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
Iustice of the peace Furthermore if the Iustices in Eire being of a higher power than Iustices of the Peace doe after proclamation ther of firste made come into any Countie and sit there by vertue of their auctorities then ceaseth the auctoritie of the Commissioners of the Peace by Mar. By the presence of a higher power And he thinketh so likewise if the kings bench bpoÌ„ proclamation therof made shoulde remoue into any Countie But aske of this for if it should be so then it may be some question also what is wrought by the comming of the Iustices of the Nisâ—prius into the Countrie who doe ordinarily bring Commission of Oyer Determiner and of Gaole deliuerie with them Lastly it Iustices of the Peace that haue a Commission has vice tantum do sit by vertue of their Commission do not Adiourne the same it séemeth that their Commission is determined therby Brokke Tit. Commission 11. By want of adjournement That al the autctoritie of the Iustices of the Peace is exercised eiy ther out of the Sessons or at or by reason of the Sessions of the Peace c. CAP. XV. HItherto I haue dilated that which lyeth in the first part of the Definition of the Iustices of peace I haue withal giuen you a Theoricque or Insight it s it were of their whole Office in the wing what it is when it began how it is endowed by what meanes it is maintained and after what fort it may be determined A summe of that which in saide But now for as much as all the power of the Iustices of the Peace is directed to that end whiche is disclosed in the latter parte of the same Definition namelye For the conseruation of the Peace for the execution of their Commission and of the Statutes committed to their charge it is méete that I enter into the Practicque of their Ofsice dutie shew you from pointe to point how the fame is to be done administred And for the more lightsome procéeding herein I will set swrth the power of the Iustices of the Peace by a Distribution thoughe not Essential yet such as may suffice to conueigh my whole meaning Whether therefore the Iustices of the Peace doe by vertue of the Commission or Statutes enquire or Heare and Determine by the may of Iâ—â—sdietion or else doc keep or cause to be kepte the Peace or doc punishe and execute by waye of Coertion And whether the same also be done by their Regular power or Absolute auctoritie It is always pradised and done either out of the Sessions of the Peace or else at or by reason of the Sessions of the Peace A partition of that which foloweth in both these bookes And that which is done out of the Sessions is either such as one Iustice alone maye doc or else it requireth the helpe I presence of other Iustices with him And therefore first of that whiche one Iustice alone maye doe out of the Sessions The summe of that whiche is hereafter conteinedin this fâ—â—st booke Of Suertie of the Peace and the Good Abearing and ofsundrie things incident vnto the lame And what one Iustice of Peace out of the Ses sions may do therin CHAP. XVI FDr as much as the Conseruation of the Peace standeth partlye in prouiding that it be not broken and partlye in punishing such as haue alreadie biolated and broke it and for that any one Iustice of the Peace is susticiently armed with audoritie out of the Sessopms to preuent the breache of the Peare both by taking Suertie for the kéeping of it and for the good behauiour also of offenders I thinke good first to shem what Suertie of the Peace is then to open howe it maye bée commaunded after that to declare how the same commaundement shall be executed I brought to effect fourthly to disclose what shal become of the Suerty when it is taken and lastly to describe the Suerty of the good behauiour or good Abearing I to conferre the handling therof with that of the Peace The partes of this Chapter The auntient Normans had a manner of Suertie of the Peare whiche they named Treues the same that we cal Truce I which they bsed to giue after this order He of whom it was demanded did in ope Court take hun by the hande that demaunded it I did withall solemnely sweare that neither he nor anye of his shoulde doe him harme But or Bouernours knowing that euill men be more restrayned by los se of goods than by conscience of an oath haue dsed to take sure bonds and that to the Prince for the securitie of such as be in feare And therefore I wil at this day cal Suertie of y peace An acknowledging of a bond tothe Prince taken by a Iudge of Recorde for the keeping of the Peace What suerty of the Peace is And it is called Suertie of is the word Securitas bicause the partie that was in seare is thereby the more quiet and secure This Suertie may a Iustice of the Peace commaunde either as a Minister when hée is willed to do it by a higher auctoritie or as a Iudge when he doth it of his owne power deriued from his Commission He doth it as a minister when the writte of Supplicauit which in old time was called breue de minis as appeareth by the Register directed out of the Chauncerie is deliuered into his hands for then he only is to direct his Precept to come pel the partie vpon that writ to find Suertie for the Peace Suertie of Peace taken vpon a Sutplicauit by a Iustice of the Peace Minister 21. H. 7.20 Fineux The forme of which Precept or warrant may be thus in English GEORGE MVLTON one of the Iustices of the Peace of out Soueraigne Lady the Queenes Maiestie within the Countie of Kent To the Shirife of the saide Shire the Conestables of the hundred of Wroteham the Borsholder of the Towne of Ightham and to al and singular the Queenes Maiesties Bailies and other ministers as wel within liberties as without in the said CouÌ„tie and to euery of them greeting Know ye that I haue receyued the commaundement of our sayde Soueraigne Ladye in these wordes reciting the whole Writte of Supplicauit which is not always of one forme bycause it is sometimes directed to all the Iustices of the Peace sometimes to them and the Shirife and sometimes to one Iustice alone or reciting onely the effecte of the Supplicautt thus Knowe yee that I haue receyued the commaundemente of oure sayde Soueraigne Ladie to compel A. B. of Ightham in the sayde Countie yeoman to finde sufficiente suerty for hir Maiesties Peace by hym to be kepte towards C. D. of the ssayde Towne of Ightham Taylor And therfore on the behalfe of our sayde soueraigne Ladye I commaunde and charge you ioyntly seuerally that immediately vpon the receipte here of you cause the saide A. B. to come before mee at Ightham
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
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
of him A wife may be Accessrie to a felonie with out hir hus band by recciuing Felons into the house the husbande not knowing of it or wayuing the house to soone as he knoweth of it 15. E. 2. Coron Fitzh 383. But the wife shal not be accompted Accessorie to the felonie of hir hus band by comforting him c. neither is she bounde to discouer him Britton F. 47. But now to reture to Baylement He which within the yeare is acquited of murder or manslaughter at the Queenes sute must be remitted to prison or let to Mainprise vntill the ende of the yeare and the partie grieued may in that meane time commence the Appeale 3. H. 7-ca I. Further mée thinketh that I may set downe this as a rule euen at the common law conerning Bailements That Iustices of the peace can not meddle with Bailement of any prisoner except he be prisoner for such cause as whereof the Iustices of the peace be competent Iudges Which also was the cause that one Iustice of the Peace by force of the Commission onely could not that haue bailed suspectes of Felonie before that they were indited thereof as I folde you For out of their Sessions and till inditement they toere no Iudges of the master And on the other side it sémeth that two Iustices of the peace the one of them being of the Quorum may out of the Sessions baile such as come into prison by the processe of the Sessions made vpon penall lawes not forbidding baile because they be competent Iudges of al those matters insomuch as two such Iustices may heare determine them Sundrie doubts I confesse may be made concerning the busiesse of Baile which I am not able to dissolue therefore am not much willing to moue Dnely this J will say for all that it becommeth Iustices of the Pear to be bery circumspect in graunting Baile both for feare of wrong by denying it to him that is rcple uisable and for feare of daunger to the seruice it selfe by giuing it where it is not grantable And therfore I adnise them to consider strst whether the power of Baile whe it is required be not take from them by some of these former satutes then whether that particular statute it selfe against which the prisoner is charged to offend Doe not spesally prohibite the same fbr you sall mé méete with many statutes which doe not only take baile froÌ„ the offenders against them wpon their solemne conuiction after Iudgemcnt but also vpon the Record of some one or Iustices of the Peace by exammaion proofe by witnesles or such other triall had before them for exaÌ„ple take a fewe of each kind seeing it would proue froublesom to rehearse the all 1. He that is conutcttctc before the Iustices of the Peace vpon the sfatut of Liuerices thall be committied to prison for one whole yeare without Baile or Mainprise 8. H. 6. C. 4. Liuerics 2. He that is coÌ„uicted before them for abusing a licence of transporting bictuall shall like wife be committcd by them and shal remaine there a whole yeare without Baile or Mainpnse 1. 2. Phil. Mar. ca. 5. Licence te transporte 3. He the is conuicted before them for offciding the sfatute made against forstalling c shall be committed to the gaole for two moneths without Baile or Mainprise 5. E. 5. c. 14. Forstalling 4. And be that is coÌ„uicted before them for offence against the statute of Mustcrs shal be awarded to eu romaine in pâ—ison without Baile or Mainprise till he haue paited the forfaiture 4. 5 phil Mar. ca. 3. Mustensâ— 1. Againe if any one Iustice of the Peace shal find or know any to baue exercised any bnlawful games he may coÌ„mit him without Baile or Mainprise till he will become bound no more to vse vnlalniful games 33 H. 8. ca. 9. Gamerâ— 2. â—o he that is conuicted before two Iustices of the peace to haue refused to srue for such wages as is by order appointed shal remaine in prison wout Baile or Mainprise till he wil be bouÌ„d to serue accor dingly 5. El. ca. 4. Seruaune 3. He that is committed by two Iustices of the Peace for kéeping a common Ale-house of his owne audoritie shal remaine in prison thrée daies without baile or mainprise 6. E. 6. ca. 25. Alehouse 4. And the reputed father or mother of a Bastard childe that will not perfourme the order set downe by two Iustices of the peace thereto auctorised shall be committed and shal remaine in prison without baile or main prise till he or she will be bound c. 18. El. c. 3. Bastarde Nów for an ende of Bailement I will shewe you one hiforme of a Baile and an other of a Liberate Memor andum qùod decimo die mensis Octobris Annoregni c. coram nobis G. M. W. L. duobus Iusticiariorum c. assignatorum venerunt A. B. C. D. de E. in dicte comitatu Yeomen ceperunt in balliù F. G. c. Laborer captum detentù in prisona pro suspicione Cuiusdam felonia éTC vsque ad proximam generalem Gaolae deliberationem in comittatu praedicto tenendam Et assump serunt super super se scilicet quilibet corum sub poena 20. lib. de bonis et catallis terries et tenementis coruÌ„ et curuslibet corums ad opus dictae D. Reginae Leuandarums si pradictus F. G. ad candem proximam Gaols deliberationem personaliter non comparebit coram Iusticiarijs dicta Dominae Reginae ad dictam Gaolam deliberandam assignatis adrespondendum dictâ— Domimae Reginae tunc ibidem de et super omnibus quaeilli obijcientur Datum sub sigillis nostris die et anno supradictis The Baile GEORGE M. and W. L. two of the Iustices of c. The Liberate To the keeper of her Maiesties prison in in Maydstone c. greeting Forasmuch as F. G. c Labourer hath before vs found sufficient mainerprise to appeare before the Iustices of Gaole deliverie at the next generall Gaole deliverie to be holden in the said Countie there to aunswere to such things as shal be then on the behalfe of our said Soueraigne Ladie obiected against him and namely to the felonious talking of to sheepe for the suspition whereof he was taken coÌ„mitted to your said Gaole we commaunde you on the behalfe of our said Soueraigne Ladie that if the said F. G doe remaine in your said Gaole for the said cause for none other then you forbeare to grieue or detaine him any longer but that you deliver him thence and suffer him to go at large and that vpon the paine that will fall thereon Yeouen at Ightham aforesaid vnder our Seales this tenth day of October c. The authoritie of some two Iustices of the Peace goeth yet further for the common manner is that two Iustices of the Peace the one of them being
seuerall Volume by it selfe or so marked in M. Rastals Abridgement that every man that will may easisly finde much good by it THE SECONDE BOOKE INTREAting of the Sessions of the Peace and of things incident therevnto THE PROHEME IT may peraduenture séeme that having alreadye stoode long in matters that were of the lesse importance and such as might be dispatched at home sine strepitu I will be now both long and tedious when I beginne with those of greater weight and which dos require the solemne Benche But as at the first I thought it téte to help most where most néde was I meane wherer one or two Iustices pressted with the necessitie of tyme and destitute of the assistaunce of their learned companions were to administer office alone So nowe knowing that at the Sessions of the Peace there be commonly many Iustices in number and amongest them sundrie so well instructed in lawe as in being too busic with that which belongeth thereto I shall as the saying is but sette a candle in the Sunne shine and rather bewray want in my selfe than bring helpe or light vnto them I purpose to runne ouer this residue more swiftly except it be in a fewe places where either the profite or necessitie or both of the matters them selues shall begge licence and pardon for me The description of the Sessions of the Peace CAP. I. AS a man that hath reseaed hurt in his bodie by a stroke wher of he bléedeth freshely will be contented for the present to admitte the helpe of any meane Leche or Surgeon comming next to hande for the staunâ—hing of his blood binding up of the wound and yet would more gladly have vsed the conference of diuers expert Surgeons for doing the same if the danger of the hurt would have graunted the time that will be lost in calling them together So also the common councell of this Realme finding that the bedie of it may be déepely wounded in some one member and perceiuing that some euills must be resisted at the verie first least otherwise they grow past helpe and ware incurable hath many times thought it good to committe to one or to a fewe Iustices of the Peace for that they be readie and at hande the sfopping of the blood as it were and first dressing of the wounde by repressing of force and other outrages that doe soudainly arise and hath yet neuerthelesse when as the tyme and matter will permit politikely established an assemblie and conference of all the Iustice at certaine tymeâ— in full Court and open Session And as it is true thatif the publiqus peace shoulde not be preserued by taking of Suertie before it be broken If suche as doe violate the commune tranquilitis shoulde not be committed to prison when they have broken it If seditious talebearers the sowers of Kebellion shoulde not bée snapt vppe and restreyned If finally riotous assemblies should not be dispersed and forcible inunasions withstoode and remoued the hurte bodie woulde bléede to deathe and too late and in baine woulde it bée to summone a session for remedie So when the bridele is once cast vpon the heade of the offender then and not before is the matter readis for the sitter And great and many are the profittes that woulde followe of these Sessions if they were often kept and duely ordered I will for this tyme call a Session of the Peace An assemblie of any two or moe Iustices of the Peace one of them being of the Quorum at a certaine daye and place within the limittes of their Commission appointed to enquire by a Iuric or otherwise to take knowledge and therevpon to proceedc to heare and determine according to their power of the matters within their Commission and Statutes referred to their charge The description of 2 Session of the peace And this Description excludeth all méetings that are onely for Enquirie in se much as to enquire and not to heare and determine is but a halfe doing and not worthye the name of a Session of the Peace It shutteth out also such assemblics as doe consist of two Iustices of the Peace méeting onely to enquire heare and determine of a Riotte by vertue of fhe Statute 13. H. 4. for that may they doe as also the former though neyther of them bée of the Quorum So that it is but a particular seruice layde vppon two Iustices and the Shirife by this Statute and the Record thereof shall not as I thinke remayne amongest the Recorder Of the Sessions Of the Peace as hath bene sayd already And therfore the assemblie that I meane is a méeting of such Iustices for the execution of their generall auctoritie and albeit that happily some one matter bée the motiue and thiefe cause of their comming togither yet if they deale with that and others witthin their Commission and charge let it on Gods name passe for a Session of the Peace according to my meaning These Sessions of the Peace then bés grounded chiefely vppon the wordes of the thirde Assignauimus in the Commission the which béeing duos vestrum quoruus aliqucm c. doe very necessarily require the presence of one of the Quorum for the wordes of the seconde Assignauimus doe give no power to heare and to determine but onely to make enquirie Which thrée thinges namely to Enquire Heare and Determine doe in effect comprehends whatatsoeuer belongeth to these Sessions So that euerie thinge whereof I shall hereafter intreate will concern eyther the Information of the Iustices by enquirie and other méete meane Dr the Hearing and tryall of the cause Dr the Iudgement and execution which is the determining given and done dponit A partition of that which followeth in this booke And therefore in this pathe God willing will I freade and by it you shall trars me to the ende VVho shall appoint the Sessions of the Peace and how and where CAP. II THe Iustices of the Peace doe at their Sessions take knowledge of causes with in their Iurisdiction eyther by the Dath Of lnquirours or by the presentment or declaration of other men And this Inquirie is firste prepared by the apparance of the Officers and Countrie by the Articles giuen in charge and then performed by the presentment or Jnditement of them that had the charge to make it The vsuall manner of calling the Officers and Countie togither for this feruice is by a Precepte to the Shirife wherein both the disposition of the Iustices is notified for the holding of a Session and feruice and attendaunce of those others is cornmaunded to bée thereat with them which they be wel warranted to directe vnto hun by the laste Assignauimus of theic Commmission and the Mandauimus that followeth thervpon The Forme thereof hath bene like this Thomas Randolphe Thomas Wotton duo Iusticiarierum Do. Reg. ad pacem in Comitaiu Kancia conseruandam necnon ad diuersa felonias transgrossiones alia malefacta in dicto Comitatu perpetrata audienda
terminanda assignatorum Vicecomiti eiusdem Comitatus Salutem Ex parte dictae Dominae Reginae tibi praecipimus quod non omittas propter aliquam libertatem in Balliua tua quin cam ingrediaris venire facias coram nobis vel socijs mostris Iusticiarijs pacis tali die c proximè futuro apud Maidstone in Comitatu pradicto 24. liberos legales homines de quolibet hundrede in Balliua tua tam infra libertates quà m extra ad faciendum exequendum tunc ibidem ea qua ex parte dictae Deminae Reginae eis iniungentur Scire facias etiam omnibus Coronatoribus Comitatus tui Seueschallis Constabularijs Subconstabularijs Balliuis infra Hundreda praedicta quod sint tumc ibi ad faciedum perimplendum ea qua ex parte Dicta Dominae Reginae eis tunc ibidem smiliter pracipientur Et tu ipse tunc sis ibidem ad faciendum exercendum ea quao ad officium tuum pertinent habeas ibi tunc nomina Iuratorum Cosronatorum Seneschallorum Constabularierum Balliuorum praedictorum hoc praceptum Precept to summon the Sessions Dat. fsub sigillis nostris apud Boughton Maleherbe in comitatu pradicto 16. die Octobris Annoregni dicta Domina nostre Reginoe Eliz. dei gratia c. 23. This precepte may bée made by any two Iustices of the Peace so that the one of them bée of the Quorum for two such may holde a Session of the Peace as it doth plainely appeare by the Commission and therefore as Maister Marrowe saith it sufficeth not to have it runne vnder the name of the Custos Rotulorum alone séeing that he hath no more auctoritie in this behalfe thaÌ„ one of his fellowes hath for the worus of the said MaÌ„dauimus in the Commission to the Shirife be Coram vobis sen aliquibus vostrum venire faciat tot tales c Ypa if two such Iustica make a precept for a Session of the Peace all their fellow Iustices can not discharge it by their Supersedeas but a Supersdeas out of the Chaunccrie wil discharge it sayth Fitzherberf And if one Iustice of the Peace alone woulde take vpon him to holde a Session of the Peace that was alreadie summoned by suche two Ius tices and wyll make the Stile of the Session in the names of hym slefe and the other Iustice all pre sentmentes so taken before him may bée auoided if the Sessions bée in trueth holden by two suel sufficient Iustices only and the Stile or Title thereof bée made in the names of thrée then al the presentments before them shall stand good For it will not helpe the partie to saie that one of fhe thrée was not there when it shall appeare that was of them the one being of the Quorum were present which will suffise Marr. Touching the time of holding the Session of the Peace I wil forbeare to speake till I shal come to divide the Sessions The time But the place of howing them is arbi trable and at the pleasure of the Iustices themselves so that it bée méete for accesse And although the precept doe appointe the Session to bée holden in some one Eowne by name yet may the Iusces kéepe it inany other Eowue and all the presentments shall bée good that shall bée taken where they holde it But no amerciament can bée fet vppon any man for his defaulte of apparanee there bicause he had no warning of it faith Marr. The place So if 〈◊〉 Iudices make a precept for a Session to bée holden in dwne Eowne and 〈◊〉 other Iustices shoulde make an other Precept for an other Session to bée holden at an other Towne or in an other parte of the same Towne the same daye then presentments taken before eyther of them shall bée good Marr. And then also it séemeth that he whiche serueth at the one Session as a Iuror or Officer shall bée excused for his defaulte at the other bycause they bée bothe the Queencs Courtes and of equall auctoritie And albeit that these Sessìons bée coÌ„monlie and most orderlie summoned by a Precept in writing yet is not altogither of necesstie to haue it so to make a lawfull Session for if 〈◊〉 such Iustices of the Peace doe gette men to serue and doe holde a Session without any Precepte before directed all Presentmentes made before them by twelue men shall bée of force in Lawe But there againe no man shal loose any thing for his default by cause none had notice of their sitting Marr. VVhat persons ought to appeare at these Sessions therin of the Custos Rotulorum the Recordes of the Sessions and the Clerke of the Peace and how the Iurors ought to bee qualified and ordred CAP. III. FOr the better preparation towards thys Enquirie let vs pervse the persons that are to attende and do seruice at the Sessions The Iustices of the Peace bée so necessarie as without theme though all others should appeare no Session can bée kept and yet if any of them be absent their fellow Iustices caÌ„not amerce the as the Iustices of Assise may do for their absence at the Gaoledeliuerie for Inter paresnoÌ„ est potestas and the auctoritie of all the Iustices of the peace at the Sessions is equall so that like power hath he which is not of the Quorum with him that is excepte it bée in speciall cases set foorthe in the Commission and Statutes And therfore it was holden 3. H. 7. Fitzh Tit. Iustice del Peace 3 that if One which is not of the Quorum wil bée so bolde as to rebuke one that is of the Quorum he his companions may not committe him to prison for it The Iuftices The Recognusors that stand bound to the kéeping of the Peace and to appeare at the Sesions and such like bée commonly tyed to the Quarter Sessions wherevnto I am not yet come And those prisoners that are sente by Iustices of the Peace for felonie or manslaughter or suspition therof or bée lette to Baile for Mainprise vpon any such offence be reserued till the Gaole deliuerie wherewith I have not to do The rest of that kinde and the Rogues c maye bée broughte foorth at euerie Sessions of the peace The Recognusors The Prisoners But two sortes of men there are that owe theyr Drdinarie attendaunce at these Sessions that is to say the Officers or Ministers of the Courte and the Iurors of the Countre Amongst the Officers the Custos Rotulorun hath worthily the firste place bothe for that hée is alwayes a Iustice of the Quorum in the commission and amongst them of the Quorum a manne for the moste parte especially piked out for wisedome countenance and credite And yet in this behalf hée beareth the person of an Officer and ought to attend for the words in the Commission bée to him by name Quod ad dies loca predicta brenia pracâ—pta
processus indictamenta praedicta coram vobis dictis sociâ—s venire faciatis The â— Rotulorum And as his berie name she weth he hath the custodie of the Rolles or Recordes of the Sessions of the Peace and whether the custodie of the Commission of the Peace it selfe doe perteine to him alone it hath bene made some question For M. Marrowe sayth that seeing the other Iustices maye holde a Session without him it is méete they shoulde then haue the Commission with them Who shall Keepe the Commission of the Peace But Chocke in the Booke 9. E. 4. 2. holdeth that a Iustics of the Peace in making any Iustification by vertue of his Dffice nédeth not to the we the Commifsion of the Peace because saith he the kéepyng thereof belongeth to the Custos Rotulorum and for the same cause also the Bailie of a Iustice of the Peace shall not bée driuen to she we the Commission as it séemeth 20. H. 7. 7. And truely since it is suche a thing as can remaine but in the handes of one at once it séemeth moste reasonable that hée which is put in truste with the reste of the Records should be credited with the custodie of the Commission also But vnder the name of the Recordes of Sessions of the Peace I do not comprehende all manner of recordes concerning the Peace but those onely whyche oughte to be at the Sessions of the peace as Billes Plaints Information Inditemets Presentments the Roolles of Processcs Trialles Iudgements and Executions and all other the Actes of the Sessions of the Peace them selues And furthermore the Peace good Abearing Recognusances concerning Felones and Alehouse képers and suche like as ought to be certified or brought to the Selssions of the Peace must bé numbered amongest the Recordes of the Sessions of the Peace For of all these there may be vse at the Sessions and therefore the Custos Rotulorum or some for him ought to bé readie to shew them The Recordes of the peace And although it were before time at the libertie of a Iustice of the Peace to certifie a Recognusaunce of the Peace to the Custos Rotulorum as you may see 2. H. 7. â— Yet now by the Statute 3. H. 7. cap. 1. he ought to certifie send or bring it to the nexte Sessions of the Peace that the partie may be called and to the ende also that his default if he make any may be recorded and by such record of his default he is concluded to say that he appeared there 13. E. 4. As for Precepts for Suertie of the Peace special Records for conuictions of forcible cntries Riots such like as he made out of the Sessions of the Peace by particular Iustices be to remaine with theselues not appointed to be certified thither I can not recken them in the number of the Recordes of the Sessions of the Peace no more than I can well doe the Inrolments of bargains and sales and such other Recordes lying in the charge of the Custos Rotâ—lorum or Clark of the Peace But M. Brooke Tit. Commission 11. addeth that the Records of the Iustices of the Gaole Deliuerie do remaine amongest the Records of the Peace also ho wheit I think he meant notit of all the Recordes of the Gaole deliuerie for as the Iustices of Gaole deliuerie haue their proper Clearke whiche maketh vp kéepeth the Records of things determined by that CoÌ„mission so the same Iustices being withal Iustices of Peare do leaue wyth the Clarke of the Peace Indiremets such causes of the Peace as be not determined but haÌ„g in mocesse to the end offendors may be more spéelig vily Iusticed And it appeareth 13. H. 4. 10. that Hanford Iustice of Gaole deliuerie at his departure called the Clarke of the Peace willed him to take the name of a prisoner that had bene sent thither for Felonie without any sufficient proofe to cause it to be inquired of at the next Sessions of the Peace The Office of the Custos Retulorum was of auntient time giuen by the discretion of the Lord Chauncelour vntil that aboute the latter and of the raigne of king H the 8. sundrie persons no lesse vnworthie to occupie the Office than gréedie to haue the place did by labour and friendship obtaine at that kings handes graunts of the same by his Letters Patents for terme of their liues by meanes whereof so many cuilles did shortly ensue both to the hindraunce of Iustice and to the disherison of the Kings subiects that the last Parliament of his raign viz. 37. H. 8. cap. 1. did somwhat restrain that course and though it did ordain that none should thencefoorth bee appointed custos Rotulorum in any Shire a fewe place of Priuiledge onelie excepted wythout a Bil signed with the Kings hande yet it tooke further order that the same Bill assigned shoulde bee but as a Warrant to the Lorde Chauncelour to assigne in the Commissions of the Peace the same person to be Custos Rotulorum only vntill the King should by an other Bill signed with his hande make appointment of another for the same Office The gifte of the Office of the Custos RotuloruÌ„ But neyther this ordinaunce had any long life for wythin a feme yeares after it was thought so preiudiciall to the power of the Lord Chauncelour and so troublesomea matter to sue to the King for bils so signed that by the Parliament 3. E. 6. ca. 1. the Lord Chauncelor was wholy restored to his auÌ„tient auctoritie in naming the Custos Rotulorum againe excepte in suche priuiledged places without expecting any such Bill and that the Custos appointed by the discreation of the Lord Chauncelour shoulde enioy the same Office to be occupied by himselfe or his sufficient Deputie in as ample maner as if that Statute 37. H. 8. cap. 1. had neuer bene made The Clearke of the Peace oweth his aftendance at these Sessions also for he rest deth the Inditements seâ—ueth the Court he enrolleth the Actes of the Sessions and braweth the Processe Clearke of the Peace He also must deliuer Letters to such as bée acquited of felonie and will begge for their fées 22. H. 8. cap. 12. He must record the burning of Roags thorow the eares 18. Eliz. ca. 3. and muste like wise record the Proclamations of Rates for seruants wages and inroll the discharge of Apprentices 5. Eliza. ca. 4. He is appointed to kéepe the counterpane of the Indenture of Armour 4. 5. Phil. Mar. cap. 2. He kéepeth the Register Booke of licences giuen to Badgers and Laders of corne 5. Eliz. cap. 12. and of those that are licenced to shoote in Gunnes 2. E. 6. cap. 14. And he is bounde vnder the paine of xl shillings to certifie into the Kings Bench transcripts of Inditements Vtlawries Attainders and Conuictions had before the Iustices of the Peace within the time limited by the Statute 34. H. 8. cap. 14. All
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.
1. E. 3. ca. 17 31. E. 3. ca. 14 1. E. 4. ca. 2 1. R. 3. ca. 4 And for this purpose the sayd Statute 1. E. 4. ca. 2. bindeth the Shirife to certifie to the Iustces of Peace at their next Scssions the Enditementes founde in hi Turne or Lawdaye It séemeth also by way of admitting in the Booke 27. H. 8. 2. that the like ought to be done of the Presentments of felonie in any Leete by vertue of the said Statute of 1. E. 4. ca. 2 But that is further to bée enquired of for I find no better Warrant for it This is certaine that Iustices of the Peace ought to receive Enditementes found in any Lectes or Lawdayes vpon the Statute made for the bréeding of horses to which end also the Courtholders of such Leetes are bound to certifie the same vnto them within the spare of forty dayes 32. H. 8. ca. 13. Iustices of the Peace have none auctoritis to receiue an Enditement of the killing of a man se defendendo sayth Stamf. 15. as he had heard say But enquire further thereof for though it be not felonie as appeareth by the Statute of Glo. c. 9. Yet be their other words in their Commission large enough to giue them power to heare and determine such an offence But they are not to receiue an Enditement of the killing of a Hart proclaimed for the Iurisdiction of it belongeth to the Iustices of the Forest 21. H. 7. 30. Fineux And as it séemeth they may reject an Enditement that findeth any matter of Recorde as Vtlawrie or such like unless it be shewed vnto the Iurours sub pede sigilli for Iurours are to finde matters in déede onely and not of Recorde 1. H. 7. 6 3. H. 7. 1. 10 And so if the Shirife will offer Enditementes of Liueries Rauishment of Women or of Felonies by Statutes or of such other causes whereof they haue no power to enquire in their Turnes the Iustices of the Peace ought to relect them 4. E. 4. 31 8. E. 4. 5 22. E. 4. 22 Stanford 87. Thus much for the better remembrance of our Iustice of the Peace I thougt to say of Enditementes the rather because it behoueth him to Iudge of them and for that they be the chiefe grounde worke whereupon the whole Triall is afterward to be built and framed Of the Presentementes and Informations of Officers and other men CAP. VI. HAuing shewed how these Iustices take knowledge by the labour of Iurours in Enquests it followeth to declare also howe they may have understanding by other men And that is to be done either by the presentment of persons publicque or by the information of priuate men In some cases therfore these Iustices may heare one an other for euerie Iustice of the Peace may vppon his proper knowledge make Presentment at the Sessions of any offence done against the Actes 2. 3. Phil. Mar. ca. 8 5. Eliza. ca. 13. concerning the amendment of the High wayes Presentmets of Iustices of peace and constables And in this such like cases his reaport hath the force of a Presentment of twelue men So that he and his fellowes may procée vpon it 21. H. 6. 5. Of like value is a Presentment made at the next Sessions by Searchers appoynted to examine the true making of Tile 17. E. 4. ca. 4. And of like strength also as I thinke is the presentment of the Constables concerning sundrie poinctes contayned in the Statute of Winchester 13. E. 1. This Court may also bée given to vnderstande by the meanes of priuate men and that eyther for the Queene onely or for the Queene and them selues or in some speciall causes for them selues without the Queene InformatioÌ„ by priuate men That which is for the benefite of the Queene or for hir and the partie is sometimes moued by the free offer of him that openeth the matter and sometimes wrought by commaundement of the Court. The frée motion of the partie is sometimes by word only which is properly but a Suggestion and sometimes by writing named a Bill plaint Complaint or Information all which be not alwaies of one force in this businesse Free Voluntarie information For albeit that we reade 1. E. 5. 6. that the Courte of Chauncerie will sometimes both take knowledge and also award Processe vpon an Information by word in the behalfe Of the Prince and that 39. H. 6. 41. also admitteth such a matter Yet I thinks that before Iustices of the Peace these suggestions and Informations both bée they by worde or writing are but of the force to stirre up the Iustices to recommende the cause to the Enquest and not to award any Processe vpon them unlesse it be in certaine causes where that validitie is specially giuen them by the Statutes as you shall hereafter perceiue There was once a time I confesse when Iustices of the Peace might haue awarded Processe vpon an Information for the King only of offences against any penall lawes euen as they may yet vpon Enditementes against the Peace But that lasted not long and therfore that course is holden now in speciall Statutes only Neuerthelesse at cuerie Sessions sayth Iudge Prisot 35. H. 6. 15. the Iustices of the Peace do vse to make Proclamation that if any will informe for the Prince he shall be hearde and thereupon any man may come in and may both informe the Iustices of the Peace and giue euidence to the Enquest without daunger of Conspiracie by the opinion of the Court in the last said booke And as that which ariseth vpon Presentment or Enditement is properly called the sute of the Queene So this Other whether it be by Bill plaint Complaint or Information is most aptly tearmed the sute of the partie at whose sute the Iustices Of the Peace may heare of the abuse of Innekeepers and Victuallers and of Extortions and Regratories and perhappes of higher offences also either for him selfe or for the Queene but of the other Articles in the Commission at the sute of the Queene only by the expresse forme of the words in the last Assignauâ—mus of the Comission of the Peace But therein among other some amendment if I be not deceiueb is to be desired if it be not ment the they shall hold plea of Appeales betwene party party which the Statute 8. H. 6. c. 10. séemeth also to allow unto them In other Statuts at large such rules are to be followed as they them selues do prescribe And in this Information the Statute of Additions 1. H. 5. ca. 5. séemeth vpon the bare words to haue no place for Informations be not mentioned in it and vpon that reason the Court 13. H. 7. 21. did holde it cleare that if Rescous bée retourned by the Shirife against certaine persons wtout their Addititions yet in the case they may well be Vtlawed vpon it The other compulsorie informatioÌ„ groweth by examination Of witnesses called into the Court and is
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
all things ought to bée giuen in Charge that doe lye within the auctoritie of these Iustices to bée determined These bée moreouer called the Quarter Sessions bicause they bée holden Quarterly or foure times in the yeare and the statute 4. H. 7. ca. 12. tearmed them principall Sessions for that in them chiefly the power of Iustices of the Peace doth shine and shewe it selfe in which respect some other Statuts doe giue them the name of open Sessions also But we shall not not néede to dwell vpon the names whereof there can bée no great controuersie séeing that they all doe ayme at one marke rather bicause these generall Sessions bée at this day diuersly summoned begonne and continued in diuers partes of the Realme it lyeth fitly in my way to make examination of that diuersitie in this doing For to beginne with the Summons the manner is in some Shires to summon yearly fix standing Sessions of the Peace in others 8. in others 12. or 16. in others otherwise How many Sessions All which is done chiefly vppon pretence to ease the Inhabitants of the Countie for whome it would other wise bée verie painfull to trauaile so often from all the partes of the Shire to any one place of the same And therefore such as doe maintaine 6. or 8. Sessions doe vse to Summon all the whole Shire to a couple of them and to the residue they call onely such partes of the Shire as they doe therefore specially appoint But yet so that vpon the reckoning eache corner of the Country giueth attendance at foure feuerall Sessions which also falleth out accordingly in those Shires where they haue â—2 or 16. Sessions for albeit that they do not at any one time summone the whole Shire to any one place as the others do yet diuiding their Shire into 3. or 4. partes and kéeping foure seuerall Sessions ineache of those partes they also as well as the other doe serue their whole countrie with foure sundrye Sittings And therefore in myne opinion although none of these doe followe the precise letter of the lawe which requireth but onely foure qnarter Sessions in any Shire yet euery of them draweth neare to the true meaning of the law which looketh for nothing els but that the Courte of these Sessions shoulde yearely bée foure tymes opened for the whole Countie But if there bée any that doe for this purpose diuide their Shire into halfes and doe holde onely foure Sessions in the yeare that is to say two in the one part and two in the other calling the one halfe of their Hundreds to those two Sessions at the one place and the other halfe to the other two Sessions holden at the other place These men as some haue thought do neither reteine the letter nor attaine the meaning of the lawe in this their doing For vpon the matter no part of their Shire hath any moe than two Sessions which manner who séeth not how much it may hinder Iustice And although that they will peraduenture séeke to salue it in saying that they doe call the Constales of the whole Shire to euerye of those Sessions yet they can not so escape for both reason it selfe and their owne experience herein doeth informe them that it is likelie they shall haue moe presentmets where moe persons that can present of their own knowledge be assembled and do take the charge vpon them Besids all which these men do not bring ease but trauel and delaie to their countriemen whom by this meane they compell either to go far out of one part into another to haue a fault punished or else to tarrie for help til a SessioÌ„ shal be kept in the part where they dwel Neither may I well omitte that this doing may bréede danger to the Iustices themselues whilest any of them hauing taken a Recognusaunce of a Tippler doth not Certifie it vntil the Sessions happen to be in hys owne part and in the meane season the nexte Session of the Peace within the thire chaunceth to be holden in the other part whereof what may follow the Statute 5. E. 6. ca. 25. wil tel you and teach them And like faulte is it though not like forfeite so to receiue a Recognusaunce taken for the Peace as you may sée by the Statute 3. H. 7. ca. 1. Thus much of the summonas or number of these Quarter Sessions The times of holding the Quatter Sessions Nowe followeth the time in which they ought to be holde at aboute the whiche also all Counties doe not agrée and therfore it shal be good before other things to peruse those Statuts which do either in déede or shewe concerne thys pointe The Statute 25. E. 3. ca. 8 ordained thus Item that the saide Iustices make their Sessions in all the Counties of Englande at the least foure times in the yeare viz. At The Annuntiation of our Lady Sainct Margaret Sainct Michael and Sainct Nicholas The Statute 36. E. 3. ca. 12. saith That the Commission of the Peace shall make mention that the Session shal be holden thus Within the vta of the Epiphanie Within the second wéeke of Lent Betwéene Pentecost and Midsomer Within the vtas of Sainct Michael The Statute 12. R. 2. ca. 10. doeth after warde set the matter at libertie saying They shall holde their Session in euerie quarter of the yeare at the least But they of Midlesex bée excepted by 14. H. 6. ca. 4. Lastly the Statute 2 H. 5. ca. 4. doth reduce the times to certaintie againe saying thus Ouer all the Realme the Sessions shall bee In the first wéeke after Sainct Michael The Epiphanie The clause of Easter The translatioÌ„ of Sainct Thomas the Martyre The first of these foure Statutes doeth in shewe and in commune opinion concerne Sessions of the Iustices of Peace but in trueth it belongeth not at all vnto them for it was made to direct the Iustices of Labourers in the times of holding theyr Sessions and they were not Commissioners of the Peace but speciall Iustices for the causes of Labourers alone not resiaunt in the Country but sent downe for the time of that seruice as it may expressely appeare not onelye by the preamble and all the partes of the saide Statute it selfe but also by the Statutes 28. Edward 3. cap. 5 31. Edward 3. cap. 6 34. Edward 3. cap. 11. during all whiche time also the Wardeins of the Peace wese neither called Iustices by anye Statute nor auctorized to deale with Labourers For in 34. Edward 3. cap. 1. they are called Wardeins and the firste name of Iustices of the Peace by anye Statute that I haue séene is founde 36. Edward 3. cap. 12. before mentioned where it is sayde thus In the Commissions of Iustices of the Peace and of Labourers expresse mention shall bee made that they shall holde theyr Sessions c. as before And as for the auctoritie ouer Labourers that was first appointed to Iustices of the Pcace by the Statute 42. Edward
vsing counterfaite Tokens or Letters maye bée called by Processe to the nexte generall Sessions and muste bée comuicted there 8. cap. 1. Counterfait tokens or Letters Iustices of the Peace maye in theyr open Quarter Sessions call beefore them the owner of a Wood and twelve of the Cōmoners there for setting out the fourth parte therof Wood 35. H. 8. cap. 17 13. Elizab. cap. 25. The proofe of the sufficientie or insufciencie of the cause for whiche the Maister may put away his seruaunt or te seruaunt may depart from his Maister before the end of the terme shall be made at the Quarter Sessions 5. Elizab. cap. 4. Maister and Seruaut The licences for Badgers Drouers c. areto be granted in the open Quarter Sessions 5. Eliz. cap. 12. and the prohibition of transporting Corne is to be made by the more part of the Iustices of Peace at their Quarter Sessions 13. Eli. ca. 13. Badgers Transport corne The licences that the poore of surcharged Cities or Lownes may begge are to bée given at the generall Sessions and he that is grieued with any taxation made vppon him for the pore may be eased there and the taxation for the reliese of the prisoners in Gaoles ought to be made there also poore Prisoners 14. El. cap. 5. The assigment of such as shall kéepe any Lauerne to vtter Wine ought by the Statute 7. E. 6. cap. 5. to be made at the general Sessions Tauerne A Beggers child may at the generall Sessions be bounde to serve any subiect of this Realure being of honest calling 14. Eli. ca. 5 18. El. cap. 3. Beggars childe The Dockets of Purueyours ought to be deliuered ouer to the Iustices of Peace at the next generall Sessions 2. 3. Phil. Ma. cap. 6. Purueiors The Acte of rebellious assemblies or the effecte thereof ought to be openly read at ewerie Quarter Session 1. Mar. Parl. 1. ca. 12 1. Elizab. cap. 17. Act reade And enquire whether the Proclamation set foorth 4. H. 7. cap. 12. bée not yet to be read at euery Quarter Session also for some doe thinke that it was to endure for the time of that King onelie Proclamation read These and some others which I omitte haue reference as you sée to any of the same generall Sessions for so many of the which as bée inquirable and ought therefore to bée giuen in charge I maye séeme eyther to haue committed a Tautologie in reporting the twice or which is worse to have written a Repugnancie in that I did firste deliuer them as common to all Sessions of the Peace and doe nowe here restraine them as proper to the generall The reason why some things be repeated But this is shortly the cause Some men bée of the opinion that these Statutes which be enquirable by expresse words at the Quarter Sessions onlie may neuerthelesse be enquired of at the speciall Sessions also And I haue hitherto doubted whether that be true in all cases or no for as the Iustices of Peace haue none other warrant to enquire of these matters but onely by those Statutes which doe appoint the enquirie to be made at the Quarter Sessions So as me thinketh they ought to pursue that warrant if they wil take vpō them to enquire and haue any care to haue their doings warranted And I thinke it bée no greate doubte but that as the Statutes do many times giue degrées of power somtimes in great measure and sometimes in lesse So also the same Statutes maye restraine the auctorifie of Enquirie to some ceetain Sessions especially to the Quarter Sessions in respecte that they be bothe more open more commonly known before hand and better furnished with Iustices and consequently the méeter for administration of Iustice specially in affaires of the waightier sort And therefore I hane in this parte laboured both to satisfie their opinion in the one and to serue mine owne phantasie in the other But nowe also let looke out some such things as bée lefte onelie to the Easter or Michaelmsse Sessions Easter Sessions The prices of vesselles for Sope Ale and Baere shall bée set and proclaimed by the Iustices of Peace at their Quarter Sessions after Easter 3. Elizab. cap. 9. Prices of Vessels The wages of Seruants and Labourers are to bée rated by the Iustices of Peace at their Easter Sessions or wythin sixe wéeks after Easter 5. Elizab. cap. 4. Wages of Seruants And they maste yearely in the same Sessions examine the perfourmaunce or not perfourmaunce of the Statute made for the poore Poore 14 Elizab. cap. 5. They must also in the same generall Sessions yearely take order for the prouision of storkes and store for the fetting of youth and ydle persons on worke and ought then also to appoint houses of correction for such as will not worke 18. Elizab. cap. 3. Worke and correction for ydle persons At the Quarter Sessions to be holden after Michaelmasse the Iustices of Peace are to appoint Searchers for Brasse and Pewter 19. H. 7. cap. 6 4 H. 8. cap. 7. Michaelmasse Sessions Brasse and Pewter Shirifes Bookes And at generall Sessions after Michaelmasse two Iustices of the Peace oughte to be appointed by the Custos Rotulorum or in his absence by the eldest of the Quorum for the ouerfight and controllment of the Shirifes Bookes c. 11. H. 7. cap. 15. Of the speciall Sessions of the Peace CAP. XX. The speciall Sessions of the Peace vo varie from the general in this chieflye that they bée holden at other times when it shall please the Iustices themselues or any two of them the one being of the Quorum to appoint them And this power they haue not only by the Commission where it saith Adcertos dies loca quos vos seu aliqus vestrum ad hoc prouideritis c. but also by the Statute 2. H. 5. cap. 4. which alloweth them to doe it More often than the 4. times if neede doe so require They be also for the moste parte summoned for some specill busnesse and not directd to the generall seruice of the Commission And yet there is no doubt but that all the Articles within the Commission of the Peace are bothe inquirable determinable at any speciall Session of the Peace M. Fitzh as I haue alreadie noted vseth a third difference betwéene the generall and speciall Sessions of the of the Peace affirming the whereas at the general Sessions the Iostices of Peace ought of duty to giue in charge al matters within the Commission or Statutes that are to be determined before the yet neuerthelesse at the speciall Sessions they are at libertie to giue charge eyther all or any of them as it shall séeme good vnto tyemselues What thinges ges be inquiuble at the spcciall Sessions of the Peace I will not gainesay but that the Iustices of Peace may at any speciall Session
himselfe by oath That he did it not of euil minde and that he knewe not how to do better which I speake not to comfort men in carelesse ignoraunce but to shew you that me may erre and that erring by infirmity they are not altogither vnworthie of pardon and withall to let the Iustices of Peace sée that it may be a fault to erre by ignorance and that therfore they ought to stay where they méet with noÌ„ liquet as their owne Commission doth direct them Now on the other side if a Iustice of the Peace will craftilye embesill an Enditemet or wilfully raze any part therof or malitiously enroll or file the for an Enditement which was neuer found by the Iurie Then by the resolution of al the Iustices assembled before the King in the Starre ChaÌ„ber 2. R. 3 a CoÌ„missioÌ„ may go out to enquire by the oathes of 12. men of such his misdemeanor and if he bée conuicted therof he deserueth to loose his office to make fine to the Queene according to the quantitie of his misprision offece ibid. Fo. 10. And euen so may he be punished as this booke leadeth me to thinke if he alter an Enditement of Trespas into an Enditement of felonie howsoeuer the opinioÌ„ 27. lib. Asl P 1. 18 be foound against it A Iustice of the Peace may also be endited of the vnlawful taking of mony for doing his office or of such other falsitie Fitz. Nat. Br. 243. And if he cause a man to be endited at the Sessions by former conspiracie or indirect practise he is punishable for it as a priuate man 21. E. 4. 67. But if in the handling of a cause at the open Sessions it happen him to speake against an offendor somewhat excessiuely yet he shal not be punished for it Iuris enim executio non habet iniuriaÌ„ Neuerthelesse Iudges oughte not to abuse their tongs by inteperance but they must rather take great héede as Cicero pro Font saide Quibus verbis vtantur ne quid minus moder atè prositum ne quid ab aliqua cupidstate prolap sum verbum esse videatur Thus farre of punishmets by the commune Law now to those by Statutes Punishmets by Statutes If the Iustices of Peace hauving taken a Recognusance for an Alehouse do not certifie it at the nexte quarter Sessions of the Peace they shal loose fiue markes Alehouse Fiue Marks 5. E. 6. ca. 25. That next Iustice of the Peace which doth not certifie at the next general Sessions of the Peace such presentmets as the ouerséers of the Highwayes haue before presented vnto him shall loose v. â—â— for euerie default Highwaics Fiue pound 2 3. Phil. Mar. ca. 8 5. El. ca. 13. If any Iustice of Peace not being sicke nor hauing other lawful excuse to be testified vnder the Oach of one assessed in the Subsidie booke at v. â—â— c. do not assemble at the Easter Sessions to rate the wages of seruaÌ„ts c. he shal loose x. â—â— to the Queene 5. El ca. 4. Seruaunts wages Ten pounds And if any Iustice of the peace so assebled shal depart thece before conferece had about the execution of this Acte for setting idle persons on worke he shal fofeit v. â—â— 18. El. ca. 3. Poore on worke Fiue pound The Iustice of the Peace which faileth to recorde at the next quarter Sessions the name of any person auctorized to shoote in a Gun the hath preseted his name vnto him shal loose xx â— 2. E. 6. ca. 14. Gunnes Twentie shillings If that Statute do so far extend wherof the words giue cause of doubt And if the Proclamation annexed to the Statute 4. H. 7. ought now to be read then if it be not read at each quarter Sessions euerie Iustice of the Peace there present shall loose xx â— 4. H. 7. ca. 12 Proclamation reade Twentie shillings If the Iustices of the Peace before whoÌ„ any presentmet shal be made at their quarter Sessions against any person for extolling the auctoritie of the see of Rome do not certifie the same into the Kings Bench within 40. days after if the Tearme be then open and if not then at the first day of the nextful Tearme they shal euerie of them loose E. â—â— for euerie default 5. El. ca. 1. Pope A hundreth poundes And those Iustices of the Peace which do not certifie into the Escheaquer their examinations taken concerning the entring of plaintes by the Shirifes shall loose xl â— 11. H. 7. ca. 15. Examinations Fortie shillings The Epilogve Thus haue I by the fauor of God brought this treatise to an end wherin if many things haue escaped me vnséene I doe not greatlye marueile when I looke backe and behold the varietie multitude of the matter that I haue passed thorough and it shall not be harde for him that méeteth with such Estrayes to take and lodge them in their right Titles here The Epilogue Againe if I shal be thought to haue heaped vp too many conceites borowed out of M. Marrowes reading I make aunsweare that I haue omitted many and haue made the best choice that I could If furthermore I shal séeme to those that be maisters in Arte Methode mot to have throughly obserued their rules and speciallye that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bycause I do manye times mingle aliena things not preciselye pertayning to my matter in hand To them I say that it is the receiued manner of teaching in out law To shew things by their contraâ—ies and disterents and séeing that great lighte commeth to the matter thereby I may neyther condemne it as vnapt nor reiect it as vnseruiceable Moreoure if I haue bene deceiued in laying downe ouerboldely mine own opinion I wil no lesse gladlye be admonished of it than readily reforme my mistakenings Finally whasoeuer other thing is done amisse I protest that it hath escaped of vnskill and not procéeded of wilfulness and therfore I desire that I may be allowed the benefite of the pardon which as I tolde you euen now is in like case grauntable to a Iustice of the Peace Finis A Table conteining verie neare all the imprinted Statutes bothe generall and particular wherewith Iustices of the Peace haue in any sorte to deale King Yeare Chap Content He the 3. 9 25 Of measures and weights  51  Thassise of Bread and Ale  51  The Iudgemet of the pillory  51  The ordinaunce for measuring  51  Of weights and measures Ed. the 1. 3 9 Of fresh suite after Felons   10 Of Coroners   15 Of Bailement of Felons   25 Against maintenaunce   26 That Shirifes and other Ministersshall take no rewardes   27 Of fees for deliuering chapiters   28 Of Maintenance of quarrels  13 34 Of rauishing women   47 Of taking Salmons   49 Against maintenance    The
Lord should be assigned in the Commission of the Peace 12. R. 2. ca. 10. Yet in the Parliament of the next year ca. 7. it was ordered that notwithstanding that clause of the former Statute Iustices of the Peace should then bee made of newe in all places of the most sufficient Knightes Esquires and men of law Againe Iustices of the Peace especiallye those of the Quorum from hencefoorthe shall be made of the most sufficient persons dwelling in the Countie without taking any others dwelling in forraine Counties except the Lords Iustices of both Benches Iustices of Assise the chiefe Baron the chiefe Stewards of the duchie of Lancaster the Seriants and the kings Attorney 2. H. 5. Parl. 2. ca. 1. Lastly for that contrarie to these former Statutes men of smal substaunce had crept into the Commission whose pouertie made them both couetous contemptible a newe law was published to this effect following None shal be assigned Iustice of the Peace if he haue not landes or tenementes to the value of twentie pounds by the yeare And if any be otherwise appointed he shal within a moneth after notice of the Commission and vnder the paine of twentie pounds and to be put out of the Commission giue knowledge of his not hauing such lands or tenements to the Lord Chauncelour who shall put an other person sufficiente in his place And the like paine is if he sit or make warrant or anye precepte by force of the Commission But this extendeth not to Cities Boroughes or Townes that be CouÌ„ties of themselues or that haue Iustices of Peace dwelling in them by Commission or graunt of the king Nor to such Counties where there be not men sufficient hauing landes or tenements to the value aforesaid learned in the lawe and of good gouernaunce naunce for then other discrete persons learned in the Lawe maye by the Lorde Chauncelour bee putte in the Commission 18. H. 6. ca. 11. Now although this portion of twentie pounds a yeare be not at this day in account aunswerable to the charge and countenance fitte for a Iustice of the Peace yet who knoweth not that at the making of this Lawe it was farre otherwise And I do not doubt but as the rate of all things is greatlye risen since that time so is there also good care taken that none he nowe placed in the Commission whose liuinges be not increased according to the same proportion And thus our Parliaments entending to make the Iustice of peace an able Iudge doe require that he come furnished with thrée of the principall ornamentes of a Iudge that is to saye with Iustice Wisedome and Fortitude for to that summe the words Good Learned Valiant do wel amounte And aboue all that he loue feare God aright without whiche he can not bée â—â—ounted Good at all How manie Commisioners of the Peace there ought to be in each Countie CAP. VII THE number of the Wardeins of the peace was not limitted untill that the Statute 18. E. 3. ca. 2. ordenined that there shuld be two or thrée in each Countie And bycause it was founde within a few years experience that this number suffised not for the gouernaunce of the Countrie therefore by an Acte made 34. E. 3. ca. 1. it was further prouided that in euerie Shire one Lorde and with him thrée or foure of the Best in the Countie and some learned in the Lawes shoulde be assigned for kéeping of the Peace and to restraine offendors In execution of whiche Statute there was amongst many other one Commission for Kent awared 35. E. 3. to Robert Herle Iohn Cobham Roger Northwood Ralph Ireningham Thomas Lodelowe Robert bert Vintar Iohn Barry and Thomas Hartrege But as it falleth out many times that euill examples doe followe of good lawes So here it came to passe that whilest the Parliament prouided an increase of Officers to restraine offendors ambition so multiplied the number of those Iustices that it was after warde high time to make a contrarie lawe to diminish them And therefore by the Statutes 12. R. 2. ca. 10. and 14. R. 2. ca. II. it was prohibited that there should not bée any moe than sire Iustices of the Peace in any Commission besides the two Iustices of Assise and certaine Lordes that were assigned in the Parliament itselfe And for the better restrainte of the increase of them in time to come it was also then further enacted that no Assotiation shoulde bée made to the Iustices of Peace after their firste Commission 12. R. 2. Ca. 10. Which lawe although it bée not abrogated till this day yet it was loÌ„g since cluded by making of newe Commissions that had more new Iustices thrust in to them And truelie it séemeth to me that togither with the like ambitious desire of bearing rule in some the growing number of the Statute lawes committed from time to time to the charge of the Iustices of the Peace hath bene the cause that they also are nowe againe increased to the ouerflowing of each Shire at this day Verie many Iustices of Peace at this day For if Hussey the chiefe Iustice 1. H. 7. 3 thought that it was ynough to loade all the Iustices of the Peace of those dayes wyth the execution onelie of the Statutes of Winchester Westminster for Robberies and Felonies the Statute of Forcible entries the Statutes of Labourers Vagaboundes Liueries Maintenaunce Embracerie and Shirifes Then how many Iustices thinke you many now suffise without breaking theyr backes to beare so manie not loades but Stacks of Statutes that haue since that time bene laide vppon them To dispute whether it be better to haue manye or few Iustices of the Peace in each Shire if all putte in were able for the place is a noble question worthie of a higher consideration and therefore it becommeth not mée to enter into it Iustices of Peace be ouerladen with Statutes The forme of the Commission of the Peace CHAP. VIII For as much as al the auctoritie and power of the Commissioners of the Peace floweth out of theyr Commission and the Statutes as it were out of two Principall springs or fountaines it is nowe time to vnfolde the Commission it selfe and to sée what is contained in it Two fountaines of the power of Iustices of the Peace ELizabetha Deigratia Angliae Franciae Hiberniae Reginae fidei defensor c. Praedilecto fideli Edmundo Cantuar. The saluâ—â—tion Archiepiscopo c. Necnon praedilectis Thomae Bromley militi domino CaÌ„cellario Willihelmo domino Burghley Thesauriario c. saluté SCIATIS quòd assignauim'vos coniuÌ„ctim et diuisim adpacem nostraÌ„ ac ad Statuta ordinationes apud Winton Northampton Westmonasterium pro oonseruatioâ—e pacis ciusdem Necnon ad ordinationes ibidâ— apud Cantabrigiam de venatoribuu operarys artificibus seruitoribus hostellarys mendicantiê° vegabundis alys hominiê° mendicaÌ„tiê° qui se nominant Trauailing men Et similiter ad Statuta ordinationes
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
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
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
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
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
Recognusance it selfe according as he now ought to doe by the Statute 3. H. 7. ca. 1. And this may be gathered vpon the opinion 2. H. 7.1 and maye bée séene by this form of it here vnder written GEORGE MVLTON one of the Iustices of the Peace of our Soueraigne Lady the Queenes Majestie within the Countie of Kent To the Shirife Bailifes Conestables Borsholders Ministers and other the Faithfull subiectes of our said Soueraigne Ladie within the saide Countie and to euerie of them sendeth greeting For as much as A. B. of c. The forme of a Supersedeas by a Iustice of the Peace Yeoman hath personally come before me at Ightham c. and hath found sufficient suertie that is to say C. D. E. F. c. Yeomen either of the which hath vndertaken for the said A. B vnder the paine of xx lb and he the said A. B. hath vndertaken for himselfe vnder the peine of xl lb that he the saide A. B. shall well and truely keepe the Peace towards our said soueraigne Ladie all hir liege people and specially towardes G. H. c. Yeoman also that he shal personally apeare before the Iustices of the Peace of our said soueraign Ladie within the said Countie at the next general Sessions of the Peace to be holden at M. there Therefore on the behalfe of our said soueraigne Ladie I commaund you euerie of you that yee vtterly forbeare and surcease to arrest take imprison or otherwise by any meanes for the said occasion to molest the saide A. B. And that if you haue for the said occasion for none other take or imprisoned him that then you do cause him to bee deliuered and set at libertie without further delaye Yeouen at Ighthā aforesaid vnder my seale this last day of Iuly in the xxiij yeare c. Which also may bée in the name of the Prince and vnder the Teste of the Iustice of the Peace thus ELIZABETH by the grace of God c. To the Shirife c. greeting For as much as A. B. hath come before G. Multon one of our Iustices of peace within our said Coūtie and hath found c. We therefore commaunde you and euerie of you that ye forbeare c. Witnesse the said G. M. at Ighthā aforesaid c. Thus muche of the Supersedeas issuing from a Iustice of the Peace the which ought to with-holde and stay the procéeding of his fellowe Iustices in the saide cause in so muche that if anye Officer by any of their Warrants hauing this Supersedea deliuered to him wil neuerthelesse vrge the partie to finde new Suerty for the peace he may refuse to giue it and if he be committed to prison for suche his refusall he maye as I thinke haue his action of False Imprisonmente againste the Officer vppon the same Much more then will a Supersedeas that commeth out of the Chauncerie or Kings Benche or from anye Iustice of the Kings Bench discharge such a Precept for the Peace awarded from any Iustice of the Peace Supersedeas out of an higher court And therefore if the Iustice of the Peace to whō such a Supersedeas shal be deliuered wil not thervpon surcease an Attachment may be awarded against him for his comtempt and he may be imprisoned and fined for it It is good counsell therefore that M. Fitz in hys Nat. Br. Fo. 238 giueth where he willeth the Iustices of the Peace after such a Supersedeas receiued to forbeare to make anye Warrant to arrest the partie it they haue awarded it then to make their owne Supersedeas to the Shirife and other Officers therby commaunding them to surcease to execute it This impediment of Supersedeas lying after this sort as you haue séene in the waye to the Iustice of the Peace thus passed ouer let vs nowe suppose the partie serued with the precepte to come before some Iustice of the Peace and let vs enter into the taking of the Recognusance of him for that is one part of the execution of the Warrant for the Peace and may doe seruice whether the partie come to him that made the Precept or to any other The taking of the Recognusance for the Peace If the Iustice of the Peace deale in thys matter as a Iudge and by vertue of the Commission then the number of the Suerties the summe of their bonde their sufficientie in goods or landes the time how long he shall be bounde and some other such circumstances are referred wholie to his own consideration and if he be deceiued in the abilitie of the Suerties hée maye compell the parties to put in others Marrow The Commune manner is to take two Suerties desides the partie himselfe and good reason it is that those shuld be such as haue their names registred in the Booke of Subsidie for albeit that here and there some maye be sufficient that were not assessed to the Queene yet it standeth not well togither that hée shoulde become bounde to the Prince in tenne or twentie poundes that was not in the Subsidie found worth any thing at all But if he commmaunde the Peace as a Minister in execution of the Writts of Supplicauit then he must behaue himselfe as the Writte it selfe directeth him and that hath not bene alwayes after one manner for some forme commaundeth him to take sufficiente Manucaptors in any peine or sum to bée reasonably set by himselfe so that hée will bée aunswerable for it at his owne perill and some willeth him to take sufficient Suertie in a summe certainelye prescribed vnto him as a hundred poundes in all or euerie of them in twentie pounds as it may bée séene at large in the Register of Writtes Fo. 89. A Iustice of the Peace saith Maister Marrow maye take this Suertie by a Gage or Pledge which shall not be forfaited therby but paunded onely that the partie shall vnder a certaine peine kéepe the Peace whiche peine he shall forfaite it he breake the Peace And by his opinion a Iustice of the Peace may also take this Suertie by an obligation made to himselfe by the name of Iustice of the Peace For so shall it bée saith hée advsum Domini Regis But if it were made vnto him without his name of Iustice of the Peace that then it coulde not bée to the vse of the King vnlesse it had the words advsum Domini Regis Maister Fitzharbert on the other side in his Nat. Bre. Fo. 81. holdeth that suche an Obligation taken to the King by a Iustice of the Peace is nothing worth for a man can not bée bounde to the Prince sayeth he but onelye by matter of Recorde vnlesse he will afterwarde come into a Courte of Recorde and cònfesse it to bée his déede pray that it may bée Enrolled there But the new Statute 33. H. 8. ca. 39 hathe made a plaine law in these cases willeth that all Obligations and Specialities made for any cause touching the
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
their Sessions to aunsweare to their contempts yet I am not persuaded that the like maye be done against the offendors of other Statutes vnlesse it be specially therein so appointed no more than it might haue bene done in that case of Labourers it selfe had not the Statute of Labourers 25. E. 3. ca. 6. expresly commaunded it And I doubt not but they of the last Parliament were also of this minde with me For if they had thought it generally lawful so to doe they woulde not haue so specially prouided for it as you shall anone sée in the notes of the Statutes 23. Eliza. againste Slaunderous newes and against the taking of Pheasants and Partriges And surely much harme followeth of it for it falleth out moste commonly in experience that those Iustices whiche be moste busie to take such bondes bée no lesse readie to release them and so playing faste and loose they kéepe as it were priuie Sessions wythin their own houses in which both the Queene looseth hir Fine and the common wealth an example and if the offendor loose also then that belike falleth to the share of him that worketh the deliuerance And therefore it were better as I wéene that such offendors were first Endited and then that Processe were orderly awarded against them vntill that eyther they yéelded themselues or were taken or outlawed There is an other thing also whereof I thought méete to admonishe the Iustices of Peace in this place Many of them doe vse to giue out their Precepts to attach persons suspected of Felonie to haue them brought before them which thing is neyther newly deuised nor done without colour for they haue such a Precedent in the olde Booke of Iustices of the Peace Fol. 41. and there is no doubt but that if a Felonie bée done euery man may arrest whomsoeuer he suspecteth of it But for all that the whole Courte 14. H 8. 18. condemneth such Precepts because if the Baihâ—e which serueth the Warrant haue suspition in the partie he may of himselfe without the Warrant arreste him and if he haue not the Warrant of the Iustice of Peace is no warrant to arrest him vnlesse he be endited before VVhat other things one Iustice of the Peace may do out of the Sessions by the power of other Statutes not mentioned in the Commission CHAP. XXI SEing the whole power of one Iustice of the Peace as wel in the very businesse of the Peace it selfe as in the execution of some Statutes mentioned in the CoÌ„mission hath now at length bene rehearsed Any one Iustice of the Peace It is coÌ„uenient to summe vp such other partes of power also as other Statutes haue putte into his hands which done we wil no longer treate of one Iustice alone but wil associate some other vnto him Euerie Iustice of the Peace is a Conseruatór of Riuers wythin his Countie and when he may attende it oughte to suruey the Weares in Riuers that they be of reasonable widenesse and shall suruey the offences of taking Salmons in any Waters out of the Countie of Lancaster betwéene the Natituitie of the Virgine Marie and S. Martins day and there betwéene the feasts of S. Michaell the Purification of the said Virgine and taking yong Salmons at Myll Pooles or other places from the middest of Aprill till midsommer and of casting Nettes into any Waters by whych the fry of any fish may be taken and punish the same by burning of their Nets and engins Conseruator of Riuers Westminst 2. ca. 47 13 R. 2. ca. 19. 17. R. 2. ca. 9. One Iustice of the Peace may take vpon him to heare and order the controuersies betwéene Maisters and seruants touching their departure may alow of the reason sufficience of the cause for which a Master may put away his reteyned seruant or the seruant may departe before the ende of hys terme and may in Day time or Daruest vpon request and for the sauing of Corne graine or hay cause suche Artificers and persons as be méete to labour by his discretion to serue by the day for the getting cutting inning or carying therof according to the skil and qualitie of the person may vppon his refusall imprison him in the Stockes by the space of two dayes and one night Appretices seruants and laboures And his testimoniall vnder his hand and seale to such as may passe in Day and haruest time from one Shire to another is sufficient And he also vpoÌ„ complaint made may commit that partie to warde that in his iudgement shall bée thought méete and yet shall refuse to be bound as an Apprentice according to the intent of the Statute there to remaine vntill he bée contented so to be bound And also may by his discretion vpon the complaint of the Apprentice take order betwéene his Maister and hym and for want of conformity in the Maister may binde him to appeare at the next Sessions before the Iustices 5. Eliz. ca. 4. If any such person as is declared to bée a Roage Vagabonde or sturdy Beggar by the Statute 14. Eliz. ca. 5. being aboue the age of fourtéene yeares shall bée taken begging or wandring or missusing hymselfe contrary to that Acte and be brought before a Iustice of the Peace he is presently to committe him to the common Gaole or to such other place as shall be by the Iustices of the Peace or thrée of them at their generall Sessions appointed therfore to remaine there without bayle or mainprise till the next Session of Peace or generall Gaole deliuerie whiche shall firste happen Roages and vagabonds And the Register booke of the Pore within each diuision of the Iustices of Peace is to remaine with one of the Iustices of that diuision poor people And eyther of those two Iustices before whom the Collectours for the poore are appointed to make their accompt may commit him that shall refuse or neglect to make his accompt by the space of 14. dayes after request to him thereof made to the next Gaole there to remaine wythout baile or mainprise til he hath made it and payed the surplussage of his receit 14. Eliza. ca. 5. Learne if the Register Booke is to haue continuance still Vpon information to anye Iustice of Peace of any vnlawfull hunting by night or with painted faces or other disguising in Forrest Parke or Warrein of anye person to bée suspected thereof that Iustice may make a Warrant to the Shirife Constable Baylife or other Officer to take the partie and to haue him before him or any other Iustice of the Peace in that CouÌ„tie who may examine him of that hunting and of the doers in that behalfe and if he do wilfully conceale that hunting or any person with him defectiue therein then the same concealement shal be Felonie in such concealour but if he confesse the truth of all that he shall be examined in that behalfe then his offence of Hunting shall bée but Trcspasse and Finable at the nexte
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
him that office he is to forfeit for euery such refusall fortie fhillings and thereof those Iustices are appointed to haue the one halfe by the Statute 3. E. 6. ca. 2. Ouerseers of Cloth Those two Iustices of Peace also hert adjoyning to whome any Cloth faultie against the statutes shall be presented may cut the same into thrée equall peeces and shall haue to them selues the one of the same by the Ad 5. E. 6. ca. 6 4. E. 5 Phil. Mar. ca. 5. Faulty cloth And euery Iustice of the Peace is allowed to retaine to his owne bse the one moitie of all straungers goods calling them selucs Egiptians that he shall lawfully seise by ver fue of the Statute 22 H. 8. ca. 10. Egiptians The Iustice or Iustices of the Peace that doe ioyne with Clerke of the Peace in taking Conusance of an Indenture of bargaine sale of land to be Inrolled shall haue ry â— therfore if the land excéede not in value â—l â— by the yeare and y. â— vj. â— if it do excéd that value by the Statute 27. H. 8. ca. 16. Inrolloment of bargaune and sale The Queenes highnesse shall beare the costes that the Iustices of Peace shall sustain in the cxecution of the Statute of Riots â— made 13. H. 4. ca. 7 by 2. H. 5. cap. 8. Riot And the Iustices of the Peace shal make executioÌ„ of â— Statute of forcible Cntries at the costs charges of the party gréeued 3 H. 6 ca. 9 Forcible lourd And twelue pence is giuen to the two Iustices of Peace for euery Recognusaunce taking of him that is allowed to képe a common Alehouse by Statute 5. E. 6. ca. 25. Alchouse On the other side also the Statutes doe nowe and then correcte the dulnesse of these Iustices with some strokes of the rodde or spurre Punishmét And therefore euen at the â—rst it was ordayned that if the Wardeins of the Peace did not look vnto the execution of the Statute vpon such as should ride or go armed in any place putting the Country in feare then the Iustices assigned by the king should enquire of their defaulte and punishe them Star North. 2. E. 3. cap. 3 Ride armed And the Statute of Riots c. 13. H. 4. c. 7 layeth C. it forfeiture vpon those Justices of Peace that shal dwell nighest to the Riot c. if thay doe not put that Statute in execution Riots And those Iustices of the Peace and Shirife or Vndershirife which in sending their Certificat to the Queen hir counsel concerning such a Riot do not with all certifie the names of the mainteinors embraceors in that behalf with their misdemeanors that they knowe shall euerie of them forfeite twentie pounds bnlesse they haue reasonable excuse for not certifying the same 19. H. 7. ca. 13. Certificat That Iustice of the Peace whyche seiseth the goodes of any Egyptians and doth not incontinently restore such part thereof as shall be proued before hym to haue bene craftily or felonioufly taken shall forfeite the double thereof to such prouer 22 H. 8. cap. 10. Egyptians That Iustice of Peace which doth not vpon request made giue attendance vpon the Queencs Lieutenante of the Shire for the suppreffion of anye Rebellion or vnlawfull assmblie shal suffer a yeres imprisonment vnlesse there be cause of reasonable excuse 1. Mar. Parl. 1. cap. 12 1. Elizab. cap. 17. Rebellious assemblie If any Iustice of Peace shall be proued to be in dcfault about thc execution of the Act of the Poore by two sufficient witreffes béefore the Iustices of Assise at their nexte generall Gaole deliuerie he shal loose o. tt 14. Eli. cap. 5 Poorch That next Iustice of Peace which faileth in presenting the name of him that preseteth it to him according to the Statute of shooting in Crosbowes or Gunncs shall forfaite â— shillings 2. E. 6. ca. 14. Gunnes and Crosbowes But enquire of the continuance of this as before in the 21. Chapter That Iustice of Peace whyche doeth not wythin fouretéene dayes after matter vttâ— red to hym concerning any Agneus Dei c. signifie the same to some one of the Queenes priuie Counsell shall incurre the paines of the Acte 16. R. 2 of Premunire 13. Eli. ca. 2. Agnils Dei. That Iustice of the Peace whyche hauing taken any examination concerning Plaintes in the Shirifes Courte doeth not Certifie the same into the Escheaquer within one quarter of a yeare after shall loose fortie sillings for his default 11. H. 7 qa 15. Certifie in to the Escheaquer Those Iustices of the Peace which do grant any Baile contrarie to the Law or do not cer tifie the Baile examination of the Felonie according to these Statutes shall paye suche Fine as the Iustices of Gaole deliueris shall thinke méete 1. 2. Phil. Mar. cap 13 2. 3. Phil. Mar. ca. 10. Baile and scrisie Euerie Iustice of Peace the dwelling with in 7. miles London doth not vpon request assist the Colledge of Phisitions of London in the execution of the Statute 32. H. 8. ca. 8 shall bée punished as one that runnth in contept of the Queene 1. Mar. ca. 9. Phisition And how that Iustice of the Peace shal be punished that shal take vpon him the office not hauing twentie pounds in lands it hath lands bene shewed alreadie ca. 6. Not. XX. pounds in lands THE EPILOGVE THVS muche so shortly as I coulde I thought fit to say concerning the audoritie of Iustices of the Peace without the Sessions wherin J haue rather sought to admonish them by a sleight view and rehearsall of the most parte what things they haue to handle than laboured to accomplishe them with ful skill how to administer execute them all The Epilogue Neither doeth that knowledge lye in my power but in but in their owne diligence muste therefore bée woonne by a continuall studie and painfull meditation of the Statutes at large towardes their helpe and furtherance wherein J haue entreated a godly and learned Gentleman M. Iohn Tyndall a friende and fellow of mine in Lincolnes Inne to take the paines to cull out all those Statutes by them selues which are now in force and wherewithall Iustices of the Peace haue to deale not altogither beheading the of their preambles For any whit curfailing the the of their words For other wise dismembring them or scattering their partes in sunder But laying foorth bodies of them whole and at large vnder their proper Titles togither with the material parts of al their preambles and not without any of their prouisoes Eherewithal amending the corruptions of the English translation out of yelatine french And finally adding vnto the where néede shall be some notes of helpful directioÌ„ which things no maÌ„ that I know hath hitherto assayed And this shal shortly I trust come to light either in a
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
or bicause of Enditement in trespasse and not beyng in for any condemnation execution vtlawrie excommunication suertie of the Peace or commaundement of any Iustice or for beyng a vagabound Or haue taken any Obligation by colour of his office but onely to him seife vpon the name of his office and vpon condition onely to appeare according to the Writte or Warrant Or haue taken for an arrest aboue twentie pence Or if he or any other minister haue taken any thing for making of any Returne or Pannell or aboue foure pence for the copie of a Pannell aboue foure pence for the saide Obligation or for any warrant or precept Or anie Baily aboue foure pence for making any arrest or the Gaoler aboue foure pence vppon the committing to his warde of any person arrested or attached 23. H. 6. ca. 10. If any Shitife or other his minister haue arrested or imprisoned or caused any fine or raunsome or amerciament to ' bee leauied of any person by reason of any priditment or presentment made in the Shirifes turne or lauway witout processe from the Iustices of peace for the same first obtained Dr haue not brought in such enditmets and presentments to the Iustices of the Peace at their next Sessions Shirifes arresting or leauying fine for Enditements in his turne 1. E. 4. ca. 2. If any Shirife or any his ministers haue entered into his booke any plaintes in any mans name not being present in the Court either in his owne person or by sufficient and honest Attourney or Deputie Fr haue entred anye moe plaintes than the plaintise supposeth that he hath cause of action for or haue leaused the Shire amerciaments without booke endensed betwene them and two Iustices of the Peace Dr if the Baylie of the Hundred haue made default in warning or executing any warrant against any Desendant in the Shirifes Court Shirifes entring of plaintes and leauying amercements Bailie seruing warrant 11. H. 7. ca. 15. If any Shirife or his minister haue leauied any the debtes of the â—uéene without shewing to the parties the Cstreates of the same vnder the Seale of the Creates Shirifes must shew the Estreats vnder the Eschequer seale 42. E. 3 ca. 9. If any Shirife or Gaoler have denied to receaue felons by the deliuerie of any Cons tables or towneshippes or haue taken any thing for receiuing of such Shirife and Gaoler 4. E. 3. Ca. 10. In liberties the Baylifes Stewards and other ministers there haue like fées and punis hmentes for extortion as Shirifes and their minister haue out of liberites 27. H. 8. cap. 24. Fees in liberties If any Corner haue refused to doe his office vpon the views of a beade body by misadventure without taking any fée therefore Coroner â— H. 8. ca. 7. or haue taken vpon the view of the bodie of a man flayne or murdered aboue thirtéene shillings foure pence of the goods of the flaier or murderer if he had goods or otherwise of the towne where he was flaine in the day time and was suffered to escape 3. H. 7. ca. 1. If any Didinary or his Scribe or Register haue taken moe or greater fées for the probate of a Testament or for Letters of administration than he ought to take that is to say fire pence for the Scribe for writing the probate of a Testamente that shall be brought written in parchment and likewise fire pence for the Administration where the goods of the Testator or Intestate be not aboue fiue poundes Ordinary If the goods be avoue fius pounds and not aboue fortie poundes then two shillings fire pence for the Drbinarie â— twelue pence for the Scribe If they excéede fortie pouds then two thillings fire pence for the Drdinarie and two shillings fixe pence to the Scribe or else one penny for euery ten lines at ten inches length at the Scribes election the like shall be giuen for euerie copie of a Testament or Inuentarie or else after the rate of lines as before 21. H. 8. ca. 5. If the Drdinarie haue cited any man to beare witnesse in the Spirituall Court Dr haue exacted any Dth in any cause other than Testamentarie or Matrimoniall If any Parson Vicar or Curate haue taken aboue iiâ— pence for entring in the Church booke the licence of a sicke peron to eate sleth vpon the Wednesdayes 5. Elizab. ca. 5 Dr aboue two pence for registring of a Testime niall of any seruaunt departing from one place to an other Parson Vicar Curate 5. Elizab. ca 4. Quaere If the taking of Mortuaries or corps pres ets against the Stature 25. H. 8. C. 6. be extortioÌ„ or no. If the Clearke of the Peace haue taken aboue twelue pence for the inrolling of the bargaine and sale of any lande not excéeding fortie shillings by the yere or aboue two shillings fire pence if the lande excéede that value by the yeare 27. H. 8. ca. 16. Clearke of the Peace Dr if the Clearke of the Peace haue taken aboue two shillings in all for any licence and Recognusance of a Badger Drouer Kidder or Lader and for the registring therof 5. Eliz. ca. 12 Dr haue sake aboue twelue pence for a Recognusance of him that tabath a Roge into his seruice for one yeare 14. Elizab. ca. 5. If the Clearke of any Iustice of Peace haue taken aboue twelue pence for any Recognus ance of an Alehouse kéeper or Tippler 5. E. 6. ca. 25 If the Clearke of the market hath taken any commen fine to dispence with 〈◊〉 hath ridde with â—â—oe than fire horses or hath taried longer in the countrie than the necessity of his businesse required Clearke of the market 13. R. 2. ca. 4. If any Officer haue in any Toâ—vne taken Stauage or Shewage the is to say any thing for the shewing of wares or Marchaundise that be truely custonied to the Queene before 19. H. 7. ca. 8. If the Maior of this Towne of Maidstone and so of other Townes in other Shires haue taken aboue f. 〈◊〉 for sealing a Bushell measure or aboue ob for any other measure or aboue f. D. for sealing C. weight or aboue ob for halse C. weight or aboue a farthing for a my lesse weight 7. H. 7. ca. 3 11. H. 7. ca. 4. Sundrie other sees of Officers there be as of Alnageours Gaugeors Sergeaunts at Aimes and whereof there is not so common vse therefore I omit them If any Purueyour of the Quéenes Maiesties haue taken any thing of the value of fortie shillings or vnder without ready payment therefore made If any Constable or Borsholder haue not vpon request made assisted the owners to refist the purueyours so taking And if any of the Quéenes Officers haue procured any to be arrested or vered for such resistance 20. H. 6. ca. 8. Purueyours If any Purueyour haue taken or selled any timber trées méete to be backed but onely in barking time except it were for the
wollen cloth haue Died any browne Blewes Pewks Tawneis or Violets that were not perfectly boyled greined or maddered vppon the Woade and shot wyth good Corke or Orchall sufficiently If anie person haue Died anie Wooll for cloth called Kuffets Marbles Grayes Bayes or suche like or for Hats or Caps vnlesse it were perfectly woaded boiled and madered Or haue Died with Brazell to the inteÌ„t to make a false colour in any such Cloth or Wooll Or haue put any Flore Chalke Starch or other deceiuable thing vpon anie Cloth except certaine Deuonshire and Cornwall straights 7. E. 6. cap. 9 Or haue occupied any yron Cardes or Picardes in rowing of any wollen cloth Or haue sold any cloth by any lesse measure thaÌ„ after the true content thereof by the yarde and inch Or haue put to sale in this realm any Cloth being pressed to be occupied in England Wales or Ireland 3. E. 6. cap. 2. If anie Duerséets of Cloth appointed by the Iustices of Peace for this yere haue refused to be Duerféers or haue not within their charge made due search thereof once euery quarter And if any person haue interrupted them to make such search 3. E. 6. ca. 2. If any Kentish broadcloth except course cloth onelie not excéeding sire pound price haue been made that conteined not in length betwéene 28. and 30. yardes being wet and in breadth seauen quarters within the lists and in waight 76. pounde being well scoured thicked milled and fully dryed 5. E. 6. cap. 6. 4. 5. Phil. Mar. cap. 5. And so changing it after their Rates for other countries as by those Statutes appeareth For regrating of Woolles by Halifaxe men See 2. 3. phil Mar. cap. 13. If any person haue vsed or caused to bée vsed any racking beating or casting of any deceitfull liquor or other meane with any kind of linnen cloth whereby the same became deceitfull or the worse for the good vse thereof 1. Elizab. cap. 13. Linnen cloth If any owner of anye Scite or Precinct and demeasnes of any late diffolued religious house that was in yearely value vnder two hundred pound doe not kéepe an honest and continuall housholde there vppon and doe not occupie so muche of the saide demeasnes in tillage as was occupied by the space of twentie yeares before the seaucn and twentith yeare of King Henry the eight 5. Elizab. ca. 2 14. Elizab. cap. 11. Scites of religious houses If any person hauing in his handes firtie acres of arable and pasture togither or of the one sort alone apt for tillage haue not wythin thys yeare tilled and sowell seasonably wythout fraude one Acre of lande wyth Flare séede or Hemp séede or bothe Flaxe and Hemp. But ground in a Parke for Deere and Wood lande Groue Meadow Fell Fenne Saltmarsh Heath Common groundes vanpte for â—llage groundes not tilled wythin fiftiey eares before this Statute and groundes plowed onely for clensing of it shall not be accompted in these sixtic Acres 24. H. 8. cap. 4 5. Elizab. cap. 5. If any persoÌ„ haue at one time kept aboue the number of 2000. sheepe of all sortes against the purport of the Statute 25. H. 8. ca. 13. 2000. Sheep If any owner Officer or kuler of any Faire or Market haue not appointed one certaine open place there for the sale of horses geldings mares and coltes and one sufficient person to take toll and kéepe the sayde place And if any such Toll gatherer or hys Deputie haue taken anye more then one peny toll for one contracte or for entring the names of the parties and that in the same place onely and betwéene ten of the clocke in the morning and Sun setting 2. 3. Phil. Mar. cap. 7. Faire and Market for horses If any Inholder dwelling in any Citie Towne Corporate or Market Towne wherein is anye common Baker that hath bée apprentice there seauen years have within his owne house made anye horsebreade or dwelling in any other thorow-faire haue made it insufficiently and not of due assise 13. R. 2. cap. 8 32. H. 8. cap. 41. Inholder Horsebread If any Inholder have taken any thing for litter or haue taken aboue one halfepenie in a bushell of Dates ouer the common price in the market Hay and Oates 13. R. 2. cap. 8 4. H. 4. ca. 25. If any person have béene reteined into seruice to worke for any lesse time than a whole yeare in any the artes of a Clothier wollen Weauer Tucker Fuiler Clothe-worker Sherman Dier Hosier Tayler Shoomaker Tanner Pewterer Baker Brewer Glouer Cutler Smith Ferrour Curriour Sadler Spuâ—rier Turner Capper Hattemaker Feltmaker Bowier Fletcher Arrowhead maker Butcher Cooke or Miller Seruantsnot retainable for lesse thaÌ„ one yeare And if any person being vnmarried or vnder 30. years of age and married and being compellable to serue in any of those Artes haue refused to serue Refusing to serue If any person being betwene the age of twelve yeares and threscore and being compellable to serue in husbandry haue refused to serue in husbandrie after request thereof made by any person kéeping husbandrie And if person haue given any wages contrarie to the rates of wages of seruants and labourers appointed and proclaymed Greater wages If any person retained in Husbandrie or any the saide Artes haue after his reteinour expired departed out of one limitte towne or parishe into an other wythout a Testimonial And if anye person haue accepted into hys seruice anye so departing without shewing suche Testimoniall Testimonial If any person haue put away his seruant before the ende of his terme without reasonable and allowed cause before a Iustice of the Peace or at the ende of his terme without a quarters warning before gyuen And if any seruant haue departed wythout such cause before the ende of the terme or at the ende thereof wythout such warning giuen before two lawfull witnesses Put away or depart away If any Artificer or labourer hyred by the daye or wéeke haue not continued at hys worke so manye houres in the day as he ought Or taking anye worke by the greate haue vnlawfully departed before the finishing thereof Vndertake worke and not finish it If any seruant workeman or labourer haue wilfully and malitiosly made any assault or other person hauing the charge of suche workers or worke Assault Master or dame If any Constable or head Officer haue not upon compiaint put into the stocks two dayes and one night every Artificer or person néete to labour that haue refused to labour in Day tyme or Daruest for the getting or carrying of Corne Day or Graine béeing thereto appointed by a Iustice of Peace or suche Constable or heud Officer Labour in Hay time Harust If any person haue taken any Apprentire against the order of the Law and if any person haue therein as an apprentice seauen yeares Apprentices 5. Elizab. cap. 4. 5.
otherwise it is of money currant because that carrieth his value and price with it If it bée quòd proditoriè facit grossos veldenarios it shall be ad valentiam and it shall not say 20. libras in denariâ—s or in pecunia Domini Regis but ad instar pecuniae Domini Regis Marr. Sundry other dainty and nice differences doth M. Marrow make where a man shall say praetis where ad valentiam binding the Enditement to that rule which the Register taketh for originall Writs of Trespasse But for as muche as Nele 9. E. 4. 26 saieth that Enditements be not tyed to any such forme and because that rule of the Register is not very constantly observed in Trespasles themselves as a thing not materiall in the Opinion Of M. Fitzh in his Nat. Br. Fol. 88. I thought it best to make choice of these that I haue for publicque vse and to leaue the reste for priuate learning To the further certaintie of the Enditement the manner of the fact it selfe and the nature of the offence ought to be mentioned also for if the Enditement be quod A. captum profelonia felanice voluntaerie ad largum ire permisit this lacketh the certaintie for what felonie he was taken and is thereby voide 8. E. 4. 3. So if it be that a man made 100 shillings Of Alchimie ad instar pecuniae Domina Reginae and doe not shewe like to what money as groates or shillings c. it is voide Fitzh Endit 10. The manner of the facte and nature of the offece If the Enditement be that a man is a common theéese wythout the wing especially in what thing it is noting worth 22. lib. Afs. Pl. 75. And so if it be of a generall extortion againste an Ordinarie wythout shewing in what by 25. E. 3. Stat. 3. cap. 9. And so also if the Enditement stande vppon these termes Onelie Infidiatores viarum depopulatores agrorum by 4. H. 4. cap. 2. And there vpon the Court saide 17. E. 4. 4. that vpon such an Enditement the partie shall bée dismissed Howbeit the Comission of the Peace hath the wordes in infidys iacuerint but it goeth further ad bentem nostraem maybemandam Neyther is it good in an Enditement against an Accessorie to say that he receiued the goodes without telling that he receiued 25. E. 3. 39 nor without telling that he knowing it received him feloniously 7. H. 6. 42. vnlesse he receiue one that is attainted of felonie in the same Countie for then heée must at his perill take knowledge of the Attainder and so no suehe mention of knowledge néedeth to be vsed as it is holden 8. E. 4. 3. Sed quere inde And if such an Enditement be Sciens ipsas quatuor homines feloniam c. fecisse apud D. feloniceè recepit it is not good for that it sheweth not which of them he receiued 30. H. 6. cap. 2. Concerning the nature of the offence thys is to be obserued that in an Enditement of treason presentable before the Iustices of Peace the worde Proditorie ought to be vsed In the Enditement of Murder murdranit is necessarie 9. E. 4. 26. for if it be quod A. occidit B malilia praecogitata it is not enough because one man may kill an other so in a Wager of Battaile and yet be no muderer And for the same reason if it be of MaÌ„slaughter it must be Felonice An Enditement was that the sonne had taken the sicke father and carried him into the cold weather whereof he died but it was disallowed because it lacked felonice Fitzh Endit 3. Againe if the Enditement be of Burglarie then must be Burglariter if of Rape then Felonicè rapuit for without rapuit it suffiseth not to say Felonicè caepit Aliciam eam carnalster cognouit If it be Furatus est it séemeth to Marrow to be good without the worde felonicè but 18. E. 4. 10. is against him If it be felonicè abduxit vnum equnm it is not of value without saying caepit neither is caepit good alone without abduxit for it must bée felonicè caepit Abduxit Fitzh Endit 2. And if it be felonicè succidit arbores illas asportauit or vi armis succidit arbores felonicè asportauit neither of theaÌ„ will make it Felonie because the trées be a parte of the fréeholde whereof no felonie can be committed But if it be vi armis sucidit arbores eas felonicè at an other day after caepit asportauit that will make it Felonie by reason that the seueraunce of the trées from the fréeholde the taking were at diuers times Mairr And albeit the Enditement be of a Mayheme it must say felonice nâ—â—yhemâ—mit and yet mayheme is no Felonie but an hainous and as it were a Felonious Trespasse But where in an Enditement of felonie the word felonice wanteth there the Enditement may neuerthelesse stande good to make it a Tiespasse 2. H. 7. 7 6. H. 7. 4 18. E. 4. 10. And in an Enditement of Trespasse it séemeth that the wordes contra pacem ought to be yet still But the necessitie of the wordes vi armis viz. cum baculis cultellis c. be taken away by the Staute 37. H. 8. ca. 8. Neuerthelesse M. Stamf. F. 94. is of the opinioÌ„ the it is not amisse to vse those wordes so long as the circumstances of the facte doe require them for sayth he The circumstances of an act doe either aggrauate or diminishe the offence therein If the Enditement be of forcible entire then the wordes vi armis be néedelesse because they are necessarily employed in the Forcc Marr. And if the Enditement be founded vpon a Statut it ought to say contra formam Statuti or where many statutes doe concerne one offence as in the case of Liueries and suche like contra formam disersorum Statutorum But it is not of necessitie that the Statue be rehearsed but only that the offence against the Statute be sufficiently desribed Thus farre of these pointes But now let vs with a fewe wordes consider what Enditementes be receiueable by the Iustices of Peace and what ought to be rejected by them Generally they may receiue Enditements before them selves of all causes being either within their CoÌ„mission or within the Statuts whereof they have to enquire Enditemeets to be receiued or rejected And they may also receiue Enditementes taken before the Shirife in his Turne lawfully that is to say so that the Tarne be holden within the moneth after Easter or within the moneth after Michaelmas and so that those Enditements or Presentmentes be indented and sealed betwene the Shirife and the Iurours and so that they be made by the Dth of twelue men at the least and that those Iurours be of good fame and Legales homines and may dispend yerely twenty shilings of Fréehold or twentie sixe shillings eight pence of Copiehold W. 2. ca. 14
still the Iustices of Peace may procéede notwithstanding the Writ as Hubbert the Kinges Attourney sayd 6. H. 7. 16. for otherwise the triall of a Felon if the Enditement Were of Felonie might bée delayed and deluded also But yet Keble held opinion against him and was fearfull that in such a case it might proue felonie to make execution after such a writ And if a Certiorari come to the Iustices of Peace to remoue an Enditement and in truth the Enditement was not taken till after the date of that Certiorari yet if the Enditement bée remoued thereby it is good enough for that they both bée the Queenes Courtes 1 R. 3. 4. In the making of a Certificat vppon this Certiorari the Iustices of the Peace ought neither to omitte that which both auctorize them nor to excéede that which belongeth vnto them For on the one side if they certifie an Enditement of Felonie as taken coram Iusticiarys ad pacem it is not enough without saying further Nec non ad diuersas felonias c. and otherwise it is doubtful whether the Endited shall bée quite dismissed or no because the Iustices of Peace haue then no Recorde at all remaining with them for the Clarke of the Peace maketh an entrie accordingly that Record which they sent up is insufficiēt And therfore the Clarke of the Crowne was forbidden to receaue any such Certificat 12. H. 7. 25. On the other side if they certifie one Enditement of felonie not determined into the Kings Benche they ought not Without warrant to certifie an other Recorde of the acquitall of that Enditee for the same matter for nothing ought by them to bée sent thither without warrant but that which is executorie and néedeth the helpe of that Court. 8. E. 4. 18. And if a Certiorari bée to send up the Enditement of A. in which Enditement some others bée endited togither with the same A. yet néede not the Iustice of Peace to make Certificat concerning any but A. 6. E. 4. 5. For although they bée named ioyntly yet bée they endited seuerally as I haue sayd before and the Queene may pardon A. without forgiuing the other 6. E. 4. 5. Markam Finally it is noted 8. H. 5. 5. that Hankforde the chiefe Iustice of the Kings Benche abserued this order that he which brought thither an Enditement taken before Iustices of the Peace should endorce his name vpon the backeside of it which I note not to teache them of the Kinges Benche but to let Iustices of the Peace sée that there is some héede to be taken of him by whom they send up their Enditements Of the Processe vpon Enditements and Informations CAP. VIII THe Court béeing thus made priuie and possessed of causes must of duetie procéede to the handeling or hearing and tryall of them the whiche bicause it can not indifferently doe vnlesse it keepe one eare for the offendour that he also may be heard in his owne discharge as others were heard to lay the charge vppon him the manner is to awarde Processe against him to come in and to aunswere For commonly an Enditement or Information béeing but an accusation or declaration against a man is of none other force but to put him to aunswere And thereof all Processe hath the name bicause it proceedeth or goeth out vpon former matter either Original or Iudicial Processe whereof it is named How be it I make difference whether this processe bée grounded vpon an Enditemet or vpon some other information for they bée not all one vnlesse it bée in a fewe Statutes so specially prouided Although the Statute 33. H. 8. cap. 10. did once conioyne and coople them The power of making processe vpon Enditements is giuen by erpresse wordes in the ende of the second Assignauimus of the Commission and in other cases where it is not namely giuen it is emplyed of congruencs or rather of necessitie in the wordes heare and determine which not bée perfourmed vnlesse the partie doe either come in graiis or bée brought in by processe Auctoritie to make out processe This Processe ought alwaies to bée in the name of the Queene thus Elizabeth Dei gratia c. Vicecomiti Kancia c. And the Teste thereof may bée vnder the names of any two Iustices so that it be made sitting the Court in the Sessions Teste of the Processe Commission del Peace Brooke Tit. Peace 6. 7. But now whereas the Commission giueth to the present Iustices auctoritie to make processe vpon Enditements taken aswell before former Iustices as before them selues al that doing was wont to bée discontinued in Law by the comming out of a newe Commission of the Peace vntill that the Statute 11. H. 6. ca. 6. did establish that no pleas suits or processe to bée taken before Iustices of the Peace shoulde bée discontinued by a newe Commission of the Peace to be made but that they shoulde stande in their strength that the Iustices assigned in the same new Cōmission shoulde haue power to continue the same and to heare and determine all that whiche dependeth vpon them New commissions of Peace doe not discontinue the old processe And of the like effect there is a braunche in the latter ende of the Statute 1. E. 6. ca. 7. Furthermore whereas Shirifes and their Baylifes vsed to arrest men and to procéede vppon Enditementes founde in theyr Turnes or Lawdayes an other Statute made 1. E. 4. ca. 2. wringeth that power out of their handes and deliuereth it ouer to the Iustices of the Peace also appoynting them to procéede vpon them as if they had bene found before themselues Enditement before Shirifes Nowe séeing that this Processe of the Sessions is sent out to this ende that either the partie shall come in to answere and be iusticed by lawe or else that he shall for hys contumacie bée dèpriued of the benefitte of lawe for so muche in effect doe the wordes of the Commission Quensque capiantur reddant se aut vtlagentur importe in them it followeth that in al cases of Enditements if the partie be retourned insufficient the Processe of Vtlawrie lyeth againste the offendor if he bée not taken before or doe not otherwise offer and yéelde himselfe Processe of vtlawrie But a good while after that Commissions of the Peace were first awarded there was not giuen by them any power to make out anye Processe of Vtlawrie for I haue séene a Commission of the Peace 20. Ed. 3. Part. 1. Patent in dorso wherein were wordes auctorizing the Commissioners to arrest all suche as shoulde bée endited before them but by and by this followeth Et ad nomina eorum qui fugerint coram vobis iusticiari noluerint certificandum in Cancellaria c. So that if they mighte not gette them arrested they coulde goe no further but to certifye theyr names The meane to this Vtlawrie is not one in all cases for vpon Enditements of Trespasses
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
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
of the Courte of Surueyours there is a generall Laws that all Dhligations concerning the Kings commoditie shall be made to himself by the words Domino regi c. Neither was there cuer saye they anye Duarter Sessions holden onely for the causes of Labourers by the lastices of Peace althoughe the petite Sessions of Constaâ—les were chiefly bent to that feruice And that the saide Statute 2. H. 5. didde meane the verie Sessions of the Peace no other they offer to proue by the auctoritie of those selfe same Statutes which bée alleadged already for the holding of the Quarter Sessions vntil the time of this Act of Queene Elizabeth for that they haue heretofore so construed and taken the Statute But to make the proofe full they adde that euen this same Statute of repeale 5. El. cap. 4. both in a certaine place there of speake of the Quarter Sessions to be holden after Easter which cannot be vnoderffoode of any other of thosse Statutes cocerning the Sessions but onelie of 2. H. 5. cap. 4. because the reste that haue certaintie do appoint that Session eyther at the Annuntiation of the Lent And like wise that the Statutes 8. Eli. cap. 9. concerning the prices of vesselles of â—ope Ale and Béere and 14. Elizab. cap. 5 and 18. Elizab. cap. 3. concerning poore people and vagabonds haue mention of the Quarter Sessions to bée holden next after Easter Which Statutes as they make not in this point any new Lawe but bée grounded vpon former Lawe supposed to be in force So allowing of any one of these soure Sessions they doe therein giue allowance of all the other thrée also As for answeare to the obiection of the nearenesse of the Michaelmasse Sessions to the Michaelmasse Terme they say that this was foreséene to the makers of that Statute 2. H. 5. who do therein dispense with the absence of the Iustices of the Benches at Westminst the Barons of the Escheaquer c. And yet to the end that they also might once in the yere be present at a Session of the Peace for the better direction of that seruice the Statute 33. H. 8. ca. 10. did specially appoint that the Easter Sessions shoulde bée holden yerely vpon the Tewsday nexte after Low Sonday in euerie Shire of the Kealme Now if it shal séeme to any maÌ„ a strange thing that I moue question of the tyme of holding these Sessions I lette him knowe firstâ— that it is one of the Articles of the Oath ministred to the Iustices of Peace that they shall holde their Sessions after the forme of Statutes thereof made Secondly that the articles of many Statutes are inquirable as it séemeth to me onely at the Quarter Sessions because they are not in the Commission at all and the Statutes them selves doe appoint of none other Inquiry but at the Quarter Sessions and then if the Iustices of Peace do not hold their Quarter Sessions according to the times appointed by Lawe they be no Quarter but Speciall Sessions and consequently such Statutes shall eyther not be enquired of at all or else enquired of without Warrant both whych be verie greate inconueniences So that this matter if it be not rightly conceiued tendeth both to the hurt of the conscience and to the hindrance of this seruice Touching the continuance of these quarter Sesions I haue shortelye but this one thing to say that almost two hundred yeres agoe it was ordained by statute 12. R. 2. cap. 10. that they shoulde bee continued three dayes togither if neede were vppon paine of punishment And yet in these days of ours wherein the affaires of the Sessions be excéedingly encreased and consequently more néede to continue them now than béefore many doe scantly affoorde them thrée whole houres besides that time whyche is spent in giving of the charge How long the Quarter Sessions shall continue But it is more than time that I descende to some of those Statutes whych do specially relie vppon the Quarter Sessions therefore I will firste beginne with such as haue refeence indifferently to any of them Things referred to the quarter Sessions The Iustices of Peace maye in their open Quarter Sessions enquire of heare and determine all offences excepte treason and misprision of treason committed againste the Acte made 23. El. ca. 1. for reteyning the Queenes subiects in their due obedience Pope They may also in their open Quarter Sessions enquire of such as do extoll the vsurped auctoritie of the sea of Rome againste the Statute 5. Eli. ca. 1 And the Clarke of the Peace must reade that Acte at euerie of the Quarter Sessions Pope Acte read And they may in their generall or Quarter Sessions enquire of seditious wordes and rumours vttered againste the Queenes Maiestie 23. E. cap. 2. Seditious wordes All the Articles mentioned in the Statute 33. H. 8. cap. 10. shall be enquired of reformed by the Iustices of Peace in theyr auntient Quarter Sessions 37. H. 8. cap. 7. Execution of Statutes They may in their generall Sessions determine of the offences of killing and selling Wainlings vnder two yeares age 24. H. 8. cap. 6 13. Eli. cap. 25 and of the offences of not kéeping Mylch Kine and Calues 2. 3. Wainlings Phillip Mar. cap. 3 13. Elizab. cap. 25. Milch Kine and Calues The Enquirie Hearing and Determination of Forestallings ingrossings and Regratings maye bée at the Quarter Sessions 5. E. 6. cap. 14. Forstalling The Enquirie whether Ale-house kéepers haue forfeited theyr Recognusances ought to bée at the Quarter Sessions 5. E. 6. cap. 25. Alehouse The Fine for vnlawfull Huntyng by night or wyth painted faces shall bée sette at the nexte generall Sessions 1. H. 7. cap. 7. Hunting Iustices of the Peace maye in sheyr Quarter Sessions heare and determine offences againste the Statute of Armour 4. 5. Phil. Mar. cap. 2. and may there enquire of heare and determine the offences of putting to pasture anye stoned Horses c. vnder the heighth appointed by the Statute 32. H. 8. cap. 13 And maye there also enquire of conueying Horses into Scotlande 23. H. 8. cap. 16 1. E. 6. cap. 5 1. Elzab cap. 8. Armour Horses They maye at their like Sessions enquire of and determine te offences of not amending the highwayes 2. 3. Phil. Mar. cap. 8 5. Elizab. cap. 13 18. Elizabeth cap. 9. Highwayes In their Quarter and generall Sessions they ought to enquire of heare and determine the offences of not kéeping continuall housholdes vppon the Precinctes of the late Monasteries 27. H. 8. cap. 5 5. Elizab. ca. 2 14. Elizab. ca. 11. Keepe houholdes And in their Quarter Sessions they may heare and determine the offences of Informers 18. Elizab. cap. 5 And at the like Sessions they may doe the like for offendors in Periurie 5. Eliz. ca. 9. Informers Periurie Suche as bée suspected of
nexte General Gaole deliuerie to glu◠euidence there against the partie Examinatiō of Felons to be committed 2. 3. Ph. Mar. ca. 10. This bond spoken of in this Statute and in some such like séemeth to bée met of a Recognusāce to bée acknowleged to the Queenes vse with Condition for the person maunce of that for which the Statute appointeth it to be taken For as before hath bene saide euen as in the case of Suertie of the Peace Good Abearing The forme of the bond mentioned in this last Statute The Iustice of the Peace taketh vsually a Recognusance and is well warranted so to doe being made a Iudge of Recorde as touching matters of the Peace though he hath no ful words for him neither in any Statute nor in his Commission So being auctorified by this Statute to deale in this matter he may be wel said to hauetherin inclosed by a very good Congruence power also to Recorde the acknowledging of a sum of money to bée forfeited to the Queene vpon not performing the Condition of the same The partie therfore that informeth against the Prisoner may be thus bound in a single Recognusance MEmorandum quod 3. die Septemb anno regni Dominae nostrae Elizabe dei gratia c. 23. D. E. de Brasted in comitatu praedicto Yeoman personaliter coram me Thoma Potter vno Insticiariorū c. adpace c. assignatorum constitutus apud Brasted praedict recognoust se debere dictae Dominae Reginae decem libras bonae legalis monetae Angleae de bonis catallis terris tenementis suis fieri leuari ad opus dictae Dominae Reginae haeredum successorum suoris sidefecerit in conditione subsequenti Kanc. Th. P. And with such a Condition THe condiciō of this Rccognusanceis such that wheras one A. B. late of C. labourer was this present day brought before the said Iustice by the aboue bounde D. E. and was by him charged with the felonious taking of twenty sheepe of him the saide D. and therevppon sent by the saide Iustice to the Qaeenes Maiesties Gaole If therefore he the saide D. shall and will at the next generall Gaole deliuerie to bee holden in the saide countie prefer or cause to be framed preferred one bill of Inditemente of the saide fellonie against the said A. B. and shal and will then also giue euidence therin cōcerning the same aswell to the Iurors that shall then enquire of the saide fellonie as also to them that shall passe vppon the Triall of the saide A. D. That then c. Or else c. The Mittimus of the Prisoner after his examination may serue thus THomas Potter one of the Iustices c. To the keeper of the Queenes Maiesties Gaole at Maydstone c. greeting I sende herewithal the body of A. B. late of C. Laborer brought before me this present day charged with the felonious taking oftwentie sheepe which also he hath confessed vpon his examination before me And therefore these shall be on the behalfe of our said souereigue Ladie to commaund and charge you and euerie of you that you doe immediately receiue the saide A. B. him safely kepe in your said Gaole vntill that he shall be thece deliuered by due order of hir Maiesties laws Hereof faile you not as you wil answere thervnto at your vttermost perill Yeouen c. There also you may sée if I bée not deceiued the time when the examination of the Felon himselfe was first warranted by our Law For at the Common Lawe his faulte was not to bée wrong out of himself but rather to be proued by others And bycause that some Iustices of Peace do vpon this Statute vse to take the information of the bringers of the suspected persons vpon their Oathes and other some doe receiue it without any Oath at al Let vs sée by the way what is wont to bée saide for either side that a man may the better sée what way to incline and follow Whether the examination ought to be vpon Oath or no. They that take the information or examination for this Statute doth vse both the wordes without any oath do say that if the makers of this Statute had ment that an Oath shuld bée take then wold they haue expressed the same euen as the Statutes for Bankcrupts 54. H. 8. ca. 4 13. Eliz. ca. 7. the Statute of Accomptantes in the Excheaquer 5. R. 2. ca. 13 The Statute of Labourers 2. H. 5. ca. 4 and the Statute of choosing Knights of the Parliament 8. H. 6. ca. 7. haue done in all which Statutes Examination by Oath is giuen in plaine words But they of the other side seeme strongly to defence their exacting of the Oathe by the example of the Iustices of the higher Courtes and doe alleage that whereas the Statute 5. H. 4. ca. 8 ordained without any mention of Oath that in Actions of Debte vpō arrerages of accōptes the Iustices should haue power to examine the Attorneys and others the Iustices of the Bench do vse in that case to minister an Oath to the examinate as it may appeare 19 H. 6. 4 35. H. 6. 5 The like say they hath bene done in olde time vpon the Statute 18. E. that giueth the examination of a woman couert in leuying of a Fine for 25. E. 3. 44. a woman couert partie to a Fine was examined sworne whether she were of ful age or no the like also as they say is done daily in al the examinations of Sūmoners Viewers Shirifs Clearkes and of other officers that doe happen in the Courtes at Westmin And M Brooke Tit. Exami 32 is of opinion the euery examination is vpon oath And the Statute 2. E. 6. cap. 13. that giueth power to the Ordinary to examine a man for his personall tithe excepteth an Oathe as though else he mighte haue done it by exacting one Besides this they adde a reason alleadging the if these informers bee examined vpō Oath then although it should happe them to die before the Prisoner haue his Triall yet their information may bée giue in euidence as a matter of credite whereas otherwise it wold be of little or no weight at all therby offéders shold the eassier escape vnpunished And lastlye say they the precise penning of some particular Statutes is no sufficient warrante to vnderstande all other Statutes accordinglye vnto whiche opinion my selfe coulde bée easily brought to subscribe Thus mighte and woulde I conclude this parte concerning the power of one Iustice sauing onely that this Statute doeth giue me occasion to extende my spéeth a little further For whereas it requireth that the Iustice of Peace should in taking the examination make choise of suche things as bée material to proue the offence it séemeth necessarie that he being perhappes vnskilfull in the lawes of the lande shoulde bée somewhat instructed what actes those bée that doe amount to Manslaughter or Felony
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
Iustices be putte out of the Commission then cannot be Cretifi But If he Recorded the Riot vpon the view thereof and the Rioters had escaped yet the might he Certifi Mar. The force of this Certificat is but only to put the parties to answere and forasmuch as it is of the nature of a declaration agaist them it ought to comprehende the certaine yeare and day thought peraduenture as M. Mar. holdeth it néedeth not to erpresse the Additions of the parties being not within the words of the Statute 1. H. 5. Ca. 5. Furthermore wheras this Statute speaketh of the paine of C. lb to be layed vppon the next Iustices Yet if other then the next Iustices doe perfourme the office that shall ercuse them that be the nexte justices to the place And that in the cause why I have taken leaue to place there things before under the audoritie of any two justices generally Next Iustices Yea all the justices of Peace within the commission how far off soellre they dwel dught if they have notice of suche a Riotte Rout 02 Assembly to supply the defaulte of the next Iustices For so it was now lately adiudged in the starre Chamber Howbite that paine of an hundred pound was layds vpon the next Iustices onlie and theresidue were fined by discertiō of that Court. Lastly euery of these Iusticcs shal be ercosed of this penaltie by the not cōming of the shirief But yet they ought in this seruice to sende for the shirife and not he for the Mar. Thus muche of the Riottes after this cōsideration now a little for the furtherance of the Iustices in their execution and then then other matters A Precept to the Shirife to warne the Countrie to enquire of a Riotte GEorgius Multō Wilhelmus Lambard dou Iusstiled ticiariorum c. assignatorum Vicecomiti eiusdem comitatus Salutem Exparte ditae Dominae Reginae tibi praecipimus quòd ventre facias coram nobis apud I. m comitatu praedictor die Ostob. proximè futuro 24. probes sufficientes legales homines de comitatu pradisto quorum quilibet babent terras tenementa infra distūcomitatum liberè per cbartam ad annuum valorem 20. solid aut per copiam Curiae adannuum valorem 26. solid 8. denars aut per vtrumgum ultra omnes reprisas ad inquir endum pro indenitate nostra in bac parie super sacramentū suū S. t A. B. C. D. E. F. s alis malefastores et pacis dista Dominae Reginae Perturbatores ignoti domū cuiusdam G. H. apud Ightham praedistā riotose fregerint in ipsum insulsū fecerint vnlnerauerint contrapacem dista Domma Ragina contraformam Statuli m ialicasu 13. H. 4. 0 lim regis Angliae editi proxist Et hoc nullatenus omittas sub poena 20th quam incursurus as fi in executione pramissorum defeceris Kang Et habeas ibitunc hoc praceptum Testibus praefatis G. M. W. L. 20. die Septemb. Annoregni dicta Demine nostrae Eliza. 23. The Inquirie Inquisitio pro Domina Reginae c. as before in forcible entries coram Georgio Multon Wilhelmo Lambard c. Quiad hoc inratiee onerati dicunt super sacramentum suum quod A. B. C. D. E. F. simul cum alijs malefactoribus pacis dictae Dominae Reginae pertur batoribus ignotis ad numerum septem personarum mode guerrino arcaiati vt armis viz. hawberdis gladijs arcubus sagittis 19. die mens Sep. vlt. Praeterito apud Ightham in comitatn Praedicto inter horas octauam nonam post meridiem eiusdem diei Domū G. H. de Ightham Praedict Yeoman scituatā in Ightham praedicta riotose fregerunt in ipsum G. H. tunc ibidem insuliū fecerūr ac ipsū tunc ibidem verberaue runt vulnerauerunt indignis modis tractaucrant is a quod de vita eius desperabatur in magnam pacis dict Domine Reginae perturbationem popult terrorem ac contra formam Statuti de riotis routis congregationibus Gentium Anno. 13. H. 4. olim regis Anglia progoniter is dicte Domina Reginae editi promisi The Certificat to the Queene hir Coū sell ought to be made by the two Iustices the Shirife or Vndershirife Whiche may be done in English after the order of a Letter and as the case shall require But the Record of the Iustices and the Shirife or Vndershirise if they will procée that may may be in this manner MEmorandum quod 20. die Septem anneregni Dominea nostra Elizabe der gratia c. 23. Questiled tus est nobis Georgio Multō Wilhelmo Lambard duobus Iuiticiariorum c. essigmatorū Thomae C. sub vicecomiti comitatus ciusdem quidam G. H. de Ightham in dist comitatu Yeoman Quod A. B. C. D. E. F. c. alij malefastorcs pacis dicte Domina Reginae perinrbatores ignoti domurn eiusdem G. H. apud Ig pradicu riotosé fregerht et ibidem in ipsum G. H. insultum fecerunt ac ipsum vulneraucrunt cōtra pacem dicta Domina Reginae ac proinde pctyt 4 nobis sibi in hac parte remedinm apponi Quthus guidem quarimonia petitione anditis nos dict G. M. W. L. T. C. ipso codem dicto die ad domuns pradictans accessimus in propriss persouis noctris ac tunc ibidem inuenimus prafatos A. B. C. D. c. ad numerum septem per sonarum modo gucrrino arraiatos vz. gladijs pugionibus lorisis galeis arcubus sagittis riotose in simul aggregatos domum proefatam fregisse multa mala in ipsum G. H. ibidem comminantes in magnam paeis dictoe Dominoe Reginoe perturbationem ac popali sui terrorem necnon in contemptum Statute de Riotis Routis congregationibus populorum Anno 13. H. 4. olim regis Anglioe progenitoris dictoe Dominoe Reginoe diti ac prossist Ac proptereanos proefati G. M. W. L. T. C. corpora dict◠rum A. B. C. D. c. arrestari Ac proximoe Gaols dictoe Dominoe Reginoe in comitatu praedicto duci ficimus per Recordum hoc nostrum connict in praesentia nostra In cuius reitestimontnssnos Praefati G. M. W. L T. C. huic dicto records nostro sigillae nostra apposuimus Datum apud I. praedict die anno supradictis And nowe wishing the two Iustices of Peace in this matter to looke backe into the which hath bene satd before of forcible entries and Kiots in the person of one Iustice let vs make spéede to other statutes Any two Iushces of the Peace may imprison forx dayes the Naister that giueth for x. daies the seruant that taketh more wages than after the rates thereof made may imprison for a whole yeare suche seruaunt as shall bée Conuicted before them by his owne confession or by the Dathes of two honest men to haue made any assault vpon his maister maisiresse or other
set foorth in the Statute of Drouers Badgers 5. Eliz. ca. 12. where it appeareth that vpon the examination of two lawfull witnesses the Iustices of Peace may make Processe as if it were vpon an Inquisition of twelue men Forced Information The like may they do vpon the Statute of Armour 4. 5. Phil. Mar. ca. 2. Sute betwene party and party And the berie like also may they doe vppon the Statute made against Forstallers 5. E. 6. ca. 14. which last sayd Statute séemeth for this point to haue bene followed as a Paterne by the other two so right they tread in the steps of the same Herunto also you may adde the examination of the M Marmers of ships wherin corne or victuall shall be transported against the meaning of the Statute 1. 2. Phil. Mar. ca. 5. Thus much of the knowledge of cause exhibited by such as either doe it at large for the Queene onely to haue the offence punished or be special1y allured thereto by regard of benefit growing in common to them with the Queene thereby Now of those that seeke to informe the Court for the profite due to them selues alone The knowledge that commeth this way is by the priuate sute and proper action of the partie and is therefore in the Statute 11. H. 6. ca. 6. tearmed a sute betwene partie and partie whereof that Statute had no lesse consideration than of those other sutes that bée for the Queene her selfe and therefore prouided that they also should not be discontinued by new Commissions of the Peace to be made I know that there be not many Statuts which do giue power to the Justices of Peace to hold Plea betwene partie and partie and I thinke it hath not bene often experimented vpon those very Statutes which do giue it and how the Judges do expound this verie Statute I can not tell Neuer the lesse because I may neither wittingly conceale any such parte of their auctority Iurisdiction although it were but my opinion nor safely reaport it without some proofe I will giue you one example of this kinde as I take it and leaue the rest further search The Iustices of Peace haue power to enquire heare determine of all the defaultes against the Statute made 23. H. 6. ca. 11. concerning the leuying of the wages of the knights of the Parliament as well by enquire at the kings sute as by action at the sute of the party In this and suche like as in Appeales by warrant of the large words of the Commission as hath bene sayd the Iustices of Peace ought to proceede after the vsuall manner of ather Courtes of Recorde at the Common law if I doe not miscall it and therefore I wil goe no further with it but will prosecute that hearing and determining that more properly pertaineth unto them if first I may shew you how they are sometimes preuented in that behalfe Of the Impedimentes of proceading vpon Enditements before the Iustices of Peace CAP. VII IT falleth out not seldome when Iustices of the Peace haus taken an Endâ—ement founde before them that they can not proceede to hearing and determining vpon it either bicause it is grounded vpon some such Statute as giueth vnto them no further power but onely to enquire thereof or els bicause the Enditement is taken out of their handes by Certiorari and conueyed to Iustices of a higher auctoritie at the sollicitation and by the meanes of some parties grieued to the end that either they may trauerse them aboue or there auoide them for insufficiencie of forme or matter And therefore Iustices of the Peace may only enquire of certaine the offences against the Actes 1. El. ca. 2 ca. 3 5. El. ca. 1 13. El. cap. 2. touching the acknowledging of the Queenes supremacie or the seruice of God or comming to the Churche or the stablishment of true religion as you may see 23. El. cap. 1. And they may onely enquire of any the Treasons or Misprisions of treasons made by the same Acte 23. El. ca. 1. Neither can they goe any further than onely to enquire of and to endite the offendours against any the Articles of the Acte made 23. El. ca. 2. concerning seditious rumors against the Queene In the rest so farre as I haue found their power of Enquirie is accompanied with the auctoritie to heare and determine also For this want of Jurisdiction is not found in the Commission of the Peace it selfe but onely in cortaine Statutes that for weightie causes doe restreine this further proceeding By what means such Enditements shall bée remoued to those higher Courtes I will shew you when I come to speake of Certifying the Recordes of the Sessions and will now goe on with those other Enditements that bée remoued by labour of the parties Albert that in the remouing of pleas betwene partie and partie from inferiour to higher Courts by Tolt Ponc Recordare c. there was wont to bée a probable cause alleaged for which the same were remoued yet in this case of the Crowne there néedeth no cause to bée comprised in the writ of Certiorari bicause they all bée the Courtes of the Queene and it breedeth neither iniurie to the offendour nor losse to any other person in what Court soeuer the offence bée tried This Certiorari then may commaunde either the Recorde it selfe or Tenorem Recordi to bée sent vppe and it ought to bée obeyed accordingly Enditements remoued by labour of the parties For vpon fayle thereof first an Aliâ—s then a Pluries vel Causam nobis significes and lastly an Attachment shall goe out against them that should sende it as M. Fitzh noteth in his Nat. Br. Fol. 245. but I haue heard that they vse also Sub poena at this day And albeit the Certiorari be a Supersede as of it selfe yet may the partie vpon the Certiorari purchased have a Supersede as also directed to the Shirife commauÌ„ding him that he arrest him not vpon that Record before the Iustices of Peace Fitzh ibid. Fol. 237. In which place also he doubteth whether the Iustices of Peace them selues ought of dutie to awarde their owne Supersedeas to the same effect after that the writ of Cortiorari is brought to their hands This writ of Certiorari is euer directed to the Iustices of Peace and yet as you haue heard the Custos Rotulorum onely hath the kéeping of these Recordes but the auncient Commission of the Peace had no Custos Rotulorum specially named in them and then this certifying belonged to them all which forme the Writ retaineth to this day And if it fall in question whether such a Certiorari were deliuered to the Iustices of Peace or no that must be tried sayth the Booke 10. H. 7. 24. by the verdit of twelue men Now if a Certiorari come to the Iustices of Peace to remoue an Enditement and the partie sueth not to haue it remoued but suffereth it to lye
bene the Law of the lande long before that time saying that Misericordia Domini regis est qua quis per inramentu legalium hominum de Viceneto eatenus amerciandus est ne aliquid de suo honorabili coÌ„tenemento amittat But where the offence or Contempt falleth out to be so great that it asketh the imprisonment of the bodie it selfe and that during the Kings will and pleasure then is the partie to redéeme his libertie with some portion of money as he can best agrse with the King or his Iustices for the same which composition is properly called his Fine or his Raunsome in Latine Redeptio as may be plainly séene by the Statue of Marleb 52. H. 3. ca. 1. 2. 3. 4. And by the Statute called Ragman and diuerse other auncient Statuts But of later time the Iustices ahue in sonie cases of Amercements also vsed to assesse and rate them selves without any other helpe As where the Dssicers of their Courts haue offended 33. H. 6. 54 34 H. 6. 20 Lo. 5. E. 4. 5. which séemeth to make an other difference betwene the two wordes But because neither of these be strictly obserued in our common spéeche nor yet in the vndersranding of the Statutes of later time I will no longer stand vpon it Nowe then if the offence be Fineable by generall wordes onely without speaking of any Fine or without shewing by whom it shall be assessed for so it is commonly in the elder Statutes that do prohibite any thing to be done there the assessement thereof belongeth to the Iustices before whome the Conuiction is lawfully had Fine by diseretion of the Iustices Again if it be Finable by these or such like wordes at the Kings will or At the Kings pleasure as you shall find it in many Statuts then also the same Iustices before whom the Conuiction wag shal assesse the Fine at their wills and pleasures for say the Bookes 2. R. 3. 11 18. H. 8. 1. the King in all such cased bttereth his owne will and pleasure by the mouthes of his Iustices And yet some Statutes vsing playner spéech do namely referre the Fine to the discretion of the Iustices of Peace For they may after Conuiction before them Fine by their discretions such as take Salmons or destroy the Fry of Fishe in Kiuers against the Statutes Destroy the Fry of Fish W. 2. cap. 47 13. R. 2. c. 19 17. R 2. c. 9. And as this is sayd of the Fine so sundrie Statutes doe giue the same power to the Iustices of Peace in the execution of the corporal punishment it selset as you haue already heard in the case of counfeiters of false letters or tokens and may reade in oter the Statutes at large For I labour to be short and therefore I giue but an assay of eche thing knowing that these Iustices will not procéede to the execution of any Statute without the sight of the Statute it selfe howsoeuer they should finde it alleaged by me And in these cases as in cases of Amercementes the Iustices ought to take héede that the Fines be reasonable and just hauing regrade to the quantity of the trespase and the causes for which they be made as it is commaunaded by the Statute 34. E. 3. ca. 1. This Fine or peine awarded by the discretion of the Iustices of Peace shall doe the more good both to the Prince in profite to the people in example and to the Iustices themselues in credite if it bée pronounced-at the Benche openly as it ought to bée and not shuffled vppe in a Chamber or Corner secretely as in some places it hath béene bsed to bée Fine to be assessed openly I haue heard that in cases where the Statutes doe appoynt a certayne forfeiture as fiue pounos or fenne poundes c. yet the prartise is to mitigate the same by discretion if so bée that the partie will come in and put himselfe in gratiam Reginae without playne confession of the faulte as I have folde you before Mitigatioa of the forfeiture of a Statute So that the Fine shall bée small where the fault was great and the penaltie of the Law it selfe not small But this maner of doing is in my mind so voide of saunde reason that I can not recoÌ„mende it to the Iustices of Peace but doe rather condemne it as a mockerie of the Law and I finde that sundry Statutes fearing belikw some suche thing haue specially preuented it comnaunding that Iustice of the Peace shall assesse no lesse Fine than is in those Statutes them selues before hande appointed Such is the Statute 17. E. 4. cap. 4 of Tiles the Statute 33. H. 8. ca. 6. of Crossebowes and hand Gunnes and the Statute 5. E. 6. ca. 25. concerning Alcheuses and such others may be found if the Books of Statuts be well perused But hitherto we haue not sufficiently performed that which the Commission of the Peace hath in these wordes Saluis nobis amerciamentis aliâ—s ad nos inde spectantibus and therefore it is not enough to haue assessed the Fine but we must also disclose the meanes by which as well this Fine that is reduced to certainetie by the discretion of the Iustices as all other Amercementes those other penalties and forfeitures that are certainly prefined by wordes of the Statutes may be leuied and brought into the Princes coffers Estreating for the Qucene Order was taken by an auncient Statute intituled de Scaccario and noted to be made 51. H. 3. that all Iustices Commissioners and Enquirers whatsoeuer shoulde deliuer into the Eschequer at the feast of S. Michael yerely the extracts of Fines and Amerciaments taxed and mafe before them that the King might be duely aunswered thereof and the same in effect was after ward confirmed by an other Statute intituled De formamittendi extreta ad Scaccarium which although it be sayd to be made 15. E. 2. Yet forasmuch as it mentioneth that the former Statute was made in the time of the father of that King which made the later it must néedes be that either the one or the other of them was made in the time of King E. 1. No doubt but this ordinance doth extende to the Iustices of Peace as a man may easily gather by words in the Statute of Labourers 5. Elizab. ca. 4 and the act of Sewers 13. Elizab. ca. 9. and other Statutes But because it is verie generall and hath nothing peculiar vnto them from other Iustices I will descende to lower times and looke there for nearcr helpes The Statute 12. R. 2. ca. 1 had allowed to eucrie Iustice of the Peace foure shillings by the daye for the time of their Quarter Sessions to bée payed by the handes of the Shirife of the Fines and Amerciamentes comming of the same Sessions But because it was soone after séene that it was a great delay to the Iustices of Peace in this paymente to expecte the leaying of these Fines
3. cap. 6 in the fourth Chapter of whych sayde Statute there were certaine Commissions distiked of whiche I beléeue that of the Iustices of Labourers was one and order taken that from thecefoorth some of the Iustices of the one Bench or other or Iustices of Assise or Iustices of the Peace with other of the most worthy of the Countrie should be named in all Commissions of Enquirie So that we haue not so doe with the Statute 25 Edward 3. cap. 8. and may therefore procéede to examine the rest The next is the Statute 36. Edward 3. ca. 12. But neythere that maketh anye Laws for holding the Sessions of the Peace at thys day as well bycause it was fet at large by 12 R. 2. ca. 10. as also if it were not bycause the Commissions of our time use no suche mention as it commaundeth Then came wée to 2. Henri 5. cap. 4. which restrayneth the libertie of 12. Richard 2. cap. 10. and reduceth the times of these Scssions to certaintie againet and yet so that the one of these Statutes doeth not frette the other for the latter is an exosition of the former so that it is all one as if they both had bene but one Lawe and shoulde haue said That the Iustices of Peace thall holde their Sessions in euerie quarter of the yeare at the leaste namely in the firste weeke after Sainct Michaell in the firste weeke after the Epiphanic c. Nowe to proue that the Quarter Sessions of the Peace were holden after the prescript of this Statute 2. H. 5. cap. 4. vntyll the time of the Statute 5. Eli. ca. 4. these bée my warrants First M Marrow saith plainly that in his dayes the Quarter Sessions were so holden Secondly for as muche as there can bée no higher auctoritie of exposition then to coÌ„strue one Statute by an other I will shewe you some Statutes also that haue accounted of these Sessions to be holden accordingly At the Generall Sessions after the seast of Sainct Michaell the Custos Rotulorum or in his absence the eldest pf the Quorâ— oughte to appointe two Iustices of the Peace for the oversigt and controlement of the Shintes and their Clarkes c by the Statute 11. H 7. cap. 15. And at the generall Sessions holden at Michaelmas the Iustices of Peace ought to appopynte Searchers for Brasse and â—ewter by the Statutes 19. Henri 7. cap. 6 4. Henri 8. cap. 7. where the worde At muste of necessitie beée vnderstoode for After whether you will take it according to the sayde Statute 2. Henri 5. cap. 4. whyche sayeth plainely After or according to 36 Edward 3. cap. 12. whiche sayeth Within the Vias of Saincte Michaell séeyng that the Vias as eueric man knoweth is atwayes after the feast and not béefore it But to proue two at once whereas the Statute 27. H. 8. ca. 5. had taken order for Iustices of the peace to be made in Cheshire and certain other shires and had willed that they should be sworn to the keeping of their Sessions of the peace c. as other Iustices of the Peace in other the Counties of Englande were it fell out that the Gentlemen and fréeholders of the Countrie of cheshire were much troubled by attending yearely both at the saide 4. quarter Sessions and also at 8 or 9. Countie Courts which they had besides thervpoÌ„ it was prouided by another statute 32. H. 8. ca. 42. the the administration of Iustice before time used in the said CouÌ„tie Courtes should froÌ„ thencefoorth be done executed at two times in the yere only the is to say at the SessioÌ„s next after the feast of S. Michael at the SessioÌ„s next after Easter yerely for euer I might adde that the quarter Sessions in the wéeke next after the Claute of Easter was tyed to the Twesday of that wéeke by the Statute 33. H. S. c. 10. And the it was not without some graue consideration that the Statute 2. H. 5. ca. 4 did commaunde the Sessions of the Peace to be holden ouer all Englande in one and the selfsame weeke But I think it clearely ynoughe proued that hitherto these Quarter Sessions ought to bée directed by that Statute and therfore I will descend to the Statute 5. El. ca. 4. and weigh the time in which they ought to be holden at this verie day The words of that Statute be these As much of all the Statutes heretofore made euerie braunche of them as touche or concerne the hyring keeping departing worKing wages or order of Seruantes Workemen Aruficers Apprentices or Labourers or anye of them and the penalties and forfaitures concerning the same shal be repealed vtterly voide of none effect And that all the saide Statutes and eâ—crie braunche thereof for anie matter contained in them and not repealed by this Statute shall remaine and bee in ful force and effect anye thing in this Statute to the contrarie notwithstanding Vpon this Statute some haue thought the the said Statute 2. H. 5. ca. 4. is repealed concerning the braunche of the Sessions And others do thinke the contrarie and therefore let vs holde the beame and put in balance their resons on either side They of the one side doe alleage that this braunche of the Sessions lyeth in the midst Of that Statute 2. Henrie 5. whiche was made for Labourers and that it was mente only of Sessions to be holden for the order of Labourers and so is within the wordes of repeale And they saye also that it will fall out vnseasonablie to holdte the Sessions especiallye that after Michaelmas according to this Statute bycause the same happeneth verie neare to that tearme of Sainct Michael whereat the presence of manye is no lesse requâ—site than at the Sessioans of the peacâ— They on the other side doe gather vppon the said words of 5. El. cap. 4. that some parts of the Statutes of Labourers must néeds remaine in force notwithstaÌ„ding those words of repeale for otherwise say they the maKers of 5. E1 mighte with lesse laboure of speach have repealed them al at once And threrefore they say that two Statutes of Labourers viz. 12. R. 2. cap. 3 and 23. H. 6. cap. 13. bée yet inforre for so much of them as both concerne Victuallers and like wise that so much of this Statute 2. H. 5. 4. as doth concerne the resiancie of those Iustices of the Peace whiche be named of the QuoruÌ„ and the holding of the Quarter Sessions is vnrepealed also for that that they concerne not the hyring kéeping c or order of seruants c. whych mighte bée done wythout the Setsions of the Peace but the general seruice of the Commission and Statutes that doe aucthorize the Iustices of Peacewhereof also these Scssions be called the Sessions of the Peace And it is not newe in their opinions to finde a generall ordinaunce in a particu lar Statute as in the Statute 38. H. 8. ca. 39. made specially for the erection