in any matter depending before them 3. That they shall keepe their Sessions according to the statutes 2. H. 5. 4. which as it seemeth ought to be in the weeke after the Feast of S. Michael after the Epiphany after the clause of Easter and after the translation of S. Thomas which is the third of Iuly 4. That all Issues Fines Amerciaments and Forfeitures which happen before them be by them truly entred and sent into the Exchequer 5. That they take nothing for doing their office but of the King and the accustomed Fees appointed by the statutes 6. That they shall not direct any their warrants to the parties but to the Bailiffes of the County or to other the Kings Officers or other indifferent persons 26. The other oath concerning the Kings supremacie is by force of the statute made secundo Eliz. ca. 1. The forme of which oath also followeth in these words videlicet 27. I. R. B. doe utterly testifie and declare in my conscience that the Kings Highnesse is the onely supreme governour of this Realme and of all other his Highnesse Dominions and Countries as well in all spirituall and Ecclesiasticall things or causes as temporall And that no forraigne Prince person prelate State or potentate hath or ought to have any Iurisdiction power superiority preheminence or authority Ecclesiasticall or spirituall within this Realme And therefore I doe utterly renounce and forsake all forraigne Iurisdiction powers superiorities and authorities and doe promise that from henceforth I shall beare faith and true allegiance to the Kings Highnesse his heires and lawfull Successors and to my power shall assist and defend all Iurisdictions privileges preheminences and authorities granted or belonging to the Kings highnesse his heires and Successors and united and annexed to the Imperiall Crowne of the Realme So help me God c. 28. Yet it is most usuall that both these oathes are taken by a speciall Commission viz. by a writ of Dedimus potestatem directed out of the Chancery to some ancient Iustice of Peace to take the same oathes which by them is to be certified into the same Court at such day as the writ commandeth 29. If the Iustice of peace or other person to whom a Dedimus potestatem shall be directed to take the oathes of a new Iustice of peace shall returne the Commission and the Oathes to be taken when they were not taken this is fineable in the Star-chamber 30. So if the new Iustice of peace shall exercise this office before he hath taken both these Oathes he is likewise fineable in the Star-chamber 31. Also if a Iustice of peace shall not performe his oath concerning his office he is fineable in the Star-chamber if the neglect be of corruption or any sinister affection otherwise it is if it be by Ignorance onely 32. Now forasmuch as the authoritie of the Iustices of peace ariseth partly out of their Commission and partly out of the statutes I will set downe the forme of the Commissions now used in Ireland which are consonant to the Lawes and statutes and to the politique government of this Kingdome A president for the Commissions of the peace for all the â—ountyes of Ireland except Dublin CAroluâ— Dei gratia Angliae Scotiae Franciae Hiberniae Rex fidei defensor c. Predilecto fideli Consiliario nostro Adamo Vice-comiti Loftus de Ely Concellario nostro Regni nostri Hiberniae c. salutem Sciatis quod nos de fidelitat circumspectionibus vestris plurimum confidentes Assignavimus per praesentes assignamus vos conjunctim divisim quemlibet vestrum Iusticiarios nostros ad pacem nostram in Comitatu nostro Middie conservand Ac ad omnes ordinationes statuta pro bono pacis nostrae pro conservatione ejusdem pro quieto regimine gubernatione populi nostri edita in omnibus singulis suis articulis in dicto comitatu nostro tam infra libertates quam extra juxta Vim formam effectum eorundem custodiendum custodiri faciendum ad omnes contra formam ordinationum vel statutorum illorum aut eorum alicujus in comitatu predicto delinquentes castigandum puniendum prout secundum formam ordinationum statutorum illorum fuerit faciendum Ac ad omnes illos qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorum suarum minas fecerint ad sufficientem securitatem de pace vel de bono gestu suo erga nos populum nostrum inveniendum coram vobis seu aliquo vestrum venire faciendum Et si hujusmodi securitatem invenire recusaverint tunc eos in prisonis nostris quousque hujusmodi securitatem invenerint salvo custodiri faciendum Assignavimus etiam per praesentes assignamus vos quoslibet duos vel plures vestrum quorum prefat Cancellar nostr aut A. B. aut C. D. unum esse volumus Iusticiarios nostros in per totum Comitatum predictum tam infra libertates quam extra ad inquirendum per sacramentum proborum legalium hominum Comitatus predicti ac omnibus alijs medijs modis quibus rei veritas melius sciri poterit de omnibus singulis proditionibus murdris homicidiis incendiis illicitis assemblationibus feloniis roberâ—s veneficiis incantationibus sortilegiis arte magica transgressionibus forstallariis regratariis ingrossariis extortionibus quibuscunque Ac de omnibus singulis aliis malefactis et offensis quibuscunque de quibus Iusticiarii pacis nostrae legitimè inquirere possunt aut debent per quosâ—unque qualitercunque in Comitatu predicto factis vel quae imposterum ibidem fieri vel attemptari contigerint Ac etiam de omnibus illis qui in Comitatu predicto in Conventiculis contra pacem nostram in perturbationem populi nostri seu vi armat ierunt vel equitaverunt aut imposterum ire vel equitare presumpserint Ac de omnibus illis qui ibidem ad gentem nostram maheymandam vel interficiendam in insidiis jacuerunt aut imposterum jacere presumpserint Ac etiam de hostellariis omnibus singulis aliis personis qui in abusu ponderum vel mensurarum sive in venditione victualium contra pacem communem legem nostram ac contra formam ordinationum vel statutorum vel eorum alicujus inde pro Communi utilitate dicti Regni nostri aut populi nostri ejusdem edit delinquerunt vel attemptaverunt aut imposterum delinquere vel attemptare presumpserint in Comitatu predicto Ac etiam de quibuscunque vicecomitibus Ballivis Seneschallis Constabulariis Custodibus Gaolarum aliis officiariis qui in executione officiorum suorum circa premissa seu eorum aliqua indebite se habuerunt aut imposterum indebite se habere presumpseriut aut tepidi remissi vel negligentes fuerunt aut imposterum fore contigerint in Comitatu predicto Et de
same 2. 2. Counterfeiting of forraigne coyne not currant in this Kingdome 3. 3. The uttering of false money made within this kingdome knowing it to bee false and counterfeit 1. The punishment of these Misprisions of Treason is forfeiture of goods chattels and the profits of lands during the life of the offendor and perpetuall imprisonment 2. 3. Secondly of Felony viz.   1. Concealing of any felony and not revealing it to some magistrate speedily after notice had of it 1. The punishment of Misprision of felony is by fyne and ransome and imprisonment at the discretion of the Iudge Thirdly other Misprisions viz.   1. Offering to strike any Iustice sitting in Iudgement 1. The punishment for offering to strike a Iustice sitting in Iudgement or a Iuror in presence of the Iustice is forfeiture of lands goods and Chattels losse of his right hand and perpetuall imprisonment 2. Striking a Iuror in presence of the Iustices 2. 3. Striking of a Knight or man of honor by any person of meane quality 3. The punishment of striking of a Knight c. by one of meane qualitie in ancient time was the losse of his hand but now it is used to be but fyne and imprisonment and bonds of the good behaviour 4. Rescuing of a prisoner arrested by any of the Kings Iustices sitting in Iudgement 4. Rescuing of a prisoner arrested by a Iustice is forfeiture of lands goods and chattels and perpetuall imprisonment Fourthly of Praemuniries which be of two sorts viz. the one the extolling of forraigne Iurisdiction the other for prosecuting of causes in the Ecclesiasticall Courts which are meere lay causes c.   1. Exercising of forraigne authoritie or Iurisdiction in causes Ecclesiasticall The punishment of all these offences of Praemunire is forfeiture of lands goods chattels and perpetuall imprisonment 2. Maintaining or publishing by word or writing that the Bishop of Rome hath or ought to have any authority or Iurisdiction within the Kings Dominions the second offence is a Praemunire  The punishment of all these offences of Praemunire is forfeiture of lands goods chattels and perpetuall imprisonment 3. The purchasing of any provision Bull or other processe from the Court of Rome  4. The obeying of any such processe procured from the Court of Rome 5. The prosecuting of any lay cause in any Ecclesiasticall court which originally belongeth to the Kings temporall Courts Fifthly Finable Offences which are either of 1. Force 2. Fraud 3. Omission or 4. Other abuses   First Finable offences of Force viz. 1. Riots Routs and unlawfull assemblies 1 For great Riots a great Fyne and a yeares imprisonment at the least For small Riots Routs and unlawfull assemblies besides the Fine imprisonment in discretion 13. H. 4. cap. 7. 2. Forcible Entries and forcible detainers 2 Fyne ransome and imprisonment and restitution of possession 15. R. 2. ca. 2. 8. H. 6. ca. 9. 10. Caroli ca. 16. 3. Assaults Batteries bloodsheds Maihems and all other Trespasses in lands and wrongfull taking of goods 3 Fyne and imprisonment at the discretion of the Iudge 4. Rescuing of distresses and pound breaches 4 Fine and imprisonment at the discretion of the Iudge 5. Riding or going armed in terrorem populi 5 Imprisonment and forfeiture of the Armour 2. E. 3. c. 3. 7. R. 2. ca. 13. 20. R. 2. ca. 1. 6. Lying in waite to kill or maihem 6 Fine and imprisonment and bonds of the good behaviour Secondly Offences of fraud and deceit viz.   1. Extortions and oppressions by officers in taking more Fees then are due or in exacting Fees where none are due 1 Fyne and imprisonment during pleasure 2. Extortions and oppressions in Land-lords and their servants in exacting of an Irish pretended duty called Loghtavy upon their Tenants 2 The like punishment 3. Escheators taking above xl.s. for an office 3 To forfeit 40.l 27. H. 6. ca. 17. 4. Sheriffes undersheriffes and their Clerkes entring of plaints in the County Court without notice of the plaintiffe or dividing one contract or Trespasse into severall plaints 4 Fyne and imprisonment 5. Sheriffes levying the Kings debt without shewing the party the Estreats under the seale of the Exchequer 5 Fyne to the King treble damage to the partie 42. E. 3. ca. 9. 7. H. 4. ca. 3. 6. Sheriffes or Gaolers that have denied to receive felons or that take any thing for the receiving of them 6 Fyne and imprisonment 4. E. 3. ca. 10. 7. Coroners that exact more Fees for taking an Inquisition upon the view of a body murdred or killed then 13. s. 4. d. which is to be paid of the goods of the offendour or of the Towneship where the offence was committed in the day time if the offendor have escaped 7 Forfeiture of 5.l 3. H. 7. ca. 1. 8. Ordnaries or their officers which take more Fees for the probate of Testaments granting of letters of administration then is appointed for them to take by the statute in that case provided 8 Forfeiture of 10. l. 28. H. 8. cap. 18. in Hibernia 9. Clerkes of the peace that take above 12. d. for the enrolling of a bargaine and sale where the land doth not exceed xl.s. per annum and where it exceedeth that summe 2 s 6.d 9 Fyne and imprisonment 10. Caroli cap. 1. in Ireland 10. Clerke of the Market that taketh any bribe to dispence with offences or tarryeth any longer in the countrey then the necessity of the businesse requireth 10 Fyne and imprisonment 11. Mayors and chiefe officers of townes and corporations that take excessive Fees for scaling of measures waights 11 Forfeiture of 40 s 7. H. 7. c. 3. 12. Purveyors that take any Bribe to spare any man or take corn by any other measure then the striked bushell or take carriages without readie payment 12 Two yeares imprisonment treble damage and ransome 15. E. 3. cap. 1. 36. E. 3. c. 3. 1. H. 5. cap. 10. 13. Iurors that take any thing to make their presentments favourably 13 Imprisonment and ransome 5. E. 3. c. 10. 34. E. 3. ca. 8. 38. E. 3. cap. 1. decies tantum and if he have not to pay a yeares imprisonment 14. If any have gotten into his possession any money or other goods by any false token or counterfeit letter 14 Great fyne and to be bound to the good behaviour 15. Packing of fish deceitfully and mixing small fish with the countable fish 15 Forfeiture for every vessell 6 s 8.d 22. E. 4. ca. 2. 16. Cowpers that make vessell for Beare or Ale of unseasonable Timber 16 Fyne and imprisonment 17. Millers that take Toll by the heape 17 Fyne and imprisonment 3. E. 1. p. Toll 2. 18. Maintenance of suits in Courts and quarrels in the Countrie and Champerties 18 Fyne and imprisonment 1. E. 3. ca. 14 1. R. 2. ca. 5. 19. Subornation of perjurie 19 Forfeiture of 40.l and if the offendor be not worth so
a Iudgement Recognisance or Baile in the name of another S. 43 Ca. 24. Of Accessaries 1. No Accessaries in Treason but all are principals S. 1 2 3. 2. No Accessarie in a Praemunire S. 4. 3. Two sorts of Accessaries infelonies S. 5 6. 4. Who shall be said to be Accessaries and who principals Sect. 7 8 9. 5. Accessaries before the Felony S. 10 11 12 13 14 15 16 17 18. 6. Accessaries after the fact S. 19 20 21 22 23. 7. Relieving of a Felon not knowing of the felonie S. 23. 8. A wife relieving her husband S. 24. 9. What Acts shall make a man an Accessary after the fact and what not S. 25 26 27 28 29 30 31 32 33 34. 10. Accessaries to a Felonie done in another County S. 35. 11. Accessaries to a Felony by statute S. 36. 12. Accessarie to an Accessarie S. 37. 13. Accessarie not to be tried till the principall be attainted S. 38 39 40. 14. No Accessarie in Manslaughter Se defendendo or by misadventure S. 41. Ca. 25. Of certaine Rules concerning felonies 1. A felony committed in the time of one King the offendor may be tryed for it in the time of another King S. 1. 2. How a felon which is apprehended in one County shall bee brought to a Triall for a felony committed in another County and in what cases he may be tried in the County where he is apprehended S. 2 3. 3. Where stollen goods are stollen from the Thiefe that stole them the owner may charge either the first or second Thiefe with felony S. 4. 4. If Cloth or other things bee delivered to a Tayler to make apparell and be stollen from the Tailer the offendour may be charged either at the owners or Taylers suite S. 5. 5. If goods be stollen and the owner not knowne the offendour may be indicted quod bona catalla cujusdam hominis ignoti felonicè cepit and all men may be received to give Evidence S. 6. 6. What a Iustice of peace may doe when a Robberie is committed and the partie robbed will not accuse or prosecute the felon S. 7. 7. Vpon all Felons Huy and Cry ought to be levied who ought to follow the same and what punishment shall be inflicted upon them for that neglect and what a Iustice of peace may doe therein S. 8 9. 8. Where the Towne or Countrie shall be amerced for the escape of a murtherer or Manslayer S. 10 11 15. 9. How felons apprehended upon Huy and Cry ought to bee brought before a Iustice of Peace and by whom S. 12. 10. Levying Huy and Crie without cause S. 13. 11. The Kings officers may breake a house to apprehend any suspected of felony S. 14. 12. The dutie of Iustices of peace and Constables concerning the keeping a watch S. 15. Ca. 26. Of the forfeiture for Felonies 1. What the felon shall forfeit S. 1 2 3 4 5 8. 2. At what time the goods of a felon become forfeited S. 6 7. 3. Where the Towneship shall bee charged with felons goods Sect. 9. 4. What shall be adjudged a conviction in felony and other offences S. 10 11 12. 5. The difference betweene attainder and conviction S. 13 14 15 16. Ca. 27. Of Examination of Felons and Evidence against them 1. How and in what manner a Iustice of peace ought to examine aswell the felon as those that bring him before hee commit him to the gaole S. 1 2 3 4 28 29 30 31 32. 2. How and in what manner a felon may be bailed and by whom S. 5 6 7 8 9. 3. What the Iustice of peace ought to doe if the offendor confesse the felony S. 10 11. 4. What the Iustice of peace ought to do in case of Manslaughter Se defendendo or per infortunium or done by an Infant Lunaticke or the like S. 12. 5. What persons may be examined to prove a felony and bound to give Evidence S. 13 14. 6. What Evidence shall be good against the offendor and what not S. 15 16 17 18 19. 7. How restitution shall be made of stollen goods where the owner gives Evidence against the Felon S. 20 21 22 23 24 25. 8. No restitution of goods wayved where the felon is not knowne so as he may be indicted S. 26. 9. Examinations before a Iustice of peace in one County may be given in Evidence in another S. 27. Ca. 28. whether information evidence or proofe of witnesses shall be taken against the King 1. What Evidence a Iustice of peace may take by examination against the King and in what manner S. 1. 2. What Evidence shall be received in acquittall of the prisoner at his tryall and in what manner S. 2 3 4. 3. Circumstances to be considered upon examination of felons Sect. 5. 4. The confession of the felon before a Iustice of peace is no conviction S. 10. 5. In what cases halfe proofes are to be allowed and what are good causes of suspition S. 11 12 13 14 15 16. Of forcible Entries and detainer which containeth 9. chapters beginning with the 29 and ending with the 37 1. In what cases at the common Law forceible entries and detayners were tollerated S. 1 2. 2. Remedies against such force S. 3 4 5 6 7 54. 3. What a Iustice of peace ought to doe upon complaint to him of a forcible Entry S. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40 41 42. 4. How and in what manner the Iustice of peace must make restitution of the possession S. 29 30 31 34 35 36. 5. What Iustices may make restitution of the possession Sect. 32 33. 6. To whom the restitution shall be made S. 37. 7. Of what things restitution shall bee made and of what not Sect. 38. 8. What the Iustice of peace is to doe when the parties indicted tender a Traverse to the Endictment S. 33. 9. A Iustice of peace may punish the Sheriffe and Bailiffes for not returning sufficient Iurors to enquire of a force S. 43. 10. One Iustice of peace may proceede in forceible Entries Sect. 44. 11. Mayors of Corporations may doe the like in cases of forcible Entries as other Iustices of peace may doe S. 45. 12. How a Iustice of peace ought to proceede upon a writ out of the Chancery to remove a force grounded upon the statute of North-hampton S. 46 47 48. 13. How he may proceede upon that statute ex officio without such writ S. 50 51 52 53. Ca. 30. what is a forcible Entrie or holding within the statutes 1. Of the severall sorts of force S. 1 2. 2. Of the force prohibited by the statutes S. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22. 3. Of forcible detainer by policie S. 23 24 25 26. 4. Of forcible detayner S. 27 28 29 30 31 32 33 34 35 42 43 44 45 46 47 48. 5. Of forcible detayner by word S. 36 37 38
Deut. ibid. Ye shall have no respect of persons in judgement 3. Hatred or malice against the partie or some of his See Levit 19.18 4. Covetousnesse when they receive or expect gift or reward for as the wise man saith Rewards and gifts doe blinde the eyes of the wise Eccles 10.28 and make them dumbe that they cannot reprove faults 5. Perturbation of mind as anger or such like passion Iames 1.20 The wrath of man doth not accomplish the Righteousnesse of God 6. Ignorance or want of true understanding what is to bee done Ignorantia mater erroris 7. Presumption when without law or other sufficient rule or warrant they presuming of their owne wits proceede according to their owne wils and affections There is more hope of a foole then of him that is wise in his owne conceit Prov. 26.12 8. Delay which in effect is a denying of Iustice Negligentia semper habet Comitem infortunium mora trahit periculum 9. Precipitation or too much rashnesse when they proceede hastily without due examination and consideration of the fact and of all materiall circumstances or without hearing both parties for as another saith qui aliquid statuerit parte inaudita altera aquum licet staâ—uerit haud aquus est hee that shall judge or determine of a matter the one party being unheard although he shall give just judgement yet is he not a just Iudge His Ma. speech in the Sâ—archamber Anno. 1616. 6. All these his late Majestie King Iames hath shortly yet fully observed in his charge lately given to the Iudges of England sc charging them That they doe Iustice uprightly and indifferently without delay partiality feare or bribery with stout and upright hearts with cleane and uncorrupt hands and yet not to utter their owne consents but the true meaning of the law not making lawes but interpreting the Law and that according to the true sence thereof and after deliberate consultation remembring that their Office is Ius dicere and not Ius dare 7. According to this last also is the rule given in the booke of Iudges sc in all causes doubtfull first to consider of the matter Iudges 1930. to consult and then to give sentence 8. Yea God himselfe hath given us Presidents of such deliberate proceedings as you may see in Genesis chap. 3. vers 8. Gen. 3.8.9.11 c. and chap. 18. vers 21. 9. These are worthy Directions for all Iustices of peace that they may carry themselves in their places uprightly and indifferently not uttering their owne conceites nor upon the sudden to over-rule things but after deliberate consideration and consultation then to proceede to execute the authority committed to them 10. Iustices of peace are Iudges of Record Their description or definâ—tion appointed by the King to bee Iustices within certaine limits for the conservation of the peace and for the execution of divers things comprehended within their Commission and within divers statutes committed to their charge 11. Now first that the Iustices of peace are Iudges of Record 9. E. 3. 4. 14. H. 8. 16. yea that every Iustice of peace by himselfe is a Iudge of Record and upon whose sole report and testimony the law reposeth it selfe very much appeareth more plainely if you observe these things following 1. Hee is made under the great Seale which is a matter of Record 2. Every Iustice of peace hath judiciall power given unto him by the Commission sc in the first assignavimus 3. Also by some statutes they have judiciall power given them for they may make a Record of a force by them viewed and may thereupon fine and imprison the offendors yea one Iustice of peace may also heare and determine and punish an offendor in some cases as convicted upon his owne view or examination as in cases of forcible Deteyner 4. His warrant though it be beyond his authority is not disputable by the Constable or other inferior Minister but must be obeyed and executed by them But this must bee understood 14. H. 8. 18. Co. 10. 7. 6. when the Iustice of peace hath Iurisdiction of the cause for or concerning which he hath granted his warrant for otherwise the Constable or other Officer executing such warrant is punishable notwithstanding the warrant 5. Hee may take a Recognizance for the peace c. which is a matter of Record and which none can doe but a Iudge of Record See Br. Recog 8. 14. 6. His record or testimony in some cases is of as great force and in some other cases of greater force then an Indictment upon the oath of twelve men as in cases of Forcible Entry forcible Deteyner and Riots 7. Great cause therefore have the Iustices of P. to take heed that they abuse not this their credit and authoritie either to the oppressing of the subject by making untrue Records or defrauding of the King by suppressing true Records 12. Now concerning peace it is the amitie confidence and quiet that is betweene men and he that breaketh this amitie or quiet breaketh the peace 13. Yet peace in our law most commonly is taken for an abstinence from actuall and injurious force and offer of violence and so is rather a restraining of hands then an uniting of mindes And for the maintenance of this peace chiefly were the Iustices of Peace first made 14. The breach of this peace seemeth to be any injurious force or violence moved against the person of another his goods lands or other possessions whether it be by threatning words or by furious gesture or force of the bodie or any other force used in terrorem populi 15. The Office of the Iustice of Peace is principally to be exercised to the suppressing of such injurious and unlawfull force or violence and yet the Commission of the P. being pro conservatione pacis pro quieto regimine gubernatione populi I see not why the Iustices of Peace should be restrained from preventing and repressing such other offences misbehaviours and deceits as may breake the amitie quiet and good governement of the people and whereof discords and so breaches of the peace doe often arise though there appeare neither force nor violence in the offence it selfe as libellings cosinages and such other offences 16. But it is no part of their office to forbid lawfull suits albeit they shall doe well to be mediators of peace in such suites and controversies as shall arise amongst their neighbours 17. The Conservation of the peace and therein the care of the Iustice of peace consisteth in three things viz 1. In preventing the breach of the peace wisely fore-seeing and repressing the beginnings thereof by taking surety for the keeping of it or for the good behaviour of the offendors as the case shall require 2. In pacifying such as are in breaking of the peace 3. In punishing according to the law such as have broken the peace 18. But of the three the first viz. the preventing part is
most worthy to be commended to the care of the Iustices of Peace 19. Iustices of peace at this day in Ireland are of two sorts and are appointed or created by two severall meanes videlicet The one by grant made by the King by Charter under the great seale By Charter Br. Commiss 5. as Mayors and chiefe Officers in divers corporate Townes And such the King cannot discharge againe at his pleasure but they shall continue and enjoy their Iurisdiction according as their Charters doe enable them And therefore if the King grant to a Mayor or other head Officer of a City or corporate Towne and to their Successors to bee Iustices of peace in their City or Towne and after maketh out a Commission of the peace to others there yet the authoritie and Iurisdiction of the Mayor c. remaineth good for that it was granted to them and their successors and is not revocable at the Kings pleasure as a Commission of the peace is And such Iustices of peace by Charter have thereby the same power that the Conservators of the peace had by the Common law And it seemeth such power also as is given to the Iustices of peace or to any one Iustice of peace by expresse words in any statute but none of them have thereby the whole power which is ordinarily given to the Commissioners of the peace by their Commission 20. The other sort of Iustices of peace are by Commission By Commission made of common course under the great seale and these are appointed by the discretion of the Lord Chancellour but the authority of these Commissioners of the peace doth determine by divers meanes yet more usually by three meanes First by the death of the King or by his Resignation of the Crowne Secondly at the Kings pleasure and that in two sorts Either by the Kings pleasure expressed as the King in expresse words may discharge them by his writ under the great seale or by Supersedeas 5. E. 4. â—2 Br Commis 1â— 12. Ass 2â— Br. Commis 13 Br. Commiss 20. â—â— but the Supersedeas doth but suspend their authoritie which may be revived by a procedendo Or by implication as by making other Commissioners of the same kinde and within the same limits leaving out the ancient Commissioners names 10. Ed. 4. 7. 3. Mar. 1. 21. But here the ancient Commissioners must have knowledge of such new Commission for this determination of the old Commission Br. Commiss 2. groweth not immediately by the making of the new Commission but either by giving speciall notice of the new Commission unto the old Commissioners Or else by and after the reading or proclaiming of the new Commission at the Assises Sessions of the peace or at the full County Or else by holding of some open Sessions by vertue of the new Commission in which two last cases the old Commissioners must take notice of the new Commission And in all these cases if the ancient Commissioners doe sit by vertue of their ancient Commission after such notice or publishing of the new Commission whatsoever such ancient Commissioners shall so doe is voide And contrariwise untill such notice or publishing of the new Commission whatsoever meane Acts such ancient Commissioners shall so doe by vertue of their ancient Commission the same are good in Law 34. Ass p. S. Br. Commiss 14. 22. 11. H. 6. ca. â— Also in all cases where an ancient Commission of the peace is determined by a new yet no proce's or suit depending before the old Commissioners shall be discontinued thereby neither shall any other thing done by the Iustices of the peace by force of their ancient Commission be made or become voide thereby Br. Com. 19. 21 Br. Offic. 15. 23. Note also that although by the death of the King or by his resignation the authoritie of all Iustices of peace yea and of all Iudges Dyer 165. Co. 7. 30. Br. Com. 5. Commissioners of Oyer and Termyner Commissioners of Gaole-delivery Sheriffes Escheators and other Officers that are by Commission doth cease yet Mayors and chiefe Officers in Citties and corporate Townes which have the authoritie of Iustice of peace or of the conservation of the peace by Charter to them and their Successors their authoritie still remaineth notwithstanding the Kings death or resignation 24. So also the authoritie of the high Constables and pettie Constables remaineth notwithstanding the death of the King c. for that their authoritie is by the common Law and to their said Office the conservation of the peace remaineth as a thing incident and unseparable from the same 4. E. 4. 44. Br Offic. 25. Dyer 165. 25. Coroners also do remaine Conservators of the peace within the County where they are Coroners notwithstanding the Kings death c. for they are made by the Kings Writ and not by Commission and their office and authoritie doth remaine untill they be removed by the Kings Writ and their office remaining the conservation of the peace remaineth as incident thereto Their oathes 26. Every Iustice of peace before he shall take upon him to exercise the office of a Iustice of Peace shall take two corporall oaths the one concerning the office of a Iustice of peace the other concerning the Kings supremacie 27. The oath concerning the office seemeth to be by force of the statute made 13. R. 2. ca. 7. the forme whereof as it now is followeth in these words viz 28. Ye shall sweare that as Iustice of the peace in the County of Dublin in all Articles of the Kings Commission to you directed you shall doe equall right to the poore and to the rich after your running wit and power and after the lawes and customes of the realme and statutes thereof made And ye shall not bee of Councell of any quarrell hanging before you And that yee hold your Sessions after the forme of the Statutes thereof made And the Issues Fynes and Amerciaments that shall happen to be made and all Forfeitures which shall fall before you ye shall cause to be entred without any concealement or imbesilling and truely send them to the Kings Exchequer ye shall not let for gift or other cause but well and truly you shall doe your office of Iustice of the peace in that behalfe and that you take nothing for your office of Iustice of the peace to be done but of the King and Fees accustomed and costs limitted by the statute and ye shall not direct nor cause to be directed any warrant by you to bee made to the parties but ye shall direct them to the Bailiffes of the said County or other the Kings Officers or Ministers or other indifferent persons to doe execution thereof So help you God c. 29. The parts of this Oath are shortly sixe 1. That they shall doe equall right to rich and poore and according to the lawes and statutes of the realme 2. That they shall not be of Counsell with any person
Iustice may cause them to finde sureties for the peace and may take away such weapons 3. And yet the Kings servants in his presence and Sheriffes and their officers and other the Kings Ministers and such as bee in their company assisting them in executing the Kings processe or otherwise in executing of their office and all others in pursuing Huy and Cry where any Treason Felony or other like offences against the peace be done may lawfully beare armour or weapons 4. Also any Iustice of peace may command that weapons be taken from such prisoners as at any time shall bee brought before him 5. Also if any servant to husbandrie or to any Artificer or Victualer or any Labourer shall beare any Buckler Sword or Dagger except they be travelling with their Master or in their Masters message Every Iustice of peace may imprison them till they have found sureties for the peace 12. R. 2. 6. P. 2. and may seize and take away their said weapons or may cause the Constable to seize the same and to present the said weapons at the next Sessions of the peace Arrest and imprisonment by what warrant and how and in what manner it may be executed CHAP. 3. What. 1. AN arrest is the apprehending and first restrayning of a mans person depriving it of his owne will and liberty and may be called the beginning of Imprisonment 2. Imprisonment is where a man is arrested against his will and is restrained of his libertie by putting him into the Gaole cage or Stocks or into some house or otherwise by keeping him in the high street or open field so as he cannot freely goe at libertie when and whither he would 3. By Parol Now concerning the precepts and warrants made by the Iustices of peace 4. The Iustice of peace seeing that he is a Iudge of Record his precept or Commandement by word of mouth in some cases is as strong as his precept in writing 5. And therefore the Iustice of peace upon a Riot done in his presence may command the Riotters to be arrested and cause them to finde sureties for their good behaviour 6. So upon an Affray assault threatning or other breach of the peace done in his presence the Iustice of peace may command by word the Officer being present or his owne servant to arrest such offendors to finde sureties for the peace 7. And where the Iustice of peace commandeth one being present to arrest another that is also in his presence 14. H. 7. 8 9. though that commandement be by word only it is good and it is reputed as an arrest made by the Iustice himselfe he being present when the arrest is made 8. But the Iustice of peace cannot command by word 14. H. 7. 8. to arrest another being out of his presente neither may one in the absence of the Iustice arrest another upon his command by paroll Br. peace 7. but it must be by a precept or warrant in writing 9. Next the warrant or precept of a Iustice of peace by writing By writing ought to be under his hand and seale or under his hand at least 10. And if it be for the peace or good behaviour or the like where sureties are to be found or required There the warrant ought to containe the speciall cause and matter whereupon it is granted to the intent that the party upon whom it is to be served may provide his sureties ready and take them with him to the Iu. of peace to be bound for him But if the warrant be for Treason murder or felony or other capitall offence or for great conspiracies rebellions assemblies or the like it needs not containe any speciall cause but there the warrant of the Iu. of peace may be to bring the party before him to make answere to such things or matters generally as shal be objected against him on the Kings Majesties behalfe Cromp. 148. and this is now the common usage 11. Plo. 37. A Iustice of peace who is dwelling out of the County granteth his warrant to be served within the County the officer cannot carry the party out of the County to the Iustice of peace who made the warrant but must carry him before some other Iu. within the County 12. Br. Peace ◠Co. 5. 59. The Iustice of peace may make his warrant of the peace to bring the party before himselfe and then the officer need not to carry the party before any other Iustice And yet upon a warrant for the peace granted ex officio the usuall manner is otherwise 13. Also the Iustice of peace may in some cases make his warrant to attach the offendor to be at the next Sessions of the peace there to answere his said offence For what cause 14. A Iustice of peace ex officio by the the first Assignavimus in the Commission may grant his warrant to arrest or attach one that hath broken the peace or committed other misdemeanour against the peace to find sureties for the peace or good behaviour 15. Also the Iustices of peace in diverse cases as the case shall require do use to grant their warrant against a man for his neglect or other default as for refusing to pay Country or Towne Rates and the like and is warranted by the first Assignavimus of the Commission for it is pro bono regimine 16. And such warrant may be either to attach the offendor to be at the next Sessions there to answer c. or els to bring the offendor before the said Iu. or any other Iustice c. who finding cause may bind such an offendor to appeare at the next Sessions to answer the said default 17. Also wheresoever any statute doth give authority to the Iustices of peace to cause another person to do a thing there it seemeth they have power given them of congruity to grant their warrant to bring such person before them that so they may take order therein 18. Also a Iustice of peace may grant his warrant to attach persons suspected of felony or Treason and that by the first Assignavimus in the Commission and by the true construction of the statute of 5. Ed. 3. 14. 19. Againe if a felony or Treason be committed there is no doubt but that every private man without a warrant may arrest whomsoever he suspecteth of it being a man of evill fame c. But if the offendor being pursued shall resist who shal be ayding to a private man whose goods are stolne and who suspecteth another to have stolne them either to search for his goods or to apprehend the party suspected if the Iustice of peace by this warrant shall not cōmand the Constable to ayde him therein If it be objected that the Constable may do all this of his owne authority upon request to him made by the party robbed it is true and yet we find by common experience that the Constables wihout the Iustices warrant therein are for the
levyed by the Warden of the peace and that the paines lost be spent upon the Townes where the said paines riseth 8. Also by a statute made in Ireland in the tenth yeare of King Henry the seventh it is ordained That every subject having goods and Chattels to the value of Ten pounds have an English Bow and a sneafe of Arrowes according every subject having goods to the value of 20. l. have a Iacke Sallet and English Bow and a sheafe of arrowes every Freeholder having land to the value yearely of foure pounds have his horse Iacke Sallet Bow and Sheafe of Arrowes every Lord Knight and Esquire within the said land have for every yeoman daily in their houshold Iacke Salet Bow and Arrowes to the intent that all the Commons of the said land may be able to doe the King or his Lievetenant service for their owne defence and suretie And that if the foresaid persons or any of them doe not observe and performe the premises as it is before specified that then they and every of them doe forfeit to the King 6. s. 8. d. as often times as they and every of them shall offend the foresaid ordinance And likewise that there be in every Barony within every Shire of the said land two Wardens of peace having authority as it hath been used of old time and in every parish Constables of able persons inhabitants within the said parishes and a paire of Buts to be had within every of the foresaid parishes at the cost of the said parishioners that the Commons of the said land may the sooner attaine the practise and experience of Archers And that the foresaid Constables in every parish upon paine of forfeiture of 12. d. at every default doe call before them or one of them every holy day all and every of the foresaid persons having Bowes and Arrowes as afore is rehearsed 10. H. 7 ca. 9. in Ireland to shoot and cause them to shoot at the least two or three games at the said Buts and if any of the said persons make default at any holy day without a reasonable cause shewed that then the said Constables have full power and authority to record their defaults and amerce them and every of them at every such default in 4.d and the said Constables to present the said amerciaments in writing to the Barons of the Kings Eschequer in the said land to be levyed and perceived in like manner and forme as the Kings Revenues have beene levyed there Felonie CHAP. 9. 1. EVery Iustice of peace by force of the first Assignavimus of the Commission may cause fresh suite Huy and Cry and search to be made by the Sheriffe bailiffes Constables and others upon any Treason robbery theft or other felony and also may cause the Constables to arrest and to imprison all such as shall be suspected of such Treason or felony or to be Theeves Murderers or Felons 2. Also every Iustice of peace may and must take the examination of all such felons or persons suspected of treason or felony as shall be brought before him 10. Carolica 18. and must also take information against them of those that bring them sc of the fact and of circumstances thereof and must put in writing such examinations and informations or so much thereof as shall be materiall to prove the felony and must certifie them to the next generall gaole delivery and after such examination and information taken then must commit such traitors or felons to the gaole if they be not baileable but if they be baileable then there must be two Iustices together the one of them of the Quorum to bayle them or else they cannot be bailed 3. The Iustice of peace that taketh the examinations must by recognisance binde the Informers that doe declare any thing materiall to prove the felony or treason to appeare and give evidence against the felon at the next generall gaole delivery to be holden within the County City or Towne corporate where the triall of the said offence shall be Stamf. 58. Li. intr 385. Co. 9. 118. 4. The Iustices of peace in the County of Dublin as well by vertue of their Commission as also by force of the statutes of 18. E. 3. 2. 34. Ed. 3. 1. 17. R. 2. 10. have authority to heare and determine all felonies for the words of the Commission to that purpose are Audiendum terminandum ad delinquentes castigandum puniendum 5. Also there be divers statutes which by speciall words did ordaine that the Iustices of peace should have authority at their generall quarter Sessions to inquire of heare and determine certaine felonies As the statutes 18. H. 6. 19. and 1. Ed. 4. for felonies presented before Sheriffes in their Turnes or law dayes Cromp. 5â— 6. And yet there be some felonies which the Iustices of peace cannot heare or try at all neither can they enquire thereof nor otherwise deale therewith as it seemeth as namely â— H. 6. â—2 12. Co. 11. 34. 7. Embeazelling of any record writ returne panel proces or warrant of Atturney in the Chancery Eschequer the one bench or the other or in the treasury whereby any judgement shall be reversed Every such offence is made felony in such imbezellor stealer or taker away and in their procurors Counsellors and abettors by the statute of 8. H. 6. But such offences are by the same statute appointed to be tryed by a Iury whereof the one halfe shall be of the men of the same Courts and before the Iudges of the said Courts of the one Bench or of the other 2. R. 3. fo 10. 8. Razing of any such record is also felony within the said statute of 8. H. 6. and to be tryed as aforesaid Br. Coro 174. 9. Forging of any deed or writing sealed or of any Court Roll will or acquittance Or to cause or assent to be made any such forged writing or to publish or shew forth in Evidence any such forged writing knowing the same to be forged If any person being once lawfully convicted of any of the said offences shall afterwards commit any the said offences againe 2â— El ca. 4. in Ireland every such second offence is made felony by the statute of 5. El. ca. 24. in England But by the same statute such offences are to be inquired of heard and determined by and before Iustices of Oyer and Terminer and Iustices of Assize which statute is enacted in Ireland in Anno 28. El. ca. 4. 10. And therefore whereas one R. Smith was indicted at the Sâ—ssions of the peace in the County of Oxford upon the said statute of 5. Elizab. for forging of a false deed it was adjudged by the whole Court in the K. bench Anno 30. Co. 9. 118. Elizab. that the said indictment was not well taken For although the Iustices of peace by their Commission have power of Oyer and Terminer to heare and determine felonies and trespasses
any evill intent happeneth to kill a man by the law of God there was a Citie of refuge appointed for such persons to flye unto Numb 35.15 22. Iosh 20.3 And by our law now this is no felony of death for he shall have his pardon of course for his life and lands but yet hee shall forfeit his goods in regard that a subject is killed by his meanes See Stamf. 16. a. b. Fitz. Coron 69. 302. 354. As if a Schoole-master in reasonable manner beating his scholler for correction only See Exod. 11. 20. 21. or a man correcting his child or servant in reasonable manner and the scholler Stamf. 12. c. childe or servant happen to dye thereof this is homicide by misadventure â—1 H. 7. 29. 6. E. 4. 7. 2. So if a man shooting at Buts prickes or other lawfull marke and by the shaking of his hand or otherwise against his will hee killeth one that standeth by Or if a Carpenter Mason or other person doth throw or let fall a stone Br. Coron 59. Tile or peice of Timber from an house or wood or other thing from a Cart c. and giveth warning thereof and another is killed thereby against his will Or if a labourer that is falling or cropping of a Tree 6. Ed. 4. 7. F. Coron 398. Plow 19. and the same or part thereof falleth and killeth a man Or if the head of his hatchet or other toole falleth from him and hapneth to kill one standing by Or if a man be in due and convenient time doing any other lawfull thing that may breed danger to such as passe by and shall give warning thereof so that such as passe by may heare and flie the perill and yet another passing that way shall be killed therewith 11. H. 7. 23. See Br. Coron 2 9. contra Or if men shall run at Tilt Iust or fight at Barriers together by the Kings commandement and one of them doth kill another In these former cases and the like it is homicide by misadventure and no felony of death 3. And yet in cases of misadventure as also where one killeth another Se defendendo by the common Law 21. E. 3. 17. Br. Coro 40. these offences were felony of death and the offendour should have dyed for the same But now by statute such offendors are to have pardon for their life and lands yet their goods remaine forfeit as before at the common Law See the stat 6. E. 1. c. 9. 2. E. 3. c. 2. 4. Also in these cases of misadventure Fitzh 246. c. 2. 8. â— Br. Cor. 1. ce fâ—at 6. E 9. 4. H. 7. f. 2. a. Regi fo 209. and in the former cases of homicide committed by Infants and other persons being Non compos mentis And also where one killeth another in defence of his person the ancient course was that they shall be discharged in this manner sc if they desire to purchase their pardon they must upon their tryall plead not guilty and shall give in Evidence the speciall matter and then this speciall matter being found by verdict they shall be bailed and then they must sue forth a Certiorari to have this record certified to the Lord Chancellor who thereupon shall make them a Charter of pardon of course under the great seale without speaking or sueing to the King for it See Stamf. 15. t. But now the usuall course is that without any Certiorari the Iustices of gaole delivery make a Certificate to the Lord Chancellor and thereupon the pardon is granted of course and in the case of Infants and Non compos mentis the Iudges receive a verdict of not guilty in which case there needeth no pardon neither is there any forfeiture of goods 5. But if a man be doing of an unlawfull Act Vnlawfull Act. though without any evill intent and he hapneth by chance to kill a man this is felony viz. Manslaughter at the least Stamf 6 c. if not murder in regard the thing he was doing was unlawfull As shooting of Arrowes Stamf. 12. c. or casting of stones into the high-way or other place whither men doe usually resort So of fighting at Barriers or running at Tilt or Iusts without the Kings commandement whereby a man is slaine And although it were by the Kings commandement yet it was holden felony by the Iustices Tempore H. 8. Br. Cor. 229. 6. Playing at hand-sword Bucklers foot-ball 11 H. 7. 2â— Crom. 26. b. 29. A. wrastling and the like where by one of them receiveth a hurt and dyeth thereof within the yeare and day in these cases some are of opinion that this is felony of death some others are of opinion that this is no felony of death but that they shall have their pardon of course as for misadventure for that such their play was by consent and againe there was neither former nor present intent to doe hurt nor any former malice but done onely for disport and tryall of manhood and this seemeth to be the better opinion 7. A man casteth a stone at a Bird or beast Fitz Coron 30â— 3â—4 and another man passing by is slaine therewith this is but manslaughter by misadventure And the opinion of Fineux chiefe Iustice in 11. H. 7. fol. 23. is that if a man cast a stone over a house and killeth a man See Numb 35. 23. Br. Cor. 229. this is no felony of death but misadventure but this is to be understood where there was no intention of hurt to any by casting thereof likewise some hold that to cast a stone for pleasure and not in lawfull labour whereby one is slaine Stamf. 12. c. 16. c. is felony of death and so was the opinion of Maister Bracton and Maister Stamford but I cannot conceive it to be any other then by misadventure when it is not done felleo animo Casuall death 8. Also a man may be slaine by other casualty than by the hands or meanes of another man as by the fall of a house or tree c. upon him or be killed by a Bull Beare or other beast c. or be killed by some fall which he himselfe taketh And in these and the like cases observe these rules 1. First if a man be slaine in any such manner yet if it be by the meanes or procurement or wilfull default of another man this shall be felony in the party procuring or causing it 2. The thing which is the cause of such casuall death shall be forfeit to the King as a Deodand and distributed in Almes by the Kings Almoner but the Almoner hath no interest as it seemeth in such goods but hath onely the disposition of the Kings Almes durante bene placito so that the King may grant them to any other See Co. 1. 50. Dyer 77. Flo. 260. 3. The forfeiture shall have relation from the stroke given so as the party or owner selling thereof sc of
such things as was cause of such death after the stroke given taketh not away the Kings right but that he shall have it as forfeited notwithstanding such sale Co. 5. 110. 4. Deodands are not forfeited untill the matter be found of record and therefore they cannot be claymed by prescription Co. 5. 120. F. Cor. 298. Stamf. 21. 5. The Iury which finde the death of the man must also finde and appreise the Deodand and the same shall be levied of the Towne where it happeneth although it were not committed to the Towne to keepe and therefore it behoveth the Towne to see it forth comming See the statute de officio Coronatoris 4. Ed. 1. F. Cor. 289. Stamf. 21. 6. If he that is so slaine be under 14. yeares of age nothing shall be forfeit to the King as Deodand for him by some opinions but I cannot conceive those opinions to be Law 7. And if a man that is unknowne be found dead in the field his apparell and money about him shall be given to the poore P. indictment 27. Stamf. 21. c. And if he were knowne then his goods shall be delivered to his executors or administrators or to the ordinary but shall not be taken as a Deodand in either case for they are not of the nature of a Deodand they being no cause of his death Dyer 77. Co. 5. 110. 8. Next what shall be forfeited and taken for a Deodand The old rule is Omnia quae movent ad mortem sunt Deodanda And yet Deodands may be of some things that a man shall move or fall from though the thing it selfe moves not Deodand quid as to fall from a ship Cart Mow of Corne or Hay c. So as Deodands are any goods which doe cause or are occasion of the death of a man by misadventure See Fitz. Coron 314. 326. 341. 342. 348. 388. 389. 398. 401. 409. 9. If a man killeth another with my sword or other weapon of mine my weapon shall be forfeited as a Deodand Doct. Student fo 156. B. 10. The inquiry of such casuall death belongeth also to the Coroner but if the Coroner cannot have the sight of the body and so cannot inquire thereof it seemeth the King shall be intituled to the goods by a presentment at the quarter Sessions or at the generall Assizes or in the Kings Bench or else the King may be defrauded Homicide upon necessitie CHAP. 15. 1. Commanded SOmetimes the Iustice of Law commandeth a man to be put to death As when the Iudge hath pronounced sentence of death against an offendour attainted by due course of Law there in execution of Iustice an officer or other person thereto lawfully deputed may orderly execute such judgement or sentence according to his warrant and such sentence or judgement pronounced by the Iudge and after lawfully executed by the officer leaveth the name and nature of murder or homicide and is called justice or rather judgement which is the lawfull execution of Iustice Stamf See Doâ— Stuâ—ent fo 133 But if the officer or other person shall proceede therein upon his owne authority without warrant or ordine juris non observato as where an offendour hath judgement given upon him to be hanged if the Sheriffe or other officer c. shall be head him or by other meanes put him to death it is felony in such officer c. 2. Also if a stranger Stamf. 13. being not thereto lawfully deputed shall upon his owne authority put to death an offendor that is condemned to dye this is felony Nay if the Iudge himselfe who gave the judgement of death upon an offendor shall after put the same offendor to death it is not justifiable by him 3. Tollerated Sometimes also the Iustice of Law tollerateth and suffereth a man to be slaine sc for the necessary execution and advancement of justice which otherwise should be left undone And in such case the Law of the land imputeth it not as any fault to him that shall so kill a man but freely dischargeth him thereof without the K. pardon As a Sheriffe Bailiffe F Cor. 261. Stamf. 13. or any other person who hath a lawfull warrant to arreast a man indicted of felony or Treason may well justifie the killing of him if he will not suffer himselfe to be arrested and yeild himselfe and that they cannot otherwise take him F. Cor. 261. Stamf. 13. And so every person whatsoever without any warrant may apprehend a felon or a Traitor upon huy and cry or otherwise and if he will not yeild to be arrested but shall resist or flie the pursuer may kill him without blame 4. Herewith also agreeth the Doctor and Student lib. 2. cap. 41. saying If any person that is no Officer would arrest a man that is outlawed abjured or attainted of Murder or of any other felony and such offend or shall disobey the arrest and by reason of that disobedience he is slaine the other shall not be impeached for his death For it is lawfull unto every man to arrest and take such persons and to bring them forth that they may be ordered according to the Law 5. An offendor in felony or Treason is led towards the Gaole and breaketh away from those that conduct him and maketh resistance or flyeth his conductors may justifie to kill him F. Cor. 288. 328. if they cannot otherwise take him againe 22. Ass 55. 6. A prisoner in the gaole attempteth to escape and having broken his Irons striketh the Gaoler comming in the night to see his prisoners and the Gaoler slayeth such a prisoner this is no felony 7. Riotters and such as shall make any forceible Entrie or deteyner Cromp. 23. 30. 158. against the statutes if they shall resist the Iustices of peace or other the Kings officers or shall not yeild themselves but shall stand at their defence when the Iustice of peace or other Officer shall come to arrest or remove them if any of them happen to be slaine this is no felony in the Iustice of peace or officer or in any of their company that killeth such Riotters c. Cromp. 24. 30. 8. The Sheriffe or his Bailiffe or other officer commeth by vertue of the Kings processe to arrest another for debt or trespasse who maketh resistance Doct. Student 133. and thereupon is slaine by such officer or any of his company this hath been taken to be no felony Stamf. 13. c. f. g. 9. But in all these former cases there must be an inevitable necessity sc that the offendor could not be taken c. without killing of him 7. H. 6. 21. 10. Also in an Appeale of felonie if the Appellant and Appellee doe joyne to try it by battell and therein the one doth kill the other as the law doth allow such tryall so doth it allow the Event to bee justifiable as depending upon the judgement of God
Peace there he shall be by the Iustice imprisoned in the gaole of the County where he is taken and after shall be removed by the Kings writ into the gaole of the County where he committed the felony but for those that do informe against such felons the said Iustice shall binde such Informers over to appeare and to give Evidence against such felons at the next generall gaole delivery to be holden in that County where the tryall of such murder or felony shall be whither also the said Iustice must certifie such information taken by him 3. If a man committeth a robbery or stealeth a horse 4 H. 7. 5. â—4 H 8. Br. Cor. 171. Co. 7. 2. beast or other goods in one County and doth carry leade or drive the goods into another County it is felony in every County whither he doth carry or drive those goods and the offendor may be indicted or appealed of felony or theft and be arraigned and have his judgement in any of those Counties but the offendor cannot be appealed or indicted of robbery but only in the County where the robbery was done for it is not robbery in any other County for Robbery must be done to the person of a man 4. If a felon doe steale another mans goods 11. E. 4. 3. 4. H. 7. 5. and after another stealeth the same from him the owner of the goods may charge the first or second felon at his choice 5. P.R. 130. Also if a man shall deliver cloth to a Taylor to make a garment if the cloth be stolne from the Taylor the offendor may be charged and indicted for stealing the same either at the owners suite or at the Taylors 6. Also an indictment may be Dyer 99. Quod bona Catalla cujusdam hominis ignoti felonice cepit and in such case any man may both informe the Court and by their direction may preferre an indictment against the felon and give Evidence to the Enquest therein And so if the owner be knowne and will not charge the felon therewith any other person especially after proclamation made in the Court that if any will enforme for the King Stamf. 163. he shall be heard may safely informe the Court preferre an indictment and give in Evidence for the King against the felon because it is for the K. advantage to have the forfeiture of the felons goods and in the two former cases if the Iu. of P. shall heare of any person that can informe any materiall thing against such a felon or against any felon the Iu. in his discretion may send for him take his information and may bind him to give evidence against such felon Dalton pag. 265. 7. Also if any robbery or Theft be committed and the party robbed or other owner of the goods will not charge the felon therewith yet every Iust of P. may cause such felon or any person suspected for such felony to be apprehended and may examine them thereof and also may send aswell for the party robbed c. as for all such other persons as can informe any thing materiall concerning the said felony and may take their informations upon oath and if upon such examination he shall finde cause the said Iustice may commit the offendors and binde over the informers 8. Note also for the better prevention and apprehending of felons that upon all homicides Huy Cry 3. E 1. c. 9. burglaries robberies and other felonies and when men are put in great danger Huy and Cry shall be levyed P. Fel. 38. Huy Cry 1. and every man shal I follow the Huy and Cry and whosoever doth not shall be attached to appeare before the Iu. of gaole delivery and any Iu. of P. may bind them over by the Commission of the peace 3. Ed. 1. c. 9. yea upon any felony committed all men generally shall be ready at the commandement of the Sheriffe or Constable and at the cry of the countrey to pursue and arrest felons upon paine to bee grievously fined 13. Ed. 1. c. 1. 2. 28 E. 3. c. 11. 9. And such Huy and Cry and pursuit shall bee made from towne to Towne and from Countrey to Countrey and shall be made by horsemen and footmen and in case of robbery if none of the felons be taken within Forty dayes after the felony committed 11. Caroli c. 13. in Ireland then the whole hundred where the robbery was done shall answere for the robbery done See Br. deâ— 104. and the damages but yet the inhabitants of any other hundred wherein negligence fault or defect of pursuit and fresh suite shall happen to be shall answere and satisfie the one moitie and halfe of all and every such summes of money and damages 3. H. 7. c. 1. Co. 7. 6. b. 10. And if a man be slaine in the day time in a Towne not walled and the murderer or manslayer escape the whole Towne shall be amerced for this escape But if it be in a City or Towne walled then if the murder or manslaughter were by day or by night they shall be amerced for the escape Fitz. Coron 238. 293. 302. Stamf. 33. l. 3. H. 7. 1. P. Coroners 13. 11. And if a man be slaine in the day time out of any Towne then the hundred shall be charged therewith and for the insufficiency of the hundred all the County shall be charged c. Stamford 34. f. yet see Dyer 210. b. that the towneship shall be amerced for the escape although the murder were committed in the fields of the Towne or in a lane c. and the Iust of P. are to inquire of such escapes and to certifie the same into the K. Bench. P. Iustices 19. 12. Also every man is a sufficient Bailiffe and officer to apprehend him that is pursued by Huy and Cry P.R. 156. and if he be taken with the thing supposed to be stolne though he neither be of evill fame nor a stranger yet every man may commit aswell such suspected person as also such goods to the Towne where they be apprehended to answere to the King according to the Law And the Constables of the Towne are to carry before some Iustice of peace aswell such prisoners as also the bringers that the Iustice may take there Information against such prisoner and may examine and commit such offendor or person so suspected 13. Dalton pag. 266. But if a man doe levy Huy and Cry upon another without cause both the one and the other shall be attached and carryed before a Iu. of P. to answere it as disturbers of the peace and to be bound to their good behaviour 14. Note also that the Kings officer may breake open any mans house to apprehend any felon 9. Ed. 4. 9. Co. 5. 92. or any person that is suspected of felony being in the said house 15. Watch. And for the better detecting and apprehending of such offendors in great Townes
me admonish all such as are to informe or beare witnesse against a prisoner or any offendour before a Iustice of peace or other Magistrate that they bee well advised what they testifie upon their oathes knowing that in such cases if either they should not speake the truth or should conceale any part of the truth they should offend against God the Magistrate the innocent the common wealth and their owne soules sc against God in despising of him and belying the truth Against the Magistrate in deceiving of him and causing him to doe Injustice Against the Innocent in spoiling him of his Name goods or life Against the Common wealth if the party be nocent or guilty and he cleares him by false witnesse And against his owne soule for it is perjury in him at least in the presence of God and good men Whether Information Evidence or proofe of witnesses shall bee taken against the King CHAP. 28. 1. IT seemeth just and right that the Iustice of Peace who taketh information against a felon or person suspected of felony should take and certifie as well such information proofe and evidence as goeth to the acquittall or clearing of the prisoner as such as makes for the King and against the prisoner for such information evidence or proofe taken and the certifying thereof by the Iustice of peace is only to informe the King and his Iu. of gaole delivery of the truth of the matter and such was the opinion of Sir Edward Coke at Lent Assises at Bury Dalton pag. 274. 5. Iac. as Master Dalton reporteth but the Iustices of peace or Coroner may not take such information evidence or proofe as maketh against the King upon oath for that is not warranted by the statute of 10. Caroli ca. 18. 2. Upon triall of felons before the Iustice of gaole delivery the said Iu. will often heare witnesses and evidence which goeth to the clearing and acquittall of the prisoner yet they will not take it upon oath but do leave such testimony and evidence to the Iury to give credit or to thinke thereof as they shall see and finde cause 3. Popham chiefe Iustice at Cambridge Assises tempore Eli. committed one to prison who upon the triall of a felon called out that he could give Evidence for the Queene and when he was sworne he gave Evidence to acquit the offendor 4. In 7. H. 4. we shall finde that one of the Serjeants Stamf. 141. b. as amicus Curiae Co. 4. 19. and to informe the Court that they should not erre did shew his opinion to the benefit of a prisoner upon the insufficiency of the Indictment 5. Now upon the examination of felons Causes of suspition and other like offendors these circumstances following are to be considered 1. His name scil if he be not called by divers names 2. Quality 1. His parents if they were wicked and given to the same kind of fault 2. His ability of body sc if strong and swift or weake or sickly not likely to doe the Act. 3. His nature of civill or hastie witty and subtill a quarreller pilferer or bloody minded c. 4. His meanes if he hath whereon to live or not 5. His trade for if a man liveth idlely or vagrant nullam exercens artem nec laborem it is a good cause to arrest him upon suspition if there have beene any felony committed 7. Ed. 4. 20. 6. His Company if Ruffians suspected persons or his being in company with any the offendors 7. His course of life sc if a common Alchouse-hanter or riotous in dyet play or apparell 8. Whether he be of evill fame or report 9. Whether he hath committed the like offence before or if he hath had a pardon or beene acquitted for felony before Nam qui semel est malus semper presumitur esse malus in eodem genere mali 3. Markes or Signes 1. If he hath any blood about him 2. If any of the goods stollen be in his possession 3. The change of his countenance his blushing looking downe-wards silence trembling 4. His answers doubtfull or repugnant 5. If he offred agreement or composition 6. The measure of his foot or horse foot 7. The bleeding of the dead body in his presence 8. If being charged with the felony or called theefe he saith nothing F. Cor. 24. 9. If he fled Fatetur facinus qui judicium fugit 4. The fact 1. Place sc if convenient for such Act as in a house in a wood Dale c. 2. Time the yeare day and houre early or late 3. Where the offendour was at the time of the fact and where the day or night before his businesse and company there and witnesse to prove all these 4. Manner if willingly by chance or necessitie 5. The cause 1. If former malice 2. If to his benefit or what hope of gaine 3. If for the eschewing of any hurt or danger 6. The persons Agens if principall or Accessary Enfant Lunatique c. Patiens if against the King common wealth Magistrate maister c. F. Cor. 211. 6. A felon brought before a Iustice of Peace accuseth others it is sufficient cause for the Iustice to grant out his warrant for the rest 7. A man going to execution accuseth another of felony it is sufficient cause to arrest him 8. Communis vox fama that he did the offence is sufficient cause of suspition Fama Br. Faux Impris 16. sc where such a felony is done otherwise not 9. But yet for the better conceiving what may breed or give just cause of suspition marke some of Master Bractons rules Stamf. 97. 1. For saith he Oritur suspitio ex fama fama vero quae suspitionem inducit oriri debet apud bonos graves non quidem malevolos maledicos sed providas fide dignas personas idque non semel sed saepius vanae autem voces populi non sunt audiendae And therefore where the common proverbe is Vox populi est vox Dei it should be Vox populi Dei est vox Dei 2. Si furtum in manu alicujus inveniatur vel sub potestate alicujus tunc ille in cujus domo vel potestate res furtiva inventa fuerit tenebitur Stamf. 29. nisi warrantum invenerit qui cum inde defendere possit for as another saith Cum adsunt testimonia rerum quid opus est verbis Stamf. 179. 3. Si quis noctu cubaverit in domo solus cum aliquo qui interfectus sit vel si duo aut plures ibi fuere hutesium non levaverit nec plagam a latronibus vel interfectoribus in defensione facienda accipere nec ostendunt quis de se vel de aliis hominem interfecerit his casibus mortem dedicere non possunt 4. Si quis in domum suam notum vel ignotum acceperit qui unius ingredit visus est Ibid. vero postea nunquam nisi mortuus dominus domus
and every Iustice and Iustices of Assize shall for ever hereafter in their severall circuits respectively have the like power and authority to all intents and purposes to inquire heare and determine of all forceible Entries and forceible holding and all other offences aswell against the said statute of Octavo of King Henry the sixt as against this present statute and to award restitution of possession in all cases as any other Iudge or Iustice or Iustices of the peace could or may doe by this Act or by any other Statute of force within this Realme 23. Now to shew something more what the Law accompteth to be force and what weapons Weapons be offensive in these and the like cases Master Bracton saith Omnes illos dicimus armatos Dalton 186. qui habent cum quo nocere possunt and therfore to have harnesse guns Bowes and arrowes Crosbowes halberts Iavelins bils clubs pikes pitchforkes or swords not usually borne by the parties shall be said to be vis armata 24. Againe Si quis venerit cum armis dejecerit vis tamen armata dicitur sufficit enim terror armorum Si quis venerit sine armis in ipsa concertatione ligna sumpserit fustes aut lapides vis dicitur armata 25. And so to use casting of stones hot coales scalding water or lead or any other thing wherewith one may hurt the person of another shall be said to be vis armata 26. Next where a force Lawfull force or forceible defence is justifieable and where not 27. Force being opposed against the Law is utterly forbidden but being used in the maintenance of the Law and with the warrant of Law it is allowed for that it mainetaineth the peace of the realme P.R. 41. Dalton 186 And therefore force may lawfully be used by all the Kings officers ministers and subjects thereunto deputed for the execution or advancement of Iustice or of the judgements of the Law 28. And so first it is a lawfull force Ibid. whereby all offendors in Treason felony and other great crimes be pursued apprehended carryed to prison and receive their condigne punishments 29. Ibid. It is also a lawfull force whereby the Sheriffe and his officers doe apprehend any person by vertue of the Kings writ 30. 3. H. 7. And so it is a lawfull force whereby Iustices of peace doe remove unlawfull entries or holdings of possessions Br. Riots 73. and represse Riotters and doe arrest and send to prison such offendors And in these and the like cases the Kings officer scil the Sheriffe Iustice of peace and Constable may take the helpe of others what number they shall thinke meete to assist them when need shall require 31. Also it is a lawfull force which Iustices of peace Sheriffes Dalton 186. Coroners and Constables shall use in apprehending or committing to prison such as within their severall jurisdictions and in their presence shall in any sort breake or attempt to disturbe or breake the peace and they may therein take the assistance of others as aforesaid 32. Also in these cases following it is lawfull for the K. officers P.R. 41. by force to breake open a mans house to arrest offendors being therein if the doores be all shut so as the officer cannot otherwise enter the house viz. 33. For the apprehending of any person for treason felony Co. 5. 92. or suspition of felony or Treason 13. E. 4. 9. Br. Coron 159. Dalton 187. 34. Where one hath dangerously wounded another and then flying into an house the Constable or other officer upon fresh suite may breake open the doore and apprehend the offendor and so may any other person besides the officer as it seemeth 7. E. 3. 19. Crom. 171. Ibid. 35. Where there shall be an affray made in a house and the doores shut the Constable c. may breake into the house to see the peace kept Ibid. 36. So upon a forceible Entrie or detainer found by Inquisition before any Iustice of peace or viewed by the Iustice himselfe or the Sheriffe by his warrant may breake into the house to apprehend the offendors Ibid. 37. Upon a Capias utlagatum in any personall action as also upon a Capias pro fine directed to the Sheriffe the Sheriffe may breake open the doores c. Ibid. 38. Upon a warrant for the peace or good behaviour the Constables may breake open the house by the opinions of Popham and Clerke Iustices of Assise at Cambridge Assises 3. Iac. Reg. 39. Lastly in all cases where the K. is a party or hath Interest in the businesse Co. 5. 91. 13. Ed. 4. 9. the officers may breake open the doores as aforesaid For no mans house shall be a Castle against the King Co. 5. 91. And yet the Sheriffe nor his officers may not breake open any mans house to execute the Kings proces upon the body or goods of any person at the suite of any subject Co. 5. 92. 95. 40. But when a house is recovered by any reall action or by ejectione firmae there the Sheriffe may breake the house and deliver seisin or possession to the demandant or plaint for after judgement it is no more in the right or judgement of Law the house of the tenant or defendant Co. 5. 91. 41. But note that the officer before he breake open the house or doores of any person Co. 5. 91. he must first signifie the cause of his comming and desire that the doores may be opened unto him Co. 5. 91. 11. 82. 21. H. 7. 39. 42. Note also though no man may forceibly keepe his house against the Kings officers in the cases aforesaid yet every mans house is to himselfe Forceible de fence lawfull his familie and his goods as his Castle aswell for his dâ—fence against injury and violence as also for his repose and rest And therefore the Law doth give to dwelling houses diverse priviledges 1. First that it is a mans Castle for his defence as aforesaid 2. Also a mans house hath the priviledges to protect him against any arrest by force of any processe at the suite of any subject as aforesaid Co. 11. 8. 3. A mans house in some cases hath a priviledge against the Kings prerogative for it hath beene adjudged that Saltpetermen cannot dig in the mansion house of any subject without his assent in regard of the danger that may happen thereby in the night time to the owner his familie and goods by theeves and other malefactors Co. 11. 82. 4. If Theeves shall come to a mans house to rob or murder him Co. 5. 91. 11. 82. he may lawfully assemble company to defend his house by force and if he or any of his company shall kill any of them in defence of himselfe his familie his goods or house this is no felony neither shall they forfeite any thing therefore 5. Cromp. 70 Also a man that is
of their worke in grosse with such labourers and Artificers when please them so that they performe such workes well and lawfully according to the bargaine or Covenant with them thereof made Anno 34. Ed. 3. cap. 9. 15. Of Labourers and Artificers that absent them out of their services in other Townes or another County the party shall have the suit before the Iustices and that the Sheriffe take him at the first day as is contained in the statute if he be found and doe of him execution as afore is said and if he returne that he is not found he shall have an Exigent at the first day and the same pursue till he be outlawed and after the Outlarie a writ of the same Iustices shall be sent to every Sheriffe of Ireland that the party will sue to take him and to send him to the Sheriffe of the County where he is outlawed and when he shall be there brought he shall have there imprisonment till he will justifie himselfe and have made gree to the party and neverthelesse for the falsitie he shall be burnt in the forehead with an Iron made and formed to this letter F. in token of falsitie if the party grieved the same will sue but this burning is not to be executed unlesse it be by the advice of the Iustices and the Iron shall abide in the custody of the Sheriffe And that the Sheriffe and some Bailiffe of the Franchise be attending to the plaintiffe to put this ordinance in execution upon paine aforesaid and that no labourer servant nor Artificer shall take no manner of wages the festivall dayes Anno 34. Ed. 3. ca. 10. 16. If any labourer servant or Artificer absent himselfe in any City or Burrough and the party plainetiffe come to the Mayor and Bailiffes and require delivery of his servant they shall make him delivery without delay and if they refuse to doe the same the party shall have his suit against the Mayors and Bailiffes before the Iustices of Labourers which the Iustices of peace by their Commission now are and if they be thereof attainted they shall pay to the King 10. l. and to the party 100. s. Anno 34. Ed. 3. cap. 11. 17. The statutes and ordinances made of labourers and Artificers be holden and kept and duely executed and thereupon Commission shall be made to the Iustices of peace in every County to heare and determine the points of the said statutes and to award damages at the suit of the party according to the quantitie of his Trespasse Anno 42. Ed. 3. cap. 6. 18. All the statutes of Artificers Labourers Servants and Victualers made aswell in the time of our Soveraigne Lord the King that now is as in the time of his noble grandfather whom God assoile not repealed shall be firmely holden and kept and duely executed and that the said Artificers Labourers Servants and Victualers be duely justified by the Iustices of peace aswell at the suit of the King as of the party according as the said Statutes require and that the Mayors Bailiffes and Stewards of Lords and Constables of Townes doe duely their offices touching such Artificers Servants Labourers and Victualers and that a paire of Stocks be in every Towne to justifie the same Servants and Labourers as is ordained in the said statutes And moreover it is ordained and assented that no Servant nor Labourer be he man or woman shall depart at the end of his Terme out of the hundred Rape or Weapontake where he is dwelling to serve or dwell elsewhere or by colour to goe from thence in pilgrimage unlesse he bring a letter patent containing the cause of his going and the time of his Terme if he ought to returne under the Kings Seale which for this intent shall be assigned and delivered to the keeping of some good man of the hundred Rape Wapentake City or Borrough after the discretion of the Iustices of peace to be kept and lawfully to make such letters when it needeth and not in any other manner by his owne Oath and that about the same Seale shall be written the name of the County and overtwhart the said Seale the name of the hundred Rape or Wapentake City or Borrough and also if any Servant or Labourer be found in any City or Borrough or elsewhere comming from any place wandring without such letter he shall be forthwith taken by the said Mayors Bailiffes Stewards or Constables and put in the Stocks and kept till he hath found surety to returne to his service or to serve or labour in the Towne from whence he came till he have such letter to depart for a reasonable cause and it is to be remembred that a Servant or Labourer may freely depart out of his service at the end of his Terme and to serve in another place so that he be in a certainty with whom and shall have such a letter as before but the meaning of this ordinance is not that any Servants which shall ride or goe in the businesse of their Lords or Masters shall be comprised within the same ordinance for the time of the same businesse and if any beare such letter which may be found forged or false he shall have imprisonment of Forty dayes for the falsity and further till he hath found surety to returne or serve to labour as is aforesaid and that none receive Servant or Labourer going out of their hundred Rape or Wapentake City or Borrough without letter Testimoniall nor with letter Testimoniall above one night except it be for cause of sicknesse or other cause reasonable or which will and may serve and labour thereby the fame Testimoniall upon a paine to be limitted by the Iustice of peace that aswell Artificers and people of mistery as servants and apprentices which be of no great avoyer and of which craft or mistery a man hath no great need in harvest time shall be compelled to serve in harvest to cut gather and bring in Corne and that these statutes be duly executed by Mayors Bailiffes Stewards and Constables of Townes upon paine limitted and judged by the said Iustices of peace in their Sessions and that no man take above a peny for the making Sealing and delivering of such letter Anno 12. Ric. 2. cap. 2. 19. That the ordinances aforesaid of Servants and Labourers Beggers and Vagabonds shall hold place and be executed aswell in Cities and Borroughes as in other Counties and places within the Realme aswell within the Franchises as without and that the Sheriffes Mayors Bailiffes and keepers of the Gaoles shall be holden and charged to receive the said Servants Labourers Beggers Vagabonds and to keepe them in prison in the forme aforesaid without letting to mainprise or to baile and without Fee or any other thing taking of them by themselfe or by any other as long as they be so imprisoned or at their going forth upon paine to pay an hundred shillings to our soveraigne Lord the King Anno 12. R. 2.
ca. 9. 20. That the Iustices of peace in every County in two of their Sessions to be holden betwixt the Feast of Easter and Saint Michael shall make proclamation by their discretion after the dearth of victuals how much every Mason Carpenter Tyler and other Craftesmen workemen and labourers by the day aswell in harvest as in other times of the yeare after their degree shall take by the day with meate and drinke or without meate and drinke betweene the two Sessions aforesaid notwithstanding the statute thereof heretofore made and that every man obey to such proclamations from time to time as a thing done by statute Anno 13. Ri. 2. cap. 8. vide 33. H. 8. cap. 9. in Ireland that these proclamations must be in the next Sessions after Easter and Michaelmas 21. That no Labourer be retained to worke by the weeke not that no Labourers Carpenters Masons Tilets Plaisterers Daubers Coverers of houses nor none other Labourers shall take any hire for the holy dayes nor for the Evens of Feasts where they doe not labour but till the houre of Noone but only for the halfe day upon the paine that such Labourer Carpenter Mason Tiler Plaisterer Dauber Coverer of houses or any other Labourer that taketh contrary to this statute shall pay to the King for every time that he doth so contrary 20. s. Anno 4. H. 4. ca. 14. 22. The statute of Labourers made at Canterbury and all other good statutes of Labourers made and not repealed be firmely holden and kept and put in due execution and moreover that the Iustices of peace have power to send their writs for such fugitive Laborers to every Sheriffe of the Realme of England and to make such processes as the statute of Anno 34. Ed. 3. cap. 10. requireth to bring them before them to answere to our soveraigne Lord the King and to the parties of the contempts and Trespasses made or done against the ordinances and statutes aforesaid in like manner as the Iustices have power to send to every Sheriffe for the Theeves before them indicted And also that all the statutes and ordinances of Labourers servants and artificers before this time made and not repealed be exemplified under the great Seale and sent to every Sheriffe of the Realme thereof to make Proclamation in full County and after this Proclamation so made that every Sheriffe shall cause the same Ex-emplification to him directed to be delivered to the Iustices of the peace in his County named in the Quorum or to one of them to remaine with such Iustices which be or shall be for the better putting of the aforesaid statutes and ordinances in due execution And also that the Iustices of peace from henceforth have power to examine aswell all manner of Labourers and servants and their masters as Artificers by their oathes of all things by them done contrary to the said ordinances and statutes and upon that to punish them upon their confession after the effect of the statutes and ordinances aforesaid as though they were convict by Inquest and that the Sheriffe in every Shire of the Realme shall doe well and duely in his office in this behalfe upon paine to lose and to forfeit to our Soveraigne Lord the King Twenty pounds Anno 2. H. 5. cap. 4. 23. If any servant of husbandrie purposing to depart from his Master at the end of his Terme at the midest of his Terme or otherwise make a Covenant before with another man to serve him for the next yeare if he be in such case as the law will compell him to serve that the said servant and he which so shall make covenant with him at the middest of the said Terme or before shall give warning to the master of the said servant of the said Covenant so newly made so that the same master may provide another servant against the end of his Terme and if any covenant with any such servant be otherwise made or such warning in manner and forme aforesaid not had that the same Covenant shall be voide and that the same servant be compelled to serve his first master for the next yeare except that a lawfull cause being of a latter time require the contrary and if any person refuse to serve or labour for the wages assessed by the Iustices of peace then every Iustice of peace in their Counties shall have power at every time to call them to examination of the same and such as they shall finde defective to commit to the gaole there to remaine till they have found sufficient surety to serve and labour in forme by the law required And if any servant Artificer workman or labourer doe contrary to the premisses or deny his service occupation of labour by reason of not giving of salarie or wages contrary to these statutes that hee shall lose to the partie that will sue in this behalfe 20. s. and that the said Iustices of peace shall have power to heare and determine all manner of offences done contrary to the forme of this statute aswell at the Kings suit as at the parties And that every of the Kings leige people may have the suit against every person that shall offend in any point against this statute and the processe shall be by Attachment Capias and Exigent and that the Iustices of peace shall assesse no fyne upon any which shall be convict before them of any thing done to the contrary to any statute of Labourers or Artificers or for this cause to put him in the good grace of out Soveraigne Lord the King under three shillings foure pence And also that the Iustices of peace thorow the Realme two times every yeare shall doe openly to be proclaimed in their Sessions all the statutes of Labourers Artificers Hostlers Victualers servants and Vagabonds before this time made and not revoked with this statute Also that by colour of the Tenure of lesse lands then the husbandry of the same shall suffice to the continuall occupation of one man no man shall be excused to serve by they yeare upon the paine to be justified as a Vagabond also that Iustices of peace shall have power to take all servants retained with any person by colour of Husbandrie and not duely occupied about the same which servants ought by the law to be servants of Husbandrie to such as shall require their service and to justifie them in every point as the same Iustices have power to justifie Vagabonds 23. H. 6. ca. 13. 24. And now because the rating and assessing of the wages of Labourers Artificers and Servants by force of an Act of Parliament made in Ireland in Anno 33. H. 8. cap. 9. 33. H. 8. ca. 9. in Ireland is to be done by the Iustices of peace so as by this statute all the former statutes are altered in that particular point of wages only It will not be amisse to recite the statute verbatim which is as followeth 25. Forasmuch as prices of victuals cloth and other necessaries
diem with meat and drinke for his Iourneyman and 12. d. sterling with meat and drinke for a boy that can scarce bore a hole as it should be and this I speake of mine owne knowledge and therefore I wish that the Iustices of peace would henceforth better remember their oaths the duty of their places and the good of the common wealth then hitherto they have done but if the Iustices of peace shall wilfully continue still their neglect herein I cannot but let them know that for this their neglect they are and that worthily for their neglect to be punished in the Starchamber Misprision CHAP. 43. 1. THere be also certaine offences which by the common Law are misprision of treason or felonies or at least punishable in the same degree and more 22. Ed. 3. 13. Stamf. 38. as to draw a sword to stricke a Iustice sitting in place of Iudgement to strike a Iuror in the presence of the Iust sitting in place of judgement Stam. 37. 38. Br. contempts 9. 0. or to stricke another in the house where the Courts of Iustice are kept sitting any of the Kings Courts there or to draw any weapons therewithall to strike any person in the presence of the Iustices P. Paine 16. or to make any Affray in their presence they sitting in Iudgement or to rescous any such offendor these are such misprisions for which the offendour shall have more grievous punishment then for misprisions of Treason or felony for in these cases the offendor shall not only forfeit all his goods and chattels and the profits of his lands during his life and be imprisoned during his life but also shall have his hand cut of 28. El. ca. 7. in Ireland 2. The counterfeiting of the coine of gold or silver of other Countreyes which is not currant in this Kingdome is by a statute made in 28. Eliz. ca. 7. enacted to be misprision of high treason in the Actors their procurers ayders and abettors Stamf. 37. d. Cromp. 44. 3. Note that every treason or felony doe include misprision so that where any person hath committed treason or felony the King may cause the offendor to be indicted and arraigned but of misprision Stamf. fo 37. 4. Misprision of Treason or felony is properly when one knoweth that another hath committed or is about to commit any treason or felony but was not or is not consenting thereto and yet will not discover the offendor to the King or his Councell or to some Magistrate but conceales both the offence and the offendors Br. Treason 19. Stamf. fo 38. 5. For misprision of treason the offend or shall forfeite to the King all his goods and chattels for ever and the profits of his lands during his life and also shall be imprisoned during his life but for misprision of felony the offendor shall be only fined and ransomed as it seemes 3. H. 7. 10. Br. Treason 25. and shall be committed to prison untill he hath paid his fine 3. H. 7. fol. 10. 6. Note for the offendors in high treason misprision of treason and praemunire that although the Iu. of Peace by their Commission nor by statute cannot medle with them in the very point of their offences saving in some particulars and that by way of inquiry only which you may see hic antea tit felony yet for that all treasons and such other offences are against the peace of the King and of the Realme therefore upon complaint made to the Iustice of peace or other knowledge had by him of any such offendors it shall be his part to cause such offendors to be apprehended and to take their examinations and the information upon oath of such as bring them or of others that can prove any thing materiall against them and to put the same in writing under the hands of the Informers and then to commit the offendors to the Gaole Dalton p. 212. and also to bind over by recognisance all such as doe declare any thing materiall to appeare and give evidence against such offendors before the Lords of the Kings Majesties privy Councell or elsewhere when they shall be called upon reasonable warning or before the Iustices of Assises at the next generall gaole delivery and after to certifie their doing therein to some of the Lords of his Majesties said Councell Nightwalkers CHAP. 44. 1. EVery Iustice of peace ex officio and by the first Assignavimus of the Commission may cause to be arrested all Nightwalkers 13. H. 7. 1â— Dalton pa. 76. be they strangers or other persons that be suspected or that be of evill behaviour or of evill fame and more particularly all such suspected persons as shall sleepe in the day time and goe abroad in the night season haunt any house that is suspected for bawdery or shall in the night time use other suspitious company or shall commit any other outrages or misdemeanors and may force them to finde surety for their good behaviour see the title surety for the good behaviour Peace CHAP. 45. 1. EVery Iustice of peace hath authority and power given him by the first Assignavimus or clause in the Commission Dalton pa. 79. to keepe and cause to be kept the Kings majesties peace by force of which words they have aswell the ancient power touching the keeping of the peace which the ancient conservators of the peace had by the common Law as also all authority which the statutes since have added thereto and so they may cause to be kept all the statutes and Lawes now in force which beene made for the peace or keeping thereof and more especially they may arrest or cause to be arrested and sent to the Gaole all Traitors Murtherers Robbers and Felons and persons suspected of such things and all such are guilty of any misprision or praemunire 2. They may also suppresse and bind to the peace or good behaviour all Affrayors Dalton p. 80. and all persons unlawfully and riotously assembled or unlawfully wearing armour or any weapons by night or by day or otherwayes putting the people in feare and all unlawfull nightwalkers and barrettors and the like all which may well be said to be disturbances or breaches of the peace see more fully of these under their particular Titles Posse Comitatus CHAP. 46. 1. VVHere the Iustice of peace Sheriffe or other officer is enabled to take the power of the County it seemeth they may command and ought to have the helpe and attendance of all Knights Gentlemen Yeomen Husbandmen Labourers Tradesmen Servants and Apprentices and of all other such persons being above the age of fifteene yeares and that are able to travell 2. But women Ecclesiasticall persons and such as be decrepit or diseased of any continuall infirmity shall not be compelled to attend them 3. And in such cases it is referred to the discretion of the Iustices of peace or Sheriffe c. what number they will have to attend upon them and
conteined in the statute of provisors made in 27. Ed. 3. by the same processe comprised in the said statute and by warning to be made to them in their benefices or other their possessions within the Realme 8. After this in anno 12. R. 2. ca. 15. another statute was made to this â—ffâ—â—â— that is to say that no liege man of the King of what estate or conditiâ—n that he be 〈◊〉 over sea great or litle shall passe over the sea nor send out of the Realme of England by license nor without license without speciall license of the King himselfe to provide or purchase for himseâ—fe a benefice of holy Church with cure or without cure in the said Realme and if any doe and by vertue of such provision accept by himselfe or by any other any benefice of the same Realme that from that time the same provisor shall be out of the Kings protection Protection and the same benefice voide Voide so that it shall be lawfull to the patron Patron of the same benefice aswell spirituall as temporall to present Present to the same an able Clarke at his pleasure 9. Moreover in anno 16. R. 2. ca. 5. it is ordeined by Parliament at the prayer of the commons Sue that if any purchase or pursue or cause to be purchased and pursued in the Court of Rome Court of rome or elsewhere any such translations processes and sentences of excommunication bulles Bulles instruments or any other thing which touch the King against him his Crowne and regalitie or his Realme and they which bring within the Realme or them receive or make thereof notification or any other execution within the same Realme or without that they their notaries procurators Procurators mainteinors Mainteinors abettors fautors and Counsellors shall be put out of the Kings protection Protection and their lands and tenements goods and chattels forfeite to the King Forf and that they be attached by their bodyes if they may be found and brought before the King and his Councell there to answere to the cases aforesaid or that proces be made against them by praemunire facias Praemunire facias in manner as it is ordeined in other statutes of provisors and others which doe sue in any other Court in derogation of the regalitie of our soveraigne Lord the King 10. In anno 2. H. 4. ca. 4. it is ordeined that aswell they of the order of Cisteaux as all other religious or Seculars of what estate soever that they be which doe put any of the popes bulles Bulles in execution or from thenceforth doe purchase other such bulles of new or by colour of the same buls purchased doe take advantage in any manner proces shall be made against them and every of them by garnishment of two moneths by writ of praemunire facias Praemunire facias and if they make default or be attainted Forf then they shall incurre the paines and forfeitures conteined in the statute of provisors made in anno 16. R. 2. 11. In anno 7. H. 4. ca. 6. it is ordeined that no person religious nor secular of what estate or condition that he be by colour of any buls conteining priviledges to be discharged of dismes pertaining to parish Churches prebends hospitals or vicariges purchased before the first yeare of King Richard the second or after not executed shall put in execution any such buls so purchased or any such buls to be purchased in time to come and if any such religious Religious or secular person from thenceforth by colour of such buls Disturbe doe trouble any persons of holy Church prebendaries keepers of hospitals or vicars so that they cannot take nor enjoy the dismes due or appertaining to them of their said benefices that then such disturber shall incurre like procâ—sâ—â— and paine Paine as is ordained by the statute made against them of the 〈…〉 of Cisteaux in the second yeare of the Raigne of King Henry the 〈◊〉 32. H 6. ca. 1. in Ireland 12. Anno 32. H. 6. in Ireland it is ordained and established that all the acts ordinances and statutes made against provisors aswell in England as in Ireland be had and kept in force within this land of Ireland and also if any provisor or provisors doe henceforward sue any provision upon any man beneficed in this land of Ireland and because of the provision do enter into any benefice or benefices of the Church and doe take any goods or chattels from any beneficer of the church against whom any such provisions are sued that then the party grieved may recover treble damages and hee that taketh such goods and thereof is convicted shall pay 20. l. the halfe to the King and halfe to him that will sue 13. Anno 7. Ed. 4. it is ordeyned and enacted that whatsoever manner man of holy church purchase any manner of dignity 7. Ed. 4. ca. 1. in Ireland parsonage or vicarage by Buls of the pope to hold in commendum and the said Buls dignities parsonages or vicarages accept that they shall be out of the protection of the King and forfeit the value of the said benefices during his life naturall notwithstanding whatsoever his benefice be dignity or personage or vicarage and shall incurre in all penalties of the estatutes or ordinances made against provisors of benefices and that no pardon or license of the King made or to be made be availeable but voide if it be not by Act of Parliament and if any manner man of the Church occupy now or hereafter doe occupy any personage or vicarage by way of commendum by the Buls Apostolique if it be of his owne collation that he shall make collation thereof within six moneths and if he doe not that then the deane and chapter of the diocesse in which diocesse the benefice is shall make collation of the said benefice within six moneths then next ensueing and if the said Deane and Chapter be negligent and make no collation of the said benefice within six moneths as before is said that then it shall be lawfull to the King to present to the said benefice for that time and as often as the cases require as is aforesaid 14. Anno 10. H. 7. it is enacted and established that all manner of estatutes aswell made within the Realme of England as within this land of Ireland against provisors by the authority of this present Parliament be authorished 10. H 7. ca. 5. in Ireland approved and confirmed and be deemed good and effectuall in the Law and also by the authority aforesaid that all and every of the statutes made against provisors be from henceforth duely and straightly executed in all points within the said land according to the effect of the same and the Kings Iustices and Commissioners of the said land diligently enquire at their Sessions and all other times requisite and behovefull of all and every manner
before time made of Purveyors and buyers shall be holden and kept and put in due execution and in case that any Purveyor buyer or taker will take and make purveyance or buy any thing to the value of 40. s. or under of any person and make not ready payment in hand 40. s. ready payment that then it shall be lawfull to every of the Kings liege people to retaine their goods and chattels and to resist such Purveyors and buyers Resist and in no manner wise suffer them to make any such Purveyances buyings or takings and for the peace better to be kept that every Constable Constable Tithingman Tithingman or chiefe pledge of every Towne or hamlet where such purveyances or takings shall be made shall be aiding or assisting to the owner or seller of such things to be against the forme of this ordinance to make resistance in the forme aforesaid in case that such Constables Tithingman or chiefe pledge bee required that to doe upon paine to yeeld to the partie so grieved the value of the things so taken with his double damages and that none of the Kings liege pleople be put to losse or damage by the King or any officer for such resistance and that none of the Kings officers shall doe to be arrested vexed or impleaded in the Court of the Marshalsey or elsewhere any of the Kings liege people for such with-holding or not suffering to be done upon paine to lose twenty pounds Forf Moitie the one moity of that to the King and the other moitie to him which will in such case sue and that the Iustices of peace Iustice of peace in every County shall have power by authority of this ordinance to enquire heare and determine Oyer and Ter. aswell at the suite of the King as of him that will sue of any thing done against this ordinance and thereof to make due punishment and execution and to award damages Damages to the party plaintiffe when any defendant is thereof duely convict and that in every Action to be taken upon this ordinance every party defendant shall be put to answere to that without aide of the King and in such Actions to be taken No aide Proces proces shall be made as in a writ of Trespasse done against the peace and that in every Commission Commission of Purveyors takers or buyers to be made this ordinance shall be contained and expressed and moreover that this ordinance among other statutes of Purveyors buyers or takers before this time made shall be sent to the Sheriffes Sheriffe of every County to proclaime and deliver the said statutes and ordinances in the manner and forme contained in the statute of purveyors and buyers made in the first yeare of the Raigne of the said King H. 6. And moreover the King will and commandeth that the statute made the six and thirtieth of King Edward late King of England after the coÌ„quest touching Purveyors of other persons then of the King shall be put in due execution Anno 20. H. 6. cap. 8. 13. In anno 23. H. 6. ca. 2. 23. H. 6. ca. 2. it is ordained that the said statutes of an 36. E. 3. from thenceforth should be duely kept and put in due execution and moreover that every purveyor and buyer before that he shall have any Commission shall be sworne Sworne in the Chancery Chancerie that he shall take nothing of the people contrary to the said ordinances and moreover forasmuch as the poore people be not of power nor dare make resistance against the purveyors and buyers nor sue them by the law though that they doe contrary to the said statutes It is ordained by the same authority that the praisers and also all the Towne and townes Townes adjoyning if need be shall be bound to doe their devour and power to resist Resist the buyers and purveyors doing contrary to the said statutes and as much as in them is to execute the said statutes upon the said Purveyors if they be required and that he which is grieved of his goods taken contrary to the said statutes and ordinances may chuse to have either an Action of debt Action of debt against the said preisers Towne or Townes and every of them which doe not their devour in resistance of the said Purveyors or buyers in the forme aforesaid when they shall be required or else against the said Purveyors 3. Value 3. Damages or buyers and every of them to recover the treble value of his goods so taken and moreover his treble costs and damages and if any purveyor and other the Kings officer doe trouble or vexe any of the Kings liege people in the marshalsey or elsewhere by any evill suggestion or cause fayned imagined or coloured upon them because of the execution of the said ordinances he shall incurre the paine of Twenty pound Forf to be paid to the party grieved over his damages and costs in that behalfe sustained and that he thereupon shall have a writ of debt Writ of debt and that every issue Issue triable in this action shall be tried in the county County where the taking of the said goods was made and that the defendants in the said causes shall not be admitted to wage their law and shall be put to answere without forcing and no eâ—â—oyne â—ide of the King nor protection shall be to them allowed and that the Sergeant of the Caterie Sâ—â—â—eant of Câ—terie shall satisfie all the damages debts and executions which shall be recovered against every Purveyor and buyer underneath him in all the cases aforesaid in case that the Purveyor or buyer be not sufficient to satisfie and the party complainant shall have a scire facias Scire facias to have execution against the said Sergeants in the case and that these statutes and ordinances shall be sent to the Iustices of the peace in every County to proclaime them every yeare and thereof to informe the people Iust of P. Proclamation Anno 23. Hen. 6. cap. 2. 14. If any buyer or other officer of any Lord Lord. or person 23. H. 6. ca. 14. of what estate degree or condition that he be presume upon him to take or otherwise doe take any victuals Victuals Corne Corne. or hay Hay carriages Carriage or any other thing whatsoever of any of the Kings liege people in any wise against their will without lawfull bargaine betwixt the said buyers or officers and the said liege people thereof to be made to the use of the said Lords for their houses but all onely for the King and the Queene and their houses that then if notice or request be made to the Mayor Maior Sheriffe Sheriffe Bailiffe Bailiffe Constable Constable Officers or other of the Kings ministers of Cities and Borroughes or other Counties or places where such taking shall
alledged by the defendant whereupon the issue in every such Action shall be joyned to be tryed by verdict of twelve men and upon the tryall of that issue the whole matter to be given on both parties in Evidence according to the very truth of the same and after such issue tryed for the defendant or nonsuite of the plainetiffe the sad defendant shall recover treble damages by reason of his wrongfull vexation in that behalfe with his costs also in that part sustained and that to be assessed by the same Iury or by writ to enquire of damages as the same cause shall require And it is further enacted that the Iustices of Assize in their severall circuits shall have full power to enquire of all defects defaults and negligences of any Iustice of peace or any other officer person or persons whatsoever in the not due execution of this Law and also of all offences done contrary to the intent and true meaning thereof and to punish the same by fyne or imprisonment or otherwise according to their discretions Suretie for the peace CHAP. 56. 1. Dalton 140. SUretie for the peace is the acknowledging of a Recognisance or bond to the King taken by a competent Iudge of Record for the keeping of the peace and it is called surety of the word securitas because the party that was in feare is thereby the more secure and safe 2. This surety for the peace F. N. B. 7. 9. h. Lamb. 77. every Iustice of peace may take and command in two manners or by a twofold authority 3. First as a Minister commanded thereto by a higher authority as when a writ of supplicavit directed out of the Chancery or Kings Bench is delivered to his hands upon this writ that Iustice of peace only to whom such writ was delivered is to direct his warrant to cause the party to be brought before him alone to finde sureties for the peace and therein the said Iustice is to doe in every behalfe according as the writ doth direct him 4. Secondly as a Iudge and by vertue of his office and of his owne power derived from his Commission he may command this surety of the peace to be found and that either of his owne motion and discretion or else at the request or prayer of another 5. The Iustice of peace upon his owne motion and discretion may if he see cause command surety for the peace to be found or may bind a man to the peace and that against all the Kings subjects Vpon discreton Dalton 141. if the Iustice shall so thinke fit in these cases following 6. One that maketh an assault or affray upon the Iustice of peace himselfe the Iustice of peace may commit him to prison 5. H. 7. 6. till he hath found sureties for the peace or if he please for the good behaviour 7. So of such as in his presence shall make an affray upon another P. R. 18. 19. or shall stricke or assault or offer to stricke another 8. So he may doe of such as in his presence and hearing shall threaten to kill beat or hurt another or to burne his house 9. So likewise may he doe of such as in his presence shall contend in hot words P. R. 1â— for from thence oftentimes doe ensue affrayes and batteries and sometimes mischiefes yea manslaughters and murders See Cromp. 761. 142. P. R. 4. 10. So also may he doe of such as shall in his presence goe or ride armed offensively or with an unusuall number of servants or attendants for these are accompted to be in affray and feare of the people and a meanes of the breach of the peace so of servants and labourers that shall beare any weapons contrary to the statute of 20. R. 2. ca. 1. 9. Ed. 4. 3. P. R. 18. 11. Also he may binde to the peace any other person by him suspected to be inclined to the breach of the peace 12. If out of the presence of the Iustice of peace any man shall threaten to kill Cromp. 135. 143. P. R. 22. maime or beate another or doe attempt or goe about to doe it then any Constable being present or at the prayer of the other party may arrest such offendor to come before a Iustice of peace to finde sureties for the peace Fit bar 202. and the Iustice may bind him to the peace 13. If any Constable shall perceive any other persons in his presence 14. H. 7. 7. to be about to breake the peace either by drawing weapons or by stricking or assaulting one another or by assaulting the Constable himselfe he may take assistance and carry them all before the Iustice to finde sureties for the peace and the Iustice may bind them accordingly and for default of sufficient sureties the Iustice of peace may commit them to the gaole untill they finde such security 14. If the Constable shall learne that certaine persons be fighting or quarrelling in a house P. R. 22. he may breake open the doores and arrest them and bring them before a Iustice of peace to finde surety of the peace and the Iustice may bind them to the peace or in default of such sureties commit them to the gaole Dalton 141. 15. Yea the Iustice of peace either upon his owne discretion or upon any mans complaint may make his warrant for any such as have made an affray though out of his presence and may bind them to the peace or commit in default of sufficient sureties 16. If one hath received a wound the Iustice of peace may take surety of the peace of the one See Br peace 21. and the other by his discretion untill the wound be cured and the malice be over Popham the Lord chiefe Iustice of England an honourable and grave Iudge did accordingly betweene Iames and Benton at Cambridge Assizes 3. Iacobi 17. All such as shall goe or ride armed offensively in faires markets 2. Ed. 3. ca. 3 or elsewhere or shall weare or carry any guns daggs or pistols charged Dalton 142. in disturbance of the peace or terror of the people any Constable seeing this may arrest them and may bring them before any Iustice of peace and the Iustice may bind them to the peace yea though those persons were so armed or weaponed for their defence for they might have had the peace against the other persons whom they feared and besides it striketh a feare and terrour in the Kings subjects 18. Also the Iustice of peace upon his discretion may bind to the peace a common Barretor Ibid. and so he may Riotters 19. If he that standeth bound to keepe the peace hath broken 21. Ed. 4. 40. or forfeited his recognisance the Iustice of peace ought and may of his discretion to bind him anew but that must not be done untill the party be convicted of the breach of the peace upon his recognisance for before his conviction it resteth indifferent
Ed. 2. P. Leete 1. 20. All these former offendors and the like are evill members in the common wealth and such their demeanor and living is greatly to be suspected and besides doe seeme to be more properly said against the peace of the land then Avowtrey in the case before 1. H. 7. 7. and therefore it seemeth reasonable just and expedient that the Iustices of peace upon their discretion should convent such persons before them and their courses of life and if they cannot yeild a good reason and accompt of such their courses then to bind them to their good behaviour 21. Also the good behaviour seemeth grantable against such as shall make false outcries or shall raise Huy and Cryes without cause for these are disturbances of the peace Cromp. 179. 22. If two men doe levie Huy and Cry one upon another without cause both of them may be attached and bound over as disturbers of the peace P. R. 156. 23. Also Cheators and Cozoners may be bound to the good behaviour See Co. 5. 125. P. R. 12. 24. Libellers it seemeth may also be bound to their good behaviour as disturbers of the peace whether they be the contrivers the procurers or the publishers of the libell for such libelling and defamation tendeth to the raising of quarrels and effusion of blood and are specially occasions and meanes tending and inciting greatly to the breach of the peace 25. Also it seemeth grantable against unlawfull hunters in parks after their examination taken vide antea tit Hunting 26. Also it shall be granted against him that shall abuse a Iustice of peace Constable or other officer of the peace in executing of their office 9. El. 43. 27. A Iustice of peace seeth a man breake the peace sc to make an assault or affray upon A. and he chargeth him to keepe the peace and the other answereth that he will not the Iustice of peace may bind him to the good behaviour See Exod. 22.28 28. For if as one saith contempt or contumelie used to the person of a mans better neither policie for example nor religion for peace may tolerate much lesse to use contempt towards or to abuse such as are in authority especially when they are in executing their office 29. Nay it seemeth that he which shall use words of contempt or contra bonos more 's against a Iustice of peace though it be not at such time as he is executing his office yet hee shall be bound to his good behaviour 30. If a Citizen or free man of a Citty Co. 11. 98. or Towne corporate shall use words of contempt or contra bonos more 's against the chiefe officer of the City or Towne or his brethren they are good causes to commit him to prison untill he shall finde sureties for his good behaviour for obedience and reverence ought to be yeelded to the magistrate for that they derive their authority from the King 31. Also he that shall abuse a Iustice of peace his warrant may be bound to his good behaviour 32. A man complaineth of a Riot or a forceible Entry so that the Iustices of peace are assembled to enquire therof and then the party that complained will not prosecute the matter it seemeth the said Iustices of peace may bind him to his good behaviour for his deluding them 33. And so of such as shall charge another with felonie before a Iust of Peace and yet will not give Evidence c. 34. A. is bound to keepe the peace against B. only Cromp. 134. and getteth a supersedeas and after B. releaseth him after A. is arrested for suretie for the peace at another mans suit and sheweth this first supersedeas it seemeth he shall be bound to his good behaviour for this deceit 35. He that hath a pardon for any felony 10. Ed 3. P. pardon 5. shall finde surety for his good behaviour but he shall bee bound before the Sheriffe and Coroners who shall returne the same into the Chancerie 36. Also he that is acquitted of felonie if he be of evill fame or of evill behaviour it seemeth the Iustices of peace upon their discretion may bind him to his good behaviour 37. The forme of a warrant for the good behaviour vide postea tit Warrants 38. The forme of the Recog for the good behaviour vide postea tit Recognisance 39. Whether the suretie of the good behaviour taken upon complaint may be released by any speciall person some do doubt it Release Lamb. 126. because it seemeth more popular then the suretie of the peace yet others doe hold that it may be released either by the Iustice of peace himselfe that tooke it in discretion P.R. 2â— or by the party upon whose complaint it was granted even as that for the peace may 40. It seemeth also a Supersedeas Supersedeas of the good behaviour may bee granted by the Iustices of peace as well as for the peace mutatis mutandis upon good sureties taken by the said Iustices of the party to be of the good behaviour Cromp. 237. 41. Cromp. 146. If a man be bound to the good behaviour before Iustices of peace and to appeare at the next Assises or Sessions yet the party bound may by a Certiorari Certiorari remove the Recognisance into the Chancerie or Kings Bench before the day and then he shall not need to appeare at the Assises or Sessions for they have no record whereupon he may be called there Swearing and Cursing CHAP. 64. 1. FOrasmuch as all prophane swearing and cursing is forbidden by the Word of God 10. Caroli ca. 1. in Ireland it is enacted by Parliament in anno 10. Caroli ca. 1. that no person or persons shall prophanely sweare or curse and that every person or persons that shall at any time or times offend herein either in the hearing of a Iustice of peace bailiffe or any other head officer of any Citty or Towne corporate where such offence is or shall be committed or shall be thereof convicted by the oathes of two witnesses or by confession of the party before any Iustice of Peace of the County or head officer or Iustice of Peace in the Citty or towne corporate where such offence is or shall be committed to which end every Iustice of peace and every such head officer have power by that Act to minister the same oath that then every such offendour shall for every time so offending forfeit and pay to the use of the poore of that parish where the same offence is or shall bee committed the summe of Twelve pence and it shall also be lawfull for the Constables and Church-wardens or any one of them by warrant from such Iustice of peace or head officer to levie the same summe or summes of money by distresse and sale of the offendours goods rendring to the party the overplus and in defect of such distresse the offendor if he or she be above the age of
Twelve yeeres shall by warrant from such Iustice of Peace or head officer be set in the stocks for three whole houres but if the offendor be under the age of Twelve yeares and shal not forthwith pay the said summe of 12. d. then he or she by the warrant of such Iustice of P. or head officer shall be whipped by the Constable or parents or master in his presence And be it further enacted that if any such offendor shall commence any suite in Law against any officer or other for such distraining sale of goods whipping or setting in the stocks the defendant or defendants may pleade the generall issue and give the speciall matter in evidence to the Iury at the triall and if it be found against the plaintiffe or that the plaintiffe be non-suite the defendant or defendants shall be allowed good costs to be taxed by the Court provided neverthelesse that every offence against this law shall be complained of and proved as abovesaid within twenty dayes after the offence committed And it is also enacted that the said Act shall be read in every parish Church by the minister thereof vpon Sunday after the Evening Prayer twice in the yeare Treason CHAP. 65. BEfore the making of the statute of 25. Ed. 3. ca. 2. de prodicionibus there was great ambiguity and diuersity of opinions what offence should be adjudged Treason for clearing whereof the said statute was made whereby it is declared that these offences following should be adjudged Treason viz. 1. To compasse or Imagine the death or destruction of the King the Queene or the Prince 2. To deflowre the Queene or the eldest daughter of the King not marryed or the wife of the eldest sonne and heire of the King 3. To levie warre against the King in his Realme or to be adherent to the Kings enemies in his Realme giving them ayd or comfort in his Realme or elsewhere 4. To counterfeite the Kings great seale or privy seale or his money 5. To bring false money into this kingdome like to the Kings money knowing the same to be false to merchandise or make payment in deceit of the King and his people 6. To kill the Cancellor Treasurer or Iustices of the King of the one Bench or the other Iustices in Eire and of the Assises and all other Iustices of Oyer and Terminer being in their places doing their offices 2. All these offences are by the said statute declared to be Treasons which extend to the King and his Royall Majestie for which the King shall have the Escheate aswell of the lands holden of others as of himselfe 3. Also there be other offences by the said statute declared to be petty Treasons which doe not extend to the Kings Majestie as where the wife doth murder her husband the servant his master or the Clerke his Ordinary in which cases the chiefe Lords had the Escheates but now by a statute made in this kingdome of Ireland in 10. H. 7. ca. 21. aswell these offences of pettie Treason as also those which at the common Law were murder of malice prepensed are made high Treason both in the Actors and procurers and by a statute made in 28. H. 8. ca. 7. in Ireland all escheats for any manner of Treason are given to the King 4. By another statute made in 3. H. 5. ca. 6. It is declared that washing fyling or clipping of money shall be high Treason 5. By another statute made in 4. H. 7. ca. 16. the coyning of forraigne coyne which is permitted to passe in this Realme is Treason 6. By another statute made in Ireland in anno 13. H. 8. ca. 1. willfull burning of houses or Rickes of Corne in the field or in the Townes is made Treason 7. By another statute made in Ireland in 11. Eliz. ca. 1. for the attainder of Shane ô Neale the assuming of the name or dignity of O Neale or taking any thing by colour of that name is made Treason 8. By a statute enacted in anno 10. H. 6. ca. 3. in Ireland for Cessing of horsemen or footmen upon the Kings subjects without their good wils the offendor shall be adjudged as a traitour 9. By another statute made in Ireland in anno 18. H. 6. ca. 2. It is enacted that putting into Comricke and the granting of such Comricke or safeguard shall be Treason aswell in the giver as in the taker 10. By another statute made in Ireland in anno 10. H. 7. ca. 13. It is enacted that to cause assembly or insurrection conspiracies or in any wise to procure or stirre Irishry or Englishry to make warre against the Kings authority that is to say his Lievetenant or Deputy or Iustices or else in any manner to procure or stirre the Irishry to make warre upon the Englishry shall be high Treason 11. By another statute in Ireland made in 28. H. 8. ca. 7. It was enacted amongst other things that if any person shal malitiously wish will or desire by words or writing or by craft imagine invēt practise or attempt any bodily harme to be done to the King the Queene or their heires apparant or to deprive them or any of them of the dignity title or name of their Royall estates or publish or pronounce by expresse writing or words that the Kings Majestie is an Hereticke Schismaticke Tyrant Infidell or Usurper of the Crowne or shall rebelliously detaine or withhould from the King his heires or successors any of his or their ships ordinances artillery and other munition of warre and shall not deliver up the same within six dayes after they shall be required by Proclamation under the great seale the offendors Ayders Counsellers Consenters and Abettors shall be adjudged Traitours of high Treason 12. Having now briefely declared the statutes which are of force in this kingdome of Ireland concerning Treasons I will returne backe to the exposition of the said statute of 25. Ed. 3. de prodicionibus 13. That statute of 25. Ed. 3. doth not make any offence to be Treason which was not Treason by the common Law before neither doth it alter any offence of Treason at the common Law into a lesser offence but onely declareth the common Law in some particular cases and therefore it will be necessary to set forth what offences have beene adjudged to be Treason at the common Law both before and sithence the making of that statute 14. Treasons at the common Law I finde thus defined by Glanvill li. 14. ca. 1. cum quis itaque de morte Regis vel seditione Regni vel exercitus infamatur c. And afterward in the same chapter are these words viz. ipsum accusatum machinatum fuisse vel aliquid fecisse in mortem Regis vel seditionem Regni vel exercitus vel consensisse vel consilium dedisse vel authoritatem prestitisse c. 15. Also I finde in Bracton li. 2. Titulo de crimine lesae majestatis Treason to be thus defined videlicet Si quis ausu
command you that you together with the petty Constables of the severall Townes Parishes and Hamlets within your Barony taking sufficient assistance out of the said Townes doe make a generall privy search within every of the said severall Townes Parishes and Hamlets upon _____ at night next comming for the finding out and apprehending of all Rogues Vagabonds and wandring idle persons in or about their said severall Townes and that such as shall be found and apprehended you doe cause them to be punished in every severall Towne or Parish where they shal be so apprehended by the petty Constables of every severall Parish respectively and by them also further to be conveyed according to the statute And if any of the said Rogues shall appeare to be dangerous or incorrigible that then you cause such to be brought before me or any other of his Majesties Iustices of peace to be further dealt withall according to the statute in such cases provided dated c. Afterwards any one of these Iustices may take the examination of or proofe against such dangerous Rogues finding cause may then commit such Rogues to the gaole and from thence he may by two Iustices of peace be sent to the house of correction A warrant for a fugitive servant Iohn Cuts Knight one of the Iustices of the peace of our soveraigne Lord the King c. To the Baliffes of the Barony of C. and to T.H. Constable of M. in the County of Dublin Dublin greeting Whereas E. L. hath beene retained to serve I. T. of M. aforesaid according to the forme and effect of a statute made for servants without just cause or licence of the said I.T. hath departed from his service Therefore on the behalfe of our soveraigne Lord the King I charge and command you and every of you that immediately after sight hereof you cause the said E.L. to be delivered to his said master to serve him and if he shall refuse so to doe that then you cause him to be convayed to his Majesties gaole of the said County of Dublin there to remaine untill he shall doe the same So that you may have him before me and the rest of my fellow Iustices at the next Sessions of the peace to be holden for the said County to receive such punishment as shall be then and there inflicted upon him sealed with my seale _____ dated c. Or thus in Latine Iohannes Cutts Miles unus Iusticiar Domini Regis c. Com. Dublin Ballivis Baroniae de C. et T.H. Constabular de M. in comitatu praed salut Quia E.L. retentus in servic I.T. de M. predict sibi serviend secundum formam et effectum statuti de servientibus edit à servitio pred I.T. sine causa rationabili et licentia ipsius I. T. recessit ut dicitur ideo ex parte Domini Regis vobis et cuilibet vestrum praecipio quod praef E.L. ad praefat I.T. magistrum suum deserviend deliberar faciat West â—78 Et si hoc recusaver tunc eum gaolae Com. praedict duci faciatis quousque c. Ita quod eum habeatis coram me et socijs meis Iustic dicti Dom. Regis in Com. praed ad prox sess pacis ibid. tenend ad faciend et recipiend ea quae ei tunc et ibid. in hac parte objicientur Sigill meo sigillat dat apud Another for the same Simon Steward Knight one of the Iustices of the peace of our soveraigne Lord the King c. To the Sheriffe of the County of Dublin Dublin and also to I.B. Constable of the Towne of B. and to R.N. Bailiffe Itinerant in the same County and to every of them greeting On the behalfe of our soveraigne Lord the King I command you and every of you that you or one of you attach the bodie of W.R. of B. aforesaid Labourer so that you or one of you have him before me and the rest of my fellow Iustices of our soveraigne Lord the King in the County aforesaid at the next generall Sessions of the peace to be holden in the aforesaid County to answer aswell to our said soveraigne Lord the King as to R.C. of c. Yeoman wherefore he being lately retained in the service of the said R. at T. in the County aforesaid from the said service before the end of the terme betwixt them agreed upon without just cause or licence of him the said R. hath departed in contempt of our soveraigne Lord the King and to the great damage of him the said R. and contrary to the forme of the statute in that case provided And that you or one of you have then there this precept witnesse c. Or thus in Latine Com. Dublin Simeon Steward Miles unus Iustic c. vic Com. pred Necnon I. B. Constabular vill de B. et R. N. ballivo itineranti in eodem Com. et eorum cuilibet salutem Ex parte dicti Domini Regis vobis et cuilibet vestrum mando Cromp. 238. quod attach seu unus vestrum attach W.R. de B. pred Labourer ita quod eum habeatis seu unus vestrum habeat coram me et socijs meis Iustic dict Dom. Regis ad pacem in Com. pred conservand Necnon et assign ad prox general sessionem pacis in Com. pred tenend ad respondend tam dicto Dom. Regi quam R.C. de c. Yeoman quare in servitio ipsius R. apud T. in Com. pred nuper retentus ab eodem servitio ante finem termini inter eos concordat sine causa rationabili et licenc ipsius R. recessit in Dict. Dom. Regis nunc contemptum et ipsius R. grave damnum et contra form statut inde edit et provis Et habeatis seu unus vestrum habeat ibi tunc hoc preceptum Teste c. A warrant for one refusing to serve Roger Millisent Knight one of the Iustices of the peace of our soveraigne Lord the King c. To R.L. Bailiffe of S. in the County of Dublin Dublin greeting On the behalfe of our soveraigne Lord the King I command you that you attach the body of R.A. of S. aforesaid Labourer so that you have him before me or my fellow Iustices of the peace in the County aforesaid at the next generall Sessions of the peace to be holden in the said County to answere aswell to our said soveraigne Lord the King as to B.C. of A. c. Yeoman wherefore he the said R.A. although he were often required to serve the said B.C. in a competent service for his estate yet notwithstanding he the said R.A. hath altogether refused to serve the said B.C. in contempt of our soveraigne Lord the King and to the great damage of him the said B.C. and contrary to the forme of the statute for servants in that case lately made and provided And see that you have this warrant there witnesse c. Or thus in Latine Rogerus Millisent
refuse to receive felons or shall take any thing for the receiving of them this by the statute of 4. of Edw. 3. ca. 10. is punishable by fyne and imprisonment 7. If any Coroner In Coroners shall exact more Fees for taking an Inquisition super visum corporis of one that is murdred or killed then thirteene shillings foure pence which is to be paid of the goods of the offendor or of the Towneship where the offence was committed in the day time if the offendor have escaped for this offence the Coroner by the statute of 3. H. 7. 3. H. 7. ca. 1. shall forfeit 5. l. 8. If Ordinaries or their officers shall take more Fees for the probate of Testaments or granting letters of administration then is appointed for them to take by the statute of 28. H. 8. cap. 18. in Ireland the offendors herein shall for every of their offences by force of the said statute incurre the penalty and forfeiture of 10.l 9. If any Clearke of the peace In Clearks of the peace take above j.s. for the inrolling of a bargaine and sale where the land doth not exceed forty shillings per annum and where it exceedeth that summe ij.s. vj.d. by a statute made 10. Caroli cap. 1. in Ireland he is to be punished by fyne and imprisonment 10. If the Clearke of the market In Clearks of the market take any common fyne or other reward to dispence with offences or tarryeth any longer in the Country then the necessity of the businesse requireth by the stat of 13. R. 2. cap. 4. he is for his first offence to be fyned in 5.l for his second in 10.l and for his third offence in 20.l 11. If Mayors In Mayors c. and chiefe officers of Townes and Corporations take excessive Fees for sealing of waights and measures that is to say for sealing of every bushell more then a penny for every other measure more then a halfe penny for every hundred waight more then a penny for every halfe hundred more then a halfe penny and for every weight under more then a farthing by a statute made in 7. H. 7. ca. 3. they are for every such offence to be fyned in 40 s 12. If any Purveyor In Purveyors take any bribe or reward to spare any man or take Corne by any other measure then the striked bushell or take carriages without ready payment by the severall statutes of 15. Ed. 3. cap. 1. 36. Ed. 3. cap. 3. and 1. H. 5. cap. 10. he is to be punished by two yeares imprisonment and ransome and to pay treble damage to the party grieved 13. If Iurors In Iurors take any thing to make their presentments favourably by the statute of 5. Ed. 3. cap. 10. they are to bee punished by imprisonment and ransome 14. If any person shall get into his possession any mony or other goods by any false token By false tokens or counterfeit letter this is a misdemeanor at the common Law to be punished by a great fyne and imprisonment and to be bound to the good behaviour and by a statute made in England in 33. H. 8. ca. 1. which is not in force in Ireland he is to be punished by imprisonment of his body standing upon the pillory or otherwise by any corporall paine except paines of death as shall be upon him adjudged or appointed by the person or persons before whom he shall be convict of the said offences or of any of them 15. If any person shall packe fish deceitfully mixing small fish with the countable fish by a statute made in 22. Ed. 4. ca. 2. he is to be fyned for every vessell so deceitfully packed vj.s. viij d 16. If any Cowper By Cowpers shall make vessels for Beere or Ale of unseasonable timber this is a misdemeanor at the common Law punishable by fyne and imprisonment 17. If any Miller By Millers shall take Toll by the heape he is to be punished by fyne and imprisonment and likewise if he take more then the twentieth or foure and twentieth part he shall be punished in manner aforesaid by the statute of 31. Ed. 1. called the statute of Bakers and Brewers c. 18. If any man shall buy any pretended title By buying of pretended titles to any lands or tenements the seller being out of possession by a statute made in Ireland 10. Caroli aswell the buyer as the seller shall forfeit the whole value of the lands so contracted for and also be imprisoned 19. If any person shall mainetaine any suit in any Court By maintenors or any quarrels in the Countrie he is to be punished by Fyne and imprisonment by the severall statutes of 1. Ed. 3. ca. 14. and 1. R. 2. c. 5. 20. If any person shall move pleas or suites By Champerty or cause them to bee moved either by their owne procurement or by others and sue them at their proper Costs for to have part of the Land in variance or part of the gaine to be recovered by such suites such persons by the statute of 33. Ed. 1. Rastal Champertie 5. are declared to be Champertors and are to be punished in manner following that is to say that if any shall by covenant or contract give up his right to another by way of Champertie the taker of such gift shall forfeit so much as doth amount to the value of the thing that he hath so acquired 26. Ed. 1. Articuli super Chartas cap. 11. And by the statute of 20. Ed. 1. Rastall Champertie 3. hee shall be imprisoned by the space of three yeares and if any shall receive any Church Advowson land or Tenement in Fee or to farme so long as the thing is in plea aswell the party that selleth as he that purchaseth the same shall be punished by Fyne and imprisonment by the statute of Westminster the 2. cap. 49. 21. By subornation If any person shall suborne or procure another to give false testimony upon his oath in any cause depending in any of the Kings Courts or ad perpetuam rei memoriam this offence is subornation of perjurie for which the offendor shal be fined in 40.l and if he be not worth so much then to have halfe a yeares imprisonment and to stand upon the pillory and his testimony for ever to be disabled 28. Eliz. cap. 1. in Ireland 22. If any person shall wilfully and wittingly foresweare himselfe in any Court of Record this is perjury By perjury for which the offendor is to be fyned in xx.l. and six moneths imprisonment and if he have not goods to that value to be set upon the pillory and both his eares nailed to the same and his testimony forever to be disallowed 28. Eliz. ca. 1. in Ireland By forestalling 23. If any person or persons shall buy any Corne Fish or other things comming by land or water to any market to be sold these are forestallers
the discretion of the Court. 5. Ed. 3. cap. 10. Bribery 33. If any officer or minister of Iustice shall take any bribe to neglect the doing of his office or to doe his office falsely or corruptly he is to be punished by the common law by Fyne and imprisonment Conspiracy 34. If any Tradesman Artificers Labourers or servants shall combine and conspire not to worke or serve at the rates published by the Iustices of peace this is a misdemeanor at the common law and punishable by fyne and imprisonment 35. If any persons shall make any conspiracy or combination by colour of Iustice to take away any mans life malitiously without cause this is a high misdemeanor and to be grievously punished by the villanous Iudgement viz. imprisonment during life the offendours testimony to bee rejected his house to be rased his medowes plowed his woods to be rooted up and his person never to approch any of the Kings Courts 36. If any person or persons shall wittingly forge or cause to be forged any false deeds or writings or publish the same knowing them to be forged this is a misdemeanor punishable at the common law by Fyne and imprisonment and may bee so punished by the Iustices of peace but by a statute made in 28. El. cap. 4. in Ireland if it concerne Inheritance or Freehold of any lands or hereditaments it is punishable by Pillorie losse of Eares slitting the Nose forfeiture of land during life and perpetuall imprisonment but this punishment is to be inflicted by the Iustice of Assize or Iustice of Oyer and Terminer and not by the Iustices of Peace Offences of Omission CHAP. 6. 1. THe third sort of fineable offences are omissions Omissions in officers and others in not doing and performing such things as by the Lawes of the Kingdome they ought to doe for as the Lawes prohibit the doing of such things as are unlawfull so likewise they command the doing and performing of other duties which are for the preservation of the peace and good governement of the Common-wealth and therefore if Constables In Constables shall not set forth nor levie Huy and Cry after Felons and Traytors upon notice to them given this is a grievous offence of omission tending greatly to the prejudice of the Common-wealth and by the statute of 13. Ed. 1. ca. 1. 2. called the statute of Winchester to be punished by a great Fyne and imprisonment 2. If Constables shall bee negligent in the apprehending and punishing of Rogues Vagabonds and sturdy beggars and others that begge without licence or having Licences begge out of the limits appointed for them to begge in Such Constables for their neglects by a statute made 33. H. 8. cap. 13. in Ireland are to be punished by Fyne and imprisonment 3. If Constables shall be negligent in appointing the watch in every Towne by a statute made in 5. Ed. 4. cap. 5. in Ireland they are to be punished by a Fyne of three pence for every time that they shall faile in this particular 4. If Constables shall not doe their best endeavour to part an Affray and to see the Kings peace preserved and to apprehend the offendors and bring them before a Iustice of peace this is a neglect of their dutie and punishable at the common Law by fyne and imprisonment 5. If Constables shall not make search for idle and suspected persons and common gamesters that live idly and expensively having no meanes to maintaine themselves and bring them before a Iustice of peace this neglect is a misdemeanor at the common law and punishable by fyne and imprisonment 6. If Constables shall neglect or refuse to apprehend Felons or Traitors or to make search for them upon request or notice given them this is likewise a misdemeanor at the common law and punishable by fyne and imprisonment 7. If Constables or any other officers Neglect of officers others or ministers of Iustice shall refuse or neglect to execute the warrants of any Iustice of peace to them or any of them directed this is likewise a misdemeanor at the Common law and punishable by fyne and imprisonment 8. If any person or persons shall refuse to follow Huy and Cry after Felons and Traytors at the Constables command by the Statute of Winchester made Anno 10. Edw. 1. cap. 1. 2. they are to be punished by fine and imprisonment 9. If any person or persons shall refuse to assist the Constable to make search for and to apprehend Felons or Traytors or other suspected persons or to convey prisoners to the gaole or before a Iustice of the peace this is a misdemeanor at the Common Law and punishable by Fine and imprisonment 10. If any person shall refuse or neglect to keepe the watch when he shall be required by the Constable this is likewise a misdemeanor at the common law and punishable by fine and imprisonment Neglect of Towneships 11. If any Towneship shall permit and suffer sturdy beggers Rogues or Vagabonds to abide in or passe through their towneship without punishment or other impotent beggers which begge without licence The Towneship is to be punished in manner following viz. To be fined for every impotent begger 3 s.4.d and for every sturdy begger Rogue or Vagabond 6. s. 8. d. and this by the statute of 33. H. 8. ca. 15. in Ireland 12. Every Towneship ought to have stockes for the punishment of Rogues Vagabonds and sturdy beggers and likewise for the safe keeping of breakers of the peace and other malefactors untill they can conveniently be brought before a Iustice of the peace And also common and overt pounds wherein distresses are to be impounded and such towneships as shall want such stockes and common pounds are to be punished by fine at the discretion of the Iustice of peace 13. If any servant artificer or labourer Servants Labourers and Artificers shall refuse to worke or labour at the wages rated by the Iustice of peace or shall take more wages then according to the rates published by the said Iustices by the stat of 33. H. 8. cap. 9. in Ireland they are to be punished in manner following viz. To forfeit so much as they take above the rates and imprisonment at the discretion of the Iustices of Peace 14. All such as are idlers and will not labour at all and yet have nothing to maintaine themselves are to be enquired of presented and to be punished by the Common law by fine and imprisonment untill they finde sureties to labour or for the good behaviour at the discretion of the Iustice of peace 15. All defects of Bridges Defects of Bridges c. causeys and high-wayes are to bee presented in the generall Sessions of the peace and all such as ought to repaire the same whether it be the whole countie one or more Barronies Parishes or any one person in particular they are to be fined for their neglect herein by the common
insufficient by the greater part of the Iustices assembled for that purpose notwithstanding the words contra formam statutorum praedictorum were therein contained Collection Dyer 363. 50. Againe it is not safe to recite the dayes or places of the beginnings continuances prerogations or dissolutions of the Parliaments least by mistaking of any of them the whole Endictment fall to the ground thereby Ibid. 203. 51. Thus farre of these points by way of short rule and direction for the better imitation and practise whereof you may use the helpe of such formes of Endictments as the Appendix at the end of this worke will afford you Now let us with a few words consider what Endictments be receiveable by the Iustices of peace and what ought to be rejected by them Endictments to be received or rejected 52. Generally they may receive Endictments before themselves of all causes being either within their Commission or within the statutes whereof they have to enquire And they may also receive Endictments taken before the Sheriffe in his Turne so that the Turne be holden within the moneth after Easter or within the moneth after Michaelmas and so that those Endictments or presentments be indented and sealed betweene the Sheriffe and the Iurors and so that they be made by the oath of xij men at the least and that those Iurors be of good fame and legales homines that may dispend yearely xx s of freehold or xxvj s.viij.d of copihold W. 2. c. 14. 1. Ed. 3. ca. 17. 31. Ed. 3. ca. 14. 1. Ed. 4. ca. 2. 1. R. 3. ca. 4. And for this purpose the said statute 1. Ed. 4. ca. 2. binds the Sheriffe to certifie to the Iust of Peace at their next Sessions the Endictments found in his Turne or Law day The duty of Iustices about Endictments 53. Thus much for the better assistance of our Iustices of the peace I thought meet to say of Endictments not onely because they be the chiefe bases and groundworke whereupon the whole tryall is afterward to be built and framed but also because the Iustices being Iudges of the Court ought of office to see that the bils of Endictment have sufficient matter and forme in them 24. Ed. 3. 74. Of the impediments of proceeding upon Endictments before the Iustices of peace and therewithall of the Certiorari to remove Records CHAP. 9. 1. IT falleth out not seldome that when Iustices of the peace have taken an Endictment found before them they cannot proceed to hearing and determining upon it either because their Commission or some statute whereupon it is grounded giveth unto them no further power but only to enquire thereof or else because the Endictment is taken out of their hands by Certiorari and convayed to Iustices of a higher authority at the sollicitation and by the meanes of some parties grieved to the end that they may either traverse it above or there avoyd it for insufficiency of forme or matter 2. Albeit that in the removing of Pleas betweene party and party from inferiour to higher Courts by Tolt Pond recordare c. there was wont to be a probable cause alledged for which the same were removed yet in this case of the Crowne there needs no cause to be comprised in the writ of Certiorari because they all be the Courts of the King against whom the offence is committed and it breedeth neither injury to the offendor nor losse to any other person in what Court soever the offence be tryed 3. This Certiorari then may command either the Record it selfe or tenorem Recordi to be sent up and it ought to be obeyed accordingly for upon faile thereof first an Alias then a Pluries vel causam nobis significes And lastly an Attachment shall goe out against them that should send it as Master Fitz. noteth in his Nat. Br. fol. 245. but they use at this day to impose a fine upon Affidavit made of the delivery of the writ and refusall to certifie 4. And albeit the Certiorari be a Supersedeas of it selfe yet may the partie upon the Certiorari purchased have a Supersedeas also directed to the Sheriffe commanding him that he arrest him not upon that Record before the Iustices of peace Fitzh ibid. fol. 237. 5. This writ of Certiorari is usually directed to the Iustices of peace Lamb. li. 4. pag. 515. and yet as you have heard the Custos Rotulorum only hath the keeping of these Records but the ancient Commissions of the peace had no Custos Rotulorum specially named in them and then this certifying belonged to them all but now it belongeth to the Custos Rotulorum 6. Now if a Certiorari come to the Iustices of peace to remove an Endictment and the party sueth not to have it removed but suffereth it to lye still then the Iustices of peace may proceede notwithstanding the writ as Hubbert the Kings Atturney said in 6. H. 7. 16. For otherwise the tryall of a Felon if the Endictment were of Felony might be delayed and deluded also But yet Keble held opinion against him and was fearefull that in such a case it might prove felony to make execution of the felon after such writ received and to say the truth the Iustices ought of office to send it away because the writ contayneth in it selfe a commandement to them so to doe 7. And if a Certiorari come to the Iustices of peace to remove an Endictment and in truth the Endictment was not taken till after the date of that Certiorari yet if the Endictment be removed thereby it is good enough for that they both be the Kings Courts 1. R. 3. 4. and in such case it is now usuall to remove it 8. In the making of a Certificate The manner of the certificate upon this Certiorari the Iustices of the peace ought neither to omit that which doth authorize them nor to exceed that authoritie which belongeth unto them For on the one side if they certifie an Endictment of Felonie or of a Riot as taken coram Iusticiarijs ad pacem it was not thought enough without saying further Nec non ad diversa felonias c. and otherwise it was doubtfull whether the Endictee shall be quite dismissed or no because the Iustices of the peace had then no Record at all remaining with them for the Clerke of the peace maketh his Entrie accordingly and that Record which they sent up is insufficient And therefore the Clerke of the Crowne was forbidden to receive any such Certificate 12. H. 7. 25. 9. On the other side if they certifie an Endictment of felony not determined into the Kings Bench they ought not without warrant to certifie another Record of the acquittall of that Endictee for the same matter for nothing ought by them to be sent thither without warrant but that which is Executorie and needeth the help of that higher Court 8. Ed. 4. 18. 10. And if a Certiorari be to send up the
were not Iust of P. also in the same shire so as the indictment may be understood to be taken by them as before Iustices of the peace for their Commission and authority extendeth only to such as stand endicted before themselves or before former Iustices of the peace or the Sheriffe in his Turne Things peculiar to Iu. of the peace in the tryall of felonies 11. Thus farre of the first point touching the second it seemeth by Marr. and Fitz. fol. 16. that albeit two Iustices of the peace the one of them being of the Quorum may in the County of Dublin heare and try felonies yet no Iustices of the peace have authority to deliver felons by Proclamation without sufficient acquittall nor yet to deliver such as be in prison for suspition of felony unlesse there be in the Commission a speciall clause ad gaolam deliberand c. as it is in the Commission for the County of Dublin 12. For they must proceed by inquiring hearing and determining as their Commission appointeth them and not rid the gaole otherwise as the Iustices of Gaole delivery may doe And therefore such persons if they cannot be indicted must either remaine the comming of the Iustices of Gaole delivery or else being removed into the Kings Bench they are either to be delivered thence upon the writ de gestu et fama as the old order was or by such other meanes as they at this day doe use therein 13. These Iustices of peace can take no Appeale of any approver nor other before them 2. H. 4. 19. and so it is cleerely holden 9. H. 4. 1. because their Commission stretcheth not so farre but onely to such felonies as fall out by enquiry before themselves or their former fellow Iustices howsoever the booke in 44. Ed. 3. 44. upon the statute 5. Ed. 3. ca. 11. or the statute 8. H. 6. ca. 10. may seeme to a running Reader to allow that power unto them and therefore Master Stamford fol. 95. doubteth of it 14. But howsoever that be yet seemeth it to me no lesse reasonable then serviceable that if one felon will accuse another before Iust of the peace they may take his confession and reprive him and thereupon cause the other to be inquired of and so proceed against him by way of Indictment 15. Furthermore they cannot arraigne a man upon his abjuration saith Marr. 16. It hath also beene thought unmeet that they should try a felon the same day in which they awarded the venire facias against the Iury. 22. Ed. 4. 44. Fitz. Coron tit 44. but that hath no necessity and the Law is now otherwise taken 17. Marr. saith that they cannot award the writ of venire facias tot matrones to try whether a woman arraigned before them be with child or no but seeing it standeth with Law and reason to stay her for the time that the child may be preserved It must of necessity follow that this opinion of Marrow is against the Law 18. They may give Clergy to a felon if the Ordinary or his Deputy be present to take him but if they be absent he must be reprived because as Mar. saith these Iustices can set no Fyne upon the ordinary for his absence no more then if he will accept one to read as a Clerke where in truth he cannot read at all but if you looke upon Master Stamford lib. 2. ca. 25. he will perswade you that the Ordinary is not the Iudge but a Minister in the tryall of Clergy and that Clergy may lawfully be given and allowed in his absence 19. Of the Fyne for his default at these Sessions Lamb li. 4. pag. 55â— I am a litle doubtfull as I have said before but touching the allowance of Clergy to the offendor I see no cause at all why it may not belong to the Iust of peace aswell as to other Iudges seeing that they be Iudges of the felony as other Iust are 20. Mar. saith also that if Bigamy had been alledged against one that prayed his Clergy the Iust of P. could not have written to the Ordinary to certifie the same but this opinion seemeth to be no Law for where Iustices have power to heare and determine of congruity they have power to doe all things necessary to bring the cause to an end 21. And if a man outlawed of felony by processe before the Iustices of peace be brought before them and doe alledge that he was at the time of the utlary pronounced out of the Realme in the Kings service under such a Captaine or that he was then imprisoded in another County they can neither write to the Captaine nor into the County by the opinion of Mar. 22. Thus much only of things restraining the Iustices of peace in the tryall of Felonies wherein they are not in Ireland at all occupied saving onely in the County of Dublin but the gaole delivery is wholly left to the Iustices of Assize 23. These things thus premised Let us now suppose all impediments to be removed and set we the felon at the barre ready to take whatsoever lawfull advantage of Challenge plea or other benefit that may be allowed unto him 24. It was ever permitted Challenge that the prisoner might challenge so many of the Iury as he would shewing lawfull cause for it as namely to say that he whom he challengeth was one of the Iury which did indict him for such a one it may be thought he will not falsifie his former oath 25. Ed. 3. cap. 3. or to say that he hath not lands of the cleere yearely value of xl.s. for such a one is disabled 2. H. 5. ca. 3. or to say that hee is not probus or legalis because he hath beene attainted of felony forgery perjury or of such like as are shewed before 11. Caroli ca. 9. in Ireland 25. The common Law hath also in favour of life allowed unto the prisoner his peremptory challenge without shewing any cause at all for it But yet forasmuch as it was long time doubtfull how many he might challenge the same is now put into certainety by the statute 11. Caroli ca. 9. and restrained to the number of xx persons at the most 26. Now if the tryall be of an Alien borne for felony or murder committed by him the Iury shall be de medietare lingua that is halfe of our Nation and halfe of strangers except it be in the case of a Scot whose Iury shall be altogether English aswell because he speaketh one language as also for that he is reputed a subject and not an Alien Collection Dyer 304. 357. 27. Thus shortly of challenge which is but dilatory and to win time and therefore let us now heare what he may plead in chiefe as it were and for the safety of his life Another time acquit 28. And if the prisoner have beene at any time before lawfully acquited of the selfe same felony or have beene orderly attainted of any other
these and such other cases where they cannot of themselves proceed they ought to send the Records to such as have authority to determine upon them and otherwise they doe not discharge that duty which the words Salvis c. alijs ad nos indespectantibus in the Commission doe seeme to expect at their hands 6. Touching the Certiorari it is of force if it be made accordingly to remove not only Endictments or other executory Records wherein the Iustices of peace can goe no further and whereof I have spoken already but also the Records of causes fully and lawfully heard and determined by them to the end that they may be reversed and annulled in the Kings Bench if good matter and cause doe require it 7. For that preheminence hath the Kings Bench and all other the higher Courts to write to the Iustices of peace to certifie their Records that doe make for the tryall of causes hanging in them as you may read in 19. H. 6. 19. where the Iustices of the common place did send to the Iustices of peace for an Endictment because in a writ of conspiracy brought before them it was materiall to have it 8. And yet they of the common place doe not use to write for Endictments or such other Records unlesse they be thereunto induced by cause hanging in their owne Courts before them For otherwise the right way to remove them is by Certiorari out of the Chancery from whence they may be transferred by Mirtimus to any other Court 41. li. Ass pl. 2. per Knyvet chiefe Iustice Matters by severall Statutes specially appointed to be done and executed in the Quarter Sessions CHAP. 20. 1. VVEe have hitherto laboured and run over such things as are common to all generall Sessions of the peace and yet because there be certaine matters that are by severall statutes specially appropriated some to any and others to some one of the quarter Sessions it will not be amisse to set forth what Sessions is and ought to be called a quarter-Sessions 2. Every quarter Sessions is a generall Sessions of the peace and is styled generalis sessio pacis but other Sessions which are held upon speciall occasions although all the articles inquirable in the Sessions of the peace be given in charge are not quarter-Sessions nor to be styled generalis sessio pacis but only Sessio pacis c. 3. This quarter-Sessions is so called because it is holden quarterly viz. foure times in the yeare and the stat of 4. H. 7. cap. 12. calleth these foure quarter-Sessions principall Sessions for that in them chiefely the whole power and authority of the Iustices of peace doth shine and shew it selfe more then in other Sessions 4. These quarter-Sessions have beene appointed by severall statutes to be holden quarterly and at speciall times and therefore it will not be amisse for our better instruction to peruse such statutes as doe either in deed or in shew concerne this point 5. The stat of 25. Ed. 3. cap. 8. ordaineth That the Iustices of peace make their Sessions in all the Counties of England at the least foure times in the yeare viz. at the Feasts of the Annunciation of our Lady Saint Margaret S. Michael and S. Nicholas and also at all times that shall be needfull according to the discretion of the same Iustices 6. But this ordinance was altered as to the times by the Stat. of 36. Ed. 3. cap. 12. which ordaineth that in the Commission of the peace shall be contained that the Iustices of peace shall hold their Sessions foure times in the yeare viz. one within the Vtas of the Epiphanie the second within the second weeke of Lent the third betweene the Feasts of Pentecost and Saint Iohn Baptist and the fourth within eight dayes next after Michaelmas 7. But this is againe altered as to the times by the stat of 12. R. 2. cap. 10. which hath ordained that the Iustices of peace should hold their Sessions once in every Quarter of the yeare at the least without expressing any certaine time and hereupon as I conceive it gained the name of the Quarter-Sessions and ever sithence hath been so called For before this statute although foure Sessions were to be held yearely yet the same were not quarterly 8. But after this in Anno secundo H. 5. cap. 4. there was another stat made whereby it is ordained that the Iustices of the peace in every Shire named of the Quorum be resiant within the same Shire except Lords named in the Commission of the peace and also except the Iustices of the one Bench and of the other the chiefe Baron of the Exchequer Serjeants at Law and the Kings Attourney for the time that the same Iustices Chiefe Baron Serjeants at the Law and the Kings Attourney be attending and occupied in the Kings Courts or otherwise in some other place occupied in the Kings service and also make their Sessions foure times by the yeare that is to say in the first weeke after the Feast of S. Michael the first weeke after the Epiphanie the first weeke after Easter weeke and in the first weeke after the Translation of Saint Thomas the Martyr which is the third of Iuly and more often if need be 9. Now there are divers offences which by severall statutes are inquirable and some other things are to be done by the Iustices of peace for the well ordering of the Common-wealth only at the Quarter-Sessions because the Statutes themselves doe appoint the Quarter Sessions for the enquiring and doing of the same 10. The Statutes which doe appropriate divers matters to the Quarter Sessions or to some one of them are these that follow viz. 11. By the Stat. of 1. H. 7. cap. 7. unlawfull hunting in forrests parks and warrens with painted faces vizzards or otherwise disguised is to bee punished by Fyne to bee assessed at the next generall Sessions of the peace which is to be intended of the quarter Sessions which were publiquely knowne and not of any Sessions held upon speciall occasion 12. So likewise by the Stat. of 11. Iac. cap. 7. in Ireland the defaults for not amending of high-wayes according to that stat are to be punished at the next Quarter-Sessions 13. So likewise perjurie and subornation of perjurie are by the stat of 28. Eliz. cap. 1. in Ireland to bee punished in the Quarter-Sessions 14. Also by the statute of 11. Caroli cap. 4. in Ireland the Iustices of peace or the more part of them may at any Quarter-Sessions give order for the erection of houses of Correction and for stockes of money and all other things necessary for the same and for the governement thereof and such houses of Correction are to be purchased conveyed or assured upon trust to such persons as by the Iustices of peace or the more part of them in their Quarter Sessions of the peace shall bee thought fit and such Iustices may at their Quarter Sessions of the peace next after