in the doing and execution of their office For to kill any one of these officers in the doing of his office is wilfull murder and causeth unavoydable death or to beat or wound any such Officer in the doing of his office is a great Trespass to be recompenced with great Dammages And otherwise to abuse any such Officer in the doing of his office is a great Misdemeanour that may cause the offender to be bound to the good Behaviour And if the party that is to be arrested shall make resistance make an assault upon the Officer or labour to get away the Officer may justifie the beating yea and the Beating wounding of him also or he may imprison him in the Stocks for the same But upon a Stocks Warrant of a Justice of Peace for the Peace or good behaviour if the party resist or flye before he be arrested it is said the Officer cannot justifie the beating of him yet if the Officer please he may soon arrest him for if he be a known Officer and doe but say to the Party I arrest you in the name of the Keepers Arrest of the libertie of England albeit he never And so was the opinion of the Lord Keeper the Lord Chief Justice 5. Car. Murder justfiable lay hands upon him this is an Arrest in Law And if a Warrant be sent to any of these Officers to Arrest one Indicted of Fellony he may justifie the killing of the Party if he cannot otherwise take him or being taken if he resist and fly when he is taken Fourteenthly Where any of these Numb 14 Officers hath Arrested a man and hath power Fitz. Cor. 61. 288. 328. When an Officer may imprison a man in another place then the common Prison to imprison him it is held that he may not imprison him in his own house or in any other place but the common prison and the prison also of the same County for he may not carry him to the Gaol of another County except it be in some speciall Case as where one Gaol doth serve for divers Counties or the like and yet upon resonable request as Fitz. Barra 202. 20 E. 4. 6. 10 Ed. 4. 17. 22 Ed. 4. 35. 3 H. 4. 9. Kelw. 45. 11 E. 4. 7. Stocks because it is night or because the Officer doth want strengâ—h enough to carry him to the Goal or to the Justice or because he doth fear a Rescue will be made upon him or the like in these Cases the Officer may put the party in the Stocks and keep him there for a reasonable time viz. untill the morning if
it be at night or untill he can be conveniently provided for strength and ayd to carry him to prison or to the Justice of Peace But some Lamb. J. P. 2. cap. 3. say that an Officer may keep a Prisoner in the Officers own or in another mans house for a time convenient and justifie it whereof others much doubt And therefore the safe way is to keep him in the Stocks or carry Numb 15 him to Prison Fifteenthly If the prisoner How an Officer may use a Prisoner put in the Stocks be taken for Fellony or suspicion of Fellony in this case the Officer may lock the Stocks and if need be he may also put Irons upon the Prisoner And if the Dalt J. P. 300. Officer be to convey him to the Gaol or to the Justice of Peace he may pinion him or otherwise make him sure that he shall not escape Sixteenthly If a private man that is Numb 16 no Officer take another man for Fellony or 10 Ed. 4. 17. Fitz. Office of J. P. 201. suspicion of Fellony within the Precinct of any of these Officers and bring and deliver the Ptisoner to the Officer of the place in this case the Officer is bound to see the Prisoner safely conveyed to the Gaol for if he suffer him to escape he must answer for him Escape And so also it is if there be no Officer in the place where the Fellon is taken and the party carry him and deliver him to the Officer of the next place for it seems this Officer also in this case is bound to look to him at his perill Seventeenthly As touching the execution Numb 17 of the Warrant of Justices of the Peace these How far these Officers are bound to obey the Warrants of the Justice of the Peace 31 H. 8. 9 6. See the Constables Oath Kytch 47. things are to be known 1. In all cases where any Warrant is sent from any Justice of Peace to any of these Officers touching any matter whatsoever concerning the Office of the Justice of Peace it seems he is bound to execute it And therefore it seems that in all cases where any Statute doth enable a Justice of Peace to apprehend any Person to be brought before him or to commit any person to the Gaol as in the cases of those that keep unlawfull Games in their houses or haunt such houses or in the case of men that shoot in or carry Gunns or the like That in all these cases the Justices of Peace are to command these Officers and they are to obey them 2. These Officers must with all respect receive How they must receive and excute the Warrants of the Justices Dalt J. P. 291. the Warrants of the Justice of Peace for if any Warrant be sent from a Justice of Peace to any one of these Officers and he shall shew any neglect or contempt of it as by casting it into the dyrt c. or doe not with all care secrecy and diligence exeecute the same these are misdemeanors punishable and for either of these misdemeanors the party offending may either be bound to the good behavior or be Indicted and fined And by the Statute of 27 H. 8. cap. 5. there is a speciall charge laid upon the officers within the Counties of Wales That they be carefull to execute the Warrants of the Justices of the Peace there 3. Let him then consider what he hath to doe For howsoever this be true that he is not bound to nor may he dispute the authority of the Justice of Peace and whether his Warrant be lawfull or not For if the Justice mistake and goe beyond his authority in the manner of proceeding in a thing wherein for the matter he hath Conusance As if he send a Warrant to him to arrest any man for the Peace or good behaviour without any cause or to take a man for a Fellony when none is done yet in these and such like cases the Officer is bound to execute it and he shall be excused therein But if the thing whereabout the Warrant is be such a matter as is out of the jurisdiction of the Justice of Peace and wherein he is no judg As if he send his Warrant to the Constable to levy of the goods of J. S. 10. l. Debt which he doth owe to him or owe to another and all this appeareth upon the Warrant it self That in this and such like cases it is agreed That the Officer may refuse to execute it and may not without danger obey it And truly to me it seems necessary we distinguish again between things apparent and things concealed and between lesser and more notorious mistakes and it is reasonable to affirm that if the mistake and error of the Justice of Peace be set down in the Warrant and be grosse and notorious As if he send a Warrant to levy of a man 10. l. because he hath sworn an Oath Or send his Warrant to one of these Officers to command him to sell the one half of the Goods of a man convict before him for swearing 6. Oaths when perhaps these Goods may be worth 100. l. or he send a verball Warrant only to one that is absent and out of his presence or send his Warrant to the Constable of the Parish of Dale as Constable of Dale to levy a forfeiture upon an offender for an offence in Sale out of his Precinct or send his Warrant to a Constable to carry J. S. to Gaol because he will not pay him a Debt he doth owe him That in these and such like cases the Constable is not bound to obey him or execute it nor shall he be excused if he doe it But if the Justice of Peace where he hath power to send a man to Prison after ten dayes give Warrant to send him to prison before the ten dayes be out Or if by an Act of Parliament he is directed to send a Warrant under his hand and seal send it only under his hand or contra And where he is to send it to the Constables and Church-Wardens he send is to the Constables or Church-wardens or on the other side and in such like petit mistakes it seems reasonable to me the Officer should be excused if he doe execute it for it is a very hard thing to require of him an exact knowledge of the many Acts of Parliament so variously and incertainly penned herein as belong to his Office and he is in danger to be punished if he doe not execute the Justice of Peace Warrants So that my advise herein to the Officer is to consider well of the Warrant and if he finde the thing to be done nothing but what is ordinary and hath been used to be done by these Officers he is to doe it but if it be to doe any thing unusuall new strange and extraordinary to be well advised e're he doe it Coo. 10. 76. 6. 54. 14 H. 8. 16. Broo. F. Impr. 8. And
if a Justice of Peace send a generall Warrant to an Officer to carry J. S. to Gaol or to bring him before him and express no cause why it seems to me reasonable in both these cases the Officer in the doing hereof is excusable But if the Justice have not good cause for it he may be sued for it And so perhaps he may be though he have cause for the not expressing of it within his Warrant If this Officer doe arrest any man under Warrant pretence of a Warrant let him be sure he have the Warrant first For if the Officer first arrest and bring the man to the Justice and then get a Warrant to doe it this will not make the arrest lawfull 5. A Warrant of a Justice of Peace by word of mouth is as good in some Cases as a Warrant by writing As if a Ryot or other breach of the Peace be in his presence he may by word of mouth command the Officers or any other to arrest the offendors to finde Sureties of the good Behaviour in the first or Peace in the last Case and if they refuse to put in Sureties he may by word of mouth command to convey them to the Gaole But in other Cases he cannot give warrant to an Officer that is absent and out of his presence and if he send a Warrant by Message only to an Officer to arrest a man and carry him to Gaole the Constable may refuse to doe it 6. If any Warrant come from a Justice of Peace to one of these Officers to doe a thing the Officer himself must doe it and he cannot by word or writing make a Deputy or Deputy command another to doe it but he may call what ayde he will 7. In the execution of these Warrants he is to take great care that he follow the contents of his Warrant and not to exceed it for that may be dangerous And yet this must be understood that when any thing is commanded all that doth necessarily conduce to the doing of that thing and without which it cannot be done is commanded also and therefore all that and so much may be done albeit it be not set down in express words in the Warrant And it is said that if a Warrant be made to J. S. and J. K. to arrest J. D. In this Case either of them alone may make the Arrest 8. A Constable or other Coo. 9. 69. 6. 54. 8 Ed. 4. 15. Dalt J. P. 28. sworn or known Officer albeit he be not known to the party arrested needs not to shew his Warrant to the man when he comes to serve it upon him although he demand it but otherwise it is when he that is no Officer shall arrest a man upon a Justice of Peace warrant for he must shew his warrant and the sworn or known Officer also must upon the arrest of the party declare the contents of the Warrant to him 9. A Constable or the Coo. 9. 69. like Officer giveth sufficient notice what he is when he saith to the Party I arrest you in the Arrest what it is name of the Keepers of the Liberty of England c. for this is an arrest in Law and therefore in this case the party arrested at his perill must obey though he know him not to be an Officer for if he have no lawfull Warrant the party grieved may hereupon have his Action of false imprisonment against him 10. The Officer must take care that he take the very party named in the Warrant and not another for if a Warrant be intended against J. S. who is the Delinquent but it be sent against J. D. another man in this Case the Officer cannot arrest J. S. but must arrest J. D. 11. If the Prosecutor for the Peace or good Behaviour after the Warrant sent agree yet the Officer must execute his Warrant 18. When any one of these Officers hath Numb 18 arrested any man for any cause the Officer must take great heed that he doe keep the Prisoner safe and not suffer him to escape Dalt J. P. 292. Escape especially if the arrest be for matter of Fellony for in this Case if he willingly suffer him to escape this offence is Fellony in the Officer And be the cause of the Arrest whatsoever it will if the Officer doe willingly or unwillingly and negligently suffer him to escape and doe not take him again he shall be fined for it according to his offence by the discretion of those that shall be Judges of the cause 11 H. 4. 25. Stamf. 35. for Officers in these Cases may require what help they will And lest any Officer should flatter himself that he may escape with an easie Fine he is to know that the Judges of his fault may set his Fine equall to the value oâ— all his goods if his offence so require And if an Officer take a man upon a Warrant from a Justice of Peace and then letteth him goe and taketh his word that he shall come again to him such a day to goe to the Justice of Peace Arrest and the party cometh not this is an escape in the Officer for which he may be punished and the Officer as it seems cannot now arrest him upon this Warrant But if the party in this or any such like Case escape of his own wrong without the consent of the Officer the Officer in a fresh pursuit may take him again albeit he be out of his sight and out of his Precinct as is before shewed Nineteenthly Numb 19 The Gaoler must receive the Prisoner offered Duty of the Gaoler 4 Ed. 3. 10. 11 Ed. 4. 7. Bro. Faux Impr. 24. 25. 27. unto him freely without taking any thing of them that bring him But it is said that a Gaoler is not bound to receive any Prisoner from an officer immediately but by a Justice of Peace Warrant But it is not safe for a Gaoler to refuse such a Prisoner for if a Constable may in some cases must is bound by the duty of his place to bring some Offenders to Gaol without any Warrant of a Justice of Peace as he is the Gaoler is bound to receive them so brought And if a man be arrested for Fellony and the Constable carry him to the Gaol and the Gaoler will not receive him it is said the Constable must bring him back to the Town where he was taken and that the Town must be at the charges of keeping him untill the next Gaol-delivery But howsoever the Officer must look to him for fear of an escape and in this case the best way for the Officer is to get a Justice of Peace his Warrant to send the Prisoner to the Gaol and hereupon the Gaoler doubtlesse will receive him Twentiethly In what case an Officer maey set a Prisoner at liberty again Fitz. Office of J. P. 130. These Officers albeit they have power in divers cases before and after shewed
is cause of suspicion of Fellony when a Fellony is committed but when there is no Fellony done it seems this is not cause sufficient to warrant the arresting of such a person And yet as before it appeareth the accusation of a man where no Fellony in truth is done by Hue and Cry is cause sufficient to warrant the arresting of such a person as is described by the Hue and Cry In an Action of Fals-imprisonment the Defendant did plead That before the imprisonment A. B. was slain at C. and that the Plaintiff was in the 7 H. 4. 10. Dyer 276. company of those who killed him at the time of the Fellony committed and the common voyce and fame of the Countrie at C. was that the Plaintiff was party to the Fellony whereupon the Defendant finding the Plaintiff at C. arrested him for suspicion of Folony and committed him to the Sheriff c. and this was allowed a good and sufficient Plea 9. If a man doe assault another in or neet Imprisoning him that doth attempt to rob Fitz. Bar. 202. 2 Ed. 4. 26. Numb 13. Carrying one to a Justice or to Gaole the high-way to rob him and he that doth make this assault is taken and brought to the Constable of the place In this case the Constable must take him to his ward and carry him before a Justice of Peace to give sureties for his good behaviour In an Action of Trespass of Assault and Battery and Fals-imprisonment the Defendant pleaded That the Plaintiff lay in wait in a high-way to rob such persons as travelled that way and assaied to rob one L. and drew his sword and commanded the same L. to deliver his purse whereupon L. fled and levyed Hue and Cry and this Defendant be ing travelling that way pursued the Plaintiff and took him and committed him to the Constable Arrest to be put in the Stocks who did it accordingly and this was adjudged a good justification for every man may arrest him that doth a Fellony or him who maketh it apparent that he doth intend and goe about to commit a Fellony for that he doth thereby manifest himself to be a principall breaker of Law and Peace of the Nation 10. The Constable is to levy Hue and Cry Hue and Cry when there is cause and to send it East West North and South and it is best to express in the Hue and Cry the nature of the thing stoln colour and marks and to describe the number of Fellons their Horse Apparel c. And this Officer receiving a Hue and Cry after a Fellon must with all speed make diligent pursuit with Horse and Foot after the offendors from Town to Town the way it is sent and make diligent search in his own Town And the Constable and Hundred both may be punished for neglect herein And all other men must hereupon be industrious to take them Hitherto for the most part we have shewed you nothing but what is of the primitive and immediate authority and duty of these Officers and what they may and must doe ex Officio without any commandement or authority from others But for as much as a great part of their duty especially concerning the Peace resteth in making of due execution of the Precepts of higher Officers and especially of the Justices of Peace who be as it were immediately set over them We are therefore in the next place to shew you some part of that which they are to doe in that behalf Albeit these Officers be subject to the commandements In executing of the Precepts of others of the justices of Gaole-delivery of Oyer and Terminer and of some higher Justices yea and to the Precepts of Sheriffs Lamb. Const off Numb 14. Coroners and Stewards of Leets and of other Officers in some certain Cases yet because they are called upon most commonly by the Justices of Peace so as at this day their Office is for the most part conversant about the execution of their Warrants For if the Justice of Peace doth understand by complaint that any man hath stoln or slain or any Servant or Laborour without License hath departed out of his Masters service or any that liveth idly or suspectedly knowing once in what Parish he is he doth write to any one of these Officers to command him to bring this person before him and then he doth examine him and if he finde cause he doth commit him to some Constable or Officer to convey him to the Gaole there to abide till the Justices meet at their Quarter-Sessions or at their Gaole-delivery that the Law may either condemn or acquit him And to these Precepts these Officers ought especially to shew themselves obedient and then also especially when their Aide is called for to suppress Ryots unlawfull Assemblies and such like notorious breaches of the Peace And 1. howsoever it be so that if a Felloâ— Search Dalt J. P. 289. man have Goods stoln and he doth suspect that such a man hath stoln them and he complain thereof to the Constable so that now Numb 15 the Constable hath cause to suspect him also That the Constable in this case of his own authority without Warrant from a Justice of Peace may search for the Goods and the Fellon and if he finde the Goods seize them and if he finde the Fellon apprehend him yet for the most part the Constable not knowing his authority or the danger is so fearfull and remiss herein that he doth nothing until he have a Warrant of a Justice of Peace to provoke and enable him so to doe And if such a Warrant be sent to him from a Justice of Peace to search Search after Goods stoln and the party that is suspected to steal them the Constable may and must execute this Warrant accordingly 2. If a Warrant come to any of these Officers from a Justice of Peace to bring such a man before him to give Sureties for the Peace or Good-behaviour In this Case the Officer cannot make a Deputy or command another to doe it Deputy Dalt J. P. 290 291. Dalt J. P. 291. Coo. 5. 59. Broo. Faux Impr. 2. Warrant but he may require the aid of others to help himself in the doing of it 3. If a Warrant be directed to this Officer from the Justice of Peace to bring any person before some Justice of the Peace of the County for the Peace or Good-behaviour and the cause as it ought to be is set down in the Warrant In this Case the duty of the Officer is first to finde out the party and having found him to require him in the name of the Keepers of the Libertie of England to goe with him to a Justice of Peace to put in security according to the Warrant The which if he refuse or delay to doe or if he offer to â—un away from him or resist him then must the Officer forthwith arrest him and convey him to the Prison if the Warrant
have broken the same already and are meet to be bound that they shall not thenceforth break it again But it seems this is not Law at this day for it hath been resolved that a Constable ex Officio and without a Warrant from a Justice of Peace may not imprison any man for an assault or affray except he be present at the affray himself In Skarrets Case Hll. 37 Eliz. C B. But in all Cases where an Affray is past this Officer may by Warrant from a Justice of Peace take and imprison the Affrayors and in case where Arrest one is hurt in the Affray and thereby in peril of death he may ex Officio and without any such Warrant arrest and imprison the Affrayors For in this Case when one hath received a dangerous hurt in the affray the officer after the Affray is past may and must arrest and imprison him that did the hurt till he give Surety to appear at the next Gaol-delivery or otherwise he may with less labor than to carry him to Gaole carry him to a Justice of Peace who ought to take such order as the party may give such Surety For the Fact may fall out to be Fellony if he that is hurt happen to dye within a year and a day next after the hurt done And if the Officer doe not so or suffer such a Person to escape he may be deeply fined for it And in this Case also it is said that the officer may after he hath arrested him that gave the wound keep him a while in some other place out of the common Prison untill it may be known whether the party wil live or not If Fellons or Murderers be in the Village Numb 8 and these Officers of the Village have notice of Against persons committing Fellony or suspect of Fellony Fitz. J. P. 201. 1 R. 3. 3. Lamb. Office of Const 17. them it is their duty to gather men together and to apprehend them And if any Fellon be taken it is the Constables office to see him conveyed safely to Gaol And any other man as well as an Officer may arrest and keep in hold such a man as he doth know to have committed any Fellony And as touching persons suspect of Fellony it is said That if any man doth suspect any other man of any Fellony that he hath committed and doe declare the same to any one of these Officers that thereupon he may if the party suspect be within the limits of his Office arrest and bring him with him he shall doe well to bring the other party that did suspect him to the Justice of Peace to be examined But as touching the arresting of another man upon the suspicion of a third Person it seems the Law is otherwise For it is the opinion of the whole Court in the 17 Ed. 4. 5. 11 Ed. 4. 4. Bro. Faux Impr. 24. and in 5 H. 7. 4. That one cannot imprison another man upon the suspicion of a third man for Fellony unless he himself have some cause of suspicion also And that one man albeit he be an Officer cannot justifie the imprisonment of another man susppcted by a third man and at his commandement that doth suspect And of this opinion was Mr. Justice Bridgman and the whole Court of the Marches of Wales And therefore it was held there that if I suspect a man for Fellony and give notice hereof to the Constable that he cannot arrest him upon my suspicion And yet when I have arrested him upon mine own suspicion and delivered him to the Constable that in this case the Constable must look to him at his peril And if the Constable from this doe receive a suspicion of him as he may upon a fame or any flight report I think it reasonable and justifiable in him to arrest him But as touching this matter and for the cleering of this point these things are to be known 1. That any one of these Officers or any other 9 Ed. 4. 26. 17 Ed. 4. 5. 20 Ed. 4. 6. Bro. Faux Impr. 27. private person whatsoever having cause to suspect another of a Felony committed by Murder or Theft may himself arrest and apprehend such person suspect but herein he whosoever he be must take heed to three things 1. That there be a Fellony committed or at least confidently reported to be committed for otherwise there can be no good cause to suspect any man 2. That there be some cause to suspect the party arrested more than another 3. That after the arrest the party that doth arrest him doth carry him to a Justice of Peace or to the common Gaole to the end that the party accused may be Indicted or acquitted at the next Sessions c. Or if it be a private man that doth make the arrest that he doe deliver the party arrested to the Constables c. of the place 2. These or any or either of these are Causes of suspicion of a man for Fellony 29 Ed. 3. 39. 9. 4 H. 7. 4. 7 H. 4. 35. 27 H. 8. 21. 14 H. 8. 16. 2 H. 7. 15. 11 Ed. 3. 44. 21 H. 7. 27. Fiâ—z J. P. 201. Numb 9. held to be sufficient causes of suspicion 1. That the person suspect is Indicted for the same Fellony 2. If the Fellony be a Murder that he was present at the time of the Murder committed with a Sword drawn in his hand 3. That the person suspect is a person of evill name or is a Vagarant in the Country where the Fellony was done 4. If the Fellony be a Robbery and the party suspect is found with some part of the goods in his hands 5. If one apprehended for the same Fellony hath taken his oath upon a Book that the party suspect is one of the Fellons 6. That it is the common fame and report of the Country that the party suspect did the fact 7. If the party suspect doth flie upon the Fellony committed 8. If there be a Hue and Cry out against the Fellon and the person suspect and apprehended is such a person as is described by the Hue and Cry or if the Fellony be for stealing of Cattel and the party suspect is taken driving such Cattel as are set forth by the Hue and Cry to be stoln And yet hereby an honest man may be apprehended for a Hue and Cry may be raised where no Fellony is done But in this case he that raised it may be punished and he that doth arrest the party is to be excused or there may be no other cause to suspect this man but the possession of the goods and he might come by them lawfully howsoever this is cause enough to give him that doth arrest ground of suspicion 9. If J. S. would have arresteh one that had robbed him and the party suspect forbid him and saith he shall not arrest him this is sufficient cause to make him to be suspected for an accessary And therefore in all these and