Peace amongest others to take before that they should exercise the office and it hath these words I William Lambarde do vtterly testifie and decleare in my conscience that the Queenes Highnesse is the onely superame Gouernour of this Realme and of all other hir Highnesse Dominions and Countries as well in all spirituall and ecclesiasticall things or cause as temporall and that no forraine Prince Person Prelate State or Potentate hath or ought to haue any iurisdictionm power superioritie preheminence or authoritie ecclesiasticall or spirituall within this realme The Othe of Supremacie And therefore I do vtterly renounce and forsake al forraine iurisdiction powers superiorities and authorities and doe promise that from hencefoorth I shall beare faith and true alleageaunce to the Queenes Highnesse hir heires and lawfull successors and to my power shal assist and defende all iurisdiction priuiledge preheminence and authoritie graunted or belonging to the Queenes Highnesse hir heires and successors and vnited and annexed to the Imperiall Crowne of the Realme So help me God c. There hath bene care taken once or twice in our memorie to exact this latter Othe of all the Iustices of Peace throughout the Realme where of some good hath ensued But yet many a Iustice there is that by indirect practise neuer tooke neyther thys nor the former whereof what harmes doe and may grow I leaue to wiser and higher men to be considered Of the power absolute and limited that the Iustices of the Peace haue CHAP. XI THe power of the Iustice of Peace is in some cases Limited in other some cases Absolute Discretion By which latter word I do not meane absolute Simply but after a Manner For they may neither hang a man for a gréeuous Trespas nor fine him for a Felonie and therefore this absolute authoritie is to our Law better knowen by the name of Discretion because the Iustice of Peace may exercise sometimes Legis actionem and sometimes Iudicis officium or which is all one Iudicium Decretum as the case shall offer and the law suffer him It is a good Counsell which Aristotle giueth in his Rhetorikes ad Theodectem that in the making of lawes Quoad eius fieri possit quam plurima legibus ipsis definiantur quà m paucissimaverò Iudicis arbitrio relinquantur and the Commission of the Peace following that aduise doth leaue little or nothing to the discreation of the Iustices of the Peace but bindeth them faste with the chaines of the Lawes customes ordinances and Statutes Howbeit our latter lawes of Parliament although they also endeuour for the most parte to hold the same course yet forasmuche as euerie considerable circumstance can not be foreséene at the time of the making of the Lawe they doe many times leaue to be supplied by the discretion of the Executioner of the Lawe that thing which was not conueniently comprehended before hand by the wisedom of the maker of the Law And therefore although Discretion be necessary in the execution of euery law be it neuer so certainely set forth and bounded in it selfe yet in the mouth language of our Lawe that onelie and properly is said to be done by Discretion which is not specially limited with all the circumstances but is indifferently referred to the consideration of the Iustice that is putte in trust with it And truely it is to be wished that Iustices of the Peace would not by colour of this reference to their Discretion in some fewe cases arrogate vnto themselues authoritie to vse their discretion to play as it were the Chauncelours in euery cause that commeth before them For no way better shall the Discretion of a Iustice of the Peace appeare thā if he remembring that he is Lex loquens do containe himselfe within the lists of law and being soberly wise do not vse his owne Discretion but onely where both the law permitteth and the present case requireth it Right well saide Cicero Est sapientis Iudicis cogttare tantum sibi esse permissum quantum sit commissum ac creditum Of the Iurisdiction and Coertion belonging to the Iustices of Peace CHAP. XII AS Iustice can not bée administred without both a Declaration of the Law and an Execution of the same So to the ende that our Iustices of the Peace may be able to deliuer Iustice they are accomplished with double power the one of Iurisdiction and the other of Coertion the which other men doe call Vocationem Praehensionem that is to say Authoritie not onelie to conuent the persons but also after the cause heard and adiudged to constraine them to obey their order and decrée This Iurisdiction of theirs is exercised for the most part if not althogither aboute those causes which be in a maner the same that the Ciuil Lawyers do call Iudicia publica partely because the Prince who representeth the head of the common wealth hath interest in the most of them as wel as that priuate perso which is immediatly offended and partely because they are not commonly tryed by suche Action as other Ciuil and Priuate causes are but rather by Criminall and Publique Accusation Information or Presentment Iurisdictió And herein the Iustice of the Peace is by the one halfe superiour to the antient Conseruatour of the Peace who had onlie Coertion in a fewe cases and no Iurisdiction in any case that I remember But if the aucthoritie of these Iustices should cease when the fault is told hearde and adiudged then should they be no better than halfe Iustices and therefore the Law hath also Cohertion Execution or punishment as I said into their hands least otherwise their iudgements should be deluded for want of power to bring the to effect This Punishment then is an orderly execution of a lawfull iudgement layed vpon an offendour by the minister of the Lawe and it is done for foure causes first for the amendment of the offendor Cohertior or punishement for what causes it is appointed Secondly for examples sake that others may thereby bée kept from offeding Thirdly for the maintainance of the authoritie and credite of the person that is offended these thrée reasons be common to all such punishments Seneca rehearseth the fourth finall cause that is to say that wicked men being take away the good may liue in better securitie and this pertaineth not to all but to Capitall punishments onelie as euerie man may at the first hearing vnderstande The Romanes vsed specially eight sortes of chastisements knowen to them by these names Damnum Vincula Verbera Talio Ignominia Exilium Seruitus Mors that is losse of goods imprisonment stripes retaliation reproch banishment seruitude death All which our lawe before the Conquest was wont to inflict albeit that now Seruitude Retaliation and Banishment be out of vse The punishments that be commonly put in execution at this day and wherewith the Iustices of the Peace haue to do may be dinided into Corporal Pecuniarie
Statutes not comprehended within the Commission Or thus All these Lawes doe prohibite thinges contrarie to some of the foure Cardinall or principall vertues Prudence Iustice Fortitude or Temperance They may also be diuided by the barietie of the punishments and by some other Accidentall respects all whiche I leaue to the choice of suche as shall give them in charge and will now for this time set downe the Articles themselues after the order of the first diuision pointing out in the first place the Ecclesiasticall causes and then pursuing the Temporall In whiche doing first I will omitte all such Statutes as doe concerne but onely some one or a few particular places knowing that I write to the most part who haue not to doe with them The manner of this Charge Secondly I will purposely pretermit the rehearsall of the punishments conteyned in the Statutes that I am to run thorow aâ—well bicause those doe rather perteine to the Iustices than to the lurours as also for that I haue an auncient Precedent of the Iustices in Eire to make for me who in their charge did only deliuer the Articles in offence without any mention of the paines due vnto the same As it appeareth in the small volume of the old Statutes vnder the Title Capitula Itineris And thirdly I will neither recite all the other partes of each generall Statute by it selfe nor yet comprehend them wholie and fullie with others bicause the firste of the se waies wonld be very long through the ofteiteration of the same things and the other would bée so crooked I comberous through the barietie and difficultie of the exceptioÌ„s that the hearer would bée many times loste before I should come to the ende I know that M. Fitzh was of the opinion that the Iustices of Peace ought at their Quarter Sessions and may at their priuate Sessions giue in charge to the Enquest all such matters as they haue power to determine and this he vrgeth aswel by the Dath of the Iustices who are sworne to do right in all causes within their Commission or the Statutes as by the ignoraÌ„ce of the Iurours who cannot bée instructed but by the charge which if it bée so I sée not for my part how either these Iustices that are bound to vtter all can bée discharged or the Iurours that ought to heare all can be enfourmed without this 02 some such compendious plaine waie that may bothe shortly for the time lightsomely for the order comprehende the substaunce of that which belongeth to their Enquirie Howbeit as I thinke it the best for the Iustices to rehearse all such pointes whereof the Iurie may make presentment before them so yet I holde them discharged in my slender opinion if they vnfold onely the articles of their Commission and of such other Statutes as doe expressie auctorize them to make enquirie For as there bée sundrie Lawes that doe giue to Iustices of the Peace a certaine speciall 02 particular power in them and doe not yet yéelde vnto them any auctoritie to enquire vpon the same of which sorte be the Statutes 27. H. 8. c. 20 32. H. 8. c. 7. of Tythes The Statute 35. H. 8. ca. 17. of Woodes The Statute 23. El. ca. 9. of Logwood and sundrie others So also there be diuers others that do aforde to the Iustices of Peace the power of hearing and determining and yet doe not exprestie giue them the name of Inquine And for as much as they may heare and determine of these by Information giuen to themselves by them commaunded to the Iurie it séemeth to me that they bée not so necessarily boúd to giue them in charge but that they be well inough discharged if they lie open and be readie to receiue the informations and presentments that shall bée offered vpon them And of this kinde bée the Statutes of Highwaies 5. El. c. 13 18. El. ca. 9. the statute of Fighting in Churche or Churchyarde 5. E. 6. ca. 4 the Statute of Informours 18. El. ca. 5. and sundrie others whereof it shall be superfluous to make rehearsall Neuer the lesse bicause I will not that my fantasie shall either stand against his iudgement or be preiudiciall to other mens profite I haue contended what I may to deliuer the principall most seruiceable partes not only of the Commission and of suche Lawes as doe specially conteyne their Inquirie within them but also of al such other Statutes as may be hearde and determined by Iustices of the peace at any their Sessions and that in so narrowe a roome as if I be not after some proofe deceiued they may be distinuly read ouer in a couple of houres or litle more so that the yeares of the Kings and the other Notes be left vnread and passed ouer Ecclesiastical causes If anye person haue within this halfe yere by writing printing teaching preaching expresse déede or act aduisedly malitiouslye and directly affirmed holden sette foorth or defended the auctoritie preheminence power or iurisdiction spirituall or Ccclesiasticall of anye forreine Prince or perso whatsoeuer heretofore claymed vsed or vsurped in this Kealm or any the Quéenes dominions or haue aduisedlye malitiously and directlye put in ble or executed anye thing for the ertolling setting foorth or defence of anye suche pretended or bsurped iurisdiation preheminence or auctoritie or any part thereof Treason the third offece Extolany forraine power Or if anye person coÌ„pellable to take the oath of Kecognition of the Quéenes Maiestie to bée supreame Gouernour in all causes within hir domonions haue refused to take the saide oathe after lawfull tender thereof to him made 1. Eli. c. 1 5. Eli. c. 1. enquirable by words of 23. El. ca. 1. Refuse the oathe If any person vnder the Quéenes obedience haue at anye time wythin this yere by Writing Ciphering Priting Preaching or Acte aduisedlye holden or stoode with to extoll or defende the power of the Bishoppe of Rome or of his Sée heretofore calymed or vsurped within this realme or by any spéech open déede or acte aduisedlye attributed anye suche manner of auctoritye to the saide Sée of Rome or to the Bishoppe thereof within any the Quéenes dominioÌ„s yée shall presente him his Abettours procurers counsellours aiders and comforters Premunire Pope 5. Eliz. ca. 1 If any person haue by anye meanes practised to absolue perswade or withdrawe anye other within the Quéenes dominions from their naturall obedience or for that intente from the religion now established here to the Komishe religion or to moue them to promise obedience to the Sée of Rome or other estate Or if anye person haue bene willingly so absolude or wdrawn or haue promised such obedience Treason Withdraw any from obedience And if anye person haue willingly ayded or maintayned anye suche offender or knowing such offence haue concealed it and not within twentie dayes disclosed it to some Iustice of peace or other higher Officer Misprision of treason 23 Eliz.
shoulde be both willing wise to forsée and be also enabled with méete auctoritie to represse all intention of vproare and force and that euen in the firste séede thereof and before that it shoulde grow vp to any offer of daunger So that for thys cause as I thinke the election of the simple Conseruatours or Wardeins of the Peace was first taken from the people and traÌ„slated to the assignement of the King And whether their auctoritie and power were then also with this alteration anye thing increased or no I will not affirme But I find 3. E. 3. Titul Coron Fitzh 360. that an Enditement of murder was founde before one Wardein of the Peace onlie and that he therevpon wrote his letter or precept to the Shirife to apprehende the person endited who tooke and brought him before the Iustices in Eire and that they also therevpon procéeded to the arraignemente and triall of him And the Statute 4. E. 3. ca. 2. taketh order that such as should be endited or taken by the Wardeins of the Peace should not be bayled by the Shirife or other Ministers vnlesse they were Mainpernable by the Law Howsoever that were the same King vsed as I thinke for the first 33. yeares of his raigne to make his assignements and commissions to the Wardeins of the Peace not alwayes seuerallie into eache Shire but sometimes iointlie to sundrie persons ouer sundrie Shires for so I find a Comission 2. E. 3. part 2. patent in dorso made to William Roos and thrée others his companions to be Wardeins of the Peace not only in Lincolneshire but also in thrée or foure of the other Counties thervnto next adioining CoÌ„missioÌ„s or assignements for the Peace And this mighte be warranted after 18. E. 3 as I suppose out of the Construction of the worde Countie vsed Plurally in the Statute 18. E. 3. Stat. 2. ca. 2. contrarie to the meaning of the former lawes made 1. E. 3. ca. 15. 4. E. 3. ca. 2. where the same word is read Euerie Countie in the Singular number But the Parliament 34. E. 3. ca. 1 restored the proper sense of those lawes saying In euerâ—e Countie of England there shall bee assigned for the safe keeping of the Peace one Lord and with him three or four of the mightiest men in that Countie And afterwards speaking of Felonies c. it addeth They shall haue power to heare and determine at the Kings suite al manner of the felonies or trespasses done in the same Countie Hereof it commeth to passe that euer sâ—thence eche CouÌ„tie hath her proper CoÌ„missioners for the Peace that Counties haue not bene conioyned in Commission as they were sometimes before Hereunto also may that be referred which M. Fitzh Fol. 171. hath saying That before the Statues whiche ordined Iustices of the Peace the King vsed to make Conseruatours of the Peace by his commission in those Counties and places where he thought best to kéepe his Peace But now at what time these Wardeins of the Peace were first named and mighte truely be tearmed Iustices of the Peace it is not so cuident that I dare determine vpon it for on the one side I knowe that M. Marrow taketh it cleare that they were made Iustices by the Statute 18. E. 3. Stat. 2. ca. 2. and on the other side I sée that they were not named Iustices in anye Statute that I have founde within 17. yeres after and it is true to this verie Day theyr owne Commission giueth them not anye such Title There is a shewe I confesse in that Statute 18. E. 3 that they sshoulde be Iustices because of the power to heare and determine felonies whiche is mentioned there The First name of Iustices of the Peace But if it be well weighed it will appeare by the Statute it selfe that the Wardeins of the peare were to haue one Commission by themseluse for the kéeping of the Peace that they and others onely at times néedefull were to haue an other Commission to heare and determine Felonies So that as they were méerlye Commissioners for the Peace they had none aucthoritie to determine felonies and consequently could not in regarde thereof be then worthilye called Iustices and it is plaine in mine opinion that the generall power of determining felonies was first given unto the Wardeins of the Peace as to themselues by the Statute 34. E. 3. ca. 1. After which time it is uerie true that were were commonlie reputed and called Iustices for within one yere after that time there is a Commission which I have sséene in dor so patentium parte 2 that speaketh thus Assignauimus etiam vos tres vestrum Iustictarios nostros c. and the Statute 36. E. 3. ca. 12. taking order for the Quarter Sessions to be holden as well by them as by the coÌ„missioners for Labourers called both the sortes of them by the name of Iustices I might here disclose home and by what degrées the auctoritie of these Iustices of the Peace was froÌ„ time to time enlarged But I wil reserue that vntill I shall come to the forme of their Commission where I shall finde both fitter occasion and more proper place for it By whose auctoritie and by what means Iustices of the peace be appointed and of what sortes they bee CHAP. V. FRom the king who is the head of Iustice ought to flow all aucoritie to the inferiour and subalterne Iusrices And vpoÌ„ this reason it séemeth that the said Statutes 18. E. 3. ca. 2 and 34. E. 3 ca. 1. did ordaine that the Wardeins of the Peace in each Countie should be assigned by the kings CommissioÌ„ that it might thereby appeare that they receiued their whole authoritie and power as it were by his owne hande and deliuerie Howbeit afterward partly through such as had Iurategalia within their Counties Palatine and did thereby make Iustices of the Peace in their owne names and partly by the meanes of sudrie Abbats and Religious persons who labouring by all policie to increase their iurisdictions and to shoale out themselues from the ordinary gouernement had obtayned graunts from the King of the Realme that they theÌ„ selues might make Iusticiarious suos ad pacem coseruandam within their owne liberties this prerogatiue of making Iusstices was in manye places afterward seuered froÌ„ the Crowne to no small detrimente of the royall estate of the same And therefore although by the opinion of Iudge Fineux in the Abbat of S. Albans case 20. H. 7. 8. such a graunt was of no value in lawe because it was of a Prerogatiue inseparablie annered to the Crowne yet King Henrie the eight thought it fit by a generall resumption in Parliament of all such liberties to restore vnto the Crowne hir antient right in this behalfe And therevppon 27. H. 8. ca. 24. it was decriéed that no person whatsoeuer should haue any power to make Iustices of the Peace but that they should be made by letters patents vnder the Kings great
The sorts of punishment Corporal punishment is eyther Capitall or not Capitall Corporall Capitall or deadly punishment is done sundrie wayes as by hanging burning boyling or pressing not Capitall is of diuers sortes also as cutting off the hand or eare burning or marking the hand or face boaring through the eare whipping imprisoning stocking setting on the Pillory or Cucking stoole which in olde time was called the Tumbrell Of this kinde of punishment our olde lawe making pretious estimatioÌ„ of the liues of men had moe sortes than we now haue as pulling out the tongue for false rumours cutting off the nose for adulterie taking away the priuie partes for counterfaiting of money c. Vnder the name of Pecuniarie punishement I coÌ„prehend al Issues Fines a mercâ—aments Forfetures of offices goods or laÌ„ds Pecuniarie And if the Iustices of Peace may by vertue of their Commission deale with suche Conspiratours as do confederate togither to cause any person vniustly to be indited of Felome where of after ward he is acquited as some do think they may thé is ther a speciall punishment in that case appointed by lawe which in 24. E. 3.73 is tearmed Vilanous and may be well called Infamous because the iudgement in suche case shall he like vnto the auntient iudgement in Attaint as it is saide 4. H. 5. Fitzh Iâ—famous Iudgement 220. and is in 27. lib. Ass P. 59. set downe to be that their othes shall not be of any credite after nor lawfull for them in person to approch the Quéenes courts that their lands and goods be seazed into the Quéenes hands their trées rooted vp and they imprisoned c. And at this day the punishmet appointed for Periury hauing somwhat more in it than Corporall or Pecuniarie paine stretching to the discrediting of the testimonie of the offendor for euer after may bée partaker of this name That Iustices of the Peace bee Iudges of Recorde CAP. XIII IT maketh not a little both for maintenance of the Peace and for the credite of the Iustices thereof that they are numbred amongst the Iudges of Recorde for on the one side euil doers wil be afraid when they shall sée Memorialles of their wickednesse before their eies and on the other side the procéedings of those Iustices shall be so much the more reuerenced set by as it shall appeare that their endeuours are countenaunced with the fauour of authoritie And therefore let us sée what is meant by the word Recorde The Latine men vse Recordor when they will signifie to kéepe in minde or to reméber in which sense the Poet saide Siritè audita recordor Recorde what it is And after the same sense also doeth oure Lawe use it For Records be nothing else but Memorialles or Monuments of things done before Iudges that haue credite in that behalfe And therefore where King E. I. doth in the beginning of the Booke called Britton set foorth the Iudges of his Courtes he saith of some that they shall have authoritie of Record and of others that they shall beare Record all which do meane but one thing namely that they shall be trusted in the reporte of causes happening before the and we yet say in common speeche Suche a man shall beare record of a thing when we intend to say that he remembreth it and can beare witnesse of it So that in the vse of the word there is in maner no differece and therefore let us examine the matter One man may affyrme a thing and another may deny it but if a Record once saye the worde no man shall be receiued to Auerre or speake against it For saith M. Bracton Fol. 156. writing of a speciall case where the Shirife in his Countie hath Record If men shoulde bee admitted to deny the enrolled actes of the Court then would there neuer bee any ende of controuersies And therefore to auoide all contention that may arise whilest one saith one thing and one other saith an other thing the Lawe reposeth if self wholy and solely in the report of the Iudge and hereof it commeth that he can not make any Substitute or Deputie in his office as M. Bracton and Britton bothe do affyrme séeing that he may not put ouer the confidence that is put in him This Record or Testimonie is first contained within the brest of the Iudge as our Law speaketh afterward committed to the Rolles which are therefore figuratiuely called Records also For you may sée 7. H. 6.28 in Hildebrands case 19. H. 6.9 and elsewhere that during all the time of that Terme in which any thing passeth before the Iustices at Westminister the Record therof is in Scrinio pectoris in their owne harts or breasts so that they may at their own pleasure correct or amend it But that after the Terme ended it is only in their Rolles ouer the which they haue no coÌ„trolment The Rolles be Recordes And this agréeth right well with that which Britton F. 01.3 affirmeth saying in the Kings person thus And albeit that we haue graÌ„ted to our Iustices to beare Record of the pleas pleded before the yet by this we will not that their record shall be any waraÌ„t in their own wroÌ„g nor that they may raze or amed their Roll nor make Record against their enrolment Thus much generally of al Iudges of Record Now touching our Iustice of the Peace it is the opinion of the Court 9 E. 43 and 14. H. 8.16 and of diuerse other Books in our lawe that euerie one of them by himselfe is a Iudge of Recorde For as you haue heard he is made by the great Scale a matter of Recorde and hath Iudiciall power giuen unto him euen by the first Assignauimus of the Commission He hath also a Scale of his Office by the opinion of Brudnell 14. H. 8.16 if he make any WarraÌ„t although it be beyonde his auctoritie yet it is not disputable by a Conestable or other inferiour Minister but must be obeyed And he maye take a Recognisance for the Peace as appeareth 7. H. 4.34 common experience telleth it which none caÌ„ do but a Iudge of Recorde bicause the acknowledging of the sum is to remaine as a matter of Recorde Yea by good opinion 2. H. 7.1 A Supersedeas of the Peace made by one Iustice of Peace under his seale being brought into the Sessions is a sufficient Recorde to proue that there is a Recognisance of Peace taken by the same Iustice and warrant ynoughe to call the partie bounde thereuppon and if he make default to Recorde the same Moreouer his Recorde or testimonie is made in some case of greater force and value than an Enditement by the oath of twelue men for his Record as shall appeare hereafter in place conuenient shall conclude the partie so that he shall not be admitted to Trauerse or gainsay it by 21. H. 6.5 Fâ—zh Fol. 18.6 upon the statute 15. R. 2. ca. 2.11 H. 7. ca. 15. 33.
H. 8. c. 6. Greate cause hathe the Iustice of Peace therefore to take â—iligente héede that he abuse not this credite either to the oppressing of any subiect by making an untrue Recorde or to the defrauding of the Prince by suppressing anye true Record Much more reason is there to holde that two Iustices of peace or more sirting in the execution of their authoritie in open Sessions must néeds be taken to be Iudges of Recorde Howe long time the auctoritie of the Commissioners of the Peace is to indure and by what meanes it may be suspended or determined CHAP. XIIII WE haue alreadie touched that the power of the Commissioners of the Peace is not perpetuall but nowe the place serueth to handel it at full The Commissioners of the Peace are to continue during only the pleasure of the Prince by whose pleasure they were at the first appointed and therefore by the determination of that pleasure their auctoritie ceasseth also Besids the which there are other means to determine their Actoritie as namely the Accession of an other office the Presence of a higher power and in some speciall case the wante of Adiournement of their Commission The pleasure of the Prince may bée determined either by expresse word or by implication or by death By expresse word The Queenes Maiestie therefore maye discharge the Commissioners of the Peace by hir expresse Writte vnder the gret Seale L. 5. E. 4.32 If she sende a Super sedeas to al the Commissioners of the Peace that will suspende all their auctoritie But yet so as it may be reuiued by a Procedendo and therefore it doth not vtterlie determine their auctoritie as may be gathered by 12. lib. Ass Pl. 21. Againe when the Queenes Maiestie maketh other Commissioners of the same kind within the same Limites it is implied thereby that the former Commissioners shall have no longer power although there be neuer a worde spoken of the discharge of the for the repugnaÌ„cie By implycation of a new Commission 3. Mar. Regi Brooke Tit. Commssion 24. But yet if there be Iustice of the Peace by Commission in a whole Countie and afterward the Queene maketh another man Iustice of the Peace in one Towne of the saide Countie onelie Chocke was of opinion General and proper Iustices 10. E. 4.7 that the power of the first Commissioners continued still in that Towne bycause that is not altogither contrariant And Iudge Fineux helde so also 20. H. 7.8 that if the Queene make a proper Iustice of the Peace within a speciall Libertie yet maye the generall Iustices of the Peace of the Shire medle there also vnlesse there be wordes of Prohibition in the Patent as ê™ nulli alij Iusticiarij nostri se intromittaÌ„t c. If the antient CoÌ„mission of the Peace were to foure persoÌ„s afterward the Queene should make one man a full Iustice of the peace through that same limit during his life then shoulde the handes of the fours Commissioners be closed saith Marrow And a newe Commission pro hac vice taÌ„tum will determine the olde So also a new CoÌ„missioÌ„ to heare and determine Felonies determineth the olde Commission of the Peace concerning Felonies but not concerning the Peace And a new Commission of the Peace ad inquirendum tantum is a determination of the old Commission ad audiendum terminandum by Mar. But it is plain by the preamble of the statute 2. 3. Phil. Mar. ca. 18 that the law was take that if a CoÌ„mission of the Peace was first graÌ„ted to certain wtin a towne after another CoÌ„mission had bin granted to other within the whole shire that this had bene a Supersedeas to the CoÌ„missioners within the said towne Nowbeit this determination of the olde Commission that we speake of groweth not immediately by the making of a newe CoÌ„mission but either after the reading or proclayming of the new CoÌ„mission at the Session of the Peace or at the full Countie or else by holding of some Session by vertue of the new Commission in al which cases the old Commissioners must take notice of the new Commission or els after the giuing of notice of the new Commission vnto the old Commissioners for otherwise al the meane actes of the olde Commissioners be good in Law Mar. 21. H. 6. 29. 34 lib. Assi Pl. 28. And for as much as some Cities Corporate townes found theÌ„ selues gréeued with the Law staÌ„ding as hath bin remebred it was specially ordained by the said Statute 2. 3. Phi. Mar. ca. 18. that a Commission of the Peace and Gaole deliuerie made to a Citie or corporate towne not being a Countie by it selfe should not be determined by the making of such an other Commission after to any of the Shire Lath Rape or Wapentake in the which that Citie or towne standeth Finally it is to be noted that in al cases wher an auntient Commission of the peace is determined by a new yet no Processe or Suite hanging before the old Commissioners shall be discontinued therby by the Statute 11. H. 6. ca. 6 I. E. 6. ca. 7. By the death or demise of the Prince also dieth the power of all the Commissioners of the Peace made by him for he maketh the Iusticiarios suos so that he being once deade or hauing giuen ouer his Crowne they are no more his Iustices and the Iustices of the next Prince they shal not be vnlesse he wil make them his 4. E. 4.44 1. E. 5.1 By death If sseacute emeth that some toke the Lawe to bée that if a Iustice of the Peace were created a Duke Marquesse Earle Vicount or Baron or elected an Archbishop or Bishop or made a Knight or Iustice of any of the two Benches or Serieant at the lawe that then his Office of the Peace was determined therby bycause it could not be thought that his name being changed he should remaine the same person Accession of a new office or calling And so if he were made Shirife that his Iusticeship ceased also bicause as Marrow faith he could not be both a Iustice an Officer to direct serue his owne Precepts and so likewise was it thought of him if he were made a Coroner but not so if he were made an Vndershirife And therefore for the declaration of the Law in the most of these cases it was enaded 1. E. 6. ca. 7. that if a Iustice of the Peace were made Duke Marquesse Erle Vicount Baron Archbishop Bishop Iustice of the one Benche or other Knight Serieant at the Law or Shirife the yet he shuld be Iustice of the Peace still But that acte was afterwarde upon good reason controlled in parte and a newe law made I. Mar. Parl. I. ca. 8. by whiche it was ordered that no man shoulde exercise the office of a Iustice of the Peace during only the time that he is Shirife of the same Countie wherein he is also
Recognusance it selfe according as he now ought to doe by the Statute 3. H. 7. ca. 1. And this may be gathered vpon the opinion 2. H. 7.1 and maye bée séene by this form of it here vnder written GEORGE MVLTON one of the Iustices of the Peace of our Soueraigne Lady the Queenes Majestie within the Countie of Kent To the Shirife Bailifes Conestables Borsholders Ministers and other the Faithfull subiectes of our said Soueraigne Ladie within the saide Countie and to euerie of them sendeth greeting For as much as A. B. of c. The forme of a Supersedeas by a Iustice of the Peace Yeoman hath personally come before me at Ightham c. and hath found sufficient suertie that is to say C. D. E. F. c. Yeomen either of the which hath vndertaken for the said A. B vnder the paine of xx lb and he the said A. B. hath vndertaken for himselfe vnder the peine of xl lb that he the saide A. B. shall well and truely keepe the Peace towards our said soueraigne Ladie all hir liege people and specially towardes G. H. c. Yeoman also that he shal personally apeare before the Iustices of the Peace of our said soueraign Ladie within the said Countie at the next general Sessions of the Peace to be holden at M. there Therefore on the behalfe of our said soueraigne Ladie I commaund you euerie of you that yee vtterly forbeare and surcease to arrest take imprison or otherwise by any meanes for the said occasion to molest the saide A. B. And that if you haue for the said occasion for none other take or imprisoned him that then you do cause him to bee deliuered and set at libertie without further delaye Yeouen at Ighthā aforesaid vnder my seale this last day of Iuly in the xxiij yeare c. Which also may bée in the name of the Prince and vnder the Teste of the Iustice of the Peace thus ELIZABETH by the grace of God c. To the Shirife c. greeting For as much as A. B. hath come before G. Multon one of our Iustices of peace within our said Coūtie and hath found c. We therefore commaunde you and euerie of you that ye forbeare c. Witnesse the said G. M. at Ighthā aforesaid c. Thus muche of the Supersedeas issuing from a Iustice of the Peace the which ought to with-holde and stay the procéeding of his fellowe Iustices in the saide cause in so muche that if anye Officer by any of their Warrants hauing this Supersedea deliuered to him wil neuerthelesse vrge the partie to finde new Suerty for the peace he may refuse to giue it and if he be committed to prison for suche his refusall he maye as I thinke haue his action of False Imprisonmente againste the Officer vppon the same Much more then will a Supersedeas that commeth out of the Chauncerie or Kings Benche or from anye Iustice of the Kings Bench discharge such a Precept for the Peace awarded from any Iustice of the Peace Supersedeas out of an higher court And therefore if the Iustice of the Peace to whō such a Supersedeas shal be deliuered wil not thervpon surcease an Attachment may be awarded against him for his comtempt and he may be imprisoned and fined for it It is good counsell therefore that M. Fitz in hys Nat. Br. Fo. 238 giueth where he willeth the Iustices of the Peace after such a Supersedeas receiued to forbeare to make anye Warrant to arrest the partie it they haue awarded it then to make their owne Supersedeas to the Shirife and other Officers therby commaunding them to surcease to execute it This impediment of Supersedeas lying after this sort as you haue séene in the waye to the Iustice of the Peace thus passed ouer let vs nowe suppose the partie serued with the precepte to come before some Iustice of the Peace and let vs enter into the taking of the Recognusance of him for that is one part of the execution of the Warrant for the Peace and may doe seruice whether the partie come to him that made the Precept or to any other The taking of the Recognusance for the Peace If the Iustice of the Peace deale in thys matter as a Iudge and by vertue of the Commission then the number of the Suerties the summe of their bonde their sufficientie in goods or landes the time how long he shall be bounde and some other such circumstances are referred wholie to his own consideration and if he be deceiued in the abilitie of the Suerties hée maye compell the parties to put in others Marrow The Commune manner is to take two Suerties desides the partie himselfe and good reason it is that those shuld be such as haue their names registred in the Booke of Subsidie for albeit that here and there some maye be sufficient that were not assessed to the Queene yet it standeth not well togither that hée shoulde become bounde to the Prince in tenne or twentie poundes that was not in the Subsidie found worth any thing at all But if he commmaunde the Peace as a Minister in execution of the Writts of Supplicauit then he must behaue himselfe as the Writte it selfe directeth him and that hath not bene alwayes after one manner for some forme commaundeth him to take sufficiente Manucaptors in any peine or sum to bée reasonably set by himselfe so that hée will bée aunswerable for it at his owne perill and some willeth him to take sufficient Suertie in a summe certainelye prescribed vnto him as a hundred poundes in all or euerie of them in twentie pounds as it may bée séene at large in the Register of Writtes Fo. 89. A Iustice of the Peace saith Maister Marrow maye take this Suertie by a Gage or Pledge which shall not be forfaited therby but paunded onely that the partie shall vnder a certaine peine kéepe the Peace whiche peine he shall forfaite it he breake the Peace And by his opinion a Iustice of the Peace may also take this Suertie by an obligation made to himselfe by the name of Iustice of the Peace For so shall it bée saith hée advsum Domini Regis But if it were made vnto him without his name of Iustice of the Peace that then it coulde not bée to the vse of the King vnlesse it had the words advsum Domini Regis Maister Fitzharbert on the other side in his Nat. Bre. Fo. 81. holdeth that suche an Obligation taken to the King by a Iustice of the Peace is nothing worth for a man can not bée bounde to the Prince sayeth he but onelye by matter of Recorde vnlesse he will afterwarde come into a Courte of Recorde and cònfesse it to bée his déede pray that it may bée Enrolled there But the new Statute 33. H. 8. ca. 39 hathe made a plaine law in these cases willeth that all Obligations and Specialities made for any cause touching the
seuerall Volume by it selfe or so marked in M. Rastals Abridgement that every man that will may easisly finde much good by it THE SECONDE BOOKE INTREAting of the Sessions of the Peace and of things incident therevnto THE PROHEME IT may peraduenture séeme that having alreadye stoode long in matters that were of the lesse importance and such as might be dispatched at home sine strepitu I will be now both long and tedious when I beginne with those of greater weight and which dos require the solemne Benche But as at the first I thought it téte to help most where most néde was I meane wherer one or two Iustices pressted with the necessitie of tyme and destitute of the assistaunce of their learned companions were to administer office alone So nowe knowing that at the Sessions of the Peace there be commonly many Iustices in number and amongest them sundrie so well instructed in lawe as in being too busic with that which belongeth thereto I shall as the saying is but sette a candle in the Sunne shine and rather bewray want in my selfe than bring helpe or light vnto them I purpose to runne ouer this residue more swiftly except it be in a fewe places where either the profite or necessitie or both of the matters them selues shall begge licence and pardon for me The description of the Sessions of the Peace CAP. I. AS a man that hath reseaed hurt in his bodie by a stroke wher of he bléedeth freshely will be contented for the present to admitte the helpe of any meane Leche or Surgeon comming next to hande for the staunâ—hing of his blood binding up of the wound and yet would more gladly have vsed the conference of diuers expert Surgeons for doing the same if the danger of the hurt would have graunted the time that will be lost in calling them together So also the common councell of this Realme finding that the bedie of it may be déepely wounded in some one member and perceiuing that some euills must be resisted at the verie first least otherwise they grow past helpe and ware incurable hath many times thought it good to committe to one or to a fewe Iustices of the Peace for that they be readie and at hande the sfopping of the blood as it were and first dressing of the wounde by repressing of force and other outrages that doe soudainly arise and hath yet neuerthelesse when as the tyme and matter will permit politikely established an assemblie and conference of all the Iustice at certaine tymeâ— in full Court and open Session And as it is true thatif the publiqus peace shoulde not be preserued by taking of Suertie before it be broken If suche as doe violate the commune tranquilitis shoulde not be committed to prison when they have broken it If seditious talebearers the sowers of Kebellion shoulde not bée snapt vppe and restreyned If finally riotous assemblies should not be dispersed and forcible inunasions withstoode and remoued the hurte bodie woulde bléede to deathe and too late and in baine woulde it bée to summone a session for remedie So when the bridele is once cast vpon the heade of the offender then and not before is the matter readis for the sitter And great and many are the profittes that woulde followe of these Sessions if they were often kept and duely ordered I will for this tyme call a Session of the Peace An assemblie of any two or moe Iustices of the Peace one of them being of the Quorum at a certaine daye and place within the limittes of their Commission appointed to enquire by a Iuric or otherwise to take knowledge and therevpon to proceedc to heare and determine according to their power of the matters within their Commission and Statutes referred to their charge The description of 2 Session of the peace And this Description excludeth all méetings that are onely for Enquirie in se much as to enquire and not to heare and determine is but a halfe doing and not worthye the name of a Session of the Peace It shutteth out also such assemblics as doe consist of two Iustices of the Peace méeting onely to enquire heare and determine of a Riotte by vertue of fhe Statute 13. H. 4. for that may they doe as also the former though neyther of them bée of the Quorum So that it is but a particular seruice layde vppon two Iustices and the Shirife by this Statute and the Record thereof shall not as I thinke remayne amongest the Recorder Of the Sessions Of the Peace as hath bene sayd already And therfore the assemblie that I meane is a méeting of such Iustices for the execution of their generall auctoritie and albeit that happily some one matter bée the motiue and thiefe cause of their comming togither yet if they deale with that and others witthin their Commission and charge let it on Gods name passe for a Session of the Peace according to my meaning These Sessions of the Peace then bés grounded chiefely vppon the wordes of the thirde Assignauimus in the Commission the which béeing duos vestrum quoruus aliqucm c. doe very necessarily require the presence of one of the Quorum for the wordes of the seconde Assignauimus doe give no power to heare and to determine but onely to make enquirie Which thrée thinges namely to Enquire Heare and Determine doe in effect comprehends whatatsoeuer belongeth to these Sessions So that euerie thinge whereof I shall hereafter intreate will concern eyther the Information of the Iustices by enquirie and other méete meane Dr the Hearing and tryall of the cause Dr the Iudgement and execution which is the determining given and done dponit A partition of that which followeth in this booke And therefore in this pathe God willing will I freade and by it you shall trars me to the ende VVho shall appoint the Sessions of the Peace and how and where CAP. II THe Iustices of the Peace doe at their Sessions take knowledge of causes with in their Iurisdiction eyther by the Dath Of lnquirours or by the presentment or declaration of other men And this Inquirie is firste prepared by the apparance of the Officers and Countrie by the Articles giuen in charge and then performed by the presentment or Jnditement of them that had the charge to make it The vsuall manner of calling the Officers and Countie togither for this feruice is by a Precepte to the Shirife wherein both the disposition of the Iustices is notified for the holding of a Session and feruice and attendaunce of those others is cornmaunded to bée thereat with them which they be wel warranted to directe vnto hun by the laste Assignauimus of theic Commmission and the Mandauimus that followeth thervpon The Forme thereof hath bene like this Thomas Randolphe Thomas Wotton duo Iusticiarierum Do. Reg. ad pacem in Comitaiu Kancia conseruandam necnon ad diuersa felonias transgrossiones alia malefacta in dicto Comitatu perpetrata audienda
shooting therein or haue not for euerie man childe in his house betwéene seauen yeres and seauentéene of age a Bow and two Shaftes and for euerie such being aboue seuentéene yeares a Bowe and foure Shaftes or haue not brought them vppe in Shooting If any man vnder the age of four and twentie yeares haue shotte at standing prickes or being aboue that age haue shot at any mark vnder eleuen score yards with any Prickeshaft or Flight Archerie If the inhabitants of any town haue not made and continued their Buttes as they ought to doe Buttes If any Bowier haue not for euerie Bow that he made of Ewe made also four others Bowes of apt wood to shoote in Or haue not solde his Bowes for all ages at their due prices If any straunger borne not being a Denizein haue vsed to shoote in a long bow without the Quéenes licence or haue conueyed out of hir Maiestries dominions any long Bow or Shaftes without such licence Bowiers 33. H. 8. ca. 9. If any temporal person hauing estate for life in fréeholde landes or tenements to the value of 200. ◠by yeare or vnder and not aboue 400. ◠Armour Or not being other wise charged and hauing fées annuities or copiehold lands for life to the value of 30. ◠or aboue or hauing goods to the value of 10. ◠or vpware haue not and kéepe not in a readinesse suche Horses Geldings Weapon armour and other furniture for the wars as after the proportion of his abilitie he ought by the Statute thereof made to haue and kéepe 4. 5. Phil. Mar. ca. 2. If any temporall person of full age whose wife not being diuorsed nor willingly abseting hir selfe from him doeth weare anye Gown or Peticoate of silke or any Veluet in hir kirtle or in any lyning or part of hir Gowne other thā in Cuffes or Purfles or any Frenchhoode or Bonet or Veluet with any habiliment past or edge of golde pearle or stone or any chaine of golde about hit neck or upon any hir apparell haue not founde and kepte a light Horsse furnished excepte he haue bene otherwise charged by the Statute to finde Horsse or Gelding 33. H. 8. ca. 5 4. 5. Ph. Mar. ca. 2. Horsse for apparell If the Inhabitauntes of anye Parishe Town or Borough haue not or kéepe not such common armour and furniture for the warres as hath bene appointed for them by the Commissioners thereto assigned 4. 5. Phi. Mar. ca. 2. Commune armour If anye person being generally or speciallie commaunded to Muster before anye hauing auctoritie for the same haue without true and reasonable cause absented him self or haue not brought with him in a readinesse his best furniture of array armour for his own person Musters If anye person auctorized to Muster or to leuie men for the Quéenes seruice in warre haue taken anye rewarde for the discharge or sparing of anye person from that seruice or if anye person hauing charge of meanne for warrefare haue not paide to his souldiours their whole wages conduict and cote money or haue for anye gayne licensed anye of them to depart out of the seruice 4. 5. Phil. Mar. ca. 3. Captaines If anye Souldiour seruing the Quéene in hyr warres haue giuen awaye wilfullye purloyned or pur awaye anye Horse Gelding Mare or harnesse wherewyth he was set foorth Souldiours 2. 3. E. 6. ca. 2. 4. 5. Phil. Mar. ca. 3. If any person haue conueyed solde or giuen into any place beyond the Sea out of the Quéenes dominions or to any Scottisheman to be conueyed into Scotlande any Horsse Gelding or Hare aboue tenne shillings price wythout the Queenes licence vnder hyr greate Seale or priuie Signet vnlesse it were to serue the Quéene in hir warres Couney Horsses c. 1 E. 6. ca. 5. If anye person haue putte to féede in anye Forest Chace Moore Marish Heathe Common or waste grounde within this shire where anye Mares are vsed to be kept anye stoned Horsse being aboue two yeres olde and not being fouretéene handefuls highe betwéene the lowest parte of the hoofe and the toppe of the wyther If anye such Forrest or groūds haue not bene yerelye driuen within 15. dayes after Michaelmas by the owners or officers thereto appointed Horsses and Mares for breede 32. H. 8. ca. 13. If watches haue not bene made uppon the Sea Coastes in suche places and wyth suche number of people and in such maner as it was wont to bée Sea Watch. 5. H. 4. ca. 3. The Statutes of leuying the wages of the Kinghtes of the Parliament made 23. H. 6. cap. 11. hath no gret vse Parliament Note also that these Statutes following are to bee openly published at any Sessions of the Peace viz. The Statutes 36. E. 3. cap. 2. 3. 4. shall bee proclaimed by the Iustices of Peace euerie yeare and thereof enformed the people Purueiours 23. H. 6. cap. 2. Alformer Statutes for victualers being in force shal be proclaymed two times yearely in the Sessions of Iustices of the Peace Victualers 23. H. 6. ca. 13. The Acte for Archerie 33. H. 8. ca. 9. muste bee proclaymed at the seuerall Sessions of the Peace Archerie Of the Enditementes and Presentments giuen by the Iurours and of the Matter and forine and receiuing and reiecting of them CAP. V. THe preparatiō to this Enquirie thus made let vs also looke vpon the performaunce of the same The vnderstanding or knowledge which the Iustices of the Peace do take by the trauel of these Enquirours is by the mean of their reaport put in writing and commonlye called an Enditement or Presentment betwéene the which two wordes howsoeuer they be confounded in common spéeche me thinketh that there doeth easilie appeare a certaine difference Presentmet For I take a Presentmente to bée a méere denuntiation of the Iurours themselues or of some other Officer as you shall hereafter heare wythout anye other information and an Enditemente to bée the Verdite of the Iurours grounded vppon the accusation of a thirde person So that a Presentment is but a declaration of the Iurours or Officers without any bill offered before an Enditement is their finding of a Bill of accusation to bée true Enditemet The òne séemeth to come of the Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I accuse the other of the Frenche Presenter to offer vnto a man or to set beefore him But taking them as others doe lette vs consulte wyth M. Marrowe and others that wée may learne of them what things bée requisite to make a good Enditement For the Iustices of Peace ought to haue an eye vpon the Enditementes taken before them and therefore they vse to command that the Enqueste shall take no Billes but suche as the Iustices themselues hane firste perused Howbeit if the Enquest do the contrarie it is good ynoughe so long as their bils doe
set foorth in the Statute of Drouers Badgers 5. Eliz. ca. 12. where it appeareth that vpon the examination of two lawfull witnesses the Iustices of Peace may make Processe as if it were vpon an Inquisition of twelue men Forced Information The like may they do vpon the Statute of Armour 4. 5. Phil. Mar. ca. 2. Sute betwene party and party And the berie like also may they doe vppon the Statute made against Forstallers 5. E. 6. ca. 14. which last sayd Statute séemeth for this point to haue bene followed as a Paterne by the other two so right they tread in the steps of the same Herunto also you may adde the examination of the M Marmers of ships wherin corne or victuall shall be transported against the meaning of the Statute 1. 2. Phil. Mar. ca. 5. Thus much of the knowledge of cause exhibited by such as either doe it at large for the Queene onely to haue the offence punished or be special1y allured thereto by regard of benefit growing in common to them with the Queene thereby Now of those that seeke to informe the Court for the profite due to them selues alone The knowledge that commeth this way is by the priuate sute and proper action of the partie and is therefore in the Statute 11. H. 6. ca. 6. tearmed a sute betwene partie and partie whereof that Statute had no lesse consideration than of those other sutes that bée for the Queene her selfe and therefore prouided that they also should not be discontinued by new Commissions of the Peace to be made I know that there be not many Statuts which do giue power to the Justices of Peace to hold Plea betwene partie and partie and I thinke it hath not bene often experimented vpon those very Statutes which do giue it and how the Judges do expound this verie Statute I can not tell Neuer the lesse because I may neither wittingly conceale any such parte of their auctority Iurisdiction although it were but my opinion nor safely reaport it without some proofe I will giue you one example of this kinde as I take it and leaue the rest further search The Iustices of Peace haue power to enquire heare determine of all the defaultes against the Statute made 23. H. 6. ca. 11. concerning the leuying of the wages of the knights of the Parliament as well by enquire at the kings sute as by action at the sute of the party In this and suche like as in Appeales by warrant of the large words of the Commission as hath bene sayd the Iustices of Peace ought to proceede after the vsuall manner of ather Courtes of Recorde at the Common law if I doe not miscall it and therefore I wil goe no further with it but will prosecute that hearing and determining that more properly pertaineth unto them if first I may shew you how they are sometimes preuented in that behalfe Of the Impedimentes of proceading vpon Enditements before the Iustices of Peace CAP. VII IT falleth out not seldome when Iustices of the Peace haus taken an Endâ—ement founde before them that they can not proceede to hearing and determining vpon it either bicause it is grounded vpon some such Statute as giueth vnto them no further power but onely to enquire thereof or els bicause the Enditement is taken out of their handes by Certiorari and conueyed to Iustices of a higher auctoritie at the sollicitation and by the meanes of some parties grieued to the end that either they may trauerse them aboue or there auoide them for insufficiencie of forme or matter And therefore Iustices of the Peace may only enquire of certaine the offences against the Actes 1. El. ca. 2 ca. 3 5. El. ca. 1 13. El. cap. 2. touching the acknowledging of the Queenes supremacie or the seruice of God or comming to the Churche or the stablishment of true religion as you may see 23. El. cap. 1. And they may onely enquire of any the Treasons or Misprisions of treasons made by the same Acte 23. El. ca. 1. Neither can they goe any further than onely to enquire of and to endite the offendours against any the Articles of the Acte made 23. El. ca. 2. concerning seditious rumors against the Queene In the rest so farre as I haue found their power of Enquirie is accompanied with the auctoritie to heare and determine also For this want of Jurisdiction is not found in the Commission of the Peace it selfe but onely in cortaine Statutes that for weightie causes doe restreine this further proceeding By what means such Enditements shall bée remoued to those higher Courtes I will shew you when I come to speake of Certifying the Recordes of the Sessions and will now goe on with those other Enditements that bée remoued by labour of the parties Albert that in the remouing of pleas betwene partie and partie from inferiour to higher Courts by Tolt Ponc Recordare c. there was wont to bée a probable cause alleaged for which the same were remoued yet in this case of the Crowne there néedeth no cause to bée comprised in the writ of Certiorari bicause they all bée the Courtes of the Queene and it breedeth neither iniurie to the offendour nor losse to any other person in what Court soeuer the offence bée tried This Certiorari then may commaunde either the Recorde it selfe or Tenorem Recordi to bée sent vppe and it ought to bée obeyed accordingly Enditements remoued by labour of the parties For vpon fayle thereof first an Aliâ—s then a Pluries vel Causam nobis significes and lastly an Attachment shall goe out against them that should sende it as M. Fitzh noteth in his Nat. Br. Fol. 245. but I haue heard that they vse also Sub poena at this day And albeit the Certiorari be a Supersede as of it selfe yet may the partie vpon the Certiorari purchased have a Supersede as also directed to the Shirife commauÌ„ding him that he arrest him not vpon that Record before the Iustices of Peace Fitzh ibid. Fol. 237. In which place also he doubteth whether the Iustices of Peace them selues ought of dutie to awarde their owne Supersedeas to the same effect after that the writ of Cortiorari is brought to their hands This writ of Certiorari is euer directed to the Iustices of Peace and yet as you haue heard the Custos Rotulorum onely hath the kéeping of these Recordes but the auncient Commission of the Peace had no Custos Rotulorum specially named in them and then this certifying belonged to them all which forme the Writ retaineth to this day And if it fall in question whether such a Certiorari were deliuered to the Iustices of Peace or no that must be tried sayth the Booke 10. H. 7. 24. by the verdit of twelue men Now if a Certiorari come to the Iustices of Peace to remoue an Enditement and the partie sueth not to haue it remoued but suffereth it to lye
M. Fitzh Fol. 16. that albeit two Iustices of the Peace the one of them being of the Quarum may heare and try Felonies yet no Iustices of the Peace haue auctoritie to deliuer Felons by proclamation or without sufficient acquital nor yet to deliuer such as bée in prison for suspition of Felonie For they must procéede by enquiring hearing betermining as their Commimission appoints them and not ridde the Gaole other Wise as the Iusties of Gaole deliuerie may doe Things feuerall to lustices of the Peace in the triall of Felonies And therfore such persons if they can not bée endited must either remaine the comming of the Iustices of Gaole deliuerie as the commune manner now is or els being remoued into the Kings Bench they may bée deliuered vpon the writ degestu fama as the to olde order was or otherwise as the manner is at this day These Iustices can take no appeale of any appronour nor other before them say all the Iustices of the Common Peace 2. H. 4. 19. and so is it clearly holden 9. H. 4. 1. because their Commission stretcheth not so farre Where vppon hauing had no leysure to make the searche I am induced to suspect that the serme of those Commissions was in the last Assgnauimus other than these of our time bée in that point which as I haue sayd before bée now very large and do giue a great shew to the contrary But howsoeuer that bée yet it seemeth no lesse reasonable than seruiceable that if one Felon will accuse an other before them they may take his confession reprye him and therevpon cause the other to bée enqiured of then proceede against him Further they can not arratgne one vpon his abiuration sayth Mar. It hath also béene thought vnméete that they should try a Felon the same day in which they awarded the venire facias against the lurie 22. E. 4. Fitz. Tit. Coro 44. but that hath no necessitie the law is now otherwise taken Marrow sayth that they can not award the writ venire facias tot matron as to try whether a woman arraigned before them bée with child or no but séeing it standeth with law and reason so staye hir for the tyme that the childe may bée preserued can not but doubt of it They may giue Clcargie to a Felon if the Ordinarie or his Deputie bée present to take him but if they bée absent he must bée repried bicause as Marrow sayth these Iustices can set no fyne vppon the Ordinarie for his absence no more than if he will accept one to reade as a Clarke where in truth he can not But if you reade M.. Stanford lib. 2. ca. 45. he will perswade you that the Ordinarie is not the Iudge but a Minister in the triall of Cleargic and that Cleargic may lawfully bée giuen allowed in his absence Of the Fine for his default at these Sessions I am doubtfull as I haue sayd before but touching the allowance of Clcargie to the offendor I sée no cause at all why it may not belong to the Iustices of Peace as well as to other Iudges séeing that they bée Iudges of the felonie as other Iustices are other wise all men might bée defeated of that priuiledge Marrow sayth also that is Bygamie that vngodly Popish counterplea had bene alleadged against one that prayed his Cleargie the Iustices of Peace could not haue written to the Ordinarie to certifie the same But let that passe as now not worth the debating And if a man outlawed of Felonie by Processe before the Iustices of Peace bée brought before them and do alleadge that he was at the time of the Utlawrie pronounced out of the Realme in the Queenes seruice vnder such a Captaine or that he was then emprisoned in an other Countie they can neyther write to the Captaine nor into the Countie by the opinion of Marrow Which if it bée so it shall bée good to learne further what they ought to doe with the prisoner in such a case Thus much onely of things restrayning the Iustices of Peace in the Trial of felonies where in also they are not now adaies much occupied the rather bicause they deferre it til the comming of the Iustices of Assise by reason that the Statuts 1. 2. Phil. Mar. ca. 13 2. 3. Phil. Mar. ca. 10. doe enioyne them to Certifie at the next generall Gaole deliuerie both the examinations and bonus that they shal take concernirg Felons and suspects brought before them This I may adde not as a restreint but for an enlargement of the auctoritie of Iustices of the Peace that if they sée cause and do write to the Clarke of the Crowne of the Kings Benche for the names of any persons being other where attainted of Felonie by Vtlawrie or being Clarkes conuict or attainted he ought without delay and vnder the paine of rl ye. to certifie the same vnto them togither with the causes of such attainder or conuiction 34. H. 8. ca. 14. Of Iudgement CAP. XV. THe Iustices of Peace hauing thus sifted and tried the causes in heauidence giuen to the Iurie or by the eramination of witnesses or by Certificate allowed or other reasonable and discréete proofe are now come to make an ende and to determine of it For I may wel apply that to hearing and determining which M. Bracton requireth to the making vp of a true Iudgement that is to say an equall and indisferent acceptation of the persons an earnest examination and thorow searche of the cause a true deliuerie of the sentence and a diligent execution of the same Of these the two first belong to Hearing or Triall which we haue already handeted and the latter two bée the very parts of determining wher with we haue now to deale For Iudge ment and Execution doc make an ende of the wbole cause You haue heard before how M. Fitzh collectcth a generall learning out of one speciall case in the Commission I meane that if any difficultie doc arise in determination vppon Tryall the Iustices of Peace are restreyned to procéede to Iudgement and you may reade 6. H. 7 16. that if a Certiorari bée brought to the Iustices of Peace they are stayed by the opinion of Keble from determination although the Recorde bée not there by remoued from them But supposing that there is none impediment let them procéede to Judgement The Judgements of the Iustices of Peace bée in some cases arbitrarie or referred to discretion and in other some cases prescribed or limited Of the first sort take this one or two for all Iudgements by discretion He that is orderly conuicted before them in their generall Sessions of the deceiptfull getting of anye thing into his handes by meanes of any false token or counterfaite letter made in the name of any other may bée adiudged by them to suffer Emprisonment standing on the Pillorie or anye other corporall payne that they shall appoynt except the
bene the Law of the lande long before that time saying that Misericordia Domini regis est qua quis per inramentu legalium hominum de Viceneto eatenus amerciandus est ne aliquid de suo honorabili coÌ„tenemento amittat But where the offence or Contempt falleth out to be so great that it asketh the imprisonment of the bodie it selfe and that during the Kings will and pleasure then is the partie to redéeme his libertie with some portion of money as he can best agrse with the King or his Iustices for the same which composition is properly called his Fine or his Raunsome in Latine Redeptio as may be plainly séene by the Statue of Marleb 52. H. 3. ca. 1. 2. 3. 4. And by the Statute called Ragman and diuerse other auncient Statuts But of later time the Iustices ahue in sonie cases of Amercements also vsed to assesse and rate them selves without any other helpe As where the Dssicers of their Courts haue offended 33. H. 6. 54 34 H. 6. 20 Lo. 5. E. 4. 5. which séemeth to make an other difference betwene the two wordes But because neither of these be strictly obserued in our common spéeche nor yet in the vndersranding of the Statutes of later time I will no longer stand vpon it Nowe then if the offence be Fineable by generall wordes onely without speaking of any Fine or without shewing by whom it shall be assessed for so it is commonly in the elder Statutes that do prohibite any thing to be done there the assessement thereof belongeth to the Iustices before whome the Conuiction is lawfully had Fine by diseretion of the Iustices Again if it be Finable by these or such like wordes at the Kings will or At the Kings pleasure as you shall find it in many Statuts then also the same Iustices before whom the Conuiction wag shal assesse the Fine at their wills and pleasures for say the Bookes 2. R. 3. 11 18. H. 8. 1. the King in all such cased bttereth his owne will and pleasure by the mouthes of his Iustices And yet some Statutes vsing playner spéech do namely referre the Fine to the discretion of the Iustices of Peace For they may after Conuiction before them Fine by their discretions such as take Salmons or destroy the Fry of Fishe in Kiuers against the Statutes Destroy the Fry of Fish W. 2. cap. 47 13. R. 2. c. 19 17. R 2. c. 9. And as this is sayd of the Fine so sundrie Statutes doe giue the same power to the Iustices of Peace in the execution of the corporal punishment it selset as you haue already heard in the case of counfeiters of false letters or tokens and may reade in oter the Statutes at large For I labour to be short and therefore I giue but an assay of eche thing knowing that these Iustices will not procéede to the execution of any Statute without the sight of the Statute it selfe howsoeuer they should finde it alleaged by me And in these cases as in cases of Amercementes the Iustices ought to take héede that the Fines be reasonable and just hauing regrade to the quantity of the trespase and the causes for which they be made as it is commaunaded by the Statute 34. E. 3. ca. 1. This Fine or peine awarded by the discretion of the Iustices of Peace shall doe the more good both to the Prince in profite to the people in example and to the Iustices themselues in credite if it bée pronounced-at the Benche openly as it ought to bée and not shuffled vppe in a Chamber or Corner secretely as in some places it hath béene bsed to bée Fine to be assessed openly I haue heard that in cases where the Statutes doe appoynt a certayne forfeiture as fiue pounos or fenne poundes c. yet the prartise is to mitigate the same by discretion if so bée that the partie will come in and put himselfe in gratiam Reginae without playne confession of the faulte as I have folde you before Mitigatioa of the forfeiture of a Statute So that the Fine shall bée small where the fault was great and the penaltie of the Law it selfe not small But this maner of doing is in my mind so voide of saunde reason that I can not recoÌ„mende it to the Iustices of Peace but doe rather condemne it as a mockerie of the Law and I finde that sundry Statutes fearing belikw some suche thing haue specially preuented it comnaunding that Iustice of the Peace shall assesse no lesse Fine than is in those Statutes them selues before hande appointed Such is the Statute 17. E. 4. cap. 4 of Tiles the Statute 33. H. 8. ca. 6. of Crossebowes and hand Gunnes and the Statute 5. E. 6. ca. 25. concerning Alcheuses and such others may be found if the Books of Statuts be well perused But hitherto we haue not sufficiently performed that which the Commission of the Peace hath in these wordes Saluis nobis amerciamentis aliâ—s ad nos inde spectantibus and therefore it is not enough to haue assessed the Fine but we must also disclose the meanes by which as well this Fine that is reduced to certainetie by the discretion of the Iustices as all other Amercementes those other penalties and forfeitures that are certainly prefined by wordes of the Statutes may be leuied and brought into the Princes coffers Estreating for the Qucene Order was taken by an auncient Statute intituled de Scaccario and noted to be made 51. H. 3. that all Iustices Commissioners and Enquirers whatsoeuer shoulde deliuer into the Eschequer at the feast of S. Michael yerely the extracts of Fines and Amerciaments taxed and mafe before them that the King might be duely aunswered thereof and the same in effect was after ward confirmed by an other Statute intituled De formamittendi extreta ad Scaccarium which although it be sayd to be made 15. E. 2. Yet forasmuch as it mentioneth that the former Statute was made in the time of the father of that King which made the later it must néedes be that either the one or the other of them was made in the time of King E. 1. No doubt but this ordinance doth extende to the Iustices of Peace as a man may easily gather by words in the Statute of Labourers 5. Elizab. ca. 4 and the act of Sewers 13. Elizab. ca. 9. and other Statutes But because it is verie generall and hath nothing peculiar vnto them from other Iustices I will descende to lower times and looke there for nearcr helpes The Statute 12. R. 2. ca. 1 had allowed to eucrie Iustice of the Peace foure shillings by the daye for the time of their Quarter Sessions to bée payed by the handes of the Shirife of the Fines and Amerciamentes comming of the same Sessions But because it was soone after séene that it was a great delay to the Iustices of Peace in this paymente to expecte the leaying of these Fines
brought to a seconde handling either to the ende to reuerse that which they haue done or that their doings may be an euidence and testimonie in the triall of causes before other Iudges And because this can not in any sorte be perfourmed Without the presence of those former Recordes or the transcripts thereof which due remayne with the Iustices of the Peace it is therefore requisite that they we make Certificat of them vnto those other Courtes or officers that shall be interessed to vse the same But as this Certificat ought in some cases to bée made by the Iustices of the Peace or their Clarke without any writ of Certierari therefore directed and in some other cased they may spare to Certifie vntill that Writte or some other commaundement bée brought vnto them So also sometimes they are to certifie and send up onely a Tenor or Transcript of the Recorde before them and sometimes the verie Recorde it selfe must be conueyed from them The Clarke of the Peace must vnder the paine of rl ◠certifie into the Kings Benche a true transcript of euery Attainder Vtlawrie and Conuiction had before Iustices of the Peace in any place except Wales Chester Lancaster and Durham within 40. dayes after if it bée then Terme if not then within 20 dayes after the beginning of the next Terme that the same may there also appeare of Record to be used as that Statute hath appointed if there bée cause and he must also Deliuer to the Ordinarie a Transcript of Clarkes conuicted or attainted before the sayd Iustices 34. H. 8. c. 14. Certifie without the writ of Certiorari But enquire whether this last bée nécdefull at this day by reason that Clarkes bée not now deliuered to the Didinarie by the Statute 18. El. ca. 7. And if a principal bee attainted of murder or felonie in one Countie wher vnto an other is accessorie in an other Countie then vpon writing from the Iustices of Gaole deliueric or Oier and Terminer to the Custos Rotulorum where such principall is attainted he must certifie in writing under his Scale to the said Iustices Whether such principall be attainted or other wise discharged or not that they may procéeds there upon to the trial of the Acceslorie 2. E. 6. ca. 24. But in cases where Iustices of the Peace haue power to receyue Enditements and no power to procéede any further vppon them whereof you haue alreadye the eramples in the seuenth Chapter of thts seconds Booke there they ought to sunde vppe and certifie the Enditements them felues and that of duetie as I thinke without any Certtorari commaunding the same bicause hauing none auctoritie to heare and trye the offences the Recordes thereof shall bée vnprofitable before them and therefore they can haue no iust cause to reteine them and yet for the more suertie it is specially commaunded by 5. El. ca. 1. that they shall certifie the presentmentes of some offences against that Statute And so if a man bound to kéepe the Peace doe make default of apparance at the next Quarter Sessions the Recognulance it selfe togither with the Recorde of that default must be certified into the Chauncerie Kings Benche or Excheaquer that execution 3. Henri 7. cap. 1. and so ought it as I thinke if it bée presented that the partis hath for fayted his Recognusance by breache of the peace And likewise if it bee presented before them that the chattels of a man attainted of felonie bée in the handes of an other For in these and such other cases where they can not of them selues proccede they ought to sande the Recordes to such as haue auctozitie to determine vppon them and otherwise they doc not discharge that duetie which the words Saluis c. alys ad nos inde spectantibus in the Commission doc séeme to expecte at their handes Furthermore the Statute of Purueyours 2. 3. Phil. Mar. cap. 6. doth appoynt the Iustices of the Peace to certifie to the Treasorer of the Queenes housholde the Dockets of Purueiours brought to their Sessions by Constables that the seruing of such Commissions and the true aunswearing of purueyances may bée the better eramined thereby and although it may bée doubted whether these bée Recordes or no yet for that they are to bée certified from the Sessions of the Peace I sticke not to afoard them this place And if you will also repute in this number the Licences and such other ates of that kinde which passe at the Sessions of the Peace I will not bée against it Louching the Certiorari if it be made accordingly the is of force to remoue not only Enditements or other executorie Recordes wherein the Iustices of Peace can goe no further and whereof I haue spoken already but also the Recordes of caused fully and lawfully heard and determined by them to the ende that they may bée reuersed and adnulled in the Kinges Benche if good matter and cause due so require Certiorari For that preheminence hath the Kinges Benche as you may see by Proofe yea all other the higher Courtes may write to the Iustices of Peace to certifie their Recordes that doe make for the Triall of causes hanging in them as you may reade 19. H. 6. 19. where they of the Commune Place did send to the Iustices of Peace for an Enditeiment bicause in a writte of Conspiracie brought before them it was materiall to haue it And yet neither they of the Commune Place nor Kinges Benche do use to write for Enditements or such other Recordes unlesse they bée there vnto enduced by a cause hanging in their owne Courtes before them For otherwise the right way to remoue them is by Certiorari out of the Chauncerie from whence they may bée transferred by Mittimus to any other Court 41. lib. Ass Pl. 22. Knyuet Chiefe Iustice Howbeit a man may gather vpon the Booke 1. R. 3. 4. that if any Recorde bée sent up without warrant to such a higher Court they may there procéede vpon it bicause it is a Recorde in that Court and that Court is the Court of the Quéene aswellas the other Of the genrrall or Quarter Sessions of the Peace CAP. XIX WE haue hitherto laboured and at the lengthe runne ouer sundry thing which in the opinion of some men bée commune to all Sessions of the yeare And yet becuse there bée also certayne thinges as it séemeth to mée appropriated some to any and others to some one of the generall Sessions it remayneth that we nowe distinguishe the Sessions of the Peace and enter into consideration what is a generall and what a speciall Session The generall Sessions of the Peace bée those which are prouided for the generall execution of the auctoritie of the Iustices of Peace whether you respect the limits of the place within their Commission or the boundes sof power procéeding from the Commission and Statutes The generall Sessions For at these Sessions as sayth M. Fitzh generally
and Amerciamentes by Estreates first sent vppe to the Eschequer and then deliuered thence to the Shirife which was at that time the common manner of leuying Fines and Amerciamentes therefore it was within two yeares after videlicet 14. R. 2. cap. 11. prouided that the Estreates of the Iustices of Peace should bée indented or doubled and the one parte thereof deliuered by them to the Shirife so leuie the money thereof rising and to pay the Iustices their wages by Indenture betwene him and them to be made and the other parte thereof sent into the Eschcquer to charge the Shirife withall vpon the making of his account there And hereby as I thinke the Estreates of the Iustices of the Peace be no we an immediat warrant for the Shirife to leuie not only the Fines and Amerciamentes but also all other â—â—â—ues Penalties Lesses Forfeitures and Summes whatsoeuer arising before themL for the wordes of the Statute are generall The money thereof arising and therfore whatsoeuer summes are to be Escreated into the Eschequer by the one of these doubles the sme are also to be leuied by the Shirife by the other double Such order did the Statute 3â— H. 8. cap. 10. of the fire weekes Sessions take for the leuying as well of Fines and Amerciamentes as of peines Losses and Forfextures of money So doth the Statute of Tillage 2. 3. phil Mar. cap. 2. by way of admittance rehearse that Iustices of the Peace may make out Processe for the leuying of Fines and Forfcitures before themselues and so are the Estreates amde and the Fines and Forfeitures thereby leauied at this presente time if I bée not deceâ—ued And those are properly called Estreates of the woordâ— Extractae because they bée shorte Notes or Memorialls extracted or vrawen out of the Recordes by the Clarke of the Peace and by him indented and deliuered sunderly to the Shirife and to the Barous of the Eschequer bearing this or the like Title Extract finsium amerciamentorum forisfactormum ad goâ—ralem Sessionem Pacis tentam apnd Maidstone c. Coram c. For the whole forme of the making wherof there is full Direction giuen to all Clarkes of Estreates by the Statute 7. H. 4. ca. 3. Where vnto I referre them Howbeit I do not thinke that in our case this dutie of Estreating is so peculiar to the Clarke of the Peace but that the Iustices of the Peace them selues ought also to haue a common and carefull eye vnto it For if you remember it is both specially prouided for in the Commission and also an Article of their Dath to see vnto the faithfull Entrie and Certificat of the Issue Fines Forfeits and Amerciamentes that doe happen before them And therefore it were well done in mine opinion if the Iustices would by turns or other wise both take knowledge of things that haue passed before them and also take order that the same be certified accordingly least other wise it lye altogither in the power of the Clarke of the Peace to Saue or Slay as one sayd the Sparrow that he holdeth closed in his hand Iustices of the Peace ought to haue care of Estreates Of Executorie Processe execution for the parties that sue or for other persons CAP. XVII ALbeit that the Iustices of Peace haue this power to make warrant for leuying the Amerciamentes Fines and other forfeits that doe growe vnto the Queene by their seruice yet is it commonly thought that they may not but in some cases onely and that by speciall spéech of the Statutes make execution either for him that will sue or for any other of such parte of the forfeiture as the Law doth aford them For most commonly the partie that will sue is put to his Action at the Common law for recouerie of that which he is to haue as for his moitie of a forfeiture againste the Status 24. H. 8. ca. 13 of apparell he is perhappes driven to his Action of Dstinue for his maytie growing vppon conuiction of any offence centrarie to the Statute 13. Elizab. cap. 14. concerning bringing ouer of Bowstaues or contrary to the statute of Musters 4. 5. Phil. Mar. ca. 3. he is to commence his Action or Bill of Debt and so of sundry others that are ech where to be foúd Apparell 〈◊〉 Musters But Where they haue power either by their Commission Or by any Statute to heare and determine any cause at the sute of aprituate person I do not see how the cause can well be said to be fully determined till the complaint hath had the effect of his sute which can not be without execution Doubtlesse by speciall prouision made in the Statute 5. E. 6. ca. 14. against Forestalle is the Iustices of the Peace may make execration of the one moitie of the forfeiture for ht in that sueth by fieri facias or capias as the Q ueenes Iustices at Westminster vse to dec Forestallers The like power in like words haue they for leuying the moitie of any forfeture against the Statute of Armour made 4. 5. Phil. Mar. ca. 2 or against the Statute made 5. Elizab cap. 12. concerning Badgers Drouers c. and their licences Armour For the moitie growing to the Informour vpon the Statute of Liueries 8. E. 4. cap. 2. they shall make suche execution as ought to be had in Kccourries of Der or Trespaile at his owne pleasure Li ue ries They may also awarde execution for the partie that sueth vpon the Statute of Flaxe and Hemp 24. H. 8. ca. 4. by such Processe as to them shall seeme by their discretion Flaxe and Hempe And the Estreates made by the Clarke of the Peace of forfaits for defaultes of amending Highways area safficient warrant to the Constables to leuie the same by Distresse to the vse of the Churchwardeins of the Parish where the Default was towardes the amendment of the said wayes Highwayes 2. 3. Phi. Mar. ca. 8 5. Elizab. ca. 13. Ann like wise the Estreates of the Iustices of Peace of any Fines assessed by them vpon Presentmentes in the shnifesTurne being inrolled indented deltuered to the Shinfe are a good warraÌ„t vnto him to leuy the same to the vse of him that was shirite at the time of such Presentmentes taken Shirifes Tisma 1. E. 4. ca. 2. Searche may aforde you some moe eramples but thrse may suffise for my desire which is not in this or any other to recount all but to make some proofe of that which I offer and propose Of Certifying Recordes of the Sessions of the Peace to other Courtes or Officers CAP. XVIII AS we haue alreadie manifested that Iustices of the Peace haue not a sufficient and thorowe powur of them selues to heare and determine all causes whereof they haue in their Sessions auctoritie to enquire So also be there sundry things determinable before them there which neuerthelesse may in some respectes be