Peace amongest others to take before that they should exercise the office and it hath these words I William Lambarde do vtterly testifie and decleare in my conscience that the Queenes Highnesse is the onely superame Gouernour of this Realme and of all other hir Highnesse Dominions and Countries as well in all spirituall and ecclesiasticall things or cause as temporall and that no forraine Prince Person Prelate State or Potentate hath or ought to haue any iurisdictionm power superioritie preheminence or authoritie ecclesiasticall or spirituall within this realme The Othe of Supremacie And therefore I do vtterly renounce and forsake al forraine iurisdiction powers superiorities and authorities and doe promise that from hencefoorth I shall beare faith and true alleageaunce to the Queenes Highnesse hir heires and lawfull successors and to my power shal assist and defende all iurisdiction priuiledge preheminence and authoritie graunted or belonging to the Queenes Highnesse hir heires and successors and vnited and annexed to the Imperiall Crowne of the Realme So help me God c. There hath bene care taken once or twice in our memorie to exact this latter Othe of all the Iustices of Peace throughout the Realme where of some good hath ensued But yet many a Iustice there is that by indirect practise neuer tooke neyther thys nor the former whereof what harmes doe and may grow I leaue to wiser and higher men to be considered Of the power absolute and limited that the Iustices of the Peace haue CHAP. XI THe power of the Iustice of Peace is in some cases Limited in other some cases Absolute Discretion By which latter word I do not meane absolute Simply but after a Manner For they may neither hang a man for a gréeuous Trespas nor fine him for a Felonie and therefore this absolute authoritie is to our Law better knowen by the name of Discretion because the Iustice of Peace may exercise sometimes Legis actionem and sometimes Iudicis officium or which is all one Iudicium Decretum as the case shall offer and the law suffer him It is a good Counsell which Aristotle giueth in his Rhetorikes ad Theodectem that in the making of lawes Quoad eius fieri possit quam plurima legibus ipsis definiantur quà m paucissimaverò Iudicis arbitrio relinquantur and the Commission of the Peace following that aduise doth leaue little or nothing to the discreation of the Iustices of the Peace but bindeth them faste with the chaines of the Lawes customes ordinances and Statutes Howbeit our latter lawes of Parliament although they also endeuour for the most parte to hold the same course yet forasmuche as euerie considerable circumstance can not be foreséene at the time of the making of the Lawe they doe many times leaue to be supplied by the discretion of the Executioner of the Lawe that thing which was not conueniently comprehended before hand by the wisedom of the maker of the Law And therefore although Discretion be necessary in the execution of euery law be it neuer so certainely set forth and bounded in it selfe yet in the mouth language of our Lawe that onelie and properly is said to be done by Discretion which is not specially limited with all the circumstances but is indifferently referred to the consideration of the Iustice that is putte in trust with it And truely it is to be wished that Iustices of the Peace would not by colour of this reference to their Discretion in some fewe cases arrogate vnto themselues authoritie to vse their discretion to play as it were the Chauncelours in euery cause that commeth before them For no way better shall the Discretion of a Iustice of the Peace appeare thā if he remembring that he is Lex loquens do containe himselfe within the lists of law and being soberly wise do not vse his owne Discretion but onely where both the law permitteth and the present case requireth it Right well saide Cicero Est sapientis Iudicis cogttare tantum sibi esse permissum quantum sit commissum ac creditum Of the Iurisdiction and Coertion belonging to the Iustices of Peace CHAP. XII AS Iustice can not bée administred without both a Declaration of the Law and an Execution of the same So to the ende that our Iustices of the Peace may be able to deliuer Iustice they are accomplished with double power the one of Iurisdiction and the other of Coertion the which other men doe call Vocationem Praehensionem that is to say Authoritie not onelie to conuent the persons but also after the cause heard and adiudged to constraine them to obey their order and decrée This Iurisdiction of theirs is exercised for the most part if not althogither aboute those causes which be in a maner the same that the Ciuil Lawyers do call Iudicia publica partely because the Prince who representeth the head of the common wealth hath interest in the most of them as wel as that priuate perso which is immediatly offended and partely because they are not commonly tryed by suche Action as other Ciuil and Priuate causes are but rather by Criminall and Publique Accusation Information or Presentment Iurisdictió And herein the Iustice of the Peace is by the one halfe superiour to the antient Conseruatour of the Peace who had onlie Coertion in a fewe cases and no Iurisdiction in any case that I remember But if the aucthoritie of these Iustices should cease when the fault is told hearde and adiudged then should they be no better than halfe Iustices and therefore the Law hath also Cohertion Execution or punishment as I said into their hands least otherwise their iudgements should be deluded for want of power to bring the to effect This Punishment then is an orderly execution of a lawfull iudgement layed vpon an offendour by the minister of the Lawe and it is done for foure causes first for the amendment of the offendor Cohertior or punishement for what causes it is appointed Secondly for examples sake that others may thereby bée kept from offeding Thirdly for the maintainance of the authoritie and credite of the person that is offended these thrée reasons be common to all such punishments Seneca rehearseth the fourth finall cause that is to say that wicked men being take away the good may liue in better securitie and this pertaineth not to all but to Capitall punishments onelie as euerie man may at the first hearing vnderstande The Romanes vsed specially eight sortes of chastisements knowen to them by these names Damnum Vincula Verbera Talio Ignominia Exilium Seruitus Mors that is losse of goods imprisonment stripes retaliation reproch banishment seruitude death All which our lawe before the Conquest was wont to inflict albeit that now Seruitude Retaliation and Banishment be out of vse The punishments that be commonly put in execution at this day and wherewith the Iustices of the Peace haue to do may be dinided into Corporal Pecuniarie
Besids this you may see admitted by the opinid of the Court 13. H. 7.10 that if a man do in the night season hauÌ„t a house that is suspeded for Bawdene or do vse suspitious coÌ„pany the may the CoÌ„stable arrest his to find suerties of his good abearing For Bawderie is not méerely a spirituall offence but mixed and but sounding little againste the Peace of the land 27. H. 8.14 Fitz. 1. H. 7.6 And therfore it shal not be amisse at this day in my sleder opinioÌ„ to grant Suertie of the good Abearing against him the is suspected to haue begotte a Bastard child to the end the he may be forth comming when it shall bée borne for other wise there will be no Putatiue father found when that the two Iustices of the Peace shall after the birth by vertue of the statute 18. Eliza. ca. 3. come to take order for his punishmet And for some aduise by the way in coÌ„ceiuing rightly this suspition marke what M. Bracton writeth Oritur suspitio ex fama ex fama suspitione oritur grauis praesuÌ„ptio Fama verò suspitione induces oriri debet apud bonos graues idque noÌ„ semel sed saepius Oritur etiam suspitio ex facto praecedente cui standum est donec probetur coÌ„trarium nam qui semel est malus semper preasumitu ess malus in eodem genere mali But the further that this bond of the good Abearing doth extende the more regarde there ought to be in the awarding of it and therfore although the Iustices of the Peace haue power to grant it eyther by their own Discretion or uppon the complaint of others euen as they may that of the Peace pet I wish rather that they doe not commaunde it but onely upon sufficient cause séene to themselues or upon the sute complaint of diuers and the same very honest and credible persons And here forasmuch as one Iustice of the Peace alone and out of the Sessions may both by the first Clause of the CommissioÌ„ and also by the opinion of M. Fitz. 9. E 4. 3. graunt thys suertie of the good Abearing although the common manner bée that two such Iustices do ioin in that doing whereof also M. Fitz hath very good liking I wil not sticke to set forth here the coÌ„mon formes as wel of the Precept as of the Recognusance for the same wherein if I shalvse the names of two Iustices you muste take that also to be done according to the common fashion not of any necessitie in law For as I woulde more gladly vse the assistance of a fellow Iustice in this behalfe if I may conueniently have it so if that may not be had I woulde not greatly feare when good cause shal require to vndertake the thing my selfe alone The Precept may have this course GEORGE MVLTON and William Laembarde two of the Iustices of the Peace of our Souereigne Ladie the Queenes Maiestie in the Countie of Kent To the Shirife of the said Countie to the Constables of the Hundred of Wroteham and to the Borsholder of the Towne of shipborne in the said Countie and to every of them greeting For as much as A. B. of Shipborne aforesaid is not of good fame not of honest conuersatioÌ„ but an euill doer Riotour Barrettour perturber of the Peace of our said Souereigne Ladie as we are giuen to understande by the reaporte of sundrie credible persons The Precept of the good abearing Any one of these is sufficient cause Therefore on the behalfe of our said Souereigne Ladie we commaund you and every of you that you cause the sayd A. B. to come before vs or some others of our fellowe Iustices to finde sufficient suertie and mainprise for his good abearing towards our said Souereigne Ladie and all her liege people And if he shall refuse so to doe c. as in the Precept of the Peace with a verie litle chaunge The vsuall Recognusance hath this forme MEmorandum quòd 5. die mensis Iuly Anno regni Elizab. c. 23. venit coram nobis Georgio Multon Wilhelmo Lambard caetera vt antea in Recognitione pacis vsque ad hoc Quod idem R. G. personaliter comparebit coram Iusticiarys dictae Dominae Reginae ac Pacem c. ad proximam generalem Sessionem c. The Recognusance of the good Abearing Et quòd ipse interim se bene geret erga Dominam Reginam cunctum pepulum suum praecipué erge I. B. de C. c. Et quod ipse non inferet nec inferri procurabit per se nec per alios damnum aliquod seu grauamen praefato I. B. seu alicuide populo ipsius Dominae Reginae de corporibus suis per insidias insultus seu aliquo alio modo quod in lasionem seu perturbarionem pacis dictae Dominae Reginae cedere valeat quouismodo videlicet vterque praedictorum H. C. I. S. sub poena 100 th Et praedictus R. G. sub poena 200. th quas quidem seperales summas 100. th vterque praedictorum H. C. I. S. vt praedicitur perse ac praedictus R. G. dictas 200. th recognouerunt se debere dictae Dominae Reginae de teris tenementis bonis catallis suis cuiuslibet corum ad opus ipsius dictae Dominae Reginae fieri leuari St contingat preaefatum R. G. in alliquo praemissorum deficere inde legitimo modo conuinci c. Or by a simpel Recognusance with this Condicion Endorced or vnder written COnditio Recognitionis praedictae talis est Quod si praedictus R. G. imposterum se bene geret pacem Dominae Reginae conseruet erga dictam Dominam Reginam et cunctum populum suum et nullum damnum corporale c. Extunc Recognitio praedicta pronullo teneatur alioquin in suo robore permaneat Thaue knowen it doubted whether the Suertie of the good Abearing commaunded vpon complaint may be released by any speciall person or no bicause it séemeth more popular than the Suertie of the Peace Release of the good Abeariâ—â— But if it may as it seemeth all one to me then may the forme of such a Release be easily made by that which is before concerning the Peace vsing the words Securitatem de se bene gerendo in steade of the wordes Securitatem pacis And the like imitation may bée vsed also for a Supersede as of the good Abearing if at the least that be grauntable by Iustices of the Peace I might here without breach of Order prosecute the preseruation of the Peace by the preueÌ„ting of such as be riotouslly assembled by handing the Statute of Northampton which séemeth by plaine speache to be prouided for preuention of the breache of the Peace also But bicause the first shall haue his proper place and the latter is commonly put in vre at this day after the Peace broken by forcible Entrie I will spare
ca. 1. Masse If anye person haue saide or soong Hasse or haue willinglye hearde Hasse 23. Elizab. cap. 1. If any person haue bsed or put in bre anye Bull Writing or Instrument of absolution or reconciliation or of other sorte gotten from the Bishoppe of Rome or Sée of Rome or from any person clayming auctoritie from the same Or haue by colour of any suche taken upon him to absolue or reconcile any person or haue published any suche Bull or instrument Bull Agnus Dei â—â—c Treason Or if any person haue aided comforted or maintained any such offendor to the entente to vpholde suche offence If anye person to inhome suche Bull or Instrument hath bene offered or persuaded haue not Within fire Wéekes nexte after signifyed the same to some of the Quéenes priuie Counsell or to the Lorde Presidence of the Northe or of Wales Misprision of Treason If anye person haue brought hither from the Bishoppe or Sée of Rome or from anye person auctorized or clayming to be auctorized by anye of them any Agnus Dei crosses pictures beads graines or such like superstitious things and haue the same delyuered or caused or offered to bée deliuered to any the Quéenes subiects to bse or weare in any wise and if anye person hame to such intent receiued or taken the same and haue not apprehended the offerer thereof nor within thrée dayes after disclosed him to the Ordinarie or to some Iustice of the Peace nor within one days deliuered the thing to some Iustice of the Peace Premurire 13. Eli. ca. 2 23. Eliz cap 1. If any person haue vsed Inuocation or Conturation of euill spirites for any cause or haue bsed Witchcraft Inchauntmente Charming or Sorcerie where by anye person is killed or destroyed 5. Elizabeth ca. 16. Folorie ConiuratioÌ„ If anye person haue within these fire monethes aduisedlye aduaunced published and set foorth by writing printing open speach or déed to any other person any fantasticall or false prophesie vppon armes fieldes beasts or hadges or vpon any time name bloudshed or warre to the intent to make thereby rebellion dissention losse of life or other disturbance within the Quéenes dominions Prophecying 5. E. ca. 15. If person haue by setting of figure casting of Natiuitie or by Calculation Prophecie Witchcrafte Coniuration or other vnlawful meanes whatsoeuer sought to know haue set forth by expresse words déede or writing how long hir Maiestie shall liue or who shall reigne after hir decease Or els haue aduisedly and with a malitious intent against hir Maiestie vttered any direct prophecie to such purpose And if any person haue indéede procured or abetted any suche offenders Felonie Sctfoorih how long the Queene shal liue 23. El. ca. 2. If any person haue vnlawfully procured any other person to commit wilfull and corrupt periurie in any cause depending in sute in any of the Quéenes Courtes of Kccorde or in any Léete Court Baron Hundred or Court of auncient demesne or haue corruptly suborned any witnesse sworne to testifie in perpetuam yet memoriam Or if any haue vpon such procurement or by his owne acte wiltul ly committed such Periurie Periurie 5. El. ca. 9 14. El. ca. 11. If any person haue within these these monethes by contemptuous or reuiling words or haue abuisedly in any other wise depraued despised or reuiled the blessed Sacrament of the bodie and blood of Christ Sacrament 1. E. 6. ca. 1 1. El. ca. 1. If any parson Vicar or Minister haue since the last Assises refused to vse the coÌ„mon prayers or to minister the Sacraments according to the booke of common prayers or wilfully standings in the same haue bsed any other ther forme in open prayers or in administration of the Sacrament or haue spoken any thing in derogation of the sayed booke or any part thereof Seruice and Sacraments Or if any person haue since that tyine in any plate song or ryme or by any open worde or of any thing therein contained Dr haue caused or maintained any Parson Hicar or Minister to say any Common prayer or to minister any Sacrament in other manner than after the sayde booke Or haue interrupted any parson Vicar or Minister to say open Prayer or to administer any Sacrament according to the saide Booke 1. Elizab. cap. 2. 23. Elizab. cap. 1. If any person being aboue the age of rvi yeares and not hauing lawfull and reasonable crcuse to bée absent haue not repaired and reforted to his or hir parishe Churche or Chappell accustmed or vppon let thereof to some vsuall place where Common prayer shall be vsed upon euerie Sonday and other holyday and haue not there orderly and soberly abiden during the time of such Common praier preaching or other seruise of God and how long such person hath not so repaired and resorted Repaire to Church 1. Eliz. ca. 2 23. Eliz. ca. 1. If any person haue kept or maintained any Schoolemaister which resorteth not to the church or is not allowed by the Bishop or Ordinaric of the Diocese Schoolemaister 23. Elizab. ca. 1. If any person haue malitiously striken any other with any weapen in any Church or Churchyard or drawen any weapen there to that intent Fighting in Church or Churchyard 5. E. 6. ca. 4. If any person haue kept Faire or Market in the Churchyard Faire or Market in Church yard Felonie Robbe church or Chappell Stat. Winton 12. E. 1. If any person haue feloniously taken goods out of any Church or Chappell Lay causes If any person haue counterfaited the Quéenes money or haue brought false money into the Hcalme couÌ„terfait like the money of England knowing the same to be false to make marchandize or paiment there withall Treason Money 3. H. 5. ca. 7 25. E. 3. ca. 2 Felonies in lay causes If any Seruant haue killed his or hir Master or Mistresse or any Wife hir Husband or any Gcclesiasticall person his prelate Petite Treason Seruát Ma. Husband and Wife Clerke and prelate 25. E. 3. ca. 2. If and person have of pxepensed malice killed or murbered an other openly or pxiuily whether he that mas killed were an Gnglishman or a Stranger liuing under the protection of the Quéen Murder If any haue wilfully killed any other by poysoning and into bée his aiders abetters procurers and counsellors Poysoining murder â— E.ó. ca. 12. If any person have by chaunce medley feloniously killed an other Manslaughter If any person of malice prepensed cut out the tounge or put out the eyes of any of the Quéenes Subieas Cut out toungue or put out etes 5 H. 4. ca. 5. If any Gaoler kéeper or vnderkéeper of a prison haue by dursse and paine compelled any his pxisoner to become an appeacher of others agaianst his will Gaoler handeling streightly his prisoner 14. E. 3. ca. 10. If any person have commited the detestable vice of Buggerie
the sayde G. M. at Ightham aforesayde the 4. day of August in the xxiij yeare of oure raigne Or thus in the name of the Iustice himselfe mutatis mutandis GEORGE MVLTON Esquire one of the Iustices of the Peace of our Soueraigne Lady the Queene wythin the said Country to the Shirife c. greeting Forasmuch as A. B. c. hathe personally come before me c. These shall be therefore on the behalfe and in the name of our said soueraigne Lady to commaunde you ioyntly c. to come before mee or one other of hir Maiesties saide Iustices of the Peace in the said Countie c. Giuen vnder my Seale at Ightham aforesaid c. It is méete that the precept for the peace do expresly containe the cause of the Peace within it for otherwise how can the Officer or Party take knowledge that Suretie must be prouided for it Yea by the way let me say it euery Precept made by a Iustice of the Peace ought to comprehende the speciall matter vppon which it procéedeth euen as all the Queenes Writtes doe beare their proper cause in theyr mouth with them And as for the Forme that is now commonly vsed To aunsweare to such things as shall be objected it was not fetched out of the olde and learned Precedents but lately brought in by such as eyther knewe not or cared not what they writte The Warrant of the Peace is the better also if it beare Date of the place where it was made for if a man be to pleade suche a Precepte for his excuse in an Action of false imprisonment brought againste him he oughte in his Plea to shewe the place where the Warrant was made 14. H. 8.18 And this Precept may also be directed to any indifferent person by name though he be no Officer at all for so it séemeth to bée permitted in the Oath of the Iustices of the Peace and so is the Booke also 14. H. 8. â—8 The commanding of Suretie of the Peace hath thus appeared and nowe the execution and bringing of that commandement to effect must next be disclosed How the commaundement of the Peace shall be executed The execution of this Precept standeth partely in seruing the Precept it selfe and partely in taking the Recognisaunce if the partie doe come with Sureties and that there be no let in the way And because for the moste parte there is but one and the same manner of doing whether the Precept come from the Iustice of the Peace as he is a Minister or as hée is a Iudge I also will handle them togither noting by the may those few differences that shall arise betwéene them If suche a Precept be made iointly to twaine yet the one alone may serue it If it be directed to the Shirife he may commaund his Baylife Vndershirife or other sworne and knowne Officer to serue it without writing any Precept The seruing of the Precept for the peace But if he wil coÌ„mand another maÌ„ that is no such Officer to serue it he must giue him a writte Precept for other wise a Wnt of false imprisonment wil lye for the Arrest But if it be directed to the Baylife or to a seruaÌ„t of a Iustice of the peace or other stranger they muste serue it themselues for they can commaunde none other to do it neither by word nor Precept Mar. A sworne and known Officer nédeth not to shew this Warrant whe he doth serue if vpoÌ„ a maÌ„ 8. E. 4.14 20. H. 7.13 c for his Office doth after a sort auctorize him But if the Iustice wil set his seruaÌ„ to serue it the seruant must shewe the Warrant if the party demaunde it and otherwise the party may make resistaunce 8. E. 4.14 A Iustice of the Peace saith M. Brooke Titulo Peace 9. may make this Warrant returnable before himself the Baylife néedeth not to carry the partie before any other Iustice But Iudge Fineux 21. H. 7.20 saith the if a Iustice of the Peace do make a WarraÌ„t of the Peace Ex officio that is without any Writ of Supplicauit directed vnto him theÌ„ the partie may choose to appeare before him or any other Iustice in the Shire and that he shall punishe the Baylife in false imprisonmeÌ„t if he do otherwise compell him But that other wise it is in the execution of the Writ of Supplicauit for he to whose hands it is first deliuered is aucthorized to execute returne the Writ alone And thervpon M. Fitz. in his Nat. br Fo. 81. affirmeth that if such a Writ of Supplicauit bée deliuered to the shirife the he may both execute it alone also take Suertie by Recognusance thogh otherwise being but a Conseruator he could not do it because the Writ doth enable him so to do yet the opinion of Littleton 9. E. 4.31 is to the contrary of that The officer ought also to require the partie to come finde Suertie of the Peace before that he do arrest him by the opinion 5. E. 4.13 And in truth the common forme of the Precept is And if he refuse so to doe that then he shal conuey him to the Gaole and therefore if he wil willingly come and finde Suertie the Officer may neyther absolutely arrest him nor take fée of him And this may be the cause that when one vpon such Warrant commeth to a Iustice of the Peace to find such Suertie the Iustice néedeth not againe to demaunde suertie of him but may commit him if he do not offer Suertie as the opinion is 14. H. 7.9 If a Baylife do arrest a man for the peace before that he haue any Warrant then after ward do procure a Warrant for it this is valawfully done and will not excuse him in an Action of false imprisonmeÌ„t ibideâ—â— But if the Baylife do cause one by force of a Warrant to come and finde Suretie of the Peace when the partie commeth the Iustice will no binde him yet the Baylife is excused 21 H. 7.22 If Suretie of the Peace be required at the handes of a Iustice of the Peace that dwelleth out of the Countie against a maÌ„ within the Countie the Iustice may graunte a Precept to be serued in the Countie but when the partie shall be therevpon warned and commaunded to finde Suretie the Officer may not haue him out of the Countie to the Iustice of Peace that made the WarraÌ„t Marr. For a Iustice of the Peace hath no autozitie but in the Countie where he is Iustice by 13. E. 4.8 Coment Plowd 37 therfore it may be doubted also whether suche a WarraÌ„t be good or no. The Case was there that a Iustice of Peace in one Countie pursued a Felon tooke him in an other Countie wherevpon it was holden that he ought to be committed to the Gaole of the County wherein he was taken and not of the Countie wherein he which tooke hym was a Iustice for that he being out of hys
whiche things hée can not doe if hée hée present so that he is an Officer to this Courte and the Clearke of the Iustices as the Statute 12. R. 2. cap. 10. nameth him and not as M. Marrow thought the Clearke of the Custos Rotulorum onelie And you maye reade 2. H. 7. 1. that if a Recognusance of the Peace bée brought in to the Custos RotuloruÌ„ and the partie grieued wil not sue forward then the Clearke of the Peace who is the Clarke and Attornie of the King saith that Booke shall call vpon it for the Kings aduauntage and I am sure that the saide Statute 37. H. 8. cap. 1. ralleth his place an Office also Howbeit the nomination and appointmet of him hath long time belonged to the Custos Rotulorum and he is to enioy his Dffice so long as the Custos Rotulorum kéepeth his place and may exercise it by himself or by a Deputie sufficiently instructed in the Lawe and admitted by the Custos Rotulorum The nomination of the Clearke of the Peace And this Office was also for a time gyuen by the kings Letters Patents for termc of life as that of the Custos Rotulorum was vntill the sayde Statute 37. H. 8. cap. 1. recontinud the auntient order of giuing it to the Custos Rotulorum onelie Furthermore the Coroners as the common forme of the Precept sheweth and the Statute 27. H. 8. cap. 5. presumeth ought to be present at the Sessions But yet that is not for to certifie their Inquisitions for that ought by 1. 2. Phil. mar cap. 12. to bée done at the general Gaole deliuerie nor yet to receiue any Approuour for neyther that belongeth to the Iustices of Peace 9. H. 4. 1. but it is onelie saith M. Marrow because the Coroners be parties to the Exigents and be Iudges of the Vtlawries Howbeit they are besides that Conseruatours of the Peace and may in cases commit men to prison and therefore ought to be at the Sessions to obiect against them The Corosars The Shirife also ought to attende at these Sessions for the double duetie that he beareth the one as Shirife to retourne the Precept to take the charge of Prisoners and to serue the courte otherwise as hée hath in charge by the Mandauimus that is métioned in the Commission to haue bene sent vnto him the other because he also hath Care of the the Peace The Shirife The Bailifes of Franchises and the Constables of Hundreds are to serue also the one as Ministers the other as Iurours therfore ought to giue their attendaunce Bailifes and Constables And euery of these excepte it bée the Custos Rotulorum for thereof I doubt maye without controuersie bée amerced if they make defaulte But the Ordinarie oweth not his attendaunce here at any Sessions of the Peace as he doth at the generall Gaole Dehuerie in the opinion of M. Marrow The Ordinarie Iâ—déede he is not warned by the commune Precept and therefore cannot so conueniently take knowledge of the Sessions of the Peace Howbeit if he come I thinke that he ought to serue when he shall bée called But especiallye there oughte to appears suche Iurours as be retourned by the Shirite and warned by his Baylifes whether it bée for Enquiri or triall Iurours for Inquirie and tnall And in thys behalfe both the Commission the commune forme of the Precept and the Law it selfe 11. H. 4. cap. 9. willeth that they shoulde be probi legales homines for if any of them be discredited in Lawe as by Attainder in Conspiracie Attaint decies tantum Subornation of Periurie or such like they bée not Probi and their presentment is voide by it vnlesse there bée twelue besides them that are not so blemished Againe if they bée outlawed abiured coÌ„demned in a Premunire or attainted of treason felonie or such like then bée they not Legales and their presentment is merely voide also as it may be gathered vppon the case 11. H. 4. 41. And women infants vnder fouretéens yeres of age Aliens and such bée within orders of the Ministerie or Cleargie cannot be empanelled amongst others And generally these Iurours ought also either to be inhabiting wythin the Shire or else to haue lands there for the Commission willeth that they shoulde be suche Per quos rei veritas melius sciri poterit whiche muste néedes be vnderstoode of such as haue cause to knowe the Countrie And the precept is vsually according to the same forme But specially in the Countie Palatine of Lancaster ech of them ought to haue to the yearely value of fiue pound by the Statute 33. H. 6. cap. 2. If any of the Iurours returned be thréescore and tenne yeares of age or haue anye continuall infirmitie or be otherwise decrepite yet that shall not excuse him for not appearing if the Iustices will require his seruice but he driuen to his Action gainste the Shirife for retourning of hym vppon the Statute of W. 2. cap. 38. Marr. And if he haue a Charter of Exemption he ought to she we it to the Shirife againste whome if he will notwithstanding empanell him he may haue his Action vpon the Case and hath none other remedie by 18. H. 8. 5. Cur. which may be truely said as to the sauing of his issues but by some other books and namely 42. Ass Pl. 5. Marr. he is to be discharged vpon his apparance specially where he hath in his Charter of CremptioÌ„ these wordes Licet tangat nos vnlesse there want others that he sufficient to serue Nowe though some of the Cnquest of Cnquiry be of affinitic or consanguinitie with any party grieued that procureth any inditement yet that hindreth not their presentment howheit it is no discreation for the Iustices to suffer any surhe to bée empanelled amongest them The common manner in Kent agréeing with the forme of the Precept is to return particular Iâ—ries for the Hundreds and one generall Iurie for the body of the Shâ—re this laste is made vppe wyth vs for the moste parte of the Constables onelie and those others if they be not filled at the first are wonte to bée renued wyth the lyke from Scssions to Sessions Generall and particular Iuries But that vsage is no small hinderaunce to the seruice as many doe thinke by reason that those particular Iuries béeing seldome serued with full apparance the whole Cnquirie standeth onelie vppon their labour that are empanelled for the bodie of the Shire that is to say vppon one man of each Hundred at them moste who cannot be thought to sée so much as a whole Iurie maye and dothe And therefore they think that it were good to make vppe some of the particular Iuries also when they be not full de circumstanbus out of other Hundreds by which mean eyther the whole Shire or at the leaste a great many parts therof might be perused To this opinion M. Marr. séemeth to encline saying that in
Statutes not comprehended within the Commission Or thus All these Lawes doe prohibite thinges contrarie to some of the foure Cardinall or principall vertues Prudence Iustice Fortitude or Temperance They may also be diuided by the barietie of the punishments and by some other Accidentall respects all whiche I leaue to the choice of suche as shall give them in charge and will now for this time set downe the Articles themselues after the order of the first diuision pointing out in the first place the Ecclesiasticall causes and then pursuing the Temporall In whiche doing first I will omitte all such Statutes as doe concerne but onely some one or a few particular places knowing that I write to the most part who haue not to doe with them The manner of this Charge Secondly I will purposely pretermit the rehearsall of the punishments conteyned in the Statutes that I am to run thorow aâ—well bicause those doe rather perteine to the Iustices than to the lurours as also for that I haue an auncient Precedent of the Iustices in Eire to make for me who in their charge did only deliuer the Articles in offence without any mention of the paines due vnto the same As it appeareth in the small volume of the old Statutes vnder the Title Capitula Itineris And thirdly I will neither recite all the other partes of each generall Statute by it selfe nor yet comprehend them wholie and fullie with others bicause the firste of the se waies wonld be very long through the ofteiteration of the same things and the other would bée so crooked I comberous through the barietie and difficultie of the exceptioÌ„s that the hearer would bée many times loste before I should come to the ende I know that M. Fitzh was of the opinion that the Iustices of Peace ought at their Quarter Sessions and may at their priuate Sessions giue in charge to the Enquest all such matters as they haue power to determine and this he vrgeth aswel by the Dath of the Iustices who are sworne to do right in all causes within their Commission or the Statutes as by the ignoraÌ„ce of the Iurours who cannot bée instructed but by the charge which if it bée so I sée not for my part how either these Iustices that are bound to vtter all can bée discharged or the Iurours that ought to heare all can be enfourmed without this 02 some such compendious plaine waie that may bothe shortly for the time lightsomely for the order comprehende the substaunce of that which belongeth to their Enquirie Howbeit as I thinke it the best for the Iustices to rehearse all such pointes whereof the Iurie may make presentment before them so yet I holde them discharged in my slender opinion if they vnfold onely the articles of their Commission and of such other Statutes as doe expressie auctorize them to make enquirie For as there bée sundrie Lawes that doe giue to Iustices of the Peace a certaine speciall 02 particular power in them and doe not yet yéelde vnto them any auctoritie to enquire vpon the same of which sorte be the Statutes 27. H. 8. c. 20 32. H. 8. c. 7. of Tythes The Statute 35. H. 8. ca. 17. of Woodes The Statute 23. El. ca. 9. of Logwood and sundrie others So also there be diuers others that do aforde to the Iustices of Peace the power of hearing and determining and yet doe not exprestie giue them the name of Inquine And for as much as they may heare and determine of these by Information giuen to themselves by them commaunded to the Iurie it séemeth to me that they bée not so necessarily boúd to giue them in charge but that they be well inough discharged if they lie open and be readie to receiue the informations and presentments that shall bée offered vpon them And of this kinde bée the Statutes of Highwaies 5. El. c. 13 18. El. ca. 9. the statute of Fighting in Churche or Churchyarde 5. E. 6. ca. 4 the Statute of Informours 18. El. ca. 5. and sundrie others whereof it shall be superfluous to make rehearsall Neuer the lesse bicause I will not that my fantasie shall either stand against his iudgement or be preiudiciall to other mens profite I haue contended what I may to deliuer the principall most seruiceable partes not only of the Commission and of suche Lawes as doe specially conteyne their Inquirie within them but also of al such other Statutes as may be hearde and determined by Iustices of the peace at any their Sessions and that in so narrowe a roome as if I be not after some proofe deceiued they may be distinuly read ouer in a couple of houres or litle more so that the yeares of the Kings and the other Notes be left vnread and passed ouer Ecclesiastical causes If anye person haue within this halfe yere by writing printing teaching preaching expresse déede or act aduisedly malitiouslye and directly affirmed holden sette foorth or defended the auctoritie preheminence power or iurisdiction spirituall or Ccclesiasticall of anye forreine Prince or perso whatsoeuer heretofore claymed vsed or vsurped in this Kealm or any the Quéenes dominions or haue aduisedlye malitiously and directlye put in ble or executed anye thing for the ertolling setting foorth or defence of anye suche pretended or bsurped iurisdiation preheminence or auctoritie or any part thereof Treason the third offece Extolany forraine power Or if anye person coÌ„pellable to take the oath of Kecognition of the Quéenes Maiestie to bée supreame Gouernour in all causes within hir domonions haue refused to take the saide oathe after lawfull tender thereof to him made 1. Eli. c. 1 5. Eli. c. 1. enquirable by words of 23. El. ca. 1. Refuse the oathe If any person vnder the Quéenes obedience haue at anye time wythin this yere by Writing Ciphering Priting Preaching or Acte aduisedlye holden or stoode with to extoll or defende the power of the Bishoppe of Rome or of his Sée heretofore calymed or vsurped within this realme or by any spéech open déede or acte aduisedlye attributed anye suche manner of auctoritye to the saide Sée of Rome or to the Bishoppe thereof within any the Quéenes dominioÌ„s yée shall presente him his Abettours procurers counsellours aiders and comforters Premunire Pope 5. Eliz. ca. 1 If any person haue by anye meanes practised to absolue perswade or withdrawe anye other within the Quéenes dominions from their naturall obedience or for that intente from the religion now established here to the Komishe religion or to moue them to promise obedience to the Sée of Rome or other estate Or if anye person haue bene willingly so absolude or wdrawn or haue promised such obedience Treason Withdraw any from obedience And if anye person haue willingly ayded or maintayned anye suche offender or knowing such offence haue concealed it and not within twentie dayes disclosed it to some Iustice of peace or other higher Officer Misprision of treason 23 Eliz.