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
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
in any matter depending before them 3. That they shall keepe their Sessions according to the statutes 2. H. 5. 4. which as it seemeth ought to be in the weeke after the Feast of S. Michael after the Epiphany after the clause of Easter and after the translation of S. Thomas which is the third of Iuly 4. That all Issues Fines Amerciaments and Forfeitures which happen before them be by them truly entred and sent into the Exchequer 5. That they take nothing for doing their office but of the King and the accustomed Fees appointed by the statutes 6. That they shall not direct any their warrants to the parties but to the Bailiffes of the County or to other the Kings Officers or other indifferent persons 26. The other oath concerning the Kings supremacie is by force of the statute made secundo Eliz. ca. 1. The forme of which oath also followeth in these words videlicet 27. I. R. B. doe utterly testifie and declare in my conscience that the Kings Highnesse is the onely supreme governour of this Realme and of all other his Highnesse Dominions and Countries as well in all spirituall and Ecclesiasticall things or causes as temporall And that no forraigne Prince person prelate State or potentate hath or ought to have any Iurisdiction power superiority preheminence or authority Ecclesiasticall or spirituall within this Realme And therefore I doe utterly renounce and forsake all forraigne Iurisdiction powers superiorities and authorities and doe promise that from henceforth I shall beare faith and true allegiance to the Kings Highnesse his heires and lawfull Successors and to my power shall assist and defend all Iurisdictions privileges preheminences and authorities granted or belonging to the Kings highnesse his heires and Successors and united and annexed to the Imperiall Crowne of the Realme So help me God c. 28. Yet it is most usuall that both these oathes are taken by a speciall Commission viz. by a writ of Dedimus potestatem directed out of the Chancery to some ancient Iustice of Peace to take the same oathes which by them is to be certified into the same Court at such day as the writ commandeth 29. If the Iustice of peace or other person to whom a Dedimus potestatem shall be directed to take the oathes of a new Iustice of peace shall returne the Commission and the Oathes to be taken when they were not taken this is fineable in the Star-chamber 30. So if the new Iustice of peace shall exercise this office before he hath taken both these Oathes he is likewise fineable in the Star-chamber 31. Also if a Iustice of peace shall not performe his oath concerning his office he is fineable in the Star-chamber if the neglect be of corruption or any sinister affection otherwise it is if it be by Ignorance onely 32. Now forasmuch as the authoritie of the Iustices of peace ariseth partly out of their Commission and partly out of the statutes I will set downe the forme of the Commissions now used in Ireland which are consonant to the Lawes and statutes and to the politique government of this Kingdome A president for the Commissions of the peace for all the â—ountyes of Ireland except Dublin CAroluâ— Dei gratia Angliae Scotiae Franciae Hiberniae Rex fidei defensor c. Predilecto fideli Consiliario nostro Adamo Vice-comiti Loftus de Ely Concellario nostro Regni nostri Hiberniae c. salutem Sciatis quod nos de fidelitat circumspectionibus vestris plurimum confidentes Assignavimus per praesentes assignamus vos conjunctim divisim quemlibet vestrum Iusticiarios nostros ad pacem nostram in Comitatu nostro Middie conservand Ac ad omnes ordinationes statuta pro bono pacis nostrae pro conservatione ejusdem pro quieto regimine gubernatione populi nostri edita in omnibus singulis suis articulis in dicto comitatu nostro tam infra libertates quam extra juxta Vim formam effectum eorundem custodiendum custodiri faciendum ad omnes contra formam ordinationum vel statutorum illorum aut eorum alicujus in comitatu predicto delinquentes castigandum puniendum prout secundum formam ordinationum statutorum illorum fuerit faciendum Ac ad omnes illos qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorum suarum minas fecerint ad sufficientem securitatem de pace vel de bono gestu suo erga nos populum nostrum inveniendum coram vobis seu aliquo vestrum venire faciendum Et si hujusmodi securitatem invenire recusaverint tunc eos in prisonis nostris quousque hujusmodi securitatem invenerint salvo custodiri faciendum Assignavimus etiam per praesentes assignamus vos quoslibet duos vel plures vestrum quorum prefat Cancellar nostr aut A. B. aut C. D. unum esse volumus Iusticiarios nostros in per totum Comitatum predictum tam infra libertates quam extra ad inquirendum per sacramentum proborum legalium hominum Comitatus predicti ac omnibus alijs medijs modis quibus rei veritas melius sciri poterit de omnibus singulis proditionibus murdris homicidiis incendiis illicitis assemblationibus feloniis roberâ—s veneficiis incantationibus sortilegiis arte magica transgressionibus forstallariis regratariis ingrossariis extortionibus quibuscunque Ac de omnibus singulis aliis malefactis et offensis quibuscunque de quibus Iusticiarii pacis nostrae legitimè inquirere possunt aut debent per quosâ—unque qualitercunque in Comitatu predicto factis vel quae imposterum ibidem fieri vel attemptari contigerint Ac etiam de omnibus illis qui in Comitatu predicto in Conventiculis contra pacem nostram in perturbationem populi nostri seu vi armat ierunt vel equitaverunt aut imposterum ire vel equitare presumpserint Ac de omnibus illis qui ibidem ad gentem nostram maheymandam vel interficiendam in insidiis jacuerunt aut imposterum jacere presumpserint Ac etiam de hostellariis omnibus singulis aliis personis qui in abusu ponderum vel mensurarum sive in venditione victualium contra pacem communem legem nostram ac contra formam ordinationum vel statutorum vel eorum alicujus inde pro Communi utilitate dicti Regni nostri aut populi nostri ejusdem edit delinquerunt vel attemptaverunt aut imposterum delinquere vel attemptare presumpserint in Comitatu predicto Ac etiam de quibuscunque vicecomitibus Ballivis Seneschallis Constabulariis Custodibus Gaolarum aliis officiariis qui in executione officiorum suorum circa premissa seu eorum aliqua indebite se habuerunt aut imposterum indebite se habere presumpseriut aut tepidi remissi vel negligentes fuerunt aut imposterum fore contigerint in Comitatu predicto Et de
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
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
si tunc domisit vel alii de familia qui tunc interfuerunt poenam capitalem subibunt nisi forte per patriam fuerint liberati Stamf. 97. 179. 5. Sunt etiam quaedam presumptiones ita violentae ut probationem non admittunt in contrarium ut si quis cum cultello cruentato captus sit super mortuum vel fugiendo à mortuo vel mortem confitetur quibus casibus non admittitur mortem dedicere nec alia opus est probatione 10. And yet in cases of felony Co. 11. 30. 2. Vide. c. the confession of the offendor upon his examination before the Iustice of peace shall be no conviction of the offendor except he shall after confesse the same againe upon his triall or arraignement or be found guilty by verdict of 12. men c. 11. Also in cases of secret murders and in cases of poysoning witchcraft and the like secret offences where open and evident proofes are seldome to be had there it seemeth halfe proofes are to be allowed and are good causes of suspition 12. Note by the common Law 8 E. 4. 4. 5. H. 7. 4. Br. Faux imp 4. 16. that in an action of false imprisonment brought against the Constable or other person that shall aâ—rest another upon suspition of felony it is no plea for them to say that the plainetiffe was suspected of felony but he must alledge that there was such a felony committed and that the plainetiffe was suspected for the same for suspition onely without a felony committed is no cause to arrest another 13. Also the defendant must alledge some speciall matter in fact 17. E. 4. 5. 21. H. 7. 29. to prove that he who is arrested was suspected of felony as to say that the parry arrested is a man of evill fame c. otherwise every man may arrest one another without cause 14. Also by the opinions of Keble Vavisor and Townsend 7. E. 4. 10. Br. Faux imp 16. 25. aswell the Constable as others in his ayde may arrest one that is suspected of felony upon the suspition and complaint made to the Constable of the party robbed 2. H. 7. 15. 16. Br. Faux Impris 14. 2. H. 7. 15. 16. And although others there be of opinion that the suspition can extend to none other but only to him that hath the suspition yet I conceive the opinion of Keble Vavisor and Townsend to be good Law for if felons may not be arrested or stayed but only by those that shall suspect them and that others may not ayde and assist the party that shall suspect another to have robbed him many felons shall escape and goe unpunished to the exceeding great prejudice of the common wealth 15. But now by the statute of 10. Caroli in Ireland The constable c. in the former cases 10. Caroli c. 16. in Ireland may plead the generall issue not guilty and give the said speciall matters in Evidence 16. Also if the Constable or other person shall arrest another upon suspition of felony by vertue of a warrant from a Iust of P. such warrant shall excuse him it being given in Evidence Forceible Entrie and Forceible Detainer CHAP. 29. 1. Cromp. 67. THe common Law being the preserver of the common peace of the land hath alwayes abhorred force as the capitall enemy thereto Co. 3. 12. And yet before the Raigne of King Richard the second the common Law seemed to permit any man to have entred into lands and tenements with force and armes and also to have kept and detained them with force where his Entry was lawfull 2. And at this day if a man doth enter with force or multitude of people where his entrie is lawfull he is not punishable by action either at the common Law nor by action upon any statute for where the title of the plainetiffe is not good there he hath no cause of action 15 H. 7. 15. Br. Force 11. although the defendant doth enter with force but in such case he that entreth with force must be indicted upon the statute of 8. H. 6. or otherwise complaint may be made thereof to the Iustices of peace and aswell upon such indictment as upon such complaint the offendor shall be punished but the party ousted shall not be restored without indictment 5. R. 1. ca. 7. Regist 182. 3. And for the better restraining of such force and forceible Entries and to inflict condigne punishment upon the offendors therein it was first ordained by the statute 5. R. 2. that no man should enter into any lands or Tenements with force or multitude though he had good right or title to enter but only in peaceable and lawfull manner 4. But this statute provided no speedy remedy nor extended to holding with force 15. R. 2. ca. 2. nor gave any speciall power therein to the Iustices of peace and therefore by a statute made 15. R. 2. it was further provided that if any man should detaine or hold with force after such forceible Entrie made upon complaint thereof he should be imprisoned by the Iustices of peace 5. Yet neither of the former statutes extended to those that entred peaceably â— H. 6. ca. 9. and then held with force and therefore by the statute 8. H. 6. it was and is provided that no man shall enter with force nor detaine or hold with force generally 6. Now these two last statutes 15. R. 2. and 8. H. 6. doe enable any one Iustice of peace to give present remedy viz. to remove the force and commit the offendors in cases of forceible Entrie or holding against the aforesaid statutes 7. Also the statute of 8. H. 6. extendeth further reaching the offendors if they were removed before the comming of the Iustices giving the Enquiry and restitution and also punishing the Sheriffe that shall not obey the precepts of the Iust in this behalfe One Iustice 8. Every Iustice of peace upon complaint to him made or upon other notice to him given 15. R. 2. ca. 2. of any forceible Entrie into or holding or detainer of possession of any lands tenements or other possessions or of any benefices â— H. 6. ca. 9. P. 1. or offices of the church contrary to these statutes without any examining questioning or standing upon the right or title of either party ought in convenient time at the costs of the party grieved to doe execution of these statutes in manner and forme following 9. 15. R. 2. ca. 2. First he ought to goe to the place where such force shall be and he may take with him sufficient power of the County or Town by his discretion and the Sheriffe also if need be to aide him for the better execution of this businesse sc aswell for the arresting of such offendors as also for the removing of the force and for the convaying of them to the next gaole 10. He ought to arrest and remove all such
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
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
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 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
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
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
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
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
that shall arrest such suspected person must have a suspition of him himselfe and for the same Treason or felony 9. Ed. 4. 28. or otherwise suspition generally is no cause to arrest another 60. So that when any Treason or felony is done every man that shall suspect another to be guilty thereof may arrest him 5. H. 7. 4. 5. H. 7. 4. B. Br. Faux Imprisonment 16. 61. Also when a felony is committed the common voice and fame that I.S. did the felony is sufficient cause for any man to suspect him 5. H. 7. 4. and to arrest him Also Huy and Cry after I. S. for felony seemeth to be sufficient cause to arrest him though there be no felony committed Also Huy and Cry is sufficient cause to arrest any suspitious person 62. So when a felony is done to be in company of the offendors is sufficient cause to arrest him 9. Ed. 4. 28. Nedham So to live idlely and vagrant is good cause of suspition Also every man may arrest such as apparantly goe about to commit any felony and may imprison them 63. Also upon Huy and Cry for goods stolne sc for a horse or Bullockes c. of such a colour c. 29. Ed. 3. 39. 5. H. 7. 4. If A. bee taken driving or leading such a horse or bullocke or having such other stolne goods about him though he be a man of good name and credit yet every man may apprehend and stay A. hereupon and may deliver him to the Constables by them to be set in the stocks or safely kept untill they can carrie him before a Iustice of peace that so he may be delivered by course of Law 64. If any man shall be dangerously hurt in an Affray 10. H. 7. 28. or otherwise every man may arrest and imprison the offendour 65. Nightwalkers being strangers or suspected persons watchmen may arrest them and may stay them till the morning yea every man may arrest such Nightwalkers for it is for the good of the Common-wealth 4. H. 7. 18. Br. Faux Imprisonment 15. 66. The Sheriffe Bailiffes Constables and other the Kings officers may arrest and imprison offendours By officers in all cases where a private person may and without any writ or warrant 67. A Constable being informed of a lewd man and woman that are together in incontinency 1. H. 7. 7. 13. H. 7. 10. may take with him so many of his neighbours as he will to arrest the said man and woman to finde sureties for their good behaviour 1. H. 7. 7. 13. H. 7. 16. 68. The Iustice of peace may arrest and imprison offendours in all cases where a private person or Constable may 69. The Iu. of P. upon his owne motion and discretion or upon complaint may also grant out his warrant for the arresting or conventing before him of all such persons as shall breake or goe about to breake the peace or as he shall suspect to bee inclined to breake the peace and may commit them to prison if they shall refuse to finde or cannot finde sureties for to keepe the peace 70. The Iu. of peace in diverse cases may in like sort grant out his warrant for the good behaviour against offendors and commiâ— them to prison for not finding sureties accordingly 71. And these things the Iu. of peace may doe by force of the Commission and of the statutes 18. E. 3. ca. 2. et 34. Ed. 3. cap. 1. 72. If one commeth before the Iustice of peace upon his warrant for the peace good behaviour or for a Riot or the like the Iustice needeth not to demaund surety of him but may commit him if he doe not offer it Br. peace 7. 73. Also the Iustices of peace upon their owne view of the offences may imprison the offendors against diverse penall Lawes as namely such as shall make any forceible Entries or holdings of possessions 74. There be diverse other offences which by the statutes are committed to the Iu. of peace out of their Sessions to heare and determine And of which the offendors shal be convicted sometimes upon their owne confession before the Iu. and sometimes upon examination and proofe of witnesses In all which cases the said Iustices of peace may convent the said offendors before them by their processe or warrant and after such examination and conviction they may Imprison or otherwise punish the offendors according as they are limitted by the said statutes 75. Wheresoever the Iu. of peace hath power or authority given him by any statute to bind over any man or to cause a man to doe any thing if such person being in his presence shall refuse to be bound or to doe such thing such Iustice may send such person to the Gaole there to remaine till he shall performe the same 76. All men being required ought to assist the K. officers to pursue and arrest Traitours Felons and all other offendors against the peace Resist 2. E. 4. 6. 21. H. 7. 39. 77. If the party against whom any lawfull warrant is granted shall make resistance or shall make an assault upon the officer the officer may justifie the beating and hurting of him and may also imprison him in the Stocks for the same But if the party resisteth or flyeth before he be arrested the officer cannot justifie the beating of him 2. Ed. 4. 7. a. Br. Trespas 296. Imprisonment the place 5. H. 4. 10. P. Prison 1. 78. None shal be imprisoned by any Iu. of peace but only in the Common gaole by the statute of 5. H. 4. And therefore Iustices of peace cannot commit felons to any prisons which be no common gaoles nor make a gaole of their owne houses And yet Iustices of peace may commit to the stocks some offendors against certaine penall statutes 20. Ed. 4. 6. 22. Ed 4. 35. 3. H. 4. 9. 79. The Constable or other such officer cannot imprison any man in his house as it seemeth but in the Stocks and that not above such a reasonable time as he may provide conveniently and safely to convey the prisoner to the Iust of peace or to the gaole 80. If a man commit felony or Treason in one County and be arrested for the same in another County although he cannot be tryed nor indicted in the County where he was apprehended yet he shal be there imprisoned untill by the Iustices of Assise or the Iustices of the Kings Bench he shal be sent to the gaole of the County where the fact was committed 81. The Constable or other officer pursuing a felon into another County takes him there 13. E. 4. 8. the felon shall be brought before a Iustice of peace of that County and by him committed to the gaole of the County where he is taken For the officer being out of his County hath no more authority there than a private man 82. Also if the Constable or other officer shall see an Affray and he comming to arrest them
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
levyed by the Warden of the peace and that the paines lost be spent upon the Townes where the said paines riseth 8. Also by a statute made in Ireland in the tenth yeare of King Henry the seventh it is ordained That every subject having goods and Chattels to the value of Ten pounds have an English Bow and a sneafe of Arrowes according every subject having goods to the value of 20. l. have a Iacke Sallet and English Bow and a sheafe of arrowes every Freeholder having land to the value yearely of foure pounds have his horse Iacke Sallet Bow and Sheafe of Arrowes every Lord Knight and Esquire within the said land have for every yeoman daily in their houshold Iacke Salet Bow and Arrowes to the intent that all the Commons of the said land may be able to doe the King or his Lievetenant service for their owne defence and suretie And that if the foresaid persons or any of them doe not observe and performe the premises as it is before specified that then they and every of them doe forfeit to the King 6. s. 8. d. as often times as they and every of them shall offend the foresaid ordinance And likewise that there be in every Barony within every Shire of the said land two Wardens of peace having authority as it hath been used of old time and in every parish Constables of able persons inhabitants within the said parishes and a paire of Buts to be had within every of the foresaid parishes at the cost of the said parishioners that the Commons of the said land may the sooner attaine the practise and experience of Archers And that the foresaid Constables in every parish upon paine of forfeiture of 12. d. at every default doe call before them or one of them every holy day all and every of the foresaid persons having Bowes and Arrowes as afore is rehearsed 10. H. 7 ca. 9. in Ireland to shoot and cause them to shoot at the least two or three games at the said Buts and if any of the said persons make default at any holy day without a reasonable cause shewed that then the said Constables have full power and authority to record their defaults and amerce them and every of them at every such default in 4.d and the said Constables to present the said amerciaments in writing to the Barons of the Kings Eschequer in the said land to be levyed and perceived in like manner and forme as the Kings Revenues have beene levyed there Felonie CHAP. 9. 1. EVery Iustice of peace by force of the first Assignavimus of the Commission may cause fresh suite Huy and Cry and search to be made by the Sheriffe bailiffes Constables and others upon any Treason robbery theft or other felony and also may cause the Constables to arrest and to imprison all such as shall be suspected of such Treason or felony or to be Theeves Murderers or Felons 2. Also every Iustice of peace may and must take the examination of all such felons or persons suspected of treason or felony as shall be brought before him 10. Carolica 18. and must also take information against them of those that bring them sc of the fact and of circumstances thereof and must put in writing such examinations and informations or so much thereof as shall be materiall to prove the felony and must certifie them to the next generall gaole delivery and after such examination and information taken then must commit such traitors or felons to the gaole if they be not baileable but if they be baileable then there must be two Iustices together the one of them of the Quorum to bayle them or else they cannot be bailed 3. The Iustice of peace that taketh the examinations must by recognisance binde the Informers that doe declare any thing materiall to prove the felony or treason to appeare and give evidence against the felon at the next generall gaole delivery to be holden within the County City or Towne corporate where the triall of the said offence shall be Stamf. 58. Li. intr 385. Co. 9. 118. 4. The Iustices of peace in the County of Dublin as well by vertue of their Commission as also by force of the statutes of 18. E. 3. 2. 34. Ed. 3. 1. 17. R. 2. 10. have authority to heare and determine all felonies for the words of the Commission to that purpose are Audiendum terminandum ad delinquentes castigandum puniendum 5. Also there be divers statutes which by speciall words did ordaine that the Iustices of peace should have authority at their generall quarter Sessions to inquire of heare and determine certaine felonies As the statutes 18. H. 6. 19. and 1. Ed. 4. for felonies presented before Sheriffes in their Turnes or law dayes Cromp. 5â— 6. And yet there be some felonies which the Iustices of peace cannot heare or try at all neither can they enquire thereof nor otherwise deale therewith as it seemeth as namely â— H. 6. â—2 12. Co. 11. 34. 7. Embeazelling of any record writ returne panel proces or warrant of Atturney in the Chancery Eschequer the one bench or the other or in the treasury whereby any judgement shall be reversed Every such offence is made felony in such imbezellor stealer or taker away and in their procurors Counsellors and abettors by the statute of 8. H. 6. But such offences are by the same statute appointed to be tryed by a Iury whereof the one halfe shall be of the men of the same Courts and before the Iudges of the said Courts of the one Bench or of the other 2. R. 3. fo 10. 8. Razing of any such record is also felony within the said statute of 8. H. 6. and to be tryed as aforesaid Br. Coro 174. 9. Forging of any deed or writing sealed or of any Court Roll will or acquittance Or to cause or assent to be made any such forged writing or to publish or shew forth in Evidence any such forged writing knowing the same to be forged If any person being once lawfully convicted of any of the said offences shall afterwards commit any the said offences againe 2â— El ca. 4. in Ireland every such second offence is made felony by the statute of 5. El. ca. 24. in England But by the same statute such offences are to be inquired of heard and determined by and before Iustices of Oyer and Terminer and Iustices of Assize which statute is enacted in Ireland in Anno 28. El. ca. 4. 10. And therefore whereas one R. Smith was indicted at the Sâ—ssions of the peace in the County of Oxford upon the said statute of 5. Elizab. for forging of a false deed it was adjudged by the whole Court in the K. bench Anno 30. Co. 9. 118. Elizab. that the said indictment was not well taken For although the Iustices of peace by their Commission have power of Oyer and Terminer to heare and determine felonies and trespasses
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
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
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
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
of person or persons that hereafter offend the said statutes or any of them and every of the said persons so found defective or trespassing in any of the said statutes from henceforth be duely corrected and punished in example of all other in time to come according to the tenor and purport of the statutes made against provisors 15. Anno 28. H. 8. ca. 5. 28. H. 6. ca. 5. in Ireland amongst other things it is ordeined and enacted by authority of Parliament that no person or persons subjects or resiants of this land shall pursue commence use or execute any manner of provocations appeales or other processes to or from the Bishop of Rome or from the See of Rome or to or from any other that claime authority by reason of the same for any manner of case griefe or cause of what nature soever it be upon the pain that the offendors their ayders counsellors and abettors contrary to this Act shall incurre and runne into such paines forfeitures and penalties as be specifyed and contained in the Act of provision and praemunire made in the Realme of England in the sixteenth yeare of the Raigne of King Richard the second sometime King of England and Lord of Ireland against such as procure to the Court of Rome or elsewhere to the derogation or contrary to the prerogative or jurisdiction of the said Crowne of England and that no manner of person subject or resiant within this land shall attempt procure or obtaine any manner of proces of what kinde or nature soever it be to or from the same Bishop of Rome or Court of Rome or See Apostolique or from any other having authority by the same to the let or interruption of this Act or any thing therein contained nor in any wise obey or execute within this land such manner of processe upon like paines and forfeitures as beene above rehearsed 16. Anno 2. Eliz ca. 1. 2. El. ca. 1. in Ireland It is amongst other things ordeined and enacted that if any person or persons dwelling or inhabiting within this Realme of what estate dignitie or degree soever he or they be shall by writing printing teaching preaching expresse words deeds or Act advisedly malitiously and directly affirme hold stand with set forth maintaine and defend the authority preheminence power or jurisdiction spirituall or ecclesiasticall of any forraigne prince prelate person state or potentate whatsoever heretofore claimed used or usurped within this Realme or shall advisedly malitiously directly put in ure or execute any thing for the extolling advancement setting forth maintenance or defence of any such pretended or usurped Iurisdiction power preheminence or authority or any part thereof that then every such person and persons so doing and offending their abettors aiders procurors and Counsellors being thereof lawfully convicted and attainted according to the due order and course of the common Lawes of this Realme for his or their first offence shall forfeite and loose all his and their goods and chattels aswell reall as personall and if any such person so convicted or attainted shall not have or be worth of his owne proper goods and chattels to the value of twenty pounds at the time of such his conviction or attainder that then every such person so convicted and attainted over and besides the forfeiture of all his said goods and chattels shall have and suffer imprisonment by the space of one whole yeare without baile or mainprise and that also all and every the benefices prebends and other Ecclesiasticall promotions and dignities whatsoever of every spirituall person so offending and being attainted shall immediately after such attainder be utterly voide to all intents and purposes as though the incumbent thereof were dead and that the patron and donor of every such benefice prebend spirituall promotion and dignity shall and may lawfully present to the same or give the same in such manner and forme as if the said incumbent were dead and if any such offendor or offendors after such conviction or attainder doe eftsoons commit or doe the said offences or any of them in manner and forme aforesaid and be thereof duely convicted and attainted as is aforesaid and then every such offendor or offendors shall for the same second offence incurre into the dangers penalties and forfeitures ordeined and provided by the statute of provision and praemunire made within the Realme of England in the sixteenth yeare of the Raigne of King Richard the second provided alwayes that no manner of person or persons shall be molested or impeached for any of the offences aforesaid committed or perpetrated only by preaching teaching or words unlesse he or they be thereof lawfully indicted within the space of one halfe yeare next after his or their offences so committed and in case any person or persons shall fortune to be imprisoned for any of the said offences committed by preaching teaching or words onely and be not thereof indicted within the space of one halfe yeare next after his or their such offence so committed and done that then the said person so imprisoned shall be set at liberty and be no longer detained prisoner for any such cause or offence provided alwayes and be it enacted by the authority aforesaid that this Act or any thing therein contained shall not in any wise extend to repeale any clause matter or sentence contained or specifyed in an Act of repeale made in the third and fourth yeares of the Raignes of King Philip and Queene Mary as doth in any wise touch or concerne any matter in case of praemunire or doth make or ordeine any matter or cause to be within the case of praemunire but that the same for so much onely as toucheth and concerneth any case or matter of praemunire shall stand and remaine in full force and effect as the fame was before the making of this Act contained to the contrary in any wise notwithstanding And if it shall happen that any peere of this Realme shall fortune to be indicted of and for any offence that is revived or made praemunire or Treason by this Act that then the same peere or peares so being indicted shall be put to answere to every such indictment before such peere of this Realme of English blood as by the Lord Deputy or governours of this Realme shall be by Commission appointed under the great seale and to have his and their triall by this and their peeres and to receive and have such like judgement upon the same triall of his or their peeres or making open confession of the same offence or offences as in other cases of Treason and praemunire hath beene used And it is further enacted that no person or persons shall be indicted or arraigned for any the offences made ordeined revived and adjudged by the said Act unlesse there be two sufficient witnesses or more to testifie and declare the said offences whereof he should be indicted and arraigned and that the said witnesses or so many of them
before time made of Purveyors and buyers shall be holden and kept and put in due execution and in case that any Purveyor buyer or taker will take and make purveyance or buy any thing to the value of 40. s. or under of any person and make not ready payment in hand 40. s. ready payment that then it shall be lawfull to every of the Kings liege people to retaine their goods and chattels and to resist such Purveyors and buyers Resist and in no manner wise suffer them to make any such Purveyances buyings or takings and for the peace better to be kept that every Constable Constable Tithingman Tithingman or chiefe pledge of every Towne or hamlet where such purveyances or takings shall be made shall be aiding or assisting to the owner or seller of such things to be against the forme of this ordinance to make resistance in the forme aforesaid in case that such Constables Tithingman or chiefe pledge bee required that to doe upon paine to yeeld to the partie so grieved the value of the things so taken with his double damages and that none of the Kings liege pleople be put to losse or damage by the King or any officer for such resistance and that none of the Kings officers shall doe to be arrested vexed or impleaded in the Court of the Marshalsey or elsewhere any of the Kings liege people for such with-holding or not suffering to be done upon paine to lose twenty pounds Forf Moitie the one moity of that to the King and the other moitie to him which will in such case sue and that the Iustices of peace Iustice of peace in every County shall have power by authority of this ordinance to enquire heare and determine Oyer and Ter. aswell at the suite of the King as of him that will sue of any thing done against this ordinance and thereof to make due punishment and execution and to award damages Damages to the party plaintiffe when any defendant is thereof duely convict and that in every Action to be taken upon this ordinance every party defendant shall be put to answere to that without aide of the King and in such Actions to be taken No aide Proces proces shall be made as in a writ of Trespasse done against the peace and that in every Commission Commission of Purveyors takers or buyers to be made this ordinance shall be contained and expressed and moreover that this ordinance among other statutes of Purveyors buyers or takers before this time made shall be sent to the Sheriffes Sheriffe of every County to proclaime and deliver the said statutes and ordinances in the manner and forme contained in the statute of purveyors and buyers made in the first yeare of the Raigne of the said King H. 6. And moreover the King will and commandeth that the statute made the six and thirtieth of King Edward late King of England after the coÌ„quest touching Purveyors of other persons then of the King shall be put in due execution Anno 20. H. 6. cap. 8. 13. In anno 23. H. 6. ca. 2. 23. H. 6. ca. 2. it is ordained that the said statutes of an 36. E. 3. from thenceforth should be duely kept and put in due execution and moreover that every purveyor and buyer before that he shall have any Commission shall be sworne Sworne in the Chancery Chancerie that he shall take nothing of the people contrary to the said ordinances and moreover forasmuch as the poore people be not of power nor dare make resistance against the purveyors and buyers nor sue them by the law though that they doe contrary to the said statutes It is ordained by the same authority that the praisers and also all the Towne and townes Townes adjoyning if need be shall be bound to doe their devour and power to resist Resist the buyers and purveyors doing contrary to the said statutes and as much as in them is to execute the said statutes upon the said Purveyors if they be required and that he which is grieved of his goods taken contrary to the said statutes and ordinances may chuse to have either an Action of debt Action of debt against the said preisers Towne or Townes and every of them which doe not their devour in resistance of the said Purveyors or buyers in the forme aforesaid when they shall be required or else against the said Purveyors 3. Value 3. Damages or buyers and every of them to recover the treble value of his goods so taken and moreover his treble costs and damages and if any purveyor and other the Kings officer doe trouble or vexe any of the Kings liege people in the marshalsey or elsewhere by any evill suggestion or cause fayned imagined or coloured upon them because of the execution of the said ordinances he shall incurre the paine of Twenty pound Forf to be paid to the party grieved over his damages and costs in that behalfe sustained and that he thereupon shall have a writ of debt Writ of debt and that every issue Issue triable in this action shall be tried in the county County where the taking of the said goods was made and that the defendants in the said causes shall not be admitted to wage their law and shall be put to answere without forcing and no eâ—â—oyne â—ide of the King nor protection shall be to them allowed and that the Sergeant of the Caterie Sâ—â—â—eant of Câ—terie shall satisfie all the damages debts and executions which shall be recovered against every Purveyor and buyer underneath him in all the cases aforesaid in case that the Purveyor or buyer be not sufficient to satisfie and the party complainant shall have a scire facias Scire facias to have execution against the said Sergeants in the case and that these statutes and ordinances shall be sent to the Iustices of the peace in every County to proclaime them every yeare and thereof to informe the people Iust of P. Proclamation Anno 23. Hen. 6. cap. 2. 14. If any buyer or other officer of any Lord Lord. or person 23. H. 6. ca. 14. of what estate degree or condition that he be presume upon him to take or otherwise doe take any victuals Victuals Corne Corne. or hay Hay carriages Carriage or any other thing whatsoever of any of the Kings liege people in any wise against their will without lawfull bargaine betwixt the said buyers or officers and the said liege people thereof to be made to the use of the said Lords for their houses but all onely for the King and the Queene and their houses that then if notice or request be made to the Mayor Maior Sheriffe Sheriffe Bailiffe Bailiffe Constable Constable Officers or other of the Kings ministers of Cities and Borroughes or other Counties or places where such taking shall
gathered together or else it can be no Riot Rout or unlawfull assembly within the meaning of these statutes 6. But an assembly of an hundred persons or more yea though they be in armour yet if it be not in terrorem populi and were assembled without any intent to breake the peace it is not prohibited by any of these statutes Cromp. 6â— P. R. 2â— The intent Cromp. 61. Dalton 201. 7. For it seemeth it can be no Riot c. except there be an intent precedent to doe some unlawfull Act and with violence or force 8. And therefore if diverse be assembled aâ—d none of them doe know to what end or purpose they are met this can make no riot or Rout till the intent be knowne 9. If the master intending to make a Riot taketh with him his ordinary servants and maketh an affray or other outrage with them this is no Riot in the servants Ibid. except their master had made them privie to his intent before but the master only shall be punished for the riot and the servants as trespassers 10. And in this former case it is not materiall though the number of his servants which goe with him be above his degree so long as they be his houshold servants P. R. 25. Cromp. â—â— 11. If diverse being lawfully assembled shall quarrell or fall out upon the sudden without any such former intent this is no riot but a sudden Affray Dalton p. â—â—â— 12. If divers bee at an Alehouse and without any intention of an Affray they suddenly fall together by the Eares this is no riot but a sudden affray because they had no such intention before 13. If a Iury being together shall fall out and fight Ibid. this is no riot because they were lawfully assembled but it is a great misdemeanor for which they shall be fyned and imprisoned 14. Also where there be three or more gathered together 〈◊〉 201. either to execute the Iustice of the Law or for the exercise of valouâ— and triall of activity 3. H. 7. 1. Br. Riots 2. or for the increase of amitie and neighbourly friendship and being met without any intent to breake or disturbe the peace or to offer violence or hurt to the person of any such assemblies be not prohibited by any statute nor unlawfull as if the Sheriffe undersheriffe bailiffe or other officer shall take power what number he shall thinke good to execute the Kings processe this is no unlawfull assembly 15. So it is a lawfull assembly which is gathered together to run at Tilt c. by the Kings commandement 16. So the assembly of people and their use of harnesse upon usuall dayes in Dublin Dalton 202. and other Citties and Townes being onely for disport or exercise of Armes is lawfull and though it be with a great assembly of people and in armour yet it being neither in terrorem populi nor to doe any act with force or violence against the peace it is lawfull 17. Also if divers doe assemble and gather together Ibid. to drinke at an Alehouse or to play at foot-ball bucklers beare or bullbaitings dancings Bowles Cards or Dice or such like disports that is no Riot nor prohibited for these meetings usually are not with any intent to offer or doe violence or hurt to the person possessions or goods of any other neither are they malum in se but if these be done upon the Sabboth day they are misdemeanors and sufficient cause to bind the offendors to the good behaviour and so it is of keeping faires and markets upon the Sabboth day 18. Ibid. But if any of the persons assembled together for any the disports above mentioned or for the like came with an intent or purpose to breake or disturbe the peace or to offer violence or hurt to the person of any and shall make an affray or doe any other outrage this seemeth to be a riot in so many as came with any such unlawfull intent or purpose 19. P. R. 25. And if any of the persons assembled together to drinke or play at an Alehouse or for any the disports above mentioned or the like shall fall out suddenly without any former intention of an affray and in that their falling out they shall betake themselves to sundry parts and shall make an affray this seemeth to be no Riot Dalton p. â—02â— for that it was without any such intent before their said assembly and done only upon the sudden and upon a sudden occasion happening after their said meeting and againe their said assembly was at the first lawfull or at least not prohibited by any of these statutes nor yet by the common Law 20. But otherwise if by agreement they shall meet againe and fight afterwards Ibid. that maketh it a Riot as being a new assembly upon the former quarrell and so their second meeting was upon an intent precedent to doe an evill Act. 21. Now concerning the lawfulnesse or unlawfulnesse of the Act Lawfulnesse of the Act. it is to be observed that lawfulnesse or unlawfulnesse of the thing done or intended doth not alwayes excuse or accuse the parties to a Riot c. but so that the manner and circumstances of the fact must also be considered Br. Riots 1. 22. For every man may assemble company to aide him in his house against injury or violence but if a man be threatned that if he come to such a place he shall be beaten in this case if he shall assemble any company to goe thither with him though it be to the safegard of his person it seemeth to be within the compasse of these statutes and unlawfull Br. Riots 1. Cromp. 66. 23. Every man in peaceable manner may assemble meete company and may come to doe any lawfull thing or to remove or cast downe any common nusance done to them Co. 5. 101. 9. 55. 24. Every private man to whose house or land any nusans shall be erected made or done may in peaceable manner assemble a meete company with necessary tooles and may remove pull or cast down such nusans and that before any prejudice received thereby and for that purpose if need be may also enter into the other mans ground 36. Eliz. Cromp. 66. 25. A man erects a weare crosse a common Ryver where people have a common passage with their boats and diverse did assemble with spades Crowes of Iron and other things necessary to remove the said Weare and made a Trench in his land that did erect the weare to turne the water so as they might the better take up the said weare and they did remove the said nusans this was holden neither any forceible Entry nor yet any Riot Dalton 203. 26. But in the cases aforesaid if in removing any such nusans c. the persons so assembled shall use any threatning words as to say they will doe it in despight of the other or they will
doe it though they dye for it or such like words or shall use any other behaviour in apparant disturbance of the peace then it seemeth to be a Riot and therefore where there is cause to remove any such nusans or to doe any like Act it is the safest not to assemble any multitude of people but only to send one or two persons or if a greater number yet no more then are needfull and only with meete tooles to remove cast or pull downe the same and that such persons tend their businesse only without disturbance of the peace for the manner of doing a lawfull thing may make it unlawfull Ibid. 27. Also the manner of doing an unlawfull Act by an assembly of people may be such and so handled as that it shall not be punished as a Riot as if I should assemble a meete company to carry away a peece of Timber or other thing whereto I pretend a right that cannot be carryed without a great number if the number be not more then are needfull for such purpose although another man have better right to the thing so carryed away and that this Act be a wrong and unlawfull yet is it of it selfe no Riot except there be withall threatning words used or other disturbance of the peace 28. The manner As there must necessarily be three persons at the least assembled together to make a Riot Dalton 204. c. so they being together and their demeanor must be such as shall or may breed some apparant disturbance of the peace either by threatning speeches turbulent gesture shew of armour or actuall force or violence to the terror of the peaceable sort of people or to the emboldening and stirring up of such as are busie headed and of evill disposition by such fact or else it can be no Riot c. for as I said before the manner of doing a lawfull thing may make it unlawfull sic è converso 29. And therefore if diverse in one company going to the church Ibid. faire or market shall goe armed or one going to the Sessions or other like assembly shall goe in harnesse to the terror of the people though he or they have no intent to fight or to commit any Riot yet this is a Rout by the manner of his or their going being needlesse disordered and against the Law see the statute 2. Ed. 3. ca. 3. 30. Cromp. 64. But in the former cases if they had gone in privie Coats of plate shirts of maile or the like to the intent to defend themselves from some adversarie this seemeth not punishable within these statutes for that there is nothing openly done in terrorem populi 31. One N. W. together with fourescore persons 31. El. came with spades mattocks pistols swords and daggers in the night to a peece of ground where Sir Thomas St. had made a great weare crosse over the river of Trent in the County of Notting to the great nusans of passengers there Cromp. 64. c. and there they made one or two litle Trenches to let the water passe c. and though it were lawfull to make the Trenches and to debruse the nusans yet for that they came with such number and weapons they were deeply fyned in the Star-chamber 32. Also a Lord of a Coppihold did enter with twenty persons 31 and 32. El. Cromp. 64. Dalton 204. and cut his Coppiholders corne with force for that his Coppiholder would not compound with him for his fyne and although the entry of the Lord was holden lawfull yet punishable as a Riot in regard of his number and force 33. In all cases where three or more shall enter into lands Cromp. 64. Dalton 205. c. with force upon the possession of another where their entry is lawfull yet it is a Riot by reason of the number and force for the statute of 5. R. 2. prohibiteth the entry with force or with multitude of people although the entry be otherwise lawfull What persons may commit a Riot CHAP. 52. 1. IF a number of women or children under the age of discretion doe flocke together for their owne cause this is no assemblie punishable by these statutes unlesse a man of discretion moved them to assemble for the doing of some unlawfull Act as Master Marrow held Cromp. 62. but yet certaine women that had apparelled themselves in mens apparell Dalton 205. and had pulled downe riotously a lawfull inclosure were worthily punished for the same in the Starchamber contrary to Master Marrowes opinion 2. Also women covert are holden to be within the statute of Mert. ca. 6. Co. 3. 72. 11. 161. for ravishment of wards and within the statute of Westm. 1. ca. 20. de malefactoribus in parcis and within the statute of 2. Eliz. ca. 2. for recusancy although they be not particularly named within any of this statute Co ibid f. bre 670. 4. E 4. 16. 3. Also if a woman covert shall commit any riot or doe any Trespasse or other wrong she is punishable for it and for a trespasse done by the wife or for a scandall published by her the action lieth both against the husband and wife sc an action of trespasse or of the case shall be brought against the husband and the wife and there the husband is chargeable to the damages or fyne because he is a partie to the action and Iudgement but if a woman covert without her husband be indicted of a Trespasse Co. 21. 61. b. riot or other wrong there the wife shall answere and be party to the Iudgement only and in such case the fyne set upon the wife shall not be levied upon the husband 22. Ass â—7 43. E. 3. 18. yet after the husbands death it seemeth such damages or fyne shall then be levied upon the wife her selfe and as for imprisonment or other corporall paine it shall be inflicted upon the wife only and not upon the husband for his wives Act or default Dalâ—â—n 205. 4. If a Mayor and Alderman or Bailiffe and Burgesses or the fellowes of any other society doe assemble in their common quarrell and make a riot or rout this shall be punished in their owne private naturall persons and not in the body politique Recognisance CHAP. 53. 1. A Recognisance is a bond of record testifying the Recognisor to owe a certaine summe of money to some other and the acknowledging of the same is to remaine of record and none can take it but only a Iudge or Officer of record 2. And these recog in some cases the Iu. of peace are enabled to take by the expresse words of certaine statutes but in other cases as for the peace and good behaviour or the like they may doe it of congruity without any expresse authority given them either by their Commission or by statute 3. Note wheresoever any statute giveth them power to take a bond of any man or to binde over any
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
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
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
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.
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
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
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
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
is an offence punishable at the common Law by fyne and imprisonment at the discretion of the Court. 23. So likewise the stopping or diverting of any water-course whereby any common way or passage is annoyed this is an offence at the Common Law and punishable in manner following viz. by fyne and imprisonment at the discretion of the Court and by abatement of the nusans 24. In like manner the casting of dung or any other thing into any common street or high-way which doth in any sort annoy the passage is an offence at the Common Law and punishable by fyne and imprisonment and removing of the nusans as in the next precedent Section is set forth 25. By a statute made in 33. H. 8. cap. 2. in Ireland it is enacted Buying out of market that no person or persons shall buy any Hydes Fels chequers Flegs Yarne Linnen-cloath wooll or flockes to sell againe in any other place but in markets or faires the offendour by the said statute is to be punished as a Fore-staller 26. If Ordinaries upon the admission of incumbents shall not give an oath to such incumbents to keepe a schoole in their parishes Schooles every such ordinarie for every such neglect is to forfeit 3.l 6 s 8.d 28. H. 8. cap. 15. in Ireland 27. So likewise such incumbents as shall not keepe a Schoole in their parishes for the teaching of English by the said statute of the 28. H. 8. cap. 15. in Ireland is to forfeit for the first offence 6 s 8.d for the second offence 20 s and for the third offence to loose their benefices Sheriffes 28. If any Sheriffe shall let his bailiwickes to farme by the statute of 23. H. 6. cap. 10. he is to forfeit 40.l 29. If any Sheriffe shall refuse to let men to baile which by the Law are baileable he is to forfeit 40.l to the King and treble damage to the partie 23. H. 6. cap. 10. 30. Sheriffes that shall levie any fines or amercements by reason of any indictment or presentment in their Turne Courts without processe from the Iustices of peace or that have not brought in such indictments or presentments to the next generall Sessions of the peace are to forfeit 40.l 1. Edw. 4. cap. 2. Undersheriffs c. to be sworne 31. Undersheriffes bailiffes of Liberties and others that take upon on them to returne pannels or tales or medle with the execution of processe before they take the oath for the true execution of their offices according to the statute of 10. Car. in Ireland are to bee fined in 40.l to the King and pay treble damage to the party grieved 10. Car. cap. 18. 32. If undersheriffâ—s bailiffes and others shall doe any thing contrary to their oathes mentioned in the next precedent Section they are by the said Statute of 10. Car. to forfeit 40.l to the King and treble damage to the partie grieved Purveyors 33. Purveyors that take any thing by way of purveyance to the value of fortie shillings or under without making present payment are to forfeit the value of the thing so taken and loose their offices 2. H. 4. cap. 14. 34. Artificers Labourers and other Laymen that have not lands worth 40 s per annum or Priests that have not 10.l per annum that shall keepe any grey-hound Keeping of greyhounds or any dogge to hunt or use any Ferrets nets or other engines to kill Deere Hares or Conies are to suffer a yeares imprisonment 13. Rich. 2. cap. 13. Constables 35. Constables that have not given assistance to the owners of goods to resist Purveyors that take goods under the value of 40 s without making present payment and any of the Kings officers that have procured any to be arrested or vexed for such resistance such officer is to be fyned in 20.l and the Constable in the value of the thing taken and double damage to the party 20. H. 6. cap. 8. 36. All such persons as have raised Huy and Cry Raising Huy and Cry without cause they are to be punished by fyne and imprisonment Escape by negligence 37. If any person arrested or imprisoned for treason of felony have by negligence been suffered to escape the Gaoler or such other persons as had the custodie of him shall be punished by fyne and imprisonment Giving of liveries 38. Giving of Liveries unto such as are not houshold servants is to be punished by imprisonment fyne and ransome the retayner to loose 5.l and the party reâ—ained likewise to loose 5.l for each month 1. Ric. 2. cap 4. 20. Rich. 2. cap. 1. 2. 1. H. 4. cap. 7. 7. H. 4. ca. 14. Buying of Corne. 39. If any person having store of Corne of his owne doe buy Corne in the market he shal be punished as a regrator which punishment is by fyne and imprisonment 8. Edw. 4. cap. 2. in Ireland 40. Butchers Fishmongers Butchers and Fishmongers Inneholders and other sellers of victuals are to sell the same at reasonable rates and prices and for moderate gaine and such as shall doe otherwise shall forfeit double the value of that they shall receive 23. Edw. 3. cap. 6. 41. Tylemakers Tyle-makers that have not digged and cast up earth for making of Tyle till after the first of November and have not turned it untill after the first of February are to loose double the value and the Tyles so made 17. Edw. 4. ca. 4. 42. Tylemakers that make or any person that putteth to sale any plaine Tyle under ten inches and an halfe in length six inches and a quarter in bredth and halfe an inch and halfe a quarter in thicknesse with convenient deepnesse or any gutter Tyle under ten inches and an halfe in length with convenient thicknesse bredth and depth the offendor to be punished in manner following viz. for every hundred of plaine Tyle to forfeite 5 s for every hundred of roofe Tyle 6 s 8.d and for every hundred of gutter Tyle 2 s 17 Ed. 4. cap. 4. 43. If any searchers appointed for the true making of Tyle have not done their endeavour in that behalfe they are to forfeite for every default x.s. 17. Edw. 4. cap. 4. 44. If any person shall disturbe the execution of the stat against Rogues Rogues and sturdy beggers the offendor therein is to forfeite 5.l ster 33. H. 8. cap. 15. in Ireland 45. Sheriffes that doe not appoint foure Deputies at the least to make Replevins not twelve miles distant one from an other are to forfeite 5.l 10. Caroli cap. 25. in Ireland 46. Gaolers Gaolors taking Fees of servants artificers or Labourers that refuse to serve shall forfeit x.l. to the King and v.l. to the party grieved 34. Edw. 3. cap. 9. 47. Libellers Libellers and raisors of schandals upon magistrates and ministers of Iustice are to be punished aswell by the common Law as by the statute of Winchester cap. 33. and by the statutes of
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
be concluded by his former confession upon the Endictment so that he shall not be received to say the contrary 9. H. 4. 8. 11. H. 4. 65. 5. But the other which I call confession after a manner is onely a not denying in which the party doth cunningly and after a sort take the fault upon him without plainely confessing himselfe guilty thereof as where he putteth himselfe in gratiam Regis petit admitti per finem without any more sometime by protestation that he is not guilty pleadeth his pardon and such a confession if I may so call it doth not so conclude him but that he may afterward plead not guilty in any action brought against him 9. H. 6. 60. Cur. 11. H. 4. 65. 6. But here it is good to learne whether the Iustices be compellable to admit such a confession by a manner being altogether devised in favour of offendors and for deceiving of the King or whether they may drive the party either to an absolute confession for increase of the Fyne or to his Traverse that failing therein he may be imprisoned and fyned also 7. The forced confession whereof I spake is that which the Iustices doe draw out of the party by the examination of himselfe in such cases wherein that examination is permitted Of hearing by Discretion CHAP. 12. 1. VVHether the offendor shall freely confesse the fault Denyall of the offence tryed Lamb. li. 4. pag. 531. or finally yeeld himselfe to Grace or plead his pardon without confessing it yet then is this matter fully heard and the Court made ready to determine of it but if he shall deny the fact then must some other course of hearing or tryall be taken for it 2. And that is in some cases by discretion of the Iustices in some other cases by examination of the parties or witnesses and in some other cases by certificate of other men Ibid. but in most cases by Traverse or arraignement both which last tryals are performed by the verdict of xij men Lamb. li. 4. pag. 532. 3. For Iustices of the peace cannot upon an Endictment of mayhem make the tryall by their owne view or inspection as the Iustices of the Kings Bench may doe saith Marr. Ibid. 4. The tryall of offences ought for the most part to proceed either after the generall order of the common Law or upon such speciall examination or other proofe as some statutes doe give in speciall cases and this hearing at liberty and discretion hath seldome any place 5. But wheresoever it is permitted that counsell which Master Bract. li. 1. giveth is to be harkened unto Lamb. li. 4. pag. 533. In judiciall hearing saith he besides the body of the fact it selfe these seven circumstances are to be weighed namely the cause the person the time the place the quantity the quality and the event Ibid. 6. And for proofe that hearing by discretion is yet in some sort suffered take this for example Ibid. 7. The Iustices of peace may heare by their discretion aswell by examination as otherwise at the suit of the King or of the party the offences done against the statute provided for the true making of tyle 17. Ed. 4. ca. 4. Ibid. 8. But how farre this discretion and the word otherwise may be extended in this and such like cases it cannot well be foretold for it is referred unto them and they must take counsell ex re ex tempore for it Of hearing or Tryall upon Examination CHAP. 13. 1. THe obstinacy of evill doers that would shew no conscience in acknowledging of their faults and the corruption of Iurors that would present nothing that lay onely in their owne knowledges have begotten and brought into our Law this tryall by examination wherewith it was not before acquainted 2. And yet this manner of tryall is not loosely permitted to Iustices of the peace but in cases only where either the statutes doe generally referre the tryall to their discretions or else doe specially authorise them to take the Examinations 3. The examination then is sometimes of the offendors themselves sometimes of witnesses that can speake to the matter and sometimes both of the parties and witnesses of every of which I will give you an authority or twaine and leave the rest to your owne reading and examination 4. Upon apparance after processe against the offendors of the statutes of Liveries the Iustices of peace may examine them and thereupon convince them so as if they were thereof convict by enquest 8. H. 6. ca. 4. 8. Ed. 4. ca. 2. 5. And because it is often seene that those which have committed an offence will also increase their fault by denying the same therefore some statutes doe appoint that the Iust of the P. shall take the examination of others Examination of others besides the offendors themselves 6. Now whereas also some statutes doe enable the Iustices of peace to heare and determine by the generall word Examination without shewing what persons they shall examine It seemeth to me that they may thereupon examine aswell the parties as other witnesses 7. Thus farre of examinations which whether they ought to be taken upon oath or no where the oath is not namely given you may easily Iudge by that which I have already said thereof in the first booke and yet for your further resolution I say now that these examinations of witnesses ought alwayes to be taken upon oath the rather because the tryall hereof dependeth upon them Of hearing or Tryall by Traverse CHAP. 14. 1. THe most solemne and ancient tryall of the fact against an offendor that will not confesse it is that which we see performed by the verdict of 12. good and lawfull men of the Countrey and it doth also best content and quiet the guilty man for that it passeth by his owne Countrymen Neighbours and Peeres according to the ancient libertie of the land whereunto every Free-borne man thinketh himselfe inheritable 2. And thereupon it is named in Mag. Chart. cap. 29. Legale judicium parium suorum the lawfull judgement of a mans owne Peeres or Equals because as the nobility so also the Commonalty are to bee tryed in treason felony or misprision of treason not the one by the other but each by men of their owne estate and calling I meane by the word Nobilitie as our owne law speaketh which calleth none Noble under the degree of a Baron and not as men of forraine Countries doe use to speake with whom every man of gentle birth is accounted noble For wee daily see that both Gentlemen and Knights doe serve in the Parliament as members of the Commonaltie 3. Howbeit in cases of forceible Entrie ryot rout Lamb. li. 4. f. 539. unlawfull assembly or such like they of the Nobility shall be tryed by xij men even as other inferiour subjects 3. 4. P. M. reported by Dallison 4. This Tryall happeneth before Iustices of the peace
sometimes upon Traverse and sometimes upon Arraignement 4. But yet some things be common to them both for if the partie charged will demurre in law upon the Evidence the Iustices ought to record his demurrer so if he will plead in justification any matter of Record that is before other Iustices they ought to give him day to bring it in Marr. So also if the Iustices thinking an Endictment to be void have discharged the prisoner paying his Fees yet upon change of their opinion they may stay him againe at any time before Iudgement Fitzh Endict 27. 5. But if he plead a pardon before them in which certaine persons be excepted and the Kings Atturney is not present to joyne issue that he which pleadeth it is one of those that be excepted then they themselves may supply the office of the Atturney in that behalfe 8. E. 4. 7. The Kings advantage 6. Whereupon also I gather this generall learning that they ought not to suffer the King to be disadvantaged where it lyeth lawfully in their power to prevent it 7. And if an Endictment bee challenged for such cause as these Iust will not allow then may they seale a Bill of that exception for the party if he will write and require it according to the statute W. 2. ca. 30. as M. Marr. writeth 8. The Traverse tooke the name of the French de Traverses which is none other then de transverso in Latine signifying on the other side because as the Endictment on the one side chargeth the partie so he on the other side commeth in to discharge himselfe For whereas the arraignement proceedeth upon him that is unwillingly brought in by Processe the Traverse is for the most part freely tendred by the party himselfe 9. To Traverse Traverse an Indictment then is to take issue upon the chiefe matter thereof which is none other to say then to make contradiction or to deny the point of the Indictment As in a presentment against A. for a high way overflowne with water for default of scowring a ditch which he and they whose estate hee hath in certaine land there have used to scowre or clense A. may traverse either the matter viz. that there is no high-way there or that the ditch is sufficiently scowred or otherwise he may traverse the cause viz. that he hath not that land c. or that he and they whose estate c. have not used to scowre the ditch 5. H. 7. 3. 10. And this libertie of Traverse is commonly restrayned to an Endictment of Trespasses contempts Riots c. and other inferiour offences within the Commission or statutes authorising the Iustices of peace and is not usually extended to Treasons or felonies as you shall hereafter see 11. And there is no doubt but that as Iustices of the peace have power to award Processe the parties also have libertie to speake for themselves and having spoken the Iustices may heare and determine of their speech whether it touch them in Freehold or otherwise 12. For although it be holden 2. R. 3. 11. 19. H. 8. 11. Fitz. tit Ass 442. and in other bookes that a man shall not be received to traverse a presentment unlesse it doe charge him in his Freehold yet Hussey and Fairefax said in 5. H. 7. 4. that a presentment not concerning freehold which is found before Iustices of the peace may be traversed For if processe be awarded the partie may come in and offer his Traverse or otherwise the processe should bee in vaine 13. Hereunto agreeth Moubray 41. Ed. 3. 26. saying further that in a Leet such a presentment is not traversable because out of a Leet no processe can be awarded upon it And this peradventure is the reason of the booke 8. Ed. 4. 5. and of M. Marrow where they say that a presentment of bloodshed found in the Sheriffes Turne and sent as it ought to be to the Iustices of the peace cannot be traversed before them as whereupon they can neither make proces nor discharge the party by way of plea. 14. So that this seemeth to be a generall learning that wheresoever any processe ad respondendum goeth out by force of such an Indictment as is traversable there also the party may offer and ought to have his Traverse against it 15. But Marr. saith that if a man be of an Enquest that indicted him of Trespasse or such like so that upon the matter hee indicted himselfe this is so strong that hee shall never bee received to traverse it 16. It is not my meaning to pester this booke with Presidents But yet forasmuch as in the record of one Traverse there is at once discovered the Stile of the Sessions the Indictment the processe to answer the Traverse it selfe the verdict and Iudgement thereupon the processe of execution the yeelding of the parties and the assessement of their Fynes so that it alone may serve in stead of all I trust it shall not be troublesome to insert it and it is as followeth Alias scilicet ad sessionem pacis tentam apud Kilmainham in Comitatu praedict dic Martis proxime ante festum sancti Mathaei Apostoli Co. Dublin Stile of the Sessions Anno Regni Domini nostri Caroli Dei gratia Angliae Scotiae Franciae Hiberniae Rex fidei defensor c. decimo tertio coram R. B. S.M. alijs socijs suis Iusticiarijs dicti domini regis ad pacem in comitatu praedicto conservandam Nec non ad diversa felonias transgressiones alia malefacta in eodem Comitatu perpetrata audiend terminand assignatis per sacramentum xij Iuratorum extitit praesentatum quod I. L. de c. R.M. de c. T.L. de c. cum diversis alijs ignotis malefactoribus pacis dicti Domini regis perturbatoribus modo guerino arraiati uniti assemblati xx die Iulij in nocte ejusdem diei anno c. vi armis videlicet baculis gladijs clipeis pugionibus falcastris alijs armis tam invasivis quam defensivis apud C. c. clausum cujusdam W. Willet vocatum B. illicitè riotosè routosè fregerunt intraverunt octo palustra foeni ad valentiam c. adtunc ibidem existentia de bonis catallis dicti W. Willet adtunc ibidem injustè et illicitè ceperunt et asportaverunt contra pacem dicti Domini Regis c. contra formam statuti inde edit provis Processe to answer Per quod praeceptum fuit vicecomiti quod non omitteret c. quin venire faceret eos ad respondendum c. posteaque sci praed die Martis proxime antefestum S. Mathaei Apostoli anno 20. supradicto coram praefat Iustic venerunt praedicti I.L. R.M. T.L. in proprijs personis suis et habito auditu indictamenti praedicti seperatim dicunt quod ipsi non sunt inde culpabiles Traverse Et de
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
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
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
offence 3.l 6 s 8.d 28. H. 8. ca. 15. in Ireland 23. Incumbents not keeping Schooles in their parishes to teach English 23 To forfeite for the first time 6 s 8.d for the second 20 s and for the third time to loose their benefices 28. H. 8. ca. 15. in Ireland Fourthly Other abuses and enormities viz.   1. Prophaning of the Sabbath by keeping Faires and markets by manuall labour by playes and haunting Tavernes and Ale-houses upon the Sabbath day 1 Imprisonment and to bee bound to the good behaviour 2. Keeping of Fayres or Markets in Churches or Church-yards 2 Fyne and imprisonment 13. E. 1. Statute de Winton 3. Depraving the booke of Common prayer by words or by writing or using any other common prayer or administration of Sacraments then is prescribed in that booke 3 For the first offence the profits of all the offendors spirituall promotions and six months imprisonment for the second offence deprivation a yeares imprisonmēt for the third time imprisonment during life and deprivation in spiritual persons For lay persons for the first offence a yeares imprisonment for the second offence imprisonment during life 2. El. ca. 2. in Ireland 4. Disturbing the Minister in execution of his function according to that booke 4 To forfeit for the first offence 100. markes or six months imprisonment For the second offence 400. markes or 12. months imprisonment For the third offence all his goods and chattels and imprisonment during life 2. El. ca. 2. in Ireland 5. Cursing and swearing 5 For every time 12. d. 10. Caroli cap. 1. in Ireland 6. Common turbulent drunkards 6 Imprisonment Fyne and bonds for the good behaviour 7. Common Adulterers 7 Imprisonment and bonds for the good behaviour 8. Keepers of common Baudie-houses and such as frequent them 8 Imprisonment Fyne and Bonds for the good behaviour 9. Keepers of common gaming houses and common gamesters 9 Imprisonment Fyne and Bonds for the good behaviour 10. Alehouse-keepers that keepe misorder in their houses 10 Imprisonment Fyne and Bonds of the good behaviour 11. The killing of yong Spawne and Frie of Samon and Eeles 11 Forfeiture of 40 s and of the Nets and Engines 10. Caroli ca. 14. in Ireland 12. The taking away of yong women under the age of sixteene yeares or marrying of them without the consent of their parents or Tutors 12 Imprisonment by the space of two yeares and if the offendor shall marry her imprisonment by the space of five yeares 10. Caroli ca. 17. in Ireland 13. Plowing by the Taile and pulling the wooll off living sheepe 13 Fyne and imprisonment 11. Caroli ca. 15. in Ireland 14. Burning of Corne in the Straw 14 Fyne and imprisonment 11. Car. ca. 17. in Ireland 15. Coshering and idle wandring 15 Imprisonment and bonds of loyaltie or of the good behaviour at the discretion of the Iustices of Peace 11. Caroli ca. 16. in Ireland 16. Selling of Wine Ale or any other liquor within any Citty or Towne Franchised by measures not sealed 16 Forfeiture 10 s 28. H. 6. ca. 3. in Ireland 17. Wearing of Irish apparell and not using the English habite and language 17 For every Lord Spirituall and Temporall 6.l 13 s 4.d For every Knight and Squire 40 s For every Gentleman or Merchant 20 s For every Freeholder and yeoman 10 s For every Husbandman 6 s 8.d And for all others 3 s 4.d for every offence 28. H. 8. cap. 15. in Ireland 18. Leasing of Corne in harvest by such as are able to labour and permitting of it by the owners 18 For every time offending to loose the Corne and to forfeit 12.d and the owner of the field that willingly shall suffer such leazers to forfeit for every time 12.d 28. H. 8. ca. 24. in Ireland 19. Such as keepe Inmates in harvest that leaze Corne. 19 Forfeiture 6 s 8.d 28. H. 8. ca. 24. in Ireland 20. The rescuing of Swine kept upon any Strand where the Sea doth ebbe and flow from him that shall sease upon them as forfeit 20 Fyne and imprisonment 11. El. ca. 3. in Ireland 21. Laying of Hempe Flax or lymed Hydes in any fresh river 21 Forfeiture of the Hempe Flax Hydes or the treble value of the same 11. El. ca. 5. in Ireland 22. Stopping or straightning of any common way 22 Fyne and imprisonment 23. Stopping or diverting of any water-course whereby any common way or passage is annoyed 23 Fyne and imprisonment 24. Casting of dung or any other thing into any common street or way which doth in any sort annoy the passage 24 Fyne and imprisonment 25. The buying of Hydes Fels Chequers Flegs Yarne Linnen cloath wooll and Flocks by Gray Merchants to sell againe in any other place but in Market or Fayre 25 To be punished as a Forestaller vide supra Forestaller 33. H. 8. ca. 2. in Ireland 26. Sheriffes letting their Bailiwickes to Farme 26 Forfeiture 40.l 23. H. 6. ca. 10. 27. Sheriffes refusing to let men to baile that are baileable 27 To forfeit 40.l to the King and treble damage to the party 23. H. 6. ca. 10. 28. Sheriffes levying Fynes or amerciaments by reason of any indictment or presentment in his Turne Court without processe from the Iustices of peace or that have not brought in such presentments or indictments to the next generall Sessions of the Peace 28 To forfeit 40.l 1. E. 4. ca. 2. 29. Undersheriffes Bailiffes of liberties and others that take upon them to returne panels or Talles or medle with the execution of processe before they take the oath for the true execution of their offices according to the statute of 10. Caroli 29 To be fined to the King in 40.l and pay treble damages to the party grieved 10. Caroli ca. 18. in Ireland 30. Undersheriffes Bailiffes and others that doe any thing contrary to the said oath 30 Fyne to the King 40.l treble damages to the party grieved 10. Carol. ca. 18. in Ireland 31. Purveyors that take any thing of the value of 40 s or under without making ready payment 31 To forfeit the value to the partie and loose his office 2. H. 4. ca. 14. 32. Artificers Labourers or lay men that have not lands worth 40. s. per annum nor priests that have not 10.l per annum that shal keep any Greyhound or other Dog to hunt or use any Ferrets Nets or other Engines to kill Deere Hares or Conyes 32 A yeares imprisonment 13. R. 2. ca. 13. 33. Constables that have not given assistance to the owners of goods to resist Purveyors that take goods under the value of 40 s without paying for the same and any of the Kings officers that have procured any to be arrested or vexed for such resistance 33 Forfeit of 20.l by the officer of the King and the Constable the value of the thing and double damage to the party 20. H. 6. ca. 8. 34. If any man have raised Huy and Cry without cause or being raised upon good cause
any evill intent happeneth to kill a man by the law of God there was a Citie of refuge appointed for such persons to flye unto Numb 35.15 22. Iosh 20.3 And by our law now this is no felony of death for he shall have his pardon of course for his life and lands but yet hee shall forfeit his goods in regard that a subject is killed by his meanes See Stamf. 16. a. b. Fitz. Coron 69. 302. 354. As if a Schoole-master in reasonable manner beating his scholler for correction only See Exod. 11. 20. 21. or a man correcting his child or servant in reasonable manner and the scholler Stamf. 12. c. childe or servant happen to dye thereof this is homicide by misadventure â—1 H. 7. 29. 6. E. 4. 7. 2. So if a man shooting at Buts prickes or other lawfull marke and by the shaking of his hand or otherwise against his will hee killeth one that standeth by Or if a Carpenter Mason or other person doth throw or let fall a stone Br. Coron 59. Tile or peice of Timber from an house or wood or other thing from a Cart c. and giveth warning thereof and another is killed thereby against his will Or if a labourer that is falling or cropping of a Tree 6. Ed. 4. 7. F. Coron 398. Plow 19. and the same or part thereof falleth and killeth a man Or if the head of his hatchet or other toole falleth from him and hapneth to kill one standing by Or if a man be in due and convenient time doing any other lawfull thing that may breed danger to such as passe by and shall give warning thereof so that such as passe by may heare and flie the perill and yet another passing that way shall be killed therewith 11. H. 7. 23. See Br. Coron 2 9. contra Or if men shall run at Tilt Iust or fight at Barriers together by the Kings commandement and one of them doth kill another In these former cases and the like it is homicide by misadventure and no felony of death 3. And yet in cases of misadventure as also where one killeth another Se defendendo by the common Law 21. E. 3. 17. Br. Coro 40. these offences were felony of death and the offendour should have dyed for the same But now by statute such offendors are to have pardon for their life and lands yet their goods remaine forfeit as before at the common Law See the stat 6. E. 1. c. 9. 2. E. 3. c. 2. 4. Also in these cases of misadventure Fitzh 246. c. 2. 8. â— Br. Cor. 1. ce fâ—at 6. E 9. 4. H. 7. f. 2. a. Regi fo 209. and in the former cases of homicide committed by Infants and other persons being Non compos mentis And also where one killeth another in defence of his person the ancient course was that they shall be discharged in this manner sc if they desire to purchase their pardon they must upon their tryall plead not guilty and shall give in Evidence the speciall matter and then this speciall matter being found by verdict they shall be bailed and then they must sue forth a Certiorari to have this record certified to the Lord Chancellor who thereupon shall make them a Charter of pardon of course under the great seale without speaking or sueing to the King for it See Stamf. 15. t. But now the usuall course is that without any Certiorari the Iustices of gaole delivery make a Certificate to the Lord Chancellor and thereupon the pardon is granted of course and in the case of Infants and Non compos mentis the Iudges receive a verdict of not guilty in which case there needeth no pardon neither is there any forfeiture of goods 5. But if a man be doing of an unlawfull Act Vnlawfull Act. though without any evill intent and he hapneth by chance to kill a man this is felony viz. Manslaughter at the least Stamf 6 c. if not murder in regard the thing he was doing was unlawfull As shooting of Arrowes Stamf. 12. c. or casting of stones into the high-way or other place whither men doe usually resort So of fighting at Barriers or running at Tilt or Iusts without the Kings commandement whereby a man is slaine And although it were by the Kings commandement yet it was holden felony by the Iustices Tempore H. 8. Br. Cor. 229. 6. Playing at hand-sword Bucklers foot-ball 11 H. 7. 2â— Crom. 26. b. 29. A. wrastling and the like where by one of them receiveth a hurt and dyeth thereof within the yeare and day in these cases some are of opinion that this is felony of death some others are of opinion that this is no felony of death but that they shall have their pardon of course as for misadventure for that such their play was by consent and againe there was neither former nor present intent to doe hurt nor any former malice but done onely for disport and tryall of manhood and this seemeth to be the better opinion 7. A man casteth a stone at a Bird or beast Fitz Coron 30â— 3â—4 and another man passing by is slaine therewith this is but manslaughter by misadventure And the opinion of Fineux chiefe Iustice in 11. H. 7. fol. 23. is that if a man cast a stone over a house and killeth a man See Numb 35. 23. Br. Cor. 229. this is no felony of death but misadventure but this is to be understood where there was no intention of hurt to any by casting thereof likewise some hold that to cast a stone for pleasure and not in lawfull labour whereby one is slaine Stamf. 12. c. 16. c. is felony of death and so was the opinion of Maister Bracton and Maister Stamford but I cannot conceive it to be any other then by misadventure when it is not done felleo animo Casuall death 8. Also a man may be slaine by other casualty than by the hands or meanes of another man as by the fall of a house or tree c. upon him or be killed by a Bull Beare or other beast c. or be killed by some fall which he himselfe taketh And in these and the like cases observe these rules 1. First if a man be slaine in any such manner yet if it be by the meanes or procurement or wilfull default of another man this shall be felony in the party procuring or causing it 2. The thing which is the cause of such casuall death shall be forfeit to the King as a Deodand and distributed in Almes by the Kings Almoner but the Almoner hath no interest as it seemeth in such goods but hath onely the disposition of the Kings Almes durante bene placito so that the King may grant them to any other See Co. 1. 50. Dyer 77. Flo. 260. 3. The forfeiture shall have relation from the stroke given so as the party or owner selling thereof sc of
such things as was cause of such death after the stroke given taketh not away the Kings right but that he shall have it as forfeited notwithstanding such sale Co. 5. 110. 4. Deodands are not forfeited untill the matter be found of record and therefore they cannot be claymed by prescription Co. 5. 120. F. Cor. 298. Stamf. 21. 5. The Iury which finde the death of the man must also finde and appreise the Deodand and the same shall be levied of the Towne where it happeneth although it were not committed to the Towne to keepe and therefore it behoveth the Towne to see it forth comming See the statute de officio Coronatoris 4. Ed. 1. F. Cor. 289. Stamf. 21. 6. If he that is so slaine be under 14. yeares of age nothing shall be forfeit to the King as Deodand for him by some opinions but I cannot conceive those opinions to be Law 7. And if a man that is unknowne be found dead in the field his apparell and money about him shall be given to the poore P. indictment 27. Stamf. 21. c. And if he were knowne then his goods shall be delivered to his executors or administrators or to the ordinary but shall not be taken as a Deodand in either case for they are not of the nature of a Deodand they being no cause of his death Dyer 77. Co. 5. 110. 8. Next what shall be forfeited and taken for a Deodand The old rule is Omnia quae movent ad mortem sunt Deodanda And yet Deodands may be of some things that a man shall move or fall from though the thing it selfe moves not Deodand quid as to fall from a ship Cart Mow of Corne or Hay c. So as Deodands are any goods which doe cause or are occasion of the death of a man by misadventure See Fitz. Coron 314. 326. 341. 342. 348. 388. 389. 398. 401. 409. 9. If a man killeth another with my sword or other weapon of mine my weapon shall be forfeited as a Deodand Doct. Student fo 156. B. 10. The inquiry of such casuall death belongeth also to the Coroner but if the Coroner cannot have the sight of the body and so cannot inquire thereof it seemeth the King shall be intituled to the goods by a presentment at the quarter Sessions or at the generall Assizes or in the Kings Bench or else the King may be defrauded Homicide upon necessitie CHAP. 15. 1. Commanded SOmetimes the Iustice of Law commandeth a man to be put to death As when the Iudge hath pronounced sentence of death against an offendour attainted by due course of Law there in execution of Iustice an officer or other person thereto lawfully deputed may orderly execute such judgement or sentence according to his warrant and such sentence or judgement pronounced by the Iudge and after lawfully executed by the officer leaveth the name and nature of murder or homicide and is called justice or rather judgement which is the lawfull execution of Iustice Stamf See Doâ— Stuâ—ent fo 133 But if the officer or other person shall proceede therein upon his owne authority without warrant or ordine juris non observato as where an offendour hath judgement given upon him to be hanged if the Sheriffe or other officer c. shall be head him or by other meanes put him to death it is felony in such officer c. 2. Also if a stranger Stamf. 13. being not thereto lawfully deputed shall upon his owne authority put to death an offendor that is condemned to dye this is felony Nay if the Iudge himselfe who gave the judgement of death upon an offendor shall after put the same offendor to death it is not justifiable by him 3. Tollerated Sometimes also the Iustice of Law tollerateth and suffereth a man to be slaine sc for the necessary execution and advancement of justice which otherwise should be left undone And in such case the Law of the land imputeth it not as any fault to him that shall so kill a man but freely dischargeth him thereof without the K. pardon As a Sheriffe Bailiffe F Cor. 261. Stamf. 13. or any other person who hath a lawfull warrant to arreast a man indicted of felony or Treason may well justifie the killing of him if he will not suffer himselfe to be arrested and yeild himselfe and that they cannot otherwise take him F. Cor. 261. Stamf. 13. And so every person whatsoever without any warrant may apprehend a felon or a Traitor upon huy and cry or otherwise and if he will not yeild to be arrested but shall resist or flie the pursuer may kill him without blame 4. Herewith also agreeth the Doctor and Student lib. 2. cap. 41. saying If any person that is no Officer would arrest a man that is outlawed abjured or attainted of Murder or of any other felony and such offend or shall disobey the arrest and by reason of that disobedience he is slaine the other shall not be impeached for his death For it is lawfull unto every man to arrest and take such persons and to bring them forth that they may be ordered according to the Law 5. An offendor in felony or Treason is led towards the Gaole and breaketh away from those that conduct him and maketh resistance or flyeth his conductors may justifie to kill him F. Cor. 288. 328. if they cannot otherwise take him againe 22. Ass 55. 6. A prisoner in the gaole attempteth to escape and having broken his Irons striketh the Gaoler comming in the night to see his prisoners and the Gaoler slayeth such a prisoner this is no felony 7. Riotters and such as shall make any forceible Entrie or deteyner Cromp. 23. 30. 158. against the statutes if they shall resist the Iustices of peace or other the Kings officers or shall not yeild themselves but shall stand at their defence when the Iustice of peace or other Officer shall come to arrest or remove them if any of them happen to be slaine this is no felony in the Iustice of peace or officer or in any of their company that killeth such Riotters c. Cromp. 24. 30. 8. The Sheriffe or his Bailiffe or other officer commeth by vertue of the Kings processe to arrest another for debt or trespasse who maketh resistance Doct. Student 133. and thereupon is slaine by such officer or any of his company this hath been taken to be no felony Stamf. 13. c. f. g. 9. But in all these former cases there must be an inevitable necessity sc that the offendor could not be taken c. without killing of him 7. H. 6. 21. 10. Also in an Appeale of felonie if the Appellant and Appellee doe joyne to try it by battell and therein the one doth kill the other as the law doth allow such tryall so doth it allow the Event to bee justifiable as depending upon the judgement of God
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
have not pursued to arrest felons Traitours or such as have dangerously hurt any man or if the Sheriffe or any of his bailiffes have not followed such Huy and Cry with horse and Armour 34 Fyne and imprisonment 35. If any person arrested or imprisoned for felony or Treason have by negligence beene suffred to escape 35 Fyne and imprisonment 36. Giving Liveries and retaining of those which are not houshold servants 36 Imprisonment Fine and ransome the retainer to loose 5.l and the party retained likewise to loose 5.l for each moneth 1. R. 2. ca. 7. 16. R. 2. ca. 4. 20. R. 2. ca. 1. 2. 1. H. 4. c. 7. 7. H. 4. ca. 14. 37. If any person having store of Corne of his owne doe buy Corne in the market 37 Fyne and imprisonment as a Regrator 8. Ed. 4. ca. 2. in Ireland 38. If any Buâ—cher Fishmonger Inne holder or other seller of victuals have not sold the same at reasonable prices and for moderate gaine 38 To loose the double value of that they received 23. E. 3. ca. 6. 39. Tile-makers that have not digged and cast up earth till after the first of November and have not turned it untill after the first of Februarie or if hee have wrought it before the first of March 39 To loose the double value 17. Ed. 4. ca. 4. 40. Tile-makers that make or any person that putteth to sale my plaine Tile under Ten Inches and a halfe in length six inches and a quarter in breadth and halfe an Inch and a quarter in thickenesse or any Roofe Tyle under 13. Inches in length and halfe an Inch and halfe a 40 For every hundred of plaine Tile 5 s for every hundred of Roofe tile 6 s 8.d and for every hundred of Gutter tile 2 s 17. Ed. 4. ca. 4. quarter in thicknesse with convenient deepnesse or any Gutter Tile under ten Inches and a halfe in length with convenient thickenesse breadth and depth  For every hundred of plaine Tile 5 s for every hundred of Roofe tile 6 s 8.d and for every hundred of Gutter tile 2 s 17. Ed. 4. ca. 4. 41. If any searchers appointed for the oversight of the true making of Tile have not done their endeavour and diligence in that behalfe 41 For every default 10 s 17. E. 4. cap. 4. 42. Disturbing the execution of the statute against Rogues and sturdy beggers c. 42 Forfeiture of 5.l 33. H. 8. ca. 15. in Ireland 43. Sheriffes that doe not appoint foure deputies at the least to make Replevins not twelve miles distant one from another 43 Forfeiture of 5. l. 10. Carol. ca. 15. in Ireland 44. Gaolers taking fees of Servants Artificers or Labourers that refuse to serve 44 Forfeiture of 10. l. to the King and 5.l to the partie 45. Libellers and raisers of scandals upon Magistrates and Ministers of Iustice and such like 45 To be bound to the good behaviour and to bee fined and imprisoned 46. CoÌ„mon Baretters Eves-droppers and sowers of disention amongst neighbours 46 Fyne and imprisonment and bonds of the good behaviour 47. Spreaders of false newes 47 Imprisonment untill the offendor produce his author and if he cannot produce an author then to be punished at the discretion of the court W. 1. ca. 33. 2. R. 2. ca. 3. 12. R. 2. ca. 11. 48. Common scolds 48 To be put on the Cocking-stoole 49. Keeping Dogges accustomed to kill sheepe 49 Fyne and imprisonment 50. Extolling of forraigne Iurisdiction in this Realme 50 Forfeiture of all the offendors goods chattels and if he have not goods to the value of 20. l. then besides the forfeiture a yeares imprisonment without baile c. 2. El. ca. 1. in Ireland 51. Hearing of Masse 51 For the first offence to bee fyned 100. markes for the second 400. markes for the third forfeiture of goods and perpetuall imprisonment 2. El. ca. 2. 52. Usury above X. per centum 52 Fyne and Imprisonment 10. Caroli cap. 22. FINIS SEVERALL PRESIDENTS COMPREHENDED under these five heads viz. 1. Of Treasons 2. Of Felonies 3. Of Misprisions 4. Of Praemunires 5. Of Finable Offences The Finable Offences being many and of severall kindes are divided into these foure parts viz. 1. Of Force 2. Of Fraud 3. Of Omission 4. Of other Abuses Also upon the Margent of every Indictment you shall finde a briefe note of the Iudgement that is to be given upon every such Indictment These Presidents doe not only concerne the exercise of the office of Clerkes of the Peace in the severall Counties of Ireland but also the exercise of the offices of the Clerkes of the Crowne of the severall Circuits and the Clerke of the Crowne in the Court of Chiefe place commonly called the Kings Bench. 1. The Indictments of Treason of severall sorts 1. The Indictment and whole Record of the attainder of Connor ô Devenne of Treason for counselling and adhering to Rebels Downess Hillarii 9. Iacobi rot primo in Capitali placea Hib. MEmorandum quod alias scilicet per quandam Inquisitionem captam apud Newry in praedicto Com. Downe decimo quinto die Ianuarij Anno regni Domini Iacobi nunc Regis Angliae Franciae Hiberniae c. nono Scotiae quadragessimo quinto coram Iacobo Hamilton mil. Fulcone Conway mil. Arthuro Magnesse mil. Hugone Mountgomery mil. Iohanne Walker Ar. Attorn dict Dom. Regis provinciae suae Ultoniae Arthuro Hawkes Ar. Marmaduco Whitchurch Iustic CoÌ„miss dicti DoÌ„ Regis assignat legitime authorisat virtute Commissionis ejusdem Domini Regis sub magno sigillo suo Hiberniae eis direct geren dat apud Dublin decimo sexto die Decembris Anno regni dicti Dom. Regis Angliae Franciae Hiberniae nono Scotiae quadragessimo quinto supradict ad inquirend ' per sacrament probor legalium hominum de praedict Com. Downe de omnibus singulis prodition murdr homicid incend illicit assemblation felon rober oppressionibus transgressionibus criminibus contempt offenc malefactis causis quibuscunque tam contra pacem communem legem dicti Domini regis vel aliquorum progenitor dicti Dom. regis quam contra formam alicujus statuti Actus ordination sive provis antehac fact edit ordinat sive confirmat per quemcunque sive quoscunque infra hoc regnum Hiberniae vel extra limites ejusdem in partibus ultra mare aliquo modo fact commiss sive perpetrat aut imposterum faciend committend sive perpetrand eaque omnia audiend examinand discutiend exequend prout per eandem Commiss pleniùs liquet apparet per sacram duodecim proborum legalium hominum Com. Downe praedict compertum existit quod cum Hugo nuper Comes Tyrone Brianus M c Art ô Neale cum diversis alijs nequissimis sceleratissimis proditoribus Dominae Elizabethae nuper Reginae Angliae Franc. Hiberniae Deum prae oculis suis non habentes nec debitum ligeautiae suae erga eandem