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
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
me admonish all such as are to informe or beare witnesse against a prisoner or any offendour before a Iustice of peace or other Magistrate that they bee well advised what they testifie upon their oathes knowing that in such cases if either they should not speake the truth or should conceale any part of the truth they should offend against God the Magistrate the innocent the common wealth and their owne soules sc against God in despising of him and belying the truth Against the Magistrate in deceiving of him and causing him to doe Injustice Against the Innocent in spoiling him of his Name goods or life Against the Common wealth if the party be nocent or guilty and he cleares him by false witnesse And against his owne soule for it is perjury in him at least in the presence of God and good men Whether Information Evidence or proofe of witnesses shall bee taken against the King CHAP. 28. 1. IT seemeth just and right that the Iustice of Peace who taketh information against a felon or person suspected of felony should take and certifie as well such information proofe and evidence as goeth to the acquittall or clearing of the prisoner as such as makes for the King and against the prisoner for such information evidence or proofe taken and the certifying thereof by the Iustice of peace is only to informe the King and his Iu. of gaole delivery of the truth of the matter and such was the opinion of Sir Edward Coke at Lent Assises at Bury Dalton pag. 274. 5. Iac. as Master Dalton reporteth but the Iustices of peace or Coroner may not take such information evidence or proofe as maketh against the King upon oath for that is not warranted by the statute of 10. Caroli ca. 18. 2. Upon triall of felons before the Iustice of gaole delivery the said Iu. will often heare witnesses and evidence which goeth to the clearing and acquittall of the prisoner yet they will not take it upon oath but do leave such testimony and evidence to the Iury to give credit or to thinke thereof as they shall see and finde cause 3. Popham chiefe Iustice at Cambridge Assises tempore Eli. committed one to prison who upon the triall of a felon called out that he could give Evidence for the Queene and when he was sworne he gave Evidence to acquit the offendor 4. In 7. H. 4. we shall finde that one of the Serjeants Stamf. 141. b. as amicus Curiae Co. 4. 19. and to informe the Court that they should not erre did shew his opinion to the benefit of a prisoner upon the insufficiency of the Indictment 5. Now upon the examination of felons Causes of suspition and other like offendors these circumstances following are to be considered 1. His name scil if he be not called by divers names 2. Quality 1. His parents if they were wicked and given to the same kind of fault 2. His ability of body sc if strong and swift or weake or sickly not likely to doe the Act. 3. His nature of civill or hastie witty and subtill a quarreller pilferer or bloody minded c. 4. His meanes if he hath whereon to live or not 5. His trade for if a man liveth idlely or vagrant nullam exercens artem nec laborem it is a good cause to arrest him upon suspition if there have beene any felony committed 7. Ed. 4. 20. 6. His Company if Ruffians suspected persons or his being in company with any the offendors 7. His course of life sc if a common Alchouse-hanter or riotous in dyet play or apparell 8. Whether he be of evill fame or report 9. Whether he hath committed the like offence before or if he hath had a pardon or beene acquitted for felony before Nam qui semel est malus semper presumitur esse malus in eodem genere mali 3. Markes or Signes 1. If he hath any blood about him 2. If any of the goods stollen be in his possession 3. The change of his countenance his blushing looking downe-wards silence trembling 4. His answers doubtfull or repugnant 5. If he offred agreement or composition 6. The measure of his foot or horse foot 7. The bleeding of the dead body in his presence 8. If being charged with the felony or called theefe he saith nothing F. Cor. 24. 9. If he fled Fatetur facinus qui judicium fugit 4. The fact 1. Place sc if convenient for such Act as in a house in a wood Dale c. 2. Time the yeare day and houre early or late 3. Where the offendour was at the time of the fact and where the day or night before his businesse and company there and witnesse to prove all these 4. Manner if willingly by chance or necessitie 5. The cause 1. If former malice 2. If to his benefit or what hope of gaine 3. If for the eschewing of any hurt or danger 6. The persons Agens if principall or Accessary Enfant Lunatique c. Patiens if against the King common wealth Magistrate maister c. F. Cor. 211. 6. A felon brought before a Iustice of Peace accuseth others it is sufficient cause for the Iustice to grant out his warrant for the rest 7. A man going to execution accuseth another of felony it is sufficient cause to arrest him 8. Communis vox fama that he did the offence is sufficient cause of suspition Fama Br. Faux Impris 16. sc where such a felony is done otherwise not 9. But yet for the better conceiving what may breed or give just cause of suspition marke some of Master Bractons rules Stamf. 97. 1. For saith he Oritur suspitio ex fama fama vero quae suspitionem inducit oriri debet apud bonos graves non quidem malevolos maledicos sed providas fide dignas personas idque non semel sed saepius vanae autem voces populi non sunt audiendae And therefore where the common proverbe is Vox populi est vox Dei it should be Vox populi Dei est vox Dei 2. Si furtum in manu alicujus inveniatur vel sub potestate alicujus tunc ille in cujus domo vel potestate res furtiva inventa fuerit tenebitur Stamf. 29. nisi warrantum invenerit qui cum inde defendere possit for as another saith Cum adsunt testimonia rerum quid opus est verbis Stamf. 179. 3. Si quis noctu cubaverit in domo solus cum aliquo qui interfectus sit vel si duo aut plures ibi fuere hutesium non levaverit nec plagam a latronibus vel interfectoribus in defensione facienda accipere nec ostendunt quis de se vel de aliis hominem interfecerit his casibus mortem dedicere non possunt 4. Si quis in domum suam notum vel ignotum acceperit qui unius ingredit visus est Ibid. vero postea nunquam nisi mortuus dominus domus
as shall be living and within this Realme at the time of arraignement of such person so indicted shall be brought forth face to face before the party so arraigned and there shall testifie and declare what they can say against the party so arraigned if he require the same provided that if any person or persons shall hereafter happen to give any reliefe aide or comfort or in any wise be aiding helping or comforting to the person or persons of any that shall happen to be an offendor in any matter of case of praemunire or Treason revived or made by this Act that then such reliefe aide or comfort given shall not be judged or taken to be any offence unlesse there be two sufficient witnesses at the least that can and will openly testifie and declare that the person or persons that so gave such reliefe aide or comfort had notice and knowledge of such offence committed and done by the said offendor at the time of such reliefe aide or comfort so to be given or ministred 17. And now I have set forth the statutes of praemunire I will here also set forth some few booke cases and resolutions for the better explanation of those concurrent statutes 18. In 44. E. 3. a praemunire was brought against diverse 44. E. 3. fo 7. Br. praemunire 4. 8. H. 4. fo 6. Br. praemunire 6. some as principals and some as accessaries the principals made default and the accessaries appeared and demanded judgement if they should be put to answer before the principals were attainted and it was adjudged that they should answer for in a Praemunire all are principals and there be no Accessaries 19. If a man lease his vicarige for yeares or life paying rent 44. E. 3. fo 36. Br. praemunirc 5. and sue in the Ecclesiasticall Court for the recovery of this rent he is in case of a Praemunire for the rent reserved is a lay thing and not Ecclesiasticall 20. 9. E. 4. fo 3. Br. praemunire 9. In a Praemunire in the Kings Bench the opinion was that if a Clarke sue another man in curia Romana for a thing spirituall where he may have remedie within this Realme in the Court of the Ordinary that he is in case of a Praemunire quia trahit in placitum extra regnum 21. 5. E. 4. fo f. Note that the words of the statute are in curia Romana vel alibi which is intended in Curia Episcopi and therefore if a man be excommunicate or prosecuted in the spirituall Court for a thing which appertaines to the common Law hee that prosecuteth such suiâ— is in case of a Praemunire 22. A prohibition lieth often where a Praemunire lyeth not Br. praemunire 16. as of Tâ—thâ—s of great Trees or for Tithes of the seventh part a prohiâ—â—â—ion lieth and not a Praemunire for the nature of the action belongeth to the spirituall Court but not the cause in this forme but where it is of a lay thing or of a thing which never appertained to the spirituall Court of that a Praemunire lieth as of debt against Executors upon a simple contract or pro lesione fidei upon a promise to pay Ten pounds by such a day Doct. Student lib. 2. ca. 24. 2. R. 3. fo 17. Br. praemunire 19. 23. If Executors sue for the goods of their Testator in the spirituall Court they are in case of a Praemunire for in 34. H. 8. Richard Farmer was attainted in a Praemunire and forfeited his Fee simple land for ever for suing for the goods of his Testator in the spirituall Court 24. There be some opinions in 8. ass that a benefice donative by the patron onely is a lay thing 8. Ass pl 29. and the Bishop shall not visit nor deprive and therefore if he medle with it in that kinde he is in the case of a Praemunire and in that case was Barloe Bishop of Bath in the time of King Edward the sixth and was constrained to obtaine a pardon because he had deprived the Deane of Wels which was a Donative by the Kings letters pattents 25. I have beene more large in this Title because many men of great quality and good understanding in Ireland are very confident that the papall Iurisdiction never received any check or opposition in England or Ireland before the time of King Henry the Eight and therefore to make it to appeare to all men that will but open their Eyes to see the truth I have set downe the said ancient statutes and booke cases whereby it plainly appeareth that in the very height of poperie when prince and people Laitie and Clergy were of the popes religion yet in all ages of those very times the papall Iurisdiction was mainely opposed and utterly rejected and great and grievous penalties videlicet losse of lands and goods and perpetuall imprisonment was inflicted upon all such as should uphold or any wise maintaine that papall Iurisdiction within these Kingdomes of England and Ireland Purveyors CHAP. 49. 1. FOr the reformation of abuses oppressions committed by Purveyors diverse good Lawes and statutes have beene made in England which are of force in Ireland and because that the Iustices of peace are enabled to put many of those statutes in execution in part or in the whole I shall here expresse the effect of so many of them as I conceive the Iu. of P. have to doe withall which are these following 28. E. 1. articuli super cart c. 2. Without warrant vide the statute of 28. Ed. 1. articul super cart cap. 2. It is enacted amongst other things that if any make takings without warrant and carry them away against the will of the owner he shall be immediately arrested by the Towne where the taking was made and shall be sent to the next gaole and if he be attainted thereupon it shall be done of him as of a Theife Felony if the quantitie of the goods will warrant it 2. Also it is enacted in anno 5. E. 3. ca. 2. 5. E 3. ca. 2. that the takings and purveyances for the houses of the King the Queene and their children be made by praisements to bee made by the Constables Constable and other discreet men of the Townes where there shall be such takings and purveyances thereto sworne and without menace Oath as in the statutes of 28. E. 1. aforesaid and 4. E. 3. ca. 3. is contained and that betwixt the purveyors and them whose goods shall be taken there be in the presence of the Constables and praisers Talles Talles made and sealed with the purveyors seales by which talles satisfaction shall bee made to them from whom such goods shall be taken and if any taker or purveyor for the said houses doe take in any other maner he shall be incontinently arrested Arrest by the Towne where such taking was made and brought to the next gaole Impris Felony and if he be thereof attainted it shall be done
command you that you together with the petty Constables of the severall Townes Parishes and Hamlets within your Barony taking sufficient assistance out of the said Townes doe make a generall privy search within every of the said severall Townes Parishes and Hamlets upon _____ at night next comming for the finding out and apprehending of all Rogues Vagabonds and wandring idle persons in or about their said severall Townes and that such as shall be found and apprehended you doe cause them to be punished in every severall Towne or Parish where they shal be so apprehended by the petty Constables of every severall Parish respectively and by them also further to be conveyed according to the statute And if any of the said Rogues shall appeare to be dangerous or incorrigible that then you cause such to be brought before me or any other of his Majesties Iustices of peace to be further dealt withall according to the statute in such cases provided dated c. Afterwards any one of these Iustices may take the examination of or proofe against such dangerous Rogues finding cause may then commit such Rogues to the gaole and from thence he may by two Iustices of peace be sent to the house of correction A warrant for a fugitive servant Iohn Cuts Knight one of the Iustices of the peace of our soveraigne Lord the King c. To the Baliffes of the Barony of C. and to T.H. Constable of M. in the County of Dublin Dublin greeting Whereas E. L. hath beene retained to serve I. T. of M. aforesaid according to the forme and effect of a statute made for servants without just cause or licence of the said I.T. hath departed from his service Therefore on the behalfe of our soveraigne Lord the King I charge and command you and every of you that immediately after sight hereof you cause the said E.L. to be delivered to his said master to serve him and if he shall refuse so to doe that then you cause him to be convayed to his Majesties gaole of the said County of Dublin there to remaine untill he shall doe the same So that you may have him before me and the rest of my fellow Iustices at the next Sessions of the peace to be holden for the said County to receive such punishment as shall be then and there inflicted upon him sealed with my seale _____ dated c. Or thus in Latine Iohannes Cutts Miles unus Iusticiar Domini Regis c. Com. Dublin Ballivis Baroniae de C. et T.H. Constabular de M. in comitatu praed salut Quia E.L. retentus in servic I.T. de M. predict sibi serviend secundum formam et effectum statuti de servientibus edit à servitio pred I.T. sine causa rationabili et licentia ipsius I. T. recessit ut dicitur ideo ex parte Domini Regis vobis et cuilibet vestrum praecipio quod praef E.L. ad praefat I.T. magistrum suum deserviend deliberar faciat West â—78 Et si hoc recusaver tunc eum gaolae Com. praedict duci faciatis quousque c. Ita quod eum habeatis coram me et socijs meis Iustic dicti Dom. Regis in Com. praed ad prox sess pacis ibid. tenend ad faciend et recipiend ea quae ei tunc et ibid. in hac parte objicientur Sigill meo sigillat dat apud Another for the same Simon Steward Knight one of the Iustices of the peace of our soveraigne Lord the King c. To the Sheriffe of the County of Dublin Dublin and also to I.B. Constable of the Towne of B. and to R.N. Bailiffe Itinerant in the same County and to every of them greeting On the behalfe of our soveraigne Lord the King I command you and every of you that you or one of you attach the bodie of W.R. of B. aforesaid Labourer so that you or one of you have him before me and the rest of my fellow Iustices of our soveraigne Lord the King in the County aforesaid at the next generall Sessions of the peace to be holden in the aforesaid County to answer aswell to our said soveraigne Lord the King as to R.C. of c. Yeoman wherefore he being lately retained in the service of the said R. at T. in the County aforesaid from the said service before the end of the terme betwixt them agreed upon without just cause or licence of him the said R. hath departed in contempt of our soveraigne Lord the King and to the great damage of him the said R. and contrary to the forme of the statute in that case provided And that you or one of you have then there this precept witnesse c. Or thus in Latine Com. Dublin Simeon Steward Miles unus Iustic c. vic Com. pred Necnon I. B. Constabular vill de B. et R. N. ballivo itineranti in eodem Com. et eorum cuilibet salutem Ex parte dicti Domini Regis vobis et cuilibet vestrum mando Cromp. 238. quod attach seu unus vestrum attach W.R. de B. pred Labourer ita quod eum habeatis seu unus vestrum habeat coram me et socijs meis Iustic dict Dom. Regis ad pacem in Com. pred conservand Necnon et assign ad prox general sessionem pacis in Com. pred tenend ad respondend tam dicto Dom. Regi quam R.C. de c. Yeoman quare in servitio ipsius R. apud T. in Com. pred nuper retentus ab eodem servitio ante finem termini inter eos concordat sine causa rationabili et licenc ipsius R. recessit in Dict. Dom. Regis nunc contemptum et ipsius R. grave damnum et contra form statut inde edit et provis Et habeatis seu unus vestrum habeat ibi tunc hoc preceptum Teste c. A warrant for one refusing to serve Roger Millisent Knight one of the Iustices of the peace of our soveraigne Lord the King c. To R.L. Bailiffe of S. in the County of Dublin Dublin greeting On the behalfe of our soveraigne Lord the King I command you that you attach the body of R.A. of S. aforesaid Labourer so that you have him before me or my fellow Iustices of the peace in the County aforesaid at the next generall Sessions of the peace to be holden in the said County to answere aswell to our said soveraigne Lord the King as to B.C. of A. c. Yeoman wherefore he the said R.A. although he were often required to serve the said B.C. in a competent service for his estate yet notwithstanding he the said R.A. hath altogether refused to serve the said B.C. in contempt of our soveraigne Lord the King and to the great damage of him the said B.C. and contrary to the forme of the statute for servants in that case lately made and provided And see that you have this warrant there witnesse c. Or thus in Latine Rogerus Millisent
the discretion of the Court. 5. Ed. 3. cap. 10. Bribery 33. If any officer or minister of Iustice shall take any bribe to neglect the doing of his office or to doe his office falsely or corruptly he is to be punished by the common law by Fyne and imprisonment Conspiracy 34. If any Tradesman Artificers Labourers or servants shall combine and conspire not to worke or serve at the rates published by the Iustices of peace this is a misdemeanor at the common law and punishable by fyne and imprisonment 35. If any persons shall make any conspiracy or combination by colour of Iustice to take away any mans life malitiously without cause this is a high misdemeanor and to be grievously punished by the villanous Iudgement viz. imprisonment during life the offendours testimony to bee rejected his house to be rased his medowes plowed his woods to be rooted up and his person never to approch any of the Kings Courts 36. If any person or persons shall wittingly forge or cause to be forged any false deeds or writings or publish the same knowing them to be forged this is a misdemeanor punishable at the common law by Fyne and imprisonment and may bee so punished by the Iustices of peace but by a statute made in 28. El. cap. 4. in Ireland if it concerne Inheritance or Freehold of any lands or hereditaments it is punishable by Pillorie losse of Eares slitting the Nose forfeiture of land during life and perpetuall imprisonment but this punishment is to be inflicted by the Iustice of Assize or Iustice of Oyer and Terminer and not by the Iustices of Peace Offences of Omission CHAP. 6. 1. THe third sort of fineable offences are omissions Omissions in officers and others in not doing and performing such things as by the Lawes of the Kingdome they ought to doe for as the Lawes prohibit the doing of such things as are unlawfull so likewise they command the doing and performing of other duties which are for the preservation of the peace and good governement of the Common-wealth and therefore if Constables In Constables shall not set forth nor levie Huy and Cry after Felons and Traytors upon notice to them given this is a grievous offence of omission tending greatly to the prejudice of the Common-wealth and by the statute of 13. Ed. 1. ca. 1. 2. called the statute of Winchester to be punished by a great Fyne and imprisonment 2. If Constables shall bee negligent in the apprehending and punishing of Rogues Vagabonds and sturdy beggars and others that begge without licence or having Licences begge out of the limits appointed for them to begge in Such Constables for their neglects by a statute made 33. H. 8. cap. 13. in Ireland are to be punished by Fyne and imprisonment 3. If Constables shall be negligent in appointing the watch in every Towne by a statute made in 5. Ed. 4. cap. 5. in Ireland they are to be punished by a Fyne of three pence for every time that they shall faile in this particular 4. If Constables shall not doe their best endeavour to part an Affray and to see the Kings peace preserved and to apprehend the offendors and bring them before a Iustice of peace this is a neglect of their dutie and punishable at the common Law by fyne and imprisonment 5. If Constables shall not make search for idle and suspected persons and common gamesters that live idly and expensively having no meanes to maintaine themselves and bring them before a Iustice of peace this neglect is a misdemeanor at the common law and punishable by fyne and imprisonment 6. If Constables shall neglect or refuse to apprehend Felons or Traitors or to make search for them upon request or notice given them this is likewise a misdemeanor at the common law and punishable by fyne and imprisonment 7. If Constables or any other officers Neglect of officers others or ministers of Iustice shall refuse or neglect to execute the warrants of any Iustice of peace to them or any of them directed this is likewise a misdemeanor at the Common law and punishable by fyne and imprisonment 8. If any person or persons shall refuse to follow Huy and Cry after Felons and Traytors at the Constables command by the Statute of Winchester made Anno 10. Edw. 1. cap. 1. 2. they are to be punished by fine and imprisonment 9. If any person or persons shall refuse to assist the Constable to make search for and to apprehend Felons or Traytors or other suspected persons or to convey prisoners to the gaole or before a Iustice of the peace this is a misdemeanor at the Common Law and punishable by Fine and imprisonment 10. If any person shall refuse or neglect to keepe the watch when he shall be required by the Constable this is likewise a misdemeanor at the common law and punishable by fine and imprisonment Neglect of Towneships 11. If any Towneship shall permit and suffer sturdy beggers Rogues or Vagabonds to abide in or passe through their towneship without punishment or other impotent beggers which begge without licence The Towneship is to be punished in manner following viz. To be fined for every impotent begger 3 s.4.d and for every sturdy begger Rogue or Vagabond 6. s. 8. d. and this by the statute of 33. H. 8. ca. 15. in Ireland 12. Every Towneship ought to have stockes for the punishment of Rogues Vagabonds and sturdy beggers and likewise for the safe keeping of breakers of the peace and other malefactors untill they can conveniently be brought before a Iustice of the peace And also common and overt pounds wherein distresses are to be impounded and such towneships as shall want such stockes and common pounds are to be punished by fine at the discretion of the Iustice of peace 13. If any servant artificer or labourer Servants Labourers and Artificers shall refuse to worke or labour at the wages rated by the Iustice of peace or shall take more wages then according to the rates published by the said Iustices by the stat of 33. H. 8. cap. 9. in Ireland they are to be punished in manner following viz. To forfeit so much as they take above the rates and imprisonment at the discretion of the Iustices of Peace 14. All such as are idlers and will not labour at all and yet have nothing to maintaine themselves are to be enquired of presented and to be punished by the Common law by fine and imprisonment untill they finde sureties to labour or for the good behaviour at the discretion of the Iustice of peace 15. All defects of Bridges Defects of Bridges c. causeys and high-wayes are to bee presented in the generall Sessions of the peace and all such as ought to repaire the same whether it be the whole countie one or more Barronies Parishes or any one person in particular they are to be fined for their neglect herein by the common
insufficient by the greater part of the Iustices assembled for that purpose notwithstanding the words contra formam statutorum praedictorum were therein contained Collection Dyer 363. 50. Againe it is not safe to recite the dayes or places of the beginnings continuances prerogations or dissolutions of the Parliaments least by mistaking of any of them the whole Endictment fall to the ground thereby Ibid. 203. 51. Thus farre of these points by way of short rule and direction for the better imitation and practise whereof you may use the helpe of such formes of Endictments as the Appendix at the end of this worke will afford you Now let us with a few words consider what Endictments be receiveable by the Iustices of peace and what ought to be rejected by them Endictments to be received or rejected 52. Generally they may receive Endictments before themselves of all causes being either within their Commission or within the statutes whereof they have to enquire And they may also receive Endictments taken before the Sheriffe in his Turne so that the Turne be holden within the moneth after Easter or within the moneth after Michaelmas and so that those Endictments or presentments be indented and sealed betweene the Sheriffe and the Iurors and so that they be made by the oath of xij men at the least and that those Iurors be of good fame and legales homines that may dispend yearely xx s of freehold or xxvj s.viij.d of copihold W. 2. c. 14. 1. Ed. 3. ca. 17. 31. Ed. 3. ca. 14. 1. Ed. 4. ca. 2. 1. R. 3. ca. 4. And for this purpose the said statute 1. Ed. 4. ca. 2. binds the Sheriffe to certifie to the Iust of Peace at their next Sessions the Endictments found in his Turne or Law day The duty of Iustices about Endictments 53. Thus much for the better assistance of our Iustices of the peace I thought meet to say of Endictments not onely because they be the chiefe bases and groundworke whereupon the whole tryall is afterward to be built and framed but also because the Iustices being Iudges of the Court ought of office to see that the bils of Endictment have sufficient matter and forme in them 24. Ed. 3. 74. Of the impediments of proceeding upon Endictments before the Iustices of peace and therewithall of the Certiorari to remove Records CHAP. 9. 1. IT falleth out not seldome that when Iustices of the peace have taken an Endictment found before them they cannot proceed to hearing and determining upon it either because their Commission or some statute whereupon it is grounded giveth unto them no further power but only to enquire thereof or else because the Endictment is taken out of their hands by Certiorari and convayed to Iustices of a higher authority at the sollicitation and by the meanes of some parties grieved to the end that they may either traverse it above or there avoyd it for insufficiency of forme or matter 2. Albeit that in the removing of Pleas betweene party and party from inferiour to higher Courts by Tolt Pond recordare c. there was wont to be a probable cause alledged for which the same were removed yet in this case of the Crowne there needs no cause to be comprised in the writ of Certiorari because they all be the Courts of the King against whom the offence is committed and it breedeth neither injury to the offendor nor losse to any other person in what Court soever the offence be tryed 3. This Certiorari then may command either the Record it selfe or tenorem Recordi to be sent up and it ought to be obeyed accordingly for upon faile thereof first an Alias then a Pluries vel causam nobis significes And lastly an Attachment shall goe out against them that should send it as Master Fitz. noteth in his Nat. Br. fol. 245. but they use at this day to impose a fine upon Affidavit made of the delivery of the writ and refusall to certifie 4. And albeit the Certiorari be a Supersedeas of it selfe yet may the partie upon the Certiorari purchased have a Supersedeas also directed to the Sheriffe commanding him that he arrest him not upon that Record before the Iustices of peace Fitzh ibid. fol. 237. 5. This writ of Certiorari is usually directed to the Iustices of peace Lamb. li. 4. pag. 515. and yet as you have heard the Custos Rotulorum only hath the keeping of these Records but the ancient Commissions of the peace had no Custos Rotulorum specially named in them and then this certifying belonged to them all but now it belongeth to the Custos Rotulorum 6. Now if a Certiorari come to the Iustices of peace to remove an Endictment and the party sueth not to have it removed but suffereth it to lye still then the Iustices of peace may proceede notwithstanding the writ as Hubbert the Kings Atturney said in 6. H. 7. 16. For otherwise the tryall of a Felon if the Endictment were of Felony might be delayed and deluded also But yet Keble held opinion against him and was fearefull that in such a case it might prove felony to make execution of the felon after such writ received and to say the truth the Iustices ought of office to send it away because the writ contayneth in it selfe a commandement to them so to doe 7. And if a Certiorari come to the Iustices of peace to remove an Endictment and in truth the Endictment was not taken till after the date of that Certiorari yet if the Endictment be removed thereby it is good enough for that they both be the Kings Courts 1. R. 3. 4. and in such case it is now usuall to remove it 8. In the making of a Certificate The manner of the certificate upon this Certiorari the Iustices of the peace ought neither to omit that which doth authorize them nor to exceed that authoritie which belongeth unto them For on the one side if they certifie an Endictment of Felonie or of a Riot as taken coram Iusticiarijs ad pacem it was not thought enough without saying further Nec non ad diversa felonias c. and otherwise it was doubtfull whether the Endictee shall be quite dismissed or no because the Iustices of the peace had then no Record at all remaining with them for the Clerke of the peace maketh his Entrie accordingly and that Record which they sent up is insufficient And therefore the Clerke of the Crowne was forbidden to receive any such Certificate 12. H. 7. 25. 9. On the other side if they certifie an Endictment of felony not determined into the Kings Bench they ought not without warrant to certifie another Record of the acquittall of that Endictee for the same matter for nothing ought by them to be sent thither without warrant but that which is Executorie and needeth the help of that higher Court 8. Ed. 4. 18. 10. And if a Certiorari be to send up the
these and such other cases where they cannot of themselves proceed they ought to send the Records to such as have authority to determine upon them and otherwise they doe not discharge that duty which the words Salvis c. alijs ad nos indespectantibus in the Commission doe seeme to expect at their hands 6. Touching the Certiorari it is of force if it be made accordingly to remove not only Endictments or other executory Records wherein the Iustices of peace can goe no further and whereof I have spoken already but also the Records of causes fully and lawfully heard and determined by them to the end that they may be reversed and annulled in the Kings Bench if good matter and cause doe require it 7. For that preheminence hath the Kings Bench and all other the higher Courts to write to the Iustices of peace to certifie their Records that doe make for the tryall of causes hanging in them as you may read in 19. H. 6. 19. where the Iustices of the common place did send to the Iustices of peace for an Endictment because in a writ of conspiracy brought before them it was materiall to have it 8. And yet they of the common place doe not use to write for Endictments or such other Records unlesse they be thereunto induced by cause hanging in their owne Courts before them For otherwise the right way to remove them is by Certiorari out of the Chancery from whence they may be transferred by Mirtimus to any other Court 41. li. Ass pl. 2. per Knyvet chiefe Iustice Matters by severall Statutes specially appointed to be done and executed in the Quarter Sessions CHAP. 20. 1. VVEe have hitherto laboured and run over such things as are common to all generall Sessions of the peace and yet because there be certaine matters that are by severall statutes specially appropriated some to any and others to some one of the quarter Sessions it will not be amisse to set forth what Sessions is and ought to be called a quarter-Sessions 2. Every quarter Sessions is a generall Sessions of the peace and is styled generalis sessio pacis but other Sessions which are held upon speciall occasions although all the articles inquirable in the Sessions of the peace be given in charge are not quarter-Sessions nor to be styled generalis sessio pacis but only Sessio pacis c. 3. This quarter-Sessions is so called because it is holden quarterly viz. foure times in the yeare and the stat of 4. H. 7. cap. 12. calleth these foure quarter-Sessions principall Sessions for that in them chiefely the whole power and authority of the Iustices of peace doth shine and shew it selfe more then in other Sessions 4. These quarter-Sessions have beene appointed by severall statutes to be holden quarterly and at speciall times and therefore it will not be amisse for our better instruction to peruse such statutes as doe either in deed or in shew concerne this point 5. The stat of 25. Ed. 3. cap. 8. ordaineth That the Iustices of peace make their Sessions in all the Counties of England at the least foure times in the yeare viz. at the Feasts of the Annunciation of our Lady Saint Margaret S. Michael and S. Nicholas and also at all times that shall be needfull according to the discretion of the same Iustices 6. But this ordinance was altered as to the times by the Stat. of 36. Ed. 3. cap. 12. which ordaineth that in the Commission of the peace shall be contained that the Iustices of peace shall hold their Sessions foure times in the yeare viz. one within the Vtas of the Epiphanie the second within the second weeke of Lent the third betweene the Feasts of Pentecost and Saint Iohn Baptist and the fourth within eight dayes next after Michaelmas 7. But this is againe altered as to the times by the stat of 12. R. 2. cap. 10. which hath ordained that the Iustices of peace should hold their Sessions once in every Quarter of the yeare at the least without expressing any certaine time and hereupon as I conceive it gained the name of the Quarter-Sessions and ever sithence hath been so called For before this statute although foure Sessions were to be held yearely yet the same were not quarterly 8. But after this in Anno secundo H. 5. cap. 4. there was another stat made whereby it is ordained that the Iustices of the peace in every Shire named of the Quorum be resiant within the same Shire except Lords named in the Commission of the peace and also except the Iustices of the one Bench and of the other the chiefe Baron of the Exchequer Serjeants at Law and the Kings Attourney for the time that the same Iustices Chiefe Baron Serjeants at the Law and the Kings Attourney be attending and occupied in the Kings Courts or otherwise in some other place occupied in the Kings service and also make their Sessions foure times by the yeare that is to say in the first weeke after the Feast of S. Michael the first weeke after the Epiphanie the first weeke after Easter weeke and in the first weeke after the Translation of Saint Thomas the Martyr which is the third of Iuly and more often if need be 9. Now there are divers offences which by severall statutes are inquirable and some other things are to be done by the Iustices of peace for the well ordering of the Common-wealth only at the Quarter-Sessions because the Statutes themselves doe appoint the Quarter Sessions for the enquiring and doing of the same 10. The Statutes which doe appropriate divers matters to the Quarter Sessions or to some one of them are these that follow viz. 11. By the Stat. of 1. H. 7. cap. 7. unlawfull hunting in forrests parks and warrens with painted faces vizzards or otherwise disguised is to bee punished by Fyne to bee assessed at the next generall Sessions of the peace which is to be intended of the quarter Sessions which were publiquely knowne and not of any Sessions held upon speciall occasion 12. So likewise by the Stat. of 11. Iac. cap. 7. in Ireland the defaults for not amending of high-wayes according to that stat are to be punished at the next Quarter-Sessions 13. So likewise perjurie and subornation of perjurie are by the stat of 28. Eliz. cap. 1. in Ireland to bee punished in the Quarter-Sessions 14. Also by the statute of 11. Caroli cap. 4. in Ireland the Iustices of peace or the more part of them may at any Quarter-Sessions give order for the erection of houses of Correction and for stockes of money and all other things necessary for the same and for the governement thereof and such houses of Correction are to be purchased conveyed or assured upon trust to such persons as by the Iustices of peace or the more part of them in their Quarter Sessions of the peace shall bee thought fit and such Iustices may at their Quarter Sessions of the peace next after
a Iudgement Recognisance or Baile in the name of another S. 43 Ca. 24. Of Accessaries 1. No Accessaries in Treason but all are principals S. 1 2 3. 2. No Accessarie in a Praemunire S. 4. 3. Two sorts of Accessaries infelonies S. 5 6. 4. Who shall be said to be Accessaries and who principals Sect. 7 8 9. 5. Accessaries before the Felony S. 10 11 12 13 14 15 16 17 18. 6. Accessaries after the fact S. 19 20 21 22 23. 7. Relieving of a Felon not knowing of the felonie S. 23. 8. A wife relieving her husband S. 24. 9. What Acts shall make a man an Accessary after the fact and what not S. 25 26 27 28 29 30 31 32 33 34. 10. Accessaries to a Felonie done in another County S. 35. 11. Accessaries to a Felony by statute S. 36. 12. Accessarie to an Accessarie S. 37. 13. Accessarie not to be tried till the principall be attainted S. 38 39 40. 14. No Accessarie in Manslaughter Se defendendo or by misadventure S. 41. Ca. 25. Of certaine Rules concerning felonies 1. A felony committed in the time of one King the offendor may be tryed for it in the time of another King S. 1. 2. How a felon which is apprehended in one County shall bee brought to a Triall for a felony committed in another County and in what cases he may be tried in the County where he is apprehended S. 2 3. 3. Where stollen goods are stollen from the Thiefe that stole them the owner may charge either the first or second Thiefe with felony S. 4. 4. If Cloth or other things bee delivered to a Tayler to make apparell and be stollen from the Tailer the offendour may be charged either at the owners or Taylers suite S. 5. 5. If goods be stollen and the owner not knowne the offendour may be indicted quod bona catalla cujusdam hominis ignoti felonicè cepit and all men may be received to give Evidence S. 6. 6. What a Iustice of peace may doe when a Robberie is committed and the partie robbed will not accuse or prosecute the felon S. 7. 7. Vpon all Felons Huy and Cry ought to be levied who ought to follow the same and what punishment shall be inflicted upon them for that neglect and what a Iustice of peace may doe therein S. 8 9. 8. Where the Towne or Countrie shall be amerced for the escape of a murtherer or Manslayer S. 10 11 15. 9. How felons apprehended upon Huy and Cry ought to bee brought before a Iustice of Peace and by whom S. 12. 10. Levying Huy and Crie without cause S. 13. 11. The Kings officers may breake a house to apprehend any suspected of felony S. 14. 12. The dutie of Iustices of peace and Constables concerning the keeping a watch S. 15. Ca. 26. Of the forfeiture for Felonies 1. What the felon shall forfeit S. 1 2 3 4 5 8. 2. At what time the goods of a felon become forfeited S. 6 7. 3. Where the Towneship shall bee charged with felons goods Sect. 9. 4. What shall be adjudged a conviction in felony and other offences S. 10 11 12. 5. The difference betweene attainder and conviction S. 13 14 15 16. Ca. 27. Of Examination of Felons and Evidence against them 1. How and in what manner a Iustice of peace ought to examine aswell the felon as those that bring him before hee commit him to the gaole S. 1 2 3 4 28 29 30 31 32. 2. How and in what manner a felon may be bailed and by whom S. 5 6 7 8 9. 3. What the Iustice of peace ought to doe if the offendor confesse the felony S. 10 11. 4. What the Iustice of peace ought to do in case of Manslaughter Se defendendo or per infortunium or done by an Infant Lunaticke or the like S. 12. 5. What persons may be examined to prove a felony and bound to give Evidence S. 13 14. 6. What Evidence shall be good against the offendor and what not S. 15 16 17 18 19. 7. How restitution shall be made of stollen goods where the owner gives Evidence against the Felon S. 20 21 22 23 24 25. 8. No restitution of goods wayved where the felon is not knowne so as he may be indicted S. 26. 9. Examinations before a Iustice of peace in one County may be given in Evidence in another S. 27. Ca. 28. whether information evidence or proofe of witnesses shall be taken against the King 1. What Evidence a Iustice of peace may take by examination against the King and in what manner S. 1. 2. What Evidence shall be received in acquittall of the prisoner at his tryall and in what manner S. 2 3 4. 3. Circumstances to be considered upon examination of felons Sect. 5. 4. The confession of the felon before a Iustice of peace is no conviction S. 10. 5. In what cases halfe proofes are to be allowed and what are good causes of suspition S. 11 12 13 14 15 16. Of forcible Entries and detainer which containeth 9. chapters beginning with the 29 and ending with the 37 1. In what cases at the common Law forceible entries and detayners were tollerated S. 1 2. 2. Remedies against such force S. 3 4 5 6 7 54. 3. What a Iustice of peace ought to doe upon complaint to him of a forcible Entry S. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40 41 42. 4. How and in what manner the Iustice of peace must make restitution of the possession S. 29 30 31 34 35 36. 5. What Iustices may make restitution of the possession Sect. 32 33. 6. To whom the restitution shall be made S. 37. 7. Of what things restitution shall bee made and of what not Sect. 38. 8. What the Iustice of peace is to doe when the parties indicted tender a Traverse to the Endictment S. 33. 9. A Iustice of peace may punish the Sheriffe and Bailiffes for not returning sufficient Iurors to enquire of a force S. 43. 10. One Iustice of peace may proceede in forceible Entries Sect. 44. 11. Mayors of Corporations may doe the like in cases of forcible Entries as other Iustices of peace may doe S. 45. 12. How a Iustice of peace ought to proceede upon a writ out of the Chancery to remove a force grounded upon the statute of North-hampton S. 46 47 48. 13. How he may proceede upon that statute ex officio without such writ S. 50 51 52 53. Ca. 30. what is a forcible Entrie or holding within the statutes 1. Of the severall sorts of force S. 1 2. 2. Of the force prohibited by the statutes S. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22. 3. Of forcible detainer by policie S. 23 24 25 26. 4. Of forcible detayner S. 27 28 29 30 31 32 33 34 35 42 43 44 45 46 47 48. 5. Of forcible detayner by word S. 36 37 38
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
most worthy to be commended to the care of the Iustices of Peace 19. Iustices of peace at this day in Ireland are of two sorts and are appointed or created by two severall meanes videlicet The one by grant made by the King by Charter under the great seale By Charter Br. Commiss 5. as Mayors and chiefe Officers in divers corporate Townes And such the King cannot discharge againe at his pleasure but they shall continue and enjoy their Iurisdiction according as their Charters doe enable them And therefore if the King grant to a Mayor or other head Officer of a City or corporate Towne and to their Successors to bee Iustices of peace in their City or Towne and after maketh out a Commission of the peace to others there yet the authoritie and Iurisdiction of the Mayor c. remaineth good for that it was granted to them and their successors and is not revocable at the Kings pleasure as a Commission of the peace is And such Iustices of peace by Charter have thereby the same power that the Conservators of the peace had by the Common law And it seemeth such power also as is given to the Iustices of peace or to any one Iustice of peace by expresse words in any statute but none of them have thereby the whole power which is ordinarily given to the Commissioners of the peace by their Commission 20. The other sort of Iustices of peace are by Commission By Commission made of common course under the great seale and these are appointed by the discretion of the Lord Chancellour but the authority of these Commissioners of the peace doth determine by divers meanes yet more usually by three meanes First by the death of the King or by his Resignation of the Crowne Secondly at the Kings pleasure and that in two sorts Either by the Kings pleasure expressed as the King in expresse words may discharge them by his writ under the great seale or by Supersedeas 5. E. 4. â—2 Br Commis 1â— 12. Ass 2â— Br. Commis 13 Br. Commiss 20. â—â— but the Supersedeas doth but suspend their authoritie which may be revived by a procedendo Or by implication as by making other Commissioners of the same kinde and within the same limits leaving out the ancient Commissioners names 10. Ed. 4. 7. 3. Mar. 1. 21. But here the ancient Commissioners must have knowledge of such new Commission for this determination of the old Commission Br. Commiss 2. groweth not immediately by the making of the new Commission but either by giving speciall notice of the new Commission unto the old Commissioners Or else by and after the reading or proclaiming of the new Commission at the Assises Sessions of the peace or at the full County Or else by holding of some open Sessions by vertue of the new Commission in which two last cases the old Commissioners must take notice of the new Commission And in all these cases if the ancient Commissioners doe sit by vertue of their ancient Commission after such notice or publishing of the new Commission whatsoever such ancient Commissioners shall so doe is voide And contrariwise untill such notice or publishing of the new Commission whatsoever meane Acts such ancient Commissioners shall so doe by vertue of their ancient Commission the same are good in Law 34. Ass p. S. Br. Commiss 14. 22. 11. H. 6. ca. â— Also in all cases where an ancient Commission of the peace is determined by a new yet no proce's or suit depending before the old Commissioners shall be discontinued thereby neither shall any other thing done by the Iustices of the peace by force of their ancient Commission be made or become voide thereby Br. Com. 19. 21 Br. Offic. 15. 23. Note also that although by the death of the King or by his resignation the authoritie of all Iustices of peace yea and of all Iudges Dyer 165. Co. 7. 30. Br. Com. 5. Commissioners of Oyer and Termyner Commissioners of Gaole-delivery Sheriffes Escheators and other Officers that are by Commission doth cease yet Mayors and chiefe Officers in Citties and corporate Townes which have the authoritie of Iustice of peace or of the conservation of the peace by Charter to them and their Successors their authoritie still remaineth notwithstanding the Kings death or resignation 24. So also the authoritie of the high Constables and pettie Constables remaineth notwithstanding the death of the King c. for that their authoritie is by the common Law and to their said Office the conservation of the peace remaineth as a thing incident and unseparable from the same 4. E. 4. 44. Br Offic. 25. Dyer 165. 25. Coroners also do remaine Conservators of the peace within the County where they are Coroners notwithstanding the Kings death c. for they are made by the Kings Writ and not by Commission and their office and authoritie doth remaine untill they be removed by the Kings Writ and their office remaining the conservation of the peace remaineth as incident thereto Their oathes 26. Every Iustice of peace before he shall take upon him to exercise the office of a Iustice of Peace shall take two corporall oaths the one concerning the office of a Iustice of peace the other concerning the Kings supremacie 27. The oath concerning the office seemeth to be by force of the statute made 13. R. 2. ca. 7. the forme whereof as it now is followeth in these words viz 28. Ye shall sweare that as Iustice of the peace in the County of Dublin in all Articles of the Kings Commission to you directed you shall doe equall right to the poore and to the rich after your running wit and power and after the lawes and customes of the realme and statutes thereof made And ye shall not bee of Councell of any quarrell hanging before you And that yee hold your Sessions after the forme of the Statutes thereof made And the Issues Fynes and Amerciaments that shall happen to be made and all Forfeitures which shall fall before you ye shall cause to be entred without any concealement or imbesilling and truely send them to the Kings Exchequer ye shall not let for gift or other cause but well and truly you shall doe your office of Iustice of the peace in that behalfe and that you take nothing for your office of Iustice of the peace to be done but of the King and Fees accustomed and costs limitted by the statute and ye shall not direct nor cause to be directed any warrant by you to bee made to the parties but ye shall direct them to the Bailiffes of the said County or other the Kings Officers or Ministers or other indifferent persons to doe execution thereof So help you God c. 29. The parts of this Oath are shortly sixe 1. That they shall doe equall right to rich and poore and according to the lawes and statutes of the realme 2. That they shall not be of Counsell with any person
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
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
any evill intent happeneth to kill a man by the law of God there was a Citie of refuge appointed for such persons to flye unto Numb 35.15 22. Iosh 20.3 And by our law now this is no felony of death for he shall have his pardon of course for his life and lands but yet hee shall forfeit his goods in regard that a subject is killed by his meanes See Stamf. 16. a. b. Fitz. Coron 69. 302. 354. As if a Schoole-master in reasonable manner beating his scholler for correction only See Exod. 11. 20. 21. or a man correcting his child or servant in reasonable manner and the scholler Stamf. 12. c. childe or servant happen to dye thereof this is homicide by misadventure â—1 H. 7. 29. 6. E. 4. 7. 2. So if a man shooting at Buts prickes or other lawfull marke and by the shaking of his hand or otherwise against his will hee killeth one that standeth by Or if a Carpenter Mason or other person doth throw or let fall a stone Br. Coron 59. Tile or peice of Timber from an house or wood or other thing from a Cart c. and giveth warning thereof and another is killed thereby against his will Or if a labourer that is falling or cropping of a Tree 6. Ed. 4. 7. F. Coron 398. Plow 19. and the same or part thereof falleth and killeth a man Or if the head of his hatchet or other toole falleth from him and hapneth to kill one standing by Or if a man be in due and convenient time doing any other lawfull thing that may breed danger to such as passe by and shall give warning thereof so that such as passe by may heare and flie the perill and yet another passing that way shall be killed therewith 11. H. 7. 23. See Br. Coron 2 9. contra Or if men shall run at Tilt Iust or fight at Barriers together by the Kings commandement and one of them doth kill another In these former cases and the like it is homicide by misadventure and no felony of death 3. And yet in cases of misadventure as also where one killeth another Se defendendo by the common Law 21. E. 3. 17. Br. Coro 40. these offences were felony of death and the offendour should have dyed for the same But now by statute such offendors are to have pardon for their life and lands yet their goods remaine forfeit as before at the common Law See the stat 6. E. 1. c. 9. 2. E. 3. c. 2. 4. Also in these cases of misadventure Fitzh 246. c. 2. 8. â— Br. Cor. 1. ce fâ—at 6. E 9. 4. H. 7. f. 2. a. Regi fo 209. and in the former cases of homicide committed by Infants and other persons being Non compos mentis And also where one killeth another in defence of his person the ancient course was that they shall be discharged in this manner sc if they desire to purchase their pardon they must upon their tryall plead not guilty and shall give in Evidence the speciall matter and then this speciall matter being found by verdict they shall be bailed and then they must sue forth a Certiorari to have this record certified to the Lord Chancellor who thereupon shall make them a Charter of pardon of course under the great seale without speaking or sueing to the King for it See Stamf. 15. t. But now the usuall course is that without any Certiorari the Iustices of gaole delivery make a Certificate to the Lord Chancellor and thereupon the pardon is granted of course and in the case of Infants and Non compos mentis the Iudges receive a verdict of not guilty in which case there needeth no pardon neither is there any forfeiture of goods 5. But if a man be doing of an unlawfull Act Vnlawfull Act. though without any evill intent and he hapneth by chance to kill a man this is felony viz. Manslaughter at the least Stamf 6 c. if not murder in regard the thing he was doing was unlawfull As shooting of Arrowes Stamf. 12. c. or casting of stones into the high-way or other place whither men doe usually resort So of fighting at Barriers or running at Tilt or Iusts without the Kings commandement whereby a man is slaine And although it were by the Kings commandement yet it was holden felony by the Iustices Tempore H. 8. Br. Cor. 229. 6. Playing at hand-sword Bucklers foot-ball 11 H. 7. 2â— Crom. 26. b. 29. A. wrastling and the like where by one of them receiveth a hurt and dyeth thereof within the yeare and day in these cases some are of opinion that this is felony of death some others are of opinion that this is no felony of death but that they shall have their pardon of course as for misadventure for that such their play was by consent and againe there was neither former nor present intent to doe hurt nor any former malice but done onely for disport and tryall of manhood and this seemeth to be the better opinion 7. A man casteth a stone at a Bird or beast Fitz Coron 30â— 3â—4 and another man passing by is slaine therewith this is but manslaughter by misadventure And the opinion of Fineux chiefe Iustice in 11. H. 7. fol. 23. is that if a man cast a stone over a house and killeth a man See Numb 35. 23. Br. Cor. 229. this is no felony of death but misadventure but this is to be understood where there was no intention of hurt to any by casting thereof likewise some hold that to cast a stone for pleasure and not in lawfull labour whereby one is slaine Stamf. 12. c. 16. c. is felony of death and so was the opinion of Maister Bracton and Maister Stamford but I cannot conceive it to be any other then by misadventure when it is not done felleo animo Casuall death 8. Also a man may be slaine by other casualty than by the hands or meanes of another man as by the fall of a house or tree c. upon him or be killed by a Bull Beare or other beast c. or be killed by some fall which he himselfe taketh And in these and the like cases observe these rules 1. First if a man be slaine in any such manner yet if it be by the meanes or procurement or wilfull default of another man this shall be felony in the party procuring or causing it 2. The thing which is the cause of such casuall death shall be forfeit to the King as a Deodand and distributed in Almes by the Kings Almoner but the Almoner hath no interest as it seemeth in such goods but hath onely the disposition of the Kings Almes durante bene placito so that the King may grant them to any other See Co. 1. 50. Dyer 77. Flo. 260. 3. The forfeiture shall have relation from the stroke given so as the party or owner selling thereof sc of
such things as was cause of such death after the stroke given taketh not away the Kings right but that he shall have it as forfeited notwithstanding such sale Co. 5. 110. 4. Deodands are not forfeited untill the matter be found of record and therefore they cannot be claymed by prescription Co. 5. 120. F. Cor. 298. Stamf. 21. 5. The Iury which finde the death of the man must also finde and appreise the Deodand and the same shall be levied of the Towne where it happeneth although it were not committed to the Towne to keepe and therefore it behoveth the Towne to see it forth comming See the statute de officio Coronatoris 4. Ed. 1. F. Cor. 289. Stamf. 21. 6. If he that is so slaine be under 14. yeares of age nothing shall be forfeit to the King as Deodand for him by some opinions but I cannot conceive those opinions to be Law 7. And if a man that is unknowne be found dead in the field his apparell and money about him shall be given to the poore P. indictment 27. Stamf. 21. c. And if he were knowne then his goods shall be delivered to his executors or administrators or to the ordinary but shall not be taken as a Deodand in either case for they are not of the nature of a Deodand they being no cause of his death Dyer 77. Co. 5. 110. 8. Next what shall be forfeited and taken for a Deodand The old rule is Omnia quae movent ad mortem sunt Deodanda And yet Deodands may be of some things that a man shall move or fall from though the thing it selfe moves not Deodand quid as to fall from a ship Cart Mow of Corne or Hay c. So as Deodands are any goods which doe cause or are occasion of the death of a man by misadventure See Fitz. Coron 314. 326. 341. 342. 348. 388. 389. 398. 401. 409. 9. If a man killeth another with my sword or other weapon of mine my weapon shall be forfeited as a Deodand Doct. Student fo 156. B. 10. The inquiry of such casuall death belongeth also to the Coroner but if the Coroner cannot have the sight of the body and so cannot inquire thereof it seemeth the King shall be intituled to the goods by a presentment at the quarter Sessions or at the generall Assizes or in the Kings Bench or else the King may be defrauded Homicide upon necessitie CHAP. 15. 1. Commanded SOmetimes the Iustice of Law commandeth a man to be put to death As when the Iudge hath pronounced sentence of death against an offendour attainted by due course of Law there in execution of Iustice an officer or other person thereto lawfully deputed may orderly execute such judgement or sentence according to his warrant and such sentence or judgement pronounced by the Iudge and after lawfully executed by the officer leaveth the name and nature of murder or homicide and is called justice or rather judgement which is the lawfull execution of Iustice Stamf See Doâ— Stuâ—ent fo 133 But if the officer or other person shall proceede therein upon his owne authority without warrant or ordine juris non observato as where an offendour hath judgement given upon him to be hanged if the Sheriffe or other officer c. shall be head him or by other meanes put him to death it is felony in such officer c. 2. Also if a stranger Stamf. 13. being not thereto lawfully deputed shall upon his owne authority put to death an offendor that is condemned to dye this is felony Nay if the Iudge himselfe who gave the judgement of death upon an offendor shall after put the same offendor to death it is not justifiable by him 3. Tollerated Sometimes also the Iustice of Law tollerateth and suffereth a man to be slaine sc for the necessary execution and advancement of justice which otherwise should be left undone And in such case the Law of the land imputeth it not as any fault to him that shall so kill a man but freely dischargeth him thereof without the K. pardon As a Sheriffe Bailiffe F Cor. 261. Stamf. 13. or any other person who hath a lawfull warrant to arreast a man indicted of felony or Treason may well justifie the killing of him if he will not suffer himselfe to be arrested and yeild himselfe and that they cannot otherwise take him F. Cor. 261. Stamf. 13. And so every person whatsoever without any warrant may apprehend a felon or a Traitor upon huy and cry or otherwise and if he will not yeild to be arrested but shall resist or flie the pursuer may kill him without blame 4. Herewith also agreeth the Doctor and Student lib. 2. cap. 41. saying If any person that is no Officer would arrest a man that is outlawed abjured or attainted of Murder or of any other felony and such offend or shall disobey the arrest and by reason of that disobedience he is slaine the other shall not be impeached for his death For it is lawfull unto every man to arrest and take such persons and to bring them forth that they may be ordered according to the Law 5. An offendor in felony or Treason is led towards the Gaole and breaketh away from those that conduct him and maketh resistance or flyeth his conductors may justifie to kill him F. Cor. 288. 328. if they cannot otherwise take him againe 22. Ass 55. 6. A prisoner in the gaole attempteth to escape and having broken his Irons striketh the Gaoler comming in the night to see his prisoners and the Gaoler slayeth such a prisoner this is no felony 7. Riotters and such as shall make any forceible Entrie or deteyner Cromp. 23. 30. 158. against the statutes if they shall resist the Iustices of peace or other the Kings officers or shall not yeild themselves but shall stand at their defence when the Iustice of peace or other Officer shall come to arrest or remove them if any of them happen to be slaine this is no felony in the Iustice of peace or officer or in any of their company that killeth such Riotters c. Cromp. 24. 30. 8. The Sheriffe or his Bailiffe or other officer commeth by vertue of the Kings processe to arrest another for debt or trespasse who maketh resistance Doct. Student 133. and thereupon is slaine by such officer or any of his company this hath been taken to be no felony Stamf. 13. c. f. g. 9. But in all these former cases there must be an inevitable necessity sc that the offendor could not be taken c. without killing of him 7. H. 6. 21. 10. Also in an Appeale of felonie if the Appellant and Appellee doe joyne to try it by battell and therein the one doth kill the other as the law doth allow such tryall so doth it allow the Event to bee justifiable as depending upon the judgement of God
dyeth of that stroke this escape is no felony either in the Constables or in the prisoner yet the Constables shall make a great Fine yea they shall be fined to the value of there goods as it seemeth by 11. H. 4. 12. and Stamf. 35. h. because this escape was voluntary Cromp. 39. 18. The voluntary suffering him to escape who hath killed another Se defendendo or by misadventure or of him that hath committed pety Larceny seemeth not to be felony for that these offences are no felony of death but he that suffreth such an escape shall be fined only Cromp. 39. but if the prisoner be committed for manslaughter or for felony generally it seemeth the escape wil be felony for the Gaoler is not to judge what manner of felony it is Stamf 35. k. 19. A man was taken for suspition of felony and was delivered to the Constable of C. and after escaped for want of good keeping and the Constable was therefore taken and arraigned and pleaded that for asmuch as the felon was not taken with the manner nor at the suite of the party nor indicted of felony therefore it was no escape c. And so was the opinion of the Court then in 42. Ass p. 5. Br. Escape 29. But the contrary was after holden although the prisoner were taken onely upon suspition 44. Ass p. 12. Br. Escape 31. but there it was holden to be but fineable 3. Ed. 1. c. 4. P. Escape 2. Stamf. 35. c. 20. Note also where one is a prisoner by arrest only and he doth escape there the escape shall be presented before the Iust of peace or other Iustices having authority to enquire of the escape before he that suffered the escape shall answere it 21. Note also if a man be arrested for felony by the Constable or other person 1â— H. 7. 7. Cromp. 40. P. R. 151. 152. and after they shall have intelligence that there is no such felony committed here they may set the party arrested at liberty againe and they shall not be charged with the escape for there can be no felon where there is no felony committed 44. Ass 12. Cromp. 40. 22. But if a man be slaine or that there be any other felony committed and one is arrested for the same felony or for suspition thereof though he that made the arrest shall after have intelligence and certaine knowledge that the party arrested is not guilty of that offence yet he or any other may not set the party so arrested at liberty for now he must not be delivered by any mans discretion but by course of Law otherwise it will prove a voluntary escape and so felony or at least fineable 23. 25. Ed. 3. 39. If a Iustice of peace shall send for a felon out of the Gaole and shall deliver him without baile this seemeth to be a voluntary escape and so felony in the Iustice Otherwise where the Iustice erreth pro defectu scientiae as to baile one that is not baileable this is but a negligent escape Felonies by statute CHAP. 23. 1. BUggery committed with mankinde Exod. 12.19 Levit. 18.23 or beast is felony without benefit of Clergie it being a sinne against God nature and the Law 2. Congregations and confederacies holden by Masons 10. Caroli in Ireland ca. 20. P. Fel. 22. P. Felon 19. 5. H. 4. ca. 5. is felony in the causers thereof and fineable in the Masons 3. H. 6. ca. 1. 3. Cutting out of any the Kings subjects tongues or putting out their Eyes of malice is felony 5. H. 4. ca. 5. 4. Conjuration or Invocation of any evill spirrit for any intent 28. El. ca. 3. in Ireland c. or to be counselling or ayding thereto is felony without benefit of Clergie See Exod. 22.18 5. Also to use or practise Witch-craft Inchantment Charme or Sorcery whereby any person shall be killed or to be counselling or ayding thereto is felony without benefit of Clergy 6. Also the second time to practise Witch-craft c. whereby any chattell or goods shall be destroyed or impaired or whereby any person shall be hurt or pined in his body is felony without benefit of Clergy 7. Now against these Witches the Iustices of peace may not alwayes expect direct evidence seeing all their workes are the workes of darkenesse and no witnesses present with them to accuse them And therefore for their better discoverie I thought good here to insert certain observations out of the book of discovery of the witches that were arraigned at Lancaster Anno Dom. 1612. before Sir Iames Altham and Sir Edward Bromeley Iudges of Assise there which are these following viz. 1. These witches have ordinarily a familiar or spirit which appeareth to them 2. Their familiar hath some bigg or place upon their body where he sucketh them 3. They have often pictures of Clay or waxe like a man c. found in their house 4. If the dead body bleed upon the witches touching it 5. The testimony of the person hurt upon his death 6. The examination and confession of the children or servants of the Witch 7. Their owne voluntary confession which exceeds all other Evidence 8. H. 6. 12. P. Fel. 18. 8. Also the Embezeling of any Record or parcell thereof writ Returne Panell Processe or warrant of Atturney in the Chancery Exchequer Kings Bench Common place or Treasury by reason whereof any Iudgement shall be reversed is felony in the parties their Counsellers procurers or abettors 2. R. 3. fo 10. Co. 11. 34. See 8. R. 2. ca. 4. 9. So the rasing of such record is felony within the said statute of 8. Hen. 6. yet if a Iudge doe imbezell or rase a Record this is but misprision in the Iudge 2. R. 3. Br. Coron 174. Treason 31. 10. But it seemeth the Iu. of P. cannot enquire of nor heare and determine these two last sorts of felonies sc imbezeling or rasing of records for that these felonies are committed to other Iudges to deale with by the same stat of 8. H. 6. P. Records 4. but what is fit for the Iustice of peace to doe herein I have before in the chapter of felony declared 11. Forestalling or buying any forraigne Marchandises before they come to the Staple c. was made felony by the statute 27. Ed. 3. cap. 11. but by 2. R. 2. ca. 2. it was repealed and made punishable againe according to the statute of 25. E. 3. ca. 3. which is by 2. yeares imprisonment or forfeiture of the value of the thing forestalled 12. Forging of evidences sc of any deed Charter obligation Bill P. Fel. 26. 28. El. ca. 4. in Ireland release or other writing sealed or of any Court Roll or will or of any acquittance or to cause or assent to be made any such forged writing or publishing any such writing knowing the same to be false The second offence is felony without benefit of Clergy But it seemeth also that the
Peace there he shall be by the Iustice imprisoned in the gaole of the County where he is taken and after shall be removed by the Kings writ into the gaole of the County where he committed the felony but for those that do informe against such felons the said Iustice shall binde such Informers over to appeare and to give Evidence against such felons at the next generall gaole delivery to be holden in that County where the tryall of such murder or felony shall be whither also the said Iustice must certifie such information taken by him 3. If a man committeth a robbery or stealeth a horse 4 H. 7. 5. â—4 H 8. Br. Cor. 171. Co. 7. 2. beast or other goods in one County and doth carry leade or drive the goods into another County it is felony in every County whither he doth carry or drive those goods and the offendor may be indicted or appealed of felony or theft and be arraigned and have his judgement in any of those Counties but the offendor cannot be appealed or indicted of robbery but only in the County where the robbery was done for it is not robbery in any other County for Robbery must be done to the person of a man 4. If a felon doe steale another mans goods 11. E. 4. 3. 4. H. 7. 5. and after another stealeth the same from him the owner of the goods may charge the first or second felon at his choice 5. P.R. 130. Also if a man shall deliver cloth to a Taylor to make a garment if the cloth be stolne from the Taylor the offendor may be charged and indicted for stealing the same either at the owners suite or at the Taylors 6. Also an indictment may be Dyer 99. Quod bona Catalla cujusdam hominis ignoti felonice cepit and in such case any man may both informe the Court and by their direction may preferre an indictment against the felon and give Evidence to the Enquest therein And so if the owner be knowne and will not charge the felon therewith any other person especially after proclamation made in the Court that if any will enforme for the King Stamf. 163. he shall be heard may safely informe the Court preferre an indictment and give in Evidence for the King against the felon because it is for the K. advantage to have the forfeiture of the felons goods and in the two former cases if the Iu. of P. shall heare of any person that can informe any materiall thing against such a felon or against any felon the Iu. in his discretion may send for him take his information and may bind him to give evidence against such felon Dalton pag. 265. 7. Also if any robbery or Theft be committed and the party robbed or other owner of the goods will not charge the felon therewith yet every Iust of P. may cause such felon or any person suspected for such felony to be apprehended and may examine them thereof and also may send aswell for the party robbed c. as for all such other persons as can informe any thing materiall concerning the said felony and may take their informations upon oath and if upon such examination he shall finde cause the said Iustice may commit the offendors and binde over the informers 8. Note also for the better prevention and apprehending of felons that upon all homicides Huy Cry 3. E 1. c. 9. burglaries robberies and other felonies and when men are put in great danger Huy and Cry shall be levyed P. Fel. 38. Huy Cry 1. and every man shal I follow the Huy and Cry and whosoever doth not shall be attached to appeare before the Iu. of gaole delivery and any Iu. of P. may bind them over by the Commission of the peace 3. Ed. 1. c. 9. yea upon any felony committed all men generally shall be ready at the commandement of the Sheriffe or Constable and at the cry of the countrey to pursue and arrest felons upon paine to bee grievously fined 13. Ed. 1. c. 1. 2. 28 E. 3. c. 11. 9. And such Huy and Cry and pursuit shall bee made from towne to Towne and from Countrey to Countrey and shall be made by horsemen and footmen and in case of robbery if none of the felons be taken within Forty dayes after the felony committed 11. Caroli c. 13. in Ireland then the whole hundred where the robbery was done shall answere for the robbery done See Br. deâ— 104. and the damages but yet the inhabitants of any other hundred wherein negligence fault or defect of pursuit and fresh suite shall happen to be shall answere and satisfie the one moitie and halfe of all and every such summes of money and damages 3. H. 7. c. 1. Co. 7. 6. b. 10. And if a man be slaine in the day time in a Towne not walled and the murderer or manslayer escape the whole Towne shall be amerced for this escape But if it be in a City or Towne walled then if the murder or manslaughter were by day or by night they shall be amerced for the escape Fitz. Coron 238. 293. 302. Stamf. 33. l. 3. H. 7. 1. P. Coroners 13. 11. And if a man be slaine in the day time out of any Towne then the hundred shall be charged therewith and for the insufficiency of the hundred all the County shall be charged c. Stamford 34. f. yet see Dyer 210. b. that the towneship shall be amerced for the escape although the murder were committed in the fields of the Towne or in a lane c. and the Iust of P. are to inquire of such escapes and to certifie the same into the K. Bench. P. Iustices 19. 12. Also every man is a sufficient Bailiffe and officer to apprehend him that is pursued by Huy and Cry P.R. 156. and if he be taken with the thing supposed to be stolne though he neither be of evill fame nor a stranger yet every man may commit aswell such suspected person as also such goods to the Towne where they be apprehended to answere to the King according to the Law And the Constables of the Towne are to carry before some Iustice of peace aswell such prisoners as also the bringers that the Iustice may take there Information against such prisoner and may examine and commit such offendor or person so suspected 13. Dalton pag. 266. But if a man doe levy Huy and Cry upon another without cause both the one and the other shall be attached and carryed before a Iu. of P. to answere it as disturbers of the peace and to be bound to their good behaviour 14. Note also that the Kings officer may breake open any mans house to apprehend any felon 9. Ed. 4. 9. Co. 5. 92. or any person that is suspected of felony being in the said house 15. Watch. And for the better detecting and apprehending of such offendors in great Townes
and every Iustice and Iustices of Assize shall for ever hereafter in their severall circuits respectively have the like power and authority to all intents and purposes to inquire heare and determine of all forceible Entries and forceible holding and all other offences aswell against the said statute of Octavo of King Henry the sixt as against this present statute and to award restitution of possession in all cases as any other Iudge or Iustice or Iustices of the peace could or may doe by this Act or by any other Statute of force within this Realme 23. Now to shew something more what the Law accompteth to be force and what weapons Weapons be offensive in these and the like cases Master Bracton saith Omnes illos dicimus armatos Dalton 186. qui habent cum quo nocere possunt and therfore to have harnesse guns Bowes and arrowes Crosbowes halberts Iavelins bils clubs pikes pitchforkes or swords not usually borne by the parties shall be said to be vis armata 24. Againe Si quis venerit cum armis dejecerit vis tamen armata dicitur sufficit enim terror armorum Si quis venerit sine armis in ipsa concertatione ligna sumpserit fustes aut lapides vis dicitur armata 25. And so to use casting of stones hot coales scalding water or lead or any other thing wherewith one may hurt the person of another shall be said to be vis armata 26. Next where a force Lawfull force or forceible defence is justifieable and where not 27. Force being opposed against the Law is utterly forbidden but being used in the maintenance of the Law and with the warrant of Law it is allowed for that it mainetaineth the peace of the realme P.R. 41. Dalton 186 And therefore force may lawfully be used by all the Kings officers ministers and subjects thereunto deputed for the execution or advancement of Iustice or of the judgements of the Law 28. And so first it is a lawfull force Ibid. whereby all offendors in Treason felony and other great crimes be pursued apprehended carryed to prison and receive their condigne punishments 29. Ibid. It is also a lawfull force whereby the Sheriffe and his officers doe apprehend any person by vertue of the Kings writ 30. 3. H. 7. And so it is a lawfull force whereby Iustices of peace doe remove unlawfull entries or holdings of possessions Br. Riots 73. and represse Riotters and doe arrest and send to prison such offendors And in these and the like cases the Kings officer scil the Sheriffe Iustice of peace and Constable may take the helpe of others what number they shall thinke meete to assist them when need shall require 31. Also it is a lawfull force which Iustices of peace Sheriffes Dalton 186. Coroners and Constables shall use in apprehending or committing to prison such as within their severall jurisdictions and in their presence shall in any sort breake or attempt to disturbe or breake the peace and they may therein take the assistance of others as aforesaid 32. Also in these cases following it is lawfull for the K. officers P.R. 41. by force to breake open a mans house to arrest offendors being therein if the doores be all shut so as the officer cannot otherwise enter the house viz. 33. For the apprehending of any person for treason felony Co. 5. 92. or suspition of felony or Treason 13. E. 4. 9. Br. Coron 159. Dalton 187. 34. Where one hath dangerously wounded another and then flying into an house the Constable or other officer upon fresh suite may breake open the doore and apprehend the offendor and so may any other person besides the officer as it seemeth 7. E. 3. 19. Crom. 171. Ibid. 35. Where there shall be an affray made in a house and the doores shut the Constable c. may breake into the house to see the peace kept Ibid. 36. So upon a forceible Entrie or detainer found by Inquisition before any Iustice of peace or viewed by the Iustice himselfe or the Sheriffe by his warrant may breake into the house to apprehend the offendors Ibid. 37. Upon a Capias utlagatum in any personall action as also upon a Capias pro fine directed to the Sheriffe the Sheriffe may breake open the doores c. Ibid. 38. Upon a warrant for the peace or good behaviour the Constables may breake open the house by the opinions of Popham and Clerke Iustices of Assise at Cambridge Assises 3. Iac. Reg. 39. Lastly in all cases where the K. is a party or hath Interest in the businesse Co. 5. 91. 13. Ed. 4. 9. the officers may breake open the doores as aforesaid For no mans house shall be a Castle against the King Co. 5. 91. And yet the Sheriffe nor his officers may not breake open any mans house to execute the Kings proces upon the body or goods of any person at the suite of any subject Co. 5. 92. 95. 40. But when a house is recovered by any reall action or by ejectione firmae there the Sheriffe may breake the house and deliver seisin or possession to the demandant or plaint for after judgement it is no more in the right or judgement of Law the house of the tenant or defendant Co. 5. 91. 41. But note that the officer before he breake open the house or doores of any person Co. 5. 91. he must first signifie the cause of his comming and desire that the doores may be opened unto him Co. 5. 91. 11. 82. 21. H. 7. 39. 42. Note also though no man may forceibly keepe his house against the Kings officers in the cases aforesaid yet every mans house is to himselfe Forceible de fence lawfull his familie and his goods as his Castle aswell for his dâ—fence against injury and violence as also for his repose and rest And therefore the Law doth give to dwelling houses diverse priviledges 1. First that it is a mans Castle for his defence as aforesaid 2. Also a mans house hath the priviledges to protect him against any arrest by force of any processe at the suite of any subject as aforesaid Co. 11. 8. 3. A mans house in some cases hath a priviledge against the Kings prerogative for it hath beene adjudged that Saltpetermen cannot dig in the mansion house of any subject without his assent in regard of the danger that may happen thereby in the night time to the owner his familie and goods by theeves and other malefactors Co. 11. 82. 4. If Theeves shall come to a mans house to rob or murder him Co. 5. 91. 11. 82. he may lawfully assemble company to defend his house by force and if he or any of his company shall kill any of them in defence of himselfe his familie his goods or house this is no felony neither shall they forfeite any thing therefore 5. Cromp. 70 Also a man that is
restitution if hee shall continue a peaceable posses againe for three yeares together then it seemeth he may justifie the Deteiner of the posses thereof by force by vertue of the Proviso in the stat of 8. H. 6. 5. If a Disseisor hath continued his possession peaceably three yeares and after the disseisee doth reenter 23. H. 8. Br. force 22. or doth make his claime so neere as he dareth and then the disseisor reentreth againe or continueth his possession after such claime here the disseisor cannot justifie to hold the same with force Lit. 429. for by the reentry or claime of the disseisee the first disseisin and possession of the disseisor was determined and the disseisor is in of a new disseisin 6. Also if he that hath been a lawfull possessor of lands by the space of Twenty yeares together be once clearely and wholly removed from the possession of the same land hee cannot come with force or multitude to put himselfe in possession thereof againe and to detayne the same with force because his possession was once interrupted and if he be indicted upon the statute of 8. H. 6. for such Forceible Entry he shall not be relieved touching the restitution by the stat of 10. Carol. for that hee had not the occupation of the said lands nor had been in quiet possession thereof by the space of three yeares together next before the day of such indictment found How many severall remedies the party hath which forceibly is either put out or kept out of the possession of his houses or lands CHAP. 33. 1. FIrst the party so grieved having an estate for life Action upon the statute of 8. H. 6. 1. R. 2. ca. 9. 8. H. 6. ca. 9. F. N. B. 348. c. c. 249. 2. co 10. 115. in Taile or Fee may have his Assise or action of trespasse of Forceible Entry upon the statute of 8. H. 6. against such disseisor and therein if the defendant be attainted of force he shall fyne to the King and also answere to the plaintiffe his treble damages and treble Costs of suit and also the plaintiffe shall thereupon have a writ of restitution to restore him to his former estate 2. But this action being the suit of the party and onely for the right 9 H. 6. 16. this remedy by action is only where the Entry of the defendant was not lawfull Fitz. 248. h. for if a man entreth with force where his Entry is lawfull as if the disseisee shall enter upon the disseisor with force he shall not bee punished by action But yet he may be indicted upon the statute Br. force 29. and upon such indictment found the party put out shall be restored for the indictment is for the force and for the King and here the offendor shall make fyne to the King although his right be never so good Br. Force 11. 3. Also the party so grieved if hee will loose the benefit of his treble damages and costs Writ upon the statute of Northampton he may be aided and have the assistance of the Iustices of peace and that after diverse sorts first he may purchase a writ out of the Chancery directed to the Sheriffe only or the Sheriffe and Iustices of peace and to every of them for to remove the force and this is upon the statute of Northhampton 2. E. 3. cap. 3. the forme of which writ you may see F. N. B. 249. f. Cromp 74. 162. 4. But upon this writ the Iustice of peace is to proceed only as a minister and is to certifie his doings herein and that Iustice of peace to whom the writ shall be delivered ought for to execute it scil he may remove the force but here he may not put the party in possession againe who was put out Indictment in Sessions 5. Also the party grieved may at the generall Sessions of the peace within the same County preferre his bill of indictment upon the statute of 8. H. 6. for such forceible entry or deteiner which being found there Dyer 187. Cromp. 165. the complaynant shall be restored to his possession by a writ of restitution granted out of the said Court to the Sheriffe 6. Also the party so grieved for a more speedy remedy may complaine to any one or more Iustices of peace of the same County of the said force By the In out of Sessions and thereupon the said Iustice of peace may ex officio Dalton 191. 192. and without any writ either doe execution of the statute of Northhampton as aforesaid Or else the said Iustice of peace upon such complaint may goe to the place where such force is to see it and may remove the force and arrest and commit the offendors which he shall find committing the force and shall also keep a speciall Sessions to inquire of the said force and if upon such inquiry such force shall be found then the said Iustice shall restore the party grieved to his possession againe and here no other Iustice of peace can grant a Supersedeas to stay the same restitution Dalton 192. 7. Also the party grieved may remove such indictment found either at such generall or speciall Sessions by a Certiorari into the Kings Bench and the Iudges of that Court may award a writ of restitution to the Sheriffe of the County to restore possession to the party Eâ—quirie 8. Now when the Iustice of peace shall make such inquiry he shall direct his precept or warrant to the Sheriffe commanding him to cause to come before the said Iustice of peace Dalton ibid. at some good Towne neere to the place 24. sufficient and indifferent persons dwelling neere to the said lands or tenements whereof every one shall have in lands or tenements 40 s by the yeare at the least to inquire upon their oathes of such force 9. Upon default of apparance of those Iurors the Iust of peace may award an alias and after that Pluries in finite till they come 8. H. 6. c. 9. but so that at the day of the second precept or writ the Sheriffe must returne 40 s in issues upon every one of them and at the third writ 5. li. and at every day after the double 10. And although any of such Iurors shall not have 40 s land per annum yet their presentment of such force is good for the King so as the offendors shall be fined to the King But the party shall have no restitution upon such a presentment if it be pleaded at or before the time of the awarding of the restitution for the statute of 8. H. 6. ca. 9. requireth that such Iuror shall have 40 s freehold per annum at the least 11. If the Sheriffe shall returne smaller issues upon the Enquirors then the statute doth appoint yet the party indicted shall not impeach the enquiry therefore neither is it cause to impeach the enquiry though the Iustice of
peace doe not goe to see the place where the force is 12. And it is convenient upon such enquiry that the Evidence be given openly to the Iury to the intent it may appeare to the Iustices of peace or Court whether there shall be reasonable cause to stay restitution or no after the indictment found See Dyer 122. Of restitution to be made to the party put out CHAP. 34. 1. I Will here shortly recite the words of the statute Restitution which for this businesse of restitution will give the better light which are as followeth videlicet 8. H 6. ca. 9. And if upon such enquiry it be found before the said Iustices that any have done contrary to this statute viz. have entred or held with force the said Iustice of peace c. shall reseise the said lands or tenements so entred upon or holden and put the party so put out in full possession of the same lands and tenements so entred or holden as before 2. Here we see that after such forceible Entrie P.R. 35. or holding so found by enquiry the said Iustice of peace c. shall remove the force sc all such offendors as shall be found in the house or upon the lands that either entred or held with force and upon the prayer of the party so put out the said Iustice of peace shall restore him to his possession againe 3. And herein the Iustice of peace needeth not to stay or stand upon the right and title of either of the parties as is said before 4. But no restitution shall be made but where the forceible entry or detainer is first found by Inquisition Br. force 27. 5. Concerning this Inquisition or Indictment the Iustices of peace shall doe well to peruse and regard the same Cromp. 166. to see if it be sufficient Indictment the forme for the Iustice of peace ought not to award restitution where the indictment shall appeare to them to be any way insufficient in the Law either in matter or forme Dalton 193. 6. First therefore to have restitution the putting out by expresse words must be in the indictment and found by the Inquisition for another man may enter upon me and yet not put me out and then there needs no restitution to be made by the Iustices 7. And this putting out is to be understood only of the house or land Ibid. and not of a rent common advowson and such like into which an actuall Entry cannot be made and therefore none shall have restitution but such only as are put out of the house or land as is formerly ca. 29. herein declared Ibid. 8. Also the indictment ought to expresse the quality of the thing entred upon c. sc whether it be a messuage cottage meadow pasture wood or land errable for if the indictment be quod manuforti intraverunt in tenement c. it is void for the incertainty because the word tenementum may extend to either of them 9. Also the indictment must have these words sc adhuc extra tenent 14. H. 6 16. Br. force 13. otherwise the party shall have no restitution and yet these words be not in the statute but without these words in the Indictment it may be supposed and thought that he which put me out hath left the possession againe or that I have gotten it againe and then the restitution is needlesse Dalton 193. 10. So as in every such indictment these words are materiall sc expulerunt adhuc extra tenent And for lack of either of these words no restitution shall be made or awarded 11. Also one of these two words Manuforti or cum multitudine seeme to be materiall in the indictment Dalton 194. unlesse they be implyed by reciting the statute of 8. H. 6. and concluding contra formam statut predict or by some other words in the Indictment See the presidents herein in the title of warrants and presidents Cromp. 162. 12. If a man shall be restored upon an insufficient indictment taken before the Iustice of peace and this be removed into the Kings Bench the Court there will cause the party to be restored that before was put out by the Iustice of peace by a writ of restitution Cromp. 165. 166. b. 13. Also if error or insufficiency be in the indictment taken before Iustices of peace yet restitution is awarded by them any two of those Iustices of peace which were present at the taking of the said indictment upon the prayer of the party may at another Sessions grant and award a Supersedeas to the Sheriffe to stay the same restitution Dyer 187. if the Sheriffe hath not made restitution before the Supersedeas come to his hands but no other Iustice of peace besides those which were present at the taking and finding of the said indictment can grant a Supersedeas if the indictment were found at a speciall Sessions 14. A man is indicted that he entred with force and held with force and upon the traverse it is found that he entred with force Cromp. 165. but not that he held with force yet this indictment seemeth good enough and the party shall be restored 15. So if two be indicted of a forceible Entrie or deteiner Severall indictments and upon the traverse it is found that the one entred with force and the other held or detained with force yet the party shall be restored Ibid. 16. If it be found by one Enquest that A. put me out by force Dalton 194. Cromp. 166. Br. force 6. and by another Enquest that I did put out A. by force either of us may pray to have restitution against the other but he that is first restored is in the worst case for the other may have restitution afterwards and then he that had restitution first is without remedy by the hands of the Iustice of peace saving that he may reenter if he can peaceably or have his action 17. If it be found by one Enquest that A. did put mee out by force and by another Enquest taken at the same Sessions that B. did put me out by force I may chuse upon whether of these indictments I will be restored Cromp. 166. and if I have restitution against A. and this be returned I cannot have restitution upon the other Dalton 194. But if upon the writ of restitution it be not returned that I have restitution then I may afterwards have restitutiō against B. upon the other Indictment if B. hath reentred upon the first restitution made to me 18. Dalton 194. 195. A. is disseised or put out with force by B. and after B. is put out with force by C. and all this is found by one and the same Inquisition here B. may have restitution against C. for B. hath more right to the possession than C. and then may A. have restitution against B. but upon this Inquisition if A. have restitution
of their worke in grosse with such labourers and Artificers when please them so that they performe such workes well and lawfully according to the bargaine or Covenant with them thereof made Anno 34. Ed. 3. cap. 9. 15. Of Labourers and Artificers that absent them out of their services in other Townes or another County the party shall have the suit before the Iustices and that the Sheriffe take him at the first day as is contained in the statute if he be found and doe of him execution as afore is said and if he returne that he is not found he shall have an Exigent at the first day and the same pursue till he be outlawed and after the Outlarie a writ of the same Iustices shall be sent to every Sheriffe of Ireland that the party will sue to take him and to send him to the Sheriffe of the County where he is outlawed and when he shall be there brought he shall have there imprisonment till he will justifie himselfe and have made gree to the party and neverthelesse for the falsitie he shall be burnt in the forehead with an Iron made and formed to this letter F. in token of falsitie if the party grieved the same will sue but this burning is not to be executed unlesse it be by the advice of the Iustices and the Iron shall abide in the custody of the Sheriffe And that the Sheriffe and some Bailiffe of the Franchise be attending to the plaintiffe to put this ordinance in execution upon paine aforesaid and that no labourer servant nor Artificer shall take no manner of wages the festivall dayes Anno 34. Ed. 3. ca. 10. 16. If any labourer servant or Artificer absent himselfe in any City or Burrough and the party plainetiffe come to the Mayor and Bailiffes and require delivery of his servant they shall make him delivery without delay and if they refuse to doe the same the party shall have his suit against the Mayors and Bailiffes before the Iustices of Labourers which the Iustices of peace by their Commission now are and if they be thereof attainted they shall pay to the King 10. l. and to the party 100. s. Anno 34. Ed. 3. cap. 11. 17. The statutes and ordinances made of labourers and Artificers be holden and kept and duely executed and thereupon Commission shall be made to the Iustices of peace in every County to heare and determine the points of the said statutes and to award damages at the suit of the party according to the quantitie of his Trespasse Anno 42. Ed. 3. cap. 6. 18. All the statutes of Artificers Labourers Servants and Victualers made aswell in the time of our Soveraigne Lord the King that now is as in the time of his noble grandfather whom God assoile not repealed shall be firmely holden and kept and duely executed and that the said Artificers Labourers Servants and Victualers be duely justified by the Iustices of peace aswell at the suit of the King as of the party according as the said Statutes require and that the Mayors Bailiffes and Stewards of Lords and Constables of Townes doe duely their offices touching such Artificers Servants Labourers and Victualers and that a paire of Stocks be in every Towne to justifie the same Servants and Labourers as is ordained in the said statutes And moreover it is ordained and assented that no Servant nor Labourer be he man or woman shall depart at the end of his Terme out of the hundred Rape or Weapontake where he is dwelling to serve or dwell elsewhere or by colour to goe from thence in pilgrimage unlesse he bring a letter patent containing the cause of his going and the time of his Terme if he ought to returne under the Kings Seale which for this intent shall be assigned and delivered to the keeping of some good man of the hundred Rape Wapentake City or Borrough after the discretion of the Iustices of peace to be kept and lawfully to make such letters when it needeth and not in any other manner by his owne Oath and that about the same Seale shall be written the name of the County and overtwhart the said Seale the name of the hundred Rape or Wapentake City or Borrough and also if any Servant or Labourer be found in any City or Borrough or elsewhere comming from any place wandring without such letter he shall be forthwith taken by the said Mayors Bailiffes Stewards or Constables and put in the Stocks and kept till he hath found surety to returne to his service or to serve or labour in the Towne from whence he came till he have such letter to depart for a reasonable cause and it is to be remembred that a Servant or Labourer may freely depart out of his service at the end of his Terme and to serve in another place so that he be in a certainty with whom and shall have such a letter as before but the meaning of this ordinance is not that any Servants which shall ride or goe in the businesse of their Lords or Masters shall be comprised within the same ordinance for the time of the same businesse and if any beare such letter which may be found forged or false he shall have imprisonment of Forty dayes for the falsity and further till he hath found surety to returne or serve to labour as is aforesaid and that none receive Servant or Labourer going out of their hundred Rape or Wapentake City or Borrough without letter Testimoniall nor with letter Testimoniall above one night except it be for cause of sicknesse or other cause reasonable or which will and may serve and labour thereby the fame Testimoniall upon a paine to be limitted by the Iustice of peace that aswell Artificers and people of mistery as servants and apprentices which be of no great avoyer and of which craft or mistery a man hath no great need in harvest time shall be compelled to serve in harvest to cut gather and bring in Corne and that these statutes be duly executed by Mayors Bailiffes Stewards and Constables of Townes upon paine limitted and judged by the said Iustices of peace in their Sessions and that no man take above a peny for the making Sealing and delivering of such letter Anno 12. Ric. 2. cap. 2. 19. That the ordinances aforesaid of Servants and Labourers Beggers and Vagabonds shall hold place and be executed aswell in Cities and Borroughes as in other Counties and places within the Realme aswell within the Franchises as without and that the Sheriffes Mayors Bailiffes and keepers of the Gaoles shall be holden and charged to receive the said Servants Labourers Beggers Vagabonds and to keepe them in prison in the forme aforesaid without letting to mainprise or to baile and without Fee or any other thing taking of them by themselfe or by any other as long as they be so imprisoned or at their going forth upon paine to pay an hundred shillings to our soveraigne Lord the King Anno 12. R. 2.
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
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
conteined in the statute of provisors made in 27. Ed. 3. by the same processe comprised in the said statute and by warning to be made to them in their benefices or other their possessions within the Realme 8. After this in anno 12. R. 2. ca. 15. another statute was made to this â—ffâ—â—â— that is to say that no liege man of the King of what estate or conditiâ—n that he be 〈◊〉 over sea great or litle shall passe over the sea nor send out of the Realme of England by license nor without license without speciall license of the King himselfe to provide or purchase for himseâ—fe a benefice of holy Church with cure or without cure in the said Realme and if any doe and by vertue of such provision accept by himselfe or by any other any benefice of the same Realme that from that time the same provisor shall be out of the Kings protection Protection and the same benefice voide Voide so that it shall be lawfull to the patron Patron of the same benefice aswell spirituall as temporall to present Present to the same an able Clarke at his pleasure 9. Moreover in anno 16. R. 2. ca. 5. it is ordeined by Parliament at the prayer of the commons Sue that if any purchase or pursue or cause to be purchased and pursued in the Court of Rome Court of rome or elsewhere any such translations processes and sentences of excommunication bulles Bulles instruments or any other thing which touch the King against him his Crowne and regalitie or his Realme and they which bring within the Realme or them receive or make thereof notification or any other execution within the same Realme or without that they their notaries procurators Procurators mainteinors Mainteinors abettors fautors and Counsellors shall be put out of the Kings protection Protection and their lands and tenements goods and chattels forfeite to the King Forf and that they be attached by their bodyes if they may be found and brought before the King and his Councell there to answere to the cases aforesaid or that proces be made against them by praemunire facias Praemunire facias in manner as it is ordeined in other statutes of provisors and others which doe sue in any other Court in derogation of the regalitie of our soveraigne Lord the King 10. In anno 2. H. 4. ca. 4. it is ordeined that aswell they of the order of Cisteaux as all other religious or Seculars of what estate soever that they be which doe put any of the popes bulles Bulles in execution or from thenceforth doe purchase other such bulles of new or by colour of the same buls purchased doe take advantage in any manner proces shall be made against them and every of them by garnishment of two moneths by writ of praemunire facias Praemunire facias and if they make default or be attainted Forf then they shall incurre the paines and forfeitures conteined in the statute of provisors made in anno 16. R. 2. 11. In anno 7. H. 4. ca. 6. it is ordeined that no person religious nor secular of what estate or condition that he be by colour of any buls conteining priviledges to be discharged of dismes pertaining to parish Churches prebends hospitals or vicariges purchased before the first yeare of King Richard the second or after not executed shall put in execution any such buls so purchased or any such buls to be purchased in time to come and if any such religious Religious or secular person from thenceforth by colour of such buls Disturbe doe trouble any persons of holy Church prebendaries keepers of hospitals or vicars so that they cannot take nor enjoy the dismes due or appertaining to them of their said benefices that then such disturber shall incurre like procâ—sâ—â— and paine Paine as is ordained by the statute made against them of the 〈…〉 of Cisteaux in the second yeare of the Raigne of King Henry the 〈◊〉 32. H 6. ca. 1. in Ireland 12. Anno 32. H. 6. in Ireland it is ordained and established that all the acts ordinances and statutes made against provisors aswell in England as in Ireland be had and kept in force within this land of Ireland and also if any provisor or provisors doe henceforward sue any provision upon any man beneficed in this land of Ireland and because of the provision do enter into any benefice or benefices of the Church and doe take any goods or chattels from any beneficer of the church against whom any such provisions are sued that then the party grieved may recover treble damages and hee that taketh such goods and thereof is convicted shall pay 20. l. the halfe to the King and halfe to him that will sue 13. Anno 7. Ed. 4. it is ordeyned and enacted that whatsoever manner man of holy church purchase any manner of dignity 7. Ed. 4. ca. 1. in Ireland parsonage or vicarage by Buls of the pope to hold in commendum and the said Buls dignities parsonages or vicarages accept that they shall be out of the protection of the King and forfeit the value of the said benefices during his life naturall notwithstanding whatsoever his benefice be dignity or personage or vicarage and shall incurre in all penalties of the estatutes or ordinances made against provisors of benefices and that no pardon or license of the King made or to be made be availeable but voide if it be not by Act of Parliament and if any manner man of the Church occupy now or hereafter doe occupy any personage or vicarage by way of commendum by the Buls Apostolique if it be of his owne collation that he shall make collation thereof within six moneths and if he doe not that then the deane and chapter of the diocesse in which diocesse the benefice is shall make collation of the said benefice within six moneths then next ensueing and if the said Deane and Chapter be negligent and make no collation of the said benefice within six moneths as before is said that then it shall be lawfull to the King to present to the said benefice for that time and as often as the cases require as is aforesaid 14. Anno 10. H. 7. it is enacted and established that all manner of estatutes aswell made within the Realme of England as within this land of Ireland against provisors by the authority of this present Parliament be authorished 10. H 7. ca. 5. in Ireland approved and confirmed and be deemed good and effectuall in the Law and also by the authority aforesaid that all and every of the statutes made against provisors be from henceforth duely and straightly executed in all points within the said land according to the effect of the same and the Kings Iustices and Commissioners of the said land diligently enquire at their Sessions and all other times requisite and behovefull of all and every manner
before time made of Purveyors and buyers shall be holden and kept and put in due execution and in case that any Purveyor buyer or taker will take and make purveyance or buy any thing to the value of 40. s. or under of any person and make not ready payment in hand 40. s. ready payment that then it shall be lawfull to every of the Kings liege people to retaine their goods and chattels and to resist such Purveyors and buyers Resist and in no manner wise suffer them to make any such Purveyances buyings or takings and for the peace better to be kept that every Constable Constable Tithingman Tithingman or chiefe pledge of every Towne or hamlet where such purveyances or takings shall be made shall be aiding or assisting to the owner or seller of such things to be against the forme of this ordinance to make resistance in the forme aforesaid in case that such Constables Tithingman or chiefe pledge bee required that to doe upon paine to yeeld to the partie so grieved the value of the things so taken with his double damages and that none of the Kings liege pleople be put to losse or damage by the King or any officer for such resistance and that none of the Kings officers shall doe to be arrested vexed or impleaded in the Court of the Marshalsey or elsewhere any of the Kings liege people for such with-holding or not suffering to be done upon paine to lose twenty pounds Forf Moitie the one moity of that to the King and the other moitie to him which will in such case sue and that the Iustices of peace Iustice of peace in every County shall have power by authority of this ordinance to enquire heare and determine Oyer and Ter. aswell at the suite of the King as of him that will sue of any thing done against this ordinance and thereof to make due punishment and execution and to award damages Damages to the party plaintiffe when any defendant is thereof duely convict and that in every Action to be taken upon this ordinance every party defendant shall be put to answere to that without aide of the King and in such Actions to be taken No aide Proces proces shall be made as in a writ of Trespasse done against the peace and that in every Commission Commission of Purveyors takers or buyers to be made this ordinance shall be contained and expressed and moreover that this ordinance among other statutes of Purveyors buyers or takers before this time made shall be sent to the Sheriffes Sheriffe of every County to proclaime and deliver the said statutes and ordinances in the manner and forme contained in the statute of purveyors and buyers made in the first yeare of the Raigne of the said King H. 6. And moreover the King will and commandeth that the statute made the six and thirtieth of King Edward late King of England after the coÌ„quest touching Purveyors of other persons then of the King shall be put in due execution Anno 20. H. 6. cap. 8. 13. In anno 23. H. 6. ca. 2. 23. H. 6. ca. 2. it is ordained that the said statutes of an 36. E. 3. from thenceforth should be duely kept and put in due execution and moreover that every purveyor and buyer before that he shall have any Commission shall be sworne Sworne in the Chancery Chancerie that he shall take nothing of the people contrary to the said ordinances and moreover forasmuch as the poore people be not of power nor dare make resistance against the purveyors and buyers nor sue them by the law though that they doe contrary to the said statutes It is ordained by the same authority that the praisers and also all the Towne and townes Townes adjoyning if need be shall be bound to doe their devour and power to resist Resist the buyers and purveyors doing contrary to the said statutes and as much as in them is to execute the said statutes upon the said Purveyors if they be required and that he which is grieved of his goods taken contrary to the said statutes and ordinances may chuse to have either an Action of debt Action of debt against the said preisers Towne or Townes and every of them which doe not their devour in resistance of the said Purveyors or buyers in the forme aforesaid when they shall be required or else against the said Purveyors 3. Value 3. Damages or buyers and every of them to recover the treble value of his goods so taken and moreover his treble costs and damages and if any purveyor and other the Kings officer doe trouble or vexe any of the Kings liege people in the marshalsey or elsewhere by any evill suggestion or cause fayned imagined or coloured upon them because of the execution of the said ordinances he shall incurre the paine of Twenty pound Forf to be paid to the party grieved over his damages and costs in that behalfe sustained and that he thereupon shall have a writ of debt Writ of debt and that every issue Issue triable in this action shall be tried in the county County where the taking of the said goods was made and that the defendants in the said causes shall not be admitted to wage their law and shall be put to answere without forcing and no eâ—â—oyne â—ide of the King nor protection shall be to them allowed and that the Sergeant of the Caterie Sâ—â—â—eant of Câ—terie shall satisfie all the damages debts and executions which shall be recovered against every Purveyor and buyer underneath him in all the cases aforesaid in case that the Purveyor or buyer be not sufficient to satisfie and the party complainant shall have a scire facias Scire facias to have execution against the said Sergeants in the case and that these statutes and ordinances shall be sent to the Iustices of the peace in every County to proclaime them every yeare and thereof to informe the people Iust of P. Proclamation Anno 23. Hen. 6. cap. 2. 14. If any buyer or other officer of any Lord Lord. or person 23. H. 6. ca. 14. of what estate degree or condition that he be presume upon him to take or otherwise doe take any victuals Victuals Corne Corne. or hay Hay carriages Carriage or any other thing whatsoever of any of the Kings liege people in any wise against their will without lawfull bargaine betwixt the said buyers or officers and the said liege people thereof to be made to the use of the said Lords for their houses but all onely for the King and the Queene and their houses that then if notice or request be made to the Mayor Maior Sheriffe Sheriffe Bailiffe Bailiffe Constable Constable Officers or other of the Kings ministers of Cities and Borroughes or other Counties or places where such taking shall
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
by the Lord without any protestation c. How this Suretie of the peace may be commanded and how the same commandement shall be executed CHAP. 57. 1. THe Iustice of peace may command this suretie of the peace either by word only or by writing 2. By word only the party being in his presence as if in the presence and hearing of the Iust of peace one man doth threaten another or shall make an affray or assault upon another 14. H. 7. 8. or doe some other like thing tending to the breach of the peace the Iustice of peace may command him by word to finde sureties for the peace and for want of such sureties may commit him to prison untill hee shall finde the saâ—e 3. Also if one shall demand this surety against another 14. H. 7. â— who is then in the presence of the Iustice of peace and will be sworne that hee is affrayd of him the Iustice may by word command him to finde sureties for the peace 4. And the Iustice of peace in such cases 14. H. 7. â— â— may by word only command the Constable or any knowne officer or his owne servant being then present to arrest such party to finde sureties for the peace and if the party shall refuse to finde such sureties then the Iustice of peace may commit him to the gaole 5. By precept or warrant in writing and under seale and this must be directed to some officer or other indifferent person By writing and must containe the cause and at whose suit to the intent the party to be bound may provide his sureties and take them with him The forme of which precept See postea tit Warrants and Presidents Co. 5. 59. 6. The Iustice of peace may make his warrant to bring the party before himselfe to finde suretie for the peace by the opinion of Wray chiefe Iustice Br. peace 9. for he that maketh the warrant for the most part hath the best knowledge of the matter and therefore is the fittest to doe Iustice in that case and yet the most usuall manner is to make such a warrant to bring the party before the same Iustice or some other of the Iustices of peace of the same County 21. H. 7. 21. c. and Iudge Fineux his opinion was that where a Iustice of peace doth make a warrant for the party ex officio there the party may choose to appeare before him or any other Iustice in that County and that the party may have his action of false imprisonment against the officer if he doe otherwise compell him How it shall be executed 5. Ed. 4. 13. 7. The Constable or other officer before he arresteth the party upon such a warrant ought first to acquaint him with the matter and withall to require the party in the Kings Name to goe with him before the Iustices to finde sureties according to the warrant and if the party shall refuse either to goe before the Iustice P. R. 20. and Cromp. 235. or to finde sureties then the officer may arrest him by vertue of that warrant and may convey him to the gaole without carrying him to any Iustice of peace and there the party shall remaine untill he shall voluntarily offer and find sureties 8. But if the partie shall yeeld to goe and finde sureties then the officer may not absolutely arrest him but yet the officer is not bound to goe up and downe with him to finde sureties but may keepe the party untill he can procure sureties to come to him yet if afterwards the party shall make any resistance or shall offer to goe his way then the officer may arrest him and by vertue of that warrant may carrie him to the gaole and may also imprison him in the stockes untill he can provide aide to convey him to the gaole 14. H. 7. f. 10. 2. Br. peace 9. When the party commeth before the Iustice of peace by force of this warrant or by force of any other warrant for the peace or good behaviour or for a riot or the like the party must offer sureties to the Iustice of peace or else the Iustice may commit him to the prison for the Iustice needeth not to demand surety of him 10. Also after that the party shall be brought before the Iustice if before him he shall refuse to finde sureties the officer without any new warrant or commandement may carry the party to prison co 5. â—â— and that by the words of the first warrant and if he shall refuse this to doe that then c. see the forme of the warrant in the title of warrants and presidents 11. If the officer doe arrest the party 5. Ed. 4. 6. P. R. 20. and doe not carry him before some Iustice of peace to finde sureties c. or upon the refusall of the party if the officer shall arrest him and doe not carry him to the gaole in both these cases the officer is punishable by the Iustices of peace for this neglect by fyne at their Sessions and also the party arrested may have his Action of false imprisonment for the arrest for where the officer doth not pursue the effect of his warrant his warrant will not excuse him of that which he hath done 21. H. 7. 23. a. See 3. H. 7. fo 3. b. Bryan 12. And if the party be imprisoned for default of sureties and after he that demanded the peace against him happen to dye or shall release the party it seemeth in these cases the Iustice of peace may make his liberate or warrant for the delivery of such prisoner for after such death or release there seemeth no cause to continue the other in prison also any Iustice of peace may upon the offer of such prisoner take surety of him for the peace c. and may thereupon deliver him 13. It seemeth by some opinions 4. Ed. 4. â—6 2. H. 7. 24. Br. priviledge 35. 52. Lambert 96. that if the party imprisoned for not finding sureties hath a suite depending in the common place he may by the course of that Court by a writ of priviledge be discharged of his imprisonment if the other party be not ready in the Court at the day of the returne of the writ to pray sureties of the peace but if upon the returne of the habeas corpus the cause be returned as it ought to be the Court will not discharge him without finding such surety for he that demandeth the peace is not to have notice of the removing of his body and then how can he be ready in the Court of common place at the day and therefore it were a hard case that he should be so defeated of his surety 14. If the party hath gotten sureties then if the warrant proceed ex officio and not upon the writ of supplicavit and be a generall warrant scil to come before me or some other Iustice Co. 5. 59. Br. exâ—mp 11. Br.
Ed. 2. P. Leete 1. 20. All these former offendors and the like are evill members in the common wealth and such their demeanor and living is greatly to be suspected and besides doe seeme to be more properly said against the peace of the land then Avowtrey in the case before 1. H. 7. 7. and therefore it seemeth reasonable just and expedient that the Iustices of peace upon their discretion should convent such persons before them and their courses of life and if they cannot yeild a good reason and accompt of such their courses then to bind them to their good behaviour 21. Also the good behaviour seemeth grantable against such as shall make false outcries or shall raise Huy and Cryes without cause for these are disturbances of the peace Cromp. 179. 22. If two men doe levie Huy and Cry one upon another without cause both of them may be attached and bound over as disturbers of the peace P. R. 156. 23. Also Cheators and Cozoners may be bound to the good behaviour See Co. 5. 125. P. R. 12. 24. Libellers it seemeth may also be bound to their good behaviour as disturbers of the peace whether they be the contrivers the procurers or the publishers of the libell for such libelling and defamation tendeth to the raising of quarrels and effusion of blood and are specially occasions and meanes tending and inciting greatly to the breach of the peace 25. Also it seemeth grantable against unlawfull hunters in parks after their examination taken vide antea tit Hunting 26. Also it shall be granted against him that shall abuse a Iustice of peace Constable or other officer of the peace in executing of their office 9. El. 43. 27. A Iustice of peace seeth a man breake the peace sc to make an assault or affray upon A. and he chargeth him to keepe the peace and the other answereth that he will not the Iustice of peace may bind him to the good behaviour See Exod. 22.28 28. For if as one saith contempt or contumelie used to the person of a mans better neither policie for example nor religion for peace may tolerate much lesse to use contempt towards or to abuse such as are in authority especially when they are in executing their office 29. Nay it seemeth that he which shall use words of contempt or contra bonos more 's against a Iustice of peace though it be not at such time as he is executing his office yet hee shall be bound to his good behaviour 30. If a Citizen or free man of a Citty Co. 11. 98. or Towne corporate shall use words of contempt or contra bonos more 's against the chiefe officer of the City or Towne or his brethren they are good causes to commit him to prison untill he shall finde sureties for his good behaviour for obedience and reverence ought to be yeelded to the magistrate for that they derive their authority from the King 31. Also he that shall abuse a Iustice of peace his warrant may be bound to his good behaviour 32. A man complaineth of a Riot or a forceible Entry so that the Iustices of peace are assembled to enquire therof and then the party that complained will not prosecute the matter it seemeth the said Iustices of peace may bind him to his good behaviour for his deluding them 33. And so of such as shall charge another with felonie before a Iust of Peace and yet will not give Evidence c. 34. A. is bound to keepe the peace against B. only Cromp. 134. and getteth a supersedeas and after B. releaseth him after A. is arrested for suretie for the peace at another mans suit and sheweth this first supersedeas it seemeth he shall be bound to his good behaviour for this deceit 35. He that hath a pardon for any felony 10. Ed 3. P. pardon 5. shall finde surety for his good behaviour but he shall bee bound before the Sheriffe and Coroners who shall returne the same into the Chancerie 36. Also he that is acquitted of felonie if he be of evill fame or of evill behaviour it seemeth the Iustices of peace upon their discretion may bind him to his good behaviour 37. The forme of a warrant for the good behaviour vide postea tit Warrants 38. The forme of the Recog for the good behaviour vide postea tit Recognisance 39. Whether the suretie of the good behaviour taken upon complaint may be released by any speciall person some do doubt it Release Lamb. 126. because it seemeth more popular then the suretie of the peace yet others doe hold that it may be released either by the Iustice of peace himselfe that tooke it in discretion P.R. 2â— or by the party upon whose complaint it was granted even as that for the peace may 40. It seemeth also a Supersedeas Supersedeas of the good behaviour may bee granted by the Iustices of peace as well as for the peace mutatis mutandis upon good sureties taken by the said Iustices of the party to be of the good behaviour Cromp. 237. 41. Cromp. 146. If a man be bound to the good behaviour before Iustices of peace and to appeare at the next Assises or Sessions yet the party bound may by a Certiorari Certiorari remove the Recognisance into the Chancerie or Kings Bench before the day and then he shall not need to appeare at the Assises or Sessions for they have no record whereupon he may be called there Swearing and Cursing CHAP. 64. 1. FOrasmuch as all prophane swearing and cursing is forbidden by the Word of God 10. Caroli ca. 1. in Ireland it is enacted by Parliament in anno 10. Caroli ca. 1. that no person or persons shall prophanely sweare or curse and that every person or persons that shall at any time or times offend herein either in the hearing of a Iustice of peace bailiffe or any other head officer of any Citty or Towne corporate where such offence is or shall be committed or shall be thereof convicted by the oathes of two witnesses or by confession of the party before any Iustice of Peace of the County or head officer or Iustice of Peace in the Citty or towne corporate where such offence is or shall be committed to which end every Iustice of peace and every such head officer have power by that Act to minister the same oath that then every such offendour shall for every time so offending forfeit and pay to the use of the poore of that parish where the same offence is or shall bee committed the summe of Twelve pence and it shall also be lawfull for the Constables and Church-wardens or any one of them by warrant from such Iustice of peace or head officer to levie the same summe or summes of money by distresse and sale of the offendours goods rendring to the party the overplus and in defect of such distresse the offendor if he or she be above the age of
Twelve yeeres shall by warrant from such Iustice of Peace or head officer be set in the stocks for three whole houres but if the offendor be under the age of Twelve yeares and shal not forthwith pay the said summe of 12. d. then he or she by the warrant of such Iustice of P. or head officer shall be whipped by the Constable or parents or master in his presence And be it further enacted that if any such offendor shall commence any suite in Law against any officer or other for such distraining sale of goods whipping or setting in the stocks the defendant or defendants may pleade the generall issue and give the speciall matter in evidence to the Iury at the triall and if it be found against the plaintiffe or that the plaintiffe be non-suite the defendant or defendants shall be allowed good costs to be taxed by the Court provided neverthelesse that every offence against this law shall be complained of and proved as abovesaid within twenty dayes after the offence committed And it is also enacted that the said Act shall be read in every parish Church by the minister thereof vpon Sunday after the Evening Prayer twice in the yeare Treason CHAP. 65. BEfore the making of the statute of 25. Ed. 3. ca. 2. de prodicionibus there was great ambiguity and diuersity of opinions what offence should be adjudged Treason for clearing whereof the said statute was made whereby it is declared that these offences following should be adjudged Treason viz. 1. To compasse or Imagine the death or destruction of the King the Queene or the Prince 2. To deflowre the Queene or the eldest daughter of the King not marryed or the wife of the eldest sonne and heire of the King 3. To levie warre against the King in his Realme or to be adherent to the Kings enemies in his Realme giving them ayd or comfort in his Realme or elsewhere 4. To counterfeite the Kings great seale or privy seale or his money 5. To bring false money into this kingdome like to the Kings money knowing the same to be false to merchandise or make payment in deceit of the King and his people 6. To kill the Cancellor Treasurer or Iustices of the King of the one Bench or the other Iustices in Eire and of the Assises and all other Iustices of Oyer and Terminer being in their places doing their offices 2. All these offences are by the said statute declared to be Treasons which extend to the King and his Royall Majestie for which the King shall have the Escheate aswell of the lands holden of others as of himselfe 3. Also there be other offences by the said statute declared to be petty Treasons which doe not extend to the Kings Majestie as where the wife doth murder her husband the servant his master or the Clerke his Ordinary in which cases the chiefe Lords had the Escheates but now by a statute made in this kingdome of Ireland in 10. H. 7. ca. 21. aswell these offences of pettie Treason as also those which at the common Law were murder of malice prepensed are made high Treason both in the Actors and procurers and by a statute made in 28. H. 8. ca. 7. in Ireland all escheats for any manner of Treason are given to the King 4. By another statute made in 3. H. 5. ca. 6. It is declared that washing fyling or clipping of money shall be high Treason 5. By another statute made in 4. H. 7. ca. 16. the coyning of forraigne coyne which is permitted to passe in this Realme is Treason 6. By another statute made in Ireland in anno 13. H. 8. ca. 1. willfull burning of houses or Rickes of Corne in the field or in the Townes is made Treason 7. By another statute made in Ireland in 11. Eliz. ca. 1. for the attainder of Shane ô Neale the assuming of the name or dignity of O Neale or taking any thing by colour of that name is made Treason 8. By a statute enacted in anno 10. H. 6. ca. 3. in Ireland for Cessing of horsemen or footmen upon the Kings subjects without their good wils the offendor shall be adjudged as a traitour 9. By another statute made in Ireland in anno 18. H. 6. ca. 2. It is enacted that putting into Comricke and the granting of such Comricke or safeguard shall be Treason aswell in the giver as in the taker 10. By another statute made in Ireland in anno 10. H. 7. ca. 13. It is enacted that to cause assembly or insurrection conspiracies or in any wise to procure or stirre Irishry or Englishry to make warre against the Kings authority that is to say his Lievetenant or Deputy or Iustices or else in any manner to procure or stirre the Irishry to make warre upon the Englishry shall be high Treason 11. By another statute in Ireland made in 28. H. 8. ca. 7. It was enacted amongst other things that if any person shal malitiously wish will or desire by words or writing or by craft imagine invēt practise or attempt any bodily harme to be done to the King the Queene or their heires apparant or to deprive them or any of them of the dignity title or name of their Royall estates or publish or pronounce by expresse writing or words that the Kings Majestie is an Hereticke Schismaticke Tyrant Infidell or Usurper of the Crowne or shall rebelliously detaine or withhould from the King his heires or successors any of his or their ships ordinances artillery and other munition of warre and shall not deliver up the same within six dayes after they shall be required by Proclamation under the great seale the offendors Ayders Counsellers Consenters and Abettors shall be adjudged Traitours of high Treason 12. Having now briefely declared the statutes which are of force in this kingdome of Ireland concerning Treasons I will returne backe to the exposition of the said statute of 25. Ed. 3. de prodicionibus 13. That statute of 25. Ed. 3. doth not make any offence to be Treason which was not Treason by the common Law before neither doth it alter any offence of Treason at the common Law into a lesser offence but onely declareth the common Law in some particular cases and therefore it will be necessary to set forth what offences have beene adjudged to be Treason at the common Law both before and sithence the making of that statute 14. Treasons at the common Law I finde thus defined by Glanvill li. 14. ca. 1. cum quis itaque de morte Regis vel seditione Regni vel exercitus infamatur c. And afterward in the same chapter are these words viz. ipsum accusatum machinatum fuisse vel aliquid fecisse in mortem Regis vel seditionem Regni vel exercitus vel consensisse vel consilium dedisse vel authoritatem prestitisse c. 15. Also I finde in Bracton li. 2. Titulo de crimine lesae majestatis Treason to be thus defined videlicet Si quis ausu
Kings writ issuing sometimes out of the Chancery and sometimes out of the Kings Bench and may be directed to any Court of Record or officer of Record as to a Iustice of peace Sheriffe Coroner or Escheator to be certified of any Record which is before any of them and first an alias then a pluries and lastly an attachment lyeth against them that should send it if the Record be not certified accordingly or it seemeth a sub poena is used at this day If it be returneable into the Chancery then are the words in Cancellaria nostra and if into the Kings Bench then the words are coram nobis ubicunque c. mittatis The Certiorari may be sometimes to remove Fitz. Na. Br. fo 245. and send up the Record it selfe and sometimes but onely the Tenor of the Record as the words therein be and it must be obeyed accordingly If there be variance betweene the Certiorari Plo. 393. and the Record which is to be removed the Iustices need not to certifie such Record A Iustice of peace may deliver Crompton fo 132. a. and 133. b. or send into the Kings Bench an endictment found before him or a Recognisance of the peace taken by him or a force recorded by him without any Certiorari but if a Iustice of peace having a Record with him be discharged of his office now he cannot certifie it without a Certiorari although he be made a Iustice of the peace againe See 8. H. 4. fo 5. Br. Record 64. If a Certiorari be to send up the indictment of A. in which endictment some others be endicted together with the same A. yet need not the Iustices of peace to make certificate concerning any but A. for although they be named joyntly yet be they indicted severally and the King may pardon A. without forgiving the other 6. E. 4. 5. 6. Ed. 4. fo 5. If a Certiorari shall come to the Iustices to remove an endictment and the party sueth not to have it removed but suffereth it to lye still 9. H. 7. 16. Br. Iudgement 17. yet it seemeth the Iust of peace ought ex officio to send it away because the writ containeth in it selfe a commandement to them so to doe and so is a supersedeas of it selfe to the Iust of peace to stay their other proceedings And albeit the Certiorari be a supersedeas of it selfe Fitz. Na. Br. 237. yet may the party upon the Certiorari purchased have a supersedeas also directed to the Sheriffe commanding him that he arrest him not Fitzh fo 237. in which place also he doubteth whether the Iustices of peace themselves ought not of duty to award their owne supersedeas to the same effect after that the writ of Certiorari is brought to their hands If a Certiorari come to the Iustice of peace to remove an endictment and in truth the indictment was not taken till after the date of the Certiorari yet if the endictment be removed thereby Dalton 371. it is good enough for that they both be the Kings Courts 1. R. 3. 4. and in such case it is now usuall to remove it All the higher Courts at Dublin may write to the Iustices of peace to certifie their Records that doe make for the tryall of causes in them depending as you may reade 19. H. 6. 19. where they of the common place did send to the Iustices of peace for an endictment because in a writ of conspiracy brought before them it was materiall to have it In some cases the Iustice of peace may certifie a Record by him made Dalton fo 372. or found before him out of Sessions without any writ of Certiorari therefore to him directed vide antea tit forceible Entrie In other cases he must of duty certifie the proceedings but may spare to certifie the Record untill a Certiorari come to him for it see hereof antea title Suretie for the peace For the manner of the writ of Certiorari to remove Records from one Court to another or from the Iust of peace or other officers of Record to any the higher Courts of Dublin c. there are diverse formes and sorts thereof as you may see in Fitz. Na. Br. fo 242. c. I will onely set you downe one forme for all The forme of a Certiorari out of the Chancery to certifie a Recog taken by a Iustice of peace in the Country for the keeping of the peace Iacobus Dei gratia Angliae Scotiae Franciae et Hiberniae Rex fidei defensor custodibus pacis nostrae in Com. Dublin et eorum cuilibet salutem volentes certis de causis Certiorari super tenorem cujusdam securitatis pacis vel boni gestus qua A.H. ar invenit coram vobis vel aliquo vestrum de eo quod ipse damnum vel malum aliquod R.S. vel alicui alij de populo nostro de corpore suo nec faceret nec fieri procuraret quovismodi vobis mandamus quod tenorem securitatis pacis sive boni gestus predict nobis in Cancellar nostr in octabis purificat beatae Mariae virginis prox futur ubicunque tunc fuerit sub sigill vestr vel unus vestrum distincte et apertè sine dilatione mittatis et hoc sub poena centum librarum nullatenus omittatis nec aliqu vestr omittat Teste meipso apud Dublin _____ die Novembris Anno Regni nostri c. The returne hereof See antea titulo Surety for the peace Concerning the surety of the peace When a writ of supplicavit which in old time was called breve de minis as appeareth by the Register directed out of the Chancery is delivered to a Iustice of peace he is to direct his precept or warrant to compell the party upon that writ to finde surety for the peace as appeareth by Fineux chiefe Iustice in 21. H. 7. fol. 20. the forme of which precept or warrant may be thus in English George Multon one of the Iustices of peace of our soveraigne Lord the Kings Majestie within the County of Dublin Com. Dublin to the Sheriffe of the said County and to all the high Constables of the severall baronies within the said County and to all petty Constables and all and singular other the Kings Majesties Bailiffes and other ministers aswell within liberties as without in the said County and to every of them greeting Know yee that I have received the commandement of our said soveraigne Lord the King by his Majesties writ of supplicavit in these words reciting the whole writ of supplicavit which is not alwayes of one forme because it is sometimes directed to all the Iustices of the peace sometime to them and the Sheriffe and sometimes to one Iustice alone or reciting only the effect of the supplicavit thus Know yee that I have received the commandement of our said soveraigne Lord the King by his Majesties writ of supplicavit to compell A. B. of D. in the said
see in Bract. fol. 116. that first one of the Iustices did open before the whole Assembly the benefits of the service in hand the commodities of keeping the peace and the evils of the contrary and that then the Articles of the charge were read by one and one to the Iurors who receiving the same at the hands of the Iustices did also make answere in the yeelding up of their verdict to each article severally and by it selfe 5. Which custome as it had many profits so it is worthy in mine opinion to be recontinued and brought in use againe 6. Neither ought the multitude of Articles now inquireable to discourage any man in this behalfe for if those lawes which be most serviceable either for the present time or for the place or other just respect were only touched or run over by way of short Articles then would there be the more time afforded for speech that might be well spent aswell in discourse of exhortation or dehortation as in the larger handling of such other stat whereof there is greater use and necessity and this liberty the Iustices in Eyre themselves did use also as the same M. Bract. in the same place reporteth 7. The points of the charge The points of the charge divâ—ded that we have in hand may be reduced into five severall heads videlicet 1. Treasons 2. Felonies 3. Misprisions 4. Praemuniries 5. Fyneable offences 8. The foure first heads of the charge videlicet Treasons Felonies Misprisions and Praemuniries are so fully and at large set forth in the first Booke under their proper Titles that it were needlesse in this place to make repetition of them againe but referre the Reader to their proper Titles in the first Booke so it resteth now to speake of the last head or part of the charge which is Fyneable Offences and these consist of foure parts videlicet Offences of 1. Force and violence 2. Fraud and deceit 3. Omission and neglect in Officers and others 4. Other abuses and offences tending to the prejudice of the Common-wealth 9. The first of these foure are Riots Routs unlawfull assemblies forceible Entries and Forceible Detayners and all other Trespasses whatsoever committed upon the body goods or lands of any person or done in disturbance of the peace or terror of the people And as for Riots Routs unlawfull assemblies forcible Entries and Detayner and all riding or going armed in terrorem populi vel perturbationem pacis they are likewise so largely and particularly expressed under their apt Titles before in the first Booke whereunto I referre the Reader that it were but lost labour to recite them here againe and therefore I will proceede to the rest of the Articles of the charge which are these videlicet 1. If any person have maimed another whereby hee is the lesse able to defend himselfe in fight as by putting out his Eye stricking of his hand finger or foot or by beating out his foreteeth or breaking his Scull the offendors and their assistants therein are to be punished by a grievous Fyne and Imprisonment 2. If any man have unlawfully assaulted beaten or wounded another or have committed any Trespasse against the body of another or hath unlawfully taken his goods or committed any Trespasse in his lands this is punishable by Fyne and imprisonment at the discretion of the Court having respect to the greatnesse or smallnesse of the offence 3. If any person have unlawfully broken or destroyed the head of any Pond mote stew or severall pit wherein Fishes are put by the owner thereof or have wrongfully fished in the same with intent to take away the Fishes against the owners will or have wrongfully entred into any Parke used for keeping of Deere and have hunted killed or driven out the Deere or have taken away yong Hawkes or the Egges of Hawkes out of the woods of any other person this is a Trespasse punishable at the common Law by Fine and imprisonment and by statutes made in England videlicet in 5. El. ca. 21. 3. Iac. ca. 13. it is punishable by Fine 3. moneths imprisonment and bonds of the good behaviour for 7. yeares and although these statutes be not of force in Ireland yet they may in some sort guide the discretion of the Iustices in assessing the Fyne and inflicting imprisonment for a longer or shorter time and the like will fall out in many other cases which are offences at the common law and for which speciall punishments are inflicted by severall statutes in England and are in Ireland punishable at the common Law by Fine and imprisonment onely of which statutes I shall make mention as they shall happen to fall in my way 4. If any person shall rescue any distresse that is taken for rent or other service or dammage feasant he is to bee punished by fine and imprisonment at the discretion of the Court if there were just cause of taking such distresse 5. Breaking of common Pounds or private Pounds and taking out the distresses there impounded is inquirable and punishable by fine and imprisonment at the discretion of the Court. Offences of fraud and deceit CHAP. 5. 1. THe second sort of fineable offences tending to the defrauding of the people are extortions and oppressions Extortions and oppressions by officers and ministers of Iustice in exacting more Fees by colour of their offices then are due by the Law and likewise in exacting of Fees where none are due these offences are misdemeanors at the common Law and are punishable by fyne and imprisonment at the discretion of the Court. 2. Extortions and oppressions in Landlords In Landlords and their officers in exacting of their Tenants an Irish pretended duty called Loghtavie this is likewise punishable by fyne and imprisonment as a misdemeanor at the common Law 3. If Escheators In Escheators take above 40 s for the finding of an office by a statute made in 27. Hen. 6. cap. 17. this is an offence for which the offendor by that stat is to be fined in the summe of 40.l 4. If Sheriffes In Sheriffes undersheriffes or their Clearkes shall enter plaints in the County Court without notice of the plainetiffe or shall divide one contract or Trespasse into severall plaints this is a fraudulent offence punishable as a misdemeanor at the common Law and by a statute made in England in anno 11. Hen. 7. cap. 15. which is not of force in Ireland the punishment of this offence is 40 s the one halfe to the King and the other halfe to him that will informe 5. If the Sheriffe shall levie the Kings debt contained in any Estreate and written for out of the Exchequer and refuse to shew the party the Extreates under the Exchequer seale this by severall statutes made one in 4. Ed. 3. cap. 9. And another in 7. Hen. 4. cap. 3. is an offence punishable by fyne to the King and treble damages to the party 6. If Sheriffes or their Gaolers that
refuse to receive felons or shall take any thing for the receiving of them this by the statute of 4. of Edw. 3. ca. 10. is punishable by fyne and imprisonment 7. If any Coroner In Coroners shall exact more Fees for taking an Inquisition super visum corporis of one that is murdred or killed then thirteene shillings foure pence which is to be paid of the goods of the offendor or of the Towneship where the offence was committed in the day time if the offendor have escaped for this offence the Coroner by the statute of 3. H. 7. 3. H. 7. ca. 1. shall forfeit 5. l. 8. If Ordinaries or their officers shall take more Fees for the probate of Testaments or granting letters of administration then is appointed for them to take by the statute of 28. H. 8. cap. 18. in Ireland the offendors herein shall for every of their offences by force of the said statute incurre the penalty and forfeiture of 10.l 9. If any Clearke of the peace In Clearks of the peace take above j.s. for the inrolling of a bargaine and sale where the land doth not exceed forty shillings per annum and where it exceedeth that summe ij.s. vj.d. by a statute made 10. Caroli cap. 1. in Ireland he is to be punished by fyne and imprisonment 10. If the Clearke of the market In Clearks of the market take any common fyne or other reward to dispence with offences or tarryeth any longer in the Country then the necessity of the businesse requireth by the stat of 13. R. 2. cap. 4. he is for his first offence to be fyned in 5.l for his second in 10.l and for his third offence in 20.l 11. If Mayors In Mayors c. and chiefe officers of Townes and Corporations take excessive Fees for sealing of waights and measures that is to say for sealing of every bushell more then a penny for every other measure more then a halfe penny for every hundred waight more then a penny for every halfe hundred more then a halfe penny and for every weight under more then a farthing by a statute made in 7. H. 7. ca. 3. they are for every such offence to be fyned in 40 s 12. If any Purveyor In Purveyors take any bribe or reward to spare any man or take Corne by any other measure then the striked bushell or take carriages without ready payment by the severall statutes of 15. Ed. 3. cap. 1. 36. Ed. 3. cap. 3. and 1. H. 5. cap. 10. he is to be punished by two yeares imprisonment and ransome and to pay treble damage to the party grieved 13. If Iurors In Iurors take any thing to make their presentments favourably by the statute of 5. Ed. 3. cap. 10. they are to bee punished by imprisonment and ransome 14. If any person shall get into his possession any mony or other goods by any false token By false tokens or counterfeit letter this is a misdemeanor at the common Law to be punished by a great fyne and imprisonment and to be bound to the good behaviour and by a statute made in England in 33. H. 8. ca. 1. which is not in force in Ireland he is to be punished by imprisonment of his body standing upon the pillory or otherwise by any corporall paine except paines of death as shall be upon him adjudged or appointed by the person or persons before whom he shall be convict of the said offences or of any of them 15. If any person shall packe fish deceitfully mixing small fish with the countable fish by a statute made in 22. Ed. 4. ca. 2. he is to be fyned for every vessell so deceitfully packed vj.s. viij d 16. If any Cowper By Cowpers shall make vessels for Beere or Ale of unseasonable timber this is a misdemeanor at the common Law punishable by fyne and imprisonment 17. If any Miller By Millers shall take Toll by the heape he is to be punished by fyne and imprisonment and likewise if he take more then the twentieth or foure and twentieth part he shall be punished in manner aforesaid by the statute of 31. Ed. 1. called the statute of Bakers and Brewers c. 18. If any man shall buy any pretended title By buying of pretended titles to any lands or tenements the seller being out of possession by a statute made in Ireland 10. Caroli aswell the buyer as the seller shall forfeit the whole value of the lands so contracted for and also be imprisoned 19. If any person shall mainetaine any suit in any Court By maintenors or any quarrels in the Countrie he is to be punished by Fyne and imprisonment by the severall statutes of 1. Ed. 3. ca. 14. and 1. R. 2. c. 5. 20. If any person shall move pleas or suites By Champerty or cause them to bee moved either by their owne procurement or by others and sue them at their proper Costs for to have part of the Land in variance or part of the gaine to be recovered by such suites such persons by the statute of 33. Ed. 1. Rastal Champertie 5. are declared to be Champertors and are to be punished in manner following that is to say that if any shall by covenant or contract give up his right to another by way of Champertie the taker of such gift shall forfeit so much as doth amount to the value of the thing that he hath so acquired 26. Ed. 1. Articuli super Chartas cap. 11. And by the statute of 20. Ed. 1. Rastall Champertie 3. hee shall be imprisoned by the space of three yeares and if any shall receive any Church Advowson land or Tenement in Fee or to farme so long as the thing is in plea aswell the party that selleth as he that purchaseth the same shall be punished by Fyne and imprisonment by the statute of Westminster the 2. cap. 49. 21. By subornation If any person shall suborne or procure another to give false testimony upon his oath in any cause depending in any of the Kings Courts or ad perpetuam rei memoriam this offence is subornation of perjurie for which the offendor shal be fined in 40.l and if he be not worth so much then to have halfe a yeares imprisonment and to stand upon the pillory and his testimony for ever to be disabled 28. Eliz. cap. 1. in Ireland 22. If any person shall wilfully and wittingly foresweare himselfe in any Court of Record this is perjury By perjury for which the offendor is to be fyned in xx.l. and six moneths imprisonment and if he have not goods to that value to be set upon the pillory and both his eares nailed to the same and his testimony forever to be disallowed 28. Eliz. ca. 1. in Ireland By forestalling 23. If any person or persons shall buy any Corne Fish or other things comming by land or water to any market to be sold these are forestallers
cause to be taken or conveyed away any maid or woman-child unmarried being within the age of sixteene yeares out of or from the possession Taking away of yong maids c. custodie or governance and against the will of the father of such maid or woman-child or of such person or persons to whom the father of such maid or woman-child by his last will and testament or any other act in his life time hath or shall appoint assigne bequeath give or grant the keeping education or governance of such maid or woman-child except such taking and conveying away as shall bee had made or done by or for such person or persons as without fraud or covin be or then shall be the master or mistrisse of such maide or woman-childe or the guardian in soccage or guardian in Chivalrie of or to such maid or woman-child every such person so offending being above the age of 14. yeares shall suffer imprisonment by the space of two whole yeares without baile or mainprise and if the said maid or woman-childe so taken away as aforesaid shall be defloured or against the will or unknowing of or to the father of any such maid or woman-childe if the Father be living or against the will or unknowing of or to the mother of any such maid or woman-childe having the custodie and governance if the father bee dead or shall by secret letters messages or otherwise be contracted or married except such contract shall bee made by the consent of such person or persons as by the title of wardship shall have or bee intitled to have the marriage of such maide or woman-childe then every such person so offending shall suffer imprisonment by the space of five yeares without baile or mainprise 10. Caroli cap. 17. in Ireland 13. If any person or persons shall plow harrow Plowing by the Tayle draw or worke any horse gelding mare garron or colt by the taile or shall cause procure or suffer any other to plow or harrow his ground or to draw any other carriages with his Horses Mares Geldings garrons or colts or any of them by the taile or shall pull the wooll of any living sheepe or cause or procure the same instead of shearing or clipping of them hee is to be punished by fine and imprisonment at the discretion of the Court 11. Car. cap. 15. in Ireland Burning of Corne in the straw 14. So likewise if any person whatsoever shall by himselfe his wife children or servants burne or cause to bee burned any corne or graine in the straw of what kinde soever he is to be imprisoned in the common gaole of the county for the space of ten dayes without baile or mainprise and the delinquent to pay the charge of sending him to the gaole as aforesaid and for his second offence to be imprisoned by the space of a whole yeare without baile or mainprise and to pay the charges as aforesaid and for the third offence to forfeit fortie shillings and to be bound to the good behaviour and to pay the charges as aforesaid the said fortie shillings to bee paid towards the reliefe of the parishioners in the said gaole unto the hands of the chiefe magistrate of the place where such gaole is before the offendour be discharged 11. Car. cap. 17. in Ireland Coshering 15. If any person that hath no meanes of abilitie of his owne or sufficient meanes of support from his parents and kindred shall walke up and downe the countrey with their fosterers or kindred and retinue with one or more grey-hound or grey-hounds or otherwise or shall cosher lodge or cesse himselfe his followers horses or grey-hounds upon the inhabitants of the countrey or shall directly or indirectly exact meat or drinke or money from them or shall crave any helpes in such sort as the poore people dare not deny the same for feare of some scandalous rimes to be made upon them or some worse inconvenience to be done unto them Every Iustice of peace is to apprehend or cause to be apprehended all such offendors and to binde them to their loyalty or to the good behaviour as in their discretion they shall thinke fit and to commit the offendors untill they finde such securitie and the Sheriffe bailiffes Constables Provost Marshals and all other his Majesties Loyall subjects are to be aiding and assisting upon request of the Iustices of peace in apprehending of such Cosherers and wandring idlers and if they shall make default herein they are to be punished for their neglect by fyne and imprisonment at the discretion of the Court. 11. Car. cap. 16. in Ireland Selling wine or other liquor 16. If any person shall sell wine Ale or other liquor within any citie or towne franchised by measures not sealed he is to be punished by a fine of ten shillings for every time hee shall offend herein 28. H. 6. cap. 3. in Ireland English habit and language 17. By a statute made in 28. H. 8. cap. 15. in Ireland all manner of persons should use English apparell habit and language or in default thereof to be punished as followeth viz. every Lord spirituall and temporall that shall offend herein is to forfeit 6.l 13 s 4.d every Knight and Esquire 40 s every Gentleman or Merchant 20 s every Free-holder and Yeoman 10 s every Husbandman 6 s 8.d and all others 3 s 4.d for every offence Leazors of Corne. 18. Such as use leazing of corne in Harvest and are able to labour for wages and will not are to be punished in manner following that is for every time offending to loose all the Corne gathered by leazing and to forfeit one shilling and also the owner of the Field that shall willingly suffer such leazers is to forfeit for every time one shilling 28. H. 8. cap. 24. in Ireland 19. Such as keepe Inmates Inmates in harvest that refuse to labour for wages and imploy themselves in leazing of Corne the Keepers of such Inmates are to be punished by forfeiture of 6 s 8.d for every such offence 24. H. 8. cap. 24. in Ireland 20. Whosoever shall keepe Swine Keeping of swine c. upon any Strand where the Sea doth ebbe and flow whereby the Spawne of fish is destroyed the same swine are forfeit and it is lawfull to any person that will to seize upon them as forfeit and if such swine shall be rescued from him that shall so seize the same the person or persons so rescuing are to be punished by fyne and imprisonment 11. Eliz. cap. 3. in Ireland 21. If any person or persons shall lay any Hempe or Flax to bee watered or shall lay any lymed hydes in any fresh river Hempe and Flax c. the partie offending by the Stat. of 11. Eliz. cap. 5. in Ireland is to forfeit the Hempe Flax and Hydes or the treble value of the same 22. If any person or persons shall stop or straighten any high-wayes Nusans this
2. Rich. 2. cap. 5. and 12. R. 2. cap. 11. by fyne and imprisonment at the discretion of the Court and to be bound to the good behaviour 48. Finally all manner of offences whatsoever which tend to the disturbance of the publique peace or to the oppression or defrauding of the people or to the maintenance and upholding of any disorder in the common wealth or that may any wayes trench upon the setled governement of the Church or common wealth are inquirable in the Sessions of the peace and are aswell by the Commission of the peace as by the rule of the common Law to be punished by fyne imprisonment bonds of the good behaviour or otherwise at the discretion of the Court as the cause shall require Of the indictments and presentments given by the Iurors and of the matter and forme and receiving and rejecting of them CHAP. 8. 1. THe preparation to this Enquiry thus made let us goe neare and looke also into the performance of the same Lamb. li. 4. pag. 485. the understanding or knowledge which the Iustices of the peace doe take by the travell of these enquirors is by their report put in writing and commonly called an indictment or presentment betweene the two which words howsoever they be confounded or not rightly distinguished in common speech me thinketh that there doth easily appeare a true and certaine difference Presenment indictment Ibid. 2. For I take a presentment to be a meere denuntiation of the Iurors themselves or of some other officer as you shall hereafter heare without any Information and an endictment to be the verdict of the Iurors grounded upon the accusation of a third person so that a presentment is but a declaration of the Iurors or officers without any bill offred before and an endictment is their finding of a bill of accusation to be true Endictment 3. An indictment ought therefore to be the verdict of Iurors that be charged to enquire of that offence which is presented by them for if A. be indicted of stealing the goods of B. and pleadeth thereto not guilty Lamb. li. 4. pag. 486. and the Iury findeth that C. stole his goods and that A. tooke them from him but not feloniously this verdict shall not stand for an indictment against C. because that Iury had no charge to enquire generally who did the felony but to try specially whether A. were hereof guilty or no. 13. Ed. 4. 3. 4. But if A. be arraigned upon an Indictment of murder taken before the Coroner Ibid. and is not found guilty Now the Iury ought to finde who is guilty thereof and if they say that C. killed the man that verdict shall serve for a good endictment against C. because the Iury had taken so much in charge ibidem 5. This also is generally true that all bils informations and indictments grounded upon penall statutes wherein the King only is to reape the forfeiture ought to be commenced within three yeares next after the offence committed and if the suite be given to any other person for him and the King that ought also to commence for the King within three yeares but if a common person shall informe for himselfe and the King then the Information c. must be commenced within one yeare next after the offence done otherwise it is meerely voyd unlesse longer or shorter time be limitted by that speciall statute upon which the Information indictment or presentment is made and framed 28. H. 8. cap. 21. in Ireland Lamb. li. 4. pag. 487. 488. 6. Furthermore all indictments forasmuch as they be in the nature of a declaration ought to containe certainety and therefore as saith Master Marrow five principall things be most commonly requisite in presentments before the Iustices of peace viz. 1. First the name surname and addition of the party endicted 2. The yeare the day and place in which the offence was done 3. The name of the person to whom the offence was done 4. The name and value of the thing in which the offence was committed 5. The manner of the fact and the nature of the offence as the manner of the Treason murder felony or Trespasse 6. The name and surname The name and surname of the party indicted must be certainely expressed and if the indictment be of an accessary in felony the name of the principall must be set downe also for if the indictment be quod A. mandavit euidam ignoto occidere B. quod fecit this is vitious Ibid. but in Treason Trespasse or Murther where all be principals it may be quod procuravit personas ignotas to doe the Treason Trespasse or Mayheime Mar. Lambart li. 4. pag. 488. 7. Besides the name and surname of the party indicted there ought also by the statute 1. H. 5. ca. 5. in every presentment wherein processe of utlary lyeth to be added his estate degree or mystery Lamb. li. 4. pag. 488. and the County Towne Hamlet or place where he is or was conversant and even so ought it to have beene at the common Law touching names of dignity made by creation as Duke Marquesse Earle Viscount Archbishop Bishop Knight or Sergeant at the Law because every of these titles were accounted parcell of the name but it was not so for the names of Baron Banneret and Esquire which are names of dignity without creation nor for Chancellor Treasurer Chamberlaine Sheriffe Coroner Escheator Bailiffe Deane Archdeacon Deacon prebendary or parson which are names of dignity by reason of office onely unlesse the presentment did charge them in respect of their offices for then the name of office also as Bailiffe or Escheator ought to be used in the indictment Marrow 8. But now Baron Knight Esquire Gentleman Alderman Degree or mystery Widow Single woman Deane Archdeacon Parson Doctor Clerk Parish Clearke are good additions of estate or degree as I take it within the meaning of this statute of additions but farmer servant Lamb. li. 4. pag. 489. Butler Chamberlaine are not because they be common to Gentlemen and Yeomen and they be uncertaine so Merchant Grocer Mercer Tayler Broker Husbandman Hostler Labourer Lighterman Waterman Spinner c. be good additions of mysteries but Citizen is not because it is no mystery Art or degree neither is Extortioner Maintainer Vagabond Hereticke Dicer Carder or such like any good addition because they are every one evill and against the Law 9. And this part of the addition of estate degree or mystery must alwayes be knit to the proper person for Sybilla Batt nuper de T. in Com. D. uxor Iohannis Batt nuper Spinster was rejected Dyer fo 47. because Spinster was more properly to be referred to Iohn which is the last antecedent then to Sybilla Collect. Dyer 47. 10. Also by the said statute as I said the addition ought to comprehend the County and the Towne and Hamlet or place knowne out of any Towne or Hamlet
Endictment of A. in which Endictment some others be indicted together with the same A. yet need not the Iustices of the peace to make certificate concerning any but A. 6. Ed. 4. 5. For although they be named joyntly yet be they endicted severally and the King may pardon A. without forgiving the other 6. E. 4. 5. Mark 11. Againe if the Endictment be of the stealing of two horses and the Certiorari speaketh but of one horse it seemeth that they neede not to certifie it at all because of the variance for it is certaine that they of the Kings Bench will not arraigne the Endictee upon it but will rather write againe to know whether there be any Indictment that agreeth with the writ 3. Lib. Ass pl. 3. Cur. 12. Finally it is noted in 8. H. 5. fo 5. that Haukeford the chiefe Iustice of the Kings Bench observed this order that hee which brought thither an Indictment taken before Iustices of the Peace should endorce his name upon the backside of it which I note not to teach them of the Kings Bench but to let the Iustices of peace see that there is some heed to be taken of him by whom they send up their Endictments Of the sundry sorts of Processe upon Endictments and of the Supersedeas for stay of them CHAP. 10. 1. THe Court being thus made privie and possessed of causes must of dutie proceed to the handling or hearing and tryall of them the which because it cannot indifferently doe unlesse it keepe one Eare for the offendor that he also may be heard in his owne discharge as others were heard to lay the charge upon him the manner is if he be absent to award processe against him to come in and to make his answer 2. But if he be present in Court and confesse the Indictment then needeth there no Processe at all Lamb. li. 4. pag. 519. for he shall be committed forthwith to prison untill that he hath made his Fyne or given sureties for it 1. H. 7. 3. Commonly an Indictment or Information being but an accusation or declaration against a man is of none other force Processe wherin it is named but only to put him to answere unto it And hereof all Processe hath the name because it proceedeth or goeth out upon former matter either originall or judiciall 4. The authority of making Processe Authority to make out processe upon indictments is given by expresse words in the Commission and in other cases where it is not namely given it is implyed of congruence or rather of necessity in the words heare and determine which cannot bee performed unlesse the party either doe come in gratis or be brought in by the power of Processe 5. This Processe ought alwayes to be in the name of the King Lamb. li. 4. pag. 420. thus Iacobus Dei gratia c. vicecomiti Dublin c. And therefore also seeing he is partie it must say non omittas propter aliquam libertatem quin c. Fitz. Prerog 21. 6. And the Teste thereof may bee under the names of some two Iustices so that it may be made sitting the Court in the Sessions Teste of the processe Brooke tit Peace 6. and 7. 7. But now whereas the Commission giveth to the present Iustices authority to make Processe upon Indictments New Cōmissions of peace doe not discontinue the old processe taken aswell before former Iustices as before themselves all that doing was wont to be discontinued in law by the comming out of a new Commission of the Peace untill that the statute 11. H. 6. ca. 6. did establish that no pleas suits or processe to be taken before Iustices of the peace should be discontinued by a new Commission of the peace to bee made but that they should stand in their strength and that the Iustices assigned in the same new Commission should have power to continue the same and to heare and determine all that which dependeth upon them And of the like effect there is a branch in the later end of the statute of 10. Carol. ca. 14. in Ireland 8. Furthermore whereas Sheriffes and their Bailiffes used to arrest men Endictments before Sheriffs and to proceed upon Indictments found in their Turnes or Law-dayes another statute made 1. Ed. 4. cap. 2. taketh that power out of their hands and delivereth it over to the Iustices of the peace appointing them to proceed upon them as if they had beene found before themselves Processe of utlary 9. Now seeing that this Processe of the Sessions is sent out to this end that either the party shall come in to answere and to bee justified by the Law or else that he shall for his contumacy bee deprived of the benefit of law for so much in effect doe the words of the Commission Quousque capiantur reddant se aut utlagentur import in them it followeth that in all cases of Indictments if the party be returned insufficient the processe of Outlawrie lieth against the offendour if he be not taken before or doe not otherwise offer and yeeld himselfe And then the power of these Iustices endeth with the Outlawrie for they can make no Capias utlagatum but must certifie the Outlawrie into the Kings Bench. 10. A good while after that Commissions of the peace were first awarded there was not given by them any power to make out any Processe of Outlawrie Lamb. li. 4. pag. 422. for by a Commission of the peace in 20. E. 3. Parl. 1. Patent in dorso wherein were words authorising the Commissioners to arrest all such as should be endicted before them but by and by this followeth there Et ad nomina eorum qui fugerint coram vobis justiciari noluerint certificandum in Cancellaria c. So that if they might not get them arrested they could goe no further but to certifie their names only 11. Now the meane to this Outlawrie is not all one in all cases The generall processe upon Endictments of Trespasse for upon Indictments of Trespasses against the P. or such other contempts the Processe is one and upon Indictments of Treason or felony it is another 12. Upon Indictments of Trespasse against the peace of Conspiracies and of Routs in presence of the Iustices or in Affray of the people if the offendors may not be found nor brought in by Attachment or distresse by reason of their insufficiencie the processe of Outlawrie is to be awarded by the statutes 18. Ed. 3. Stat. 1. Stat. 2. cap. 5. The like is against such as bee indicted upon the statute of Liveries 8. H. 7. cap. 4. 13. Upon the Indictment a Venire facias is to issue first and then if thereupon he be returned sufficient a Distringas and upon the same processe of Distringas infinite till he come in but if a Nihil habet c. be at the first returned against him then a Capias Alias and Pluries and after an Exigent as it
were not Iust of P. also in the same shire so as the indictment may be understood to be taken by them as before Iustices of the peace for their Commission and authority extendeth only to such as stand endicted before themselves or before former Iustices of the peace or the Sheriffe in his Turne Things peculiar to Iu. of the peace in the tryall of felonies 11. Thus farre of the first point touching the second it seemeth by Marr. and Fitz. fol. 16. that albeit two Iustices of the peace the one of them being of the Quorum may in the County of Dublin heare and try felonies yet no Iustices of the peace have authority to deliver felons by Proclamation without sufficient acquittall nor yet to deliver such as be in prison for suspition of felony unlesse there be in the Commission a speciall clause ad gaolam deliberand c. as it is in the Commission for the County of Dublin 12. For they must proceed by inquiring hearing and determining as their Commission appointeth them and not rid the gaole otherwise as the Iustices of Gaole delivery may doe And therefore such persons if they cannot be indicted must either remaine the comming of the Iustices of Gaole delivery or else being removed into the Kings Bench they are either to be delivered thence upon the writ de gestu et fama as the old order was or by such other meanes as they at this day doe use therein 13. These Iustices of peace can take no Appeale of any approver nor other before them 2. H. 4. 19. and so it is cleerely holden 9. H. 4. 1. because their Commission stretcheth not so farre but onely to such felonies as fall out by enquiry before themselves or their former fellow Iustices howsoever the booke in 44. Ed. 3. 44. upon the statute 5. Ed. 3. ca. 11. or the statute 8. H. 6. ca. 10. may seeme to a running Reader to allow that power unto them and therefore Master Stamford fol. 95. doubteth of it 14. But howsoever that be yet seemeth it to me no lesse reasonable then serviceable that if one felon will accuse another before Iust of the peace they may take his confession and reprive him and thereupon cause the other to be inquired of and so proceed against him by way of Indictment 15. Furthermore they cannot arraigne a man upon his abjuration saith Marr. 16. It hath also beene thought unmeet that they should try a felon the same day in which they awarded the venire facias against the Iury. 22. Ed. 4. 44. Fitz. Coron tit 44. but that hath no necessity and the Law is now otherwise taken 17. Marr. saith that they cannot award the writ of venire facias tot matrones to try whether a woman arraigned before them be with child or no but seeing it standeth with Law and reason to stay her for the time that the child may be preserved It must of necessity follow that this opinion of Marrow is against the Law 18. They may give Clergy to a felon if the Ordinary or his Deputy be present to take him but if they be absent he must be reprived because as Mar. saith these Iustices can set no Fyne upon the ordinary for his absence no more then if he will accept one to read as a Clerke where in truth he cannot read at all but if you looke upon Master Stamford lib. 2. ca. 25. he will perswade you that the Ordinary is not the Iudge but a Minister in the tryall of Clergy and that Clergy may lawfully be given and allowed in his absence 19. Of the Fyne for his default at these Sessions Lamb li. 4. pag. 55â— I am a litle doubtfull as I have said before but touching the allowance of Clergy to the offendor I see no cause at all why it may not belong to the Iust of peace aswell as to other Iudges seeing that they be Iudges of the felony as other Iust are 20. Mar. saith also that if Bigamy had been alledged against one that prayed his Clergy the Iust of P. could not have written to the Ordinary to certifie the same but this opinion seemeth to be no Law for where Iustices have power to heare and determine of congruity they have power to doe all things necessary to bring the cause to an end 21. And if a man outlawed of felony by processe before the Iustices of peace be brought before them and doe alledge that he was at the time of the utlary pronounced out of the Realme in the Kings service under such a Captaine or that he was then imprisoded in another County they can neither write to the Captaine nor into the County by the opinion of Mar. 22. Thus much only of things restraining the Iustices of peace in the tryall of Felonies wherein they are not in Ireland at all occupied saving onely in the County of Dublin but the gaole delivery is wholly left to the Iustices of Assize 23. These things thus premised Let us now suppose all impediments to be removed and set we the felon at the barre ready to take whatsoever lawfull advantage of Challenge plea or other benefit that may be allowed unto him 24. It was ever permitted Challenge that the prisoner might challenge so many of the Iury as he would shewing lawfull cause for it as namely to say that he whom he challengeth was one of the Iury which did indict him for such a one it may be thought he will not falsifie his former oath 25. Ed. 3. cap. 3. or to say that he hath not lands of the cleere yearely value of xl.s. for such a one is disabled 2. H. 5. ca. 3. or to say that hee is not probus or legalis because he hath beene attainted of felony forgery perjury or of such like as are shewed before 11. Caroli ca. 9. in Ireland 25. The common Law hath also in favour of life allowed unto the prisoner his peremptory challenge without shewing any cause at all for it But yet forasmuch as it was long time doubtfull how many he might challenge the same is now put into certainety by the statute 11. Caroli ca. 9. and restrained to the number of xx persons at the most 26. Now if the tryall be of an Alien borne for felony or murder committed by him the Iury shall be de medietare lingua that is halfe of our Nation and halfe of strangers except it be in the case of a Scot whose Iury shall be altogether English aswell because he speaketh one language as also for that he is reputed a subject and not an Alien Collection Dyer 304. 357. 27. Thus shortly of challenge which is but dilatory and to win time and therefore let us now heare what he may plead in chiefe as it were and for the safety of his life Another time acquit 28. And if the prisoner have beene at any time before lawfully acquited of the selfe same felony or have beene orderly attainted of any other
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