1. E. 3. ca. 17 31. E. 3. ca. 14 1. E. 4. ca. 2 1. R. 3. ca. 4 And for this purpose the sayd Statute 1. E. 4. ca. 2. bindeth the Shirife to certifie to the Iustces of Peace at their next Scssions the Enditementes founde in hi Turne or Lawdaye It séemeth also by way of admitting in the Booke 27. H. 8. 2. that the like ought to be done of the Presentments of felonie in any Leete by vertue of the said Statute of 1. E. 4. ca. 2 But that is further to bée enquired of for I find no better Warrant for it This is certaine that Iustices of the Peace ought to receive Enditementes found in any Lectes or Lawdayes vpon the Statute made for the bréeding of horses to which end also the Courtholders of such Leetes are bound to certifie the same vnto them within the spare of forty dayes 32. H. 8. ca. 13. Iustices of the Peace have none auctoritis to receiue an Enditement of the killing of a man se defendendo sayth Stamf. 15. as he had heard say But enquire further thereof for though it be not felonie as appeareth by the Statute of Glo. c. 9. Yet be their other words in their Commission large enough to giue them power to heare and determine such an offence But they are not to receiue an Enditement of the killing of a Hart proclaimed for the Iurisdiction of it belongeth to the Iustices of the Forest 21. H. 7. 30. Fineux And as it séemeth they may reject an Enditement that findeth any matter of Recorde as Vtlawrie or such like unless it be shewed vnto the Iurours sub pede sigilli for Iurours are to finde matters in déede onely and not of Recorde 1. H. 7. 6 3. H. 7. 1. 10 And so if the Shirife will offer Enditementes of Liueries Rauishment of Women or of Felonies by Statutes or of such other causes whereof they haue no power to enquire in their Turnes the Iustices of the Peace ought to relect them 4. E. 4. 31 8. E. 4. 5 22. E. 4. 22 Stanford 87. Thus much for the better remembrance of our Iustice of the Peace I thougt to say of Enditementes the rather because it behoueth him to Iudge of them and for that they be the chiefe grounde worke whereupon the whole Triall is afterward to be built and framed Of the Presentementes and Informations of Officers and other men CAP. VI. HAuing shewed how these Iustices take knowledge by the labour of Iurours in Enquests it followeth to declare also howe they may have understanding by other men And that is to be done either by the presentment of persons publicque or by the information of priuate men In some cases therfore these Iustices may heare one an other for euerie Iustice of the Peace may vppon his proper knowledge make Presentment at the Sessions of any offence done against the Actes 2. 3. Phil. Mar. ca. 8 5. Eliza. ca. 13. concerning the amendment of the High wayes Presentmets of Iustices of peace and constables And in this such like cases his reaport hath the force of a Presentment of twelue men So that he and his fellowes may procée vpon it 21. H. 6. 5. Of like value is a Presentment made at the next Sessions by Searchers appoynted to examine the true making of Tile 17. E. 4. ca. 4. And of like strength also as I thinke is the presentment of the Constables concerning sundrie poinctes contayned in the Statute of Winchester 13. E. 1. This Court may also bée given to vnderstande by the meanes of priuate men and that eyther for the Queene onely or for the Queene and them selues or in some speciall causes for them selues without the Queene InformatioÌ„ by priuate men That which is for the benefite of the Queene or for hir and the partie is sometimes moued by the free offer of him that openeth the matter and sometimes wrought by commaundement of the Court. The frée motion of the partie is sometimes by word only which is properly but a Suggestion and sometimes by writing named a Bill plaint Complaint or Information all which be not alwaies of one force in this businesse Free Voluntarie information For albeit that we reade 1. E. 5. 6. that the Courte of Chauncerie will sometimes both take knowledge and also award Processe vpon an Information by word in the behalfe Of the Prince and that 39. H. 6. 41. also admitteth such a matter Yet I thinks that before Iustices of the Peace these suggestions and Informations both bée they by worde or writing are but of the force to stirre up the Iustices to recommende the cause to the Enquest and not to award any Processe vpon them unlesse it be in certaine causes where that validitie is specially giuen them by the Statutes as you shall hereafter perceiue There was once a time I confesse when Iustices of the Peace might haue awarded Processe vpon an Information for the King only of offences against any penall lawes euen as they may yet vpon Enditementes against the Peace But that lasted not long and therfore that course is holden now in speciall Statutes only Neuerthelesse at cuerie Sessions sayth Iudge Prisot 35. H. 6. 15. the Iustices of the Peace do vse to make Proclamation that if any will informe for the Prince he shall be hearde and thereupon any man may come in and may both informe the Iustices of the Peace and giue euidence to the Enquest without daunger of Conspiracie by the opinion of the Court in the last said booke And as that which ariseth vpon Presentment or Enditement is properly called the sute of the Queene So this Other whether it be by Bill plaint Complaint or Information is most aptly tearmed the sute of the partie at whose sute the Iustices Of the Peace may heare of the abuse of Innekeepers and Victuallers and of Extortions and Regratories and perhappes of higher offences also either for him selfe or for the Queene but of the other Articles in the Commission at the sute of the Queene only by the expresse forme of the words in the last Assignauâ—mus of the Comission of the Peace But therein among other some amendment if I be not deceiueb is to be desired if it be not ment the they shall hold plea of Appeales betwene party party which the Statute 8. H. 6. c. 10. séemeth also to allow unto them In other Statuts at large such rules are to be followed as they them selues do prescribe And in this Information the Statute of Additions 1. H. 5. ca. 5. séemeth vpon the bare words to haue no place for Informations be not mentioned in it and vpon that reason the Court 13. H. 7. 21. did holde it cleare that if Rescous bée retourned by the Shirife against certaine persons wtout their Addititions yet in the case they may well be Vtlawed vpon it The other compulsorie informatioÌ„ groweth by examination Of witnesses called into the Court and is
part that kinde of learning is most requisite and seruiceable And this was the reason that led the makers of the Statuts 18. E. 3. ca. 2.34 E. 3. ca. 1. 13. R. 2. ca. 7 to cause it to be expresly enacted that some lerned in the laws should be put into the Commission and all Statutes that desire the presence of one of the Quorum do secretly signifie such a learned man But here againe the Commission chorda quae semper oberrat eadem doth make muche relation to the saide Statutes that are not now at all The power giuen to these Iustices hathe appeared 3. The charge to them the Shirife and Custos Rotulorum Now let vs sée the charge giue to them and others They therefore and euery of them be charged to be diligentlye intendant aboute the execution of the premisses by these wordes Et ideo vobis c. but howe negligentlie many of them performe it I am afraide it is too manifeste whylest ambitiouslie séeking the name and power to rule they take smal care of doing their duetiful seruice that beloÌ„geth thervnto In this clause is contained a sauing vnto the prince of all amercements other things that shal growe due vnto hir by reason of their procéedings therevpon of which I will speake somewhat hereafter in place conuement The Shirife is saide to haue bene charged aforehand to be attendant in the Returne of Iuries before them in these words Mandauimus enim Vicecomiti c. And the Custos Rotulorum for it is meant of him althoughe he be not so there called is charged to bring the Records Processe of the Peace and in due sorte to consider and directe the same by these words Et vos praefatae Thom. Wootton c. Of whose office and authoritie somewhat shall be sayd also in particular in the second Booke of this treatise Of the two Othes ministred to the Iustices of the Peace CHAP. X. SVch as occupie Iudicial places ought to take héede what they doe knowing as Iehosaphat saide that they exercise not the iudgements of Men onelie but of God himselfe whose power as they doe participate The causes why Iustices be sworne So he also is present on the Bench with them And therefore it hath béene alwayes the policie of Christian lawes to appoint méete formes of Religious attestations or Othes for such Officers to take meaning thereby not onlie to set God continually before their eyes whome by suche Othe they take to witnesse of their promise call for reuege of their falshood but also to threate them as it were with temporall paines prouided against corrupt dealings withall to strengthen their minds and arme their courages againste the force of humaine affections whiche otherwise might allure draw them out of the way Vpon this ground the Statute 13. R. 2. Stat. 1. ca. 7. which willed that Iustices of the Peace should be made of new in all the Counties of England did there withall take order that they should be sworne to keepe and put in execution all the Statues touching their office whiche albeit that it be the firste Othe that I find to haue béene ministred to Iustices of the Peace yet I think they were not vnsworne before nor at any time after as may be collected vppon the bookes 21. E. 4.67 12. E. 4.18 and I beléeue also that that manner of Othe was deuised but for that time onelie and continued not long in that forme as being of it selfe very generall and hard to be obserued And that happily was the cause that it appeareth to be changed to that forme which M. Fitzh in his Booke hath left vs and which with the alteration of a fewe wordes onelie is yet at this day put in vse For vpon the renuing of the Commission of the Peace which nowe a days hapneth as often as any person is newly broughte into the same there commeth of course a Writ of Dedimus potestatem directed out of the Chauncerie to some auntient Iustice of the Peace to take the Othe of him whose name is newly inserted and to certifie the same into that Courte at suche daye as the Writ commaundeth This Writ is at this daye accompanyed wyth twoo Scedules whereof the one containeth the Othe of the Office of a Iustice of the Peace in his forme Ye shall sweare that as Iustice of the peace in the Countie of Kent in all Articles in the Queenes Commission to you directed yee shal doe egall right to the poore and to the rich after your cunning wit and power and after the lawes and customes of the Realme and Statutes thereof made And yee shall not be counsell wyth anie quarrell hanging before you And that ye hold your Sessions after the forme of Statutes thereof made And the issues fines amercements that shal happen to be made and al forfaitures which shal fal before you ye shal cause to be entred without anie coÌ„cealement or embeaseling and truely sende them to the Queenes Escheaquer Surcease in the printed Booke Yee shal not Let for gift or other cause but wel and truly yee shal do your office of Iustice of the Peace in that behalfe and that you take nothing for your Office of Iustice of the Peace to bee done but of the Queene and fees accustomed and costes limited by the Statute and yee shal not direct nor cause to bee direted anie warrante by you to bee made to the parties but yee shall direct them to the Bayliffes of the said Countie or other the Queenes officers or ministers or other indifferent persons to do execution thereof So help you God and by the contents of this Booke And his Saincts in the Printed Booke The variance betwéene this and that elder forme standeth as you may sée by the Margent in thrée points whereof twaine be of no waight at all but the third did néed amendment For right godlie and wel did those 32. persons that were put in truste to pen Ecclesiasticall lawes purpose to make this lawe amongst others Legitimun autem iuramentum ys verbis nullis alys suscipi volumus Ita me Deus per Dominum nostrum Iesum Christum adiuâ—et This Othe of the Office consisteth of sire Articles which for memories sake I haue séene expressed in these 6. Verses folowing Do equall right to rich poore as wit lawe extends Giue none aduise in anie cause that you before depends your sessions hold as statutes bid The forfeites that befall See entred well and then estreate them to the Cheaquer all Receiue no fee but that is giue by Queene good use or right Ne send precept to partie selfe but to indifferent wight 1 2 3 4 5 6 The other Scedule comprehendeth that forme of Othe which after the seconde abolishment of the vsurped authoritie of the Romish Pharao by the ioyous entrie of our gratious Queene Elizabeth was in the first Parliament of hir raigne ca. 1 appointed for Iustices of
Peace amongest others to take before that they should exercise the office and it hath these words I William Lambarde do vtterly testifie and decleare in my conscience that the Queenes Highnesse is the onely superame Gouernour of this Realme and of all other hir Highnesse Dominions and Countries as well in all spirituall and ecclesiasticall things or cause as temporall and that no forraine Prince Person Prelate State or Potentate hath or ought to haue any iurisdictionm power superioritie preheminence or authoritie ecclesiasticall or spirituall within this realme The Othe of Supremacie And therefore I do vtterly renounce and forsake al forraine iurisdiction powers superiorities and authorities and doe promise that from hencefoorth I shall beare faith and true alleageaunce to the Queenes Highnesse hir heires and lawfull successors and to my power shal assist and defende all iurisdiction priuiledge preheminence and authoritie graunted or belonging to the Queenes Highnesse hir heires and successors and vnited and annexed to the Imperiall Crowne of the Realme So help me God c. There hath bene care taken once or twice in our memorie to exact this latter Othe of all the Iustices of Peace throughout the Realme where of some good hath ensued But yet many a Iustice there is that by indirect practise neuer tooke neyther thys nor the former whereof what harmes doe and may grow I leaue to wiser and higher men to be considered Of the power absolute and limited that the Iustices of the Peace haue CHAP. XI THe power of the Iustice of Peace is in some cases Limited in other some cases Absolute Discretion By which latter word I do not meane absolute Simply but after a Manner For they may neither hang a man for a gréeuous Trespas nor fine him for a Felonie and therefore this absolute authoritie is to our Law better knowen by the name of Discretion because the Iustice of Peace may exercise sometimes Legis actionem and sometimes Iudicis officium or which is all one Iudicium Decretum as the case shall offer and the law suffer him It is a good Counsell which Aristotle giueth in his Rhetorikes ad Theodectem that in the making of lawes Quoad eius fieri possit quam plurima legibus ipsis definiantur quà m paucissimaverò Iudicis arbitrio relinquantur and the Commission of the Peace following that aduise doth leaue little or nothing to the discreation of the Iustices of the Peace but bindeth them faste with the chaines of the Lawes customes ordinances and Statutes Howbeit our latter lawes of Parliament although they also endeuour for the most parte to hold the same course yet forasmuche as euerie considerable circumstance can not be foreséene at the time of the making of the Lawe they doe many times leaue to be supplied by the discretion of the Executioner of the Lawe that thing which was not conueniently comprehended before hand by the wisedom of the maker of the Law And therefore although Discretion be necessary in the execution of euery law be it neuer so certainely set forth and bounded in it selfe yet in the mouth language of our Lawe that onelie and properly is said to be done by Discretion which is not specially limited with all the circumstances but is indifferently referred to the consideration of the Iustice that is putte in trust with it And truely it is to be wished that Iustices of the Peace would not by colour of this reference to their Discretion in some fewe cases arrogate vnto themselues authoritie to vse their discretion to play as it were the Chauncelours in euery cause that commeth before them For no way better shall the Discretion of a Iustice of the Peace appeare thā if he remembring that he is Lex loquens do containe himselfe within the lists of law and being soberly wise do not vse his owne Discretion but onely where both the law permitteth and the present case requireth it Right well saide Cicero Est sapientis Iudicis cogttare tantum sibi esse permissum quantum sit commissum ac creditum Of the Iurisdiction and Coertion belonging to the Iustices of Peace CHAP. XII AS Iustice can not bée administred without both a Declaration of the Law and an Execution of the same So to the ende that our Iustices of the Peace may be able to deliuer Iustice they are accomplished with double power the one of Iurisdiction and the other of Coertion the which other men doe call Vocationem Praehensionem that is to say Authoritie not onelie to conuent the persons but also after the cause heard and adiudged to constraine them to obey their order and decrée This Iurisdiction of theirs is exercised for the most part if not althogither aboute those causes which be in a maner the same that the Ciuil Lawyers do call Iudicia publica partely because the Prince who representeth the head of the common wealth hath interest in the most of them as wel as that priuate perso which is immediatly offended and partely because they are not commonly tryed by suche Action as other Ciuil and Priuate causes are but rather by Criminall and Publique Accusation Information or Presentment Iurisdictió And herein the Iustice of the Peace is by the one halfe superiour to the antient Conseruatour of the Peace who had onlie Coertion in a fewe cases and no Iurisdiction in any case that I remember But if the aucthoritie of these Iustices should cease when the fault is told hearde and adiudged then should they be no better than halfe Iustices and therefore the Law hath also Cohertion Execution or punishment as I said into their hands least otherwise their iudgements should be deluded for want of power to bring the to effect This Punishment then is an orderly execution of a lawfull iudgement layed vpon an offendour by the minister of the Lawe and it is done for foure causes first for the amendment of the offendor Cohertior or punishement for what causes it is appointed Secondly for examples sake that others may thereby bée kept from offeding Thirdly for the maintainance of the authoritie and credite of the person that is offended these thrée reasons be common to all such punishments Seneca rehearseth the fourth finall cause that is to say that wicked men being take away the good may liue in better securitie and this pertaineth not to all but to Capitall punishments onelie as euerie man may at the first hearing vnderstande The Romanes vsed specially eight sortes of chastisements knowen to them by these names Damnum Vincula Verbera Talio Ignominia Exilium Seruitus Mors that is losse of goods imprisonment stripes retaliation reproch banishment seruitude death All which our lawe before the Conquest was wont to inflict albeit that now Seruitude Retaliation and Banishment be out of vse The punishments that be commonly put in execution at this day and wherewith the Iustices of the Peace haue to do may be dinided into Corporal Pecuniarie
still the Iustices of Peace may procéede notwithstanding the Writ as Hubbert the Kinges Attourney sayd 6. H. 7. 16. for otherwise the triall of a Felon if the Enditement Were of Felonie might bée delayed and deluded also But yet Keble held opinion against him and was fearfull that in such a case it might proue felonie to make execution after such a writ And if a Certiorari come to the Iustices of Peace to remoue an Enditement and in truth the Enditement was not taken till after the date of that Certiorari yet if the Enditement bée remoued thereby it is good enough for that they both bée the Queenes Courtes 1 R. 3. 4. In the making of a Certificat vppon this Certiorari the Iustices of the Peace ought neither to omitte that which both auctorize them nor to excéede that which belongeth vnto them For on the one side if they certifie an Enditement of Felonie as taken coram Iusticiarys ad pacem it is not enough without saying further Nec non ad diuersas felonias c. and otherwise it is doubtful whether the Endited shall bée quite dismissed or no because the Iustices of Peace haue then no Recorde at all remaining with them for the Clarke of the Peace maketh an entrie accordingly that Record which they sent up is insufficiēt And therfore the Clarke of the Crowne was forbidden to receaue any such Certificat 12. H. 7. 25. On the other side if they certifie one Enditement of felonie not determined into the Kings Benche they ought not Without warrant to certifie an other Recorde of the acquitall of that Enditee for the same matter for nothing ought by them to bée sent thither without warrant but that which is executorie and néedeth the helpe of that Court. 8. E. 4. 18. And if a Certiorari bée to send up the Enditement of A. in which Enditement some others bée endited togither with the same A. yet néede not the Iustice of Peace to make Certificat concerning any but A. 6. E. 4. 5. For although they bée named ioyntly yet bée they endited seuerally as I haue sayd before and the Queene may pardon A. without forgiuing the other 6. E. 4. 5. Markam Finally it is noted 8. H. 5. 5. that Hankforde the chiefe Iustice of the Kings Benche abserued this order that he which brought thither an Enditement taken before Iustices of the Peace should endorce his name vpon the backeside of it which I note not to teache them of the Kinges Benche but to let Iustices of the Peace sée that there is some héede to be taken of him by whom they send up their Enditements Of the Processe vpon Enditements and Informations CAP. VIII THe Court béeing thus made priuie and possessed of causes must of duetie procéede to the handeling or hearing and tryall of them the whiche bicause it can not indifferently doe vnlesse it keepe one eare for the offendour that he also may be heard in his owne discharge as others were heard to lay the charge vppon him the manner is to awarde Processe against him to come in and to aunswere For commonly an Enditement or Information béeing but an accusation or declaration against a man is of none other force but to put him to aunswere And thereof all Processe hath the name bicause it proceedeth or goeth out vpon former matter either Original or Iudicial Processe whereof it is named How be it I make difference whether this processe bée grounded vpon an Enditemet or vpon some other information for they bée not all one vnlesse it bée in a fewe Statutes so specially prouided Although the Statute 33. H. 8. cap. 10. did once conioyne and coople them The power of making processe vpon Enditements is giuen by erpresse wordes in the ende of the second Assignauimus of the Commission and in other cases where it is not namely giuen it is emplyed of congruencs or rather of necessitie in the wordes heare and determine which not bée perfourmed vnlesse the partie doe either come in graiis or bée brought in by processe Auctoritie to make out processe This Processe ought alwaies to bée in the name of the Queene thus Elizabeth Dei gratia c. Vicecomiti Kancia c. And the Teste thereof may bée vnder the names of any two Iustices so that it be made sitting the Court in the Sessions Teste of the Processe Commission del Peace Brooke Tit. Peace 6. 7. But now whereas the Commission giueth to the present Iustices auctoritie to make processe vpon Enditements taken aswell before former Iustices as before them selues al that doing was wont to bée discontinued in Law by the comming out of a newe Commission of the Peace vntill that the Statute 11. H. 6. ca. 6. did establish that no pleas suits or processe to bée taken before Iustices of the Peace shoulde bée discontinued by a newe Commission of the Peace to be made but that they shoulde stande in their strength that the Iustices assigned in the same new Cōmission shoulde haue power to continue the same and to heare and determine all that whiche dependeth vpon them New commissions of Peace doe not discontinue the old processe And of the like effect there is a braunche in the latter ende of the Statute 1. E. 6. ca. 7. Furthermore whereas Shirifes and their Baylifes vsed to arrest men and to procéede vppon Enditementes founde in theyr Turnes or Lawdayes an other Statute made 1. E. 4. ca. 2. wringeth that power out of their handes and deliuereth it ouer to the Iustices of the Peace also appoynting them to procéede vpon them as if they had bene found before themselues Enditement before Shirifes Nowe séeing that this Processe of the Sessions is sent out to this ende that either the partie shall come in to answere and be iusticed by lawe or else that he shall for hys contumacie bée dèpriued of the benefitte of lawe for so muche in effect doe the wordes of the Commission Quensque capiantur reddant se aut vtlagentur importe in them it followeth that in al cases of Enditements if the partie be retourned insufficient the Processe of Vtlawrie lyeth againste the offendor if he bée not taken before or doe not otherwise offer and yéelde himselfe Processe of vtlawrie But a good while after that Commissions of the Peace were first awarded there was not giuen by them any power to make out anye Processe of Vtlawrie for I haue séene a Commission of the Peace 20. Ed. 3. Part. 1. Patent in dorso wherein were wordes auctorizing the Commissioners to arrest all suche as shoulde bée endited before them but by and by this followeth Et ad nomina eorum qui fugerint coram vobis iusticiari noluerint certificandum in Cancellaria c. So that if they mighte not gette them arrested they coulde goe no further but to certifye theyr names The meane to this Vtlawrie is not one in all cases for vpon Enditements of Trespasses
and Amerciamentes by Estreates first sent vppe to the Eschequer and then deliuered thence to the Shirife which was at that time the common manner of leuying Fines and Amerciamentes therefore it was within two yeares after videlicet 14. R. 2. cap. 11. prouided that the Estreates of the Iustices of Peace should bée indented or doubled and the one parte thereof deliuered by them to the Shirife so leuie the money thereof rising and to pay the Iustices their wages by Indenture betwene him and them to be made and the other parte thereof sent into the Eschcquer to charge the Shirife withall vpon the making of his account there And hereby as I thinke the Estreates of the Iustices of the Peace be no we an immediat warrant for the Shirife to leuie not only the Fines and Amerciamentes but also all other â—â—â—ues Penalties Lesses Forfeitures and Summes whatsoeuer arising before themL for the wordes of the Statute are generall The money thereof arising and therfore whatsoeuer summes are to be Escreated into the Eschequer by the one of these doubles the sme are also to be leuied by the Shirife by the other double Such order did the Statute 3â— H. 8. cap. 10. of the fire weekes Sessions take for the leuying as well of Fines and Amerciamentes as of peines Losses and Forfextures of money So doth the Statute of Tillage 2. 3. phil Mar. cap. 2. by way of admittance rehearse that Iustices of the Peace may make out Processe for the leuying of Fines and Forfcitures before themselues and so are the Estreates amde and the Fines and Forfeitures thereby leauied at this presente time if I bée not deceâ—ued And those are properly called Estreates of the woordâ— Extractae because they bée shorte Notes or Memorialls extracted or vrawen out of the Recordes by the Clarke of the Peace and by him indented and deliuered sunderly to the Shirife and to the Barous of the Eschequer bearing this or the like Title Extract finsium amerciamentorum forisfactormum ad goâ—ralem Sessionem Pacis tentam apnd Maidstone c. Coram c. For the whole forme of the making wherof there is full Direction giuen to all Clarkes of Estreates by the Statute 7. H. 4. ca. 3. Where vnto I referre them Howbeit I do not thinke that in our case this dutie of Estreating is so peculiar to the Clarke of the Peace but that the Iustices of the Peace them selues ought also to haue a common and carefull eye vnto it For if you remember it is both specially prouided for in the Commission and also an Article of their Dath to see vnto the faithfull Entrie and Certificat of the Issue Fines Forfeits and Amerciamentes that doe happen before them And therefore it were well done in mine opinion if the Iustices would by turns or other wise both take knowledge of things that haue passed before them and also take order that the same be certified accordingly least other wise it lye altogither in the power of the Clarke of the Peace to Saue or Slay as one sayd the Sparrow that he holdeth closed in his hand Iustices of the Peace ought to haue care of Estreates Of Executorie Processe execution for the parties that sue or for other persons CAP. XVII ALbeit that the Iustices of Peace haue this power to make warrant for leuying the Amerciamentes Fines and other forfeits that doe growe vnto the Queene by their seruice yet is it commonly thought that they may not but in some cases onely and that by speciall spéech of the Statutes make execution either for him that will sue or for any other of such parte of the forfeiture as the Law doth aford them For most commonly the partie that will sue is put to his Action at the Common law for recouerie of that which he is to haue as for his moitie of a forfeiture againste the Status 24. H. 8. ca. 13 of apparell he is perhappes driven to his Action of Dstinue for his maytie growing vppon conuiction of any offence centrarie to the Statute 13. Elizab. cap. 14. concerning bringing ouer of Bowstaues or contrary to the statute of Musters 4. 5. Phil. Mar. ca. 3. he is to commence his Action or Bill of Debt and so of sundry others that are ech where to be foúd Apparell 〈◊〉 Musters But Where they haue power either by their Commission Or by any Statute to heare and determine any cause at the sute of aprituate person I do not see how the cause can well be said to be fully determined till the complaint hath had the effect of his sute which can not be without execution Doubtlesse by speciall prouision made in the Statute 5. E. 6. ca. 14. against Forestalle is the Iustices of the Peace may make execration of the one moitie of the forfeiture for ht in that sueth by fieri facias or capias as the Q ueenes Iustices at Westminster vse to dec Forestallers The like power in like words haue they for leuying the moitie of any forfeture against the Statute of Armour made 4. 5. Phil. Mar. ca. 2 or against the Statute made 5. Elizab cap. 12. concerning Badgers Drouers c. and their licences Armour For the moitie growing to the Informour vpon the Statute of Liueries 8. E. 4. cap. 2. they shall make suche execution as ought to be had in Kccourries of Der or Trespaile at his owne pleasure Li ue ries They may also awarde execution for the partie that sueth vpon the Statute of Flaxe and Hemp 24. H. 8. ca. 4. by such Processe as to them shall seeme by their discretion Flaxe and Hempe And the Estreates made by the Clarke of the Peace of forfaits for defaultes of amending Highways area safficient warrant to the Constables to leuie the same by Distresse to the vse of the Churchwardeins of the Parish where the Default was towardes the amendment of the said wayes Highwayes 2. 3. Phi. Mar. ca. 8 5. Elizab. ca. 13. Ann like wise the Estreates of the Iustices of Peace of any Fines assessed by them vpon Presentmentes in the shnifesTurne being inrolled indented deltuered to the Shinfe are a good warraÌ„t vnto him to leuy the same to the vse of him that was shirite at the time of such Presentmentes taken Shirifes Tisma 1. E. 4. ca. 2. Searche may aforde you some moe eramples but thrse may suffise for my desire which is not in this or any other to recount all but to make some proofe of that which I offer and propose Of Certifying Recordes of the Sessions of the Peace to other Courtes or Officers CAP. XVIII AS we haue alreadie manifested that Iustices of the Peace haue not a sufficient and thorowe powur of them selues to heare and determine all causes whereof they haue in their Sessions auctoritie to enquire So also be there sundry things determinable before them there which neuerthelesse may in some respectes be
brought to a seconde handling either to the ende to reuerse that which they haue done or that their doings may be an euidence and testimonie in the triall of causes before other Iudges And because this can not in any sorte be perfourmed Without the presence of those former Recordes or the transcripts thereof which due remayne with the Iustices of the Peace it is therefore requisite that they we make Certificat of them vnto those other Courtes or officers that shall be interessed to vse the same But as this Certificat ought in some cases to bée made by the Iustices of the Peace or their Clarke without any writ of Certierari therefore directed and in some other cased they may spare to Certifie vntill that Writte or some other commaundement bée brought vnto them So also sometimes they are to certifie and send up onely a Tenor or Transcript of the Recorde before them and sometimes the verie Recorde it selfe must be conueyed from them The Clarke of the Peace must vnder the paine of rl ◠certifie into the Kings Benche a true transcript of euery Attainder Vtlawrie and Conuiction had before Iustices of the Peace in any place except Wales Chester Lancaster and Durham within 40. dayes after if it bée then Terme if not then within 20 dayes after the beginning of the next Terme that the same may there also appeare of Record to be used as that Statute hath appointed if there bée cause and he must also Deliuer to the Ordinarie a Transcript of Clarkes conuicted or attainted before the sayd Iustices 34. H. 8. c. 14. Certifie without the writ of Certiorari But enquire whether this last bée nécdefull at this day by reason that Clarkes bée not now deliuered to the Didinarie by the Statute 18. El. ca. 7. And if a principal bee attainted of murder or felonie in one Countie wher vnto an other is accessorie in an other Countie then vpon writing from the Iustices of Gaole deliueric or Oier and Terminer to the Custos Rotulorum where such principall is attainted he must certifie in writing under his Scale to the said Iustices Whether such principall be attainted or other wise discharged or not that they may procéeds there upon to the trial of the Acceslorie 2. E. 6. ca. 24. But in cases where Iustices of the Peace haue power to receyue Enditements and no power to procéede any further vppon them whereof you haue alreadye the eramples in the seuenth Chapter of thts seconds Booke there they ought to sunde vppe and certifie the Enditements them felues and that of duetie as I thinke without any Certtorari commaunding the same bicause hauing none auctoritie to heare and trye the offences the Recordes thereof shall bée vnprofitable before them and therefore they can haue no iust cause to reteine them and yet for the more suertie it is specially commaunded by 5. El. ca. 1. that they shall certifie the presentmentes of some offences against that Statute And so if a man bound to kéepe the Peace doe make default of apparance at the next Quarter Sessions the Recognulance it selfe togither with the Recorde of that default must be certified into the Chauncerie Kings Benche or Excheaquer that execution 3. Henri 7. cap. 1. and so ought it as I thinke if it bée presented that the partis hath for fayted his Recognusance by breache of the peace And likewise if it bee presented before them that the chattels of a man attainted of felonie bée in the handes of an other For in these and such other cases where they can not of them selues proccede they ought to sande the Recordes to such as haue auctozitie to determine vppon them and otherwise they doc not discharge that duetie which the words Saluis c. alys ad nos inde spectantibus in the Commission doc séeme to expecte at their handes Furthermore the Statute of Purueyours 2. 3. Phil. Mar. cap. 6. doth appoynt the Iustices of the Peace to certifie to the Treasorer of the Queenes housholde the Dockets of Purueiours brought to their Sessions by Constables that the seruing of such Commissions and the true aunswearing of purueyances may bée the better eramined thereby and although it may bée doubted whether these bée Recordes or no yet for that they are to bée certified from the Sessions of the Peace I sticke not to afoard them this place And if you will also repute in this number the Licences and such other ates of that kinde which passe at the Sessions of the Peace I will not bée against it Louching the Certiorari if it be made accordingly the is of force to remoue not only Enditements or other executorie Recordes wherein the Iustices of Peace can goe no further and whereof I haue spoken already but also the Recordes of caused fully and lawfully heard and determined by them to the ende that they may bée reuersed and adnulled in the Kinges Benche if good matter and cause due so require Certiorari For that preheminence hath the Kinges Benche as you may see by Proofe yea all other the higher Courtes may write to the Iustices of Peace to certifie their Recordes that doe make for the Triall of causes hanging in them as you may reade 19. H. 6. 19. where they of the Commune Place did send to the Iustices of Peace for an Enditeiment bicause in a writte of Conspiracie brought before them it was materiall to haue it And yet neither they of the Commune Place nor Kinges Benche do use to write for Enditements or such other Recordes unlesse they bée there vnto enduced by a cause hanging in their owne Courtes before them For otherwise the right way to remoue them is by Certiorari out of the Chauncerie from whence they may bée transferred by Mittimus to any other Court 41. lib. Ass Pl. 22. Knyuet Chiefe Iustice Howbeit a man may gather vpon the Booke 1. R. 3. 4. that if any Recorde bée sent up without warrant to such a higher Court they may there procéede vpon it bicause it is a Recorde in that Court and that Court is the Court of the Quéene aswellas the other Of the genrrall or Quarter Sessions of the Peace CAP. XIX WE haue hitherto laboured and at the lengthe runne ouer sundry thing which in the opinion of some men bée commune to all Sessions of the yeare And yet becuse there bée also certayne thinges as it séemeth to mée appropriated some to any and others to some one of the generall Sessions it remayneth that we nowe distinguishe the Sessions of the Peace and enter into consideration what is a generall and what a speciall Session The generall Sessions of the Peace bée those which are prouided for the generall execution of the auctoritie of the Iustices of Peace whether you respect the limits of the place within their Commission or the boundes sof power procéeding from the Commission and Statutes The generall Sessions For at these Sessions as sayth M. Fitzh generally
course of the Commission whiche descendeth by degrées of age and time from elder to latter lawes and Statutes and for my Warrant herein I vouche the Recorde 20. E. 3 in dorso patent parte 2. membrana 7. where in a Commission of the Peace to Adam of Scarborowe and others they are charged to putte in execution the Statutes of Winchester Northampton and Westminster made the fift yeare of that King After this the Statute of Cambridge whiche worde in déede as Maister Fitzh thinketh is mistaken for Canterburie and was made there 12. R. 2. ca. 7.8 .10 concerning Artuficers Labourers Seruauntes and Vagaboundes for of Hunters it hath no worde whatsoeuer the Commission say of Venatoribus whiche should be Viatoribus as I thinke the Statute 1. H. 4. ca. 7 2. H. 4. ca. 21 of Liueries and Badges and the Statute 3. H. 5. ca. 6. .7 of Counterfayting Clipping and Washing money The same Clause also giueth them power to kéepe and cause to be kepte al other Statutes made pro bono pacis quieto regimine populi by whiche wordes the Commission meaneth as I thinke all Statutes for Armor for that tendeth to the kéeping of the Peace as the Statute of Winchester it selfe confesseth All Statutes for arresting of Robbers Murderers Felons Royotters and Suspected Persons whiche are euerie where saide to be againste the Peace All Statutes concerning the duties of Shirifes Bailifes Conestables c. without whiche the Peace can not be kepte as the Statute of Northampton 2. E. 3 ca. 4. plainelie affirmeth and al Statutes made for the repressing or punishment of Force Violence and Fighting This first Clause or Assignauimus is closed vp with a declaration of the meane by which they shall cause the Peace and these Statutes to be kepte that is to saye by chastising the offendors either according to the orders of the saide Statutes or by taking suertie of them for their kéeping of the Peace or for their good abearing or by imprisonment vntil they wil be so bound But here before I conclude this Clause I must admonith the reader that these statutes of Laboureâ—s Seruants Artificers and Vagaboundes be repealed by new Actes of our time prouided in that behalfe and that therefore they are vainely rehearsed in the CommissioÌ„ at this day Imperfections in the CommissioÌ„ It séemeth also that the Statute 3. H. 5. ca. 6. for the washing clipping and fyling of money ought to haue no place in the Commission of the Peace at this day for those special Treasons be repealed by the generall wordes of 1. Mariae although the same offences be made Treason againe by 5. Eliza. ca. 11. yet that newe Statute giueth no power therein to the Iustices of the Peace But yet as concerning the counterfayting of false money the Iustices of Peace haue still in mine opinion power to enquire by vertue of that Statute 3. H. 5. ca. 7. and by this Commission bycause that that Treason was declared by the Statute 25. E. 3. and therefore it is not now repealed by 1. Mariae as the others were And these as also that mistaking of CaÌ„bridge for Caterburie the inserting of that words per quos rei veritas c. in thys first clause wtout any sense the stil calling of the that be the Commissioners custodes pacis according to the old name omitting throughe the whole course of the CoÌ„missioÌ„ to giue vnto the once the name of Iustices of the Peace althoughe in all Statutes since 36. E. 3. they be so called bée some of the imperfections that I meant when I thought it méete to haue the Commission reformed Neither may I wel ouerpasse that by these wordes Et ad omnes illos quos contra formam Statutorum proedictoruÌ„ c. delinquentes inueneritis pun iendos prout secundùm formam Statutorum proedictorum fueru facienduÌ„ c. in this first Assignauimus greater power seemeth to be giuen by the letter of the CommissioÌ„ than is ment by the Author of the Commission for by these wordes it séemeth that one Iustice of the Peace may punish the Treason of counterfaiting whiche I thinke is more thaÌ„ is thought méete to be put into his haÌ„vs And in the commissions next folowing the Statute it selfe of 3. H. 5. euen for that reason was placed in the last Assignauimus of those Commissions The second Clause or Assignauimus first enableth all or anie two of these Iustices for so M. Fitzh taketh the words Vos quoscunque vestrum to enquire of al Felonies and Trespasses and of all offences done againste those Statutes that are contained within the same clause and to enquire of all Shirifes and other inferiour Officers that be remisse in the execution of the saide laws statutes committed to their charge 2. Clause or Assignauiâ—â—s Then it authorizeth them or any two of them to procéede and to make processe vpoÌ„ al auntient present Enditements vntil the parties shal either be take or shal yéeld theselues or be outlawed for their contumacie Here also that form of this Comission desireth help in that there is reference made to those Statutes of Artificers Labourers and VagabouÌ„ds which be repealed as I told you And also metioÌ„ made of Inditemets take to long ago to make any processe out vpon them at this day But for as much as it auailed little to the correction of offendors to haue their faults brought to light by Enquirie vnlesse Iudgement Execution had bene also giue done vpon the same with some conuenient spéede therefore the thirde Clause or Assignauimus in the Commission was added which giueth power to the Iustices of the Peace or to two of them whereof the one muste be one of the select number of them now commoÌ„ly called of the Quorum bicause the CoÌ„missioÌ„ in making that choise beginneth with that word to heare determine al the offences coÌ„prehended within the same to chastise the offendors according to the laws customes of the Realme according to the Statutes in that behalfe made ordeyned But yet so that if any question or difficultie do arise concerning Extortions the they should not procéede to Iudgement thereupon without the aduise of one of the Iustices of the one Bench or of the other or who be their Commune Oracle for aunswere in Law of the Iustices of Assâ—sâ— By the equitie of whiche Prouisoe M. Fitzh Fo. 7. thinketh that they are likewise restrayned in all cases of doubt whatsoeuer howbeit he graunteth that if they do procéede of the selues their Iudgement standeth good vntil it be reuersed by Error 3. Clause or Assignauiâ—â—s Decision of difficulties or questioÌ„s arising before Iustices of the peace These of the Quorum were wont not without iust cause to be chosen specially for their learning in the laws of the Realme and therefore there is no separatioÌ„ metioned til the CommissioÌ„ come to giue the power to heare and determine in which
The sorts of punishment Corporal punishment is eyther Capitall or not Capitall Corporall Capitall or deadly punishment is done sundrie wayes as by hanging burning boyling or pressing not Capitall is of diuers sortes also as cutting off the hand or eare burning or marking the hand or face boaring through the eare whipping imprisoning stocking setting on the Pillory or Cucking stoole which in olde time was called the Tumbrell Of this kinde of punishment our olde lawe making pretious estimatioÌ„ of the liues of men had moe sortes than we now haue as pulling out the tongue for false rumours cutting off the nose for adulterie taking away the priuie partes for counterfaiting of money c. Vnder the name of Pecuniarie punishement I coÌ„prehend al Issues Fines a mercâ—aments Forfetures of offices goods or laÌ„ds Pecuniarie And if the Iustices of Peace may by vertue of their Commission deale with suche Conspiratours as do confederate togither to cause any person vniustly to be indited of Felome where of after ward he is acquited as some do think they may thé is ther a speciall punishment in that case appointed by lawe which in 24. E. 3.73 is tearmed Vilanous and may be well called Infamous because the iudgement in suche case shall he like vnto the auntient iudgement in Attaint as it is saide 4. H. 5. Fitzh Iâ—famous Iudgement 220. and is in 27. lib. Ass P. 59. set downe to be that their othes shall not be of any credite after nor lawfull for them in person to approch the Quéenes courts that their lands and goods be seazed into the Quéenes hands their trées rooted vp and they imprisoned c. And at this day the punishmet appointed for Periury hauing somwhat more in it than Corporall or Pecuniarie paine stretching to the discrediting of the testimonie of the offendor for euer after may bée partaker of this name That Iustices of the Peace bee Iudges of Recorde CAP. XIII IT maketh not a little both for maintenance of the Peace and for the credite of the Iustices thereof that they are numbred amongst the Iudges of Recorde for on the one side euil doers wil be afraid when they shall sée Memorialles of their wickednesse before their eies and on the other side the procéedings of those Iustices shall be so much the more reuerenced set by as it shall appeare that their endeuours are countenaunced with the fauour of authoritie And therefore let us sée what is meant by the word Recorde The Latine men vse Recordor when they will signifie to kéepe in minde or to reméber in which sense the Poet saide Siritè audita recordor Recorde what it is And after the same sense also doeth oure Lawe use it For Records be nothing else but Memorialles or Monuments of things done before Iudges that haue credite in that behalfe And therefore where King E. I. doth in the beginning of the Booke called Britton set foorth the Iudges of his Courtes he saith of some that they shall have authoritie of Record and of others that they shall beare Record all which do meane but one thing namely that they shall be trusted in the reporte of causes happening before the and we yet say in common speeche Suche a man shall beare record of a thing when we intend to say that he remembreth it and can beare witnesse of it So that in the vse of the word there is in maner no differece and therefore let us examine the matter One man may affyrme a thing and another may deny it but if a Record once saye the worde no man shall be receiued to Auerre or speake against it For saith M. Bracton Fol. 156. writing of a speciall case where the Shirife in his Countie hath Record If men shoulde bee admitted to deny the enrolled actes of the Court then would there neuer bee any ende of controuersies And therefore to auoide all contention that may arise whilest one saith one thing and one other saith an other thing the Lawe reposeth if self wholy and solely in the report of the Iudge and hereof it commeth that he can not make any Substitute or Deputie in his office as M. Bracton and Britton bothe do affyrme séeing that he may not put ouer the confidence that is put in him This Record or Testimonie is first contained within the brest of the Iudge as our Law speaketh afterward committed to the Rolles which are therefore figuratiuely called Records also For you may sée 7. H. 6.28 in Hildebrands case 19. H. 6.9 and elsewhere that during all the time of that Terme in which any thing passeth before the Iustices at Westminister the Record therof is in Scrinio pectoris in their owne harts or breasts so that they may at their own pleasure correct or amend it But that after the Terme ended it is only in their Rolles ouer the which they haue no coÌ„trolment The Rolles be Recordes And this agréeth right well with that which Britton F. 01.3 affirmeth saying in the Kings person thus And albeit that we haue graÌ„ted to our Iustices to beare Record of the pleas pleded before the yet by this we will not that their record shall be any waraÌ„t in their own wroÌ„g nor that they may raze or amed their Roll nor make Record against their enrolment Thus much generally of al Iudges of Record Now touching our Iustice of the Peace it is the opinion of the Court 9 E. 43 and 14. H. 8.16 and of diuerse other Books in our lawe that euerie one of them by himselfe is a Iudge of Recorde For as you haue heard he is made by the great Scale a matter of Recorde and hath Iudiciall power giuen unto him euen by the first Assignauimus of the Commission He hath also a Scale of his Office by the opinion of Brudnell 14. H. 8.16 if he make any WarraÌ„t although it be beyonde his auctoritie yet it is not disputable by a Conestable or other inferiour Minister but must be obeyed And he maye take a Recognisance for the Peace as appeareth 7. H. 4.34 common experience telleth it which none caÌ„ do but a Iudge of Recorde bicause the acknowledging of the sum is to remaine as a matter of Recorde Yea by good opinion 2. H. 7.1 A Supersedeas of the Peace made by one Iustice of Peace under his seale being brought into the Sessions is a sufficient Recorde to proue that there is a Recognisance of Peace taken by the same Iustice and warrant ynoughe to call the partie bounde thereuppon and if he make default to Recorde the same Moreouer his Recorde or testimonie is made in some case of greater force and value than an Enditement by the oath of twelue men for his Record as shall appeare hereafter in place conuenient shall conclude the partie so that he shall not be admitted to Trauerse or gainsay it by 21. H. 6.5 Fâ—zh Fol. 18.6 upon the statute 15. R. 2. ca. 2.11 H. 7. ca. 15. 33.
Recognusance it selfe according as he now ought to doe by the Statute 3. H. 7. ca. 1. And this may be gathered vpon the opinion 2. H. 7.1 and maye bée séene by this form of it here vnder written GEORGE MVLTON one of the Iustices of the Peace of our Soueraigne Lady the Queenes Majestie within the Countie of Kent To the Shirife Bailifes Conestables Borsholders Ministers and other the Faithfull subiectes of our said Soueraigne Ladie within the saide Countie and to euerie of them sendeth greeting For as much as A. B. of c. The forme of a Supersedeas by a Iustice of the Peace Yeoman hath personally come before me at Ightham c. and hath found sufficient suertie that is to say C. D. E. F. c. Yeomen either of the which hath vndertaken for the said A. B vnder the paine of xx lb and he the said A. B. hath vndertaken for himselfe vnder the peine of xl lb that he the saide A. B. shall well and truely keepe the Peace towards our said soueraigne Ladie all hir liege people and specially towardes G. H. c. Yeoman also that he shal personally apeare before the Iustices of the Peace of our said soueraign Ladie within the said Countie at the next general Sessions of the Peace to be holden at M. there Therefore on the behalfe of our said soueraigne Ladie I commaund you euerie of you that yee vtterly forbeare and surcease to arrest take imprison or otherwise by any meanes for the said occasion to molest the saide A. B. And that if you haue for the said occasion for none other take or imprisoned him that then you do cause him to bee deliuered and set at libertie without further delaye Yeouen at Ighthā aforesaid vnder my seale this last day of Iuly in the xxiij yeare c. Which also may bée in the name of the Prince and vnder the Teste of the Iustice of the Peace thus ELIZABETH by the grace of God c. To the Shirife c. greeting For as much as A. B. hath come before G. Multon one of our Iustices of peace within our said Coūtie and hath found c. We therefore commaunde you and euerie of you that ye forbeare c. Witnesse the said G. M. at Ighthā aforesaid c. Thus muche of the Supersedeas issuing from a Iustice of the Peace the which ought to with-holde and stay the procéeding of his fellowe Iustices in the saide cause in so muche that if anye Officer by any of their Warrants hauing this Supersedea deliuered to him wil neuerthelesse vrge the partie to finde new Suerty for the peace he may refuse to giue it and if he be committed to prison for suche his refusall he maye as I thinke haue his action of False Imprisonmente againste the Officer vppon the same Much more then will a Supersedeas that commeth out of the Chauncerie or Kings Benche or from anye Iustice of the Kings Bench discharge such a Precept for the Peace awarded from any Iustice of the Peace Supersedeas out of an higher court And therefore if the Iustice of the Peace to whō such a Supersedeas shal be deliuered wil not thervpon surcease an Attachment may be awarded against him for his comtempt and he may be imprisoned and fined for it It is good counsell therefore that M. Fitz in hys Nat. Br. Fo. 238 giueth where he willeth the Iustices of the Peace after such a Supersedeas receiued to forbeare to make anye Warrant to arrest the partie it they haue awarded it then to make their owne Supersedeas to the Shirife and other Officers therby commaunding them to surcease to execute it This impediment of Supersedeas lying after this sort as you haue séene in the waye to the Iustice of the Peace thus passed ouer let vs nowe suppose the partie serued with the precepte to come before some Iustice of the Peace and let vs enter into the taking of the Recognusance of him for that is one part of the execution of the Warrant for the Peace and may doe seruice whether the partie come to him that made the Precept or to any other The taking of the Recognusance for the Peace If the Iustice of the Peace deale in thys matter as a Iudge and by vertue of the Commission then the number of the Suerties the summe of their bonde their sufficientie in goods or landes the time how long he shall be bounde and some other such circumstances are referred wholie to his own consideration and if he be deceiued in the abilitie of the Suerties hée maye compell the parties to put in others Marrow The Commune manner is to take two Suerties desides the partie himselfe and good reason it is that those shuld be such as haue their names registred in the Booke of Subsidie for albeit that here and there some maye be sufficient that were not assessed to the Queene yet it standeth not well togither that hée shoulde become bounde to the Prince in tenne or twentie poundes that was not in the Subsidie found worth any thing at all But if he commmaunde the Peace as a Minister in execution of the Writts of Supplicauit then he must behaue himselfe as the Writte it selfe directeth him and that hath not bene alwayes after one manner for some forme commaundeth him to take sufficiente Manucaptors in any peine or sum to bée reasonably set by himselfe so that hée will bée aunswerable for it at his owne perill and some willeth him to take sufficient Suertie in a summe certainelye prescribed vnto him as a hundred poundes in all or euerie of them in twentie pounds as it may bée séene at large in the Register of Writtes Fo. 89. A Iustice of the Peace saith Maister Marrow maye take this Suertie by a Gage or Pledge which shall not be forfaited therby but paunded onely that the partie shall vnder a certaine peine kéepe the Peace whiche peine he shall forfaite it he breake the Peace And by his opinion a Iustice of the Peace may also take this Suertie by an obligation made to himselfe by the name of Iustice of the Peace For so shall it bée saith hée advsum Domini Regis But if it were made vnto him without his name of Iustice of the Peace that then it coulde not bée to the vse of the King vnlesse it had the words advsum Domini Regis Maister Fitzharbert on the other side in his Nat. Bre. Fo. 81. holdeth that suche an Obligation taken to the King by a Iustice of the Peace is nothing worth for a man can not bée bounde to the Prince sayeth he but onelye by matter of Recorde vnlesse he will afterwarde come into a Courte of Recorde and cònfesse it to bée his déede pray that it may bée Enrolled there But the new Statute 33. H. 8. ca. 39 hathe made a plaine law in these cases willeth that all Obligations and Specialities made for any cause touching the
maister not to prouide so much howe they may escape the breach of a Recognusance or punishment of our lawes as to foesee that they kéepe the lawe of God and doe nothing against honestie the one as knowing that the wife is his owne fleshe and the other as considering that he also hath a Maister in heauen Euerie man also maye take his kinsman that is madde and may put him in a house and binde and beate him with roddes without breache of the Peace 22. lib. Aff. plac 56. A Constable or other Officer or any other being of their companie that shal be driuen to strike any person for the better executing of their Office or charge as in many cases they may lawfully doe breaketh not the Peace nor shal be in any perill of forfeiting any Recognusance of the Peace by reason of any such assault or batterie as may bée well inferred upon the booke cases 17. E. 4. 5 2. E. 4. 6. 8 4. H. 7. 1 14. H. 7. 8. For suche Actes bée iustifiable And sée for this purpose also M. Stamforde Fo. 13. 14. 15. Besides this if a man be inforced to repulse violence done unto his owne person or to the person of his wife father mother childe kinsman maister seruant or to his goodes being in his possession either by threatning or striking againe his so doing is also iustifiable as may be séene in Marr. 33. H. 6. 18 19. H. 6. 3 9. E. 4. 48 35. H. 6. 50. But a Fermer or Tenant cannot iustifie suche an acte in defence of his Lanlorde nor a Commoner in defence of the Maior or Bayliffes of a corporate Towne If one man also hurt or kill an other at Fence play or at the Title Turneament or Barriers in pefence of the Quéene and by hir licence or in a wager of Battell for the trial of a cause according to the auncient Lawes of this Realme it is no breach of the Peace at all Marr. Thus farre of those breaches that maie bring daunger to a Recognusance of the Peace for some others there bée whiche are in a degrée against the Peace so that an Enditement Contrapacem may bée founde vpon them but yet no forfaiture of such a Recognusance shall ensue of them Breaches of the Peace that make no breache of bond for the Peace As if a man so bounde doe take a mans goodes wrongfullie so that it bée not from his person or doe Rauish a Warde from the possession of his Garden or do a Trespasse in an others mans corne or grasse or do Disseasse an other of his landes or do enter into landes where he ought to bring his Action it will bréede no forfaiture of his bonde Therefore let vs nowe come to the pacifying and punishing of the Breache of the Peace upon the person by one Iustice of the Peace out of the Sessions A Iustice of the Peace is undoubtedly for this purpose endowed with no lesse power thaÌ„ euerie Prâ—uate man or any Constable hath as it is plaine by 14. H. 7. 8 9. E. 4. 3. And therefore it may not be thought Heterogeneum or besides my purpose if I shal shew what both a Priuate man and Constable may do in this case yea rather I choose to vtter this matter vnder their names to the end that I may with the one labour bewray the duties both of them and of the Iustice of the Peace him selfe in this behalfe The Lawe looketh that euerie Priuate person whom it shall happen to be present at an Affray Assault or Batterie for now I will confounde those names should doe his parte to departe them that fight together and it doth to that ende enable him also with some portion of auctoritie The duty of a stander by at an Affray For if two be fighting every Stander by may lawfully and shall do well to put them in sunder and if he take hurt thereby he shal haue his remedy by Action against him that did the hurt To parte them But yet he being but a Priuate man may doe no hurt if they resist him for they also stall then haue Action for it against him wherein his case differeth as you shall sée anone from the case of an Officer And if an Affray be in the high streate and one commeth towardes it with harnesse or weapon to take with the one partie euerie man that séeth it may stay him til the Affray bée ended Any man also may stay the Affravours vntill the storme of their heate be calmed and then may he deliuer them ouer to the Constable to imprison them till they finde Suertie for the Peace but he him selfe may not commit them to prison vnlesse the one of them be in perill of death by some hurt for then may any man carrie the other to the Gaole till it be knowen whether he so hurt will liue or dye as appeareth by the Statute 3. H. 7. ca. 1. To stay them But as the kéeping of the Peace is more speciallie recommended to the charge of Iustices of peace CoÌ„stables petit-Constables Borsholders Tithing men and such like Officers so be they also therefore armed with a larger measure of auctoritie And there fore if a Constable or such other Officer doe sée a man endeuouring to make an Affray he may coÌ„maunde him to auoide vpon paine of imprisonment and if the Affray bée great or dangerous he may make Proclamation and may commaunde the parties to pryson for a small time till their heate be passed ouer then he must deliuer the without any fine taking The Officers duetie in an Affray But if twoo doe vse onely hoate woordes one against the other the Officer may laie no handes vpon them vnlesse they doe also drawe weapon or doe otherwise offer to strike If they once fight togither then may the Officer departe them and if he happe to bée hurte in that doing he maye haue an Action of Trespasse for it but if any of them bée hurte by him in the resistance no Action lieth for them For the Officer ought to doe his beste to departe them in so muche as if it bée presented at the Sessions of the Peace that he was present at an Affray did not vse his indeuour to put them in sunder that fought togither he shall bée fâ—â—ed for it Otherwise it is if he were not present but were onely tolde of the Affray Marr. If any of the parties bée in daunger by reason of a hurte receyued in the Affray then ought the Officer arrest and carrie the other to the Gaole vntill he shall finde suertie to appeare at the Gaole deliuerie Fitzh 72 38. E. 3. 6. 22 â—b Aff. pl. 56. And if twoo men bée fighting in a house the doores shut then may the Officer break open the doores to see the Peace kept though neyther of them have taken hurte And yet when the Constable hath taken an Affrayor he may not imprison him in his house but in the
testimonium huic praesentas certificationimeae sigillum meum apposm Dat. apud B. praedict die Anno supradictis By this you have séene what one Iustice of the Peace ought to do in execution of this Statute as a Minister and by the same you maye also sée what he maye doe therein of himselfe Ex efficio as a Iudge and without any Writte brought vnto him if one Iustice maye deale therein as a Iudge For not onely by the plaine wordes of the Statute of Northampton the Wardeins of the Peace haue power within their Wardes and are commaunded to execute this Acte vpon a prins But also by expresse speach in the Commission it selfe eucrye Wardein of the Peace hathe the Statute of Northampton committed to his charge So that both in the matter and manner the doing is all one sauing that if he doe it as a Iudge he nedeth notto make any proclamation the Statute being a prohibition in it selfe nor yet to sende any Certificat into the Chauncerie but only to make his owne Record of that which he shal do in this behalfe and thereout to sende some estreit into the Eschequer that the Queene may bée answered of the Armour or of the value there of And here prehappes the redemption of the imprisonment maye bée at the same Iustices discreation as in the former Statutes of 15. R. 2 8. H. 6. it séemeth to bée Of other breaches of the Peace with a multitude as by Riot Route or other vnlawful Assemblie c. CHAP. XIX OVr Parliaments séeing well that the assemblie of many for breach of the Peace offereth more daunger and hurt both generallye to the Commune wealth wherein it happeneth and perticularly to him against whom it is bent than the force of any one or two turbulent persons can bring haue no lesse carefully endeauoured to suppresse the one than wisely foreséene to preuent and punish the other And therfore not onely the Commission giueth power to enquire of Conuenticles againste the Peace but sundrie Statutes also haue deuised many meanes and paines to méete with and to punish the same wheras before they wet punishable only as other trespasses though sometimes by a greater and sometimes by a smaller fine as the case it selfe required Conuenticles Vnlawfull Connenticles bée not al of one fort for sometimes those are called Conuenticles wherein many do impart with others their meaning to kil a man or to take one an others part in al things or such like Champerties also Maintenances Conspiracies Confederacies and giving of Liueries to other than to Meniall Seruauntes and officers bée contained vnder the worde Conuenticles saith Mar. And it appeareth 27. lib. Assi Pl. 44. to bée one of the Articles enquirable in the Kings bench whether any persons take others to their Auowment and Protection and receiue of them rentes or other giftes yearely in the name of Chyuage or rther Cheifage bycause they séeme to take vpon them to bée their Cheifes heades or leaders Chyuage But for as much as all these couenaunts may bée without any apparant shewe of Assemblie against the Peace thoughe otherwise they bée finable offences vnder the name calling of Conuenticles as Mar. thinketh I will leaue them and resorte to those orther that bring manifest terror to the Subject Of these some consist of a number of people gathered togither disorderly for the cause of some one or of a fewe persons and do not bréede any generall or present danger to the Estate or Couernement and yet bée against law and be called Riots Routs and Vnlawful asseblies against the law against which the Statutes 13. H. 4. ca. 7 2. H. 5. ca 8 19. H. 7. ca. 13 were specially prouided and before that the penaltic of the Statute of Nort. 2. E. 3. ca. 3 ordained to bée laide vpon them by 2. R. 2. ca. 6. But others there bée that sauour of a more generall disobedience and bée either in regarde of the number or quarrell a verie Seede of Rebellion if not the Weede it selfe and are therefore also sometimes called Rumors great Ridings Routs Riots against the Peace 5. R. 2. ca. 6 7. R. 6. 17. R. 2. ca. 2. sometimes Assemblies of people in great number in manner of insurrection◠H. 5. ca. 9. and sometimes Rebellio is Infurrections and Rebellious Assemblies 15. R. 2. c. 2 8. H. 6. ca. 14 and 1. Mar. Parl. 1. ca. 12. Of all whiche so farrefoorth as the Iusices of peace haue interest in them I wil intreat but yet severally and so as either one or moe of the Iustices of Peace have to do with them and that out of the Sessions They of the first kinde bée as I haue said commonly called Riottes Vnlawful Assemblies and Routes But concerning the proper difference that is betwéene each of these thrée all men do not throughly agrée And therefore reiecting al diversities of opiniōs I wil folow the whiche I take to bee most colourable most cōmōly receiued at this day wherin neuerthelesse I submit my self vnto the experience of the Starchamber as to the best direction the the Iustices of Peace can haue to follow in this case Riot seemeth to come of the French word Riotte Rioter which signifieth to braule or scolde for commonly Riottes in deede do follow of braulling in worde Riotte And it is taken to bee Where there is an vnlawful assemblie of me gathered togither to commit an vnlawful act they do excecute it in deed as to beate a man or to enter vpō a possession forcibly or such like the fact is properly called a Riot An Vnlawful Aslebly is the cōpany of thrée Vnlawful persons or more gathered togither to doe Assembly such an vnlawfull acte althoughe they do it not in deede Vnlzwful Assembly Our Rout is the very same which the Germans do yet cal Rot meaning a band or great cōpanie of me gathered togither going about to execute or executing in déed any Kiot or vnlawful act Route And sayth Mar. it is said properly of the multitude the assemble theselues in such disorderly sort for their cōmon quarel As if the inhabitants of a Towneship do assemble to pull downe a hedge or pale to haue their Common where they oughte to haue none or to beate a man that hath done them some publike offence or displeasure But the Statute of 18. E. 3. Sta. 1. Whiche giueth processe of vtlagarie againste suche as bring Routes into the presece of the Iustices or in Affray of the people And the Statute of 2. R. 2. ca. 6. that speaketh of riding in great Routes to make entrie into lands to beate others and to take their wiues c. doe séeme to vnderstande it more largelie And it is a Route whether they put their purpose in execution or no if so bée that they doe go ride or moue forward after their méeting Broo. Tit. Riotte 4. 5. So as it séemeth a Route should bée a speciall
or bicause of Enditement in trespasse and not beyng in for any condemnation execution vtlawrie excommunication suertie of the Peace or commaundement of any Iustice or for beyng a vagabound Or haue taken any Obligation by colour of his office but onely to him seife vpon the name of his office and vpon condition onely to appeare according to the Writte or Warrant Or haue taken for an arrest aboue twentie pence Or if he or any other minister haue taken any thing for making of any Returne or Pannell or aboue foure pence for the copie of a Pannell aboue foure pence for the saide Obligation or for any warrant or precept Or anie Baily aboue foure pence for making any arrest or the Gaoler aboue foure pence vppon the committing to his warde of any person arrested or attached 23. H. 6. ca. 10. If any Shitife or other his minister haue arrested or imprisoned or caused any fine or raunsome or amerciament to ' bee leauied of any person by reason of any priditment or presentment made in the Shirifes turne or lauway witout processe from the Iustices of peace for the same first obtained Dr haue not brought in such enditmets and presentments to the Iustices of the Peace at their next Sessions Shirifes arresting or leauying fine for Enditements in his turne 1. E. 4. ca. 2. If any Shirife or any his ministers haue entered into his booke any plaintes in any mans name not being present in the Court either in his owne person or by sufficient and honest Attourney or Deputie Fr haue entred anye moe plaintes than the plaintise supposeth that he hath cause of action for or haue leaused the Shire amerciaments without booke endensed betwene them and two Iustices of the Peace Dr if the Baylie of the Hundred haue made default in warning or executing any warrant against any Desendant in the Shirifes Court Shirifes entring of plaintes and leauying amercements Bailie seruing warrant 11. H. 7. ca. 15. If any Shirife or his minister haue leauied any the debtes of the â—uéene without shewing to the parties the Cstreates of the same vnder the Seale of the Creates Shirifes must shew the Estreats vnder the Eschequer seale 42. E. 3 ca. 9. If any Shirife or Gaoler have denied to receaue felons by the deliuerie of any Cons tables or towneshippes or haue taken any thing for receiuing of such Shirife and Gaoler 4. E. 3. Ca. 10. In liberties the Baylifes Stewards and other ministers there haue like fées and punis hmentes for extortion as Shirifes and their minister haue out of liberites 27. H. 8. cap. 24. Fees in liberties If any Corner haue refused to doe his office vpon the views of a beade body by misadventure without taking any fée therefore Coroner â— H. 8. ca. 7. or haue taken vpon the view of the bodie of a man flayne or murdered aboue thirtéene shillings foure pence of the goods of the flaier or murderer if he had goods or otherwise of the towne where he was flaine in the day time and was suffered to escape 3. H. 7. ca. 1. If any Didinary or his Scribe or Register haue taken moe or greater fées for the probate of a Testament or for Letters of administration than he ought to take that is to say fire pence for the Scribe for writing the probate of a Testamente that shall be brought written in parchment and likewise fire pence for the Administration where the goods of the Testator or Intestate be not aboue fiue poundes Ordinary If the goods be avoue fius pounds and not aboue fortie poundes then two shillings fire pence for the Drbinarie â— twelue pence for the Scribe If they excéede fortie pouds then two thillings fire pence for the Drdinarie and two shillings fixe pence to the Scribe or else one penny for euery ten lines at ten inches length at the Scribes election the like shall be giuen for euerie copie of a Testament or Inuentarie or else after the rate of lines as before 21. H. 8. ca. 5. If the Drdinarie haue cited any man to beare witnesse in the Spirituall Court Dr haue exacted any Dth in any cause other than Testamentarie or Matrimoniall If any Parson Vicar or Curate haue taken aboue iiâ— pence for entring in the Church booke the licence of a sicke peron to eate sleth vpon the Wednesdayes 5. Elizab. ca. 5 Dr aboue two pence for registring of a Testime niall of any seruaunt departing from one place to an other Parson Vicar Curate 5. Elizab. ca 4. Quaere If the taking of Mortuaries or corps pres ets against the Stature 25. H. 8. C. 6. be extortioÌ„ or no. If the Clearke of the Peace haue taken aboue twelue pence for the inrolling of the bargaine and sale of any lande not excéeding fortie shillings by the yere or aboue two shillings fire pence if the lande excéede that value by the yeare 27. H. 8. ca. 16. Clearke of the Peace Dr if the Clearke of the Peace haue taken aboue two shillings in all for any licence and Recognusance of a Badger Drouer Kidder or Lader and for the registring therof 5. Eliz. ca. 12 Dr haue sake aboue twelue pence for a Recognusance of him that tabath a Roge into his seruice for one yeare 14. Elizab. ca. 5. If the Clearke of any Iustice of Peace haue taken aboue twelue pence for any Recognus ance of an Alehouse kéeper or Tippler 5. E. 6. ca. 25 If the Clearke of the market hath taken any commen fine to dispence with 〈◊〉 hath ridde with â—â—oe than fire horses or hath taried longer in the countrie than the necessity of his businesse required Clearke of the market 13. R. 2. ca. 4. If any Officer haue in any Toâ—vne taken Stauage or Shewage the is to say any thing for the shewing of wares or Marchaundise that be truely custonied to the Queene before 19. H. 7. ca. 8. If the Maior of this Towne of Maidstone and so of other Townes in other Shires haue taken aboue f. 〈◊〉 for sealing a Bushell measure or aboue ob for any other measure or aboue f. D. for sealing C. weight or aboue ob for halse C. weight or aboue a farthing for a my lesse weight 7. H. 7. ca. 3 11. H. 7. ca. 4. Sundrie other sees of Officers there be as of Alnageours Gaugeors Sergeaunts at Aimes and whereof there is not so common vse therefore I omit them If any Purueyour of the Quéenes Maiesties haue taken any thing of the value of fortie shillings or vnder without ready payment therefore made If any Constable or Borsholder haue not vpon request made assisted the owners to refist the purueyours so taking And if any of the Quéenes Officers haue procured any to be arrested or vered for such resistance 20. H. 6. ca. 8. Purueyours If any Purueyour haue taken or selled any timber trées méete to be backed but onely in barking time except it were for the
reparation or building of the Queenes houses or shippes Dr haue taken any more than the verie timber of sach trées 5. Elizab. cap. 8 If any suche Purueyour haue taken any thing of any man to the ende to spare him or haue taken corne by any other measure than by the striked Bushell or by any more than eight such Bushels to the Quarter or haue taken carriadge therefore without making readie payment 25. E. 3. ca. 1 36. E. 3. ca. 3 1. H. 5. ca. 10. Of Purueyours within fiue miles of Oxenford or Cambridge fee. z. 3. Phil. Mar. ca. 15 14. Eliz. ca. II. If any common Informour or Promoter as he is commonly called have compounded or agréed with any person for any offence against any penall Lawe without the order or consent of some of the Courtes at Westminister or have willingly delayed or discontinued his sute once commenced Iaformour 18. Elizab. cap. 5. If any man have raisâ—d hue and crie without cause or it being raised have not bene readie at the commaundement of the Shirise or at the hue and crie of the Countrie to pursue and arrest Felons or suche as have daungerously hurte any man And if the Shirife or any Baylises have not followed the hue and crie with horse and armour W. 1. 3. E. 1. ca. 9 3. E. 1. Hue crie Officium Coronatorius Statut. Winchester 13. E. 1. If the Watche of twelus men in euerie Borough haue vene kept from sunne rising to sunne setting betwene Aseension day and Michaelmas day to arrest straungers that passe by Statut. Winton Watch. If any Lorde of the Soyle have not enlarged the high way from market to market so that no dike bushe nor trée except greate trée bée within two hundreth foote of eache â—â—â—e thereof Statur Winton High â—ies If any persons except the Quéenes seruauntes and officers in doing her seruices and their companie aiding them in that behalfe have ridden or gone armed by daye or night or have brought force in affray of the people before the Queenes Iusties or otherwise Statut. Northampion 2. Edw. 3. cap. 3. Ride or goe armed If any person arrested or imprisoned for Felonie have benc negligently suffered to escape Escape by negligence 1. R. 3. ca. 3. If any bée a Barrettour or a common quarrellour or otherwise of euill name and fame 18. Edw. 3. cap. 2 34. Edw. 3. cap. 1. Barrettours Mainteynours Embraceours Or a Maintainour of quarrelles or an Cmbraceour of Iuries 33. H. 8. cap. 10 37. H. 8. cap. 7. The woorde Barrettour may seeme to bee derined eyther of the French Barat and so it seemeth to bee taken in the Statute of Champartie Barretour W. 2. ca. 49. signifying deceipt so that Barrettour should notisie a deceiuer or else of the Latin Baratro or Balatro as some write it whiche berokeneth a vile knaue or vnthrifre and by a Metaphore a spotte in the Common wealth But whatsoeuer the woorde do properly denote common vse Quem penès arbitrium est ius norma loquendi taketh it for a common quarrellour or a mainteinour of Quarrelles and in that sense I thinke it to stande in the olde Statute called Ragman If anie bée a Champartour that is to say one that mooueth pleas or suites or canseth or procureth them to bée moued at their owne costes to the ende to have parte of the Lande or other thing in variance Champartours 33. E. 1. If any Iurour in any Cnquest here have taken any thing of any man to make his presentment fauourable Iurour 5. E. 3. ca. 10. If any person have by him selfe or other for him giuen any liuerie of signe of companie or badge or reteyned any man other than his householde Seruaunt Officer or learned man in the Lawe Liueries of companies baâ—ges 1. H. 4. cap. 7 2. H. 4. ca. 21 8. E. 4. ca. 2. If any companie of menne other then menne of Fraternities and men of Artes in Citties and Boroughes have made any one generall suite of Clothe Boodes or Hattes amongst them to bee knowen by 7. H 4. cap 14. If any person have within these thrée monethes aduisedly and with a maâ—icious â—ntent agaynst the Queenes Maiestie of hys owne imagination spoken any false seditious and flaunderous néwes or sayinges of the Queenes Maiestie or haue within the saide tyme aduisedly and with a malitious entent spoken any suche newes or tales to the flaunder and defamation of our sayde Queene of the reporting or speaking of any other 23. Elâ—z cap. 2. False newes If any person haue by writing or open speache notified that the eating of Fishe or forbearing of Fleshe mentioned in the Statute for the Wednessday 5. Elizab. cap. 5. is of necessitie for saluation of soules or is the seruice of God otherwise than as other politike Lawes be 5. Elizab. ca. 5. If any person haue falselye and deceitefullie gotten into his possession any money or other things of any other mans by colour of false prtuie token or of counterfait letter made in an other mans name False tokens or letters 33. H. 8. cap 1. If any haue vttered them selues to bée Proctours hauing no sufficient auctoritie or haue gone about idle vsing crastie games or pretending skill in Palmestrie telling of vestinies or other abused sciences or that being whole and able in bodie and not hauing land Maister nor meane to get their siuing can give no reckning howe they gette their liuing lawfully If any Fencers Bearwards Common players in Enterludes or Minstrells not belonging to any Baron or personage of greater degrée Iuglers Pedlers Tinkers or Petit chapmen haue wandred about without licence of two Iustices of peace If any common labourers being able in bodie haue vsed loytering or refused to worke for the appointed wages If any haue counterfaited licences or passeported or haue vsed such knowing them to be counterfait If any Scholers of Oxford or Caâ—â—â—â—â—ge haue gone about begging not auctorized vnder the Vniuersitie Seale or shippemen pretending losse by sea or deliuered prisoners begging for their fées or trauailing to their countrie or friendes not being lawfully lycenced If any seruant departing out of seruice bée founde with a counterfait Testimoniall Vagabonds and Roges If any poore bodie haue frauailed from home towards Bathe or Buckston without lawfull licâ—nce or being proâ—ided for in his or hir parishe haue notwithstanding secondly wandred abroad without licence For all these bée Roges and Vagabounos 14. Elizab. cap. 5. If any Constable or Borsholder haue not bone his best endeuour to apprehende suche Roges as have begged or made aboad within their limits or haue wilfully suffered any of them to escape punishment And if any person haue giuen harborow or other reliefe to any such koge If any person haue hindered the execution of the Statute concerning Rogesf or haue made rescous to any person endeuouring the execution thereof Officers not punishiing
set foorth in the Statute of Drouers Badgers 5. Eliz. ca. 12. where it appeareth that vpon the examination of two lawfull witnesses the Iustices of Peace may make Processe as if it were vpon an Inquisition of twelue men Forced Information The like may they do vpon the Statute of Armour 4. 5. Phil. Mar. ca. 2. Sute betwene party and party And the berie like also may they doe vppon the Statute made against Forstallers 5. E. 6. ca. 14. which last sayd Statute séemeth for this point to haue bene followed as a Paterne by the other two so right they tread in the steps of the same Herunto also you may adde the examination of the M Marmers of ships wherin corne or victuall shall be transported against the meaning of the Statute 1. 2. Phil. Mar. ca. 5. Thus much of the knowledge of cause exhibited by such as either doe it at large for the Queene onely to haue the offence punished or be special1y allured thereto by regard of benefit growing in common to them with the Queene thereby Now of those that seeke to informe the Court for the profite due to them selues alone The knowledge that commeth this way is by the priuate sute and proper action of the partie and is therefore in the Statute 11. H. 6. ca. 6. tearmed a sute betwene partie and partie whereof that Statute had no lesse consideration than of those other sutes that bée for the Queene her selfe and therefore prouided that they also should not be discontinued by new Commissions of the Peace to be made I know that there be not many Statuts which do giue power to the Justices of Peace to hold Plea betwene partie and partie and I thinke it hath not bene often experimented vpon those very Statutes which do giue it and how the Judges do expound this verie Statute I can not tell Neuer the lesse because I may neither wittingly conceale any such parte of their auctority Iurisdiction although it were but my opinion nor safely reaport it without some proofe I will giue you one example of this kinde as I take it and leaue the rest further search The Iustices of Peace haue power to enquire heare determine of all the defaultes against the Statute made 23. H. 6. ca. 11. concerning the leuying of the wages of the knights of the Parliament as well by enquire at the kings sute as by action at the sute of the party In this and suche like as in Appeales by warrant of the large words of the Commission as hath bene sayd the Iustices of Peace ought to proceede after the vsuall manner of ather Courtes of Recorde at the Common law if I doe not miscall it and therefore I wil goe no further with it but will prosecute that hearing and determining that more properly pertaineth unto them if first I may shew you how they are sometimes preuented in that behalfe Of the Impedimentes of proceading vpon Enditements before the Iustices of Peace CAP. VII IT falleth out not seldome when Iustices of the Peace haus taken an Endâ—ement founde before them that they can not proceede to hearing and determining vpon it either bicause it is grounded vpon some such Statute as giueth vnto them no further power but onely to enquire thereof or els bicause the Enditement is taken out of their handes by Certiorari and conueyed to Iustices of a higher auctoritie at the sollicitation and by the meanes of some parties grieued to the end that either they may trauerse them aboue or there auoide them for insufficiencie of forme or matter And therefore Iustices of the Peace may only enquire of certaine the offences against the Actes 1. El. ca. 2 ca. 3 5. El. ca. 1 13. El. cap. 2. touching the acknowledging of the Queenes supremacie or the seruice of God or comming to the Churche or the stablishment of true religion as you may see 23. El. cap. 1. And they may onely enquire of any the Treasons or Misprisions of treasons made by the same Acte 23. El. ca. 1. Neither can they goe any further than onely to enquire of and to endite the offendours against any the Articles of the Acte made 23. El. ca. 2. concerning seditious rumors against the Queene In the rest so farre as I haue found their power of Enquirie is accompanied with the auctoritie to heare and determine also For this want of Jurisdiction is not found in the Commission of the Peace it selfe but onely in cortaine Statutes that for weightie causes doe restreine this further proceeding By what means such Enditements shall bée remoued to those higher Courtes I will shew you when I come to speake of Certifying the Recordes of the Sessions and will now goe on with those other Enditements that bée remoued by labour of the parties Albert that in the remouing of pleas betwene partie and partie from inferiour to higher Courts by Tolt Ponc Recordare c. there was wont to bée a probable cause alleaged for which the same were remoued yet in this case of the Crowne there néedeth no cause to bée comprised in the writ of Certiorari bicause they all bée the Courtes of the Queene and it breedeth neither iniurie to the offendour nor losse to any other person in what Court soeuer the offence bée tried This Certiorari then may commaunde either the Recorde it selfe or Tenorem Recordi to bée sent vppe and it ought to bée obeyed accordingly Enditements remoued by labour of the parties For vpon fayle thereof first an Aliâ—s then a Pluries vel Causam nobis significes and lastly an Attachment shall goe out against them that should sende it as M. Fitzh noteth in his Nat. Br. Fol. 245. but I haue heard that they vse also Sub poena at this day And albeit the Certiorari be a Supersede as of it selfe yet may the partie vpon the Certiorari purchased have a Supersede as also directed to the Shirife commauÌ„ding him that he arrest him not vpon that Record before the Iustices of Peace Fitzh ibid. Fol. 237. In which place also he doubteth whether the Iustices of Peace them selues ought of dutie to awarde their owne Supersedeas to the same effect after that the writ of Cortiorari is brought to their hands This writ of Certiorari is euer directed to the Iustices of Peace and yet as you haue heard the Custos Rotulorum onely hath the kéeping of these Recordes but the auncient Commission of the Peace had no Custos Rotulorum specially named in them and then this certifying belonged to them all which forme the Writ retaineth to this day And if it fall in question whether such a Certiorari were deliuered to the Iustices of Peace or no that must be tried sayth the Booke 10. H. 7. 24. by the verdit of twelue men Now if a Certiorari come to the Iustices of Peace to remoue an Enditement and the partie sueth not to haue it remoued but suffereth it to lye
of the Courte of Surueyours there is a generall Laws that all Dhligations concerning the Kings commoditie shall be made to himself by the words Domino regi c. Neither was there cuer saye they anye Duarter Sessions holden onely for the causes of Labourers by the lastices of Peace althoughe the petite Sessions of Constaâ—les were chiefly bent to that feruice And that the saide Statute 2. H. 5. didde meane the verie Sessions of the Peace no other they offer to proue by the auctoritie of those selfe same Statutes which bée alleadged already for the holding of the Quarter Sessions vntil the time of this Act of Queene Elizabeth for that they haue heretofore so construed and taken the Statute But to make the proofe full they adde that euen this same Statute of repeale 5. El. cap. 4. both in a certaine place there of speake of the Quarter Sessions to be holden after Easter which cannot be vnoderffoode of any other of thosse Statutes cocerning the Sessions but onelie of 2. H. 5. cap. 4. because the reste that haue certaintie do appoint that Session eyther at the Annuntiation of the Lent And like wise that the Statutes 8. Eli. cap. 9. concerning the prices of vesselles of â—ope Ale and Béere and 14. Elizab. cap. 5 and 18. Elizab. cap. 3. concerning poore people and vagabonds haue mention of the Quarter Sessions to bée holden next after Easter Which Statutes as they make not in this point any new Lawe but bée grounded vpon former Lawe supposed to be in force So allowing of any one of these soure Sessions they doe therein giue allowance of all the other thrée also As for answeare to the obiection of the nearenesse of the Michaelmasse Sessions to the Michaelmasse Terme they say that this was foreséene to the makers of that Statute 2. H. 5. who do therein dispense with the absence of the Iustices of the Benches at Westminst the Barons of the Escheaquer c. And yet to the end that they also might once in the yere be present at a Session of the Peace for the better direction of that seruice the Statute 33. H. 8. ca. 10. did specially appoint that the Easter Sessions shoulde bée holden yerely vpon the Tewsday nexte after Low Sonday in euerie Shire of the Kealme Now if it shal séeme to any maÌ„ a strange thing that I moue question of the tyme of holding these Sessions I lette him knowe firstâ— that it is one of the Articles of the Oath ministred to the Iustices of Peace that they shall holde their Sessions after the forme of Statutes thereof made Secondly that the articles of many Statutes are inquirable as it séemeth to me onely at the Quarter Sessions because they are not in the Commission at all and the Statutes them selves doe appoint of none other Inquiry but at the Quarter Sessions and then if the Iustices of Peace do not hold their Quarter Sessions according to the times appointed by Lawe they be no Quarter but Speciall Sessions and consequently such Statutes shall eyther not be enquired of at all or else enquired of without Warrant both whych be verie greate inconueniences So that this matter if it be not rightly conceiued tendeth both to the hurt of the conscience and to the hindrance of this seruice Touching the continuance of these quarter Sesions I haue shortelye but this one thing to say that almost two hundred yeres agoe it was ordained by statute 12. R. 2. cap. 10. that they shoulde bee continued three dayes togither if neede were vppon paine of punishment And yet in these days of ours wherein the affaires of the Sessions be excéedingly encreased and consequently more néede to continue them now than béefore many doe scantly affoorde them thrée whole houres besides that time whyche is spent in giving of the charge How long the Quarter Sessions shall continue But it is more than time that I descende to some of those Statutes whych do specially relie vppon the Quarter Sessions therefore I will firste beginne with such as haue refeence indifferently to any of them Things referred to the quarter Sessions The Iustices of Peace maye in their open Quarter Sessions enquire of heare and determine all offences excepte treason and misprision of treason committed againste the Acte made 23. El. ca. 1. for reteyning the Queenes subiects in their due obedience Pope They may also in their open Quarter Sessions enquire of such as do extoll the vsurped auctoritie of the sea of Rome againste the Statute 5. Eli. ca. 1 And the Clarke of the Peace must reade that Acte at euerie of the Quarter Sessions Pope Acte read And they may in their generall or Quarter Sessions enquire of seditious wordes and rumours vttered againste the Queenes Maiestie 23. E. cap. 2. Seditious wordes All the Articles mentioned in the Statute 33. H. 8. cap. 10. shall be enquired of reformed by the Iustices of Peace in theyr auntient Quarter Sessions 37. H. 8. cap. 7. Execution of Statutes They may in their generall Sessions determine of the offences of killing and selling Wainlings vnder two yeares age 24. H. 8. cap. 6 13. Eli. cap. 25 and of the offences of not kéeping Mylch Kine and Calues 2. 3. Wainlings Phillip Mar. cap. 3 13. Elizab. cap. 25. Milch Kine and Calues The Enquirie Hearing and Determination of Forestallings ingrossings and Regratings maye bée at the Quarter Sessions 5. E. 6. cap. 14. Forstalling The Enquirie whether Ale-house kéepers haue forfeited theyr Recognusances ought to bée at the Quarter Sessions 5. E. 6. cap. 25. Alehouse The Fine for vnlawfull Huntyng by night or wyth painted faces shall bée sette at the nexte generall Sessions 1. H. 7. cap. 7. Hunting Iustices of the Peace maye in sheyr Quarter Sessions heare and determine offences againste the Statute of Armour 4. 5. Phil. Mar. cap. 2. and may there enquire of heare and determine the offences of putting to pasture anye stoned Horses c. vnder the heighth appointed by the Statute 32. H. 8. cap. 13 And maye there also enquire of conueying Horses into Scotlande 23. H. 8. cap. 16 1. E. 6. cap. 5 1. Elzab cap. 8. Armour Horses They maye at their like Sessions enquire of and determine te offences of not amending the highwayes 2. 3. Phil. Mar. cap. 8 5. Elizab. cap. 13 18. Elizabeth cap. 9. Highwayes In their Quarter and generall Sessions they ought to enquire of heare and determine the offences of not kéeping continuall housholdes vppon the Precinctes of the late Monasteries 27. H. 8. cap. 5 5. Elizab. ca. 2 14. Elizab. ca. 11. Keepe houholdes And in their Quarter Sessions they may heare and determine the offences of Informers 18. Elizab. cap. 5 And at the like Sessions they may doe the like for offendors in Periurie 5. Eliz. ca. 9. Informers Periurie Suche as bée suspected of