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
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
and I doe not see in reason but that the former should also be accessary for by the money which is given for the stolne goods the felon is as much relieved in the one case as in the other and the cases as I conceive in 27. ass p. 69. 25. E. 3. fo 39. remembred by Maister Stamford fo 43. 69. are not contrary if they be duely considered for the reason of those bookes is because the indictment or appeale was but only for receiving the stolne goods without speaking of relieving the felon but if the Indictment had beene for relieving the felon the buying of the goods knowing them to be stolne would have beene good Evidence to maintaine the indictment Cromp. 4â— 30. A man buyeth stolne goods for 5. s. which are worth 20. s. this maketh the buyer an accessary by the opinion of Maister Crompton fo 43. for it may well appeare by the price that the seller came not truely by them and therefore it is safe to lay hold of such sellers as shall sell any thing at any great under value 31. Taking agâ—ine stolâ—e goods Br. Cor. 2â— A man pursueth and taketh a felon that hath stolne his goods and then taketh his goods againe and suffereth the Theife to escape he is no accessary thereby by some opinions for hee may in initio agere civiliter or criminaliter at his pleasure as Maister Bract. writeth Cromp. 37. 41. 42. but Maister Stamf. fo 40. saith If he takes his goods againe from the felon to favour him this is theft boot the punishment whereof in ancient time was of life and member but at this day by Maister Stamford fol. 40. It is but ransome and imprisonment Cromp. 41. P.R. 131. Br. Cor 121. 42. Ass p. â— Dalton pag. 262. The like seemeth to be if he takes his goods againe from the felon and then favoureth him and letteth him goe but if the party robbed take money c. of the thiefe to the end he shall favour him or shall not give Evidence against him whereby the thiefe escapeth now he is an accessary to the felony of his owne goods by good opinion though some other seeme to take this for theft boot and so to be punishable at this day only by ransome and imprisonment 32. If the party robbed or if he that shall have any goods stolne from him after complaint by him made of the felony to a Iustice of Peace or to the Constable shall then take his goods againe and will not prosecute this matter against the felon any further but will suffer him to escape after he was once so charged and perhaps arrested for the same this maketh him an accessary for that he did once agere criminaliter by complaint made to the officer against the felon and in such case the Iustice of Peace shall doe well either to commit or at least to binde over both the one and other to the next Goale delivery 33. But if upon Huy and Cry a man doe arrest a thiefe that hath stolne another mans goods 22. Ass 62. and doe then take the goods from the felon and so let him goe this maketh him an accessary to the felony and also a principall felon for the voluntary escape 34. Note in all cases of an accessary after the fact it is requisite that the fact Stamf. 287. to which he is an accessary be a felony at the very time in which he becommeth an accessary to it For if A. giveth a mortall wound to B. upon the first of March and C. knowing thereof receiveth c. A. 2. or 3. dayes together and letteth him goe and after B. dyeth of the wound within the yeare yet this receipt c. maketh C. no accessary because the principall fact was no felony at the time either of the receipt or of the letting him goe P. Trial. 2. 35. By the statute of 10. Caroli ca. 19. in Ireland accessaries may be to a felony done in another County Stamf. 41. fo 63. li. whereas before that statute the common law laid no hold of such accessaries for that these in another County upon the triall could not have conusance of the principall offence c. But now by the said statute there shall be a Certificate from the Custos Rotulorum of the County where the principall shall be attainted or convicted Stamf. 44â— 36. Note that if an offence bee made felony by statute although the same stat doth not expressely make mention of procurors counsellors abettors receivers consentors and aiders c. yet they shall be taken as accessaries within the compasse of the same statute even in the same manner as if it were felony at the common Law 37. A man may be an accessary to an accessary as if hee shall receive 26. Ass 52. F. Cor. 196. releive or comfort him who is accessary to a felon knowing the same P. Appeal â— Co 4. 43. 9. 117. 119. Plo. 98. 99. 38. Although the accessary shall bee punished and shall have judgement of life and member as well as the principall which did the felony yet the principall ought first to be attainted after verdict or after confession or by Utlary before any judgement can be given against the accessary and the acquittall of the principall is the acquittall of the accessary for ubi non est principalis non potest esse accessarius but yet the accessary shall bee attached and surely kept and shall be committed by the Iust of Peace c. untill the principall be attainted 39. And if the principall be attainted though erroniously that shall not availe the accessary but he must answer c. Co. 9. 68. b. 119 Co. 4. 43. 44. F. Cor. 166. 378. Vide Br. Coro 70. 71. 80. 83. 86. 132. 40. If the principall dye before he be attainted or if the principall be found not guilty by verdict or be found by verdict that hee slew the other in his owne defence or if after conviction and before judgement he hath his Clergie or getteth his pardon the Accessarie in all these cases shall be discharged but it is not safe for the Iustice of Peace to dischardge such an accessary out of Sessions Cromp 34. b 41. A man killeth another se defendendo or by misadventure and it is so found upon his triall the accessary shall be discharged for that in these cases the principall shall not have judgement of death Et omne accessar sequitur suum principale See Br. Forf 13. Certaine rules concerning felonies CHAP. 25. 1. IF a man committeth felony in the time of one King Rules concerning felony 1. E 6. Br. Cor. 178 he may be charged and arraigned for it after in the time of another King 2. If a man doe commit murder steale goods or doe any other felony in one County and then flyeth into another County 13. Ed. 4. 9. and is taken there and brought before a Iustice of
Prisots reason they may seise such goods 10. Co. 11. 30. 38. Conviction in felony is where a man being indicted of felony upon his arraignement submitteth himselfe to be tryed by the Countrey P.R. 179. and then is found guilty by the verdict of twelve other Iurors Or shall confesse the offence upon his triall or is outlawed for the same Co. 1â— 30. Also conviction in all other offences by the common Law is where the offendor is indicted or the offence presented by a Iury whereto the offendor pleadeth Not guilty and is found guilty by the verdict of twelve other Iurors 11. And yet by diverse statutes you shall finde that an offendor may be convicted out of Court either upon the view and record of the Iustice of peace Or by the confession of the offendor or upon examination of witnesses before one or two Iustices of peace and that out of the Sessions 12. And sometimes by confession or examination of witnesses in Court without any verdict taken See Crom. 130. 131. Br. Confes 32. And in some cases conviction shall be taken for attaineder see Co. 11. 59. 60. 13. The difference betweene attainder and conviction Co. 11. 58. Stamf. 138. 185. b. in case of felony is the person attainted hath judgement of death given upon him The person convict before judgement prayeth his Clergy and hath it c. Or after verdict confession or outlary the felon is said to be convicted till judgement be given 14. And so a man is properly said to be indicted when the offence is first found by the great Enquest or other Iury of Enquiry 15. Convicted when the offendor is found guilty by a second Iury. 16. Attainted when after such conviction judgement is given against the offendor Examination of felons and Evidence against them CHAP. 27. 1. VVHen any person shall be brought before a Iu. of P. for Treason 10. Caroli c. 18. in Ireland murder manslaughter or any other felony wherewith the Iu. of P. may deale or for suspition thereof before the Iustice shall commit or send such offendor to prison he shall take 1. The examination of such offendor in writing but not upon oath 2. The information of such as bring him viz. he shall take their examination and information of the fact and circumstances thereof upon oath And so much thereof as shall be materiall to prove the felony he shall put in writing within two dayes after the said examination 3. Also the same Iu. of P. shall binde all such by recognisance as doe declare any thing materiall to prove the treason or felony to appeare at the next generall gaole delivery to be holden where the triall of the said felony shall be to give in evidence against such offendors 4. And then the same Iustice shall make his Mittimus to carry the offendor to the Gaole 10. Caroli c. 18. in Ireland 5. Or if such offendor be baileable and that there be two Iustices of P. present together the one of them being of the Quorum after such examination and information taken and put in writing the said Iu. of peace may baile such prisoner 6. And the said Iu. or Iustices of P. shall certifie at the next generall gaole delivery such examination information recognisance and bailement 7. And if any Iu. of P. shall offend in any thing contrary to the true intent and meaning of this statute the Iustices of gaole delivery in their discretions shall fine every such Iustice of peace 8. And yet for petty Larcenies and felonies the offendors in the County of Dublin may be tryed at the quarter Sessions and the examinations and informations may be certified thither and the Informers bound thither 9. For the forme of the recognisance the forme of the Mittimus and the forme of the bailement See postea in the title of warrants and presidents 10. It the offendor upon his examination before the Iustices of P. shall confesse the matter it shall not be amisse that the offendor subscribes his name or marke under such confession made by him 11. If the offendor confesseth the felony before the Iustice of peace and notwithstanding he letteth him goe without committing or bailing of him this seemeth to be a voluntary escape and so felony in the Iustice Cromp. 39. 44. 12. Also if any person shall be brought before a Iustice of Peace and charged with any manner of homicide other than that which shall be done in the orderly execution of Iudgement as if it were done se defendendo or by casualty which are not felonies of death or done by an infant a lunaticke or the like yet it is the Iustices part and safest for him to commit the offendour to prison or at least to joyne with some other in the bailement of him if the cause will suffer it to the end the party may be discharged by a lawfull tryall 13. Children may be examined to prove a felony against their parents and bound to give Evidence for the sonne and daughter of Elizab. Device a witch were not onely examined by the Iustice of Peace against their said mother and the said examinations certified and openly read upon the arraignement and triall but the daughter also was commanded and did give open Evidence against her mother then prisoner at the Barre And by the statute of 10. 10. Carol. ca. 19. in Ireland Caroli in Ireland the Iustices of peace are to binde by recognisance to give Evidence all such as doe declare any thing materiall to prove the felonie 14. It appeareth in the booke of the discovery of witches By an Infant that two children the one about 9. yeares of age the other of 14. did upon their oathes give Evidence against the prisoners upon their arraignement And likewise at an Assise at Downe a murder was discovered and the murderer condemned upon the sole evidence of a child of about 10. yeares old and the murderer after she had received her judgement confessed the fact with all the circumstances according as the child had declared the same 15. Two informe against another in matter of felonie By persons discredited and they varie in their tales viz. in the day and place when and where the felony was committed such information is not much to bee credited See the storie of Susanna 16. He that is examined Cromp. 100. if part of that he speaketh be proved to be false Dalton pag. 271. he is not much to be credited in the residue of his information and therefore we shall find in 16. Ed. 4. that a man who was produced as a witnesse in the Chancery in his deposition was found to sweare falsely in part and thereupon his testimony was utterly rejected 17. A man attainted of perjurie and after pardoned and restored such a persons information is not much to be credited against a prisoner for the old saying is Once forsworne ever forlorne 18. A man attainted of conspiracie or forgerie shall
levied upon the husband for the husband shall never be charged for the Act or default of his wife but when he is made a party to the action and judgement given against him and his wife Co. 9. 72. Co. 11. 61. 2. H. 7. 16. 5. Diverse doe enter with force to the use of A. who is not then present with them but doth after agree thereto this agreement after maketh A. to be a disseisor Br. force 25. but not to be punished for the force and if A. had counselled consented or agreed thereto before the Entrie yet it seemeth that a commandement consent or agreement before or after though it may make one a disseisor yet it is not to be punished by the Iustice of peace upon these statutes Consent for that a forceible Entrie cannot be adjudged against a man without an actuall Entrie be also made by him or that at least he be present 6. But if A. that shall command or counsell others thereto shall also be present at the time of the Entrie Dalton 182. although he doth then nothing yet he is now become a principall and punishable by these statutes 7. If diverse doe come in one company to enter into lands c. where their entry is not lawfull Dalton 183. and all of them saving one did enter and demeane themselves in peaceable manner and one only doth enter with force or after entry made doth use force and violence this shall be adjudged a forceible Entrie in them all although the force were against their wils Co. 9. 67. 112. 11. 5. for where diverse doe come in one company to any place to the intent to doe any unlawfull thing be it robbery homicide ryot affray or any trespasse here every one of them shal be adjudged a principall doer although they stand but by and doe nothing So it seemeth though some of them come without any intent of evill if they came together in company with the other offendors or if they came after yet if they be either ayding or countenancing to the offendors they shall be also adjudged principall doers aswell as the other 8. An Indictment upon the statute of 8. H. 6. for the King The personâ— put out Co. 1. 46. 10. 112. is not good for the King cannot be disseised nor put out of his freehold neither can the King bring any action upon the statute of 8. H. 6. nor any other action which might prove him out of possession of the land 9. And if the K. termor be put out by force The Kings Tenant Dalton 183. Cromp. 69. he cannot preferre a bill of indictment upon the statute of 8. H. 6. that he was put out and the King disseised But he must have an Information of Intrusion in the Exchequer 10. Dalton 183. Yet it seemeth that upon complaint made to a Iust of peace by the K. termor of any such force the Iustice of peace ought to remove the force and upon his view thereof to record it and to commit the offendors to prison and may fine them and after such force removed the Kings termor may presently reenter if he can in peaceable manner 11. If a forceible entry Lesseâ— for yeares Coppiholdâ—â— or deteiner shall be made upon any Lessee for yeares Tenant at will or upon a Coppiholder whether it be by an estranger or by the lessor or by the Lord the Iustices of peace upon their view thereof are to remove such force Dalton 183. and may commit to prison the parties which made such entry or which shall hold it with force and may fine them but whether the Iustice of peace may make such restitution and set them sc the Lessee for yeares Tenant at will or Coppiholder into their possessions againe hath beene much questioned But now by a statute made in Ireland in 10. Caroli ca. 13. restitution shall be made to Tenant for yeares Tenant at will Coppiholder Tenant by Elegit or statute merchant or of the staple 12. Some held opinion that before this statute the Iustice of peace may put them in possession againe and of this opinion was Maister Marrow and Maister Lamb. and to maintaine this opinion these reasons may be given 1. First for that the words of the statutes seeme to warrant it for the statute 15. R. 2. in the Preamble thereof as also the stat 8. H. 6. in the body thereof hath this word possessions which word most properly doth extend to a lease for yeares c. 2. Again that clause of the stat 8. H. 6. which provideth for the restitution is thus if it be found that any doth contrary to this statute then the said Iustice c. shall put the party so put out in full possession c. 13. Now it cannot be denied but that he which by force expulseth Lessee for yeares tenant at will or a coppiholder doth contrary to this statute also they bee the parties put out and the same mischiefe and inconvenience which these lawes do labour to remove is to Lessee for yeares tenant at will and to the coppiholder Co. 11. 33. 34. Plo. 178. And we may finde it usuall that where statutes are made for to remedy any common mischiefe there to help things in the same degree one action thing place and person hath in construction beene taken for another and a good expounder saith Sir Ed. Co. 11. 34 maketh every sentence to have his operation to suppresse all the mischiefes before the said Act and principally those that are specified in these acts Co. 3. 7. 12. 73. 14. And againe saith he it is the office of the Iudges alwaies to make such construction of statutes as may represse the mischiefe and advance the remedie and to suppresse all evasions which may continue the mischiefe and to adde force and life to the cure and remedy according to the true intent of the makers of the statute Co. 11. 73. b. Co. 3. 7. 15. Others held the contrary sc that Lessee for yeares nor a coppiholder or tenant at will cannot have restitution by the hands of the Iustice of Peace and this was the common opinion their reason is for that the words in the statute of 8. H. 6. in that clause which specially provideth for the restitution are thus The said Iustices c. shall reseise the said lands or tenements and thereof shall put the party so put out in full possession c. which words lands or tenements are only to be understood of them that have inheritance Rast 174. or a freehold at the least but to this it may be answered that the said statute of 8. H. 6. in the body thereof hath these words where any doe make any Forceible Entry into lands tenements or other possessions or them hold forceibly c. which words possessions extendeth to a lease for yeares c. And then the words possessions being in the same statute we shall
and every Iustice and Iustices of Assize shall for ever hereafter in their severall circuits respectively have the like power and authority to all intents and purposes to inquire heare and determine of all forceible Entries and forceible holding and all other offences aswell against the said statute of Octavo of King Henry the sixt as against this present statute and to award restitution of possession in all cases as any other Iudge or Iustice or Iustices of the peace could or may doe by this Act or by any other Statute of force within this Realme 23. Now to shew something more what the Law accompteth to be force and what weapons Weapons be offensive in these and the like cases Master Bracton saith Omnes illos dicimus armatos Dalton 186. qui habent cum quo nocere possunt and therfore to have harnesse guns Bowes and arrowes Crosbowes halberts Iavelins bils clubs pikes pitchforkes or swords not usually borne by the parties shall be said to be vis armata 24. Againe Si quis venerit cum armis dejecerit vis tamen armata dicitur sufficit enim terror armorum Si quis venerit sine armis in ipsa concertatione ligna sumpserit fustes aut lapides vis dicitur armata 25. And so to use casting of stones hot coales scalding water or lead or any other thing wherewith one may hurt the person of another shall be said to be vis armata 26. Next where a force Lawfull force or forceible defence is justifieable and where not 27. Force being opposed against the Law is utterly forbidden but being used in the maintenance of the Law and with the warrant of Law it is allowed for that it mainetaineth the peace of the realme P.R. 41. Dalton 186 And therefore force may lawfully be used by all the Kings officers ministers and subjects thereunto deputed for the execution or advancement of Iustice or of the judgements of the Law 28. And so first it is a lawfull force Ibid. whereby all offendors in Treason felony and other great crimes be pursued apprehended carryed to prison and receive their condigne punishments 29. Ibid. It is also a lawfull force whereby the Sheriffe and his officers doe apprehend any person by vertue of the Kings writ 30. 3. H. 7. And so it is a lawfull force whereby Iustices of peace doe remove unlawfull entries or holdings of possessions Br. Riots 73. and represse Riotters and doe arrest and send to prison such offendors And in these and the like cases the Kings officer scil the Sheriffe Iustice of peace and Constable may take the helpe of others what number they shall thinke meete to assist them when need shall require 31. Also it is a lawfull force which Iustices of peace Sheriffes Dalton 186. Coroners and Constables shall use in apprehending or committing to prison such as within their severall jurisdictions and in their presence shall in any sort breake or attempt to disturbe or breake the peace and they may therein take the assistance of others as aforesaid 32. Also in these cases following it is lawfull for the K. officers P.R. 41. by force to breake open a mans house to arrest offendors being therein if the doores be all shut so as the officer cannot otherwise enter the house viz. 33. For the apprehending of any person for treason felony Co. 5. 92. or suspition of felony or Treason 13. E. 4. 9. Br. Coron 159. Dalton 187. 34. Where one hath dangerously wounded another and then flying into an house the Constable or other officer upon fresh suite may breake open the doore and apprehend the offendor and so may any other person besides the officer as it seemeth 7. E. 3. 19. Crom. 171. Ibid. 35. Where there shall be an affray made in a house and the doores shut the Constable c. may breake into the house to see the peace kept Ibid. 36. So upon a forceible Entrie or detainer found by Inquisition before any Iustice of peace or viewed by the Iustice himselfe or the Sheriffe by his warrant may breake into the house to apprehend the offendors Ibid. 37. Upon a Capias utlagatum in any personall action as also upon a Capias pro fine directed to the Sheriffe the Sheriffe may breake open the doores c. Ibid. 38. Upon a warrant for the peace or good behaviour the Constables may breake open the house by the opinions of Popham and Clerke Iustices of Assise at Cambridge Assises 3. Iac. Reg. 39. Lastly in all cases where the K. is a party or hath Interest in the businesse Co. 5. 91. 13. Ed. 4. 9. the officers may breake open the doores as aforesaid For no mans house shall be a Castle against the King Co. 5. 91. And yet the Sheriffe nor his officers may not breake open any mans house to execute the Kings proces upon the body or goods of any person at the suite of any subject Co. 5. 92. 95. 40. But when a house is recovered by any reall action or by ejectione firmae there the Sheriffe may breake the house and deliver seisin or possession to the demandant or plaint for after judgement it is no more in the right or judgement of Law the house of the tenant or defendant Co. 5. 91. 41. But note that the officer before he breake open the house or doores of any person Co. 5. 91. he must first signifie the cause of his comming and desire that the doores may be opened unto him Co. 5. 91. 11. 82. 21. H. 7. 39. 42. Note also though no man may forceibly keepe his house against the Kings officers in the cases aforesaid yet every mans house is to himselfe Forceible de fence lawfull his familie and his goods as his Castle aswell for his dâ—fence against injury and violence as also for his repose and rest And therefore the Law doth give to dwelling houses diverse priviledges 1. First that it is a mans Castle for his defence as aforesaid 2. Also a mans house hath the priviledges to protect him against any arrest by force of any processe at the suite of any subject as aforesaid Co. 11. 8. 3. A mans house in some cases hath a priviledge against the Kings prerogative for it hath beene adjudged that Saltpetermen cannot dig in the mansion house of any subject without his assent in regard of the danger that may happen thereby in the night time to the owner his familie and goods by theeves and other malefactors Co. 11. 82. 4. If Theeves shall come to a mans house to rob or murder him Co. 5. 91. 11. 82. he may lawfully assemble company to defend his house by force and if he or any of his company shall kill any of them in defence of himselfe his familie his goods or house this is no felony neither shall they forfeite any thing therefore 5. Cromp. 70 Also a man that is
Sheriffes Bailiffes Constables Provost Marshals and other his Majesties loyall subjects are required to be ayding assisting and helpfull to every Iustice of peace and Iustices of Assize in the apprehending of the said Cosherers and wandring Idlers when they shall be thereunto required upon paine of such fine or fines to be set upon them for their neglect as upon conviction before the Iustices of peace or before the Iustices of Assise at their discretion shall be set upon them for their said default 30. Both which last mentioned statutes are in a manner but a declaration of the common Law for the constant course in Ireland hath ever beene at the generall Sessions of the peace and at the Assises to enquire of such Idlers and to fine and imprison them untill they shall finde surety to betake themselves to some honest labour or else to be bound to their good behaviour at the discretion of the Iudge 31. So likewise at the common Law if a man had taken my servant from me I might have had an action of Trespasse Quare vi armis c. but if he had procured the servant to depart who did depart accordingly and he retained him or if he had departed of his owne head and another had retained him knowing of the first retainer an Action did not lye at the common Law Quare vi armis c. but an action upon the case did lye upon the departure by such procurement and in case where the servant did depart without any such procurement and was retained by another 11. H. 4. 21. 22. there no action at all did lye by the common Law and therefore the said statute of 23. Ed. 3. was made which gives an action in these cases 11. H. 4. 21. 22. Co. lib. 11. fo 86. 32. Likewise by the common Law no man may be prohibited to worke in any lawfull trade for the Law abhorreth Idlenesse Coke lib. 11. fo 86. 33. Also by the common Law no man is prohibited to use diverse misteries or Trades at his pleasure and although this was prohibited by the statute of 37. Ed. 3. cap. 6. yet shortly after at the next Parliament that restraint of free Trade being found prejudiciall to the common wealth it was enacted againe that all persons should be as free to use severall Trades as they were at anytime before Co. lib. 11. fo 54. as appeares by the statute of 38. Ed. 3. ca. 2. and therefore without an Act of Parliament no man may be restrained either to worke in any lawfull Trade or to use diverse mysteries or Trades by any ordinances or by-lawes made to restraine the same but such by-lawes and ordinances are meerely voide and against the law 34. Also it is lawfull for any person to use privately any Trade as of a Cooke Brewer Baker Taylor or such like in his owne house or in the house of any other for the private use of the family although such person were never Apprentice to the Trade Who are compellable to serve by the statute 35. By the statute of 23. Ed. 3. and the rest of the statutes above mentioned a Iustice of peace may command vagrant persons to prison if they will not serve and labour and they may command the Gaoler to let them at large without other writ Fitz Na. Br. fo 168. b. and if a man be retained in service and goe vagrant out of his service another man may compell him to serve or labour because he is out of service Fitz. Na. Br. fo 168 b. Fitz. Na. Br. fo 168. 1. 36. He which hath not lands sufficient of his owne to manure or hath not some mistery or occupation to live upon shall be compelled to serve and labour by the said statute of 23. Ed. 3. Fitz. Na. Br. fol. 168. i. 37. In an action upon the statute of Labourers the defendant saith that he holdeth land for which he ought to doe certaine dayes works yearly to the Bishop of D. at his Mannor of S. and demands Iudgement if he shall be compelled to serve and the plaintiffe saith that he had but six acres for which he shall pay but six dayes worke upon which the defendant demurred in law and it was awarded by the Court that the plaintiffe shall be barred of his action the reason is 40. Ed. 3. 39. that if he shall bee retained with another it will not be lawfull for him to depart from him to doe the six dayes worke Brooke Lab. 5. nor to doe any worke 40. Ed. 3. 39. Brooke Labourers 5. 38. An Infant of the age of five yeares is not compellable to serve by the said statute by reason of his disability of body 41. Ed. 3. 17. Brooke Lab. 6. for the statute requireth that he should be potens in corpore 41. Ed. 3. 17. Brooke Labourers 6. 39. In an action of false imprisonment the defendant justifieth being Lord of the tenant because the plaintife was vagrant and I.N. complained for lacke of a servant and required him to serve and he would not wherefore he put him in the Stocks and the plaintiffe said that he had two Acres of land five sheepe and ten Cowes to the value of 20. l. to be occupied and the defendant said that hee had but a cottage and no land and so not sufficient to be occupied and the other said and maintained that he had sufficient Chattels to bee occupied and thereupon the issue was joyned 47. Ed. 3. 18. Br. Lab. 14. which proves that if his Chattels were sufficient to imploy him in labour he is not compellable to serve as a servant 47. Ed. 3. 18. Br. Lab. 14. 40. An action was brought upon the statute of Labourers against a litle Damosell of the age of ten yeares upon retainer and departure and the plaintiffe declared against her and the defendant said that she is but of the age of Ten yeares and demanded Iudgement of action and because it appeared to the Court by inspection that shee was not of age to make a Covenant therefore the writ was abated 2. H. 4. 5. Br. Lab. 19. and there Rickhill said that she is not of age to bind herselfe by Covenant ante annos nubiles that is to say before the age of 12. yeares 2. H. 4. 5. Br. Lab. 19. 41. In an action upon the statute of Labourers 7. H 4. 5. Br. Lab. 20. it was said that the statute of Anno. 23. Ed. 3. cap. 1. is that quilibet potens in corpore ought to serve and by Hankford an Infant of 12. yeares retained ought to serve 7. H. 4. 5. Br. Lab. 20. 42. A man brought an Action upon the statute of Labourers for taking his servant out of his possession 38. Ed. 3. 5. Br. Lab. 24. the defendant said that the servant is an Infant under the age of Ten yeares and because the plaintiffe could not gainsay it he was barred of his action 38. Ed. 3. 5.
Br. Lab. 24. 43. An Artificer as a Carpenter Taylor Shooemaker and such like shall not be compelled to serve by the statute of husbandrie contrarie of servants of husbandrie and therefore in an action of debt brought by the Carpenter Taylor or such like for his wages the master may wage his law but not in an action brought by a servant in husbandrie and yet if a Carpenter Taylor Shooemaker 33. H. 6. 14. Br. Lab. 36. or other Artificer will be retained in service and depart an action lies of the departure although that they shall not be constrayned to serve for the first Article of the statute of Labourers 23. Ed. 3. compels servants of husbandrie to serve and the second Article ordaines that if any retained in service depart from his master an Action shall lie of the Departure 33. H. 6. 14. Brooke Labourers 36. 44. In an action upon the statute of Labourers if the defendant were vagrant and was required to serve and refused by Martin if he be retained with one to serve by the day and is required by another to serve by the yeare there he shall serve the first the day which he was hired and after that day ended he shall serve the other by the yeare but if he be retained for twenty or forty dayes and be required by another to serve by the yeare he ought to serve the latter for a retainer by twenty or forty daies is no usuall retainer but otherwise it is of a retainer by the day 11. H. 6. 1. Br. Lab. 49. and by him if a man be retained for a yeare and after is vagrant and doe not serve accordingly there if another him require to serve he ought to obey that request 11. H. 6. 1. Brooke Labourers 49. 45. A servant shall be compelled to serve in Summer in the place where hee served in Winter before and the Lords of the Towne and Iustices of peace may command vagrants to prison which will not serve Fitz. Na. Br. fo 168 f. Br. Lab. 51. and if a man retaine a servant for forty daies and another retaine him for a yeare within the forty dayes the first retainer is thereby discharged because the first retayner was not according to the statute What is a good retainer within the statute and what not 3. H. 6. 23. Br. Lab. 1. Fitz. Na. Br. fo 168. f. Br. Lab. 51. 46. If a man retaine a Labourer to serve him in husbandrie according to the forme of the statute this is a good retainer although no wages be mentioned but it is otherwise if a man retaine a Carpenter to make a Mill or such like for in the one case the wages is certaine by the statute and not in the other 3. H. 6. 23. Br. Lab. 1. 47. An Action upon the statute of Labourers was brought against one which was retained in the office of an Imbroiderer who departed within the Terme 47. Ed. 8. â—â— Br. Lab. 15. the defendant demands Iudgement of writ because the statute doth extend only to servants and labourers and not to Artificers but this exception was not allowed whereby it appeares that this was a good retainer according to the statute 47. E. 3. 22. Br. Lab. 15. 48. An Action upon the statute of Labourers was brought against a Chaplaine who had covenanted to be Seneschall to the plainetiffe and Chaplaine of such a parish Church for that he departed within the Terme and as to the office of Seneschall it was adjudged that the Action is well brought 50. Ed. 3. 13. Br. Lab. 16. but as to the Chaplaine the Action doth not lie for that he is neither common Labourer nor Artificer but is the servant of God and therefore as to that he was discharged 50. E. 3. 13. Br. Lab. 16. 11. H. 4. 42. Br. Lab. 23. 49. A retainer upon condition is a good retainer within the said statute â—8 Ed. â— 12. Br. Lab. 25. Fitz Na. Br. fo 138. h. 11. H. 4. 42. Br. Lab. 23. 50. If a man that is insufficient and not able to keepe a servant retaine a servant to serve him by the yeare this is no good retainer 38. Ed. 3. 12. Br. Lab. 25. 51. An Action upon the statute of Labourers was brought and the defendant said that he was retained to collect the rents of the plaintiffe without that that he was retained in the office of a labourer and this was adjudged a good plea for the statute is only of those which may be required to serve as Labourers 19. H. 6. 53. Br. Lab. 28. and that is not a Collector of rents for it is not reasonable that a man should be compelled to be accomptable 19. H. 6. 53. Br. Lab. 28. 52. If a man retaine a servant to serve in his house 21. H. 6. 9. Br. Lab. 29. that is a good retainer although he doe not expresse in what office he shall serve that is to say a fervant in Husbandry Cooke Butler horsekeeper or such like 21. H. 6. 9. Br. Lab. 29. 53. By Markham and Ascue Iustices an Infant may bind himselfe a Prentice but Newton and Paston Iustices say that is by custome and not by the common Law and it is there agreed that one may be constrained by the statute to serve but not to be an Apprentice and by Paston if an Infant be retained to serve an Action upon the statute of Labourers is brought against him it is a good plea for him to say that he is an Infant but by Markham that is 21. H. 6. 33. Br. Lab. 30. where he is under the age of 14. yeares for at the age of 14. yeares he is potens in corpore according to the statute and therefore such retainer is good 21. H. 6. 33. Br. Lab. 30. 54. If I retaine a servant for a yeare and so from yeare to yeare taking for his wages according to the statute and if he serve Eight yeares he shall have an Action for his wages and he may not depart without reasonable warning but where he is retained for one yeare and continueth for Eight or Ten yeares now the first retainer shall serve for all and is but one retainer within the statute for all the yeares 38. H. 6. 14. Br. Lab. 36. 38. H. 6. 14. Br. Lab. 36. 55. If I retaine a servant to serve me by the yeare at any time that I shall require him this is no good retainer within the statute 22. H. 6. 30. Br. Lab. 31. 22. H. 6. 30. Br. Lab. 31. 56. An Action upon the statute of Labourers for taking of the plainetiffes retained servant the defendant said that the servant made the Covenant by dures and was within age and the defendant had 20. l. land and the servant is his Sonne and heire apparant and by Babington if such a sonne make a Covenant to serve this is a good retainer although he were heire apparant to 100. l. land And if he were of
usually weare or shall make any use of such weapons as he doth find in the house to defend his possession therewith these are forceible Deteiners within these statutes 33. If a man that hath peaceably entred into an house will bestow men with force scil with harnesse Ibid. guns or other weapons in some other house or place not farre distant to the intent that they may be ready to assault such as shall enter upon him this is a deteiner with force Cromp. 69. 34. So is it if the disseisor of a house or land shall forestall the way of the dissesee with force and Armes so that the disseisee dareth not enter nor come neere thereto for feare of death c. Dalton pag. 35. So is it if a man shall keepe his cattell in another mans ground by force P.R. 39. claming Common there when he hath no Common in this case the Iustice of peace upon complaint to him made may remove this force And upon view thereof may record it and may commit such offendors to prison and may fine them but cannot award restitution By words 36. Also there may be a forceible deteining of possession by word only without any forceible Act. Cromp. 70. P.R. 39. 37. As if A. hath wrongfully though peaceably entred into the house or upon the land of B. and hath put out B. and shall presently threaten or say to B. that if he doe come thither againe to enter he will kill him This seemeth a forceible Entrie by A. and if B. shall afterwards come againe to make his Entrie and then A. shall threaten to kill him if he entreth there this is a forceible deteiner in A. 38. And it seemeth that to threaten to maime beate or to doe other bodily hurt to B. in the case aforesaid amounteth to a forceible Entrie or deteiner for that death may ensue upon such beating or hurt See 39. H. 6. 50. 7. E. 4. 21. 39. H. 6. 50. 39. But to threaten to burne the house or to spoile his goods therein if B. shall come thither to enter againe this seemeth not to amount to any such matter Br. Dures 9. 12. 16. for that B. may afterwards have his action for the burning of his house or spoyling of his goods and shall thereby recover damages to the value thereof c. 40. Also when B. shall come to make his Entrie as aforesaid Cromp. 70. if A. shall say to him that he will not open the doore this is no forceible deteiner 41. So it is if A. be in possession of a house Cromp. 73. or hath a lease thereof at the will of B. and after B. entreth into the house and commandeth A. to goe out and to leave him the possession and A. will not goe out this is no force for refusing or denying only to goe out is no force unlesse there be withall some forceible Act or threatning speeches ubi factum nullum ibi fortia nulla where there is no fact there is no force Co. 4. 43. 42. A morgageth his house to B. upon condition that if A. shall pay to B. such a day 40. Dalton pa. 181. l. then the said morgage and feoffment to be voide and by agreement of them both A. the morgager continueth the possession untill the day of redemption at which day A. payeth not the 40. l. and after B. commeth to reenter and A. keepeth the possession by force this is a deteiner by force in A. by the opinion of Master Richard Godfrey in a case betweene Willowes and Thurger which opinion I conceive to be good Law for the possession of the morgager after the morgage by agreement was in Law the possession of the morgagee 43. Cromp. 69. The disseisor maketh a gift in Taile to B. who keepeth the land with force at the time when the disseisee maketh his claime which claime is made within the view so neare as he dareth Litt. 429. for feare of death battery or other bodily hurt if B. after such claime shall continue the possess with force he may be thereof indicted for this amounteth to a new Entrie and a deteiner with force by B. 44. And note that wheresoever mine Entrie is lawfull Dalton pag. 181. if the possess be deteined or holden from me by force I may pray the aide of the Iustices of peace to remove such force as it seemeth 45. Rent Cromp. 70. P.R. 63. Dalton pa. 181. If a man hath a Rent or common of pasture out of another mans land and comming to distraine for his rent or to use his common he is so forceibly resisted by the Tenant of the land that he cannot or dareth not either distraine for his rent or take the benefit of his common This is a holding with force in the Tenant and punishable by these statutes 46. Cromp. 69. So it is if the Tenant of the land shall forestall the way with force and Armes or shall threaten him that hath the rent or Common so that he dareth not to come to distraine for his rent nor to take his Common 47. So it is if a man shall distraine for his rent Ibid. Dalton 181. 182. and the Tenant of the land shall make rescous with force and Armes 48. And in these cases of a rent or common the Iustice of peace upon complaint to him made may remove such force and upon view of such force may record it and may therefore imprison and fine such offendors but cannot award restitution sc cannot restore the party to his rent or Common which are to be taken and used in another mans land for restitution is not to be made but only of the house or land as you may see hereafter in its proper place Who may commit a forceible Entrie c. CHAP. 31. 1. ONe person alone may commit or make a forceible Entrie or deteiner The persons if so be he doe it with offensive weapons or doe use turbulent behaviour to the terror or Affray of others Dalton 182. Cromp. 69. 2. An infant of the age of Eighteene yeares by his owne Act may commit a forceible Entrie or deteiner and so he may though he be under Eighteene Dalton 18â— yet it shall be good discretion in the Iustices of P. to forbeare the imprisonment of such Infants See Br. Impris 43. 45. 75. 101. 3. But if an infant commandeth another to enter or hold with force to his use Dalton ibid. which is done accordingly yet the Infant shall not be punished for such offence for his commandement therein was voide Cromp. 69. 16. Ass 7. Br. Impris 45. 53. See more after in the title riot 4. Also a feme Covert by her owne Act may commit a forceible entry or deteiner and upon the Iustices view of the force she shall be imprisoned and it seemeth also she may bee fined in such case But such fine set upon the wife shall not be