in any matter depending before them 3. That they shall keepe their Sessions according to the statutes 2. H. 5. 4. which as it seemeth ought to be in the weeke after the Feast of S. Michael after the Epiphany after the clause of Easter and after the translation of S. Thomas which is the third of Iuly 4. That all Issues Fines Amerciaments and Forfeitures which happen before them be by them truly entred and sent into the Exchequer 5. That they take nothing for doing their office but of the King and the accustomed Fees appointed by the statutes 6. That they shall not direct any their warrants to the parties but to the Bailiffes of the County or to other the Kings Officers or other indifferent persons 26. The other oath concerning the Kings supremacie is by force of the statute made secundo Eliz. ca. 1. The forme of which oath also followeth in these words videlicet 27. I. R. B. doe utterly testifie and declare in my conscience that the Kings Highnesse is the onely supreme governour of this Realme and of all other his Highnesse Dominions and Countries as well in all spirituall and Ecclesiasticall things or causes as temporall And that no forraigne Prince person prelate State or potentate hath or ought to have any Iurisdiction power superiority preheminence or authority Ecclesiasticall or spirituall within this Realme And therefore I doe utterly renounce and forsake all forraigne Iurisdiction powers superiorities and authorities and doe promise that from henceforth I shall beare faith and true allegiance to the Kings Highnesse his heires and lawfull Successors and to my power shall assist and defend all Iurisdictions privileges preheminences and authorities granted or belonging to the Kings highnesse his heires and Successors and united and annexed to the Imperiall Crowne of the Realme So help me God c. 28. Yet it is most usuall that both these oathes are taken by a speciall Commission viz. by a writ of Dedimus potestatem directed out of the Chancery to some ancient Iustice of Peace to take the same oathes which by them is to be certified into the same Court at such day as the writ commandeth 29. If the Iustice of peace or other person to whom a Dedimus potestatem shall be directed to take the oathes of a new Iustice of peace shall returne the Commission and the Oathes to be taken when they were not taken this is fineable in the Star-chamber 30. So if the new Iustice of peace shall exercise this office before he hath taken both these Oathes he is likewise fineable in the Star-chamber 31. Also if a Iustice of peace shall not performe his oath concerning his office he is fineable in the Star-chamber if the neglect be of corruption or any sinister affection otherwise it is if it be by Ignorance onely 32. Now forasmuch as the authoritie of the Iustices of peace ariseth partly out of their Commission and partly out of the statutes I will set downe the forme of the Commissions now used in Ireland which are consonant to the Lawes and statutes and to the politique government of this Kingdome A president for the Commissions of the peace for all the â—ountyes of Ireland except Dublin CAroluâ— Dei gratia Angliae Scotiae Franciae Hiberniae Rex fidei defensor c. Predilecto fideli Consiliario nostro Adamo Vice-comiti Loftus de Ely Concellario nostro Regni nostri Hiberniae c. salutem Sciatis quod nos de fidelitat circumspectionibus vestris plurimum confidentes Assignavimus per praesentes assignamus vos conjunctim divisim quemlibet vestrum Iusticiarios nostros ad pacem nostram in Comitatu nostro Middie conservand Ac ad omnes ordinationes statuta pro bono pacis nostrae pro conservatione ejusdem pro quieto regimine gubernatione populi nostri edita in omnibus singulis suis articulis in dicto comitatu nostro tam infra libertates quam extra juxta Vim formam effectum eorundem custodiendum custodiri faciendum ad omnes contra formam ordinationum vel statutorum illorum aut eorum alicujus in comitatu predicto delinquentes castigandum puniendum prout secundum formam ordinationum statutorum illorum fuerit faciendum Ac ad omnes illos qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorum suarum minas fecerint ad sufficientem securitatem de pace vel de bono gestu suo erga nos populum nostrum inveniendum coram vobis seu aliquo vestrum venire faciendum Et si hujusmodi securitatem invenire recusaverint tunc eos in prisonis nostris quousque hujusmodi securitatem invenerint salvo custodiri faciendum Assignavimus etiam per praesentes assignamus vos quoslibet duos vel plures vestrum quorum prefat Cancellar nostr aut A. B. aut C. D. unum esse volumus Iusticiarios nostros in per totum Comitatum predictum tam infra libertates quam extra ad inquirendum per sacramentum proborum legalium hominum Comitatus predicti ac omnibus alijs medijs modis quibus rei veritas melius sciri poterit de omnibus singulis proditionibus murdris homicidiis incendiis illicitis assemblationibus feloniis roberâ—s veneficiis incantationibus sortilegiis arte magica transgressionibus forstallariis regratariis ingrossariis extortionibus quibuscunque Ac de omnibus singulis aliis malefactis et offensis quibuscunque de quibus Iusticiarii pacis nostrae legitimè inquirere possunt aut debent per quosâ—unque qualitercunque in Comitatu predicto factis vel quae imposterum ibidem fieri vel attemptari contigerint Ac etiam de omnibus illis qui in Comitatu predicto in Conventiculis contra pacem nostram in perturbationem populi nostri seu vi armat ierunt vel equitaverunt aut imposterum ire vel equitare presumpserint Ac de omnibus illis qui ibidem ad gentem nostram maheymandam vel interficiendam in insidiis jacuerunt aut imposterum jacere presumpserint Ac etiam de hostellariis omnibus singulis aliis personis qui in abusu ponderum vel mensurarum sive in venditione victualium contra pacem communem legem nostram ac contra formam ordinationum vel statutorum vel eorum alicujus inde pro Communi utilitate dicti Regni nostri aut populi nostri ejusdem edit delinquerunt vel attemptaverunt aut imposterum delinquere vel attemptare presumpserint in Comitatu predicto Ac etiam de quibuscunque vicecomitibus Ballivis Seneschallis Constabulariis Custodibus Gaolarum aliis officiariis qui in executione officiorum suorum circa premissa seu eorum aliqua indebite se habuerunt aut imposterum indebite se habere presumpseriut aut tepidi remissi vel negligentes fuerunt aut imposterum fore contigerint in Comitatu predicto Et de
cases therefore where the statutes do referre the Triall of offendors or hearing and determining of offences to the discretion of the Iustice or Iustices of peace out of Sessions it is very requisite that upon such tryall or hearing the said Iustices take due examination of the offendors themselves or of credible witnesses aswell concerning the fact it selfe as the circumstances thereof and upon confession or other due proofe of the offence Then to proceede according to Law and Iustice 10. Note that in all cases where the statute referreth the trial c. to the discretion of the Iustices the said statutes themselves do also enable the said Iust of P. to take the examination of witnesses upon oath 11. Note further that the Iustices of peace out of their Sessions are now armed with farre more ample authority and power than the ancient Conservators of the peace were For the Iustices of peace have double power given them The one of Iurisdiction to convent the offendors before them by their warrant in diverse cases to examine heare and determine the cause The other of coertion sc that after the cause hard to constraine them to the obedience and observance of their order and decree which notwithstanding must be according to the rules of Law and Iustice as aforesaid Whereas the ancient conservatours of the peace had no Iurisdiction or authoriâ—ie at all either to convent the offendor before them or to examine heare or determine the cause but had onely coertion prehension or punishment of an offendour in some few cases Plo. 37. And here I must further put the Iustices of peace in minde that their authoritie and power is limited to be by them exercised only within the County or Countyes where they be in Commission And yet in that or those County or Countyes the Iustices of peace of the County must not intermedle in any City there which is a County of it selfe Nor in any City or corporate Towne there though it be no County of it selfe but within the County which have their proper Iustices of peace within themselves by the Kings Charter or Commission Cromp. 8. 181. especially if in such Charter there be any speciall words of prohibition that the Iustices of the shire Non se intromittant c. except such Country Iustices shall also be in Commission in such City or Towne corporate 12. But in other corporate Townes which have not their proper Iustices of peace Cromp. ib. As also in all liberties and Franchises within the County which have the returne of writs but have not their proper Iustices there the Iustices of peace of the County ought to execute their authoritie and that by the words of their Commission 13. Againe if a parish shall extend into two or more Counties Or if part thereof shall lye within the liberties of any City or Towne corporate which have their proper Iustices and part without Then aswell the Iustices of peace of every County as also the Iustices or officers of such City or Towne corporate shall intermedle only within their owne proper and distinct limits bounds sc within so much of the said parish Co. 4. 46. c. as lyeth within their severall liberties and limits and not to inuade or deale in other jurisdictions for it shal be against Law reason where offices and Iurisdictions are severall that the one should intermedle within the Iurisdiction of the other 14. Neither shall any Iustice of peace deale in or punish any trespasse Vbi quis delinquet ibi puniet or other like offence coÌ„mitted in any other County against any penall statute though such offendor shal be brought before him Except the statute shall specially enable them thereto or that it be for matters of the peace or in cases of felonie or Treason in which cases onely he may take examinations both of the offendour and accusers and commit the offendours to prison and security for the peace if it be offred 15. Neither shall any Iustice of peace for the time that he shall make his abode or be out of the County where he is in Commission exercise his office For being out of the County where he is in Commission he is but a private man 16. Now my purpose is to set downe more particularly what things Iustices of peace out of their Sessions of the peace may do in the execution of their Commission or of the statutes wherewith they are charged And herein you must observe that some things are permitted to be executed by any one two or more Iustices either in regard that such Iustice or Iustices is or are next to the place or are of the Quorum or the like 17. And here note that whatsoever any one Iustice of peace alone may doe either for the keeping of the peace or in other execution of the Commission or statutes the same also may lawfully be done and performed by any two or more Iustices 18. But where the Law giveth authority to Two Co. li. 4. fo 46. there one alone cannot execute this for una persona non potest supplere vicem duarum Et plus vident Oculi quam oculus 19. Also when things by statute are appropriated to some one certaine Iustice or to more Co. li. 11. fo 92. there such Iustice or Iustices are to pursue such their authoritie accordingly for where an authoritie is given to foure or to one of them if two of them shall execute this it seemeth they have not pursued their authoritie 20. Plo. fo 206. 6. Besides there seemeth a generall rule to be put in Stradlings case in M. Plo. that when a thing is appointed by any statute to be done by or before one person See Co. li. 11. fo 59. 64. certaine that such thing cannot be done by or before any other But that it ought to be done as the statute hath appointed and by such expresse designation of one or power given to one certaine person all others are excluded 21. And in such things appropriate to some one or more Iustices of peace if without such Iustice or Iustices all or any of the residue of the Iustices of that County shall intermedle therein Such their doings is no wayes warrantable and in such their proceedings there is no necessitie to obey them as being no lawfull Iudges of the cause 22. Now having made a briefe declaration of the office of Iustices of the peace in generall by way of Introduction I shall proceede to the particulars of their imployment in severall Titles according to the Alphabet Affray CHAP. 1. 1. AFfray is derived of the French-word Effrayer which signifieth to terrifie or bring feare and which the Law understandeth to be a common wrong and therefore I will shew you what every man may doe in such cases Every private man 2. Every private man being present before or in and during the time of an Affray ought to stay the Affrayors and to part them
Deut. ibid. Ye shall have no respect of persons in judgement 3. Hatred or malice against the partie or some of his See Levit 19.18 4. Covetousnesse when they receive or expect gift or reward for as the wise man saith Rewards and gifts doe blinde the eyes of the wise Eccles 10.28 and make them dumbe that they cannot reprove faults 5. Perturbation of mind as anger or such like passion Iames 1.20 The wrath of man doth not accomplish the Righteousnesse of God 6. Ignorance or want of true understanding what is to bee done Ignorantia mater erroris 7. Presumption when without law or other sufficient rule or warrant they presuming of their owne wits proceede according to their owne wils and affections There is more hope of a foole then of him that is wise in his owne conceit Prov. 26.12 8. Delay which in effect is a denying of Iustice Negligentia semper habet Comitem infortunium mora trahit periculum 9. Precipitation or too much rashnesse when they proceede hastily without due examination and consideration of the fact and of all materiall circumstances or without hearing both parties for as another saith qui aliquid statuerit parte inaudita altera aquum licet staâ—uerit haud aquus est hee that shall judge or determine of a matter the one party being unheard although he shall give just judgement yet is he not a just Iudge His Ma. speech in the Sâ—archamber Anno. 1616. 6. All these his late Majestie King Iames hath shortly yet fully observed in his charge lately given to the Iudges of England sc charging them That they doe Iustice uprightly and indifferently without delay partiality feare or bribery with stout and upright hearts with cleane and uncorrupt hands and yet not to utter their owne consents but the true meaning of the law not making lawes but interpreting the Law and that according to the true sence thereof and after deliberate consultation remembring that their Office is Ius dicere and not Ius dare 7. According to this last also is the rule given in the booke of Iudges sc in all causes doubtfull first to consider of the matter Iudges 1930. to consult and then to give sentence 8. Yea God himselfe hath given us Presidents of such deliberate proceedings as you may see in Genesis chap. 3. vers 8. Gen. 3.8.9.11 c. and chap. 18. vers 21. 9. These are worthy Directions for all Iustices of peace that they may carry themselves in their places uprightly and indifferently not uttering their owne conceites nor upon the sudden to over-rule things but after deliberate consideration and consultation then to proceede to execute the authority committed to them 10. Iustices of peace are Iudges of Record Their description or definâ—tion appointed by the King to bee Iustices within certaine limits for the conservation of the peace and for the execution of divers things comprehended within their Commission and within divers statutes committed to their charge 11. Now first that the Iustices of peace are Iudges of Record 9. E. 3. 4. 14. H. 8. 16. yea that every Iustice of peace by himselfe is a Iudge of Record and upon whose sole report and testimony the law reposeth it selfe very much appeareth more plainely if you observe these things following 1. Hee is made under the great Seale which is a matter of Record 2. Every Iustice of peace hath judiciall power given unto him by the Commission sc in the first assignavimus 3. Also by some statutes they have judiciall power given them for they may make a Record of a force by them viewed and may thereupon fine and imprison the offendors yea one Iustice of peace may also heare and determine and punish an offendor in some cases as convicted upon his owne view or examination as in cases of forcible Deteyner 4. His warrant though it be beyond his authority is not disputable by the Constable or other inferior Minister but must be obeyed and executed by them But this must bee understood 14. H. 8. 18. Co. 10. 7. 6. when the Iustice of peace hath Iurisdiction of the cause for or concerning which he hath granted his warrant for otherwise the Constable or other Officer executing such warrant is punishable notwithstanding the warrant 5. Hee may take a Recognizance for the peace c. which is a matter of Record and which none can doe but a Iudge of Record See Br. Recog 8. 14. 6. His record or testimony in some cases is of as great force and in some other cases of greater force then an Indictment upon the oath of twelve men as in cases of Forcible Entry forcible Deteyner and Riots 7. Great cause therefore have the Iustices of P. to take heed that they abuse not this their credit and authoritie either to the oppressing of the subject by making untrue Records or defrauding of the King by suppressing true Records 12. Now concerning peace it is the amitie confidence and quiet that is betweene men and he that breaketh this amitie or quiet breaketh the peace 13. Yet peace in our law most commonly is taken for an abstinence from actuall and injurious force and offer of violence and so is rather a restraining of hands then an uniting of mindes And for the maintenance of this peace chiefly were the Iustices of Peace first made 14. The breach of this peace seemeth to be any injurious force or violence moved against the person of another his goods lands or other possessions whether it be by threatning words or by furious gesture or force of the bodie or any other force used in terrorem populi 15. The Office of the Iustice of Peace is principally to be exercised to the suppressing of such injurious and unlawfull force or violence and yet the Commission of the P. being pro conservatione pacis pro quieto regimine gubernatione populi I see not why the Iustices of Peace should be restrained from preventing and repressing such other offences misbehaviours and deceits as may breake the amitie quiet and good governement of the people and whereof discords and so breaches of the peace doe often arise though there appeare neither force nor violence in the offence it selfe as libellings cosinages and such other offences 16. But it is no part of their office to forbid lawfull suits albeit they shall doe well to be mediators of peace in such suites and controversies as shall arise amongst their neighbours 17. The Conservation of the peace and therein the care of the Iustice of peace consisteth in three things viz 1. In preventing the breach of the peace wisely fore-seeing and repressing the beginnings thereof by taking surety for the keeping of it or for the good behaviour of the offendors as the case shall require 2. In pacifying such as are in breaking of the peace 3. In punishing according to the law such as have broken the peace 18. But of the three the first viz. the preventing part is
diem with meat and drinke for his Iourneyman and 12. d. sterling with meat and drinke for a boy that can scarce bore a hole as it should be and this I speake of mine owne knowledge and therefore I wish that the Iustices of peace would henceforth better remember their oaths the duty of their places and the good of the common wealth then hitherto they have done but if the Iustices of peace shall wilfully continue still their neglect herein I cannot but let them know that for this their neglect they are and that worthily for their neglect to be punished in the Starchamber Misprision CHAP. 43. 1. THere be also certaine offences which by the common Law are misprision of treason or felonies or at least punishable in the same degree and more 22. Ed. 3. 13. Stamf. 38. as to draw a sword to stricke a Iustice sitting in place of Iudgement to strike a Iuror in the presence of the Iust sitting in place of judgement Stam. 37. 38. Br. contempts 9. 0. or to stricke another in the house where the Courts of Iustice are kept sitting any of the Kings Courts there or to draw any weapons therewithall to strike any person in the presence of the Iustices P. Paine 16. or to make any Affray in their presence they sitting in Iudgement or to rescous any such offendor these are such misprisions for which the offendour shall have more grievous punishment then for misprisions of Treason or felony for in these cases the offendor shall not only forfeit all his goods and chattels and the profits of his lands during his life and be imprisoned during his life but also shall have his hand cut of 28. El. ca. 7. in Ireland 2. The counterfeiting of the coine of gold or silver of other Countreyes which is not currant in this Kingdome is by a statute made in 28. Eliz. ca. 7. enacted to be misprision of high treason in the Actors their procurers ayders and abettors Stamf. 37. d. Cromp. 44. 3. Note that every treason or felony doe include misprision so that where any person hath committed treason or felony the King may cause the offendor to be indicted and arraigned but of misprision Stamf. fo 37. 4. Misprision of Treason or felony is properly when one knoweth that another hath committed or is about to commit any treason or felony but was not or is not consenting thereto and yet will not discover the offendor to the King or his Councell or to some Magistrate but conceales both the offence and the offendors Br. Treason 19. Stamf. fo 38. 5. For misprision of treason the offend or shall forfeite to the King all his goods and chattels for ever and the profits of his lands during his life and also shall be imprisoned during his life but for misprision of felony the offendor shall be only fined and ransomed as it seemes 3. H. 7. 10. Br. Treason 25. and shall be committed to prison untill he hath paid his fine 3. H. 7. fol. 10. 6. Note for the offendors in high treason misprision of treason and praemunire that although the Iu. of Peace by their Commission nor by statute cannot medle with them in the very point of their offences saving in some particulars and that by way of inquiry only which you may see hic antea tit felony yet for that all treasons and such other offences are against the peace of the King and of the Realme therefore upon complaint made to the Iustice of peace or other knowledge had by him of any such offendors it shall be his part to cause such offendors to be apprehended and to take their examinations and the information upon oath of such as bring them or of others that can prove any thing materiall against them and to put the same in writing under the hands of the Informers and then to commit the offendors to the Gaole Dalton p. 212. and also to bind over by recognisance all such as doe declare any thing materiall to appeare and give evidence against such offendors before the Lords of the Kings Majesties privy Councell or elsewhere when they shall be called upon reasonable warning or before the Iustices of Assises at the next generall gaole delivery and after to certifie their doing therein to some of the Lords of his Majesties said Councell Nightwalkers CHAP. 44. 1. EVery Iustice of peace ex officio and by the first Assignavimus of the Commission may cause to be arrested all Nightwalkers 13. H. 7. 1â— Dalton pa. 76. be they strangers or other persons that be suspected or that be of evill behaviour or of evill fame and more particularly all such suspected persons as shall sleepe in the day time and goe abroad in the night season haunt any house that is suspected for bawdery or shall in the night time use other suspitious company or shall commit any other outrages or misdemeanors and may force them to finde surety for their good behaviour see the title surety for the good behaviour Peace CHAP. 45. 1. EVery Iustice of peace hath authority and power given him by the first Assignavimus or clause in the Commission Dalton pa. 79. to keepe and cause to be kept the Kings majesties peace by force of which words they have aswell the ancient power touching the keeping of the peace which the ancient conservators of the peace had by the common Law as also all authority which the statutes since have added thereto and so they may cause to be kept all the statutes and Lawes now in force which beene made for the peace or keeping thereof and more especially they may arrest or cause to be arrested and sent to the Gaole all Traitors Murtherers Robbers and Felons and persons suspected of such things and all such are guilty of any misprision or praemunire 2. They may also suppresse and bind to the peace or good behaviour all Affrayors Dalton p. 80. and all persons unlawfully and riotously assembled or unlawfully wearing armour or any weapons by night or by day or otherwayes putting the people in feare and all unlawfull nightwalkers and barrettors and the like all which may well be said to be disturbances or breaches of the peace see more fully of these under their particular Titles Posse Comitatus CHAP. 46. 1. VVHere the Iustice of peace Sheriffe or other officer is enabled to take the power of the County it seemeth they may command and ought to have the helpe and attendance of all Knights Gentlemen Yeomen Husbandmen Labourers Tradesmen Servants and Apprentices and of all other such persons being above the age of fifteene yeares and that are able to travell 2. But women Ecclesiasticall persons and such as be decrepit or diseased of any continuall infirmity shall not be compelled to attend them 3. And in such cases it is referred to the discretion of the Iustices of peace or Sheriffe c. what number they will have to attend upon them and
same 2. 2. Counterfeiting of forraigne coyne not currant in this Kingdome 3. 3. The uttering of false money made within this kingdome knowing it to bee false and counterfeit 1. The punishment of these Misprisions of Treason is forfeiture of goods chattels and the profits of lands during the life of the offendor and perpetuall imprisonment 2. 3. Secondly of Felony viz.   1. Concealing of any felony and not revealing it to some magistrate speedily after notice had of it 1. The punishment of Misprision of felony is by fyne and ransome and imprisonment at the discretion of the Iudge Thirdly other Misprisions viz.   1. Offering to strike any Iustice sitting in Iudgement 1. The punishment for offering to strike a Iustice sitting in Iudgement or a Iuror in presence of the Iustice is forfeiture of lands goods and Chattels losse of his right hand and perpetuall imprisonment 2. Striking a Iuror in presence of the Iustices 2. 3. Striking of a Knight or man of honor by any person of meane quality 3. The punishment of striking of a Knight c. by one of meane qualitie in ancient time was the losse of his hand but now it is used to be but fyne and imprisonment and bonds of the good behaviour 4. Rescuing of a prisoner arrested by any of the Kings Iustices sitting in Iudgement 4. Rescuing of a prisoner arrested by a Iustice is forfeiture of lands goods and chattels and perpetuall imprisonment Fourthly of Praemuniries which be of two sorts viz. the one the extolling of forraigne Iurisdiction the other for prosecuting of causes in the Ecclesiasticall Courts which are meere lay causes c.   1. Exercising of forraigne authoritie or Iurisdiction in causes Ecclesiasticall The punishment of all these offences of Praemunire is forfeiture of lands goods chattels and perpetuall imprisonment 2. Maintaining or publishing by word or writing that the Bishop of Rome hath or ought to have any authority or Iurisdiction within the Kings Dominions the second offence is a Praemunire  The punishment of all these offences of Praemunire is forfeiture of lands goods chattels and perpetuall imprisonment 3. The purchasing of any provision Bull or other processe from the Court of Rome  4. The obeying of any such processe procured from the Court of Rome 5. The prosecuting of any lay cause in any Ecclesiasticall court which originally belongeth to the Kings temporall Courts Fifthly Finable Offences which are either of 1. Force 2. Fraud 3. Omission or 4. Other abuses   First Finable offences of Force viz. 1. Riots Routs and unlawfull assemblies 1 For great Riots a great Fyne and a yeares imprisonment at the least For small Riots Routs and unlawfull assemblies besides the Fine imprisonment in discretion 13. H. 4. cap. 7. 2. Forcible Entries and forcible detainers 2 Fyne ransome and imprisonment and restitution of possession 15. R. 2. ca. 2. 8. H. 6. ca. 9. 10. Caroli ca. 16. 3. Assaults Batteries bloodsheds Maihems and all other Trespasses in lands and wrongfull taking of goods 3 Fyne and imprisonment at the discretion of the Iudge 4. Rescuing of distresses and pound breaches 4 Fine and imprisonment at the discretion of the Iudge 5. Riding or going armed in terrorem populi 5 Imprisonment and forfeiture of the Armour 2. E. 3. c. 3. 7. R. 2. ca. 13. 20. R. 2. ca. 1. 6. Lying in waite to kill or maihem 6 Fine and imprisonment and bonds of the good behaviour Secondly Offences of fraud and deceit viz.   1. Extortions and oppressions by officers in taking more Fees then are due or in exacting Fees where none are due 1 Fyne and imprisonment during pleasure 2. Extortions and oppressions in Land-lords and their servants in exacting of an Irish pretended duty called Loghtavy upon their Tenants 2 The like punishment 3. Escheators taking above xl.s. for an office 3 To forfeit 40.l 27. H. 6. ca. 17. 4. Sheriffes undersheriffes and their Clerkes entring of plaints in the County Court without notice of the plaintiffe or dividing one contract or Trespasse into severall plaints 4 Fyne and imprisonment 5. Sheriffes levying the Kings debt without shewing the party the Estreats under the seale of the Exchequer 5 Fyne to the King treble damage to the partie 42. E. 3. ca. 9. 7. H. 4. ca. 3. 6. Sheriffes or Gaolers that have denied to receive felons or that take any thing for the receiving of them 6 Fyne and imprisonment 4. E. 3. ca. 10. 7. Coroners that exact more Fees for taking an Inquisition upon the view of a body murdred or killed then 13. s. 4. d. which is to be paid of the goods of the offendour or of the Towneship where the offence was committed in the day time if the offendor have escaped 7 Forfeiture of 5.l 3. H. 7. ca. 1. 8. Ordnaries or their officers which take more Fees for the probate of Testaments granting of letters of administration then is appointed for them to take by the statute in that case provided 8 Forfeiture of 10. l. 28. H. 8. cap. 18. in Hibernia 9. Clerkes of the peace that take above 12. d. for the enrolling of a bargaine and sale where the land doth not exceed xl.s. per annum and where it exceedeth that summe 2 s 6.d 9 Fyne and imprisonment 10. Caroli cap. 1. in Ireland 10. Clerke of the Market that taketh any bribe to dispence with offences or tarryeth any longer in the countrey then the necessity of the businesse requireth 10 Fyne and imprisonment 11. Mayors and chiefe officers of townes and corporations that take excessive Fees for scaling of measures waights 11 Forfeiture of 40 s 7. H. 7. c. 3. 12. Purveyors that take any Bribe to spare any man or take corn by any other measure then the striked bushell or take carriages without readie payment 12 Two yeares imprisonment treble damage and ransome 15. E. 3. cap. 1. 36. E. 3. c. 3. 1. H. 5. cap. 10. 13. Iurors that take any thing to make their presentments favourably 13 Imprisonment and ransome 5. E. 3. c. 10. 34. E. 3. ca. 8. 38. E. 3. cap. 1. decies tantum and if he have not to pay a yeares imprisonment 14. If any have gotten into his possession any money or other goods by any false token or counterfeit letter 14 Great fyne and to be bound to the good behaviour 15. Packing of fish deceitfully and mixing small fish with the countable fish 15 Forfeiture for every vessell 6 s 8.d 22. E. 4. ca. 2. 16. Cowpers that make vessell for Beare or Ale of unseasonable Timber 16 Fyne and imprisonment 17. Millers that take Toll by the heape 17 Fyne and imprisonment 3. E. 1. p. Toll 2. 18. Maintenance of suits in Courts and quarrels in the Countrie and Champerties 18 Fyne and imprisonment 1. E. 3. ca. 14 1. R. 2. ca. 5. 19. Subornation of perjurie 19 Forfeiture of 40.l and if the offendor be not worth so
Iustice may cause them to finde sureties for the peace and may take away such weapons 3. And yet the Kings servants in his presence and Sheriffes and their officers and other the Kings Ministers and such as bee in their company assisting them in executing the Kings processe or otherwise in executing of their office and all others in pursuing Huy and Cry where any Treason Felony or other like offences against the peace be done may lawfully beare armour or weapons 4. Also any Iustice of peace may command that weapons be taken from such prisoners as at any time shall bee brought before him 5. Also if any servant to husbandrie or to any Artificer or Victualer or any Labourer shall beare any Buckler Sword or Dagger except they be travelling with their Master or in their Masters message Every Iustice of peace may imprison them till they have found sureties for the peace 12. R. 2. 6. P. 2. and may seize and take away their said weapons or may cause the Constable to seize the same and to present the said weapons at the next Sessions of the peace Arrest and imprisonment by what warrant and how and in what manner it may be executed CHAP. 3. What. 1. AN arrest is the apprehending and first restrayning of a mans person depriving it of his owne will and liberty and may be called the beginning of Imprisonment 2. Imprisonment is where a man is arrested against his will and is restrained of his libertie by putting him into the Gaole cage or Stocks or into some house or otherwise by keeping him in the high street or open field so as he cannot freely goe at libertie when and whither he would 3. By Parol Now concerning the precepts and warrants made by the Iustices of peace 4. The Iustice of peace seeing that he is a Iudge of Record his precept or Commandement by word of mouth in some cases is as strong as his precept in writing 5. And therefore the Iustice of peace upon a Riot done in his presence may command the Riotters to be arrested and cause them to finde sureties for their good behaviour 6. So upon an Affray assault threatning or other breach of the peace done in his presence the Iustice of peace may command by word the Officer being present or his owne servant to arrest such offendors to finde sureties for the peace 7. And where the Iustice of peace commandeth one being present to arrest another that is also in his presence 14. H. 7. 8 9. though that commandement be by word only it is good and it is reputed as an arrest made by the Iustice himselfe he being present when the arrest is made 8. But the Iustice of peace cannot command by word 14. H. 7. 8. to arrest another being out of his presente neither may one in the absence of the Iustice arrest another upon his command by paroll Br. peace 7. but it must be by a precept or warrant in writing 9. Next the warrant or precept of a Iustice of peace by writing By writing ought to be under his hand and seale or under his hand at least 10. And if it be for the peace or good behaviour or the like where sureties are to be found or required There the warrant ought to containe the speciall cause and matter whereupon it is granted to the intent that the party upon whom it is to be served may provide his sureties ready and take them with him to the Iu. of peace to be bound for him But if the warrant be for Treason murder or felony or other capitall offence or for great conspiracies rebellions assemblies or the like it needs not containe any speciall cause but there the warrant of the Iu. of peace may be to bring the party before him to make answere to such things or matters generally as shal be objected against him on the Kings Majesties behalfe Cromp. 148. and this is now the common usage 11. Plo. 37. A Iustice of peace who is dwelling out of the County granteth his warrant to be served within the County the officer cannot carry the party out of the County to the Iustice of peace who made the warrant but must carry him before some other Iu. within the County 12. Br. Peace ◠Co. 5. 59. The Iustice of peace may make his warrant of the peace to bring the party before himselfe and then the officer need not to carry the party before any other Iustice And yet upon a warrant for the peace granted ex officio the usuall manner is otherwise 13. Also the Iustice of peace may in some cases make his warrant to attach the offendor to be at the next Sessions of the peace there to answere his said offence For what cause 14. A Iustice of peace ex officio by the the first Assignavimus in the Commission may grant his warrant to arrest or attach one that hath broken the peace or committed other misdemeanour against the peace to find sureties for the peace or good behaviour 15. Also the Iustices of peace in diverse cases as the case shall require do use to grant their warrant against a man for his neglect or other default as for refusing to pay Country or Towne Rates and the like and is warranted by the first Assignavimus of the Commission for it is pro bono regimine 16. And such warrant may be either to attach the offendor to be at the next Sessions there to answer c. or els to bring the offendor before the said Iu. or any other Iustice c. who finding cause may bind such an offendor to appeare at the next Sessions to answer the said default 17. Also wheresoever any statute doth give authority to the Iustices of peace to cause another person to do a thing there it seemeth they have power given them of congruity to grant their warrant to bring such person before them that so they may take order therein 18. Also a Iustice of peace may grant his warrant to attach persons suspected of felony or Treason and that by the first Assignavimus in the Commission and by the true construction of the statute of 5. Ed. 3. 14. 19. Againe if a felony or Treason be committed there is no doubt but that every private man without a warrant may arrest whomsoever he suspecteth of it being a man of evill fame c. But if the offendor being pursued shall resist who shal be ayding to a private man whose goods are stolne and who suspecteth another to have stolne them either to search for his goods or to apprehend the party suspected if the Iustice of peace by this warrant shall not cōmand the Constable to ayde him therein If it be objected that the Constable may do all this of his owne authority upon request to him made by the party robbed it is true and yet we find by common experience that the Constables wihout the Iustices warrant therein are for the
most part both very fearefull and also remisse as neither knowing their owne authoritie nor the danger 20. Besides his is no new thing for there is such a president in the old booke of Iustices of peace impress 1561. F. 41. a. and it is the Common practise at this day and seemeth to be very serviceable Crom. 197. 21. Next for the Iustices of peace to binde over or to grant a warrant against offendors upon any penall statute to appeare at the Sessions to answere to their offence or fault though such statute be within the power of the Iustices of peace yet such warrant or binding over of such offendors is not warranted unlesse it be specially so appointed in the statute 22. But such offendors ought first to be indicted and thereupon the ordinary processe from the Sessions to be issued by the Clerke of the peace is to be awarded against them untill they come in 23. Crom. 238. And yet there bee sundrie presidents of Attachments made from one Iustice of peace against labourers and servants that shall refuse to serve or that shall depart out of their service c. contrary to the statutes to be before the Iustices at then Sessions to answere to their said defaults Rast 232. D. But these seeme also to be warranted and so appointed by the statutes of Laborers made in anno 23. Ed. 3. Anno. 25. lid 3. ca. 6. and other statutes to that purpose 24. To whom directed 14. H. 8. 16. B. peace 6. The Iustice of peace may direct his precept or warrant to the Sheriffe Bailiffe Constable or other officer or to any other indifferent person by name though he be no officer yea to any person that he shall thinke meet but yet the safest way is to direct it to the Constables or to some other sworne officers 25. A warrant directed by the Iu. of peace to the Constable or other sworne officer and to a stranger who is no officer Cromp. 147. and the warrant is made conjunctim et divisim and is delivered to the stranger who executeth it all this is good 26. A warrant directed by the Iu. of P. to the Sheriffe he may by word command his undersheriffe Bailiffe or other sworne officer to serve it without any precept by writing 27. But if the Sheriffe will command another man that is no such knowne officer to serve it he must deliver him a precept in writing otherwise a writ of false imprisonment will lye for the arrest 28. A warrant directed by the Iu. of P. to the Sheriffes Baliffe or to the Constable or to the Iu. servant or to an estranger to arrest one c. such person to whom that warrant is made must serve it himselfe for these can command none other to do it neither by word nor writing nor make any deputy 29. The officer to whom any warrant shal be directed and delivered The officers dutie ought withall speed and secrecy to seeke and finde out the party and then to execute his said warrant 30. A sworne and knowne officer be he Sheriffe 8. E. 4. 1. 4. 14. H. 7. 9. b. 20. H. 7. 11. 21. H. 7. 24. Co. 9. 69. undersheriffe Bailiffe or Constable c. needs not to shew his warrant to a man when he commeth to serve it upon him although he demandeth it But if the Iustice will direct his warrant to his servant or to another who is no sworne officer to serve it they must shew their warrant to the party if he demand it or otherwise the party may make resistance and need not to obey it 31. But a knowne and sworne officer Co. 6. 54. 96. 8. if he will not shew his warrant to the party yet he ought upon the arrest to declare the contents of his warrant c. Co. 9. 69. 32. And an officer giveth sufficient notice what he is when he saith to the party I arrest you in the Kings name c. And in such case the party at his perill ought to obey him though he knoweth him not to be an officer And if he have no lawfull warrant the party grieved may have his action of false imprisonment against him Dyer 224. F. Bar. 248. 33. If an officer do arrest a man for the peace or the like before that he hath any warrant and then afterwards doth procure a warrant or a warrant commeth after to him to arrest the party for the same cause yet the first arrest was wrongfull and the officer is subject to an action of false imprisonment 34. Where they be two or three knowne by the name of I. S. of D. yeoman and upon a warrant or other processe granted out against one of them another of them is arrested an action of false imprisonment will not lye against the officer for this for the officer is not bound at his perill to take notice which of them is the offendour And perhaps no particular offence is mentioned in the warrant 35. Where a warrant is granted out against I. N. the sonne of W. N. and the officer thereupon arresteth 10. E. 4. 12. I. N. the sonne of T. N. although in truth he be the same person that offended and against whom the complaint was made yet this arrest is tortious and the Officer subject to an Action of false imprisonment 36. The officer upon any warrant from a Iustice of peace for the peace or good behaviour or in any other case where the King is a party may by force breake open a mans house to arrest the offendor 37. If an officer or other person hath arrested a man by vertue of his warrant which he hath from a Iu. of peace and then taketh his promisse that he will come againe to him such a day to go to the Iu. with him according to his warrant and so letteth the party goe who comes not againe at the day appointed co 1. 44. 52. the officer cannot after arrest or take him againe by force of his former warrant for that this was by the consent of the officer But if the party arrested had escaped of his owne wrong without the consent of the officer now upon fresh suite the officer may take him againe although he were out of view or that he shall flie into another Towne or County 38. Where an officer hath received a warrant he is bound to pursue the effect of his warrant in every behalfe or otherwise his warrant will not excuse him of that which he hath done 21. H. 7. 39. 39. If an officer having a lawfull warrant to arrest another shal be resisted or assaulted by the party or by any other person then may that officer justifie the beating or hurting of such persons and others upon his prayer may and ought to ayde the Officer â—4 H. 8. 16. 40. If a Iustice of peace shall make any warrant for a matter wherein he hath jurisdiction although it be beyond his authority
the Affrayors doe flie into another County the officer as every other private person may pursue them into the other County and may stay or arrest them there but the officer cannot bring them out of that County but must carry the Affrayors before some Iu. of peace of the same County where they were taken c. But if the Affray be in one Towne and the Affrayors doe flie into a franchise or liberty within the same County the officer may pursue them and take them out of the Franchise by fresh suite 83. See 2. E. 4. C. Br. Tres 296. But if the Constable hath arrested one upon a warrant from a Iustice of peace and after the arrest the party escapeth of his owne wrong and flieth into another County the Constable may pursue and take him in the other County by fresh suite and bring him before the Iu. of peace upon whose warrant he was first arrested 84. If a prisoner that is taken in execution shall make an escape of his owne wrong and shall flie out of sight and into another County where the Sheriffe hath no power yet the Sheriffe c. upon fresh suite may take him againe in any other County and he shal be still said to be in execution yea without fresh suite the Sheriffe c. may take him againe and keepe him untill he hath agreed with him otherwise if the escape were by the consent of the Sheriffe c. Co. 3. 58. Br. escape 4. 12. 85. And if a man be arrested for Treason or felony and the Constable shall carry him to the Gaole and the Gaoler will not receive him 10. H. 4. 7. the Constable must bring him back to the Town where he was taken And that Towne shall be charged with the keeping of him untill the next gaole delivery by the opinion of the booke 10. H. 4. Or the Constable or other party that arrested him may in such case keepe the prisoner in his owne house as it seemeth See 11. Ed. 4. Br. Faux Impris 25. But the usuall and best course is to bring him before a Iustice of peace and to have his mittimus and then the Gaoler may not refuse him P. Prison â— But the Gaoler denying to receive a felon by the delivery of any Constable or Towneship 4. E. 3. ca. 10. or taking any thing for receiving such shal be punished for the same by the Iustices of gaole delivery When a statute doth appoint imprisonment but limits no time when the offendor shal be imprisoned The time then he is to be imprisoned presently Co. 8. 119. Plo. 17. b. as in case of a force the Iu. of P. upon view hereof ought to commit the offendors presently 86. Also when a statute doth appoint imprisonment but limits no time how long Cromp. 171. there the prisoner must remaine at the discretion of the Court. 87. Where a statute doth ordaine that an offendour shal be imprisoned at the K. pleasure or that a prisoner shall not be delivered without the Kings speciall commandement and that upon a Fine to be made to the King the Iustices before whom the record is may assesse the same Fine and deliver him 18. H. 8. 1. Fitz. Na. Br. fol. 190. f. The manner 88. Now for the manner of imprisonment generally in all cases where a man is committed to prison be it for Treason felony or upon an execution or but for a Trespasse or other offence every Gaoler ought to keepe such his prisoner Co. 8. 100. 9. 87. In salva arcta Custodia Salva sc that he ought to be imprisoned so surely as that he cannot escape Arcta in respect that he ought to be kept close without conference with others for intelligence of things abroad And therefore if the Gaoler shall license his prisoner to goe abroad for a time and then to come againe Or to goe abroad with a keeper though he come againe yet these are escapes And if the prisoner were in for Treason or felony 1. P. â— ca. 12. 7. H. 4. ca. 4. this is fineable in the Gaoler at the least if it be not felony or Treason And if the prisoner were in upon an execution this is so penall to the officer as that he shal be charged for the debt And if the prisoner were in but for a Trespasse yet the officer is fineable for imprisonment was ordained for a punishment of offendors and in terrour of all others Vt poena ad paucos metus ad omnes perveniat Also by the Law those which are in execution ought not to goe at liberty within the prison Dyer 249. Co. 3. 44. nor abroad with their keeper 24. H. 8. much lesse in cases of felony or of higher offences Co. ib. P. Accomptant 2. 89. Also by the statute of Westminster 2. ca. 11. Accomptants and such as are in execution the Sheriffe or gaoler may put Irons or fetters upon them And yet if the Gaoler shall imprison a man so straitly by putting him in the Stocks or putting more Irons upon him then is needful Fitz. 93. b. or keepeth his victuall fâ—om him wherby the prisoner becommeth decrepit lamed or otherwise diseased he shall have an Action of the case against the Gaoler Also the Constable or other such officer that shall imprison in the Stocks any offendor for felony or suspition thereof may locke the stocks and if need be may also put Irons upon him as it seemeth And when he convayeth him to the gaole or to the Iustice he may pinyon him or otherwise make him sure so that he cannot escape 90. It seemeth by Britton fol. 17. that by the common Law before the statute of Westm. 2. None should have Irons put on them but such offendors as were taken for felony or trepassers in parkes But the words of the statute of Westm. 2. ca. 11. are generall quod carceri manucipientur in ferris which word carceri seemeth to signifie any persons imprisoned for any cause or any persons worthy of the prison and is not to be restrained to Accomptants only See Coke 3. 44. 91. Where the Iu. of peace Sheriffe or other Officer Posse Comitatus is enabled to take the power of the County it seemeth they may command and ought to have the aide and attendance of all Knights Gentlemen Yeomen Husbandmen Labourers Tradesmen Servants and apprentices and of all other such persons being above the age of 15. yeares and that are able to travell 92. But woemen Ecclesiasticall persons and such as be decrepit or diseased of any continuall infirmity shall not be compelled to attend them 93. And in such cases it is referred to the discretion of the Iustices of peace or Sheriffe c. what number they will have to attend upon them and how and after what manner they shal be armed weaponed or otherwise furnished But it is not justifieable for the Iu. of Peace Sheriffe or other officer to
60. 63. 78. 47. 10. Carol. ca. 18. in Ireland 15. Also the statute of 10. Caroli in Ireland seemeth to admit that for manslaughter and all other homicide except murder only the slayer may be bailed by the Iustices of peace which also is the common practise at this day but let the Iustices of peace be sparing and well advised herein viz. that the offence be but manslaughter and not murder 16. Also it seemeth the Iustices of peace cannot baile him that hath committed manslaughter if either he hath confessed the offence upon his examination Or that he be taken with the manner Or that it be apparantly knowne that he killed the other for then it is more then suspition but he that hath dangerously hurt another may goe under baile 17. Likewise no person taken by the Kings commandement was baileable by the common Law but this must be intended of the Kings commadement by his owne mouth or by his privy counsell which are incorporate to him Stamf. 73. See Stamf. 72. Br. Mainp 37. 47. neither was any person taken by the commandement of the Kings Iustices baileable by the common Law but this must be intended of their absolute commandement as if the Iustice commands one to prison without shewing cause why he doth so command or for misdemeanour done in his presence or for some other cause which lyeth in the discretion of the Iustices more then in his ordinary power P. Iust 107. 18. But now for that by the statute 10. Caroli ca. 18. It is provided that no Iust or Iustices of P. shall let to baile any person contrary to the aforesaid statute of Westm 1. made 3. Ed. 1. ca. 15. And so the said statute of Westm 1. is now as a line whereby the Iustice of peace are to guide themselves in cases of Bailement I will shew here what persons are baileable by that statute of Westm 1. and what not 19. By the statute of Westm 1. no prisoner shall be let to baile 3. Ed. 1. 15. P. Mainp 1. F. N. B. 66. c. which is taken in any of these twelve cases following 1. First such as have abjured the Realme shall not be bailed 2. Stamf. 144. b. Nor any approver or appellor for that he confesseth the felony and himselfe guilty before he can burthen or accuse another as coadjutor or helper with him in doing the same 3. Nor he which is appealed by an approver Fitz. 250. D. Br. Mainp 97. so long as the approver doth live except he be of good name or that the Approver doth waive his appeale See Stamf. 74. 4. Nor he which is taken for burning of burning of a house c. feloniously 5. Nor any excommunicate person taken at the Bishops request sc upon his certificate by the writ of Excom capiend F. N. B. 66. 6. Nor any felon taken with the manner or taken for a manifest offence 7. Nor a Theefe openly defamed and knowne 8. Nor he which is outlawed and yet in some cases such as be outlawed may be bailed by the Court c. See Stamf. 74. 9. Nor he which hath broken the Kings prison 10. Nor he which is taken for Treason 11. Nor he which is taken for falsifying the Kings mony 12. Nor he which counterfeiteth the Kings seale Br. Mainp 59. 20. But by the same statute of West 1. Persons baiâ—eable West 1. 15. P. Mainp 2. Persons suspect such persons are baileable which be taken in any of these cases following 1. First he that is taken or indicted for light suspition of felony is baileable F. N. Br. 249. g. 250. c. 251. f. 2. He that is taken upon suspition of burglary robbery or theft Stamf. 74. c. if he be not of evill fame nor that there be any strong presumption against him it seemeth he is baileable 3. A man had stolne certaine hoggs 16. E. 4. 5. Br. Mainp 75. and for that he was of evill fame he was committed without baile yet if he could have brought proofe or witnesse that he bought them hee should have beene bailed 4. A man is arrested for suspition of felony and brought before the Iustice if it shall appeare there is no such felony committed Cromp. 15. the party may be set at liberty without baile but if there be a felony committed and any probability that the prisoner is guilty although in truth he be not guilty yet the Iustice must either commit him or baile him 5. Pery Larceny B. Mainp 2. Fitz. 150. E. He that is taken or indicted for pety Larceny that amounteth not above the value of xij d if he were not guilty of some Larceny before he is baileable 6. Persons indicted P. Mainp 2. Such as be indicted of Larceny generally shall be set at liberty upon sufficient surety 21. And yet they shall not be bailed if they be not also of good fame Stamf. 74. Fitz. 1. 9. 250. Br. Mainp 97. but if they be of good fame they may be bayled although they be indicted by the Iustices that have authority to heare and determine felony yet the Iustices of peace out of their Sessions may not safely baile such persons for being indicted they are then more then vehemently suspected 22. One that was indicted before the Coroner that he had killed another Se defendendo was by the Iustices of gaole delivery bailed till the next Assises to purchase his pardon 26. Eliz. Cromp. 153. Fitz. Na. br fo 249. g. 23. One that was indicted in the Sheriffes Turne for stealing of a horse may be bailed by the Sheriffe if he be of good fame as appeareth by the writ de manucaptione F. N. B. 249. g. Also one that was indicted of Burglary as principall pleaded not guilty and was after bailed 29. lib. Ass Fitz. Mainp 9. Another that was indicted of Robbery was bailed 41. lib. Ass 30. Br. Mainp 61. but these were bailed by the Court and not by a Iustice of peace in the Country Persons attaint or convict Stamf. 74. D. F. Cor. 297. 354. 24. But such as are attainted or convicted of felony are not baileable for although it doth not appeare by any words of the said statute of Westminst 1. that it doth prohibit the bailement of such as be convicted by verdict yet it is to be intended that the statute doth aswell prohibite the bailement of those convicted and attainted by verdict as it doth of them who be attainted by Outlarie And therefore if a prisoner after he hath pleaded not guilty be convicted by verdict that be killed a man Se defendendo 25. E. 3. 42. or by misfortune yet he shall not be bailed by the opinion of some bookes Neverthelesse the Iustices of Assise use to baile the prisoners that are found guilty Se defendendo or per infortunium taking security by recognizance that the prisoner at the next Assizes shall appeare and produce his pardon of grace And this I conceive to
levyed by the Warden of the peace and that the paines lost be spent upon the Townes where the said paines riseth 8. Also by a statute made in Ireland in the tenth yeare of King Henry the seventh it is ordained That every subject having goods and Chattels to the value of Ten pounds have an English Bow and a sneafe of Arrowes according every subject having goods to the value of 20. l. have a Iacke Sallet and English Bow and a sheafe of arrowes every Freeholder having land to the value yearely of foure pounds have his horse Iacke Sallet Bow and Sheafe of Arrowes every Lord Knight and Esquire within the said land have for every yeoman daily in their houshold Iacke Salet Bow and Arrowes to the intent that all the Commons of the said land may be able to doe the King or his Lievetenant service for their owne defence and suretie And that if the foresaid persons or any of them doe not observe and performe the premises as it is before specified that then they and every of them doe forfeit to the King 6. s. 8. d. as often times as they and every of them shall offend the foresaid ordinance And likewise that there be in every Barony within every Shire of the said land two Wardens of peace having authority as it hath been used of old time and in every parish Constables of able persons inhabitants within the said parishes and a paire of Buts to be had within every of the foresaid parishes at the cost of the said parishioners that the Commons of the said land may the sooner attaine the practise and experience of Archers And that the foresaid Constables in every parish upon paine of forfeiture of 12. d. at every default doe call before them or one of them every holy day all and every of the foresaid persons having Bowes and Arrowes as afore is rehearsed 10. H. 7 ca. 9. in Ireland to shoot and cause them to shoot at the least two or three games at the said Buts and if any of the said persons make default at any holy day without a reasonable cause shewed that then the said Constables have full power and authority to record their defaults and amerce them and every of them at every such default in 4.d and the said Constables to present the said amerciaments in writing to the Barons of the Kings Eschequer in the said land to be levyed and perceived in like manner and forme as the Kings Revenues have beene levyed there Felonie CHAP. 9. 1. EVery Iustice of peace by force of the first Assignavimus of the Commission may cause fresh suite Huy and Cry and search to be made by the Sheriffe bailiffes Constables and others upon any Treason robbery theft or other felony and also may cause the Constables to arrest and to imprison all such as shall be suspected of such Treason or felony or to be Theeves Murderers or Felons 2. Also every Iustice of peace may and must take the examination of all such felons or persons suspected of treason or felony as shall be brought before him 10. Carolica 18. and must also take information against them of those that bring them sc of the fact and of circumstances thereof and must put in writing such examinations and informations or so much thereof as shall be materiall to prove the felony and must certifie them to the next generall gaole delivery and after such examination and information taken then must commit such traitors or felons to the gaole if they be not baileable but if they be baileable then there must be two Iustices together the one of them of the Quorum to bayle them or else they cannot be bailed 3. The Iustice of peace that taketh the examinations must by recognisance binde the Informers that doe declare any thing materiall to prove the felony or treason to appeare and give evidence against the felon at the next generall gaole delivery to be holden within the County City or Towne corporate where the triall of the said offence shall be Stamf. 58. Li. intr 385. Co. 9. 118. 4. The Iustices of peace in the County of Dublin as well by vertue of their Commission as also by force of the statutes of 18. E. 3. 2. 34. Ed. 3. 1. 17. R. 2. 10. have authority to heare and determine all felonies for the words of the Commission to that purpose are Audiendum terminandum ad delinquentes castigandum puniendum 5. Also there be divers statutes which by speciall words did ordaine that the Iustices of peace should have authority at their generall quarter Sessions to inquire of heare and determine certaine felonies As the statutes 18. H. 6. 19. and 1. Ed. 4. for felonies presented before Sheriffes in their Turnes or law dayes Cromp. 5â— 6. And yet there be some felonies which the Iustices of peace cannot heare or try at all neither can they enquire thereof nor otherwise deale therewith as it seemeth as namely â— H. 6. â—2 12. Co. 11. 34. 7. Embeazelling of any record writ returne panel proces or warrant of Atturney in the Chancery Eschequer the one bench or the other or in the treasury whereby any judgement shall be reversed Every such offence is made felony in such imbezellor stealer or taker away and in their procurors Counsellors and abettors by the statute of 8. H. 6. But such offences are by the same statute appointed to be tryed by a Iury whereof the one halfe shall be of the men of the same Courts and before the Iudges of the said Courts of the one Bench or of the other 2. R. 3. fo 10. 8. Razing of any such record is also felony within the said statute of 8. H. 6. and to be tryed as aforesaid Br. Coro 174. 9. Forging of any deed or writing sealed or of any Court Roll will or acquittance Or to cause or assent to be made any such forged writing or to publish or shew forth in Evidence any such forged writing knowing the same to be forged If any person being once lawfully convicted of any of the said offences shall afterwards commit any the said offences againe 2â— El ca. 4. in Ireland every such second offence is made felony by the statute of 5. El. ca. 24. in England But by the same statute such offences are to be inquired of heard and determined by and before Iustices of Oyer and Terminer and Iustices of Assize which statute is enacted in Ireland in Anno 28. El. ca. 4. 10. And therefore whereas one R. Smith was indicted at the Sâ—ssions of the peace in the County of Oxford upon the said statute of 5. Elizab. for forging of a false deed it was adjudged by the whole Court in the K. bench Anno 30. Co. 9. 118. Elizab. that the said indictment was not well taken For although the Iustices of peace by their Commission have power of Oyer and Terminer to heare and determine felonies and trespasses
ca. 9. 20. That the Iustices of peace in every County in two of their Sessions to be holden betwixt the Feast of Easter and Saint Michael shall make proclamation by their discretion after the dearth of victuals how much every Mason Carpenter Tyler and other Craftesmen workemen and labourers by the day aswell in harvest as in other times of the yeare after their degree shall take by the day with meate and drinke or without meate and drinke betweene the two Sessions aforesaid notwithstanding the statute thereof heretofore made and that every man obey to such proclamations from time to time as a thing done by statute Anno 13. Ri. 2. cap. 8. vide 33. H. 8. cap. 9. in Ireland that these proclamations must be in the next Sessions after Easter and Michaelmas 21. That no Labourer be retained to worke by the weeke not that no Labourers Carpenters Masons Tilets Plaisterers Daubers Coverers of houses nor none other Labourers shall take any hire for the holy dayes nor for the Evens of Feasts where they doe not labour but till the houre of Noone but only for the halfe day upon the paine that such Labourer Carpenter Mason Tiler Plaisterer Dauber Coverer of houses or any other Labourer that taketh contrary to this statute shall pay to the King for every time that he doth so contrary 20. s. Anno 4. H. 4. ca. 14. 22. The statute of Labourers made at Canterbury and all other good statutes of Labourers made and not repealed be firmely holden and kept and put in due execution and moreover that the Iustices of peace have power to send their writs for such fugitive Laborers to every Sheriffe of the Realme of England and to make such processes as the statute of Anno 34. Ed. 3. cap. 10. requireth to bring them before them to answere to our soveraigne Lord the King and to the parties of the contempts and Trespasses made or done against the ordinances and statutes aforesaid in like manner as the Iustices have power to send to every Sheriffe for the Theeves before them indicted And also that all the statutes and ordinances of Labourers servants and artificers before this time made and not repealed be exemplified under the great Seale and sent to every Sheriffe of the Realme thereof to make Proclamation in full County and after this Proclamation so made that every Sheriffe shall cause the same Ex-emplification to him directed to be delivered to the Iustices of the peace in his County named in the Quorum or to one of them to remaine with such Iustices which be or shall be for the better putting of the aforesaid statutes and ordinances in due execution And also that the Iustices of peace from henceforth have power to examine aswell all manner of Labourers and servants and their masters as Artificers by their oathes of all things by them done contrary to the said ordinances and statutes and upon that to punish them upon their confession after the effect of the statutes and ordinances aforesaid as though they were convict by Inquest and that the Sheriffe in every Shire of the Realme shall doe well and duely in his office in this behalfe upon paine to lose and to forfeit to our Soveraigne Lord the King Twenty pounds Anno 2. H. 5. cap. 4. 23. If any servant of husbandrie purposing to depart from his Master at the end of his Terme at the midest of his Terme or otherwise make a Covenant before with another man to serve him for the next yeare if he be in such case as the law will compell him to serve that the said servant and he which so shall make covenant with him at the middest of the said Terme or before shall give warning to the master of the said servant of the said Covenant so newly made so that the same master may provide another servant against the end of his Terme and if any covenant with any such servant be otherwise made or such warning in manner and forme aforesaid not had that the same Covenant shall be voide and that the same servant be compelled to serve his first master for the next yeare except that a lawfull cause being of a latter time require the contrary and if any person refuse to serve or labour for the wages assessed by the Iustices of peace then every Iustice of peace in their Counties shall have power at every time to call them to examination of the same and such as they shall finde defective to commit to the gaole there to remaine till they have found sufficient surety to serve and labour in forme by the law required And if any servant Artificer workman or labourer doe contrary to the premisses or deny his service occupation of labour by reason of not giving of salarie or wages contrary to these statutes that hee shall lose to the partie that will sue in this behalfe 20. s. and that the said Iustices of peace shall have power to heare and determine all manner of offences done contrary to the forme of this statute aswell at the Kings suit as at the parties And that every of the Kings leige people may have the suit against every person that shall offend in any point against this statute and the processe shall be by Attachment Capias and Exigent and that the Iustices of peace shall assesse no fyne upon any which shall be convict before them of any thing done to the contrary to any statute of Labourers or Artificers or for this cause to put him in the good grace of out Soveraigne Lord the King under three shillings foure pence And also that the Iustices of peace thorow the Realme two times every yeare shall doe openly to be proclaimed in their Sessions all the statutes of Labourers Artificers Hostlers Victualers servants and Vagabonds before this time made and not revoked with this statute Also that by colour of the Tenure of lesse lands then the husbandry of the same shall suffice to the continuall occupation of one man no man shall be excused to serve by they yeare upon the paine to be justified as a Vagabond also that Iustices of peace shall have power to take all servants retained with any person by colour of Husbandrie and not duely occupied about the same which servants ought by the law to be servants of Husbandrie to such as shall require their service and to justifie them in every point as the same Iustices have power to justifie Vagabonds 23. H. 6. ca. 13. 24. And now because the rating and assessing of the wages of Labourers Artificers and Servants by force of an Act of Parliament made in Ireland in Anno 33. H. 8. cap. 9. 33. H. 8. ca. 9. in Ireland is to be done by the Iustices of peace so as by this statute all the former statutes are altered in that particular point of wages only It will not be amisse to recite the statute verbatim which is as followeth 25. Forasmuch as prices of victuals cloth and other necessaries
of person or persons that hereafter offend the said statutes or any of them and every of the said persons so found defective or trespassing in any of the said statutes from henceforth be duely corrected and punished in example of all other in time to come according to the tenor and purport of the statutes made against provisors 15. Anno 28. H. 8. ca. 5. 28. H. 6. ca. 5. in Ireland amongst other things it is ordeined and enacted by authority of Parliament that no person or persons subjects or resiants of this land shall pursue commence use or execute any manner of provocations appeales or other processes to or from the Bishop of Rome or from the See of Rome or to or from any other that claime authority by reason of the same for any manner of case griefe or cause of what nature soever it be upon the pain that the offendors their ayders counsellors and abettors contrary to this Act shall incurre and runne into such paines forfeitures and penalties as be specifyed and contained in the Act of provision and praemunire made in the Realme of England in the sixteenth yeare of the Raigne of King Richard the second sometime King of England and Lord of Ireland against such as procure to the Court of Rome or elsewhere to the derogation or contrary to the prerogative or jurisdiction of the said Crowne of England and that no manner of person subject or resiant within this land shall attempt procure or obtaine any manner of proces of what kinde or nature soever it be to or from the same Bishop of Rome or Court of Rome or See Apostolique or from any other having authority by the same to the let or interruption of this Act or any thing therein contained nor in any wise obey or execute within this land such manner of processe upon like paines and forfeitures as beene above rehearsed 16. Anno 2. Eliz ca. 1. 2. El. ca. 1. in Ireland It is amongst other things ordeined and enacted that if any person or persons dwelling or inhabiting within this Realme of what estate dignitie or degree soever he or they be shall by writing printing teaching preaching expresse words deeds or Act advisedly malitiously and directly affirme hold stand with set forth maintaine and defend the authority preheminence power or jurisdiction spirituall or ecclesiasticall of any forraigne prince prelate person state or potentate whatsoever heretofore claimed used or usurped within this Realme or shall advisedly malitiously directly put in ure or execute any thing for the extolling advancement setting forth maintenance or defence of any such pretended or usurped Iurisdiction power preheminence or authority or any part thereof that then every such person and persons so doing and offending their abettors aiders procurors and Counsellors being thereof lawfully convicted and attainted according to the due order and course of the common Lawes of this Realme for his or their first offence shall forfeite and loose all his and their goods and chattels aswell reall as personall and if any such person so convicted or attainted shall not have or be worth of his owne proper goods and chattels to the value of twenty pounds at the time of such his conviction or attainder that then every such person so convicted and attainted over and besides the forfeiture of all his said goods and chattels shall have and suffer imprisonment by the space of one whole yeare without baile or mainprise and that also all and every the benefices prebends and other Ecclesiasticall promotions and dignities whatsoever of every spirituall person so offending and being attainted shall immediately after such attainder be utterly voide to all intents and purposes as though the incumbent thereof were dead and that the patron and donor of every such benefice prebend spirituall promotion and dignity shall and may lawfully present to the same or give the same in such manner and forme as if the said incumbent were dead and if any such offendor or offendors after such conviction or attainder doe eftsoons commit or doe the said offences or any of them in manner and forme aforesaid and be thereof duely convicted and attainted as is aforesaid and then every such offendor or offendors shall for the same second offence incurre into the dangers penalties and forfeitures ordeined and provided by the statute of provision and praemunire made within the Realme of England in the sixteenth yeare of the Raigne of King Richard the second provided alwayes that no manner of person or persons shall be molested or impeached for any of the offences aforesaid committed or perpetrated only by preaching teaching or words unlesse he or they be thereof lawfully indicted within the space of one halfe yeare next after his or their offences so committed and in case any person or persons shall fortune to be imprisoned for any of the said offences committed by preaching teaching or words onely and be not thereof indicted within the space of one halfe yeare next after his or their such offence so committed and done that then the said person so imprisoned shall be set at liberty and be no longer detained prisoner for any such cause or offence provided alwayes and be it enacted by the authority aforesaid that this Act or any thing therein contained shall not in any wise extend to repeale any clause matter or sentence contained or specifyed in an Act of repeale made in the third and fourth yeares of the Raignes of King Philip and Queene Mary as doth in any wise touch or concerne any matter in case of praemunire or doth make or ordeine any matter or cause to be within the case of praemunire but that the same for so much onely as toucheth and concerneth any case or matter of praemunire shall stand and remaine in full force and effect as the fame was before the making of this Act contained to the contrary in any wise notwithstanding And if it shall happen that any peere of this Realme shall fortune to be indicted of and for any offence that is revived or made praemunire or Treason by this Act that then the same peere or peares so being indicted shall be put to answere to every such indictment before such peere of this Realme of English blood as by the Lord Deputy or governours of this Realme shall be by Commission appointed under the great seale and to have his and their triall by this and their peeres and to receive and have such like judgement upon the same triall of his or their peeres or making open confession of the same offence or offences as in other cases of Treason and praemunire hath beene used And it is further enacted that no person or persons shall be indicted or arraigned for any the offences made ordeined revived and adjudged by the said Act unlesse there be two sufficient witnesses or more to testifie and declare the said offences whereof he should be indicted and arraigned and that the said witnesses or so many of them
man Cromp. 197. or to take sureties for any matter or cause See Fitz. 82. it seemeth they may take a Recog yea wheresoever they have authority given them to cause a man to doe any thing there it seemeth they have of congruity power given them to binde the partie by recog to performe or doe it Dalton 298. and if the partie shall refuse so to be bound that then the Iudge may send him to the Gaole 4. I will here set downe only some particulars Ibid. where the Iustices of peace out of their Sessions may take a recognisance 5. One Iustice of peace may take a recognisance for the peace 6. Ibid. Also the Iustice of peace may take a recognisance for the good behaviour by the Commission and these the Iustice of peace may take either upon discretion or upon complaint made to him or upon a supplicavit delivered to him 7. Ibid. One Iustice of peace may binde by recognisance such as doe declare any thing against a felon or Traitor to appeare at the Assizes or Sessions there to give Evidence against the offendor and so in diverse other offences 8. Ibid. One Iustice of peace may binde by recognisance the master that shall misuse his apprentice c. to appeare at the Sessions c. 9. Two Iustices c. may baile prisoners which must be done by recognisance see here tit Bailement 10. Also two Iustices of peace may binde by recognisance the defendant in a suit of Tithes to obey the sentence of the Iudge see postea tit Tithes 11. A Iustice of peace can take no Recognisance but onely for such matters as concerne his office see hereof postea tit Surety for the Peace 12. Note also that a recognisance taken by a Iustice is a matter of record presently so soone as it is taken and acknowledged although it be not made up but only entred into his booke nay although it be not entred as it seemeth See Stamf. 77. c. Br. record 58. 13. If a Iustice of peace shall take a recognisance where he hath no authoritie it is voide 14. And these recognisances taken by the Iustices of peace are to be certified by them at their next quarter Sessions except recog taken for such as shall informe against felons or Traitors and upon bailement of felons which by statute they are appointed to certifie at their next generall gaole deliverie 15. For the Formes of recognisances see hereafter tit Warrants and Presidents Robberie CHAP. 54. One Iustice 11. Caroli c. 13. in Ireland P. Huy and Cry 8. 10. co 77. 1. AFter a Robberie committed the party robbed shall not have his action upon the statute against the hundred except hee shall with all speed convenient give notice of the said robbery to some of the inhabitants neare to the place where such robbery was committed and also except he shall commence his suit or action within one yeare next after such Robbery committed and also except hee shall first bee examined upon oath within twenty dayes next before such action brought by some one Iustice of peace of the County where the Robberie was committed dwelling within or neare to the said hundred where the robbery was done whether hee doth know the parties that committed the said robberie or any of them and if he knoweth any of them then also before such action brought he shall be bound before the same Iust by sufficient recognisance to prosecute effectually the said offendors by indictment or otherwise according to the due course of law 1â— Caroli c. 13. â—n Ireland P. Huy and Cry 15. 2. After a robbery committed the whole hundred must answere the losse if the Robbers be not taken within Forty dayes and yet for that the party robbed hath his recovery and execution against some one or few persons of that hundred therefore for a contribution to be yeelded from the residue of the said hundred upon complaint made by the parties against whom such recovery and execution is had any two Iust of peace the one being of the Quorum being of the same County and inhabiting in or neare the same hundred where such execution shall be had may assesse and taxe according to their discretions proportionably all and every the Townes and Parishes c. as well of the same hundred where the robbery was committed as also of the liberties within the said hundred towards an equall contribution to be had for the reliefe of the parties charged the which money the Constables of every Towne shall levy and deliver over to the same Iustices or to one of them within Ten dayes after collection and which the said Iustices shall deliver over upon request to the parties charged to whose use the same was collected 3. The like taxation assessement levying and payment shall be had and made for a contribution within every hundred 11. Caroli c. 13. in Ireland P. Huy and Cry â— where there was any negligence fault or defect of pursuit and fresh suit after huy and cry viz. if upon suit any recoverie and execution of any money or any damages shall be had against some one or few persons of that hundred where such default was towards the ease of the hundred where the Robberie was done upon complaint made by the parties so charged to any two such Iustices of peace the said Iustices may make the like assessement c. towards the reliefe of the parties so charged Co. 7. 6. 4. Note that if any man be robbed in his house the hundred shall not be charged therewith whether it were done in the night or in the day 5. Also a robberie done in the night shall not charge the hundred but yet if it be in the day time or by day light Co. ibid. though it be afore Sun rising or after the Sun setting the hundred shall answere for it 6. If upon pursuite any one of the offendors be apprehended the hundred shall not be charged 11. Caroli c. 13. in Ireland although the residue of the offendors happen to escape but pursuite without apprehending some of the Robbers is no excuse 7. Cromp. 179. If the party that was robbed shall himselfe take any of the theeves after Huy and Cry made this shall excuse the hundred 8. It is said by my Lord Dyer obitur in anno 22. El. that the statute is satisfied if the names of the offendors be discryed Dyer 370. so that they may be indicted and outlawed but that seemeth to be no Law P. R. 155. for the words of the statutes of 13. Ed. 1. and 28. Ed 3. Dalton 117. are that the Countrey must answer for the bodies of such offendors Winch. 13. E. 1. ca. 2. 28. Ed. 3. ca. 11. 9. Ibid. Note the party robbed must bring his Action within twenty dayes next after his examination taken before the Iustice of peace 10. Ibid. Also the Iustice of peace must be abiding
alledged by the defendant whereupon the issue in every such Action shall be joyned to be tryed by verdict of twelve men and upon the tryall of that issue the whole matter to be given on both parties in Evidence according to the very truth of the same and after such issue tryed for the defendant or nonsuite of the plainetiffe the sad defendant shall recover treble damages by reason of his wrongfull vexation in that behalfe with his costs also in that part sustained and that to be assessed by the same Iury or by writ to enquire of damages as the same cause shall require And it is further enacted that the Iustices of Assize in their severall circuits shall have full power to enquire of all defects defaults and negligences of any Iustice of peace or any other officer person or persons whatsoever in the not due execution of this Law and also of all offences done contrary to the intent and true meaning thereof and to punish the same by fyne or imprisonment or otherwise according to their discretions Suretie for the peace CHAP. 56. 1. Dalton 140. SUretie for the peace is the acknowledging of a Recognisance or bond to the King taken by a competent Iudge of Record for the keeping of the peace and it is called surety of the word securitas because the party that was in feare is thereby the more secure and safe 2. This surety for the peace F. N. B. 7. 9. h. Lamb. 77. every Iustice of peace may take and command in two manners or by a twofold authority 3. First as a Minister commanded thereto by a higher authority as when a writ of supplicavit directed out of the Chancery or Kings Bench is delivered to his hands upon this writ that Iustice of peace only to whom such writ was delivered is to direct his warrant to cause the party to be brought before him alone to finde sureties for the peace and therein the said Iustice is to doe in every behalfe according as the writ doth direct him 4. Secondly as a Iudge and by vertue of his office and of his owne power derived from his Commission he may command this surety of the peace to be found and that either of his owne motion and discretion or else at the request or prayer of another 5. The Iustice of peace upon his owne motion and discretion may if he see cause command surety for the peace to be found or may bind a man to the peace and that against all the Kings subjects Vpon discreton Dalton 141. if the Iustice shall so thinke fit in these cases following 6. One that maketh an assault or affray upon the Iustice of peace himselfe the Iustice of peace may commit him to prison 5. H. 7. 6. till he hath found sureties for the peace or if he please for the good behaviour 7. So of such as in his presence shall make an affray upon another P. R. 18. 19. or shall stricke or assault or offer to stricke another 8. So he may doe of such as in his presence and hearing shall threaten to kill beat or hurt another or to burne his house 9. So likewise may he doe of such as in his presence shall contend in hot words P. R. 1â— for from thence oftentimes doe ensue affrayes and batteries and sometimes mischiefes yea manslaughters and murders See Cromp. 761. 142. P. R. 4. 10. So also may he doe of such as shall in his presence goe or ride armed offensively or with an unusuall number of servants or attendants for these are accompted to be in affray and feare of the people and a meanes of the breach of the peace so of servants and labourers that shall beare any weapons contrary to the statute of 20. R. 2. ca. 1. 9. Ed. 4. 3. P. R. 18. 11. Also he may binde to the peace any other person by him suspected to be inclined to the breach of the peace 12. If out of the presence of the Iustice of peace any man shall threaten to kill Cromp. 135. 143. P. R. 22. maime or beate another or doe attempt or goe about to doe it then any Constable being present or at the prayer of the other party may arrest such offendor to come before a Iustice of peace to finde sureties for the peace Fit bar 202. and the Iustice may bind him to the peace 13. If any Constable shall perceive any other persons in his presence 14. H. 7. 7. to be about to breake the peace either by drawing weapons or by stricking or assaulting one another or by assaulting the Constable himselfe he may take assistance and carry them all before the Iustice to finde sureties for the peace and the Iustice may bind them accordingly and for default of sufficient sureties the Iustice of peace may commit them to the gaole untill they finde such security 14. If the Constable shall learne that certaine persons be fighting or quarrelling in a house P. R. 22. he may breake open the doores and arrest them and bring them before a Iustice of peace to finde surety of the peace and the Iustice may bind them to the peace or in default of such sureties commit them to the gaole Dalton 141. 15. Yea the Iustice of peace either upon his owne discretion or upon any mans complaint may make his warrant for any such as have made an affray though out of his presence and may bind them to the peace or commit in default of sufficient sureties 16. If one hath received a wound the Iustice of peace may take surety of the peace of the one See Br peace 21. and the other by his discretion untill the wound be cured and the malice be over Popham the Lord chiefe Iustice of England an honourable and grave Iudge did accordingly betweene Iames and Benton at Cambridge Assizes 3. Iacobi 17. All such as shall goe or ride armed offensively in faires markets 2. Ed. 3. ca. 3 or elsewhere or shall weare or carry any guns daggs or pistols charged Dalton 142. in disturbance of the peace or terror of the people any Constable seeing this may arrest them and may bring them before any Iustice of peace and the Iustice may bind them to the peace yea though those persons were so armed or weaponed for their defence for they might have had the peace against the other persons whom they feared and besides it striketh a feare and terrour in the Kings subjects 18. Also the Iustice of peace upon his discretion may bind to the peace a common Barretor Ibid. and so he may Riotters 19. If he that standeth bound to keepe the peace hath broken 21. Ed. 4. 40. or forfeited his recognisance the Iustice of peace ought and may of his discretion to bind him anew but that must not be done untill the party be convicted of the breach of the peace upon his recognisance for before his conviction it resteth indifferent
whether the recognisance be forfeited or no but after that he is thereof convicted Br. peace 17. the recognisance is utterly determined Cromp. 42. and then he is to be compelled to finde new surety or else to be sent to the gaole 20. So it seemeth if the Iustice of his owne knowledge know that the party which was bound hath sithence his entring into bonds broken the peace he shall be bound of new and if he refuse to finde new sufficient sureties he shall be committed to prison Cromp. 141. Br. recog 21. 21. Also he that standeth bound to keepe the peace Dalton 14â— if his sureties be insufficient the same Iustice or another Iustice of the peace may compell him to finde better sureties or else commit him to the gaole 22. And in many of the former cases the Iustice of peace ought of duty or at least in good discretion to command the surety for the peace although the same be not required by any other person and if any such person shall refuse to give such surety the Iustice of peace ought to send him to prison there to remaine untill he shall finde such surety 23. 9. Ed. 4. 3. Br. peace 8. If a Iustice of peace upon his owne discretion shall cause one to be arrested to finde sureties for the peace and shall after let him goe without taking surety or binding him to the peace yet the party hath no remedy for an Action will not lye against the Iustice of peace he being a Iustice of Record See 9. H. 6. fo 60. 9. Ed 4. fo 3. Br. Iudges 2. 10. 24. A Iustice of peace may perswade a man to require the surety of peace against another and he himselfe may grant a warrant for it P. R. 18. Dalton 143. because it is no more then he might have granted of his owne authority without any demand made and it shall be presumed that he saw cause to doe all this 25. Also at the request or prayer of another Vpon request the Iustice of peace may command this surety of the peace and may grant his warrant for it 26. But here the Iustice of peace must and ought to take an oath of the party that demandeth the peace F. N. B. 7â— â— which oath must be to this effect scil that he standeth in feare of his life Dalton 143. or of some bodily hurt to be done to himselfe or to have his houses burned and that he doth not crave the peace for any private malice or for vexation but of very feare and for the needfull safety of his body or houses for the words of the Commission herein are Et ad omnes illes qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorum suarum minas fecerint ad sufficientem securitatem de pace c. inveniendam c. 27. So as he that shall be threatned to be hurt in his body scil to be beaten Ibid. wounded maimed or killed the party so threatned may crave and have the surety of peace against the other Ibid. 28. Also if a man doe feare that another will kill maime beat assault or hurt him in body he may crave the peace against such other person 29. So if a man doe feare that another will burne his house 30. So if a man doe feare that one will procure or cause any such hurt to be done him by another Ibid. either in his body or in his house for the words of the recognisance be non faciet neque fieri procurabit Ibid. 31. So if a man lieth in waite to beate kill or hurt another it is good cause to require this surety Cromp. 135. Ibid. 32. If a man be threatned to have his goods burned it seemeth by the opinion of Master Fitz. that he may demand surety of the peace for this 17. Ed. 44. Br. peace 22. 33. But where a man shall threaten to imprison another it is holden that the peace shall not be granted for this may be intended to be by legall processe but if one shall threaten another of his owne wrong without any legall processe to Imprison him by force and violence it seemeth to me that this is good cause not onely to grant security for the peace but also for the good behaviour for to threaten such imprisonment is within the words minas de corporibus and like harme may happen to a man by hard imprisonment as by cruell beating of him and to threaten such imprisonment seemeth to be a good cause to avoide a deed aswell as to threaten to kill or maime one c. 39. H. 6. Br. Duress 9. Fitz. Na. Br. fo 80. g. Dalton 144. 34. Where a master is in feare that another will hurt his servants or his Cattell or other goods this surety of the peace shall not be granted by the Iustice of peace but in this case Master Fitzherbert saith the party may have a speciall writ out of the Chancery directed to the Sheriffe that he shall cause such person to finde surety that he shall doe no hurt nor damage to the other man in his body or to his servants or goods and if he will not finde surety that then he shall arrest and detaine him in prison untill he shall finde surety and that the Sheriffe shall certifie all that he shall doe thereupon into the Chancerie c. and it seemeth the Sheriffe ought to take such surety by recognisance and yet if a man shall threaten to hurt my servant or my wife or child I see no cause but that in their behalfe I may crave the peace at the Iustices hands by the words of the Commission and that the Iustice ought to doe it 35. If a man will require the peace because he is at variance or in suite with his neighbour it shall not be granted by the Iustice of peace Br. Impris 41. P.R. 14. 36. Note also that the surety for the peace shall not be granted but where there is a feare of some present or future danger and not meerely for a batterie or trespasse that is past or for any breach of the peace that is past for this surety of the peace is only for the security of such as are in feare â—â—â—â—â—metus est presentis vel futuri periculi causa mentis trepidatio so this surety is providere praesentia futura non praeterita 37. And as for a battery or other like trespasse that is past Dalton 144. the party wronged may have his Action of trespasse or battery c. or may punish the offendor by indictment at the Kings suit and yet in such case the Iustice may if the party hurt do pray it or upon any good circumstance if he see cause bind the party that made the affray to the peace 38. If the Iustice of peace shall perceive that this surety for the peace is demanded meerely of malice
finium amerciamentorum forisfactorum ad generalem Sessionem pacis tentam apud Trym c. Coram c. For the whole forme of the making whereof there is full direction given to all Clerkes of Estreates by the statute 7. H. 4. cap. 3. whereunto I referre them 26. Howbeit I doe not thinke Iu. of the P. ought to have caâ—e of the Estreats that in our case this duty of estreating is so peculiar to the Clerke of the peace but that the Iu. of P. themselves ought also to have a common and carefull eye unto it For if you remember it is both specially provided for in the Commission and also an Article of their oath to see unto the faithfull entry and certificate of the issues fynes forfeits and amerciaments that doe happen before them and therefore it were well done in my opinion if the Iu. would by turne or otherwise both take knowledge of things that have passed before them and also take order that the same be certified accordingly lest otherwise it lye altogether in the power of the Clerke of the peace to save or slay as one said the Sparrow that he holdeth closed in his hands Of executory processe and execution for the parties that sun or for other persons and of the restitution of goods stollen CHAP. 18. 1. ALbeit that the Iustices of the peace have this power to make warrants for levying the amerciaments fynes and other forfeits that grow unto the King by their service yet is it commonly thought that they may not but in some cases only and that by speciall words of the statutes make execution for them that will sue of such part of the forfeiture as the statutes doe appoint for them 2. For most commonly the party that will sue is by the statutes put to his action at the common Law for recovery of that which he is to have growing upon conviction of any offence contrary to the statutes for which he is to commence his action or bill of debt But where they have power either by their Commission or by any statute to heare determine any cause at the prosecution of a private person I doe not see how the cause can well be said to be fully determined till the complainant hath had the effect of his suite which cannot be without execution Liveries 3. For the moity growing to the Informer upon the statute of Liveries 8. Ed. 4. cap. 2. they shall make such execution as ought to be had in recovery of debt or Trespasse High wayes 4. And the Estreats made by the Clerke of the peace of forfeits for default of amending high wayes are a sufficient warrant to the Constables to levye the same by distresses to the use of the Church-wardens of the Parish where the default was 11. Iacobi ca. 7. in Ireland toward the amendment of the said wayes Perjurie 5. So upon the statute of perjurie made in 28. El. cap. 1. in Ireland And peradventure search will afford some more examples but these may suffice for my desire which is not in this or any the like to recount all but to make good proofe of that which I offer and propound the rather that the Iustices and Clerke of the peace may thereby take occasion to looke upon the statute whensoever Execution shall be prayed for any cause depending before them upon any statute whatsoever Restitution of goods stollen 6. And because the awarding of restitution of goods stollen to the owner or partie robbed after the attainder of a felon by reason of the evidence given by them is a manner of execution for the party 28. H. 8. ca. 10. 4. Ma. cap. 6. in Ireland I may without violence bring hither the effect of the statutes made upon that point and lying within the authority of Iustices of the peace which standeth thus if any felon of goods money or chattels taken from any of the Kings subjects be indicted arraigned and found guilty thereof or otherwise attainted by reason of evidence given by the party robbed or the owner of the said goods money or chattels or by any other by their procurement then shall such party or owner be restored thereunto and the Iustices before whom such finding guilty or such attainder shall be shall have power to award writs of Restitution of the goods stolne in specie if they may be found and if they cannot be found or that the property be altered then they may award Restitution of the felons goods Of certifying the Records of the Sessions of the peace to other Courts or officers CHAP. 19. 1. AS I have already manifested that Iustices of the peace have not sufficient power of themselves to heare and determine all causes whereof they have in their Sessions authority to enquire So also there be sundry things determinable before them there which neverthelesse may in some respects be brought to a second handling either to the end to reverse that which they have done or that their doings may be an evidence and testimony in the tryall of causes before other Iudges 2. And because this cannot in any sort be performed without the presence of those former Records or the transcripts thereof which began with the Iustices of the peace it is therefore requisite that they doe make certificate of them unto those other Courts or officers that shall use the same 3. But as this certificate ought in some cases to be made by the Iustices of peace or their Clerke without any writ of Certiorari therefore directed and in some other cases they may spare to certifie untill that writ or some other commandement be brought unto them So also sometimes they are to certâ—fie and send up only a Tenor or Transcript as I have formerly said of the Record before them and sometimes the very Record it selfe must be conveyed from them 4. But in cases where Iustices of the peace have power to receive Endictments and no power to proceed any further upon them as in cases of Treason and some others which I have formerly declared there they ought to send up and certifie the Endictments themselves into the Kings Bench and that of duty without any Certiorari commanding the same because having none authority to heare and try the offences the Records thereof shall be unprofitable before them and therefore they can have no just cause to retaine them 5. And so if a man that is bound to keepe the peace and to appeare at the next Sessions of the peace doe make default of apparance the Recognisance it selfe together with the Record of that default must be estreated into the Exchequer that execution upon the Recognisance may be had there 3. H. 7. ca. 1. and so ought it if it be presented that the party hath forfeited his Recognisance by breach of the peace And likewise if it be presented before them that the chattels of a man attainted of felony be in the hands of another For in
yet it is not disputable by the Constable or other such officer but must be obeyed and executed by the Officer As if the Iu. of peace shall make his warrant to arrest one for the peace or good behaviour without cause the officer shall not bee punished for executing this Co. 10. 67. But if a Iu. of P. shall make his warrant to do a thing out of his Iurisdiction or in a cause whereof the Iustice of peace is no Iudge if the officer shall execute such a warrant here he is punishable for the officer is not bound to obey him who is not Iudge of the cause no more then a meere stranger And so note that the officer is bound to take notice of the authority and jurisdiction of the Iudge 22. Ass 64. Plo. 394. b. 41. If any man shall abuse the Iu. of peace his warrant as by casting of it into the dirt or treading it under his feete he may be bound to his good behaviour and may also be indicted and fined for it is the Kings processe 42. When any person commeth before the Iu. of peace by force of any warrant for the peace good behaviour or for a Riot or the like the party must offer sureties or else the Iu. may commit him 43. If a Iustice of peace shall grant his warrant to one to apprehend another for Treason or felony it shal be safe for the Iustice upon the delivery of his said warrant to take upon oath the examination of the said party that requireth the warrant or at least to bind him over by recognizance to give Evidence at the next gaole delivery against the offendour least that afterwards when the offendor shal be brought by the officer before the Iu. upon his said warrant or else happen to yeild himselfe to the said Iustice then the party that procured the warrant be gone 44. If the Constable or other officer upon a warrant received from a Iu. of peace shall come unto the party and require or charge or command him to goe or come before the Iu. this is no arrest or imprisonment and upon a warrant for the P. the officer ought first to require the party to goe before the Iu. before he may arrest him 45. But this arrest being in execution of the commandement of some Court or some officer of Iustice is expressed in their writs precepts or warrants by these words or the like sc Capias Attachias c. to attach arrest take bring or convay or cause to be attached arrested c. All which words do imply the taking and laying hold of the person 46. What persons To this arrest all lay persons under the degree of Barons or peeres of the Realme be subject and that by warrant from the Iustices of peace as you may see here tit Surety for the peace 47. But the Iu. of P. are not to grant their warrants for the peace or the like against any noble man And yet if a capias or attachment shal be awarded against a Baron or Peere of the Realme from the K. Iustices at Dublin for a contempt or in case of debt or trespasse the officer without any offence of Law may execute the same for that the officer is not to dispute the authority of the Court. 48. Ecclesiasticall persons also may be arrested and that by warrant from the Iustices of peace in some cases see more hereof in the Title Suretie for the peace A woman covert may be imprisoned by the Iu. of P. for a force or Riot committed by her 49. But otherwise of young Infants in such cases yet if an Infant of yeares of discretion cannot find sureties for the peace being demanded against him he shal be committed untill he hath found sureties 50. The liberty of a man is a thing specially favoured by the common Law of this land and therefore if any of the K. subjects shall imprison another without sufficient warrant the party grieved may have his Action of false imprisonment and shall recover damages against the other And the King also shall have a Fine of him For imprisonment of another without authority of the Law 51. Also by the statute of Magna Charta made 9. H. 3. ca. 29. No freeman shal be taken or imprisoned c. but by the lawfull judgement of his equals sc by the verdict of a Iury of 12. P. Accusat 1. 5. E. 3. ca. 9. good and lawfull men or by the Law of the realme Co. 10. 74. 75. And by this statute of Magna Charta Every arrest or imprisonment and every oppression against the Law of the land is forbidden and if any Iudge Officer or other person against the Law shal usurpe any jurisdiction and by colour thereof shall arrest imprison or oppresse any man it is punishable by this statute See Co. 10. 75. 52. Note that all jurisdictions ought to be either by Charter or by prescription Co. 11. 99. 42. Ass p. 5. 53. Also by the statutes of 25. Ed. 3. cap. 4. 42. Ed. 3. cap. 3. No person shal be taken nor put to answere unlesse it be by indictment or presentment of a Iurie before Iustices or matter of record or by due processe made by writ originall at the common Law 42. Ass 5. 42. Ass p. 5. 54. A Commission to arrest or take a man and his goods was holden to be against Law for that this ought to be either upon indictment or suit of the party or other due processe of Law Br. Commiss 15. 16. Faux Impris 9. 55. Neither shall any man commit another to prison except he he be a Iudge of Record Co. 10. 103. See Co. 3. 12. A. 56. And yet for misdemeanors done against the Kings peace the offendors aswell by the common Law as by diverse statutes may be arrested and imprisoned by the officers of justice and sometimes by private persons as hereunder followeth without either presentment or processe c. And these being by the Law of the realme are warranted by the aforesaid statute of Magna Charta 10. E. 4. 17. As every private man may arrest another whom he knoweth to have committed a Treason robbery manslaughter or other felonie and may deliver him to the Constable of the Towne where such an offendor is apprehended 9. E. 4. 28. Or in the Constables absence may imprison and set him in the stocks and if there be no stocks there it seemeth he may carry the offendor to the next Towne and deliver him to the Constable there Vide 9. E. 4. 28. or bring him before a Iustice of peace to be by him committed and examined 57. Also when a Treason or felony is committed every man may arrest suspitious persons that be of evill fame and if such person shall make resistance the other may justifie to beat him 58. But for the arresting of such suspitious persons note that there must be some Treason or felony committed indeed 59. Also the party
doe it though they dye for it or such like words or shall use any other behaviour in apparant disturbance of the peace then it seemeth to be a Riot and therefore where there is cause to remove any such nusans or to doe any like Act it is the safest not to assemble any multitude of people but only to send one or two persons or if a greater number yet no more then are needfull and only with meete tooles to remove cast or pull downe the same and that such persons tend their businesse only without disturbance of the peace for the manner of doing a lawfull thing may make it unlawfull Ibid. 27. Also the manner of doing an unlawfull Act by an assembly of people may be such and so handled as that it shall not be punished as a Riot as if I should assemble a meete company to carry away a peece of Timber or other thing whereto I pretend a right that cannot be carryed without a great number if the number be not more then are needfull for such purpose although another man have better right to the thing so carryed away and that this Act be a wrong and unlawfull yet is it of it selfe no Riot except there be withall threatning words used or other disturbance of the peace 28. The manner As there must necessarily be three persons at the least assembled together to make a Riot Dalton 204. c. so they being together and their demeanor must be such as shall or may breed some apparant disturbance of the peace either by threatning speeches turbulent gesture shew of armour or actuall force or violence to the terror of the peaceable sort of people or to the emboldening and stirring up of such as are busie headed and of evill disposition by such fact or else it can be no Riot c. for as I said before the manner of doing a lawfull thing may make it unlawfull sic è converso 29. And therefore if diverse in one company going to the church Ibid. faire or market shall goe armed or one going to the Sessions or other like assembly shall goe in harnesse to the terror of the people though he or they have no intent to fight or to commit any Riot yet this is a Rout by the manner of his or their going being needlesse disordered and against the Law see the statute 2. Ed. 3. ca. 3. 30. Cromp. 64. But in the former cases if they had gone in privie Coats of plate shirts of maile or the like to the intent to defend themselves from some adversarie this seemeth not punishable within these statutes for that there is nothing openly done in terrorem populi 31. One N. W. together with fourescore persons 31. El. came with spades mattocks pistols swords and daggers in the night to a peece of ground where Sir Thomas St. had made a great weare crosse over the river of Trent in the County of Notting to the great nusans of passengers there Cromp. 64. c. and there they made one or two litle Trenches to let the water passe c. and though it were lawfull to make the Trenches and to debruse the nusans yet for that they came with such number and weapons they were deeply fyned in the Star-chamber 32. Also a Lord of a Coppihold did enter with twenty persons 31 and 32. El. Cromp. 64. Dalton 204. and cut his Coppiholders corne with force for that his Coppiholder would not compound with him for his fyne and although the entry of the Lord was holden lawfull yet punishable as a Riot in regard of his number and force 33. In all cases where three or more shall enter into lands Cromp. 64. Dalton 205. c. with force upon the possession of another where their entry is lawfull yet it is a Riot by reason of the number and force for the statute of 5. R. 2. prohibiteth the entry with force or with multitude of people although the entry be otherwise lawfull What persons may commit a Riot CHAP. 52. 1. IF a number of women or children under the age of discretion doe flocke together for their owne cause this is no assemblie punishable by these statutes unlesse a man of discretion moved them to assemble for the doing of some unlawfull Act as Master Marrow held Cromp. 62. but yet certaine women that had apparelled themselves in mens apparell Dalton 205. and had pulled downe riotously a lawfull inclosure were worthily punished for the same in the Starchamber contrary to Master Marrowes opinion 2. Also women covert are holden to be within the statute of Mert. ca. 6. Co. 3. 72. 11. 161. for ravishment of wards and within the statute of Westm. 1. ca. 20. de malefactoribus in parcis and within the statute of 2. Eliz. ca. 2. for recusancy although they be not particularly named within any of this statute Co ibid f. bre 670. 4. E 4. 16. 3. Also if a woman covert shall commit any riot or doe any Trespasse or other wrong she is punishable for it and for a trespasse done by the wife or for a scandall published by her the action lieth both against the husband and wife sc an action of trespasse or of the case shall be brought against the husband and the wife and there the husband is chargeable to the damages or fyne because he is a partie to the action and Iudgement but if a woman covert without her husband be indicted of a Trespasse Co. 21. 61. b. riot or other wrong there the wife shall answere and be party to the Iudgement only and in such case the fyne set upon the wife shall not be levied upon the husband 22. Ass â—7 43. E. 3. 18. yet after the husbands death it seemeth such damages or fyne shall then be levied upon the wife her selfe and as for imprisonment or other corporall paine it shall be inflicted upon the wife only and not upon the husband for his wives Act or default Dalâ—â—n 205. 4. If a Mayor and Alderman or Bailiffe and Burgesses or the fellowes of any other society doe assemble in their common quarrell and make a riot or rout this shall be punished in their owne private naturall persons and not in the body politique Recognisance CHAP. 53. 1. A Recognisance is a bond of record testifying the Recognisor to owe a certaine summe of money to some other and the acknowledging of the same is to remaine of record and none can take it but only a Iudge or Officer of record 2. And these recog in some cases the Iu. of peace are enabled to take by the expresse words of certaine statutes but in other cases as for the peace and good behaviour or the like they may doe it of congruity without any expresse authority given them either by their Commission or by statute 3. Note wheresoever any statute giveth them power to take a bond of any man or to binde over any