was not premeditate is doubtlesse within the words and meaning of this Statute â—oluntate And so much the more is that which is done in such a case of malice prepensed as I thinke For if two do sodainly fall out and thervpon draw their weapons and one killeth the other this is Manslaughter apparantly within the compasse of this Lawe So if one be in the company of him that of malice prepensed setteth vpon another to murder him and doth of a fodaine take the murderers part so that the other partie is slaine this is Manslaughter in him according as the word is commonly understoode And so is it if two play at fence or runne at the Eilte togither and one of them bee slaine For their first Acte was unlawfull vnlesse it had beene by the Queenes licence saith Fineux 11. H 7. 23. And if A doth assult B. and striketh him and whilest B. defendeth himselfe C. commeth to parte them and is slaine by A. this is Felonie in A. But if they both hadde appointed the place of purpose to méete there to fight one with the other and C. were slaine in seeking to appease them then wil it be Felonie in both the other 22. E. 3. Coro Fitzh 262 and in Dalizons reportes If the mother destroy hir childe newely borne this is Felonie of the death of a man thougt the child haue no name nor be bapfized Coron Fitzh 418. And the Iustice of Peace may deale accordingly But if a childe be destroyed in the mothers belly is no manslayer nor Felone to be imprisoned vpon this Statute Coron Fitz. 146. 263. The husband minding to make away his wife did by the aduise of B offer hir a poysoned Apple to eate the not misfrusting any thing gaue the same to hir litle daughter that stoode by in the presence of hir husbande which childe he loued well ynough that child died thereof And this was adiudged Murder in the husbande because he offred the poyson then had a wicked intet to kil on s therewith he was the originall occasioÌ„ of this death But no offence at al in the wife for the was btterly ignorant of the euill simply gaue it hir childe taking it to haue bin very good meate 18. El. Plow Com. 474. And if a man lay poyson for Kats an other taketh it at vnwares and dyeth thereof this is not any wayes to bée layed to the others charge ibid. If a mad man or a naturall foole or a lunatike in the time of his lunacie or a childe the apparantly hath no knowledge of good nor euil do kil a maÌ„ this is no selonious acte nor any thing forfeited by it 21. H. 7. 31. 3. H. 7. 1. for they caÌ„not be said to haue any vnderstanding wil. But if vpoÌ„ examinatioÌ„ it fal out the they knew what they did the it was ill the seemeth it to be otherwise If it appeare that the partie woanded or poysoned liued a yeare and a daye after the facte then is it too late for the Iustice of Peacs to coÌ„mit the offendor to prison for then it caÌ„not be though that he died by the meanes as it sémeth Cor. Fitz. 303. But it is plaine by 3. H. 7. cap. 1. That if any man be wounded in perill of death the trespassor ought to be arrested put in safe képing till perfecte knowledge be had whether the party wouÌ„ded wil liue or dies vpoÌ„ such matter within the yeare and day the Iustice of Peace shal do wel to coÌ„mit him But this is a general learning in al cases of Murder or MaÌ„slaughter the the party hurt must be dead in fruth before it be in iudgement of Lawe faken to be either of those offences for Voluntas at this day is not construed for the déede it self as in time past it hath bin put in vre Hitherto of Manslaughter the dealeth only with the Perso other Felonies stretch to goods also as Robbery the had the name at the first of Robe because he the with force spoiled a maÌ„ toke his robes or goods froÌ„ him Felonies touching the person and goods Robberie And in this kinde of Felonie the law hath no cosideratioÌ„ of the balue of the thing take because it is take froÌ„ the person so the it is Robberie though it be but worth a peny And Braeton calleth hiut Fure improbum pradone qui rapit rem alienaÌ„ And if a man without any title take my goodes againste my will lying in a place where I am present or do manace to kyll me if I giue him not my purse by meanes whereof I deliuer it vnto him it is Robberie Coron Fitzh 178 and 115. So if Théues assaulte me in the highe way for my purse and I cast it downe into a Bush as I flie from them of purpose to saue it and they take it up Certaine persons tooke a man and compelled him by manace of killing to sweare vppon a Booke to bring them certaine money and therevpon he brought it them this was taken to be Robberie 44. E. 3. 14 But if a man lie in awaite to robbe me in the high way and draweth his sword vpon me willing me to deliuer my purse and I defends my selfe so as he hath not his wil or I take him either by fight or by hue crie it is not now take to be any Felonie saith Stamford because he hathe not taken anye thing from me and so is ther an opinion 9. E. 4. 26. But the Lawe was holden to be otherwise 27. Ass Pl 28. 13. E. 4. 7. And now seing the benefite of Clergie is taken away from Pickpurses and Cutpurses by 8. Elizab. ca. 4. let them also stand in this rancke A Burglour whome Britton calleth a Burgessor that by night breaketh into a house Wyth intent to Robbe kill or doe other Felonie though he cary nothing away is a Felone 22. Assi P. 95 27. Assi P. 38. So if he do but breake open the house feloniously by night though he enter not in sayeth Staf. Fo. 30. But if this be done by day it is not taken to be Felony at this day without some further felonious acte done sayth he yet the Booke Tie Coron Fitzh 178. 185. do not make any difference Burglarie And the Statute 1. E. 6. ca. 12. taketh awaye Clergie and Sanctuarie in case where one is conuicte or attainted of Breaking any house by day or by night where anye person being in the same shall be thereby put in feare not speaking king of any other fact And Britton defineth a Burgeslour to be he that feloniously in the time of peace breaketh open Churches or other house or the walles or gates of Cities or Burghs whereof perhappes they had their first name or rather may be deriued of Bowre that is a Chamber or inner rouine and Laron a Théfe Burning of a house malitiously and wilfully was Felonie at the common Lawe as appéreth by Bracton
Sessions pag. 132 18 Of the Breache of the Peace without a Multitude or with a Multitude by forcible entrie into landes or tenementes and what one Iustice of Peace out of the Sessions may doe therein 145 19 Of other breaches of the Peace with a multitude as by Riot Rout or vnlawfull assembly c. And what one Iustice of Peace out of the Sessions may doe therein 172 20 What other things one Iustice of the Peace alone may doe out of the Sessions by vertue of Statutes mentioned in the Commission 184 21 What other things one Iustice of the Peace may doe out of the Sessions by the power of other Statutes not mentioned in the Commission 190 22 What things any two Iustices of the Peace may do out of the Sessions 227 23 What things some two Iustices of the Peace may doe out of the Sessions 246 24 What things three or moe Iustices of the Peace may do out of the Sessions 273 25 Of the Rewarde and punishment of Iustices of the Peace for things done not done or missdone out of the Sessions of the Peace 276  The Epilogue 281 The Contentes of the Chapiters in the second Booke  The Proheme 283 1 The description of the Sessions of the Peace 284 2 Who shall appoint the Sessions of the Peace and howe and where 289 3 What persons ought to appeare at the Sessions And therein of the Gâ—â—stos Roâ—â—lorâ— the Recordes of the Sessions and the Clerke of the Peace and howe the Iuroâ—â—s ought to be qualified and ordered 294 4 Of the Articles that are to be giuen in charge at the Sessions of the Peace 310 5 Of the Enditements and Presentmentes given by the Iuroâ—â—rs and of the matter and forme and receiuing and reiecting and reiecting of them 383 6 Of the Presentments and Informations of Officers and other men 403 7 Of the Impedimentes of proceding vpon Enditements before Iustices of Peace 409 8 Of the Processe vpon Enditements and Informations pag. 415 9 Of hearing vpon Confession 426 10 Of hearing by Diserection 428 11 Of hearing or Triall vpon Examination 431 12 Of Triall or hearing by Cerâ—ifieas 434 13 Of hearing or Triall by Trauerses 436 14 Of Triall vpon Araignment and therewithall of Felotâ—es 449 15 Of Iudgement 453 16 Of the Processe for the Fine of the Queene and of the assessing thereof and of Estreating for the Queene pag. 458 17 Of the Executorie Processe and execution for the parties that sue or for other persons 469 18 Of Certifying Recordes of the Sessions of the Peace to other Courts or Officers 472 19 Of the Generall of Quarter Sessions of the Peace 477 20 Of the Speciall Sessions of the Peace 500 21 Of the Rewardes and Punishments due to Iustices of the Peace in respect of their Sessions 503  The Epilogue 518 The ende of the Table EIRENARCHA Or of the Office of the Iustices of Peace THE PROHEME TO write of the Office and Duetie of Iustices of the Peace after M. Marrowe whose learned Reading in that behalf made the xviii yeare of King Henrie the seauenth is in manie handes to bée séene and after Iustice Fitzherbert who published an excellent treatise thereof which is yet euery where bée had may at the firste séeme no lesse vnaduisedly done than if a man shoulde bring Owles to Athens as the Prouerbe is or stickes into a growing Wood or Copise Howbeit if it be considered that since their time this Office is charged with manie Statutes which were not made when their wrytings were penned and if it bée weighed also that sundry things in them had theÌ„ the the force of law which now at this day they haue lost by alteration of like authoritie It cannot bée thought altogither in vayne to conferre their writings with the Booke cases Statutes that haue arisen of latter tymes and out of them all to collect some discourse that may serue for the present age wherein wée now liue and somewhat further the good endeuour of such as bée not trained up in the studie of the lawes In which doyng as I meane to robbe no man of his right but to yéeld to eche one the due prayse of his owne fearing least as the Poet sayd Moueat Cornicula risum Furtiuis nudata coloribus So if I my selfe shal be found here and there to dissent in opinion from other men I desire heartilie that my good meaning bée not euill interpreted that my allegations and reasons be weighed indifferently and that the respect of my person bring no preiudice to the thyng in question ⧠What Iustices of the Peace bee and why called Iustices CHAP. I. IVSTICES of the Peace A definition or description of Iustices of the Peace bée Iudge of Iudges of Recorde appointed by the Quéene to bée Iustices within certaine limites for the Conseruation of the Peace and for the execution of sundrie thinges comprehended in their Commision and in diuers lawes committed vnto them These and many other Iudiciall officers in our lawe be called Iustices per metonymiam subieti bicause they doe or should doe lawe and Iustices For in many olde Histories Why they be called Iustices the Chiefe Iustices of England is termed Capitalis Iustitia and Prima post Regem in Anglia Iustitia and the Originall Writtes that are in M. Glanuils Booke which was written vnder the raigne of king Henry the second haue this forme quod sit coram me vel Iustitijs meis And this no doubt was done of speciall purpose and to the ende that the mention of their name should put them in minde of their office and should continually as it were sollicite them to administer Iustice for whole sake they were appoynted But in the dayes of King Henry the third M. Bracton who reduced the body of our law into Latine and therein imitated the Methode of the Ciuile Lawyers chaunged the worde Iustitijs into Iustitiarijs how Latine like let them iudge that can skil and setteth downe the Writtes accordingly coram Iustitiarijs nostris Since which tyme not onely all our Writtes that commaund appearance before the Iustices at Westminster do vse the word Iustitiariss but all Commissions of Sewers of the Peace of Oyer Terminer and such like do obserue the same forme also And of this it commeth that M. Fitzherbert in his treatise of the Iustices of Peace calleth them Iusticers contractly for Iusticiars and not Iustices as we commonly and not altogither vnproperly do name them Of the signification of the worde Peace CHAP. II. Peace hath many significations OF the Latine worde Pax the Normans framed their Paix and we out of the that our peace which name hath sundry significations in the holy Scripture For there is an inward and an outward Peace And this inward Peace is either good or euill First then there is pax apud Deum that is to say our reconciliation made with God the father by the death of Christ his sonne who is pax
nostra and hath appeased the wrath of God for our sinnes Our of this procéedeth an other inward Peace named the Peace of CoÌ„science for that our Conscience is by faith in Christ at Peace both with God and it selfe The euill inward Peace is the same where of our Sauiour Christ spake saying pacem do vobis non quemadmodum mundus dat And this Peace the Kingly Prophet Dauid calleth pacem peccatorum bicause it is no better than carnall securitie The outward peace hath respect to other men and that is of two sortes also the one is opposed or set against all maner of striuing and contention whether it be in countenance gesture worde or worke of the which S. Paule spake to the Romans in these wordes Si fieri potest quantum in vobis est cum â—mnibus hominibus pacem habetote And in the same meaning the Latine men say pace tua by your leaue or fauour without your offence or displeasure The other is onely an abstinence from actuall force and offer of violence and is rather contrary to arma pralium and bellum which can not be without force or armes than it is lis pugna or certamen which as Laurence Valla confesseth may be nudus verbis citra arma And hereof also our Sauiour Christ spake wheÌ„ he said Non veni vt mitterem pacem sed gladium The lawe of our Realme Peace in our Lawe likewise vseth the worde Peace diuersly but yet so as it is altogether occupied about these outwarde Peaces For as Cicero said of fraudes aliter leges aliter Philosophi tollunt astutias leges quatenus manutenere res possunt Philosophi quatenus ratione intelligentia euen so may I truely affirme that in the matter of Peace the law of God which onely is the true Philosophy respecteth the mynde conscience although the lawes of men doe looke but to the bodie handes and weapons Sometymes therefore the word Peace is taken for Proctection or defence as where M. Bracton calleth the Writtes of Protection Breuta de pace Sometymes as it seemeth to me it is taken for Rightes Priuiledges and Liberties as in the othe of the Queene at hir Coronation she sweareth Seruare Ecclesiae Dei Cleri Populi pacem ex integro the meaning whereof is as I suppose that she will maintaine eche degrée and estate of hir Subiects as well Ecclesiasticall as Temporall for populus comprehendeth all the Laitie according to their seueral customes Lawes and Priuiledges And sometimes it is taken for a withholding or abstinence from that iniurious force violence whereof I spake before Peace for Iustices of the Peace And this is it that is most commonly understood by the worde Peace in our lawe and for the maintenaunce hereof chiefly were these Wardens and Iustices of the Peace first made and appointed For Iustices of the Peace were not ordained as some haue thought to the ende to reduce the people either to an vniuersall vnanimitie or agréement of mindes which is in déed a thing rather to be wished for than to be hoped after Neither is it any part of their office to forbid lawfull suites and controuersies whiche neuerthelesse be disagréements of mindes But to suppresse iniurious force and violence mooued against the person his goods or possessions And that this may appeare to be the minde or the king which first created these Wardens or Iustices of the Peace I meane King Edward the third let me shew you the Writte that he in the first yeare of his raigne and not many wéekes before the Parliamente in which the Gardeins of the Peace which afterward obtained the name of Iustices of the Peace were first ordeined did sende to the Shirifes of eche Shire in Englande bearing this forme Edwardus Dei gratia Rex Anglia Dominus Hybermae Dux Acquitaniae Vicecomiti Kanciae salutem Tho. Walâ—ugham in â—ist pag. 107 Quia dominus Edwardus nuper Rex Angliae pater noster de communi assensu Praelatorum Comitum Baronum aliorum Magnatum necnon Comunitatum totius regns praedicti spontanea volantate se aneouit à regimine dictiregni volens coÌ„cedens quòd nos tà quam ipsius Primogenitus Haeres ipsious regni gubernationem regimen assumamus Nosqúe ipsius patris beneplacito in hac parte de consilio auisamento Praelatorum Comitum Baronum praedictorum annuentes gubernacula suseepimus dicti regni Magnatum recepimus vt est moris Desiderantes igitur pacem nostram proquiete tranquillitate populi nostri inuiolabiliter obseruavi Tibi praecipimus quòd statim visis praesentibus per totam Balliuam tuam pacem nostram facias publicè proclamari vniuersis singulis ex parte nostra inhibendo sub poena membrorum ne quis dictam paecem nostram infringere seu violare praesumat sed quilibet actiones quaerelas absque violentia quacunque prosequatur secundùm leges consuetudines regni nostri Nos enim parati sumus seÌ„per crimus oÌ„nibus singulis coÌ„queretibus taÌ„ diuitiê° quam pauperiê° in Curijs nostris plenam iustitiaÌ„ exhibere Teste meipso Caledas Februarij die dominica in vigilia purificat c. This Writ I haue the rather set downe at large because it containeth a faire shewe of a foule déede I meane his attaining to the crown by the depriuation of his father But for the present purpose by this Writ it is manifestly declared that the Peace which he meant was not an vniting of mindes but a restraining of hands which is in a manner al one with that which Tullie writeth in his Oration Pro Sestio where he setteth Vis and Ius one against the other and it agreeth well with that description of Vis which M. Bracton maketh lib. 4. ca 4. saying Vis est quotiens quis quod sibideberi putat non per Iudicem reposcit Est autem interdum armata interdum inermis According to which meaning also the olde Statute of Westminister the first ca. 1. saide Let the peace of the laÌ„d be maintained in al points and common right be done to all as well poore as rich Thereuppon likewise saith the Statute 1. R. 2. ca. 2. Let the peace bee well and surely kepte that the Kings subiects may safely goe come and abide according to the lawe of the Realme and that Iustice and right be indifferently ministred to euery Subiect Finally the Statutes of 2. R. 2 ca. 41. H. 4. ca. 1 and 7. H. 4. ca. 1. Doe all in plaine spéech couple the maintenance of the Peace with the pursuing of sutes as things that may right well stand togither And therefore I conclude that this furious gesture and beastly force of bodie or hands and not euerie contention suite and disagréement of mindes is the proper subiect and matter about which the Office of the Iustices of the Peace is to be exercised Nowbeit I write not this as though I would not haue a