si tunc domisit vel alii de familia qui tunc interfuerunt poenam capitalem subibunt nisi forte per patriam fuerint liberati Stamf. 97. 179. 5. Sunt etiam quaedam presumptiones ita violentae ut probationem non admittunt in contrarium ut si quis cum cultello cruentato captus sit super mortuum vel fugiendo à mortuo vel mortem confitetur quibus casibus non admittitur mortem dedicere nec alia opus est probatione 10. And yet in cases of felony Co. 11. 30. 2. Vide. c. the confession of the offendor upon his examination before the Iustice of peace shall be no conviction of the offendor except he shall after confesse the same againe upon his triall or arraignement or be found guilty by verdict of 12. men c. 11. Also in cases of secret murders and in cases of poysoning witchcraft and the like secret offences where open and evident proofes are seldome to be had there it seemeth halfe proofes are to be allowed and are good causes of suspition 12. Note by the common Law 8 E. 4. 4. 5. H. 7. 4. Br. Faux imp 4. 16. that in an action of false imprisonment brought against the Constable or other person that shall aâ—rest another upon suspition of felony it is no plea for them to say that the plainetiffe was suspected of felony but he must alledge that there was such a felony committed and that the plainetiffe was suspected for the same for suspition onely without a felony committed is no cause to arrest another 13. Also the defendant must alledge some speciall matter in fact 17. E. 4. 5. 21. H. 7. 29. to prove that he who is arrested was suspected of felony as to say that the parry arrested is a man of evill fame c. otherwise every man may arrest one another without cause 14. Also by the opinions of Keble Vavisor and Townsend 7. E. 4. 10. Br. Faux imp 16. 25. aswell the Constable as others in his ayde may arrest one that is suspected of felony upon the suspition and complaint made to the Constable of the party robbed 2. H. 7. 15. 16. Br. Faux Impris 14. 2. H. 7. 15. 16. And although others there be of opinion that the suspition can extend to none other but only to him that hath the suspition yet I conceive the opinion of Keble Vavisor and Townsend to be good Law for if felons may not be arrested or stayed but only by those that shall suspect them and that others may not ayde and assist the party that shall suspect another to have robbed him many felons shall escape and goe unpunished to the exceeding great prejudice of the common wealth 15. But now by the statute of 10. Caroli in Ireland The constable c. in the former cases 10. Caroli c. 16. in Ireland may plead the generall issue not guilty and give the said speciall matters in Evidence 16. Also if the Constable or other person shall arrest another upon suspition of felony by vertue of a warrant from a Iust of P. such warrant shall excuse him it being given in Evidence Forceible Entrie and Forceible Detainer CHAP. 29. 1. Cromp. 67. THe common Law being the preserver of the common peace of the land hath alwayes abhorred force as the capitall enemy thereto Co. 3. 12. And yet before the Raigne of King Richard the second the common Law seemed to permit any man to have entred into lands and tenements with force and armes and also to have kept and detained them with force where his Entry was lawfull 2. And at this day if a man doth enter with force or multitude of people where his entrie is lawfull he is not punishable by action either at the common Law nor by action upon any statute for where the title of the plainetiffe is not good there he hath no cause of action 15 H. 7. 15. Br. Force 11. although the defendant doth enter with force but in such case he that entreth with force must be indicted upon the statute of 8. H. 6. or otherwise complaint may be made thereof to the Iustices of peace and aswell upon such indictment as upon such complaint the offendor shall be punished but the party ousted shall not be restored without indictment 5. R. 1. ca. 7. Regist 182. 3. And for the better restraining of such force and forceible Entries and to inflict condigne punishment upon the offendors therein it was first ordained by the statute 5. R. 2. that no man should enter into any lands or Tenements with force or multitude though he had good right or title to enter but only in peaceable and lawfull manner 4. But this statute provided no speedy remedy nor extended to holding with force 15. R. 2. ca. 2. nor gave any speciall power therein to the Iustices of peace and therefore by a statute made 15. R. 2. it was further provided that if any man should detaine or hold with force after such forceible Entrie made upon complaint thereof he should be imprisoned by the Iustices of peace 5. Yet neither of the former statutes extended to those that entred peaceably â— H. 6. ca. 9. and then held with force and therefore by the statute 8. H. 6. it was and is provided that no man shall enter with force nor detaine or hold with force generally 6. Now these two last statutes 15. R. 2. and 8. H. 6. doe enable any one Iustice of peace to give present remedy viz. to remove the force and commit the offendors in cases of forceible Entrie or holding against the aforesaid statutes 7. Also the statute of 8. H. 6. extendeth further reaching the offendors if they were removed before the comming of the Iustices giving the Enquiry and restitution and also punishing the Sheriffe that shall not obey the precepts of the Iust in this behalfe One Iustice 8. Every Iustice of peace upon complaint to him made or upon other notice to him given 15. R. 2. ca. 2. of any forceible Entrie into or holding or detainer of possession of any lands tenements or other possessions or of any benefices â— H. 6. ca. 9. P. 1. or offices of the church contrary to these statutes without any examining questioning or standing upon the right or title of either party ought in convenient time at the costs of the party grieved to doe execution of these statutes in manner and forme following 9. 15. R. 2. ca. 2. First he ought to goe to the place where such force shall be and he may take with him sufficient power of the County or Town by his discretion and the Sheriffe also if need be to aide him for the better execution of this businesse sc aswell for the arresting of such offendors as also for the removing of the force and for the convaying of them to the next gaole 10. He ought to arrest and remove all such
as shall be living and within this Realme at the time of arraignement of such person so indicted shall be brought forth face to face before the party so arraigned and there shall testifie and declare what they can say against the party so arraigned if he require the same provided that if any person or persons shall hereafter happen to give any reliefe aide or comfort or in any wise be aiding helping or comforting to the person or persons of any that shall happen to be an offendor in any matter of case of praemunire or Treason revived or made by this Act that then such reliefe aide or comfort given shall not be judged or taken to be any offence unlesse there be two sufficient witnesses at the least that can and will openly testifie and declare that the person or persons that so gave such reliefe aide or comfort had notice and knowledge of such offence committed and done by the said offendor at the time of such reliefe aide or comfort so to be given or ministred 17. And now I have set forth the statutes of praemunire I will here also set forth some few booke cases and resolutions for the better explanation of those concurrent statutes 18. In 44. E. 3. a praemunire was brought against diverse 44. E. 3. fo 7. Br. praemunire 4. 8. H. 4. fo 6. Br. praemunire 6. some as principals and some as accessaries the principals made default and the accessaries appeared and demanded judgement if they should be put to answer before the principals were attainted and it was adjudged that they should answer for in a Praemunire all are principals and there be no Accessaries 19. If a man lease his vicarige for yeares or life paying rent 44. E. 3. fo 36. Br. praemunirc 5. and sue in the Ecclesiasticall Court for the recovery of this rent he is in case of a Praemunire for the rent reserved is a lay thing and not Ecclesiasticall 20. 9. E. 4. fo 3. Br. praemunire 9. In a Praemunire in the Kings Bench the opinion was that if a Clarke sue another man in curia Romana for a thing spirituall where he may have remedie within this Realme in the Court of the Ordinary that he is in case of a Praemunire quia trahit in placitum extra regnum 21. 5. E. 4. fo f. Note that the words of the statute are in curia Romana vel alibi which is intended in Curia Episcopi and therefore if a man be excommunicate or prosecuted in the spirituall Court for a thing which appertaines to the common Law hee that prosecuteth such suiâ— is in case of a Praemunire 22. A prohibition lieth often where a Praemunire lyeth not Br. praemunire 16. as of Tâ—thâ—s of great Trees or for Tithes of the seventh part a prohiâ—â—â—ion lieth and not a Praemunire for the nature of the action belongeth to the spirituall Court but not the cause in this forme but where it is of a lay thing or of a thing which never appertained to the spirituall Court of that a Praemunire lieth as of debt against Executors upon a simple contract or pro lesione fidei upon a promise to pay Ten pounds by such a day Doct. Student lib. 2. ca. 24. 2. R. 3. fo 17. Br. praemunire 19. 23. If Executors sue for the goods of their Testator in the spirituall Court they are in case of a Praemunire for in 34. H. 8. Richard Farmer was attainted in a Praemunire and forfeited his Fee simple land for ever for suing for the goods of his Testator in the spirituall Court 24. There be some opinions in 8. ass that a benefice donative by the patron onely is a lay thing 8. Ass pl 29. and the Bishop shall not visit nor deprive and therefore if he medle with it in that kinde he is in the case of a Praemunire and in that case was Barloe Bishop of Bath in the time of King Edward the sixth and was constrained to obtaine a pardon because he had deprived the Deane of Wels which was a Donative by the Kings letters pattents 25. I have beene more large in this Title because many men of great quality and good understanding in Ireland are very confident that the papall Iurisdiction never received any check or opposition in England or Ireland before the time of King Henry the Eight and therefore to make it to appeare to all men that will but open their Eyes to see the truth I have set downe the said ancient statutes and booke cases whereby it plainly appeareth that in the very height of poperie when prince and people Laitie and Clergy were of the popes religion yet in all ages of those very times the papall Iurisdiction was mainely opposed and utterly rejected and great and grievous penalties videlicet losse of lands and goods and perpetuall imprisonment was inflicted upon all such as should uphold or any wise maintaine that papall Iurisdiction within these Kingdomes of England and Ireland Purveyors CHAP. 49. 1. FOr the reformation of abuses oppressions committed by Purveyors diverse good Lawes and statutes have beene made in England which are of force in Ireland and because that the Iustices of peace are enabled to put many of those statutes in execution in part or in the whole I shall here expresse the effect of so many of them as I conceive the Iu. of P. have to doe withall which are these following 28. E. 1. articuli super cart c. 2. Without warrant vide the statute of 28. Ed. 1. articul super cart cap. 2. It is enacted amongst other things that if any make takings without warrant and carry them away against the will of the owner he shall be immediately arrested by the Towne where the taking was made and shall be sent to the next gaole and if he be attainted thereupon it shall be done of him as of a Theife Felony if the quantitie of the goods will warrant it 2. Also it is enacted in anno 5. E. 3. ca. 2. 5. E 3. ca. 2. that the takings and purveyances for the houses of the King the Queene and their children be made by praisements to bee made by the Constables Constable and other discreet men of the Townes where there shall be such takings and purveyances thereto sworne and without menace Oath as in the statutes of 28. E. 1. aforesaid and 4. E. 3. ca. 3. is contained and that betwixt the purveyors and them whose goods shall be taken there be in the presence of the Constables and praisers Talles Talles made and sealed with the purveyors seales by which talles satisfaction shall bee made to them from whom such goods shall be taken and if any taker or purveyor for the said houses doe take in any other maner he shall be incontinently arrested Arrest by the Towne where such taking was made and brought to the next gaole Impris Felony and if he be thereof attainted it shall be done
the age of discretion and made such a Covenant to serve in Husbandry that shall bind him and so it was agreed by the Court and there it was said by Martin that a man may lawfully be imprisoned if he will not serve according to his Covenant but this shall be by the officers of the King and not by the party himselfe 9. H. 6. 10. Br. Lab. 43. 9. H. 6. 10. Br. Lab. 43. 57. If a labourer be retained to serve for Terme of his life this is no good retainer within the statute 2. H. 4. 15. Br. Lab. 44. 2. H. 4. 15. Br. Lab. 44. 58. Note that he which is non potens in corpore and he which hath lands and a Gentleman Cooke Butler Chaplaine Yeoman and such like shall not be constrained by the statute to be retained in Husbandry yet if they will be retained in Husbandry this retainer is good 38. H. 6. 22. Br. Lab. 46. 38. H. 6. 22. Br. Lab. 46. 59. The retainer of a Chaplaine to serve as a Chaplaine is no good retainer within the said statute nor no Action will lye for his departure upon the said statute for it is intended that he hath whereof to live although he be not alwayes disposed to celebrate divine service 10. H. 6. 8. Br. Lab. 47. 10. H 6. 8. Br. Lab. 47. 60. If a man retaine an Infant of the age of 12. yeares or upward be it man or woman to serve in Husbandry this is a good retainer by the said statute Fitz. Na. Br. fol. 168. d. F tz Na. Br. fo 168. d. 61. If a Gentleman which by the statute is not compellable to serve in Husbandry or a Chaplaine or a Carpenter shall put themselves by Covenant to serve in Husbandry they shall be bound thereby and this is a good retainer by this statute and upon their departure out of such service an Action lyes against them upon this statute Fitz. Na. Br. fo 168. e. Fitz. Na Br. fo 168. e. 62. If a man retaine one for forty dayes to serve him and another after retaine him for a yeare the first retainer is defeated because it was not according to the statute and so if one be retained to serve at every time that he shall be required that is no retainer according to the statute but if it be by deed it is a good Covenant upon the deed and without deed it is voide Fitz. Na. Br. fo 168. f. Fitz. Na. Br. fo 168. f. 63. If a man retaine another to serve him and doe not expresse how long he shall serve this is a good retainer according to the statute and he shall serve a yeare Fitz. Na. Br. fo 168. h. Fitz Na. Br. fo 168. h. Fitz. Na. Br. fo 168. o. 64. If the husband and wife be retained during the marriage this is a good retainer and if they depart an Action shall be maintained against them upon the said statute What be causes for a servant to depart from his service 65. The detaining of competent meate drinke lodging or wages from a servant are good causes to depart from his service Fitz. Na. Br. 168. l. Fâ—tz Na. Br. fo 168 l. q. 29. Ed. 3. 22. Br. Lab. 35. 66. Also if the master or his wife without cause beate the servant or otherwayes for cause beate him outragiously these are good causes for the servant to depart and yet the master by Law is allowed with moderation to chastise his servant or apprentice Fitz. Na. Br. fo 168. l. q. 67. Also the servant may depart by the license of his master Fitz. Na. Br. fo 168. l. 68. But if a woman which is a servant take a husband this is no cause to depart from her service but shee ought to serve out the residue of her Terme Fitz. Na. Br. fo 168. n. Fitz. Na Br. fo 168. n. 69. If the master will discharge his servant by word and say unto him that he shall serve him no longer this is a good cause for the servant to depart 6. Ed. 4. 2. Br. Lab. 38. for he cannot serve him against his will but upon such discharge the servant shal have his wages for the time he hath served 6. Ed. 4. 2. Br. Lab. 38. 70. How a master may discharge his servant In an Action upon the statute of Labourers for departing from his service the defendant said that he was retained with the plainetiffe in the office of Carpenter to make a house and that he came unto him to doe his service and the master him discharged and this was holden to be a good barre of the Action 11. H. 4. 32. Br. Lab. 22. 11. H. 4. 32. Br. Lab. 22. 71. In an Action of maintenance the defendant justifieth to ayd the plaintiffe because he was his retained servant and the plaintiffe said that after the retainer and before the maintenance that is to say at D. in the County of M. the master him discharged of his service whereunto the servant agreed whereby it appeareth that the master may not discharge his servant within the Terme except that the servant agree thereunto no more then the servant may depart from his Master without the masters license or agreement 19. H. 6. 30. Br. Lab. 27. 19. H. 6. 30. Br. Lab. 27. 72. If a man retaine a servant for a yeare and he discharge him at Easter in the same yeare to which the servant agreeth he shall not have an Action for any part of his wages for the service done before nor after for nothing is due untill the end of the yeare for the contract is entire and may not be severed 10. H. 6. 23. Br. Lab. 48. 10. H. 6. 23. Br. Lab. 48. otherwise it is if the servant be within age for then his agreement to the discharge is voide and he shall not be bound by it 73. If a servant that is retained for a yeare happen within the time of his service to fall sicke or to be hurt or lamed or otherwise to become non potens in corpore the master must not put such servant away nor abate any part of his wages for such time Dalton pag. 74. Dalton pa. 74. 74. Who may take a servant from his master that retained him 74. The Lord may take his villaine out of the service of another if he have need of servants otherwayes not Fitzh Na. Br. 168. m. 75. In an Action upon the statute of Labourers for taking a servant out of his masters service the defendant said that he is seised of the Mannor of B. to which the servant was a villaine reguardant wherefore he tooke him c. and this was holden no good plea for where a villaine is retained in anothers service it is not lawfull for the Lord to take him from his master unlesse the Lord have need of such a servant whereupon the defendant said that the servant was a Shepheard and that hee
having need of a Shepheard tooke him and this was holden to be a good plea for the statute will that the Lords should be preferred in their villaines before others 27. H. 6. 2. Br. Lab. 3. 27. H. 6. 2. Br. Lab. 3. 76. In an Action upon the statute of Labourers for taking his servant retained out of his service the defendant said that he is Lord of the Mannor of W. to which this servant was and is a villaine reguardant and is a Carter and he hath need of a Carter 47. Ed. 3. 16. Br. Lab. 13. by reason whereof he tooke him and this was held to be a good justification for the Statute of Labourers viz. the statute of 23. Ed. 3. ca. 1. 2. is quod domini preferantur in nativis suis 47. Ed. 3. 16. Br. Lab. 13. 50. Ed. 3. 22. Br. Lâ—b 17. 77. If a man retaine a servant which is the villaine or retained servant of another the Lord or the master that first retained him may take him out of the possession of him that last retained him 9. H. 4. 32. Br. Lab. 33. but before he take him he ought to give notice of his former retainer or of the villenage 50. Ed. 3. 22. Br. Lab. 17. 2. H. 4. 13. Br. Lab. 18. 78. If a man have a feme sole in his service and another man takes her to wife he may do that lawfully but it is not lawfull for him to take her out of her service during the terme that she is bound to serve 2. H. 4. 13. Br. Lab 18. Fitz. Na. Br. fo 168. d. 79. If a man taketh an Infant or other servant out of another mans service this is punishable though the Infant or servant was not retained but if an Infant being retained as an Apprentice or servant happen to be a Ward the Lord may take him from his master for the Lords title is more ancient then the retainer yet the Lord ought first to give notice thereof to his master or else the master may lawfully detaine him 50. Ed. 3. 22. Fitz. Na. Br. fo 143. i. 50. Ed. 3. 22. Fitz. Na. Br. fo 143. i. 80. If a servant be retained by one and depart from his master and then is retained by another it is lawfull for the first master to take him out of the possession of the second master so as he give notice to the second master of the former retainer 28. H. 6. 11. Br. Lab. 4. 28. H. 6. 11. Br. Lab. 4. 81. If a man retaine the servant of another not knowing of the former retainer Who may receive or retaine a servant that is retained with another he shall not be punished for this if he do not detaine him after notice of it Fitz. Na. Br. fol. 168. b. 82. A servant departeth from his master and one that had married his mother found him vagrant and the servant came with him to his house and continued there a day the father in law for this is not punishable by the statute And likewise in this case if the father had brought the servant to a schoolemaster to bee taught and the schoolemaster receive him into his schoole this is no offence in the schoolemaster for he is not bound to take notice that he was in service And also if a servant have broken his legge or Arme or received any other hurt that he cannot goe and a Surgeon comes to him to cure his wound this is no offence in the Surgeon or if a servant come unto me and pray me to receive him into my service which I doe this is no offence in me for I am not bound to take notice of the former retainer And likewise if a servant come to mee and intreat me for Gods sake to give him lodging which I doe accordingly this is justifiable and no offence against this statute for it is an Act of Charitie And likewise if the servant of another man commeth to labour with me his master shall have no action against me for this cause but if I procure him to come and labour with me knowing him to be the servant of another man Who shall be said in Law a servant within the statute of 23. Ed. 3. I shall bee punished by this statute 9. H. 4. 32. Br. Lab. 33. 9. H 4. 32. Br. Lab. 33. 83. He which is retained to serve although hee never come to his master nor be actually in his service hee is a servant within the intention of this statute and if he be retained and refuse to doe his labour this is a departure in law and punishable by this statute 41. Ed. 3. 20. Br. Lab. 7. 46. Ed. 3. 4. 47. Ed. 3. 14. 3. H. 6. 37. 41. Ed. 3. 20â— Br. Lab. 7. 46. Ed. 3. 4. 47. Ed. 3. 14. 3. H. 6. 37. 45. Ed. 3. 13. Br. Lab. 8. 21. H. 6. 33. Br. Lab. 30. 46. Ed. 3. 14. Br. Lab. 10. 84. An Apprentice is no servant within the intention and meaning of the statute 45. Ed. 3. 13. Br. Lab. 8. 21. H. 6. 33. Br. Lab. 30. 39. Ed. 3. 22. Br. Lab. 35. Fitz. Na. Br. fol. 168. g. 85. A Chaplaine retained to say divine service is no servant within the meaning of the statute 46. Ed. 3. 14. Br. Lab. 10. 86. I have the more enlarged my selfe upon this title of Labourers because I see by continuall experience that not onely the Idlenesse of those that will not labour but also the excessive wages of such as doe labour and of all manner of artificers is the most great and generall grievance that is in Ireland and thereupon all these inconveniences doe ensue videlicet first of Idlenesse ensueth Thefts and Rebellions for Idlenesse is the nurse of both Secondly of the excesse of wages in servants and labourers in husbandrie ensueth poverty in the farmors and freehoulders that live by husbandrie only for the excesse of servants and labourers wages eateth up the greatest part of the profit that may be raised by manuring the land whereby the farmor is so impoverished that he is not able to pay his rent and to beare other countrey charges nor to inclose his land or to live and breed his children in any decent fashion by meanes wherof the land is not improved to the one halfe of the value it might be at and so the Landlords loose a great part of their revenue besides the preventing of many stealthes which could not be so frequently committed as now they are if the lands were inclosed Thirdly by the excesse of wages in Masons Carpenters and other artificers the farmors and inferior freeholders are constrained for the most part to live in base cottages more fit for hogstyes then for men to dwell in and no marvell for by the negligence of the Iustices of peace in not rating of wages and putting these statutes in execution it is come to this passe that a Ioyner will take Two shillings sterling per
before time made of Purveyors and buyers shall be holden and kept and put in due execution and in case that any Purveyor buyer or taker will take and make purveyance or buy any thing to the value of 40. s. or under of any person and make not ready payment in hand 40. s. ready payment that then it shall be lawfull to every of the Kings liege people to retaine their goods and chattels and to resist such Purveyors and buyers Resist and in no manner wise suffer them to make any such Purveyances buyings or takings and for the peace better to be kept that every Constable Constable Tithingman Tithingman or chiefe pledge of every Towne or hamlet where such purveyances or takings shall be made shall be aiding or assisting to the owner or seller of such things to be against the forme of this ordinance to make resistance in the forme aforesaid in case that such Constables Tithingman or chiefe pledge bee required that to doe upon paine to yeeld to the partie so grieved the value of the things so taken with his double damages and that none of the Kings liege pleople be put to losse or damage by the King or any officer for such resistance and that none of the Kings officers shall doe to be arrested vexed or impleaded in the Court of the Marshalsey or elsewhere any of the Kings liege people for such with-holding or not suffering to be done upon paine to lose twenty pounds Forf Moitie the one moity of that to the King and the other moitie to him which will in such case sue and that the Iustices of peace Iustice of peace in every County shall have power by authority of this ordinance to enquire heare and determine Oyer and Ter. aswell at the suite of the King as of him that will sue of any thing done against this ordinance and thereof to make due punishment and execution and to award damages Damages to the party plaintiffe when any defendant is thereof duely convict and that in every Action to be taken upon this ordinance every party defendant shall be put to answere to that without aide of the King and in such Actions to be taken No aide Proces proces shall be made as in a writ of Trespasse done against the peace and that in every Commission Commission of Purveyors takers or buyers to be made this ordinance shall be contained and expressed and moreover that this ordinance among other statutes of Purveyors buyers or takers before this time made shall be sent to the Sheriffes Sheriffe of every County to proclaime and deliver the said statutes and ordinances in the manner and forme contained in the statute of purveyors and buyers made in the first yeare of the Raigne of the said King H. 6. And moreover the King will and commandeth that the statute made the six and thirtieth of King Edward late King of England after the coÌ„quest touching Purveyors of other persons then of the King shall be put in due execution Anno 20. H. 6. cap. 8. 13. In anno 23. H. 6. ca. 2. 23. H. 6. ca. 2. it is ordained that the said statutes of an 36. E. 3. from thenceforth should be duely kept and put in due execution and moreover that every purveyor and buyer before that he shall have any Commission shall be sworne Sworne in the Chancery Chancerie that he shall take nothing of the people contrary to the said ordinances and moreover forasmuch as the poore people be not of power nor dare make resistance against the purveyors and buyers nor sue them by the law though that they doe contrary to the said statutes It is ordained by the same authority that the praisers and also all the Towne and townes Townes adjoyning if need be shall be bound to doe their devour and power to resist Resist the buyers and purveyors doing contrary to the said statutes and as much as in them is to execute the said statutes upon the said Purveyors if they be required and that he which is grieved of his goods taken contrary to the said statutes and ordinances may chuse to have either an Action of debt Action of debt against the said preisers Towne or Townes and every of them which doe not their devour in resistance of the said Purveyors or buyers in the forme aforesaid when they shall be required or else against the said Purveyors 3. Value 3. Damages or buyers and every of them to recover the treble value of his goods so taken and moreover his treble costs and damages and if any purveyor and other the Kings officer doe trouble or vexe any of the Kings liege people in the marshalsey or elsewhere by any evill suggestion or cause fayned imagined or coloured upon them because of the execution of the said ordinances he shall incurre the paine of Twenty pound Forf to be paid to the party grieved over his damages and costs in that behalfe sustained and that he thereupon shall have a writ of debt Writ of debt and that every issue Issue triable in this action shall be tried in the county County where the taking of the said goods was made and that the defendants in the said causes shall not be admitted to wage their law and shall be put to answere without forcing and no eâ—â—oyne â—ide of the King nor protection shall be to them allowed and that the Sergeant of the Caterie Sâ—â—â—eant of Câ—terie shall satisfie all the damages debts and executions which shall be recovered against every Purveyor and buyer underneath him in all the cases aforesaid in case that the Purveyor or buyer be not sufficient to satisfie and the party complainant shall have a scire facias Scire facias to have execution against the said Sergeants in the case and that these statutes and ordinances shall be sent to the Iustices of the peace in every County to proclaime them every yeare and thereof to informe the people Iust of P. Proclamation Anno 23. Hen. 6. cap. 2. 14. If any buyer or other officer of any Lord Lord. or person 23. H. 6. ca. 14. of what estate degree or condition that he be presume upon him to take or otherwise doe take any victuals Victuals Corne Corne. or hay Hay carriages Carriage or any other thing whatsoever of any of the Kings liege people in any wise against their will without lawfull bargaine betwixt the said buyers or officers and the said liege people thereof to be made to the use of the said Lords for their houses but all onely for the King and the Queene and their houses that then if notice or request be made to the Mayor Maior Sheriffe Sheriffe Bailiffe Bailiffe Constable Constable Officers or other of the Kings ministers of Cities and Borroughes or other Counties or places where such taking shall
whether the recognisance be forfeited or no but after that he is thereof convicted Br. peace 17. the recognisance is utterly determined Cromp. 42. and then he is to be compelled to finde new surety or else to be sent to the gaole 20. So it seemeth if the Iustice of his owne knowledge know that the party which was bound hath sithence his entring into bonds broken the peace he shall be bound of new and if he refuse to finde new sufficient sureties he shall be committed to prison Cromp. 141. Br. recog 21. 21. Also he that standeth bound to keepe the peace Dalton 14â— if his sureties be insufficient the same Iustice or another Iustice of the peace may compell him to finde better sureties or else commit him to the gaole 22. And in many of the former cases the Iustice of peace ought of duty or at least in good discretion to command the surety for the peace although the same be not required by any other person and if any such person shall refuse to give such surety the Iustice of peace ought to send him to prison there to remaine untill he shall finde such surety 23. 9. Ed. 4. 3. Br. peace 8. If a Iustice of peace upon his owne discretion shall cause one to be arrested to finde sureties for the peace and shall after let him goe without taking surety or binding him to the peace yet the party hath no remedy for an Action will not lye against the Iustice of peace he being a Iustice of Record See 9. H. 6. fo 60. 9. Ed 4. fo 3. Br. Iudges 2. 10. 24. A Iustice of peace may perswade a man to require the surety of peace against another and he himselfe may grant a warrant for it P. R. 18. Dalton 143. because it is no more then he might have granted of his owne authority without any demand made and it shall be presumed that he saw cause to doe all this 25. Also at the request or prayer of another Vpon request the Iustice of peace may command this surety of the peace and may grant his warrant for it 26. But here the Iustice of peace must and ought to take an oath of the party that demandeth the peace F. N. B. 7â— â— which oath must be to this effect scil that he standeth in feare of his life Dalton 143. or of some bodily hurt to be done to himselfe or to have his houses burned and that he doth not crave the peace for any private malice or for vexation but of very feare and for the needfull safety of his body or houses for the words of the Commission herein are Et ad omnes illes qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorum suarum minas fecerint ad sufficientem securitatem de pace c. inveniendam c. 27. So as he that shall be threatned to be hurt in his body scil to be beaten Ibid. wounded maimed or killed the party so threatned may crave and have the surety of peace against the other Ibid. 28. Also if a man doe feare that another will kill maime beat assault or hurt him in body he may crave the peace against such other person 29. So if a man doe feare that another will burne his house 30. So if a man doe feare that one will procure or cause any such hurt to be done him by another Ibid. either in his body or in his house for the words of the recognisance be non faciet neque fieri procurabit Ibid. 31. So if a man lieth in waite to beate kill or hurt another it is good cause to require this surety Cromp. 135. Ibid. 32. If a man be threatned to have his goods burned it seemeth by the opinion of Master Fitz. that he may demand surety of the peace for this 17. Ed. 44. Br. peace 22. 33. But where a man shall threaten to imprison another it is holden that the peace shall not be granted for this may be intended to be by legall processe but if one shall threaten another of his owne wrong without any legall processe to Imprison him by force and violence it seemeth to me that this is good cause not onely to grant security for the peace but also for the good behaviour for to threaten such imprisonment is within the words minas de corporibus and like harme may happen to a man by hard imprisonment as by cruell beating of him and to threaten such imprisonment seemeth to be a good cause to avoide a deed aswell as to threaten to kill or maime one c. 39. H. 6. Br. Duress 9. Fitz. Na. Br. fo 80. g. Dalton 144. 34. Where a master is in feare that another will hurt his servants or his Cattell or other goods this surety of the peace shall not be granted by the Iustice of peace but in this case Master Fitzherbert saith the party may have a speciall writ out of the Chancery directed to the Sheriffe that he shall cause such person to finde surety that he shall doe no hurt nor damage to the other man in his body or to his servants or goods and if he will not finde surety that then he shall arrest and detaine him in prison untill he shall finde surety and that the Sheriffe shall certifie all that he shall doe thereupon into the Chancerie c. and it seemeth the Sheriffe ought to take such surety by recognisance and yet if a man shall threaten to hurt my servant or my wife or child I see no cause but that in their behalfe I may crave the peace at the Iustices hands by the words of the Commission and that the Iustice ought to doe it 35. If a man will require the peace because he is at variance or in suite with his neighbour it shall not be granted by the Iustice of peace Br. Impris 41. P.R. 14. 36. Note also that the surety for the peace shall not be granted but where there is a feare of some present or future danger and not meerely for a batterie or trespasse that is past or for any breach of the peace that is past for this surety of the peace is only for the security of such as are in feare â—â—â—â—â—metus est presentis vel futuri periculi causa mentis trepidatio so this surety is providere praesentia futura non praeterita 37. And as for a battery or other like trespasse that is past Dalton 144. the party wronged may have his Action of trespasse or battery c. or may punish the offendor by indictment at the Kings suit and yet in such case the Iustice may if the party hurt do pray it or upon any good circumstance if he see cause bind the party that made the affray to the peace 38. If the Iustice of peace shall perceive that this surety for the peace is demanded meerely of malice
finium amerciamentorum forisfactorum ad generalem Sessionem pacis tentam apud Trym c. Coram c. For the whole forme of the making whereof there is full direction given to all Clerkes of Estreates by the statute 7. H. 4. cap. 3. whereunto I referre them 26. Howbeit I doe not thinke Iu. of the P. ought to have caâ—e of the Estreats that in our case this duty of estreating is so peculiar to the Clerke of the peace but that the Iu. of P. themselves ought also to have a common and carefull eye unto it For if you remember it is both specially provided for in the Commission and also an Article of their oath to see unto the faithfull entry and certificate of the issues fynes forfeits and amerciaments that doe happen before them and therefore it were well done in my opinion if the Iu. would by turne or otherwise both take knowledge of things that have passed before them and also take order that the same be certified accordingly lest otherwise it lye altogether in the power of the Clerke of the peace to save or slay as one said the Sparrow that he holdeth closed in his hands Of executory processe and execution for the parties that sun or for other persons and of the restitution of goods stollen CHAP. 18. 1. ALbeit that the Iustices of the peace have this power to make warrants for levying the amerciaments fynes and other forfeits that grow unto the King by their service yet is it commonly thought that they may not but in some cases only and that by speciall words of the statutes make execution for them that will sue of such part of the forfeiture as the statutes doe appoint for them 2. For most commonly the party that will sue is by the statutes put to his action at the common Law for recovery of that which he is to have growing upon conviction of any offence contrary to the statutes for which he is to commence his action or bill of debt But where they have power either by their Commission or by any statute to heare determine any cause at the prosecution of a private person I doe not see how the cause can well be said to be fully determined till the complainant hath had the effect of his suite which cannot be without execution Liveries 3. For the moity growing to the Informer upon the statute of Liveries 8. Ed. 4. cap. 2. they shall make such execution as ought to be had in recovery of debt or Trespasse High wayes 4. And the Estreats made by the Clerke of the peace of forfeits for default of amending high wayes are a sufficient warrant to the Constables to levye the same by distresses to the use of the Church-wardens of the Parish where the default was 11. Iacobi ca. 7. in Ireland toward the amendment of the said wayes Perjurie 5. So upon the statute of perjurie made in 28. El. cap. 1. in Ireland And peradventure search will afford some more examples but these may suffice for my desire which is not in this or any the like to recount all but to make good proofe of that which I offer and propound the rather that the Iustices and Clerke of the peace may thereby take occasion to looke upon the statute whensoever Execution shall be prayed for any cause depending before them upon any statute whatsoever Restitution of goods stollen 6. And because the awarding of restitution of goods stollen to the owner or partie robbed after the attainder of a felon by reason of the evidence given by them is a manner of execution for the party 28. H. 8. ca. 10. 4. Ma. cap. 6. in Ireland I may without violence bring hither the effect of the statutes made upon that point and lying within the authority of Iustices of the peace which standeth thus if any felon of goods money or chattels taken from any of the Kings subjects be indicted arraigned and found guilty thereof or otherwise attainted by reason of evidence given by the party robbed or the owner of the said goods money or chattels or by any other by their procurement then shall such party or owner be restored thereunto and the Iustices before whom such finding guilty or such attainder shall be shall have power to award writs of Restitution of the goods stolne in specie if they may be found and if they cannot be found or that the property be altered then they may award Restitution of the felons goods Of certifying the Records of the Sessions of the peace to other Courts or officers CHAP. 19. 1. AS I have already manifested that Iustices of the peace have not sufficient power of themselves to heare and determine all causes whereof they have in their Sessions authority to enquire So also there be sundry things determinable before them there which neverthelesse may in some respects be brought to a second handling either to the end to reverse that which they have done or that their doings may be an evidence and testimony in the tryall of causes before other Iudges 2. And because this cannot in any sort be performed without the presence of those former Records or the transcripts thereof which began with the Iustices of the peace it is therefore requisite that they doe make certificate of them unto those other Courts or officers that shall use the same 3. But as this certificate ought in some cases to be made by the Iustices of peace or their Clerke without any writ of Certiorari therefore directed and in some other cases they may spare to certifie untill that writ or some other commandement be brought unto them So also sometimes they are to certâ—fie and send up only a Tenor or Transcript as I have formerly said of the Record before them and sometimes the very Record it selfe must be conveyed from them 4. But in cases where Iustices of the peace have power to receive Endictments and no power to proceed any further upon them as in cases of Treason and some others which I have formerly declared there they ought to send up and certifie the Endictments themselves into the Kings Bench and that of duty without any Certiorari commanding the same because having none authority to heare and try the offences the Records thereof shall be unprofitable before them and therefore they can have no just cause to retaine them 5. And so if a man that is bound to keepe the peace and to appeare at the next Sessions of the peace doe make default of apparance the Recognisance it selfe together with the Record of that default must be estreated into the Exchequer that execution upon the Recognisance may be had there 3. H. 7. ca. 1. and so ought it if it be presented that the party hath forfeited his Recognisance by breach of the peace And likewise if it be presented before them that the chattels of a man attainted of felony be in the hands of another For in
and lawfull accompt to the Iustices of peace of all such persons as have beene committed to their custody or any of them shall be troublesome to the Countrey by going abroad or otherwise shall escape away from the said house of correction before they shall be from thence lawfully delivered that then the said Iustices shall set downe such fynes and penalties upon the said masters and governors as the most part of them in their quarter Sessions shall thinke fit and convenient and all fynes and penalties not herein before limitted shall be paid unto the treasurer and accompted for by the treasurer aforesaid and further that the said Iustices of peace of every County or any two or more of them twice in every yeare at the least and oftner if there be occasion shall assemble and meet together for the better execution of this statute and that some foure or five dayes before their assembly and meeting the said Iustices or the more part of them shall by their warrant command the Constables of every Barony Towne Parish Village and hamlet within the said County or so many of them as they in their discretions shall thinke fit which shall be assisted with sufficient men of the same places to make a generall privy search in one night within their said Barronies Townes Parishes villages and hamlets for the finding out and apprehending of the said Rogues Vagabonds wandring and idle persons and that such Rogues Vagabonds wandring and idle persons as they shall then finde and apprehend in the said search shall by them be brought before the said Iustices at their said assembly and meeting there to be examined of their idle and wandring life there to be punished according to a statute in the 33. yeare of King H. 8. in this kingdome against Vagabonds or otherwise by their warrant to be sent or conveyed unto the said house or houses of correction within the said County appointed and prefixed there to be delivered to the master or governor of the said house or to his Deputie or assignee to be set to labour and worke at which dayes and times of assembly and meeting so to be held by the said Iustices of peace the Constables of the said Barronies Parishes Townes Villages and hamlets shall then appeare before the said Iustices of peace at the said assemblies or meetings and there shall accompt and reckon upon oath in writing what Rogues Vagabonds and wandring disorderly persons they have apprehended both in the same search and also betweene every such assemblies and meetings and how many have beene by them punished or otherwise sent unto the houses of correction which if the said Constables shall neglect to performe as also to convey safely all such Rogues with all other idle or disorderly persons at the charge of the Constablewicke as by the Iustices of peace warrants shall be sent unto the houses of correction in the same County that then they shall forfeite such further fynes paines and penalties as by the said Iustices of peace or the most part of them shall be thought fit and convenient not exceeding the summe of Forty shillings for every offence And it is further enacted that all persons calling themselves schollers going about begging all idle persons going about in any Countrey either begging or using any subtill craft or unlawfull games or playes or feigning themselves to have knowledge in Phisiognomie Palmestry or other like crafty science or pretending that they can tell destinies fortunes or other like phantasticall imaginations all persons that be or utter themselves to bee proctors procurers patentgatherers or collectors for gaoles prisons or hospitals all Fencers Bearewards common players of enterludes and minstrels wandring abroad all Iuglers all wandring persons and common labourers being persons able in body using loytering and refusing to worke for such reasonable wages as is taxed and commonly given in such parts where such persons doe or shall happen to abide or dwell not having living otherwise to mainetaine themselves all persons delivered out of gaoles that begge for their fees or otherwise travell begging all such persons as shall wander abroad pretending losse by fire or otherwise all such as wandring pretend themselves to be Egyptians or wander in the habite forme or attire of counterfeit Egyptians shall be taken adjudged and deemed Rogues Vagabonds and sturdy beggers and shall sustaine such punishments as are appointed by the said statute made in the three and thirtieth yeare of King Henry the Eighth cap. 15. in this kingdome against Vagabonds or be otherwise dealt withall by sending them to the house of correction in the County where they shall be found as to the Iustices of peace of the said County or to any one or more of them shall be thought fit and for that many wilfull people finding that they have children have some hope to have reliefe from the Parish wherein they have dwelled and being able to labour and thereby to relieve themselves and their families doe neverthelesse runne away out of their Parishes and leave their families upon the Parish for remedy whereof it is enacted that all such persons so running away shall be taken and deemed to be incorrigible Rogues and endure the paines of incorrigible rogues and if either such man or woman being able to worke and shall threaten to run away and leave their families as aforesaid the same being proved by two sufficient witnesses upon oath before two Iustices of peace in the County where they dwell or whither they runne that then the said person so threatning shall by the Iustices of peace be sent to the houses of correction unlesse he or shee can put in sufficient sureties for the discharge of the Parish there to be dealt with as a sturdy and wandring Rogue and to be delivered by the said Iustices at any of their meetings or at their quarter Sessions and not otherwise And it is further enacted that if any Action of Trespasse or other suite shall happen to be attempted and brought against any person or persons for taking of any distresse making of any sale or any other thing doing by authority of this present Act the defendant or defendants in any such Action or suite shall and may either plead not guilty or otherwise make avowry cognisance or justification for taking of the said distresse making of sale or other thing doing by vertue of this Act alledging in such avowry cognisance or justification that the said distresse sale trespasse or other thing whereof the plainetiffe or plainetiffes complained was done by authority of this Act and according to the tenor purport and effect of this Act without any expressing or rehearsall of any other matter or circumstance contained in this present Act to which avowry cognisance or justification the plainetiffe shall be admitted to reply that the defendant did take the said distresse made the said sale or did any other Act of Trespasse supposed in his declaration of his owne wrong without any such cause
alledged by the defendant whereupon the issue in every such Action shall be joyned to be tryed by verdict of twelve men and upon the tryall of that issue the whole matter to be given on both parties in Evidence according to the very truth of the same and after such issue tryed for the defendant or nonsuite of the plainetiffe the sad defendant shall recover treble damages by reason of his wrongfull vexation in that behalfe with his costs also in that part sustained and that to be assessed by the same Iury or by writ to enquire of damages as the same cause shall require And it is further enacted that the Iustices of Assize in their severall circuits shall have full power to enquire of all defects defaults and negligences of any Iustice of peace or any other officer person or persons whatsoever in the not due execution of this Law and also of all offences done contrary to the intent and true meaning thereof and to punish the same by fyne or imprisonment or otherwise according to their discretions Suretie for the peace CHAP. 56. 1. Dalton 140. SUretie for the peace is the acknowledging of a Recognisance or bond to the King taken by a competent Iudge of Record for the keeping of the peace and it is called surety of the word securitas because the party that was in feare is thereby the more secure and safe 2. This surety for the peace F. N. B. 7. 9. h. Lamb. 77. every Iustice of peace may take and command in two manners or by a twofold authority 3. First as a Minister commanded thereto by a higher authority as when a writ of supplicavit directed out of the Chancery or Kings Bench is delivered to his hands upon this writ that Iustice of peace only to whom such writ was delivered is to direct his warrant to cause the party to be brought before him alone to finde sureties for the peace and therein the said Iustice is to doe in every behalfe according as the writ doth direct him 4. Secondly as a Iudge and by vertue of his office and of his owne power derived from his Commission he may command this surety of the peace to be found and that either of his owne motion and discretion or else at the request or prayer of another 5. The Iustice of peace upon his owne motion and discretion may if he see cause command surety for the peace to be found or may bind a man to the peace and that against all the Kings subjects Vpon discreton Dalton 141. if the Iustice shall so thinke fit in these cases following 6. One that maketh an assault or affray upon the Iustice of peace himselfe the Iustice of peace may commit him to prison 5. H. 7. 6. till he hath found sureties for the peace or if he please for the good behaviour 7. So of such as in his presence shall make an affray upon another P. R. 18. 19. or shall stricke or assault or offer to stricke another 8. So he may doe of such as in his presence and hearing shall threaten to kill beat or hurt another or to burne his house 9. So likewise may he doe of such as in his presence shall contend in hot words P. R. 1â— for from thence oftentimes doe ensue affrayes and batteries and sometimes mischiefes yea manslaughters and murders See Cromp. 761. 142. P. R. 4. 10. So also may he doe of such as shall in his presence goe or ride armed offensively or with an unusuall number of servants or attendants for these are accompted to be in affray and feare of the people and a meanes of the breach of the peace so of servants and labourers that shall beare any weapons contrary to the statute of 20. R. 2. ca. 1. 9. Ed. 4. 3. P. R. 18. 11. Also he may binde to the peace any other person by him suspected to be inclined to the breach of the peace 12. If out of the presence of the Iustice of peace any man shall threaten to kill Cromp. 135. 143. P. R. 22. maime or beate another or doe attempt or goe about to doe it then any Constable being present or at the prayer of the other party may arrest such offendor to come before a Iustice of peace to finde sureties for the peace Fit bar 202. and the Iustice may bind him to the peace 13. If any Constable shall perceive any other persons in his presence 14. H. 7. 7. to be about to breake the peace either by drawing weapons or by stricking or assaulting one another or by assaulting the Constable himselfe he may take assistance and carry them all before the Iustice to finde sureties for the peace and the Iustice may bind them accordingly and for default of sufficient sureties the Iustice of peace may commit them to the gaole untill they finde such security 14. If the Constable shall learne that certaine persons be fighting or quarrelling in a house P. R. 22. he may breake open the doores and arrest them and bring them before a Iustice of peace to finde surety of the peace and the Iustice may bind them to the peace or in default of such sureties commit them to the gaole Dalton 141. 15. Yea the Iustice of peace either upon his owne discretion or upon any mans complaint may make his warrant for any such as have made an affray though out of his presence and may bind them to the peace or commit in default of sufficient sureties 16. If one hath received a wound the Iustice of peace may take surety of the peace of the one See Br peace 21. and the other by his discretion untill the wound be cured and the malice be over Popham the Lord chiefe Iustice of England an honourable and grave Iudge did accordingly betweene Iames and Benton at Cambridge Assizes 3. Iacobi 17. All such as shall goe or ride armed offensively in faires markets 2. Ed. 3. ca. 3 or elsewhere or shall weare or carry any guns daggs or pistols charged Dalton 142. in disturbance of the peace or terror of the people any Constable seeing this may arrest them and may bring them before any Iustice of peace and the Iustice may bind them to the peace yea though those persons were so armed or weaponed for their defence for they might have had the peace against the other persons whom they feared and besides it striketh a feare and terrour in the Kings subjects 18. Also the Iustice of peace upon his discretion may bind to the peace a common Barretor Ibid. and so he may Riotters 19. If he that standeth bound to keepe the peace hath broken 21. Ed. 4. 40. or forfeited his recognisance the Iustice of peace ought and may of his discretion to bind him anew but that must not be done untill the party be convicted of the breach of the peace upon his recognisance for before his conviction it resteth indifferent