can learn than by Admonition only and calling upon the Parties in which behalf if he shall not be obeyed accordingly he is to prefer the Cause at the Sessions and to work it to a Presentment upon the Statute and so by the help of his fellow Justices to hear and determine thereof as Law requireth Dalt 18. 19. cap. 5. But for prevention of the breach of the Peace he hath full Authority hereby 5. Not only to call the party for the finding of Sureties for the Peace or for the Good Behaviour as the Case shall require but also for not finding such Sureties to Commit him to safe Custody within his Majesties Goal or Prison Lamb. 77. 84. Jurisdiction VII Lambert 49 50. Least these Justices should rather Ground their Judgments upon the Number of voices then upon the weight of reasons this latter clause is shut up with a proviso and restraint § 15. That in all Cases of ambiguity and doubt they shall spare to proceed to Judgment and expect the presence of the Justice of Assize c. and yet as Mr. Fitzh 7. well Noteth is not their Judgment void if they list to proceed without such advise but it standeth good and effectual until it shall be Reversed by a Writ of Error Crompt 6. ab Oath VIII Lambert 53. The Oath of Office of a Justice of Peace Ye shall Swear that as Justices of the Peace in the County of M. in all Articles in the Kings Commission to you directed you shall do equal right to the Poor and to the Rich after your cunning Wit and Power and after the Laws and Customs of the Realm and Statutes thereof made § 2. And ye shall not be of Counsel of any quarrel hanging before you And 3. That ye hold your Sessions after the Form of Statutes thereof made And 4. The Issues Fines and Amerciaments that shall happen to be made and all Forfeitures which shall fall before you ye shall cause to be entred without any Concealment or Imbezelling and truly send them to the Kings Exchequer 5. Ye shall not let for Gift or other cause but well and truly you shall do your Office of Justice of Peace in that behalf and that you take nothing for your Office of Justice of the Peace to be done but of the King and Fees accustomed and Costs limited by the Statute And 6. Ye shall not direct or cause to be directed any Warrant by you to be made to the parties but you shall direct them to the Bayliffs of the said County or other the Kings Officers or Ministers or other indifferent persons to do Execution thereof So help you God and by the Contents of this Book in French Crompt 10. ab Dalt 13. cap. 4. Process IX Lambert 56. It would avail greatly to the furtherance of the service if the Ded ' potestat ' to give these Oaths viz. of Supremacy and Alleigance c. were dirigible to the Justices and none other to Minster the same not elsewhere but in their open Sessions Statutes X. Crompt 7. § 13. 14. By these words § 3. it appears that the Justices ought to do their Endeavour that these Statutes be kept in all points and that they in every of their Quarter Sessions should inquire of the Offenders against them and that they in their Charge given to the Enquests should rehearse especially the Articles of those Statutes that concern the conservation of the Peace and the Good Government of the Subjects of the Realm Fitzh J. P. 10. 10. Ed. 3. cap. 6. Imprisonment XI Crompt 9. b. § 49. The Justices of the Peace have no power to deliver the Goal unless only of those that are Indicted before themselves or before other Justices of Peace of the same County according to the power given to them by the Commission 13 Fitzh J. P. 14. Crompt 122. b. § 5. Lambert 541. XII Crompt 10. § 53. By these words § 6. it appears Enquest that two Justices of the Peace may enquire of all Articles expressed in their Commission though none of them be Justices of the Quorum but the Justices of Peace cannot hear and determine the Articles contained in their Commissions unless one of them be a Justice of the Quorum unless in special Cases given by Statutes XIII Dalt 19. cap. 5. By this Justices of Peace have Execution 13 Ed. 1 Stat. 2. of Winchester in charge it may appear that the King by his Commission may commit the Execution of the Statutes and Laws to whom he shall please and so also a Justice of Peace by vertue of the Commission may execute any Statute whereunto he shall be enabled by the said Commission although there shall be no express power given him so to do by the Words or Letter of the same Statute 22 Ed. 4. Jurisdict 61. Bract. 108. 11 Co. 65. XIV Dalt 19. cap. 5. Note also Commission that there be divers Statutes which be not specified within the Commission and yet are committed to the Charge and Care of the Justices of Peace but all such Statutes which do give expresly any power or Authority to the Justices of Peace are to them a sufficient Warrant and Commission of themselves though they be not recited in the Commission and all such Statutes are also to be executed by them according as the same Statutes themselves do severally prescribe and set down Lamb. 33 34. Pasch 11. H. 7. 22. pl. 11. of Rape XV. Lamb. 64 65. It is the opinion of the Court Records 9 Ed. 4. 3. 14 H. 8. 16. and of divers other Books in our Law that every one of the Justices of Peace even by himself is a Judge of Record for he is made by the Great Seal and hath judicial power and hath a Seal and by Brudnell Peace Br. 6. 14 H. 8. 16. if he make any Warrant though it be beyond his Authority it is not disputable by the Officer c. F. N. B. 81. E. Crompt 120. XVI Lamb. 65. Yea Supersedeas by good opinion 2 H. 7. 1. a Supersedeas of the peace made by one Justice under his Seal being brought into the Sessions is a sufficient Record to prove that there is a Recognizance of the Peace taken by the same Justice and it is warrant enough to call the party bound thereupon and if he make default to record the same XVII Lamb. 67. The Kings Majesty may discharge the Commissioners of the peace by his express Writ under the Great Seal Repealans L. 5 Ed. 4. 32. 137. Judges Br. 19. and if he send a Supersedeas to all the Commissioners of the peace that will suspend all their Authority but yet so that it may be renewed by a procedendo and therefore it doth not utterly determine their Authority as may be gathered by 12. Ass 21. Oyer Term. 4. XVIII Lamb. 67. Again Repealans when the Kings Majesty makes other Commissioners of
sometimes do falsely take upon them the names of other men of good ability of purpose to enable themselves to be accepted for Bail which persons being of small or no ability or worth are ready for Lucre and Gain to become bound by Recognizance as Sureties for such persons as shall procure themselves to be bound to the Peace or Good-behavior as aforesaid by means whereof the Iudge or Iudges of the said Courts not knowing them may be easily abused and Iustice deluded Coron Be it therefore Enacted by the Authority aforesaid § 5. N. 1. that the Iudge or Iudges of the Courts aforesaid respectively or either of them upon proof of any the misdemeanors aforesaid to be committed in the obtaining of the aforesaid Writs of Supersedeas or procuring such Sureties as aforesaid shall and may likewise punish the false and insufficient Sureties and Bailers aforesaid and the Procurors thereof according to their discretions so as such Punishment extend not to the loss of Life or Member Indictment And whereas divers Bills of Indictments of Riot § 6. N. 1. forcible Entry or of Assault and Battery being found before the Iustices of Peace at the Quarter Sessions of the Peace or otherwise are oftentimes removed from the Counties where such Indictments are found by Writs of Certiorari unto them directed out of the said Courts by or by the means of the persons so indicted who well know that few or no persons grieved by such their Outrages and Misdemeanors whereof they stand so indicted will undergo the travail or charge of Prosecution of such Indictment so removed by bringing the Parties so indicted to tryal by means whereof such Offenders for the most part escape unprosecuted or unpunished and the King loseth the Fines which ought and should have been imposed upon them if such Iudgements had been prosecuted and not removed § 7. N. 1. Be it therefore Enacted Certiorari that all such Writs shall from and after the end of this present Session of Parliament be delivered at some Quarter Sessions of the Peace in open Court § 7. N. 2. And that the Parties indicted Bail shall before the allowance of such Certioraries become bound unto such person or persons which shall prosecute such Bills of Indictment against them in the sum of ten pounds with such sufficient Sureties as the Iustices of Peace at their Quarter Session of the Peace shall think fit with Condition to pay unto the said Prosecutors of such Bills of Indictment within one Month after the Conviction of such Parties indicted such reasonable Costs and Damages as the said Iustices of Peace of such Counties where such Bills of Indictment shall be found in the said Sessions of the Peace shall assess or allow § 7. N. 3. And that in Default thereof Certiorari it shall be lawful for the said Iustices to proceed to Tryal of such Indictments any such Writs of Certiorari to remove the same Indictments notwithstanding C. 12. § 4. N. 1. And whereas notwithstanding the said Statute viz. 7 Jac. Cap. 5. § 1. N. of Justice of Peace pleading the General Issue Justices and giving special matter in Evidence the Plaintiff is at liberty to lay his Action which he shall bring against any Iustice of Peace or other Officer in any Foreign County at his choice which hath proved very inconvenient unto sundry c. that have been impleaded by some contentious and troublesome persons in Counties far remote from their place of Habitations § 5. N. 1. Be it therefore Enacted c. that if any Action Bill Information Plaint or Suit upon the Case Trespass Battery or false Imprisonment shall be brought c. against any Iustice of Peace Mayor or Bailiff of City or Town-Corporate Head-borough Portreeve Tythingman Constable Collector of Subsidy or Fifteens Church-wardens and persons called Sworn-men executing the Office of Church-warden or Overseer of the Poor and their Deputies or any of them or any other which in their Aid and Assistance or by their Commandment shall do any thing touching or concerning his or their Office c. for or concerning any Matter Cause or Thing by them or any of them done by vertue or reason of their or any of their Office c that the said Action c. shall be laid within the County where the Trespass or Fact shall be done and committed and not elsewhere Cap. 15. Be it Enacted c. that such Iudges Force Iustices or Iustice of Peace as by reason of any Act c. viz. 5 Rich. 2. Cap. 7. 15 Rich. 2. Cap. 2. 8 H. 6. Cap. 9. 31 Eliz. 11. c. now in force are authorized and enabled upon Inquiry to give Restitution of Possession unto Tenants of any Estate of Free-hold of their Lands or Tenements which shall be entred upon with Force or from them witholden by force shall by reason of this present Act have the like and the same Authority and Ability from henceforth upon Indictment of such forcible Entries or forcible witholdings before them duely found to give like Restitution of Possession unto Tenants for term of years Tenants by Copy of Court-Roll Gardians by Knights Service Tenants by Elegit Statute-Merchant and Staple of Lands or Tenements by them so holden which shall be entred upon by force or holden from them by force C. 18. § 4. N. 3. It shall be lawful for any two or more Iustices of the Peace within the County or within the City Drapery Borough or Town-Corporate where such deceivable Cloth viz. with Flocks Thrums Noyles and Hairs c. shall be made or suspected to be made upon Information or Complaint of any of the said Overseers c. Searchers or any other of their Knowledge or Suspition of any such Offence to grant their Warrant to call before them any person or persons whatsoever that shall be thought in their discretions fit to discover any such Offence Proof And to examin upon Oath such person § 4. N. 4. c. for the tryal and better finding out of the Offence aforesaid and if upon Examinations it shall be found by Testimony of two Witnesses or more or by the Confession of the Party or Parties offending that any such Offence c. have been committed as aforesaid then the Party c. that shall so confess his or their said Offence c. or who shall be found to have offended shall remain convicted of such his Offence c. Certificate And that then it shall and may be lawful for the said two Iustices § 4. N. 5. to certifie such Offence c. unto the Church-wardens and Overseers for the time being of the Poor of the Parish c. where such deceivable Cloth c. shall be made under the Hands and Seals of the said Iustices Process And be it further Enacted § 5. N. 1. c. that immediately from and after such Certificate
Certified into the Exchequer together and not one without the other and no Iustite shall or may be questioned or accountable for the same in the Exchequer or elsewhere then in the Quarter-Sessions c. § 3. N. 2. And if the said Preacher or Teacher so Convicted be a Stranger Process or his Name and Habitation not known or is fled and cannot be found or in the Iudgment of the Iustice Iustices or Chief Magistrate before whom he shall be Convicted shall be thought unable to pay the same the said Iustice c. are hereby Impowered and required to Levy the same by Warrant as aforesaid upon the Goods and Chattels of any such Persons who shall be present at the same Conventicle any thing in this or any other Act Law or Statute to the contrary notwithstanding c. § 6. N. 1. Provided also and be it further Enacted Error That in all Cases of this Act where the Penalty or Sum charged on any Offender excéeds the Sum of Ten shillings and such Offender shall find himself agrieved it shall and may be lawful for him within one Week after the said Penalty or Money charged shall be paid or Levied to appeal in writing from the Person c. Convicting to the Iudgment of the Iustices of the Peace in their next Quarter-Sessions N. 2. To whom the Iustice Justices c. that first Convicted such Offender shall return the Money Levied upon the Appellant and shall Certifie under his and their Hands and Seals the Evidence upon which the Conviction past with the whole Record thereof and the said Appeal N. 4. And in Case such Appellant shall not prosecute with Effect Costs or if upon such Tryal he shall not be acquitted or Iudgment pass not for him upon his said Appeal the said Iustices at the Sessions shall give trebble Costs against such Offender for his unjust Appeal N. 5. And no other Court whatsoever shall Intermeddle with any Cause or Causes of Appeal upon this Act Certiorari but they shall be finally determined in the Quarter-Sessions only § 7. N. 1. Provided alwayes and be it further Enacted Recognizance That upon the delivery of such Appeal as aforesaid the person Appellant shall enter before the person c. Convicting into a Recognizance to prosecute the said Appeal with effect N. 2. Which said Recognizance the Person c. so Convicting Certificate is hereby Impowered to take and required to Certifie the same to the next Quarter-Sessions N. 3. And in Case no such Recognizance be Entred into Bail the said Appeal to be null and void § 9. N. 1. And be it further Enacted c. That the Iustice c. of the Peace and Chief Magistrate respectively or the respective Constables Process Headboroughs and Tithingmen by Warrant from the said Iustice c. shall and may with what aid force and assistance they shall think fit for the better Execution of this Act after refusal or denial to enter break open and enter into any House or other place where they shall be Informed any such Conventicle as aforesaid is or shall be held as well within Liberties as without N. 2. And take into their Custody the Persons there unlawfully Assembled Imprisonment to the Intent they may be proceeded against according to this Act. N. 3. And that the Lieutenants or Deputy-Lieutenants or any Commissioned Officer of the Militia or other of his Majesties Forces War with such Troops or Companies of Horse and Foot and also the Sheriffs and other Magistrates and Ministers of Iustice or any of them jointly or severally within any the Counties or Places within c. viz. England Wales or Berwick with such other Assistance as they shall think méet or can get in readiness with the soonest on Certificate made to them respectively under the Hand and Seal of any one Iustice of the Peace or Chief Magistrate of his particular Information or knowledge of such unlawful Méeting or Conventicle held or to be held in their respective Counties or Places and that he with such Assistance as he can get together is not able to suppress and dissolve the same shall and may and are hereby required and enjoyned to repair unto the Place where they are so held or to be held and by the best means they can to dissolve dissipate or prevent all such unlawful Méetings and take into their Custody such and so many c. as they shall think fit c. Priviledge Provided alwayes that no Dwelling House of any Peer of this Realm §. 10. N. 1. where he or his wife shall then be resident shall be searched by vertue of this Act but by Immediate Warrant from his Majesty under his Sign Manual or in the presence of the Lieutenant or one Deputy-Lieutenant or two Iustices of Peace whereof one to be of the Quorum of the same County or Riding Constable And be it further Enacted c. That if any Constable Headborough § 11. N. 1 Tythingman Church-warden or Overséer of the Poor who shall know or be credibly Informed of any such Meeting c. held within his Precincts Parishes or Limits and shall not give Information thereof to some Iustice of the Peace or the Chief Magistrate and endeavour the Conviction of the Parties according to his duty but such c. or any c. lawfully called in aid c. shall wilfully and wittingly omit the performance of his duty in the Execution of this Act and be thereof Convicted in manner aforesaid he shall forfeit c. Five pounds c. Justices And that if any Iustice of Peace or Chief Magistrate shall wilfully and wittingly omit the performance of his duty in the Execution of this Act N. 2 he shall forfeit c. one hundred pounds c. Certificate And in Case any Person offending against this Act § 13. N. 3. shall be an Inhabitant in any other County or Corporation or fly into any other County or Corporation after the Offence Committed the Iustice of Peace or Chief Magistrate before whom he shall be Convicted as aforesaid shall Certifie the same under his Hand and Seal to any Iustice of Peace or Chief Magistrate of such other County or Corporation wherein the said Person or Persons are Inhabitants or are fled into Process Which said Iustice or Chief Magistrate respectively N. 4. is hereby Authorized and required to Levy the Penalty c. in this Act mentioned upon the Goods and Chattels of such Person c. as fully as the said other Iustice of Peace might have done in Case he or they had been Inhabitants in the place where the Offence was Committed Measures Viz. the xl s. forfeit by Selling Corn or Salt c. by unsealed Measures C. 8. § 2. N. 3. c. to be Levied in such manner and such other Penalties for
Imbezeling Armour extends to any Accessaries after the Principal Fact committed because it hath expressed no other Accessaries but before the Principal Fact committed and it seemeth not because a Man cannot say that the Makers of the said Statute intended them no more then the Makers of the Statute 33 H. 8. 8. § 1 N. 7. against Conjurations intended to touch any other Accessaries but those before the Principal Fact committed which Statute is not in force at this day 3. Inst 73. X. Stamf. 44. Note that it seemeth that there is not any Accessary in the offence on this Statute viz. 3 H. 7. 2. § 1. N. 3. because that the words are be Râ—puted and Adjudged Principal Felons which makes them as it seemeth all Principals Rape XI Lamb. 2. cap. 7. pag. 283. for a more certain Rule in all these Points I will use this one Case 3. and 4. Ph. and Mar. in B. R. As Judge Dalison reporteth it Two Men were Indicted upon 3. H. 7. 2. for the taking a Woman against her Will Feloniously and two other Men were then also Indicted for that knowing the Felony they did Relieve the Offendors and Comfort c. In this case albeit the Statute doth make as well the Procurers and Abettors of the Felony as also the Relievers of the Woman knowing the matter to be Principal Felons and thereby these two persons which Relieved the Felons only and not the Woman can be deemed no Principals yet all the Judges of that Court were then of opinion that these Relievers be Accessary to this Felony by the Statute 3 H. 7. 2. § 1. N. 3. no less than if it were to a Felony at the Common-Law for when a Statute say they makes a Felony it is Felony and hath Accessary to it even in the same manner as it had been Felony at the Common-Law as in a Rape which is declared by 13. Ed. 1. W. 2. cap. 34. If a Man Ravish c. yet if another knowing of the Fact shall relieve the Ravisher he shall be an Accessary no less then if it were to a Felony that had been by the Common-Law 3. Inst 61. vouch accordingly Intendment XII 3 Inst 61. 62. by this Act viz. 3 H. 7. 2. § 1. N. 3. not only the takers but the Procurers Abettors of the Felony and Receivers of the said Woman willingly knowing the same be all adjudged as Principal Felons the like whereof we find not in any other Statute that we Remember but by a Construction of the Common-Law they that receive the mis-doers and not the Woman are Accessaries for this Act maketh the Receivers of the Woman c. Principals Poult de pace 144. § 22. and 145. § 27. Armor XIII 3 Inst 72. 73. this Act viz. 8 H. 6. 12. § 3. N. 1. of Imbezeling Armour expresly extendeth to Accessaries before and leaveth Accessaries after to the Construction of Law yet may there be Accessaries after the Fact for whensoever an offence is made a Felony by Act of Parliament there shall be Accessaries to it both before and after as if it had been a Felony by the Common-Law And therefore tho this Act expresseth Accessaries before yet it taketh not away Accessaries after but leaveth them to the Law contrary to the opinion of the Justice Stamf. 44. suprà Polut de pace 142. § 22. Hales Pleas of the Crown tit Accessary Treason XIV Stamf. 113. But yet it seemeth that the Accessaries to Petit Treason shall have Sanctuary viz. notwithstanding the General words of 28 H. 8. 7. § 20. N. 1. Admiral XV. Stamf. 113. It seemeth also that the Accessaries in these cases viz. 27 H. 8. 4. § 3. N. 1. and 28 H. 8. 15. § 3. N. 1. of Piracy shall not be Excluded of their priviledge of Sanctuary because they are not expresly in the letter of the said Statutes Money XVI Mich. 11 and 12 Eliz. Dyer 296. Pl. 21 Memorandum that John Conyers Gent. was Indicted of the Traterous Reception and Comforting of one John Fayrfax Gent. knowing him the said John F. Falsly and Trayterously to have Made and Counterfeited divers pieces of Money of false Mettle to the likeness of Good and Lawful Money of England called Shillings and upon his Arraignment he was found Guilty and the Justice did not proceed to Judgement of Treason upon this Indictment because it was only Misprision of Treason sic videbatur Postea etiam diversis aliis and at length he was pardoned 3. Inst 138. XVII 3 Inst 138. cap 64. on Dyer 296. A. doth Counterfeit the Kings Coyn viz. Shillings and C. knowing the same doth receive A. and Comfort and Aid him this Counterfieting is High-Treason by the Common-Law in A. and yet it hath been holden that in this case C. hath not committed Treason Stamf. 3. for then in Judgement of Law he must be a Counterfeiter of the Kings Coyn within 25 Ed. 3. St. 5. cap. 2. § 1. N. 5. which he is not and therefore say they this is Casus Omissus but all agree that procurers of such Treason to be done before the Fact done if after the Fact be done accordingly in Case of Treason are Principals for that they are Participes Criminis in the very Act of Counterfeiting but saving reformation we hold that if any Man commiteth High-Treason and thereby becometh a Traytor If any other Man knowing him to be a Traytor doth Receive Comfort and Ayd him he is Guilty of Treason for that there be no Accessaries in High-Treason and so it was resolved by the Justices Pasch 4 Jac. In the case of Abingdon who Received Comforted and Ayded Henry Garret Superior of the Jesuits knowing him to be Guilty of the Powder-Treason and accordingly Abingdon was Indicted and Attainted of High-Treason See 1 Ed. 6. 12. § And whereas it is said Dyer 296. that the said Offence in Conyers was Misprision of Treason That cannot be because there was a consent and not a concealment only otherwise High-Treason being the highest Offence should have more favour then Felony for the Releiver and Comforter in Case of Felony is punnished by death and so is not he that committed Misprision of Treason And lastly this is no new Treason but a partaking and a maintaining of the old Poult de pace 141. § 1. XVIII Dalt cap. 108. in High-Treason there be no Accessaries for all the Advisers Counsellors Persuaders and Assistance therein be Principals Treason c. they being the very cause of the Fact may well seem as Culpable or more then the principal Actors for plus peccat Author quam Actor so 3. Gen. of the Serpent and 2. Sam. 12. 9. of David c. But yet it seemeth that this is to be understood of Accessaries before the Treason for Receiving Aiding and Comforting a Traytor after the Offence knowing the same was holden to be but Misprison of Treason Dyer 296. and yet by some other Authorities the Receiving of Tarytors after
108 b. pl. 27. Crompt 24 b. § 42. 28 b. 29 a. Treason XXV Crompt 20 b. 21 a. § 18. A Feme Servant and a stranger conspire to rob the Mistress and at the time appointed in the night she let him into the House and carried him by a Candle to her Mistresses Bed where she lay asleep and the stranger kill'd the Mistress in her Bed the Maid saying nor doing nothing but held the Candle And Portman Ch. J. de B. R. Brook Ch. J. of C. B. and Hare Master of the Rolls held the Feme a Principal and a Traytor but Brook Ch. Baron Dalison and Saunders Justices é contrà so Dyer 128 pl. But the Law is with Portman and so it was adjudged in the Case of one Blechenden Captain of the Castle of Wallm ' in Kent who about 5 Mariae was kill'd in the Castle by a stranger by assent of one Bigg and others Servants of the said B. being then in the same Castle in a Vault there and not in the Parlor where he was kill'd and was Drawn and Hang'd XXVI Crompt 21. § 3. Nota Justices That the Justices of Peace may enquire of Murder or Pety-Treason because their Commission is de omnibus Feloniis see 3 H. 7. 5 b. An Indictment of Murder taken before Justices of Peace Rast. intr 362. Dyer 69. pl. Crompt 21 b. § 5 6. 28. § 3. Infra § 35. Dalt 234. Infra 38. Lamb. 497. in Indictment § 18. XXVII Pasch 3 H. 7. 5 b. pl. 2. Indictment 22. Br. 47. Justices The Servants of the Bishop of Lincoln were Indicted of Murder in the County of Rutland before the Justices of Peace c. XXVIII Pasch 5 Ed. 6. Dyer 69. pl. 29. Justices And also it was held clearly that Justices of Peace have Authority to enquire of Murder because it is Felony against the opinion of Monsieur Fitzherbert Dalt 52. cap. 20. Infra 35. XXIX Lamb. 4. cap. 5. pag. 485 486. Indictment Where by the way you may see in plain words of this Statute 2 3 Ed. 6. 24. § 2. N. 5. That Justices of Peace may take Indictments of Murder as Murder though Mr. Fitzherbert fol. 17. denieth it saying That they cannot enquire of Murder saving only as of Felony or Man-slaughter And you shall read of an Indictment of Murder before them received 3 H. 7. 5 b. supra agreeable whereunto was the opinion of Hales and Portman Justices as I have seen in a Report of Dalison Justice And of the same mind also were the Justices of 6 Ed. 6. B. R. Dyer 69. Dalt 53. cap. 20 b. Infra 35. XXX Crompt 21 b. § 5. see Rast Entr. 417. Certiorari That an Indictment of Murder taken before Justices of Peace was removed in B. R. and the party thereupon was Arraigned and upon the Arraignment there he pleaded the King's Pardon and it was allowed and the party discharged Coron 360. XXXI 2 Inst 316. On 6. Ed. 1. Gloc ' cap. 9. it is to be observed Justices that Justices of Goal-delivery may take an Indictment of killing a man se defendendo because their Authority is general but Justices of Peace cannot take such an Indictment because their Commission is limited and it is taken not to be within their Commission Dalt 52. cap. 20. Infra § 36. 33. XXXII Crompt 21 b. § 6. see Rast Entr. 246. Justcies An Indictment of Murder taken before Justices of the Peace whereupon the party was Outlaw'd before them was delivered to the Justices of Goal-delivery and thereupon the person Outlaw'd was brought before them to the Bar and because he could say nothing in Arrest of Execution it was adjudged he should be Hang'd But Fitzh in his Book of Justices of Peace 21. is That a Justice of Peace cannot enquire of Murder see Stamf. 15 b. 16 a. That an Indictment taken before Justices of Peace that A. kill'd B. se defendendo is not good because that they have no Authority to take such Indictment as he had heard XXXIII Crompt 28. § 3. Mr. Stamf. 15 b. 16 a. saith Indictment That a Justice of Peace cannot take an Indictmen af him that hath killed another se defendendo as he had heard But Marrow Lect. 12. is to the contrary and it seemeth that in as much as the Justices of Peace have power to enquire of all Felonies that they may enquire of this Lamb. 497. supra 31. XXXIV 23 b. § 28. Riot A Sheriff or Justices of Peace come to suppress Rioters and one of them who comes with the Justice is slain by the Rioters this is Murder as well in him as in all the other Rioters that are present and so was taken 22 Eliz. in the Case of Drayton Basset supra § 7. Crompt 25. § 51. 26. § 12. XXXV Dalt 51 52. cap. 20. Whereas one R. Forgery Smyth was Indicted at the Sessions in Oxford upon 5 Eliz. 14. § 10. N. 1. of Forgery it was adjudged by the whole Court in B. R. 30 Eliz. that the same Indictment was not well taken for although the Justices of Peace by their Commission have power of Oyer and Term of Felonies c. yet forasmuch as there is a Commission of Oyer and Term known distinctly by that name and the Commission of the Peace is known distinctly by another name that the said Indictment taken before the Justices of Peace at their Sessions was not well taken and therefore was quashed The reason of this Case and Judgment seemeth to hold in the former Cases on 3 H. 7. 14. § 1. N. 4. 33 H. 8. 12. § N. 8 H. 6. 12. § 3. N. 2. c. and in all other like Cases where any Statute doth specially give Authority to any other distinct Court or to other Justices or Commissioners leaving out the Justices of Peace to enquire of hear and determine or to try Felons c. there the Justices of Peace at their Sessions cannot enquire thereof 2 Inst 316. Stamf. 15 b. 16 a. supra § 26 27 28 30 31 c. Crompt 56. Infra § 50. Poult de Pace 43. Justices XXXVI Dalt 52. cap. 2. But in the former Cases if any such offender shall be brought before any Justice of Peace and charged with any such Felonies viz. whereof he cannot enquire Quaere how far the Justice of Peace is to deal or what he is to do therein considering the Justices of Peace are no Juudges of such Felonies neither have they any Jurisdiction given them by the Statutes in such Cases And yet it may seem both serviceable and safe for the Justice of Peace to examine the Offence and then to certifie his Examination to such persons as by the Statute are made Judges of the Cause But it seemeth the Justice of Peace on 8 H. 6. 12. § 3. N. 2. of Razures 3 H. 7. 14. § 1. N. 4. of the Kings Servants 33 H. 8. 12. §
1. N. 4. of the Verge 5 Eliz. 14. § 10. N. 1. of Forgery 33 H. 6. 1. § 1. N. 3. Servants imbezelling Intestates Goods may not commit such an Offender to Prison nor bind over the Informers nor take the Information upon Oath Crompt 56 a. b. Imprisonm XXXVII Dalt 55. cap. 20. If one shall bring a man suspected of Felony before any Justice of Peace but refuseth to be bound to give Evidence against the Prisoner either at the Goal-delivery or Quarter-Sessions as the Case shall require if such bringer hath given Evidence before the Justice against the Prisoner or can declare any thing material to prove the Felony and will not be bound to give Evidence upon his Tryal the Justice of Peace upon his discretion may commit to Prison such person so refusing or may bind him to his Good behaviour But if the bringer of a person suspected of Felony cannot declare any thing material to prove the Felony nor any other person then present it seemeth the Justice ought not to commit the Prisoner and so was the direction of Sir David Williams at the Assizes at Cambridge Yet the Justices shall do well to examine the Prisoner and if he shall confess the Felony then to commit him or if the Prisoner be a man of evil same and that there be a Felony committed in these Cases the Justice shall not do well to let him go but at least to bind him over to the next Goal-delivery and in the mean time to take further Inform ' against him Crompt 198 b. Dalt 290. cap. 109. Treason XXXVIII Dalt 234. cap. 91. The Justices of Peace may enquire of Pety-Treason as of Felony and out of their Sessions every Justice of Peace may deal with the Offenders therein as in the Case of Felony by Examination of the Offenders by taking Information against them and binding over the Informers to the General Goal-delivery and by committing the Offenders to the Goal Crompt 21. § 3. supra 26. Enquest XXXIX Dalt 236 237. The Enquiry of such a Felony belongeth to the Coroner and yet if Felo de se be cast into the Sea or so secretly buried that the Coroner cannot have the sight of his Body and so cannot enquire thereof then the Justices of Peace or any other having Authority to enquire of Felonies may enquire thereof for that it is Felony and a presentment thereof before them entituleth the King in his Goods Dalt 247. cap. 97. it 's Quaere XL. Dalt 248. cap. 98. Treason If the Justices of Peace shall Arraign a man of Treason before them at their Sessions who is found Guilty c. and thereupon is Hanged this is Felony as well in the Justices as in the Sheriff or Officer which shall hang him for that the Justices of Peace had no Authority therein but it was coram non Judice Lect. m. Cocke 10. Co. 76. XLI Dalt 248. ibid. Justices If the Justices of Peace shall Arraign a man of Felony upon an Indictment of Trespass whereupon he is Hang'd this is Felony in the Justices but not in the Sheriff or Officer Lect. m. Cocke 10. Co. 76. XLII Dalt 259. cap. 101. Yet may not the Justice of Peace viz. Bail because of variety of opinions Coron 178. Forfeiture Br. 1. Dr. St. 17 c. of the value of Pety-Larceny before whom such an Offender shall be brought out of the Sessions punish by his discretion the said Offender for Pety-Larceny and so let him go but must commit him to Prison or Bail him to the intent he may come to his Tryal as in case of other Felonies and if upon his Tryal the Jury shall find the Goods stolen to exceed 12 d. in value the Offender shall have Judgment to die for the fault XLIII Dalt 268. cap. 104. Bar. Feme Also the Wife is chargable for a Trespass done by her and her Husband together and therefore howsoevever in case of Stealing or of Robbery by Baron Feme it shall be safe for the Justice of Peace in such cases to commit the Wife to the Goal as well as the Husband XLIV Crompt 39. § 7. Escape A Justice of Peace sends for a Felon who is in the Goal and delivers him without Bond for his appearance and after he is Indicted this seemeth to be a voluntary Escape for he is the cause that he comes not to his Tryal and so where a man confesseth a Felony before a Justice of Peace and he lets him go without Bail c. But a thing that is done pro defectu Scientiae is no Felony Dalt 275. cap. 106. 25 Ed. 3. 39. XLV Crompt 44. § 44. Bail A Justice of Peace lets one go without Bail who is brought before him for Felony and confesseth it this is Felony in the Justice as it seemeth for he is the cause that he comes not to his Tryal Quaere 1 2 Phil. Mar. 12. § 3. N. 1. XLVI Dalt 275. cap. 106. Escape If a Justice of Peace or Sheriff shall Bail one who is not bailable this is a negligent Escape if by Ignorance Coron 246. Escape 4. XLVII Dalt 275. cap. 106. Bail But if one that is brought before a Justice of Peace for suspicion of Felony shall confess the Felony before the Justice of Peace and yet he shall suffer the Prisoner to go at large without Bail this is a voluntary escape and so Felony in the Justice XLVIII Dalt 288. cap. 108. If the party Robbed Escape or he that shall have any Goods stolen from him after complaint by him made of the Felony to a Justice of Peace or to a Constable shall then take his Goods again or otherwise be compounded withal and will not prosecute the Felon any further but will suffer him to escape after he was once so charged and perhaps arrested for the same Quaere if this makes not him an Accessary for that he did once agere Criminaliter by complaint made to the Officer against the Felon I think the Justice of Peace shall do well at least to bind over both the one and the other to the next Quarter-Sessions or to the next Goal-delivery and then to acquaint the Court with the whole matter Justices XLIX Crompt 40. § 13. Justices of Peace may enquire of Escapes 1 Rich. 3. 3. § 1. N. 2. 2 H. 5. 8. 3 H. 7. 1. § 1. N. 12. Justices L. Crompt 56 a. b. Nota That the eight Cases following though they are Felonies by Statute yet the Justices of Peace cannot enquire of them as it seemeth 33 H. 6. 1. of Servants Imbezelling Testators Goods 2 3 Ed. 6. 24. of Accessary in another County Nor of Indictment of Felony taken before Coroners or Justices of Goal-delivery or of Oyer and Terminer Nor of 5 Eliz. 14. § 10. N. 1. of Forgery Nor of Razing Records on 8 H. 6. 12. § N. Nor of Conspiracy to
of the Act which saith he shall be set at liberty if not indicted within half a year after the offence and not half a year after his Imprisonment 3. It seems now to be out of doubt but that any Offender against 1 Eliz. 1. altho by preaching teaching or words may be Indicted at any time within a year and a day after the offence committed and that by 23 Eliz. 1. § 8. N. 1. which saith that all offences against 1 Eliz. 1. and 5 Eliz. 1. and 13 Eliz. 2. touching acknowledgment of Her Majesties Supream Government in Causes Ecclesiastical shall and may be inquirable within a year and a day after the offence committed and the affirming or maintaining the Spiritual or Ecclesiastical Jurisdiction of a Foreigner was without question an offence against Her Majesties Supream Government in Causes Ecclesiastical and against the acknowledgment thereof so that the year limited by 23 Eliz. 1. § 8. N. 1. is now extended to a day further and whatever the meaning of it was as to the half year all offences against it whether by preaching teaching or words or otherwise for 23 Eliz. 1. § 8. N. 1. is general and reaches all offences whatsoever against 1 Eliz. 1. touching the Supremacy Ecclesiastical may now be enquired of within a year and a day whether the party be in prison or not but yet it seemeth that in Case of Imprisonment within the first half year this provision 1 Eliz. 1. § 31. N. 2. for the setting at liberty of the Prisoner at the end thereof if he be not before that time indicted remains still in force and is not abrogated by 23 Eliz. 1. § 8. N. 1. V. The Laws c. 16. Abr. 9. Dignity The provision made in 1 Eliz. 1. § 34. N. 1. and other Acts of Parliament for the Tryal of a Peer by his Peers in case of Treason where he was to be tryed by the Course of the Common Law is ex abundanti and he should have such tryal if no such provision were inserted the like in the case of Felony Stamf. Coron 159. VI. Lambert 2. cap. 7. pag. 227. Justices of Peace cannot deal with Traytors in the point of Treason but as Breakers of the Peace Treason saving that in some Cases they have a special power to inquire and receive Indictments only and of this sort are 1. Treason of extolling Foreign power by 1 Eliz. 1. § 27. N. 1. 2. The Treason of absolving or withdrawing his Majesties Subjects from their Natural Obedience by 23 Eliz. 1. § 2. N. 1. c. And 3. The Treason of putting in ure any Instrument of Reconciliation gotten from the See of Rome by 13 Eliz. 2. § 2. N. 1. VII Lambert 56. There hath been care taken once or twice in our memory to exact this Oath of Supremacy Oath 1 Eliz. 1. § 19. N. 4. of all the Justices of the Peace throughout the Realm whereof some good hath ensued but yet many a Justice there is that by indirect practice never took either this or the Oath of Officers whereof what harms do or may grow I leave to wiser and higher Men to be considered adding this only that it would avail greatly to the furtherance of the service if the Dedimus Potestatem to give these Oaths were dirigible to the Justices and none other to Miniister the same not elsewhere but in their open Session VIII Crompt 10. b. Every Justice of Peace before he takes upon him to exercise or occupy the Office of a Justice of Peace shall take the Oath of Supremacy 1 Eliz. 1. § 19. N. 4. Justices IX Crompt 11. Nota Sessions That the Justices of Peace ought to take this Oath of Supremacy in the open Court of Sessions where he serves by 5 Eliz. 1. § 15. N. 1. and I have seen it done at the Assizes in the County of Stafford and its the best way to be so done for where on 5 Eliz. 1. § 7. N. 1. a Commission is made to take their Oaths when they are made Justices of Peace it may be that the Commissioner will return that he hath taken his Oath when he hath not done so in fact if he that be to be sworn be such a one as is not well affected to the Religion now established X. Crompt 12. Charge in Sessions Religion First to enquire if any within this year and day hath depraved despised or Contemned the Sacrament of the body and blood of our Saviour Jesus Christ in contempt thereof by any contemptuous words or by any words of depraving despising or advisedly hath in any other manner contemned despised or reviled the said Sacrament contrary to the Edicts and Declarations heretofore c. 1 Ed. 6. 1. § N. 1 Eliz. 2. § N. and 23 Eliz. 1. § N. Indictment XI The Laws c. 22. Abr. 17. One indicted on 1 Eliz. 2. § 5. N. 1. for Administring Baptism in other form than is thereby prescribed and is convicted and afterwards is again indicted for the like offence 1 Leon. 295. pl. 403. by the opinion of Clench Justice in B. R. the second Indictment must mention the first Conviction or the Judgment cannot be for the second offence viz. Imprisonment for a year and deprivation But Wray Chief Justice held that if both Indictments were before the same Justices they are to take notice of the firct Conviction altho it be not mentioned in the second Indictment and ought to give Judgment accordingly but if the second Indictment be taken by other Justices then without mention therein of the first Conviction they cannot give Judgment for the second offence Bar. Fem. XII The Laws c. 24. Abr. 18. A Feme Covert is within the meaning of 1 Eliz. 2. § 9. N. 1. any person c. and shall be liable to the penalties thereby inflicted Hob. 97. Moor versus Hussey Dyer 203. pl. Sir Edward Walgrave's Case Religion XIII The Laws c. 24. Abr. 20. The hearing of Mass is a maintaining within 1 Eliz. 2. § 9. N. 2. and the person hearing is indictable thereupon Hob. 97. Dyer 203. and 323. pl. Fermors Case Indictment XIV The Laws c. 25. Abr. 21. The Offender in any of these Cases viz. 1 Eliz. 2. § 10. N. 1. and § 11. N. 1. cannot be punished for the second offence before he be adjudged for the first and that second offence must be committed after the Judgment given for the first nor for the third offence before he be adjudged for the second and that third must be committed after the Judgment for the second for quod non apparet non est non apparet Judicialiter ante Judicium 2 Inst 479. Dyer 323. pl. Bar. Fem. XV. The Laws c. 26. A Feme Covert is within this Statute 1 Eliz. 2. § 14. N. 1. all and every person c. and shall forfeit 12 d. if she repair not to Church every Sunday
of Fact or if Judgment be given against him on nihil dicit for any other Cause any of these are sufficient Convictions whereupon to recover his penalty for Convicted is here 23 Eliz. 1. § 5. N. 1. to be taken for attainted as 't is in many other Cases for until Judgment he shall forfeit nothing and altho he that is Convicted is not therefore attainted yet every one who is attainted or adjudged is Convicted and of such a Conviction is this Statute to be understood infra 233. Good-behavior XXX The Laws c. 63 64. Upon the words Be bound in 23 Eliz. 1. § 5. N. 2. Some have made a question and among them Mr. Shephard in his Sure Guide cap. 6. Sect. 5. by whom or in what Court the Recusant shall be bound to the good behavior by force of this Statute for that the Court is not expresly mentioned and Wingate Crown 44. hath stumbled upon a conceit that after Certificate made in B. R. a Justice of Assize Goal delivery or Peace shall bind the party to the good behavior and misrecites the Statute accordingly but it seemeth the intention of the Law makers was that he should be bound in B. R. and of that opinion is Dalt 192. § 5. cap. 75. tit good behaviour 2. For where any proceedings are appointed to be upon or after a Certificate sent to any Court there by Common intendment the proceedings are to be in that Court to whom the Certificate is sent if no other Court be named and it cannot be presumed by any reasonable construction of 23 Eliz. 1. § 5. N. 2. That the Certificate into B. R. is to any other end than for the Justices there to proceed in such manner as the Act directs to be done after such Certificate as no question they may in this Case as well as upon Certificate of a presentment or of refusal of the Oath of Supremacy against 5 Eliz. 1. § 5. N. 10. Supra 39. and t is a rule in Construction of Statutes that where the intention plainly appears the Law ought to be advanced according to its end tho the words be short and imperfect especially Laws made for Religion as is held Hob. 157. and 11 Co. in Magdalen Colledge Case and 2 Bulstrode 155. 3. Popish Recusants Convicted are not to be reputed sufficient sureties within 23 Eliz. 1. § 5. N. 2. and therefore were refused by the Court of B. R. in the Case of Griffith 2 Bulstrode 155. XXXI The Laws c. 64. An Usher or assistant in teaching is a Master in the School and seemeth to be included within the word School-Master 23 Eliz. 1. § 6. N. 1. and the following words here or teacher explain who is intended viz. Every teacher of youth 23 Eliz. 1. § 7. N. 2. Scholars XXXII The Laws c. 65. 66. Abr. 69. This limitation of time within one year and day 23 Eliz. 1. § 8. N. 1. Extends not to any offence made Treason by 23 Eliz. 1. but only to such offences mentioned in this Act or 1 Eliz. 1. 2. and 5 Eliz. 1. and 13 Eliz. 2. as concern the Kings Supremacy in Causes Ecclesiastical the service of God coming to Church or Establishment of Religion 2. And for those touching Religion 23 Eliz. 1. § 8. N. 1. enlargeth the time limited by 1 Eliz. 2. § 20. N. 1. which saith the party must be Indicted the next Sessions or 1 Eliz. 2. § 22. N. 1. If in a Corporation within fifteen dayes after Easter or Michaelmas for now he may be Indicted at any time within the year and day 3. But for absolving or withdrawing or for being absolved withdrawn or reconciled which are 23 Eliz. 1. § 2. N. 1. made Treason no time is limited for the prosecution but the offender may be Indicted at any time after the year and day for the latter part of 23 Eliz. 1. § 8. N. 2. Speaks of those offences of Treason which the Justices of Peace cannot hear and determine and there no time is limited altho there be in the former part 23 Eliz. 1. § 8. N. 1 for those offences which are inquirable by Justices of Peace 1 Leonard 238. pl. 322. Guilfords Case Justices XXXIII The Laws c. 66. 67. Abr. 70. Upon 23 Eliz. 1. § 9. N. 1. The Justices of the Court of B. R. are the Soveraign Justices of Oyer and Terminer and Goal-delivery 9 Co. 118. Lord Sanchers Case and therefore may enquire of hear and determine the offences against this Act altho they be not here especially named 2. If an Indictment be preferred upon this Statute 23 Eliz. 1. § 9. N. 1. before Justices of Oyer and Terminer or of Assize for any offence not made Treason or misprision and there is an Indictment before Justices of Peace likewise for the same offence the Judgment of the Justices who do first enquire hear and determine the same shall stand and the Judgment given by the other shall be void as was held in the like Case 2 Inst 739. Upon 31 Eliz. 7. § N. of Inmates 3. The power here given 23 Eliz. 1. § 9. N. 2. The Justices of Peace in their open Quarter Sessions to hear and determine the offence of not coming to Church is in force at this day notwithstanding 29 Eliz. 6. § 2. N. 2. which saith that every Conviction for not coming to Church shall be in B. R. or at the Assizes or general Goal-delivery and not elsewhere for 3 Jac. 4. § 7. N. 1. hath given power to Justices of Peace in their general or Quarter Sessions to enquire hear and determine of all offences for not coming to Church according to former Laws in such manner as the Justices of Assize and Goal delivery might do by former Laws in the Case of Recusancy for not repairing to Church which is clearly a reviver of the power of Justices of Peace given to them by 23 Eliz. 1. § 9. N. 2. to proceed against Recusants and taken from them by 29 Eliz. 6. § 2. N. 2. 4. Nor doth that following Clause 3 Jac. 4. § 7. N. 2. Touching Conviction by Proclamation impeach this or restrain the Justices of Peace to proceed to Conviction upon Proclamation only and default of appearance no more than the Justices of Assize or goal-delivery are restrained thereby or by 29 Eliz. 6. § 2. N. 5. which gives them likewise Authority to proceed by Proclamation 5. For these Clauses of 3 Jac. 4. § 7. N. 1. 2. are in the Affirmative viz. first that the Justices of Peace shall have power to hear and determine the offence of not coming to Church according to Laws in such manner as Justices of Assize and Goal-delivery might do and those Justices might hear and determine that offence according to this Statute 23 Eliz. 1. § 9. N. 1. and then comes the next Clause of 3 Jac. 4. § 7. N. 2. that the Justices of Peace shall have power to Convict by Proclamation which is