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
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
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