to the next Sessions for the Peace and Gaole deliuerie next ensuing after the sayd yeare And if any such person retained depart within the yeare Departing without licēce without the licence of him that so retained him then to be indicted tried and iudged as a felon and not to haue the benefit of his Clergie 33 By a Statute made Anno 31. Elizab. St. 31. El. 4. it was established Imbeciling the K. Armor c. That if any person or persons hauing at any time hereafter the charge or custodie of any Armour Ordnance Munition Shot Powder or Habiliments of Warre of the Quéenes her heires or successors or of a Victuals prouided for the victualing of any Souldiers Gunners Mariners or Pioners shall for any lucre or gaine or wittingly aduisedly and of purpose to hinder or impeach her Maiesties seruice imbecile purloyne or conuey away any the same Armour Ordnance Munition Shot or Powder Habiliments of Warre or Victuals to the value of twentie shillings at one or seuerall times then euerie such offence shall bée adiudged Felonie and the offendor and offendors therein to be tried procéeded on and suffer as in case of Felonie The suit within a yere after the offence But none shall bée impeached for any offence against this Statute vnlesse the same impeachment bée prosecuted or begun within a yeare next after the offence done And this Act nor any attainder or attainders of any person or persons for any offence made felonie by this Act shall in any wise extend or bée interpreted to make the offendor or offendors to forfeit any lands tenements or hereditaments any longer than during his or their life or liues or to make any corruption of blood to any the heire or heires of any such offendor or offendors No corruptiō of blood or forf of dower or to make the wife of any such offendor to loose or forfeit her dower or title of dower of or in any lands tenements or hereditaments or her action or interest to the same Proofe in discharge of the offendor any thing in this Act c. notwithstanding And such person or persons as shall be impeached for any offence made felonie by this Statute shall by vertue of this Act bee receiued and admitted to make any lawfull proofe that hée can by lawfull witnesse or otherwise for his discharge and defence in that behalfe any law c. notwithstanding Cutting downe of Powdike 34 By a Statute made Anno 22. H. 8. and reuiued Anno 2. 3. St. 22. H. 8. Ph. Mar. it was ordained That euerie peruerse and malitious cutting downe and breaking vp of any part or parts of the dike called new Powdike in Marshland in the Countie of Norffolke and the broken dike otherwise called Oldfield dike by Marshland in the isle of Ely in the Countie of Cambridge or of any other banke béeing parcell of the Rinde and vttermost part of the causey of Marshland aforesaid made for the defence and saluation of the sayd countrey of Marshland at euerie time and times from henceforth committed and done otherwise than in working of the sayd bankes or dykes for the fortifying repayring and amending of the same shall bee taken reputed and adiudged Felonie And the offendors and doers of the same and euerie of them shall bée adiudged and reputed felons And the Iustices of Peace of the sayd Counties of Norffolke and Cambridge within the sayd isle at euerie of their Sessions within the same isle and Counties to be kept shall haue power to cause inquirie to bée made of euerie such offence so at any time in forme aforesayd hereafter to bée done and committed and to award like Proces against euerie of the sayd offendors with like iudgement and execution of the same if they or any of them bée found guiltie by verdict or otherwise as the sayd Iustices haue vsed to do vpon other felonies being felonie by the common law Taking the othe for the Kings title 35 By a Statute made Anno 3. Iac. 4. it was enacted St. 3. Iac. 4. That euerie subiect of this Realme that after the tenth day of Iune next comming shall goe or passe out of this Realme to serue any forreine Prince State or Potentate or shall after the sayd tenth day of Iune passe ouer the Seas and there shall voluntarily serue any such forreine Prince State or Potentate not hauing before his or their going or passing taken the othe viz. That our Soueraigne Lord King Iames is lawfull and rightfull King of this Realme c. before the officer thereunto appointed shall be a felon And if any Gentleman or person of high degrée or any person or persons which hath borne or shall beare any office or place of Captaine Lieutenant or any other place charge or office in Campe Armie or Companie of Souldiers or Conductor of Souldiers shall after go or passe voluntarily out of this Realme to serue any such forrein Prince State or Potentat before that he and they shal become bound with two such suerties as shall be allowed of by the officers by this Act limited to take the said bond vnto the K. his heires or successors in the summe of xx.l. of currant English money at the least bound not to be reconciled nor to make conspiracie with condition to the effect following he shall be a felon viz. That if the within bounden c. shal not at any time thē after be recōciled to the pope or sea of Rome nor shal enter into or consent vnto any practise plot or conspiracie whatsoeuer against the Kings Maiestie his heires and successors or any of his or their estate and estates realms and dominions but shall within cōuenient time after knowledge therof had reueale disclose to the K. Maiestie his heires and successors or some of the Lords of his or their priuie Counsell all such practises plots and conspiracies then the said Obligation to be void St. 43. El. 13 36 By the stat made Anno 43. El. it was ordained Forcible carrying any person out of Cumberland c. That whosoeuer shall at any time hereafter without lawfull authoritie take away any of the K. subiects against his or their will or wils and carrie them out of the counties of Cumberland Northumberland Westmerland and the Bishopricke of Durham or to any other place within any of the said Counties or detaine force or imprison him or them as prisoners or against his or their wills to ransome them or to make a prey or spoyle of his or their person or goods vpon deadly fewd or otherwise Or whosoeuer shal be priuie consenting aiding or assisting to any such taking detaining or carrying away of any such person or persons as aforesaid Or whosoeuer shall take receiue or carrie to the vse of himselfe or wittingly to the vse of any other any money corne cattell or other consideration commonly called Blacke mayle for the protecting or defending of him or
any other priuat person who intrudeth himselfe without warrant to be a censor of manners rather séeketh the discredite of the partie then the reformation of his faults for this secreat searching into sifting of other mens conditions dyuing into their offences divulging them to their discredites doth conuince the offendor to be a man of lewde disposition to haue made shipwracke of his conscience doth brand him during his life with the name of an infamous Libeller or slaunderous backbiter And therefore by Gods owne commandement it is specially giuen in charge to euery of his people Non maledices principi populi tui Non fasias calumniam proximo tuo Psal 100. And king Dauid saith Detrahentem secreto proximo suo hunc persequebar And God doth threaten that he himselfe will take reuenge of the slaunderer Psal 49. saying Sedens aduersus fratrem tuum loquebaris aduersus filium matris tuae ponebas scandalum haec fecisti tacui exictimasti inique quod ero tui similis sed arguam te et statuam contra faciem tuam And as infamous libelling secret defaming be oft times the causes of grudges séeking of reuenge and thereby of quarrels in like sort words of slaunder or spéeches of disgrace openly published to the face of an other or behind his backe be also firebrands of variance dissention fighting and the shedding of bloud and so be speciall meanes of the breach of the peace Action vpon the case for slaunder is contra pacem As it may partly appeare by the words of the kings writ alwayes inserted in an action vpon the case brought by one person against an other for speaking of slaunderous words in which writ it is supposed that the words were spoken Ad graue damnum ipsius querentis contra pacem nostram And the same is further proued by the words of the statute of An̄ 2. St. 2. R. 2. 5. R. 2. whereby it is ordeined That because publishing of false newes tales and lyes of Prelates Dukes Earles Barons Slaundering of Noble men or great Officers other noble and great men of the Realme or of the Chauncellor Treasorer Clerke of the priuie Seale Steward of the Kings house Iustice of the one Bench or of the other or of other great Officers of the Realme debate discord or matter of discord or slaunder may rise betwéene the Lords commons whereof great perill may come to the Realme and spéedy subuersion destruction of the same therefore it was enacted by the said statute That if any do commit the before specified offence he shall be taken imprisoned according to the statute of Westm̄ 1. St. 3. E. 1. 34. vntill he hath brought forth him which did speake the same St. 12. R. 2. 41. And further by an other statute made An̄ 2. R. 2. it was moreouer enacted That when the said offendor is taken imprisoned and can not find him that spake the words then he shall be punished by the aduise of the Councell And to the intent that such euill disposed persons which by their lewde spéeches slaunderous words or reports do indeuor to breake or disquiet the peace of the Realme Sta. 1. 2. P. M. 3. might the sooner be inquired of found out punished By a stat made An̄ 1. 2. P. M. it was further established That the Iustices of peace in euery shire citie towne corporat within the limits of their seuerall commissions shall haue full power to examin heare determine the causes abouesaid in the said 2. acts of 3. E. 1. 2. R. 2. specified to put the said 2. stat euery branch in them conteyned in due execution that condigne punishment be not deferred from such offendors And besides the before mentioned penalties assigned to be inflicted vpon transgressors by the foresaid stat euery noble man or great officer of the realme against whom any scandalous words 11. El. Dy. 285. Co. li. 4. 12. false newes or lies be spoken may prosecute against the offendor an action De scandalis magnatū recouer damages against him And in like sort may euery inferior person for any such like words of infamie spoken against him pursue an action vpon his case against the offēdor recouer his damages And further if one person shall exhibit a bill in the Starre chamber against an other amongst other things charge him with murder piracy robbery or other felony or to be a procurer thereof or accessory thereunto or with any other offence which is not examinable in the said court the defendāt in the said bil may prosecute against the complainant therein an action vpon the case recouer his damages for this bil was exhibited of malice by the complainant to remaine of record in the said court to the infamie slander of the defendant not to punish him for the said offences suggested in the sāe bil by a course of justice séeing the court of Starre chamber hath no authoritie to inquire of or punish the same offences But if the complainant doth suggest in his said bill of complaint any matter against the defendant which is examinable in the said court then no action vpon the case is maintenable against him by the defendant therefore though the matter surmised be méerely false for it is done in a course of justice Et sub iudice lis est whether the matters suggested be true or false vntil they be proued And in former ages spéeches tēding to the reproch of others were so odious that K. Edgar ordeined that his tongue should be cut out which did speake any infamous or slaunderous words of an other Edg. Lex 4. But though it be true as is aforesaid that infamous libels secret defamations or publick slanders or reproches be oft times more offensiue to the party taxed therby then open menaces and threates of violence are Yet séeing for the most part menaces springing out of distemperat cholericke humors do more hastilie break forth into further fury extremities tending to the breach of the peace then libelling secret defamation doe which must haue a breathing time to be inquired of bolted forth and then to be punished Therefore I will omit to write any further of libelling or defamation goe forward with menaces c. tota sequela sua 2 Menaces assaults batteries be things of seuerall natures yet for the most part they tend to one effect viz. to hurt him against whom they are bent menacing is a threatening of some hurt to be done or procured by the speaker or some other by his meanes to the person of the hearer or his wife seruant tenant or other The differēce of menace assault and battery whereby he receiueth losse or hurt Assault is an attempt to execute the thing menaced by force violence Battery is the performing of the thing before threatened viz. the beating
Tithingman of the same parish of L. he was by this defendant stripped naked from the middle vpward and openly whipped vntill his body was bloudy And the same law is if any Iustice of peace Maior Bailife or other head officer shall commit any offendor which shall cut or vnlawfully take away any corne or graine growing or robbe any orchards or gardens or breake or cut any hedge pales railes or fence or digge pul vp or take vp any fruit trées or trées in any orchard garden or elsewhere to the intent to take cary the same away Or shall cut or spoile any woods or vnderwoods poles or trées standing not being felony by the lawes of this Realme Or shall be a procuror or receiuor knowing the same contrary to the statute therefore made An. 43. El. intituled Sta. 43. El. 7. an act to auoid and preuent diuers misdemeanors in lewd and idle persons shal be committed by a I. of Peace or by a head officer of a city borough c. to some Constable or other inferiour officer of the city borough Towne or Hamlet where the offence shall be committed or the partie apprehended to be whipped If in this case the said Constable or other inferior officer shall whip the same offendor vntill his body shal be bloudie the same offendor shall neither haue an action of Trespas of assault battery nor other remedy against the said Constable or officer for in the foresaid cases Punishments by the order of law in all other cases where an offendor is punished for petit Larceny by whipping for other offences by the pillorie the stocks the tumbrell or otherwise for any offeÌ„ce committed by him contrary to any of the lawes or statutes of the Realme there is no peace broken nor blame to be imputed to him or them which do execute that punishment for it is the iustice of the law which doth inflict those punishments vpon offendors for transgressing the law the executioners of those punishments be but the instruments of the law as the axe is in the Carpenters hand Battery for disobeying of a writ or warrant 24 In an action of Trespas of assault battery 21. H. 7. 39. Fitz. Trespas 108. it is a good plea for the def to plead that he had a warrant to arrest the plaintife and that by force of that warrant he did arrest him then the plaintife made assault vpon him therefore the hurt which he receiued was by his own assault for euery subiect is bouÌ„d to obey the K. writs all mandates precepts warrants awarded by his Iustices shirifes and officers sufficiently authorized And he that doth resist them or denyeth to obey them encountreth the iustice of the law and therefore the beating of him who refuseth to submit himselfe to the obedience of the Law is no breach of the peace but a meane to performe the law 25 Though the Law hath a regard to preserue peace betwéen all persons and in all places and caryeth a vigilant eye that one person shall not menace assault beate maihem or imprison an other but in certaine cases and for some speciall causes and imposeth an heauie burden vpon such as shall breake that peace by any of the meanes aforesaid Yet she hath a more speciall respect to some ceraine places to some tymes and to some persons and caryeth that reuerend and due care and consideration of them that she inflicteth a more sharpe and bitter punishment vpon such as shall violate the peace in them or to the offence of them And therefore for the auoiding of the disturbance of the peace in the Church where God is to be honoured and all peace to be preserued and to continue peace to preists clerks and others whilest they are dooing diuine seruice There was a statute made Anno 50. E. 3. and after rehersed and continued Anno 1. Sta. 50. E. 3. 1. 1. R. 2. 15. R. 2. whereby it was enacted That if any of the Kings officers or other person doe arrest any priest clerke or other Arresting one in a Church dooing diuine seruice which is doing any diuine seruice in the Church Churchyard or other place dedicated to God he shall be imprisoned and punished at the Kings pleasure and further shall recompence the partie arrested But no people of the Church shall kéepe them within the Church or Sanctuarie by fraud or â—ellusion 26 And because it is most necessarie in euery Christian common weale to prouide that peace and tranquility may be preserued and continued among the people and specially in holy Church in the time of diuine seruice and preaching and that all things being contrary thereunto or that are or may be in disturbance thereof may by forsight be eschewed and auoyded and remedy therefore prouided Sta. 1. M. 3. By a like statute made Anno 1. Reg. M. it was ordeined That if any person of his owne authoritie Disturbance of a preacher in his sermon shall willingly and of purpose by open words or déeds maliciously or contemtuously disturbe or by any other vnlawfull wayes disquiet or misuse any Preacher allowed to preach by the Quéene or by any Archbishop or Bishop of this realme or by any other lawfull Ordinary or by any of the Vniuersities of Oxford and Cambridge or otherwise lawfully authorized or charged by reason of his cure benefice or spirituall promotion or charge in his open sermon preaching or collation that he shall preach or pronounce in any Church Chappell or Churchyard or in any other place vsed or appointed then euery such offendor his aydors procurors or abbettors immediatly after any of the said misdemeanors committed or at any time after shal be arrested by any Constable or Churchwarden of the said parish towne or place where the said offence shal be so committed or by any other officer or by any other person then being present at the time of the said offence and carried to any Iustice of peace within the said shire or within any City borough Libertie or towne corporat wherein Iust of P. be where the said offence shal be so committed And the said Iustices vpon due accusations thereupon made by the apprehendor or other person of the offendor forthwith shal commit him to safe kéeping within 6. days immediatly after the said accusation so made the said Iust with one other Iust of P. within the shire city borough liberty or town corporat shal diligently examin the offence aforesaid And if the said two Iustices shall vpon their examination find the person so accused guiltie of any of the said offences whereof he shall be accused and that by two sufficient witnesses or by his confession then they shall commit him to the Gaole of the said Shire City Borough c. where the offence was committed there to remaine without baile or mainprise by the space of thrée moneths then next ensuing and further to the next quarter sessions c.
Leges Aluredi cap. 7. That if any man did strike or draw a weapon of iron to strike in the Kings pallace the King might it he pleased put him to death 29 Because they which vpon the Kings commaundement do come to his councell or vpon his summons doe resort to his Parliament doe make their repaire thitherto further the wealth and peace of the Realme it hath béen therfore thought reason that during the time of the said councel Parliament they should not be depriued of that peace which they endeaour to procure to others and themselues Assault vpon one which cōmeth to the Parliament Wherefore by a Statute made Anno 11. H. 6. Stat. 11. H. 6. 11. it was ordeined That if any assault or fray be made vpon any Lord Spirituall or Temporall Knight of the Shire Citizen or Burgesse which commeth to the Parliament or to the Kings Councell by his commaundement and there being and attending then Proclamation shall be made in the most open place of the Towne where the fray was made by thrée seuerall dayes that the partie which made such affraye or assault shall yéeld himselfe in the Kings Bench within a quarter of a yeare next after the Proclamation made if it be in the Terme tyme or otherwise at the first day of the Terme following the said quarter And if he doe not he shall be attainted of the deede and pay to the party grieued his double dammages to be taxed by the discretion of the Iustices of the same bench or by the inquest if it be needfull and shall make fine and ransom at the Kings pleasure And if he come and be found guiltie by inquest by examination or otherwise of such affray or assault then he shall pay to the partie grieued his double dammages found by the inquest or to be taxed by the discretion of the said Iustices and make fine and ransom at the Kings pleasure Assaulting the seruant of a Parliament man And by the Statute made Anno 5. H. 4. it was enacted St. 5. H. 4. 6. That he shall haue the like punishment which maketh assault or fray in the Parliament tyme vpon any meniall seruant of any Knight of the Parliament Citizen Burgesse c. which doth come to the Parliament with his master The libertie of the Clergie as a conuocation And by the Statute of Anno 8. H. 6. it was prouided St. 8. H. 6. 1. That al the Clergie which be called to the conuocation by the Kings writ and all their seruants and familiars shall fully vse and enioy such libertie or defence in comming tarying and returning as the great men and Commons of the Realme haue or are wont or ought to enioy which are called to the Parliament 30 Séeing the wealth and peace of the Realme doth chiefely consist in the due execution of Iustice which cannot be ministred without méete persons and places ordeined therefore for that cause the Law hath specially prouided that those persons and places which be designed to the same Administration of Iustice shall be so guarded and protected from force and violence offered vnto them or in them that shee hath inflicted déeper and more greiuous punishments to those who shall breake or disturbe the peace in the presence of those Magistrates or in those places than to them who shall breake the peace in the Kings own pallace where he is in person abiding or in the Parliament time ordeined for the making of Laws Assaulting a Iudge or Iuror And therefore it hath bene adiudged 22. Ed. 3. 13. That if one draw his sword to strike a Iustice assigned sitting in place of iudgement and be thereof found guiltie he shall forfeite his lands and chattels and haue his right hand cut off And likewise if one in the presence of the Iustices doe strike a Iuror he shall forfeite his lands and goods haue his right hand striken off and be committed to perpetuall prison And the same Law is if one of the Kings Iustices assigned doth arrest any person which hath made a fray before him and a straunger will rescue that prisoner whereby he doth escape in this case as well the prisoner as he that made the rescous shall be disherited and be perpetually imprisoned for that the attachment of such a Iustice is the Kings owne attachment in the construction of the Law Striking in time or place of Iustice And if one doe strike an other in Westminster Hall Fitz Cor. 280. 2. 3. P. M. Dy. 188. during the time that the Kings Courts do sit hee shall forfeite to the King his lands and goods haue his right hand cut off and bee committed to perpetuall prison 4. H. 7. 2. 31 In an action of Trespas of assault and batterie the defendant pleaded Arresting by watchmen that there were diuers felonies committed in those parts where he dwelt and he being watching in his house came into the high Stréete where the plaintife was at eleuen of the clocke in the night and the defendant came vnto him and laid his hands in peaceable maner vpon him to sée his face and when he perceiued that he was a true man he left him departed which was the same assault and batterie And this was allowed to be a good iustification for by the statute of Winchester watchmen may arrest Nightwalkers and also may appose them from whence they come and what they be but they must be such watchmen as be appointed by the Towne And so euery man may arrest Nightwalkers for it is for the good of the Common wealth The same law is in an action of Trespas brought of the assault and batterie of his seruant 4. H. 7. 18. 5. H. 7. 5. 2. Ed. 4. 8. whereby he did loose his seruice 3. daies and the defendant pleaded that A. was robbed at midnight of goods to the value of xl s̄ whereupon the said A. came to the Constable and prayed him to search for suspicious persons and to apprehend and arrest them and accordingly he did search and found the same seruant walking suspiciously in the stréete in the night and therefore he would haue arrested him but the said seruant fled and would not yéeld to the arrest and the defendant by the Constables commaundement pursued and tooke him This was adiudged a good plea in barre for when a felonie is committed the Constable or any others may arrest suspitious persons and if any that is arrested will not yéeld but assault him or them that do arrest him they may iustifie the beating of him for that he doth resist the peace and iustice of the Realme when he doth forciblie striue to flie and not to be iustified by it 30. Ed. 3. 4. 29. Ass p. 63. 28. Ed. 3. 92. 6. H. 4. 7. 32 If a man be assaulted and beaten Trespas for batterie before outlawrie and then be outlawed in an action of Trespas and after doth purchase his
Ed. 1. 25. and doth not except an Enfant By the statute of Westm̄ 2. if he that is named a disseisour in an Assise do personally alleage any false exception whereby the taking of the assise is deferred viz. that at an other time an assise of the said tenements passed betwéene the said parties or that a writ of higher nature is depending betwéene them of the said tenements Imp. for failing of a record pleaded and doth vouch any rols or records to warrant the same and at the day giuen he faileth of his warrant he shall be adiudged a disseisour without recognizance of the assise and shall restore double dammages of that which shall be found and for his falshood shall be one yeare imprysoned And fourthly a man in diuers cases shall bee imprysoned for his stubbornesse wilfulnesse disobedience and contempt to subiugate and submit himselfe to the censure and iudgement of the Law and to performe accomplish that which the law doth expect at the hands of him and all others being in his case As if a Quid iuris clamat or Per quae seruitia be brought against a man Imp. for not atturning who doth appeare in Court and will not atturne to the plaintife nor plead in barre he shall be imprisoned for his stubbornes And if the tenant that ought to do homage or fealtie to his Lord Imprisonmēt for not doing his true seruice do appeare in Court and will not do such of the said seruices as be claimed of him neither plead in barre thereof Fitz. Per q̄ seruitia 23. he shall be imprisoned vntill he will do his foresaid seruices for his wilfull contempt of the law and disobedience to justice And if a writ of Estrepement be directed to the Shirife to prohibit him to commit wast in lands against whom a reall action Co. Lib. 5. 105. or action of Wast is depending for or touching the same lands the Shirife by force of the same writ may resist him who would do wast And if he cannot otherwise redresse the offence he may impryson him if néed be he may take the power of the Countie to assist him for this disobeying of the Kings writ and resistance of the Shirife is a wilfull frowardnesse and contempt of the law in the offendor and therefore he deserueth to tast the smart of the Law by imprisonment for his contumacy And in like sort by the statute of An̄ 27. Stat. 27. H. 8. 20. Stat. 32. H. 8. 7. H. 8. An̄ 32. H. 8. it was ordeined That if any person after sentence difinitiue giuen against him by the Ordinarie his Commissarie or other competent minister or lawfull Iudge do obstinatly refuse to pay his Tythes or duties or such summes of money adiudged wherein he is condemned for the same Then two Iustices of the peace of the same Shire whereof one to be of the Quorum shall haue authoritie vpon information Imp. for obstinate refusing to performe the Ordinaries sentence certificat or complaint made in writing by the ecclesiasticall Iudge that gaue the same sentence to cause the same person so refusing to be attached and committed to the next Gaole and there to remaine without bayle or mainprise vntill he hath found sufficient suerties to be bound by Recognizance or otherwise before the same Iustices to the vse of the King to performe the said sentence In the same maner may any one of the Kings Councell or two Iustices of peace vpon an Information or request made to them by the Ordinary St. 27. H. 8. 20. commit any offendor to ward for any contempt contumacie disobedience or any other misdemeanour of his in any suit for subtraction of Tythes offerings and other duties of the Church vntill he hath found suerties c. vt gladius gladium iuuet What is Matheining 58 Maiheming is an other gréeuance in the Realme and a speciall cause to disturbe the peace And that is when one member of the Common weale shall take from an other member of the same a naturall member of his bodie or the vse and benefit thereof and thereby disable him to serue the common weale by his weapons in the time of warre or by his labour in the time of peace and also diminisheth the strength of his body and weaken him thereby to get his owne lyuing and by that meanes the common weale is in a sort depriued of the vse of one of her members How many sorts there be of maiheming 59 This maiheming is a dismembring of a man or taking away some member or part of his body or the vse thereof As when a wound blow or hurt is giuen or done by one person or more to an other person whereby he is the lesse able to defend himselfe in the time of warre or to get his lyuing in time of peace And therefore if a man do put out the eye or cut off the hand or foote or any ioynt of the hand or foote of an other it is a Maihem though it be done by chaunce medley Sta. 5. H. 4. 5 But if one man of malice pretended do cut out the tongue or put out the eyes of any of the Kings subiects it is Felonie And if one man do crush the mouth or head of an other or break out his fore-téeth it is a maihem for with them he may defend him selfe in battaile but to breake his hinder téeth or to cut off his Nose Fitz. Corone 458. or Eares whereby he loseth his hearing is no maihem but a deformitie or blemish of his bodie and no weakning of his strength It is a Maihem to pull any boane out of a mans head or to cut off any finger of a mans hand 28. Ed. 3 94. Lib. in t fol. 45. or to breake any of them so that they become shronke vp or dried vp or dead or crooked Gelding of a man is also a maihem though it be in a secret place yet it maketh him more féeble and vnable to defend himselfe in in bataile or to worke for his liuing If by any wound receiued the sinewes or vaines of a man be shronke vp it is a maihem To cut off the chéeke or iawbone of any person Lib. intur fol. 45. or so to crush or breake any of them that the same person is the lesse able to take his meate or drinke is a maihem If one person or more doe take an other person by force and put him in the stocks or otherwise bind him fast and after poure so much skalding what oyle and vinegar or hoat melted lead or other skalding licor vpon any part of his body and so continue it vntill it doth wast and consume the flesh of the same part and drie vp and mortifie the veynes and sinewes of the same parte it is a maihem If A. do strike at B. and the weapon wherwith he striketh breaking or falling out of his hand by the force of the blow doth put
commission do only tend to the maintenance of justice the roote foundation and supporter of peace And whereas the King by the words of the said Commission doth appoint the persons therin named his Iustices to preserue his peace The Commission doth chiefely respect the peace and to kéepe and cause to be kept all ordinaunces and Statutes made for the conseruation of the peace and the quiet gouernment of his people These Statuts amongst many others chiefly be intended Sta. 2. E. 3. 6. 18. E. 3. 2. 34. Ed. 3. 1. the Statutes of Anno 2. Ed. 3. 18. Ed. 3. 34. Ed. 3. by which it is ordained that Iustices of peace shall haue power to heare and determine at the Kings suit all manner of felonies Why they be called Iustices of Peace and Trespasses committed against the peace in the same County and to restraine offendors riottors all other barretors and to pursue take and chasten them to imprison and punish them according to their Trespas and offence and to informe them according to the said Iustices discretion And to inquire of all those that haue béen pillers and robbers beyond the Sea and become againe and goe wandring and will not labour as they had wont to doe And to take and arrest all those which they can find by inditement or suspition and to commit them to prison Binding persons suspected to their good behauiour And to take of all those which be not of good fame in the place where they remaine sufficient suertie and maineprise of their good abearing or behauiour towards the King and his people and the other duelie to punish To the intent that the people be not by such Rioters troubled or endammaged nor the peace broken nor any passengers by the way disturbed or put in perill But the fines which Iustices shall assesse vpon any person shall be reasonable hauing regard the quantitie of the Trespas and the cause 70 So that it appeareth both by the words of the said Commission of peace A Iustice taking suertie of the peace and also by the foresaid Statutes That a Iustice of peace by vertue of his office hath authoritie to preuent the breach of the peace both by taking suertie for the kéeping of it and for the good behauiour of the offendors And that he may do either of his owne motion or discretion or els at the request or praier of an other And by his owne discretion he may cause a common Barretor Rioter or one that maketh an affray in his presence or other person to him suspected to be inclyned to the breach of the peace 9. E. 4. 3. or men menacing one to hurt or kill an other or contending in whote words to finde suertie of the peace And he may perswade one man to require the suertie of peace against an other man and he himselfe after may graunt it for it is no more then he might haue done of his owne authoritie which suertie of the peace What the suertie of the peace is is a recognizance taken by the said Iustice of peace of the partie and his suerties to the King for the kéeping of the peace And as a Iustice of peace may take this suertie of peace or suertie of good abearing as a Iudge by vertue of his office So may he doe it as a minister by force of a Supplicauit directed vnto him out of the Chauncerie Taking suerty of the peace by a Supplicauit in which case he is then only to direct his precept to compell the partie vpon the writ to finde suertie of the peace Which Supplicauit out of the Chauncerie is sometime directed to one Iustice of peace alone sometime to moe and sometime to the Shirife and sometime to him with others And then the same Iustice or Iustices of peace or Shirife must make retorne of the said writ of Supplicauit and a Certificat of his doing into the Court from whence the same was awarded And if the said Iustice of peace shall take the said Recognizance for the kéeping of the peace by vertue of his office Sta. 3. H. 7. 1 then by force of the Statute of Anno 3. H. 7. he shall certifie sende Certificat of a Recognizance or bring the same Recognizance at the next Sessions of the peace where he is or hath bin Iustice that the party so bound may be called And if the partie make default the same then there to be recorded And the same Recognizance with the record of that default shall be sent and certified into the Chauncerie the Kings Bench or into the Exchequer Suertie of good abearing And the suertie of good abearing is granted by authority of the foresaid commission of peace by the warrant of the before rehearsed statut of 34. E. 3. aswell as the suerty of peace is it is ordained for the preseruation of the peace it doth differ in nothing frō that of the peace but that there is more difficultie in the performance of it and the party bound may sooner slide into the peril danger of it The suerty of good abearing is most commonly granted in open sessions or by two or thrée Iust of P. Or vpon a Supplicauit great cause shewed proued it is granted in the Chancery or K. Bench. And though one Iustice of peace alone may grant it if he will yet it is sildom done so 9. E. 4. 3. Kel fo 41. vnles it be to preuent some great sodain imminent enormity or danger The suerty of peace is most times taken at the request of one for the preseruation of the peace chiefely against one But the suerty of good abearing is oftentimes graunted at the suit of diuers and those must be men of credit and to prouide for the safetie of many for the effect and purport thereof is that the partie bound shall demeane himselfe well in his port behauiour and company and doe nothing that may be the cause of the breach of the peace or in putting the people in feare or trouble And it is chieflie graunted against common Barretors common rioters common quarrellers common peace breakers and persons greatly defamed for resorting to houses suspected to maintaine incontinencie or adulterie and against those that be generally feared to be robbers or spoilers of the Kings people or which doe endamage disturbe trouble Articles exhibited to haue good abearing granted or put in peril passengers by the way Co. li. 4. 14. And therefore if one doe exhibit Articles to Iustices of peace against a certaine person comprehending diuers great abuses and misdemeanors not onely touching the Petitioner himselfe but many others to the intent that the same person may be bound to his good behauiour in this case the partie so accused shall not for any matter conteined in the said Articles maintaine an action vpon the case for the party or parties who exhibited the said Articles haue pursued an ordinarie course
of Iust nothing was attempted but the reformation of the mans conditions and to haue the peace and good behauiour continued The suertie of good abearing in other cases then for the peace And though this suerty of good abearing is chiefely prouided for the continuance of the peace yet by force of seuerall Statutes it is also grauntable in some other cases St. 10. E. â— 3 As if the King do graunt to any person a charter of pardon of any felony then he shall come within thrée Monthes before the Shirife and Coronors of the same Countie where the felony was done finde sixe sufficient Mainpernours for whom the said Shirife and Coronors will answere that he from thenceforth shall beare him selfe well and lawfully Sta. 1. M. 3 And if any man disturbe a Preacher in his Sermon he shall be bound to his good abearing for one yeare St. 3. Iac. 19. 5. El. 21. And he shall be bound to his good abearing for seauen yeares who doth vnlawfully hunt and steale deare or conies or take away wrongfully any haukes or haukes egges or shall vnlawfullie distroy or breake the head or damme of any pond poole moate stagne or stew whereas fish are put or shall wrongfully fish in any of them to the intent to steale or take away any of them against the will of the owner or possessor of the same not hauing lawfull authoritie so to doe And he shall be bound with two sufficient suerties in CC. Sta. 23. El. 1. l. to the good behauiour which doth absent himselfe from the Church by the space of twelue moneths c. 71 Because it appeareth by the words of the foresaid commission of peace that the said Iustices of peace shal cause al those to finde suerty of peace which doe threaten any of the Kings people to hurt them in body or to burne their houses For whom against whom the suertie of peace is to be graunted Therefore all lay persons vnder the degrée of Lords or Péers of the Realme and also Ecclesiasticall persons if they be not attendant vpon diuine seruice may be arrested to finde suerty for the peace And if the husband do threaten to kill his wife or outragiously to beate her or that she hath any notorious cause to feare that he will doe so Fitz. Nat. Bre. 80. 239. she may demaund the suertie of the peace against him and she shall haue it graunted And in like sort and for the like causes may the husband demaund suertie of the peace against his wife in which case shée her selfe shall not be bound but others shal be bound for her And a Iustice of peace vpon his owne discretion may in either of the foresaid cases grant suertie of peace And one Iustice of peace may vpon his owne discretion or at the request of an other graunt the suertie of peace against an other of his felow Iustices of peace of the same county And one Iustice of peace may demaund suertie of peace of an other of his fellow Iustices against an other man A man attainted of Treason or Felony or in a Praemunire A man attainted An Heretike A Dumb man An Enfant A Villeine or abiured or conuict of Heresie a dumbe man or an Enfant within the age of xiiij yeares may demaund ought vpon cause to haue suertie of peace And so may a Villeine haue suertie of peace against his Lord least that his Lord should maihem him the Lord may haue suertie of peace against his villein A dumbe man or an Enfant aboue the age of xiiij yeare may also be inforced to find suerties for the kéeping of the peace but then themselues are not to be bound but some others for them Or else they must be committed to prison vntill they can find suerties A Iustice of peace cannot graunt suertie of peace against a Baron of the Realme nor any other aboue the degrée of a Baron A Baron But the party who would haue the peace against him must bring him by Subpoena into the Chauncerie Fitzh Subpoena 20. there he must be bound to the peace A man that is frantike shall not haue the suertie of peace of his owne demaund A mad man because he hath not discretion to request it But a Iustice of peace vpon his own discretion may bind an other to kéepe the peace against him if he sée cause thereof Neither shall he who is a Alien borne no Denizen An Alien nor in friendship with the King the Realme haue suertie of peace graunted him 17. Ed. 4. 4. 72 If a man do threaten an other to imprison him the partie threatned shall not haue the suertie of peace against him that did so menace him Vpon what cause the suertie of peace is to be graunted for that after he is imprisoned he may haue against the other a Homine replegiando or an action of false imprisonment and recouer damages so be recompenced for his imprisonment But if one man do threaten an other to beate him the partie threatned may haue the suertie of peace against him for that beating may tend to the maiheming or killing of him which the suertie of peace might haue preuented If a man do feare that an other will kill him maihem him hurt him in bodie or burne his house or procure or cause the same to be done and will come before a Iustice of peace Fitz. Na. B. 79. take his corporall oath to that effect the Iustice of peace is to graunt him the suertie of peace against the man complained of for that may satisfie the conscience of the said Iustice that the partie doth complaine vpon méere feare and not vpon malice or vexation And though the partie against whom the peace is demaunded may séeme to the Iustice of peace to be a simple person weake féeble impotent or far vnable to incounter by force and strength with him that demaundeth the suertie of peace yet he may procure or cause the other to be slaine maihemed beaten or his house to be burned And further if the party that doth complaine and desiâ—eth the suertie of peace will sweare that he doth feare where indéed he neither doth feare nor hath cause of feare yet his oath doth therein discharge the conscience and oath of the Iustice of peace And the whole fault if any be shall be iustly imputed to the complainor 73 And whereas the words of the kings Commission be Suertie of peace inioyned by word or writing That the said Iustices of peace shal cause all those to find suertie of peace which do threaten any of the kings people to hurt them in bodie or to burne their houses It is to be obserued that in some cases a Iustice of peace may by his owne word only cause suertie of peace to be found sometime he must do it by writing As if one man do in the presence hearing
of a Iust of peace threaten to kill maihem wound or beate an other or to burne his house or in his presence do offer to strike or beate an other the Iustice of peace may commaund him by word to find suertie of peace Or if one man will demaund of a Iustice of peace the suertie of the peace against an other man who is then in the presence of the said Iustice of peace and will then and there be sworne that he is affraid of him the Iustice of peace may by word commaund the same partie to find suertie of peace or otherwise he may commaund the Shirife Bailife or some knowen officer or his owne seruant being then present to arrest the same partie and to bring him before him to find suertie of peace But if the partie against whom the peace is demaunded or the Shirife or Baylife be absent and not at that time in the presence of the Iustice of peace Then the same Iustice must make a warrant or precept in writing to the Constables Boursholders Tythingmen c. or to any other man though he be no Officer to arrest the same partie and to bring him before him or some of his fellow Iustices to find suertie of peace In which Precept must be conteined the cause why the peace was graunted and at whose suit to the intent that the partie to be bound may prouide his suerties ready and take them with him to the Iustice of peace Suertie of peace commaunded by writing And the warrant ought to beare date of the place where it was made 14. H. 8. 18. to the intent that if an action of False imprisonment be brought against him that made the same arrest by force of that warrant the defendant in his plea must shew the place where it was made If suertie of peace be required of a Iustice of peace of one County which at that time remayneth out of the Countie where he is Iustice against a man of the Countie where he is Iustice the same Iustice may graunt a precept to be serued in the Countie where he is Iustice A Iustice remayning out of the countie But when the partie shall be warned to find suerties Plow Com. fol. 37. 13. Ed. 4. 8. the officer must not carrie him out of that Countie to the Iustice that made the precept but to some other Iustice of that Countie for a Iustice hath no authoritie but in the Countie where he is Iustice The seruing of proces for the peace 74 If a Precept be made by a Iustice of peace either as he is a Iudge or as he is a minister to two men to arrest a man to find suertie of the peace yet one of them alone may do it If it be directed to the Shirife he may commaund his Vndershirife Bailife or other sworne or knowen officer to serue it Who may serue a warrant without writing who not without any precept by writing But if he will commaund an other man that is no knowen officer to serue it he must deliuer him a precept in writing for otherwise he doth if not by sufficient warrant so a writ of False imprysonment will lie against him for the arrest And if a Iust of peace do direct his warrant to the Shirifes Bailife his owne seruant or to a stranger to arrest one for to find suertie of the peace the partie to whom that warrant is made must serue it himselfe for he can commaund none other to do it either by precept or word A sworne knowen officer be he Shirife Vndershirife or Bailife Who may serue a warrant without shewing of it and who not c. 8. E. 4. 14. 20. H. 7. 13. néed not to shew his warrant to a man when he commeth to serue it vpon him for his knowen office doth authorize him But if a Iustice of peace will direct his warrant to his seruant or to an other stranger to serue he must shew his warrant to the partie if he will demaund it or otherwise the partie may make resistance and néed not to obey it And if the party against whom the suertie of the peace is graunted Refusing to obey the Iustices warrāt will vpon the seruing of the Iustices precept refuse to come to be bound to the peace the partie to whom the warrant is directed may commit him to the gaole of the same Countie there to remaine vntill he will find suerties A warrant for the peace Buck. The forme of which warrant for the peace is this viz. Anthonius Greenway Miles vnus Iusticiariorum domini Regis nunc ad pacem in Comitatu praedicto conseruandam assignatus vicecomiti comitatus praedicti Nec non omnibus singulis Balliuis Constabularijs ceterisque Dn̄i Regis ministris tam infra libertates quam extra in eodem com̄ salutem Quia A. B. de Bechampton in comitatu praedicto Taylor venit coram me sacramentū praestitit corporale quod ipse sibi metuit damnum vel malum de vita mutilatione membrorum per R.C. de Stonistratford in comitatu praedict ' Butcher vel per alium per eius procurationem ficri Ideo vobis cuilibet vestrū exparte dicti Domini Regis mando quod capiatis seu vnus vestrum capiat p̄fatū R. C. ita quod habeatis seu vnus vestrū habeat corpus eius coram me vel aliquo sociorum meorum Iusticiaor̄ dicti dn̄i Regis ad pacem in p̄dict Comitur conseruandā assignatur quā cito capi possit ad inueniendā sufficientē securitatē quod ipse aliquod malum vel damnum de vita seu mutilitatione membrorū dicto A. B. non faciet nec fieri procurabit quouismodo Et si hoc facere recusauerit tunc ipsū R. C. Gaole dicti dn̄i Regis in comitatu p̄dict ' duci faciatur seu vnus vestrum duci faciat ibidem moraturum quousque hoc gratis facere voluerit Et qualiter hoc praeceptū fuerit executum scire facias dictis Iusticiarijs ad proxima generalem Sessionem pacis in com' paedict ' tenendam habeas ibi tunc hoc preceptum Dat. apud Lecomstead c. 21. H. 7. 21. Co. li. 5. 59. 75 If a Iustice of peace doe direct his warrant to a Constable or other officer to arrest one and to bring him before the same Iustice To which Iustice of peace the partie arrested is to be brought or some other of his companions to find suertie of the peace and he doth arrest him accordingly but will not bring him before such a Iustice of peace as the partie arrested will nominate but before some other yet notwithstanding the party arrested shall not haue an action of false Imprisonment or an action of the case nor other remedy against the same Constable or officer for it is in the discretion of the same Constable or officer to bring the party arrested before which Iustice of peace of that
County that he will so that he dwell within a conuenient distance and not too farre from the parties owne habitation But if a Supplicauit of the peace be directed to the Iustices of the peace the Iustice to whom the writ is first deliuered shall only make the precept to apprehend the partie to find suerty of the peace and that precept shall be retornable before him only and he only shall take the suerties and only make the retorne without the others Co. lib. 5. 59 And a Iustice of peace may if he will make a warrant to the Constable to bring the partie before himselfe 5. Ed. 4. 12. 76 If a Iustice of peace doe direct his warrant to the Constable A warrant to find suertie to keepe the peace or some other to cause A.B. to finde suerties to kéepe the peace The same Constable or c. must first require the same A.B. to find suerties to kéepe the peace and if he doe refuse it then he may arrest the same A. B. for if A. B. will finde suerties then the said Constable may not arrest him because the purport of the precept is performed which is if he refuse so to doe that then he shall conuey him to the Gaole And if the Constable shall arrest A. B. after that he hath found suerties according to the precept the same A. B. may haue an action of false imprisonment against him for that he hath arrested and imprisoned him without warrant or cause And likewise if the Constable do arrest A. B. and doe not carrie him before some Iustice of peace 5. E. 4. 6. to find suerties to kéepe the peace or if he resist or refuse so to doe then if he doe not carrie him to the Gaole A.B. may haue an Action of false Imprisonment against the Constable The partie must offer his suerties And when the partie commeth to the Iustice of peace by force of a warrant he must offer suerties to the Iust of P. or else he may commit him to prison 14. H. 7. 5. for the Iust néedeth not to demaund suertie of him Suerty of the peace dieth with the king 77 The suertie of peace is discharged by the kings death 1. H. 7. 1. for the band is to obserue the peace of the King and when he is dead it is not his peace So doth the death of the recognisor so doth also the death of him at whose suit it was taken discharge the suertie of the peace if in those cases it were not forfeited before The Iustices authoritie dieth with the King And in like sort when the King by his commission doth appoint Iustices of peace and after dieth or giueth ouer his crowne the Authoritie of the same Iustices doth cease for he maketh them Iusticiarios suos and therefore when he dieth their authority endeth The suertie for the peace must be named 78 When a Iustice of peace doth take suerties for the peace 2. H. 7. 4. it is not sufficient to say that I. N. hath found sufficient suertie for the peace without naming the names of the suerties but he must name their names and surnames He that is vound to the peace must appeare c. 79 If a man doe finde suerties to kéepe the peace 39. H. 6. 26. and hath day vntill a time prefixed he must appeare the same day although he who demaunded the peace doe not appeare or otherwise he shall forfeit his band But it is otherwise where a suit is betwéene party and party and the defendant being taken by a Capias is bound to appeare vpon a day appoynted 80 When the suertie of peace is graunted against a man by a Iustice of peace he will sometime rather desire to be bound to the peace by an other Iustice then by him that graunted the same and made the warrant And therefore he may offer himselfe to become bound to the peace to some other Iustice of peace of that County if he will A Supersedeas for the peace then procure a Supersedeas from that other Iustice before whom he is bound to all other Iustices of that Countie to be discharged of any other arrest to be made of him for the law doth not require that he should be seuerall times bound for one cause And this Supersedeas is sufficient although it neither name the suertie nor contein the summes wherin they are bound but yet it is a better forme to expresse them both as the Chauncerie and Kings Bench doe And when a man doth heare of such a precept awarded or granted against him by a Iust of peace of the County where he dwelleth he may go eyther giue suertie of the peace in the K. Bench or els in the Chancery thereupon may procure a Supersedeas from the court where he is bound to restrain the Iust of peace of the County to take any suertie of peace of him And then the Iustices of peace of that County must forbeare to make any warrant for the peace against the partie and if any of them haue awarded it A precept awarded by force of a Supplicauit he must make a Supersedias to discharge it But a Iust of peace of the county by a Supersedeas cannot discharge a precept that is awarded by his felow Iust by force of a Supplicauit directed to him out of the Chancery or the K. Bench to take the suertie of peace of one resident in that County If any officer hauing a warrant from a Iust of P. to arrest a man to find suerty of the peace shall receiue a Supersedeas out of the Chancery or the Kings Bench or from any Iustice of the Kings Bench or from any Iustice of peace of that County where he is commorant to discharge the same suerty of peace wil neuertheles vrge that partie against whom the same warrant is granted to find new suertie for the peace he may refuse to giue it And if the said officer will therupon vnder the color of his warrant commit him to prison the party imprisoned may haue an action of false impris against him for the the said warrrant is discharged by as great authoritie or greater as it was made and the thing for the which it was made is effected The forme of which Supersedeas graunted by a Iustice of the peace is this viz Thomas Denton Miles Buck. vnus Iusticiariorum dn̄i Regis nunc ad pacem in Comitatu p̄dicto conseruandum assignatur Vicecomiti comitatus praedicti A Supersedeas for the peace Nec non cibus singulis Balliuis Constabularijs ceterisque dicti dn̄i Regis ministris tam infra libertates quam extra in eodem Con̄i Salutē Quia A. B. de Poundon in com̄ praedict ' Laborer venit corā me in venit sufficientē securitatur qd'ipse comparebit ad proximā generalē Sessionē pacis in com̄ praedicto tenend ' Et quod ipse interim pacē dicti
DnÌ„i Reg. erga ipsuÌ„ dominuÌ„ Reg. cunctuÌ„ populuÌ„ suuÌ„ precipuè erga C. D. de Twyford in comÌ„ praedicto Husbandman conseruabit ideo ex parte dicti dnÌ„i regis vobis cuilibet vestruÌ„ mando quod de arrestando imprisonando seu aliqualiter molestando praedictuÌ„ A. B. ex causa pÌ„dicta Supersedeatis quilibet vestruÌ„ Supersedeat omnio Et si euÌ„ ex dict' causa non alia ceperitis seu imprisionaueritis seu aliquis vestruÌ„ ceperit seu imprisonauerit tunc à prisona illa sâ—ne dilatione deliberari faciatis Supersedeas in the Chancery for one bound in the common plaâ—e datuÌ„ apud Hilsdon c. 22. H. 6. 59. But if a man be arrested in the common place for the suertie of peace and he is lett to baile to a certaine day at which day he doth bring a Supersedias out of the Chauncerie that he hath found suerties in the Chauncery that is not alloweable because he was by baile which is an imprisonment in law and therefore the suertie in the Chauncery will not serue And it may be that the suerties in the Chancery be not sufficient and that the King and the Court was deceiued therein And yet the common place hath no authority to take suerty of peace 2. H. 7. 1. but of the peace broken before them 81 When the partie against whom the precept is awarded to find suerties for the kéeping of the peace A Recognizance for the keeping of the peace doth come before the Iustice of peace to be bound to the peace then it resteth in the discretion of the same Iustice of peace if he deale in this cause as a Iustice of peace by force of the generall commission of peace and so as a Iudge to assigne what number of suerties he will accept to be bound with the party in what summe of money the party his suerties shall be bound to allow or disallow of the sufficiencie of those suerties to limit the time how long the party shall be bound and to determine vpon some such other circumstances touching that matter But if the same Iust of peace be commanded as a minister in the erecution of the writ of Supplicauit to take the peace of any person then he must do as the writ doth direct him which sometime is to take sufficient suertie to be bound in a summe prescribed and some other time not then it resteth in his owne discretion The most vsuall maner is for a Iustice of peace to take two suerties besides the partie himselfe to be bound by Recognizance to the King viz. Domino Regi and that must alwaies be for the kéeping of the peace The forme of which Recognizance for the kéeping of the peace is as followeth viz. Memorandum qd ' nono die Augusti Anno regni dnÌ„i nostrÌ„ Regis Iacobi dei gratia c. 5. A.B. de Padburie in Comitatu pÌ„dict ' Husbandman Buck. in ê“pria persona sua venit coram me Richardo Ingols by Milite vno IusticiarioruÌ„ dicti dnÌ„i Regis ad pacem in dicto Comitatur conseruandam assignatoruÌ„ assumpsit proseipso sub poena xx li. et D.E. H.I. de C. in Comitatur praedictur Husbandmen adtunc ibmÌ„ in ê“prijs personis suis similiter venerunt manuceperunt pro praedicto A. B. viz quilibet eorum seperatim sub poena x. li. quod idem A. B. personaliter comparebit coram Iusticiarijs dicti domini Regis ad pacem ad ê“ximam generaleÌ„ Sessionem pacis in ComÌ„pÌ„dicto apud Buck. tenendam ad faciendum recipienduÌ„ quod ei per Curiam tunc ibidem iniungetur Et quod ipse interim pacem dicti dnÌ„i Regis custodiet erga ipsum dominuÌ„ Regem cunctum populuÌ„ suum praecipue versus L.M. de O. de comitatu praedict Et quod damnum vel malum aliquod corporale aut grauamen praefatur L.M. nec alicui de populo dicti domini Regis quod in laesionem aut perturbationem pacis ipsius Domini Regis seu praefati L.M. cedere valeat quouismodo non faciet nec fieri procurabit Quam quidem summam xx l' praedict ' A.B. quilibet manucaptorum praedictorum praedictas seperales summas x. l' recognouerunt se debere dicto domino Regi de terris tenementis bonis catallis suis cuiuslibet eorum ad opus dicti domini Regis fieri leuari ad quorumcunque manus deuenerunt si contigerit ipsum A.B. praemissa vel eorum aliquid in aliquo infringere inde legitimo modo conuinci In cuius rei testimonium ego pÌ„dictus Richardus Ingolsby sigillum meum apposui Datur apud Lethenborow die Anno supradict ' And the forme of the Recognizance for the good abearing is this viz. A Recognizance for the good abearing MemoranduÌ„ c. quod ipse A. B. interim se bene geret erga DnÌ„m Reg. cunctuÌ„ populuÌ„ suuÌ„ praecipuè erga L. M. Et quod ipse non inferet nec inferri ê“curabit per se nec per alios damnuÌ„ aliquod seu grauamen pÌ„fato L.M. seu alicui de populo ipsius dnÌ„i Regis de corporibus suis per insidias insultus seu aliquo alio modo quod in laesionem seu perturbationem pacis dicti dnÌ„i Regis cedere valeat quouismodo viz. vterque praedict ' D. E. et H. I. sub poena 50. librÌ„ et praedict ' A. B. sub poena 100. librÌ„ c. And this may be done by a single Recognizance in Latin with a Condition thereunto added in English for the kéeping of the peace or the good Abearing and for the day and place of the parties apparance at the Quarter Sessions 82 A Iustice of peace who vpon his owne discretion compelleth one to find suertie of the peace vntill a certaine day may vpon the like discretion release the same before that day A Releas of the suertie of peace But if a Iustice of peace do graunt the peace at the request of an other viz. at the suit of A. and that the Recognizance be taken to kéepe the peace against A. then may the same A. only releas it and none other before the same Iustice of peace or any other Iustice that will certifie the same releas before the Iustices of peace at the next quarter Sessions for that certificat being of record will discharge it which a releas by déed can not do the suertie of peace being a Recognizance and so of it selfe a record And though the Recognizance be versus cunctum populuÌ„ precipuè versus A. yet may the same A. releas it for though it may séeme populer and that others should haue equall interest therein with A. yet as it appeareth by the word precipuè it was specially taken for his safetie But though in some case a Iustice of peace may releas the suertie of the peace in some
other case the partie yet the King can in neither of the said cases releas it vntill it be forfeited for the mischiefe that may come to A. thereby though the Recognizance be taken domino Regi for that it is not a debt vnto him vntill it be forfeited But being forfeited then the King and none other may releas pardon the forfeiture And in the cases aforesaid though the Iust of peace or the party may releas the suertie of the peace Buck. The Iustices release of the peace yet the Recognizance before taken for the suertie of the peace must not be cancelled least the peace was broken before the releas made so the Recognizance was forfeited And the forme of the Iustice of peace releas of the peace is this Ego p̄fatus Paulus Risley armiger vnus Iusticiariorū dn̄i Regis nunc ad pacem in Com̄p̄dictur conseruādam assignatur qui S. T. de Preston ad securitatē pacis inueniendam mea discretione compuli eandem securitatem pacis quantū in me est in mea discretione 10. die Maij An̄ 5. Reg. Iac. c. remisi relaxaui Dat' apud Chetwood c. And the forme of the release of the party before the same Iustice that tooke the Recognizance of the peace is this Memorandum quod 10. die Iulij Anno 5. The parties release of the peace Regis Iacobi c. A. B. venit coram me Francisco Cheney Milite vno Iusticiariorum dom̄ Regis nunc ad pacem c. gratis remisit relaxauit quantum in se est praedictam securitatem pacis per ipsum versus supranominatum S. T. petitam In cuius rei testimonium ego p̄fatus F. C. c. Datur apud Chessam Bois c. And in like sort the Iustice or Iustices of peace may doe which tooke suretie for the good abearing if they sée cause 83 The peace or good abearing is broken Causes of the breach of the peace or good abearing the Recognisance taken for the kéeping of the same is forfeited by violent extreame malicious and vnlawfull menacings assaults affrayes batteries strikings or imprisonments as if a man bound to the Peace doe wrongfully and malitiously menace assault beat or imprison another or doe forcibly thrust him into a riuer well or pond whereby he is in danger of drowning or doe rauish a woman against her will or doe commit manslaughter burglarie or robberie or treason against the person of the King Br. peace 20 And if a man be bound to the peace after he doth procure another to breake the peace this is a cause of forfeiture of his recognizance taken for the surety of the peace for that the peace is broken by his meanes 18. Ed. 4. 28. And if one be bound to the peace after doe menace I. S. to his face in his presence to kill or beate him this is a breach of the peace But if I. S. be absent when he is menaced then is it no breach of the peace vnles the same partie doe according to his menace lie in waight to kill or beate I. S. for then also it is a breach of the peace 22. Ed. 4. 35. And though the suertie of the peace be not broken without fighting 2. H. 7. 2. beating imprisoning or extremity of menacing yet the suertie of good abearing may be forfeited by the extraordinary number of people 10. H. 7. 12. that the partie bound hath attending vpon him or by his wearing of harneis or other weapons more then before he hath vsually done or be méete for his degrée or estate or by vsing of rigorous or terrible words or threatenings tending or inciting to the breach of the peace or indemeaning himselfe in his behauiour company or gesture or doing of any thing which shall tend to the breach of the peace or to put the people in dread or feare 84 As the wisdome of the Realme hath ordained Iustices of peace to be preseruors of the peace and men wholy or specially deuoted assigned to that office So hath she made choice of other magistrates who with their other offices haue the conseruation of the peace annexed to their charges as a thing incident or inseperable from their other functions and goe continually lincked arme in arme with them As euery Shirife in his County euery Coroner The Shirife Constable c. conseruators of the peace high constable of any lath-rape wapentake hundred or fraunchise and euery petit Constable Borshoulder Tithingman Headborough Boroughhead Thirdborough and chiefe pledge in euery Towne Village hamlet is within his limits and the precincts of his authoritie a conseruator of the peace And so is the Steward in euery Léete and view of franck pledge the Steward of euery Court of Pipowders a conseruator of the peace and if an affray be made in their presence sitting in their Court each of them may commit the offendors to prison And they all are in dutie first to bend their care foresight to preuent the breach of the peace next to imploy both their owne valor and strength to commaund the helpe force of others to pacifie those who by word or déed are in breaking of the peace And thirdly to punish those who haue broken the peace according to the law St. 5. F. 3. 14. And therefore any of the officers aforesaid may take and arrest suspected persons which walke in the night and sléepe in the day and carrie them before a Iustice of peace to finde suerties of their good behauiour Sta. 13. E. 1. And if any be taken by watchmen in the night watch that is suspected of euill behauiour they may take him and imprison him vntill he be deliuered by the ordinarie course of law And if any doe goe or ride armed by day or night in fayers or markets or other places sauing the Kings seruants in his presence or in executing of his precepts or such as doe pursue huy and cry where offences be done any of the same officers may take their armor from them to the Kings vse and commit them to the gaole And if any assemblies Rout or rumor shall be begun St. 17. R 2. 8 the Shirifes and other the Kings officers shall take the power of the County and disperse them and shall commit the offendors to prison vntill they be duely punished according to the law And if any do threaten to kill maihem or beate an other or doe attempt or goe about to doe it then any of the said officers may arrest the offendor to come before a Iustice of peace to finde suertie for the kéeping of the peace or els the same officer may commit him to prison 1. H. 7. 7. And if either of the said officers shal perceiue any other in his presence to be in breaking of the peace eyther dy drawing of their weapons or by assaulting or striking one of an other or by assaulting
the said Chauncellor for the King or any other against any person for any misbehauing by vnlawfull maintenances giuing of liueries signes and tokens retainers by Indentures oathes writings or otherwise embracery of the Kings subiects vntrue demeanings of Shirifes in making of pannels and other vntrue returnes by taking of money by iniuries by great Riots and vnlawfull assemblies haue authority to cal before them by writ or by priuy seale the said misdooers and they and other by their discretion by whom the truth may be knowne to examine and such as they finde therein defectiue to punish them according to their demerits after the forme and effect of the Statutes thereof made in like manner and forme as they should or ought to be punished if they were thereof conuict after the due order of the law And though the Iustices of peace doe assesse a fine in the Country vpon some that haue committed a Riot there yet the Lords in the Starre chamber may assesse vpon the said offendrs for the same Riot a greater penalty if they sée cause for in this case the offendors be not twice punished for one offence but part of the due punishment is inflicted at one time and part at another And the Lords doe sufficiently punish an offence which was but remisly done by the Iustices 3 A Riot is where thrée persons or aboue do assemble themselues together to the intent to beate or maihem a man to pul downe a house wall pale What is a Riot hedge or ditch wrongfully to claime or take common or way in a ground to destroy any parke warren douehouse pond poole barne mill or stacke of corne or to doe any other vnlawfull act with force and violence and against the peace and they doe it If a man goe abroade with his houshold seruants which he hath commonly of his owne familie though they be more then his abilitie or degrée is to maintaine and doth make a fray by the way this is no Riot vnlesse the Master did before make his seruants priuy that hée meant to make an affray for it is no riot except there be an intent before to doe some violence and hurt If thrée foure or more doe enter into landes with force vppon the possession of an other though their entrie be lawfull yet is it a Riot St. 5. R. 2. 7. for the Statute of Anno 5. Richard 2. doth prohibite entrie into Landes and Tenements with force or a multitude of people 4 An vnlawfull assembly is where thrée persons or aboue What is an vnlawfull assembly doe assemble themselues together to the intent to doe any of the Actes aforesaide or any other such vnlawfull act with force and violence against the Peace although they doe it not indéede but after their assemblie they departe by their owne consent vpon some feare conceiued or other cause without dooing of any outrage for their intent of assembling was vnlawfull though the act subsequent did not ensue according to the same 5 A Route is where thrée persons or aboue doe assemble themselues What is a Rout. for the reuenge of their owne common quarrell As if the Inhabitants of a Towne doe assemble together to pull downe a house wall pale ditch or other inclosure of a parke pasture or close or the head of a poole where they wrongfully pretend to haue title of common or a way or to beate or maihem one man or more that haue done to them all some publike offence If they once méete 17. Ed. 4. 4 procéede and goe forward towardes the execution of any of the Actes aforesaide and doe shew by Armour Gesture or Spéech that they meane to doe any violence or to terrifie or feare any of the Kings people it is a Rout whether they put their intended purpose in execution or not But if a Maior and Aldermen or Bayliffe and Burgesses or the fellowes of any societie doe assemble in their common quarrell and make a Riot Rout or Vnlawfull assembly this shall be punished in their owne priuate naturall persons and not in the body politike for it was their priuate persons that assembled to offend the Lawe and not the bodie politike If a man goe to the Sessions Market Faire Rout by wearing of Armour or other assemblie of company with his seruants in Harnesse though he hath no intent to fight or to commit any Riot yet this is a Rout by the manner of his comming and is contrary to the Statute of 2. St. 2. Ed. 3. 3 Edw. 3. which hath ordained That no man shall bring any force in affray of the peace nor shall go armed in faires markets or elsewhere vpon paine of imprisonment and forfeiture of his Armour Lawfull assemblies of thrée persons or more 6 An Assembly of thrée persons or more which is not to the terrour of the people nor to doe some Act with force and violence against the peace is not vnlawfull nor prohibited by any of the Statutes before mentioned The watch in London vpon Midsummer night is lawfull and so be such like in other Cities and Townes Assemblies be lawfull that be vsed vppon Maie day to fetch in Maie boughs or floures and so be assemblies at Church-Ales Whitson or Midsummer-Ales Assemblies at the fetching home setting vp or dauncing about a Maie-pole and assemblies at the bayting of a Bull or Beare or at the mowing or making of Dole or Reuell meade and assemblies of Minstrells and their fellowes at certaine places and times of the yéere allowed by old and ancient customes are also lawfull And Assemblies to play at Cardes Tables Bowles Clash Bucklers Wasters halfe Sword Tennis Quoits Cailes or such other games be likewise by the common lawe tollerable though some of the same games be prohibited vpon some penalties by Statute to be vsed by some persons and assemblies to runne at Quintall Sand bagge Base Footeball Stooleball Handball St. 33. H. 8. 9 or such like disports be also lawfull For these assemblies be not made with the intent to breake or disturbe the Peace or to offer violence force or hurt to the person of any but either to trie Actiuity or to increase societie amitie and neighbourly friendship And if in any of the said assemblies any of the parties the same shall make a fray with a stranger that is no Riot neither doth it make the residue of the same company Riotors who came thither for their disports and not to any euill or vnlawfull intent But if any of the same company shall fall out with a stranger or some others of their owne associates and then some of them doe take one parte and some of them another An Assembly lawfully begunne doth end riotously whereby a Riot is committed then so many of both sides as shall take sides and be parties to that quarrell shall be adiudged Riotors but not the residue for the Riot did not take his beginning at the first méeting when they did all
assemble for any of the sportes before mentioned but when the taking of parte with those that did quarrell beganne And therefore they onely who made themselues parties to that quarrell shall be punished as Riotors and none other And so it is if a Iurie be charged to trie an Issue if some of them fall out and fight this is no Riot in the residue assembling to a lawfull end 22. H. 6. 37 3. H. 7. 1. 10. St. 17. R. 2. 8. St. 1. M. 12. 8 St. 3. H. 4. 17 Sta. 8. H. 6. 9. St. 3. Ed. 1. 9. And it is lawfull for the Sheriffe Vndersheriffe or Bayliffe to take the power of the Countie what number they shall thinke good to execute the Kings processe And so may any Iustice or Iustices of Peace and the Sheriffe and the Vndersheriffe take any power of the Countie to represse Riots Routes vnlawfull or Rebellious Assemblies Or to remooue such persons as by Inquisition are found to haue made forcible Entries into other mens possessions or to detaine them with force And so may a Iustice of Peace Sheriffe or Constable take of the Countie any number that they will to pursue and apprehend Traytours Murderers Robbers or other felons or such as doe breake or goe about to breake or disturbe the peace For though in the cases last specified there be three or aboue assembled together yet it is to execute the iustice of the Lawe and by that meanes to preserue peace And it is a lawfull assembly which is gathered together to runne at Tilt Iusts or Barriers by the Kings commaundement for the cause beginning and end thereof doe tend to obedience the laudable exercise of true valour and manhood and to the encouragement and enabling of the actors therein to defend the Realme and the peace thereof 7 And though by the before specified Statute of Anno 34. Edw. 3. it is ordained that Iustices of Peace shall restraine offendors Riotors and all other Barrators and pursue take chasten imprison and punish them according to their trespasses and offences to the intent that the people bee not by such Riotors troubled or indammaged nor the peace broken nor any passengers by the way disturbed or put in perill Yet by force of that Statute the Iustices of Peace could not require the helpe of the Sherife nor commaund the power of the countie to helpe to assist them St. 17. R. 2. 8. to represse the said Riotors Whereupon by the before mentioned Statute of Anno 17. R. 2. it is defended That none shall make assemblies riot or rout against the peace in any wise And if any such assembly be begun as soone as the Sherifes Disturbing of riotors and other the Kings ministers may haue knowledge thereof they with the power of the countie where such case shall happen shall disturbe such malice with all their power and shall apprehend all such offendors and put them in prison vntill due execution of the law be made of them and all Lords and other liege people of the Realme shall attend with their whole strength and power the Sherifes and ministers aforesaid 8 But because the said Statute of 17. R. 2. or any other Statute or Law before that time made doth not enable the Iustices of Peace and Sherife to record that which they shall find done in their presence against the law nor to make enquirie thereof nor to heare and determine the same nor to make certificat thereof to the King and his counsell if the truth cannot be found Nor doth assigne what Proces shall bee awarded against the offendors nor doth inflict any penaltie vpon the Iustices which shall not execute the law Therefore by the before rehearsed Statute made Anno 13. St. 13. H. 4. 7 H. 4. it was established that if any riot assemblie or rout of people against the law be made in any part of the Realme the Iustices of peace three The Iustices and sherifs shall arrest Riotors or two of them at the least and the Sherife or Vndersherife of the shire where such riot assembly or rout shall be made shall come with the power of the countie if néed bée to arrest them And the Iustices Sherife or Vndersherife shall haue power to record that which they shall find done in their presence against the law And the same trespassors and offendors shall bee conuict by the Record of the same Iustices Sherife or Vndersherife in manner and forme as is contained in the Statute of forcible entries The forme of Recording of which riot is this Buck. Recording of a riot viz. Memorandum quod primo die Martij anno regni regis Domini nostri Iacobi dei gratur c. tertio Nos Franciscus Goodwin miles Alexander Hamden miles Iusticiarij domini Regis nunc ad pacem in comitatu praedicto conseruandam necnon c. assignati Richardus Ingolsby miles adtunc vicecomes eiusdem comitatus ad querimoniam A. B. de Wadsdon in comÌ„ praedicto yeoman in proprijs personis nostris accessimus ad domum mansionalem ipsius A.B. apud Wadsdon praedictur ibidem inuenimus quosdam C. D. E.F.G. alios malefactores pacis dicti domini Regis perturbatores ignotos ad numerum octo personarum modo guerrino arraiatos viz. cum gladijs baculis arcubus sagittis riotosè illegitimè aggregatos eandem domum sic custodientur in magnam perturbationem pacis dicti domini Regis populi sui terrorem contra formam statuti in Parliamento domini Henrici nuper Regis Angliae quarti Anno Regni sui decimo tertio tento editi Et ideo nos praefati F. G. A.H. corpora pÌ„dictoruÌ„ C.D.E.F.G. ad tunc arrestauimus ac proxime Gaole dicti domini Regis in Com' pÌ„dicto duci fecimus ê‘ recordum nostrum de transgressione praedicta conuictos in praesentia nostra ibidem moraturos quousque finem dicto domino Regi ê“ transgressione sua praedicta fecerunt In cuius rei testimonium huic recordo nostro sigilla nostra apposuimus Datur apud Wadsdon praedict ' die Anno praedictis 9 By the same Statute of 13. H. 4. it is further ordained St. 13. H. 4. 7 That if it happen such Trespassors and offendors be departed before the comming of such Iustices Inquirie of a Riot by the Iustices c. and Shirife or vndershirife the same Iustices thrée or two of them shall diligently inquire within a moneth after such Riot assembly or Rout of people so made and the same shall heare and determine according to the lawes of this Realme And because the said Iustices of peace Shirife c. are by this braunch of the Statute to make inquiry of the Riot which must be done by a Iury returned by the Shirife the forme of the said Iustices precept to the Shirife to returne the said Iury is this Buck. viz. Henricus Longuile miles Willihelmus Anderous miles Iusticiarij Domini
case of felony Relieuing them which be assembled 35 If any wife or seruant of any of the same persons 1. M. 12. or any other person whatsoeuer shall willingly and without compulsion bring send deliuer or conuey any money harnesse artillerie weapon meat bread drinke or other victuall to any person or persons so beeing assembled as is aforesaid during such time as he or they shall so be assembled or be together as is aforesaid then euery wife seruant or other person so bringing or conueying c. any of the foresaid things to the same persons so beeing assembled together in forcible manner or to any of them and not departing to their houses or dwelling places vpon request or commandement made vnto them as is aforesaid shall bee adiudged a felon shal suffer execution of death as in case of felonie Vnlawful assemblies aboue two and vnder twelue 36 If any persons aboue the number of 2. and vnder the number of 12. 1. M. 12. beeing assembled together shal intend goe about practise or put in vre with force of armes vnlawfully of their owne authoritie to murder kill or slay any of the kings subiects or to ouerthrowe cut breake or cast downe or dig vp the pales hedges ditches wall or other closure of any parkes or parke or other ground inclosed or the bankes of any fish-pond or poole to the intent that the same or any of them from thenceforth should remaine open not inclosed or void or to haue common or way in the same parks or parke or other grounds or ground inclosed or in any of them or to destroy any parkes or parke or fish-pond or poole or any warrens or warren of conies or any doue-houses or to pul or cut down any house barne or mil or to burne any stacke of corne or graine or to alter defaulke or abate the rents or yearely value of any mannors lands or tenements of any of the Kings subiects or the price of any victual corne or graine or any other thing vsuall for the sustenance or apparell of men and being required or commanded by any Iustice of peace or the sherife of the countie or by any mayor bailife or bailifes or other head officer of any citie or towne corporat where such assembly shall be had by Proclamation to be made in the Kings name to retire or returne to their habitations places or houses and they so required by such proclamation shall not so do but after that shall in forcible manner in forme aforesaid attempt to do or put in vre any of the things last aboue mentioned then euery of the same persons beeing aboue the number of two and vnder the number of twelue shall suffer imprisonment of his or their bodies by the space of one whole yeare without baile or mainprise The remedie of the parties grieued And also if any person or persons shall be damnified or hurt by the doing committing or putting in vre of any vnlawfull act or thing aboue mentioned then all and singular persons so damnified and hurt shall recouer and haue dammages with the costs of their suit sustained in that behalfe trebled against the offendors therein 1. M. 12. 37 If any persons aboue the number of two shal vnlawfully of their own authoritie assemble together to the intent with force and armes to do practise Raising of power to suppresse vnlawful assemblies or put in vre any of the things aboue mentioned Then it shall be lawfull to euery Iustice of peace to euery Sherife in any countie beeing within the K. dominions and to euery mayor bailife and other head officer of any citie or towne corporat for the time he shall be in office or any other person or persons hauing the K. commission or Letters from his highnes as wel to raise and assemble the kings louing subiects in maner of warre to be arraied in such great number as he or they then shall thinke meet or able to the intent by violence of strength to suppresse apprehend and take the said persons that shall bee so vnlawfully assembled And if the said persons so vnlawfully assembled after such cammandement or request by proclamation made shal continue together and not endeauour themselues to returne towards their habitations houses or places from whence they came in as short time as they may conueniently Then it shall be lawful to euery I. of peace sherife and also euery mayor bailife and other head officer of any citie or town corporat to euery other person hauing authoritie as is aforesaid after such commandement or request by proclamation made and to such persons as shal be assembled with any Iustice of peace or sherife or with any mayor bailife or other head officer of any citie or town corporat and with euery other person hauing authoritie as is aforesaid to suppresse apprehend take those persons so vnlawfully assembled which after such proclamation made shall continue together and not endeauour thēselues to returne towards their habitations c. And if the said persons so vnlawfully assembled together or any of them shall fortune to be killed slaine maihemed or hurt in or about the suppressing or taking of them then euery such Iustice Sherife Maior c. and euery other person hauing authoritie as is aforesaid and all and singular persons by him or them assembled shal be frée discharged and vnpunishable as well against the king as against all and euery other person and persons of for or concerning the killing maiheming or hurting of any person or persons so vnlawfully assembled that shall be killed slaine maihemed or hurt about or by occasiō of taking or suppressing of thē c. 1. M. 12. 38 All and euery Copieholder and Customary holder being a yeoman artificer husbandman A copieholder being required refuseth to serue or labourer being of the age of xviij yeares or more vnder the age of lx years not sicke impotent lame maihemed neither hauing any other iust or reasonable excuse or cause to the contrary and beeing required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commission or letters c. they declaring their said authoritie or being required by the immediat Lord or Lords of whom such copie or customary holds then shall be holden to serue the King for any the causes aboue rehearsed and refuse so to doe shall only during the life of such person or persons so refusing forfeit to his Lord or Lords of whom such copie or customarie holds then shal be immediatly holden should be holden during the life of such person or persons so refusing in case he had not refused all their copie customarie holds And it shal be lawful to euery such Lord c. his heirs or assignes of whom such copy or customary holds shal be immediatly holden should haue bin holden in case that such persons or persons had not so refused to enter
breue nobis remittentes Teste c. S. Manasse c. 7. When the Shirife or Iustice or Iustices of peace to whom the foresaid writ is directed hath caused thrée proclamations to be made according to the purport of the said writ then he or they may enter and make search in the house houses or place suspected and search whether there bee any force of armour or weapons worne borne or vsed against the said proclamation or otherwise he is warranted by the said writ to inquire thereof by a Iurie And if any such armour or weapons be found he must imprison the offendors and seise and praise their armour and weapons so found with them to the Kings vse And if vpon the proclamation they doe depart in peaceable manner then he hath no warrant by the writ to commit them to prison But by this writ the Shirife or Iustices haue onely authority to remoue the force but not to put the party expelled in possession againe What shal be said to be force 29 Because I haue written of force forcible entry and forcible detaining of possession it is conuenient that I should somewhat declare what the law doth accompt to be force and what acts and in what manner done to be forcible This forcible entry or forcible detaining of possession which the statutes before rehearsed do prohibite must be done with some weapons either offēsiue or defensiue as with swords bucklers pykes iauelines bills clubs pitchforkes staues halberts bowes arrowes crossebowes gunnes harneys casting of stones or blocks pouring of hot coales scalding water or lead or with any other thing wherewith one man may hurt the person of another Force by number of seruants And further if a man doth enter vpon the possession of another 10. H. 7. 11. or doth kéepe a possession taken with more seruants or attendants then he doth cōmonly maintaine it is force and it shal be adiudged in him a forcible entry or a forcible detaining of possession And so it is if diuers do come with bowes bills gunnes or other weapons to a ground or to a house and enter without the disturbance of any this is an entry by force for the words of the statute of 5. R. 2. be Sta. 5. R. 2. 7 That none shall enter with multitude of people but only in a peaceable manner And in like sort if a man doe enter peaceably into a house Force by nūber of weapōs and after doth bring into the same more weapons then he and his ordinary family do commonly vsually weare besides those weapons that he doth find in the house whereof hée must make no vse to defend his possession it is a forcible detaining of possession And moreouer if complaint be made to a Iustice of peace that one hath entred forcibly into a house and doth detaine the same with force and the said Iustice of peace doth goe thither and findeth the dores shut and him or those within denying him to enter this is a detayning of possession with force though there be no weapon shewed or vsed and though there be but one person within the house for in this case the offendor doth vse the dore as his buckler to keepe the possession If the Iustice of peace doe find in the house any great number of people or any persons in harneis or hauing harneis lying by them this is a detainer with force Wherefore in all the cases aforesaid the Iustice of peace may take the power of the County breake open the dores commit the offendors to prison 11. Ass p. 25 And if a man do mowe reape sheare or sickle corne or grasse or by such other labor which cannot be done without the hands of man wherunto he hath no title this shal be adiudged an entry disseisin with force If a man do kéepe his beasts by force in another mās seueral ground 27. Ass p. 30 claiming common therein whereas he hath no common there this is a disseisin of the land by force 30. Ass p. 50 And if a man do enter into the possession of another mans land and after doth fell or lop wood there this is a disseisin by force If a man do enter into another mans house or land 11. H. 4. 16. disseise or expel him thereof after doth carry away certaine goods of the disseisées this is a disseisin with force arms and the disseisor shal be imprisoned for it 16. Assis p. 7. 14. Ass p. 18. 12. H. 4. 22. 22. Ass p. 33. 30 A woman couert may commit a disseisin with force Who may cōmit a forcible entry and be imprisoned therfore and so may an infant of the age of 18. yéeres or aboue commit a disseisin by force be imprisoned But if he be of tender age he shal not be adiudged a disseisor with force nor be imprisoned 31 Though force being opposed against the law What force is lawfull to the persons of mē is a professed enemy to the peace of the Realme yet being vsed in the maintenance of the law it is a principall protector of the same peace for the law doth put the sword of iustice into the kings hand to protect himselfe and euery of his subiects from the violēce and oppression of others and to relieue each one that hath iust cause of complaint and thereby to yeeld him peace Wherefore force is to be resembled to fire which being abused may consume the whole house and being wel guided is a meane to yeeld sustenance and comfort to euery person therein And so force may be lawfully vsed by all the kings Officers Ministers and Subiects thereunto deputed with the helpe of all others to assist them when need shall require to execute or aduance iustice or the iudgements of the Law It is lawfull force wherby all offendors in Treason Felony other great crimes be apprehended 7. E. 8. 16. caried to prison brought to their answers receiue condigne punishments inflicted vpon them for their offences It is lawful force wherby the Shirife his Vndershirife Baylifes or Deputies doe with strength apprehend any person by vertue of the kings writs to answere or satisfie the purport of the same writs St. 8. H. 6. 9. It is lawfull force whereby Iustices of peace doe remoue those vnlawfull Entries or vnlawfull detainings of possession which one man doth make into another mans land contrary to the Laws and Statutes abouesaid and whereby they doe put him againe in possession who was wrongfully disseised or expelled thereof And it is lawfull force which Iustices of peace Shirifes Coroners Constables Tithingmen Headboroughes Boroughholders al other charged and authorized to preserue the peace together with their assistants deputies or assignées shall vse in apprehending or committing to prison such as doe attempt to disturbe or breake the peace within their iurisdictions or being commanded wil refuse to put in sufficient sureties for the keeping of
conuicted or Clerke attainted and the day and place of his outlawrie conuiction and attainder and the day and place where and when the said felony or other offence whereupon the said person or persons shal be so indicted outlawed or Clerke attainted shall be made and done before the K. in his bench at West in the county of Midd. there to remaine of record for euer among other the K. records there within xl daies next after any such attainder conuiction or outlawrie shall be had made or procured if the terme be thē if not within xx dayes next after the beginning of the terme next following the said xl daies but also shall deliuer a transcript of euerie such indictment whereupon the said person persons shal fortune hereafter so to be conuicted or Clerkes attainted to the Ordinary to whom the body of the said person or persons shall be committed at the time that the sayd person or persons shall bee committed the sayd Ordinarie paying to euerie such Clerke as shall write the sayd Transcript for euerie copie of such indictment twelue pence for his paines vpon paine that euery Clerke of the Crowne Clerke of the peace and Clerke of Assise for the time being before whom such Indictment Attainder Outlary or Conuiction shal be so had made pronounced or remaine for the non-certifying of euery such record and deliuering of the copy of such Indictment to the said Ordinaries according to this statute to loose and forfeit forty shillings the one moity thereof to be to the king and the other moity to him that will sue for the same by action of Debt Bill Information or otherwise in any of the kings Courts of Record wherein no Wager of Law Essoine or Protection shal be allowed and the clerke of the Crowne in the kings Bench shall receiue the said certificats and transcripts at such time as they shall be tendered and profered vnto them by the said clerkes of the Crowne clerkes of the peace and clerkes of assise or by their deputy or deputies without taking any thing for the same vpon paine of forfeiture of forty shillings for euery such certificat by him refused Prouided alwaies that if there be any more persons contained and named in any such Indictment other then such person so attainted conuicted or outlawed that then such clerke of the crowne clerke of assise or clerke of peace with whom the record of such attainder outlary or conuiction shall remaine shall within the time before in this act limitted certifie the transcript of such indictment outlarie or conuiction onely concerning such person or persons so indicted and attainted outlawed or conuicted into the kings Bench at Westminster as is aforesaid which transcript so certified shall be had and taken as good effectuall and auaileable in the Law to all intents and purposes against such person and persons against whom it shall be so obiected alledged or pleaded as if the very record thereof whereupon he or they were so indicted were there present And be it enacted c. That the said clerke of the crowne in the kings Bench for the time being shall at all such times as the Iustices of Gaole Deliuerie or Iustices of Peace in euery County within this Realme of England doe write vnto him for the names of such persons which be so attainted by Outlarie or clerkes attainted or conuicted and certified into the said Bench shall incontinently without delay certifie the said names and surnames of the said persons with the causes why and wherefore they were conuict or attainted vnto the Iustices of Gaole deliuery or Iustices of Peace vpon paine and penalty to forfeit for euery name of such persons which shall be so written for and not certified by the said Clerk of the Crowne in the Kings Bench to the said Iustices fortie shillings Prouided that this Act nor any thing therein contained shall not extend to the Clerkes of the Crowne Clerkes of the Peace Clerkes of Gaole deliuerie neither to any of the Prenotaries within the Counties of Wales and Chester or within the Counties Palantine of Lancaster and Duresme or any of them to make any transcript of any such attainder conuiction or outlawrie of any person or persons conuicted attainted or outlawed before the Kings Iustices of his Counties of Wales nor Chester or Countie of Lancaster Duresme or any of them but that the same Records shall and may remaine and be in the custodie and kéeping of the sayd Clerkes and Prenotaries in such maner and wise as they are at this day this Act or any thing therein contained to the contrarie notwithstanding 43 Though the deliuering of him to the Ordinarie who hath the benefit of his Clergie and making of purgation bée taken away the Statute of 18. Eliz. 6. yet because both deliuering to the Ordinarie and making of purgation were vsed by the space of many generations in this realme and seuerall lawes statutes and some prouinciall councells were made and ordained touching the ordering direction and gouernance of those which as Clerks conuict or attaint were committed to the Ordinary and were to make purgation or not I will therefore briefly set downe the effect of some of those laws as antiquitie did retaine them He which had the priuiledge of his Clergie and was deliuered to the Ordinarie that did demaund him was not set at libertie to goe wandring vp and downe the Countrie but was safely and straitly kept in the Bishoppes prison In what sort a clerke deliuered to the Ordinarie was vsed hauing for foode vppon the Sonday bread ale and pease and vpon all the other daies courser bread and small drinke once in the day onely or in the Kings prison if the Bishop would haue it so vntill hée had purged himselfe of the crime wherewith hée was charged or otherwise had failed of his purgation and could not make it And if the Bishop would not admitte him to make his purgation then the King would direct his Writte to the Bishoppe commaunding him to suffer the same prisoner to make his purgation 15. H. 7. 19. or the King at his pleasure might pardon the prisoner or cause him to be set at libertie without making any purgation And when a Clerke was to make his purgation the King was to be made priuie thereunto who did direct his Writ to the Shirife of the countie where the offendor was prisoner commaunding him to make proclamation through his Countie that if any man could shew cause why such an offendor viz. A. B. prisoner in the Kings or Bishoppes prison should not make his purgation that then he should appeare such a day and in such a place and shew the same cause And in London the Preacher at Paules Crosse did likewise notifie that A. B. The manner of making purgation prisoner in such a prison was to make his purgation in such a Diocesse at such a place vpon such a day at which day assigned whether any crime or not to giue
47 Arresting vpon doubt of Manslaughter 48 A Iustice of peace his Warrant to arrest a felon 49 Arresting of an offendor and committing him to the Constable 50 Imprisonment vntill he had made an Obligation 51 The seruant not chargeable for the masters offence by imprisonment 52 No imprisonment by force of a Iusticies 53 Imprisonment by force of a warrant vpon a Supplicauit 54 Arresting him that would breake the peace 55 Imprisoning of a seruant that doth assault his master 56 In what cases imprisonment is lawfull and in what not 57 Imprisonment for offences done to the Iustices of the realme 58 What is maiheming 59 How many sorts there bee of maiheming 60 Examination of a maihem by the Iustices or Surgeons 61 Where diuers appeales of maihem for one offence 62 Principall and Accessarie in maihem The iudgement in an appeale of maihem 63 Mainprise in an appeale of maihem 64 Why maihem is supposed to be done feloniously 65 Barres in an appeale of maihem 66 Execution in an appeale of maihem 67 An action of Trespas maintenable after an appeale of maihem 68 The peace preserued and affraies restrained by Iustices of Peace The commission of the peace 69 The cōmission doth chiefely respect the peace Why they be called Iustices of the peace Binding suspected persons to their good behauior 70 A Iustice of Peace may take surety of the peace What the surety of the Peace is Certificat of a Recognisance The surety of good abearing 71 For whom and against whō the surety of Peace is to be graunted 72 Vpon what causes the surety of peace is to be graunted 73 Surety of peace enioined by word or writing 74 The seruing of Proces for the peace A warrant of the peace Who may serue it without writing and who without shewing it and who not Refusing to obey the warrant 75 To which Iustice of Peace the party arrested is to be brought 76 A warrant to find sureties to keepe the peace The party must offer his sureties 77 Surety of Peace doth dye with the king The Iustices authority dyeth with the king 78 The sureties of the Peace must be named 79 Hee that is bound to the Peace must appeare at a day prefixed 80 A Supersedeas for the peace 81 Taking a Recognisance for the keeping of the peace Taking a Recognisance for the good abearing 82 A Release of the suretie of Peace The parties release of the peace The Iustices Release of the Peace 83 Causes of the breach of the Peace or good abearing 84 The Sherife Constable and seuerall other officers be conseruators of the Peace 85 Euery able person when need requireth must be a conseruator of the Peace 86 Menaces Assaults Batteries c. in some cases are punishable in the Starre-chamber Riots Routs vnlawfull and Rebellious Assemblies Fol. 24. 1 The enormity of Riots Statutes ordained to preuent forces or Riots 2 The Court of Star-chamber authority to punish Riots c. 3 What is a Riot 4 What is an vnlawfull assembly 5 What is a Rout. Rout by wearing of armour 6 Lawfull assemblies of three persons or more An assembly lawfully begun doth end riotously 7 Disturbing of Riotors 8 The Iustices and Shirifes c. shall arrest Riotors Recording of a Riot 9 Inquiry of a Riot by the Iustices c. A Precept to the Shirife to returne a Iury to inquire of a Riot The forme of an inquisition of a Riot 10 Certifying of a Riot Trauerse of a Certificat 11 Proces against offendors 12 The forfeiture of Iustices which doe not inquire of Riots 13 A Commission to inquire of the Iustices c. default 14 Vpon the Commission the Coroner shall returne the Iurie What issues shal be returned vpon the Iurors 15 Where the Sherife shall returne the Iury and not the Coroner 16 A Writ directed to inquire of Riots 17 Riots shal be inquired of at the Kings costs 18 The punishment of Riotors 19 Each man shall helpe to represse Riots 20 Baylifes of Franchises Riots in Cities and Townes corporat 21 A Iury to inquire of Riots 22 Maintenance wherby a riot is not found 23 What one Iustice of Peace may do alone in a Riot 24 The Iustices must haue notice of a Riot 25 The parties agreement no discharge of the inquisition of a Riot 26 What power of the Countie the Iustices shall vse to represse Riots 27 The Iustices record of a Riot where no trauerse thereunto 28 The credit of the Iustices Record Certificat of a Riot 29 The proces against Riotors 30 The penalty for not executing of this statute 31 A trauerse to an indictment of Riot 32 Twelue or aboue assembled to change lawes 33 Practising to destroy Parks Ponds Conduits Common or Way Destroying of Deere Conies Douehouses Fish Pulling downe houses burning stackes of corne c. 34 Raising of vnlawfull assemblies by acts or words 35 Relieuing them which bee assembled 36 Vnlawfull assemblies aboue two and vnder twelue The remedy of the party grieued 37 Raising of power to suppresse vnlawfull assemblies 38 A copiholder being required refuseth to serue the king 39 A farmer required refuseth to serue 40 Disclosing a commotion wherein one is moued 41 An able person required refuseth to serue 42 Attendance vpon a Lieutenant 43 The forme of the Proclamation 44 Hinderance of the Proclamation 45 Other mens rights saued 46 Procuring others to offend 47 Vnlawfull assemblies by xl or aboue 48 A Lieutenant shall not appoint a deputie 49 Aiding of the offendor before the offence 50 The attainder of those offences no corruption of blood Force and Forcible Entries Fol. 34. 1 Vnlawfull force is an enemie to peace There shall be no forcible entry into lands 2 The penalty of forcible entry into lands or benefices 3 Holding possession by force Feoffement of lands for maintenance An Assise or action of Trespas against a disseisor by force The authority of officers in Cities and Towns enfranchised touching force 4 A speciall Assise against a disseisor with force 5 Seuerall remedies for seuerall offences by force 6 A Precept to the Sherife to impanell a Iury. The Shirifes forfeiture for not due executing of a Precept The proces against offendors in force 7 The forme of a Precept to the shirife to impanell a Iury. 8 The forme of an inquisition of forcible entry 9 A warrant to the Shirife to make restitution 10 Restitution awarded out of the Kings bench 11 No restitution but where forces is found by inquisition 12 Where no restitution against three yeares possession Where restitution notwithstanding three yeares possession 13 A Supersedeas to stay restitution 14 Where force found and yet no restitution 15 A Mittimus to send to the Gaole such as doe hold land by force 16 A Iustice may enquire of Forcible Entries without complaint 17 In an action of forcible entry the writ must be Vi armis 18 Who may bring an action of Forcible entry 19 He that hath title entereth by force 20 Hee that
9 And because seruants in husbandrie labourers artificers and other persons of meane degrée should take no incouragement nor occasion to breake the peace nor weare any weapons therewith to menace threaten or terrifie others Therefore by a Statute made anno 12. R. 2. it was ordained St. 12. R. 2. 12. That no seruant in husbandrie or labourer nor seruant of artificer or victualler shall beare any Buckler Dagger or Sword vpon paine of forfeiting of the same except it be for the defence of the realme in the time of warre and then by the suruey of Arraiers for the time beeing or in trauelling with their masters or on their masters businesse And Sherifes Mayors Baylifes and Constables shall haue power to arrest all offendors against this Statute and seize the said Bucklers Swords and Daggers and kéepe them vntill the Sessions of the Iustices of peace and the same shall present before the same Iustices in their Sessions together with the names of them that did beare the same But this shall not be preiudiciall to the franchises of Lords touching forfeitures due to them By the foresaid two Statutes of 2. Ed. 3. and 12. R. 2. it doth appeare that the meaning of the makers of those lawes was not onely to preserue peace to eschew quarrels but also to take away the instruments of fighting and batterie and to cut off all meanes that may tend in affraie or feare of the people Assurances made by menace 10 As menace of life and member giueth cause of an action of trespasse to him that receiueth losse or hurt thereby intituleth the king to a fine 20. Ass p. 14 28. H. 6. 8. in like sort an obligation a release or déed of annuitie made and granted by menace are voidable by the law so that the same menace be of life member or libertie viz. of some hurt to be done to his body by death maiheming or imprisonment and not to his lands or goods for if A. will menace B. that if he will not make him an obligation of xx l that then he wil disseise him of such land 7. Ed. 4. 21. 4. H. 4. 2. 39. H. 6. 51. or dispossesse or take from him such goods in this case if B. doe make and deliuer the said obligation of xx l to A. in an action of debt brought by A. against B vpon the said obligation B. shall not auoyd this obligation in respect of this menace because this menace did not tend to the hurt of the person of B. but to preiudice him in his lands or goods for the redresse and recouerie whereof the law would haue giuen B. a sufficient remedie if A. should haue done him the wrong which he menaced And he that will take an aduantage to auoid his déed by menace must in this plea expresse Fitz. Dures 13. how and in what sort the other partie did menace him viz. that he drewe his sword against him and threatened to kill him if he would not seale and deliuer such an obligation release annuitie c. If A. doe menace B. in one countie that he will kill or maihem him 33. H. 6. 24. 2. H. 5. 10. if hee doe not seale him an obligation of xx l or stand to the arbitrement of C. in a cause depending in question betweene them And after B. beeing at libertie in another countie doth seale the same obligation or doth stand to the arbitrement of C. this obligation or arbitrement is void for it shall be intended to bee done by force of the first menace And if A. doe menace B. that he wil kil him imprison maihem or beate him if he doe not make an obligation of xx l to C. 39. H. 6. 36. Co. li. 2. 9. if in this case B. do become bound by obligation to pay vnto C.xx l. in an action of debt brought vpon this obligation by C. against B. the same B. may auoid this Obligation which he made by this menace of A. though the menace was made by one man the Obligation was made to an other for that the menace was the cause of the making of this Obligation which the law doth respect and punish and not only the partie to whom the Obligation was made 11 Assault batterie be for the most part an accomplishment of that which menace did threaten a performance by déedes of that What is assault and batterie which the other forewarned by words that is to say a violent forcible abusing or attempting to abuse by blowes and stripes the person of an other contrary to the peace of the Realme and the law of the same which hath ordeined that no person shall be Iudge or reuenger of his own wrong but leaue that to the censure of the law that is alwaies readie to heare redresse euery mans iust complaints for he that doth attempt to assault or beat an other to satisfie his own turbulent spirit or to reuenge his owne priuat iniurie doth as much as in him lieth to wrest the sword of gouernmēt out of the K. hands to take from the law her equal censure in justice to make himself both Iudge executioner in his own cause because this disordered person contemning the justice of the Law hath assaulted or beaten an other without warrant of law broken thereby the peace of the realm the law hath deuised a quiet peaceable course to reduce him again to order in punishing him by an action of Trespas of assault batterie wherin being conuicted he shal satisfie the party grieued his damages pay to the K. a fine his body shal be committed to prison vntill he hath satisfied it Though the party menaced shall not haue his remedy by action of Trespas vnlesse the same menace was of life member and also that the party menaced receiued some losse or preiudice therby in his liuelyhood or estate for that the menace the hurt which the party doth receiue thereby being ioyned together do make the trespas giue cause of the action of Trespas Yet in an action of Trespas of Assault battery where it is proued found that the offendor did make an assault only as one did strike at an other with a hatchet but did make no batterie or hurt the person of any other it is otherwise for séeing assaulting doth tend to the breach of the peace 22. Ass p. 60 42. Ed. 3. 7. 40. Ed. 3. 40. 6. H. 7. 1. he that maketh an assault doth his indeuor to hurt the law doth giue to him that is assaulted an action of Trespas to recouer his damages to the K. a fine for by the assault the party assaulted is put in feare euill handled hindred of his busines And if he be diuers times assaulted 45. E. 3. 24. he may haue one action of Trespas for all those assaults shall recouer damages according to the number and grieuousnes of them And
take into his or their hands or possessions all such copie customarie holds so holden of thē or any of thē immediatly to retain the same during only the life of such offēdor or offendors in such maner as he or they should haue had the rents or seruices of such copy or customary hold in case such person or persons so refusing had not refused A farmer required refuseth to serue 39 All euery farmer being a yeoman husbandman artificer or labourer 1. M. 12. beeing of the age of xviij yeares or more vnder the age of lx years not sick impotent lame maihemed nor hauing any other reasonable excuse or cause to the contrary being required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commissiō or letters c. they declaring their said authoritie or being required by their said Landlord or Landlords for the time being to whom the rents of such farmes shal be then rising growing or comming to serue the king for any the causes aboue rehearsed and refuse so to doe shall during only the life of such farmer or farmers so refusing forfeit and loose to such Landlord and Landlords as should haue had the rents of such farmer during the life liues of such person persons so refusing all their said farmes And it shal be lawfull to euery such Landlord c. their heires and assignes to whom the rents of such farmes should haue bin due during the life of such person or persons so refusing in case he or they had not refused to enter take into his or their hands or possessiō al such farms to retain the same only during the life of euery such offēdor or offendors But after the death expiration or determinatiō of the interest or terme of yeares of euery such copyholder customary holder or farmer as so shal offēd forfeit any of the said copi-holds customary holds or farmes as is aforesaid thē euery such person as should or ought to haue had the copy holds customary holds or farmes after or by the death expiration or determination of the interest or terme of years of such copie-holder customarie holder or farmer in case such copie-holder customarie holder or farmer had not so offended ne forfeited shall and may haue the same copie-hold customarie holds and farmes by entrie action admission or otherwise in like manner forme and condition and by such meanes as they and euery of them should might or ought to haue had if no such forfeiture or offence had bin had done or committed 40 If any person shal be spoken vnto moued 1. M. 12. or stirred to make any cōmotion Disclosing a commotion when one is moued insurrection or vnlawfull assembly for any of the intents aboue mētioned and doe not within 24. houres next after he shal be spoken vnto moued or stirred vnlesse he haue good and reasonable cause of excuse declare the same vnto one Iustice of the peace or Sherife of the said countie or to the Mayor Sherifes Bailifes or other head officers of any citie or town corporat where such commotion c. shall be had he shall suffer imprisonment by the space of thrée moneths without baile or mainprise vnlesse he shall be discharged by 3. Iustices of peace whereof one to bee of the Quorum of the same shire where the offence shall be committed 1. M 12. 41 If any person béeing aboue the age of eightéene yeares An able person required refuseth to serue and vnder the age of thréescore beeing able to serue and not sicke lame or impotent shall be required by any Iustice of peace or any Sherife of any Countie where any such assembly shall be or by any Mayor Bailife or other head Officer of any citie borough or towne corporat or by any other by the commandement of any such Iustice Sherife Maior c. to goe with him or them to suppresse the persons vnlawfully assembled in manner and forme aforesaid then euery person which so béeing able and required doth willingly and obstinately refuse so to doe shall suffer imprisonment for one whole yeare without baile or mainprise 1. M. 12. 42 If the King shall by his Letters patents make any Lieutenant in any Countie or Counties of this Realme Attendance vpon a lieutenant for the suppressing of any commotion rebellion or vnlawfull assemblie then as well all Iustices of peace and the Sherife and Sherifes of the same as all Maiors Baylifes and other head officers and all inhabitants and subiects of any Countie Citie Borough or towne corporat within euery such Countie shall vpon declaration of the said Letters patents and request made bee bound to giue attendance vpon the same Lieutenant to suppresse any commotion rebellion or vnlawfull assemblie vnlesse hee so required haue any reasonable excuse for his not attendance vpon paine of imprisonment for one whole yeare 1. M. 12. 43 The order and forme of the Proclamation that shall be made by the authoritie of this Act shal be as hereafter followeth The forme of the Proclamation or with the like order and words in effect viz. The Iustices or other persons authorized by this Act to make the said Proclamation shall make or cause to be made an Oyes and after that shall openly pronounce or cause to be pronounced these wordes or to the like effect The King our Soueraigne Lord chargeth and commandeth al persons being assembled immediately to disperse themselues and peaceably to depart to their habitations or their lawfull businesse vpon the paine contained in the act lately made against vnlawfull and rebellious assemblies And God saue the King 1. M. 12. 44 If any person or persons doe or shal molest let hinder Hinderance of the Proclamation or hurt any person or persons that shall proclaime or go to proclaime according to the proclamation and order aforesaid whereby such proclamation shal not be made then euery such person so molesting or hurting c. and hauing knowledge of his message shall incurre such daunger and suffer such paines and forfeitures the persons assembled to whom the proclamation should haue beene made should by this Act incurre for not obeying the Proclamation if it had béene made or for doing after the Proclamation of any the things before expressed And also all such persons beeing assembled to the number aforesaid to attempt or doe any the things aforesaid to whom Proclamation should or ought to haue beene made if the same had not beene let shall likewise in case they doe after put in vre and doe any the things aforesaid hauing any wayes knowledge of the let so made or by any meanes procuring the same let incurre like danger and suffer like paines and forfeitures aforesaid in euery their degrees as though the proclamation had beene made any clause article c. in this Act c. notwithstanding Other mens right saued 45 All
may haue a writ directed out of the Chauncerie to the Shirife only or to the Shirife and the Iustices of peace vpon the Statute of Northhampton made AnÌ„ 2. Ed. 3. St. 2. E. 3. 3. commaunding that proclamation may be made vpon that Statute 6 And for that it is conuenient that he who is with force expelled out of his lands or by force detained from the same should not be long kept out of possession thereof but that there should be a spéedie redresse to restore him to his owne and also because it is meant that the inquisition of that force should be made by men of good estate and so the more like to be indifferent of better vnderstanding and to declare the truth in those cases Therefore by the foresaid statute of Anno 8. Sta. 8. H. 6. 9. H. 6. it was moreouer ordained That when the said Iustices or Iustice shall make such inquiries as are beforesaid they shall cause their warrants and precepts to be directed to the Shirife of the same Countie A precept to the Shirife to impannell a Iurie commaunding him on the Kings behalfe to cause to come before them and euery of them sufficient and indifferent persons dwelling next about the lands so entred vpon as before to enquire of such entries whereof euery man that shall be impannelled and may inquire in this behalfe shall haue lands or tenements to the value of xl s. by the yeare at the least aboue reprises and that the Shirife returne issues vpon euery of them at the day of the first precept returnable xx s. and at the second day xl s. and at the third day fiue pounds and at euery day after the double And if any Shirife or Baylife within a fraunchise hauing the returne of the Kings writs be slacke and make not execution duly of the said precepts to him directed to make such inquiries he shall forfeit to the King xx.li. for euery such default Shirifes forfaiture and moreouer shall make fine and ransom to the King And aswell the Iustices or Iustice aforesaid as the Iustices of Assise and euery of them at their comming into the Country to take Assises haue power to heare and determine such defaults and negligences of the said Shirifes and Bailifes and euery of them aswell by bill at the sute of the party greiued for himselfe as for the King to sue by Inditement only to be taken for the King And if the Shirife or Bailife be duly attainted in this behalfe by Indictment or by bill he which sueth for himselfe and for the King shall haue the one moitie of the forfaiture of xx li. together with his costs and expences The proces And the same proces shall be made against such persons indited or sued by bill in this behalfe as should be against persons indited or sued by writ of Trespas with force and armes against the Kings peace 7 The forme of which precept by a Iustice of peace Buck. to the Shirife to returne a Iurie to enquire of Forcible entries is this Edwardus Tirrell miles vnus Iusticiariorum dnÌ„i Regis The forme of a Precept to the Shirife to returne a Iurie ad pacem in Comitatu Buck. conseruandam assignatorum vicecomiti eiusdem Comitatus salutem Ex parte dicti Domini Regis tibi mando quod venire facias coramme apud Thornborough in Comitatu praedicto 10. die Octobris proximo futuro 24. probos sufficientes legales homines de viceneto de Thornborough praedicto quorum quilibet habeat 40. solidos terrarum tenementorum vel reddituum pet annum ad minus vltra reprisas ad inquirendum super sacramentum suum si A. B. de Adstock in dicto Comitatu Buck. blacksmith alij malefactores pacis dicti domini Regis perturbatores in vnum mesuagium 20. acras terrae alia tenementa de C. D. husband de T. praedict ' manu forti super possessionem dicti C. D. ingressi sunt aut eadem cum fortitudine adhuc tenent occupant Et videas quod super quilibet Iuratorum in hoc parte impan nellandorum xx s. ad primum diem returnes hoc nullatenus omittas sub pena xx.li. quam noueris te incursurum si in executione praemissorum tepidus aut remissus fueris Et habeas ibi hoc praeceptum Datur apud Thornton xx die Septemb. Anno Regni domini nostri Regis Iacobi c. tertio 8 The forme of an inquisition or verdit of the Iury which are returned and sworne to enquire of forcible Entrie into lands or tenements or of the forcible detayning of them taken by a Iustice of peace is this Buck. The forme of an Inquisition of forcible entrie viz. Inquisitio pro domino Rege capta apud Buckingham in ComÌ„ praedicto xx die N. Anno Regni domini nostri Regis Iacobi c. quarto super sacramentum A. B. C. D. E. F. G. c. coram Thoma Temple milite vno IusticiarÌ„ dicti domini Regis ad pacem in dicto Comitatu conseruandam assignatorum Qui dicunt quod vbi H. I. de Tyngswicke in Comitur praedict husbandman qui legitime pacifice seisitus fuit in dominico suo vt defecdo de vno mesuagio cum pertinentijs in Tyngswick praedicto possessionem suam sic continuauit quousque L. M. de Maydsmoorton in Comitatu praedicto laborer alij malefactores pacis dicti domini Regis perturbatores xxx die O. iam vltimo elapso vi armis viz. cum baculis gladijs arcubus sagittis fustibus gunnis balistis in mesuagium praedictum c. intrauerunt ipsum H. I. inde expulerunt idem mesuagium c. a praedicto xxx die O. vsque ad diem captionis huius inquisitionis c. cum huiusmodi fortitudine potentia tenuerÌ„ occupauerunt in magnam pacis dicti domini Regis perturbationem contra formam statuti in tali casu editi ê“uisi vbi nullus eorum nec aliquis alius cuius statum ipsi aut aliquis eorum habuerunt aut habuit aliquid in eodem mesuagio c. aut aliqua inde parcella habuerunt aut habuit infra tres annos proximos ante ingressuÌ„ suum praedictuÌ„ nequè aliquo tempore praecedente ad notitiam Iuratorum pÌ„dictorum 9 And for that the said Statute of 8. H. 6. hath ordained That if it be found before any of the said Iustices of peace that any doth contrarie to that Statute then the said Iustices or Iustice shall cause the lands or tenements so entred or holden with force to be reseised and shall put the partie so put out in full possession of the same lands so entred or holden as before they were entred or holden Therefore when the Iustice of peace shall by the said Inquisition be informed or by the view of his owne eye perceiue that any such forcible entrie into any
thing and things in all points as other Iustices of Assise in their circuits or Iustices of peace in the Counties by vertue of this Act be limited and appointed to do and execute for the punishment and correction of like offendors as beforesaid is limited Sauing to the partie grieued by such deceit such remedie by way of action The remedie of the partie grieued or otherwise of for the same money goods cattels iewels or other things so obtained as he might haue had if this Act had neuer bin made Any thing in this Act c. notwithstanding 26 Forgerie of writings hath béene alwayes so hatefull in this realme that our law-makers haue pursued the practisers therof with sharpe and bitter punishment though in some cases the same was not put in vse to molest or euict any man of his land lease annuitie debt account action suit or other demaund nor to get into his hands any others goods cattels or iewels but only to escape the ordinance and censure of the law As by a statute made anno 5. Eliz. it is established St. 5. El. 7. That no person retained in husbandry or in certain inferior arts or faculties in the said statute mentioned shal depart out of one citie towne or parish into another nor out of the Lathe Rape Wapentake or Hundred nor out of the County or Shire where he last serued to serue in another Citie Towne Forging of a testimoniall c. vnlesse he haue a Testimoniall of the said Citie or town corporat from whence he departed or of the Constable or other officer c. And if any such person shall be taken with any counterfeit or forged testimoniall then he shal be whipped as a vagabond ⧠Periurie Subornation of witnesses Truth tried by the othes of men 1 THe Law of the Realme desirous to trie out truth in all causes called in question before her to the end she might procéed in iudgement and execute iustice accordingly hath in all ages prooued it to bee the best meanes to search out this truth by the othes of honest lawful and indifferent persons intending that the man who doth professe God to bee his Creator Redéemer and Sanctifier and hopeth to be saued by his blood when hee doth come in the presence of that God and his people and doth aduisely sweare that he will declare the trueth according to his knowledge in that matter in question as God shall help him which is to say as he will expect the blessing of God in this life and eternall saluation in the life to come is void of all partialitie and priuat affection in all respects to be credited and will tell the whole truth and nothing but the truth And therefore an othe is aptly termed Sacramentum a holy band or sacred tie or godly vow The credit of an othe some do call it firmamētum veritatis the foundation ground of truth and some other vinculum pacis a meane of the knot or lincke of peace And if it be taken and found by a whole Iurie consisting vpon twelue persons or aboue it is called veredictum viz. a presentment of truth And others doe hold it a ceremonie instituted by God wherein himselfe is a partie and therefore he will see it verified or sharply punished Wée know that the proofe of most of our acts déeds and writings doe depend vpon the othes of others and whatsoeuer men do for their owne particular account most certaine is altogether in most cases vncertaine vnlesse it may be iustified by the othes of others As if one doe commit murder rape burglarie robberie or other offence whatsoeuer and it be denied and cannot be prooued by the othe of some other the offendor shall escape vnpunished for it And likewise if a man do buy land of another if the feoffor doe make him a déed of feoffement thereof do seale and deliuer it and giue him possession and after will denie it vnlesse it can be prooued by the othe of some other the feoffée shall loose his land and money And so it is of leases annuities releases acquitances obligations bargaines contracts couenants promises offences entries disseisins and other matters in fait if they be denied trauersed and called in question the proof and validitie of them doth depend wholly vpon the othes and testimonie of others And there is no case so plaine which commeth in question betweene partie and partie but one of the parties to the sute may pleade such a plea as shall come to be tried by the othes of others 2 Therefore as the Lawe doth reuerently respect the othes of men What sorts of persons are to be deposed taketh her intelligence of matters in fait from them doth cleaue leane vnto them and giueth such credite and approbation vnto them that shée doth found and build her iudgements in most cases of greatest importance vpon them So shée retaineth a vigilant and carefull eye that those othes be taken by men of sinceritie of life and maturitie of iudgement persons not stained with Periurie or other gréeuous or foule offences men indifferently affected and such as will in swearing respect the trueth of their knowledge and not the face of the person for if shée espie any of those defects in him she doth either wholly reiect his othe or else shée giueth little or no credite vnto it and further inflicteth condigne punishment vpon him according to his desert Mag. Char. 9. H. 3. 29. 3 And because the King himselfe at his Coronation is sworne that iustice shall be solde deferred or denied to no man nor that any man shall be condemned but by lawfull triall and euery of his Iudges be sworne that hée shall doe equall Lawe and execution of iustice to all the Kings Subiects Sta. 18. Ed. 3 rich and poore without hauing regard to any person All the parties to the execution of iustice sworne Therefore the law hath deuised that those Iudges before whome any cause is called in question and is brought to an issue shall be informed of the trueth of that issue by the othes and verdict of twelue Iurors who are impannelled returned and sworne to trie that issue to the end the same Iudges may ground their iudgement thereupon and so doe equall iustice to the parties according to their oathes and also that the saide Iurors shall be ascertained of the veritie of the fact by the Othes of witnesses or other euidences that they may giue their verdict thereupon according to their Othes And séeing those Iurors being the greatest number of persons that be vsually sworne for the furtherance and execution of iustice be returned by the Shiriffe of the Countie where the cause dependeth in question his vndershirife or the Bailife of some Libertie or for some default in them by the Coroners Therefore the Lawe hath further ordained that the saide Shiriffe Vndershiriffe or c. shall be indifferent persons of themselues and also deale vprightly
of the Iurors and that the Iuror in respect thereof doth beare an extraordinarie affection and is to make a recompence to the same partie and that therefore in this triall hée will fauour him and be a meane of Periurie and therefore if the Iuror be challenged for that cause he shall be drawen And some doe affirme the same cause of challenge and feare of Periurie to be 7. H. 6. 40. 19. H. 6. 66. if a Iuror hath béene godfather to either of the parties to that triall or to any childe of his 14 The Lawe expecting to be satisfied per Veredictum Iuratorum of the trueth of such causes as doe come to an issue dooth carefully foresée that those Iurors who are to deliuer the trueth by their verdict Periurie suspected in respect of ignorance of the cause should either before the time of the triall vpon their owne priuate knowledge or by their Euidence at the time of the triall be certainely informed of that trueth of the thing in question lest by ignorance mistaking falshoode for trueth they should slide into Periurie And because those that be dwelling or haue some land where the land lease or thing in question doth lie are more likely to haue intelligence of the trueth of the cause in question both to satisfie themselues and informe their Companions than other strangers of the same Countie are who dwell farre off the Lawe hath ordained by the Statute of Anno 27. Elizab. That there shall be sixe sufficient Hundredors impannelled vppon euery Issue ioyned which is to be tried in any of the Courts of the Kings Bench Stt. 27. El. 6. Common Pleas and the Exchequer Want of Hundredors or before the Iustices of Assise in all cases where euerie Iuror by the auncient lawes of this Realme ought to haue fortie shillings of fréeholde at the least And that at or vppon the triall of any personall action there shall two sufficient Hundredors at the least appeare And for that cause if in those cases there be not so many Hundredors at the least the Lawe doth conceiue they be ignorant of the truth of the Issue in triall And to that end for the auoiding of Periurie she will reiect the whole Iurie if they be challenged And so it is in an Assise where the plaintife is to be put in possession per Visum Iuratorum if he recouer or in any action where the Iurie is to haue the view of the land in question 8. Ed. 3. 69. Fitz. Chall 102. 169. if the same Iurors Want of the view or some of them had not the view of the land in question nor did know it before the Lawe will suspect that they will commit Periurie if they should be sworne séeing they be ignorant of the land and know it not in specie And therefore vpon challenge they shall be remooued 1. R. 3. 4. 15 Because our Law-makers haue in seuerall ages found by experience that nothing is a greater motiue enticement Periurie in respect of pouertie or rather inforcement to Periurie than néede and pouertie Therefore they haue endeuoured by many Statutes to prouide that such as be returned of Enquests should not onely be men of good behauiour and credite but also of conuenient liueliehoode estate and abilitie to liue of themselues for that Necessitie which hath no lawe nor bridle should not compell them to sell truth for rewardes nor to plunge themselues into Periurie for bribes And for the preuention of this Periurie in poore persons and such as bee of meane and weake estate Stt. 21. Ed. 1 by a Statute made Anno 21. Ed. 1. it was ordained That no Shiriffe Vndershiriffe or Bayliffe of Libertie shall put in any Recognisaunces of Assises Iuries Enquests or Attaints Iurors impanelled that shal passe out of their owne Counties that shall passe out of their proper County any person of their Bayliwickes except he hath lands and tenements to the yearely value of a hundred shillings at the least or that shall passe within the Countie except hée hath lands to the yearely value of xl s. And for the same cause vpon the same reason of preuention of periurie in poore and néedy persons by a Statute made Anno 3. H. 5. it was established St. 3. H. 5. 3 That no persons shall be admitted to passe in any enquest vpon triall of the death of a man or in any enquest betwéene partie and partie in plea reall or in plea personall whereof the debt or dammages declared do amount to xl Markes if the same person hath not lands and tenements of the yerely value of xl s̄ aboue all charges so that he be challenged for that cause by the party But by the Statute of An̄ 23. H. 8. St. 23. H. 8. 13. euery person being the Kings naturall subiect borne which by the name of a Citizen a fréeman Iurors to try felonies in corporat townes or any other name doth inioy the liberties of any Citie borough or town corporat where he dwelleth being worth in goods to the cléere value of xl li. shall be admitted in triall of Murders and felonies in euery Sessions and gaoles of deliuery kept in and for the libertie of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this Act extendeth not to any Knight or Esquire dwelling abyding or resorting in or to any such citie borough c. And by the Statute of An̄ 27. Eliz. it was enacted Sta. 27. El. 6. That in all cases where any Iuror to bee returned for the triall of any issue or issues ioyned in any of the Courts of the Kings Bench common Pleas the Exchequer or before Iustices of Assise by the Lawes of the Realme now in force ought to haue estate of fréehold in lands Where Iurors must haue 4. li. land tenements or hereditaments of the cléere yerely value of xl s̄ in euery such case the Iurors that shal be returned shall euery of them haue estate of fréehold in lands c. to the cléere yearely value of foure pounds at the least out of auncient demesne within the Countie where the issue is to be tried By the Statute of 11. H. 7. it is prouided St. 11. H. 7. 21. That no person shal be impannelled summoned or sworne in any Iury or Enquest in Courts within the citie of London Iurors in London except he be of lands tenements goods or cattels to the value of xl Markes And no person shall be impannelled summoned or sworne in Iuries or Enquests in any Court within the said Citie for lands or tenements or action personall wherein the debt or dammages amounteth to the summe of xl markes except he be in lands tenemēts goods or cattels to the value of one hundred marks St 19. H. 7. 13. By the Statute of Anno 19. H. 7. it was ordained That euery of the xxiiij persons dwelling within the shire where any riot
verdit or misdemeanors shall happen to be made shall haue full power to compell such Iurors and euery of them vpon paine of imprisonment to be bound by Recognisance in a certaine summe of money by their discretion to be limited that the same Iurors and euery of them shall personally appeare at a certaine day by the same Iusticiar Steward or other officer to be limited before the Lord President and other of the Councell aforesaid for the time being then and there to abide and stand to such direction and order as the same councell shall make ordaine and decree of in and vpon the same And the same councell shall thereupon haue authoritie by examination or otherwise to heare and determine all and euery such cause and shall haue like authoritie to commit euery of the same Iurors to prison or other punishment as shal be thought meet by the discretion of the said counsel or otherwise assesse or taxe euery such Iuror to his fine and ransome by the same discretion to be paied and leuied of their lands goods and cattels to the vse of the King Periurie committed by witnesses 20 Hauing written of the restraint and punishment of periurie in Iurors consisting of twelue persons at the least impannelled or sworn to deliuer their verdict according to their euidēce I am now to expresse what punishments the law doth inflictt vpon such which doe come one by one as deponents or witnesses to testifie the truth and to informe the Iudge or the Iurie of the veritie of the matter in issue or question according to their knowledge whereof euery man by himselfe may be called singularis testis though there be more witnesses sworne in that cause And séeing that iustice cannot be executed without the knowledge of the truth of the cause in question that truth is in most cases only to be deliuered by the othes and testimonies of such parties as were witnesses priuie or best acquainted with the matter in variance Therefore first it is to be obserued that the wisdom of the law hath thought it necessarie to prouide that such witnesses may be compelled vnder a great paine to appear in court and testifie their knowledge concerning such matter in question as by the Statute made Anno 5. A witnes vpon proces serued shall appeare El. it was ordained St. 5. El. 9. St. 29. El. 5. That if any person vpon whom any proces out of any of the courts of Record within this Realme or Wales shal be serued to testifie or depose concerning any matter depending in any of the same courts and hauing tendered to him according to his countenance or calling such reasonable sums of money for his costs and charges as hauing regard to the distance of the places is necessarie to be allowed in the behalfe doe not appeare according to the tenor of the said Proces hauing not a lawfull and reasonable let to the contrarie then the partie making default shall forfeit for euery such offence x. l and shall yéeld such further recompence to the partie grieued as by the discretion of the Iudge of the court out of the which the said proces shall be awarded according to the losse and hindrance that the partie which procured the said proces shall sustaine by reason of the non appearance of the said witnesse the said seuerall summes to be recouered by the partie so grieued against the offendor by A.I.B.P. c. in any of the K. courts of Record wherein no W.E. or P. c. 21 There were seuerall statutes made during the raignes of king H. 6. K. H. 7. and K. H. 8. against Periurie and the procurers and committers of periurie and lastly one was ordained Anno 32. H. 8. St. 32. H. 8. 9 against such as should suborne witnesses to the hindrance of Iustice and the procurement of periurie Sithence the making whereof for that the penaltie therein is small towards the offendors in that behalfe the said offence of subornation and sinister procurement of false witnesses did neuerthelesse greatly increase and by reason of the wilfull Periurie committed by the same suborned witnesses diuers persons did sustaine disherison and great impouerishment as well of their lands and tenements as of their goods and cattels The penaltie for procuring of wilfull periury in witnesses for the redresse and more sharpe punishment whereof St. 5. El. 9. 29. El. 5. by a Statute made Anno 5. El. it was enacted That all and euery person and persons which shall vnlawfully and corruptly procure any witnes or witnesses by Letters Rewards Promises or by any other sinister and vnlawfull labour or meanes whatsoeuer to commit any wilfull and corrupt Periurie in any matter or cause whatsoeuer depending in suit and variance by any Writ Action Bill Complaint or Information in any wise concerning any lands tenements or hereditaments or any goods cattels debts or dammages in any of the courts of the Chauncerie Starre chamber White hall or in any other of the Kings Courts of Record or in any Léet view of Franke pledge or Law day Auncient demesne Court Court Hundred Court Baron or in the Court or Courts of the Stannerie in the countie of Deuon and Cornewall Or shall likewise vnlawfully and corruptly procure or suborne any witnesse or witnesses which shall bée sworne to testifie in perpetuam rei memoriam Then euery such offendor or offendors shall for his hers or their said offence béeing thereof lawfully conuicted or attainted forfeit fourtie pounds to the King and the partie grieued hindered or molested by reason of any of the offences aforesaid that will sue for the same by A. B. P. or I. in any of the Kings Courts of Record wherein no W. E. P. or I. shall bée allowed And if it happen any such offendor or offendors béeing so conuicted or attainted as is aforesaid not to haue any goods or cattels Lands or Tenements to the value of fourtie pounds then euery such person or persons so conuicted or attainted of any of the offences aforesaid shall suffer imprisonment one halfe yeare without Baile or Maineprise and stand vpon the Pillorie one whole houre in some Market Towne neere or next adioyning to the place where the offence was committed in open market there And no person béeing so conuicted or attainted shall bée from thenceforth receiued as a witnesse to bée deposed in any court of Record within any of the Kings dominions of England Wales or the Marches of the same vntill the Iudgement giuen against him or them shall bée reuersed by Attaint or otherwise And vpon euery such reuersall the parties grieued shall recouer his or their dammages against all and euery such person and persons as did procure the said iudgement so reuersed to bee first giuen against them or any of them by action to be sued vpon his or their case according to the course of the common Law St. 5. El. 9. 22 If any person or persons either by the subornation
of their office or occupation Nor to any Liueries or Badges giuen in the defence of the King and his Realme Nor to the Constable or Marshal for giuing any Badge Liuerie or token for any feats of armes to bee done within this Realme Nor of any Wardens of the Marches toward Scotland for any Badge Liuerie or token by thē giuen frō Trent Northward at such time onely as shall be necessarie to leuie people for the defence of the Marches St. 7. H. 4. 14 And by the stat of anno 7. H. 4. it was ordained That no congregation or companie shall make any Liuerie of cloth or of hats at their owne costs vpon paine that euerie of the same congregation or companie shall forfeit fortie shillings except Guilds and Fraternities and also people of Artes and Sciences within Cities and Boroughes which be ordained to a good intent 13 As the wisedome of the Realme hath established from one age to another the foresaid lawes and statutes Publishing inquiring of and punishing of maintenāce for the repressing or snibbing of Champertie Embracerie buying of titles and all other sorts of Maintenance so hath she prouided trumpets to sound out and publish those laws into the ears and sinke them into the hearts of all people and secondly shee hath assigned watchmen and sentinels to sée who infringed those lawes and lastly she hath ordained Censors and Iudges to punish the offendors therein as it appeareth by the before specified statute of anno 32. St. 32 H. 8. 9 H. 8. wherby it is enacted That the Iustices of Assise shall in euerie Countie within their circuits two times in the yeare viz. in the time of their sittings for taking of Assises or deliuerie of the Gaoles cause open proclamation to be made as well of the said statute and euerie thing therin contained as also of all other statutes heretofore made against vnlawfull maintenance champertie embracerie or vnlawfull retayners to the intent that no person hearing the same should be ignorant or misconisant of the dammages and penalties therein contained And by the former rehearsed statute of anno 8. St. 8. Ed. 4. 2 E. 4. it is ordained That euerie person which will sue against any other for any offence committed contrarie to that statute or any other of the premisses viz. any other ordinance or statute before that time made against any persons for giuing or receiuing of Liueries or Badges before the Kings Iustices in his Bench before the Iustices of the Common Pleas Iustices of peace in their Sessions Iustices of Oier and Terminer and Gaole deliuerie Iustices of the countie Palantine of Lancaster and Chester and in the Court of Hexamshire and in the Court of the Bishop of Durham in the Countie Palatine of Durham shall be admitted thereunto by the discretion of the said Iudges to giue information for the king of any of the premisses committed within the iurisdiction of the same Courts And euerie Informer shall be admitted to sue for the King and himselfe action or actions vpon the same by information in any of the said Courts against as many such offendors in one Bill of Information as liketh him which Information shall be in stead of a Bill or originall writ wherein such Proces shall bee awarded as in an originall writ of Trespasse but that in the Counties Palantine of Lancaster and Chester nor in Duresme no Exigent shall be awarded vpon any information suit or proces to be made by force of this ordinance And if any be or any Outlawrie thereupon pronounced the same shal be void without any writ of Error And if any of the offendors be present in any of the said courts any of the Iustices may cōmaund him to be brought to answer to such bill vpon such information by an othe first to be taken vpon a booke by such informer before some one of the Iudges that his complaint is true without any other or further proces therein And euerie of the same Iudges within his iurisdiction may by his discretion examine euerie of the defendants vpon such information and iudge him conuict as well by examination as by triall and the King shal haue the one halfe of the forfeiture if it be not in a citie or towne corporat that hath the same by the grant of the king or c. and the informer the other halfe which also shall recouer his costs by the Iudges discretion and execution thereof as in recoueries vpon debt or trespas wherin no Essoine or Protection shall lye And the Maior Sherife Bailife or other chiefe officer of euerie citie borough towne or port within this realm hauing power to heare and determine personall pleas in the court holden before them or any of them within any such towne haue authoritie to receiue information of any person which offends in the premisses and to heare determine as wel by examination as by triall all things done concerning the same by or to the inhabitants within the iurisdictiō of the same court to put this stat for those offences prouided in execution And the King shal haue the one moitie of all penalties forfeited by the said stat and the Informer chiefe officers of such citie borough c. shall haue the other moitie equally to be diuided betwixt them And the said chiefe officers part shal be imployed to the vse the said citie borough towne or port c. And sithence the foresaid lawes statutes by one other stat ordayned an 33. Iust of peace may inquire of and punish maintenance H. 8. and confirmed an 37. H. 8. it was enacted St. 33. H. 8. 10. 37. H. 8. 7. That Iust of peace at their Quarter Sessions shal haue authoritie to inquire as wel by the othes of xij men as by information giuen to them by any person or persons of defaults contempts offences cōmitted against the lawes statutes made and prouided concerning or in any wise touching retainers giuing of liueries signs tokens or badges maintenance embracerie c. and euery of them to heare determine the said defaults offences c. And vpon any information touching the penalties or any of them to make proces by Venire fac ' one Capias an Exigēt vnder their seals against euery such person persons against whom such information or presentment shal be had for their apparance before them in their Sessions to answer to such information or presentment as shall be there made And if the person or persons so accused by information or presentment shal be conuicted vpon such information or c. by confession or verdit of xx men then the said Iust haue power to giue iudgemēt against euery such offendor so conuicted of imprisonment forfeiture of money or both of them as are limited by the said seuerall statutes for such offences whereof they are conuict and to cause execution therof to be made accordingly Why the pursuing of maintenance is left out
is depending to giue iudgement for the plaintife then the def may haue an action of Maintenance against him for that the same iudgemēt is a thing wholly belonging to the office of a Iudge and not of a Iuror therfore he doth therin intermeddle with another mans office and another mans cause more than he hath to do or may iustifie and so hath committed vnlawfull maintenance Maintenance in a Iuror 18 If a Iurie be charged to inquire of a matter in issue 17. E. 4. 5. 18. Ed. 4. 4. one Iuror may persuade his cōpanions or any of them to passe for the plaintife or def as he conceiueth the truth of the cause to be or as their euidence doth induce them this is no maintenance but if one of the Iurors will giue or promise money to another of his fellowes to giue his verdit for the pl. or def this is vnlawfull maintenance though he doth wage him to giue his verdit according to truth and right of the cause in issue Maintenance by speaking of words 19 If a man of great authoritie in a country will in the presence of a Iurie 22. H. 6. 5. 13. H. 4. 19. and the standers by at the tryall of an issue say openly that he will spend mony in the cause in question in the behalfe of the pl. or the def or that hee will giue money to labour the Iury or wil speake other great or high words in fauor of one of the parties this is vnlawful maintenāce in him though he do spend no mony in that cause nor doth labor the Iury therin for it may be that whē the Iury do by his words know his meaning they dare not in respect of his authoritie or greatnesse in that coūtie giue their verdit otherwise thā he would haue them None shall sit with the Iust of Assise on the bench And for the preuention of that kind of maintenance by a stat made An. 20. R. 2. it was ordained That no Lord or other of the country great or small St. 20. R. 2. 13. shall sit vpon the bench with the Iust of Assise in their Sessions in any of the Shires of England vpon paine of a great forfeiture to the King neither the Iustices shall suffer the contrarie to bée done Maintenance in comming to the barre with one of the parties And in like sort if a man of great authoritie in the Countie where an Issue is to be tried hauing nothing to doe in that cause doth come to the barre with the plaintife or defendant 22. H. 6. 6. that is one of the parties to an Issue that is then to bée tryed and standeth by him this is an vnlawfull maintenance in him though hée neither doth nor yet speaketh any thing in the matter for his presence and companie with the one partie doth shew to the Iurie his particular affection to the same partie and doth ofttimes induce them to fauour as much as labour and persuasion by words could doe And though the Iurie doe not respect him but giue their verdict for the other partie to that suit according to their euidence and the truth of the cause in question yet he hath done what in him lyeth to the contrarie 21. H. 6. 15. 22. H. 6. 5. 28. H. 6. 7. Dyer fo 95. 20 And so it is if two be in suit and do ioyne in issue Maintenance by giuing of money to labour a Iurie and the Master of one of the parties to that issue or any other will deliuer money of his owne to a stranger to labour the Iurie impanelled to try that issue to giue their verdit for his said seruant or friend this is maintenance vnlawfull in the Master or other though the partie to whom the money was giuen did neuer deliuer it to the Iurie nor did not labour vnto them in such sort as hée was directed or though the Iurie did giue their verdict against his said seruant for when the Master had deliuered the money to the stranger and told him to what purpose he should vse it he had done as much as he could do in that suit to hinder the course of iustice though his direction tooke no successe according to his desire And also it is vnlawfull maintenance if one giue money to a man that is impanelled of a Iurie to giue his verdict on the one side though that partie impanelled doth not appeare or do appeare and is drawne out by challenge or otherwise 22. H. 6. 6. And it is maintenance vnlawfull if one do threaten to kill or beat a Iuror if he do not giue his verdict for the one part to that issue which hee doth name though the same Iuror do otherwise 28. H. 6. 6. 21 If a Iurie do come to a mans house What is maintenance in a witnesse and what not and desire him to informe them of the truth of a matter whereof they do doubt and he doth informe them therof this is iustifiable But if one do come to a Iurie or of himselfe do labour to informe them of the truth of a cause in question this is maintenance vnlawfull and therefore punishable And so it is if the Court be informed by the plaintife or defendant when an issue is to be tryed that there is a man at the bar or in that place who doth know the truth of the matter in issue and doth desire that the same man may be examined by the Court to testifie the truth of that cause in question to the Iurie and the Court doth cause him to be called to testifie his knowledge therein and he at the commaundement of the Court deliuereth that which he doth know in that matter this is maintenance iustifiable But if the same partie will come to the barre of his owne head and testifie for the plaintife or the defendant this is vnlawfull maintenance and hée may be punished therefore 22. H. 6. 6. 22 If one man do labour to indict another by force whereof he is indicted Maintenance by procuring of an indictment in this case hee that is indicted may haue a writ of Maintenance against the procurer of that indictment and yet this is no quarrell but it is a taking of a part St. 1. E. 3. 14. and so prohibited by the stat of anno 1. E. 3. and it is in the nature of an action betwéene the King and the partie indicted and the foresaid statute is generall that it shall not be lawfull to any person great or smal to maintain quarels or to take parts to the let or disturbance of the Common law What is maintenance in a mainpernor 23 If a man be arrested indicted or sued 34. H. 6. 25. 14. H. 6. 6. 18. E. 4. 12. so that he is compelled to become bound with mainpernors for his apparance the mainpernor may come into the Court and sée the apparance of the same partie recorded and iustifie the
to haue execution of a fine if the shirife returne the tenant of the land summoned by two summoners whereas he was not summoned by which returne the demaundant shall recouer and haue execution of the land if the tenant do not appeare and the tenant shall loose the land in this case the tenant may haue a writ of Deceit against the shirife and the demaundant that did recouer and him that is then tenant of the land and shal be restored to his former possession And the like law is 17. Ed. 3. 12. if a man sue a Scire facias vpon a Recognizance against another for a debt before recouered Deceit to auoid a recouery of debt if the shirife returne the defendant summoned whereas he was not summoned by reason wherof the defendant hath execution awarded against him of the debt then the defendant may haue a writ of Deceit against him that had the execution and the shirife and the shirife shall be punished for his false returne and the party who did recouer shall make restitution of that which he recouered and if the defendant die his executors may haue a writ of Deceit Where executors shall haue a writ of Deceit and be restored if the deceit be proued and that the Testator was not garnished whereupon the garnishers shal be examined And so it is if a man recouer in a writ of Annuity Annuity and after doth sue a Scire facias and recouereth by default of garnishment Fitz. Deceit 42. the defendant may haue a writ of Deceit For by the statute of Anno 2. Ed. 3. St. 2. E. 3. 17. 17. a writ of Deceit holdeth place and is maintenable as well in case of garnishment which toucheth plea of land where such garnishment is giuen as in case of Summons in a plea of land for in all the cases aforesaid a Deceit was wrought by the shirife to the Court and the party grieued by his false returne and the Law hath ordained That euery of those deceits shal be reformed by the writ of Deceit And a recouerie and iudgement had made and giuen to the intent to defraud and frustrate the true meaning of a statute shal be void as amongst others it appeareth by the statute of Anno 43. A iudgement to defraud the meaning of a statute Eliz. whereby it was ordained St. 43. Eli. 9. That all iudgements which shal be had for the intent to haue enioy any lease of a benefite with cure or any bonds contracts promises couenants made for any person to enioy the same contrary to the statute of An. 13. El. 20. An. 14. El. 11. or any of them shal be void in such sort as bands couenāts are appointed to be void which are made void for that purpose for that the suits whereupon the same iudgements be giued were commenced prosecuted vpon collusion fraud to defeat and make frustrate the true intent and meaning of the said statutes or of one of them Deceit vhon recouery in a Quare impedit 8 If any person do recouer against another in a Quare impedit by default of the defendant whereas he was not summoned 27. H. 6. 5. Fitz. Deceit 57. 19. Eliz. Dyer 353. then the same defendant may haue a writ of Deceit and the Summoners and the pledges vpon the attachment and the mainpernors vpon the distresse shall be examined and if the deceit be found the first iudgement shal be reuersed and there shal be a writ awarded to the Bishop to remoue the Clerke that was in the Church And so it is Deceit vpon a recouery in wast if any person do bring an action of Wast against another 29. Ed. 3. 42. 48. Ed. 3. 20. Fitz. Deceit 30. the plaintife doe recouer against the defendant by default whereupon a writ is awarded to the shirife to inquire of the wast whereas the defendant was not summoned the defendant may haue a writ of Deceit against him that recouered in the same action of Wast and he shall suppose that hee was not summoned attached nor distrained and proces shal be awarded against the summoners the pledges and the mainpernors who shal be seuerally examined and if they all did not their duty according to the Law the plaintife in the writ of Deceit shal recouer and be restored to that which before he lost in the action of Wast Deceit vpon a recouery by a Praecipe in capite 9 And the like law is 17. Ed. 3. 31. 36. if any person doe recouer land against another by a Praecipe in capite where the same land is not holden of the King in chiefe but of a meane lord by other seruices and where the demaundant had no licence of the chiefe lord to sue at the common place then the chiefe lord may haue a writ of Deceit against him that recouered the same land wherein he shall recouer his dammages the demandant shal be imprisoned for the deceit and also the lord shal retaine his seigniory in the same land But the recouery shal remain in force and he that did recouer shall also hold of the K. in chiefe by the way of estoppell And this writ of Deceit is maintenable in this case by force of the stat of Magna Charta 9. H. 3. 24. whereby it is ordained That the writ which is called Praecipe in capite shal be granted to no man wherby any fréeman may loose his Court. 10 Couin is accounted so professed an enemy to iustice Where a good title shal be impaired by a couenous recouery therefore is so hated by the law that she adiudgeth that bad and vnlawful which is mixed with couin though before of it selfe it were good lawful as if the issue in taile who hath good cause to bring a Formedon in discender vpon a discontinuance made of certaine lands by one of his auncestors 44. Ass p. 28 41. Ass p. 28 be of couin that a stranger shall disseise the tenant of the land against which stranger he doth bring his action doth recouer this land and hath execution in this case he shall not be remitted to his former estate though his title be good but shall be adiudged in possession by disseisin 44. Ed. 3. 46. 15. E. 4. 4. 7. H. 7. 11 Co. lib. 5. 31 in respect of the couin And so it is if a woman that hath good cause to be indowed of her late husbands lands will be of couin that a stranger shall disseise the tenant of the land wherof she is indowable against which stranger she will bring a writ of Dower and recouer hath execution she shal be adiudged in possession against the disseisée but as a disseisor in respect of her couin though she had good title to be indowed And so couin mingling together vertue vice persuadeth the law to reiect condemne a lawfull title which is vnlawfully atchieued 11
be adiudged to the pillory the third time he shal be imprisoned make fine the fourth time he shall forsweare the towne And in this manner shal it be done of all that offeÌ„d in like case as of cookes that séeth flesh or fish any waies that is not holesome for mans body or after that they haue kept it so long that it looseth the naturall holesomenesse then séeth it againe and sell it And in like sort St. 39. El. 10 by one other statute made An. 39. El. it was enacted That if any alien or stranger born or any denizen or naturall born subiect of this realme shal bring into any hauen port créeke or town of this realme any salt fish or salt herrings which shal not be good swéet seasonable méet for maÌ„s meat shal offer the same to be sold and shall be warned by any officer of such Port c. where the same shal be offered to be sold that the same be not seasonable nor méet for mans meat Then if he or they shall after that offer any of the said vnseasonable fish to be sold to any person within this Realme or being an alien borne and no denizen shall not depart with the same from the said Hauen Port or Towne so soone as conueniencie will serue Then all and euery person owners therof shall forfeit to the Queen all the said vnseasonable fish vnméet for mans meat as is aforesaid And by a statute made Anno 4. Ed. 3. it was established St. 4. E. 3. 12 That assay shall be made of wines twice euery yeare once at Easter and another time at Michaelmas and more oft if néed be by the lords of the Townes and their Baylifes and also by the Mayors and Baylifes of the same townes and all wines that be found corrupt shal be powred out and the vessels broken ⧠Extortion Exaction 1 EXtortion is a wrong done by an Officer What is Extortion as Ordinarie Archdeacon Officiall Maior Bailife Shirife Escheator Coroner Vndershirife Auditor Receiuer Clerke or other Officer or by any other by colour of an office in taking of an excessiue reward or fée and more then the law doth allow him for execution of his said office which offence in some degrées is worse then the priuy picking of a mans purse in secret and the transgressor in a sort may be compared to the Fréebooter which with drawne sword and with menacing words assaulteth the trauailer by the way who casteth down his purse to him for feare of further hurt And so is the poore sutor many times inforced to doe to the Officer when of necessitie he must vse his helpe It is a thing most odious and offensiue to the iustice and peace of the Realme and to all the members thereof that those men who be specially made choice of and principally selected to serue their prince and countrey and to further the execution of iustice in their offices and places and be sufficiently rewarded with conuenient stipends for their paines therein should in contempt of the law assesse their owne fées in a sort put their hands in other mens purses and there take what they will and thereby doe wrong vnder the colour and shadow of iustice Exaction is a wrong done by an officer What is Exaction or by one pretending to haue authoritie in demaunding and taking reward or fée for that matter cause or thing which the law doth allow no fée at all And as our common statute lawes haue declared which offences or acts they doe condemne and adiudge as Extortions and Exactions so haue they prescribed in most cases seuerall penalties to be inflicted vpon the seuerall transgressors therein leauing the residue to be punished at the kings pleasure or by the discretion of such of his Iudges Iustices or others by his commission authorized before whom the offendors shall be thereof conuicted And further our said statute lawes haue set downe for the most part what fées or duties the sutor ought to pay to the officer the officer is to demaund of him to the intent that the one shall not be ignorant what to offer nor the other what to require and to the end that the Law hauing written it in a sort in the officers forehead what his duty is he may blush when he looketh in the sutors face and demaundeth more 2 I will begin with an Exaction that no former generation did tast of heare of or feare but it hath sprung vp of later yeares bin greatly exclaimed of and condemned in this our present age which is taking of money or some other reward for a Report or Certificat wherein the offendor most commonly doth a double iniury and to two seuerall persons viz. first to him whose mony fee or other reward he taketh for the fauourable making of that report in his behalfe whereas the law doth allow him none for reporting but otherwise bountifully rewardeth him for that and all such other paines and next and chiefely to him in preiudice of whom or whose case he maketh that report He doth not now indifferently respect the cause in question but bendeth his eye vpoÌ„ the reward which he hath receiued and deuiseth to accomplish the request of the one and yet to yéeld to the other not the effect but some colour of iustice The King at his coronation doth promise to all his subiects Mag. Chart. St. 9. H. 3. 29 Quod nulli vendemus nulli negabimus aut differemus iusticiam whereupon the whole realme did take it vnkindly at their hands who being the kings Substitutes in place of iustice and receiuing but a small particle of his authoritie would doe then all the said offences at once and sell denie and deferre iustice to some of the kings subiects certifie that for good which was bad or that for iustice which was méere iniurie Or if they did make report and certificat of that which was iust and true would sell it and take money or other reward for it which the king himselfe vpon his oath refuseth to doe And therefore because all exâ—â—tions extortions and corruptions be odious as well in this as in all other well gouerned Commonweales and to the intent to preuent the like enormities in this and other ages by a statute made Anno 1. Iacob it was enacted St. 1. Iac. 10 That no person to whom any order or cause shal be committed Exaction by taking or reward for a report or referred by any of the Kings Iudges or Courts at Westminster or any other Court directly or indirectly or by any act shift colour or deuice haue take or receiue any money fée reward couenant obligation promise agréement or any other thing for his report or certificat by writing or otherwise vpon paine of forfeiture of one hundred pounds for euery such report or certificat and to be depriued of his office and place in the same Court The one moitie to be to the king his
wrong to the disheritance of another or to the preiudice of his Fréehold without any warrant of law 18. Ed. 3. 22. 21. Ed. 3. 2 Co. li. 5. 101. Li. Int. 406. or colour of iustice As if one person doe build or leuie a house a wall a shead a leantor a chimney a gutter or other structarie in his owne ground to the offence of anothers fréehold or to the drowning or rotting of his house or to the stopping of his light or way thereunto this is an oppression 46. Ed. 3. 23. 7. Ed. 3. 56. And if one person doe leuie rayse abate or pull downe a Damme Poole Pond or Ditch to the hurt of anothers Fréehold that is an oppression 27. Ed. 3. 88. 12. H. 4. 3. 8. Ed. 4. 5. 48. Ed. 3. 27 8. Eliz. Dyer 2 50. 14. Eliz. Dyer 319. And if one person doe stoppe straiten or turne an auncient water-course to the hurt of anothers Freehold or in such sort as it doth drowne the ground or soyle of another that is an oppression And if one person do stoppe streiten or greatly impaire anothers highway which hée hath belonging to his Fréehold that is an oppression If one person doe conuey water to his house or ground by a pipe of lead timber or vault of stone and another person will make another pype out of that pype to take away part of the same water that is an oppression of him that made the first pype And if one doe erect a lime-kill néere vnto anothers dwelling house 4. Ed. 3. 36 5. Ed. 3. 43. 4. Ass p. 3. the smoake and heat whereof when it is set on fire doth annoy the inhabitant of the said house and his familie or doth scorch or dry vp the fruit trées in his orchard that is an oppression And if one person hath the fréehold of a seueral fishing in a riuer pond poole moat mill damme or other water Lib. in t 406. and another person wil build a dye-house adioyning or neere vnto it and then will powre out or cause to run from thence corrupt ashes dung slime filth or other annoyances into the said seuerall fishing place to the distruction of the fish there whereby the owner doth loose the benefit of his seuerall fishing that is an oppression of him And if one person will erect or settle vp a Faire or Market Fit Nat. Br. 184. Register 197. 199. Li. Int. 407. to the preiudice or hinderance of anothers Faire or Market that is an oppression of him who had the first Faire or Market And if one person do lay timber faggots stones lime sand grauell dung or any other thing vpon or against the house of another which do rot putrifie corrupt or impaire the walls timber or other part of the same house or any corrupt noisome or stinking thing the sauor or smell whereof is offensiue to the inhabitant of the same house and his familie that is an oppression of the same inhabitant The remedies for oppression by Nusances In which foresaid cases the parties grieued by the said Nusances and oppressions may in some cases haue their remedies by Assise of Nusance brought in the Common Pleas in some other cases by writs of Nusance called Vicountiels tryed in the Countie before the Sherife in some other cases by the writ of Quod permittat in some other cases by action vpon the case and in most of the sayd cases the sayd parties grieued by the sayd Nusances may take away pull downe Co. li. 5. 101. and remooue the same Nusances as their seuerall estates will enable them or their seuerall cases doe require Oppression by Rescous 6 Euerie Rescous that is vnlawfully made of cattel or other goods distrained is an oppression for the offendor doth a wrong of his owne authoritie to the preiudice of another in contempt of the iustice of the Realme without any warrant or colour of law Séeing when the partie grieued by himselfe 44. Ed. 3. 20 40. Ed. 3. 32. 17. Ed. 3. 43. 18. Ed. 3. 30 2. H. 4. 15. or some other doth distraine within his fée for his rent or seruices behind for dammages which hée hath sustained for amerciaments a rent charge or for some other cause which hée taketh to bée lawfull the cattell or other goods of him who he doth conceiue detaineth his due rent or seruice from him or whose cattell haue eaten or spoyled his corne or grasse or otherwise haue trespassed in his ground and doth in quiet and peaceable manner driue them towards the pownd there to remaine as a pledge sub custodia legis vntill the law hath decided whether there was iust cause of distresse or not the owner of the same cattell or some other in his behalfe will by force and strong hand make Rescous of this cattell and take them from him who distrayned them and so will not submit himselfe to the censure of the law nor tarrie vntill it be discussed by the ordinarie course of iustice whether the party that distrained had lawfull cause so to doe or not but will be his owne iudge and take the authoritie of reuenge to himselfe which is an oppression of him whose rent or seruices were due and vnpayd or whose corne or grasse was eaten c. and who was also forcibly depriued of the ordinarie remedie which the law did assigne him for the recouerie of his owne duetie And moreouer it is a contempt of the law which the same offendor doth refuse to be iudged by 7. H. 6. 1. 22. H. 6. 54. Fitz. Na. Br. 101. and therefore in this case the partie grieued may pursue against the offendor a writ of Rescous for this Rescous made and oppression done vnto him and thereby recouer his dammages and also the King shall haue a fine of him for this contempt of his law and his peace broken Li. Int. 527. and the offendor shall be imprisoned vntill hée hath paid the same 7 Euery Encrochment which one person doth make vpon anothers land Oppression by incrochments ground couered with water rent or seruice is also an Oppression for they be done and put in practise by the offendors own open plaine manifest wrong without any warrant or colour of the law As it is an oppression for one person by ploughing earing ditching hedging remoouing of Méerestones or land markes 22. Ass p. 93 to get away the ground or soyle of another and so it is for one person to draw away or alter an auncient Riuer Brooke or Streame of another persons out of the old and wonted course and so it is if there be lord and tenant and the tenant doth hold his land of his lord by fealty fiue shillings of yearely rent and of late yeares the lord hath had seisin of more rent of the tenant by the tenants owne payment without cohertion of Distresse if in this case the lord will distraine his tenants Cattell for that surplusage of rent that
persons by him or them assembled shal be free discharged and vnpunished as well against the King as against all and euery other person and persons of for or concerning such killing maiheming hurting c. for it is homicide by iustice done and committed by persons lawfully authorised vpon such riotous and rebellious persons which after Proclamation made will not depart and seuer themselues asunder and submit and yeeld themselues obedient to the law of the Realme S. Riots 37. 5 As any man may iustifie the killing of another before arrest Killing him that is carrying to the Gaole if he wil not yeeld so may he doe after arrest if there be any ineuitable necessitie therein as if an offendor be arrested for felony 22. Ass p. 55 Fitz. Cor. 288. and when he is in leading towards the Gaole he breaketh from those that doe conduct him and flieth away and his conductors doe pursue him so that they cannot apprehend and take him againe without killing of him In this case if they doe kill him this is homicide by iustice and iustifiable for that the offendors would not yeeld to the triall iustice of the law But if he which killed the offendor procured the matter which is iustifiable for the cause aforesaid to be found before himselfe in respect of some iurisdiction which he hath to enquire of felonies Fi. Cor. 328 he shall not bée discharged vpon such an indictment found vntill he be arraigned thereof and the matter also found by verdict because he himselfe was Iudge But the law is otherwise if it were found before other commissioners 6 As a man may kill an offendor before arrest Killing a prisoner attempting to escape or after arrest if he will not yéeld so in some case a man may kil him that is vnder arrest in prison As a Gaoler came in the night with a Lanthorne in his hand to see his prisoners who before his comming had broken their yrons 22. Ass p 55 and stood all ready to kil him and did beat and euill intreat him and he hauing a hatchet in his hand therewith slew two of them and escaped from the residue This was adiudged to be well done and to deserue no punishment for this was by the Gaoler homicide done by iustice to kill them who attempted to kill him and who indeauoured to escape the triall and iustice of the law St. 24. H. 8. 5 7 It appeareth by the Statute of an̄ 24. H. 8. 5. Killing him that attempteth robbery or burglary That it is homicide iustifiable if a man doe kill an offendor which attempteth feloniously to robbe or murder him 22. Ass p. 55 26. As p. 23 32. Co. l. 5. f. 91 Fi. Cor. 303 305. in or néere any high way cart way horse way or foot way or in his mansion house or to kill him which attempteth burglarie to breake his dwelling house in the night and that the same shal be by verdict so found and tried for he shall neither loose lands goods or cattels for the death of any such euill disposed person but shal be fully discharged as if he were acquit thereof 8 To the intent that Trespassors in forrests chases parkes and warrens Killing of an offendor in a Parke warren or forrest may more charily eschew and feare to enter and trespasse in the same by a Statute made an̄ 21. Stat. 11. E. 1. E. 1. it was ordained That if any forester parke-kéeper or warreiner shall find any offendors within his Bailiwicke there wandring and doing hurt which after Huy Crie leuied to kéep the peace and obey the law will not yéeld themselues to the Forrester c. but will flie defend themselues by violence Then though the Forresters Park-kéepers and Warreiners any other comming in their companie to kéep the Kings peace endeauouring to arrest such offendors doe kil any of the same offendors he shal neither suffer death nor sustaine any other trouble or punishment therefore But if any of the said Forresters Parke-keepers or Warriners or any other by reason of contention despite or hatred will lay to any mans charge passing through his Bailiwicke that hee came thither to doe hurt whereas hee did not neither was found wandring or offending and so kill him and thereof be conuicted he shal be punished for his death as he ought to be for the death of an other being in the Kings peace And by this meanes the Forrester doth commit homicide by iustice vpon the offendor because he will not submit himselfe and yeeld to be iustified by the law 9 If the king haue an auncient Chace whereof the Lieutenants M. 15. 16 El. Dyer 327. or Kéepers haue vsed time out of the remēbrance of man as well by night as by day to hunt in the Manor of Dale adioyning to the said Chace such deare as do strate out of the same Chace into the said Manor as in the purlewe of the said chace but yet diuided from the same with hedge and ditch And after the same Manor of Dale doth come vnto the Kings hands and the King doth grant the same Manor to another and his heires and further doth grant vnto the same person frée Warreine in all his demesne lands of the said Manor Vnity of possession in a chace and a manor adioyning hauing free warrein which frée Warreine hath bin before confirmed by diuers auncient Charters with these words viz. Ita quod nullus intret in Warrennam illam ad fugandum sine licentia voluntate of the grauntée of the said Manor In this case notwithstanding the vnitie of the possession of the Chace and the Manor of D. in the king and notwithstanding the Kings grant of the manor and the confirmation of the warreine with the generall words of the Prohibition aforesaid which doe onely extend to the Subiect the kings libertie of the purlewe doth remain vnextinguished And therefore if one of the Kings Kéepers of the said Chace shall come into the said Manor of D. being purliew to fetch in his straied déere it is not lawfull for the Lord of the said manor of D. or for any of his seruants to kill him after huy and crie made to kéep the peace and obey the law and if he doe it is not iustifiable by the foresaid Statute of 21. Ed. 1. for he cannot commit homicide by iustice nor iustifie the killing of him in his Warreine who hath in a sort and to some purpose interest to come into the said ground to fetch forth his straied deere One killing another in combat 10 If in Appell of murder burglarie or other felonie the defendant doe 37 H. 6. 21 plead not guiltie ready to defend it by his body and the Appellant and Appellée doe ioyne in the combat and one of them doe kill another in battell This is Homicide by iustice and not punishable for as the law of the Realme doth allow
plead that the plaintife is outlawed 17. Ass p. 26 11. Ass p. 27 18. E. 3. 35 Fi. Cor. 3 or is attainted of Treason or Felony or otherwise is disabled to maintaine an appeale as if a woman doe bring an appeale of the death of her husband and the defendant doth plead that she and her said husband were neuer accoupled in lawfull marriage or that she hath married another husband Or that the appeale was not cōmenced within the yeare day after the offence committed Or that the appellant hath an elder brother liuing to whom the appeale is giuen Fit cor 384 387. not to the plaintife And all those matters which shal be a barre to the plaintife to bring the appeale shall also be a barre to the K. to take any aduātage against the appellée vpō the same appeal for in all these cases it may appeare that the appeale was cōmenced without cause grounded vpon false insufficient matter And the king shall be in no better condition than the appellant for the defendant is arraigned vpon the declaration of the appellant and yet it is otherwise where the Appeale was at the first grounded vpon sufficient and true matter But in all the cases aforesaid though the king can take no aduantage of the Appeale against the defendant yet he may compel him to answer to an indictment of the same felonie for that by these pleas the defendant is not discharged of the felonie though he be discharged of the Appeale S. Approuers 15. 17. 18. 19. No appeale of Treason 97 If an act which was murder felony or other offence by the cōmon law be after made treason by stat then one doth offend in the same no Appeal wil lye against him therefore for that no Appeale will lye of High or Petit Treason And therefore whereas wilfull poysoning was wilfull murder by the common law and after by the stat of 22. H. 8. 9. the same was made high treason and ordained that the offendor therein should be boyled to death which stat was sithence repealed by the stat of 1. Ed. 6. 12. 1. M. yet during the said stat of 22. H. 8. in force the sonne and heire of a man poysoned brought an appeale against a woman for poysoning her husband and because the offence was then high Treason M. 33. H. 8. Dyer 50. and no appeale will lye of Treason the appeale was adiudged not maintanable And yet by the ancient lawes of this realme as Bracton affirmeth the accusor might haue pursued an appeale of high Treason against the defendant or party accused Bracton de coron̄ c. 3 and the defendant might haue thereunto pleaded not guilty and waged battell with the accusor But that Law is sithence altered ⧠Indictments What an Indictment is 1 AN Indictment of Treason Felony Trespas or other offence is an inquisition taken and made by twelue men at the least thereunto sworne whereby they doe find and present that such a person of such a name and sirname dwelling in such a place of such a County and of such a degrée hath committed such a Treason Murther Rape Burglarie Robberie Felony Trespas or other offence at such a place vpon such a day and in such a manner against the Kings peace his Crowne and Dignitie and contrary to the Lawes of this realme and so it is an accusation by the Iury of the offendor and an information of the Court from whence they receiue their charge of his offence and of all such necessary circumstances thereof and in such certaintie that thereupon the same Court may procéed to the triall or arraignement of the party accused if he be present or otherwise may award Proces against him to appeare and to make answere thereunto if he be absent And because this Indictment and accusation doth sometime concerne the life or member of man sometime his liberty sometime his fame and credite sometime his Lands and Tenements and some other time his Goods Cattels Therefore the Law hath a speciall regard that the procéedings therein may be effected with all sinceritie and vpright dealing and doth carry a vigilant and watchfull eye not onely vpon the Iurors which are returned and sworne in those Enquests that they may be men of integritie sufficiencie and indifferencie but also vpon Shirifes and Baylifes of Liberties who haue authoritie to returne the same Iurors for she hath prouided by seuerall Statutes That they shall take no Indictments by Commissions procured at their owne sute but in their Turnes That they shall hold their Turnes St. 28. E. 3. 9 St. 31. E. 3. 14 St. 13. E. 1. 13 St. 1. E. 3. 16 and take Indictments but in conuenient and vsuall times That they shall take Indictments by twelue men at the least and then by Roll indented That they shal take their Indictments by men of good name credit and sufficient of estate St. 1. R. 3. 4 St. 1. E. 4 3. That they shall bring their Indictments and Presentments found and made in their Turnes to the Iustices of Peace of the same Countie that they may award Proces against those that be indicted and set fines vpon them That Iurors impanelled to make inquiries St. 11. H. 4. 9 shall be lawfully returned by shirifes or baylifes of Franchises without the denomination of any other person That Panels returned by the Shirife to make inquiries St. 3. H. 8. 12 St. 3. H. 7. 1 may be reformed by the Iustices and that one Enquest may be impanelled and charged to inquire of concealements of offences made by another Enquest So that the Law hath prouided that Indictments may be found by men of worth and vpon iust causes And as touching Commissions because in times past Shirifes of diuers Counties by vertue of Commissions generall Writs graunted vnto them at their owne sute for their priuat gaine did take diuers Enquests to indict people at their owne pleasures Commissions to shirifes to take indictments and then tooke fines and ransomes of them to their owne vses and after set at liberty the parties and neuer brought the same persons so indicted before the Kings Iustices to be deliuered there according to the forme of Law It was therefore by a Statute made Anno 28. Ed. 3. St. 28. E. 3. 9 ordained That all such Commissions Writs should be from thenceforth repealed and that none such should be at any time after graunted By force of which Statute the Shirife is restrained to make any inquirie by Writ or Commission The shirife may inquire of Felonies But yet by vertue of his office he may at this day make inquirie in his Turne of Felonies obseruing such orders as by the statutes hereafter limitted be expressed St. 9. H. 3. 36 2 Whereas by the statute of Magna Charta it was ordayned That no Shirife or his Baylife shall hold his Turne by Hundreds but twice in the yeare in
but only they that were taken for the death of a man by the cōmandement of the K. or his Iust or for the forest therefore by the stat of W. 1. viz. 3. E. 1. it was ordained St. 3. E. 1. 15 That prisoners which before were outlawed Who are mainpernable and who not and they which haue abiured the realm prouers and they which be taken with the maner and such as haue broken the K. prison théeues openly defamed knowne and such as be appealed by prouers so long as the prouer doth liue except he be of good fame and such as be taken for burning of a house feloniously done or for false mony or for counterfeiting the Kings Seale Or persons excommunicat taken at the Bishops request or for a manifest offence or for treason touching the King shall be in no wise mainpernable by a common writ nor without writ But souch as be indicted of larceny by enquests taken before Sherifs or Bailifs by their office or of light suspition or for petit larceny that amounteth not aboue the value of xij d. if they were not guiltie of some larceny before or guiltie of receit of théeues or felons or of commandement or force or of aid in felony done or guilty of some other trespas for which one ought not to loose life or member And a man appealed of an approuer after the death of the approuer if he be no common théefe nor defamed shal be let out by sufficient suertie whereof the Sherife will be answerable and that without giuing any part of their goods Bailement by the Sherife If the Sherife or any other let one go at large by suertie St. 3. E. 1. 1◠which is not repleuisable if he be Sherife Constable or any other Bailife of fée which hath the kéeping of prisoners and is thereof attainted he shal loose his fée and office for euer And if the Vndersherife Constable or Bailif of such as haue fée for kéeping of prisoners do it contrary to the will of his Master or any other Bailife being not of fée they shal haue iij. yeres imprisonment and make fine at the K. pleasure Withholding of prisoners repleuisable Whosoeuer doth withhold prisoners repleuisable St. 3. E 1. 15. after they haue offered sufficient suerty shal pay a grieuous amerciamēt to the K. he that doth take any reward for the deliuerance of such shall pay double to the prisoner and also a grieuous amerciament to the King 6 By the foresaid Stat. of West 1. 15. it doth appeare that in foure cases a man was not mainpernable at the common law In what cases no mainprise at the common law viz. they that were taken for the death of a man or by the Kings commandement or of his Iustices or for the forrest Touching the death of a man it is intreated of before And as concerning the Kings commandement this is intended the Kings commaundement The kings commandement by his owne mouth or by his councell which is incorporat to him doe speake with the Kings mouth and by authoritie from him Or otherwise if those words should be taken his generall commandement it may be said that euery Capias in a personall action is the Kings commandement for it is Precipimus tibi quod capias c. and yet in that case the defendant is repleuisable by the common law And as touching the Iustices commandement The Iustices commandement this shall be intended their absolute commandement for if it be their ordinary commandement he is repleuisable by the Sherife sauing in certain cases prohibited by the statute 7 Because in times past diuers persons that were indited of felonies robberies larcenies did remoue the same inditements into the K. Bench there yéelded themselues prisoners were presētly bailed by the marshals of the same Bench and after did lie in wait to kill or misuse their inditors And also for the certain persons appealed of felonie after the Exigent awarded did yéeld themselues in the K. Bench St. 5. Ed. 3. 8 then were let to baile by the marshals of the said bēch for the preuention whereof it was enacted by a statute made an̄ 5. E. 3. The marshall of the Kings bench shall baile no prisoner That such inditées and appellées shal be safely and surely kept in prison according to the charge which the said marshals shal haue of the Iustices And the marshals of the K. Bench shal not baile any felons but shal kéep them in prison and shal not suffer them to go wandring abroad by baile nor without baile And if any such prisoner be found wandring out of prison by baile or without baile that be proued at the K. suit or the parties the marshals which shal be found guilty thereof shal be halfe yeare imprisoned ransomed at the Kings pleasure And the Iustices shal inquire therof when they sée cause And if the marshals suffer the prisoner to escape by their assent they shal be at the law as before time they haue bin And so it appeareth by this Stat. that imprisonment by commandement of a Iustice was not sufficient to restraine bailement in all cases where bailement was not prohibited by the law A Iustices ordinarie cōmandement and absolute vntil the foresaid Stat. of an̄ 5. E. 3. was made and that is to be intended of an ordinarie commandement of a Iu. for if he doe giue an absolute commandement the prisoner is not baileable As if the Iustice command one to prison without shewing cause why he doth so command or for misdemeanor done in his presence or for some other cause which lieth in the discretion of the Iustice more than in his ordinary power 8 The fourth cause why a man is not repleuisable by the common law is the forrest St. Char. Forest 16. for whereas by the Statute of Charta forestae made an̄ 9. H. 3. and confirmed by King E. 1. The king did graunt for him and his heires that of trespasses committed in his Forrests of vert and venison that the Forresters in whose Bailiwickes such trespasses should be committed should present the same trespasses at the next Swanimot before the Forresters Verderers Regardors and Agistors and other ministers aforesaid by the oathes as well of Knights as others wise and lawful men and not suspitious of the parts next adioyning and néerest where those trespasses shal be so presented and where the truth may best and most certainly be inquired of and the same truth being once found out those presentments by the common assent and agreement of all the Officers aforesaid shal be solemnely written sealed with their seales And if any inditement be made in other manner it shal be accounted void And because the chiefe wardens of Forrests did not obserue the said order but that diuers people were disherited ransomed and vndone by the chiefe wardens of the Forrest on this side Trent and beyond and by other
iudgement shall be giuen that the approuer shall be hanged And in like sort it is Fi. Cor. 456 if an approuer doe appeale seuerall persons in seuerall counties and processes be awarded against them vntill some of them be attainted and some of them depend in processe not attainted and the Iustices be informed by credible persons of the same countie wherein they were appealed that there be no such men to their knowledge in rerum natura the approuer shall be hanged An approuer did appeale two men in London and proces was awarded against them and it was returned that there were no such men dwelling in the city of London and the approuer agréeing to the same returne Fi. Cor. 460 saide that they were dwelling within the city of Lincolne and he was not thereunto receiued but was adiudged to be hanged So that if there be any falshood or lying in the approuer be it before his approuement or after and that the court do perceiue it they will take his appealing from him and adiudge him to be hanged And if they do otherwise Approuement after pleading not guiltie it is more of fauour than of right 12. Ed. 4. 10 for of fauour the court may allow the prisoner to waiue his plea of Not guiltie and to confesse the felonie and to become an approuer 21. H. 6. 35 And if an approuer doe appeale one who by his owne confession is out of the Realme he shall be hanged for the appellée cannot be attainted at his sute for though he should be outlawed yet he may reuerse it at his returne for that cause 6 When a prisoner vpon his arraignement doth confesse the felonie An Approuers othe and praieth a Coroner which is assigned vnto him by the court he must be sworn in the same court before his departing to appeale of all felonies and treasons which he doth knowe and the court shall appoint him a number of daies wherein to make his appeale in the which daies and in euery of them hée ought to appeale for if thrée dayes be appointed and in two of them he doth appeale 12. Ed. 4. 10. 26. As p. 19. Fit Cor. 439 and the third day he will affirme to the Coroner that he can say no more and the Coroner doth report the same to the court iudgement shall be giuen that he shall be hanged 7 An approuer shall haue wages of the King euery day that is assigned him by the court to approue in viz. a penny a day And some do affirme An Approuers wages that he shall haue no wages Fi. Cor. 439 vntill he hath made his proofe by vanquishing some appellée in battell or by conuicting him by verdict and then he shall haue wages of the King for euery day 8 When a Coroner is assigned to an approuer An Approuer set at liberty the approuer must he let out of prison to the intent that hee may approue or appeale of his owne frée will being at liberty without any dures for if it be by dures when he commeth againe before the Iustices hée may rehearse his appeale and disauow it for that cause which shal be tried by the examination of the Coroner vpon his othe Fi. Cor. 118 169. 255. And if the Coroner do say that the same appeale was not by dures the appeale shall stand and the approuer shall be hanged And when the approuer hath made his appeale before the Coroner he shall come againe before the Iustices and rehearse his appeale before them for they will not reade his appeale vnto him and if hée doe faile in the rehearsall of his appeale 26. As p. 19 in anie word otherwise than the Coroner hath recorded it he shall be hanged as if in his rehearsall he doe say that there was a blacke horse stollen where it it was recorded by the Coroner a redde Horse An Approuers appeale must be certaine For the Approuer must declare the thing certainely with all the circumstaunces thereof without any varying or alteration Bracton and he must know the person whom he hath appealed when hée is brought into question for if he know him not it is to be presumed that they were neuer companions Processe against the appellees 9 After an Approuer hath made his appeale before the Coroner if the appellees be dwelling in the Countie where the appeale is made the Coroner hath authoritie to award processe against them vntill the Exigent and to direct his processe to the Shirife to serue But so he cannot doe 29. Ed. 3. 42 if the appellées be dwelling in another countie for then he must not award processe against them but referre it to the iustices before whom he is to record the same appeale And they may award processe as the Iustices of the Kings bench and Iustices in Eire may do who may award processe by the common law and Iustices of Gaole Deliuerie by the statute De Appellatis made Anno 28. Ed. 1. which hath ordained St. 28. Ed. 1. That whosoeuer shal be appealed by any Approuers remaining in the Gaoles which the Iustices of Gaole deliuerie shall deliuer in what places soeuer of the Realme the persons appealed shall remaine immediatly the Shirife of that countie where such persons appealed be conuersant or may be found shall be commaunded by the Kings Writs vnder the testimonie of the same Iustices that he shall apprehend those persons appealed and conuey them to the Gaole where the approuers by whose appeale they be apprehended be imprisoned And the Shirife or Gaoler of that prison shall receiue them and there they shall answer before the same Iustices And if they put themselues vpon the country the Iustices shall send by a iudiciall Writ to the Shirife of the Countie where the felonie was committed that hée shall returne an Enquest before them at the place where the approuers do remaine at a certaine day Pleas for the Appellee against the Approuer 10 It is a good exception for the appellée in his owne defence to alleage against the approuer that the approuer is a person attainted of treason 11. As p. 27. Fi. Cor. 387 443 21. Ed. 3. 17 or felonie and to shew how viz. either by verdict outlawrie or abiuration or in any other manner for such a person is out of the Lawe and so disabled to appeale or accuse others And the same lawe is if the approuer be a clerke conuict for hee commeth now too late to confesse a felonie 17. Ed. 3. 13. when hée hath pleaded not guilty thereunto before which was found false at his owne sute and therefore it cannot be intended that the thing hée saith now is true And although hée had his clergie vpon confession of the felonie An Approuer conuict of felonie yet hée shall not now become an approuer for that he saide nothing at that time when hee ought to haue approued and therefore the Lawe cannot intend that hée hath
Peace of the same Countie where such offendors shall happen to be shall vpon his or their corporall Oath before the Iustices of the Peace in the open Quarter Sessions of the same Countie where such offendors shall then bée or at the Assises and Gaole Deliuerie of the same Countie before the Iustices of the same Assises and Gaole Deliuerie abiure the Realme of England and all other the Quéenes Dominions for euer vnlesse her Maiestie shall licence the parties to returne and thereupon shall depart out of the Realme at such Hauen or Port and within such time as shall in that behalfe be assigned and appointed by the said Iustices before whom such abiuration shal be made vnlesse the same offendor bée letted or staied by such lawfull and reasonable meanes or causes as by the common lawes of this Realme are permitted and allowed in cases of abiuration for felonie And in such cases of let or stay then within such reasonable and conuenient time after as the common law requireh in case of abiuration for felony as is aforesaid And the Iustices of peace before whom any such abiuration shall happen to be made as is aforesaid shall cause the same presently to be entered of Record before them and shall certifie the same to the Iustices of Assises and Gaole deliuerie of the said Countie at the next Assises or Gaole deliuerie to be holden in the same countie And if any such offendor which by the tenour and intent of this act is to be abiured as is aforesaid shall refuse to make such abiuration as is aforesaid or after such abiuration made shal not go to such hauen and within such time as is before appointed from thence depart out of this Realme according to this present act or after such his departure shall returne or come againe into any the Qu. Realmes or Dominions without her speciall licence in that behalfe first had and obtained Then in euery such case the person so offending shal be abiudged a felon and suffer as in case of felonie without benefit of Clergie If any person or persons that shal at any time offend against this act shall before he or they be so warned or required to make abiuration according to the tenour of this act repaire to some parish Church on some sonday or other festiuall day and then and there heare diuine seruice and at Seruice time before the Sermon or reading of the gospel make publike and open submission and declaration of his and their conformity to her Maiesties lawes and statutes as in this act is hereafter declared appointed That then the same offendor shall thereupon be cléerely discharged of and from all the penalties and punishments inflicted or imposed by this act for any of the offences aforesaid Prouided that no Popish Recusant or seme couert shal be compelled to abiure by vertue of this act Prouided also that euery person that shall abiure by force of this act or refuse to abiure being thereunto required as is aforesaid shal forfeit and loose to her Maiestie all his goods and cattels and all his lands tenements and hereditaments during his life only and no longer But his wife shal not loose her dower neither shall his blood bée corrupt S. Felonie by stat 9. 17 By a statute made an̄ 35. El. 2. St 35. El. 2. intituled an act for the restraining of Popish Recusants to some certaine place of abode it is ordained Popish Recusants shall abiure the Realme That Recusants not conforming themselues to the obedience of the lawes of this realme in comming to the Church to heare diuine seruice which shall not vpon the request of two Iustices of peace or Coroner of the same countie abiure the realm and depart for the same and not returne without the Queenes licence shal be adiudged felons and suffer and loose as in case of felonie without benefit of Clergie S. Fel. by St. 10. St. 3. E. 1. 10 18 By the stat of West 1. made an̄ 3. E. 1. it is enacted Abiuration of a Trespasser That he which committeth trespasse in parkes or ponds shall abiure if hee cannot find suretie no more to doe the like offence But that abiuration is not for felonie neither shal he forfeit his lands or goods Pleading not guiltie HAuing made mention of one of the pleas which a prisoner brought to the barre to be arraigned of Treason or Felonie doth plead viz. of the Confession of the offence and shewed how many sorts of Confessions of felonie the law doth take notice of by what meanes she doth procéed against the parties confessing I am now to treat of a second or one other plea that the prisoner vpon his arraignment doth plead in his own defence which is the plea of Not guiltie For when a prisoner by an appeale or an Inditement is charged with treason or felonie he may estrange himselfe from the offence if he will and ioyne the same issue which the defendant oft times doth in an action of trespasse some other personall actions viz. he may plead and take for his issue Not guiltie This plea of not guiltie is the most common and vsual plea Pleading not guilty the most common plea. that he which is arraigned of treason or felonie hath to plead vpon an inditement or an appeale and it is the plea whereunto euery person that is arraigned shall be enforced vnlesse it be in speciall cases viz. where he hath matter of Iustification or matter in Law to plead And this plea of Not guiltie doth tend to the fact that is to the felony and therefore it receiueth great fauour in Law 7. Ed. 4. 15. 4. H. 6. 15 4. H. 7. 5. 10. H. 4. 4. 9. H. 4. 2. for the Law doth allow this plea to him who is arraigned after he hath pleaded in abatement or barre of the appeale or inditement so that his barre doe not comprehend such matter as doth confesse the felonie as a Release of the appellant or the Kings pardō And that plea he shall haue also though one of his pleas were matter in law for though those pleas doe require diuers trials 29. Ed. 3. 91. 22. E. 4. 39. 27. As p. 3 14. Ed. 4. 7 yet in fauour of life hee shall haue both those pleas as well as he shall haue when he doth plead matter triable by the Bishop or by Record viz. and moreouer not guiltie Which pleas he shall haue notwithstanding he doe not conclude moreouer not guiltie that is to say Pleading not guilty after other pleas he shall come time enough to plead not guiltie after the matter triable by the Bishop or by Record is found against him And the manner of pleading in all those cases is to plead his plea and to pray allowance thereof and ouer to the felonie not guiltie Vpon the plea of not guilty no coūcel allowed 2 Vpon this plea of onely not guiltie the partie indited shall not haue coūcell
linguae Therefore the more to encourage Marchants to continue here and also others to come with their marchandizes into this Realme by a Statute made Anno 8. H. 6. St. 8. H. 6. 29 it was declared That the same Statute made Anno 2. H. 5. should be no wayes preiudiciall to the foresaid first statute made 28. Edw. 3. nor was not meant that it should extend to any but onely to Enquests to be taken betwéene Denizon and Denizon and not to the other Enquests or proofes mentioned in the sayd Statute of 28. Ed. 3. viz. to Enquests to be taken betwéene Denizons and Aliens And that the first statute of 28. Ed. 3. should bée effectuall stand in force and be put in execution according to the forme thereof notwithstanding the later Statute of 2. H. 5. and notwithstanding that Aliens haue not lands or tenements of the yearely value of fortie shillings according to the purport of the sayd later statute of 2. H. 5. And so by this statute want of sufficient fréehold is the cause of Challenge to Aliens which bée impanelled with English men But yet it séemeth to be a cause to challenge English men who bée impanelled with Aliens for the perclose of this Statute doth wholly relye vpon Aliens This last rehearsed Statute of 8. H. 6. willeth That the intent of the other Statute of 2. H. 5. should bée preferred before the words thereof and so the Iudges of the law haue expounded it 9. H. 6. 27. for they haue allowed a Iuror which had not fortie shillings of fréehold to bée sworne in an Enquest if others had so much land to his vse And where the words of the statute be If he hath not lands or tenements of the yearely value of fortie shillings and doth not expresse in what Countie yet they doe take it by intendment that the lands must bée in the Countie where the issue is to bée tryed 9. H. 7. 1. M. 12. H. 7. 4 H. 32. H. 8. 20. P. 21. H. 6. 39. And for that the words be in the Present tense viz. if hée hath not they doe expound it that the Iuror must haue so much land in the same Countie at that time when he is sworne for though he had so much land when he was impanelled yet if he hath aliened it or that the same was euicted from him by an auncient title before the time hee was sworne the challenge of insufficiencie shall bée allowed vnto the prisoner And whereas the foresayd statute of 2. H. 5. hath ordayned That no person shall be admitted to passe in any Enquest vpon the tryal of the death of a man if hée hath not lands of the yearely value of fortie shillings this is not meant of the tryall of the death of a man which is slaine but of the tryall of the death of a man which standeth at the barre vpon the question of his life or death And then will this challenge serue for want of sufficient lands vpon the triall of all maner of felonies and treasons By the Statute of 33. H. 8. it is enacted That he which is arraigned of treason St. 33. H. 8. 12. murder or manslaughter committed within the Verge shall haue no maner of challenge to any of the Iury malice only excepted and so shall haue no challenge for want of sufficient fréehold And in like sort it is ordained by the Statute of Anno 3. H. 7. St. 3. H. 7. 14 That hee which being the Kings seruant sworne and whose name is in the checke Roll of the Kings houshold vnder the degrée of a Lord which is arraigned for conspiring with any other to destroy any Lord of this Realme or any other sworne to the Kings Councell Or the Steward Treasurer or Controller of the Kings house shall not haue any challenge but for mallice and so shall haue no challenge for want of sufficient fréehold By a Statute made Anno 33. H. 8. St. 33. H. 8. 13. it was enacted That if a Commission of Oyer and Determiner bée directed into any County for the tryall of any person which doth confesse any Murther to thrée of the Kings Councell or is vehemently susspected thereof no challenge for the Hundred or Shire shall bée allowed vnto him But the challenge of any Iuror for lacke of Fréehold of the yearely value of forty shillings shall bée allowed as hath béene accustomed And because Trials in Murthers and Felonies in Cities Boroughes and Townes corporat within this Realme hauing authoritie in the deliuerance of such offendors were oftentimes deferred and delayed by reason of challenge made by such offendors of Iurors for lacke of sufficiency of fréehold to the great hinderance of iustice for the redresse thereof by a statute made Anno 23. H. 8. St. 23. H. 8. 13. it was enacted That euery person being the kings naturall subiect borne which either by the name of a citizen or a fréeman or any other name doth enioy the liberties of any City Borough or Town◠corporat where he dwelleth being worth in mooueable goods to the cleare value of forty pounds shall bée admitted in tryall of Murthers and Felonies in euery Sessions and Gaoles of deliuery kept in and for the liberty of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this act extendeth not to any Knight or Esquire dwelling abiding or resorting to any such City Borough or Towne corporat any thing in the same act to the contrary hereof notwithstanding 5 Vpon the arraignement of a prisoner the king by his prerogatiue might haue challenged euery of the Iurors peremptorily by the common law without shewing of any cause thereof and by that challenge the same Iuror should haue béene presently drawne But this was a great mischiefe and offence to the subiect who by that meanes was infinitely delayed and had often put out of the Iury the most discréet and indifferent men which were returned for his tryall For the remedy whereof by a Statute intituled Ordinatio de inquisitionibus Challenge for the king made Anno 33. Edw. 1. St. 33. E. 1. it was established That touching Inquisitions to bée made before any Iustices wherein the king is any way a party although it bée alleadged by those which doe prosecute for the king that the Iurors of those Inquisitions or any of them bée not good for the king those Inquisitions shall not therefore remaine to bée taken But if they which doe pursue for the king will challenge any of those Iurors they shall shew a certaine cause of their challenge and the truth of that challenge whether it bée true or not shal be inquired of according to the Iustices discretion But he that doth prosecute the sute for the king néede not presently shew the cause vpon his challenge as a common person should do if he were party against the king for he may shew that cause when he hath perused the whole pannell But if he that is arraigned
thereunto not guilty the Iury may find that one of them committed the felony by the procuremēt of the other but that he which was the procurer was not present at the cōmitting of the felony 3 And as a Iury may giue a speciall verdict to attenuate an offence The verdict more penall then the Indictment and to make it lesse penall then is contained in the Indictment as in the cases aforesaid so may they by a speciall verdict aggrauate the offence more then the Indictment did As a man was indicted and arraigned for the stealing of linnen Cloth to the value of two shillings whereunto the prisoner pleaded not guilty Fi. Cor. 115 and the Iury found that he did rob the owner of the linnen cloth to the value of x. s. and further that he tooke it from the person of a man whereupon hée was adiudged to be hanged 4 When a man is indicted of the death of another man before the Coroner Where a Iury shall find who killed the dead man vpon the sight of the body slaine and after is acquite the Iury which acquited him must find one that killed him 14. H. 7. 2. 13. E. 4. 3. 22. As p. 39 7. Eli. Dyer 238. or els the meanes whereby he came to his death and if they find that I.N. killed him this shall serue for an indictment against I.N. for it is certaine that there is such a person dead séeing the Coroner did sée him and so recorded it and therfore the maner of this persons death must not cease to be tried vntill it be found But it is otherwise where the prisoner is indicted before other Iustices because notwithstanding such an indictment it may be there was no such person dead for the body was not séene by the Iustices before whom that indictment passed as in the other case it was by the Coroner and therefore their record in that case touching the death of a man cannot be of so great force as the coroners is vnles it be where the death of the man is notorious and generally knowne then if he which vpon an appeale or indictment of the death of that man is arraigned 21. E. 3. 17 pleadeth not guilty is by the Iury found not guilty the Iury shal be charged to inquire who killed him as a man was indicted and arraigned for the killing of another man who thereunto pleaded not guilty and the Iury found him not guilty and because the man was knowne to be killed in the presence of many the Iustices charged the Iury to inquire and find who killed him 37. Ass p. 13 and thē they found that the same man which was killed was in a Tauerne and drunken and fell vpon his owne knife by mischance and so was the cause of his owne death ⧠Clergie What Clergy is 1 CLergie is an auncient liberty of the holy Church and it is when a priest or one within holy orders or any other in whō there is no impossibility to be a priest is arraigned of Felony before a secular Iudge hee may pray to haue his Clergy which was as much before the statute of 18. Eli. St. 18. Eli. 6. as if he had prayed to be dismissed of the temporall Iudge and to be deliuered to the Ordinary to purge him of that offence and now sithence that statute it is as much as if he should pray after the burning in the hand to be enlarged and deliuered out of prison And it appeareth by the statute of Articuli Cleri made Anno 9. Ed. 2. St. 9. E. 2. 15 That a Clerke ought not to be iudged by a Temporall Iudge nor any thing may be done against him that concerneth his life or dismembring of him and though this priuiledge had his beginning from the Cannon Law and not from the common Law of this Realme yet it hath bin confirmed by diuers parliaments and the temporall Iudges haue so fauorably vsed it that they haue graunted it to all that can read although they be no priests nor within holy orders which is more then the Cannon Law requireth for the Cannon Law expecteth no more then that it shal be graunted to priests and such as be within holy orders Where no Clergy by the common Law 2 None of them in whom there is any impediment to be Priest can by the common Law haue the priuiledge of Clergy as he that is blind or maimed or one such as by no dispensation by the Lawes of the Church can be Priest can haue the priuiledge of Clergy Fi. Cor. 461 Neither can any woman haue the priuiledge of Clergy Committer of Sacriledge 3 He that hath committed Sacriledge Fi. Cor. 120 283. 257 26. As p. 1◠27. Ass p. 42 shall not haue the priuiledge of clergy by the common Law if the Ordinary do refuse him the secular Iudge do assent to his refusall and yet it is otherwise if the Ordinary will clayme him for a Clerke and receiue him But if one that hath committed Sacriledge be arraigned of another felony then of that Sacriledge for the which he doth pray his Clergy and doth read well and the Ordinary knowing that he hath committed Sacriledge or some other grieuous crime doth refuse him the said offendor shal be hanged 21. Ed. 4.21 though the Ordinary doth not shew to the Iudges the cause of his refusall S. Br. 24. Fi. Cor. 233. 26. Ass p. 19 4 If one that is a priest or within holy orders hauing not the habit or tonsure of a clerke Habite or tonsure of a clerk do demaund his clergy if the Ordinary do refuse him for it he shal be hanged 9. E. 4. 28. so shall he be if the court do refuse him for that cause though the Ordinary do not refuse him S. Br. 5. 5 He that had his clergy once Clergy allowed but once should haue had it againe by the cōmon law and so oft times but by the stat of 4. H. 7. St. 4. H. 7. 13 it was enacted That euery person not being within orders which once hath béen admitted to the benefit of his clergy being eftsoones arraigned of any such offence shall not be admitted to the priuiledge of his clergy And euery person so conuicted for murther shal be marked with an M. vpon the brawne of the left thumbe and if it be for any other felony he shal be marked with a T. in the same place of the thumbe and those markes to be made by the gaoler openly in the court before the Iudge before the person be deliuered And after by the stat of 28. H. 8. 32. H. 8. St. 28. H. 8. 1. St. 32. H. 8. 3 it was enacted That such as be within holy orders shall be and stand vnder the same paines dangers for their offences and be vsed and ordered to all intents as other persons not being within holy orders shal be 6 He that killeth a
the sayd auntient law for they would not deliuer the prisoner vnto the Ordinarie vntill hée was indicted and also arraigned and that it was enquired by an Enquest of Office whether hée were guiltie or not In which case if he were found not guiltie they would discharge him and if he were found guiltie his goods should bée forfeited his lands taken into the Kings hands and his bodie deliuered to the Ordinarie And the cause of chaunging this law was that the Ordinarie might take greater charge of the prisoner being now indicted than before and to benefit the King by the forfeiture of the prisoners goods and to bréed a greater feare in Clerkes after that they should not offend Which alteration was obserued for law vntill the raigne of King Henry the sixt at which time the Iudges would not admit a prisoner to demaund his Clergie vpon his arraignment but put himselfe first to answer to the Felonie and if hée were found guiltie of the Felonie at his owne suit then to heare him demaund his Clergie and not before 3. H. 7. 1. 12. which is a more reasonable law than the former for before hee should haue forfeited his goods vpon an Enquest of Office whereunto hée could haue no challenge and now he shal be tryed at his owne suit and shall haue his challenge to the Enquest and then if he be found guiltie hée shall forfeit his goods and for the sauing of his life and his lands hée is to pray his Clergie Which hath bin vsed euer sithence and is obserued for law at this time vnlesse the prisoner himselfe will refuse the benefit thereof and pray to haue his booke without hearing the verdict As if a prisoner after an Enquest is charged vpon him Clergy demanded before verdict and before their returne againe will say that he is a Clerke and desire his booke at his perill in this case the Court hath allowed him his Clergie and yet after hath receiued a verdict as well in fauour of life as in fauour of the King for if he be found not guiltie the prisoner shall be discharged and if he bée found guiltie the King shall haue his goods as forfeit And the request of his booke in that case is more for the prisoners disaduantage than the Kings for it may bée a meane that the Iurie vnderstanding thereof will the rather find him guiltie of the felonie than otherwise they would haue done 26. Ass p. 19 33 If a prisoner doe say that hée is no Clerke Denying to be a Clerke and yet is yet after if before iudgement hée doe pray his Clergie where Clergie is allowable by the law and then doth read as a Clerke hée shall haue his Clergie notwithstanding his former words But it hath béene a question Whether clergie is allowable without request whether the Iudges ought to allow any man his Clergie without praying of it though the offendor be indicted by the name of Priest Fi. Cor. 254 Clerke c. or that by some other meanes the Iudges themselues doe know that hée is a Clerke or that without praying of his Clergie they shall giue iudgement of death against him And in this case some doe affirme that if the prisoner doth not pray his Clergie hée shall not haue it though the Iudge doth vpon his owne priuat knowledge vnderstand that hée is a Clerke for the Iudge must in those cases procéed according to his iudiciall knowledge and as by record things bée found proued and tryed before him and not according to his owne naturall knowledge And they bée the rather so induced to thinke by the words of the aforesayd statute of 1. Edw. 6. St. 1. E. 6. 12 which ordayned That a Péere of the Realme shall vpon request haue the benefit of his Clergie and so inferre that without request he shall not haue it nor any other without request which is to haue it vpon request 34 The temporall Court shall be Iudge to allow or disallow of Clergy Who shall allow of clergy and not the Ordinary 15. H. 7. 9. for it was entred into the roll of the court legit vt Clericus ideo tradatur Ordinario by which words it doth appear that the court doth giue allowance therof for the felony being the act which is cōmitted is temporal and the Iudge which did commit him to the Ordinary is temporal so is the authority wherby he did commit him And the Ordinary should haue bin punished if before the stat of 18. Eli. St. 18. El. 6. he had letten to baile or at liberty any prisoner cōmitted to him or if he had imprisoned him too straitly or too easily or would not haue suffered him to haue made his purgation and in that case the king might haue sent his Writ vnto the Ordinarie commaunding him to suffer his prisoner to make his purgation or might haue pardoned him or set him at liberty Fitz. Cor. 44. 17 without making his purgation and if one read as a Clerke and yet the Ordinarie will refuse him notwithstanding hee shall haue the benefite of his Clergie and on the other side if the Ordinarie will say that hee doth read as a Clerke whereas in truth hee doth not read as a Clerke the Court must giue iudgement that hée shall bee hanged and cause execution to bee done of him And further to prooue that the Temporall Court is Iudge of the reading the Court doth appoint the verse or place to the prisoner to read and not the Ordinarie And also doth set a fine vpon the Ordinary 34. H. 6. 49. 21. Ed. 4. 21. 9. E. 4. 28. for saying that the prisoner doth read as a Clerk where he doth not which the court could not do if the reading were referred to the Ordinarie A felon doth read vnder the gallowes 35 If a felon doth not read as a Clerke before the Iudge at the time of his arraignment whereupon he is adiudged to be hanged yet in fauor of life 34. H. 6. 49. if hée arraignment whereupon he is adiudged to be hanged yet in fauor of life if hée do demand it at another time vnder the gallows if any of the Iudges do passe that way and doth read as a Clerke he shall haue the benefit of his Clergie although there be no Ordinary there to demaund him But this is in case where the felon is arraigned and iudged before the Iust of the K. Bench 3. 4. El. Dy. fo 205. or else in case where he is arraigned and iudged before the Iust of gaole deliucrie and it is entred by the Court non legit vt Clericus and then for some cause he is repried vntill the next Session and then againe he is demanded if he can read and then he can and doth read in this case he shall haue his Clergy in fauor of life And though he was taught to read in the gaole this shall saue his life but the
euidence against him they vsed to bring forth the prisoner and to arraigne him of the principall fact and if hée pleaded or saide that hée was not guiltie thereunto then an Enquest of Clerkes was charged And if by the saide Enquest of Clerkes he was found not guilty of the same offence then he was set at libertie and if hée were found guiltie he was disgraded There be two sorts of Clerkes whereof the one is a Clerke conuict and the other is a Clerke attainted A Clerke conuict A Clerke conuict is hée who praieth his Clergie before Iudgement be giuen against him of death and hath his Clergie allowed vnto him such a Clerke before the Statute of 18. Elizab. might haue made his purgation sauing in certaine especiall cases As a common thiefe could not make his purgation Fi. Cor. 247 notwithstanding that hée were but a Clerke conuict for it is better for the common wealth to haue such an incorrigible person continually to remaine in prison than to goe at libertie to doe more hurt Fi. Cor. 417 And likewise a Monke that was a Clerke conuict should haue béene deliuered to his Abbot to haue remained in the Abbey continually without making his purgation Fi. Cor. 109 147. And also in an appeale if the Defendant had béene conuict by verdict and had enioyed his Clergie as a Clerke conuict he should not haue made his purgation for if hée had made his purgation then the Plaintife in the appeale should haue recouered his goodes without cause for that by the purgation it doth appeare that hée was not guiltie of the felonie A Clerke attainted Clerke attainted is he who praieth his Clergie after Iudgement of felonie giuen of him Such a Clerke could not haue made his purgation for that when he was condemned of felony by iudgement hée could not contrarie to that Iudgement be purged thereof that iudgement remaining in force and therefore there was none other remedy for him but to purchase the Kings pardon or else hée must haue remained in prison during his life And whether this Iudgement of death did follow either vpon Confession before the Coroner Clergie after Confession vpon abiuration or before the Iustices vpon his arraignement or vpon triall by verdict of twelue men if this iudgement were once giuen hée should not after make his purgation And though after his confession of the felony and before Iudgement giuen against him thereupon he doth pray his Clergie he shall haue it and might haue made his purgation for that the confession being before a secular Iudge who is not his Iudge is voide And for that cause the statute of Articuli Cleri cap. 16. doth ground St. 9. E. 2. 16 That an approuer Approuer shall haue the benefit of his Clergie and yet he hath confessed his offence before a secular Iudge And it is not to be interpreted that the benefit of this Statute is to be extended onely to saue the approuers life and not to set him at libertie by making his purgation for then hée should haue but part of the benefit of Clergie and not the whole which is contrary to the saide Statute of Articuli Cleri If an approuer had waiued his appeale holden him to his Clergie he should haue made his purgation Fi. Cor. 128 because the Temporall court doth dismisse him as a man in whom it hath no iurisdiction which waiuer of the appeale did not waiue the confession that hée had made before 27. H. 6. 7 13. E. 4. 3 Fi. Cor. 56 247 And though an approuer in some Cases should not haue made his purgation yet that was in such cases onely where he did not pray his Clergie vntill Iudgement was giuen against him of felonie If one that shall abiure the Realme for felony had come againe into the Realme without the Kings licence whereupon he was taken and brought to the Barre and that it was demaunded of him whie hée should not be put to death and he had demaunded his Clergie and that was allowed yet he should not haue béene deliuered to the Ordinarie but sent to prison againe Fi. Cor. 155 vntill hée had obtained the Kings pardon For Clergie would haue serued him for the felonie but not to excuse the contempt which he made by comming againe into the Realme without the Kings licence But it had béene otherwise if he had prayed his Clergie at the time when he fled to the Church By the entrie into the Roule of the Court which made mention of the prisoners deliuerie to the Ordinarie In whom rested the making of purgation it appeareth that the making or not making of purgation did rest much in the Temporall Court and not in the Ordinarie for if he were not to make his purgation then the entrie was Quod talis commissus est Ordinaria absque purgatione facienda and if hée were to make his purgation then the wordes Absque purgatione facienda were omitted and in all cases where the Temporall court had determined that purgation did not lie as in the case of Clerke attaint or such like if the Ordinarie had admitted the prisoner to haue made purgation and thereby set him at libertie Escape for suffering purgation he should haue bin charged with an escape for the authority whereby he was committed to prison was temporall and he receiued him from the temporall court or otherwise the Ordinary could not haue retained him in prison And therefore the temporall court had somewhat to doe with setting him at libertie out of prison If one had béene conuicted of diuerse felonies and had béene admitted to his Clergie in that case hée ought to haue made purgation for them all But the force of the foresaide Lawes Fi. Cor. 232 touching committing of clerkes to the Ordinary and making of purgation is alterd by the before mentioned statute of Anno 18. Eliz. St. 18. El. 6 whereby it was enacted That euerie person and persons which shall be admitted and allowed to haue the benefit or priuiledge of his or their Clergie shall not thereupon be deliuered to the Ordinarie as hath béene accustomed but after such Clergie allowed and burning in the hand St. 4. H. 7. 13 according to the statute in that behalfe prouided shall forthwith be enlarged deliuered out of prison by the Iustices before whom such Clergie shall be graunted that cause notwithstanding Clergie allowed without deliuery to the Ordinarie Prouided neuerthelesse that the Iustices before whom any such allowance of Clergie shal be had shall and may for the further correction of such persons to whom Clergie shall be allowed detaine and kéepe them in prison for such conuenient time as the same Iustices in their discretions shall thinke conuenient so as the same doe not excéede one yeeres imprisonment Any lawe or vsage heretofore had to the contrary in any wise notwithstanding ⧠The Kings Pardon THe Kings Pardon is a barre to an Indictment
Coroners will answer He that hath a pardon shal find sureties for his good abearing that he from thenceforth shall beare himselfe well and lawfully And the maineprises shal be sealed and returned into the chancerie within thrée moneths after the end of the said thrée moneths And if hée which hath such Charter will ayd himselfe thereby and hath not found such mainprises or after such mainprise found doth beare himselfe otherwise against the peace than he ought his charter shal be accounted void of no force The good behauiour broken after a pardon 14 A prisoner that was indited outlawed of felonie 3. H. 7. 7. pleadeth the Kings pardon of the same felonie and outlawrie but shewed no writ of allowance testifying that he had found suretie in the Chauncerie according to the foresaid Statute of 10. Ed. 3. neither did he make mention in his plea that he had fouÌ„d suretie according to that Statute nor yet did he vouch the Record thereof in the Chauncerie therefore the Iustices had no cause to allow of his Charter of pardon And the same offendor after his pardon graunted was indited before the Iustices of peace of the countie where he dwelt that he did beat and wouÌ„d A.B. against the Kings peace and thereof was conuict before the same Iustices of peace by his owne confession which Record of his conuiction was sent into the Kings Bench by the said Iustices of peace and for that he had borne himselfe otherwise than he ought toward the peace his charter of pardon was adnulled he had iudgement of death and was hanged A pardon must agree with the inditement 15 A Charter of pardon ought to agrée with the Indictment in the name surname and addition of the partie to whom the same Charter is graunted to the intent that he may be knowne to be the same person which is indited or otherwise it is not allowable sauing in some speciall cases As 11. H. 4. 3â— in appeale of death where the plaintife was non-suit after declaration and the defendant was arraigned at the Kings suit vpon the declaration whereunto he pleaded the Kings pardon which did not agrée with the appeale in the name of him that was slaine Where a charter may vary from the indictment nor in the day but agréed with the inditement in the death of the selfe same man to the which inditement this pardon had before time bin pleaded and allowed And for that it may well be intended of the same death séeing one man cannot haue two deaths it was allowed notwithstanding the variance Two men were outlawed in appeale of murder 28. 29. H. 8. Dy. 34. and they purchased their pardon and had a Scire facias against the Plaintife in the appeale and also a Scire facias against the Lords mediate or immediate and the pardon did not agrée with the inditement in the additions but the parties tooke an auerment that they were the same parties which were indited and an exception was taken to the pardon for the words of the pardon were Pardonauimus c. W.B. L.B. omnes omnimodas vtlagarias versus praefatos W.B. L. B. seu versus eorum alterum promulgatas which words in the premisses of the pardon be ioynt where they should haue been Pardonauimus c. W.B. L.B. eorum alteri because that euery felonie is seuerall and for these seuerall felonies they should haue had seuerall pardons And yet the pardon was allowed If a man be indited of felonie by the name of A.B. yeoman and after the King doth pardon him by the name of A. B. gentleman esquire 20. H. 7. Kel fol. 58. knight or c. all manner of felonies he may plead this pardon and auerre that A. B. yeoman and A. B. gentleman or c. be one person and this pardon will discharge him for it may be he was a yeoman at the time of the inditement and after made gentleman by the King or by some office 4. E. 4. 10 16 When after non-suit in appeale the Kings pardon is allowed it is vsed to enter the pardon and alowance vpon the bill of appeale The pardon and alowance entred vpon the appeale and thâ—refore if there be any inditement of the same felonie against the defendant it shalbée good for him to cause these words to be entred and indorced vpoÌ„ the indictmeÌ„t viz. Cesset processus faciendus super indictamentum eo quod defendens acquietatus recessit ab Appello 4. Ed. 4. 10 17 All this matter of pardons is in effect to be referred to indictments because the Kings pardon is no plea to the parties appeale A pardon no plea to an appeale for the felon shalbée put to death notwithstanding that But it is a good plea against the King when the appeale is determined And if it be determined by act in law and not by the act of the partie the pardon shall not be allowed without warning of the partie as in appeal the plaintife doth pursue it vntill he hath outlawed the defendant in this case by the Outlawry the appeale is determined and yet if the king doe pardon the defendant the pardon shall not bée allowed vntill hée hath sued a Scire facias against the party at whose suit he was outlawed And if at the day of the Scire facias returned the partie doe appeare the Appellant may pray execution of him notwithstanding the pardon but if the Appellant be returned warned and doth make default the Charter shal be allowed without further suit Co. l. 50. 100 3. El. Dyer 201 261 The Kings pardon of burning in the hand In an appeale of murder the defendant pleaded not guiltie vpon his arraignment and by the enquest was found guiltie of manslaughter and then prayed and had his Clergie Whereupon by force of the Statute of anÌ„ 4. H. 7. 13. St. 4. H. 7. 13 he being a conuict person ought to bée marked by the Gaoler openly in the Court which marking or burning in the hand the king did and may pardon though it be in an appeale for burning in the hand is no part of the iudgement but onely a meane to notifie to the Iudge vpon an offendors second conuiction that he once before had his Clergie vpon a former conuiction And for that it was ordained by the Statute of anÌ„ 18. El. 6. St. 18. El. 6 That after Clergie allowed and burning in the hand the prisoner shall be forthwith enlarged and deliuered out of prison which act doth extend as well to the case of the Appeale as to the case of an Indictment Therefore the King hauing pardon the burning in the hand the partie was also discharged of his imprisonment 2. R. 3. 8 18 A Scire facias vpon a Charter of pardon may be graunted against an appellant Vpon a pardon a Scire facias against an appellant though the appellée which doth pray it sheweth
and then be cut downe aliue and his intrals and priuie members be cut from his bodie and be burned in his sight and his head to be cut off and his body to bée diuided into foure parts 6. El. Dyer 230. and then to be disposed at the Kings pleasure Sauing that the iudgement of a man which is attainted for clipping the Kings money contrarie to the Statute of an̄ 25. Ed. 3. 2. shal be onely that he shalbée drawne and hanged though it was high treason by the common law so is expounded confirmed by that Statute But if any man shal be attainted of treson for cōmitting any of the offences made high treason by either of the Stat. of an̄ 1. M. 6. 1. 2. P. M. 11. 5. El. 11. 18. El. 1. 5. El. 1. 13. El. 2. 23 El. 1. 27. El. 2. 3. Iac. 4. he shal be adiudged a traitour S. Treasons and shall haue iudgement and suffer as in cases of high treason viz. he shal be drawne hanged and quartered as is before mentioned And though there be no mention made thereof in the iudgement yet he that is attainted of treason or felonie by verdict confession outlawrie or abiuration shall also forfeit his lands and goods his wife shall loose her dower and his blood shal be corrupted sauing in certaine cases 3 The iudgement of a woman which shal be attainred of high Treason or petite treason The iudgement of a woman traitour is 1. R. 3. 4 That she shall be ledde backe againe to the place from whence shée came and from thence be drawne vpon a hurdle to the place of execution and there be burned to death 8. El. Dy. 254. But if one man doe murder an other and the wife of him that was murdered be accessorie to her husbandes death the murderer and the wife both shall be hanged and she shall not be burned because she was but accessory 4 The iudgement of a man attainted of petit treason Iudgement of a man in petit treason is That hée shall be ledde backe againe to the place from whence hee came and from thence drawne vpon an hurdle to the place of execution and there to be hanged by the necke vntill he be dead Iudgement in felonie 5 The iudgement of a man attainted of murder burglarie robberie or other felonie is That he shall be ledde backe againe to the place from whence he came and from thence carried to the place of execution and there be hanged by the necke vntill he be dead And the like iudgement is giuen against a woman being attainted of anie of the same offences 6 The iudgement in misprision Misprision of treason is That the offendor shall forfeit to the King his goodes and his lands during his life and shall be perpetually imprisoned during his life Attainder of treason by the common lawe 7 In the foresaide iudgement giuen in high treason by the order of the common Lawe there can be no errour assigned St. 33. H. 8. 20. but it is as strong as if it had béene doone by Act of Parliament For the Statute made Anno 33. H. 8. hath ordained That if any person or persons shall be attainted of high treason by the course of the common Lawes or Statutes of this Realme that in euery such case such attainder by the common Lawe shall be of as good strength value force and effect as if it had beene done by authoritie of Parliament Iudgement of pennance 8 The iudgement of him who being indited of felonie will stand mute of malice or not answer directly or will refuse lawfull triall P. 4. E. 4. 11. being called Pennaunce or paine for t dure is That the prisoner shall be sent to the place from whence he came c. S. Standing mute c. 9. Iudgements in felony by Iustices of Nisi prius 9 As touching those who shall giue iudgement against the offendors aforesaide it is ordained by the Statute of Anno 14. H. 6. St. 14. H. 6. 1 That the Iustices before whome Inquisitions Enquests and Iuries shall be taken by the Kings Writte called Nisi prius according to the forme of the Statute thereof made haue power of all the cases of felonie and of treason to giue their iudgements as well where a man is acquitte of felonie or of treason as where he is thereof attainted at the day and place where the saide Inquisitions Enquests and Iuries shall be taken and then from thenceforth to awarde Execution to be made by force of the saide Iudgements 10 Because it oft times falleth out that an offendor is found guiltie of treason or felonie before some Iustices of Gaole Deliuerie for the which Iudgement of death should or might ensue and yet that person is reposed to prison without iudgement at that time giuen against him and then before the next Gaole deliuerie the same Iustices of Gaole deliuerie doe die or be remooued and others be assigned Iustices of Gaole deliuerie in their places by the Kings Commission which as many did conceiue it could not giue iudgement of that prisoner so repried by the former Iustices by warrant of the foresaide Statute of 14. H. 6. 1. or for some other cause For the remedy whereof by a Statute made Anno 1. Edw. 6. St. 1. E. 6. 7. it is enacted Iudgement by new Iustices That in all Cases where any person shall be found guiltie of any Treason Murder Manslaughter Rape or other felonie whatsoeuer for the which iudgement of death should or may ensue and shall be repried to prison without iudgement at that time giuen against him Those persons that at any time shall by the Kings Letters patents be assigned Iustices to deliuer the Gaole where anie such person found guiltie shall remaine shall haue full power to giue Iudgement of death against such person so found guiltie and repried as the same Iustices before whome such person was found guiltie might haue done if their Commission of Gaole Deliuerie had remained in full force 11 The Iudgement in petit Larceny Iudgement in petit larcenie is that the offendor shall be ledde backe againe to the Gaole Stockes or place from whence hee came and there to remaine a wéeke a moneth or c. and then in such a Citie Borough Market towne Village where the fact was done or other place assigned by the Iustices to be tied to a carte stripped from the girdle vpward and whipped vntill his bodie doe bléede once twice or thrice c. according to the Iustices discretion 12 If a woman be indicted and arraigned of felonie Stay of a womans execution being with childe it is no plea for her to say that shée is with childe but she must pleade to the felonie Not guiltie and if she be found guiltie then shee may alleadge that shée is with childe and then the Marshall or Sherife shall be commanded to returne an
man be slaine within the K. house verge That all Inquisitions vpon the view of persons slaine within any of the Kings Palaces or houses or any other house at such time as he shall bee abiding in his royall person viz. within Edifices Courts places gardens orchards or houses within the Porters ward of any of the house or houses aboue rehearsed or within any gardens priuie walkes orchards tylt-yards wood-yards tenice playes cocke fights bowling allyes neere adioyning to any of the houses aboue rehearsed and being part of the same or within two hundred foot of the standard of any outward gate or gates of any of the houses aboue rehearsed commonly vsed for passage out or from any of the house or houses aboue specified shal be taken by the Coroner of the houshold of the King or his heires without adioyning of any other Coroner of any Shire by the othes of twelue or more of the Yeomen officers of the Kings c. houshold returned by the two Clerkes Comptrollers the Clerkes of the Checke Clerks Marshall or one of them for the time being of the foresayd houshold to whom the sayd Coroner shall direct his Precept which Coroner c. shall be assigned by the L. Steward for the time being And the said Coroner shall from time to time for euer without delay certifie vnder his Scale and the Seals of such persons as shal be so sworne before him all such Inquisitions Indictments and Offices vpon the view of all dead bodies which shall bee slaine within any of the K. Palaces or houses or other house aforesaid before the sayd L. Steward and in his absence before the Treasurer Comptroller and Steward of the Marshalsey or before two of them whereof the said Steward of the Marshalsey to be one And such Inquisitions and Offices so certified shal be taken as good to all intents as any Inquisition taken vpon the view of the bodie of any person being dead by any Coroner of any countie of this Realme hath béene or shal be adiudged St. 28. E. 1. 3 18 Whereas the foresaid stat of 28. E. 1. hath ordained One man Coroner of the K. house and of the county That if the death of a man doth chance in any county where the K. house is and within the Verge the Coroner of the same countie shal be commanded with the Coroner of the K. house to execute his office and to inroll it But if a murder or manslaughter be found within the countie of M. within the Verge by an Inquisition taken before one which is then both one of the Coroners of the county of M. and also Coroner of the K. house Co. li. 4. 46. and then there one is indicted of the same murder or manslaughter this is a good indictment for the intent and meaning of the said stat of 28. Ed. 1. is performed though not by two persons yet by one man hauing two offices and also the mischiefe recited in the said Act is auoyded for though the Court doth remoue yet the Coroner of the county may procéed ⧠Who shall be Iudge of Treason and Felonie 1HAuing written at large of Treasons and Felonies and shewed what sorts and how many of either of them there be and which of those were deliuered vs by the common law and which ordained by statute And declared who be principals and who be accessories in the said crimes how the offendors therein vpon a pricke and guilt of conscience doe ofttimes breake prison and indeuor to escape and how by Huy and cry and other means they be apprehended and brought to be tryed by the iustice of the law how they be accused by Appeals or Indictments in what sort they shal be restained and kept sub custodia legis in prison or by mainprise or bail vntil they haue answered their said offences And also hauing expressed what pleas the partie accused hath to plead for himselfe or other helps to defend himselfe by whom and what means those pleas shal be examined and what fauours bee affoorded him in the tryall therof and what iudgement execution forfeitures the law doth inflict vpon those that in contempt of her do commit the said capitall and most grieuous offence And further hauing dilated how a true man being vpon malice and falsly charged with felony by an Appeale or Indictment shall in some satisfaction of his discredit and losses recouer damages against the appellant his abettors or the conspirators And hauing laid open the authority duty of the Coroner who is a most antient officer of trust in this Realm a speciall preseruer of the peace of the King and the kingdome I am now lastly to write who shall bee Iudge in the foresaid Treasons and Felonies and shal inflict punishment vpon euerie transgressor of the said lawes according to his desert Wherein is to be considered that the dead letter of the common or statute law cannot be that Iudge to inquire of felons examine them commit them to prison indict them arraigne them allow them their lawfull triall examine their causes and yéeld them iustice according to their seueral demerits by acquital or condemnation but it must be Lex loquēs viz. That Iudge must be a man of learning and vprightnesse which by his mouth will speake and attribute to euery person that which the wisdome and integritie of his heart doth conceiue to be iust lawfull and due vnto them And though that Iudge ought so to be countenanced and protected by the regall authoritie that he shall not néed to feare the face of any man for doing of iustice and shall be enabled to crush and suppresse all offences within his iurisdiction yet the king himselfe cannot be that Iudge The K. cannot be Iudge in Treason or Felonie nor sit in iudgement in causes of treason or felonie because he is one of the parties to the iudgement for al treasons felonies be done be supposed to be done contrary to the peace crowne dignitie of the K. And further the escheates and other forf of lands leafes goods and cattels which do come by the attainder of any person of treason or felonie do for the most part by the law accrue to the king And so if the King might be Iudge hee should bee Iudge in his owne cause which Ius gentium doth not permit But the King by his Commission may commit that authoritie to others who may iudge betwéene him and the supposed offendor What sort of men ought to be Iudges And the King ought to make choyce of such a man to be Iudge as is wise and doth feare God who hath truth in his mouth and no couetousnesse in his heart who will neither decline from the troden path of iustice to the right hand nor to the left for the hope of prosperity or feare of aduersitie nor will draw the Kings sword to reuenge his owne wrongs who will denie iustice to none neither himselfe will expect or
or any of them in their Turnes or Lawdayes And as of other felonies 3. H. 7. 5. 5. E. 6. D. 69 9. H. 4. 1. so I. of peace may inquire of murder Murder because wilfull murder is felony But Iust of peace cannot inquire of treason Treason for neither the before mentioned stat of 18. E. 3. nor the words of their commission do authorise them so to do The Lord of a Mannor Iudge in felonie 13 There be some that haue libertie of Soc and Sac Tol and Them Bracton de Corona cap. 35. 2. R. 3. 10. Infangthéefe and Outfangthéefe these in their own courts may giue iudgement of him who is found within their liberty possessed of any manifest theft as if he be hand hauing and back bearing and that Sathaber viz. he whose the goods be do pursue him Kel fol. 150 for vnlesse he be in possession of the goods though another doth pursue him as a théefe yet that Court Hundred or Wapentake cannot hold plea of such a theft nor make inquirie by the Countrey whether such a man which was not possessed of the goods bee culpable or not Neither shall any wage battell without possession It is called Infangtheefe Infangthéefe where a Theefe is taken possessed of goods stolne within any such Manor or Libertie who is commorant and dwelling within the same libertie and one of the said Lords owne people Outfangthéefe Outfangthéef is a théefe that is a stranger comming from some other place into the Mannor of the Lord who hath such a libertie and is there taken with the manoure And yet he that hath such a libertie cannot fetch one of his owne people who hath committed larcenie out of his libertie and bring him into his libertie and iudge him there according to his libertie for euery person must receiue the punishment of the law where he hath offended the law But he may giue iudgement as well against his own people as against strangers committing larcenie that be taken within his libertie 46. Ed. 3. 15 14. H. 4. 15 And in this libertie of Infangthéefe and Outfangthéefe and in waife and stray and wreck of the sea a man may prescribe but so he cannot do in goods of felons and fugitiues for they do belong to the Crowne and cannot passe without the Kings graunt Fitz. Prescription 65 14 The custome of some countrey is such A felon first executed and then iudged that if one hath committed burglarie or other felonie and he be pursued by huy and cry from towne to town and so taken flying he must be beheaded in the presence of the inhabitants of foure townes and so by the vsage of that countrey he is accounted a felon And this must be recorded in the Coroners roll and after the Coroner must present it before the Iustices and they will adiudge him a felon And so he must be first put to death and after iudged a felon FINIS ⧠The generall Titles of this Booke 1MEnace Assault Batterie Jmprisonment Maiheming 2 Riots Routs vnlawfull and rebellious Assemblies 3 Force and Forcible Entries and Forcible detaining of possessions 4 Forgerie 5 Periurie and Subornation of Witnesse 6 Maintenance Champertie Embracerie 7 Deceit Couin Collusion Fraud 8 Extortion Exaction 9 Oppression 10 Treasons 11 Homicides 12 Felonies by the common Law 13 Felonies by Statute 14 Principall and Accessorie 15 Breaking of Prison and Rescous 16 Escapes of Felons 17 Pursute by Huy and Cry 18 Appeales of Felony 19 Jndictments 20 Mainprise and Bayle 21 Confession of the offence 22 Approuer 23 Sanctuarie and Abiuration 24 Pleading not guilty 25 Triall of the plea of not guilty by Battell 26 Triall by Peeres 27 Triall by the Countrey 28 Challenges 29 Euidence 30 The Verdict 31 Clergie 32 The Kings Pardon 33 Standing mute or answering indirectly 34 Judgement and Execution 35 Forfeitures for Treason or Felony 36 Corruption of Blood 37 Restitution of stolne goods 38 Dammages in an Appeale 39 A Writ of Conspiracie 40 The Coroner and his authority and dutie in Felonies 41 Who shall be Judge in Treason and Felonie ⧠A briefe effect of euery Braunch or Chapter in this Treatise Menace Assault Batterie Imprisonment Maiheming Fol. 1. 1 THe euill fruits of menaces Menacers shal be imprisoned The enormitie of libelling and defaming 2 The differences of Menacing Assault and Batterie 3 The declaration in trespas of menacing A rebuke accounted a Menace or Assault 4 Menacing a seruant wherby he departeth out of seruice 5 Menacing a tenant whereby he departeth from his tenancie Menacing of a Lords Freeholder 6 Menacing which is iustifiable 7 Menacing by going or riding armed 8 Wearing of a priuie coat a Menace 9 Labourers shall weare no weapons to preuent Menaces 10 Assurances made by Menace 11 What is an assault What is a batterie 12 Iustifying of beating in his owne defence Barre in trespas of Assault and Batterie 13 Iustifying of beating in defence of others The mastâ—rs remedy for beating of his seruant 14 Batterie in defence of his goods Battery in defence of his land lease or way 15 Batterie in resisting of a Iustice of Peace 16 A Schoolemaster beateth his Sholler 17 A Master beateth his Prentice 18 Beating of a man that is franticke 19 Beating of one that will not yeeld to arrest 20 Beating of a seruant departing out of seruice Beating of a Ward 21 Commaundement of Batterie 22 Battery or hurting at some exercise or disport 23 Battery by whipping of a vagabond Punishments by the order of Law 24 Battery for disobeying of a writ or warrant 25 Arresting one in a Church that is doing diuine seruice 26 Disturbing of a Preacher in his Sermon 27 Chiding in a Church or Churchyard Smiting in a church or churchyard Drawing or smiting with a weapon in a Church or c. 28 Drawing of blood within the kings palace 29 Assaulting one which commeth to the Parliament Assaulting the seruant of a Parliament man The liberty of the Clergie at a Conuocation house touching assaults 30 Assaulting a Iudge or Iuror Striking in time or place of iustice 31 Arresting by watchmen 32 Trespas for a battery before Outlawrie 33 A man first indicted for batterie and after sued for the same 34 What imprisonment is Voluntary consent no cause of imprisonment 35 Imprisonment by the commandement of the king or his Iustices c. 36 Imprisonment for notorious and grieuous offences 37 Imprisonment for offences done vi armis 38 Imprisonment for Riots 39 Imprisonment for holding land with force 40 Imprisonment of one that is pursued by huy and cry 41 Imprisonment of him that doth breake the peace Arresting of suspected persons 42 Imprisoning of him that doth attempt to rob 43 Assisting him to arrest that hath a warrant 44 Breaking of a house to arrest in what case lawfull 45 The shirife doth arrest and doth not returne his writ 46 Arresting vpon suspition of felony Causes of suspition of felony
hath possession sueth a Writ of Forcible Entry 21 Forcible entry of a Rent or Common 22 Forcible entry to the vse of another Forcible detaining by words onely 23 Iointenants or Tenants in common expelling each other by force 24 Who may bring a Writ of Entry vpon the Statute of 5. Richard 2. 25 Turning a water-course by force 26 The plea of not guiltie in Forcible entry The finding of the speciall matter doth charge or discharge the defendant of force Presentment of Forcible entry 27 One action for entring and detaining with force 28 A writ vpon the Statute of North-hampton 29 What shal be said to be force Force by number of seruants Force by number of weapons 30 Who may make a Forcible entry 31 What force is lawfull to the persons of men 32 Where the house of a man may be broken by force where not 33 A particular person may defend himselfe and his by force 34 The Writ of Vi laica remouenda 35 Where force shal be remoued for the K. Incumbent where not Forgerie Fol. 43. 1 Forgerie Periurie and Maintenance doe tend to the breach of the Peace 2 The enormitie of Forgerie A repeale of former Statutes of Forgerie 3 Forging of deeds whereby anothers landes shall bee troubled 4 Forging a deed whereby a lease or annuity may be claimed 5 Seuerall remedies against a forger 6 A forger not twice punished for one offence 7 The plaintifes release of forgerie shall only discharge his own remedy 8 The punishment for the second offence of forgery 9 The Iustices of Assise shall heare and determine forgery 10 Forging of deedes before the statute of 5. El. Pleading of a forged deed made before the said statute 11 Persons not chargeable of forgerie by the said stat of 5. El. 12 Forging of a customarie booke 13 The proces to leuie costes and damages of a forger 14 The kings pardon of forgerie 15 Forging of a Testament 16 Inserting more in a wil then is directed 17 Pleas in barre of forgerie 18 Where one shall haue an action of Forgery though he hath but a right to the land 19 Where no title to land lease c. no action of forgery 20 Forging of a deed touching iointenants lands 21 One sealeth a deed by anothers commaundement 22 One forgeth a deed and another doth publish it 23 Forgery by antedating of a deed 24 Getting of other mens goods by forged letters or tokens 25 Suspected persons of that kind of forgerie called before the Iustices 26 Forging of a Testimoniall Periurie Subornation Fol. 48. 1 Truth is to be tried by the oathes of men The credit of an oath 2 What sorts of persons are to be deposed and what not 3 All the parties to the execution of iustice sworne Causes of suspition in Sherifes in impanelling of Iurors 4 Euery Iuror ought to be an honest and lawfull man Challenges of Iurors suspected 5 A witnesse cannot be a Iuror 6 Periury suspected by deliuery of his verdict before hand 7 Periury suspected by lying at the charge of one of the parties 8 Periury suspected by beeing an arbitrator in the cause in question 9 Periury suspected by combination 10 Periury suspected if one of the parties and a Iuror bee in suit of law 11 Periury suspected for that the Iuror passed against him before 12 Periurie suspected in respect of subiection or gouernement 13 Periurie suspected in respect of alliance kinred or profit One godfather to the others child 14 Periury suspected in respect of ignorance of the cause Want of Hundredors Want of the View 15 Periurie suspected in respect of the pouertie of the Iurors 16 The iudgement in an Attaint at the common law against a Iury proued periured 17 The iudgement in an Attaint in London An Attaint where the thing in question amounteth to 40. poūds and where not 18 The meaning to commit Periurie punished Decies tantum Embraceors 19 The punishment of Periurie committed by an Enquest in Wales 20 Periury committed by witnesses A witnesse vpon proces serued shall appeare 21 The penalty for procuring of vnlawfull Periury 22 The penalty for committing of wilfull Periury 23 In what Courts Periurie shal be punished 24 Proclamation of the statute of Periury 25 Periury punished in the spirituall Court 26 Periurie punished in the Starre-chamber 27 Periurie punished in Bankrupts Periury committed by witnesses for Bankrupts 28 Periury committed vpon an indictment of Riot Periury vpon an indictment of Felony 29 Periury in prouing a Suggestion for a prohibition 30 A suit vpon Periury in the Chauncerie 31 Where Periury shall be punished in the temporall court and where in the spirituall Maintenance Champertie Embracerie and buying of Titles Fol. 56. 1 What Maintenance is and the enormitie thereof 2 Maintenance by men of authority 3 Maintenance by combination Maintenance by Noblemens officers 4 Maintenance by champerty Who be champertors Pleaders may giue counsell for their fees The punishmēt of champertors 5 What is Champerty and what not 6 Maintenance by Embracery Maintenance by Iurors The penalty of maintenance in Iurors and Embraceors 7 Maintenance punished by the writ of Decies tantum 8 Maintenance by Ambidexter 9 Maintenance of suits in law and the penalties thereof 10 Maintenance by buying of pretenced Titles 11 What is selling of a pretenced Title What is a pretenced Title 12 Maintenance by giuing of liueries and retaining of seruants or officers 13 The publishing inquiring of and punishment of Maintenance 14 Why the pursuing of maintenance is left out of the statute of 18. Eliz. 15 Assurances to haue maintenance void Lands gotten by force assured to haue maintenance 16 What maintenance is punishable and what iustifiable 17 It is no maintenance in a Iuror for giuing of his verdict Maintenance in a Iuror by suing for iudgement 18 What is Maintenance in a Iuror and what not 19 Maintenance by speaking of words Maintenance by comming to the barre with one of the parties 20 Maintenance by giuing of money to labour a Iury. 21 What is maintenance in witnesses and what not 22 Maintenance by procuring of an Indictment 23 What is maintenance in a Mainpernor 24 Maintenance in respect of his interest in the land Maintenance in respect of his possibility to haue the land Maintenance in respect of his warranty 25 Maintenance in respect of his rent A Lord may maintaine his tenant 26 Maintenance in respect of his debt 27 Maintenance in respect of his title to goods Maintenance by detaining of a writing deliuered in trust 28 Maintenance in respect of his ioint estate with others Maintenance by all the inhabitants of a parish 29 Maintenance of the poore in their suits Clerkes Counsellours and Atturneyes assigned to aid the poore 30 Maintenance in respect of kinred or alliance Vnlawfull maintenance is continuall during that suit Maintenance in respect of Gossiprie 31 Maintenance in respect the party could not speake English 32 Maintenance in a professor of the Law 33 Maintenance by an Atturney 34
take reward of any who will fréely licence all persons to prosecute their right giue full eare to the widowes complaint further the cause of the orphan and fatherlesse and suffer none that hée can helpe to receiue wrong who will not feare the countenance of the mightie nor disdaine the basenesse of the poore whom neither hatred fauor or priuat affection will moue but without respect of persons will yéeld to each wight that which his cause requireth who will remember and neuer forget that God hath endowed him with knowledge and vnderstanding Ecclesiast 17 that he hath made a couenant with him to shew him what true iustice and iudgement is that all his actions bée continually in Gods sight and that euerie moment from heauen the King of Kings doth behold them And finally who duely respecting both the commissions which he hath receiued from God and his prince will so indifferently temper iustice with mercie towards the poore prisoner standing trembling before him at the barre as he will hope for mercie when himselfe shall make his last and great account before the God of iustice and mercie 2 Whereas diuers antient Prerogatiues and Authorities of iustice appertaining to the Crown of this Realm were seuered and taken from the same by sundrie gifts of the Kings Progenitors Kings of this Realme to the great diminution of the royall estate of the same and to the hindrance and delay of iustice St. 27. H. 8. 25. for the reformation whereof by a Statute made Anno 27. H. 8. it was enected That no person or persons of what estate condition None shall make Iustices but the King or degree soeuer they bée shall haue any power or authoritie to make any Iustices of Eyre Iustices of Assise Iustices of Peace or Iustices of Gaole deliuerie but that all such Officers and Ministers shall bée made by Letters Patents vnder the Kings great Seale in the name and by authoritie of the King and his heires Kings of this Realme in all Shires Counties Counties Palantine and other places of this Realme Wales and the Marches of the same or in any other his Dominions at their pleasure and wills in such maner and forme as Iustices in Eyre c. bée commonly made in euerie Shire of this Realme Any graunts vsages Acts of Parliament or other thing notwithstanding The Iudge vpon the arraignment of a Péerâ—e of the Realme 3 When a Péere of the Realme and Lord of the Parliament 1. H. 4. 1â— 13. H. 8. 13. 10. Ed. 4. 6. is to be arraigned vpon any Treason or Felonie whereof he is indicted and whereunto he hath pleaded not guiltie the King by his letters patents shall assigne some noble and sage Lord of the Parliament to bee high Steward of England for the day of his arraignement who before the same day shall make a Precept to his Serieant at Armes that is appointed to serue him during the time of his Commission to warne to appeare before him xviij or xx Lords of the Parliament vpon the same day c. S. Triall 2. 4 Where Treasons Misprisions of Treasons Murders Manslaughters and other malicious strikings by reason whereof blood hath béen shed against the K. peace were often committed within the limits of the Kings palace or house or other houses where his Maiestie was abiding in his royall person which offences when they be done be best knowne by his Highnesse Officers of his houshold and by his seruants of his Checke roll And if his Maiesty shall happen to remoue from such his palace or house or other house where such offences were done before the tryall and determination thereof then such offences might not lawfully be tryed heard and determined by and before the sayd Officers but bée remitted to bée tryed and determined by the order of the Common law by reason whereof the punishment of the sayd offendors in such cases hath beene long time delayed and sometime their offences forgotten and not remembred and so they escaped vnpunished For the redresse whereof by a Statute made Anno 33. H. 8. it was enacted St. 33. H. 8. 12. That all Treasons Misprisions of Treasons Murders Manslaughters Bloudsheds and other malitious strikings by reason whereof bloud shall be shed against the Kings peace which shall bée done within any the Palaces or houses of the King or his heires or within any other house or houses at such time as his Maiestie shall bée then abiding in his royall person shall bee inquired of tryed heard and determined within any of the Kings houses or other house where his Maiestie shall bée abiding Iudge of treasons and felonies committed in the K. house before the Lord Steward of the Kings houshold and in his absence before the Treasorer and Comptroller of the K. houshold and Steward of the Marshalsey for the time beeing or two of them whereof the Steward of the Marshalsey to bee one by vertue of their offices without any Commission or other authoritie to them giuen And whether the King shall bée remooued from the house where such offences shall bée done or not before they be inquired of heard and determined yet such offences shall be inquired of tryed heard and determined before the Kings Officers of his houshold before named or two of them by the Inquisition and verdict of his houshold seruants in his Checke roll at such Palace or house where his Maiestie shall bée at any time abiding in manner and forme as is hereafter expressed The two Clerkes Comptrollers Clerkes of the Checke and Clerkes Marshals for the time being of the K. houshold or one of them vpon a Precept to them or any of them made by the Lord Steward or in his absence by the said Treasorer and Comptroller of the Kings houshold and the said Steward of the Marshalsey or by two of them whereof the sayd Steward of the Marshalsey to be one shall haue power to summon warne and returne the names of twentie foure persons being yeomen officers of the Kings sayd houshold in the sayd Checke roll to inquire of such Treasons Misprisions of Treasons Murders Manslaughters and other malitious strikings by reason whereof bloud shall bée shed against the Kings peace before the sayd Lord Steward and in his absence before the sayd Treasorer Comptroller and Steward of the Marshalsey or before two of them at the least whereof the Steward to bée one And it shall bee lawfull to the sayde Lord Steward and in his absence to the sayd Treasorer Comptroller and Steward of the Marshalsey aforesayd or two of them whereof the sayd Steward to bée one before whom such Returnes shall bée so made as is aforesayd to cause such number of the sayd foure and twentie persons so returned aboue the number of twelue persons as to him or them shall séeme expedient to inquire of such Treasons Misprisions of Treasons Murders Manslaughters or other malitious strikings by reason whereof bloud shal bée shed against the Kings peace