aforesaide to finde sufficient suerty and mainprise for the Peace to be kept towardes our fayde Soueraigne Ladie and al hyr liege people specially towardes the sayde C. D. And if he the sayd AB shall refuse thus to doe that then you hym safely conuey or causc to be safely conueyed to the next Gaole of hir Maiesty in the sayde County there to remaine vntill that he shall willingly doe the same So that he maye bee before the Iustices of the Peace of our said soueraign Lady within the said CoaÌ„ty at the next general SessioÌ„s of the Peace to be holdon at M. there to aunsweare to our saide Soueraigne Ladye for his contempte in thys behalfe And see that you certific your doyng in the premises to the sayd Iustices at the sayd Sessions bringing this thyther thys Precept wyth you Yeoue at Ightham aforesayde vnder my Seale the fourth daye of Augustein the 33. Yeare c Suertie of the Peace taken by a Iustice of the Peace 23 A Iustice of the Peace may also by bertue of his Office and as he is a Iudge commaunds this Suertie to be founde and that either of his owne motion and disreation or else at the requeste and prayer of an other For he maye cause a Commune Barrettour Ryotter one that maketh an Affray or other person to him Suspected to finde Sucrtie of the Peace â— E. 4.3 Curia And if hée sée menne contending in hotte wordes and threatening the one to hurte or kill the other he may of Disereation and oughte of Duety as I thinke to commaunde them to finde Suerty of the Peace and thereby prouide for their mutuall fafetie By his owne discreation For as he is put in trust with the care of the Peace so oughte he both to imploy his witte and to vse hys auctoritie to preunt the Breache of the ssame And if a man that was bound to kéepe the Peace haue broken his bounde the Iustice of Peace oughte of Discreation to bynde hym of nelne 21 E. 4. 40. Marrow And his authoritie is so little to bée controlled in this matter that Mayster Marrow is of the opinion that if a Iustice of the Peace shoud procure one man to demaund Suerty of the Peace againste an other and hée hum selfe shoulde graunte a Warrant for it by whyche the partie is arrested yet no Action woulde lye againste that Iustice for so doing bycause he might haue graunted it without anye demaunde made and then it shall not bée sayde but that he sawe cause to prouoke the partie to aske it and himselfe to graunt it I doc on on the other fide remember that a Iustice of the Peace was putte out of the Commission of the Peace by order in the Starre Chamber for that Peace offered vnto hym by one that was commanded by an other Iustice of the Peace in the same Share to finde Suertie of the Peace to whome as the â—artie alleaged he durstâ— not go to offer it for feare that he would execute vppon him the malice that he bare against him In commaunding this Suertye at the suite of an other or of his owne discreation sundrie things are wiselie to be considered first for whom and against whom then for what cause and how it ought to be required or commanded and lastly by what meanes it shall be enioyned Suertie at the request of an other The wife if the be thretned to be killed or to be outragiously chastised by hyr husbaÌ„d may with gâ—d reason demaunde the Peace against him For whom and againste whom â—â—crâ—â—e of the Peace lyeth Fitz. Nat. Br. Fo. 80. 239. And I do not doubt but a Iustice map in suche a case coÌ„maunder it vpon his own discreation The husbande also maye demaunde the Peace against his owne wife in such a case and any man may demaunde it against the wife of an other Mar. A man attainted of Treason Or Felonie or conuicte of Heresie or Abiured a Dumbe man or an Infant though within 14 yeres of age or a Villaine against his Lord maye demaunde and ought to haue Suertie of the Peace Mar. And I doe not finde any strong reason why the Lord against his dillaine or an other maÌ„ against a dumbe maÌ„ or against an infant aboue the age of 14 yeares ought not vpon good cause to haue it thoughe the two last can not well be bound themselues But a madde man shall not haue Suertie of the Peace at his owne request as Mayster Marrow thought bycause he hath no discretion to aske it and therefore if there bée rause he oughte to bée prouided for by the discreation of the Iustice as I thinke A man attainted in a Premunire or that is an Aâ—ren borne and no Denizein oughte not to haue this Suertie at his desire as M. Marrow taketh it But perhappes he would haue changed his opinion in the case of Premunire if he had liued at this time vpon the Statute â— Elrzab â—â— for such a maÌ„ may not now be killed as though he were out of the protection of the 〈◊〉 And as touching the Aâ—â—eâ— some think there ought to be a difference betwéene suche an Aâ—ren as is of the Enâ—â—â—â— of the Quâ—â—â— and him that is of hir Amity for the Statutes Mag. Cart. ca. 30.9 E. 3 ca. I 4. E. â— Sâ—â—â— ca â— and sundrie others do all vse that difference in Merchant straungers and doe prouide that such of the as be not Enrmies of the Realm may both safely come into the Realme and farry here and go hence at their pleasures But the case may well be doubted of because the Commission it self séemeth to authorise the Iustice of Peace no further thaÌ„ to prouide for the Duéenes people of whiche number no Aâ—â—en séemeth to be But may any Ahen may not be bound to the Peace I do not for Furthermore one Iustice of the Peace faith â—â— Mar. ow may graunt this Suertâ—e to any man against one of his fellow Iustices But as M. Marrcw requireth a Discretion in a 〈◊〉 of the Peace when Suertie is craued of him against a Shirife Coroner Escheator or such other Officer whom he witheth not to be bound to keep the Peace versus cunctum populum but onely towardes him that prayeth it least otherwise it shuld argue the to be unworthie of such Offices so muche more he ought to vse good discreation in graunting it against his fellow Iustice least otherwise he both bring the Office in contempt and himselfe to reproofe by it But I doubt not but that one Iustice of Peace if he will may pray suretie of the Peace at the hands of his fellow Iustice against an other person the recognisance may then be according to the coÌ„mon forme with an praecipuè versus c. Neitherto of those for whom and against whom the Iustice of Peace may grant this Surety when it shal be required which wil suffice to give light what to doe in like cases
countie had no more authoritie than a priuate man But I thinke tha Baylife may not dispute the sufficiencie or insufficiencie of such a Warrant bicause he that awardeth it is a Iudge of Recorde 14. H. 8.18 That whych hath béene hitherto saide is of the execution of the foriner parte of the Warrant for the Peace that is so saye to warne and cause the partie to come and finde Surety for the Peace But if it falout that he refuse to come and put in such Surety then may the Officer by vertue of hys Warrant conuey him to prison For if you remember the â—â—â—rdes are And if he shall refuse then c. And now for our better instruction let vs sée what an Arrest is Budee in his Greeke Commetaries is of the opinion that the Freeh word Arrest whych wyth them signifieth a Decree or Iudgement of Court tooke beginning of the Greeke 〈◊〉 that is placitum and as we might say the Pleasure or wil of a Court. What â—â— Arrest iâ— And albeit that it were not out of ourâ— way to thinke that it is called Arrest because it stayeth or resteth the partie yet I beléeue rather that we receiued the name from the Normane lawes because wée vse it in the same sense wyth them For commonly wyth vs an Arrest is taken for the execution of the commaundement of some Courte or of some Officer in Iustice But howsoeuer the name beganne An Arrest is a certaine restraint of a mans person depriuing it of his own wil and libertie and binding it to become obedient to the will of the Lawe and it may bée called the beginning of Imprisonment The Precepts and Writs of the higher Courts of Lawe do vse to expresse it by two sundry wordes as Capias and Attachias which signifie to take or catch holde of a man But this our Precept noteth it by the wordes Duci facias cause him to be conueyed c. for that the Officer hath after a sorte taken him before in that he commeth vnto him and requireth him to goe to some Iustice of the Peace To this Arrest al persons vnder the degrée of Lords or Péeres of the Realme be subiect And Ecclesiasticall persons if they bée not attendant vpon diuine seruice may bée arrested for the Peace also Mar. The ende therefore is that if the partie wil not come to finde Suertie of the Peace the Officer may vpon that Warrant arrest and carry him to the Gaole where hée shall remaine vntill that hée will fréely offer finde it Deliuerie of him that is imprisoned for refusing to finde Suertie But it is good to be enquired whether the Release or Death of him that prayed the Peace will not bée sufficient cause to deliuer such a prisoner and if it shall bée then by what order hée shall bée deliuered For as it séemeth to some that any Iustice of the Peace may vppon his offer take the Suertie and deliuer him so it may bée some doubt whether hée may bée deliuered vpon the death or release of the partie wythout the helpe of a Sessions or Gaole deliuerie It appeareth 4. E 4.16 and by the opinion of Bryan 2 H. 7.2 4. that if such an imprisoned person had a sute hanging in the Common place aforehand he might by a Writ of Priuilege be discharged of the same if they partie at whose sute he was arrested for the Peace were not ready in Court at the day of the returne of the Writ when hée should be called to pray the Suertie of the peace there again against him saith that it had bin alwaies their coÌ„mon course so to do but diuers other there were of a coÌ„trary opinio it séemeth a hard case that without any sufficient notice of such a remouing of the partie a maÌ„ shold be defeated of his Suertie so But now if the partie shal yéelde to finde Suertie of the Peace then may he at his libertie if the Precept procéede Ex officiâ— and without the Writ of Supplicauit go to any Iustice of the Peace to offer this Suertie To what Iustice bee that is arrested may goe Herevppon it happeneth often that such persoÌ„s choosing rather to be bound by any other thaÌ„ him that maketh the WarraÌ„t hauing any suspitioÌ„ of such a precept awarded or likely to be awarded do offer themselues become bounde before some other Iustice And therevpon do procure a Supersedeas from him to be discharged of any other Arrest to be made Yea many times hearing of such Precepts and misâ—iking to be bouÌ„d in the Countrie they go vp to West minister and giue Suretie of the Peace there either in the Kings Bench for a time only as the maner of that Court is or in the ChauÌ„ceâ—ie for euer as they vse it there and doe wythall procure a super sedeas from the Court where they are bounde to close the handes of the Countrie Iustices And therefore it is not amisse to say somewhat of this matter of supersedeas also If a Iustice of the Peace then will by a Supersedeas discharge a Precept of the Peace that was made by his felow Iustice he shal do wel to take the Recognusance according to the day of apparance if ther be any after the forme of the former Precept if there be any Supersedeas by a Iustice of the Peace For as it is good reason that hauing taken Suertie for the Peace he may by this Supersedeas saue the partie from finding other Suertie for the same cause So is it againste reason that he shoulde giue the partie anye other daye of apparaunce than the Precept had and thereby discharge a matter of Recorde that was made by one of equall aucthoritie with hym Fitzh Fol. 9. Much lesse may the Supersedeas of a Iustice of the Peace discharge a Precept of his fellow Iustice procéeding by vertue of a Supplicauit for that it is of an higher auctoritie Mar. This Supersedeas sente by a Iustice of the Peace is sufficieÌ„t although it neither name the Suerties nor contain the suÌ„mes in which they are bouÌ„d But yet it is the better form to expresse the both as well bycause the higher Courts vse so to doe as also if the Bailife Constable or other Officer to whom it is deliuered in discharge of his Warrant bée called at the nexte Sessions by the suite of him that sought to haue the Peace to shewe how he hath executed his Warrant and hée come in and shew foorth the Supersedeas the partie that is bounde may be called therevpon at the day that appeareth to be limited vnto him by the Supersedeas for it is vnder the seale of a Iustice and doth testifye that the partie is bound and hath founde suertie to appeare at a certaine day and if he make default that being Recorded shall bée sufficient to cause him to forfaite the penaltie of the Recognisance although the Iustice that made it out shal happen not to bring in the
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
brought to a seconde handling either to the ende to reuerse that which they haue done or that their doings may be an euidence and testimonie in the triall of causes before other Iudges And because this can not in any sorte be perfourmed Without the presence of those former Recordes or the transcripts thereof which due remayne with the Iustices of the Peace it is therefore requisite that they we make Certificat of them vnto those other Courtes or officers that shall be interessed to vse the same But as this Certificat ought in some cases to bée made by the Iustices of the Peace or their Clarke without any writ of Certierari therefore directed and in some other cased they may spare to Certifie vntill that Writte or some other commaundement bée brought vnto them So also sometimes they are to certifie and send up onely a Tenor or Transcript of the Recorde before them and sometimes the verie Recorde it selfe must be conueyed from them The Clarke of the Peace must vnder the paine of rl ◠certifie into the Kings Benche a true transcript of euery Attainder Vtlawrie and Conuiction had before Iustices of the Peace in any place except Wales Chester Lancaster and Durham within 40. dayes after if it bée then Terme if not then within 20 dayes after the beginning of the next Terme that the same may there also appeare of Record to be used as that Statute hath appointed if there bée cause and he must also Deliuer to the Ordinarie a Transcript of Clarkes conuicted or attainted before the sayd Iustices 34. H. 8. c. 14. Certifie without the writ of Certiorari But enquire whether this last bée nécdefull at this day by reason that Clarkes bée not now deliuered to the Didinarie by the Statute 18. El. ca. 7. And if a principal bee attainted of murder or felonie in one Countie wher vnto an other is accessorie in an other Countie then vpon writing from the Iustices of Gaole deliueric or Oier and Terminer to the Custos Rotulorum where such principall is attainted he must certifie in writing under his Scale to the said Iustices Whether such principall be attainted or other wise discharged or not that they may procéeds there upon to the trial of the Acceslorie 2. E. 6. ca. 24. But in cases where Iustices of the Peace haue power to receyue Enditements and no power to procéede any further vppon them whereof you haue alreadye the eramples in the seuenth Chapter of thts seconds Booke there they ought to sunde vppe and certifie the Enditements them felues and that of duetie as I thinke without any Certtorari commaunding the same bicause hauing none auctoritie to heare and trye the offences the Recordes thereof shall bée vnprofitable before them and therefore they can haue no iust cause to reteine them and yet for the more suertie it is specially commaunded by 5. El. ca. 1. that they shall certifie the presentmentes of some offences against that Statute And so if a man bound to kéepe the Peace doe make default of apparance at the next Quarter Sessions the Recognulance it selfe togither with the Recorde of that default must be certified into the Chauncerie Kings Benche or Excheaquer that execution 3. Henri 7. cap. 1. and so ought it as I thinke if it bée presented that the partis hath for fayted his Recognusance by breache of the peace And likewise if it bee presented before them that the chattels of a man attainted of felonie bée in the handes of an other For in these and such other cases where they can not of them selues proccede they ought to sande the Recordes to such as haue auctozitie to determine vppon them and otherwise they doc not discharge that duetie which the words Saluis c. alys ad nos inde spectantibus in the Commission doc séeme to expecte at their handes Furthermore the Statute of Purueyours 2. 3. Phil. Mar. cap. 6. doth appoynt the Iustices of the Peace to certifie to the Treasorer of the Queenes housholde the Dockets of Purueiours brought to their Sessions by Constables that the seruing of such Commissions and the true aunswearing of purueyances may bée the better eramined thereby and although it may bée doubted whether these bée Recordes or no yet for that they are to bée certified from the Sessions of the Peace I sticke not to afoard them this place And if you will also repute in this number the Licences and such other ates of that kinde which passe at the Sessions of the Peace I will not bée against it Louching the Certiorari if it be made accordingly the is of force to remoue not only Enditements or other executorie Recordes wherein the Iustices of Peace can goe no further and whereof I haue spoken already but also the Recordes of caused fully and lawfully heard and determined by them to the ende that they may bée reuersed and adnulled in the Kinges Benche if good matter and cause due so require Certiorari For that preheminence hath the Kinges Benche as you may see by Proofe yea all other the higher Courtes may write to the Iustices of Peace to certifie their Recordes that doe make for the Triall of causes hanging in them as you may reade 19. H. 6. 19. where they of the Commune Place did send to the Iustices of Peace for an Enditeiment bicause in a writte of Conspiracie brought before them it was materiall to haue it And yet neither they of the Commune Place nor Kinges Benche do use to write for Enditements or such other Recordes unlesse they bée there vnto enduced by a cause hanging in their owne Courtes before them For otherwise the right way to remoue them is by Certiorari out of the Chauncerie from whence they may bée transferred by Mittimus to any other Court 41. lib. Ass Pl. 22. Knyuet Chiefe Iustice Howbeit a man may gather vpon the Booke 1. R. 3. 4. that if any Recorde bée sent up without warrant to such a higher Court they may there procéede vpon it bicause it is a Recorde in that Court and that Court is the Court of the Quéene aswellas the other Of the genrrall or Quarter Sessions of the Peace CAP. XIX WE haue hitherto laboured and at the lengthe runne ouer sundry thing which in the opinion of some men bée commune to all Sessions of the yeare And yet becuse there bée also certayne thinges as it séemeth to mée appropriated some to any and others to some one of the generall Sessions it remayneth that we nowe distinguishe the Sessions of the Peace and enter into consideration what is a generall and what a speciall Session The generall Sessions of the Peace bée those which are prouided for the generall execution of the auctoritie of the Iustices of Peace whether you respect the limits of the place within their Commission or the boundes sof power procéeding from the Commission and Statutes The generall Sessions For at these Sessions as sayth M. Fitzh generally
course of the Commission whiche descendeth by degrées of age and time from elder to latter lawes and Statutes and for my Warrant herein I vouche the Recorde 20. E. 3 in dorso patent parte 2. membrana 7. where in a Commission of the Peace to Adam of Scarborowe and others they are charged to putte in execution the Statutes of Winchester Northampton and Westminster made the fift yeare of that King After this the Statute of Cambridge whiche worde in déede as Maister Fitzh thinketh is mistaken for Canterburie and was made there 12. R. 2. ca. 7.8 .10 concerning Artuficers Labourers Seruauntes and Vagaboundes for of Hunters it hath no worde whatsoeuer the Commission say of Venatoribus whiche should be Viatoribus as I thinke the Statute 1. H. 4. ca. 7 2. H. 4. ca. 21 of Liueries and Badges and the Statute 3. H. 5. ca. 6. .7 of Counterfayting Clipping and Washing money The same Clause also giueth them power to kéepe and cause to be kepte al other Statutes made pro bono pacis quieto regimine populi by whiche wordes the Commission meaneth as I thinke all Statutes for Armor for that tendeth to the kéeping of the Peace as the Statute of Winchester it selfe confesseth All Statutes for arresting of Robbers Murderers Felons Royotters and Suspected Persons whiche are euerie where saide to be againste the Peace All Statutes concerning the duties of Shirifes Bailifes Conestables c. without whiche the Peace can not be kepte as the Statute of Northampton 2. E. 3 ca. 4. plainelie affirmeth and al Statutes made for the repressing or punishment of Force Violence and Fighting This first Clause or Assignauimus is closed vp with a declaration of the meane by which they shall cause the Peace and these Statutes to be kepte that is to saye by chastising the offendors either according to the orders of the saide Statutes or by taking suertie of them for their kéeping of the Peace or for their good abearing or by imprisonment vntil they wil be so bound But here before I conclude this Clause I must admonith the reader that these statutes of Laboureâ—s Seruants Artificers and Vagaboundes be repealed by new Actes of our time prouided in that behalfe and that therefore they are vainely rehearsed in the CommissioÌ„ at this day Imperfections in the CommissioÌ„ It séemeth also that the Statute 3. H. 5. ca. 6. for the washing clipping and fyling of money ought to haue no place in the Commission of the Peace at this day for those special Treasons be repealed by the generall wordes of 1. Mariae although the same offences be made Treason againe by 5. Eliza. ca. 11. yet that newe Statute giueth no power therein to the Iustices of the Peace But yet as concerning the counterfayting of false money the Iustices of Peace haue still in mine opinion power to enquire by vertue of that Statute 3. H. 5. ca. 7. and by this Commission bycause that that Treason was declared by the Statute 25. E. 3. and therefore it is not now repealed by 1. Mariae as the others were And these as also that mistaking of CaÌ„bridge for Caterburie the inserting of that words per quos rei veritas c. in thys first clause wtout any sense the stil calling of the that be the Commissioners custodes pacis according to the old name omitting throughe the whole course of the CoÌ„missioÌ„ to giue vnto the once the name of Iustices of the Peace althoughe in all Statutes since 36. E. 3. they be so called bée some of the imperfections that I meant when I thought it méete to haue the Commission reformed Neither may I wel ouerpasse that by these wordes Et ad omnes illos quos contra formam Statutorum proedictoruÌ„ c. delinquentes inueneritis pun iendos prout secundùm formam Statutorum proedictorum fueru facienduÌ„ c. in this first Assignauimus greater power seemeth to be giuen by the letter of the CommissioÌ„ than is ment by the Author of the Commission for by these wordes it séemeth that one Iustice of the Peace may punish the Treason of counterfaiting whiche I thinke is more thaÌ„ is thought méete to be put into his haÌ„vs And in the commissions next folowing the Statute it selfe of 3. H. 5. euen for that reason was placed in the last Assignauimus of those Commissions The second Clause or Assignauimus first enableth all or anie two of these Iustices for so M. Fitzh taketh the words Vos quoscunque vestrum to enquire of al Felonies and Trespasses and of all offences done againste those Statutes that are contained within the same clause and to enquire of all Shirifes and other inferiour Officers that be remisse in the execution of the saide laws statutes committed to their charge 2. Clause or Assignauiâ—â—s Then it authorizeth them or any two of them to procéede and to make processe vpoÌ„ al auntient present Enditements vntil the parties shal either be take or shal yéeld theselues or be outlawed for their contumacie Here also that form of this Comission desireth help in that there is reference made to those Statutes of Artificers Labourers and VagabouÌ„ds which be repealed as I told you And also metioÌ„ made of Inditemets take to long ago to make any processe out vpon them at this day But for as much as it auailed little to the correction of offendors to haue their faults brought to light by Enquirie vnlesse Iudgement Execution had bene also giue done vpon the same with some conuenient spéede therefore the thirde Clause or Assignauimus in the Commission was added which giueth power to the Iustices of the Peace or to two of them whereof the one muste be one of the select number of them now commoÌ„ly called of the Quorum bicause the CoÌ„missioÌ„ in making that choise beginneth with that word to heare determine al the offences coÌ„prehended within the same to chastise the offendors according to the laws customes of the Realme according to the Statutes in that behalfe made ordeyned But yet so that if any question or difficultie do arise concerning Extortions the they should not procéede to Iudgement thereupon without the aduise of one of the Iustices of the one Bench or of the other or who be their Commune Oracle for aunswere in Law of the Iustices of Assâ—sâ— By the equitie of whiche Prouisoe M. Fitzh Fo. 7. thinketh that they are likewise restrayned in all cases of doubt whatsoeuer howbeit he graunteth that if they do procéede of the selues their Iudgement standeth good vntil it be reuersed by Error 3. Clause or Assignauiâ—â—s Decision of difficulties or questioÌ„s arising before Iustices of the peace These of the Quorum were wont not without iust cause to be chosen specially for their learning in the laws of the Realme and therefore there is no separatioÌ„ metioned til the CommissioÌ„ come to giue the power to heare and determine in which
part that kinde of learning is most requisite and seruiceable And this was the reason that led the makers of the Statuts 18. E. 3. ca. 2.34 E. 3. ca. 1. 13. R. 2. ca. 7 to cause it to be expresly enacted that some lerned in the laws should be put into the Commission and all Statutes that desire the presence of one of the Quorum do secretly signifie such a learned man But here againe the Commission chorda quae semper oberrat eadem doth make muche relation to the saide Statutes that are not now at all The power giuen to these Iustices hathe appeared 3. The charge to them the Shirife and Custos Rotulorum Now let vs sée the charge giue to them and others They therefore and euery of them be charged to be diligentlye intendant aboute the execution of the premisses by these wordes Et ideo vobis c. but howe negligentlie many of them performe it I am afraide it is too manifeste whylest ambitiouslie séeking the name and power to rule they take smal care of doing their duetiful seruice that beloÌ„geth thervnto In this clause is contained a sauing vnto the prince of all amercements other things that shal growe due vnto hir by reason of their procéedings therevpon of which I will speake somewhat hereafter in place conuement The Shirife is saide to haue bene charged aforehand to be attendant in the Returne of Iuries before them in these words Mandauimus enim Vicecomiti c. And the Custos Rotulorum for it is meant of him althoughe he be not so there called is charged to bring the Records Processe of the Peace and in due sorte to consider and directe the same by these words Et vos praefatae Thom. Wootton c. Of whose office and authoritie somewhat shall be sayd also in particular in the second Booke of this treatise Of the two Othes ministred to the Iustices of the Peace CHAP. X. SVch as occupie Iudicial places ought to take héede what they doe knowing as Iehosaphat saide that they exercise not the iudgements of Men onelie but of God himselfe whose power as they doe participate The causes why Iustices be sworne So he also is present on the Bench with them And therefore it hath béene alwayes the policie of Christian lawes to appoint méete formes of Religious attestations or Othes for such Officers to take meaning thereby not onlie to set God continually before their eyes whome by suche Othe they take to witnesse of their promise call for reuege of their falshood but also to threate them as it were with temporall paines prouided against corrupt dealings withall to strengthen their minds and arme their courages againste the force of humaine affections whiche otherwise might allure draw them out of the way Vpon this ground the Statute 13. R. 2. Stat. 1. ca. 7. which willed that Iustices of the Peace should be made of new in all the Counties of England did there withall take order that they should be sworne to keepe and put in execution all the Statues touching their office whiche albeit that it be the firste Othe that I find to haue béene ministred to Iustices of the Peace yet I think they were not vnsworne before nor at any time after as may be collected vppon the bookes 21. E. 4.67 12. E. 4.18 and I beléeue also that that manner of Othe was deuised but for that time onelie and continued not long in that forme as being of it selfe very generall and hard to be obserued And that happily was the cause that it appeareth to be changed to that forme which M. Fitzh in his Booke hath left vs and which with the alteration of a fewe wordes onelie is yet at this day put in vse For vpon the renuing of the Commission of the Peace which nowe a days hapneth as often as any person is newly broughte into the same there commeth of course a Writ of Dedimus potestatem directed out of the Chauncerie to some auntient Iustice of the Peace to take the Othe of him whose name is newly inserted and to certifie the same into that Courte at suche daye as the Writ commaundeth This Writ is at this daye accompanyed wyth twoo Scedules whereof the one containeth the Othe of the Office of a Iustice of the Peace in his forme Ye shall sweare that as Iustice of the peace in the Countie of Kent in all Articles in the Queenes Commission to you directed yee shal doe egall right to the poore and to the rich after your cunning wit and power and after the lawes and customes of the Realme and Statutes thereof made And yee shall not be counsell wyth anie quarrell hanging before you And that ye hold your Sessions after the forme of Statutes thereof made And the issues fines amercements that shal happen to be made and al forfaitures which shal fal before you ye shal cause to be entred without anie coÌ„cealement or embeaseling and truely sende them to the Queenes Escheaquer Surcease in the printed Booke Yee shal not Let for gift or other cause but wel and truly yee shal do your office of Iustice of the Peace in that behalfe and that you take nothing for your Office of Iustice of the Peace to bee done but of the Queene and fees accustomed and costes limited by the Statute and yee shal not direct nor cause to bee direted anie warrante by you to bee made to the parties but yee shall direct them to the Bayliffes of the said Countie or other the Queenes officers or ministers or other indifferent persons to do execution thereof So help you God and by the contents of this Booke And his Saincts in the Printed Booke The variance betwéene this and that elder forme standeth as you may sée by the Margent in thrée points whereof twaine be of no waight at all but the third did néed amendment For right godlie and wel did those 32. persons that were put in truste to pen Ecclesiasticall lawes purpose to make this lawe amongst others Legitimun autem iuramentum ys verbis nullis alys suscipi volumus Ita me Deus per Dominum nostrum Iesum Christum adiuâ—et This Othe of the Office consisteth of sire Articles which for memories sake I haue séene expressed in these 6. Verses folowing Do equall right to rich poore as wit lawe extends Giue none aduise in anie cause that you before depends your sessions hold as statutes bid The forfeites that befall See entred well and then estreate them to the Cheaquer all Receiue no fee but that is giue by Queene good use or right Ne send precept to partie selfe but to indifferent wight 1 2 3 4 5 6 The other Scedule comprehendeth that forme of Othe which after the seconde abolishment of the vsurped authoritie of the Romish Pharao by the ioyous entrie of our gratious Queene Elizabeth was in the first Parliament of hir raigne ca. 1 appointed for Iustices of
Suretie of the Peace against a Lord But som others ther be perhaps with whom he may not wel medle As if any maÌ„ haue cause to require the peace against a Lord he for so small a cause is not to be arrested as I take it by warrant from a Iustice nor yet by a Supplicauit out of the Chauncerie But the Lord Chauncelor may in such case graunt to the partie a Subpoena against that Lord for it as it seemeth by 35. H 6. Fitz. Tit. Subpoena 20. For such an opinion the law hath had of the peaceable disposition of Noble men that it hathe béene thought ynough to take one of their promises vpoÌ„ Ho noâ— that he would not breake the Peace against a man If we may beléeue the report of M. Brooke Tâ—â— Contempts 6. to be true The cause for which this Suretie of the peace may be required or commanded appéereth in the first Assigâ—â—â—â— of the Commission of the Peace in these wordes Et ad omnes â—lios qui aliquibus de populo nostro de cor poribus suis vel de incendio domorum suaruÌ„ minas fecerint ad sufficiente securitate de pace c. inueniendam c. which M Fitz. so 8. construeth thus For what causes Surety of the Peace may be required He that is the thretned that he shal be hurt in his bodie or that his house or goods shal be brent may demaunde Suretie of the peace for his safegard in that behalfe But faith the court 17. E. 4. 4 if a man wil demand the Peace because he is in feare that an other man will take imprison hym it ought not to be graunted one yéeldeth the reason to be because he may have a Writte de homine replegiando or an Action of false imprisomnent and may thereby recover the damages of his imprisonment The same reason might be made against the demand of the Peace where a man is threatned with Batterie and yet it is cleare that in suche a case the Suretie of Peace ought not to bée denyed him truly to threaten imprisonment is within the words Minas de corporibus no lesse than Batterie it selfe and like harme may happen by hard imprisonment cruel beating It shal bée good therefore to enquire of this matter The Peace being thus for good cause required it is the common manner to cracte an Dathe of the party whereby the Iustice may be the better informed and induced to thinke that the party doth not aske it for malitious veration of an other but of very feare for the néedfull safetie of hymselfe and his How Suretie of the peace is to be required By Oathe And M. Fitzh in his Nat. Bre. Fol. 79 laboureth to shew that the Iustices of the Peace ought not without such an Dathe to graunt this Suretie of the Peace at any mans sute Forasmuch as not onely the Iudges of the Kyngs Bench do yet take an othe in such cases but the antient course of the Law was such in the Chauncerie it selfe also although it be now adayes otherwise used there And that a Iustice in this case may the better Iudges of this Feare let him hearken what M. Bracton Fol. 16. saith Meâ—us est saith he praesentis vel futuripericuli causa mentis trepidatio talis enim debet esse metus qui in se contineat mortis periculum vel corporis cruciatum And therefore if a Iustice of the Peace doe pereceiue that the peace is demaunded against such a person as for his impotencie is not like to breake the Peace he may safely deny it sayth M. Marrow But Satius est peccare in alteram partem as I suppose leaft if he bée staine that demaunded it the Iustice be worthily blamed for that he prouided not for his life and safetie And besides the common forme of the Recognisance is to bind a man from procuring hurte which any impotent man is able to do It resteth that I shewe by what meane this Suretie may be enioyned and that is either by Word or by Writing under Seale By what meanes Suretie of the Peace shall be enioyned By Word For a Iustice of the Peace may by word onelie commaunde a man being in his presence to finde Suretie of the Peace 9. E. 4. 3. for séeing that he is a Iudge of Record saith M. Fitzh Fol. 8. his Precept by mouth is stronger than his Precept in Writing So if the Peace be demaunded againste one that is in his presence hée may commaund the â—worâ—fe or other knowen Officer or his own seruant if they be then present also to arrest the partie to finde thys Suretie 14. H. 7. 8. Mar. But if â—yther the Officer Seruant or Party be absent then it is requisite to make a Warrant or Precept in writing The forme wherof may be thus in Englishe for I sée no cause yet why it should be directed in Latine to a Conestable or Bortholder that by all presuÌ„ption understandeth no Latine By writing or a Precept for the Peace Elizabeth by the grace of God c. Kane TO our Shirife of Kent the Conestables of the Hundered of Wroteham the Borsholder of the Towne of Ightham and to al and singular our Bayliffes and other our Ministers in the sayde Country as well wythin liberties as wythout greeting Forasmuch as A. B. of Ightham aforesayd Yeoman hath personally come before G. Multon of the sayd town Esquire one of our Iustices of the Peace within the sayd Countie and hath taken a corporall Oath that he is afraid that one C. D. of Shipborne in the sayde Countie Yeoman wyll beate wound mayheme or kyll hym or burne hys houses and hath therewithall prayed suretie of the Peace agaynst the said C. D. All or any one of these causes may Suffice Therefore we commaund and charge you iontly and seuerally that immediatly vpon the receit hereof you cause the say de C. D. to come before the sayd G. M. or some other of our sayd Iustices to finde sufficient suretie and mainprise for our Peace to bee kept towardes vs and all our liege people and chiefly towards the said A. B. that is to say that he the sayd C. D. shall not doe nor by any meanes procure or cause to be done any of the sayde euilles to any of our sayde people and especially to the sayd A. B. And if he the sayd C. D. shall refuse thus to doe that then you him safetly conuey or cause to be safel County there to remaine vuntill he sfely conueyed to our nexte pryson in the shal willingly doe the same So that hee may be before our said Iustices at the next generall Sessions of the Peace to be holden at M. in the sayde Country then and there readie to answere vnto vs for his contempt in this behalfe And see that you certifie your doing in the premisses to our said Iustices at the sayde Sessions bringing then thither this Precept wyth you Witnesse
taken if so be that it were made to kéepe the Peace against him alone But although the Mainpernours or Suerties die yet the Recognusance liueth for if the Peace be broke after their deaths their executors shal be charged with it Certifying of the Recoâ—â—â—sance though it be discharged by death 21. E. 4.40 Neither in the former cases is the Recognusance discharged by such death if it were forfaited before And therefore here againe my counseld is to sende in the Recognusance to the Custos Rotulorum for other wise how shall the Iustice of Peace be assured that he doth not defraude the Queene of a forfaiture that was growen vnto hir Thus haue I both bound the party to the Peace conueyed the Recognusance from the Iustice of the Peace to the Custos Râ—â—ulorum readie to be called vpon at the Quarter Sessions So that I might forthwith procéede to treate of the good Abearing But beacuse I haue tolde you out of M. Mar. and by 21. E. 4. 40. that if the RecognusaÌ„ce of the Peace be forfeited and that forfaiture bée leuied so that the Recognusance is vtterly determined yet of Discrtion the partie is to bée compelled to finde new Suertie or else to be sent to prison because it appéreth euideÌ„tly that he hath broken peace and is a stubborn offendor against the law I thinke it fit to run swiftly ouer some few things that may enfourme a Iustice of the Peace concerning suche forfaitures to the end that he may therevpon compell the offendor accordingly Causes of forfaiture so that the partie shall be compelled to giue new Suerties The Condition of this Recognusaunce of what good forme soeur you make it standeth upon two points the one for apparance at a time the other for kéeping the Peace in the meane while Of th firste of these I haue said somwhat already in thys Chapiter concerning the second point this is generall that whatsoeuer Act is a breach of the Peach the doing therof doth al 's beget a forfeiture of the Recognusance that is made for keeping of the Peace and what actes shall amount to a breach of the Peace I will hereafter shew in the next Chapiter of this Booke where I shall to an other end haue méete place for it In the meane space take thus much here If a man bée bound to kéepe the Peace against A doe afterward threaten A to his face that he wil beate him hie hath forfaited his Recognusance And an Action of Trespasse lieth at the Common law against him the shall threaten one to beate him as appéereth in diuers Books cases 3. H. 6 18 37. H. 6. 20. shall suppose it to be Contra pacem But other wise it is if A be not presente at that threatning by good opinion 18. E. 4. 28. yet if in the absence of A. he doth threaten that he will beate him then do after ward lie in await to beate him he hath in that case also brokeÌ„ his Recognusance 22. E. 4. 35. per Cur. Like forfeiture is it he that is bound do but commaund or procure an other to break the Peace vpon any man or to do any other vnlawfull acte against the Peace if that it be done indéede 7. H. 4. 34. Brooke Tit. Peace 20. tempore H. 8. For closing vp of this parte concerning the Preuention of the breach of the Peace it remayneth that I entreate of the Suertie of good Abearing which is of great affinitie with that of the Peace as being prouided for preseruation of the Peace as that oâ— ther is for in the Commission of the Peace they are bothe conueyed vnder this one tract of speach Ad securitatem de pace bono gestu suo erga nos populum nostrum inueniendum against such as doe threaten hurte to mens bodies or Fier to their houses which things are now commonly preuented by Suertie of the Peace only Of the suertie of the good Abearing and where it lyeth And by the Booke 2. H. 7.2 Suertie of the good Abearing is set forth to rest in this point chéefly That a man demeane hymselfe well in his prote and company doyng nothyng that may bee cause of the breach of the Peace or of putting the people in feare or trouble and that it doeth not consiste in the obseruation of things that concerne not the Peace And that it shoulde differ from Suertie of the Peace in this that where the Peace is not broke without an affray or battery or such like this Suertie de bono gestu may be broke by the number of a maÌ„s company or by his or their weapons o harnesse Herewithall also doe certaine Precedentes of the Kings Bench agrée which in Suertie of the good Abearing takeÌ„ at the sute of some one person do mingle the words Amodo bene se geret erga Dominum Regem cunctum populum suum praecipuè erga T. B. with those other wordes that are commonly put in the RecognusaÌ„ce for the Peace as the Peace as in the new Booke of Entrees Fol. 416. any man may plainely sée But all this notwythstanding me thinketh that a man may reasonably affirme that the Suertie of good Abearing shoulde not be restrained to so narrow bounds For first the Statute 34. E. 3. ca 1. enableth the Wardeins of the Peace to take of all the that be not of good fame where they shall bee fouÌ„d sufficient suertie mainprise of their good abearing towards the king his people So that if a maÌ„ be desamed he may by vertue hereof be bounde to his good Behauiour at the discretion of the Wardeins and Iustices of the Peace But then the doubte resteth in this to vnderstande concerning what matters this defamation muste be that as I thinke may be partely gathered out of the aside Statute also For after it hath first giuen power to the Wardeins of the Peace to arrest and chastice offendors S. against the Peace Riotors and Baretors then it willeth them to enquire of suche as hauing bene robbers beyond the sea were come ouer hither and would not labour as they were wont and lastly it auctorizeth them to take suertie of the good behauior of such as be desamed namely as I think for any of those former offences for so it staÌ„deth wel togither the they shall both punishe such as haue alredy so offéded shal also pro uide that the others shal not likewise offed Moreouer it séemeth to me that these statutes first 1. Mar. Parl 1. ca. 3. which giueth this Suertie of good Abearing against such as distube a Preacher then 5. Eliza. ca. 21. that prouideth the same against the takers of fish in Ponds or of Déere in Parkes and lastly 23. Eliza. ca. 1. whiche graunteth it against such as wilfully absent theselues froÌ„ the church by the space of 12. months haue this meaning that a partie so bound may afterward forfaite his Recognusance if he eftsoones offend against the said Statutes
ment within this Statute what other acts though they carie som reseblaÌ„ce of the same yet do not reach so far What Actes be Manslaughter or Felonie And hereby he shall the better know whe to coÌ„mit the partie the shal be brought before him when he shal not néed to meedle with him at all But now I will only deliuer him so shortlye as I can those few helpes the do redily come to my hand for knowledge of sundrie Manslaughters Felonies at the CoÌ„mon Law leauing the Felonies made by Statutes to appeare vnto him in the rehearsal of the charge of the SessioÌ„s of the Peace in the next booke whe I shal come vnto it The Statute 1. 2. Ph. Mar. cap. 13. concerning the Baylemente of prisoners which gaue the occasion of the making of this presente Acte séemeth to distinguishe Murder and other more capital crimes from Manslaughter and Felonie Felonies touching the person And it is certain that in comon spéech Manslaughter is taken to bée a speciall manner of wilfull killing without any malice forethoughte off And Felonie is not commonlye vnderstoode to extende so farre as vnto Murder Yet séeing the principal consideration of this Statute is in mine opinion rather to bée practised in case of Murder than in these other lesse offices I wil adueture though the Statute haue not the words to mingle them togither and make it here as in truth it is a chiefe kinde of Manslaughter and Felonie For as in olde time euerie killing of a man was of the Effect calied Murder bicause death ensued of it for of the Hebrew worde Moth saith Postellus commeth the Latine Mors which the Saxons our Elders called Morþ Morth and Morþor Morthor as we yet sound it so was that wilful manner of sleying with malice prepensed loÌ„g since and most properly called Felonie because it was done Feâ—eo animo in malicious heate displeasure and per FeloniaÌ„ as the Statute at Marlebridge 52. H. 3. ca. 25. doth fearme it Foure sortes of Manslaughter Not euerie Manslaughter deserueth punishment saith M Bracton for inexpressing that Homicidium corporale facto committitur quatuor modis s Iusticia Iusticia necessitate casu velvoluntate there withall he addeth that the firste of these is no sin at all if it bée done sincerely and without delight in shedding of bloud And therefore neither is the Iudge that by Iustice condemneth the guiltie to death and commaundeth the minister to do execution nor the lawful Officer that executeth the iuste coÌ„mandement according to his warraÌ„t guiltie of any offence for which vpoÌ„ examinatioÌ„ either of theÌ„ ought to bée coÌ„mitted to prison But if the Officer wil behead or otherwise execute him that is condemned to bée haÌ„ged or if a priuate man without warrant whyll hang or kill such a condemned or outlawed person this will bée a Felonious acte stretthing to Murder by good opinion 35. H. 6. 58 27. lib. Ass Pl. 41. And though the law hath bene takeÌ„ heretofore the one might iustifie the killing of a man attained vpoÌ„ a Premunire yet now the same being prohibited by 5. El. ca. 1. if one that hath killed such a person were broughte before a Iustice of Peace he might boldly committe him as a Felon In the seconde sorte of Manslaughter according to M. Bracton as there be manny differences so is the law also diuerse in the coÌ„sideration of them For if a Iustice of the Peace within his Countie or Maior Bayliffe or other heade Officer of any Citie or Towne Corporate within the same towne or Citie or any other hauing the Quéenes Commission or letters doe lawfully vpon good cause raise or assemble any number of men for the suppressing of any such persons as shall bée vnlawfully assembled contrarie to the Statute 1. Mar. Parl. 1. ca. 12 And by reson of their still continuing together after proclamation made bée driuen to set vppon them and therby anye of the stubburne persons bée slain This slaughter done vpoÌ„ this Necessitie is so iustifiable both in the Iustice himselfe euery other of his company that they ought not in any maner to be molested for it 1. Mar. Parl. 1. ca. 12. So if the Shirife or any other do by warrant or vpon hue and crie made arrest one indited of Felony which doth resist is slain therby This fact done vpon this Necessitie is Iustifiable 22. Lib. Ass P. 55. Tit. Coron Fitz. 288. 289. 290. For all these former cases tend to the commendable aduauncement of Law and Iustice By the olde Statue 21. E. 1. De Malefactoribus in parcis c. If any Forester Parker or Warrener or such as bée in their coÌ„panye after hue and crie made vpon offenders within their charge to yeelde themselues whiche they refusce to doe but flie and make resistaunce doe not hauing any malice prepensed kill anye of them this is no Felonie nor the partie to bée imprisoned or to forfeit any thing for it So if prisoners doe assaulte their kéeper and in his defence he striketh anye of them to the death 22 lib. Ass P. 55. And so it is if any do attempt to robbe or murder one in his mansion house or dwelling place or nighe any common highway Carteway horsewaye or footewaye or Feloniously to breake into his dwelling house in the night time and in this their attempt the partie or his seruauntes then with hun do kil any of the misdoers though the law was somewhat doubtful before it is now made out of questioÌ„ by the Statute 24. H. 8. C. 5. the hée shall not forfeit anything for that facte but shal go quit For in these cases of Necessitie he defendeth himself and his goods againste Kobbers and other notorious euil doers But he the in an Astray is of necessitie driuen to kill the other in defence of his owne life after that he hath fled as farre as he can Is not so priuileged for although it bee not accounted Felonie yet Statute of Gloue cap. 9 willeth that suche an one be imprisoned til the comming of the Iustices of Gaole deliuerie and there putting himselfe vppon God and the Countrey the whole matter is to bee found by the verdite And then the king shall graunt him a pardon of Course but hee shall forfeite all his goods 43. lib. Ass Pl. 3. for hauing killed the Kings lawful subiect And therefore the Iustice of Peace may wel vnder the name of Manslaughter in this Statute take vpon him as I thinke to coÌ„mitte suche an offender and to take eramination and bonde of the informers according to the Statute The like is to be done as it feemeth to me in case one kill an other by misaduenture against his wil as by casting a stone or shooting an arrow or felling of atree vnaduisedly or such like 11. H. 7. 23. That Manslaughter which is committed with an euill intente or in doing an other vnlawful or euil thing though that whiche is done
or Vndershirife Now many or how fewe they wil haue to assist them in making the arrest But yet after such arrest made the Power of that countie is bounde to goe with the Shirife to the Gaole to aide him thither also whiche is otherwise in the case of a Felon taken by Hue and Cry for there when the Countrie hath deliuered him that Shirife they are discharged Mar. This auctoritie of assembling the power of the countie and of arresting imprisoning Riotters til due execution of law were done vpon them was once before this time namely 2. R. 2. 6. committed to some was by by after resumed in the same yeare of the same kings raigne as a thing too gréuous to be suffered that any man should be imprisoned without an Inditement or Sine leg ali indicio parium suoruns as magna Carta speaketh first had against him But nowe if information bée made to two Iustices of the Peace that certain persons bée riotously assemb ed at Dale and they assisted wyth the Shirife or Vndershirife doe gather people to suppresse it and when they come to the place they finde no Riote there yet are they excusable for the assemblie of Power made by them because they did it vpon information And if they do it without information and find a Riot indéede when they come then shall they not onelie bée ercused for making suche assemblie of their owne heads but may also lawfully procéed to punish the offeÌ„dors Fitz 17. And that punishment muste be grounded either vpon their Recorde of the thing done in their owne presence or else by enquirie vpon the oath of other men And therefore if two Iustices of the Peace assisted with the Shirife or Vndershirife do sée a Riotte they may command the Riottors to be arrested and the parties shall bée so concluded thereby the they shal neuer be receiued to Trauerse or deny it But otherwise it is if they do not sée it themselues 14. H. 7. as M. Fitz. Tit. Iustice del peace 9. reporteth who saith moreouer in his booke of Iustices of the peace Fo. 18. that if they doe so recorde a Riote as though they had séene it the parties shall bée stopped thereby although there were neuer any such Riot by them committed for saith he the view of a Riot is neuer to be trauersed Likewise if the Iustices of Peace bée disturbed by Riotors in coÌ„ming to their Sessions they may without any Inquirie make their record of it Fitz. 17 7. E. 4. 18. Recording of the Riot The Record which these Iustices ought to make must bée by writting and muste remaine with the one of them and the â— and none other Iustices ought to impriâ—â—n the Riotors and to assesse their fine cause the same to be estreated into the Escheaquer If they sée the Riot the Riotors escape yet they ought to Record it but then they cannot arrest the Riotors at another time neither can they make any Processe upon that Record neither ought it to be kept amongst the Records of the Peace but it must be sent into the Kings Bench that processe may be there made vpon it And in the case the parties are not to be admitted to their Trauerse there but must of necessity make fine for it If these Iustices come to sée one Riotte and another Riotte is made in their presere they may Recorde that So if the Iustices the Shirife or Vndershirife be assembled at a place for an Arbitrement or such other pris uate cause and a Riotte appeareth to bée comitted in their presenc they may Recorde it also But if the Riottours séeing them coÌ„ming do flie into another Countie and doe committe a Riotte there these Iustices can not Recorde that Riotte If the Riottours make a Riotte vpon the Iustices and Shirife that do come of putpose to arrest them they may Recorde that And it séemth that they may like wife do so though M Marrow denyedit if they come for an other cause and such a Riotte bée done vpon them If a maÌ„ be slain in the Riot or Maymed or if Rescous bée done to an officer the Record must be Riotosè occidit or Riatosè Maybemauit or Riotosè rescussit not Felonicé nor simply Rescussit for their polver in this case is restrayned to the Riot only therfore the parties may not withstaÌ„doing their Recorde plcade not guilty to the Felonie or Refcous though not to the Riot it self If they make a Recorde of a Riotte doe imprison the partie till he haue made Fine and it do after ward appeare by the Recorde it selfe that the Acte which they recorded is no Riot yet be the parties without remedy and if a man bée bound to the Peace such a Recorde of a Riotte is after wardes made against him and others hée shall not iustifie nor pleade not guiltie in a Scire facias vpon his Recognusance Mar. But althoughe these Iustices Shirife or Vndershirife doe not goe to sée the Riotte yet maye the the Iustices enquire of it within the moneth after it and they all are allo to make Certificat within a moneth after that arcording to the forme of thc Statute And although this Statute saye that the same Iustices shall doe it yet if other Iustices of the peace there doe it that is sufficient Mar. Enquirie of the Riottes and certify So that if two Iustices and the shirife goe to sée a Riotte and other two Iustices make the Enquirie now the one sorte or the other of them with the shirife or Vndershirife may Certifie it If this enquirie bée not made within the moneth yet it is good but then no good Certificat can bée made thereof So if the Enquirie bée within the moneth and the Certificat not made Within a moneth after that is not good Mar. But if the Iustices doe enquire within the moneth and doe giue daye to the lurie to yéeld their Verdite after the moneth that is good ynough If the Enquest find that the Riot was made by ry persons wher in déed it was made by Cpersons it may be creatified so and then the Cretificat not the Inditement shal be take but if they barie only in the day then the Inditement shall be prefered to if the Certificat And if the Inditement be of ry persons the Certificat of ry persons in harnesse the Certificat shal be preferred So if the Inditement speake only of a Riotous assault batterie and mayheming If foure Iustices the shirife and Vndershirife goe to fée a Riote and two of those Iustices and the Shifife joyne in one Certificat and the other two joyne with the vndershirif in an other Certificat that Certificat wherevnto the Shirife is partie shall bée preferred for in hys presence the Vndershirife hathe non autoritie But yet if the Certificat bée otherwile equall then the best shall be taken for the Queene If after the Riote séene and the Enquirie made one of the
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.
against the Peace or suche other contemptes the Processe is one and vpon Enditements of Treason or Felonie it is another The general Processe vpon Enditements of Trespasse Vpon Enditements of Trespasse against fhe Peace of Conspiracies and of Routes in presence of the Iustices or in affraye of the people if the offendors may not be founde nor brought in by Attachment or Distresse by reasoÌ„ of their insufficiencie the Processe Processe of Vtlawrie is to bée awarded by the Statutes 18. E. 3. Stat. 1 18. Ed. 3. Stat. 2. ca. 5. The like is against suche as bée endited vppon the Statute of Liueries 8. Henrie 6. cap. 4. Abd a Venire facias firste and then if therevpon he bée retourned sufficient a Distringas and so the same Procese infinite til he come in but if a Nihil habet c. bée at the first returned against him then a Capias alias pluries and after an Exigent as it séemeth by Maister Marrow and the olde precedents agréeing with the CoÌ„mon Course as I take it is the ordinarie Processe vpon al enditements not sounding in Felonie or greater offece whether they bée of Trespaslse against the Peace or of contemptes againste penall Laws vnlesse it bée otherwise specially prouided by those same Statutes wherevppon suche Enditements bée altogither grounded Of which sorte these bée some The statute 22. H. 8. c. 5. coÌ„cerning Bridges in Highwayes alloweth suche Processe as the Justices of the Kings Benche doe vse or suche as the Iustices of the Peace them selues shal think méete by their Discretion for the spéedie amendement of those Bridges Speciall Processe VpoÌ„ Enditements of Liueries maintenaÌ„ce Archerie vnlawfull games c. by the Statute 33. Hen. 8. cap. 10. there was giuen one Venire facias one Capias and then the Exigent But it is to bée weighed whether the Statute 37. Hentie 8. cap. 7. whych vtterlye replealeth that Statute 53. Henrie 8. doe transferre the manner of that Processe vnto the auntiente Quarter Sessions as it doeth sundry other partes of the said Statute The Statute of Labourers 23. H. 6. cap. 13 gaue after Enditements grounded therevppon an Attachement Capias and Exigent But I thinke it no great doubt but that that pointe is taken awaye by the new Statute of Labourers 5. Elizabeth cap. 4. as well as all the residue of that Statute is The Statute 5. E. 6. ca. 25. giuth power to the Iustices of Peace to enquire of Alehouse kéepers whether they haue done any acte to the breach of their RecognusaÌ„ce Procrsse vpon Recognusance And if any such matter be presented then to awarde Processe against the offendor to shew why he shoulde not forfeite his Recognusaunce but what this Processe shal be I wil not determine For I doe not finde that in anye other case thoughe it appeare that any man hath forseited any Recognusaunce that the Iustices of the Peace can awarde anye Scire facias or other Processe to cal him in vpoÌ„ it but are rather to certifie the same into higher Courtes that from thence Processe maye issue out to call the partie to answere therevpon Some other Statutes there bée that haue extended the auctoritie of the Iustices of Peace in sending Processe beyonde the boundes of their owne Commission Processe in to other Shires For by the Statute 1. E. 6. ca. 1. thrée Iustices of the Peace the one being of the Quorum maye make Processe against such as be there vpon endited for deprauing the Sacramente by two Writtes of Capias and the Exigent and by Capias vilagatum into any place within the Queenes dominions So if a Seruaunt departe into an other Shire the Iustices of the Peace of that Shire where the departure was maye graunte Writs of Capias to the Shirife of the other Shire where the Seruaunt is returnable before themselues 5. El. ca. 4. The like may they doe by the saide Statute 22. H. 8. ca. 5. where a decayed Bridges lyeth in one Shire and the person or landes chargeable thereto doe lye in an other Shire But if the Enditement bée in one â—oâ—tie and the Enditée bée named to bée then or Nuper dwelling in an other Countie there is a speciall course of Processe in that behalfe for his benefite appointed by the Statute 8. H. 6. cap. 10. both for Treson Felonie and Trespasse for before any Exigent shall bée awarded one Capias must be sente out and retourned and then a second Capiâ—â— shall goe into the Countie where he is supposed in the Enditemente to bée or to haue bene conuersante retourneable before the same Iustices of the Peace before whom the Enditement was taken thrée monethes at the least after the date thereof for al Counties be now holde froÌ„ moneth to moneth by 2. Edwarde 6. ca. 25. by which laste Writte the Shirife shall be commaunded to take the Enditee if he maye bée founde within hys Bay liwike and if not then to make Proclamation in two Counties before the return of that Writte that the Enditee shall appeare before the sayde Iustices of the sayde Countie where the Enditements was taken at the day contayned in the last sayde Capias to aunsweare to his offence at which day if he come not then the Exigent shall bée awarded against hym and otherwise not And by the equitie of this Statute of 8. H. 6. ca. 10 saith M. Marr. if the Enditee be imprisoned in an other Countie the Iustices of Prace may awarde an Habeâ— corpus to remoue him before them At this Processe of Vtlawrie may be staid by a Super sedeas And Fitz. in his Nat Br. â—o 237. hath the case that if an Exigent goe out vpon an Enditement of Trespasle found bedore Iustices of the Peace fhe partie maye finde suerties in the Chauncerie bodie for bodie to appeare at the day of the Writ and may then also haue a Supersedeas from there to the Shirife coÌ„maunding him to forbeare to take him to let him go if he haue then alreadie taken him for the cause Supersedeas to stay Procesle And again you may sée in the new booke of Entrees Fo. 546 the Processe vpon such an Enditement staied by a Supers edeas issuing froÌ„ one Iustice of the Peace alone testifying the the partie came before him found suerties de fine assidendo But as I beléeue the former so wil I not perswade the practize of the latter bicause I thinke it not in the lawful power of anye one Iustice of the Peace to award any such warrant but it must be done by two Iustices at the least I haue yet to speake of Processe vpoÌ„ Enditements of Treason and Felonies wherein I wil bée short that I may passe ouer to other things Processe vpon Enditements of Treason and Felonies c. The Proces vpoÌ„ an enditement of Treason forcountersaying mony is by Capias only so set forth 3. H. 5. ca. 7. neither is there any other Treason wherevpon the Iustices
M. Fitzh Fol. 16. that albeit two Iustices of the Peace the one of them being of the Quarum may heare and try Felonies yet no Iustices of the Peace haue auctoritie to deliuer Felons by proclamation or without sufficient acquital nor yet to deliuer such as bée in prison for suspition of Felonie For they must procéede by enquiring hearing betermining as their Commimission appoints them and not ridde the Gaole other Wise as the Iusties of Gaole deliuerie may doe Things feuerall to lustices of the Peace in the triall of Felonies And therfore such persons if they can not bée endited must either remaine the comming of the Iustices of Gaole deliuerie as the commune manner now is or els being remoued into the Kings Bench they may bée deliuered vpon the writ degestu fama as the to olde order was or otherwise as the manner is at this day These Iustices can take no appeale of any appronour nor other before them say all the Iustices of the Common Peace 2. H. 4. 19. and so is it clearly holden 9. H. 4. 1. because their Commission stretcheth not so farre Where vppon hauing had no leysure to make the searche I am induced to suspect that the serme of those Commissions was in the last Assgnauimus other than these of our time bée in that point which as I haue sayd before bée now very large and do giue a great shew to the contrary But howsoeuer that bée yet it seemeth no lesse reasonable than seruiceable that if one Felon will accuse an other before them they may take his confession reprye him and therevpon cause the other to bée enqiured of then proceede against him Further they can not arratgne one vpon his abiuration sayth Mar. It hath also béene thought vnméete that they should try a Felon the same day in which they awarded the venire facias against the lurie 22. E. 4. Fitz. Tit. Coro 44. but that hath no necessitie the law is now otherwise taken Marrow sayth that they can not award the writ venire facias tot matron as to try whether a woman arraigned before them bée with child or no but séeing it standeth with law and reason so staye hir for the tyme that the childe may bée preserued can not but doubt of it They may giue Clcargie to a Felon if the Ordinarie or his Deputie bée present to take him but if they bée absent he must bée repried bicause as Marrow sayth these Iustices can set no fyne vppon the Ordinarie for his absence no more than if he will accept one to reade as a Clarke where in truth he can not But if you reade M.. Stanford lib. 2. ca. 45. he will perswade you that the Ordinarie is not the Iudge but a Minister in the triall of Cleargic and that Cleargic may lawfully bée giuen allowed in his absence Of the Fine for his default at these Sessions I am doubtfull as I haue sayd before but touching the allowance of Clcargie to the offendor I sée no cause at all why it may not belong to the Iustices of Peace as well as to other Iudges séeing that they bée Iudges of the felonie as other Iustices are other wise all men might bée defeated of that priuiledge Marrow sayth also that is Bygamie that vngodly Popish counterplea had bene alleadged against one that prayed his Cleargie the Iustices of Peace could not haue written to the Ordinarie to certifie the same But let that passe as now not worth the debating And if a man outlawed of Felonie by Processe before the Iustices of Peace bée brought before them and do alleadge that he was at the time of the Utlawrie pronounced out of the Realme in the Queenes seruice vnder such a Captaine or that he was then emprisoned in an other Countie they can neyther write to the Captaine nor into the Countie by the opinion of Marrow Which if it bée so it shall bée good to learne further what they ought to doe with the prisoner in such a case Thus much onely of things restrayning the Iustices of Peace in the Trial of felonies where in also they are not now adaies much occupied the rather bicause they deferre it til the comming of the Iustices of Assise by reason that the Statuts 1. 2. Phil. Mar. ca. 13 2. 3. Phil. Mar. ca. 10. doe enioyne them to Certifie at the next generall Gaole deliuerie both the examinations and bonus that they shal take concernirg Felons and suspects brought before them This I may adde not as a restreint but for an enlargement of the auctoritie of Iustices of the Peace that if they sée cause and do write to the Clarke of the Crowne of the Kings Benche for the names of any persons being other where attainted of Felonie by Vtlawrie or being Clarkes conuict or attainted he ought without delay and vnder the paine of rl ye. to certifie the same vnto them togither with the causes of such attainder or conuiction 34. H. 8. ca. 14. Of Iudgement CAP. XV. THe Iustices of Peace hauing thus sifted and tried the causes in heauidence giuen to the Iurie or by the eramination of witnesses or by Certificate allowed or other reasonable and discréete proofe are now come to make an ende and to determine of it For I may wel apply that to hearing and determining which M. Bracton requireth to the making vp of a true Iudgement that is to say an equall and indisferent acceptation of the persons an earnest examination and thorow searche of the cause a true deliuerie of the sentence and a diligent execution of the same Of these the two first belong to Hearing or Triall which we haue already handeted and the latter two bée the very parts of determining wher with we haue now to deale For Iudge ment and Execution doc make an ende of the wbole cause You haue heard before how M. Fitzh collectcth a generall learning out of one speciall case in the Commission I meane that if any difficultie doc arise in determination vppon Tryall the Iustices of Peace are restreyned to procéede to Iudgement and you may reade 6. H. 7 16. that if a Certiorari bée brought to the Iustices of Peace they are stayed by the opinion of Keble from determination although the Recorde bée not there by remoued from them But supposing that there is none impediment let them procéede to Judgement The Judgements of the Iustices of Peace bée in some cases arbitrarie or referred to discretion and in other some cases prescribed or limited Of the first sort take this one or two for all Iudgements by discretion He that is orderly conuicted before them in their generall Sessions of the deceiptfull getting of anye thing into his handes by meanes of any false token or counterfaite letter made in the name of any other may bée adiudged by them to suffer Emprisonment standing on the Pillorie or anye other corporall payne that they shall appoynt except the
and Amerciamentes by Estreates first sent vppe to the Eschequer and then deliuered thence to the Shirife which was at that time the common manner of leuying Fines and Amerciamentes therefore it was within two yeares after videlicet 14. R. 2. cap. 11. prouided that the Estreates of the Iustices of Peace should bée indented or doubled and the one parte thereof deliuered by them to the Shirife so leuie the money thereof rising and to pay the Iustices their wages by Indenture betwene him and them to be made and the other parte thereof sent into the Eschcquer to charge the Shirife withall vpon the making of his account there And hereby as I thinke the Estreates of the Iustices of the Peace be no we an immediat warrant for the Shirife to leuie not only the Fines and Amerciamentes but also all other â—â—â—ues Penalties Lesses Forfeitures and Summes whatsoeuer arising before themL for the wordes of the Statute are generall The money thereof arising and therfore whatsoeuer summes are to be Escreated into the Eschequer by the one of these doubles the sme are also to be leuied by the Shirife by the other double Such order did the Statute 3â— H. 8. cap. 10. of the fire weekes Sessions take for the leuying as well of Fines and Amerciamentes as of peines Losses and Forfextures of money So doth the Statute of Tillage 2. 3. phil Mar. cap. 2. by way of admittance rehearse that Iustices of the Peace may make out Processe for the leuying of Fines and Forfcitures before themselues and so are the Estreates amde and the Fines and Forfeitures thereby leauied at this presente time if I bée not deceâ—ued And those are properly called Estreates of the woordâ— Extractae because they bée shorte Notes or Memorialls extracted or vrawen out of the Recordes by the Clarke of the Peace and by him indented and deliuered sunderly to the Shirife and to the Barous of the Eschequer bearing this or the like Title Extract finsium amerciamentorum forisfactormum ad goâ—ralem Sessionem Pacis tentam apnd Maidstone c. Coram c. For the whole forme of the making wherof there is full Direction giuen to all Clarkes of Estreates by the Statute 7. H. 4. ca. 3. Where vnto I referre them Howbeit I do not thinke that in our case this dutie of Estreating is so peculiar to the Clarke of the Peace but that the Iustices of the Peace them selues ought also to haue a common and carefull eye vnto it For if you remember it is both specially prouided for in the Commission and also an Article of their Dath to see vnto the faithfull Entrie and Certificat of the Issue Fines Forfeits and Amerciamentes that doe happen before them And therefore it were well done in mine opinion if the Iustices would by turns or other wise both take knowledge of things that haue passed before them and also take order that the same be certified accordingly least other wise it lye altogither in the power of the Clarke of the Peace to Saue or Slay as one sayd the Sparrow that he holdeth closed in his hand Iustices of the Peace ought to haue care of Estreates Of Executorie Processe execution for the parties that sue or for other persons CAP. XVII ALbeit that the Iustices of Peace haue this power to make warrant for leuying the Amerciamentes Fines and other forfeits that doe growe vnto the Queene by their seruice yet is it commonly thought that they may not but in some cases onely and that by speciall spéech of the Statutes make execution either for him that will sue or for any other of such parte of the forfeiture as the Law doth aford them For most commonly the partie that will sue is put to his Action at the Common law for recouerie of that which he is to haue as for his moitie of a forfeiture againste the Status 24. H. 8. ca. 13 of apparell he is perhappes driven to his Action of Dstinue for his maytie growing vppon conuiction of any offence centrarie to the Statute 13. Elizab. cap. 14. concerning bringing ouer of Bowstaues or contrary to the statute of Musters 4. 5. Phil. Mar. ca. 3. he is to commence his Action or Bill of Debt and so of sundry others that are ech where to be foúd Apparell 〈◊〉 Musters But Where they haue power either by their Commission Or by any Statute to heare and determine any cause at the sute of aprituate person I do not see how the cause can well be said to be fully determined till the complaint hath had the effect of his sute which can not be without execution Doubtlesse by speciall prouision made in the Statute 5. E. 6. ca. 14. against Forestalle is the Iustices of the Peace may make execration of the one moitie of the forfeiture for ht in that sueth by fieri facias or capias as the Q ueenes Iustices at Westminster vse to dec Forestallers The like power in like words haue they for leuying the moitie of any forfeture against the Statute of Armour made 4. 5. Phil. Mar. ca. 2 or against the Statute made 5. Elizab cap. 12. concerning Badgers Drouers c. and their licences Armour For the moitie growing to the Informour vpon the Statute of Liueries 8. E. 4. cap. 2. they shall make suche execution as ought to be had in Kccourries of Der or Trespaile at his owne pleasure Li ue ries They may also awarde execution for the partie that sueth vpon the Statute of Flaxe and Hemp 24. H. 8. ca. 4. by such Processe as to them shall seeme by their discretion Flaxe and Hempe And the Estreates made by the Clarke of the Peace of forfaits for defaultes of amending Highways area safficient warrant to the Constables to leuie the same by Distresse to the vse of the Churchwardeins of the Parish where the Default was towardes the amendment of the said wayes Highwayes 2. 3. Phi. Mar. ca. 8 5. Elizab. ca. 13. Ann like wise the Estreates of the Iustices of Peace of any Fines assessed by them vpon Presentmentes in the shnifesTurne being inrolled indented deltuered to the Shinfe are a good warraÌ„t vnto him to leuy the same to the vse of him that was shirite at the time of such Presentmentes taken Shirifes Tisma 1. E. 4. ca. 2. Searche may aforde you some moe eramples but thrse may suffise for my desire which is not in this or any other to recount all but to make some proofe of that which I offer and propose Of Certifying Recordes of the Sessions of the Peace to other Courtes or Officers CAP. XVIII AS we haue alreadie manifested that Iustices of the Peace haue not a sufficient and thorowe powur of them selues to heare and determine all causes whereof they haue in their Sessions auctoritie to enquire So also be there sundry things determinable before them there which neuerthelesse may in some respectes be