suorum circa premissa seu eorum aliqua indebite se habuerunt aut imposterum indebite se habere presumpserint aut tepidi remissi vel negligentes fuerunt aut imposterum fore contigerint in Comitatu predicto et de omnibus et singulis articulis circumstantijs et alijs rebus quibuscunque per quoscunque et qualitercunque in Comitatu predicto factis sive perpetratis vel quae imposterum ibidem fieri vel attemptari contigerint qualitercunque premissorum vel eorum alicujus concernentibus plenius veritatem Et ad indictamenta quacunque sic coram vobis seu aliquibus vestrum capta sive capienda aut coram alijs nuper Iusticiarijs pacis in Comitatu praedicto facta sive capta et nondum terminata inspiciendum Ac ad processus inde versus omnes et singulos sic indictatos vel quos coram vobis imposterum indictari contigerint preterquam de proditionibus quousque capiantur reddant se vel utlagentur faciendum et continuandum Et ad omnia et singula felonias veneficia incantationes sortilegia artes magicas transgressiones forstallarias ingrossarias regratarias extortiones Conventicula indictamenta predicta ceteraque omnia et singula premissa preterquam proditiones secundum leges et statuta regni nostri Hiberniae prout in hujusmodi casu fieri consuevit aut debuit audiendum et terminandum et ad eosdem delinquentes et quemlibet eorum pro delictis suis per fines redemptiones amerciamenta forisfacturas ac alio modo prout secundum legem et consuetudinem regni nostri Hiberniae ac formam ordinationum vel statutorum praedictorum fieri consuevit aut debuit castigandum et puniendum ac gaclam nostram ibidem de prisonarijs in eadem pro felonia detent et incarcerat debito modo deliberand Proviso semper quod si casus difficultatis vel magni momenti super determinationem aliquorum premissorum coram vobis vel aliquibus duobus vel luribus vestrum evenire contigerit tunc ad judiciuminde reddendum nisi in praesentia unius Iusticiariorum nostrorum de uno vel altero Banco aut unius Baronum de Scacario nostro aut unius de Concilio nostro in lege erudito coram vobis vel aliquibus duobus vel pluribus vestrum minime procedatur Et ideo vobis et cuilibet vestrum mandamus quod circa custodiam pacis ordinationum statutorum et omnium et singulorum ceterorum premissorum diligenter intendatis et ad certos dies et loca quae vos vel aliqui hujusmodi duo vel plures vestrum ut predictum est ad hoc provideritis super premissis faciatis inquisitiones et promissa omnia et singula audiatis et terminetis ac ea faciatis et expleatis in forma predicta factur inde quod ad justitiam pertinet secundum legem et consuetudinem Regni nostri Hibernia Salvis nobis amerciamentis et alijs ad nos inde spectantibus Mandamus enim tenore presentium vicecomiti nostro Comitatus Dublin quod ad certos dies et loca qua vos vel aliqui hujusmodi duo vel plures vestrum ut predictum est ei ut predictum est scire feceritis venire faciat coram vobis vel hujusmodi duobus vel pluribus vestrum ut dictum est tot et tales probos et legales homines de Balliva sua tam infra libertates quam extra per quos rei veritas in premissis melius sciri poterit et inquiri Assignavimus denique te prefat A. Custodem rotulorum pacis nostrae in dicto Cemitatu nostro ac propterea tu ad dies et loca predicta brevia precepta processus et indictamenta predicta coram te et dictis socijs tuis aut aliquibus duobus vel pluribus eorum ut predictum est venire facias ut ea inspiciantur et debito fine terminentur sicut predictum est In cujus rei testimonium c. These two Commissions do somewhat differ in the second Assignavimus for by that for the County of Dublin the Iustices of peace have power to heare and determine felonyes but in the other they have no power given them thereby to heare and determine of any felonie and the reason of this difference is twofold First because no Iustices of Assise and gaole delivery go into the County of Dublin Secondly because at the quarter Sessions of the peace there is alwayes one or more of the Iudges or of the Kings counsell present Also both these Commissions do differ from the usuall Commission of the peace in England in this particular videlicet By these Commissions the Iustices of peace have power to enquire of Treason which the Iustices of peace in England by their Commission have not The reason is because many offences which are common here are by the Lawes of this kingdome Treason which by the Lawes in England are but felonie 33. These Commissions have two parts containing the power of the Iustices of peace Stat. Winch. 13. E. 1. 2. E. 3. 6. 2. E. 3. 3. 34. The first Assignavimus or first part of the Commission doth give power to any one Iustice of peace more or all to keepe and cause to be kept the peace and all ordinances and statutes made for the conservation of the peace and for the quiet governement of the people As namely the statutes made for Huy and Cry after felons And the statutes made against Murtherers Robbers Felons Night-walkers Affrayers Armour worne in terrorem Riots forceible Entries and all other force and violence All which be directly against the peace The particulars thereof you shall finde more fully hereafter and most of them under their proper titles 35. By this first clause in the Commission the Iustices of peace have aswell all the ancyent power touching the peace which the Conservators of the peace had by the Common law as also that whole authoritie which the statutes have since added thereto 36. The meanes which the Iustices of peace must use for the keeping of the peace and for the execution of these statutes is as followeth 37. For to prevent the breach of the peace the Iu. of P. may send his warrant for the party and may take sufficient sureties of him by recognizance for the peace or for the good behaviour as the case shall require and may send the partie to the Gaole for not finding such sureties 38. But for these statutes made for the peace they are to be executed according to such prescript order as themselves do deliver wherein if no power at all be expressely given to any one Iustice of peace alone then can he not otherwise compell the observation thereof as it seemeth then by admonition onely In which behalfe if he shall not be obeyed he may preferre the cause at the Sessions and to worke it to a presentment upon the statute and so by the help of his fellow Iustices to heare and
cases therefore where the statutes do referre the Triall of offendors or hearing and determining of offences to the discretion of the Iustice or Iustices of peace out of Sessions it is very requisite that upon such tryall or hearing the said Iustices take due examination of the offendors themselves or of credible witnesses aswell concerning the fact it selfe as the circumstances thereof and upon confession or other due proofe of the offence Then to proceede according to Law and Iustice 10. Note that in all cases where the statute referreth the trial c. to the discretion of the Iustices the said statutes themselves do also enable the said Iust of P. to take the examination of witnesses upon oath 11. Note further that the Iustices of peace out of their Sessions are now armed with farre more ample authority and power than the ancient Conservators of the peace were For the Iustices of peace have double power given them The one of Iurisdiction to convent the offendors before them by their warrant in diverse cases to examine heare and determine the cause The other of coertion sc that after the cause hard to constraine them to the obedience and observance of their order and decree which notwithstanding must be according to the rules of Law and Iustice as aforesaid Whereas the ancient conservatours of the peace had no Iurisdiction or authoriâ—ie at all either to convent the offendor before them or to examine heare or determine the cause but had onely coertion prehension or punishment of an offendour in some few cases Plo. 37. And here I must further put the Iustices of peace in minde that their authoritie and power is limited to be by them exercised only within the County or Countyes where they be in Commission And yet in that or those County or Countyes the Iustices of peace of the County must not intermedle in any City there which is a County of it selfe Nor in any City or corporate Towne there though it be no County of it selfe but within the County which have their proper Iustices of peace within themselves by the Kings Charter or Commission Cromp. 8. 181. especially if in such Charter there be any speciall words of prohibition that the Iustices of the shire Non se intromittant c. except such Country Iustices shall also be in Commission in such City or Towne corporate 12. But in other corporate Townes which have not their proper Iustices of peace Cromp. ib. As also in all liberties and Franchises within the County which have the returne of writs but have not their proper Iustices there the Iustices of peace of the County ought to execute their authoritie and that by the words of their Commission 13. Againe if a parish shall extend into two or more Counties Or if part thereof shall lye within the liberties of any City or Towne corporate which have their proper Iustices and part without Then aswell the Iustices of peace of every County as also the Iustices or officers of such City or Towne corporate shall intermedle only within their owne proper and distinct limits bounds sc within so much of the said parish Co. 4. 46. c. as lyeth within their severall liberties and limits and not to inuade or deale in other jurisdictions for it shal be against Law reason where offices and Iurisdictions are severall that the one should intermedle within the Iurisdiction of the other 14. Neither shall any Iustice of peace deale in or punish any trespasse Vbi quis delinquet ibi puniet or other like offence coÌ„mitted in any other County against any penall statute though such offendor shal be brought before him Except the statute shall specially enable them thereto or that it be for matters of the peace or in cases of felonie or Treason in which cases onely he may take examinations both of the offendour and accusers and commit the offendours to prison and security for the peace if it be offred 15. Neither shall any Iustice of peace for the time that he shall make his abode or be out of the County where he is in Commission exercise his office For being out of the County where he is in Commission he is but a private man 16. Now my purpose is to set downe more particularly what things Iustices of peace out of their Sessions of the peace may do in the execution of their Commission or of the statutes wherewith they are charged And herein you must observe that some things are permitted to be executed by any one two or more Iustices either in regard that such Iustice or Iustices is or are next to the place or are of the Quorum or the like 17. And here note that whatsoever any one Iustice of peace alone may doe either for the keeping of the peace or in other execution of the Commission or statutes the same also may lawfully be done and performed by any two or more Iustices 18. But where the Law giveth authority to Two Co. li. 4. fo 46. there one alone cannot execute this for una persona non potest supplere vicem duarum Et plus vident Oculi quam oculus 19. Also when things by statute are appropriated to some one certaine Iustice or to more Co. li. 11. fo 92. there such Iustice or Iustices are to pursue such their authoritie accordingly for where an authoritie is given to foure or to one of them if two of them shall execute this it seemeth they have not pursued their authoritie 20. Plo. fo 206. 6. Besides there seemeth a generall rule to be put in Stradlings case in M. Plo. that when a thing is appointed by any statute to be done by or before one person See Co. li. 11. fo 59. 64. certaine that such thing cannot be done by or before any other But that it ought to be done as the statute hath appointed and by such expresse designation of one or power given to one certaine person all others are excluded 21. And in such things appropriate to some one or more Iustices of peace if without such Iustice or Iustices all or any of the residue of the Iustices of that County shall intermedle therein Such their doings is no wayes warrantable and in such their proceedings there is no necessitie to obey them as being no lawfull Iudges of the cause 22. Now having made a briefe declaration of the office of Iustices of the peace in generall by way of Introduction I shall proceede to the particulars of their imployment in severall Titles according to the Alphabet Affray CHAP. 1. 1. AFfray is derived of the French-word Effrayer which signifieth to terrifie or bring feare and which the Law understandeth to be a common wrong and therefore I will shew you what every man may doe in such cases Every private man 2. Every private man being present before or in and during the time of an Affray ought to stay the Affrayors and to part them
Iustice may cause them to finde sureties for the peace and may take away such weapons 3. And yet the Kings servants in his presence and Sheriffes and their officers and other the Kings Ministers and such as bee in their company assisting them in executing the Kings processe or otherwise in executing of their office and all others in pursuing Huy and Cry where any Treason Felony or other like offences against the peace be done may lawfully beare armour or weapons 4. Also any Iustice of peace may command that weapons be taken from such prisoners as at any time shall bee brought before him 5. Also if any servant to husbandrie or to any Artificer or Victualer or any Labourer shall beare any Buckler Sword or Dagger except they be travelling with their Master or in their Masters message Every Iustice of peace may imprison them till they have found sureties for the peace 12. R. 2. 6. P. 2. and may seize and take away their said weapons or may cause the Constable to seize the same and to present the said weapons at the next Sessions of the peace Arrest and imprisonment by what warrant and how and in what manner it may be executed CHAP. 3. What. 1. AN arrest is the apprehending and first restrayning of a mans person depriving it of his owne will and liberty and may be called the beginning of Imprisonment 2. Imprisonment is where a man is arrested against his will and is restrained of his libertie by putting him into the Gaole cage or Stocks or into some house or otherwise by keeping him in the high street or open field so as he cannot freely goe at libertie when and whither he would 3. By Parol Now concerning the precepts and warrants made by the Iustices of peace 4. The Iustice of peace seeing that he is a Iudge of Record his precept or Commandement by word of mouth in some cases is as strong as his precept in writing 5. And therefore the Iustice of peace upon a Riot done in his presence may command the Riotters to be arrested and cause them to finde sureties for their good behaviour 6. So upon an Affray assault threatning or other breach of the peace done in his presence the Iustice of peace may command by word the Officer being present or his owne servant to arrest such offendors to finde sureties for the peace 7. And where the Iustice of peace commandeth one being present to arrest another that is also in his presence 14. H. 7. 8 9. though that commandement be by word only it is good and it is reputed as an arrest made by the Iustice himselfe he being present when the arrest is made 8. But the Iustice of peace cannot command by word 14. H. 7. 8. to arrest another being out of his presente neither may one in the absence of the Iustice arrest another upon his command by paroll Br. peace 7. but it must be by a precept or warrant in writing 9. Next the warrant or precept of a Iustice of peace by writing By writing ought to be under his hand and seale or under his hand at least 10. And if it be for the peace or good behaviour or the like where sureties are to be found or required There the warrant ought to containe the speciall cause and matter whereupon it is granted to the intent that the party upon whom it is to be served may provide his sureties ready and take them with him to the Iu. of peace to be bound for him But if the warrant be for Treason murder or felony or other capitall offence or for great conspiracies rebellions assemblies or the like it needs not containe any speciall cause but there the warrant of the Iu. of peace may be to bring the party before him to make answere to such things or matters generally as shal be objected against him on the Kings Majesties behalfe Cromp. 148. and this is now the common usage 11. Plo. 37. A Iustice of peace who is dwelling out of the County granteth his warrant to be served within the County the officer cannot carry the party out of the County to the Iustice of peace who made the warrant but must carry him before some other Iu. within the County 12. Br. Peace ◠Co. 5. 59. The Iustice of peace may make his warrant of the peace to bring the party before himselfe and then the officer need not to carry the party before any other Iustice And yet upon a warrant for the peace granted ex officio the usuall manner is otherwise 13. Also the Iustice of peace may in some cases make his warrant to attach the offendor to be at the next Sessions of the peace there to answere his said offence For what cause 14. A Iustice of peace ex officio by the the first Assignavimus in the Commission may grant his warrant to arrest or attach one that hath broken the peace or committed other misdemeanour against the peace to find sureties for the peace or good behaviour 15. Also the Iustices of peace in diverse cases as the case shall require do use to grant their warrant against a man for his neglect or other default as for refusing to pay Country or Towne Rates and the like and is warranted by the first Assignavimus of the Commission for it is pro bono regimine 16. And such warrant may be either to attach the offendor to be at the next Sessions there to answer c. or els to bring the offendor before the said Iu. or any other Iustice c. who finding cause may bind such an offendor to appeare at the next Sessions to answer the said default 17. Also wheresoever any statute doth give authority to the Iustices of peace to cause another person to do a thing there it seemeth they have power given them of congruity to grant their warrant to bring such person before them that so they may take order therein 18. Also a Iustice of peace may grant his warrant to attach persons suspected of felony or Treason and that by the first Assignavimus in the Commission and by the true construction of the statute of 5. Ed. 3. 14. 19. Againe if a felony or Treason be committed there is no doubt but that every private man without a warrant may arrest whomsoever he suspecteth of it being a man of evill fame c. But if the offendor being pursued shall resist who shal be ayding to a private man whose goods are stolne and who suspecteth another to have stolne them either to search for his goods or to apprehend the party suspected if the Iustice of peace by this warrant shall not cōmand the Constable to ayde him therein If it be objected that the Constable may do all this of his owne authority upon request to him made by the party robbed it is true and yet we find by common experience that the Constables wihout the Iustices warrant therein are for the
idle persons meet to serve to be compelled to goe to service also negligent Recusants which shall not resort every Sunday to Church that such bee punished according to the stâ—tute for the first meanes to bring men to God is to bring them to Church 4. Rogues and Vagabonds to be duely punished 5. Houses of correction to be mainetained 6. Watch to be duly kept 7. Weights and measures the abuses therein to be reformed 8. Further the Iu. of P. are to be carefull that they suffer not the King to be disadvantaged where it lyeth lawfully in their power to prevent 9. Also that they remember how that they exercise not the judgements of men only but of God himselfe whose power they doe participate and who is alwayes present with them and therefore must take heed that in all their actions they set God continually before their Eyes 10. But forasmuch as most of the businesse of the Iu. of P. out of Sessions consisteth in the execution of diverse statutes committed to their charge which statutes cannot be so sufficiently abridged but that they will come short of the substance and body thereof therefore it shal be safest for the Iu. of Peace not to relie overmuch upon these short collections thereof but to have an Eye to the Abridgement of those Statutes or rather to the booke of Statutes at large and therby to take their further and better directions for their whole proceedings For as Sir Edw. Coke observeth Abridgements are of good and necessary use to serve as Tables but not to ground any opinion much lesse to proceed judicially upon them Ideò saith he satius est petere fontes quà m sectari Rivulos Coke 10. 117. b. 11. And lastly for the better encouragement of Iu. of P. Constables and other officers who by causelesse suits commenced by contentious persons against them for executing their offices have lately been discouraged from doing their offices with that courage care diligence which is required at their hands Now for their case in pleading they are by the statute of 10. Caroli in Ireland allowed to plead the generall issue of Not guilty and to give the speciall matter in Evidence and for their wrongfull vexation double Costs Barretor CHAP. 4. 9. E. 4 3. 1. EVery Iustice of peace upon his discretion may binde to the peace or good behaviour such as are common Barretors 2. Now a common Barretor is he who is either a common mover or stirrer up or maintainer of suits in Law in any Court Co. 1. 6. or else of quarrels in the Countrie In Courts 3. As if in any Court of Record County Court hundred or other inferior Courts any person by fraud and malice under colour of Law shall themselves maintaine or stirre up others unto multiplicitie of unjust and fained suites or informations upon penall lawes or shall malitiously purchase speciall Supplicavits of the peace to force others to yeeld him composition all such are Barretors 4. In the Countrie and these are of three sorts 1. Disturbers of the peace In the Country viz. such as are either common quarrellers or fighters in their owne cause or common movers or maintainers of quarrels and Affrayes betweene others 2. Common takers or detainers by force or subtiltie of the possession of houses lands or goods which beene in question 3. Inventers or sowers of false reports Co. 8. 361. whereby discord ariseth betweene neighbours all these are Barretors 5. But all such persons must be common Barretors Co. 8. 37. sc not in one or two but in many causes Bailement and Mainprise CHAP. 5. 1. BAilement Mainprise or Replevin is the saving or delivery of a man out of prison before that he hath satisfied the Law sc by finding sureties to answere and be justified by the Law And to this purpose these three termes Bailement Mainprise and Replevin be indifferently used in our statutes and bookes 2. He that is bayled Stamf. 65. is taken or kept out of prison and delivered as it were into the hands of his sureties who are reputed his guardians and who may keepe him with them F. Manip 12. and may imprison him by some opinions See 22. H. 6. Br. Surety 8. Mainp 89. 3. By the common law the Sheriffe and every Constable being conservators of the peace might have bailed a suspect of felony but this authoritie is taken from them and given to the Iustices of peace by these statutes following 4. First by the statute 1. R. 3. cap. 3. every Iustice of peace had authority by his discretion to let to bayle persons imprisoned for suspition of felony But forasmuch as after the making of that statute diverse not being baileable were notwithstanding let to Bayle Two Iustices and so many notable felons escaped therefore this statute was repealed by the statute of 3. H. 7. 3. H. 7. cap. 38 Fitz. Na. Br. 251. f. And thereby any two Iustices of peace the one being of the Quorum were enabled to let any prisoners mainpernable by the Law to baile to the next generall Sessions of the peace or gaole delivery as the case should require After for that one Iustice of peace in the name of himselfe and of one other of his fellow Iustices not making the other Iustice privie unto the cause wherefore the prisoner should be bailed did oftentimes by sinister meanes set at large great and notable offendors such as were not baileable and yet to hide their affection therein did signifie the cause of their apprehension to be but onely for a suspition of felony whereby the said offendors have escaped unpunished for reformation whereof by the statute 10. Carol. cap. 18. 10. Carol. 18. in Ireland it was enacted that if it be for Manslaughter or felony or suspition of manslaughter or felony in which cases the party is baileable then the same Iustices must be present together at the time of the said bailement and that they must certifie in writing subscribed with their owne hands the said Bailement at the next generall gaole delivery to be holden within the County where the person shall be arrested or suspected upon paine to be fined by the Iustices of gaole delivery Now by the preamble of both last recited statutes the mischiefe seemeth to bee the escape of felons and therefore if it be not in case of felony it seemeth any one Iustice of peace alone may baile a prisoner except where some particular statute shall otherwise prescribe Cromp. 1 57. 5. If the Mainpernors or sureties doe at any time or in any case doubt that their prisoner or the party by them bailed will flie they may take him and bring him before any Iustice of peace and upon their prayer the said Iu. of P. may discharge such sureties and commit the party to prison except he shall finde new sureties such as the Iustices shall conceive to be sufficient So if a prisoner be bailed by insufficient persons the Iu.
be legall enough for avoyding of charge and circuite for if the prisoner procure a certificate of the verdict into the Chancery it appeareth by Stamford fo 74. that a writ shall issue to the Sheriffe to baile him Dyer 179. See Br. Mainp 94. 25. And if a man that is arraigned of homicide doth plead not guilty and is found guilty and doth pray his Clergie and is reprived without judgement he is not baileable for being convicted of the felony he is more now then vehemently suspected and the intendment of Law in cases of Bailement is that it resteth indifferent whether he be guilty or not untill Tryall c. 26. The same reason seemeth to hold if a man be indicted of homicide before the Coroner yet See 22. Ass p. 94. Br. Cor. 90. that such are baileable as are indicted before the Coroner but of Manslaughter and so is the common practise at this day 27. Also a man convicted of felony remaineth in prison and after obtaineth the K. pardon the Iust of gaole delivery may baile him till the next gaole delivery that he may then come with his pardon and plead it 2. E. 6. Br. Manip 94. 28. Stamf. 1. Those that be charged as accessaries in felony be baileable and it seemeth that accessaries to felonies are within the Equity of this statute Stamf. 71. c. Fitz. 250. c. Br. Main 11. 58. and are baileable if they be of good fame untill the principall be convict or attaint but after the principall is attainted the accessary shall not be bailed but kept in prison 40 E 3. f. 28. Stamf. 71. c. Br. Main 58. and yet if after the attainder of the principall the accessary shall plead not guilty or other plea it seemeth he shall be bailed See more in Br. Mainp 6. 9. 22. 54. 64. 97. 29. If a man be accessary to two Stamf. 71. F. Cor. 200. and the one principall is attainted though the other be not yet the accessary shall not be bailed 30. In felony if the principall dye in prison or be attainted of another felony the accessary shall be bailed F. Coro 378. Br. Mainp 91. 31. Also the said statute of Westm. 1. cap. 15. doth no more restraine the principals to be bailed then the accessaries in those cases where the same statute doth not prohibite to let to Mainprise Stamf. 74. Br. Main 53. F. Mainp 9. and therefore if a man be indicted of Burglary as principall yet he may be bailed Stamf. 74. Stamf. 74. Also the principall in appeale of Robbery may be bailed And so may he be bailed upon an Indictment of Robbery Br. 61. 75. 97. Stamf. 71. Br. 56. 58. 97. But the principall for murder is not baileable either by the common Law or by the stat of Westminst 1. by the Iustices of peace or by the Sheriffe but the Iustices of the Kings Bench doe use to baile them for they are not restrained neither by the common Law nor by the said statute Trespasse West 1. 15. P. Mainp 2. howbeit I doe advise the Iustices of peace to be sparing in the bailement either of Burglars Robbers or other notorious felons and to take very good sureties for such as they shall baile 32. Those that be charged with or guilty of any Trespasse that toucheth not losse of life nor member be baileable by the statute of Westm. 1. 15. before they be convicted But yet let the Iustice of peace have a Care that baile be not prohibited by any other latter statute in such cases of Trespasse 33. If any person be committed to prison Fitz. 250. g. by proces from the Sessions made upon an Indictment upon any penall statute not prohibiting baile he maybe bailed out of the Sessions by two Iustices of peace the one being of the Quorum Br. 97. Or he may have a writ out of the Chancery directed to the Iustices of peace or to the Sheriffe to take surety of him for his apparance before the Iustices at their Sessions Or he may have a Cerciorari to remove the record into the Kings Bench and a habeas corpus to remove the body thither also Fitz. 250. g. h. i. 251. c. 34. If proces from the Sessions shall goe forth upon any indictment of Trespasse Cromp. 197. 134. c. any one Iustice of peace may take bayle of the party to appeare at the day c. to answere to the indictment and the same Iu. may thereupon make his Supersedeas for otherwise besides the mischiefe of imprisonment the party may be outlawed before the Sessions Note that the Iustices of peace are not to baile any prisoner except the prisoner be committed for such cause wherof the said Iustices of peace may â—either enquire heare â—or determine Cromp. 152. and therefore if a man bee taken upon proces of rebellion issuing out of the Chancery or Star-chamber or such like the Iustices of peace are not to baile him And Master Crompton reporteth of two Iustices of peace who were fined for bailing one in such a case 35. Also if a man be arrested by force of any proces writ bill or warrant in any action personall the Iustices of peace are not to baile him 36. Persons condemned in any of the Kings Courts and by vertue thereof committed to prison And persons being in execution upon any statute or recognisance c. at the suit of any person the Iu. of P. are not to baile any such Execution P. Mainp 2. Fitz. 250. d. 37. He that is appealed by an approver being no common thiefe nor defamed after the death of the Approver is baileable by the statute of West 1. 38. Note that a man cannot become an Approver before a Iustice of peace Stamf. 144. 2. neverthelesse it seemeth both reasonable and serviceable that if a felon will become an Approver that is will confesse his felony and also accuse others that were coadjutors with him in doing the same felony or in other felonies before a Iustice of peace that such Iustice may take his confession and commit him to the gaole and may also grant out his warrant for the apprehending of the others that are so accused 39. Againe the statute of 23. H. 6. c. 10. taketh away baile from all such as be in prison by condemnation execution Capias utlagatum excommunication surety for the peace or by the speciall commandement of any Iustice prohibiting that such be not bailed either by the Sheriffe or other officer or minister 40. There be divers other statutes which doe take away baile from the offendours thereof and that not onely upon their solemne conviction after publick hearing triall and judgement but also upon the record of one or two Iustices of peace or by private examination and confession of the offendour or proofe of witnesses or such other private tryall had before the Iustices of peace out of their Sessions most of which I have here set downe whereof
Cashes and cutting or clearing of Paces within the parishes where he dwelleth as farre forth and in such manner and forme as any person having a plow-land in any parish ought to be chargeable by the said Act as aforesaid and that every person or persons occupying or keeping in his or their hand or possession severall or divers plow-lands as aforesaid in severall or divers parishes shall be charged to finde in each parish where the plow-lands being in his occupying doe lye one Cart Waine Tumbrell Dungpot or Courtslad Carres or drags furnished and two men and other things as before for the amendment and repairing of the high-wayes making of Cashes and cleering of Paces within the severall parishes where the said plow-lands doe lye in such manner and forme as if hee or they were a parishioner dwelling within the parishes where the same severall plow-lands doe lye And for the better keeping of the high-wayes passable for his Majesties subjects It is likewise enacted that no person or persons having any ground by lease or otherwise adjoyning to any high-way or common fairing way leading to any market Towne shall cast or scoure any ditch and throw and lay the soyle thereof into the high way and suffer it to lye there by the space of sixe moneths to the annoyance of the said high way or common fairing way upon paine of forfeiture for every load of soyle so cast into the high way or common fairing way in ditching or scouring twelve pence and where any heretofore have beene so cast into the high-wayes or common fairing way that there is a banke betweene the said way and ditch that it shall be lawfull for the supervisors and workemen appointed for the amendment of the said high-wayes to make sluces or other devices by their discretions to convay the water out of the said way into the ditch any Law right interest custome or usage notwithstanding 20. And it is further enacted that all and every Iustices of Assise Iustices of Oyer and Terminer and Iustices of the peace in their Sessions and Stewards of Lectes and Law dayes in their Leetes and Law dayes shall enquire of and heare and determine all and every offence matter and cause that shall grow come or arise by reason of this Statute and to assesse such reasonable Fines and amerciaments for the same as by them shall be thought meete and that all and every penalty summe or summes of money forfeited or to be imposed for any cause within this Statute shall be levied within every parish by the Surveyors of the wayes within that parish for the time being by distresse and sale of distresses in manner and Forme as Fines and amerciaments in Leets have beene used and the money so levyed to be imployed upon the high-way or common fairing way where the offence was committed within one yeare and the said Surveyors shall at least once every yeare at the quarter Sessions to be holden for the said County make a true Accompt before the Iustices of peace there or any two of them whereof one to be of the Quorum and shall make payment of all such summâ— of mony to the Surveyors to be appointed for the yeare next following as he or they shall have collected upon the Estreares thereof to be made unto them upon paine to forfeit for every time hee shall not so doe forty shillings sterl and to be committed untill they make payment thereof and the Clerke of the Crowne or of the peace and the Steward of every Leete shall make estreate indented of all the Fines forfeitures and amerciaments upon the said defaults and shall deliver the one part thereof to the Surveyors of every parish where the said offence was committed yearely within Six weekes after the Feast of Saint Michael the Archangell and the said Surveyors upon their accompt shall have allowed for every pound they shall collect and pay Eight pence for his owne paines and 12. d. English for the Fees of the Clerke of the Crowne Clerke of the Peace or Steward of the Leete for the estrates indented of every severall parish that they shall deliver as is aforesaid 21. Note that the Kings high way or Regia vid loading either to the Market or from towne to towne the freehold and soile thereof and the interest of all the trees and other such profitâ— thereupon growing doe belong to the Lord of the soile or Lord of the Mannor 17. Ed. 3. fol. 9. Br. Chimin 1â— â—1 â—7 H. 6. fol. 9. Br. Leeteâ— And therefore such Lords are chargeable to cut downe the Trees and bushes growing in such high-wayes and yet by the opinion of Keble 8. H. 7. fol. 5. the freehold of the high-way and the Trees thereupon growing are belonging to him that hath the land next adjoyning Br. Nusans 18. but it seemeth this must be understood of common field wayes or other private wayes and not of the Kings high-way See â— Ed. 4. fol. 9. Britton fol. 111. 22. Note also that he which hath land adjoyning next to the K. high-way by the common Law before these statutes was and is chargeable and bound of common right to clense and scoure the ditches adjoyning to the said high-way 8. H. 7. fol. 1. A. Br. Nasanus 28. 23. And it is called the Kings high-way for that the King at all times hath therein passage for himselfe and all his people and may punish all Nufans therein though otherwise the interest thereof be in the Lord to take all the Trees and such other profits there growing and to bring his Action for digging therein or for any other like Trespasse there done 24. F.N.B. 113. A. And the King by the common Law may award his Commission for the amending of the high-wayes and Bridges throughout his Realme so as his people may have safe passage thereby Cloth CHAP. 7. EVery Iustice of peace may examine and punish certaine abuses concerning the making of cloth as appeareth by a Branch of a statute made in Anno 4. E. 4. ca. 1. which branch followeth in these words viz. 1. Therefore it is ordeined and established by the authority aforesaid that every man and woman being cloth-makers Cloth-makers from the Feast of Saint Peter shall pay to the Carders spinsters and all such other labourers of any member thereof lawfull money for all their lawfull wages Wages and payment of the same And also to deliver wolles to be wrought according to the faithfull delivery and due weight upon paine of forfaiture to the same labourer the treble of his said wages so not paid as often as the said cloth-maker doth refuse to pay the same in the said manner and forme to any such labourer put by him to the occupation in any of the said members of cloth-making And also to forfeit to the same labourer for every delivery of excessive and unlawfull weight to him delivered to be wrought 6. d. for every default and that every Carder Spinster Weaver
ca. 9. 20. That the Iustices of peace in every County in two of their Sessions to be holden betwixt the Feast of Easter and Saint Michael shall make proclamation by their discretion after the dearth of victuals how much every Mason Carpenter Tyler and other Craftesmen workemen and labourers by the day aswell in harvest as in other times of the yeare after their degree shall take by the day with meate and drinke or without meate and drinke betweene the two Sessions aforesaid notwithstanding the statute thereof heretofore made and that every man obey to such proclamations from time to time as a thing done by statute Anno 13. Ri. 2. cap. 8. vide 33. H. 8. cap. 9. in Ireland that these proclamations must be in the next Sessions after Easter and Michaelmas 21. That no Labourer be retained to worke by the weeke not that no Labourers Carpenters Masons Tilets Plaisterers Daubers Coverers of houses nor none other Labourers shall take any hire for the holy dayes nor for the Evens of Feasts where they doe not labour but till the houre of Noone but only for the halfe day upon the paine that such Labourer Carpenter Mason Tiler Plaisterer Dauber Coverer of houses or any other Labourer that taketh contrary to this statute shall pay to the King for every time that he doth so contrary 20. s. Anno 4. H. 4. ca. 14. 22. The statute of Labourers made at Canterbury and all other good statutes of Labourers made and not repealed be firmely holden and kept and put in due execution and moreover that the Iustices of peace have power to send their writs for such fugitive Laborers to every Sheriffe of the Realme of England and to make such processes as the statute of Anno 34. Ed. 3. cap. 10. requireth to bring them before them to answere to our soveraigne Lord the King and to the parties of the contempts and Trespasses made or done against the ordinances and statutes aforesaid in like manner as the Iustices have power to send to every Sheriffe for the Theeves before them indicted And also that all the statutes and ordinances of Labourers servants and artificers before this time made and not repealed be exemplified under the great Seale and sent to every Sheriffe of the Realme thereof to make Proclamation in full County and after this Proclamation so made that every Sheriffe shall cause the same Ex-emplification to him directed to be delivered to the Iustices of the peace in his County named in the Quorum or to one of them to remaine with such Iustices which be or shall be for the better putting of the aforesaid statutes and ordinances in due execution And also that the Iustices of peace from henceforth have power to examine aswell all manner of Labourers and servants and their masters as Artificers by their oathes of all things by them done contrary to the said ordinances and statutes and upon that to punish them upon their confession after the effect of the statutes and ordinances aforesaid as though they were convict by Inquest and that the Sheriffe in every Shire of the Realme shall doe well and duely in his office in this behalfe upon paine to lose and to forfeit to our Soveraigne Lord the King Twenty pounds Anno 2. H. 5. cap. 4. 23. If any servant of husbandrie purposing to depart from his Master at the end of his Terme at the midest of his Terme or otherwise make a Covenant before with another man to serve him for the next yeare if he be in such case as the law will compell him to serve that the said servant and he which so shall make covenant with him at the middest of the said Terme or before shall give warning to the master of the said servant of the said Covenant so newly made so that the same master may provide another servant against the end of his Terme and if any covenant with any such servant be otherwise made or such warning in manner and forme aforesaid not had that the same Covenant shall be voide and that the same servant be compelled to serve his first master for the next yeare except that a lawfull cause being of a latter time require the contrary and if any person refuse to serve or labour for the wages assessed by the Iustices of peace then every Iustice of peace in their Counties shall have power at every time to call them to examination of the same and such as they shall finde defective to commit to the gaole there to remaine till they have found sufficient surety to serve and labour in forme by the law required And if any servant Artificer workman or labourer doe contrary to the premisses or deny his service occupation of labour by reason of not giving of salarie or wages contrary to these statutes that hee shall lose to the partie that will sue in this behalfe 20. s. and that the said Iustices of peace shall have power to heare and determine all manner of offences done contrary to the forme of this statute aswell at the Kings suit as at the parties And that every of the Kings leige people may have the suit against every person that shall offend in any point against this statute and the processe shall be by Attachment Capias and Exigent and that the Iustices of peace shall assesse no fyne upon any which shall be convict before them of any thing done to the contrary to any statute of Labourers or Artificers or for this cause to put him in the good grace of out Soveraigne Lord the King under three shillings foure pence And also that the Iustices of peace thorow the Realme two times every yeare shall doe openly to be proclaimed in their Sessions all the statutes of Labourers Artificers Hostlers Victualers servants and Vagabonds before this time made and not revoked with this statute Also that by colour of the Tenure of lesse lands then the husbandry of the same shall suffice to the continuall occupation of one man no man shall be excused to serve by they yeare upon the paine to be justified as a Vagabond also that Iustices of peace shall have power to take all servants retained with any person by colour of Husbandrie and not duely occupied about the same which servants ought by the law to be servants of Husbandrie to such as shall require their service and to justifie them in every point as the same Iustices have power to justifie Vagabonds 23. H. 6. ca. 13. 24. And now because the rating and assessing of the wages of Labourers Artificers and Servants by force of an Act of Parliament made in Ireland in Anno 33. H. 8. cap. 9. 33. H. 8. ca. 9. in Ireland is to be done by the Iustices of peace so as by this statute all the former statutes are altered in that particular point of wages only It will not be amisse to recite the statute verbatim which is as followeth 25. Forasmuch as prices of victuals cloth and other necessaries
for Labourers Servants at Husbandry and Artificers yearely change aswell sometime by reason of death and scarcenesse of corne and victuall as otherwise so that hard it is to limit in certaine what wages Servants at Husbandry should take by the yeare and other Artificers and Labourers by the day by reason whereof they now aske and take unreasonable wages within the land of Ireland For reformation whereof be it enacted by authority of this present Parliament that the Iustice of peace in every County within this land of Ireland yearely in their Sessions to be holden within one moneth next after the Feast of Easter and one moneth next after the Feast of Saint Michael the Archangell shall make Proclamations by their discretion having respect to such prices as victuals cloth and other necessaries then shall be at how much every Mason Carpenter Sclauter and every other Artificer and Labourer shall take by the day aswell in harvest season as any other time of the yeare with meate and drinke and how much without meate and drinke betwixt both the said Sessions And also at the Sessions to be holden next after the Feast of Easter how much every servant at Husbandry shall take by the yeare following with meate and drinke and that every of them shall obey such Proclamations from time to time as a thing made and established by Act of Parliament for a law in that behalfe upon paine of forfeiture every one of the said Carpenters Sclauters Artificers Labourers and Servants that shall take any thing contrary to the said Proclamation or Proclamations the thing so taken and imprisonment of their bodyes by the discretion of the said Iustices and that Iustices of peace at any Sessions shall enquire heare and determine the same offences and thalffendell of the said forfeiture to be to the Kings highnesse and the other halfe to him or them that shall give information of the same forfeiture and that all and every Act before this time made concerning the limitation of wages for the said Servants Artificers and Labourers be in that point only voide and of none effect within this land and this Act to endure till the next Parliament within this land to be holden 11. Eliz. ca. 5. in Ireland 26. Which statute by another Act of Parliament made in Ireland in Anno 11. Eliz. cap. 5. is made perpetuall 27. And having now set forth the statutes concerning Labourers Artificers and Servants it will be necessary for the better information of the Iustices of peace to make some exposition of the said statute of 23. Ed. 3. which is the ground of all the rest which I shall briefely doe in these eight particulars following 1. First what the common Law was concerning Labourers Artificers and Servants before the said statute 2. Secondly who are compellable to labour by the said statute of 23. Ed. 3. 3. What is a good retainer within that statute and what not 4. What be good causes for a servant to depart from his service within his Terme and what not 5. How and in what manner the master may discharge the servant apprentice or other Artificer of his service 6. Sixtly who may lawfully take a servant out of the service of his master with whom he is retained without the danger of the said statute 7. Seventhly In what cases a man may receive or retaine a servant that is formerly retained by another 8. And lastly who shall in Law be taken to be a servant within the meaning of the said statute of 23. Ed. 3. The common Law before the statutes 28. For the First by the common Law before the said statutes a Iustice of peace by the first Assignavimus of the Commission pro bono regimine might commit to prison all Idle wanderers which were able to worke and would not which had no meanes or livelyhood of their owne to remaine in prison untill they should finde surety either to betake themselves to some honest labour or else to be bound to their good behaviour and this is agreeable to the Law of God as appeares in the second Epistle of Saint Paul to the Thessalonians the third Chapter where Saint Paul giveth a commandement and a precept that if any would not worke he should not eate that is he should not eate the fruite of other mens labours but should worke and eate his owne bread and it is plaine and manifest in the kingdome of Ireland that Idlenesse hath beene the chiefe occasion of many rebellions and yet is a great occasion of the poverty of that kingdome and for the better suppressing of all such Idle living diverse good Lawes and statutes have beene enacted and made in that kingdome as namely in Anno. 25. H. 6. ca. 7. It was enacted that the Sonnes of Husbandmen and Labourers should be Labourers and travellers upon the ground as they were in old time and in all other workes and labours lawfull and honest according to their state and if it fortune that any such sonne of an Husbandman or of a Labourer doe the contrary and thereof be lawfully convicted before any Iudge of the King or Iudge of Franchise that he shall have the imprisonment of one yeare and over that he shall make fyne to the King or to the Lord of the Franchise according to the discretion of the Iudge before whom he is convicted 29. 11. Caroli c. 16. And by another staâ—ute lately made in Ireland in the eleventh yeare of the Kings Majestie that now is It is enacted that if any person or persons that hath no meanes of ability of his owne or sufficient meanes of support from his parents and kindred that shall walke up and downe the Countrey with their Fosterers or kindred and retinue with one or more Greyhound or Greyhounds or otherwise or that shall casher lodge or sesse themselves their followers their horses or their Greyhounds upon the Inhabitants of the Countrey or shall directly or indirectly exact meat drinke or money from them or shall crave any helpes in such sort as the poore people dare not deny the same for feare of some scandalous Rime or song to be made upon them or some worse inconvenience to be done them that it shall bee lawfull for every Iustice of peace of each County within the Realme of Ireland and for the Iustices of Assise in their severall Circuits to apprehend or cause to be apprehended all such person or persons and him or them to bind to their loyaltie and allegeance or allegeances or to the good behaviour as in the discretion of such Iustices shall seeme meete and to commit the said persons to the common gaole of the said County untill he or they shall finde bonds by recognisance as aforesaid with very good sureties which the Iustice of peace shall returne all and every such Bonds or Recognisances so by him to be taken at the next generall Sessions of the peace for the said County where the same shall be taken and all
peace 9. the party may goe before any other Iustice of peace to offer his surety yet he shall not inforce the officer to travell to a Iustice out of the division or limit where they be dwelling without good cause Nay it is at the election of the officer who is the minister of Iustice to carry the party attached to any other Iustice of peace that he will for it is more reason to give this election to the officer who in presumption of Law is a person indifferent and is sworne to execute his office duely then to give the election to the delinquent himselfe who by presumption will seeke shifts and to weary the Officer 15. If the other Iustice of peace before whom the party so attached shall come shall refuse to accept and take such surety being offered to him this is punishable in the Starchamber for such Iustice of peace ought to take of him such sureties and to binde him by recognisance but yet that must be done in such sort in all points as the forme of the former precept doth require Supersedeas by a Iustice of peace and thereupon the same other Iustice of peace having so taken suretie for the peace may and ought upon request to make his supersedeas to all officers and to all other the Iustices of peace of the same County and thereby the said party shall be discharged from finding other suretie Cromp. 145. and from any other arrest for the same cause but by such supersedeas that other Iustice cannot dischardge the first warrant of the first Iustice untill the party be bound indeed nor can give any other day to the party to appeare at any other Sessions c. Dalton 151. 16. Also a Iustice of peace of the County by a Supersedeas cannot discharge a warrant awarded by his fellow Iustice by force of a supplicavit to him directed out of the Chancerie or Kings Bench to take the suretie of the peace of one resident in that County Ibid. 17. Also when a man doth feare that surety of the peace will be demanded against him in the Countrey or doth heare that such a warrant for the peace is granted alreadie out against him by a Iustice of peace it seemeth in either of these cases he may goe and give suretie of the peace before any other Iustice of peace of the same County where he dwelleth and thereupon may have a supersedeas from that Iustice of peace c. but in such case it is fit that such party be urged by such Iustice to put insufficient sureties and that he be bound towards the King and all his people and to appeare at the next Sessions Ibids 18. If any officer having a warrant from a Iust of peace to arrest a man to finde surety of the peace shall receive a supersedeas out of the Chancerie or Kings Bench or from any Iustice of the Kings Bench Dalton 152. or from any Iustice of peace of the County to discharge the same surety of the peace Lamb. 101. and yet neverthelesse will urge the party by force of his warrant to finde new suretie for the peace the party may refuse to give it and if he be arrested or imprisoned for such refusall he may have his action of false imprisonment against such officer for such supersedeas is a discharge of the former precept or warrant 19. The forme of a Supersedeas granted by a Iustice of peace you may see postea tit Warrants and Presidents 20. And this Supersedeas is sufficient though it never name the sureties nor containe the fummes wherein they are bound but yet it is the better forme to expresse them both F. N. B. 81. 2. and 238. Supersedeas from above 21. If the party shall mislike to be or stand bound to the peace by the Iustice of peace in the Countrey then may he either before or after that he is bound in the Countrie goe or send up to Dublin and there give suretie for the peace either in the Kings Bench or in the Chancerie and thereupon the party may have a Supersedeas our of that Court where he hath given such suretie to restraine the Iustice of Peace of the Countrey from taking any surety of the peace of him and then the Iustices of peace of the Countrey after the receipt of such Supersedeas must forbeare to make any warrant for the peace against the party and if any Iustice of peace have granted out any such warrant against the said party the said Iustice may make his Supersedeas to the officers thereby commanding them to surcease to put his former warrant in execution and so to discharge it and to discharge the party of any arrest or imprisonment thereupon 21. The forme of a Supersedeas for the peace out of the Kings Bench See lib. Intr. 454. 22. For the forme of a Supersedeas for the peace out of the Chancery See Fitz. Na. Br. 238. c. and Register 89. 23. Note that this Supersedeas out of the Chancery may be procured at any time in the vacation and out of the terme Fitz. Na. Br. 236. a. 24. If the Iustice of peace shall not furcease after a Supersedeas out of the Chancery or Kings Bench to him delivered an attachment will lye against him for such contempt aâ—â— besides he may be fyned and imprisoned for it 25. Yea such a Supersedeas comming out of those high Courts to the Iustices of peace they ought thereupon to surcease although such a Superdeas should be awarded against Law 26. If such Supersedeas shall be directed to the Iustices of peace and Sheriffe that Iustice to whose hands it shall be delivered may keepe it and may deliver the labell to the party 27. And in these and like cases Dalton 153. the Iustice of peace shall doe well to send to the next generall Sessions of the peace aswell the said Supersedeas if it come to his hands as also the recognisance which he hath formerly taken of the party if he had taken any for peradventure the recognisance was forfeited before the Supersedeas was purchased or if it were not forfeited yet the conusor is not endamaged thereby 28. Ibid. If the party shall procure such Supersedeas out of the Chancery or Kings Bench after that he is bound by recognisance before the Iustice of peace to keepe the peace c. and to appeare at the next Sessions he ought to appeare in person and there shew his Supersedeas Cromp. 139. and pray allowance of it and thereupon he shall be discharged but if he faile to appeare his recognisance wil be forfeited notwithstanding his Supersedeas 29. But if the party were bound before the Iustice of peace to keepe the peace against all men during his life and not to appeare Dalton 153. and shall after procure such a Supersedeas testifying that he hath found such surety in the Chancery c. against all men for ever and shall
the request of one and for the preservation of the peace chiefely towards one 11. Also this surety of good abearing is most commonly granted either in open Sessions of the peace or out of the Sessions by two or three Iustices of peace whereas that of the peace is usually granted by one Iustice of peace and out of Sessions 12. And yet by the words of the Commission 14. H. 7. 8. â— as also by the opinion of the learned any one Iustice of peace alone and out of the Sessions may grant this surety of the good abearing and that either by his owne discretion or upon the complaint of others as they may that of the peace 13. But this is not usuall unlesse it be to prevent some great and sudden danger especially against a man that is of any good estate carriage or report 14. Also this surety may be granted at the suit of one person 15. But the more difficult and dangerous this surety is to the party bound the more regard there ought to be taken in the granting of it and therefore it shall be good discretion in the Iustices of peace that they doe not command or grant it but either upon sufficient cause seene to themselves or upon the suit and complaint of diverse others as aforesaid and the same very honest and credible persons 16. Also this surety of good abearing is often taken by the Iustice of peace by vertue of a speciall writ in nature of a supplicavit Supplicavit directed out of the Chancery or Kings Bench and then the Iustice of peace upon such a writ is to proceed as a minister as in case for the P. mutatis mutandis vide ante tit Suretie for the peace and supplicavit 17. Master Dalton affirmeth that he once received out of the Chancery Dalton p. 170. such a writ directed custodibus pacis in comit Cantabrigiae ac vicecomiti ejusdem comit eorum cuilibet and grounded upon the statute of 34. Ed. 3. commanding them and every of them to take foure sureties besides the party whereof every one of them should have lands of such a yearely value or goods of such a value and to bind the sureties every of them in such a summe quod ipse boni gestus de cetero erit erga nos cunctum populum nostrum quod nihil in contrarium statuti pradicti attemptabit c. and therein he proceeded as a minister onely 18. The party against whom such a supplicavit for the good behaviour shall be granted out before he be attached thereupon may goe or send up and give sureties in the Chancery as here before is said for the peace and thereupon he shall have a supersedeas out of that Court directed to the Iustices of peace and Sheriffe and to every of them commanding every of them to surcease to arrest the said party or to doe any other execution of the said writ of supplicavit and that if before the comming of the said supersedeas they have taken any such security for the good behaviour of the party that then they presently release the party of such surety found by him the former writ of supplicavit notwithstanding For what cause this suretie of the good behaviour shall be granted CHAP. 63. 1. IT is chiefely to be granted by the Iustices of peace out of their Sessions in these cases following viz. against common Barretors common Quarrellers and common breakers or perturbers of the peace 2. Also it is grantable against Rioters see hereof before tit Riots 3. Also against such as shall lye in wait to rob or shall be suspected to lye in wait to rob or shall assault P. Iustice 18. or attempt to rob another or shall put passengers by the way in feare or perill 4. Also against such as be generally feared or suspected to be Robbers by the high way 5. Also against such as are like to commit murder homicide Cromp. 135. b. or other grievances to any of the Kings subjects in their bodies 6. Also against such as shall practise to poyson another 7. One had bought Ratsbane and mingled the same with corne and then wilfully did cast the same amongst his neighbours poultry Dalton p. 171. whereby most of them dyed and this was holden to be a good cause to bind the offendor to the good behaviour 8. P. Iustice 18. 34. Ed. 3. ca. 1. It is also grantable against such as be of evill name and fame generally but more especially against all such as are defamed and detected in any of these partitulars following 9. 13. H. 7. 10. First against all those that are greatly defamed for resorting to houses suspected to maintaine adultery or incontinence 10. Also against the maintainers of houses commonly suspected to be houses of common Bawdrie 11. Cromp. 140. One that had such lewd women found in his house was bound to his good behaviour by Wray Anderson and Manwood 28. El. 12. Also against common whoremongers and common whores 1. H. 7. 7. 27. H. 8. 14. for by good opinion Avowtry or Bawdry is an offence temporall aswell as spirituall and is against the peace of the land 13. Upon information given to a Constable 13. H. 10 Br. Traverse 432. that a man and a woman be in adulterie or fornication together or that a man and a woman of an evill report are gone to a suspected house together in the night the officer may take company with him and if he find them so he may carry them to prison or he may carry them before a Iustice of peace to find sureties for the good behaviour 14. Also against night-walkers that be suspected to be pilferers or otherwise like to disturbe the peace or that be persons of evill behaviour or of evill fame or report generally or that shall keep company with any such or with any other suspitious persons in the night 13. H. 7. 10. 15. Against such as be Evesdroppers that is to say that in the night shal harken neare the wals of mens houses to heare what is spoken within and to make use thereof to breed discord or dissention amongst neighbours 16. Against Night-walkers that shall cast mens gates or Carts into ponds c. or shall commit other misdemeanors or outrages in the night time 17. Against suspected persons who live idly and yet fare well or are well apparelled having nothing whereon to live except upon examination they shall give accompt of such their living 18. Against common Haunters of Alehouses or Tavernes but more specially if they have not whereon to live and also against common Drunkards and Prophaners of the Sabbath and against common Gamesters and Keepers of common gaming houses whereby mens servants and children are drawne to Unthriftinesse and also against Alehouse-keepers and Inne-keepers that maintaine misorder in their houses and especially on the Sabboth day 19. Against such as shall use to goe in the message of Theeves See stat 18.
Kings writ issuing sometimes out of the Chancery and sometimes out of the Kings Bench and may be directed to any Court of Record or officer of Record as to a Iustice of peace Sheriffe Coroner or Escheator to be certified of any Record which is before any of them and first an alias then a pluries and lastly an attachment lyeth against them that should send it if the Record be not certified accordingly or it seemeth a sub poena is used at this day If it be returneable into the Chancery then are the words in Cancellaria nostra and if into the Kings Bench then the words are coram nobis ubicunque c. mittatis The Certiorari may be sometimes to remove Fitz. Na. Br. fo 245. and send up the Record it selfe and sometimes but onely the Tenor of the Record as the words therein be and it must be obeyed accordingly If there be variance betweene the Certiorari Plo. 393. and the Record which is to be removed the Iustices need not to certifie such Record A Iustice of peace may deliver Crompton fo 132. a. and 133. b. or send into the Kings Bench an endictment found before him or a Recognisance of the peace taken by him or a force recorded by him without any Certiorari but if a Iustice of peace having a Record with him be discharged of his office now he cannot certifie it without a Certiorari although he be made a Iustice of the peace againe See 8. H. 4. fo 5. Br. Record 64. If a Certiorari be to send up the indictment of A. in which endictment some others be endicted together with the same A. yet need not the Iustices of peace to make certificate concerning any but A. for although they be named joyntly yet be they indicted severally and the King may pardon A. without forgiving the other 6. E. 4. 5. 6. Ed. 4. fo 5. If a Certiorari shall come to the Iustices to remove an endictment and the party sueth not to have it removed but suffereth it to lye still 9. H. 7. 16. Br. Iudgement 17. yet it seemeth the Iust of peace ought ex officio to send it away because the writ containeth in it selfe a commandement to them so to doe and so is a supersedeas of it selfe to the Iust of peace to stay their other proceedings And albeit the Certiorari be a supersedeas of it selfe Fitz. Na. Br. 237. yet may the party upon the Certiorari purchased have a supersedeas also directed to the Sheriffe commanding him that he arrest him not Fitzh fo 237. in which place also he doubteth whether the Iustices of peace themselves ought not of duty to award their owne supersedeas to the same effect after that the writ of Certiorari is brought to their hands If a Certiorari come to the Iustice of peace to remove an endictment and in truth the indictment was not taken till after the date of the Certiorari yet if the endictment be removed thereby Dalton 371. it is good enough for that they both be the Kings Courts 1. R. 3. 4. and in such case it is now usuall to remove it All the higher Courts at Dublin may write to the Iustices of peace to certifie their Records that doe make for the tryall of causes in them depending as you may reade 19. H. 6. 19. where they of the common place did send to the Iustices of peace for an endictment because in a writ of conspiracy brought before them it was materiall to have it In some cases the Iustice of peace may certifie a Record by him made Dalton fo 372. or found before him out of Sessions without any writ of Certiorari therefore to him directed vide antea tit forceible Entrie In other cases he must of duty certifie the proceedings but may spare to certifie the Record untill a Certiorari come to him for it see hereof antea title Suretie for the peace For the manner of the writ of Certiorari to remove Records from one Court to another or from the Iust of peace or other officers of Record to any the higher Courts of Dublin c. there are diverse formes and sorts thereof as you may see in Fitz. Na. Br. fo 242. c. I will onely set you downe one forme for all The forme of a Certiorari out of the Chancery to certifie a Recog taken by a Iustice of peace in the Country for the keeping of the peace Iacobus Dei gratia Angliae Scotiae Franciae et Hiberniae Rex fidei defensor custodibus pacis nostrae in Com. Dublin et eorum cuilibet salutem volentes certis de causis Certiorari super tenorem cujusdam securitatis pacis vel boni gestus qua A.H. ar invenit coram vobis vel aliquo vestrum de eo quod ipse damnum vel malum aliquod R.S. vel alicui alij de populo nostro de corpore suo nec faceret nec fieri procuraret quovismodi vobis mandamus quod tenorem securitatis pacis sive boni gestus predict nobis in Cancellar nostr in octabis purificat beatae Mariae virginis prox futur ubicunque tunc fuerit sub sigill vestr vel unus vestrum distincte et apertè sine dilatione mittatis et hoc sub poena centum librarum nullatenus omittatis nec aliqu vestr omittat Teste meipso apud Dublin _____ die Novembris Anno Regni nostri c. The returne hereof See antea titulo Surety for the peace Concerning the surety of the peace When a writ of supplicavit which in old time was called breve de minis as appeareth by the Register directed out of the Chancery is delivered to a Iustice of peace he is to direct his precept or warrant to compell the party upon that writ to finde surety for the peace as appeareth by Fineux chiefe Iustice in 21. H. 7. fol. 20. the forme of which precept or warrant may be thus in English George Multon one of the Iustices of peace of our soveraigne Lord the Kings Majestie within the County of Dublin Com. Dublin to the Sheriffe of the said County and to all the high Constables of the severall baronies within the said County and to all petty Constables and all and singular other the Kings Majesties Bailiffes and other ministers aswell within liberties as without in the said County and to every of them greeting Know yee that I have received the commandement of our said soveraigne Lord the King by his Majesties writ of supplicavit in these words reciting the whole writ of supplicavit which is not alwayes of one forme because it is sometimes directed to all the Iustices of the peace sometime to them and the Sheriffe and sometimes to one Iustice alone or reciting only the effect of the supplicavit thus Know yee that I have received the commandement of our said soveraigne Lord the King by his Majesties writ of supplicavit to compell A. B. of D. in the said
County Yeoman to finde sufficient sureties for his Majesties peace by him to be kept toward C.D. of the same Towne of Dale in the said County Taylor and therefore on the behalfe of our said soveraigne Lord I command and charge you joyntly and severally that immediately upon the receipt hereof you cause the said A.B. to come before me at my house in Dale in the County aforesaid to finde sufficient surety and mainprise for the peace to be kept towards our said soveraigne Lord and all his liege people and especially towards the said C.D. and if the said A.B. shall refuse thus to doe that then you him safely convey or cause to be safely conveyed to his Majesties gaole in the said County there to remaine untill he shall willingly doe the same so that he may be before the Iustices of the peace of our soveraigne Lord within the said County at the next generall Sessions of the peace to be holden for the said County there to answere to our said soveraigne Lord for his contempt in this behalfe and see that you certifie your doings in the premisses to the said Iustices at the said Sessions bringing then thither this precept with you Given at dale under my seale the fourth day of c The forme of the Recog of the peace to be taken upon the said writ of Supplicavit Memorandum quod quarto die Iulij anno Regni Domini nostri Caroli Dei gratia Angliae Scotiae Franciae et Hiberniae Regis fidei defensoris c. Com. Dublin A.B. de E. in Com. Dublin predict Yeoman in propriae persona sua virtute brevis dicti Domini Regis de Supplicavit apud S. in Com. pred venit coram me I.L. Milite uno Iusticiar dicti Domini Regis ad pacem in dicto Com. Dublin conservandam assignatorum et assumpsit pro seipso sub poena viginti librarum et H.I. de L. in Com. predicto Yeoman et I.F. de M. in eodem Com. husbandman tunc et ibidem in proprijs personis suis similitèr vener coram me et manuceperunt pro predicto A.B. viz. quilibet eorum separatim sub poena decem librarum quod idem A.B. custodiet pacem dicti Domini Regis erga ipsum Dom. Regem et cunctum populum suum et precipuè versus C.D. de E. Yeoman et quod damnum vel malum aliquod corporale aut gravamen prefato C.D. aut alicui de populo dicti Domini Regis quod in laesionem aut perturbationem pacis ipsius Domini Regis cedere valeat quovismodo non faciet nec fieri procurabit or otherwise as the writ of supplicavit shall require quam quidem summam viginti librarum pred A.B. et quilibet manucaptorum predictorum pred seperales summas decem librarum separatìm recognover se debere dicto Dom. Regi de terris et tenementis bonis catallis quorumlibet et cujuslibet eorum ad opus dicti Domini Regis haeredum et successorum suorum fieri et levari ad quorumcunque manus devenerint si contigerit ipsum A.B. premissa vel eorum aliquod in aliquo infringere et inde legitimo modo convinci In cujus rei testimonium ego pred I.L. sigill meum apposui datum c. And this may be done also by a single Recognisance in latine with a Condition added or endorsed in english in manner following Memorandum quod _____ die c. Anno Regni c. virtute brevis Domini Regis huic Recognitioni annexat apud T. in Com. Dublin Com. Dublin predict venerunt coram me Henrico Martin Ar. uno Iusticiar dicti Dom. Regis ad pacem in Com. predicto conservandam assignat T.H. de K. in Com. predict Yeoman et I.S. de Lan eodem Com. husbandman et manuceperunt et uterque eorum separatim manucepit sub poena decem librarum legalis monetae Angliae pro W.S. de H. in Com. pred Taylor et pred W.S. assumpsit pro seipso sub poena vigint librarum consimilis monetae Angliae quas quidem seperales summas recognoverunt et quilibet eorum ut predicitur recognovit se debere dicto Domino Regi de terris et tenementis bonis et Catallis suis fieri et levari ad opus dicti Domini Regis haeredum et successorum suorum si pred W.S. deficerit in performatione conditionis infrascripti The Condition of this Recognisance is such that if the above bounden I.S. shall keepe the peace of our soveraigne Lord the King towards the Kings Majestie and to all his liege people and especially towards A.B. of C. aforesaid Yeoman that then the said Recognisance to be voyd or else c. This Recognisance of the peace being thus taken by vertue of a supplicavit the Iustice of peace being in this case but a Minister and not a Iudge must make returne of the writ and a certificate of his doing therein into the Court from whence the supplicavit did issue in this forme following viz. upon the backe of the writ of supplicavit he must write thus Executio istius brevis patet in quadam scedula eidem brevi annexa and then subscribe his name to it The schedule may be thus which must be fixt to the writ of supplicavit Ego T.F. miles unus custodu pacis Dom. Regis in Com. Dublin certifico in Cancellariam dicti Domini Regis me virtute istius brevis mihi per A.B. in eodem brevi nominat primo deliberat personaliter coram me _____ die c. apud Dale in Com. pred venire fecisse T.R. in dicto brevi nominat ac eundem T. ad sufficientem securitatem et manucaptores pacis inveniendam secundùm formam dicti brevis viz. ad pacem Domini Regis erga ipsum Dom. Regem et cunctum populum suum et precipuè c. as the writ shall appoint compulisse In cujus rei testimonium huic presenti certificationi sigillum meum apposui datum apud D. in Com. pred _____ die c. Anno Regni dicti Dom. Regis c. The like certificate may be made into the Kings Bench if the writ of supplicavit issue out of that Court mutatis mutandis And if a Certiorari be directed out of the Chancery to the Iustice of peace for removing this Recog because it was not sent up together with the certificate as there is no necessity it should be then that writ must be returned in this manner viz Upon the backe of the writ the Iustice of peace must write thus Virtute istius brevis Ego P.H. unus custodum pacis Domini Regis in Com. Dublin tenorem securitatis pacis unde infra fit mentio dicto Domino Regi in Cancellariam suam sub sigillo meo distinctè et apertè mitto prout patet in schedula huic brevi consuta And the Iustice must hereunto subscribe his name The schedule must be thus Memorandum quod vicessimo die Iulij c.
reciting the whole Recog de verbo in verbum and then conclude in cujus rei testimonium ego predictus P.H. sigillum meum apposui dat c. The like may be made into the Kings Bench mutatis mutandis if the writ issue out of that Court. If the supplicavit be against diverse and the party that prosecuteth the same will release his prayer of the peace against one of them then the release ought to be certified for him and the writ must be served for the rest or else non est inventus may be certified for him that is released and the writ served for the rest The forme of the Release may be thus Memorandum quod primo die Augusti Com. Dublin c. C.D. de E. in brevi de supplicavit huic Relaxationi annex nominat venit coram me P. H. un Iusticiar ad pacem in Com. predict conservand c. et gratis remisit et relaxavit quantum in se est securitat per ipsum coram me versus supra nominatum C.D. petitam In cujus rei testimonium ego prefatus P.H. sigillum meum apposui datum c. The forme of a supersedeas by a Iustice of peace upon a writ of supplicavit against an Infant A.B. armiger unus Iusticiar Dom. Regis Caroli Dei gratia c. ad pacem in Com. Dublin Com. Dublin predict conservandam assignatorum vicecom ejusdem Com. ac omnibus et singulis Ballivis Constabularijs ceterisque dicti Domini Regis Ministris tam infra libertat quam extra in Com. predict salut Sciatis quod breve dicti Domini Regis recepi in haec verba Iacobus c. reciting here all the writ verbatim et quia I.B. de c. I.S. de c. et prefat C.A. coram me prefato A.B. personaliter comparuer et predictus I.B. et I.S. manuceperunt pro predicto C.A. qui infra aetatem 21. annorum existit viz. quilibet manucaptor predictor in 20. l. quas recognover se deber dicto Domino Regi ac concess de terris et tenementis bonis et catallis suis ad opus dicti Domini regis levand viz. quod predict C.A. damnum vel malum aliquod alicui de populo dicti Domini Regis de corpor suis vel de incendio domor suarum non faciet nec fieri procurabit quevismodo ideo ex parte dicti Domini regis vobis et cuilibet vestrum mando quod de coarctan aut attachand dictum C.A. ad inveniendam aliquam securitatem pacis per ipsum observand erga dict Dom. Regem et cunctum populum suum seu alicui de eodem populo suo coram vobis seu aliquo vestrum inveniend supersed seu supersed fac omninò si ipsum C.A. occasione predict non alia ceperitis seu capi mandaveritis in prisona ipsius Dom. regis sub custodia vestra detineritis tunc ipsum à prisona in qua detinetur sine dilatione deliber fac Teste me praefat A.B. 20. die Novembris Anno regni dicti Dom. regis c. A Iustice of Peace may also by vertue of his office and as he is a Iudge command this surety to be found and this hee may doe either of his owne motion and discretion or else at the request and prayer of another When it is at the Prayer of another he may make out his precept or warrant in this forme following Charles by the grace of God King of England Scotland France and Ireland Defendor of the Faith c. To our Sheriffe of the County of Dublin Com. Dublin the Constable of the Barony of Castleknock and to all and singular our Bailiffes and other our ministers in the said County aswell within liberties as without greeting Forasmuch as A. B. of Kilmainham yeoman hath personally come before George Bring of the said Towne Esquire one of our Iustices of the peace within the said County and hath taken a corporall oath that hee is afraid that one C.D. of Killmainham in the said County yeoman will beat maime wound or kill him or burne his houses and hath therewithall prayed surety of the peace against the said C. D. Therfore we command and charge you joyntly and severally that immediately upon the receipt hereof you cause the said C.D. to come before the said G.B. or some other of our Iustices of the said County to finde sufficient sureties and mainprise aswell for his appearance at the next quarter Sessions of our peace to be holden in the said County as also for our peace to be kept towards us and all our liege people and chiefly towards the said A.B. that is to say that he the said C.D. shall not doe nor by any meanes procure or cause to be done any of the said evils to any of our said people and especially to the said A. B. And if the said C.D. shall refuse thus doe that then immediately without expecting any further warrant you him safely convey or cause to be conveyed to our common gaole in the said County there to remaine untill he shall willingly doe the same so that he may bee before our said Iustices at the said next generall Sessions of the peace to be holden in the County aforesaid then and there to answere unto us for his contempt in this behalfe And see that you certifie your doing in the premisses to our said Iustices at the said Sessions bringing then thither this precept with you witnesse the said G.B. at Killmainham aforesaid the fourth day of August c. The like warrant may be in the name of the Iustice of peace himselfe in this forme following viz. A. B. Knight Com. Dublin one of the Iustices of the peace of our Soveraigne Lord the King within the County of Dublin To the Sheriffe of the said County To the Constable of the Barony of C. and all other Constables Bailiffes and other his Majesties officers in the said County aswell within liberties as without greeting Forasmuch as B.A. the wife of W.A. of D. in the said County Labourer hath required suretie of the peace against T.B. of the said Towne of D. Butcher and withall hath taken her corporall oath before me that shee requireth the same not for any private malice hatred or evill will but simply that she is afraid of her life or the hurting or mayming of her body or the burning of her houses These are therefore to will and require you and in his Majesties name to charge and command you that immediately upon the sight hereof you or one of you require the said T.B. to come before me or some other of the Kings Majesties Iustices within the said County to finde sufficient sureties aswell for the appearance at the next generall quarter Sessions of the peace to be holden for the said County as also that the said T.B. shall in the meanetime keepe the Kings Majesties peace aswell towards his said Majestie as towards all his liege people and especially
towards the said B.A. and if he shall refuse so to doe that then immediately you doe arrest and convey the said T.B. or cause him to be conveyed to his Majesties gaole of the said County there to remaine untill he shall willingly doe the same and see that you certifie your doings in the premisses to the Iustices at the said Sessions and have you there this warrant dated at c. The forme of the Recognisance of the peace may be thus Memorand quod die Anno regni Domini nostri Caroli Dei gratiâ c. R. P. de E. in Com. Dublin praedict Yeoman Com. Dublin in propria persona sua apud F. in Com. praedict venit coram me Rogero Thorneton Armigero uno Iusticiar dicti Domini Regis ad pacem in dicto Comitat. conservandam assignat assumpsit pro scipso sub poena viginti librarum Et H.I. de L. in Com. praedicto Yeoman M.N. de c. Husbandmen tunc ibidem in propriis personis suis similiter venerunt manuceperunt pro predicto R.P. viz. quilibet corum separatìm sub poena decem librarum quod idem R.P. personaliter comperebit coram Iusticiariis dicti Domini Regis ad pacem ad proximam generalem Sessionem pacis in Com. predict tenend ad faciend recipiendum quod ei per Curiam tunc ibidem injungetur quod ipse interim pacem dicti Domini regis custodiet erga ipsum Dominum regem cunctum populum suum praecipuè versus M.N. de D. praedict Yeoman quod damnum vel malum aliquod corporale aut gravamen praesato M.N. aut alicui de populo dicti Domini Regis quod in laesionem aut perturbationem pacis ipsius Domini regis seu praefati M. cedere valeat quovismodi non faciet nec fieri procurabit quam quidem summam viginti librarum praedictus R.P. quilibet manucaptorum praedictorum predictas seperales summas decem librarum recognoverunt se debere dicto Domino Regi de terris tenementis bonis Catallis suis quorumlibet cujuslibet eorum ad opus dicti Domini Regis haeredum successorum suorum fieri levari ad quorumcunque manus devenerint si contigerit ipsum R.P. praemissa vel eorum aliquod in aliquo infringere in de legitimo modo convinci Datum apud c. Or the like may be upon a single Recognisance with a Condition in forme following Memorand quod die Anno Regni Domini nostri Caroli Dei gratia c. venerunt coram me M.D. uno Iusticiar c. assignat T.H. de W. in praedicto Com. Dublin Com. Dublin Yeoman I.S. de ijsdem villa Comitatu Husbandman manuceperunt uterque eorum separatìm manucepit sub poena quinque librarum legalis monetae Angliae pro W.S. de W. praedict Taylor Et praedictus W.S. assumpsit pro seipso sub poena decem librarum consimilis monetae Angliae quas quidem seperales summas recognoverunt quilibet eorum ut predicitur recognovit se debere dicto Domino Regi de terris tenementis bonis Catallis suis fieri levari si predictus W.S. deficerit in performatione conditionis subsequentis The Condition of this Recognisance is such that if the above bounden W.S. shall personally appeare before the Iustices of our said Soveraigne Lord the King at the next generall Sessions of the peace to be holden in the said County of Dublin to doe and receive that which by the Court shall be then and there enjoyned him and in the meanetime doe keepe the peace of our said Soveraigne Lord the King towards the Kings Majestie and all his liege people and especially towards A. B. of C. in the County aforesaid Yeoman That then the said Recognisance to be voide or else c. The forme of a Supersedeas for the peace may be thus Com. Dublin A. B. Esquire one of the Iustices of peace of our Soveraigne Lord the Kings Majestie within the County of Dublin To the Sheriffe Bailiffes Constables and other the faithfull ministers and subjects of our said Soveraigne Lord within the said County and to every of them sendeth greeting Forasmuch as A.B. of c. Yeoman hath personally come before me at c. and hath found sufficient surety that is to say C.D. and E.F. c. Yeomen The supersedeas is good though it name neither the sureties nor the summes either of which hath undertaken for the said A.B. under the paine of Twenty pounds and the said A.B. hath undertaken for himselfe under the paine of forty pounds that he the said A.B. shall well and truely keepe the peace towards our said Soveraigne Lord and all his liege people and especially towards G.H. of c. Yeoman And also that he shall personally appeare before the Iustices of the peace of our said Soveraigne Lord at the next generall Sessions of the peace to be holden for the said County of Dublin Therefore on the behalfe of our said Soveraigne Lord I command you and every of you that you utterly forbeare and surcease to arrest take imprison or otherwise by any meanes for the said occasion to molest the said A.B. and if you have for the said occasion and for none other taken or imprisoned him that then you do cause him to be delivered and set at liberty without further delay Given at D. under my seale this last of Iuly c. The forme of the precept or warrant for the good behaviour may be thus Concerning the good behaviour I. S. Knight one of the Iustices of peace of our Soveraigne Lord the Kings Majestie within the County of Dublin To the Sheriffe of the said County and to all high Constables petty Constables and to all and singular Bailiffes and other his Majesties Officers and Ministers aswell within liberties as without in the 〈◊〉 County and to every of them greeting Forasmuch as A.B. 〈◊〉 in the said County labourer is not of good name or fame nor of honest conversation but an evill doer a Riotter Barretor and perturber of the peace of our said soveraigne Lord I command you and every of you that immediately upon sight hereof you cause the said A.B. to come before me or some other of my fellow Iustices to finde sufficient surety and mainprise aswell for his good abearing towards our said soveraigne Lord and all his liege people untill the next generall Sessions of the peace to be holden in the said County as also for his apparance then and there and if he shall refuse so to doe that then immediately without expecting any further warrant you him safely convey or cause to be safely conveyed to his Majesties gaole in the said County thereto remaine untill he shall willingly doe the same so that he may be before his Majesties Iustices at the said next generall Sessions of the peace to be holden in the said County
sorts viz. Offences 1. Of force and violence 2. Of Fraud and deceit 3. Of Omissions in Officers others and fourthly other Abuses and enormities tending to the prejudice of the common-wealth 4. The eighth Chapter treateth of the substance certaintie and legall formes that ought to be in Indictments and Presentments and the difference betweene the one and the other 5. The ninth Chapter declareth the impediments of proceeding before the Iustices of Peace 6. The tenth Chapter setteth forth the sundry sorts of processe that are to issue upon Indictments and Presentments 7. The 11 12 13 and 14. Chapters declare the severall wayes of hearing and Tryall viz. Vpon Confession Discretion Examination Traverse 8. The 15. Chapter setteth forth the manner of the Tryall of felons upon Arraignement and what helps the prisoners may have to alledge or plead for their acquittall or delay of Tryall Iudgement or Execution 9. The 16. Chapter declareth the severall Iudgements that are to be given upon the offendors for the severall offences aforesaid 10. The 17. Chapter setteth forth the processe which are to issue for the Kings Fyne 11. The 18. Chapter setteth forth the executory processe which are to issue for the parties that prosecute and for restitution of the goods stolne or satisfaction for them 12. The 19. Chapter declareth the manner and forme of certifying the Records of the Sessions into other Courts or unto other officers 13. The 20. Chapter sheweth what matters are to be done and handled in the Quarter-Sessions only or in some one or more of them and at what time they are to be holden 14. The 21. Chapter setteth forth the speciall Sessions of the peace and the matters to be handled therein 15. The 22. Chapter declareth the Rewards and Punishments that are due to the Iustices of Peace The Heads of the severall Chapters and the particular matters contained in each Chapter follow in order as they are set forth in the Booke viz. Ca. 1. The description of the generall Sessions of the peace 1. It is an Assemblie of two Iustices of the peace or more for the executing their generall authoritie S. 2. 2. The times when it is to be holden S. 3. 3. Three things to be done in the Sessions S. 4. Ca. 2. Who shall appoint the sessions and how and when 1. By whom it is to be appointed S. 5. 2. The manner how S. 2 3 4. 3. The wayes whereby the Iustices are to take knowledge of the Causes there to be handled S. 1. 4. By whom it is to be holden S. 6. 5. The place where the Sessions may be holden S. 7 8. 1. The Iustices of peace and their authorities S. 1 2 3. 2. The Custos Rotulorum and his authoritie S. 4 5 6 7. 3. The Records of the Sessions S. 8 9 10 11. Ca. 3. What persons ought to appeare at the sessions and the priviledge of the Sessions 4. The Clerke of the peace and his office S. 13 14 15. 5. The Coroners and their duties S. 16. 6. The Sheriffe and the dutie of his place S. 17. 7. The Bailiffes of Franchises and Constables S. 18 19. 8. Iurors and how they ought to be qualified S. 20 21 22 23 24 25 26 27 28 29. 9. The number of the Iurors and how they ought to bee kept S. 30 31. 10. The punishment of the Iurors for concealement S. 32 33 34 35. 11. The priviledge of the Sessions S. 36. Ca. 4. Of the Articles that are to be given in Charge in the generall Sessions Offences of Force 1. The ancient order of giving the Charge S. 1 2 3 4 5 6. 2. The points of the Charge S. 7 8. 3. Of force as Riots Routs c. S. 9. 4. Of Maihems 5. Of all Assaults Batteries and other Trespasses whatsoever against the body goods or other things of any pag. 10. S. 2 3. 6. Rescuing of distresses pag. 11. S. 4. 7. Breaking of Pounds pag. 11. S. 5. Ca. 5. Offences of Fraud and deceit 1. The description of Extortion S. 1. 2. Extortion in Landlords S. 2. 3. In Escheators S. 3. 4. In Sheriffes S. 4 5 6. 5. In Coroners S. 7. Extortion 6. In ordinaries and their Clerkes S. 8. 7. In Clerkes of the Peace S. 9. Embracery and Imbraceours 8. In Clerkes of the Market S. 10. 9. In Maiors and their Officers c. S. 11. 10. In Purveyors S. 12. 11. Iurors that shall take bribes S. 13. Cousinage 12. By false tokens c. S. 14. 13. Packing of Fish deceitfully S. 15. 14. By Cowpers S. 16. 15. By Millers S. 17. Maintenance and Champerty 16. By buying pretended Titles S. 18. 17. By maintaining of suits or quarrels S. 19 20. Subornation and Perjurie 18. By procuring any to give false testimony S. 21. 19. By giving false testimony S. 22. Forestalling Regrating and ingrossing 20. By buying of Corne or other things comming to the Market S. 23. 21. By buying of Corne or other victuall in the Market and selling the same in the same Market c. S. 24. 22. By ingrossing of Corne and other dead victuals S. 25. False weights and measures 23. Vsing of false weights and measures Sect. 26 27. Victualers 24. By selling corrupt victuals S. 28. 25. By selling at excessive rates S. 29. Artificers 26. By working deceitfully S. 30 31. Conspiracies 27. By Artificers Labourers and servants S. 34. 28. By false Conspiracies to take away ones life S. 35. Forgery 29. By forging of false deeds c. S. 36. Ca. 6. Offences of Omission 1. Omissions in Constables S. 1 2 3 4 5 6 7. 2. Omissions in others S. 7 8 9 10. 3. Neglect of Towneships S. 11 12. 4. Neglect of Servants Labourers c. S. 13 14. 5. Neglect of repairing Bridges c. S. 15. 6. Neglect of Constables and Church-wardens for not electing Surveyors for the high-wayes S. 16. 7. The neglect of the Surveyors S. 17. 8. The neglect of the parishioners for not working on the high-wayes S. 18 19. 9. The neglect of all Officers and Ministers of Iustice for not executing their offices S. 20. 10. The neglect of repairing to the Church c. S. 21. 11. The neglect of such as shall be required by the Iustices of Peace or Sheriffes to assist them to arrest offendors in Riots c. and other malefactors S. 22. 1. Prophaning the Sabbath S. 1 2. 2. Depraving the Booke of Common Prayer or disturbing the Minister S. 3 4. 3. Cursing and swearing S. 5. 4. Common Drunkards and common Adulterers S. 6 7. 5. Keepers of Bawdy-houses and the Frequenters of them S. 8. 6. Common gaming houses and common gamesters S. 9. 7. Alehouse-keepers and Taverners that keepe disorder S. 10. 8. Destroying of Salmon Frye S. 11. Ca. 7. Other abuses tending to the dishonour of God and prejudice to the Commonwealth 9. The taking away of young women S. 12. 10. Plowing by the taile S. 13. 11. Burning of Corne in the Straw S. 14. 12. Coshering and idle wandring
without a Certiorari S. 1 2 3. 2. When the Iustices of peace are to certifie without Certiorari S. 3 4 5. 3. Of the force of the Certiorari S. 6 7 8. Ca. 20. Matters by severall statutes especially appointed to bee done and executed in the Quarter-sessions 1. What Sessions is and ought to be called a Quarter-Sessions S. 1 2 3. 2. At what time the Quarter-Sessions ought to be holden S. 4 5 6 7 8. 3. What things are appropriat to the quarter Sessions only S. 9 10 11 12 13 14 15 16 17 18 19 20 21. Ca. 21. Of the speciall Sessions of the peace 1. How many Iustices are requisite for the holding of it and their authoritie to hold the same S. 1. 2. The occasions for holding the same S. 2. 3. What matters may be handled therein S. 2 3. 4. The forme of the precept for summoning the same S. 4. Ca. 22. Of Rewards Punishments due to the Iustices of Peace in respect of their Sessions 1. How long the Iustices are to continue the holding of the Quarter-Sessions and what wages they are to have for the same S. 1 2. 2. How many of the Iustices shall have wages and who shall be excluded S. 3 4 5 6. 3. In what Cases the Iustices shall receive no punishment for errours committed by them S. 7 10. 4. In what Cases the Iustices are to be punished for their misdoings S. 8 9. THE SECOND BOOKE The Description of the generall Sessions of the Iustices of Peace CHAP. I. 1 I Have so largely in the former booke set forth the power and authority of one or more Iustices of peace out of the generall Sessions that I shall not need to be long in setting forth their power and authority and the formes of their proceedings in their generall Sessions 2. The generall Sessions of the peace is an assembly or a meeting of two or more Iustices of peace whereof one must be of the Quorum for the executing of their generall authority 3. This generall Sessions of the peace is grounded chiefely upon the words of the second Assignavimus in the Commission Lamb. li. 4. fo 379. the which being vos et quoslibet duos vel plures vestrum quorum c. doe very necessarily require the presence of one of the Quorum and these generall Sessions by the statute of 2. H. 5. ca. 4. are to be holden at foure times in the yeare viz. in the first weeke after the feast of Saint Michael the Archangell the first weeke after the Epiphany the first weeke after the Easter weeke and the first weeke after the translation of Saint Thomas the Martyr which is the third of Iuly or oftner if need require 4. And these three things namely to enquire Lamb. li. 4. fo 379. heare and determine doe in effect comprehend whatsoever belongeth to the generall Sessions so that every thing whereof I shall hereafter intreat will concerne either the information of the Iustices by enquiry or otherwise the hearing and triall of the cause it selfe or the judgement and execution which is the determining given and done upon it Who shall appoint the Sessions of the peace and how and where CHAP. 2. 1. THe Iustices of the peace doe at their Sessions take knowledge of causes within their Iurisdiction either by the oath of Enquirors Lambard li. 4. fo 380. or by the Presentment or Declaration of other men and this inquiry is first prepared by the apparance of the officers and Countrey and by the Articles given in charge and then performed by the presentment or indictment of them that had the charge to make it 2. Now albeit that these Sessions be commonly and most orderly summoned by a precept in writing yet is it not altogether of necessity for the making of a lawfull Sessions to have it so for if competent Iustices of the peace doe get men to serve and thereupon doe hold a Session without any precept before directed Lamb. li. 4. fo 380. all presentments made before them by twelve lawfull men shall be of force in Law but no man shall loose any thing for his default of apparance there because no man had notice of their sitting Lamb. li. 4. fo 381. 3. Neverthelesse because the common and more allowable maner is to call the officers and County together for this service by a precept to the Sheriffe wherein both the disposition of the Iust is notified for the holding of a Session and the service and attendance of those others is commanded to be thereat It will be needfull to set forth the forme thereof which may be thus Precept to summon the Sessions of the peace Lamb. li. 4. fo 381. 4. Edwardus Hoby Miles Radulphus Hayman Armiger duo Iusticiar domini reg ad pacem in Comitatu Dublin conservand necnon ad diversa felonias transgressiones alia malefacta in dicto Comitat. perpetrata audiendum terminandum assignatorum vicecomiti ejusdem comitatus salutem Ex parte dicti Domini Regis tibi praecipimus quod non omittas propter aliquam libertatem in balliva tua quin eam ingrediaris venire facias coram nobis vel sociis nostris Iusticiariis pacis c. tali die c. prox futuro apud Killmainham in Comitatu predicto tam 24. probos legales homines de qualibet Baronia in balliva tua quam 24. milites alios probos legales homines de corpore comitatus tui tam infra libertates quam extra quorum quilibet habeat 40. s. redditus terrarum tenementorum liber per ann ad minùs ad inquirendum tunc ibidem super hiis quae ex parte dicti domini Regis eis injungentur scire facias etiam omnibus Coronatoribus Comitatus tui Seneschallis Constabulariis Subconstabulariis Ballivis libertatum infra baronias libertates predict quod sint tunc ibi ad faciendum perimplendum ea quae ratione officiorum suorum sunt facienda proclamari praeterea facias per totam ballivam tuam in locis idoneis predictam sessionem pacis ad diem locum predictum fore tenend Et tu ipse tunc sis ibidem ad faciend exercend ea quae ad officium tuum pertinent Et habeas ibi tunc tam nomina Iuratorum Coronatorum Seneschallorum Constabulariorum Subconstabulariorum Ballivorum pred quà m hoc preceptum Datum sub sigillis nostris apud S. in Com. predict die Martij Anno Regni dicti Domini nostri Regis Caroli dei gratia c. 5. This precept may be made as here it is by any two Iustices The number of the Iustices of the peace so that the one of them be of the Quorum for two such may hold a Session of the peace as it doth plainely appeare by the Commission Lamb. li. 4. fo 382. and therefore as Master Marrow saith it sufficeth not to have it run under the name of the
Lamb. li. 4. pag. 397. 27. â—amb li. 4. pag. 398. Now although some of the Iurors of this enquiry be of affinity or consanguinity with any party grieved that procureth the Indictment yet that hindreth not their presentment howbeit it is no good discretion for the Iustices if they know it to suffer any such to be empanelled if there be a sufficient number of others to be had 28. But the men be not truely Iurors till they be sworne How they of the Iury must be sworne and ordred Lamb. ibid. as their name pretendeth and otherwise their presentment is utterly voyd and if it should by any over sight happen that they or some of them were not sworne at all yet if the Record make mention that they be sworne their presentment is of force enough for the Record may not be gainesaid 29. And the Iustices may upon cause remove a Iuror The number of Iurors after he is sworne 20. H. 6. 5. againe if after the swearing of a Iury their service be put of till the next day upon any urgent occasion then may they be sworne of new as if they had not before appeared 7. H. 4. 38. 7. H. 4. fo 38. 30. Each Iury ought to containe twelve in number at the least Lamb. li. 4. pag. 400. and if there be more it shall not be amisse but if twelve of them doe agree the gainesaying of the residue cannot hinder the presentment yea the Law was in the time of King Etheldred that in a Iury of twelve the agreement of eight should stand and make a good verdict but the Law is otherwise used and taken at this day 31. The Iustices ought not to commit these Iurors of enquiry to any keeper nor to keepe them without meat and drinke Lamb. ibid. nor to carry them out of the Towne and yet they may adjourne them to any other place in the same County to give their verdict 32. If these Iurors doe wilfully conceale offences Concealement presentable and that be complained of by Bill Lamb. ibid. then may the Iustices choose an enquest of persons whereof every one may dispend 40 s by the yeare to enquire of their concealements and if any such be found every one of the first enquest shall be amerced in full Sessions by the discretion of the same Iustices 3. H. 7. ca. 1. 33. And because the Iurors of those dayes were yet wilfull in their concealements it was provided within eight yeares after that the Iustices of peace should determine causes upon information without any such presentment but that ordinance endured not long 34. Neverthelesse it is to be wished that these and other enquirors would more carefully employ themselves in that service which is the chiefe and almost the onely ground whereupon the Iustices are to worke considering that rarely any other then common promotors that hunt for private gaine and are not led by zeale of Iustice will be intreated to informe against the offendors 35. And this shall they the better doe if they will be directed by these few Counsels following viz. First that they come prepared to further the good of their country and not to save their issues or to serve for fashion sake then that they give credit to credible persons sworne to informe them Thirdly that they measure their doings by the right line of Law and not by the crooked coard of a pretended equity and counterfeit conscience Furthermore that they hold not a Court of common pleas by admitting proofe of witnesses against the King as knowing that they are not to try an issue but to offer an Information the truth or falsity whereof shall be afterward tryed by another Iury upon which triall the party indicted shall be heard to speake for himselfe To keepe councell Finally that they discover not their owne doings for it is usually a part of their oath that they shall keepe the Kings Councell and their fellowes and we read in Fitz. tit Coron 207. and 272. that to endict a man of felony and then to shew abroad to others what they have done therein hath beene taken for felony howbeit that offence is now holden to be fineable only 36. And now as all these owe their service at the Sessions Priviledge of the Sessions either by reason of their office or by vertue of the summons so all others also may freely attend there if not for any thing that specially concerneth themselves Lamb. li. 4. pag. 402. yet for the advancement of publicke Iustice and for the service of the King and to this end they are invited thither as I may say by a certaine freedome of accesse and by protection from common arrests a thing that is incident to each Court of Record and without which Iustice should be greatly hindred so that if a man come voluntarily to the Sessions with the minde either to preferre any bill of indictment or to give Information against any other or to tender a fyne upon an Indictment touching himselfe or doe come compelled to make apparance for to save his bond and be arrested by the Sheriffe upon common and originall processe in his comming thither or during his tarrying there it seemeth that upon examination of the matter upon his oath he shall be dismissed thereof by the priviledge of this Court even as is used in the higher Courts of Iustice Of the Articles that are to be given in charge at the Sessions of the peace CHAP. 4. 1. IT was the ancient manner that twise in the yeare at the Sheriffes Turne which was sometime a Court of great authority and called Shiremoote the Bishop of the Diocesse and the Alderman or Earle of the shire should be present the one to informe the people in the Lawes of God and the other to instruct them in the Lawes of the land as appeareth by Master Lambert li. 4. pag. 404. Lamb. li. 4. pag. 404. 2. And it were to be wished that as there is commonly at every Assize a Sermon utred by some learned man so also the like might be at each generall Sessions of the peace for seeing that the Lawes of men must be obeyed for God it doth of necessity ensue that he which will seeke to have man obeyed rightly must first cause God to be preached truely 3. The Iustice of peace saith master Fitz. for their parts be bound to informe the people and no doubt the charge is given aswell to instruct the ignorant least they offend unawares as to enquire of those that have already fallen into danger by offence and thereof it is that many statutes doe expressely command that they shal be openly read or declared at the Sessions as you shall see in place fit for it 4. But the manner of giving the charge and receiving the verdict at this day differeth from that which the Iustices in Eyre The ancient order of giving the charge in Eyre were wont to use for you may
finium amerciamentorum forisfactorum ad generalem Sessionem pacis tentam apud Trym c. Coram c. For the whole forme of the making whereof there is full direction given to all Clerkes of Estreates by the statute 7. H. 4. cap. 3. whereunto I referre them 26. Howbeit I doe not thinke Iu. of the P. ought to have caâ—e of the Estreats that in our case this duty of estreating is so peculiar to the Clerke of the peace but that the Iu. of P. themselves ought also to have a common and carefull eye unto it For if you remember it is both specially provided for in the Commission and also an Article of their oath to see unto the faithfull entry and certificate of the issues fynes forfeits and amerciaments that doe happen before them and therefore it were well done in my opinion if the Iu. would by turne or otherwise both take knowledge of things that have passed before them and also take order that the same be certified accordingly lest otherwise it lye altogether in the power of the Clerke of the peace to save or slay as one said the Sparrow that he holdeth closed in his hands Of executory processe and execution for the parties that sun or for other persons and of the restitution of goods stollen CHAP. 18. 1. ALbeit that the Iustices of the peace have this power to make warrants for levying the amerciaments fynes and other forfeits that grow unto the King by their service yet is it commonly thought that they may not but in some cases only and that by speciall words of the statutes make execution for them that will sue of such part of the forfeiture as the statutes doe appoint for them 2. For most commonly the party that will sue is by the statutes put to his action at the common Law for recovery of that which he is to have growing upon conviction of any offence contrary to the statutes for which he is to commence his action or bill of debt But where they have power either by their Commission or by any statute to heare determine any cause at the prosecution of a private person I doe not see how the cause can well be said to be fully determined till the complainant hath had the effect of his suite which cannot be without execution Liveries 3. For the moity growing to the Informer upon the statute of Liveries 8. Ed. 4. cap. 2. they shall make such execution as ought to be had in recovery of debt or Trespasse High wayes 4. And the Estreats made by the Clerke of the peace of forfeits for default of amending high wayes are a sufficient warrant to the Constables to levye the same by distresses to the use of the Church-wardens of the Parish where the default was 11. Iacobi ca. 7. in Ireland toward the amendment of the said wayes Perjurie 5. So upon the statute of perjurie made in 28. El. cap. 1. in Ireland And peradventure search will afford some more examples but these may suffice for my desire which is not in this or any the like to recount all but to make good proofe of that which I offer and propound the rather that the Iustices and Clerke of the peace may thereby take occasion to looke upon the statute whensoever Execution shall be prayed for any cause depending before them upon any statute whatsoever Restitution of goods stollen 6. And because the awarding of restitution of goods stollen to the owner or partie robbed after the attainder of a felon by reason of the evidence given by them is a manner of execution for the party 28. H. 8. ca. 10. 4. Ma. cap. 6. in Ireland I may without violence bring hither the effect of the statutes made upon that point and lying within the authority of Iustices of the peace which standeth thus if any felon of goods money or chattels taken from any of the Kings subjects be indicted arraigned and found guilty thereof or otherwise attainted by reason of evidence given by the party robbed or the owner of the said goods money or chattels or by any other by their procurement then shall such party or owner be restored thereunto and the Iustices before whom such finding guilty or such attainder shall be shall have power to award writs of Restitution of the goods stolne in specie if they may be found and if they cannot be found or that the property be altered then they may award Restitution of the felons goods Of certifying the Records of the Sessions of the peace to other Courts or officers CHAP. 19. 1. AS I have already manifested that Iustices of the peace have not sufficient power of themselves to heare and determine all causes whereof they have in their Sessions authority to enquire So also there be sundry things determinable before them there which neverthelesse may in some respects be brought to a second handling either to the end to reverse that which they have done or that their doings may be an evidence and testimony in the tryall of causes before other Iudges 2. And because this cannot in any sort be performed without the presence of those former Records or the transcripts thereof which began with the Iustices of the peace it is therefore requisite that they doe make certificate of them unto those other Courts or officers that shall use the same 3. But as this certificate ought in some cases to be made by the Iustices of peace or their Clerke without any writ of Certiorari therefore directed and in some other cases they may spare to certifie untill that writ or some other commandement be brought unto them So also sometimes they are to certâ—fie and send up only a Tenor or Transcript as I have formerly said of the Record before them and sometimes the very Record it selfe must be conveyed from them 4. But in cases where Iustices of the peace have power to receive Endictments and no power to proceed any further upon them as in cases of Treason and some others which I have formerly declared there they ought to send up and certifie the Endictments themselves into the Kings Bench and that of duty without any Certiorari commanding the same because having none authority to heare and try the offences the Records thereof shall be unprofitable before them and therefore they can have no just cause to retaine them 5. And so if a man that is bound to keepe the peace and to appeare at the next Sessions of the peace doe make default of apparance the Recognisance it selfe together with the Record of that default must be estreated into the Exchequer that execution upon the Recognisance may be had there 3. H. 7. ca. 1. and so ought it if it be presented that the party hath forfeited his Recognisance by breach of the peace And likewise if it be presented before them that the chattels of a man attainted of felony be in the hands of another For in
HONI SOIT QVI MAL Y PENSE DIEV ET MON DROIT A IVSTICE OF PEACE for IRELAND consisting of two Bookes The first declaring th'exercise of that office by one or more Iustices of Peace out of Sessions The second setting forth the forme of proceeding in Sessions and the matters to be enquired of and handled therein Composed by Sir RICHARD BOLTON Knight Chief Baron of his Majesties Court of Exchequer in Ireland Whereunto are added many Presidents of Indictments of Treasons Felonies Misprisions Praemunires and Finable offences of Force Fraud Omission and other misdemeanors of severall sorts more then ever heretofore have beene published in print PSAL. 7. vers 9. Oh let the wickednesse of the wicked come to an end but establish the just for the righteous God trieth the hearts and reines DUBLIN Printed by the Society of Stationers Printers to the Kings most excellent Majestie 1638. BEATI PACIFICI C R SVM GVILHELMI BOLD DE TRE-YR-DDÔL IN COMITATV ANGLESEY ARMIGERI EX DONO AVTHORIS EN DIEV EST TOVT TO THE RIGHT HONORABLE THOMAS Lord Viscount WENTWORTH Baron of Wentworth-woodhouse LORD Newmarsh and Oversley Lord President of the Councell established in the North part of England Lord Lievetenant of Yorkshire One of his Majesties most most honorable Privie Councell in England and Lord Deputie generall of Ireland RIGHT HONORABLE SInce the Conquest of Ireland made by King Henry the second untill of late the Office and Authoritie of a Iustice of Peace have very little or nothing at all beene here understood or regarded but have beene altogether eclipsed by those many and often Rebellions which have beene in this Kingdome almost in all ages since that happie Conquest These Rebellions after many yeares continuance were totally repressed by that illustrious Princesse Queene Elizabeth who having finished that worke was called to another Kingdome there to enjoy an everlasting Crowne of Glory Since which time by the goodnesse of Almighty God and the most happy prudent and peaceable governement of our late Soveraigne King Iames of blessed memory and of his most Excellent Majestie that now is especially since your Lordships governement here that Eclipse is so vanished and dispersed that now the light of Iustice doth cleerely appeare and shew it selfe in all parts of Ireland and the office of a Iustice of Peace is duely regarded and his Warrant in all parts of the Kingdome obeyed So as now it will be needfull that the Iustice of Peace should well understand the duty of his place and neither exceede nor come short of the Authority given him either by Cōmission or by the statute Lawes of the Realme And albeit divers worthy and learned men in England have published many profitable Bookes concerning the Pleas of the Crowne and the Office of a Iustice of peace yet none of those will be any sufficient guide for the Iustices of peace in Ireland because the Statute lawes of England and Ireland doe in many things differ for there be many ancient Statutes made in England some whereof are in some things altered and others repealed either in part or in the whole by later Statutes which are not of force in Ireland so as those ancient Statutes as they were first enacted remaine still of force in this Kingdome and likewise there be many statutes made in Ireland aswell before 10. H. 7. as since which were never any lawes in England The consideration whereof hath incited me although by reason of mine age and other infirmities least able of all my brethren the Iudges for the helpe of the Iustices of peace here to compose this worke according to the lawes and Statutes now of force in this Kingdome which I humbly make bold to present to your Lordships view protection not doubting but as all other labours which any way tend to the advancement of Iustice the well ordering of this Common-wealth so also these poore endevours of mine to that purpose vvill easily obtaine your favourable acceptance Mine errors or mistakings I shall humbly beseech your Lordship to pardon impute them rather to my weaknesse want of abilitie and multiplicitie of other imployments then to my will and to accept of this small mite as a free-vvill offering at the hands of him who for your Lordships many noble favors will not only ever pray for your happinesse and long continuance in this place of governement but also earnestly desire to manifest his thankfulnes for the same and to be accounted Your Lordships humble and faithfull servant RI. BOLTON The Method and Contents of the first Booke conteyning the exercise of the office of one or more Iustices of Peace out of Sessions THe first booke beginneth with an Introduction which is divided into two Chapters The first whereof declareth who were and yet are Conservators of the peace at the Common law by vertue of their severall offices The second Chapter thereof setteth forth the first ordayning of Iustices of the peace the duty of their places in a generalitie the formes of the severall Commissions of the peace used in Ireland the meanes how the same may be suspended or determined the severall oathes which the Iustices of peace are to take and lastly a briefe exposition of the first Assignavimus in the Commission of the peace The rest of the first booke is divided into 36. severall Titles according to the Alphabet some of which Titles containe but one Chapter some others containe severall Chapters according to the severall sorts of the matters contained under those severall Titles The Table of the severall Titles and of the severall matters contained in every Title followeth viz. 1. Affray ca. 1. 1. The derivation of the word Affray Sect. 1. 2. What every private man may doe to pacifie an Affray Sect. 2. 3. 4. 5. 3. What a Constable may doe for pacifying an Affray and punishing the offendors S. 6. 7 8 9 10 11 12 13 14 15 21. 4. What a Iustice of peace may doe herein S. 16 17 18 19. 20. 2. Armour ca. 2. 1. Who may weare weapons or got armed and who not Sect. 1 2 3. 2. What a Iustice of peace or Sheriffe is to doe when Armour is worne unlawfully in terrorem populi Sect. 1 2 4 5. 3. What a Constable or other officer may do in such case S. 1. 5. 3. Arrest Imprisonment ca. 3. 1. What is an Arrest and Imprisonment S. 12. 44. 45. 2. By what warrant and when an Arrest may be made by word only S. 3 4 5 6 7. 3. When and in what case it must be by writing S. 8. 9. 10. 4. How and in what maner such warrant ought to be executed S. 11 12 26 27 28 29 30 31 32 33 34 35 36 37 38 39. 5. For what causes a Iustice of peace may grant such warrants S. 14 15 16 17 18 19 20. 6. Certaine causes for which the Iustices of peace ought not to grant such warrants S. 21. 22. 7. To whom such warrants may be directed S.
24 25 28. 8. What warrants of the Iustices of peace are to be executed by the Constable or other officer and what not S. 40. 9. Abusing the warrant of a Iustice of peace S. 41. 10. Causes wherein the Iustices of peace are to take Examinations and Recognisance to prosecute before they grant their warrant to apprehend the offender S. 43. 11. What persons may be arrested and imprisoned and what not S. 46 47 48 49 50 51 52 53 54. 12. Who may arrest and imprison and for what causes S. 55. 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77. 13. The places of imprisonment S. 78 79 80 81. 14. Where an officer may arrest and pursue a prisoner into another County S. 82 83 84. 15. What is to be done with a felon or Traitor when the Gaoler will not receive him S. 85. 16. How long the prisoner is to be kept in prison and in what manner S. 86 87 88 89 90. 17. What persons ought to assist when Posse comitatus is required and who may raise the same and in what cases S. 91 92 93 94 95 96 97 98 99 100 101 102 103. 18. Certaine advises to the Iustices of peace how and in what manner they ought to exercise their offices S. 104. and so forward to the end of the Chapter 4. Barretor ca. 4. 1. Who shall be said to be a Barretor S. 2 3 5. 2. The severall sorts of Barretors S. 4. and so forward to the end of the Chapter 3. The punishment to be inflicted upon Barretors S. 1. 5. Bailement and Mainprise ca. 5. 1. What it is S. 1 2. 2. Who may baile and let to mainprise S. 3 4 10. 3. What persons are baileable and what not S. 4 11 14 15 16 17 18 19. and so forward to the end of the Chapter 4. One bailed upon insufficient suretie may notwithstanding be committed untill he find better S. 5. 5. Iustices of peace may be fined for taking insufficient bayle Sect. 5. 6. The punishment for bailing of such as are not baileable S. 6 7 8 9. 6. Bridges Causeys Toghers high-wayes ca. 6. 1. Who are compellable by the common law to make or repaire Bridges and who not S. 1 2 3 4 5 6. 2. The power of the Iustices of peace for erecting and repairing of Bridges Causeys and Toghers by statute S. 7. 3. The power and authoritie given by statute for amending of high-wayes S. 10 11 12 13 14 15 16 17 18 19 20. 4. To whom the soyle of the high-wayes belongeth S. 21 23. 5. Lands adjoyning to the high-way of common right ought to clense the ditches S. 22. 6. By the common law Commissions might be awarded for the amending of high-wayes S. 24. 7. Cloth ca. 7. 1. Every Iustice of peace may punish certaine abuses concerning the making of Cloth and may heare and determine some matters arising betweene the Clothiers their Carders Spinsters Weavers Fullers Shermen Dyers S. 1 2 3. 8. Constables ca. 8. 1. That every Iustice of peace may cause two Constables to bee chosen in every Barony S. 1. 2. The duty of those Constables and how they were first ordained S. 2. 3. The ordayning of petty Constables and the chusing and swearing of them S. 3 4 5 6 7. 4. The particular duties of those pettie Constables S. 7. 8. 9. Felonies of severall sorts containing 20. Chapters beginning with the 9. and ending with the 28 Chapter 1. What a Iustice of peace may doe for the apprehending of Felons and Traitors S. 1. 2. What a Iustice of peace ought to doe when a Felon or Traitor is apprehended and brought before him S. 2 3. 3. What felonies Iustices of peace in the County of Dublin may heare and determine S. 4 5. 4. What Felonies Iustices of peace cannot heare and determine S. 6 7 8 9 10 11 12 16 17. 5. How farre Iustices of peace may proceede in such felonies which they have not power to heare and determine S. 13. 6. Where an Endictment of the death of one which is strucken bewitched or poisoned in one County and dyeth in another is made good by statute S. 14. 7. Where the principall is in one County and the Accessarie in another the Endictment of the Accessarie taken in the County where he became Accessarie is made good by statute S. 15. 8. That a Iustice of peace may commit one that can give Evidence against a prisoner and refuseth so to doe S. 18. Ca. 10. of Felonies by the common Law 1. What offences are felony by the common Law S. 1. 2. What shall be felony by homicide S. 2 3 4 5 6 7 8. 3. The severall sorts of homicide S. 9 10 11 12 13 14 15 16 17. 4. In what cases Iustices of peace in default of the Coroner may inquire of homicide S. 18. 5. What Felo de se shall forfeit S. 11 12 13 14 15 16 17. Ca. 11. of Murder 1. What killing shall be adjudged murder by the common law S. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 17 18 23 24 25 26 27 28 29 33. 2. What killing shall not be adjudged felonie S. 15 18. 3. What killing by poison shall be adjudged murder by the common law S. 19 20 21 22 34. 4. Where the Act of one shall be murder in all that are present in the house or upon the same ground S. 30 31 32. 5. Murder must be the killing of one in rerum natura S. 35. 6. In cases of murder or poisoning no Clergie nor in case of witchcraft S. 36. 7. No pardon to be granted for murder and how farre a pardon of all Felonies will extend S. 38 39. 8. The King only hath authoritie to pardon S. 40. Ca. 12. of Manslaughter What shall bee adjudged Manslaughter Sect. 1 2 3 4 5 6. Ca. 13. Who may bee charged with homicide and who not 1. Lunatickes Ideots and non compos mentis cannot bee charged S. 1 2 3. 2. An Infant that hath no discretion cannot be charged but an Infant of discretion may be charged S. 4. 3. One that is dumbe may be charged S. 5. 4. One borne deafe and dumbe cannot be charged Sect. 6 7. 5. A man that is drunke which killeth another may bee charged S. 7. Ca. 14. of homicide by misadventure 1. What shall be adjudged homicide by misadventure S. 1 2 3 5 6 7. 2. The punishment of homicide by misadventure and Se defendendo S. 3. 3. How the partie found guiltie of homicide by misadventure may obtaine his pardon S. 4. 4. What shall bee adjudged to bee a casuall death and what shall be forfeited by reason thereof S. 8. c. to the end of the Chapter 5. How the King shall be intituled to things forfeited by reason of such casuall death S. 10. Ca. 15. of homicide upon necessity as 1. The killing of one condemned to dye by a stranger or the putting of
a Iudgement Recognisance or Baile in the name of another S. 43 Ca. 24. Of Accessaries 1. No Accessaries in Treason but all are principals S. 1 2 3. 2. No Accessarie in a Praemunire S. 4. 3. Two sorts of Accessaries infelonies S. 5 6. 4. Who shall be said to be Accessaries and who principals Sect. 7 8 9. 5. Accessaries before the Felony S. 10 11 12 13 14 15 16 17 18. 6. Accessaries after the fact S. 19 20 21 22 23. 7. Relieving of a Felon not knowing of the felonie S. 23. 8. A wife relieving her husband S. 24. 9. What Acts shall make a man an Accessary after the fact and what not S. 25 26 27 28 29 30 31 32 33 34. 10. Accessaries to a Felonie done in another County S. 35. 11. Accessaries to a Felony by statute S. 36. 12. Accessarie to an Accessarie S. 37. 13. Accessarie not to be tried till the principall be attainted S. 38 39 40. 14. No Accessarie in Manslaughter Se defendendo or by misadventure S. 41. Ca. 25. Of certaine Rules concerning felonies 1. A felony committed in the time of one King the offendor may be tryed for it in the time of another King S. 1. 2. How a felon which is apprehended in one County shall bee brought to a Triall for a felony committed in another County and in what cases he may be tried in the County where he is apprehended S. 2 3. 3. Where stollen goods are stollen from the Thiefe that stole them the owner may charge either the first or second Thiefe with felony S. 4. 4. If Cloth or other things bee delivered to a Tayler to make apparell and be stollen from the Tailer the offendour may be charged either at the owners or Taylers suite S. 5. 5. If goods be stollen and the owner not knowne the offendour may be indicted quod bona catalla cujusdam hominis ignoti felonicè cepit and all men may be received to give Evidence S. 6. 6. What a Iustice of peace may doe when a Robberie is committed and the partie robbed will not accuse or prosecute the felon S. 7. 7. Vpon all Felons Huy and Cry ought to be levied who ought to follow the same and what punishment shall be inflicted upon them for that neglect and what a Iustice of peace may doe therein S. 8 9. 8. Where the Towne or Countrie shall be amerced for the escape of a murtherer or Manslayer S. 10 11 15. 9. How felons apprehended upon Huy and Cry ought to bee brought before a Iustice of Peace and by whom S. 12. 10. Levying Huy and Crie without cause S. 13. 11. The Kings officers may breake a house to apprehend any suspected of felony S. 14. 12. The dutie of Iustices of peace and Constables concerning the keeping a watch S. 15. Ca. 26. Of the forfeiture for Felonies 1. What the felon shall forfeit S. 1 2 3 4 5 8. 2. At what time the goods of a felon become forfeited S. 6 7. 3. Where the Towneship shall bee charged with felons goods Sect. 9. 4. What shall be adjudged a conviction in felony and other offences S. 10 11 12. 5. The difference betweene attainder and conviction S. 13 14 15 16. Ca. 27. Of Examination of Felons and Evidence against them 1. How and in what manner a Iustice of peace ought to examine aswell the felon as those that bring him before hee commit him to the gaole S. 1 2 3 4 28 29 30 31 32. 2. How and in what manner a felon may be bailed and by whom S. 5 6 7 8 9. 3. What the Iustice of peace ought to doe if the offendor confesse the felony S. 10 11. 4. What the Iustice of peace ought to do in case of Manslaughter Se defendendo or per infortunium or done by an Infant Lunaticke or the like S. 12. 5. What persons may be examined to prove a felony and bound to give Evidence S. 13 14. 6. What Evidence shall be good against the offendor and what not S. 15 16 17 18 19. 7. How restitution shall be made of stollen goods where the owner gives Evidence against the Felon S. 20 21 22 23 24 25. 8. No restitution of goods wayved where the felon is not knowne so as he may be indicted S. 26. 9. Examinations before a Iustice of peace in one County may be given in Evidence in another S. 27. Ca. 28. whether information evidence or proofe of witnesses shall be taken against the King 1. What Evidence a Iustice of peace may take by examination against the King and in what manner S. 1. 2. What Evidence shall be received in acquittall of the prisoner at his tryall and in what manner S. 2 3 4. 3. Circumstances to be considered upon examination of felons Sect. 5. 4. The confession of the felon before a Iustice of peace is no conviction S. 10. 5. In what cases halfe proofes are to be allowed and what are good causes of suspition S. 11 12 13 14 15 16. Of forcible Entries and detainer which containeth 9. chapters beginning with the 29 and ending with the 37 1. In what cases at the common Law forceible entries and detayners were tollerated S. 1 2. 2. Remedies against such force S. 3 4 5 6 7 54. 3. What a Iustice of peace ought to doe upon complaint to him of a forcible Entry S. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40 41 42. 4. How and in what manner the Iustice of peace must make restitution of the possession S. 29 30 31 34 35 36. 5. What Iustices may make restitution of the possession Sect. 32 33. 6. To whom the restitution shall be made S. 37. 7. Of what things restitution shall bee made and of what not Sect. 38. 8. What the Iustice of peace is to doe when the parties indicted tender a Traverse to the Endictment S. 33. 9. A Iustice of peace may punish the Sheriffe and Bailiffes for not returning sufficient Iurors to enquire of a force S. 43. 10. One Iustice of peace may proceede in forceible Entries Sect. 44. 11. Mayors of Corporations may doe the like in cases of forcible Entries as other Iustices of peace may doe S. 45. 12. How a Iustice of peace ought to proceede upon a writ out of the Chancery to remove a force grounded upon the statute of North-hampton S. 46 47 48. 13. How he may proceede upon that statute ex officio without such writ S. 50 51 52 53. Ca. 30. what is a forcible Entrie or holding within the statutes 1. Of the severall sorts of force S. 1 2. 2. Of the force prohibited by the statutes S. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22. 3. Of forcible detainer by policie S. 23 24 25 26. 4. Of forcible detayner S. 27 28 29 30 31 32 33 34 35 42 43 44 45 46 47 48. 5. Of forcible detayner by word S. 36 37 38
39 40 41. Ca. 31. Who may commit a forcible Entrie c. 1. Of the number of the persons S. 1 7. 2. Of the qualitie of the persons S. 2 3 4. 3. Of the commandement before or consent after the force Sect. 5 6. 4. Of the persons put out by force S. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22. 5. Of the weapons offensive S. 23 24 25. 6. Of force justifiable or not justifiable S. 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Ca. 32. Where a forceible detainer of possession is lawfull Where a continued possession of 3. yeares may bee maintained with force S. 1 2 3 4 c. to the end of the Chapter Ca. 33. How many severall remedies the party hath which is either forcibly put or thrust out of posses 1. By an action upon the statute of 8. H. 6. S. 1 2. 2. By a writ upon the statute of Northhampton S. 3 4. 3. By endictment upon the statute of 8. H. 6. in the Sessions of the peace S. 5. 4. By complaint to one or more Iustices of peace out of Sessions Sect. 6. 5. By removing the Endictment into the Kings Bench S. 7. 6. How the Iustice of peace is to proceed to the enquiry S. 8 9 10 11 12. Ca. 34. Of restitution to be made to the party put out 1. In what cases the party put out shall be restored and by whom S. 1 2 3 4 14 15 16 17 18. 2. The Endictment must be sufficient matter and forme S. 5 6 8 9 10 11 12 13. 3. Of what things restitution may be made S. 8. Ca. 35. Who shall award and make this restitution 1. The Iustice of peace before whom the Inquisition was found shall award or make the restitution and none other S. 1 2 3. 2. The Iustices of the Kings Bench upon a Certiorari may award it but not doe it in person S. 4 5. 3. The Sheriffe shall be amerced if he returne that he could not make restitution by reason of resistance S. 6 7. Ca. 36. To whom this restitution is to be made 1. To the party that was put out and to none other S. 1 2 3 4 5 6. 2. Where the disseisor which is put out with force shall not be restored and if he that entred with force shall be fyned and imprisoned S. 7 8 9. 3. Where diverse claime the possession and both are upon the land who shall be adjudged session S. 10 11. 4. Where one Ioyntenant or Tenant in Common putteth out the other by force he that is put out cannot be restored by a Iustice of peace S. 12. 5. Two Iointenants put out S. 13. 6. Coppiholder Lessee for yeares Tenant at will Tenant by Elegit c. S. 14 15. Ca. 37. Causes for staying the Iustices of P. from granting Restit 1. The title found or proved before the Iustice of peace S. 1. 2. Three yeares possession S. 2 5. 3. A Certiorari S. 2 6 7 8 9. 4. The insufficiency of the Indictment S. 3. 5. The tender of a Traverse S. 10 11 12 13. 11. Games unlawfull ca. 38. 1. What punishment a Iustice of peace may inflict upon common gamesters such as keepe common gaming houses S. 1. 2. What games are unlawfull and what not S. 2. 12. Hâ—y cry ca. 39. 1. In what case the Iustice may cause it to be levyed Sect. 1. 2. How it ought to be made S. 2 3. 13. Hunting hawking and hawkes ca. 40. 1. What a Iustice of peace ought to doe upon Information unlawfull hunting S. 1 2 3. 2. Where and in what cases such hunting will be felony and where a Riot S. 2 4. 3. No man can make a parke or warren without the Kings lycense or grant S. 5. 4. The imbezelling of a hawke that is lost is felony S. 6. 14. Inrolements ca. 41. 1. What deeds may bee inrolled before a Iustice of peace and Clerke of the peace and within what time S. 1 2 3 4. 2. How many dayes shall be accompted for a moneth S. 4 5 6. 15. Labourers Artificers servants ca. 42. 1. Iustices of peace may commit such as refuse to labour Sect. 23. 2. What persons may be compelled to labour and how they shall be punished for their refusall Sect. 1 23 35 36 37 38 39 40 41. 3. The punishment of servants departing within the time of their service S. 2. 4 The retaining of one that is another mans servant S. 2. 5. What wages servants Labourers or Artificers ought to take S. 3 4 5 6 7 8 9 20 21 24 25 26. 6. The punishment of such as refuse to performe the ordinances of the statutes of Labourers c. S. 7 10 11 14. 7. That Bailiffes and Constables be sworne to enquire of and present all such as shall transgresse the ordinances concerning Labourers c. S. 11. 8. Nothing to be taken by Gaolers or any others of Labourers c. for fees S. 12 19. 9. Encouraging of Labourers c. against the ordinances concerning them and the punishment of servants departing into other Counties contrary to those ordinances S. 13 15 16. 10. Iustices of peace to heare and determine the points of the statutes concerning Labourers and Artificers Sect. 17 18 22 23. 11. That servants intending to depart from their masters at the end of the Terme shall give warning S. 23. 12. What the Common Law was concerning Labourers c. S. 28 29 30 31 32 33 34. 13. Who are compellable to labour by the statute of 23. E. 3. S. 35 36 37 38 39 40 41 42 43 44 45. 14. What is a good retainer by that statute S. 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64. 15. What be good causes for a servant to depart S. 65 66 67 68 69. 16. How and in what manner the master may discharge his servant S. 70 71 72 73. 17. Who may lawfully take a servant out of his masters service S. 74 75 76 77 78 79 80. 18. In what cases a man may receive another mans servant S. 81 82. 19. Who shall in law be adjudged another mans servant S. 83 84 85. 16. Misprisions ca. 43. 1. The severall sorts of Misprision and the severall punishnishments S. 1 5. 2. What offences are misprisions of Treason or felony S. 2 3 4. 3. What authority a Iustice of peace hath in cases of Misprision of Treason or felonie 17. Night-walkers ca. 44. 1. How Night-walkers are to be punished S. 1. 18. Peace ca. 45. 1. The power of the Iustice of Peace for the keeping of peace Sect. 1 2. 19. Posse comitatus containing two Chapters viz. 46. and 47. 1. Who may raise Posse comitatus and for what cause S. 1 4. 2. Who ought to assist when Posse comitatus is required S. 1 2. 3. The number requisite how they shall be armed Sect. 3. 1. A Iustice
Deut. ibid. Ye shall have no respect of persons in judgement 3. Hatred or malice against the partie or some of his See Levit 19.18 4. Covetousnesse when they receive or expect gift or reward for as the wise man saith Rewards and gifts doe blinde the eyes of the wise Eccles 10.28 and make them dumbe that they cannot reprove faults 5. Perturbation of mind as anger or such like passion Iames 1.20 The wrath of man doth not accomplish the Righteousnesse of God 6. Ignorance or want of true understanding what is to bee done Ignorantia mater erroris 7. Presumption when without law or other sufficient rule or warrant they presuming of their owne wits proceede according to their owne wils and affections There is more hope of a foole then of him that is wise in his owne conceit Prov. 26.12 8. Delay which in effect is a denying of Iustice Negligentia semper habet Comitem infortunium mora trahit periculum 9. Precipitation or too much rashnesse when they proceede hastily without due examination and consideration of the fact and of all materiall circumstances or without hearing both parties for as another saith qui aliquid statuerit parte inaudita altera aquum licet staâ—uerit haud aquus est hee that shall judge or determine of a matter the one party being unheard although he shall give just judgement yet is he not a just Iudge His Ma. speech in the Sâ—archamber Anno. 1616. 6. All these his late Majestie King Iames hath shortly yet fully observed in his charge lately given to the Iudges of England sc charging them That they doe Iustice uprightly and indifferently without delay partiality feare or bribery with stout and upright hearts with cleane and uncorrupt hands and yet not to utter their owne consents but the true meaning of the law not making lawes but interpreting the Law and that according to the true sence thereof and after deliberate consultation remembring that their Office is Ius dicere and not Ius dare 7. According to this last also is the rule given in the booke of Iudges sc in all causes doubtfull first to consider of the matter Iudges 1930. to consult and then to give sentence 8. Yea God himselfe hath given us Presidents of such deliberate proceedings as you may see in Genesis chap. 3. vers 8. Gen. 3.8.9.11 c. and chap. 18. vers 21. 9. These are worthy Directions for all Iustices of peace that they may carry themselves in their places uprightly and indifferently not uttering their owne conceites nor upon the sudden to over-rule things but after deliberate consideration and consultation then to proceede to execute the authority committed to them 10. Iustices of peace are Iudges of Record Their description or definâ—tion appointed by the King to bee Iustices within certaine limits for the conservation of the peace and for the execution of divers things comprehended within their Commission and within divers statutes committed to their charge 11. Now first that the Iustices of peace are Iudges of Record 9. E. 3. 4. 14. H. 8. 16. yea that every Iustice of peace by himselfe is a Iudge of Record and upon whose sole report and testimony the law reposeth it selfe very much appeareth more plainely if you observe these things following 1. Hee is made under the great Seale which is a matter of Record 2. Every Iustice of peace hath judiciall power given unto him by the Commission sc in the first assignavimus 3. Also by some statutes they have judiciall power given them for they may make a Record of a force by them viewed and may thereupon fine and imprison the offendors yea one Iustice of peace may also heare and determine and punish an offendor in some cases as convicted upon his owne view or examination as in cases of forcible Deteyner 4. His warrant though it be beyond his authority is not disputable by the Constable or other inferior Minister but must be obeyed and executed by them But this must bee understood 14. H. 8. 18. Co. 10. 7. 6. when the Iustice of peace hath Iurisdiction of the cause for or concerning which he hath granted his warrant for otherwise the Constable or other Officer executing such warrant is punishable notwithstanding the warrant 5. Hee may take a Recognizance for the peace c. which is a matter of Record and which none can doe but a Iudge of Record See Br. Recog 8. 14. 6. His record or testimony in some cases is of as great force and in some other cases of greater force then an Indictment upon the oath of twelve men as in cases of Forcible Entry forcible Deteyner and Riots 7. Great cause therefore have the Iustices of P. to take heed that they abuse not this their credit and authoritie either to the oppressing of the subject by making untrue Records or defrauding of the King by suppressing true Records 12. Now concerning peace it is the amitie confidence and quiet that is betweene men and he that breaketh this amitie or quiet breaketh the peace 13. Yet peace in our law most commonly is taken for an abstinence from actuall and injurious force and offer of violence and so is rather a restraining of hands then an uniting of mindes And for the maintenance of this peace chiefly were the Iustices of Peace first made 14. The breach of this peace seemeth to be any injurious force or violence moved against the person of another his goods lands or other possessions whether it be by threatning words or by furious gesture or force of the bodie or any other force used in terrorem populi 15. The Office of the Iustice of Peace is principally to be exercised to the suppressing of such injurious and unlawfull force or violence and yet the Commission of the P. being pro conservatione pacis pro quieto regimine gubernatione populi I see not why the Iustices of Peace should be restrained from preventing and repressing such other offences misbehaviours and deceits as may breake the amitie quiet and good governement of the people and whereof discords and so breaches of the peace doe often arise though there appeare neither force nor violence in the offence it selfe as libellings cosinages and such other offences 16. But it is no part of their office to forbid lawfull suits albeit they shall doe well to be mediators of peace in such suites and controversies as shall arise amongst their neighbours 17. The Conservation of the peace and therein the care of the Iustice of peace consisteth in three things viz 1. In preventing the breach of the peace wisely fore-seeing and repressing the beginnings thereof by taking surety for the keeping of it or for the good behaviour of the offendors as the case shall require 2. In pacifying such as are in breaking of the peace 3. In punishing according to the law such as have broken the peace 18. But of the three the first viz. the preventing part is
most worthy to be commended to the care of the Iustices of Peace 19. Iustices of peace at this day in Ireland are of two sorts and are appointed or created by two severall meanes videlicet The one by grant made by the King by Charter under the great seale By Charter Br. Commiss 5. as Mayors and chiefe Officers in divers corporate Townes And such the King cannot discharge againe at his pleasure but they shall continue and enjoy their Iurisdiction according as their Charters doe enable them And therefore if the King grant to a Mayor or other head Officer of a City or corporate Towne and to their Successors to bee Iustices of peace in their City or Towne and after maketh out a Commission of the peace to others there yet the authoritie and Iurisdiction of the Mayor c. remaineth good for that it was granted to them and their successors and is not revocable at the Kings pleasure as a Commission of the peace is And such Iustices of peace by Charter have thereby the same power that the Conservators of the peace had by the Common law And it seemeth such power also as is given to the Iustices of peace or to any one Iustice of peace by expresse words in any statute but none of them have thereby the whole power which is ordinarily given to the Commissioners of the peace by their Commission 20. The other sort of Iustices of peace are by Commission By Commission made of common course under the great seale and these are appointed by the discretion of the Lord Chancellour but the authority of these Commissioners of the peace doth determine by divers meanes yet more usually by three meanes First by the death of the King or by his Resignation of the Crowne Secondly at the Kings pleasure and that in two sorts Either by the Kings pleasure expressed as the King in expresse words may discharge them by his writ under the great seale or by Supersedeas 5. E. 4. â—2 Br Commis 1â— 12. Ass 2â— Br. Commis 13 Br. Commiss 20. â—â— but the Supersedeas doth but suspend their authoritie which may be revived by a procedendo Or by implication as by making other Commissioners of the same kinde and within the same limits leaving out the ancient Commissioners names 10. Ed. 4. 7. 3. Mar. 1. 21. But here the ancient Commissioners must have knowledge of such new Commission for this determination of the old Commission Br. Commiss 2. groweth not immediately by the making of the new Commission but either by giving speciall notice of the new Commission unto the old Commissioners Or else by and after the reading or proclaiming of the new Commission at the Assises Sessions of the peace or at the full County Or else by holding of some open Sessions by vertue of the new Commission in which two last cases the old Commissioners must take notice of the new Commission And in all these cases if the ancient Commissioners doe sit by vertue of their ancient Commission after such notice or publishing of the new Commission whatsoever such ancient Commissioners shall so doe is voide And contrariwise untill such notice or publishing of the new Commission whatsoever meane Acts such ancient Commissioners shall so doe by vertue of their ancient Commission the same are good in Law 34. Ass p. S. Br. Commiss 14. 22. 11. H. 6. ca. â— Also in all cases where an ancient Commission of the peace is determined by a new yet no proce's or suit depending before the old Commissioners shall be discontinued thereby neither shall any other thing done by the Iustices of the peace by force of their ancient Commission be made or become voide thereby Br. Com. 19. 21 Br. Offic. 15. 23. Note also that although by the death of the King or by his resignation the authoritie of all Iustices of peace yea and of all Iudges Dyer 165. Co. 7. 30. Br. Com. 5. Commissioners of Oyer and Termyner Commissioners of Gaole-delivery Sheriffes Escheators and other Officers that are by Commission doth cease yet Mayors and chiefe Officers in Citties and corporate Townes which have the authoritie of Iustice of peace or of the conservation of the peace by Charter to them and their Successors their authoritie still remaineth notwithstanding the Kings death or resignation 24. So also the authoritie of the high Constables and pettie Constables remaineth notwithstanding the death of the King c. for that their authoritie is by the common Law and to their said Office the conservation of the peace remaineth as a thing incident and unseparable from the same 4. E. 4. 44. Br Offic. 25. Dyer 165. 25. Coroners also do remaine Conservators of the peace within the County where they are Coroners notwithstanding the Kings death c. for they are made by the Kings Writ and not by Commission and their office and authoritie doth remaine untill they be removed by the Kings Writ and their office remaining the conservation of the peace remaineth as incident thereto Their oathes 26. Every Iustice of peace before he shall take upon him to exercise the office of a Iustice of Peace shall take two corporall oaths the one concerning the office of a Iustice of peace the other concerning the Kings supremacie 27. The oath concerning the office seemeth to be by force of the statute made 13. R. 2. ca. 7. the forme whereof as it now is followeth in these words viz 28. Ye shall sweare that as Iustice of the peace in the County of Dublin in all Articles of the Kings Commission to you directed you shall doe equall right to the poore and to the rich after your running wit and power and after the lawes and customes of the realme and statutes thereof made And ye shall not bee of Councell of any quarrell hanging before you And that yee hold your Sessions after the forme of the Statutes thereof made And the Issues Fynes and Amerciaments that shall happen to be made and all Forfeitures which shall fall before you ye shall cause to be entred without any concealement or imbesilling and truely send them to the Kings Exchequer ye shall not let for gift or other cause but well and truly you shall doe your office of Iustice of the peace in that behalfe and that you take nothing for your office of Iustice of the peace to be done but of the King and Fees accustomed and costs limitted by the statute and ye shall not direct nor cause to be directed any warrant by you to bee made to the parties but ye shall direct them to the Bailiffes of the said County or other the Kings Officers or Ministers or other indifferent persons to doe execution thereof So help you God c. 29. The parts of this Oath are shortly sixe 1. That they shall doe equall right to rich and poore and according to the lawes and statutes of the realme 2. That they shall not be of Counsell with any person
yet it is not disputable by the Constable or other such officer but must be obeyed and executed by the Officer As if the Iu. of peace shall make his warrant to arrest one for the peace or good behaviour without cause the officer shall not bee punished for executing this Co. 10. 67. But if a Iu. of P. shall make his warrant to do a thing out of his Iurisdiction or in a cause whereof the Iustice of peace is no Iudge if the officer shall execute such a warrant here he is punishable for the officer is not bound to obey him who is not Iudge of the cause no more then a meere stranger And so note that the officer is bound to take notice of the authority and jurisdiction of the Iudge 22. Ass 64. Plo. 394. b. 41. If any man shall abuse the Iu. of peace his warrant as by casting of it into the dirt or treading it under his feete he may be bound to his good behaviour and may also be indicted and fined for it is the Kings processe 42. When any person commeth before the Iu. of peace by force of any warrant for the peace good behaviour or for a Riot or the like the party must offer sureties or else the Iu. may commit him 43. If a Iustice of peace shall grant his warrant to one to apprehend another for Treason or felony it shal be safe for the Iustice upon the delivery of his said warrant to take upon oath the examination of the said party that requireth the warrant or at least to bind him over by recognizance to give Evidence at the next gaole delivery against the offendour least that afterwards when the offendor shal be brought by the officer before the Iu. upon his said warrant or else happen to yeild himselfe to the said Iustice then the party that procured the warrant be gone 44. If the Constable or other officer upon a warrant received from a Iu. of peace shall come unto the party and require or charge or command him to goe or come before the Iu. this is no arrest or imprisonment and upon a warrant for the P. the officer ought first to require the party to goe before the Iu. before he may arrest him 45. But this arrest being in execution of the commandement of some Court or some officer of Iustice is expressed in their writs precepts or warrants by these words or the like sc Capias Attachias c. to attach arrest take bring or convay or cause to be attached arrested c. All which words do imply the taking and laying hold of the person 46. What persons To this arrest all lay persons under the degree of Barons or peeres of the Realme be subject and that by warrant from the Iustices of peace as you may see here tit Surety for the peace 47. But the Iu. of P. are not to grant their warrants for the peace or the like against any noble man And yet if a capias or attachment shal be awarded against a Baron or Peere of the Realme from the K. Iustices at Dublin for a contempt or in case of debt or trespasse the officer without any offence of Law may execute the same for that the officer is not to dispute the authority of the Court. 48. Ecclesiasticall persons also may be arrested and that by warrant from the Iustices of peace in some cases see more hereof in the Title Suretie for the peace A woman covert may be imprisoned by the Iu. of P. for a force or Riot committed by her 49. But otherwise of young Infants in such cases yet if an Infant of yeares of discretion cannot find sureties for the peace being demanded against him he shal be committed untill he hath found sureties 50. The liberty of a man is a thing specially favoured by the common Law of this land and therefore if any of the K. subjects shall imprison another without sufficient warrant the party grieved may have his Action of false imprisonment and shall recover damages against the other And the King also shall have a Fine of him For imprisonment of another without authority of the Law 51. Also by the statute of Magna Charta made 9. H. 3. ca. 29. No freeman shal be taken or imprisoned c. but by the lawfull judgement of his equals sc by the verdict of a Iury of 12. P. Accusat 1. 5. E. 3. ca. 9. good and lawfull men or by the Law of the realme Co. 10. 74. 75. And by this statute of Magna Charta Every arrest or imprisonment and every oppression against the Law of the land is forbidden and if any Iudge Officer or other person against the Law shal usurpe any jurisdiction and by colour thereof shall arrest imprison or oppresse any man it is punishable by this statute See Co. 10. 75. 52. Note that all jurisdictions ought to be either by Charter or by prescription Co. 11. 99. 42. Ass p. 5. 53. Also by the statutes of 25. Ed. 3. cap. 4. 42. Ed. 3. cap. 3. No person shal be taken nor put to answere unlesse it be by indictment or presentment of a Iurie before Iustices or matter of record or by due processe made by writ originall at the common Law 42. Ass 5. 42. Ass p. 5. 54. A Commission to arrest or take a man and his goods was holden to be against Law for that this ought to be either upon indictment or suit of the party or other due processe of Law Br. Commiss 15. 16. Faux Impris 9. 55. Neither shall any man commit another to prison except he he be a Iudge of Record Co. 10. 103. See Co. 3. 12. A. 56. And yet for misdemeanors done against the Kings peace the offendors aswell by the common Law as by diverse statutes may be arrested and imprisoned by the officers of justice and sometimes by private persons as hereunder followeth without either presentment or processe c. And these being by the Law of the realme are warranted by the aforesaid statute of Magna Charta 10. E. 4. 17. As every private man may arrest another whom he knoweth to have committed a Treason robbery manslaughter or other felonie and may deliver him to the Constable of the Towne where such an offendor is apprehended 9. E. 4. 28. Or in the Constables absence may imprison and set him in the stocks and if there be no stocks there it seemeth he may carry the offendor to the next Towne and deliver him to the Constable there Vide 9. E. 4. 28. or bring him before a Iustice of peace to be by him committed and examined 57. Also when a Treason or felony is committed every man may arrest suspitious persons that be of evill fame and if such person shall make resistance the other may justifie to beat him 58. But for the arresting of such suspitious persons note that there must be some Treason or felony committed indeed 59. Also the party
assemble Posse Comitatus or raise a power or assembly of people upon their owne heads without just cause and therefore it is to be considered upon what occasion a Iustice of peace or other officer may to his assistance take posse Comitatus 94. Any Iustice of peace or Sheriffe may take of that County where he is a Iustice or Sheriffe any number that they shall thinke meet to pursue apprehend arrest and imprison Traytors Murderers Robbers and other felons or such as doe breake or goe about to breake or disturbe the Kings peace in any outragious manner and every man being required ought to assist and aide them 95. The Iust of P. and the Sheriffe or undersheriffe may take Posse comitatus for the suppressing of Riots and all sorts of persons being able and required ought to assist them therein 96. 14. H. 7. 8. Yea any one Iustice of peace may take the power and aide of the County to suppresse Riottets and needs not to tarry for the comming of another Iust or of the Sheriffe 97. Also in cases of forceible entry any Iustices of peace may take Posse comitatus to remove such persons as by his view or by Inquisition taken before him shal be found to have made any forceible entry into other mens possessions or to detaine them with force 98. The Sheriffe or undersheriffe or Bailiffe c. if need be may by the common Law take the power of the County what number they shall thinke good to execute the K. processe or writ 3. H. 7. 1. 10. Co. 5. 115. Br. Fine p. 37. be it a writ of execution Replevin Estreperment Capias or other writ it being the Kings commandement Br. Riots 2. 3. See the stat Westminst 1. 17. Westminst 2. 39. And such as shall not assist them therein being required shall pay a Fine to the King 3. H. 7. 1. Br. Trespasse 266. The Sheriffes Bailiffe to execute a Replevin tooke with him three hundred men armed modo guerino sc with Brigandines Iacks and Guns and it was holden lawfull for the Sheriffes officer hath power to take assistance aswell as the Sheriffe himselfe for that all is one office and one Authority 99. A man demands the P. in Chancery against a great Lord and hath a Supplicavit directed to the Sheriffe there if need shall be the Sheriffe may take his Posse comitatus to aide him to arrest such a Lord. So it seemeth if a Supplicavit bee directed to a Iustice of peace the Iustice of peace or the officer to whom the Iustice of peace shall make his warrant in this behalfe upon resistance made may if neede be take Posse Comitatus to aide him to arrest the party Quia quando aliquid mandatur mandatur omne per quod pervenitur ad illud Co. 5. 115. 100. But besides this every Sheriffe is enabled by his writ of assistance whereby there is commandement under the great seale to all Archbishops Dukes Earles Barons and all other the Kings subjects within the fame County to be aiding to him in whatsoever belongeth to his office c. 101. The Sheriffe if need require it or the Constable may take Posse Comitatus to execute the precept of a Iustice of peace 3. H. 7. 10. 13. H. 7. 19. Br. Trespasse 432. The Constable of a Towne upon a felony committed or upon any Affray or the like may take the aide of his neighbours or other persons being present to apprehend the Felons or to cause the peace to be kept and to carry the offendors before the Iu. of peace and if any refuse to aide the Constable in this case he is to be punished in the Sessions of the peace by Fyne and imprisonment 38. Ed. 3. 8. 102. One hath hurt another whereby he is in perill of death the Constable may take power or aide to arrest him c. 103. Every man may assemble his friends and neighbours to defend his person c. being in his house against violence c. but not to goe abroad with him in a Faire or market Advices to the Iustices of peace 104. I thought it not amisse here shortly to admonish the Iustices of peace of some few things for their better memory 1. First that they exercise not the office of a Iustice of peace before they have taken the oath of their office and the oath of Supremacy 2. That they execute not this their office in their owne case but to cause the offendour to bee convented before some other Iustice quia iniquum est aliquem sui rei esse judicem Co. 8. 18. And some late statutes have taken speciall care to prevent this as you may see by the statute of 10. Caroli ca. 23. in hibernia And yet if the Iustice shall deale in his owne case it seemeth good and justifiable in divers cases as when a Iu. of peace shal be assaulted or in the doing of his office especially shall be abused to his face and no other Iustice of peace present with him then he may commit such an offendor untill he shall finde sureties for the peace or good behaviour as the case shall require and the said Iustice in such case may himselfe binde the offendor and take his suretie but if any other Iustice of peace shall be present it were better to desire his aide 3. That they be carefull for the execution of the statute of Riots and if upon their enquiry of a Riot the truth cannot bee found by reason of any maintenance c. that they certifie the same within one moneth to the Lord Deputy and Counsell according to the statute of 13. H. 4. ca. 7. 4. That upon a forceible Entry they make no restitution without Enquiry 5. That they be circumspect in bayling of prisoners viz. that they neither deny it to such as are baileable nor yeeld it where it is not grantable 6. That all Recognisances taken by them bee certified at their next quarter Sessions or Gaole delivery according as the case shall require 7. Also that they doe Iustice and give remedy to every party grieved in any thing that lyeth within their power to heare determine or execute and that without respect of persons and according to the lawes and statutes of this Realme 8. Note that all these former matters are penall to the Iustices of peace if they shall offend in any of them and therefore it is likely they will be the more carefull therein But there are certaine other things principally tending to the publique good and fit to be commended to the care of the Iustices of peace in all which the Iustices of peace are to imploy also their speciall care and diligence and they are shortly these following 1. The abuses disorders in Ale-houses and Innes to bee reformed 2. High wayes and Bridges to be amended 3. Huy and Cry and fresh suit to be duly made and pursued after Rebels Robbers and other Felons and Traytors 4. Labourers sc
of P. ex officio may cause him to finde better sureties and may commit him till he shall so doe for the statute of Westm 1. ca. 15. requireth that such as be bailed be let out by sufficient sureties And although the number of such sureties their sufficiency and the summe wherein they shal be bound resteth in some sort in the discretion of the Iu. yet it is safe for them to take two sureties at the least and those to be men of good ability especially if the prisoner be in for felony or suspition thereof For if the Iustices let out a prisoner upon insufficient sureties that is committed for suspition of felony and appeareth not they shal be fined by the Iustices of Assise and gaole delivery Stamf. 77. 21. H 7. 20. 6. Now Bailement by the Iustices of peace in case of felony or for any other matter is alwaies upon a certaine summe of mony as upon 40 1 c. the which summe the sureties c. shall forfeit to the K. if it the prisoner appeare not at his day And in this businesse of bailement being a matter of much weight It behooveth the Iustices of peace to be very circumspect aswell for feare of wrong by denying it to him that is baileable as also for feare of danger to the service it selfe by yeelding it where it is not grantable and for feare of danger to themselves in both cases 3. E. 1. 15. For whosoever doth detaine prisoners who are baileable after they have offred sufficient sureties See 23. H. 6. ca. 10. shal be grievously amerced to the K. and he that doth take any reward for the deliverance of such shal be amerced to the K. and pay double to the prisoner 7. So on the other side if one who by the Law is not baileable shal be let to mainprise this shal be adjudged a negligent escape in him or them that doe let him to main prise 〈…〉 and for such an escape or offence they shal be fined and punished as followeth videlicet If the â—heriffe Constable or any Bailiffe of Fee who hath the keeping of prisoners shall baile any person which is not baileable and be thereof attainted they shall loose their Fee and office for ever 3. Ed. 1. ca. 15. and if the undersheriffe Constable or Bailiffe of such as have Fee for keeping of prisoners doe it contrary to their masters will or any other Bailiffe being not of Fee they shall have three yeares imprisonment and make Fine at the Kings pleasure 8. Note that the Sheriffes and other officers which doe let to baile any persons forbidden by the statute 3. Ed. 1. cap. 15. to be bayled shall be punished by the Iustices of gaole delivery according to the forme of the same statute or else by the said Iustices they may be put to their fine as for an escape punishable at the common Law 25. Ed. 3. 39. 9. By the Iustices If any Iustices of peace doe let to baile or mainprise any person who for any offence by him committed is declared not to be baileable or forbidden to be bailed by the aforesaid statute of 3. 10. Caroli ca. 18. P. Iust 108. P. Mainp 4. Edw. 1. the said Iustices of peace so offending shall pay such fines as shal be assessed by the Iustices of gaole delivery where the offence shal be committed Fitz. 251. 1. 10. Now to shew further the authority of the Iu. of P. in this behalfe No person arrested for Manslaughter or felony or suspition thereof being baileable by the Law shall be let to baile or mainprise by any Iu. of P. but in open Sessions 10. Caroli ca. 1â— in Ireland or by two Iu. of P. at the least whereof one to be of the Quorum and the same Iustices to be present together at the time of the said bailement The manner And this bailement the said Iustices shall certifie in writing subscribed with their hands at the next generall gaole delivery c. and in default thereof to be fined by the Iustices of gaole delivery 3. H. 7. ca. 3. 10. Caroli ca. 18 in Ireland Also before the bailement of such prisoner the same Iustices or one of them shall take the examination of the prisoner and information of them that bring him of the fact and circumstances thereof and so much thereof as shall be materiall to prove the felony shall put in writing before they make the bailement which examination information and bailement they shall certifie at the next generall gaole delivery upon the penalty to be fined as aforesaid at the discretion of the Iustices 11. But if any Iu. of P. hath taken the examination of a felon and information against him and after hath sent him to the gaole now upon bailement of him by other Iustices they need not to take any new examination of the prisoner or information against him but under their Recog or together therewith to certifie by what Iu. of P. the felon was committed to the end that at his hands those examinations and Informations may be required if he have not certified them neverthelesse it is not amisse if they take new examinations and informations for if the prisoner or accusers vary in their examinations good use may be made thereof for the discovery of the truth 12. Mittimus the forme Also the Iustice of peace which small send any prisoner to the gaole ought to shew in their Mittimus the cause of the commitment to the end it may appeare whether such prisoner be baileable or no. And if the Iustices of P. shall commit one to the gaole with these words in the Mittimus sc without baile or mainprise shewing a certaine cause in their Mittimus yet if such a prisoner be baileable by Law other Iustices of peace may baile him but if the prisoner were committed without bayle or mainprise and without shewing cause in the Mittimus then other Iustices of peace cannot or at least shall not doe well to baile him without making the other Iustice which committed him privy thereto for he might be committed for such cause as that he is not baileable as for Treason c. 14. H. 7. 10. 2. 13. Note where a man is baileable yet when he commeth before the Iustice he must offer surety to the Iustices otherwise they may commit him to prison 14. Next it followeth that I shew what persons be baileable and what not Persons not baileable It appeareth by the statute of West 1. ca. 15. but in these foure cases following a man was not baileable at the Common Law Br. Manip 47. Stamf. 71. F. N. B. 66. E. First no person taken for the death of a man sc for murder Br. Manip 11. 47. 57. 60. 63. 78. F. Coro 361. or any other homicide was baileable by the common Law And yet the Iustices of the Kings Bench did use to baile them yea although it be for Murder Br. Mainp
the Iustices of the peace as I said before are to be carefull 1. No person being imprisoned or taken for any of the offences or causes here-under mentioned Where Baile is taken away 13. E. 1. ca. 11. shall be bailed or let to Mainprise otherwise then as hereafter followeth sc Accomptants found in arrearages before Auditors shall be imprisoned without baile untill they have satisfied their Master all arrearages 2. Appellors or approvers shall not be bailed West 1. cap. 15. Nor he which is appealed by an Approver Ibid. 3. Persons going or riding armed contrary to the statute of Northhampton and being thereof convict shall bee imprisoned untill they have paid such Fyne as shall be therefore imposed upon them 4. Breakers of prison are not baileable Westm. 1. 15. 5. Surveyors and Collectors 10. Caroli ca. 20. in Ireland appointed for the repairing of Bridges if they refuse to accompt of the money by them received they shall be imprisoned untill they have truely accompted 6. Burners of houses or Ricks of Corne in Towne or fields 13. H. 8. ca. 1. in Ireland are not baileable for these offences in Ireland are Treason 7. Constables neglecting to whip Trespassers in Corne woods or Orchards at the commandement of a Iustice of peace shall be imprisoned untill they have caused the offendour to be whipped 10. Caroli ca. 23. 8. Persons condemned in any of the Kings Courts See 23. H. 6. cap. 10. and by vertue thereof committed to prison they shall not be bailed untill they have agreed with the plaintiffe 1. R. 2. c. 12. 2. H. 5. c. 2. Fitz. N. B. 121. A. 9. Conjurers and Witches shall not be bailed 10. Counterfeiters of the Kings seale or money are not baileable West 1. cap. 15. 11. Excommunicate persons Where baile is taken away West 1. 15. See 23. H. 6. ca. 10. taken by a writ de excommunicato capiendo shall not be bailed 12. Such persons as are in execution upon any statute or recognizance or upon judgement given in the Kings Courts at the suit of any person shall not bee bailed untill they have agreed with the plaintiffe 1. R. 2. ca. 12. 23. H. 6. ca. 10. Fitz. N. Br. fol. 93. c. 121 a. 13. Felons taken for murder are not baileable but if it be but for Manslaughter they may be bailed But felons taken with the manner are not baileable Westminster 1. cap. 15. Or if it bee apparantly knowne that they did the felony they are not baileable 14. Or if they confesse the felony upon their examination before the Iust of P. Cromp. 152. B. Or if he be a Thiefe openly knowne West 1. 15. Or if he bee of evill fame by credible report Br. Mainp 75. in all these cases they are not baileable 15. Yet in these former cases of felony if the theft be not above the value of Twelve pence the Iustices of peace may baile the prisoner it being no felony of death 16. Nor hee which is convict or attaint of felony is not baileable 17. Also persons convict of Forceible Entry or detainer shall not be bailed untill they have paid their Fyne or have found sureties by recognizance for payment thereof 18. Forgers of any deed writing sealed will or Court Roll and the assenters thereto and the publishers thereof knowing the same 28. Eliz. ca. 4. in Ireland shall not be bailed if they be convicted thereof but every of the offendours aforesaid in all cases of forgery being thereof convicted shall suffer perpetuall imprisonment during their lives where any mans estate of inheritance Free-hold or Coppy-hold shall bee defeated charged or molested thereby otherwise the offendours shall suffer one yeares imprisonment without baile 10. Caroli ca. 3. in Ireland 19. Persons convicted of making fraudulent conveyances their defenders Iustifyers or putters thereof in ure knowing the same and those which shall assigne over any lands leases or goods so to them convayed knowing the same shall suffer imprisonment one halfe yeare without baile 20. Maintainers of houses or places for any unlawfull game and common gamesters every Iustice of Peace seeing or finding any such may imprison the offendors till they finde sureties by recognisance no more to offend in the premises or for their good behaviour and this he may doe by the common Law and by the first Assignavimus of the Commission of the peace and the offendours shall not be bailed without finding such bonds 10. Caroli ca. 26. 21. Collectors for high-wayes bridges Causeys or Toghers which shall refuse to accompt for the mony by them collected shall be imprisoned untill they have accompted for and paid the same and shall not be bailed 22. Hunting if any lay man not having in lands 40. s. per annum Or if any Priest or Clerke not having 10.l living per annum shall keepe any hound greyhound or other dogge for to hunt or any Ferrets hayes nets or other engines to take or destroy Deare Hare Conyes or other Gentlemens game and shall be thereof convicted every such offendour shall be imprisoned for one whole yeare and not bailed 13. R. 2. ca. 13. 23. Reporters of false newes which may cause discord betweene the King and his people and spreaders of false newes or lyes of any of the Peeres or great officers of the Realme if they be thereof convicted shall be imprisoned untill they have brought him into the Court who was first author of the tale and shall not be bailed 3. E. 1. ca. 33. 2. R. 2. ca. 5. 23. H. 6. ca. 10. 24. No person committed by the King or Counsels commandement nor by any of the K. Iust shall be bailed 25. So in all cases where a statute ordaineth that an offendor shall be imprisoned at the Kings will and pleasure there the prisoner cannot be bailed or delivered untill the King hath signified his pleasure of him as if one be imprisoned for going or riding armed contrary to the statute of North-hampton made Anno 2. E. 3. ca. 3. 24. E. 3. f. 3. Br. contempts 6. 26. And in such cases the prisoner is to redeeme his liberty with some portion of money as he can best agree with the King or his Iustices for the same And so it seemeth the Iu. before whom such an offendour shall be convict may assesse such Fine or ransome according to their discretions and upon payment thereof may deliver the prisoner out of prison for the King signifieth therein his pleasure by the mouths of his Iustices 27. Servants departing from their masters without good cause and persons compellable to serve that upon request made shall refuse to serve for the wages rated and appointed by proclamation and being committed for that cause are not baileable 28. Such persons as at their proper Costs shall buy 8. H. 6. 4. or weare any Liveries cloathes or hats to have maintenance and be thereof convicted shall have one whole yeares imprisonment without baile 29. Persons taken for falsifying
c. And have in their said Commission an expresse clause ad audiendum terminandum and so are Iustices of Oyer and Terminer yet it was resolved by the Court that forasmuch as there is a Commission of Oyer and Terminer knowne distinctly by that name and the Commission of the peace is knowne distinctly by another name that the said indictment taken before the Iustices of the peace at their Sessions was not well taken and therefore it was quashed 11. The reason of this last case and Iudgement seemeth to hold in the former cases and in all other like cases where any statute doth specially give authoritie to any other distinct Court or to other Iustices or Commissioners leaving out the Iustice of peace to enquire of heare and determine or to trie felons c. there the Iustices of the peace at their Sessions cannot enquire thereof c. 12. Against servants imbeazelling or taking away the goods of their deceased maister the executors of the party deceased may have a writ directed to the Sheriffe to make open proclamation two market dayes that such offendours shall appeare in the K. Bench at a certaine day And if such writ bee returned and proclamation is thereupon made accordingly then if the said persons which should appeare by reason of the said proclamation do make default 33. H. 6. ca. 1. and do not appeare in the K. Bench at the day specifyed in the said writ they shall be attainted of felony by the statute of 33. Hen. 6. So that such offence of servants embeazelling their said masters goods beginneth first to be felony upon their default of apparance in the Kings Bench after proclamation Of which default the Iustices of peace cannot take notice for that they have not before them the record of such default or not appearing and therefore the Iu. of P. cannot inquire of such felony 13. But in the former cases if any such offendor shall be brought before any Iust of peace and charged with any such felony quare how farre the Iustice of peace is to deale or what he is to doe therein considering the Iustices of peace are no Iudges of such felonies neither have they any Iurisdiction given them by the statutes in such cases Neverthelesse I conceive it to be both serviceable and safe for the Iustice of peace not onely to examine the offence and the circumstances thereof and then to certifie those examinations to such persons as by the statute are made Iudges of the cause but also to commit such an offendour to prison 10. Caroli ca. 1â— in Ireland and to binde over the Informers to give Evidence and this I conceive to bee warranted by the statute of 10. Caroli ca. 18. in Ireland 14. Againe if a man had been feloniously stricken poysoned or bewitched in one County and after dyed thereof in another County by the common Law no Indictment could be thereof taken in either of the said two Counties for that the Iurors of the County where such party dyed could not take knowledge of the said stroke poysoning or bewitching being in a forraigne County Nor the Iurors of the County where the stroke poysoning or bewitching was committed could not take knowledge of the death in another County 10. Caroli ca. 1â— in Ireland But now by the statute of 10. Caroli ca. 19. an Indictment thereof found by Iurors of the County where the death shall happen whether it shall be found before the Coroner or before Iustices of peace or other Iustices c. shall bee good and effectuall in Law and that the Iustices of gaole delivery and Oyer and Terminer in the same County where such indictment shall bee taken shall and may proceede upon the same as if such stroke poysoning or bewitching and death had beene all in one and the same County 15. Also where Felons had robbed or stolne goods in one County and after conveyed the spoile or goods so stollen into another County to their adherents there 10. Caroli ca. 19 in Ireland who knowing of such felony received the same goods In which case although the principall were after attainted the accessary notwithstanding escaped by reason that he was accessary in another County And that the Iurors of the said other County by the common law could take no knowledge of the principall felony in the first County But now by the said statute it is enacted that where any murder or felony shall bee committed and done in one County and other persons shall be accessary in any manner to any such murder or felony in any other County That an Indictment thereof found or taken against such accessary Co. 9. 117. before the Iustices of peace or other Iustices c. in the County where such offence of accessarie shall be committed shall be good and effectuall in law And that the Iustices of Gaole delivery or Oyer and Terminer of or in such County where the offence of any such accessarie shall be committed shall write to the Custos Rotulorum where such principall shall bee attainted or convict to certifie them whether such principall bee attainted convicted or otherwise discharged of such felony And thereupon the Custos Rotulorum shall make certificate in writing under his seale to the said Iustices accordingly and then the Iustices of Gaole delivery or Oyer and Terminer shall proceed upon every such accessary in the County where such accessary became Accessary as if both the principall offence and accessary had beene committed and done in the said County where the offence of accessary was committed 16. So as by the letter of this last recited statute the jurisdiction over these last recited felonies and over such Accessaries is not committed to the Iustices of peace to proceed to the tryall of them But this authority is committed to the Iustices of gaole delivery or of Oyer and Terminer yet the Iustices of peace may examine these offences and take information against the offendors and certifie the same to the next generall gaole delivery and may bind over the Informers and commit the offendors Also the Iustices of peace may inquire thereof and take indictments against them as in other cases of felony 17. Lastly the Iustices of peace at their Sessions cannot make tryall of such as be indicted of Felonie before Coroners or before the Iustices of gaole delivery or of Oyer and Terminer unlesse the same persons scilicet the said Coroner Iustices of Gaole delivery Lamb. 530. or of Oyer and Terminer were also Iustices of peace in the same County so as the indictment may be understood to be taken by them as before Iustices of the peace For the Commission of the peace and the authority of Iustices of the peace extendeth onely to try such as stand indicted before themselves or before former Iustices of the P. or before the Sheriffe in his Tourne of the Steward in a Leete See the statute 1. Ed. 4. cap. 2. for indictments taken in the Sheriffes Tourne
and for Indictments taken in a Leet See Br. tit Leet 1. 18. But now to returne to the businesse of the Iustices of peace out of their Sessions If one shall bring a man suspected of Treason or felony before any Iust of P. but refuseth to be bound to give Evidence against the prisoner either at the generall gaole delivery or quarter Sessions as the case shall require If such bringer hath given Evidence before the said Iu. against the prisoner or can declare any thing materiall to prove the felony and will not Cromp. 10â— b. the Iustice of peace upon his discretion may commit to prison such person so refusing or may bind him to his good behaviour But if the bringer of a person suspected of felony cannot declare any thing materiall to prove the felony nor any other person then present the Iustice ought not to commit the prisoner yet the Iustice of peace shall doe well to examine the prisoner and if he shall confesse the felony then to commit him Or if upon his examination there shall appeare any just cause of suspition Or if the prisoner be a man of evill fame and that there be a felony committed in these cases the Iustice shall doe well not to let him goe but at least to bind him over to the next gaole delivery and in the meane time to take further information against him Now forasmuch as it appeareth that a great part of the office of a Iustice of pâ—ace is to be exercised in the apprehending examining and committing of felons it will be necessary to know first what offences are felony by the common Law And in the next place to set forth what offences are felony by the statute Lawes Felonies by the Common Law CHAP. 10. 1. FElonies by the Common Law are of diverse sorts as Homicide Burglarie Theft burning of houses Rescous and escape 2. Homicide Homicide most properly is hominis occisio ab homine facta for if a man be killed by a beast as a horse or dogge or by any other thing or mischance although that be hominis cedium of which two words Homicide is derived yet in such cases it is not aptly nor usually said that homicide is committed but onely a man is said to be slaine 3. Others doe thus defyne or describe it Homicide is the felonious killing of one man by another within the Realme and living under the Kings protection 4. But to kill a man beyond the Seas or to strike and give one a mortall wound beyond the Seas or upon the Sea whereupon he dyeth upon the land within this Realme these homicides are not punishable as felony by the common Law for that they cannot be inquired of nor tryed here 10. Caroli ca. 19. in Ireland for in criminall causes the rule is ubi quis delinquit ibi punietur But now by a statute made in 10. Caroli ca. 19. it is otherwise and by that statute these offences are felony and shall be tried here 5. But whether he that is slaine be an Alien or a Denizen an Englishman or stranger it maketh no difference if he live under the Kings protection Co. 7. 13. 14. Cromp. 24. 6. To kill a man attainted by verdict or by outlawry or otherwise of any murder felony or Treason is felony For none may kill or put to death any of these but the Officer of Iustice and that by warrant See Doct. Student f. 133. 7. To kill the Kings enemy is no Felony And by the statute of 25. E. 3. ca. 22. to kill a man attainted upon a praemunire is not felony but by a statute made in England in 5. El. ca. 1. it is declared to be Felony to kill one that is attainted in a Praemunire 8. Also to kill a man that hath abjured the realme is Felony See Co. 7. 9. b. and the Doct. and Student fol. 133. 9. Note that the Kings protection belongeth by the law of nature to all these Co. 7. 14. and the King may protect and pardon them all Homicide is threefold Voluntate est duplex Murder Manslaughter or Chancemedley Casu or misadventure this also is considerable after two sorts sc whether it happen in doing a thing lawfull or unlawfull Necessitate this is sometimes 1. Commanded sc in execution of Iustice 2. Tollerated 3. Prohibited for advancement of Iustice Se defendendo Felo de se 10. But first to write something of Felo de se Dyer 262 Plo. 261. 11. If a man kill himselfe either with a premeditate hatred against his owne life or out of discontent or other humor he is called Felo de se and he shall forfeit to the King his goods and Chattels reall and personall and his debts due to him by specialty Stamf. fo 188. Co. li. 4. fo 95. and also debts due to him without specialtie or upon simple contract and yet Dyer 262. 16. Ed. 4. 7. are that debts upon contract shall not be forfeited but Stamford fo 188. and Co. li. 4. fo 95. resolve that debts upon contracts shall be forfaited 12. But he shall not forfeite his lands Fi. Coro 301. Plo. 261. neither shall his blood be corrupt See Fitz. Coron 362. 426. 13. If a man doe give himselfe a deadly wound and dyeth thereof within the yeare and a day after Plo. 262. All his goods c. which he had the time of the blow given or at any time after shall be forfeited to the King 14. Yet the goods of felo de se Co. â— 110. 21. H. 7. 33. be not forfeited till his death be presented and found of record neither can these goods be claymed by prescription by Lords of liberties c. but by the Kings grant because the King is intitled by matter of record 15. If A. doe strike B. to the ground and then draweth his knife to kill B. and B. lying upon the ground 44. Ed. 3. 44. draweth his knife to defend himselfe and A. is so hasty to kill B. that he falleth upon B. his knife Fitz Cor. 94. and so A. is slaine here A. in a manner is Felo de se And yet shall not A. forfeite his goods in this case See 44. Ass p. 17. Br. Cor. 12. 14. 16. If one that wanteth discretion killeth himselfe as an Infant Stamf. 19. co 1. 9â— Plo. 269. F. Cor. 342. Co. 4. 125. or a man non compos mentis he shall not forfeite his goods c. 17. If a lunatique person killeth himselfe he shall forfeite his goods sc if he killeth himselfe out of his lunacy otherwise if he killeth himselfe during his lunacy 18. The enquiry of such a felony belongeth to the Coroher And yet if Felo de se be cast into the Sea Co. 5. 110. or so secretly buryed that the Coroner cannot have the sight of his body and so cannot enquire thereof then the Iustices of peace or any other having authority to
Peace there he shall be by the Iustice imprisoned in the gaole of the County where he is taken and after shall be removed by the Kings writ into the gaole of the County where he committed the felony but for those that do informe against such felons the said Iustice shall binde such Informers over to appeare and to give Evidence against such felons at the next generall gaole delivery to be holden in that County where the tryall of such murder or felony shall be whither also the said Iustice must certifie such information taken by him 3. If a man committeth a robbery or stealeth a horse 4 H. 7. 5. â—4 H 8. Br. Cor. 171. Co. 7. 2. beast or other goods in one County and doth carry leade or drive the goods into another County it is felony in every County whither he doth carry or drive those goods and the offendor may be indicted or appealed of felony or theft and be arraigned and have his judgement in any of those Counties but the offendor cannot be appealed or indicted of robbery but only in the County where the robbery was done for it is not robbery in any other County for Robbery must be done to the person of a man 4. If a felon doe steale another mans goods 11. E. 4. 3. 4. H. 7. 5. and after another stealeth the same from him the owner of the goods may charge the first or second felon at his choice 5. P.R. 130. Also if a man shall deliver cloth to a Taylor to make a garment if the cloth be stolne from the Taylor the offendor may be charged and indicted for stealing the same either at the owners suite or at the Taylors 6. Also an indictment may be Dyer 99. Quod bona Catalla cujusdam hominis ignoti felonice cepit and in such case any man may both informe the Court and by their direction may preferre an indictment against the felon and give Evidence to the Enquest therein And so if the owner be knowne and will not charge the felon therewith any other person especially after proclamation made in the Court that if any will enforme for the King Stamf. 163. he shall be heard may safely informe the Court preferre an indictment and give in Evidence for the King against the felon because it is for the K. advantage to have the forfeiture of the felons goods and in the two former cases if the Iu. of P. shall heare of any person that can informe any materiall thing against such a felon or against any felon the Iu. in his discretion may send for him take his information and may bind him to give evidence against such felon Dalton pag. 265. 7. Also if any robbery or Theft be committed and the party robbed or other owner of the goods will not charge the felon therewith yet every Iust of P. may cause such felon or any person suspected for such felony to be apprehended and may examine them thereof and also may send aswell for the party robbed c. as for all such other persons as can informe any thing materiall concerning the said felony and may take their informations upon oath and if upon such examination he shall finde cause the said Iustice may commit the offendors and binde over the informers 8. Note also for the better prevention and apprehending of felons that upon all homicides Huy Cry 3. E 1. c. 9. burglaries robberies and other felonies and when men are put in great danger Huy and Cry shall be levyed P. Fel. 38. Huy Cry 1. and every man shal I follow the Huy and Cry and whosoever doth not shall be attached to appeare before the Iu. of gaole delivery and any Iu. of P. may bind them over by the Commission of the peace 3. Ed. 1. c. 9. yea upon any felony committed all men generally shall be ready at the commandement of the Sheriffe or Constable and at the cry of the countrey to pursue and arrest felons upon paine to bee grievously fined 13. Ed. 1. c. 1. 2. 28 E. 3. c. 11. 9. And such Huy and Cry and pursuit shall bee made from towne to Towne and from Countrey to Countrey and shall be made by horsemen and footmen and in case of robbery if none of the felons be taken within Forty dayes after the felony committed 11. Caroli c. 13. in Ireland then the whole hundred where the robbery was done shall answere for the robbery done See Br. deâ— 104. and the damages but yet the inhabitants of any other hundred wherein negligence fault or defect of pursuit and fresh suite shall happen to be shall answere and satisfie the one moitie and halfe of all and every such summes of money and damages 3. H. 7. c. 1. Co. 7. 6. b. 10. And if a man be slaine in the day time in a Towne not walled and the murderer or manslayer escape the whole Towne shall be amerced for this escape But if it be in a City or Towne walled then if the murder or manslaughter were by day or by night they shall be amerced for the escape Fitz. Coron 238. 293. 302. Stamf. 33. l. 3. H. 7. 1. P. Coroners 13. 11. And if a man be slaine in the day time out of any Towne then the hundred shall be charged therewith and for the insufficiency of the hundred all the County shall be charged c. Stamford 34. f. yet see Dyer 210. b. that the towneship shall be amerced for the escape although the murder were committed in the fields of the Towne or in a lane c. and the Iust of P. are to inquire of such escapes and to certifie the same into the K. Bench. P. Iustices 19. 12. Also every man is a sufficient Bailiffe and officer to apprehend him that is pursued by Huy and Cry P.R. 156. and if he be taken with the thing supposed to be stolne though he neither be of evill fame nor a stranger yet every man may commit aswell such suspected person as also such goods to the Towne where they be apprehended to answere to the King according to the Law And the Constables of the Towne are to carry before some Iustice of peace aswell such prisoners as also the bringers that the Iustice may take there Information against such prisoner and may examine and commit such offendor or person so suspected 13. Dalton pag. 266. But if a man doe levy Huy and Cry upon another without cause both the one and the other shall be attached and carryed before a Iu. of P. to answere it as disturbers of the peace and to be bound to their good behaviour 14. Note also that the Kings officer may breake open any mans house to apprehend any felon 9. Ed. 4. 9. Co. 5. 92. or any person that is suspected of felony being in the said house 15. Watch. And for the better detecting and apprehending of such offendors in great Townes
me admonish all such as are to informe or beare witnesse against a prisoner or any offendour before a Iustice of peace or other Magistrate that they bee well advised what they testifie upon their oathes knowing that in such cases if either they should not speake the truth or should conceale any part of the truth they should offend against God the Magistrate the innocent the common wealth and their owne soules sc against God in despising of him and belying the truth Against the Magistrate in deceiving of him and causing him to doe Injustice Against the Innocent in spoiling him of his Name goods or life Against the Common wealth if the party be nocent or guilty and he cleares him by false witnesse And against his owne soule for it is perjury in him at least in the presence of God and good men Whether Information Evidence or proofe of witnesses shall bee taken against the King CHAP. 28. 1. IT seemeth just and right that the Iustice of Peace who taketh information against a felon or person suspected of felony should take and certifie as well such information proofe and evidence as goeth to the acquittall or clearing of the prisoner as such as makes for the King and against the prisoner for such information evidence or proofe taken and the certifying thereof by the Iustice of peace is only to informe the King and his Iu. of gaole delivery of the truth of the matter and such was the opinion of Sir Edward Coke at Lent Assises at Bury Dalton pag. 274. 5. Iac. as Master Dalton reporteth but the Iustices of peace or Coroner may not take such information evidence or proofe as maketh against the King upon oath for that is not warranted by the statute of 10. Caroli ca. 18. 2. Upon triall of felons before the Iustice of gaole delivery the said Iu. will often heare witnesses and evidence which goeth to the clearing and acquittall of the prisoner yet they will not take it upon oath but do leave such testimony and evidence to the Iury to give credit or to thinke thereof as they shall see and finde cause 3. Popham chiefe Iustice at Cambridge Assises tempore Eli. committed one to prison who upon the triall of a felon called out that he could give Evidence for the Queene and when he was sworne he gave Evidence to acquit the offendor 4. In 7. H. 4. we shall finde that one of the Serjeants Stamf. 141. b. as amicus Curiae Co. 4. 19. and to informe the Court that they should not erre did shew his opinion to the benefit of a prisoner upon the insufficiency of the Indictment 5. Now upon the examination of felons Causes of suspition and other like offendors these circumstances following are to be considered 1. His name scil if he be not called by divers names 2. Quality 1. His parents if they were wicked and given to the same kind of fault 2. His ability of body sc if strong and swift or weake or sickly not likely to doe the Act. 3. His nature of civill or hastie witty and subtill a quarreller pilferer or bloody minded c. 4. His meanes if he hath whereon to live or not 5. His trade for if a man liveth idlely or vagrant nullam exercens artem nec laborem it is a good cause to arrest him upon suspition if there have beene any felony committed 7. Ed. 4. 20. 6. His Company if Ruffians suspected persons or his being in company with any the offendors 7. His course of life sc if a common Alchouse-hanter or riotous in dyet play or apparell 8. Whether he be of evill fame or report 9. Whether he hath committed the like offence before or if he hath had a pardon or beene acquitted for felony before Nam qui semel est malus semper presumitur esse malus in eodem genere mali 3. Markes or Signes 1. If he hath any blood about him 2. If any of the goods stollen be in his possession 3. The change of his countenance his blushing looking downe-wards silence trembling 4. His answers doubtfull or repugnant 5. If he offred agreement or composition 6. The measure of his foot or horse foot 7. The bleeding of the dead body in his presence 8. If being charged with the felony or called theefe he saith nothing F. Cor. 24. 9. If he fled Fatetur facinus qui judicium fugit 4. The fact 1. Place sc if convenient for such Act as in a house in a wood Dale c. 2. Time the yeare day and houre early or late 3. Where the offendour was at the time of the fact and where the day or night before his businesse and company there and witnesse to prove all these 4. Manner if willingly by chance or necessitie 5. The cause 1. If former malice 2. If to his benefit or what hope of gaine 3. If for the eschewing of any hurt or danger 6. The persons Agens if principall or Accessary Enfant Lunatique c. Patiens if against the King common wealth Magistrate maister c. F. Cor. 211. 6. A felon brought before a Iustice of Peace accuseth others it is sufficient cause for the Iustice to grant out his warrant for the rest 7. A man going to execution accuseth another of felony it is sufficient cause to arrest him 8. Communis vox fama that he did the offence is sufficient cause of suspition Fama Br. Faux Impris 16. sc where such a felony is done otherwise not 9. But yet for the better conceiving what may breed or give just cause of suspition marke some of Master Bractons rules Stamf. 97. 1. For saith he Oritur suspitio ex fama fama vero quae suspitionem inducit oriri debet apud bonos graves non quidem malevolos maledicos sed providas fide dignas personas idque non semel sed saepius vanae autem voces populi non sunt audiendae And therefore where the common proverbe is Vox populi est vox Dei it should be Vox populi Dei est vox Dei 2. Si furtum in manu alicujus inveniatur vel sub potestate alicujus tunc ille in cujus domo vel potestate res furtiva inventa fuerit tenebitur Stamf. 29. nisi warrantum invenerit qui cum inde defendere possit for as another saith Cum adsunt testimonia rerum quid opus est verbis Stamf. 179. 3. Si quis noctu cubaverit in domo solus cum aliquo qui interfectus sit vel si duo aut plures ibi fuere hutesium non levaverit nec plagam a latronibus vel interfectoribus in defensione facienda accipere nec ostendunt quis de se vel de aliis hominem interfecerit his casibus mortem dedicere non possunt 4. Si quis in domum suam notum vel ignotum acceperit qui unius ingredit visus est Ibid. vero postea nunquam nisi mortuus dominus domus
Iustices of peace only or some of them that were present at the enquiry Co. 9. 11â— and when the indictment was found they only have power to make restitution except the Iustices of the Kings Bench who have a supreame authority in all cases of the Crowne 33. And therefore if the record sc the presentment of such force shall be certified by the Iustice of peace into the Kings Bench Or that the same prefentment or indictment shall be removed thither by Certiorari there the Iustice of the Kings Bench may award a writ of Restitution to the Sheriffe of the same County to restore possession to the party so expelled 34. After it shall be found by such Enquiry P.R. 14. b. that such forceible entrie or deteiner is made the Iustice of peace may breake open the house by force to reseise the same and to put the party so put out in possession againe And so may the Sheriffe doe having the Iustice warrant 35. The forme of such warrant from the Iustice of peace to the Sheriffe to make restitution you may see in the Title of warrants and presidents 36. But the Iustice of peace may not in any wise make restitution without such inquiry first had and such force thereby found And if the Iustice shall make restitution without inquiry it seemeth to be punishable in the Starchamber 37. Also this restitution ought to be made to none but to him only that was put out so that if the Father be put out by force and dyeth after inquiry and before restitution his heire shall not have restitution 38. Also such restitution must be made only where a man is put out or holden out c. of house or land and is not to be understood of a Rent Common Advowson or such like 39. Also the Iustice may make restitution notwithstanding any offer of Traverse but yet upon Traverse tendred the safest way for the Iustice of peace seemeth to be for him to deliver or certifie the presentment into the Kings Bench and so to referre the further proceedings therein to them 40. And although these statutes doe inflict no penaltie upon the Iustice of peace if they shall not execute these statutes yet if upon complaint or other notice to them given of such force they shall not at least remove the force record it and commit the offendors they are punishable in the Starchamber 41. Although the Iustice of peace ought to commit to the gaole and may fine all such as he shall see continuing the force at his comming to the place yet upon a force found by the inquiry only and not viewed and seene by the Iustice he may neither fine nor send to the gaole the said offendors by the statute of 8. H. 6. which appointeth the inquiry for the Iustice hath power by the said statute to make restitution only as saith Master Lambert Cromp. 161. b. yet Master Crompton holdeth the contrary But howsoever the Iust of P. is to remove the offendors that be present that so he may restore the other and may bind the offendors to their good behaviour and if the offendors be gone yet the Iustice may make his warrant to take the offendors and may after send them to the Gaole untill they have found sureties for their good behaviour 13. H. 4. ca. 7. 42. Note that if such forceible Entrie or detainer shall be made by three persons Cromp. 68. b. or moe then is it also a Riot and then if there be no former enquiry thereof made the two next Iustices of peace upon notice ought to inquire thereof as of a Riot by a Iury within one moneth upon paine to either of them making default to forfeite 100. l. Defaults of Sheriffes 43. Also one Iustice of peace may as it semmeth heare and determine the defaults of Sheriffes and Bailiffes in not returning sufficient Iurors whereof every one shall have lands 8. H. 6. 9. P. Iust 89. Rast 174. c. c. to the value of Forty shillings by the yeare at the least before him to inquire of such forceible Entrie or deteiner and the said Iustice of peace may proceede therein aswell by bill at the suite of the party grieved for himselfe as also by indictment only for the King And the same processe shall be made against such persons indicted or sued by Bill in this behalfe as should be made against persons indicted or sued by writ of Trespasse with force and Armes against the Kings peace 44. And though any one Iustice of peace may proceede in every of these former cases of forceible Entrie or deteiner as aforesaid yet if two or more Iustices shall joine therein together it is the better foâ— plus vident oculi quam oculus securius expediuntur negotia pluribus â—â—â—missa Co. 4. 46. 〈…〉 45. Also the Mayors and Iustices of Peace and the Sheriffes and Bailiffes of Cities and Burroughes having Franchise 8. H. 8. 9. Rast 174. d. have in the said Cities townes and Burroughes like authoritie to inquire of such Entries or putting out and in other the Articles aforesaid rising within the same as the Iust of Peace and Sheriffes in Counties and Shires have 46. The stat of Northampt. Also every Iustice of Peace to whom a writ upon the statute of North-hampton concerning the removing of a force shall bee delivered ought to execute the same writ sc hee ought to remove the force and to certifie his doings therein into the Chancerie 1. Ed. 3. 3. 47. And for that the Iustices of peace to whom this writ shall be delivered is herein but a minister and is to certifie that which he shall doe therein I will here set downe the manner how hee shall proceede to execute this writ 1. When the Iustice of Peace shall come to the place where the force is supposed by this writ he may cause three Oyes for silence to be made and then he may make Proclamation in the Kings name to this effect The Kings Majesties Iustice of Peace straightly chargeth and in his Majesties name commandeth all and every person to keepe silence whilst his Majesties writ c. be read and proclamation be thereupon made accordingly 2. Then may he read or cause to be read the writ or may declare the effect thereof 3. Then let three other Oyes be made And thereupon make proclamation againe as followeth His Majesties said Iustice doth in his Highnesse name and by vertue of his Majesties writ straightly charge and command that no manner of person of what estate degree or condition soever now being within the house of B. c. named in the said writ shall goe armed or keepe force of armour or weapon nor doe any thing there or elsewhere in disturbance of his Majesties peace or in offence of the stat made at North-hampton in the 2. yeare of King E. 3. upon paine of loosing his said armour and weapons and of imprisoning his bodie at his
restitution if hee shall continue a peaceable posses againe for three yeares together then it seemeth he may justifie the Deteiner of the posses thereof by force by vertue of the Proviso in the stat of 8. H. 6. 5. If a Disseisor hath continued his possession peaceably three yeares and after the disseisee doth reenter 23. H. 8. Br. force 22. or doth make his claime so neere as he dareth and then the disseisor reentreth againe or continueth his possession after such claime here the disseisor cannot justifie to hold the same with force Lit. 429. for by the reentry or claime of the disseisee the first disseisin and possession of the disseisor was determined and the disseisor is in of a new disseisin 6. Also if he that hath been a lawfull possessor of lands by the space of Twenty yeares together be once clearely and wholly removed from the possession of the same land hee cannot come with force or multitude to put himselfe in possession thereof againe and to detayne the same with force because his possession was once interrupted and if he be indicted upon the statute of 8. H. 6. for such Forceible Entry he shall not be relieved touching the restitution by the stat of 10. Carol. for that hee had not the occupation of the said lands nor had been in quiet possession thereof by the space of three yeares together next before the day of such indictment found How many severall remedies the party hath which forceibly is either put out or kept out of the possession of his houses or lands CHAP. 33. 1. FIrst the party so grieved having an estate for life Action upon the statute of 8. H. 6. 1. R. 2. ca. 9. 8. H. 6. ca. 9. F. N. B. 348. c. c. 249. 2. co 10. 115. in Taile or Fee may have his Assise or action of trespasse of Forceible Entry upon the statute of 8. H. 6. against such disseisor and therein if the defendant be attainted of force he shall fyne to the King and also answere to the plaintiffe his treble damages and treble Costs of suit and also the plaintiffe shall thereupon have a writ of restitution to restore him to his former estate 2. But this action being the suit of the party and onely for the right 9 H. 6. 16. this remedy by action is only where the Entry of the defendant was not lawfull Fitz. 248. h. for if a man entreth with force where his Entry is lawfull as if the disseisee shall enter upon the disseisor with force he shall not bee punished by action But yet he may be indicted upon the statute Br. force 29. and upon such indictment found the party put out shall be restored for the indictment is for the force and for the King and here the offendor shall make fyne to the King although his right be never so good Br. Force 11. 3. Also the party so grieved if hee will loose the benefit of his treble damages and costs Writ upon the statute of Northampton he may be aided and have the assistance of the Iustices of peace and that after diverse sorts first he may purchase a writ out of the Chancery directed to the Sheriffe only or the Sheriffe and Iustices of peace and to every of them for to remove the force and this is upon the statute of Northhampton 2. E. 3. cap. 3. the forme of which writ you may see F. N. B. 249. f. Cromp 74. 162. 4. But upon this writ the Iustice of peace is to proceed only as a minister and is to certifie his doings herein and that Iustice of peace to whom the writ shall be delivered ought for to execute it scil he may remove the force but here he may not put the party in possession againe who was put out Indictment in Sessions 5. Also the party grieved may at the generall Sessions of the peace within the same County preferre his bill of indictment upon the statute of 8. H. 6. for such forceible entry or deteiner which being found there Dyer 187. Cromp. 165. the complaynant shall be restored to his possession by a writ of restitution granted out of the said Court to the Sheriffe 6. Also the party so grieved for a more speedy remedy may complaine to any one or more Iustices of peace of the same County of the said force By the In out of Sessions and thereupon the said Iustice of peace may ex officio Dalton 191. 192. and without any writ either doe execution of the statute of Northhampton as aforesaid Or else the said Iustice of peace upon such complaint may goe to the place where such force is to see it and may remove the force and arrest and commit the offendors which he shall find committing the force and shall also keep a speciall Sessions to inquire of the said force and if upon such inquiry such force shall be found then the said Iustice shall restore the party grieved to his possession againe and here no other Iustice of peace can grant a Supersedeas to stay the same restitution Dalton 192. 7. Also the party grieved may remove such indictment found either at such generall or speciall Sessions by a Certiorari into the Kings Bench and the Iudges of that Court may award a writ of restitution to the Sheriffe of the County to restore possession to the party Eâ—quirie 8. Now when the Iustice of peace shall make such inquiry he shall direct his precept or warrant to the Sheriffe commanding him to cause to come before the said Iustice of peace Dalton ibid. at some good Towne neere to the place 24. sufficient and indifferent persons dwelling neere to the said lands or tenements whereof every one shall have in lands or tenements 40 s by the yeare at the least to inquire upon their oathes of such force 9. Upon default of apparance of those Iurors the Iust of peace may award an alias and after that Pluries in finite till they come 8. H. 6. c. 9. but so that at the day of the second precept or writ the Sheriffe must returne 40 s in issues upon every one of them and at the third writ 5. li. and at every day after the double 10. And although any of such Iurors shall not have 40 s land per annum yet their presentment of such force is good for the King so as the offendors shall be fined to the King But the party shall have no restitution upon such a presentment if it be pleaded at or before the time of the awarding of the restitution for the statute of 8. H. 6. ca. 9. requireth that such Iuror shall have 40 s freehold per annum at the least 11. If the Sheriffe shall returne smaller issues upon the Enquirors then the statute doth appoint yet the party indicted shall not impeach the enquiry therefore neither is it cause to impeach the enquiry though the Iustice of
peace doe not goe to see the place where the force is 12. And it is convenient upon such enquiry that the Evidence be given openly to the Iury to the intent it may appeare to the Iustices of peace or Court whether there shall be reasonable cause to stay restitution or no after the indictment found See Dyer 122. Of restitution to be made to the party put out CHAP. 34. 1. I Will here shortly recite the words of the statute Restitution which for this businesse of restitution will give the better light which are as followeth videlicet 8. H 6. ca. 9. And if upon such enquiry it be found before the said Iustices that any have done contrary to this statute viz. have entred or held with force the said Iustice of peace c. shall reseise the said lands or tenements so entred upon or holden and put the party so put out in full possession of the same lands and tenements so entred or holden as before 2. Here we see that after such forceible Entrie P.R. 35. or holding so found by enquiry the said Iustice of peace c. shall remove the force sc all such offendors as shall be found in the house or upon the lands that either entred or held with force and upon the prayer of the party so put out the said Iustice of peace shall restore him to his possession againe 3. And herein the Iustice of peace needeth not to stay or stand upon the right and title of either of the parties as is said before 4. But no restitution shall be made but where the forceible entry or detainer is first found by Inquisition Br. force 27. 5. Concerning this Inquisition or Indictment the Iustices of peace shall doe well to peruse and regard the same Cromp. 166. to see if it be sufficient Indictment the forme for the Iustice of peace ought not to award restitution where the indictment shall appeare to them to be any way insufficient in the Law either in matter or forme Dalton 193. 6. First therefore to have restitution the putting out by expresse words must be in the indictment and found by the Inquisition for another man may enter upon me and yet not put me out and then there needs no restitution to be made by the Iustices 7. And this putting out is to be understood only of the house or land Ibid. and not of a rent common advowson and such like into which an actuall Entry cannot be made and therefore none shall have restitution but such only as are put out of the house or land as is formerly ca. 29. herein declared Ibid. 8. Also the indictment ought to expresse the quality of the thing entred upon c. sc whether it be a messuage cottage meadow pasture wood or land errable for if the indictment be quod manuforti intraverunt in tenement c. it is void for the incertainty because the word tenementum may extend to either of them 9. Also the indictment must have these words sc adhuc extra tenent 14. H. 6 16. Br. force 13. otherwise the party shall have no restitution and yet these words be not in the statute but without these words in the Indictment it may be supposed and thought that he which put me out hath left the possession againe or that I have gotten it againe and then the restitution is needlesse Dalton 193. 10. So as in every such indictment these words are materiall sc expulerunt adhuc extra tenent And for lack of either of these words no restitution shall be made or awarded 11. Also one of these two words Manuforti or cum multitudine seeme to be materiall in the indictment Dalton 194. unlesse they be implyed by reciting the statute of 8. H. 6. and concluding contra formam statut predict or by some other words in the Indictment See the presidents herein in the title of warrants and presidents Cromp. 162. 12. If a man shall be restored upon an insufficient indictment taken before the Iustice of peace and this be removed into the Kings Bench the Court there will cause the party to be restored that before was put out by the Iustice of peace by a writ of restitution Cromp. 165. 166. b. 13. Also if error or insufficiency be in the indictment taken before Iustices of peace yet restitution is awarded by them any two of those Iustices of peace which were present at the taking of the said indictment upon the prayer of the party may at another Sessions grant and award a Supersedeas to the Sheriffe to stay the same restitution Dyer 187. if the Sheriffe hath not made restitution before the Supersedeas come to his hands but no other Iustice of peace besides those which were present at the taking and finding of the said indictment can grant a Supersedeas if the indictment were found at a speciall Sessions 14. A man is indicted that he entred with force and held with force and upon the traverse it is found that he entred with force Cromp. 165. but not that he held with force yet this indictment seemeth good enough and the party shall be restored 15. So if two be indicted of a forceible Entrie or deteiner Severall indictments and upon the traverse it is found that the one entred with force and the other held or detained with force yet the party shall be restored Ibid. 16. If it be found by one Enquest that A. put me out by force Dalton 194. Cromp. 166. Br. force 6. and by another Enquest that I did put out A. by force either of us may pray to have restitution against the other but he that is first restored is in the worst case for the other may have restitution afterwards and then he that had restitution first is without remedy by the hands of the Iustice of peace saving that he may reenter if he can peaceably or have his action 17. If it be found by one Enquest that A. did put mee out by force and by another Enquest taken at the same Sessions that B. did put me out by force I may chuse upon whether of these indictments I will be restored Cromp. 166. and if I have restitution against A. and this be returned I cannot have restitution upon the other Dalton 194. But if upon the writ of restitution it be not returned that I have restitution then I may afterwards have restitutiō against B. upon the other Indictment if B. hath reentred upon the first restitution made to me 18. Dalton 194. 195. A. is disseised or put out with force by B. and after B. is put out with force by C. and all this is found by one and the same Inquisition here B. may have restitution against C. for B. hath more right to the possession than C. and then may A. have restitution against B. but upon this Inquisition if A. have restitution
diem with meat and drinke for his Iourneyman and 12. d. sterling with meat and drinke for a boy that can scarce bore a hole as it should be and this I speake of mine owne knowledge and therefore I wish that the Iustices of peace would henceforth better remember their oaths the duty of their places and the good of the common wealth then hitherto they have done but if the Iustices of peace shall wilfully continue still their neglect herein I cannot but let them know that for this their neglect they are and that worthily for their neglect to be punished in the Starchamber Misprision CHAP. 43. 1. THere be also certaine offences which by the common Law are misprision of treason or felonies or at least punishable in the same degree and more 22. Ed. 3. 13. Stamf. 38. as to draw a sword to stricke a Iustice sitting in place of Iudgement to strike a Iuror in the presence of the Iust sitting in place of judgement Stam. 37. 38. Br. contempts 9. 0. or to stricke another in the house where the Courts of Iustice are kept sitting any of the Kings Courts there or to draw any weapons therewithall to strike any person in the presence of the Iustices P. Paine 16. or to make any Affray in their presence they sitting in Iudgement or to rescous any such offendor these are such misprisions for which the offendour shall have more grievous punishment then for misprisions of Treason or felony for in these cases the offendor shall not only forfeit all his goods and chattels and the profits of his lands during his life and be imprisoned during his life but also shall have his hand cut of 28. El. ca. 7. in Ireland 2. The counterfeiting of the coine of gold or silver of other Countreyes which is not currant in this Kingdome is by a statute made in 28. Eliz. ca. 7. enacted to be misprision of high treason in the Actors their procurers ayders and abettors Stamf. 37. d. Cromp. 44. 3. Note that every treason or felony doe include misprision so that where any person hath committed treason or felony the King may cause the offendor to be indicted and arraigned but of misprision Stamf. fo 37. 4. Misprision of Treason or felony is properly when one knoweth that another hath committed or is about to commit any treason or felony but was not or is not consenting thereto and yet will not discover the offendor to the King or his Councell or to some Magistrate but conceales both the offence and the offendors Br. Treason 19. Stamf. fo 38. 5. For misprision of treason the offend or shall forfeite to the King all his goods and chattels for ever and the profits of his lands during his life and also shall be imprisoned during his life but for misprision of felony the offendor shall be only fined and ransomed as it seemes 3. H. 7. 10. Br. Treason 25. and shall be committed to prison untill he hath paid his fine 3. H. 7. fol. 10. 6. Note for the offendors in high treason misprision of treason and praemunire that although the Iu. of Peace by their Commission nor by statute cannot medle with them in the very point of their offences saving in some particulars and that by way of inquiry only which you may see hic antea tit felony yet for that all treasons and such other offences are against the peace of the King and of the Realme therefore upon complaint made to the Iustice of peace or other knowledge had by him of any such offendors it shall be his part to cause such offendors to be apprehended and to take their examinations and the information upon oath of such as bring them or of others that can prove any thing materiall against them and to put the same in writing under the hands of the Informers and then to commit the offendors to the Gaole Dalton p. 212. and also to bind over by recognisance all such as doe declare any thing materiall to appeare and give evidence against such offendors before the Lords of the Kings Majesties privy Councell or elsewhere when they shall be called upon reasonable warning or before the Iustices of Assises at the next generall gaole delivery and after to certifie their doing therein to some of the Lords of his Majesties said Councell Nightwalkers CHAP. 44. 1. EVery Iustice of peace ex officio and by the first Assignavimus of the Commission may cause to be arrested all Nightwalkers 13. H. 7. 1â— Dalton pa. 76. be they strangers or other persons that be suspected or that be of evill behaviour or of evill fame and more particularly all such suspected persons as shall sleepe in the day time and goe abroad in the night season haunt any house that is suspected for bawdery or shall in the night time use other suspitious company or shall commit any other outrages or misdemeanors and may force them to finde surety for their good behaviour see the title surety for the good behaviour Peace CHAP. 45. 1. EVery Iustice of peace hath authority and power given him by the first Assignavimus or clause in the Commission Dalton pa. 79. to keepe and cause to be kept the Kings majesties peace by force of which words they have aswell the ancient power touching the keeping of the peace which the ancient conservators of the peace had by the common Law as also all authority which the statutes since have added thereto and so they may cause to be kept all the statutes and Lawes now in force which beene made for the peace or keeping thereof and more especially they may arrest or cause to be arrested and sent to the Gaole all Traitors Murtherers Robbers and Felons and persons suspected of such things and all such are guilty of any misprision or praemunire 2. They may also suppresse and bind to the peace or good behaviour all Affrayors Dalton p. 80. and all persons unlawfully and riotously assembled or unlawfully wearing armour or any weapons by night or by day or otherwayes putting the people in feare and all unlawfull nightwalkers and barrettors and the like all which may well be said to be disturbances or breaches of the peace see more fully of these under their particular Titles Posse Comitatus CHAP. 46. 1. VVHere the Iustice of peace Sheriffe or other officer is enabled to take the power of the County it seemeth they may command and ought to have the helpe and attendance of all Knights Gentlemen Yeomen Husbandmen Labourers Tradesmen Servants and Apprentices and of all other such persons being above the age of fifteene yeares and that are able to travell 2. But women Ecclesiasticall persons and such as be decrepit or diseased of any continuall infirmity shall not be compelled to attend them 3. And in such cases it is referred to the discretion of the Iustices of peace or Sheriffe c. what number they will have to attend upon them and
how and after what manner they shall be armed weaponed and otherwise furnished 4. But it is not justifiable for the Iustices of peace Sheriffe or other officer to assemble posse comitatus or raise a power or assembly of people upon their owne heads without just cause What persons may take posse comitatus and in what â—ases CHAP. 47. Dalton 314. 1. ANy Iustice of peace or Sheriffe may take of that County where he is a Iustice or Sheriffe any number that they shall thinke meete to pursue apprehend arrest and imprison Traitors Murderers Robbers and other felons or such as doe breake or goe about to breake or disturbe the Kings peace and every man being required ought to assist and aide them 2. The Iustice of peace and Sheriffe or undersheriffe may take posse comitatus Dalton ibid. for the suppressing of riots and all sorts of persons being able and required ought to assist them therein 14. H. 7. 8. 3. Yea any one Iustice of peace may take the power and aide of the whole Countrey to suppresse Rioters and needs not to tarry for the comming of another Iustice or of the Sheriffe Dalton 314. 4. Also in cases of forceible entry any Iustice of peace may take posse comitatus to remove such persons as by his view or by inquisition taken before him shall be found to have made any forceible entry into other mens possessions or to detaine them with force 3. H. 1. 7. 10. Co. 5. 1. 15. p. Distr 4. pretor 5. Br. fine p. 27. Br. Riots 23. 5. The Sheriffe Undersheriffe or Bailiffe c. if need be may by the common Law take the power of the County what number they shall thinke good to execute the Kings processe or writ be it a writ of execution replevin estreperment capias or other writ it being the Kings commandement see also the statute Westm 1. 17. Westm 2. 39. and such as shall not assist them therein being required shall pay a fine to the King 6. 3. H. 7. 1. Br. Trespasse 266. The Sheriffes Bailiffe to execute a Replevin tooke with him three hundred men armed modo guerino with brigandines jacks and guns and it was holden lawfull for the Sheriffes officer hath power to take assistance aswell as the Sheriffe himselfe for that all is one office and one authority 7. Dalton 324. A man demands the peace in the Chancery against a great Lord and hath a supplicavit directed to the Sheriffe there if need shall be the Sheriffe may take his posse comitatus to aid him to arrest such a Lord c. 8. So it seemeth if a supplicavit be directed to a Iustice of peace Dalton ibid. the Iustice of peace or the officer to whom the Iustice of peace shall make his warrant in this behalfe upon resistance made may if need be take posse comitatus to aid him to arrest the party quia quando Co. li. 5. fo 115. aliquid mandatur mandatur omne per quod pervenitur ad illud Co. 5. 115. 9. The Sheriffe may take Posse comitatus to apprehend felons c. or disturbers of the Peace 10. So he may take Posse comitatus to execute the precept of the Iustice of Peace 11. 3. H 7. 10. 1â— H. 7 19. Bâ— Trespassâ— 432. The Constable of the Towne upon a treason or felony committed or upon any affray or the like may take the aide of his neighbours or other persons being present to apprehend the Traytor or felons or to cause the peace to be kept and to carry the offendors before the Iust of peace 12. One hath hurt another whereby he is in perill of death 38. Ed 〈◊〉 the Constable may take power or aide to arrest him that did the hurt Praemunire CHAP. 48. 1. EVery Iustice of peace may cause all such as are suspected to have fallen into the danger of a Praemunire to be arrested and to commit the offendor upon probable proofe thereof and this he may doe by the first assignavimus of the Commission for nothing can be more against the peace and good governement then bringing in and extolling of forraigne Iurisdictions and authority and therefore it will be needfull to informe the Iustices of peace what offences by the lawes and statutes of force in Ireland will bring a man into the danger of a Praemunire 2. At the common law before the statute of 25. Ed. 3. de proditionibus the extolling of forraigne Iurisdiction was Treason but by that statute the law is altered and as well in that Parliament as in many other parliaments severall provisions have beene made against offendors of this kinde the substance and effect of which statutes are here expressed as followeth videlicet Rome Abbies Priories 3. In anno 25. E. 3. c. 22. It is ordained that because that some doe purchase in the Court of Rome provisions to have Abbies and Priories in the Kings Dominions in destruction of the Realme and holy Religion every man that purchaseth such provisions of Abbies or Priories that he and his Executors Executors and Procurators which doe sue and make execution of such provisions shall be out of the Kings Protection Protection and that a man may doe with them as with enemies of our Soveraigne Lord the King and the realme and he that shall commit any thing against such provisors in body or in goods or in other possessions shall be excused Excused against all people and shall never be impeached or grieved for the same at any mans suit 4. Afterwards in anno 27. E. 3. ca. 1. another statute was made to this effect that is to say because that it is shewed to the King by the grievous and clamorous complaints of great men and commons how that diverse of the people be and have beene drawne out of the realme to answer of things whereof the cognisance pertaineth to the Kings Court and also that the Iudgements given in the same Courts be impeached in another Court in prejudice and disherison of the King and of his Crowne and of all the people of his said realme and in the undoing and destruction of the common Law of the same Realme at all times heretofore used whereupon good deliberation being had with the great men and other of his said councell it is assented and accorded by our soveraigne Lord the Kings and the great men and commons aforesaid that all the people of the Kings liegeance of what condition that they be which draw any out of the Realme in plea whereof the cognisance pertaineth to the Kings Court Court or of things whereof Iudgements be given in the Kings Court or which doe sue Sue in any other Court to defeat or impeach the judgements given in the Kings Court shall have day containing the space of two months by warning made to them in the place where the possessions be which bee in debate or where they have lands or other
if it be not within the moneth then the two next Iustices are in danger to loose each of them 100. l. for their neglect and yet if these Iustices doe charge the Iury within the moneth and doe give day unto them for to yeild their verdict and presentment after the moneth the statute is not offended 65. At this enquiry the Sheriffe or undersheriffe ought to be present with the Iustices of peace Ibid. but the Sheriffe or undersheriffe be now as ministers only for the returning of the Iury for the enquiry and be not herein associated with the Iustices as they were before in arresting the rioters and recording their disorder and therefore they are now to be spared from being Iudges therein howbeit by this their presence they may helpe to espy the evill and besides it addeth force and credit to the certificate 66. If the Iustices doe assemble themselves the Sheriffe and the Iury Cromp. 62. P. R. 29. to make enquiry of a riot within the moneth and the parties been agreed amongst themselves so as none will sollicite the inquiry nor give in Evidence for the King upon the riot yet ought the Iustices to proceed ex officio to make inquiry of that riot seeing it may be that some of the Iury may have knowledge of the riot 67. And also the Iustices ought to make Proclamation that if any man will give Evidence for the King concerning that riot or generally will informe the Kings Iustices of any Riots Routs c. and thereupon some other persons may perhaps come forth to informe them therein P. R. 29. Cromp. 62. 68. But if at the parties request the Iustices shall dismisse the Iury without inquiry they are fineable in the Starchamber to the King for the same Dalton 105. 69. And if the Iustices shall not proceede herein ex officio without some will give in Evidence for the King they shall be in danger to lose 100. l. a peece upon this statute for the reasons abovesaid Ibid. 70. And it seemeth that the Iustices may justly binde to their good behaviour the parties that first complained to them of this riot and have caused them to meet and now will not prosecute the same for the King but have agreed it 13. H. 4. 7. P 2. Heare and determine 71. After such enquirie made and riot found the said Iustices have authoritie by the said statute to heare and determine the same according to the law viz. they may make out proces against the offendors under their owne test thereby to cause the offendors to come in and answere and may assesse their fynes Dalton 105. and may commit them to prison till they have paid the same and may deliver them after payment of the said fyne Br. Impris 100. or upon sureties taken for it which sureties ought to be bound by recognisance or otherwise they may receive their traverse and thereupon if the matter will so serve to discharge and dismisse them but then the said Iustices shall doe well to send such indictment or inquisition found and such traverse to the next Quarter Sessions or into the Kings Bench and there the traverse shall be tryed and determined according to Law P. R. 30. 72. But when men are indicted of Riots or the like they will usually yeild themselves and pray to be admitted to their fine in which case the Iustices of peace commonly doe assesse but some small fyne and upon the payment thereof doe discharge the offendor and hereby the offendors are not imprisoned which would worke more feare in such offendors then such fyne and therefore it is behoovefull for the Iustices of peace to use good care and discretion herein for by the statute the offendors are aswell to be imprisoned as fyned and it seemeth much more serviceable and more agreeing with the intent of the Law besides this fine called by diverse old statutes ransome Mar. ca. 1. 2. 3. 4. or redemptio in Latine seemeth by the propriety of the word to imply that the offendor ought first to be imprisoned and then to be ransomed and delivered in consideration of this fyne Dalton p. 105. or otherwise the statute is not fully executed in all points as it ought to be 73. Ibid. And these fynes the Iustices of peace are now willed by the statute 2. H. 5. ca. 8. to put in greater summes then they were wont to be put in such cases for the bearing of the charges of the Iustices and other officers c. 74. At the common Law a Riot was punishable as a Trespasse and aswell the fyne as the imprisonment were at the discretion of the Iudges and in the same manner the statute of 13. H. 4. enableth the Iustices of peace to punish such offendors but now aswel the imprisonment as the fine of such offendors are to be encreased by the said statute 2. H. 5. 75. And therefore where the Iustices of peace are remisse herein Cromp. 63. P. R. 24. scil in not sufficiently punishing such offendors by due fyne and imprisonment the Lords in the Starchamber may and doe often assesse upon Riotters for the same Riot for which the Iustices of peace have formerly assessed a fine in the Countrey a greater penalty if they see cause and yet 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 76. Lastly if the truth Certificate 13. H. 4. 7. 19. H. 7. 13. P. 3. 15. or Riot cannot be found by the Iustice of peace upon such enquiry being hindred by the perversenesse of the Iurors or by the unlawfull maintenance or imbracery of others then within one moneth next after the enquiry the same Iustices and Sheriffe or undersheriffe shall certifie before the King and his Councell scil into the Starchamber Dalton pa. 107. or to the body and board of the privy Councell or into the Kings Bench the whole fact and circumstances thereof with the certainty of the names of the principall offendors P. 15. and also the names of such mainteiners and embracers with their misdemeanors and of the time place and other circumstances and impediments yet the not certifying of the maintenance or embracery is but forfeiture of twenty pound a peece to every of the Iustices and Sheriffe the not certifying the rest P. 13. But such traverse and certificate shall be sent into the Kings Bench and there be tryed P. 1â— is a forfeiture of 100. l. Cromp. 63. b. 199. b. 77. The end of this certificate is but onely to put and force the offendors to answer thereto before the King and his Councell and though the words of the statute doe make this certificate to bee of the force of a presentment of twelve men against the offendors yet such certificate is no Conviction but that the offendors may traverse it by the words of the same statute and
be intended of men travailed Travailed men that goe begging through the Countrey after their arrivall 6. Also by a statute made in Ireland in Anno 33. H. 8. ca. 14. 33. H 8. ca. 148 in Ireland It is ordained that where in all places throughout this realme of Ireland Vagabonds and beggers have of long time encreased and daily doe encrease in great and excessive numbers by the occasion of idlenesse mother and root of all vices whereby hath insurged and sprung and daily insueth and springeth continuall thefts murders and sundry other heynous offences and great enormities to the high displeasure of God the inquietation and damage of the Kings people and to marvellous disturbances of the common wealth of this realme and whereas many and sundry good lawes strait statutes and ordinances have beene before this time devised and made as well by the said King H. 8. as also by divers his most noble progenitors Kings of England for the most necessary and due reformation of the premisses yet that notwithstanding the said number of Vagabonds and beggars be not seene in any part to be minished but rather daily augmented and increased into great Routs and companies the Iustices of peace of all and singular the shires within the limits of their Commissions and all other Iustices of peace Mayors Sheriffes bailiffes and other officers of all and every Citty Borrough Ridings or Franchises within the realme of Ireland within the limits of their authoritie shall from time to time as often as need shall require by their discretions divide themselves within the said shires Citties boroughs ridings or Franchises whereof they be Iustices of peace Mayors sheriffes bailiffes or officers and so being divided shall make diligent search and enquirie of all aged poore and impotent persons which live or of necessitie are compelled to live by almes of the charitie of the people that be or shall be hereafter abiding within every hundred rape wapentake Cittie borough parish libertie or Franchises within the limits of their division and after and upon such search made the said Iustices of peace Mayors Sheriffes bailiffes and other Officers that is to say every of them in the limits of their authorities whereunto they are divided shall have power and authoritie by their discretions to enable to begge within such hundred rape or wapentake Citty Towne parish or other limits as they shall appoint such of the impotent persons which they shall finde and thinke most convenient within the limits of their division to live of the charitie and almes of the people and to give in commandement to every such aged and impotent begger by them enabled that none of them shall begge without the limits to them so appointed and shall also register and write the names of every such impotent begger by them appointed in a bill or roll indented the one part thereof to remaine with themselves and the other part by them to be certified before the Iâ—â—tices of peace at the next Sessions after such search had to be holden within the said shires Cities Townes or Franchise there to remaine under the keeping of the Custos Rotulorum and that the said Iustices of peace Mayors Sheriffes bailiffes and other officers that is to say as they be divided shall have power and authoritie to make such and so many seales to be engraved with the names of the hundreds rapes wapentakes Cities Boroughs townes or places within the which they shall appoint and limit every such impotent person to begge and commit the said feales to the custodie of such of them or to the custodie of such a one as they shall thinke convenient and shall make and deliver to every such impotent persons by them enabled to beg a letter containing the name of such impotent person and witnessing that he is authorised to begge and the limits within which he is appointed to begge the same letter to be sealed with such of the said seales as shall be engraved with the names of the limit wherein such impotent person shall be appointed to begge in and to be subscribed with the name of one of the said Iustices or officers aforesaid and if any such impotent person so authorished to begge doe begge in any other place then within such limits that he shall be assigned unto that then the Iustices of peace Maiors Sheriffes Bailiffes Constables and other the Kings officers and ministers shall by their discretions punish all such persons by imprisonment in the stocks by the space of two dayes and two nights giving them onely but bread and water and after that cause every impotent person to be sworne to returne againe without delay to the hundred rape wapentake City Burrough Towne Parish or Franchises where they be authorised to begge in and that no such impotent person as is above said shal begge within any part of this Realme except he be authorised by writing under seale as is abovesaid and if any such impotent person be vagrant and going a begging having no such letter under seale as is above specified that then the Constables and all other inhabitants within such Towne or Parish where such person shall begge shall cause every such begger to be taken and brought to the next Iustice of peace or high Constable of the hundred and thereupon the said Iustice of peace or high Constable shall command the said Constables and other inhabitants of the Towne or Parish which shall bring before him any such begger that they shall strip him naked from the middle upward and cause him to be whipped within the Towne where he was taken or within some other Towne where the same Iustice or high Constable shall appoint if it shall seeme to the discretion of the said Iustice of peace or high Constable that it be convenient so to punish such begger to him brought and if not then to command such beggar to be set in the Stocks in the same Parish where he was taken by the space of three dayes and nights there to have only bread and water and thereupon the said Iustice or high Constable before whom such begger shall be brought shall limit to him a place to begge in and give to him a letter under seale in forme above remembred and sweare him to depart and repaire thither immediately after his punishment to him executed and that if any person or persons being whole and mighty in body and able to labour be taken in begging in any part of this Realme or if any man or woman being whole and mighty in body and able to labour having no land master nor using any lawfull merchandize craft or mysterie whereby he might get his living be vagrant and can give no reckoning how he doth lawfully get his living that then it shall be lawfull to the Constables and all other the Kings officers ministers and subjects of every Towne Parish and Hamlet to arrest the said Vagabonds and idle persons and them bring to any of the Iustices of
alledged by the defendant whereupon the issue in every such Action shall be joyned to be tryed by verdict of twelve men and upon the tryall of that issue the whole matter to be given on both parties in Evidence according to the very truth of the same and after such issue tryed for the defendant or nonsuite of the plainetiffe the sad defendant shall recover treble damages by reason of his wrongfull vexation in that behalfe with his costs also in that part sustained and that to be assessed by the same Iury or by writ to enquire of damages as the same cause shall require And it is further enacted that the Iustices of Assize in their severall circuits shall have full power to enquire of all defects defaults and negligences of any Iustice of peace or any other officer person or persons whatsoever in the not due execution of this Law and also of all offences done contrary to the intent and true meaning thereof and to punish the same by fyne or imprisonment or otherwise according to their discretions Suretie for the peace CHAP. 56. 1. Dalton 140. SUretie for the peace is the acknowledging of a Recognisance or bond to the King taken by a competent Iudge of Record for the keeping of the peace and it is called surety of the word securitas because the party that was in feare is thereby the more secure and safe 2. This surety for the peace F. N. B. 7. 9. h. Lamb. 77. every Iustice of peace may take and command in two manners or by a twofold authority 3. First as a Minister commanded thereto by a higher authority as when a writ of supplicavit directed out of the Chancery or Kings Bench is delivered to his hands upon this writ that Iustice of peace only to whom such writ was delivered is to direct his warrant to cause the party to be brought before him alone to finde sureties for the peace and therein the said Iustice is to doe in every behalfe according as the writ doth direct him 4. Secondly as a Iudge and by vertue of his office and of his owne power derived from his Commission he may command this surety of the peace to be found and that either of his owne motion and discretion or else at the request or prayer of another 5. The Iustice of peace upon his owne motion and discretion may if he see cause command surety for the peace to be found or may bind a man to the peace and that against all the Kings subjects Vpon discreton Dalton 141. if the Iustice shall so thinke fit in these cases following 6. One that maketh an assault or affray upon the Iustice of peace himselfe the Iustice of peace may commit him to prison 5. H. 7. 6. till he hath found sureties for the peace or if he please for the good behaviour 7. So of such as in his presence shall make an affray upon another P. R. 18. 19. or shall stricke or assault or offer to stricke another 8. So he may doe of such as in his presence and hearing shall threaten to kill beat or hurt another or to burne his house 9. So likewise may he doe of such as in his presence shall contend in hot words P. R. 1â— for from thence oftentimes doe ensue affrayes and batteries and sometimes mischiefes yea manslaughters and murders See Cromp. 761. 142. P. R. 4. 10. So also may he doe of such as shall in his presence goe or ride armed offensively or with an unusuall number of servants or attendants for these are accompted to be in affray and feare of the people and a meanes of the breach of the peace so of servants and labourers that shall beare any weapons contrary to the statute of 20. R. 2. ca. 1. 9. Ed. 4. 3. P. R. 18. 11. Also he may binde to the peace any other person by him suspected to be inclined to the breach of the peace 12. If out of the presence of the Iustice of peace any man shall threaten to kill Cromp. 135. 143. P. R. 22. maime or beate another or doe attempt or goe about to doe it then any Constable being present or at the prayer of the other party may arrest such offendor to come before a Iustice of peace to finde sureties for the peace Fit bar 202. and the Iustice may bind him to the peace 13. If any Constable shall perceive any other persons in his presence 14. H. 7. 7. to be about to breake the peace either by drawing weapons or by stricking or assaulting one another or by assaulting the Constable himselfe he may take assistance and carry them all before the Iustice to finde sureties for the peace and the Iustice may bind them accordingly and for default of sufficient sureties the Iustice of peace may commit them to the gaole untill they finde such security 14. If the Constable shall learne that certaine persons be fighting or quarrelling in a house P. R. 22. he may breake open the doores and arrest them and bring them before a Iustice of peace to finde surety of the peace and the Iustice may bind them to the peace or in default of such sureties commit them to the gaole Dalton 141. 15. Yea the Iustice of peace either upon his owne discretion or upon any mans complaint may make his warrant for any such as have made an affray though out of his presence and may bind them to the peace or commit in default of sufficient sureties 16. If one hath received a wound the Iustice of peace may take surety of the peace of the one See Br peace 21. and the other by his discretion untill the wound be cured and the malice be over Popham the Lord chiefe Iustice of England an honourable and grave Iudge did accordingly betweene Iames and Benton at Cambridge Assizes 3. Iacobi 17. All such as shall goe or ride armed offensively in faires markets 2. Ed. 3. ca. 3 or elsewhere or shall weare or carry any guns daggs or pistols charged Dalton 142. in disturbance of the peace or terror of the people any Constable seeing this may arrest them and may bring them before any Iustice of peace and the Iustice may bind them to the peace yea though those persons were so armed or weaponed for their defence for they might have had the peace against the other persons whom they feared and besides it striketh a feare and terrour in the Kings subjects 18. Also the Iustice of peace upon his discretion may bind to the peace a common Barretor Ibid. and so he may Riotters 19. If he that standeth bound to keepe the peace hath broken 21. Ed. 4. 40. or forfeited his recognisance the Iustice of peace ought and may of his discretion to bind him anew but that must not be done untill the party be convicted of the breach of the peace upon his recognisance for before his conviction it resteth indifferent
whether the recognisance be forfeited or no but after that he is thereof convicted Br. peace 17. the recognisance is utterly determined Cromp. 42. and then he is to be compelled to finde new surety or else to be sent to the gaole 20. So it seemeth if the Iustice of his owne knowledge know that the party which was bound hath sithence his entring into bonds broken the peace he shall be bound of new and if he refuse to finde new sufficient sureties he shall be committed to prison Cromp. 141. Br. recog 21. 21. Also he that standeth bound to keepe the peace Dalton 14â— if his sureties be insufficient the same Iustice or another Iustice of the peace may compell him to finde better sureties or else commit him to the gaole 22. And in many of the former cases the Iustice of peace ought of duty or at least in good discretion to command the surety for the peace although the same be not required by any other person and if any such person shall refuse to give such surety the Iustice of peace ought to send him to prison there to remaine untill he shall finde such surety 23. 9. Ed. 4. 3. Br. peace 8. If a Iustice of peace upon his owne discretion shall cause one to be arrested to finde sureties for the peace and shall after let him goe without taking surety or binding him to the peace yet the party hath no remedy for an Action will not lye against the Iustice of peace he being a Iustice of Record See 9. H. 6. fo 60. 9. Ed 4. fo 3. Br. Iudges 2. 10. 24. A Iustice of peace may perswade a man to require the surety of peace against another and he himselfe may grant a warrant for it P. R. 18. Dalton 143. because it is no more then he might have granted of his owne authority without any demand made and it shall be presumed that he saw cause to doe all this 25. Also at the request or prayer of another Vpon request the Iustice of peace may command this surety of the peace and may grant his warrant for it 26. But here the Iustice of peace must and ought to take an oath of the party that demandeth the peace F. N. B. 7â— â— which oath must be to this effect scil that he standeth in feare of his life Dalton 143. or of some bodily hurt to be done to himselfe or to have his houses burned and that he doth not crave the peace for any private malice or for vexation but of very feare and for the needfull safety of his body or houses for the words of the Commission herein are Et ad omnes illes qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorum suarum minas fecerint ad sufficientem securitatem de pace c. inveniendam c. 27. So as he that shall be threatned to be hurt in his body scil to be beaten Ibid. wounded maimed or killed the party so threatned may crave and have the surety of peace against the other Ibid. 28. Also if a man doe feare that another will kill maime beat assault or hurt him in body he may crave the peace against such other person 29. So if a man doe feare that another will burne his house 30. So if a man doe feare that one will procure or cause any such hurt to be done him by another Ibid. either in his body or in his house for the words of the recognisance be non faciet neque fieri procurabit Ibid. 31. So if a man lieth in waite to beate kill or hurt another it is good cause to require this surety Cromp. 135. Ibid. 32. If a man be threatned to have his goods burned it seemeth by the opinion of Master Fitz. that he may demand surety of the peace for this 17. Ed. 44. Br. peace 22. 33. But where a man shall threaten to imprison another it is holden that the peace shall not be granted for this may be intended to be by legall processe but if one shall threaten another of his owne wrong without any legall processe to Imprison him by force and violence it seemeth to me that this is good cause not onely to grant security for the peace but also for the good behaviour for to threaten such imprisonment is within the words minas de corporibus and like harme may happen to a man by hard imprisonment as by cruell beating of him and to threaten such imprisonment seemeth to be a good cause to avoide a deed aswell as to threaten to kill or maime one c. 39. H. 6. Br. Duress 9. Fitz. Na. Br. fo 80. g. Dalton 144. 34. Where a master is in feare that another will hurt his servants or his Cattell or other goods this surety of the peace shall not be granted by the Iustice of peace but in this case Master Fitzherbert saith the party may have a speciall writ out of the Chancery directed to the Sheriffe that he shall cause such person to finde surety that he shall doe no hurt nor damage to the other man in his body or to his servants or goods and if he will not finde surety that then he shall arrest and detaine him in prison untill he shall finde surety and that the Sheriffe shall certifie all that he shall doe thereupon into the Chancerie c. and it seemeth the Sheriffe ought to take such surety by recognisance and yet if a man shall threaten to hurt my servant or my wife or child I see no cause but that in their behalfe I may crave the peace at the Iustices hands by the words of the Commission and that the Iustice ought to doe it 35. If a man will require the peace because he is at variance or in suite with his neighbour it shall not be granted by the Iustice of peace Br. Impris 41. P.R. 14. 36. Note also that the surety for the peace shall not be granted but where there is a feare of some present or future danger and not meerely for a batterie or trespasse that is past or for any breach of the peace that is past for this surety of the peace is only for the security of such as are in feare â—â—â—â—â—metus est presentis vel futuri periculi causa mentis trepidatio so this surety is providere praesentia futura non praeterita 37. And as for a battery or other like trespasse that is past Dalton 144. the party wronged may have his Action of trespasse or battery c. or may punish the offendor by indictment at the Kings suit and yet in such case the Iustice may if the party hurt do pray it or upon any good circumstance if he see cause bind the party that made the affray to the peace 38. If the Iustice of peace shall perceive that this surety for the peace is demanded meerely of malice
or for vexation only Ibid. without any just cause of feare it seemeth he may safely deny it as in common experience we finde it that where A. shall upon just cause come and crave the peace against B. and hath it granted to him when B. shall come before the Iustice B. likewise will crave the peace against A. and will perhaps surmise some cause but yet will neverthelesse be content to surcease his suit and demand against A. so as A. will relinquish to have the peace against him here the Iustice of peace shall doe well as I thinke not to be too forward in granting the peace thus required by B. but to perswade with him and to shew him the danger of his oath which he is to take but yet if B. will not be perswaded but will take his oath that he is in feare where indeed he neither doth feare nor hath cause to feare the Iustice may if he please upon such oath to grant the peace and this oath shall discharge the Iustice and the fault shall remaine upon the party but in such case I thinke it better discretion in the Iustice to forbeare taking of such oath and the security for the peace then to grant it 39. The Law hath conceived such an opinion of the peaceable disposition of noble men Noble men that it hath beene thought enough to take one of their promisses upon his honour that he would not breake the peace against a man Br. contempts 6. 24. Ed. 3. 3. and 17. Ed. 4. 4. 40. And therefore if a man shall have cause to have the surety of the peace against a Lord of the Parliament or such great and noble personage he shall not have a warrant from the Iustices of peace to that purpose nor yet have a supplicavit out of the Chancery directed to the Iustices of peace therefore but if there be cause he may have a Sub poena out of the Chancery of common right as it seemeth and there such Lord or noble man shall be bound to the peace and yet if such Lord will not appeare upon the Sub poena served Fitz. subp 20. it seemeth an attachment will lye against him upon such his default Master Cromp. fo 134. b. saith that it was held in the case of the Lord Cromwell in the Chancery about 18. Eliz. that an attachment lieth not against a Lord where he maketh default upon a Sub poena against him out of the Chancery Dyer 315. seemeth to accord but I conceive that this opinion is no Law but that for a personall contempt in a noble man an attachment lyeth or he may be fined by the Court for his contempt Co. 6. 53. 54. 11. H. 4. 15. Br. Rep. 19. 41. But though it be true that the persons of Barons who are peeres of the Parliament shall not be arrested for or in cases of debt or trespasse by their bodies first in respect of their dignity secondly that the Law presumeth that they have sufficient lands and tenements wherein they may be distrained yet in cases of contempt it seemeth they may be arrested by capias or attachment c. Fitz. subp 20. 42. Or else it seemeth that the party may crave the peace in the Chancery against such Lord or peere sc to have a supplicavit directed to the Sheriffe and that the Sheriffe may and ought to execute the same and that if the Sheriffe shall not doe his office therein an alias plur attachment lieth against him F.N.B. 79. g. and if the Sheriffe shall returne that such Lord is puissant that he cannot arrest him upon such return the Sheriffe shall be grievously amerced for he might have posse comitatus sc he might have levyed 300. men by his discretion if there had beene need Crom p. 134. to have aided him in such case and if such Lord or peere who is by the Sheriffe so arrested shall refuse the arrest and shall make a rescous whereupon the Sheriffe shall returne a rescous hereupon an attachment shall be granted out against such Lord to arrest and take his body for such his contempt Co. 6. 52. 53. 43. The same Law and remedy seemeth to be where a man hath cause to have the surety of the peace against a Dutchesse Countesse or Baronesse for they are Peeres of the Realme and shall be tryed by their peeres although in respect of their sexe they cannot sit in parliament and they are in the same degree as concerning their nobility and the priviledges incident to their dignities with Dukes Earles and Barons but here note this diversity sc if such a woman being a Countesse or Baronesse c. by marriage only shall marry againe under the degree of nobility she hath thereby lost her name of dignity together with the priviledges of her said nobility also as it seemeth for in such a case si mulier nobilis nupserit ignobili deserit esse nobilis Co. ibid. and that which was gotten by marriage may also be lost by marriage for eodem modo quo quid constituitur dissolvitur but if shee be noble by birth or discent whomsoever shee shall marry yet she remaineth noble for birthright est character indelebilis 44. And yet by the curtesie of England if women get to any degree of estate they never lose it by marriage but doe still take place according to the estate of their first husband but this matter of curtesie hath no place in legall proceedings Dalton 146. 45. Suretie of the peace may be granted by the Iustice of peace against a Knight and against all other lay persons being under the degree of a Baron or peere of the Realme and they shall be bound with sureties 26. H. 6. 23. Br. Maigne 14. 15. 46. Ecclesiasticall persons if they be not attending upon divine service may be arrested for the peace and they shall be bound with sureties but whilst they are doing any divine service in the Church Churchyard or other place dedicated to God they may not be arrested 5. Ed. 3. 5. P. Arrests 1. See the stat 1. R. 2. cap. 15. 47. Surety of the peace may be granted against the Sheriffe Dalton 146. Coroner Escheator and other such officers of Iustice but Master Marrow adviseth that such persons be not bound versus cunctum populum but only against such person as shall demand it least otherwise it should argue them unworthy of their offices 48. One Iustice of peace may grant this surety to any man Dalton 146. Lambert f. 80. against one of his fellow Iustices but great discretion is herein to be used otherwise he shall bring the office into contempt and himselfe to reproofe by it saith Master Lambert but although one Iustice of peace may take a recognisance of the peace of one of his fellow Iustices yet if his fellow Iustice shall refuse to finde such security I cannot conceive that the Iustice of peace may commit his fellow Iustice for
inter pares non est potestas 49. One Iustice of peace may demand this surety of the peace at the hands of his fellow Iustice against another man 50. The wife may demand this surety against her husband Wife Fitz. 80. f. Dalton 148. if he shall threaten to kill her or outragiously beate her or if the wife hath any notorious cause to feare that he will doe so and it shall be granted her by the Iustice of peace or shee may have it by supplicavit in the Chancery Fitz. Na. Br. fo 238. fo Br. peace 23. 51. Ibid. The husband for the like causes may demand surety for the peace against his wife 52. Dalton 147. Also the Iustice of peace upon his owne discretion may in either of the aforesaid cases betweene the husband and the wife especially happening in his presence grant surety of the peace 53. An Infant under the age of 14. yeares may demand this surety Dalton 147. and it shall be granted him 54. Ibid. Also this surety of the peace may be granted at the prayer of any person against a feme covert or against an Infant though he be under fourteene yeares of age for if such an Infant hath discretion to demand the peace c. then hath he discretion to breake the peace 55. Ibid. But an Infant and a feme covert shall be bound by sureties onely and they themselves shall not be bound and if they cannot finde sureties they shall be committed to prison untill they have found sureties and yet if an Infant shall be bound to the peace c. by recognisance taken by a Iustice of peace Co. 10. 43. Cromp. 237. b. it seemeth he shall be estoped to avoid such a record if he doth not avoid it during his minority for it is not voide but voidable by audita quaerela 56. Dalton 147. But if a feme covert shall be bound or acknowledge such a Recog though her husband joine therein with her yet it is meerely voide as to the wife although she over liveth her husband 57. If a man be of non sanae memeriae Ibid. this surety shall neither be granted against him nor to him upon his request and yet if there shall be cause the Iustice of peace upon his discretion ought to provide for his safety 58. A man that is lunaticke scil who at some seasons hath the use of reason and at other times not it seemeth this surety of the peace may be granted against him and also that he may demand the same against another See Co. 4. 124. 11. 77. 59. And if one of non sanae memoriae or a lunaticke be himselfe bound by recognisance before a Iustice of peace to keepe the peace it seemeth such recognisance shall bind them and all others for ever 60. A man that is deafe dumbe and blind shall not have this surety Dalton 147. for he hath no understanding to aske it and yet such a person or any other person not having reason to demand the peace if there because the Iustice of peace upon his discretion ought to provide for their safety 61. A man that is borne dumbe and blind may have understanding Ibid. and therefore it seemeth this surety may be granted to him or against him 62. But a man that is borne dumbe and deafe can hardly have understanding for though the sight be the chiefest sence yet by hearing we come chiefely to knowledge and therefore it seemeth not grantable to him or against him 63. And this surety of the peace may be granted against an impotent person although he be such a one as is not like to breake the peace himselfe but he may procure another to kill or beate one and the common forme of recognisance is to bind a man from procuring hurt aswell as from doing hurt Cromp. 134. 64. This surety of the peace may also be granted to or against a man attainted of treason or felony 65. A man excommunicate may have this surety granted to him or against him 66. So also of a man that is abjured the Realme for notwithstanding the abjuration he oweth the King his legeance and remaineth within the Kings protection and the King may pardon and restore him againe qui abjurat regnum amittit regnum non regem Co. 7. 9. b. 67. A man attainted in a praemunire may not have this surety granted to him in Ireland but in England he may have it for by a statute made in England in anno 5. El. ca. 1. It is ordained that it shall not be lawfull to kill such a one but this statute is not of force in Ireland Cromp. 134 P.R. 19. 68. An alien borne who is made Denizen may have this surety and so of an alien borne who liveth in England under the Kings protection although he be not made Denizen Co. 7 17. 69. And so of an alien whose King is in league with our King or if there be no warres betweene this Realme and that Realme whereof the alien is for by the common Law all these may get and have within this Realme any personall goods and may sue for the same and so have the benefit of the Kings Lawes and protection but an Alien who is the Kings enemy Dyer 2. scil where there is open warre betweene our King and his King shall not have such surety granted to him nor any other benefit of the Kings Lawes 70. Who shall be said to be an Alien See Co. 7. 16 17. 71. In Calvins case 6. Co. 7. 18. Iac. reg there is a difference taken betweene antenati and postnati in Scotland where it is holden that antenati in Scotland sc such as were borne there before that Kings happy comming to the crowne of England are here aliens borne the reason is for that at the time of their birth they were under the legeance of another King and he could not be a Subject borne of the Kingdome of England that was borne under the legeance of a King of another Kingdome and yet it is manifest that antenati being the Kings Subjects are herein provided for by the Commission it selfe the words whereof are ad omnes illos qui alicui vel aliquibus de populo nostro c. of which number antenati be so as they may and ought to have this suretie granted them as well as any other Subjects See Dyer fo 304. 72. But it may be questioned whether an infidell pagan or Iew Co. 7. 17. shall have this securitie granted them for in law they are perpetui inimici there is perpetuall enmitie betweene the Christians and them and there can be no peace neither can they get any thing within this realme nor maintaine any action at all 12. H. 8. 4. 73. A villaine may have this suretie of the peace against his Lord and the Lord may have it against his villaine and yet it maketh no manuimission although it were demanded
by the Lord without any protestation c. How this Suretie of the peace may be commanded and how the same commandement shall be executed CHAP. 57. 1. THe Iustice of peace may command this suretie of the peace either by word only or by writing 2. By word only the party being in his presence as if in the presence and hearing of the Iust of peace one man doth threaten another or shall make an affray or assault upon another 14. H. 7. 8. or doe some other like thing tending to the breach of the peace the Iustice of peace may command him by word to finde sureties for the peace and for want of such sureties may commit him to prison untill hee shall finde the saâ—e 3. Also if one shall demand this surety against another 14. H. 7. â— who is then in the presence of the Iustice of peace and will be sworne that hee is affrayd of him the Iustice may by word command him to finde sureties for the peace 4. And the Iustice of peace in such cases 14. H. 7. â— â— may by word only command the Constable or any knowne officer or his owne servant being then present to arrest such party to finde sureties for the peace and if the party shall refuse to finde such sureties then the Iustice of peace may commit him to the gaole 5. By precept or warrant in writing and under seale and this must be directed to some officer or other indifferent person By writing and must containe the cause and at whose suit to the intent the party to be bound may provide his sureties and take them with him The forme of which precept See postea tit Warrants and Presidents Co. 5. 59. 6. The Iustice of peace may make his warrant to bring the party before himselfe to finde suretie for the peace by the opinion of Wray chiefe Iustice Br. peace 9. for he that maketh the warrant for the most part hath the best knowledge of the matter and therefore is the fittest to doe Iustice in that case and yet the most usuall manner is to make such a warrant to bring the party before the same Iustice or some other of the Iustices of peace of the same County 21. H. 7. 21. c. and Iudge Fineux his opinion was that where a Iustice of peace doth make a warrant for the party ex officio there the party may choose to appeare before him or any other Iustice in that County and that the party may have his action of false imprisonment against the officer if he doe otherwise compell him How it shall be executed 5. Ed. 4. 13. 7. The Constable or other officer before he arresteth the party upon such a warrant ought first to acquaint him with the matter and withall to require the party in the Kings Name to goe with him before the Iustices to finde sureties according to the warrant and if the party shall refuse either to goe before the Iustice P. R. 20. and Cromp. 235. or to finde sureties then the officer may arrest him by vertue of that warrant and may convey him to the gaole without carrying him to any Iustice of peace and there the party shall remaine untill he shall voluntarily offer and find sureties 8. But if the partie shall yeeld to goe and finde sureties then the officer may not absolutely arrest him but yet the officer is not bound to goe up and downe with him to finde sureties but may keepe the party untill he can procure sureties to come to him yet if afterwards the party shall make any resistance or shall offer to goe his way then the officer may arrest him and by vertue of that warrant may carrie him to the gaole and may also imprison him in the stockes untill he can provide aide to convey him to the gaole 14. H. 7. f. 10. 2. Br. peace 9. When the party commeth before the Iustice of peace by force of this warrant or by force of any other warrant for the peace or good behaviour or for a riot or the like the party must offer sureties to the Iustice of peace or else the Iustice may commit him to the prison for the Iustice needeth not to demand surety of him 10. Also after that the party shall be brought before the Iustice if before him he shall refuse to finde sureties the officer without any new warrant or commandement may carry the party to prison co 5. â—â— and that by the words of the first warrant and if he shall refuse this to doe that then c. see the forme of the warrant in the title of warrants and presidents 11. If the officer doe arrest the party 5. Ed. 4. 6. P. R. 20. and doe not carry him before some Iustice of peace to finde sureties c. or upon the refusall of the party if the officer shall arrest him and doe not carry him to the gaole in both these cases the officer is punishable by the Iustices of peace for this neglect by fyne at their Sessions and also the party arrested may have his Action of false imprisonment for the arrest for where the officer doth not pursue the effect of his warrant his warrant will not excuse him of that which he hath done 21. H. 7. 23. a. See 3. H. 7. fo 3. b. Bryan 12. And if the party be imprisoned for default of sureties and after he that demanded the peace against him happen to dye or shall release the party it seemeth in these cases the Iustice of peace may make his liberate or warrant for the delivery of such prisoner for after such death or release there seemeth no cause to continue the other in prison also any Iustice of peace may upon the offer of such prisoner take surety of him for the peace c. and may thereupon deliver him 13. It seemeth by some opinions 4. Ed. 4. â—6 2. H. 7. 24. Br. priviledge 35. 52. Lambert 96. that if the party imprisoned for not finding sureties hath a suite depending in the common place he may by the course of that Court by a writ of priviledge be discharged of his imprisonment if the other party be not ready in the Court at the day of the returne of the writ to pray sureties of the peace but if upon the returne of the habeas corpus the cause be returned as it ought to be the Court will not discharge him without finding such surety for he that demandeth the peace is not to have notice of the removing of his body and then how can he be ready in the Court of common place at the day and therefore it were a hard case that he should be so defeated of his surety 14. If the party hath gotten sureties then if the warrant proceed ex officio and not upon the writ of supplicavit and be a generall warrant scil to come before me or some other Iustice Co. 5. 59. Br. exâ—mp 11. Br.
send this to the Sessions this shall discharge his bonds without his personall apparance at the Sessions 30. 28. H. 8. Dyer â—o 29. A man being arrested by the Sheriffe upon a capias found sureties for his apparance at the day and after there came a Supersedeas to the Sheriffe and it was moved whether it were necessary for the defendant to appeare or not or that this apparance and surety were discharged by the Supersedeas Lib. Int. 453. and the opinion of that Court was that he ought to appeare for the saving of his bond also the presidents of Entries are that the party bound did shew his Supersedeas in Court and prayed allowance thereof and was thereupon discharged Now concerning the recognisance for the peace CHAP. 58. 1. THis recognisance Recognisance which the Iustice taketh for the keeping of the peace is rather of congruence then by any expresse authority given them Fitz. Na. Br. 82. a. 7. H. 7. 34. 2. And this recognisance for the peace if the Iustice of peace doth take it by force of the writ of supplicavit then he ought to execute it and to doe in all things as the writ directeth him but where such writ prescribeth 〈◊〉 the same c. or such like that resteth in his owne discretion 3. But if he taketh the recog ex officio and by force of the Commission and so is a Iudge not as a minister then it resteth in the discretion of the same Iustice of peace wholly to appoint and allow the number of sureties their sufficiency in lands or goods the summe of money wherein they shall be bound and to limit the time how long the party shall be bound and such other circumstances 7. H. 4. 34. 4. In the booke 7. H. 4. fo 34. you shall finde the principall to be bound in 1000. l. and foure sureties every one of them in one thousand marks before Iustices of peace for the keeping of the peace 5. The Iustice of peace may examine upon their oathes the sureties concerning their sufficiency Br. imp 18. and that seemeth to be the usage in the Courts at Westminster and Master Crompton saith that the Iustices of peace in their Sessions may doe it Cromp. 194. 6. The most usuall manner and safest way for the Iustice of peace is to take two sureties at the least and those subsidie men besides the party himselfe and to bind them by recognisance to the King viz. domino Regi and it must alwayes be for the keeping of the peace Lamb. 104. 7. And yet by the opinion of Master Marrow who was in the time of King H. 7. a Iustice of peace might have taken this surety by a gage pawned to him only but this is not the course at this day but the security ought to be by recognisance 8. Also by his opinion a Iustice of peace might have taken this surety by an obligation made to himselfe by the name of a Iustice of peace but this course is not now in use and the safest way is by recognisance which is the usuall way for via trita is via tuta and to ground his proceeding upon conceits 9. Yet if a Iustice of peace had enjoyned a man upon paine of 20. l. to keepe the peace this had beene nothing worth but in this F.N.B. 81. d. and the former two cases and the like this one general ground or reason may be given for all sc that a man cannot be bound to the King but only by matter of record and therefore such suretie taken by gage or obligation or such enjoyning of the peace seemeth nothing worth to binde the party 10. A Iustice of peace may take a recognisance and thereby may binde the party to keepe the peace for one yeare or for a longer time by his discretion yea he may binde the party during his life upon reasonable cause 11. If the recognisance be made to keepe the peace generally without any day or time limited it shall be construed to bee during the parties life 12. A Iustice of peace intending to take a recognisance for the peace and yet maketh no mention therein Dalton 155. nor in the condition thereof that it is for the preservation of the peace it seemeth to bee voide as being taken coram non judice for a Iustice of Peace hath no authoritie to take a recognisance generally but for matters concerning his office specially 13. If the Recognisance be that the party bound shall not beat nor maime A. yet it is not good Ibid. because it ought to bee for the keeping of the peace generally and the peace may bee broken by burning the house of A. or the like 14. If the Recognisance doe not limit any time of apparance but be generally to keepe the peace yet it is good for the time of apparance is referred to the discretion of the Iustice and the chiefe scope is the keeping of the peace by Master Marrow 15. Also by his opinion if the Recognisance doe limit a time of apparance but therein is no person named before whom the party so found shall appeare then may he appeare where he will before that Iustice of peace which tooke the recognisance ibidem but in that case I thinke the Condition is voide by reason of the incertainty 16. But in the two last cases if a recognisance should be taken in such maner at this day I should thinke it safe for the party to appeare at the next Sessions for the peace and there to record his apparance but to avoide these doubts let the Iustice of peace expresse that the party shall appeare before his Majesties Iustices of peace at the next generall Sessions of the peace to be holden in that County or at the next generall Assise and gaole delivery before his Majesties Iustices of gaole delivery in that County and in so doing these scruples are avoyded 17. If the Recognisance be to appeare at any other Sessions after and not at the next Sessions yet the Recognisance is good Crom. 141. P. Iust 106. and yet by the statute of 3. H. 7. cap. 1. It is enacted that every Recognisance taken for the peace by the Iustice of peace ex officio shall bee certified sc sent or brought in at the next Sessions of the peace and there delivered to the Custos Rotulorum or else the Iustice of peace is fineable but it doth not therefore follow that every Recognisance taken for the peace ought to be to appeare at the next Sessions but that it ought to be brought in and then the party may be called at the time expressed in the Recognisance and not before 18. If the Recognisance be in Twenty pounds to be levied of his lands only or of his goods only yet it is good and these words only may seeme voide for the acknowledgement of the Recognisance before a competent Iudge both maketh it a debt Dalton 1 55. and implieth the ordinary
to prison thereto remaine untill he shall finde sureties and yet the writ of supplicavit is to commit the party to the gaole if he shall refuse before the Iustices si coram vobis vel te recusaverit but the Iustice or Sheriffe cannot give their power to another to take this surety for that is a judiciall power which cannot be assigned over neither can they make any Deputy therein but they must take this surety themselves Br. office 39. 11. If the party shall make resistance upon the execution of this writ it seemeth the officer may take posse comitatus to aid him to arrest such party 12. F.N.B. 80. d. He that is to be bound to the peace by force of this writ of supplicavit out of the Chancery is to bee bound against him only that sueth out the writ as appeareth by the forme of the writ aforesaid 13. But yet at this day it is used otherwise Dalton p. 165. and Master Dalton saith that he once received out of the Chancery a speciall writ of supplicavit directed custodibus pacis ac vic eorum cuilibet commanding them to take sureties of the peace to be bound quod ipse damnum vel malum aliquod alicui de populo nostro precipuè eidem Ioh. c. that sued out the writ non fac nec fieri procurabit c. 14. Also by this writ of supplicavit the party against whom the writ is sued forth shall be bound to the peace for ever if he be taken for the writ containeth or mentioneth not that he shall be bound to keepe the peace untill any certaine time but generally ad sufficientem securitatem inveniend sub poena c. and therefore to prevent this the party before he be attached may come into the Chancery and there finde sureties and be bound untill a certaine day that he shall doe no hurt unto the party that sued forth the supplicavit and thereupon he shall have a supersedeas out of the Chancery directed to the Iustices of peace and to the Sheriffe commanding them to surcease to arrest the said party or to compell him to finde any sureties c. and that if they have arrested him for this cause and none other that then they deliver him c. Fitz. 81. a. F.N.B. 81. 2. Cromp. 144. 15. And if the party against whom this writ is sued forth cannot travell or else will not travell to bind himselfe in the Chancery then he may cause some of his friends to be bound for him or to finde sureties in the Chancery for him according to the supplicavit and thereupon they may purchase for him a supersedeas directed to the Iustices of peace and to the Sheriffe and by this supersedeas the Iustice and Sheriffe shall be commanded to take also surety of the party himselfe in the County according to the writ of supplicavit that he shall keepe the peace c. 16. Also if the party happen to be arrested and imprisoned upon this writ yet if he can procure a supersedeas out of the Chancery it seemeth by the words in the end of the supersedeas that this will discharge him of the arrest or imprisonment 17. Note after the party is arrested and imprisoned upon this writ the meanes for him to procure a supersedeas out of the Chancery must be 18. Either to get some of his friends to be bound in the Chancery for him and they to get a supersedeas ut supra 19. Or else to get a certificate to the Lord Chancellor from 3. or 4. Iustices of peace in his behalfe 20. This writ of supplicavit is granted or to be granted in the Chancery or Kings Bench F.N.B. 79. h. upon great cause shewed and proved there and is or ought to be granted upon oath that the party is in feare c. of some bodily hurt c. Co. 8. 37. 21. And it is to be wished that in the granting thereof great care be taken for oftentimes this writ of supplicavit is procured and gotten out rather of malice and for vexation then upon any needfull and just cause and Sir Edward Coke speaking of such as malitiously shall purchase out any such speciall supplicavit or latitat of the peace and that by fraud and malice to inforce the other party ad redemendam vexationem to give them money or to yeild the other composition brandeth them as Barreters and notable oppressors of their neighbours oppressing the poore and innocent by colour and countenance of Law which was ordeined to protect the innocent from all oppression and wrong neither is this a wrong only to the party thus malitiously vexed but also to all the Iustices of peace resident in that County taxing them tacite as though the demandant could not have Iustice at their hands in such a case whereas perhaps the demandant never demanded the same at any of their hands and besides the Iustices of peace having in all likelihood knowledge of each party and of their behaviours or any one of them might and would no doubt yea and ought to have yeelded the demandant upon request and just cause shewed to them as sufficient and good surety in the Countrey every way See more before in this title as I conceive it for his safety as namely as many and able sureties and better knowne and to have beene bound in as great summes and for as long time if the case should require so as what should move them to seeke with more trouble charge and delay to themselves that security above which they may have more speedily and with lesse charge and trouble at home I see not but onely or chiefely the vexing and oppressing of their neighbours aforesaid and for that this manner of oppressing beginneth to grow over common therefore I thought it not amisse here to observe what remedy the Iustices of peace in the Countrey by some opinions may by their discretion yeild to their innocent neighbours against whom for vexation onely such a writ shall be malitiously procured scilicet 22. Where one hath procured a supplicavit out of the Chancery or Kings Bench against another if he hath not before demanded this surety of the peace at the hands of some Iustice of peace in the Countrey or that the party against whom he hath procured the supplicavit be one of such condition and sort as that in likelihood the Iustices of peace in the Countrey will not deny to grant such surety against him then if three or foure of the next Iustices of peace in the Countrry shall certifie to the Lord Chancellor if the supplicavit proceeded out of the Chancery that the party plainetiffe never demanded the peace in the Countrey and further that the plainetiffe is a contentious man and the other party of good fame upon such certificate as is said they will discharge the party or grant a supersedeas 23. Note to conclude this businesse if the surety of the peace be taken by vertue of a
Ed. 2. P. Leete 1. 20. All these former offendors and the like are evill members in the common wealth and such their demeanor and living is greatly to be suspected and besides doe seeme to be more properly said against the peace of the land then Avowtrey in the case before 1. H. 7. 7. and therefore it seemeth reasonable just and expedient that the Iustices of peace upon their discretion should convent such persons before them and their courses of life and if they cannot yeild a good reason and accompt of such their courses then to bind them to their good behaviour 21. Also the good behaviour seemeth grantable against such as shall make false outcries or shall raise Huy and Cryes without cause for these are disturbances of the peace Cromp. 179. 22. If two men doe levie Huy and Cry one upon another without cause both of them may be attached and bound over as disturbers of the peace P. R. 156. 23. Also Cheators and Cozoners may be bound to the good behaviour See Co. 5. 125. P. R. 12. 24. Libellers it seemeth may also be bound to their good behaviour as disturbers of the peace whether they be the contrivers the procurers or the publishers of the libell for such libelling and defamation tendeth to the raising of quarrels and effusion of blood and are specially occasions and meanes tending and inciting greatly to the breach of the peace 25. Also it seemeth grantable against unlawfull hunters in parks after their examination taken vide antea tit Hunting 26. Also it shall be granted against him that shall abuse a Iustice of peace Constable or other officer of the peace in executing of their office 9. El. 43. 27. A Iustice of peace seeth a man breake the peace sc to make an assault or affray upon A. and he chargeth him to keepe the peace and the other answereth that he will not the Iustice of peace may bind him to the good behaviour See Exod. 22.28 28. For if as one saith contempt or contumelie used to the person of a mans better neither policie for example nor religion for peace may tolerate much lesse to use contempt towards or to abuse such as are in authority especially when they are in executing their office 29. Nay it seemeth that he which shall use words of contempt or contra bonos more 's against a Iustice of peace though it be not at such time as he is executing his office yet hee shall be bound to his good behaviour 30. If a Citizen or free man of a Citty Co. 11. 98. or Towne corporate shall use words of contempt or contra bonos more 's against the chiefe officer of the City or Towne or his brethren they are good causes to commit him to prison untill he shall finde sureties for his good behaviour for obedience and reverence ought to be yeelded to the magistrate for that they derive their authority from the King 31. Also he that shall abuse a Iustice of peace his warrant may be bound to his good behaviour 32. A man complaineth of a Riot or a forceible Entry so that the Iustices of peace are assembled to enquire therof and then the party that complained will not prosecute the matter it seemeth the said Iustices of peace may bind him to his good behaviour for his deluding them 33. And so of such as shall charge another with felonie before a Iust of Peace and yet will not give Evidence c. 34. A. is bound to keepe the peace against B. only Cromp. 134. and getteth a supersedeas and after B. releaseth him after A. is arrested for suretie for the peace at another mans suit and sheweth this first supersedeas it seemeth he shall be bound to his good behaviour for this deceit 35. He that hath a pardon for any felony 10. Ed 3. P. pardon 5. shall finde surety for his good behaviour but he shall bee bound before the Sheriffe and Coroners who shall returne the same into the Chancerie 36. Also he that is acquitted of felonie if he be of evill fame or of evill behaviour it seemeth the Iustices of peace upon their discretion may bind him to his good behaviour 37. The forme of a warrant for the good behaviour vide postea tit Warrants 38. The forme of the Recog for the good behaviour vide postea tit Recognisance 39. Whether the suretie of the good behaviour taken upon complaint may be released by any speciall person some do doubt it Release Lamb. 126. because it seemeth more popular then the suretie of the peace yet others doe hold that it may be released either by the Iustice of peace himselfe that tooke it in discretion P.R. 2â— or by the party upon whose complaint it was granted even as that for the peace may 40. It seemeth also a Supersedeas Supersedeas of the good behaviour may bee granted by the Iustices of peace as well as for the peace mutatis mutandis upon good sureties taken by the said Iustices of the party to be of the good behaviour Cromp. 237. 41. Cromp. 146. If a man be bound to the good behaviour before Iustices of peace and to appeare at the next Assises or Sessions yet the party bound may by a Certiorari Certiorari remove the Recognisance into the Chancerie or Kings Bench before the day and then he shall not need to appeare at the Assises or Sessions for they have no record whereupon he may be called there Swearing and Cursing CHAP. 64. 1. FOrasmuch as all prophane swearing and cursing is forbidden by the Word of God 10. Caroli ca. 1. in Ireland it is enacted by Parliament in anno 10. Caroli ca. 1. that no person or persons shall prophanely sweare or curse and that every person or persons that shall at any time or times offend herein either in the hearing of a Iustice of peace bailiffe or any other head officer of any Citty or Towne corporate where such offence is or shall be committed or shall be thereof convicted by the oathes of two witnesses or by confession of the party before any Iustice of Peace of the County or head officer or Iustice of Peace in the Citty or towne corporate where such offence is or shall be committed to which end every Iustice of peace and every such head officer have power by that Act to minister the same oath that then every such offendour shall for every time so offending forfeit and pay to the use of the poore of that parish where the same offence is or shall bee committed the summe of Twelve pence and it shall also be lawfull for the Constables and Church-wardens or any one of them by warrant from such Iustice of peace or head officer to levie the same summe or summes of money by distresse and sale of the offendours goods rendring to the party the overplus and in defect of such distresse the offendor if he or she be above the age of
the yeare saving onely betweene Easter and Ascention day 2. All such strangers or persons suspected as shall in the night time passe by the watchmen appointed thereto by the towne Constable or other officer may bee examined by the said watchmen whence they come and what they be and of their businesse Winch. 13. Ed. 1. ca. 4. 5. Ed. 3. ca. 14. c. and if they finde cause of suspition they shall stay them and if such persons will not obey the arrest of the watchmen the said watchmen shall levie Huy and Cry that the offendors may bee taken or else they may justifie to beat them for that they resist the peace and Iustice of the realme and may also set them in the stockes for the same untill the morning and then if no suspition be found the said persons shall be let goe and quit but if they finde cause of suspition they shall forthwith deliver the said persons to the Sheriffe who shall keepe them in prison untill they be duely delivered or else the watchmen may deliver such persons to the Constable and so to convey them to the Iustice of peace by him to be examined and to be bound over or committed untill the offendours be acquitted in due manner Waxe CHAP. 70. 11. H. 6. ca. 12. 1. EVery Iustice of peace may examine and search by his discretion such as doe sell or set forth to bee sold any Candles or other workes of Waxe at higher price then after the rate of iiij d the pound over the common price of plaine waxe betweene Merchant and Merchant and may punish them by forfeiture of the worke or value thereof and by fine to the King Weights and Measures CHAP. 71. 1. BY a statute made in England in anno 9. H. 5. ca. 8. the Iustices of peace have power to take and imprison all falsifiers and Counterfeiters of false weights and to hold them in prison without mainprise untill they be acquitted or attainted and if they be attainted their bodies shall abide in prison untill they have made fynes and Ransomes at the discretion of the said Iustices 2. By another statute made in England in anno 34. E. 3. ca. 6. Iustices of peace have power to enquire of weights and measures and to punish the offendors and therefore it is necessary for them to know what weights and measures by the lawes and statutes of force in this Kingdome ought to be observed 9. H. 3. 26. Weigâ—â— 3. By the statute of Magna charta capitulo 26. there shall be but one weight one measure and one yard throughout the whole realme scil according to the Kings Standard in the Exchequer and this statute of Magna charta hath since herein been confirmed by many severall Parliaments viz. by the statutes of 14. Ed. 3. ca. 12. 27. Ed. 3. 10. 13. R. 2. 9. 8. H. 6. 5. and 7. H. 7. ca. 3. as thereby appeareth 4. And yet notwithstanding all these statutes there alwayes hath been two kinds of Weights used in England and both warrantable the one by law and the other by Custome as it seemeth but they are for severall sorts of wares or commodities for there is Troy weights and Averdepois Dalton fo 123. 5. Troy weight is by Law and thereby are weighed gold silver pearle pretious stones electuaries bread wheat and all manner of graine or Corne is measured by Troy weight and this hath to the pound 12. ounces or twenty shillings old ster weight which is three pound of the money now currant 6. Averdepois weight is by Custome yet confirmed also by statute and thereby are weighed all grossery wares phisicall drugges 27. Ed. 3. ca. 10. Butter Cheese flesh waxe pitch Tallow Woolls Hempe Flaxe Iron Steele Lead and all other commodities not before named but especially every thing that beareth the name of Garbell and whereof issueth a refuse or waste 7. And this hath to the pound sixteene Ounces or 25. s. old sterling weight Also in this Averdepois weight unto every hundred is allowed twelve pounds weight 27. Ed. 3. 10. 8. Also all manner of Averdepois shall bee weighed by lawfull weights sealed according to the Standerd of the Eschequer Averdepois Averdepois weight 14. ounces and an halfe and 2. pence weight Troy doe make 16. ounces of Averdepois 7. pounds or pints Averdepois make the Gallon of Wheate c. 14. pounds or pints Averdepois make the Pecke of Wheate c. 56. pounds or pints Averdepois make the Bushell of Wheate c. Pints or pounds 5120 512 256 64 16 8 4 Troy weight Quarts 2560 256 128 32 8 4 2  Pottles 1280 128 64 16 4 2 1  Gallons 640 64 32 8 2 1  Measures of Corne according to Troy weight Pecks 320 32 16 4 1   Bushels 80 8 4 1    Coombes 20 2 1      Quarters 10 1 Ten Quarters of corne is a Last   Beere measures Ale measures  Pints 288 144 72 8 4 2 256 128 64 8 Measures of Beere Ale Quarts 144 72 36 4 2 1 128 64 32 4 Pottles 72 36 18 2 1  64 32 16 2  Gallons 36 18 9 1   32 16 8 1  Firkins 4 2 1    4 2 1   Kilderkins 2 1     2 1    Barrels 1      1     See for Corne Beere and Ale more fully in that which followeth Troy Weight 15. H. 3. 32. Wheat Cornes taken in the midst of the Eare weigheth 1.d sterling Twenty pence old sterling make the ounce Troy 12. Ounces make in weight j. li. Troy measure j. pint Two pints or pounds make the quart Two quarts make the Pottle 8. pints make the Gallon 4. quarts make the Gallon 2. Pottles make the Gallon Eight quarts make the Pecke 64. pints 32. quarts 8. gallons 4. peckes make the Bushell or Firkin Sixteene gallons Two Firkins make the Kilderkin halfe Barrell Rondlet 256. pints 128. quarts 32. gallons 4. firkins 2. kilderkins 4. bushels make the Coombe or Barrell 512. pints 256. quarts 64. gallons 8. firkins 4. kilderkins 2. barrels 8. bushels make the Quarter or Hogshead So the Pint and pound Firkin and bushell Barrell and coombe Hogshead quarter are of like content Measures of Corne. Bushell 1. ALl kind of Corne and graine is measured by Troy weight 2. By statute the bushell must containe eight gallons or sixty foure pounds or pints of wheate 31. Ed. 1. 3. And yet by the booke of the Assise imprinted Anno Domini 1597. the bushell is to containe 56. pounds or pints of Averdopois weight which is three pounds or three pints and eight ounces Troy more then the statute or Troy weight for 56. pounds or pints Averdepois weight and 67. pounds 8. ounces Troy weight doe justly agree Also every measure of Corne shall be stricken without heape and all purveyance shall be by
all high Constables petty Constables and all other his Majesties officers greeting c. whereas E. F. hath informed me that diverse goods and cattel viz. xx l. in money c. and so name all the goods have beene lately stolne from him these are therefore in his Majesties name straightly to charge and command you and every of you upon sight hereof presently without delay in all suspected houses and places within your severall Bailiwickes Hundreds Baronies and Constablewicks to make diligent search for the said goods and where you shall finde the same or any part thereof to arrest the parties in whose houses or possessions the said goods or any part thereof shall be so found and so them arrested to bring before me to my house at Dale with all convenient speed whereof you may not faile at your perill sealed with my seale and dated the _____ day of _____ c. 5. When any of the said felons or traitours shall be so arrested and brought before the Iustice of peace the Iustice must take the examination of the traitours or felons in writing but not upon oath and must examine them upon all circumstances whereof he shall receive information from the accusers and upon such other circumstances as he in his owne discretion shall thinke fit for the discovery of the Treason or felony The forme of the Examinations may be thus 6. The Examination of A.B. c. taken before me R.B. one of his Majesties Iustices of peace in the County of M. the first day of February in the xiij yeare of the Raigne of our soveraigne Lord Charles by the grace of God King of England Scotland France and Ireland defendor of the faith c. The said examinat being duely examined saith c. and so set downe every particular answer that the prisoner shall make to the questions that shall be demanded of him 7. This being done the Iustice of peace must take the examinations of the accusers and such other as can give any evidence materiall against the prisoner and their examinations must be taken in writing severally and that upon oath The forme whereof may be thus 8. The examination of A.B. c. taken before me C.B. Esquire one of his Majesties Iustices of peace in the County of Dublin the first day of March in the xiij yeare of the Raigne of our soveraigne Lord Charles by the grace of God King of England Scotland France and Ireland defendor of the faith c. This examinat being duely sworne upon the holy Evangelist and examined upon his oath saith c. and so set downe at large all the materiall circumstances that he shall declare to prove the treason or felony 9. This being done the Iustice of peace must make a Mittimus to convay the prisoner to the County Gaole The Mittimus may be in this forme 10. Comitat. Cavan A.B. Esquire one of the Iustices of peace in the County of C. to the keeper of his Majesties Gaole in the said County greeting I send you therewithall the body of E.F. late of G. labourer brought before me this present day and charged with the felonious stealing of one blacke horse of the goods of I.H. and therefore these are in his Majesties name to command you that immediately upon sight hereof you receive the said E.F. into your custody and him safely keepe in his Majesties Gaole of the said County untill he shall be thence delivered by due order of his Majesties Lawes whereof you may not faile as you will answere for your contempt at your perill dated at Dale the first day of Ianuary c. 11. I doe not like of the Mittimus commonly used in Ireland that is to send the prisoner from Constable to Constable for I finde by experience that thereby many notable offendors doe escape and then many times goe into Rebellion to the great prejudice of the common wealth but I like better that he should be convayed to the Gaole by the Constable of that Constablewicke where he was apprehended and that by a sufficient guard at the charge of the Constablewicke for which the Iustices of peace shall doe well to conceive a generall order at their generall Sessions of the peace 12. This being done the Iustice of peace must take a severall Recognisance of every one of the accusers and of every one that can give evidence against the prisoner the forme of which Recognisance may be thus Com. Dublin 13. Memorandum quod tertio die Aprilis anno Regni Domini nostri Caroli Dei gratia Angliae Scotiae Franciae Hiberniae regis fidei defensoris A.B. de C. in comitatu praedicto Yeoman personaliter coram me I. H. uno Iusticiariorum dicti Domini Regis in per totum comitatum praedictum ad pacem dicti Domini Regis conservandum c. assignat apud Dale in Com. praedict recognovit se debere dicto Domino Regi decem libras bonae legalis monetae de bonis Catallis terris tenementis suis fieri levari ad opus dicti Domini regis heredum successorum suorum si defecerit in conditione subsequenti The condition of the above Recognisance is such that whereas one A.B. late of C. labourer was this present day brought before me and was charged with the felonious stealing of one blacke horse of the goods of the above named B.E. and thereupon was sent by me the above named Iustice of peace to the Kings Majesties gaole of the said County of Dublin If therefore he the said B. E. shall and will at the next generall gaole delivery to be holden in the said County preferre or cause to be framed and preferred a bill of indictment of the said felony against the said A.B. and shall and will then also give evidence there concerning the same aswell to the Iurors that shall then make enquiry of the said felony as also to them that shall passe upon the tryall of the said A. B. That then the said Recognisance shall be voyd or else c. 14. The like Recognisance must be taken severally of all such as can give any materiall evidence against the prisoner with the like condition 15. And in cases of Treason the like Recognisance must be taken as in felony mutatis mutandis 16. Also the Iustice of peace ought to returne the said examinations and Recognisances at the next gaole delivery or else he is to be fyned 17. Now concerning Misprisions and Praemunires the Iust of peace may make out a warrant to apprehend offendours in this forme following viz. A.B. Esquire one of his Majesties Iustices of peace within the County of Lowth Lowth To the Sheriffe of the said County and to all and singular the high Constables petty Constables and all other his Majesties officers in the said County greeting These are in his Majesties name streightly to charge and command you and every of you within your severall Bailiwickes Hundreds Baronies and Constablewickes to
command you that you together with the petty Constables of the severall Townes Parishes and Hamlets within your Barony taking sufficient assistance out of the said Townes doe make a generall privy search within every of the said severall Townes Parishes and Hamlets upon _____ at night next comming for the finding out and apprehending of all Rogues Vagabonds and wandring idle persons in or about their said severall Townes and that such as shall be found and apprehended you doe cause them to be punished in every severall Towne or Parish where they shal be so apprehended by the petty Constables of every severall Parish respectively and by them also further to be conveyed according to the statute And if any of the said Rogues shall appeare to be dangerous or incorrigible that then you cause such to be brought before me or any other of his Majesties Iustices of peace to be further dealt withall according to the statute in such cases provided dated c. Afterwards any one of these Iustices may take the examination of or proofe against such dangerous Rogues finding cause may then commit such Rogues to the gaole and from thence he may by two Iustices of peace be sent to the house of correction A warrant for a fugitive servant Iohn Cuts Knight one of the Iustices of the peace of our soveraigne Lord the King c. To the Baliffes of the Barony of C. and to T.H. Constable of M. in the County of Dublin Dublin greeting Whereas E. L. hath beene retained to serve I. T. of M. aforesaid according to the forme and effect of a statute made for servants without just cause or licence of the said I.T. hath departed from his service Therefore on the behalfe of our soveraigne Lord the King I charge and command you and every of you that immediately after sight hereof you cause the said E.L. to be delivered to his said master to serve him and if he shall refuse so to doe that then you cause him to be convayed to his Majesties gaole of the said County of Dublin there to remaine untill he shall doe the same So that you may have him before me and the rest of my fellow Iustices at the next Sessions of the peace to be holden for the said County to receive such punishment as shall be then and there inflicted upon him sealed with my seale _____ dated c. Or thus in Latine Iohannes Cutts Miles unus Iusticiar Domini Regis c. Com. Dublin Ballivis Baroniae de C. et T.H. Constabular de M. in comitatu praed salut Quia E.L. retentus in servic I.T. de M. predict sibi serviend secundum formam et effectum statuti de servientibus edit à servitio pred I.T. sine causa rationabili et licentia ipsius I. T. recessit ut dicitur ideo ex parte Domini Regis vobis et cuilibet vestrum praecipio quod praef E.L. ad praefat I.T. magistrum suum deserviend deliberar faciat West â—78 Et si hoc recusaver tunc eum gaolae Com. praedict duci faciatis quousque c. Ita quod eum habeatis coram me et socijs meis Iustic dicti Dom. Regis in Com. praed ad prox sess pacis ibid. tenend ad faciend et recipiend ea quae ei tunc et ibid. in hac parte objicientur Sigill meo sigillat dat apud Another for the same Simon Steward Knight one of the Iustices of the peace of our soveraigne Lord the King c. To the Sheriffe of the County of Dublin Dublin and also to I.B. Constable of the Towne of B. and to R.N. Bailiffe Itinerant in the same County and to every of them greeting On the behalfe of our soveraigne Lord the King I command you and every of you that you or one of you attach the bodie of W.R. of B. aforesaid Labourer so that you or one of you have him before me and the rest of my fellow Iustices of our soveraigne Lord the King in the County aforesaid at the next generall Sessions of the peace to be holden in the aforesaid County to answer aswell to our said soveraigne Lord the King as to R.C. of c. Yeoman wherefore he being lately retained in the service of the said R. at T. in the County aforesaid from the said service before the end of the terme betwixt them agreed upon without just cause or licence of him the said R. hath departed in contempt of our soveraigne Lord the King and to the great damage of him the said R. and contrary to the forme of the statute in that case provided And that you or one of you have then there this precept witnesse c. Or thus in Latine Com. Dublin Simeon Steward Miles unus Iustic c. vic Com. pred Necnon I. B. Constabular vill de B. et R. N. ballivo itineranti in eodem Com. et eorum cuilibet salutem Ex parte dicti Domini Regis vobis et cuilibet vestrum mando Cromp. 238. quod attach seu unus vestrum attach W.R. de B. pred Labourer ita quod eum habeatis seu unus vestrum habeat coram me et socijs meis Iustic dict Dom. Regis ad pacem in Com. pred conservand Necnon et assign ad prox general sessionem pacis in Com. pred tenend ad respondend tam dicto Dom. Regi quam R.C. de c. Yeoman quare in servitio ipsius R. apud T. in Com. pred nuper retentus ab eodem servitio ante finem termini inter eos concordat sine causa rationabili et licenc ipsius R. recessit in Dict. Dom. Regis nunc contemptum et ipsius R. grave damnum et contra form statut inde edit et provis Et habeatis seu unus vestrum habeat ibi tunc hoc preceptum Teste c. A warrant for one refusing to serve Roger Millisent Knight one of the Iustices of the peace of our soveraigne Lord the King c. To R.L. Bailiffe of S. in the County of Dublin Dublin greeting On the behalfe of our soveraigne Lord the King I command you that you attach the body of R.A. of S. aforesaid Labourer so that you have him before me or my fellow Iustices of the peace in the County aforesaid at the next generall Sessions of the peace to be holden in the said County to answere aswell to our said soveraigne Lord the King as to B.C. of A. c. Yeoman wherefore he the said R.A. although he were often required to serve the said B.C. in a competent service for his estate yet notwithstanding he the said R.A. hath altogether refused to serve the said B.C. in contempt of our soveraigne Lord the King and to the great damage of him the said B.C. and contrary to the forme of the statute for servants in that case lately made and provided And see that you have this warrant there witnesse c. Or thus in Latine Rogerus Millisent
the discretion of the Court. 5. Ed. 3. cap. 10. Bribery 33. If any officer or minister of Iustice shall take any bribe to neglect the doing of his office or to doe his office falsely or corruptly he is to be punished by the common law by Fyne and imprisonment Conspiracy 34. If any Tradesman Artificers Labourers or servants shall combine and conspire not to worke or serve at the rates published by the Iustices of peace this is a misdemeanor at the common law and punishable by fyne and imprisonment 35. If any persons shall make any conspiracy or combination by colour of Iustice to take away any mans life malitiously without cause this is a high misdemeanor and to be grievously punished by the villanous Iudgement viz. imprisonment during life the offendours testimony to bee rejected his house to be rased his medowes plowed his woods to be rooted up and his person never to approch any of the Kings Courts 36. If any person or persons shall wittingly forge or cause to be forged any false deeds or writings or publish the same knowing them to be forged this is a misdemeanor punishable at the common law by Fyne and imprisonment and may bee so punished by the Iustices of peace but by a statute made in 28. El. cap. 4. in Ireland if it concerne Inheritance or Freehold of any lands or hereditaments it is punishable by Pillorie losse of Eares slitting the Nose forfeiture of land during life and perpetuall imprisonment but this punishment is to be inflicted by the Iustice of Assize or Iustice of Oyer and Terminer and not by the Iustices of Peace Offences of Omission CHAP. 6. 1. THe third sort of fineable offences are omissions Omissions in officers and others in not doing and performing such things as by the Lawes of the Kingdome they ought to doe for as the Lawes prohibit the doing of such things as are unlawfull so likewise they command the doing and performing of other duties which are for the preservation of the peace and good governement of the Common-wealth and therefore if Constables In Constables shall not set forth nor levie Huy and Cry after Felons and Traytors upon notice to them given this is a grievous offence of omission tending greatly to the prejudice of the Common-wealth and by the statute of 13. Ed. 1. ca. 1. 2. called the statute of Winchester to be punished by a great Fyne and imprisonment 2. If Constables shall bee negligent in the apprehending and punishing of Rogues Vagabonds and sturdy beggars and others that begge without licence or having Licences begge out of the limits appointed for them to begge in Such Constables for their neglects by a statute made 33. H. 8. cap. 13. in Ireland are to be punished by Fyne and imprisonment 3. If Constables shall be negligent in appointing the watch in every Towne by a statute made in 5. Ed. 4. cap. 5. in Ireland they are to be punished by a Fyne of three pence for every time that they shall faile in this particular 4. If Constables shall not doe their best endeavour to part an Affray and to see the Kings peace preserved and to apprehend the offendors and bring them before a Iustice of peace this is a neglect of their dutie and punishable at the common Law by fyne and imprisonment 5. If Constables shall not make search for idle and suspected persons and common gamesters that live idly and expensively having no meanes to maintaine themselves and bring them before a Iustice of peace this neglect is a misdemeanor at the common law and punishable by fyne and imprisonment 6. If Constables shall neglect or refuse to apprehend Felons or Traitors or to make search for them upon request or notice given them this is likewise a misdemeanor at the common law and punishable by fyne and imprisonment 7. If Constables or any other officers Neglect of officers others or ministers of Iustice shall refuse or neglect to execute the warrants of any Iustice of peace to them or any of them directed this is likewise a misdemeanor at the Common law and punishable by fyne and imprisonment 8. If any person or persons shall refuse to follow Huy and Cry after Felons and Traytors at the Constables command by the Statute of Winchester made Anno 10. Edw. 1. cap. 1. 2. they are to be punished by fine and imprisonment 9. If any person or persons shall refuse to assist the Constable to make search for and to apprehend Felons or Traytors or other suspected persons or to convey prisoners to the gaole or before a Iustice of the peace this is a misdemeanor at the Common Law and punishable by Fine and imprisonment 10. If any person shall refuse or neglect to keepe the watch when he shall be required by the Constable this is likewise a misdemeanor at the common law and punishable by fine and imprisonment Neglect of Towneships 11. If any Towneship shall permit and suffer sturdy beggers Rogues or Vagabonds to abide in or passe through their towneship without punishment or other impotent beggers which begge without licence The Towneship is to be punished in manner following viz. To be fined for every impotent begger 3 s.4.d and for every sturdy begger Rogue or Vagabond 6. s. 8. d. and this by the statute of 33. H. 8. ca. 15. in Ireland 12. Every Towneship ought to have stockes for the punishment of Rogues Vagabonds and sturdy beggers and likewise for the safe keeping of breakers of the peace and other malefactors untill they can conveniently be brought before a Iustice of the peace And also common and overt pounds wherein distresses are to be impounded and such towneships as shall want such stockes and common pounds are to be punished by fine at the discretion of the Iustice of peace 13. If any servant artificer or labourer Servants Labourers and Artificers shall refuse to worke or labour at the wages rated by the Iustice of peace or shall take more wages then according to the rates published by the said Iustices by the stat of 33. H. 8. cap. 9. in Ireland they are to be punished in manner following viz. To forfeit so much as they take above the rates and imprisonment at the discretion of the Iustices of Peace 14. All such as are idlers and will not labour at all and yet have nothing to maintaine themselves are to be enquired of presented and to be punished by the Common law by fine and imprisonment untill they finde sureties to labour or for the good behaviour at the discretion of the Iustice of peace 15. All defects of Bridges Defects of Bridges c. causeys and high-wayes are to bee presented in the generall Sessions of the peace and all such as ought to repaire the same whether it be the whole countie one or more Barronies Parishes or any one person in particular they are to be fined for their neglect herein by the common
cause to be taken or conveyed away any maid or woman-child unmarried being within the age of sixteene yeares out of or from the possession Taking away of yong maids c. custodie or governance and against the will of the father of such maid or woman-child or of such person or persons to whom the father of such maid or woman-child by his last will and testament or any other act in his life time hath or shall appoint assigne bequeath give or grant the keeping education or governance of such maid or woman-child except such taking and conveying away as shall bee had made or done by or for such person or persons as without fraud or covin be or then shall be the master or mistrisse of such maide or woman-childe or the guardian in soccage or guardian in Chivalrie of or to such maid or woman-child every such person so offending being above the age of 14. yeares shall suffer imprisonment by the space of two whole yeares without baile or mainprise and if the said maid or woman-childe so taken away as aforesaid shall be defloured or against the will or unknowing of or to the father of any such maid or woman-childe if the Father be living or against the will or unknowing of or to the mother of any such maid or woman-childe having the custodie and governance if the father bee dead or shall by secret letters messages or otherwise be contracted or married except such contract shall bee made by the consent of such person or persons as by the title of wardship shall have or bee intitled to have the marriage of such maide or woman-childe then every such person so offending shall suffer imprisonment by the space of five yeares without baile or mainprise 10. Caroli cap. 17. in Ireland 13. If any person or persons shall plow harrow Plowing by the Tayle draw or worke any horse gelding mare garron or colt by the taile or shall cause procure or suffer any other to plow or harrow his ground or to draw any other carriages with his Horses Mares Geldings garrons or colts or any of them by the taile or shall pull the wooll of any living sheepe or cause or procure the same instead of shearing or clipping of them hee is to be punished by fine and imprisonment at the discretion of the Court 11. Car. cap. 15. in Ireland Burning of Corne in the straw 14. So likewise if any person whatsoever shall by himselfe his wife children or servants burne or cause to bee burned any corne or graine in the straw of what kinde soever he is to be imprisoned in the common gaole of the county for the space of ten dayes without baile or mainprise and the delinquent to pay the charge of sending him to the gaole as aforesaid and for his second offence to be imprisoned by the space of a whole yeare without baile or mainprise and to pay the charges as aforesaid and for the third offence to forfeit fortie shillings and to be bound to the good behaviour and to pay the charges as aforesaid the said fortie shillings to bee paid towards the reliefe of the parishioners in the said gaole unto the hands of the chiefe magistrate of the place where such gaole is before the offendour be discharged 11. Car. cap. 17. in Ireland Coshering 15. If any person that hath no meanes of abilitie of his owne or sufficient meanes of support from his parents and kindred shall walke up and downe the countrey with their fosterers or kindred and retinue with one or more grey-hound or grey-hounds or otherwise or shall cosher lodge or cesse himselfe his followers horses or grey-hounds upon the inhabitants of the countrey or shall directly or indirectly exact meat or drinke or money from them or shall crave any helpes in such sort as the poore people dare not deny the same for feare of some scandalous rimes to be made upon them or some worse inconvenience to be done unto them Every Iustice of peace is to apprehend or cause to be apprehended all such offendors and to binde them to their loyalty or to the good behaviour as in their discretion they shall thinke fit and to commit the offendors untill they finde such securitie and the Sheriffe bailiffes Constables Provost Marshals and all other his Majesties Loyall subjects are to be aiding and assisting upon request of the Iustices of peace in apprehending of such Cosherers and wandring idlers and if they shall make default herein they are to be punished for their neglect by fyne and imprisonment at the discretion of the Court. 11. Car. cap. 16. in Ireland Selling wine or other liquor 16. If any person shall sell wine Ale or other liquor within any citie or towne franchised by measures not sealed he is to be punished by a fine of ten shillings for every time hee shall offend herein 28. H. 6. cap. 3. in Ireland English habit and language 17. By a statute made in 28. H. 8. cap. 15. in Ireland all manner of persons should use English apparell habit and language or in default thereof to be punished as followeth viz. every Lord spirituall and temporall that shall offend herein is to forfeit 6.l 13 s 4.d every Knight and Esquire 40 s every Gentleman or Merchant 20 s every Free-holder and Yeoman 10 s every Husbandman 6 s 8.d and all others 3 s 4.d for every offence Leazors of Corne. 18. Such as use leazing of corne in Harvest and are able to labour for wages and will not are to be punished in manner following that is for every time offending to loose all the Corne gathered by leazing and to forfeit one shilling and also the owner of the Field that shall willingly suffer such leazers is to forfeit for every time one shilling 28. H. 8. cap. 24. in Ireland 19. Such as keepe Inmates Inmates in harvest that refuse to labour for wages and imploy themselves in leazing of Corne the Keepers of such Inmates are to be punished by forfeiture of 6 s 8.d for every such offence 24. H. 8. cap. 24. in Ireland 20. Whosoever shall keepe Swine Keeping of swine c. upon any Strand where the Sea doth ebbe and flow whereby the Spawne of fish is destroyed the same swine are forfeit and it is lawfull to any person that will to seize upon them as forfeit and if such swine shall be rescued from him that shall so seize the same the person or persons so rescuing are to be punished by fyne and imprisonment 11. Eliz. cap. 3. in Ireland 21. If any person or persons shall lay any Hempe or Flax to bee watered or shall lay any lymed hydes in any fresh river Hempe and Flax c. the partie offending by the Stat. of 11. Eliz. cap. 5. in Ireland is to forfeit the Hempe Flax and Hydes or the treble value of the same 22. If any person or persons shall stop or straighten any high-wayes Nusans this
insufficient by the greater part of the Iustices assembled for that purpose notwithstanding the words contra formam statutorum praedictorum were therein contained Collection Dyer 363. 50. Againe it is not safe to recite the dayes or places of the beginnings continuances prerogations or dissolutions of the Parliaments least by mistaking of any of them the whole Endictment fall to the ground thereby Ibid. 203. 51. Thus farre of these points by way of short rule and direction for the better imitation and practise whereof you may use the helpe of such formes of Endictments as the Appendix at the end of this worke will afford you Now let us with a few words consider what Endictments be receiveable by the Iustices of peace and what ought to be rejected by them Endictments to be received or rejected 52. Generally they may receive Endictments before themselves of all causes being either within their Commission or within the statutes whereof they have to enquire And they may also receive Endictments taken before the Sheriffe in his Turne so that the Turne be holden within the moneth after Easter or within the moneth after Michaelmas and so that those Endictments or presentments be indented and sealed betweene the Sheriffe and the Iurors and so that they be made by the oath of xij men at the least and that those Iurors be of good fame and legales homines that may dispend yearely xx s of freehold or xxvj s.viij.d of copihold W. 2. c. 14. 1. Ed. 3. ca. 17. 31. Ed. 3. ca. 14. 1. Ed. 4. ca. 2. 1. R. 3. ca. 4. And for this purpose the said statute 1. Ed. 4. ca. 2. binds the Sheriffe to certifie to the Iust of Peace at their next Sessions the Endictments found in his Turne or Law day The duty of Iustices about Endictments 53. Thus much for the better assistance of our Iustices of the peace I thought meet to say of Endictments not onely because they be the chiefe bases and groundworke whereupon the whole tryall is afterward to be built and framed but also because the Iustices being Iudges of the Court ought of office to see that the bils of Endictment have sufficient matter and forme in them 24. Ed. 3. 74. Of the impediments of proceeding upon Endictments before the Iustices of peace and therewithall of the Certiorari to remove Records CHAP. 9. 1. IT falleth out not seldome that when Iustices of the peace have taken an Endictment found before them they cannot proceed to hearing and determining upon it either because their Commission or some statute whereupon it is grounded giveth unto them no further power but only to enquire thereof or else because the Endictment is taken out of their hands by Certiorari and convayed to Iustices of a higher authority at the sollicitation and by the meanes of some parties grieved to the end that they may either traverse it above or there avoyd it for insufficiency of forme or matter 2. Albeit that in the removing of Pleas betweene party and party from inferiour to higher Courts by Tolt Pond recordare c. there was wont to be a probable cause alledged for which the same were removed yet in this case of the Crowne there needs no cause to be comprised in the writ of Certiorari because they all be the Courts of the King against whom the offence is committed and it breedeth neither injury to the offendor nor losse to any other person in what Court soever the offence be tryed 3. This Certiorari then may command either the Record it selfe or tenorem Recordi to be sent up and it ought to be obeyed accordingly for upon faile thereof first an Alias then a Pluries vel causam nobis significes And lastly an Attachment shall goe out against them that should send it as Master Fitz. noteth in his Nat. Br. fol. 245. but they use at this day to impose a fine upon Affidavit made of the delivery of the writ and refusall to certifie 4. And albeit the Certiorari be a Supersedeas of it selfe yet may the partie upon the Certiorari purchased have a Supersedeas also directed to the Sheriffe commanding him that he arrest him not upon that Record before the Iustices of peace Fitzh ibid. fol. 237. 5. This writ of Certiorari is usually directed to the Iustices of peace Lamb. li. 4. pag. 515. and yet as you have heard the Custos Rotulorum only hath the keeping of these Records but the ancient Commissions of the peace had no Custos Rotulorum specially named in them and then this certifying belonged to them all but now it belongeth to the Custos Rotulorum 6. Now if a Certiorari come to the Iustices of peace to remove an Endictment and the party sueth not to have it removed but suffereth it to lye still then the Iustices of peace may proceede notwithstanding the writ as Hubbert the Kings Atturney said in 6. H. 7. 16. For otherwise the tryall of a Felon if the Endictment were of Felony might be delayed and deluded also But yet Keble held opinion against him and was fearefull that in such a case it might prove felony to make execution of the felon after such writ received and to say the truth the Iustices ought of office to send it away because the writ contayneth in it selfe a commandement to them so to doe 7. And if a Certiorari come to the Iustices of peace to remove an Endictment and in truth the Endictment was not taken till after the date of that Certiorari yet if the Endictment be removed thereby it is good enough for that they both be the Kings Courts 1. R. 3. 4. and in such case it is now usuall to remove it 8. In the making of a Certificate The manner of the certificate upon this Certiorari the Iustices of the peace ought neither to omit that which doth authorize them nor to exceed that authoritie which belongeth unto them For on the one side if they certifie an Endictment of Felonie or of a Riot as taken coram Iusticiarijs ad pacem it was not thought enough without saying further Nec non ad diversa felonias c. and otherwise it was doubtfull whether the Endictee shall be quite dismissed or no because the Iustices of the peace had then no Record at all remaining with them for the Clerke of the peace maketh his Entrie accordingly and that Record which they sent up is insufficient And therefore the Clerke of the Crowne was forbidden to receive any such Certificate 12. H. 7. 25. 9. On the other side if they certifie an Endictment of felony not determined into the Kings Bench they ought not without warrant to certifie another Record of the acquittall of that Endictee for the same matter for nothing ought by them to be sent thither without warrant but that which is Executorie and needeth the help of that higher Court 8. Ed. 4. 18. 10. And if a Certiorari be to send up the
Endictment of A. in which Endictment some others be indicted together with the same A. yet need not the Iustices of the peace to make certificate concerning any but A. 6. Ed. 4. 5. For although they be named joyntly yet be they endicted severally and the King may pardon A. without forgiving the other 6. E. 4. 5. Mark 11. Againe if the Endictment be of the stealing of two horses and the Certiorari speaketh but of one horse it seemeth that they neede not to certifie it at all because of the variance for it is certaine that they of the Kings Bench will not arraigne the Endictee upon it but will rather write againe to know whether there be any Indictment that agreeth with the writ 3. Lib. Ass pl. 3. Cur. 12. Finally it is noted in 8. H. 5. fo 5. that Haukeford the chiefe Iustice of the Kings Bench observed this order that hee which brought thither an Indictment taken before Iustices of the Peace should endorce his name upon the backside of it which I note not to teach them of the Kings Bench but to let the Iustices of peace see that there is some heed to be taken of him by whom they send up their Endictments Of the sundry sorts of Processe upon Endictments and of the Supersedeas for stay of them CHAP. 10. 1. THe Court being thus made privie and possessed of causes must of dutie proceed to the handling or hearing and tryall of them the which because it cannot indifferently doe unlesse it keepe one Eare for the offendor that he also may be heard in his owne discharge as others were heard to lay the charge upon him the manner is if he be absent to award processe against him to come in and to make his answer 2. But if he be present in Court and confesse the Indictment then needeth there no Processe at all Lamb. li. 4. pag. 519. for he shall be committed forthwith to prison untill that he hath made his Fyne or given sureties for it 1. H. 7. 3. Commonly an Indictment or Information being but an accusation or declaration against a man is of none other force Processe wherin it is named but only to put him to answere unto it And hereof all Processe hath the name because it proceedeth or goeth out upon former matter either originall or judiciall 4. The authority of making Processe Authority to make out processe upon indictments is given by expresse words in the Commission and in other cases where it is not namely given it is implyed of congruence or rather of necessity in the words heare and determine which cannot bee performed unlesse the party either doe come in gratis or be brought in by the power of Processe 5. This Processe ought alwayes to be in the name of the King Lamb. li. 4. pag. 420. thus Iacobus Dei gratia c. vicecomiti Dublin c. And therefore also seeing he is partie it must say non omittas propter aliquam libertatem quin c. Fitz. Prerog 21. 6. And the Teste thereof may bee under the names of some two Iustices so that it may be made sitting the Court in the Sessions Teste of the processe Brooke tit Peace 6. and 7. 7. But now whereas the Commission giveth to the present Iustices authority to make Processe upon Indictments New Cōmissions of peace doe not discontinue the old processe taken aswell before former Iustices as before themselves all that doing was wont to be discontinued in law by the comming out of a new Commission of the Peace untill that the statute 11. H. 6. ca. 6. did establish that no pleas suits or processe to be taken before Iustices of the peace should be discontinued by a new Commission of the peace to bee made but that they should stand in their strength and that the Iustices assigned in the same new Commission should have power to continue the same and to heare and determine all that which dependeth upon them And of the like effect there is a branch in the later end of the statute of 10. Carol. ca. 14. in Ireland 8. Furthermore whereas Sheriffes and their Bailiffes used to arrest men Endictments before Sheriffs and to proceed upon Indictments found in their Turnes or Law-dayes another statute made 1. Ed. 4. cap. 2. taketh that power out of their hands and delivereth it over to the Iustices of the peace appointing them to proceed upon them as if they had beene found before themselves Processe of utlary 9. Now seeing that this Processe of the Sessions is sent out to this end that either the party shall come in to answere and to bee justified by the Law or else that he shall for his contumacy bee deprived of the benefit of law for so much in effect doe the words of the Commission Quousque capiantur reddant se aut utlagentur import in them it followeth that in all cases of Indictments if the party be returned insufficient the processe of Outlawrie lieth against the offendour if he be not taken before or doe not otherwise offer and yeeld himselfe And then the power of these Iustices endeth with the Outlawrie for they can make no Capias utlagatum but must certifie the Outlawrie into the Kings Bench. 10. A good while after that Commissions of the peace were first awarded there was not given by them any power to make out any Processe of Outlawrie Lamb. li. 4. pag. 422. for by a Commission of the peace in 20. E. 3. Parl. 1. Patent in dorso wherein were words authorising the Commissioners to arrest all such as should be endicted before them but by and by this followeth there Et ad nomina eorum qui fugerint coram vobis justiciari noluerint certificandum in Cancellaria c. So that if they might not get them arrested they could goe no further but to certifie their names only 11. Now the meane to this Outlawrie is not all one in all cases The generall processe upon Endictments of Trespasse for upon Indictments of Trespasses against the P. or such other contempts the Processe is one and upon Indictments of Treason or felony it is another 12. Upon Indictments of Trespasse against the peace of Conspiracies and of Routs in presence of the Iustices or in Affray of the people if the offendors may not be found nor brought in by Attachment or distresse by reason of their insufficiencie the processe of Outlawrie is to be awarded by the statutes 18. Ed. 3. Stat. 1. Stat. 2. cap. 5. The like is against such as bee indicted upon the statute of Liveries 8. H. 7. cap. 4. 13. Upon the Indictment a Venire facias is to issue first and then if thereupon he be returned sufficient a Distringas and upon the same processe of Distringas infinite till he come in but if a Nihil habet c. be at the first returned against him then a Capias Alias and Pluries and after an Exigent as it
these and such other cases where they cannot of themselves proceed they ought to send the Records to such as have authority to determine upon them and otherwise they doe not discharge that duty which the words Salvis c. alijs ad nos indespectantibus in the Commission doe seeme to expect at their hands 6. Touching the Certiorari it is of force if it be made accordingly to remove not only Endictments or other executory Records wherein the Iustices of peace can goe no further and whereof I have spoken already but also the Records of causes fully and lawfully heard and determined by them to the end that they may be reversed and annulled in the Kings Bench if good matter and cause doe require it 7. For that preheminence hath the Kings Bench and all other the higher Courts to write to the Iustices of peace to certifie their Records that doe make for the tryall of causes hanging in them as you may read in 19. H. 6. 19. where the Iustices of the common place did send to the Iustices of peace for an Endictment because in a writ of conspiracy brought before them it was materiall to have it 8. And yet they of the common place doe not use to write for Endictments or such other Records unlesse they be thereunto induced by cause hanging in their owne Courts before them For otherwise the right way to remove them is by Certiorari out of the Chancery from whence they may be transferred by Mirtimus to any other Court 41. li. Ass pl. 2. per Knyvet chiefe Iustice Matters by severall Statutes specially appointed to be done and executed in the Quarter Sessions CHAP. 20. 1. VVEe have hitherto laboured and run over such things as are common to all generall Sessions of the peace and yet because there be certaine matters that are by severall statutes specially appropriated some to any and others to some one of the quarter Sessions it will not be amisse to set forth what Sessions is and ought to be called a quarter-Sessions 2. Every quarter Sessions is a generall Sessions of the peace and is styled generalis sessio pacis but other Sessions which are held upon speciall occasions although all the articles inquirable in the Sessions of the peace be given in charge are not quarter-Sessions nor to be styled generalis sessio pacis but only Sessio pacis c. 3. This quarter-Sessions is so called because it is holden quarterly viz. foure times in the yeare and the stat of 4. H. 7. cap. 12. calleth these foure quarter-Sessions principall Sessions for that in them chiefely the whole power and authority of the Iustices of peace doth shine and shew it selfe more then in other Sessions 4. These quarter-Sessions have beene appointed by severall statutes to be holden quarterly and at speciall times and therefore it will not be amisse for our better instruction to peruse such statutes as doe either in deed or in shew concerne this point 5. The stat of 25. Ed. 3. cap. 8. ordaineth That the Iustices of peace make their Sessions in all the Counties of England at the least foure times in the yeare viz. at the Feasts of the Annunciation of our Lady Saint Margaret S. Michael and S. Nicholas and also at all times that shall be needfull according to the discretion of the same Iustices 6. But this ordinance was altered as to the times by the Stat. of 36. Ed. 3. cap. 12. which ordaineth that in the Commission of the peace shall be contained that the Iustices of peace shall hold their Sessions foure times in the yeare viz. one within the Vtas of the Epiphanie the second within the second weeke of Lent the third betweene the Feasts of Pentecost and Saint Iohn Baptist and the fourth within eight dayes next after Michaelmas 7. But this is againe altered as to the times by the stat of 12. R. 2. cap. 10. which hath ordained that the Iustices of peace should hold their Sessions once in every Quarter of the yeare at the least without expressing any certaine time and hereupon as I conceive it gained the name of the Quarter-Sessions and ever sithence hath been so called For before this statute although foure Sessions were to be held yearely yet the same were not quarterly 8. But after this in Anno secundo H. 5. cap. 4. there was another stat made whereby it is ordained that the Iustices of the peace in every Shire named of the Quorum be resiant within the same Shire except Lords named in the Commission of the peace and also except the Iustices of the one Bench and of the other the chiefe Baron of the Exchequer Serjeants at Law and the Kings Attourney for the time that the same Iustices Chiefe Baron Serjeants at the Law and the Kings Attourney be attending and occupied in the Kings Courts or otherwise in some other place occupied in the Kings service and also make their Sessions foure times by the yeare that is to say in the first weeke after the Feast of S. Michael the first weeke after the Epiphanie the first weeke after Easter weeke and in the first weeke after the Translation of Saint Thomas the Martyr which is the third of Iuly and more often if need be 9. Now there are divers offences which by severall statutes are inquirable and some other things are to be done by the Iustices of peace for the well ordering of the Common-wealth only at the Quarter-Sessions because the Statutes themselves doe appoint the Quarter Sessions for the enquiring and doing of the same 10. The Statutes which doe appropriate divers matters to the Quarter Sessions or to some one of them are these that follow viz. 11. By the Stat. of 1. H. 7. cap. 7. unlawfull hunting in forrests parks and warrens with painted faces vizzards or otherwise disguised is to bee punished by Fyne to bee assessed at the next generall Sessions of the peace which is to be intended of the quarter Sessions which were publiquely knowne and not of any Sessions held upon speciall occasion 12. So likewise by the Stat. of 11. Iac. cap. 7. in Ireland the defaults for not amending of high-wayes according to that stat are to be punished at the next Quarter-Sessions 13. So likewise perjurie and subornation of perjurie are by the stat of 28. Eliz. cap. 1. in Ireland to bee punished in the Quarter-Sessions 14. Also by the statute of 11. Caroli cap. 4. in Ireland the Iustices of peace or the more part of them may at any Quarter-Sessions give order for the erection of houses of Correction and for stockes of money and all other things necessary for the same and for the governement thereof and such houses of Correction are to be purchased conveyed or assured upon trust to such persons as by the Iustices of peace or the more part of them in their Quarter Sessions of the peace shall bee thought fit and such Iustices may at their Quarter Sessions of the peace next after
much halfe a yeares imprisonment and to stand upon the pillory and his testimony for ever to be disabled 28. El. ca. 1. in Ireland 20. Perjurie 20 Forfeiture of 20.l six months imprisonment and if the offendor have no goods to the value to be set upon the pillory and both his Eares nayled to the same and his testimony to bee disallowed forever 28. El. ca. 1. in Ireland 21. Forestallers Regrators and Ingrossers of Corne and other things 21 The Forestallers for the first offence are to forfeit the thing bought or the value of it and also to be amerced for the second to be set upon the Pillorie for the third to be imprisoned and ransomed for the fourth to abjure the towne by the statute of 31. Ed. 1. Rastall Forestallers 1. And for the Regrators and Ingrossers they are to be punished onely by Fyne and imprisonment as for a Misdemeanor at the Common law 22. Forgerie and publishing of forged deeds and writings 22 To be punished by Fyne and imprisonment as for a misdemeanor at the Common Law for Iustices of peace have not power to inflict the punishment ordained by the statute of 28. El. ca. 4. but that is to be inflicted by the Iustices of Assize or in the Kings Bench. 23. Using of false weights and measures 23 Fyne and ransome 9. H. 6. cap. ◠24. Breaking of the Assise of bread and drinke 24 The first second and third offence amerciament the fourth the pillory for the man and Tumbrell for the woman Baker and the Tumbrell for the Brewer 51. H. 3. Rastal weights 2. 25. Selling or setting to sale any manner of unwholsome or corrupt meat or drinke 25 Fyne and imprisonment 26. Artificers as Tanners Shoomakers Clothiers Dyers and all other Tradesmen making of their manufactures or using of their Trade deceitfully 26 Fyne and Imprisonment 27. Goldsmiths working of base mettall or using any other deceit in their Trade 27 To forfeit the value of the thing wrought and for gilding upon base mettall 10. times the value 2. H. 5. ca. 4. and 8. H. 5. c. 3. 28. Embracery of Iurors 28 To forfeit ten times as much as was given by way of embracery and imprisonment 5. E. 3. cap. 10. 29. Bribery and corruption in officers or ministers of Iustice 29 Fyne and imprisonment 30. Conspiracies in Tradesmen Labourers and servants not to worke at the rates published by the Iustices of peace 30 Fyne and imprisonment 31. Conspiracies by colour of Iustice to take away any mans life malitiously without cause 31 The villanous judgement viz. imprisonment during life the offendors testimony to be rejected his house to be raized his meadowes ploughed and his woods to be rooted up 32. All other false and deceitfull practises tending any way to the prejudice of the common wealth or perverting of Iustice 32 Fyne and imprisonment and bonds of the Court. Thirdly Offences of Omission viz.   1. Constables not setting forth nor pursuing Huy and Cry after felons and Traitours 1 Fyne and imprisonment 13. E. 1. ca. 1. 2. Statute de Winchester 2. Constables not apprehending and punishing of Rogues and sturdy beggers and others that begge without licence or having licences begge out of their limits appointed for them to begge in 2 Fyne and imprisonment 33. H. 8. ca. 15. in Ireland 3. Constables not setting the watch or not endevouring to part an affray 3 Fyne and imprisonment by 5. Ed. 4. ca. 5. the fyne is to be 3.d for every day 4. Constables not making search for idle and suspected persons and common gamesters that live idly and expensively having no meanes to maintaine themselves 4 Fyne and imprisonment 5. Constables that neglect or refuse to search for or apprehend felons or Traitours upon request or notice given them 5 Fyne and imprisonment 6. Constables and all other officers that refuse or neglect to execute the warrants of any Iustice of peace directed to them 6 Fyne and imprisonment 7. Such persons as will not follow Huy and Cry at the Constables command 7 Fyne and imprisonment by the statute of Winchester 13. Ed. 1. ca. 1. 2. 8. Such persons as will not assist the Constable to make search for and apprehend Felons or Traitours and other suspected persons and to convay prisoners to the gaole or before a Iustice of peace 8 Fyne and imprisonment 9. Such persons as refuse or neglect to keepe watch when they are required by the Constable 9 Fyne and imprisonment 10. Such Towneships as suffer sturdy beggers Rogues and Vagabonds to passe without punishment 10 For every impotent begger 3 s 4.d and for every sturdy begger 6 s 8.d forfeiture 11. Such Towneships as have not stocks common pounds 11 Fyne 12. Such servants Artificers and labourers as refuse to serve worke or labour at the wages rated by the Iustices of peace or that shall take more wages then according to the rates published by the Iustices of peace 12 Forfeiture of so much as they take above the rate and imprisonment at the discretion of the Iustice of peace 33. H. 8. ca. 9. in Ireland 13. All such as are Idlers and will not labour at all and yet have nothing to maintaine themselves 13 Imprisonment untill they finde sureties to labour or be of good behaviour 14. All defects of Bridges Causeyes and high-waies 14 Fyne 15. The neglect of Church-wardens and Constables in not choosing Surveyors for the high-wayes 15 Fyne and imprisonment according to the statute of 11. Iacobi ca. 7. in Ireland 16. The neglect of the Surveyors of high-wayes in not executing that office as they ought to doe 16 Forfeiture of 10. l. by the statute of 21. Iacobi ca. 7. 17. The neglect of such as do not labour six dayes at the appointment of the Surveyors for the amending of high-wayes according to the statute in that case provided 17 Forfeiture of 20 s for default of every wayne or Cart with two men to be sent by everyone that hath 5.l in goods or 40 s in lands for every day and for Cottiers and such as have no Cart 2 s every day by the said statute of 11. Iacob ca. 7. 18. The neglect of such as doe not scowre their ditches nor cut their paces by reason whereof the highwayes are impayred 18 20.l forfeiture per 11. Iacob ca. 7. in Ireland 19. The neglect of all officers whatsoever whereby the Commonwealth receiveth any prejudice 19 Fyne and Imprisonment 20. The neglect of repairing to the Church to heare divine Service upon Sundayes and Holy-dayes 20 For every Sunday or Holy-day 12. d. 1. El. ca. 2. in Ireland 21. Such persons as shall refuse to be assistant to the Iustices of peace Cōmissioners Sheriffe or Undersheriffe when they shall be required to ayde them to arrest the offendors of riots routs unlawfull assemblies 21 Fyne and imprisonment 22. Ordinaries not giving an oath to Incumbents to keepe Schooles in their parishes to teach English 22 To forfeit for every
determine thereof as law requireth 39. The second Assignavimus in the Commission doth give authoritie to any two Iustices of the peace or more the one being of the Quorum in these five things following 1. To enquire by a Iurie of all offences mentioned within the Commission 2. To take and view all Iudictments and presentments of the Iurie 3. To grant out proces against the offendors except in cases of Treason in the County of Dublin and cases of Treason and felonie in the other Counties thereby to cause them to come and answere to the said Iudictments 4. To trie and heare all such offences except before excepted upon any former or future indictments taken before themselves or before any other Iustices of the peace after the offendors be come in 5. To determine thereof by giving Iudgement and inflicting punishment upon the offendors according to the Lawes and statutes 40. But all the busines included within the second Assignavimus belongeth to the Sessions of the peace which is to be declared in the second part of this booke and therefore I forbeare to speake of it in this place 41. Note also that there be diverse statutes which be not specified within the Commission and yet are committed to the charge and care of the Iustices of peace and are a sufficient warrant and Commission of themselves although they be not recited in the Commission And all such statutes are also to be executed according as the same statutes themselves do severally prescribe and set downe 42. And for that most of the busines and practise of the Iustices of peace doth consist and lye in the execution of such statutes as are committed to their charge whether they be specified in the Commission or not specified there the numbers of which statutes are exceedingly encreased of late yeares to the overburthening of all the Iustices of peace And the rather to give some little help to such Iustices of peace who being destitute of the assistance of such as are learned in the Lawes are daily to administer Iustice and to execute their office at home and out of their Sessions I have for their better case herein endeavored in this treatise to set downe more orderly and particularly the severall parts and branches of every such statute by it selfe under their proper titles with further referments to the statutes themselves at large or to the Abridgements 43. The power and authoritie of the Iustices of peace aswell given them by the said Commission as by the statutes is in some cases Ministeriall or regular and limited as a Minister onely And in some other cases judiciall or absolute and as a Iudge 44. Ministeriall when he is thereto commaunded by a higher authoritie 45. As upon A supplicavit out of the Chancery or Kings Bench for the taking of suretie for the peace or good behaviour and a Writ upon the statute of North-hampton upon a forceible Entrie In the execution of which two Writs the Iustice of peace may proceede no further or otherwise then hee is authorised by such writ and is also to returne the writ and to certifie his doings therein into the Court whence the writ came 46. But in all other cases the power of the Iustices of peace is absolute in some manner so as they and every of them may of their owne power proceede ex officio and as a Iudge yet this their power is also limited for they may neither hang a man for a trespasse nor fine him for a felony but must proceede in all things according as they are prescribed by the Commission and by the said severall statutes 47. And yet for that all Considerable circumstances can neither be comprehended in the Commission Discretion nor fore-seene at the time of the making of the statutes Therefore oftentimes some things are referred to the consideration of the Iustices of peace and left to be supplyed by them in their discretion 48. The Commission of the peace in it selfe doth leave litle or nothing to the discretion of the Iustices of peace but doth limit them to proceede secundum leges consuetudines ordinationes et statuta 49. But by some late statutes some things are therein by speciall words referred to the discretion of the Iustices of peace some out of Sessions and some at their Sessions 50. I will here onely set downe some particulars of such things as are referred to their discretions out of their Sessions 1. Labourers 23. H 6. ca. 13. One Iustice of peace may cause all such persons as be meete to labour by his discretion to worke in harvest and hay time 2. Trespassers in Corne Orchards Hedges or Woods Trespasse 10. Carol. ca. 23. in hib which in the discretion of the Iustice are not thought able to give satisfaction shal be whipped 3. Tyle 17. E. 4. ca. 4. One Iustice of peace may heare and determine by examination or otherwise by his discretion the offences cōmitted in Tile making 4. Two Iustices may assesse 10. Carol. ca. 13. according to their discretions proprotionably all the parishes within the hundred towards a contribution for the parties charged upon a Robberie c. 5. Two 9. H. 5. ca. 8. Iustices may fine by their discretion all buyers and sellers with unlawfull weights and measures 6. There be some other statutes and some other cases wherein the discretion of the Iustices of peace out of their Sessions is tollerated But the Counsell of Cicero herein is to be observed Sapientis est Iudicis cogitare tantū sibi esse permissum quantum sit commissum ac creditum 7. Also the sayings of the late reverend Iudge and Sage of the Law in his fifth part in Rooks case Co. li. 5. fo 100. li. 10. fo 140. and in his tenth part in Keighleys case are worthy observation sc That discretion is a knowledge or understanding to discerne betweene truth and falshood betweene right and wrong betweene shaddowes and substance betweene Equity and colourable glosses and pretences and not to doe according to our wills and private affections for talis discretio discretionem confundit And therefore in both the recited cases it was holden that though the words in the Commission of Sewers do give authoritie to those Commissioners to do according to their discretions that yet their discretion and proceedings ought to be limited and bounded with the rules of reason Law and Iustice Againe discretion saith he is scire per legem quid sit justum And therefore every Iudge Iustice or Commissioner ought to have duos sales viz. Salem sapientiae ne sit insipidus Et salem conscientiae ne sit Diabolus 8. And as Master Lambert well said no way better shall the discretion of a Iustice of peace appeare then if he remembring that he is lex loquens shall containe himselfe within the lists of Law and shall not use his discretion but only where both the Law permitteth and the present case requireth 9. In all
the Affrayors doe flie into another County the officer as every other private person may pursue them into the other County and may stay or arrest them there but the officer cannot bring them out of that County but must carry the Affrayors before some Iu. of peace of the same County where they were taken c. But if the Affray be in one Towne and the Affrayors doe flie into a franchise or liberty within the same County the officer may pursue them and take them out of the Franchise by fresh suite 83. See 2. E. 4. C. Br. Tres 296. But if the Constable hath arrested one upon a warrant from a Iustice of peace and after the arrest the party escapeth of his owne wrong and flieth into another County the Constable may pursue and take him in the other County by fresh suite and bring him before the Iu. of peace upon whose warrant he was first arrested 84. If a prisoner that is taken in execution shall make an escape of his owne wrong and shall flie out of sight and into another County where the Sheriffe hath no power yet the Sheriffe c. upon fresh suite may take him againe in any other County and he shal be still said to be in execution yea without fresh suite the Sheriffe c. may take him againe and keepe him untill he hath agreed with him otherwise if the escape were by the consent of the Sheriffe c. Co. 3. 58. Br. escape 4. 12. 85. And if a man be arrested for Treason or felony and the Constable shall carry him to the Gaole and the Gaoler will not receive him 10. H. 4. 7. the Constable must bring him back to the Town where he was taken And that Towne shall be charged with the keeping of him untill the next gaole delivery by the opinion of the booke 10. H. 4. Or the Constable or other party that arrested him may in such case keepe the prisoner in his owne house as it seemeth See 11. Ed. 4. Br. Faux Impris 25. But the usuall and best course is to bring him before a Iustice of peace and to have his mittimus and then the Gaoler may not refuse him P. Prison â— But the Gaoler denying to receive a felon by the delivery of any Constable or Towneship 4. E. 3. ca. 10. or taking any thing for receiving such shal be punished for the same by the Iustices of gaole delivery When a statute doth appoint imprisonment but limits no time when the offendor shal be imprisoned The time then he is to be imprisoned presently Co. 8. 119. Plo. 17. b. as in case of a force the Iu. of P. upon view hereof ought to commit the offendors presently 86. Also when a statute doth appoint imprisonment but limits no time how long Cromp. 171. there the prisoner must remaine at the discretion of the Court. 87. Where a statute doth ordaine that an offendour shal be imprisoned at the K. pleasure or that a prisoner shall not be delivered without the Kings speciall commandement and that upon a Fine to be made to the King the Iustices before whom the record is may assesse the same Fine and deliver him 18. H. 8. 1. Fitz. Na. Br. fol. 190. f. The manner 88. Now for the manner of imprisonment generally in all cases where a man is committed to prison be it for Treason felony or upon an execution or but for a Trespasse or other offence every Gaoler ought to keepe such his prisoner Co. 8. 100. 9. 87. In salva arcta Custodia Salva sc that he ought to be imprisoned so surely as that he cannot escape Arcta in respect that he ought to be kept close without conference with others for intelligence of things abroad And therefore if the Gaoler shall license his prisoner to goe abroad for a time and then to come againe Or to goe abroad with a keeper though he come againe yet these are escapes And if the prisoner were in for Treason or felony 1. P. â— ca. 12. 7. H. 4. ca. 4. this is fineable in the Gaoler at the least if it be not felony or Treason And if the prisoner were in upon an execution this is so penall to the officer as that he shal be charged for the debt And if the prisoner were in but for a Trespasse yet the officer is fineable for imprisonment was ordained for a punishment of offendors and in terrour of all others Vt poena ad paucos metus ad omnes perveniat Also by the Law those which are in execution ought not to goe at liberty within the prison Dyer 249. Co. 3. 44. nor abroad with their keeper 24. H. 8. much lesse in cases of felony or of higher offences Co. ib. P. Accomptant 2. 89. Also by the statute of Westminster 2. ca. 11. Accomptants and such as are in execution the Sheriffe or gaoler may put Irons or fetters upon them And yet if the Gaoler shall imprison a man so straitly by putting him in the Stocks or putting more Irons upon him then is needful Fitz. 93. b. or keepeth his victuall fâ—om him wherby the prisoner becommeth decrepit lamed or otherwise diseased he shall have an Action of the case against the Gaoler Also the Constable or other such officer that shall imprison in the Stocks any offendor for felony or suspition thereof may locke the stocks and if need be may also put Irons upon him as it seemeth And when he convayeth him to the gaole or to the Iustice he may pinyon him or otherwise make him sure so that he cannot escape 90. It seemeth by Britton fol. 17. that by the common Law before the statute of Westm. 2. None should have Irons put on them but such offendors as were taken for felony or trepassers in parkes But the words of the statute of Westm. 2. ca. 11. are generall quod carceri manucipientur in ferris which word carceri seemeth to signifie any persons imprisoned for any cause or any persons worthy of the prison and is not to be restrained to Accomptants only See Coke 3. 44. 91. Where the Iu. of peace Sheriffe or other Officer Posse Comitatus is enabled to take the power of the County it seemeth they may command and ought to have the aide and attendance of all Knights Gentlemen Yeomen Husbandmen Labourers Tradesmen Servants and apprentices and of all other such persons being above the age of 15. yeares and that are able to travell 92. But woemen Ecclesiasticall persons and such as be decrepit or diseased of any continuall infirmity shall not be compelled to attend them 93. And in such cases it is referred to the discretion of the Iustices of peace or Sheriffe c. what number they will have to attend upon them and how and after what manner they shal be armed weaponed or otherwise furnished But it is not justifieable for the Iu. of Peace Sheriffe or other officer to
60. 63. 78. 47. 10. Carol. ca. 18. in Ireland 15. Also the statute of 10. Caroli in Ireland seemeth to admit that for manslaughter and all other homicide except murder only the slayer may be bailed by the Iustices of peace which also is the common practise at this day but let the Iustices of peace be sparing and well advised herein viz. that the offence be but manslaughter and not murder 16. Also it seemeth the Iustices of peace cannot baile him that hath committed manslaughter if either he hath confessed the offence upon his examination Or that he be taken with the manner Or that it be apparantly knowne that he killed the other for then it is more then suspition but he that hath dangerously hurt another may goe under baile 17. Likewise no person taken by the Kings commandement was baileable by the common Law but this must be intended of the Kings commadement by his owne mouth or by his privy counsell which are incorporate to him Stamf. 73. See Stamf. 72. Br. Mainp 37. 47. neither was any person taken by the commandement of the Kings Iustices baileable by the common Law but this must be intended of their absolute commandement as if the Iustice commands one to prison without shewing cause why he doth so command or for misdemeanour done in his presence or for some other cause which lyeth in the discretion of the Iustices more then in his ordinary power P. Iust 107. 18. But now for that by the statute 10. Caroli ca. 18. It is provided that no Iust or Iustices of P. shall let to baile any person contrary to the aforesaid statute of Westm 1. made 3. Ed. 1. ca. 15. And so the said statute of Westm 1. is now as a line whereby the Iustice of peace are to guide themselves in cases of Bailement I will shew here what persons are baileable by that statute of Westm 1. and what not 19. By the statute of Westm 1. no prisoner shall be let to baile 3. Ed. 1. 15. P. Mainp 1. F. N. B. 66. c. which is taken in any of these twelve cases following 1. First such as have abjured the Realme shall not be bailed 2. Stamf. 144. b. Nor any approver or appellor for that he confesseth the felony and himselfe guilty before he can burthen or accuse another as coadjutor or helper with him in doing the same 3. Nor he which is appealed by an approver Fitz. 250. D. Br. Mainp 97. so long as the approver doth live except he be of good name or that the Approver doth waive his appeale See Stamf. 74. 4. Nor he which is taken for burning of burning of a house c. feloniously 5. Nor any excommunicate person taken at the Bishops request sc upon his certificate by the writ of Excom capiend F. N. B. 66. 6. Nor any felon taken with the manner or taken for a manifest offence 7. Nor a Theefe openly defamed and knowne 8. Nor he which is outlawed and yet in some cases such as be outlawed may be bailed by the Court c. See Stamf. 74. 9. Nor he which hath broken the Kings prison 10. Nor he which is taken for Treason 11. Nor he which is taken for falsifying the Kings mony 12. Nor he which counterfeiteth the Kings seale Br. Mainp 59. 20. But by the same statute of West 1. Persons baiâ—eable West 1. 15. P. Mainp 2. Persons suspect such persons are baileable which be taken in any of these cases following 1. First he that is taken or indicted for light suspition of felony is baileable F. N. Br. 249. g. 250. c. 251. f. 2. He that is taken upon suspition of burglary robbery or theft Stamf. 74. c. if he be not of evill fame nor that there be any strong presumption against him it seemeth he is baileable 3. A man had stolne certaine hoggs 16. E. 4. 5. Br. Mainp 75. and for that he was of evill fame he was committed without baile yet if he could have brought proofe or witnesse that he bought them hee should have beene bailed 4. A man is arrested for suspition of felony and brought before the Iustice if it shall appeare there is no such felony committed Cromp. 15. the party may be set at liberty without baile but if there be a felony committed and any probability that the prisoner is guilty although in truth he be not guilty yet the Iustice must either commit him or baile him 5. Pery Larceny B. Mainp 2. Fitz. 150. E. He that is taken or indicted for pety Larceny that amounteth not above the value of xij d if he were not guilty of some Larceny before he is baileable 6. Persons indicted P. Mainp 2. Such as be indicted of Larceny generally shall be set at liberty upon sufficient surety 21. And yet they shall not be bailed if they be not also of good fame Stamf. 74. Fitz. 1. 9. 250. Br. Mainp 97. but if they be of good fame they may be bayled although they be indicted by the Iustices that have authority to heare and determine felony yet the Iustices of peace out of their Sessions may not safely baile such persons for being indicted they are then more then vehemently suspected 22. One that was indicted before the Coroner that he had killed another Se defendendo was by the Iustices of gaole delivery bailed till the next Assises to purchase his pardon 26. Eliz. Cromp. 153. Fitz. Na. br fo 249. g. 23. One that was indicted in the Sheriffes Turne for stealing of a horse may be bailed by the Sheriffe if he be of good fame as appeareth by the writ de manucaptione F. N. B. 249. g. Also one that was indicted of Burglary as principall pleaded not guilty and was after bailed 29. lib. Ass Fitz. Mainp 9. Another that was indicted of Robbery was bailed 41. lib. Ass 30. Br. Mainp 61. but these were bailed by the Court and not by a Iustice of peace in the Country Persons attaint or convict Stamf. 74. D. F. Cor. 297. 354. 24. But such as are attainted or convicted of felony are not baileable for although it doth not appeare by any words of the said statute of Westminst 1. that it doth prohibit the bailement of such as be convicted by verdict yet it is to be intended that the statute doth aswell prohibite the bailement of those convicted and attainted by verdict as it doth of them who be attainted by Outlarie And therefore if a prisoner after he hath pleaded not guilty be convicted by verdict that be killed a man Se defendendo 25. E. 3. 42. or by misfortune yet he shall not be bailed by the opinion of some bookes Neverthelesse the Iustices of Assise use to baile the prisoners that are found guilty Se defendendo or per infortunium taking security by recognizance that the prisoner at the next Assizes shall appeare and produce his pardon of grace And this I conceive to
imprisonment 1. H. 6. 7. 4. If a prisoner be rescued at the gallowes or as he is in going to execution this is a breaking of prison and felony 5. If a Gaoler a Constable or any other which hath a prisoner under arrest for felony P R. 147. 149. 44. Ass 12. Br. Eâ—â— 31. Stamf. 31. or suspition thereof voluntarily letteth or suffreth him to goe at liberty this is felony in the gaoler or him that letteh such prisoner escape but it is no felony in the prisoner but if such a prisoner shall escape by the negligence of his keeper then the felony resteth in the prisoner only and not in the Gaoler c. P. R. 149. 150. 9. H 4. 1. Stamf. fo 32. 26. 6. The voluntary letting of a felon escape which is not arrested for felony though he knoweth of the felony yet it is not felony neither can it be an escape without an arrest and yet such an offendor being an officer may for such his negligence or default be indicted and fined as it seemeth by the words of the Commission but by 9. H. 4. fo 1. Br. Escape 43. F. Coron p. 76. he is accessary to the felony Dyer 44. a. 7. Note that a man is alwayes said to be in prison so long as he is within the sight of the gaoler or of him that hath him in custodie though he doth breake away or escape 8. And if a prisoner shall make an escape of his owne wrong and without the consent of the Gaoler â—tamf 33. b. Br. Esc 4â—5 or other person that hath him in custodie though he escape out of their sight and into another County yet if he be taken againe upon fresh suite before the gaoler c. be sued or fined for the escape though it be seven yeares after yet this is no escape as it seemeth for which the officer shall be charged for there is no prejudice to the King by the escape though it be felony in the prisoner as aforesaid and a breaking of prison in him Co. 3. 44. 52. accordeth in case of a prisoner taken in execution that shall make an escape of his owne wrong 9. If a Gaoler or other officer c. shall licence his prisoner to goe abroad Co. 3. 44. Stamf. 33. c. for a time and to come againe this is an escape because the prisoner is found out of the bounds of his prison though the prisoner returne againe according as he shall be prescribed and so is it if the officer shall suffer his prisoner to goe abroad for a time by baile or baston Fitz. Cor. 243. 431. this is an escape yet they are holden in both cases to be but negligent escapes in the officer and so but fineable and yet the gaoler and other officers ought to keepe their prisoners in salva arcta custodia 10. Note that the Sheriffe of every County shall have the keeping of and shall be chargeable and charged with the common gaole and prison of the same County and of all the prisoners therein And must put in such Gaolers or keepers for whom he will answer as appeareth by the statute 14. E. 3. c. 10. which also seemeth to have beene the common Law before as you may see by the preamble of the statute of 14. E. 3. Co. 4. 34. And therefore the high Sheriffe himselfe shall be answerable for an escape of a felon suffred by his gaoler and may be indicted for the same And so the high Sheriffe as he hath an office of great antiquity and of great trust and authority Co. 4. 331 for the time So withall it is a place of great perill and charge And if the rigour of Law should be laid upon him Co. 9. 98. then should he have a bad office But in such cases I have observed the favorable exposition and dealing of the learned and reverend Iudges First you shall finde in Sir Ed. Cooke Reports lib. 9. fol. 98. that the gaolers who have the actuall possession shall be answerable for escapes if they have wherewith Also Popham chiefe Iustice did cause one Staner a gaoler at Cambridge to be indicted Temp. Eliz. arraigned and hanged for an escape of a felon suffred by him 11. Now an escape is of two sorts voluntary and negligent 12. Voluntary escape is where one doth arrest or hath imprisoned another for felony or other offence and after letteth him goe at liberty whither he will Stamf. 32. 13. Negligent escape is when the party arrested or imprisoned doth escape against the will of him that arrested or imprisoned him Stamf. 33. and is not freshly pursued and taken againe before he hath lost the sight of him the penalty thereof seemeth to be only a fine at the discretion of the Iudges or Iustices yet see Stamf. 35. K. a difference of the fine where the prisoner is attainted where but indicted and where only taken upon suspition 14. But for voluntary escape if the arrest or imprisonment were for felony it shall be adjudged felony in him which did voluntarily suffer the prisoner to escape And if the arrest c. were for Treason Stamf. 32. 1. it shall be adjudged Treason And if the arrest or imprisonment were for Trespasse it shall be adjudged Trespasse F. Cor. 248. And yet see Fitz. Coron 248. Escape non adjudicabitur pro transgressione And in case of felony there is no difference whether the felon be arrested by an Officer or by another See Br. Coron 112. 15. One Nichols assaulted Cholmelcy to rob him and killed him after Qu. Eliz. granted Nichols his pardon But Cholmeley his wife having commenced her appeale against Nichols he was still detained in prison at the womans suite after the gaoler suffred Nich. voluntarily to goe at large and so to escape by the opinion of Master Plowden this was felony in the gaoler although N. the prisoner were no felon as to the Qu. in regard hee had obtained his pardon Plo. 476. b. 16. A prisoner found guilty of pety Larceny is adjudged to be imprisoned by the space of a moneth F. Cor. 430. 431. for his punishment and after the moneth he breaketh prison and escapeth It is holden that the Gaoler shall bee charged with this escape P. R. 150. But if a prisoner shall be discharged by judgement paying his fees if he escape here the Gaoler is not chargeable the difference is the prisoner in the first case was by judgement committed to prison and in the last case he is adjudged to be acquit of his imprisonment paying c. 21. H. 7. 17. a. Br. Escape 16. 17. Note that a voluntary escape is no felony if the Act done were not felony at the time of the escape made 11. H. 7. 12. Plo. 258. 263. 401. As if A. doe strike B. and hurt him mortally whereupon the Constables doe arrest A. and after willingly suffer him to escape and after B.
Prisots reason they may seise such goods 10. Co. 11. 30. 38. Conviction in felony is where a man being indicted of felony upon his arraignement submitteth himselfe to be tryed by the Countrey P.R. 179. and then is found guilty by the verdict of twelve other Iurors Or shall confesse the offence upon his triall or is outlawed for the same Co. 1â— 30. Also conviction in all other offences by the common Law is where the offendor is indicted or the offence presented by a Iury whereto the offendor pleadeth Not guilty and is found guilty by the verdict of twelve other Iurors 11. And yet by diverse statutes you shall finde that an offendor may be convicted out of Court either upon the view and record of the Iustice of peace Or by the confession of the offendor or upon examination of witnesses before one or two Iustices of peace and that out of the Sessions 12. And sometimes by confession or examination of witnesses in Court without any verdict taken See Crom. 130. 131. Br. Confes 32. And in some cases conviction shall be taken for attaineder see Co. 11. 59. 60. 13. The difference betweene attainder and conviction Co. 11. 58. Stamf. 138. 185. b. in case of felony is the person attainted hath judgement of death given upon him The person convict before judgement prayeth his Clergy and hath it c. Or after verdict confession or outlary the felon is said to be convicted till judgement be given 14. And so a man is properly said to be indicted when the offence is first found by the great Enquest or other Iury of Enquiry 15. Convicted when the offendor is found guilty by a second Iury. 16. Attainted when after such conviction judgement is given against the offendor Examination of felons and Evidence against them CHAP. 27. 1. VVHen any person shall be brought before a Iu. of P. for Treason 10. Caroli c. 18. in Ireland murder manslaughter or any other felony wherewith the Iu. of P. may deale or for suspition thereof before the Iustice shall commit or send such offendor to prison he shall take 1. The examination of such offendor in writing but not upon oath 2. The information of such as bring him viz. he shall take their examination and information of the fact and circumstances thereof upon oath And so much thereof as shall be materiall to prove the felony he shall put in writing within two dayes after the said examination 3. Also the same Iu. of P. shall binde all such by recognisance as doe declare any thing materiall to prove the treason or felony to appeare at the next generall gaole delivery to be holden where the triall of the said felony shall be to give in evidence against such offendors 4. And then the same Iustice shall make his Mittimus to carry the offendor to the Gaole 10. Caroli c. 18. in Ireland 5. Or if such offendor be baileable and that there be two Iustices of P. present together the one of them being of the Quorum after such examination and information taken and put in writing the said Iu. of peace may baile such prisoner 6. And the said Iu. or Iustices of P. shall certifie at the next generall gaole delivery such examination information recognisance and bailement 7. And if any Iu. of P. shall offend in any thing contrary to the true intent and meaning of this statute the Iustices of gaole delivery in their discretions shall fine every such Iustice of peace 8. And yet for petty Larcenies and felonies the offendors in the County of Dublin may be tryed at the quarter Sessions and the examinations and informations may be certified thither and the Informers bound thither 9. For the forme of the recognisance the forme of the Mittimus and the forme of the bailement See postea in the title of warrants and presidents 10. It the offendor upon his examination before the Iustices of P. shall confesse the matter it shall not be amisse that the offendor subscribes his name or marke under such confession made by him 11. If the offendor confesseth the felony before the Iustice of peace and notwithstanding he letteth him goe without committing or bailing of him this seemeth to be a voluntary escape and so felony in the Iustice Cromp. 39. 44. 12. Also if any person shall be brought before a Iustice of Peace and charged with any manner of homicide other than that which shall be done in the orderly execution of Iudgement as if it were done se defendendo or by casualty which are not felonies of death or done by an infant a lunaticke or the like yet it is the Iustices part and safest for him to commit the offendour to prison or at least to joyne with some other in the bailement of him if the cause will suffer it to the end the party may be discharged by a lawfull tryall 13. Children may be examined to prove a felony against their parents and bound to give Evidence for the sonne and daughter of Elizab. Device a witch were not onely examined by the Iustice of Peace against their said mother and the said examinations certified and openly read upon the arraignement and triall but the daughter also was commanded and did give open Evidence against her mother then prisoner at the Barre And by the statute of 10. 10. Carol. ca. 19. in Ireland Caroli in Ireland the Iustices of peace are to binde by recognisance to give Evidence all such as doe declare any thing materiall to prove the felonie 14. It appeareth in the booke of the discovery of witches By an Infant that two children the one about 9. yeares of age the other of 14. did upon their oathes give Evidence against the prisoners upon their arraignement And likewise at an Assise at Downe a murder was discovered and the murderer condemned upon the sole evidence of a child of about 10. yeares old and the murderer after she had received her judgement confessed the fact with all the circumstances according as the child had declared the same 15. Two informe against another in matter of felonie By persons discredited and they varie in their tales viz. in the day and place when and where the felony was committed such information is not much to bee credited See the storie of Susanna 16. He that is examined Cromp. 100. if part of that he speaketh be proved to be false Dalton pag. 271. he is not much to be credited in the residue of his information and therefore we shall find in 16. Ed. 4. that a man who was produced as a witnesse in the Chancery in his deposition was found to sweare falsely in part and thereupon his testimony was utterly rejected 17. A man attainted of perjurie and after pardoned and restored such a persons information is not much to be credited against a prisoner for the old saying is Once forsworne ever forlorne 18. A man attainted of conspiracie or forgerie shall
Iustices 11. The said Stewards Bailiffes and Constables of the said Townes shall be sworne before the same Iustices to inquire diligently by all the good wayes they may of all them that come against this ordinance and to certifie the same Iustices of their names at all times when they shall come into the Countrey to make their Sessions so that the same Iustices in certification of the same Stewards Bailiffes and Constables of the names of the Rebels shall doe them to be attached by their bodies to be before the said Iustices to answer of such contempts Arrest Fine so that they make fine and ransome to the King in case they be attainted And moreover to be commanded to prison there to remaine till they have found surety to serve and doe their worke and in case that any of them come against his oath and be thereof attainted he shall have imprisonment of a quarter of a yeare Attaint so that at every time that he offendeth and is convict he shall have double paine and that the same Iustices Imprison at every time they come into the Countrey shall inquire of the said Stewards Bailiffes Inquitie and Constables if they have made a good and lawfull certificate or any concealement for gift procurement or affinity Inkeepers and punish them by fine and ransome if they be found guilty and that the same Iustices have power to enquire and make due punishment of the said ministers Vitailers labourers workemen and other servants aswell at the suite of the party as by presentment and to heare and determine and put the things in execution by the Exigend after the first Capias if need be and to depute other under them as many and such as they shall see best for keeping of the same ordinance Oier Ter. And that they which will sue against such servants workemen labourers and Artificers Exigent for excesse taking of them and they be thereof attainted at their suit 25. E. 3. ca. 6. they shall have againe such excesse and in case that none will sue to have againe such excesse then it shall be levied of the said servants labourers excesse taking workemen and Artificers Quinzime and delivered to the Collectors of the Quinzime in allevation of the Townes where such excesses were taken Anno 25. Ed. 3. ca. 6. 12. No Sheriffes Constables Bailiffes Gaolers Sheriffes Constables Bailiffes Gaolers the Clerkes of the Iustices or of the Sheriffes nor other Ministers whatsoever they be shall take any thing for the cause of their office of the same servants for fees suit of prison nor in other manner and if they have any thing taken in such manner Fee Quinzime Dismes they shall deliver the same to the Collectors of the Disme and Quinzimes in ayd of the commons for the time that the Disme and Quinzime doth runne aswell for the time past as for the time to come Inquests Iunices and that the said Iustices enquire in their Sessions if the said Ministers have any thing received of the same servants and that they shall finde by such inquest that the said Ministers have received the same Iustices shall levy of every of the said ministers and deliver to the said collectors Fineâ— amerciaments together with the excesse and fines and ransomes made and also the amerciaments of all them which shall be amerced before the said Iustices in allevation of the said Townes as afore is said Collectors and in case the excesse found in one Towne Indentures doth exceed the quantity of the Quinzime of the said Towne the remnant of such excesse shall be levyed and payed by the said Collectors to the next poore Townes in ayd of their Quinzime by advice of the said Iustices and that the fines and ransomes excesses and amerciaments of the said servants labourers and Artificers for the time to come running of the said Quinzime be delivered to the said Collectors in the forme aforesaid by Indentures to be made betwixt them and the Iustices so that the Collectors may be charged by their account by the said Indentures in case that the said fines ransomes amerciaments and excesses be not payed in aid of the said Quinzime and ceasing the said Quinzime it shall be levied to the Kings use Account and answered by the Sheriffes of the Counties Anno 25. Ed. 3. cap. 7. Stat. 2. 13. Those that speake in the presence of the said Iustices or other things doe in their absence or presence in incouraging or maintenance of the said servants Encourage labourers or Artificers against this ordinance shall be grievously punished by the discretion of the same Iustices Punish and if any of the said servants Labourers or Artificers doe fly from one County to another because of this ordinance that the Sheriffes of the Counties where such fugitive persons shall be found shall doe them Flie. Sheriffes to be taken at the commandement of the Iustices of the Counties from whence they shall fly and bring them to the chiefe Gaole of the same County there to abide till the next Sessions of the same Iustices and that the Sheriffe returne the same commandement before the same Iustices at their next Sessions and that this Ordinance be holden and kept in all Cities and Burroughes and in other places throughout the land aswell within Franchises as without Anno 25. Ed. 3. cap. 8. Statut. 2. 14. The statute of Labourers of old time made shall stand in all points except the pecuniary paine which from henceforth is accorded that the labourers shall not be punished by fine and ransome and it is assented that the said statute shall be inforced in punishment of labourers in the forme following that is to say that the Lords of Townes may take and imprison them by fifteene dayes if they will not justifie themselves and then to send them to the next goale there to abide till they will justifie themselves by the forme of the statute And that the Sheriffe Gaoler nor other minister shall not let them to no mainprise nor bayle and if he do he shall pay to the King ten pounds and to the partie 100. s. Nor that the Sheriffe Gaoler nor other minister shall take no Fee nor porterage of prison neither at his entring nor at his comming out upon the same paine And that aswell Carpenters and Masons take from henceforth wages by the day and that all Alliances and Covins of Masons and Carpenters and congregations Chapiters ordinances and oathes betwixt them made or to be made shall from henceforth be voide and wholly adnulled so that every Mason and Carpenter of what condition that he be shall be compelled by his master to whom he serveth to doe every work that to him pertaineth to doe either of freestone or roughstone and also every Carpenter in his degree But it shall be lawfully to every Lord or other to make bargaine and covenant
meanes of Law to come to it 19. If the Recognisance be to keep the peace towards the King and all his people but not towards any person certaine yet it is good 20. So if the Recognisance be to keepe the peace towards A. only F.N.B. 80. g. Cromp. 141. it is good or to keepe the peace towards A. and his servants without being bound toward the King and all his Subjects it is good enough 21. But the best forme is to bind the party to keepe the peace towards the King and all his people for first the words of the Commission are to finde suretie erga nos populum nostrum and againe the common usage is so and besides it may prove dangerous to the party who hath cause to crave this surety of the peace for the other party who shall give just cause to crave this surety against him because he will not be bound to the peace towards him that prayeth it he will perhaps pray to bind himselfe to the peace to A. who is his Companion and then if the Iustice of peace shall so bind him then may he and A. goe to another Iustice of peace and that peradventure within one weeke and there A. may release him of the peace and so the party that first prayed the peace trusting that hee is still bound may be after beaten maimed or slaine by him or by his procurement 22. So then though the Recognisance being taken in any maner or sort aforesaid may prove sufficient to bind the party to the King yet peradventure it will not excuse the Iustice of peace from blame and therefore it is safest for the Iustice of peace to follow the received forme 23. The forme of the Recognisance for the Peace you shall see postea tit Warrants and Presidents 24. The Recognisance for the peace being thus taken if it were by a writ of supplicavit the Iustice ought to returne the writ and to certifie under his Seale his doing therein into the Court from whence the supplicavit proceeded and he may also send such Recognisance so taken by him with this certificate or else he may keepe the Recognisance in his hands still untill he shall receive a Certiorari out of the Chancerie directed to him for removing of this Recognisance 25. But if this recognisance for the peace were taken by the Iustice of peace ex officio 3. H. 7. ca. 1. P. Iust 106. then the Iustice of peace ought to certifie send or bring the Recognisance to the next Sessions of the peace so that the party bound may be called thereupon and that if the party make default of apparance the same default may be then recorded and the recog with the record of such default shall be estreated into the Exchequer 3. H. 7. ca 1. Recog forf that from thence processe may goe out against the party and so ought it to be if it be presented that the party hath forfeited his recognisance by breach of the peace 26. If the Iustice of peace shall not certifie such recog at the next Sessions by the said stat 3. H. 7. ca. 1. he is to be fined at the discretion of the Court and yet see Brooke tit Peace 11. that the Iustice shall forfeit 10. l. if hee shall not certifie the Recog of the peace at the next Sessions but Brooke there mentioneth the stat 3. H. 7. ca. 3. which stat of 3. H. 7. ca. 3. was only for bailement of prisoners and certifying the same and not for Bonds of the peace 27. Cromp. 169. If he which demanded the peace shall release the peace before the next Sessions yet the Iustice of peace ought to certifie the Recog together with the Release for peradventure it was forfeited before the Release made 28. 2. H. 7. 1. â—â—â— 11. Fit N. B. 8. 1. Recognisance removed Also he that demandeth this suretie may by a Certiorari remove such Recog into the Chancerie before the Iustice hath certified the same to the Sessions and then the Iustice shall be excused for not certifying the same to the Sessions 29. If the Iustice of peace were deceived in the sufficiency of the sureties Dalton 157. the same Iustice of peace or any other Iustice of peace may afterwards compell the party to finde and put in more sufficient surety and may take a new Recog for the same for that the precept is ad inveniendum sufficientem securitatem but if the sureties dye the party principall shall not be compelled to find new sureties What thing shall discharge this Recognisance of the peace or the party of his apparance at the Sessions CHAP. 59. 1. A Supersedeas out of the Chancerie c. will not discharge the party of his apparance but he ought to appeare and shew the Supersedeas in Court and thereupon he shall be discharged as is before declared in this Title 2. He that is bound to the peace and to appeare at a certaine day 30. H. 6. 26. he must appeare at the day and record his apparance Br. sâ—rety â—â— although he who craved the peace commeth not in to desire that it may be continued otherwise the recog shall be forfeited 3. And if a man be bound to keepe the peace towards the King and all his people but not towards any certaine person and to appeare at such a Sessions the Court at that Sessions may make Proclamation c. and if no person commeth to demand the peace against him then the Court may discharge him but if a man be bound as aforesaid and especially to keepe the peace towards A. there though A. commeth not in to desire that the peace may be continued yet the Court by their discretion shall doe well to bind him over till the next Sessions and that may be to keepe the peace against A. onely if they shall thinke good for it may be that A. who first craved the peace is sicke or otherwise letted so as he cannot come to that Sessions to demand the continuance of the peace 4. If the Iustice of peace shall not certifie the recog to the Sessions yet the party ought to appeare and to record his apparance for if a Sheriffe arrest one upon a capias and take bonds for his apparance at the day the writ is returneable and the Sheriffe returnes not his writ c. yet the party must appeare to save his bond 18. Ed. 4. 18. Cromp. 134. 5. If the party that is bound to appeare be so sicke as that he cannot appeare nor by any meanes travell at the day upon due proofe of such his sickenesse the Iustices of peace shall forbeare to certifie or record such default for impotentia in this and such like cases by the hand of God excusat legem Cromp. 144. 6. If the husband be bound that he and his wife shall appeare at such a Sessions and that they shall keepe the peace in the meane time c. and at the day
the husband doth appeare but not his wife here Master Cromp. saith the recog is not forfeited for if there shall be cause to continue the peace against the husband and wife still the husband shall be bound and not the wife and therefore the wives personall apparance seemeth not greatly materiall 21. Id. 4. 40. 7. If a man be bound to the peace during his life or generally without any time or day limitted it seemeth that neither the King the Iustice of peace nor the party can discharge this recog during the life of the party so bound by release or otherwise Br. peace 17. 8. The Iustice of peace who upon his owne discretion hath compelled him to finde sureties of the peace untill a certaine day and hath taken recog for his appearing c. may upon the like discretion release the same before the day and such a release will discharge the recog taken by that Iustice if it were not forfeited before but yet the Iustice of peace ought to certifie the Recognisance together with his release and this certificate will discharge the apparance of the party 9. If a Iustice of peace shall grant the peace at the request of another scil at the suite of A. and the recognisance be taken to keepe the peace against B. only then before the next Sessions may B. only release it and none other and that release being certified with the recognisance at the next quarter Sessions will discharge the party so bound of his apparance so as he shall not be called upon his recog for that release being so certified is now become of record aswell as the recognisance 10. Bâ— pâ—â—â—â— 17. If the Recog were to keepe the peace versus cunctum populum precipuè versus A. yet may the same A. release it for although this may seeme popular and that all others should have interest therein aswell as A. yet it appeareth by the word precipâ—â—è that it was especially taken for his safety but the contrary was holden by all the Iustices 21. Ed. 4. 40. saith Master Lambert neverthelesse the usage now is aâ—d long hath beene that A. may release the peace but having perused the booke in 21. Ed. 4. fo 40. I find the word precipue is not there but it is toward A. cunctum populum So as that opinion may be Law and yet not contrary to the common usage for the word precipuè doth appropriate the recognisance to be chiefly for the safety of him that prayeth the peace 11. But in those former cases although this surety of the peace be released yet the recog shall not be cancelled by the Iustice of peace for peradventure the recog was forfeited before such release was made and therefore the Iustice of peace shall doe best to certifie such recog with the release together to the next quarter Sessions 12. The forme of the release of the Iustice of peace and the forme of the release of the party you may see postea in the title of Warrants Presidents 13. Note that the party that first demanded the peace may release the same either before the same Iustice of peace that tooke the recog or before any other Iustice of peace 14. Note also that to release such surety of the peace by deed under his hand and seale is nothing worth but it must be by acknowledgement before a Iustice of peace 15. Note also that the King cannot release or pardon the surety of the peace nor such recog taken in the behalfe of any of his subjects untill it be forfeited for the mischiefe that may come to the party thereby but being forfeited then the King and none other may release and pardon the forfeiture 16. But the death or resignation of the King dischargeth this surety of the peace taken by his subject 1. H. 7. 1. Br peace 15. Br. Cor. 21. for the recog is to keepe the peace of the King then being and when he is dead c. it is not his Peace 17. Also the death of the Recognisor scil the party principall that is bound dischargeth this surety of the peace and the recog if it were not forfeited before his death 18. Also the death of the party at whose suit the peace was taken dischargeth the recog if it were to keep the peace against him alone if it were not forfeited before his death 19. But yet in these three former cases such death should not discharge the recog if it were forfeited before and therefore it shall be best for the Iustice of peace to send to the next Sessions such recog notwithstanding such death else the King may be defrauded of a forfeiture if any were before 20. The death of the sureties shall not discharge the recog neither shall the party principall be compelled to finde new sureties after their death 21. Ed. 4. 4â— Br. peace 17. for if the peace be broken after their deaths their executors shall be charged therewith and so there is no mischiefe by their deaths if they were sufficient but if the sureties were insufficient then the principall shall be compelled to finde new sureties 21. Ed. 4. 40. 10. H. 7. 11. Br. Recog 21. 21. If the King and the Recognisor be at issue upon the breach of the peace and the King waives the issue yet is not this recog discharged but remaineth in force and may be sued againe upon a new breach of the peace afterwards What Act shall be or makes a forfeiture of the Recognisance taken for the peace CHAP. 60. 1. VVHatsoever Act is an expresse breach of the peace the same is a forfeiture of this recognisance 2. And first this breach of the peace may be committed by using any fearefull or threatning speeches to another 18. Ed. 4. 28 Br. peace 16. therefore all menacing or threatning to kill or beat another to his face is a forfeiture of this recog otherwise if the party so threatned be absent and yet if the party so bound shall threaten to kill or beat A. who is absent and after shall lye in wait for him to kill or beat him this is a forfeiture of his recognisance 3. So also to strike at or offer to strike at a man although he never hurt nor hit him Dalton 160. is a forfeiture of his Recognisance Ibid. 4. Much more all affrayes or violent or malitious batteries strikings beatings woundings or other misintreating of the person of another are forfeitures of this Recognisance 5. The difference of these three viz. menacing assaulting and beating Ibid. are these viz. menacing beginneth the breach of the peace assaulting encreaseth it and battery accomplisheth it 6. If he that is bound doe but command or procure another to breake the peace and that it be indeed done this is a forfeiture of this Recog Br. Peace 20. 7. All imprisonment or arresting of another without warrant is a forfeiture of this Recognisance 8. So to thrust another into the water whereby hee is
would beat his servant Pr. 5. f. Iustifie 3. but the master with a sword staffe or other weapon may defend his servant assaulted from being beaten in respect of the losse of his service yet Master Lambert and Master Crompton are of opinion that the master may beat another in defence of his servant Cromp. 136. which seemeth to be the better opinion by reason of the losse which the Master shall sustaine by the wounding of his servant 36. Lamb. 131. But the farmour or tenant cannot justifie such an Act in defence of his landlord nor a Citizen c. in defence of the Maior or Bailiffes of the Citty or Towne corporate where he dwelleth unlesse it be in the legall execution of their offices 37. 9. Ed. 4. 28. 19. H. 6. 31. 63. Li. intr 611. In defence of my goods Also the Law doth tollerate a man to beate another for the preservation of his goods and therefore he that shall attempt by force and violence to take away my goods wrongfully from me whether they bee goods whereof I have a lawfull property or such goods whereof I have only a possession by the bailement of another I may justifie to defend the same by force and if I shall beat or hurt such person it is no breach of my recog for the peace but if I kill him it is felony and then a breach of the recog 38. The same Law is in every case 10. Ed. 4. 6. 3. H. 4. 9. 11. H. 6. 33. where another shall attempt by force and violence to take away my land freehold copihold or lease or to stop and turne my lawfull high way or my ancient river or water course leading to my mill in these and like cases if I shall disturbe him therein whereupon he doth assault and attempt to beat me I may justifie to beat him againe aswell in defence of my person as of my possessions but not to kill him 39. The same Law is also in every case where any offendour is by order of Law punished by whipping stocks pillory or otherwise for any offence by him committed contrary to the Lawes or statutes of this Realme there is no peace broken nor any recog of the peace forfeited by him or them which shall lawfully execute any such punishments 40. Note further that there are diverse offences for which an indictment contra pacem will lye and yet the committing of such offence shall be no forfeiture of the recog for the peace for that the Act that shall breed a forfeiture of such a recog must be done or intended unto the person as aforesaid or in terrorem populi 41. Therefore to enter into the lands Dalton 163. 164. where he ought to bring his Action or to disseise another of his lands or to enter into lands or tenements with force being without offer of violence to any mans person and without publique terrour Cromp. 136. or to doe a trespasse in another mans corne or grasse or to take away another mans Ward to take away another mans goods wrongfully so it be not from his person or to steale another mans horse or other goods feloniously being not from his person these will make no breach of this recog 4 H. 7. 8. 42. Note that if a man be bound in such a recog for himselfe and his servants if any one of them breake the peace the whole recog is forfeited Et sic in similibus 43. Note also that the sureties may plead that the party principall hath not broken the peace although upon issue the same shall be found against the said principall for they are estrangers thereto Fitz. averment 46. Concerning the writ of supplicavit CHAP. 61. 1. THe formes of this writ out of the Chancery are of diverse sorts as you may see Fitz. Na. Br. 80. d. 2. By which formes of the writ it appeareth that it may be directed to the Iustices of peace or to one of them or to the Sheriffe or to every of them to cause the party that is to be bound to come before him or them to finde surety of the peace and this writ may be that the principall shall be bound in such a summe and the sureties in such a summe certaine and also it may be in what certaine summes the demandant will or the summes may by the writ be referred to the Iustice of peace c. with this clause therein contained pro qua respondere volueris and the said writ is further that if the party shall refuse c. that they shall commit him to the gaole quousque c. and that when they have taken such surety they doe certifie the recog which they have so taken under their seales and returne the writ into the Court whence the same was awarded and that without delay 3. And for that this writ is of diverse formes the Iustice of peace must have a care that he doe execute the same in every behalfe as the same writ shall direct him 4. When the writ doth referre the summe wherein the principall and his sureties shall be bound to the Iustice c. then it resteth in their discretion but yet it is then safe for them to take good sureties and to bind them in good summes and the rather when that clause is in the writ pro qua respondere volueris 21. H. 7. 20. Br. peace 9. 5. When this writ is directed to the Sheriffe and to all the Iustices and is delivered to any one of them he onely to whom it is first delivered ought to execute the same writ in every behalfe scil he only shall make a warrant c. returneable before himselfe and shall take sureties and make returne thereof only without any other 6. The forme of a warrant for the peace upon a supplicavit you may see postea tit Warrants and Presidents 7. Also the same Iustice of peace after such surety taken may make the party a supersedeas to discharge him from any other arrest or to deliver him being in prison for the peace at any other mans suit as it seemeth Cromp. 237. b. 8. The forme of the supersedeas you may see after tit of Warrants and Presidents 9. The party who is attached upon this writ of supplicavit 21. H. 7. Br. peace 9. cannot goe to be bound before any other Iustice of peace but only before him from whom the warrant proceedeth upon this writ neither can another Iustice of peace by a supersedeas discharge such a warrant made by his fellow Iustice by force of this writ 10. The Iustice or Sheriffe to whom this writ shall be delivered may make a Deputy therein 9. Ed. 4. 35. f. Fx. Imp. 4. scil may make a warrant to the Constable or other person indifferent to apprehend the body or cause the party to come before him the said Iustice or Sheriffe to finde sureties c. and that if he shall refuse that then the Constable c. shall carry him
were not Iust of P. also in the same shire so as the indictment may be understood to be taken by them as before Iustices of the peace for their Commission and authority extendeth only to such as stand endicted before themselves or before former Iustices of the peace or the Sheriffe in his Turne Things peculiar to Iu. of the peace in the tryall of felonies 11. Thus farre of the first point touching the second it seemeth by Marr. and Fitz. fol. 16. that albeit two Iustices of the peace the one of them being of the Quorum may in the County of Dublin heare and try felonies yet no Iustices of the peace have authority to deliver felons by Proclamation without sufficient acquittall nor yet to deliver such as be in prison for suspition of felony unlesse there be in the Commission a speciall clause ad gaolam deliberand c. as it is in the Commission for the County of Dublin 12. For they must proceed by inquiring hearing and determining as their Commission appointeth them and not rid the gaole otherwise as the Iustices of Gaole delivery may doe And therefore such persons if they cannot be indicted must either remaine the comming of the Iustices of Gaole delivery or else being removed into the Kings Bench they are either to be delivered thence upon the writ de gestu et fama as the old order was or by such other meanes as they at this day doe use therein 13. These Iustices of peace can take no Appeale of any approver nor other before them 2. H. 4. 19. and so it is cleerely holden 9. H. 4. 1. because their Commission stretcheth not so farre but onely to such felonies as fall out by enquiry before themselves or their former fellow Iustices howsoever the booke in 44. Ed. 3. 44. upon the statute 5. Ed. 3. ca. 11. or the statute 8. H. 6. ca. 10. may seeme to a running Reader to allow that power unto them and therefore Master Stamford fol. 95. doubteth of it 14. But howsoever that be yet seemeth it to me no lesse reasonable then serviceable that if one felon will accuse another before Iust of the peace they may take his confession and reprive him and thereupon cause the other to be inquired of and so proceed against him by way of Indictment 15. Furthermore they cannot arraigne a man upon his abjuration saith Marr. 16. It hath also beene thought unmeet that they should try a felon the same day in which they awarded the venire facias against the Iury. 22. Ed. 4. 44. Fitz. Coron tit 44. but that hath no necessity and the Law is now otherwise taken 17. Marr. saith that they cannot award the writ of venire facias tot matrones to try whether a woman arraigned before them be with child or no but seeing it standeth with Law and reason to stay her for the time that the child may be preserved It must of necessity follow that this opinion of Marrow is against the Law 18. They may give Clergy to a felon if the Ordinary or his Deputy be present to take him but if they be absent he must be reprived because as Mar. saith these Iustices can set no Fyne upon the ordinary for his absence no more then if he will accept one to read as a Clerke where in truth he cannot read at all but if you looke upon Master Stamford lib. 2. ca. 25. he will perswade you that the Ordinary is not the Iudge but a Minister in the tryall of Clergy and that Clergy may lawfully be given and allowed in his absence 19. Of the Fyne for his default at these Sessions Lamb li. 4. pag. 55â— I am a litle doubtfull as I have said before but touching the allowance of Clergy to the offendor I see no cause at all why it may not belong to the Iust of peace aswell as to other Iudges seeing that they be Iudges of the felony as other Iust are 20. Mar. saith also that if Bigamy had been alledged against one that prayed his Clergy the Iust of P. could not have written to the Ordinary to certifie the same but this opinion seemeth to be no Law for where Iustices have power to heare and determine of congruity they have power to doe all things necessary to bring the cause to an end 21. And if a man outlawed of felony by processe before the Iustices of peace be brought before them and doe alledge that he was at the time of the utlary pronounced out of the Realme in the Kings service under such a Captaine or that he was then imprisoded in another County they can neither write to the Captaine nor into the County by the opinion of Mar. 22. Thus much only of things restraining the Iustices of peace in the tryall of Felonies wherein they are not in Ireland at all occupied saving onely in the County of Dublin but the gaole delivery is wholly left to the Iustices of Assize 23. These things thus premised Let us now suppose all impediments to be removed and set we the felon at the barre ready to take whatsoever lawfull advantage of Challenge plea or other benefit that may be allowed unto him 24. It was ever permitted Challenge that the prisoner might challenge so many of the Iury as he would shewing lawfull cause for it as namely to say that he whom he challengeth was one of the Iury which did indict him for such a one it may be thought he will not falsifie his former oath 25. Ed. 3. cap. 3. or to say that he hath not lands of the cleere yearely value of xl.s. for such a one is disabled 2. H. 5. ca. 3. or to say that hee is not probus or legalis because he hath beene attainted of felony forgery perjury or of such like as are shewed before 11. Caroli ca. 9. in Ireland 25. The common Law hath also in favour of life allowed unto the prisoner his peremptory challenge without shewing any cause at all for it But yet forasmuch as it was long time doubtfull how many he might challenge the same is now put into certainety by the statute 11. Caroli ca. 9. and restrained to the number of xx persons at the most 26. Now if the tryall be of an Alien borne for felony or murder committed by him the Iury shall be de medietare lingua that is halfe of our Nation and halfe of strangers except it be in the case of a Scot whose Iury shall be altogether English aswell because he speaketh one language as also for that he is reputed a subject and not an Alien Collection Dyer 304. 357. 27. Thus shortly of challenge which is but dilatory and to win time and therefore let us now heare what he may plead in chiefe as it were and for the safety of his life Another time acquit 28. And if the prisoner have beene at any time before lawfully acquited of the selfe same felony or have beene orderly attainted of any other
many Iustices as be now at these dayes in every Shire and would be present at the Sessions and concerning the latter point it seemeth by the latter Statute it selfe that the sheriffe shall first pay the wages and then the Barons shall make the allowance according to the Indenture So that I see no libertie of such nomination left unto the Barons 5. I confesse that it might breed both offence against the Sheriffe and a jealousie among the Iustices themselves to have one of them preferred before another in this payment and therefore I thinke it wisely done as it is somewhere used to bestow the whole allowance upon the defraying of their Common Diet. 6. If the Fynes and Amerciaments of the same sessions saith M. Marr. will not fully amount to the summe of the wages then due to the Iustices yet shall the wages be ratably payed out of them so farre as they will extend 7. Hitherto of reward henceforth of punishment Punishment at the Common Law It seemeth by the opinion of some Iustices 2. R. 3. 10. that if a Iustice of the peace doe any thing of Record ignorantly and for want of knowledge that he shall not be punished for it Lamb. li. 4. pag. 630. And this opinion of theirs is not new in this realme although it bee otherwise truly said Imperitia quoque culpae adnumeratur for you may read in the old lawes of King Edgar cap. 2. and of King Canut cap. 14. that if a Iudge had erred in his office hee might then have excused himselfe by oath That he did it not of evill minde and that he knew not how to doe better which I speake not to comfort men in carelesse ignorance but to shew you that men may erre and erring by infirmitie they are not altogether unworthy of pardon and withall to let the Iustices of peace see that it may be a fault to erre by ignorance and that therefore they ought to stay where they meet with non liquet as their owne Commission doth direct them 8. Now on the other side if a Iustice of the peace will craftily embezell an Endictment or wilfully raze any part thereof or malitiously enrole or file that for an Endictment which was never found by the Iurie Then by the Resolution of all the Iustices assembled before the King in the Starrechamber 2. R. 3. a Commission may goe out to enquire by the oathes of twelve men of such his misdemeanour and if he bee convicted thereof he deserveth to loose his office and to make Fyne to the King according to the quantitie of his misprision and offence Ibidem fol. 10. And even so may he be punished as this booke leadeth mee to thinke if he alter an Endictment of Trespasse into an Endictment of Felonie howsoever the opinion 27. lib. Ass pl. 18. be found against it 9. A Iustice of the peace may also be indicted of the unlawfull taking of money for doing his office or of such other falsitie Fitzh Na. b. 243. And if he cause a man to bee endicted at the Sessions by former conspiracy or indirect practise hee is punishable for it as a private man 21. E. 4. 67. 10. But if in the handling of a cause at the open Sessions it happeneth him to speake against an offendour somewhat excessively yet he shall not bee punished for it Iuris enim executio non habet injuriam Neverthelesse Iudges ought not to abuse their tongues by intemperance but they must rather take great heed as Cic. pro Font. said Quibus verbis utantur nè quid nimis moderatè positam nè quid ab aliqua cupiditate prolapsum verbum esse videatur FINIS A briefe Roll of the Articles and matters to be given in Charge and inquired of by the Grand-Iury in the generall or quarter Sessions of the peace set forth in two Columnes the first containing the Offences the second declaring the severall punishments which are to be inflicted for every particular Offence The offences consist of these five parts following viz. 1. Of Treasons 2. Of Felonies 3. Of Misprisions 4. Of Praemunires 5. Of Finable Offences 1. Concerning Treasons it is to be observed that at the Common Law before the tenth yeare of King Henry the seventh there were two sorts of Treasons viz. high Treason and pettie Treason but now by the statute of 10. H. 7. ca. 21. all such offences as at the Common Law were but pettie Treason are made high Treason 2. Concerning Felonies they be of tWo sorts viz. Felonies of death for which the offendor shall loose his life lands and goods and felonies not of death for which the offendour shall neither loose life nor lands but shall forfeit onely his goods and chattels and either have his pardon of course or otherwise bee punished by imprisonment whipping or burning in the hand as the case shall require 3. Concerning Misprisions they be of three sorts viz. Misprisions of Treason Misprisions of Felonie and other Misprisions 4. Concerning Praemuniries they are of two sorts the one is the extolling of forraigne power and Iurisdiction in this Kingdome the other is for prosecuting causes in the Ecclesiasticall Courts for matters meerely temporall and determinable at the Common Law 5. Concerning Finable Offences they are of foure sorts viz. First Offences of force and violence Secondly Offences of fraud and deceit Thirdly Offences of Omissions and neglects of Officers and others and lastly other abuses and enormities of severall sorts tending to the hurt and prejudice of the Common-wealth The particulars of all these Offences you shall find in the first Columne and of the punishments in the second as followeth viz. The Offences  The Punishments First of Treasons viz.  1. The compassing or imagining the death or destruction of the Kings Majestie the Queene or their sonne and heire apparant 2. The conspiring to depose the King or to take from him any of his Forts or to defeat his Armie 3. The deflouring of the Queene or the eldest daughter of the King not marryed or the wife of the eldest sonne and heire apparant of the King The punishment for the 6. 7. 8. 14. 15. 21. and 22. of these treasons for a man is to bee drawen and hanged and for a woman to be burned and for all the rest for a man to be hanged drawne and quartered and for a woman to be burned vide Coke libro Intrationum fo 360. 6. El. Dy. fo 230. p. 55. 1. H. 6. fo 6. Stamford fo 32. f. 4. Levying of warre against the King in his realme 5. Adhering to the Kings enemies in his realme or giving them ayde or comfort in his Realme or elsewhere 6. The counterfeiting of the great or privy seale of the King 7. The counterfeiting clipping fyleing washing or other falsifying of the Kings mony and also the forging and counterfeiting of forraigne Coine permitted to passe currant in this kingdome 8. The bringing in of false money like to the money of this
same 2. 2. Counterfeiting of forraigne coyne not currant in this Kingdome 3. 3. The uttering of false money made within this kingdome knowing it to bee false and counterfeit 1. The punishment of these Misprisions of Treason is forfeiture of goods chattels and the profits of lands during the life of the offendor and perpetuall imprisonment 2. 3. Secondly of Felony viz.   1. Concealing of any felony and not revealing it to some magistrate speedily after notice had of it 1. The punishment of Misprision of felony is by fyne and ransome and imprisonment at the discretion of the Iudge Thirdly other Misprisions viz.   1. Offering to strike any Iustice sitting in Iudgement 1. The punishment for offering to strike a Iustice sitting in Iudgement or a Iuror in presence of the Iustice is forfeiture of lands goods and Chattels losse of his right hand and perpetuall imprisonment 2. Striking a Iuror in presence of the Iustices 2. 3. Striking of a Knight or man of honor by any person of meane quality 3. The punishment of striking of a Knight c. by one of meane qualitie in ancient time was the losse of his hand but now it is used to be but fyne and imprisonment and bonds of the good behaviour 4. Rescuing of a prisoner arrested by any of the Kings Iustices sitting in Iudgement 4. Rescuing of a prisoner arrested by a Iustice is forfeiture of lands goods and chattels and perpetuall imprisonment Fourthly of Praemuniries which be of two sorts viz. the one the extolling of forraigne Iurisdiction the other for prosecuting of causes in the Ecclesiasticall Courts which are meere lay causes c.   1. Exercising of forraigne authoritie or Iurisdiction in causes Ecclesiasticall The punishment of all these offences of Praemunire is forfeiture of lands goods chattels and perpetuall imprisonment 2. Maintaining or publishing by word or writing that the Bishop of Rome hath or ought to have any authority or Iurisdiction within the Kings Dominions the second offence is a Praemunire  The punishment of all these offences of Praemunire is forfeiture of lands goods chattels and perpetuall imprisonment 3. The purchasing of any provision Bull or other processe from the Court of Rome  4. The obeying of any such processe procured from the Court of Rome 5. The prosecuting of any lay cause in any Ecclesiasticall court which originally belongeth to the Kings temporall Courts Fifthly Finable Offences which are either of 1. Force 2. Fraud 3. Omission or 4. Other abuses   First Finable offences of Force viz. 1. Riots Routs and unlawfull assemblies 1 For great Riots a great Fyne and a yeares imprisonment at the least For small Riots Routs and unlawfull assemblies besides the Fine imprisonment in discretion 13. H. 4. cap. 7. 2. Forcible Entries and forcible detainers 2 Fyne ransome and imprisonment and restitution of possession 15. R. 2. ca. 2. 8. H. 6. ca. 9. 10. Caroli ca. 16. 3. Assaults Batteries bloodsheds Maihems and all other Trespasses in lands and wrongfull taking of goods 3 Fyne and imprisonment at the discretion of the Iudge 4. Rescuing of distresses and pound breaches 4 Fine and imprisonment at the discretion of the Iudge 5. Riding or going armed in terrorem populi 5 Imprisonment and forfeiture of the Armour 2. E. 3. c. 3. 7. R. 2. ca. 13. 20. R. 2. ca. 1. 6. Lying in waite to kill or maihem 6 Fine and imprisonment and bonds of the good behaviour Secondly Offences of fraud and deceit viz.   1. Extortions and oppressions by officers in taking more Fees then are due or in exacting Fees where none are due 1 Fyne and imprisonment during pleasure 2. Extortions and oppressions in Land-lords and their servants in exacting of an Irish pretended duty called Loghtavy upon their Tenants 2 The like punishment 3. Escheators taking above xl.s. for an office 3 To forfeit 40.l 27. H. 6. ca. 17. 4. Sheriffes undersheriffes and their Clerkes entring of plaints in the County Court without notice of the plaintiffe or dividing one contract or Trespasse into severall plaints 4 Fyne and imprisonment 5. Sheriffes levying the Kings debt without shewing the party the Estreats under the seale of the Exchequer 5 Fyne to the King treble damage to the partie 42. E. 3. ca. 9. 7. H. 4. ca. 3. 6. Sheriffes or Gaolers that have denied to receive felons or that take any thing for the receiving of them 6 Fyne and imprisonment 4. E. 3. ca. 10. 7. Coroners that exact more Fees for taking an Inquisition upon the view of a body murdred or killed then 13. s. 4. d. which is to be paid of the goods of the offendour or of the Towneship where the offence was committed in the day time if the offendor have escaped 7 Forfeiture of 5.l 3. H. 7. ca. 1. 8. Ordnaries or their officers which take more Fees for the probate of Testaments granting of letters of administration then is appointed for them to take by the statute in that case provided 8 Forfeiture of 10. l. 28. H. 8. cap. 18. in Hibernia 9. Clerkes of the peace that take above 12. d. for the enrolling of a bargaine and sale where the land doth not exceed xl.s. per annum and where it exceedeth that summe 2 s 6.d 9 Fyne and imprisonment 10. Caroli cap. 1. in Ireland 10. Clerke of the Market that taketh any bribe to dispence with offences or tarryeth any longer in the countrey then the necessity of the businesse requireth 10 Fyne and imprisonment 11. Mayors and chiefe officers of townes and corporations that take excessive Fees for scaling of measures waights 11 Forfeiture of 40 s 7. H. 7. c. 3. 12. Purveyors that take any Bribe to spare any man or take corn by any other measure then the striked bushell or take carriages without readie payment 12 Two yeares imprisonment treble damage and ransome 15. E. 3. cap. 1. 36. E. 3. c. 3. 1. H. 5. cap. 10. 13. Iurors that take any thing to make their presentments favourably 13 Imprisonment and ransome 5. E. 3. c. 10. 34. E. 3. ca. 8. 38. E. 3. cap. 1. decies tantum and if he have not to pay a yeares imprisonment 14. If any have gotten into his possession any money or other goods by any false token or counterfeit letter 14 Great fyne and to be bound to the good behaviour 15. Packing of fish deceitfully and mixing small fish with the countable fish 15 Forfeiture for every vessell 6 s 8.d 22. E. 4. ca. 2. 16. Cowpers that make vessell for Beare or Ale of unseasonable Timber 16 Fyne and imprisonment 17. Millers that take Toll by the heape 17 Fyne and imprisonment 3. E. 1. p. Toll 2. 18. Maintenance of suits in Courts and quarrels in the Countrie and Champerties 18 Fyne and imprisonment 1. E. 3. ca. 14 1. R. 2. ca. 5. 19. Subornation of perjurie 19 Forfeiture of 40.l and if the offendor be not worth so
Iudgement ut supra dictusque I.R. praedicto die c. anno c. praefatum I.A. in praemissis manutenuit in dicti Domini regis nunc contempt coronae suae exhaeredationem manifestam ac contra formam statut in hujusmodi casu edit provis 6. An Indictment of Praemunire for suing for Tithe of great Oakes in the Ecclesiasticall Court IUratores pro Dom. rege c. dicunt praesent quod A.B. Clericus Rector Ecclesiae parochialis de Dale in Com. praedicto subdole malitiosè machinans Dom. Regem nunc coronam suam Regiam exhaeredare die c. apud S. in Comit. praedicto quendam I.H. de L. in Com. praedicto yeoman in Curia Christianitatis viz. in Curia Lanceloti Archiepiscopi Dublinensis Primatis Hiberniae prosecutus fuit implacitavit de eo quod idem I. H. redderet eidem A.B. Rectori Ecclesiae parochialis de Dale in Com. praed decimas de grossis arboribus ipsius I.H. apud D. in parochia praedicta tunc crescentibus per nomen hujus vetbi silva caduae viz. centum quercus de aetate quinquaginta annor amplius sexaginta quercus de aetate centum annor centum quercus de aetate triginta annor ducent quercus de aetate viginti annor ampliùs ante successionem earund existen praedictus A.B. praedict I.B. ea occasione quarto die Iulij tunc proximè sequen apud S. praed per quendam T.B. citari fecit ad comparend respondend super praemissis in Curia Christianitatis praed Archiepiscopi coram W. B. Officiali ejusdem Archiepiscopi in Ecclesia S. Patricij in Comitatu Dublin 26. die Iulij tunc proximè sequen diversas sententias in ipsum I.H. tunc ibidem occasione praemissa fulminari contra ipsum adjudicari fecit in dicti dom Regis nunc contemptum praejudicium ac coronae suae regiae exhaeredationis periculum manifest ac contra formam statuti in hujusmodi casu edit provis Iudgement 〈◊〉 supra 7. An Indict of Praemunire for extolling of forraigne Authoritie IVratores c. quod cum A.B. de C. in Com. D. Clericus ad generalem Sessionem pacis tent apud K. in Com. P. die c. anno c. coram I.H. L.M. I.K. adtunc Iusticiarijs dom Regis ad pacem in Com. praed conservand necnon ad divers felonias transgressiones alia malefacta audiend et terminand assignat indictatus convict fuerit de eo quod ipse idem A.B. die c. anno c. apud D. in Com. praed scientèr confideratè malitiosè directè palam in praesentia multor dicti dom regis nunc subditor affirmavit defendit authoritatem Papae Romani Ecclesiasticam in hoc regno Hiberniae antea usurpat hijs expressis verbis Anglicanis sequentibus viz. I sweare by the blessed Masse and will avow that our holy father the Pope of Rome is the supreme head of the Church of Ireland idem tamen A.B. post convictionem praedict scil die c. anno c. apud D. in Com. praed praedicta verba Anglicana in praesentia multor dicti Domini Regis subditor scienter malitiosè directè palam publicè iterum affirmavit defendit authoritatem Papae Romani Ecclesiasticam in hoc regno Hiberniae antea usurpat hijs expressis verbis Anglicanis viz. The Pope of Rome is the supreme head of the Church of Ireland and ought to haue Ecclesiasticall Iurisdiction throughout all Ireland Iudgement ut supra in magnam derogationem regiae Authoritatis praerogativae dicti Domini Regis nunc ac contra coron dignitat suas contra formā statut in hujusmodi casu edit provis 5. Fyneable offences of severall sorts viz. of 1. Force and violence 2. Fraud and Deceipt 3. Omissions in officers and others 4. Other abuses and misdemeanors tending to the prejudice of the Common-wealth c. 1. Of Force as Riots c. 1. An Indictment of Riot for a riotous affray at the Quarter-Sessions of the peace IUratores praesentant pro Dom. Rege c. quòd 8. die Octobris Anno regni dicti domini nostri Caroli Dei gratia Angliae Scotiae Franciae Hiberniae Regis fidei defensor c. 13o. apud M. in Cō praed tempore generalis Sessionis pacis pro dicto Comitatu tunc ibidem tentae coram H.C. milite socijs suis Iusticiarijs dicti domini Regis ad pacem in dicto Comitatu conservandam assignatis tunc ibidem existentibus in plena Curia sedentibus quidam A. B. C. D. E.F.G.H. I.K. de S. in Comit. praedicto generosi aggregatis sibi nonnullis alijs pacis dicti Dom. regis perturbatoribus ignotis ad numerum xx hominum vi armis viz. Iudgement a great fine ◠yeares imprisonment at the least and bonds of the good behaviour if the Iustices see cause gladijs pugionibus armati illicitè routosè riotosè sese assemblaverunt ac inter se insultum affraiam maximam tunc ibidem fecerunt sese invicem verberantes vulnerant in magnum terror tam dictorum Iusticiariorum tunc ibidem in Curia sedentium quam totius populi dicti domini nostri Reg. ad dictam Sessionem pacis tunc ibidem convenientium ac contra pacem coronam dignitatem dicti Domini Regis nostri c. 2. For a Riot in a Parke upon the Keeper of the Parke and his servant and for hurting the Keepers servant with an Arrow INquirat pro dom rege fi E.P. c. H.P. c. R.B. c. aggregat c. riotosè routosè modo novae insurrectionis in conventiculis illicitis modo guerrino arraiat vi armis viz. c. 30. die c. anno c. apud H. in Com. E. praed in clausum parcum E. P. viduae ibidem sese illicitè riotosè routosè assemblaver congregaver univer ad pacem dicti dom reg disturb adtunc ibidem in quend A.D. gen custod parci praed in I.B. famulum ipsius A. in pace Dei dicti Dom. reg existen insult fecer praedictus E.P. unam sagittam è quodam arcu tenso quem idem E. P. in manibus suis adtunc ibidem habuit tenuit sagittavit eund I.B. cum sagitta praedicta in pectore suo percussit dans eid I.B. unam plagam profundit dimid pollicis latitud unius pollicis ita quod de vita sua desperabatur Iudgement ut supra alia enor eis intuler ad grave damnum ipsorum A. I. contra pacem dicti domini Regis contra formam statut in hujusmod casu edit provis 3. For a Riot in pulling downe of hedges and ditches INquiratur pro Domino Rege si I. R. nuper de B. in Comit. praedict yeoman R. A. nuper de
of peace or Sheriffe may take Posse comitatus Sect. 1. 2. It may be taken to suppresse Riots S. 2 3. 3. It may be taken in cases of Forceible Entrie and detayner to remove the force S. 4. Ca. 47. what persons may take Posse comitatus and in what cases 4. If need be it may be taken to execute the Kings Processe or writ S. â— 6. 5. It may be taken to execute a Supplicavit S. 7 8. 6. The Sheriffe may take it to apprehend Felons or disturbers of the peace or to execute the warrant of a Iustice of peace S. 9 10. 7. The Constable may take it to apprehend felons and traitours or suppresse an affray or to arrest one that hath wounded another dangerously S. 11 12. 20. Praemunire ca. 48. 1. A Iustice of peace may cause parties suspected of a Praemunire to be arrested S. 1. 2. What offences will amount to a Praemunire S. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16. 3. In a Praemunire all the principals S. 18. 4. Prosecuting a suite in the spirituall Court for a thing which belongeth to the temporall Court is a Praemunire S. 19 20 21 22 23 24. 21. Purveyus ca. 49. 1. How the Kings Purveyors ought to make provision and the punishment if they doe otherwise S. 1 2 3 4 5 6 7 8 9 12. 2. How the Purveyors of other lands ought to make provision and the punishment if they doe otherwise S. 7 10 11 14. 3. Iustices of peace have power to punish Purveyors S. 12. 22. Riots Routs and unlawfull assemblies containe 3. Chapters viz. 50 51 52. 1. What one Iustice of peace may doe concerning the preventing or punishing of a Riot S. 1 2 3 4 5 6 7 8. 2. What the two next Iustices of peace and the Sheriffe ought to doe for the punishment of Riots S. 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45. 3. What any other two Iustices of Peace may doe for the punishing of a Riot S. 11. 4. The punishment of the Iustices of peace if they record a riot where there was none committed S. 46. 5. The record of a Riot ought to be formall and certaine and where it ought not S. 47 48 49. 6. What Iustices shall commit the Riotters and assesse the synes and how they ought to proceede therein S. 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73. 7. If the Iustices of peace for Riots impose but small fynes the Riotters may bee againe fyned in the Castle-chamber S. 74 75. 8. If the Riot cannot be found by reason of embracery the Iustices are to make certificate thereof c. S. 76 77. 9. When and in what manner the certificate is to be made S. 78 79 80 81 82 83 84. 10. In what case a Commission shall issue to enquire aswell of the Riot as of the default of the Iustices S. 85 86 87 88 89. Ca. 51. what shall bee adjudged a Riot Rout or unlawfull Assembly 1. The description of a Riot c. S. 1 2 3 4. 2. What assembly shall bee said to be an unlawfull assembly S. 5 6 7 8 9 10 11 12 13 14 15 16. 3. What assembly and the hurts done by them shall amount to a Riot and what not S. 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31. 4. Where the manner of doing a lawfull Act shall make it punishable as a Ryot S. 31 32 33. Ca. 52. what persons may commit a Riot 1. Where women and children may commit a Riot S. 1 2. 2. In what a Fyne imposed upon a Feme Covert shall be levied upon the goods of the Husband S. 3. 3. In what manner a Riot committed by a Mayor and commonalty shall be punished S. 4. 23. Recognisance ca. 53. 1. What a Recognisance is S. 1 12. 2. Who may take a Recognisance S. 2 3 4 5 6 7 8 11 13. 3. Where two Iustices are to joyne in taking a Recognisance S. 9 10. 4. How Recognisances taken by Iustices of peace to be certified Sect. 14. 24. Robbery ca. 54. 1. In what cases the party robbed shall have satisfaction from the Barony where the robbery was committed S. 1 2 9 10 11. 2. The power of the Iustices of peace for taxing the monies recovered against the Barony upon the severall inhabitants Sect. 2. 3. The power of the Iustices of peace in taxing a contribution upon every Barony where default was made of Huy and Cry 4. With what robbery the Barony shall be chargeable and with what not S. 4 5 6 7 8. 5. Where the Lord of the Towne shall be answerable for Robberies S. 12. 25. Rogues vagabonds Beggars ca. 55. 1. The punishment of such as give Almes to sturdy beggars Sect. 1. 2. The punishment of wandring Rogues S. 2 3 4 5. 3. The punishment of Rogues able to labour S. 4. 4. The provision for the poore impotent Beggers and how they shall be ordered S. 6. 7. 5. In what cases prisoners acquitted may begge for their Fees Sect. 8. 6. Provision for houses of correction for the punishment of Rogues and Idlers S. 8. 26. Surety of the peace conteyneth 6. Chapters beginning with the 56 and ending with the 61 Chapter 1. The definition of the suretie of the peace S. 1. 2. Who may take securitie of the peace S. 2 3 4. 3. For what causes a Iustice of peace may bind one to the peace S. 5 6 7 8 9 10 11 12 15 16 17 18 19 20 21 22 23 24 25 26 52. 4. What the Constable may doe for the preservation of the peace S. 12 13 14. 5. Who may crave the surety of the peace and against whom and for what cause S. 26 27 28 29 30 31 32 33 34 35 36 37 38 45 46 47 48 49 50 51 53 54 55 57 58 60 61 62 63 64 65 66 67 68 69 70 71 72 73. 6. Where and how surety of the peace may be granted against Noble-men or noble women S. 39 40 41 42 43. 7. Where nobility is acquired by marriage it may be lost by a second marriage S. 43 44. 8. What Recognisance for the peace shall be good and what not S. 55. 56. 59. Ca. 57. How the surety of the peace maybe commanded the same shall be executed 1. Where the Iustice of peace may command the surety of the peace by word and where it must be by writing Sect. 1. 2 3 4 5. 2. How the warrant in writing is to bee made and to whom it must be directed 8. 5 6 7. 3. How the Constable or other officer ought to execute the warrant of the peace S. 7 8 9 10 11. 4. What the Iustice of peace is to doe when the party is brought before him S. 9. 10. 5. In what cases the Iustice of peace