aforesaide to finde sufficient suerty and mainprise for the Peace to be kept towardes our fayde Soueraigne Ladie and al hyr liege people specially towardes the sayde C. D. And if he the sayd AB shall refuse thus to doe that then you hym safely conuey or causc to be safely conueyed to the next Gaole of hir Maiesty in the sayde County there to remaine vntill that he shall willingly doe the same So that he maye bee before the Iustices of the Peace of our said soueraign Lady within the said CoaÌ„ty at the next general SessioÌ„s of the Peace to be holdon at M. there to aunsweare to our saide Soueraigne Ladye for his contempte in thys behalfe And see that you certific your doyng in the premises to the sayd Iustices at the sayd Sessions bringing this thyther thys Precept wyth you Yeoue at Ightham aforesayde vnder my Seale the fourth daye of Augustein the 33. Yeare c Suertie of the Peace taken by a Iustice of the Peace 23 A Iustice of the Peace may also by bertue of his Office and as he is a Iudge commaunds this Suertie to be founde and that either of his owne motion and disreation or else at the requeste and prayer of an other For he maye cause a Commune Barrettour Ryotter one that maketh an Affray or other person to him Suspected to finde Sucrtie of the Peace â— E. 4.3 Curia And if hée sée menne contending in hotte wordes and threatening the one to hurte or kill the other he may of Disereation and oughte of Duety as I thinke to commaunde them to finde Suerty of the Peace and thereby prouide for their mutuall fafetie By his owne discreation For as he is put in trust with the care of the Peace so oughte he both to imploy his witte and to vse hys auctoritie to preunt the Breache of the ssame And if a man that was bound to kéepe the Peace haue broken his bounde the Iustice of Peace oughte of Discreation to bynde hym of nelne 21 E. 4. 40. Marrow And his authoritie is so little to bée controlled in this matter that Mayster Marrow is of the opinion that if a Iustice of the Peace shoud procure one man to demaund Suerty of the Peace againste an other and hée hum selfe shoulde graunte a Warrant for it by whyche the partie is arrested yet no Action woulde lye againste that Iustice for so doing bycause he might haue graunted it without anye demaunde made and then it shall not bée sayde but that he sawe cause to prouoke the partie to aske it and himselfe to graunt it I doc on on the other fide remember that a Iustice of the Peace was putte out of the Commission of the Peace by order in the Starre Chamber for that Peace offered vnto hym by one that was commanded by an other Iustice of the Peace in the same Share to finde Suertie of the Peace to whome as the â—artie alleaged he durstâ— not go to offer it for feare that he would execute vppon him the malice that he bare against him In commaunding this Suertye at the suite of an other or of his owne discreation sundrie things are wiselie to be considered first for whom and against whom then for what cause and how it ought to be required or commanded and lastly by what meanes it shall be enioyned Suertie at the request of an other The wife if the be thretned to be killed or to be outragiously chastised by hyr husbaÌ„d may with gâ—d reason demaunde the Peace against him For whom and againste whom â—â—crâ—â—e of the Peace lyeth Fitz. Nat. Br. Fo. 80. 239. And I do not doubt but a Iustice map in suche a case coÌ„maunder it vpon his own discreation The husbande also maye demaunde the Peace against his owne wife in such a case and any man may demaunde it against the wife of an other Mar. A man attainted of Treason Or Felonie or conuicte of Heresie or Abiured a Dumbe man or an Infant though within 14 yeres of age or a Villaine against his Lord maye demaunde and ought to haue Suertie of the Peace Mar. And I doe not finde any strong reason why the Lord against his dillaine or an other maÌ„ against a dumbe maÌ„ or against an infant aboue the age of 14 yeares ought not vpon good cause to haue it thoughe the two last can not well be bound themselues But a madde man shall not haue Suertie of the Peace at his owne request as Mayster Marrow thought bycause he hath no discretion to aske it and therefore if there bée rause he oughte to bée prouided for by the discreation of the Iustice as I thinke A man attainted in a Premunire or that is an Aâ—ren borne and no Denizein oughte not to haue this Suertie at his desire as M. Marrow taketh it But perhappes he would haue changed his opinion in the case of Premunire if he had liued at this time vpon the Statute â— Elrzab â—â— for such a maÌ„ may not now be killed as though he were out of the protection of the 〈◊〉 And as touching the Aâ—â—eâ— some think there ought to be a difference betwéene suche an Aâ—ren as is of the Enâ—â—â—â— of the Quâ—â—â— and him that is of hir Amity for the Statutes Mag. Cart. ca. 30.9 E. 3 ca. I 4. E. â— Sâ—â—â— ca â— and sundrie others do all vse that difference in Merchant straungers and doe prouide that such of the as be not Enrmies of the Realm may both safely come into the Realme and farry here and go hence at their pleasures But the case may well be doubted of because the Commission it self séemeth to authorise the Iustice of Peace no further thaÌ„ to prouide for the Duéenes people of whiche number no Aâ—â—en séemeth to be But may any Ahen may not be bound to the Peace I do not for Furthermore one Iustice of the Peace faith â—â— Mar. ow may graunt this Suertâ—e to any man against one of his fellow Iustices But as M. Marrcw requireth a Discretion in a 〈◊〉 of the Peace when Suertie is craued of him against a Shirife Coroner Escheator or such other Officer whom he witheth not to be bound to keep the Peace versus cunctum populum but onely towardes him that prayeth it least otherwise it shuld argue the to be unworthie of such Offices so muche more he ought to vse good discreation in graunting it against his fellow Iustice least otherwise he both bring the Office in contempt and himselfe to reproofe by it But I doubt not but that one Iustice of Peace if he will may pray suretie of the Peace at the hands of his fellow Iustice against an other person the recognisance may then be according to the coÌ„mon forme with an praecipuè versus c. Neitherto of those for whom and against whom the Iustice of Peace may grant this Surety when it shal be required which wil suffice to give light what to doe in like cases
the sayde G. M. at Ightham aforesayde the 4. day of August in the xxiij yeare of oure raigne Or thus in the name of the Iustice himselfe mutatis mutandis GEORGE MVLTON Esquire one of the Iustices of the Peace of our Soueraigne Lady the Queene wythin the said Country to the Shirife c. greeting Forasmuch as A. B. c. hathe personally come before me c. These shall be therefore on the behalfe and in the name of our said soueraigne Lady to commaunde you ioyntly c. to come before mee or one other of hir Maiesties saide Iustices of the Peace in the said Countie c. Giuen vnder my Seale at Ightham aforesaid c. It is méete that the precept for the peace do expresly containe the cause of the Peace within it for otherwise how can the Officer or Party take knowledge that Suretie must be prouided for it Yea by the way let me say it euery Precept made by a Iustice of the Peace ought to comprehende the speciall matter vppon which it procéedeth euen as all the Queenes Writtes doe beare their proper cause in theyr mouth with them And as for the Forme that is now commonly vsed To aunsweare to such things as shall be objected it was not fetched out of the olde and learned Precedents but lately brought in by such as eyther knewe not or cared not what they writte The Warrant of the Peace is the better also if it beare Date of the place where it was made for if a man be to pleade suche a Precepte for his excuse in an Action of false imprisonment brought againste him he oughte in his Plea to shewe the place where the Warrant was made 14. H. 8.18 And this Precept may also be directed to any indifferent person by name though he be no Officer at all for so it séemeth to bée permitted in the Oath of the Iustices of the Peace and so is the Booke also 14. H. 8. â—8 The commanding of Suretie of the Peace hath thus appeared and nowe the execution and bringing of that commandement to effect must next be disclosed How the commaundement of the Peace shall be executed The execution of this Precept standeth partely in seruing the Precept it selfe and partely in taking the Recognisaunce if the partie doe come with Sureties and that there be no let in the way And because for the moste parte there is but one and the same manner of doing whether the Precept come from the Iustice of the Peace as he is a Minister or as hée is a Iudge I also will handle them togither noting by the may those few differences that shall arise betwéene them If suche a Precept be made iointly to twaine yet the one alone may serue it If it be directed to the Shirife he may commaund his Baylife Vndershirife or other sworne and knowne Officer to serue it without writing any Precept The seruing of the Precept for the peace But if he wil coÌ„mand another maÌ„ that is no such Officer to serue it he must giue him a writte Precept for other wise a Wnt of false imprisonment wil lye for the Arrest But if it be directed to the Baylife or to a seruaÌ„t of a Iustice of the peace or other stranger they muste serue it themselues for they can commaunde none other to do it neither by word nor Precept Mar. A sworne and known Officer nédeth not to shew this Warrant whe he doth serue if vpoÌ„ a maÌ„ 8. E. 4.14 20. H. 7.13 c for his Office doth after a sort auctorize him But if the Iustice wil set his seruaÌ„ to serue it the seruant must shewe the Warrant if the party demaunde it and otherwise the party may make resistaunce 8. E. 4.14 A Iustice of the Peace saith M. Brooke Titulo Peace 9. may make this Warrant returnable before himself the Baylife néedeth not to carry the partie before any other Iustice But Iudge Fineux 21. H. 7.20 saith the if a Iustice of the Peace do make a WarraÌ„t of the Peace Ex officio that is without any Writ of Supplicauit directed vnto him theÌ„ the partie may choose to appeare before him or any other Iustice in the Shire and that he shall punishe the Baylife in false imprisonmeÌ„t if he do otherwise compell him But that other wise it is in the execution of the Writ of Supplicauit for he to whose hands it is first deliuered is aucthorized to execute returne the Writ alone And thervpon M. Fitz. in his Nat. br Fo. 81. affirmeth that if such a Writ of Supplicauit bée deliuered to the shirife the he may both execute it alone also take Suertie by Recognusance thogh otherwise being but a Conseruator he could not do it because the Writ doth enable him so to do yet the opinion of Littleton 9. E. 4.31 is to the contrary of that The officer ought also to require the partie to come finde Suertie of the Peace before that he do arrest him by the opinion 5. E. 4.13 And in truth the common forme of the Precept is And if he refuse so to doe that then he shal conuey him to the Gaole and therefore if he wil willingly come and finde Suertie the Officer may neyther absolutely arrest him nor take fée of him And this may be the cause that when one vpon such Warrant commeth to a Iustice of the Peace to find such Suertie the Iustice néedeth not againe to demaunde suertie of him but may commit him if he do not offer Suertie as the opinion is 14. H. 7.9 If a Baylife do arrest a man for the peace before that he haue any Warrant then after ward do procure a Warrant for it this is valawfully done and will not excuse him in an Action of false imprisonmeÌ„t ibideâ—â— But if the Baylife do cause one by force of a Warrant to come and finde Suretie of the Peace when the partie commeth the Iustice will no binde him yet the Baylife is excused 21 H. 7.22 If Suretie of the Peace be required at the handes of a Iustice of the Peace that dwelleth out of the Countie against a maÌ„ within the Countie the Iustice may graunte a Precept to be serued in the Countie but when the partie shall be therevpon warned and commaunded to finde Suretie the Officer may not haue him out of the Countie to the Iustice of Peace that made the WarraÌ„t Marr. For a Iustice of the Peace hath no autozitie but in the Countie where he is Iustice by 13. E. 4.8 Coment Plowd 37 therfore it may be doubted also whether suche a WarraÌ„t be good or no. The Case was there that a Iustice of Peace in one Countie pursued a Felon tooke him in an other Countie wherevpon it was holden that he ought to be committed to the Gaole of the County wherein he was taken and not of the Countie wherein he which tooke hym was a Iustice for that he being out of hys
Recognusance it selfe according as he now ought to doe by the Statute 3. H. 7. ca. 1. And this may be gathered vpon the opinion 2. H. 7.1 and maye bée séene by this form of it here vnder written GEORGE MVLTON one of the Iustices of the Peace of our Soueraigne Lady the Queenes Majestie within the Countie of Kent To the Shirife Bailifes Conestables Borsholders Ministers and other the Faithfull subiectes of our said Soueraigne Ladie within the saide Countie and to euerie of them sendeth greeting For as much as A. B. of c. The forme of a Supersedeas by a Iustice of the Peace Yeoman hath personally come before me at Ightham c. and hath found sufficient suertie that is to say C. D. E. F. c. Yeomen either of the which hath vndertaken for the said A. B vnder the paine of xx lb and he the said A. B. hath vndertaken for himselfe vnder the peine of xl lb that he the saide A. B. shall well and truely keepe the Peace towards our said soueraigne Ladie all hir liege people and specially towardes G. H. c. Yeoman also that he shal personally apeare before the Iustices of the Peace of our said soueraign Ladie within the said Countie at the next general Sessions of the Peace to be holden at M. there Therefore on the behalfe of our said soueraigne Ladie I commaund you euerie of you that yee vtterly forbeare and surcease to arrest take imprison or otherwise by any meanes for the said occasion to molest the saide A. B. And that if you haue for the said occasion for none other take or imprisoned him that then you do cause him to bee deliuered and set at libertie without further delaye Yeouen at Ighthā aforesaid vnder my seale this last day of Iuly in the xxiij yeare c. Which also may bée in the name of the Prince and vnder the Teste of the Iustice of the Peace thus ELIZABETH by the grace of God c. To the Shirife c. greeting For as much as A. B. hath come before G. Multon one of our Iustices of peace within our said Coūtie and hath found c. We therefore commaunde you and euerie of you that ye forbeare c. Witnesse the said G. M. at Ighthā aforesaid c. Thus muche of the Supersedeas issuing from a Iustice of the Peace the which ought to with-holde and stay the procéeding of his fellowe Iustices in the saide cause in so muche that if anye Officer by any of their Warrants hauing this Supersedea deliuered to him wil neuerthelesse vrge the partie to finde new Suerty for the peace he may refuse to giue it and if he be committed to prison for suche his refusall he maye as I thinke haue his action of False Imprisonmente againste the Officer vppon the same Much more then will a Supersedeas that commeth out of the Chauncerie or Kings Benche or from anye Iustice of the Kings Bench discharge such a Precept for the Peace awarded from any Iustice of the Peace Supersedeas out of an higher court And therefore if the Iustice of the Peace to whō such a Supersedeas shal be deliuered wil not thervpon surcease an Attachment may be awarded against him for his comtempt and he may be imprisoned and fined for it It is good counsell therefore that M. Fitz in hys Nat. Br. Fo. 238 giueth where he willeth the Iustices of the Peace after such a Supersedeas receiued to forbeare to make anye Warrant to arrest the partie it they haue awarded it then to make their owne Supersedeas to the Shirife and other Officers therby commaunding them to surcease to execute it This impediment of Supersedeas lying after this sort as you haue séene in the waye to the Iustice of the Peace thus passed ouer let vs nowe suppose the partie serued with the precepte to come before some Iustice of the Peace and let vs enter into the taking of the Recognusance of him for that is one part of the execution of the Warrant for the Peace and may doe seruice whether the partie come to him that made the Precept or to any other The taking of the Recognusance for the Peace If the Iustice of the Peace deale in thys matter as a Iudge and by vertue of the Commission then the number of the Suerties the summe of their bonde their sufficientie in goods or landes the time how long he shall be bounde and some other such circumstances are referred wholie to his own consideration and if he be deceiued in the abilitie of the Suerties hée maye compell the parties to put in others Marrow The Commune manner is to take two Suerties desides the partie himselfe and good reason it is that those shuld be such as haue their names registred in the Booke of Subsidie for albeit that here and there some maye be sufficient that were not assessed to the Queene yet it standeth not well togither that hée shoulde become bounde to the Prince in tenne or twentie poundes that was not in the Subsidie found worth any thing at all But if he commmaunde the Peace as a Minister in execution of the Writts of Supplicauit then he must behaue himselfe as the Writte it selfe directeth him and that hath not bene alwayes after one manner for some forme commaundeth him to take sufficiente Manucaptors in any peine or sum to bée reasonably set by himselfe so that hée will bée aunswerable for it at his owne perill and some willeth him to take sufficient Suertie in a summe certainelye prescribed vnto him as a hundred poundes in all or euerie of them in twentie pounds as it may bée séene at large in the Register of Writtes Fo. 89. A Iustice of the Peace saith Maister Marrow maye take this Suertie by a Gage or Pledge which shall not be forfaited therby but paunded onely that the partie shall vnder a certaine peine kéepe the Peace whiche peine he shall forfaite it he breake the Peace And by his opinion a Iustice of the Peace may also take this Suertie by an obligation made to himselfe by the name of Iustice of the Peace For so shall it bée saith hée advsum Domini Regis But if it were made vnto him without his name of Iustice of the Peace that then it coulde not bée to the vse of the King vnlesse it had the words advsum Domini Regis Maister Fitzharbert on the other side in his Nat. Bre. Fo. 81. holdeth that suche an Obligation taken to the King by a Iustice of the Peace is nothing worth for a man can not bée bounde to the Prince sayeth he but onelye by matter of Recorde vnlesse he will afterwarde come into a Courte of Recorde and cònfesse it to bée his déede pray that it may bée Enrolled there But the new Statute 33. H. 8. ca. 39 hathe made a plaine law in these cases willeth that all Obligations and Specialities made for any cause touching the
of them at the firste Precept retournable and at the seconde fourtie shillings and at the thirde fiue pounde and at euerie daie after the double And euerie Shirife of Countie and Bayly of Fraunchise that shall not duely make execution of the saide Precepts shall forfaite to the King twentie poundes for euerie defaulte and shall moreouer make fine and raunsome to the King And aswell the Iustices or Iustice aforesaid as the Iustices of Assises may heare and determine such defaultes of Shirifes or Baylies aswell by Bill at the suite of the partie grieued for him selfe as for the King onely by way of Enditement and vpon suche due attaynder he whiche sueth for himselfe and for the King shall haue the one moietie of the saide twentie poundes togeather with his costes and expenses and suche Processe shal be agaynst suche so attaynted as lieth against anie person endited or sued by writte of Treapasse with force and Armes against the Peace And the Maiors Iustices of the Peace Sherifes and Baylifes that are in Cities or Bourowes hauing fraunchise shall haue like power in the articles aforesayde as the Iustices of Peace and Shirits in the Counties haue But they which kepe by force their poffessions in any lands or tenements whereof they or their auncesters or they whose estate they haue therein haue continued their possession in the same by three yeares or more shall not be endamaged by this Statute This last Statute I have the rather exemplified at large because it contayneth a full direction in this businesse yet because I have séene some other things that â—ende to some little explanation of some of the pointes of the same which be good to be considered of I thinke that they also may be well bestowed here This Statute therefore enableth any one Iustice of the Peace to deale in this matter upon occasion geuen and is made as well against such as enter with force as against those that enter Peaceablie and then holde in with force But whether the Iustice be bounde to ermine the goodnesse of his title that entreth and accordind to the same to make or deny restitution it hath bene oft times made a question which surely in mine opinion shoulde carrie no great doubt with it For séeing that the Statute 5. R. 2. cap. 7. prohibited all entries with force although they were otherwise lawfull and the Statute 15. R. 2. ca. 2. rehearsing the same geueth authoritie to euerie Iustice of Peace vpon any suche forcible entries presently to committe the offendors there found to the Caole and this Statute meaning to supplie some other defectes in the former geueth speciall remedie to the partie gréeued by the aide of the same Iustice by restoring of him to his possession againe I see not why the Iustice of Peace who perhappes shall haue but little skill in Lawe to discerne and iudge of the Litle and yet be a fitte man to suppresse all force and able enough to restore a possession shoulde be tyed to the discussing of the right or title of either of the parties And therefore 22. H. 6. 18. admitteth this case That if A. shoulde disseyse B. and B. shoulde enter agayne and put out A. by force and strong hande yet shoulde A. be restored to his possession at the handes of the Iustice of Peace although his first entire were very vnlawfull And that thereupon notwithstanding the restitution made B. may have an Assise or else may enter vpon him againe so as he doe it in peaceable manner And I doe little doubte but that a Lessée for years or a Copieholder beyng put out with force and the Lessor or Lorde disseised thereby the Lessée or Copieholder ought to haue restitution by the helpe of a Iustice of Peace upon this Statute Now whereas the wordes bée After complaint c. that dothe not alwaies inâ—orce a necessitie of Complaint by the partie grieued For if a forcible entrie bée committed the Iustice may inquire of it and also make restitution vpon any informacion or other knowledge thereof though no complaint be made vnto him by the partie gréeued as it is holden 7. E. 4. 18. Complaint It seemeth further that it should not bée altogither requisite to the punishing of the offenders by imprisonment and fine that the partie gréeued shoulde be actually put out of possession For all the saide Statutes doe specially prohibite the forcible cntrie it selfe yet to haue restitution vpon this Statute the putting out must néedes be founde also And therefore if the case be that after the death of A. a stranger entreth into his landes and holdeth the same by force against his heire before be had gotten any possession in déede the heire of A. in this case sayth Marr. shall neuer haue restitution because he neuer had any other possession than a possession in law but no actuall possession And by his opinion also If a man claimed a rent or common in lande that is so holden with such force that he can not distraine for the one nor vse the other this a force remoueable by this statute but the partie can haue no restitution here made vnto him One person alone may commit this forcible entrie so also may he be punishable for deteining of the possession by force Entring or holding with force And it séemeth that this entrie or deteyning must be with some offensâ—ue weapoÌ„s as with bowes billes swordes stones harnesse or such like yet Marr. is of opinion that if the Iustice of Peace come and finde the doores shut and they within denying him to enter this is a deteyning with force and he may thereupon commit them If it be founde that diuers persons haue made a forcible entrie to the vse and behouse of a stranger that is absent although he doth after agrée vnto it but entreth not him selfe this is no force in him for sayth 2. H. 7. 16. A forcible entrie can not be without an entring actually Enquirie The enquirie is to be of Iurours that must have landes or tenements of the yearly value of xl s by yeare at the least aboue all reprises And Marr. is of opinion that if it be not so the partie grieued may stay the restitution for that cause But how he can hinder the restitution that the Iustice of Peace is to make vpon such a verdit otherwise than by causing the record thereof to be remoued into the Kinges Benche I doe not well perceiue After the forcible entrie or the deteyning with force or both be founde by the enquest the Iustice of Peace ought either by himselfe to put the partie grieued in possession againe or els he may direct his precept to the Shirife to restore him Restitution But if that Iustice of the Peace which made the enquirie doe happen to dye before he make restitution whether the other Iustices of the Peace may at their Quarter Seassions hauing the recorde of that Enquirie deliuered vnto them award a writ of
Suretie of the Peace against a Lord But som others ther be perhaps with whom he may not wel medle As if any maÌ„ haue cause to require the peace against a Lord he for so small a cause is not to be arrested as I take it by warrant from a Iustice nor yet by a Supplicauit out of the Chauncerie But the Lord Chauncelor may in such case graunt to the partie a Subpoena against that Lord for it as it seemeth by 35. H 6. Fitz. Tit. Subpoena 20. For such an opinion the law hath had of the peaceable disposition of Noble men that it hathe béene thought ynough to take one of their promises vpoÌ„ Ho noâ— that he would not breake the Peace against a man If we may beléeue the report of M. Brooke Tâ—â— Contempts 6. to be true The cause for which this Suretie of the peace may be required or commanded appéereth in the first Assigâ—â—â—â— of the Commission of the Peace in these wordes Et ad omnes â—lios qui aliquibus de populo nostro de cor poribus suis vel de incendio domorum suaruÌ„ minas fecerint ad sufficiente securitate de pace c. inueniendam c. which M Fitz. so 8. construeth thus For what causes Surety of the Peace may be required He that is the thretned that he shal be hurt in his bodie or that his house or goods shal be brent may demaunde Suretie of the peace for his safegard in that behalfe But faith the court 17. E. 4. 4 if a man wil demand the Peace because he is in feare that an other man will take imprison hym it ought not to be graunted one yéeldeth the reason to be because he may have a Writte de homine replegiando or an Action of false imprisomnent and may thereby recover the damages of his imprisonment The same reason might be made against the demand of the Peace where a man is threatned with Batterie and yet it is cleare that in suche a case the Suretie of Peace ought not to bée denyed him truly to threaten imprisonment is within the words Minas de corporibus no lesse than Batterie it selfe and like harme may happen by hard imprisonment cruel beating It shal bée good therefore to enquire of this matter The Peace being thus for good cause required it is the common manner to cracte an Dathe of the party whereby the Iustice may be the better informed and induced to thinke that the party doth not aske it for malitious veration of an other but of very feare for the néedfull safetie of hymselfe and his How Suretie of the peace is to be required By Oathe And M. Fitzh in his Nat. Bre. Fol. 79 laboureth to shew that the Iustices of the Peace ought not without such an Dathe to graunt this Suretie of the Peace at any mans sute Forasmuch as not onely the Iudges of the Kyngs Bench do yet take an othe in such cases but the antient course of the Law was such in the Chauncerie it selfe also although it be now adayes otherwise used there And that a Iustice in this case may the better Iudges of this Feare let him hearken what M. Bracton Fol. 16. saith Meâ—us est saith he praesentis vel futuripericuli causa mentis trepidatio talis enim debet esse metus qui in se contineat mortis periculum vel corporis cruciatum And therefore if a Iustice of the Peace doe pereceiue that the peace is demaunded against such a person as for his impotencie is not like to breake the Peace he may safely deny it sayth M. Marrow But Satius est peccare in alteram partem as I suppose leaft if he bée staine that demaunded it the Iustice be worthily blamed for that he prouided not for his life and safetie And besides the common forme of the Recognisance is to bind a man from procuring hurte which any impotent man is able to do It resteth that I shewe by what meane this Suretie may be enioyned and that is either by Word or by Writing under Seale By what meanes Suretie of the Peace shall be enioyned By Word For a Iustice of the Peace may by word onelie commaunde a man being in his presence to finde Suretie of the Peace 9. E. 4. 3. for séeing that he is a Iudge of Record saith M. Fitzh Fol. 8. his Precept by mouth is stronger than his Precept in Writing So if the Peace be demaunded againste one that is in his presence hée may commaund the â—worâ—fe or other knowen Officer or his own seruant if they be then present also to arrest the partie to finde thys Suretie 14. H. 7. 8. Mar. But if â—yther the Officer Seruant or Party be absent then it is requisite to make a Warrant or Precept in writing The forme wherof may be thus in Englishe for I sée no cause yet why it should be directed in Latine to a Conestable or Bortholder that by all presuÌ„ption understandeth no Latine By writing or a Precept for the Peace Elizabeth by the grace of God c. Kane TO our Shirife of Kent the Conestables of the Hundered of Wroteham the Borsholder of the Towne of Ightham and to al and singular our Bayliffes and other our Ministers in the sayde Country as well wythin liberties as wythout greeting Forasmuch as A. B. of Ightham aforesayd Yeoman hath personally come before G. Multon of the sayd town Esquire one of our Iustices of the Peace within the sayd Countie and hath taken a corporall Oath that he is afraid that one C. D. of Shipborne in the sayde Countie Yeoman wyll beate wound mayheme or kyll hym or burne hys houses and hath therewithall prayed suretie of the Peace agaynst the said C. D. All or any one of these causes may Suffice Therefore we commaund and charge you iontly and seuerally that immediatly vpon the receit hereof you cause the say de C. D. to come before the sayd G. M. or some other of our sayd Iustices to finde sufficient suretie and mainprise for our Peace to bee kept towardes vs and all our liege people and chiefly towards the said A. B. that is to say that he the sayd C. D. shall not doe nor by any meanes procure or cause to be done any of the sayde euilles to any of our sayde people and especially to the sayd A. B. And if he the sayd C. D. shall refuse thus to doe that then you him safetly conuey or cause to be safel County there to remaine vuntill he sfely conueyed to our nexte pryson in the shal willingly doe the same So that hee may be before our said Iustices at the next generall Sessions of the Peace to be holden at M. in the sayde Country then and there readie to answere vnto vs for his contempt in this behalfe And see that you certifie your doing in the premisses to our said Iustices at the sayde Sessions bringing then thither this Precept wyth you Witnesse
countie had no more authoritie than a priuate man But I thinke tha Baylife may not dispute the sufficiencie or insufficiencie of such a Warrant bicause he that awardeth it is a Iudge of Recorde 14. H. 8.18 That whych hath béene hitherto saide is of the execution of the foriner parte of the Warrant for the Peace that is so saye to warne and cause the partie to come and finde Surety for the Peace But if it falout that he refuse to come and put in such Surety then may the Officer by vertue of hys Warrant conuey him to prison For if you remember the â—â—â—rdes are And if he shall refuse then c. And now for our better instruction let vs sée what an Arrest is Budee in his Greeke Commetaries is of the opinion that the Freeh word Arrest whych wyth them signifieth a Decree or Iudgement of Court tooke beginning of the Greeke 〈◊〉 that is placitum and as we might say the Pleasure or wil of a Court. What â—â— Arrest iâ— And albeit that it were not out of ourâ— way to thinke that it is called Arrest because it stayeth or resteth the partie yet I beléeue rather that we receiued the name from the Normane lawes because wée vse it in the same sense wyth them For commonly wyth vs an Arrest is taken for the execution of the commaundement of some Courte or of some Officer in Iustice But howsoeuer the name beganne An Arrest is a certaine restraint of a mans person depriuing it of his own wil and libertie and binding it to become obedient to the will of the Lawe and it may bée called the beginning of Imprisonment The Precepts and Writs of the higher Courts of Lawe do vse to expresse it by two sundry wordes as Capias and Attachias which signifie to take or catch holde of a man But this our Precept noteth it by the wordes Duci facias cause him to be conueyed c. for that the Officer hath after a sorte taken him before in that he commeth vnto him and requireth him to goe to some Iustice of the Peace To this Arrest al persons vnder the degrée of Lords or Péeres of the Realme be subiect And Ecclesiasticall persons if they bée not attendant vpon diuine seruice may bée arrested for the Peace also Mar. The ende therefore is that if the partie wil not come to finde Suertie of the Peace the Officer may vpon that Warrant arrest and carry him to the Gaole where hée shall remaine vntill that hée will fréely offer finde it Deliuerie of him that is imprisoned for refusing to finde Suertie But it is good to be enquired whether the Release or Death of him that prayed the Peace will not bée sufficient cause to deliuer such a prisoner and if it shall bée then by what order hée shall bée deliuered For as it séemeth to some that any Iustice of the Peace may vppon his offer take the Suertie and deliuer him so it may bée some doubt whether hée may bée deliuered vpon the death or release of the partie wythout the helpe of a Sessions or Gaole deliuerie It appeareth 4. E 4.16 and by the opinion of Bryan 2 H. 7.2 4. that if such an imprisoned person had a sute hanging in the Common place aforehand he might by a Writ of Priuilege be discharged of the same if they partie at whose sute he was arrested for the Peace were not ready in Court at the day of the returne of the Writ when hée should be called to pray the Suertie of the peace there again against him saith that it had bin alwaies their coÌ„mon course so to do but diuers other there were of a coÌ„trary opinio it séemeth a hard case that without any sufficient notice of such a remouing of the partie a maÌ„ shold be defeated of his Suertie so But now if the partie shal yéelde to finde Suertie of the Peace then may he at his libertie if the Precept procéede Ex officiâ— and without the Writ of Supplicauit go to any Iustice of the Peace to offer this Suertie To what Iustice bee that is arrested may goe Herevppon it happeneth often that such persoÌ„s choosing rather to be bound by any other thaÌ„ him that maketh the WarraÌ„t hauing any suspitioÌ„ of such a precept awarded or likely to be awarded do offer themselues become bounde before some other Iustice And therevpon do procure a Supersedeas from him to be discharged of any other Arrest to be made Yea many times hearing of such Precepts and misâ—iking to be bouÌ„d in the Countrie they go vp to West minister and giue Suretie of the Peace there either in the Kings Bench for a time only as the maner of that Court is or in the ChauÌ„ceâ—ie for euer as they vse it there and doe wythall procure a super sedeas from the Court where they are bounde to close the handes of the Countrie Iustices And therefore it is not amisse to say somewhat of this matter of supersedeas also If a Iustice of the Peace then will by a Supersedeas discharge a Precept of the Peace that was made by his felow Iustice he shal do wel to take the Recognusance according to the day of apparance if ther be any after the forme of the former Precept if there be any Supersedeas by a Iustice of the Peace For as it is good reason that hauing taken Suertie for the Peace he may by this Supersedeas saue the partie from finding other Suertie for the same cause So is it againste reason that he shoulde giue the partie anye other daye of apparaunce than the Precept had and thereby discharge a matter of Recorde that was made by one of equall aucthoritie with hym Fitzh Fol. 9. Much lesse may the Supersedeas of a Iustice of the Peace discharge a Precept of his fellow Iustice procéeding by vertue of a Supplicauit for that it is of an higher auctoritie Mar. This Supersedeas sente by a Iustice of the Peace is sufficieÌ„t although it neither name the Suerties nor contain the suÌ„mes in which they are bouÌ„d But yet it is the better form to expresse the both as well bycause the higher Courts vse so to doe as also if the Bailife Constable or other Officer to whom it is deliuered in discharge of his Warrant bée called at the nexte Sessions by the suite of him that sought to haue the Peace to shewe how he hath executed his Warrant and hée come in and shew foorth the Supersedeas the partie that is bounde may be called therevpon at the day that appeareth to be limited vnto him by the Supersedeas for it is vnder the seale of a Iustice and doth testifye that the partie is bound and hath founde suertie to appeare at a certaine day and if he make default that being Recorded shall bée sufficient to cause him to forfaite the penaltie of the Recognisance although the Iustice that made it out shal happen not to bring in the
King shal bee made in his own name by the words Domino Regâ— to none other person to his vse it ordaineth further that such bonds shal bee of the nature of a Statue Staple and that if any person take any obligation otherwise he shal bee imprisoned at the pleasure of the King or of his honorable Counsell The safe way therfore is to take this Suertie by Recognusance as is coÌ„monly vsed that also by the words Dominae Reginae and then vpon the forfeiture therof the Queene shall haue execution accordingly Now if a Recognusance be ment to be taken for the Peace by a Iustice of the Peace and yet do not containe within it or in the condition thereof that it was taken For the keeping of the Peace it séemeth to be voide as being then taken coram non Iudice bicause a Iustice of the Peace hath not power to take Recognusances generallie but for matters concerning his Office specially And therefore Maister Marrow addeth further that if the Recognusance bée That the Recognusor shall not mayme nor beate A. yet it is not good bicause it oughte to be For the keeping of the Peace and that may be broken otherwise as by burning the house of A. or such like misdemeanour Although this Recognusance do not comprehende any day in which the Recognusor shall appeare but bée generally to kéepe the Peace yet it is good inough in Law for the chiefe matter is The keeping of the Peace the time referred to the discretion of the Iustice and so is it by Maister Marrow if a day of his apparance be put into the Recognusance and no person be named in it before whom the partie ought to appeare for he may then saith he appeare where he wil before that Iustice of the Peace which tooke the Recognusance of him And if the Recognusaunce be in xx â—â— to be leuied only of the goods or only of the laÌ„ds of the Recognusor it séemeth to bée good ynough for peraduenture the wordes Of the goods only or Landes only shal be taken to bée void séing that the verie acknowledgement of the sum of xx â—â— before a Iudge enabled to take it both maketh it a debt and implyeth the ordinarie meane of Law to come by it If this Recognusance be taken To Keepe the Peace againste one speciall partie onlye M. Marrow thinketh it good but aduize well of it for the wordes in the Commission of the Peace bée to take suertie Erganos populum nostrum But for the better eschewing of Error hard dealing in making this Recognusance of the Peace it is good to vse the receiued forme which is thus MEmorandum quod 4. die Iulij Annoregni Domino nostrae Elizab dei gratia c. 23. The forme of a Recognusance for the Peace R. P. de Ightham in comitatu praedicta Yeoman in proprea persona sua venit coram me Georgio Multon vno Iusticiariorum dictae Dominae Reginae ad pacem in dicto comitatu conseruandam assignatoruÌ„ assumpsit pro seipso sub poena xx lb Et H. I. de L in comitatu praedicto Yeoman Et. I. F. de M. in codem comitatu Husbandman tune ibidem in proprijs personis suis similiter venerunt manuceperunt pro praedicto R. P. viz. quilibet corum separatim sub poena 100. the quod idem R. P. personaliter comparebit coraÌ„ Iusticiarijs dictae Dominae Reg ad pacem ad proximam generalem Sessionem pacis in comitatu praedicto apud Maidstone tenendam ad faciendum recipiendum quod ei per curiam tunc ibide iniungetur Et quod ipse interim pacem dictae Dominae Reg custodiet erga ipsam DominaÌ„ Reg cuuctum populum suum praecipue versus M. N. de Ightham praedicta Yeoman Et quod dammuÌ„vel malum aliquod corporate aut grauamen praefato M. N. Nec alicui de populo dictae Dominae Reginae quod in laesione aut perturbationem pacis ipsius Dominae Reg seu praefati M. N. cedere valeat quonismode non faciet nee fieri procurabit Quam quidem summam xx lb praedict R. P. quilibet manuncaptorum praedictorum praedictas separales summas 100. solid recognouerunt se debere dictae Dom. Reginae de terris tenementis bonis catallis suis cuiuslibet eorum ad opus dictae Dominae Reginae fieri leuari ad quoruÌ„cuÌ„que manus deuenerint si contigerit ipsuÌ„ R. P. praemissavel corum aliquod in a aliquo infringere inde legittimo modo conuinci In cuius rei testimoniuÌ„ ego praedictus G. M. sigilluÌ„ meum apposui Dat apud IghthaÌ„ praedict die An. supradictis Or thus a little different in forme MEmoraÌ„duÌ„ ê™ 4 die c. A. B. de IghthaÌ„ c. Et C. D. de eade Yeome venerunt corae me G. M. c. et ManuceperuÌ„s p 18. nuper de L. c. ê™ ipse personaliter coÌ„parebit coraÌ„ me praefatâ— G. M. vel socijs meis Iusticiarijs pacis D. Reg ad proximaÌ„ generaele Sessione c. Et ê™ ipse interim geret pace erga cunctuÌ„ populuÌ„ Do. Reginae praecipuè erga R. B. c viz. quilibet manucaptoruÌ„ praedictoruÌ„ sub poena 20 lb Et praedictus 18. manucepit pre seipso sub poena 40. th Quam quide summam 40 lb praedictus 1. 8. quilibet manucaptorum praedictoruÌ„ dictaÌ„ summaÌ„ 20 lb recognoueruÌ„t c. And this may bée wel done also by a single Recognusance in Latine with a conditioÌ„ added in English for the kéeping of the Peace and for the day and place of the parties apparance at the Quarter Sessions The Suertie or Recognusance of the Peace thus coÌ„maunded accaoÌ„plished order draweth me to disclose how the Iustice of the peace is to demeane himselfe with it What shall be done with the Recognusace If the Suertie were taken by vertue of a Supplicauit then must the Iustice of the Peace being in this case but a Minister make retourn of the Writ a Certificat of his doing into the Court froÌ„ whence the Supplicauit did procéed for help wherein I wil set him down that which I haue séene put in practise vpon â— Writ of that kinde The return â— of a Supplicauit First let him note vpon the backe of the Supplicauit thus Executio istius Breuis patet in quadam Scedula eidem Breui annexa Then may that Scedule be thus EGo Wilhelmus Lambard vnus custodum pacis Dominae Reginae in comitatu Kanciae certifico in Cancellariam dictae Dominae Regâ—me virtute istius breuis mihi per A. E. in eodem breui nominatum primo deliberati personaliter coram me tali die loco venire fecisse Thom R. in dicto breui nominatum ac eundem Tho. ad sufficientem securitatem manucaptores inâ—eniendum secundum formam dicti breuis viz. as the Writ shall appoint which is of diuers formes as
I tolde you before compulisse In cuius â—ei testimonium huic praesenti Certificationi meae sigillum meum apposui Dat. apud D praedictam in comitatu praedicto 5. die Iulij anno regni dictae Dominae nostrae Elizabet dei gratia c. 23 And if a Certiorari be directed out of the Chauncerie to the Iustice of the Peace for this Recognusance because it was not sente vp togither with the Certificat as there was no necessitie that it should then that Writ also may be thus aunsweared The returne of a Certiorari Vpon the backe of the Writte thus VIrtute istius breuis ego W. L. vnus custodum pacis dominae Reginae in comitatu K. tenorem securitatis pacis vnde infra fit mentio dictae dominae Reginae in CancellariaÌ„ suaÌ„ sub sigillo meo distinctè apertè mitto prout patet in Scedula huie breui consuta The which Scedule may be thus Memorandum quod 20. die Iun. c. reciting the whole Recognusance to the end therof Then In cuius rei testimonium ego praedictus W. L. sigillum meum apposui Dat. c. And this may serue also where a Certiorari is brought to a Iustice of the Peace to remoue a Recognusance of the Peace taken by him Ex officio without any such Writ of Supplicauit as you may reade in the Register Fol. 90. But if the RecognusaÌ„ce be not thus remoued from the Iustice of the Peace then may he kéep it till the Certiorari come to him for it On the other side if the Recognusance were take by vertue of his Office than whether it were by his own discretion or at the sute and desire of another he must send or bring it in at the next Sessions to the Custos Rotulorum so that the Recognusor may be ther called and if he make default then the same default to be recorded as is appointed by the Statute 3. H. 7. ca 1. The certifying of the Recognusace and release to the Sessions And here againe some difficulties doe arise the may make the Iustice of Peace sometimes doubtfull howe to holde certifie or sende in the Recognusaunce For sundrie meanes there are by which this Recognusance of the Peace may before any forfeyture therof made be after a sort discharged and therfore let vs consider them apart and withal giue some aduise what shal bée beste to do therein The Iustice of Peace that of his owne motioÌ„ compelleth one to giue Suertie of the Peace vntil a certaine day may by like discreation before that day may by release it Fitzh Fo. 10. Release of the Peace by a Iustice of Peace And if it shoulde fortune to be made to kéepe the Peace generally without any day limitted then would it be construed that it was to continue during the life of the partie bound and then could no man release it by Fitz. 21. E. 4 40 If at the suite of A. that Recognusance should bée taken To keepe the Peace against A only and none other then may A. release it either before the same Iustice or anye other that will certifie the Release which certificate being of Record wil discharge it for to release it by his déede is nothing worth Mar. And so if it bee versus cunctum populum praecipue versus A. yet may A. after that sorte release it as I thinke notwithstanding the opinion 21. E. 4.40 for albeit the it séeme popular so the others should haue equal interest with A in it yet was it taken specially for his safetie as the word Praecipuâ— doth argue plain And M. Brooke saith truely that it is so vsed at this day But whether the Recognusance bée at the suite of A. or by the méere motion of the Iustice in the behalfe of A. the Queene can not release or pardon it before that it bée forfeited both for the mischiefe that may come to A therby by Fineux his opinion 11. H. 7. 12 for that the Recognusance being taken according to the coÌ„mon forme as is before set down it is not properly a debt to the Queene vntil it bée forfeited as appeareth 11. H. 4.43 1. H 7.10 But being forfeited she and none other may pardon the forfeiture for then it is become hir proper debt Now in these cases the Recognusance may not bée Cancelled least peraduenture the Peace was broke consequetly the Recognusance forfeited before the time of the Release made Fitz. Fo. 10. therfore it shal be best in such cases to send to the Sessions the Recognusance the Release togither that may bée done in a fewe Lines vnder the Recognusaunce it selfe First for the release of the Iustice thus Ego prafatus G. M. qui supra nominatum A. B. ad pradictam securitatem pacis inueniendam ex mea discretione compuli eandem securitatem pacis quantum in me est ex mea discretione 1. die August remisi relaxaui In cuius rei testimonium huic prasentirelaexationi meae sigillum meum apposui Dat. c And for the release of the Partie before the same Iustice that tooke it thus MEmorandum quod primo die Augusti c. praefatus C. D. venit coram me prafato G. M. gratis remisit relaxauit quantum in se est praedictam securitatem pacis per ipsum versus supra nominatum A B. petitam Release by the partie In cuius rei testimonium ego prafat G. M. c Dat. c. But if the release be made before an other Iustice which hath not the Recognusaunce then this later forme must be fremed accordingly Furthermore if a man be bounde before a Iustice of the Peace to kéepe the Peace against all the Queenes people to appeare at the next Quarter Sessions and doe afterwarde procure a Supersedeas oute of the Chauncerie testifying that he hath founde suertie there against al the Queenes people for euer this will discharge his aparance at the Sessions because the graunting of this Supersedeas is the Acte of the Quéene which is the fountaine of Iustice and controlleth all other authoritie Fitz. Fol. 9. Certifying of the Recognusance Supersedeas But if that Supersedeas should testifie that he hath fouÌ„d Suertie in the Chauncerie but onelie vntill a certaine day which day is after those Sessions then M. Fitzh thinketh that his apparance at the Sessions shall not be discharged by the Supersedeas In both these cases also I would aduise the Iustice of the Peace to send in the Recognusance and the Supersedeas also if it commeth to his hands for peraduenture the Recognusaunce was broken before the Supersedeas purchased or if it were not yet he shall be excused and the Recognusor neuer a whit the more endangered thereby Lastly the death of the Prince dischargeth the Recognusance of the peace 1. H. 7.2 Cur. So doth the death of the Recognusor so also doth the death of him at whose sute it was
generall Sessions of Peace there 1. H. 7. Hunting cap. 7. Euerie Iustice of the Peace maye as well wythin Liberties as without enter into any common house or place where anye playing at the Bowles Coytes Cloth Cayles halfe-bowles Lennis Dice Cardes Lables or at anye other game prohibited by anye former Statute of whych sorte be Footeball and casting of the stone by 12. R. 2. ca. 10. or playing at any vnlawfull game alreadie innented or hereafter to be inuented shall be suspected to be vsed against this Statute and may arrest as well the kéepers of suche places as the players there and imprison them vntill thosc kéepers finde Suerties to the Duéeees vse to be bounde by a Recognusaunce or otherwise no longer to occupie anye suche play or place and that the persons founde there playing bée in like forte bounde by themselues or wyth Suerties at the discreation of the taker no more to playe or haunte at or to anie of the sayde places or at any of the saide games Vnlawfull games And euerie Iustice of the Peace finding or knowing anye person not exrepted by this Statute to vse anye vnlawfull game contrarie to thys Acte maye committe hym to warde there to remayne wythout bayle or mainprise vntill he become bounde by Obligation to the Quéenes vse in a summe to be thought reasonable to that Iustice that he shall not from thenceforth vse suche vnlawfull games 33. H. 8 cap. 9. Anye one Iustice of Peace by the large wordes of the Statute maye enquire heare and determine by hys discretion as well by examination as otherwise the offences committed in Tilemaking and assesse the Fine therein limited Tyle And maye call before hym at anye time or place suche as haue beste knowledge in Tilemaking and appoint them Searchers of the sayde defaultes 17. Edward 4. cap. 4. But learne whether it bée so to bée taken or no. If anye Souldiour seruing the Duéene in hir Warres doe sell gyue away wilfully purloine erchaunge alter or put away any Horsse Gelding Mare or Harnesse wherewith be shal be set forth or which being taken from any other souldiour shall be appointed vnto him and doe escape the punishment which the Lieutenant high Admirall the Kings Deputie the Viccadmirall Wardein Captaine their Deputies in their absence may laye vppon him by this Staute then vppon complaint and due proofe of the offence to bée made by the owner hys executors or Administrators to any Iustice of Peace where suche offendour shall bée founde he shall be by him committed to Warde there to remayne wythout baile or mainprise till he shall haue satisfied the owner his executours or Administrators of such Horse Gelding Mare or Harnesse so sold gyuen awaye c. vnlesse hée bring with hym before the same Iustice sufficient testitmonie from the sayde Lieutenaunt or anye of the persons aboue named in writing vnder their Seale testifying that the saide Horsse or Harnesse was loste in the Quéenes seruice againste the wyll of that Souldiour or was taken by anye of them from hym for anye reasonable respecte and appointed to some other to serue wythall 2. and 3. Edwardi 6. cap. 2. Souldiours selling horse or harnesse If anye person to whome anye Agnus Dei Crosse Picture Beade or such superstitious thing from the Sea of Rome or the auctoritie thereof shall bée offered or deliuered doe disclose the name and dwelling or place of resorte of suche offerer or deliueredr to any Iustice of Peace of that Shire where hée to whome suche offer or deliuerie is shall bée restant then that Iustice muste wythin fourtéene dayes next after declare the same to some one of the Quéenes priuie Counsell Agnees Der. 13. Elizab. cap. 3. Euerye Iustice of Peare maye wythin one Moneth after the speaking or reporting committe to Warde anye person beyng vehemently suspected of saying or reporting of any slaunderous news or thles agaynste the Quéenes Maiestie vnlesse he do put in Suerties to appeare at the nexte Quarter Sessions or Gaole deliuerie there to remayne till he shall finde Suerties for surhe hys apparance Slaunderous newes And maye also wythin one Moneth after suche speaking or reporting rereyue the accusation thereof and putte the same and the names of the Witnesses in writing and certifie it at the next Quarter Sessions or Gaole deliuerie 23. Elizab. ca. 2. If anye offendor confrarie to the Statute prouided againste the Disturbers of anye Preacher shall bée arrested and brought before a Iustice of the Peace then be vppon due accusation there vpon hadde by the sayde arrestor or othet person shall foorthwyth committe the partie so taken to safe custodie by his discretion Disturbing of Preachers And wythin fire dayes nexte after the accusation he and one other Iustice of Peace sall c. 1. Mar. Parlia 1. ca. 3. But enquire if all thys Statute bée not repealed by 1. Elizab. cap. 2. in generall worbes at the latter enbe thereof Euerie Iustice of the Peace may within one Moneth after the arriuall seaze all the gwdes of anye outlandishe persons calling themselues Egiptians that shall come into thys Kealme and maye also kéepe the one moitie thereof to hys owne bse makyng accompte to the Quéene in the Escheaquer for the other moifie Egiptians And euerie person that can prooue by two credible witnesses before him that so seazeth that any of those goodes were craftily or feloniously taken from him shall be incontinently restored thereto before the partie that so seazed them vppon paine of the double valewe thereof to be forseifed to such proouer 22. H. 8. cap. 10. But note that after the Moneth the offence is made Felonie and then it séemeth the Quéene is to haue the goodes wholly 1. 2. Phil. Mar. ca. 4. If any one Iustice of the Peace do ioyne with the Clearke of the Peace in taking the Inroilment of an Indenture of bargaine and sale of lands fenements or heredifaments lying in that Countie where he is Iultice it is sufficient as it séemeth by the wordes of the Statute Inrollmer 27. H. 8. cap. 16. Euery Iustice of Peace maye eramine search by his discrefion such as doe seel or set soorth so be solde any Candels and other workes of Ware at higher price than after the rate of foure pence the pounde ouer the common price of plaine Ware betwéen Merchant Merchant and may also punish them by forfeiture of the worke fette foorth to sale and of the balewe of that whiche is solde and by Fine to the King Warke of Waxe 11. H. 6. ca. 12. as it séemeth by the large words of the Statute Anye one Iustice of Peace is warranted to fette on the Pillorie in the nexte Market Towne to the place of offence any person that hath broken the Assise of Fewell and is conuicted thereof and not able to pay the forfeiture there to be at eleauen of the clocke vppon the Market daye wyth a Billet or Fagot
was not premeditate is doubtlesse within the words and meaning of this Statute â—oluntate And so much the more is that which is done in such a case of malice prepensed as I thinke For if two do sodainly fall out and thervpon draw their weapons and one killeth the other this is Manslaughter apparantly within the compasse of this Lawe So if one be in the company of him that of malice prepensed setteth vpon another to murder him and doth of a fodaine take the murderers part so that the other partie is slaine this is Manslaughter in him according as the word is commonly understoode And so is it if two play at fence or runne at the Eilte togither and one of them bee slaine For their first Acte was unlawfull vnlesse it had beene by the Queenes licence saith Fineux 11. H 7. 23. And if A doth assult B. and striketh him and whilest B. defendeth himselfe C. commeth to parte them and is slaine by A. this is Felonie in A. But if they both hadde appointed the place of purpose to méete there to fight one with the other and C. were slaine in seeking to appease them then wil it be Felonie in both the other 22. E. 3. Coro Fitzh 262 and in Dalizons reportes If the mother destroy hir childe newely borne this is Felonie of the death of a man thougt the child haue no name nor be bapfized Coron Fitzh 418. And the Iustice of Peace may deale accordingly But if a childe be destroyed in the mothers belly is no manslayer nor Felone to be imprisoned vpon this Statute Coron Fitz. 146. 263. The husband minding to make away his wife did by the aduise of B offer hir a poysoned Apple to eate the not misfrusting any thing gaue the same to hir litle daughter that stoode by in the presence of hir husbande which childe he loued well ynough that child died thereof And this was adiudged Murder in the husbande because he offred the poyson then had a wicked intet to kil on s therewith he was the originall occasioÌ„ of this death But no offence at al in the wife for the was btterly ignorant of the euill simply gaue it hir childe taking it to haue bin very good meate 18. El. Plow Com. 474. And if a man lay poyson for Kats an other taketh it at vnwares and dyeth thereof this is not any wayes to bée layed to the others charge ibid. If a mad man or a naturall foole or a lunatike in the time of his lunacie or a childe the apparantly hath no knowledge of good nor euil do kil a maÌ„ this is no selonious acte nor any thing forfeited by it 21. H. 7. 31. 3. H. 7. 1. for they caÌ„not be said to haue any vnderstanding wil. But if vpoÌ„ examinatioÌ„ it fal out the they knew what they did the it was ill the seemeth it to be otherwise If it appeare that the partie woanded or poysoned liued a yeare and a daye after the facte then is it too late for the Iustice of Peacs to coÌ„mit the offendor to prison for then it caÌ„not be though that he died by the meanes as it sémeth Cor. Fitz. 303. But it is plaine by 3. H. 7. cap. 1. That if any man be wounded in perill of death the trespassor ought to be arrested put in safe képing till perfecte knowledge be had whether the party wouÌ„ded wil liue or dies vpoÌ„ such matter within the yeare and day the Iustice of Peace shal do wel to coÌ„mit him But this is a general learning in al cases of Murder or MaÌ„slaughter the the party hurt must be dead in fruth before it be in iudgement of Lawe faken to be either of those offences for Voluntas at this day is not construed for the déede it self as in time past it hath bin put in vre Hitherto of Manslaughter the dealeth only with the Perso other Felonies stretch to goods also as Robbery the had the name at the first of Robe because he the with force spoiled a maÌ„ toke his robes or goods froÌ„ him Felonies touching the person and goods Robberie And in this kinde of Felonie the law hath no cosideratioÌ„ of the balue of the thing take because it is take froÌ„ the person so the it is Robberie though it be but worth a peny And Braeton calleth hiut Fure improbum pradone qui rapit rem alienaÌ„ And if a man without any title take my goodes againste my will lying in a place where I am present or do manace to kyll me if I giue him not my purse by meanes whereof I deliuer it vnto him it is Robberie Coron Fitzh 178 and 115. So if Théues assaulte me in the highe way for my purse and I cast it downe into a Bush as I flie from them of purpose to saue it and they take it up Certaine persons tooke a man and compelled him by manace of killing to sweare vppon a Booke to bring them certaine money and therevpon he brought it them this was taken to be Robberie 44. E. 3. 14 But if a man lie in awaite to robbe me in the high way and draweth his sword vpon me willing me to deliuer my purse and I defends my selfe so as he hath not his wil or I take him either by fight or by hue crie it is not now take to be any Felonie saith Stamford because he hathe not taken anye thing from me and so is ther an opinion 9. E. 4. 26. But the Lawe was holden to be otherwise 27. Ass Pl 28. 13. E. 4. 7. And now seing the benefite of Clergie is taken away from Pickpurses and Cutpurses by 8. Elizab. ca. 4. let them also stand in this rancke A Burglour whome Britton calleth a Burgessor that by night breaketh into a house Wyth intent to Robbe kill or doe other Felonie though he cary nothing away is a Felone 22. Assi P. 95 27. Assi P. 38. So if he do but breake open the house feloniously by night though he enter not in sayeth Staf. Fo. 30. But if this be done by day it is not taken to be Felony at this day without some further felonious acte done sayth he yet the Booke Tie Coron Fitzh 178. 185. do not make any difference Burglarie And the Statute 1. E. 6. ca. 12. taketh awaye Clergie and Sanctuarie in case where one is conuicte or attainted of Breaking any house by day or by night where anye person being in the same shall be thereby put in feare not speaking king of any other fact And Britton defineth a Burgeslour to be he that feloniously in the time of peace breaketh open Churches or other house or the walles or gates of Cities or Burghs whereof perhappes they had their first name or rather may be deriued of Bowre that is a Chamber or inner rouine and Laron a Théfe Burning of a house malitiously and wilfully was Felonie at the common Lawe as appéreth by Bracton
of him A wife may be Accessrie to a felonie with out hir hus band by recciuing Felons into the house the husbande not knowing of it or wayuing the house to soone as he knoweth of it 15. E. 2. Coron Fitzh 383. But the wife shal not be accompted Accessorie to the felonie of hir hus band by comforting him c. neither is she bounde to discouer him Britton F. 47. But now to reture to Baylement He which within the yeare is acquited of murder or manslaughter at the Queenes sute must be remitted to prison or let to Mainprise vntill the ende of the yeare and the partie grieued may in that meane time commence the Appeale 3. H. 7-ca I. Further mée thinketh that I may set downe this as a rule euen at the common law conerning Bailements That Iustices of the peace can not meddle with Bailement of any prisoner except he be prisoner for such cause as whereof the Iustices of the peace be competent Iudges Which also was the cause that one Iustice of the Peace by force of the Commission onely could not that haue bailed suspectes of Felonie before that they were indited thereof as I folde you For out of their Sessions and till inditement they toere no Iudges of the master And on the other side it sémeth that two Iustices of the peace the one of them being of the Quorum may out of the Sessions baile such as come into prison by the processe of the Sessions made vpon penall lawes not forbidding baile because they be competent Iudges of al those matters insomuch as two such Iustices may heare determine them Sundrie doubts I confesse may be made concerning the busiesse of Baile which I am not able to dissolue therefore am not much willing to moue Dnely this J will say for all that it becommeth Iustices of the Pear to be bery circumspect in graunting Baile both for feare of wrong by denying it to him that is rcple uisable and for feare of daunger to the seruice it selfe by giuing it where it is not grantable And therfore I adnise them to consider strst whether the power of Baile whe it is required be not take from them by some of these former satutes then whether that particular statute it selfe against which the prisoner is charged to offend Doe not spesally prohibite the same fbr you sall mé méete with many statutes which doe not only take baile froÌ„ the offenders against them wpon their solemne conuiction after Iudgemcnt but also vpon the Record of some one or Iustices of the Peace by exammaion proofe by witnesles or such other triall had before them for exaÌ„ple take a fewe of each kind seeing it would proue froublesom to rehearse the all 1. He that is conutcttctc before the Iustices of the Peace vpon the sfatut of Liuerices thall be committied to prison for one whole yeare without Baile or Mainprise 8. H. 6. C. 4. Liuerics 2. He that is coÌ„uicted before them for abusing a licence of transporting bictuall shall like wife be committcd by them and shal remaine there a whole yeare without Baile or Mainpnse 1. 2. Phil. Mar. ca. 5. Licence te transporte 3. He the is conuicted before them for offciding the sfatute made against forstalling c shall be committed to the gaole for two moneths without Baile or Mainprise 5. E. 5. c. 14. Forstalling 4. And be that is coÌ„uicted before them for offence against the statute of Mustcrs shal be awarded to eu romaine in pâ—ison without Baile or Mainprise till he haue paited the forfaiture 4. 5 phil Mar. ca. 3. Mustensâ— 1. Againe if any one Iustice of the Peace shal find or know any to baue exercised any bnlawful games he may coÌ„mit him without Baile or Mainprise till he will become bound no more to vse vnlalniful games 33 H. 8. ca. 9. Gamerâ— 2. â—o he that is conuicted before two Iustices of the peace to haue refused to srue for such wages as is by order appointed shal remaine in prison wout Baile or Mainprise till he wil be bouÌ„d to serue accor dingly 5. El. ca. 4. Seruaune 3. He that is committed by two Iustices of the Peace for kéeping a common Ale-house of his owne audoritie shal remaine in prison thrée daies without baile or mainprise 6. E. 6. ca. 25. Alehouse 4. And the reputed father or mother of a Bastard childe that will not perfourme the order set downe by two Iustices of the peace thereto auctorised shall be committed and shal remaine in prison without baile or main prise till he or she will be bound c. 18. El. c. 3. Bastarde Nów for an ende of Bailement I will shewe you one hiforme of a Baile and an other of a Liberate Memor andum qùod decimo die mensis Octobris Annoregni c. coram nobis G. M. W. L. duobus Iusticiariorum c. assignatorum venerunt A. B. C. D. de E. in dicte comitatu Yeomen ceperunt in balliù F. G. c. Laborer captum detentù in prisona pro suspicione Cuiusdam felonia éTC vsque ad proximam generalem Gaolae deliberationem in comittatu praedicto tenendam Et assump serunt super super se scilicet quilibet corum sub poena 20. lib. de bonis et catallis terries et tenementis coruÌ„ et curuslibet corums ad opus dictae D. Reginae Leuandarums si pradictus F. G. ad candem proximam Gaols deliberationem personaliter non comparebit coram Iusticiarijs dicta Dominae Reginae ad dictam Gaolam deliberandam assignatis adrespondendum dictâ— Domimae Reginae tunc ibidem de et super omnibus quaeilli obijcientur Datum sub sigillis nostris die et anno supradictis The Baile GEORGE M. and W. L. two of the Iustices of c. The Liberate To the keeper of her Maiesties prison in in Maydstone c. greeting Forasmuch as F. G. c Labourer hath before vs found sufficient mainerprise to appeare before the Iustices of Gaole deliverie at the next generall Gaole deliverie to be holden in the said Countie there to aunswere to such things as shal be then on the behalfe of our said Soueraigne Ladie obiected against him and namely to the felonious talking of to sheepe for the suspition whereof he was taken coÌ„mitted to your said Gaole we commaunde you on the behalfe of our said Soueraigne Ladie that if the said F. G doe remaine in your said Gaole for the said cause for none other then you forbeare to grieue or detaine him any longer but that you deliver him thence and suffer him to go at large and that vpon the paine that will fall thereon Yeouen at Ightham aforesaid vnder our Seales this tenth day of October c. The authoritie of some two Iustices of the Peace goeth yet further for the common manner is that two Iustices of the Peace the one of them being
carrie sufficient forme and matter with them Iustices of the Peace must looke vpon Enditements And if the billes doe wante forme onely the Iustices may sende for the Presentors and cause the to reforme them at any time before they bée remoued into the Kings Benche Stanf. 97. And therevpon it is sayde 35. H. 6. 14 12. E. 4. 18. that if a bill of Enditement bée deliuered to a Iustice of the Peace at or before the Sessions which he promiseth to reade and to deliuer to the Iury and doth it accordingly yet he shall not bée punished for it in a writte of Conspiracie But it may bée therevpon deubted whether he should bée so charged or no if vpon former communication had and request made he hun selfe did drawe and write the bill and therefore the safest way is to suffer the Clearke of the Peace or some other Ministe of the Court to drawe and frame if But to the matter First this is generall that all Bills Informations and Enditements grounded vpon penall Statuts wherein the Prince onely is to reape the forfaiture ought to bée commenced within foure yeares next after the offece committed and if the suite bée giuen to any other person for him selfe and the Prince or for him selfe onely that ought to commence for the Prince within two yeares and for euery common person within one yeare next after the offence done And otherwise it is méerely voide vnlesse it bée otherwise limited by that speciall Statute vppon which the Information Enditement or Presentment is made and framed 7. H. 8. ca. 3. And if many bée ioynfly endited in one Enditemet yetare they also eache one seuerally endited thereby 5. E. 4. 5. Markam Secondly all Enditements for as much as they bée in the nature of a declaration ought to conteine certaintie and therefore as sayth M. Marrow fiue principall things bée moste commonly requisite in presentments before the Iustices of Peace videlicet 1. The name surname and addition of the partie endited 2. The yeare day and place in which the offence was done 3. The name of the person to whome the offence was done 4. The name and value of the thing in which the offence was committed 5. The manner of the fact and the nature of the offence as the manner of the treason murder felonie or trespasse The name and surname of the partie endited must be certainly expressed if the Enditement bée of an Accessorie in felonie the name of the principall must bée set downe also The name surname For if the Enditement bée quod A mandauit cuidam ignoto occidere B. id quod fecit this is vicious but in treasoÌ„ trespasse or maihem where all bée principals it may bée quoòd procurauit curauit personas ignotas to doe the treason trespasse or mayhem Marr. Besides the name and surname of the partie endited there ought also by the Statute 1. H. 5. ca. 5. in euery presentment wherein processe of vtlawrie lyeth to bée added his estate degree or mysterie and the Countie Towne Hamlet or Place where he is or was conuersant Addition of estate degree c. And euen so ought it to haue bene at the commune Law also as touching names of dignitie made by creation as Duke Marques Earle Vicount Archbishop Bishop Khight or Serieant at the lawe bicause euery of these titles were accompted percell of the name But it was not so for the names of Baron Banneret and Esquier which are but names of dignitie without creation nor for Chauncelor Treasorer Chamberlaine Shirife Coroner Eschetor Baylife Deane Archedeacon Deacon Prebendarie or Person which are names of dignitie by reason of office onely vnlesse the presentment did charge them in respect of their offices for then the name of office also as Bailie or Elchaetor ought to bée vsed in the Enditement Marr. But now BaroÌ„ Knight Esquier GetlemaÌ„ Alderman Widow Singlewoman Deane ArchdeacoÌ„ Person Doctor Clerke are good Additions of estate or degrée as take it within the meaning of this Statute of Additions But Seruant Butler or Chamberlaine are not bicause they bée commune to gentlemen and yeomen and thereby vncertaine Degree or mysterie So Merchant Grocer Mercer Taylor Broker Husbandman Hosteler Labourer Lighterman Waterman c. bée good Additious of misterie But Citizen is not â—cause it is no misterie arte or degrée Neither is Mamtainer Vagabound Hereticke Dicear Carder or such like any good addition bicause they are euery one euil against the lawe Also by the said Statute as I sayd the Addition ought to compprehend the Countie and the Towne Hamlet or place knowne out of any Towne or Hamlet whereof the partie is or was So that if there bée diners Hamlets in one Towne he may be named of the Towne or Hamlet But if he bée with in a Towne then he must bée named of the Towne Place 35. H. 6. 30. And if the Towne and the Parishe beare both one nanfe he may be named of the one or of the other of them But if there bée two Towne in one Parishe then he ought to bée named of the Towne and not of the Parishe 5 E. 4. 129 22. E. 4. 2. As for the Alias dectus whiche is often put in the Addition the vse thereof is chiefly in Writtes grounded uppon especialties and to make the writte and the wryting to agrée Alias dicius For as touching Enditemets if the partie bée not well named both for his name of Baptisme Surname Misterie or degrée and place at the first then can not the Alias dectus make that good which was voide before Marr. And it appeareth 1. E. 4. 2 2. E. 4. 1. 6. that the Addition of the degrée or mysterie must alwayes bée suche as the partie hath at the verie tyme But the Addition of the place may bee of such where be was at any tyme before so that then the worde nuper bée vsed there Furthermore the Enditement must containe the daye yeare and place in which the offence was committed The yeare day and place 8. E. 5. 8 2. H. 7. 7 25. E. 3. 43. And therefore if the Enditement suppose it the tenthe daye of Marche without any more that is not good But if it bée the tenthe daye of Marche laste paste without shewing in what yeare that is good enoughe for the certaintie may be founde out by the Stile of the Sessions So it it bée the tenthe daye from Easter Anno 23. Elizab. that is good Likewise if it bée in the Vtas of the holye Trinitie and it shall bée there vnderstoode to bée the verie daye of the Vtas videlicet the eyght daye after the feast and not quarto die after the Vtas But if it bée in festo Sancti Petri it is not good bicause there bée diuers feastes of Sainct Peter and none without addition sayth 3 H. 7. Fitz. Enditements 22. If it bée Anno Domini millesimo quingentesimo octuagesimo primo the
against the Peace or suche other contemptes the Processe is one and vpon Enditements of Treason or Felonie it is another The general Processe vpon Enditements of Trespasse Vpon Enditements of Trespasse against fhe Peace of Conspiracies and of Routes in presence of the Iustices or in affraye of the people if the offendors may not be founde nor brought in by Attachment or Distresse by reasoÌ„ of their insufficiencie the Processe Processe of Vtlawrie is to bée awarded by the Statutes 18. E. 3. Stat. 1 18. Ed. 3. Stat. 2. ca. 5. The like is against suche as bée endited vppon the Statute of Liueries 8. Henrie 6. cap. 4. Abd a Venire facias firste and then if therevpon he bée retourned sufficient a Distringas and so the same Procese infinite til he come in but if a Nihil habet c. bée at the first returned against him then a Capias alias pluries and after an Exigent as it séemeth by Maister Marrow and the olde precedents agréeing with the CoÌ„mon Course as I take it is the ordinarie Processe vpon al enditements not sounding in Felonie or greater offece whether they bée of Trespaslse against the Peace or of contemptes againste penall Laws vnlesse it bée otherwise specially prouided by those same Statutes wherevppon suche Enditements bée altogither grounded Of which sorte these bée some The statute 22. H. 8. c. 5. coÌ„cerning Bridges in Highwayes alloweth suche Processe as the Justices of the Kings Benche doe vse or suche as the Iustices of the Peace them selues shal think méete by their Discretion for the spéedie amendement of those Bridges Speciall Processe VpoÌ„ Enditements of Liueries maintenaÌ„ce Archerie vnlawfull games c. by the Statute 33. Hen. 8. cap. 10. there was giuen one Venire facias one Capias and then the Exigent But it is to bée weighed whether the Statute 37. Hentie 8. cap. 7. whych vtterlye replealeth that Statute 53. Henrie 8. doe transferre the manner of that Processe vnto the auntiente Quarter Sessions as it doeth sundry other partes of the said Statute The Statute of Labourers 23. H. 6. cap. 13 gaue after Enditements grounded therevppon an Attachement Capias and Exigent But I thinke it no great doubt but that that pointe is taken awaye by the new Statute of Labourers 5. Elizabeth cap. 4. as well as all the residue of that Statute is The Statute 5. E. 6. ca. 25. giuth power to the Iustices of Peace to enquire of Alehouse kéepers whether they haue done any acte to the breach of their RecognusaÌ„ce Procrsse vpon Recognusance And if any such matter be presented then to awarde Processe against the offendor to shew why he shoulde not forfeite his Recognusaunce but what this Processe shal be I wil not determine For I doe not finde that in anye other case thoughe it appeare that any man hath forseited any Recognusaunce that the Iustices of the Peace can awarde anye Scire facias or other Processe to cal him in vpoÌ„ it but are rather to certifie the same into higher Courtes that from thence Processe maye issue out to call the partie to answere therevpon Some other Statutes there bée that haue extended the auctoritie of the Iustices of Peace in sending Processe beyonde the boundes of their owne Commission Processe in to other Shires For by the Statute 1. E. 6. ca. 1. thrée Iustices of the Peace the one being of the Quorum maye make Processe against such as be there vpon endited for deprauing the Sacramente by two Writtes of Capias and the Exigent and by Capias vilagatum into any place within the Queenes dominions So if a Seruaunt departe into an other Shire the Iustices of the Peace of that Shire where the departure was maye graunte Writs of Capias to the Shirife of the other Shire where the Seruaunt is returnable before themselues 5. El. ca. 4. The like may they doe by the saide Statute 22. H. 8. ca. 5. where a decayed Bridges lyeth in one Shire and the person or landes chargeable thereto doe lye in an other Shire But if the Enditement bée in one â—oâ—tie and the Enditée bée named to bée then or Nuper dwelling in an other Countie there is a speciall course of Processe in that behalfe for his benefite appointed by the Statute 8. H. 6. cap. 10. both for Treson Felonie and Trespasse for before any Exigent shall bée awarded one Capias must be sente out and retourned and then a second Capiâ—â— shall goe into the Countie where he is supposed in the Enditemente to bée or to haue bene conuersante retourneable before the same Iustices of the Peace before whom the Enditement was taken thrée monethes at the least after the date thereof for al Counties be now holde froÌ„ moneth to moneth by 2. Edwarde 6. ca. 25. by which laste Writte the Shirife shall be commaunded to take the Enditee if he maye bée founde within hys Bay liwike and if not then to make Proclamation in two Counties before the return of that Writte that the Enditee shall appeare before the sayde Iustices of the sayde Countie where the Enditements was taken at the day contayned in the last sayde Capias to aunsweare to his offence at which day if he come not then the Exigent shall bée awarded against hym and otherwise not And by the equitie of this Statute of 8. H. 6. ca. 10 saith M. Marr. if the Enditee be imprisoned in an other Countie the Iustices of Prace may awarde an Habeâ— corpus to remoue him before them At this Processe of Vtlawrie may be staid by a Super sedeas And Fitz. in his Nat Br. â—o 237. hath the case that if an Exigent goe out vpon an Enditement of Trespasle found bedore Iustices of the Peace fhe partie maye finde suerties in the Chauncerie bodie for bodie to appeare at the day of the Writ and may then also haue a Supersedeas from there to the Shirife coÌ„maunding him to forbeare to take him to let him go if he haue then alreadie taken him for the cause Supersedeas to stay Procesle And again you may sée in the new booke of Entrees Fo. 546 the Processe vpon such an Enditement staied by a Supers edeas issuing froÌ„ one Iustice of the Peace alone testifying the the partie came before him found suerties de fine assidendo But as I beléeue the former so wil I not perswade the practize of the latter bicause I thinke it not in the lawful power of anye one Iustice of the Peace to award any such warrant but it must be done by two Iustices at the least I haue yet to speake of Processe vpoÌ„ Enditements of Treason and Felonies wherein I wil bée short that I may passe ouer to other things Processe vpon Enditements of Treason and Felonies c. The Proces vpoÌ„ an enditement of Treason forcountersaying mony is by Capias only so set forth 3. H. 5. ca. 7. neither is there any other Treason wherevpon the Iustices
part that kinde of learning is most requisite and seruiceable And this was the reason that led the makers of the Statuts 18. E. 3. ca. 2.34 E. 3. ca. 1. 13. R. 2. ca. 7 to cause it to be expresly enacted that some lerned in the laws should be put into the Commission and all Statutes that desire the presence of one of the Quorum do secretly signifie such a learned man But here againe the Commission chorda quae semper oberrat eadem doth make muche relation to the saide Statutes that are not now at all The power giuen to these Iustices hathe appeared 3. The charge to them the Shirife and Custos Rotulorum Now let vs sée the charge giue to them and others They therefore and euery of them be charged to be diligentlye intendant aboute the execution of the premisses by these wordes Et ideo vobis c. but howe negligentlie many of them performe it I am afraide it is too manifeste whylest ambitiouslie séeking the name and power to rule they take smal care of doing their duetiful seruice that beloÌ„geth thervnto In this clause is contained a sauing vnto the prince of all amercements other things that shal growe due vnto hir by reason of their procéedings therevpon of which I will speake somewhat hereafter in place conuement The Shirife is saide to haue bene charged aforehand to be attendant in the Returne of Iuries before them in these words Mandauimus enim Vicecomiti c. And the Custos Rotulorum for it is meant of him althoughe he be not so there called is charged to bring the Records Processe of the Peace and in due sorte to consider and directe the same by these words Et vos praefatae Thom. Wootton c. Of whose office and authoritie somewhat shall be sayd also in particular in the second Booke of this treatise Of the two Othes ministred to the Iustices of the Peace CHAP. X. SVch as occupie Iudicial places ought to take héede what they doe knowing as Iehosaphat saide that they exercise not the iudgements of Men onelie but of God himselfe whose power as they doe participate The causes why Iustices be sworne So he also is present on the Bench with them And therefore it hath béene alwayes the policie of Christian lawes to appoint méete formes of Religious attestations or Othes for such Officers to take meaning thereby not onlie to set God continually before their eyes whome by suche Othe they take to witnesse of their promise call for reuege of their falshood but also to threate them as it were with temporall paines prouided against corrupt dealings withall to strengthen their minds and arme their courages againste the force of humaine affections whiche otherwise might allure draw them out of the way Vpon this ground the Statute 13. R. 2. Stat. 1. ca. 7. which willed that Iustices of the Peace should be made of new in all the Counties of England did there withall take order that they should be sworne to keepe and put in execution all the Statues touching their office whiche albeit that it be the firste Othe that I find to haue béene ministred to Iustices of the Peace yet I think they were not vnsworne before nor at any time after as may be collected vppon the bookes 21. E. 4.67 12. E. 4.18 and I beléeue also that that manner of Othe was deuised but for that time onelie and continued not long in that forme as being of it selfe very generall and hard to be obserued And that happily was the cause that it appeareth to be changed to that forme which M. Fitzh in his Booke hath left vs and which with the alteration of a fewe wordes onelie is yet at this day put in vse For vpon the renuing of the Commission of the Peace which nowe a days hapneth as often as any person is newly broughte into the same there commeth of course a Writ of Dedimus potestatem directed out of the Chauncerie to some auntient Iustice of the Peace to take the Othe of him whose name is newly inserted and to certifie the same into that Courte at suche daye as the Writ commaundeth This Writ is at this daye accompanyed wyth twoo Scedules whereof the one containeth the Othe of the Office of a Iustice of the Peace in his forme Ye shall sweare that as Iustice of the peace in the Countie of Kent in all Articles in the Queenes Commission to you directed yee shal doe egall right to the poore and to the rich after your cunning wit and power and after the lawes and customes of the Realme and Statutes thereof made And yee shall not be counsell wyth anie quarrell hanging before you And that ye hold your Sessions after the forme of Statutes thereof made And the issues fines amercements that shal happen to be made and al forfaitures which shal fal before you ye shal cause to be entred without anie coÌ„cealement or embeaseling and truely sende them to the Queenes Escheaquer Surcease in the printed Booke Yee shal not Let for gift or other cause but wel and truly yee shal do your office of Iustice of the Peace in that behalfe and that you take nothing for your Office of Iustice of the Peace to bee done but of the Queene and fees accustomed and costes limited by the Statute and yee shal not direct nor cause to bee direted anie warrante by you to bee made to the parties but yee shall direct them to the Bayliffes of the said Countie or other the Queenes officers or ministers or other indifferent persons to do execution thereof So help you God and by the contents of this Booke And his Saincts in the Printed Booke The variance betwéene this and that elder forme standeth as you may sée by the Margent in thrée points whereof twaine be of no waight at all but the third did néed amendment For right godlie and wel did those 32. persons that were put in truste to pen Ecclesiasticall lawes purpose to make this lawe amongst others Legitimun autem iuramentum ys verbis nullis alys suscipi volumus Ita me Deus per Dominum nostrum Iesum Christum adiuâ—et This Othe of the Office consisteth of sire Articles which for memories sake I haue séene expressed in these 6. Verses folowing Do equall right to rich poore as wit lawe extends Giue none aduise in anie cause that you before depends your sessions hold as statutes bid The forfeites that befall See entred well and then estreate them to the Cheaquer all Receiue no fee but that is giue by Queene good use or right Ne send precept to partie selfe but to indifferent wight 1 2 3 4 5 6 The other Scedule comprehendeth that forme of Othe which after the seconde abolishment of the vsurped authoritie of the Romish Pharao by the ioyous entrie of our gratious Queene Elizabeth was in the first Parliament of hir raigne ca. 1 appointed for Iustices of
The sorts of punishment Corporal punishment is eyther Capitall or not Capitall Corporall Capitall or deadly punishment is done sundrie wayes as by hanging burning boyling or pressing not Capitall is of diuers sortes also as cutting off the hand or eare burning or marking the hand or face boaring through the eare whipping imprisoning stocking setting on the Pillory or Cucking stoole which in olde time was called the Tumbrell Of this kinde of punishment our olde lawe making pretious estimatioÌ„ of the liues of men had moe sortes than we now haue as pulling out the tongue for false rumours cutting off the nose for adulterie taking away the priuie partes for counterfaiting of money c. Vnder the name of Pecuniarie punishement I coÌ„prehend al Issues Fines a mercâ—aments Forfetures of offices goods or laÌ„ds Pecuniarie And if the Iustices of Peace may by vertue of their Commission deale with suche Conspiratours as do confederate togither to cause any person vniustly to be indited of Felome where of after ward he is acquited as some do think they may thé is ther a speciall punishment in that case appointed by lawe which in 24. E. 3.73 is tearmed Vilanous and may be well called Infamous because the iudgement in suche case shall he like vnto the auntient iudgement in Attaint as it is saide 4. H. 5. Fitzh Iâ—famous Iudgement 220. and is in 27. lib. Ass P. 59. set downe to be that their othes shall not be of any credite after nor lawfull for them in person to approch the Quéenes courts that their lands and goods be seazed into the Quéenes hands their trées rooted vp and they imprisoned c. And at this day the punishmet appointed for Periury hauing somwhat more in it than Corporall or Pecuniarie paine stretching to the discrediting of the testimonie of the offendor for euer after may bée partaker of this name That Iustices of the Peace bee Iudges of Recorde CAP. XIII IT maketh not a little both for maintenance of the Peace and for the credite of the Iustices thereof that they are numbred amongst the Iudges of Recorde for on the one side euil doers wil be afraid when they shall sée Memorialles of their wickednesse before their eies and on the other side the procéedings of those Iustices shall be so much the more reuerenced set by as it shall appeare that their endeuours are countenaunced with the fauour of authoritie And therefore let us sée what is meant by the word Recorde The Latine men vse Recordor when they will signifie to kéepe in minde or to reméber in which sense the Poet saide Siritè audita recordor Recorde what it is And after the same sense also doeth oure Lawe use it For Records be nothing else but Memorialles or Monuments of things done before Iudges that haue credite in that behalfe And therefore where King E. I. doth in the beginning of the Booke called Britton set foorth the Iudges of his Courtes he saith of some that they shall have authoritie of Record and of others that they shall beare Record all which do meane but one thing namely that they shall be trusted in the reporte of causes happening before the and we yet say in common speeche Suche a man shall beare record of a thing when we intend to say that he remembreth it and can beare witnesse of it So that in the vse of the word there is in maner no differece and therefore let us examine the matter One man may affyrme a thing and another may deny it but if a Record once saye the worde no man shall be receiued to Auerre or speake against it For saith M. Bracton Fol. 156. writing of a speciall case where the Shirife in his Countie hath Record If men shoulde bee admitted to deny the enrolled actes of the Court then would there neuer bee any ende of controuersies And therefore to auoide all contention that may arise whilest one saith one thing and one other saith an other thing the Lawe reposeth if self wholy and solely in the report of the Iudge and hereof it commeth that he can not make any Substitute or Deputie in his office as M. Bracton and Britton bothe do affyrme séeing that he may not put ouer the confidence that is put in him This Record or Testimonie is first contained within the brest of the Iudge as our Law speaketh afterward committed to the Rolles which are therefore figuratiuely called Records also For you may sée 7. H. 6.28 in Hildebrands case 19. H. 6.9 and elsewhere that during all the time of that Terme in which any thing passeth before the Iustices at Westminister the Record therof is in Scrinio pectoris in their owne harts or breasts so that they may at their own pleasure correct or amend it But that after the Terme ended it is only in their Rolles ouer the which they haue no coÌ„trolment The Rolles be Recordes And this agréeth right well with that which Britton F. 01.3 affirmeth saying in the Kings person thus And albeit that we haue graÌ„ted to our Iustices to beare Record of the pleas pleded before the yet by this we will not that their record shall be any waraÌ„t in their own wroÌ„g nor that they may raze or amed their Roll nor make Record against their enrolment Thus much generally of al Iudges of Record Now touching our Iustice of the Peace it is the opinion of the Court 9 E. 43 and 14. H. 8.16 and of diuerse other Books in our lawe that euerie one of them by himselfe is a Iudge of Recorde For as you haue heard he is made by the great Scale a matter of Recorde and hath Iudiciall power giuen unto him euen by the first Assignauimus of the Commission He hath also a Scale of his Office by the opinion of Brudnell 14. H. 8.16 if he make any WarraÌ„t although it be beyonde his auctoritie yet it is not disputable by a Conestable or other inferiour Minister but must be obeyed And he maye take a Recognisance for the Peace as appeareth 7. H. 4.34 common experience telleth it which none caÌ„ do but a Iudge of Recorde bicause the acknowledging of the sum is to remaine as a matter of Recorde Yea by good opinion 2. H. 7.1 A Supersedeas of the Peace made by one Iustice of Peace under his seale being brought into the Sessions is a sufficient Recorde to proue that there is a Recognisance of Peace taken by the same Iustice and warrant ynoughe to call the partie bounde thereuppon and if he make default to Recorde the same Moreouer his Recorde or testimonie is made in some case of greater force and value than an Enditement by the oath of twelue men for his Record as shall appeare hereafter in place conuenient shall conclude the partie so that he shall not be admitted to Trauerse or gainsay it by 21. H. 6.5 Fâ—zh Fol. 18.6 upon the statute 15. R. 2. ca. 2.11 H. 7. ca. 15. 33.
taken if so be that it were made to kéepe the Peace against him alone But although the Mainpernours or Suerties die yet the Recognusance liueth for if the Peace be broke after their deaths their executors shal be charged with it Certifying of the Recoâ—â—â—sance though it be discharged by death 21. E. 4.40 Neither in the former cases is the Recognusance discharged by such death if it were forfaited before And therefore here againe my counseld is to sende in the Recognusance to the Custos Rotulorum for other wise how shall the Iustice of Peace be assured that he doth not defraude the Queene of a forfaiture that was growen vnto hir Thus haue I both bound the party to the Peace conueyed the Recognusance from the Iustice of the Peace to the Custos Râ—â—ulorum readie to be called vpon at the Quarter Sessions So that I might forthwith procéede to treate of the good Abearing But beacuse I haue tolde you out of M. Mar. and by 21. E. 4. 40. that if the RecognusaÌ„ce of the Peace be forfeited and that forfaiture bée leuied so that the Recognusance is vtterly determined yet of Discrtion the partie is to bée compelled to finde new Suertie or else to be sent to prison because it appéreth euideÌ„tly that he hath broken peace and is a stubborn offendor against the law I thinke it fit to run swiftly ouer some few things that may enfourme a Iustice of the Peace concerning suche forfaitures to the end that he may therevpon compell the offendor accordingly Causes of forfaiture so that the partie shall be compelled to giue new Suerties The Condition of this Recognusaunce of what good forme soeur you make it standeth upon two points the one for apparance at a time the other for kéeping the Peace in the meane while Of th firste of these I haue said somwhat already in thys Chapiter concerning the second point this is generall that whatsoeuer Act is a breach of the Peach the doing therof doth al 's beget a forfeiture of the Recognusance that is made for keeping of the Peace and what actes shall amount to a breach of the Peace I will hereafter shew in the next Chapiter of this Booke where I shall to an other end haue méete place for it In the meane space take thus much here If a man bée bound to kéepe the Peace against A doe afterward threaten A to his face that he wil beate him hie hath forfaited his Recognusance And an Action of Trespasse lieth at the Common law against him the shall threaten one to beate him as appéereth in diuers Books cases 3. H. 6 18 37. H. 6. 20. shall suppose it to be Contra pacem But other wise it is if A be not presente at that threatning by good opinion 18. E. 4. 28. yet if in the absence of A. he doth threaten that he will beate him then do after ward lie in await to beate him he hath in that case also brokeÌ„ his Recognusance 22. E. 4. 35. per Cur. Like forfeiture is it he that is bound do but commaund or procure an other to break the Peace vpon any man or to do any other vnlawfull acte against the Peace if that it be done indéede 7. H. 4. 34. Brooke Tit. Peace 20. tempore H. 8. For closing vp of this parte concerning the Preuention of the breach of the Peace it remayneth that I entreate of the Suertie of good Abearing which is of great affinitie with that of the Peace as being prouided for preseruation of the Peace as that oâ— ther is for in the Commission of the Peace they are bothe conueyed vnder this one tract of speach Ad securitatem de pace bono gestu suo erga nos populum nostrum inueniendum against such as doe threaten hurte to mens bodies or Fier to their houses which things are now commonly preuented by Suertie of the Peace only Of the suertie of the good Abearing and where it lyeth And by the Booke 2. H. 7.2 Suertie of the good Abearing is set forth to rest in this point chéefly That a man demeane hymselfe well in his prote and company doyng nothyng that may bee cause of the breach of the Peace or of putting the people in feare or trouble and that it doeth not consiste in the obseruation of things that concerne not the Peace And that it shoulde differ from Suertie of the Peace in this that where the Peace is not broke without an affray or battery or such like this Suertie de bono gestu may be broke by the number of a maÌ„s company or by his or their weapons o harnesse Herewithall also doe certaine Precedentes of the Kings Bench agrée which in Suertie of the good Abearing takeÌ„ at the sute of some one person do mingle the words Amodo bene se geret erga Dominum Regem cunctum populum suum praecipuè erga T. B. with those other wordes that are commonly put in the RecognusaÌ„ce for the Peace as the Peace as in the new Booke of Entrees Fol. 416. any man may plainely sée But all this notwythstanding me thinketh that a man may reasonably affirme that the Suertie of good Abearing shoulde not be restrained to so narrow bounds For first the Statute 34. E. 3. ca 1. enableth the Wardeins of the Peace to take of all the that be not of good fame where they shall bee fouÌ„d sufficient suertie mainprise of their good abearing towards the king his people So that if a maÌ„ be desamed he may by vertue hereof be bounde to his good Behauiour at the discretion of the Wardeins and Iustices of the Peace But then the doubte resteth in this to vnderstande concerning what matters this defamation muste be that as I thinke may be partely gathered out of the aside Statute also For after it hath first giuen power to the Wardeins of the Peace to arrest and chastice offendors S. against the Peace Riotors and Baretors then it willeth them to enquire of suche as hauing bene robbers beyond the sea were come ouer hither and would not labour as they were wont and lastly it auctorizeth them to take suertie of the good behauior of such as be desamed namely as I think for any of those former offences for so it staÌ„deth wel togither the they shall both punishe such as haue alredy so offéded shal also pro uide that the others shal not likewise offed Moreouer it séemeth to me that these statutes first 1. Mar. Parl 1. ca. 3. which giueth this Suertie of good Abearing against such as distube a Preacher then 5. Eliza. ca. 21. that prouideth the same against the takers of fish in Ponds or of Déere in Parkes and lastly 23. Eliza. ca. 1. whiche graunteth it against such as wilfully absent theselues froÌ„ the church by the space of 12. months haue this meaning that a partie so bound may afterward forfaite his Recognusance if he eftsoones offend against the said Statutes
Sâ—ockes and that not aboue suche a reasonable tyme as he may prouide to conuey him to the Gaolâ— till he find suertie of the Peace 3. H. 4. 9 22. E. 4. 35. And herein he differeth from a Gaoler or the Shirife who hath the charge of the Gaole for he may make a Gaole of his house and so caÌ„not a Constabe or Iustice of the Peace doe And by the Statute 5. H. 4. ca. 10. the Iustice of Peace must sende his prisoners to the common Gaole If one doe make an Affray vpon the Iustice of Peace Constable or suche other Officer he maye not onely defende him selfe but maye also apprehende the offendour and sende him to the Gaole till he wil finde suertie of the Peace 5. H. 7. 6. And the Iustice or Constable maye if néede bée commauno assistance of the Queenes people for the pacifying of an Affray 3. H. 7. 10. If he that maketh an Affray do flie into a house when the Iustice of Peace or Constable coÌ„meth to arrest him they may in fresh sute breake open the doores and take him Mar. Or if he flie thence they may make fresh sute and arrest him though it be in an other Countie by the opinion of some men 13. E. 4. 9. And it shoulde séeme by the reason of that Booke that in this case also they may breake open the doores to apprehend him because the Prince hath an interest in the matter and then a mans house shall be no refuge for him as it shoulde be in Debt or Trespas where the interest is but onelie to some particular partie Now if the Constable do arrest one that hath hurt an other and do voluntarily suffer him to Escape and then he that was hurte â—ieth thereof within the yeare and day the Constable shal make a great Fine and that to the valewe of his goodes in the opinion of some 11. H. â— 12. Stanford 35. 1. But the offence shall not have suche Relation to the stroke as to make the escape to become Felonie thereby Commentar Plowd 263. Of the breach of the Peace without a multitude or with a multitude by forcible entrie into landes or tenements c. And what one Iustice of the Peace out of the Sessions may doe therein CAP. XVIII BEfore the troublesome reign of King Richard the second it séemeth that the common Law permitted any person which had good right or title to enter into any laÌ„d to winne the possession thereof by force if otherwise he could not haue obtained it And still at this day if in a common Action or enditement of Trespassle for entring into any land the Defendant will make Title therevnto the whole matter of the Force alleadged against him wil rest altogither vpon the validitie of his Title as appeareth 7 H. 6. 13. and 40. And a man maye also at this daye retaine wyth force his owne goodes and cattailes agaynste an other 19 H. 6. 31. 9. E. 4. 18. But after the rebellious insurrecon of the velleins other of the commons whiche happned in the fourth yeare of that Kinges reigne The Parliament in 5 R. 2. cap. 7. thinking it necessarie to prouide against all occasions of any further vproare or newe breach of the Peace did ordaine among other thinges That from thenceforth none shoulde make any entrie into any landes or tenements although his entrie into the same were lawfull but onely in peaceable and easie maner and not with strong hande nor with multitude of people vpon paine of imprisonment and to be raunsommed at the Kings will But because this Statute gaue no quicke remedie in this point nor any special power therein to the Iustices of the Peace of the countrie whereas the experience of that busie time required a great deale more spéede in suppressing such disorder After that they had in 13. of that king c. 7. Stat. 1. taken order that Iustices of Peace shold be made of new in all the Counties of England of the most sufficient Knights Esquiers men of law of the same Countie And that they should be sworne to keepe put in execution all Statuts ordinaunces touching their offices The in 15 R. 2. c. 2 they caused it to be further enacted That when such forcible entrie should be made into landes or tenementes or into Benefices or Offices of the Church and complaint thereof come to any Iustice of the Peace he should take sufficieÌ„t power of the Countie and go to the place where the forcible entrie was made if he found any that held such place forciblie after such entrie made the same should be taken and put in the nexte Gaole there to abide conuicted by the Recorde of the same Iustice till they had made fine and raunsome to the King And that aswell the Shirife as all others of the Countie shoulde attende vpon the saide Iustice to go and arrest such offendours vpon pairâ—e of imprisonment and to make fine to the King Now againe for asmuch as this laste Statute did not extende to those that entred Peaceablie and then helde with Force nor against the offendors if they were remoued before the comming of the Iustices nor yet any paine therein ordained against the Sherife that did not obey the preceptes of the Iustices in this behalfe it was not onelie ordayned by a thribe Acte made 8. Hen. 6. cap. 9. That the sayde former Statutes shoulde be holden and duelye executed But it was adjoyned also thereunto That if anye from thenceforth forth shoulde make suche forcible entrie into lands tenements or other possessions or should them holde forcibly after complainte thereof made wythin the same Countie to any of the Iustices of the Peace thereby the parties greeued that the Iustice so warned should in conuenient time cause the last said Statute duely to bee executed at the costes of the sayde party And whether the perfons making suche entries were present or auoided before the Iustices comming the same Iustices or Iustice in some good towne next to the said tenements or in some other conuenient place at his discretion shoulde haue power to enquire by the people of the same countie as well of them which made suche forcible entries into landes or tenementes as of them whiche held the same with force And if it be found before any of them that any doth contrary to this Statute then the sayd Iustices or Iustice shall doe the saide landes or tenements to be reseised and shal put the partie so put out in full possession of the same And when the saide Iustices or Iustice make suche enquirie they shall directe their Precept to the Shirife commaunding him on the Kings behalfe to cause to come before them and euerie of them sufficient and indifferent persons dwelling nexte aboute the same landes or tenementes whereof â—ucrie man shall haue landes or tenementes of the cleare yerely value offourtie shillings at the least and the Shirife shall returne twentie shillings in issues vpon euerie one
Restitution to the Shirife or no if may be some doubt albeit Marr. be of that opinion bicause it séemeth that they haue no authoritie to deale with that Recorde But this is certain that of that presentment were receiued into the Kings Benche the partie grieued then might well enough haue restitution awarded him out of that Court. 7. E. 4. 18. 4. H. 7. 18. And in some cases there may be double or crosse restitution made sayth Marr. As if it be found that I my selfe was seised vntil A disseysed me with force whome also B. disséised with like force in this case if A. haue restitution against B. the may I also pray myrestitution against A. But if I first haue restitution then sayth he A. hath lost the aduantage of his And if it were found by one Inquirie that I my selfe was saised vntill A. disseised me with force and by any other Iurie found that the sayd A. was saised vntil by me disseised with force then euery of vs sayth he may pray restitution against the other And he shall be in the worst case that hath the first restitution for the other also sayth he shall haue his restitution after If two Iointenants were put out by force and one of them onely would Complaine séeke for restitutiō though this special matter were founde by the Inquest yet shoulde he that sued for it haue restitution And this would not worke any seuerance of the Jointure betwene them Marr. Restitution is not to be made but onely to the partie which was put out And threfore if the father were put out by force and dyeth after enquirie and before restitution his heire shall neuer haue restitution vpon this statute no more than the executors of Lessee for yeres that was put out shall haue any restitution Marr. If a writ of restitution be awarded to the Shirife and he returneth that he is so resisted that he can not bring the partie into his possessiō he is to be amerced for that returne sayth Marr. for he may take the power of the countie to execute the precept The case may be such that the force is not punishable by any Iustice of Peace vpon this statute nor any restitution can be made at all As if the house or lands be in one Coūtie and the men forcibly arrayed for defence thereof be in a house or lands that is in the Countie adioyning no Iustice of Peace can medle with this matter vppon this Statute No more can they if the place it selfe extend into two Counties and the parties remoue their force before the comming of the Iustice out of that Countie wherein he is a Iustice Mar. For Iustices of the Peace haue no power out of their owne Counties but in certeine especiall cases giuen vnto them by Statutes Lastly vpon the prouisoe in the latter end of this Statute concerning their holding with force which haue had possession by the space of three yeares or moe there ariseth some matter of doubt in mine opinion how farre the benefite of that clause ought in good equitie to be extended three yeares possession For I finde a difference taken 14. H. 7.28 betwene an action brought vppon the statute an inditement founded thereupon In the action sayth M. Fineux it will be a good barre for the defendant to pleade that he hath kept possession by thrée yeares space yea though he hath done so all that time by force But vppon an inditement possession by twentye yeares space togither by force shall be no plea at all against the king nor hinder the partie of his restitution out of the kings benche Which opinion hath bene and still is receiued for lawe as I haue learned Yet if we consider well the reason of the inserting of that prouisoe vnto the statute perhaps the diuersitie will not fall out in all respectes to be so reasonable as it séemeth at the first shew to be plausible For when this statute had in generall tearmes brought within the penaltie of 15. R. 2 ca. 2. all such as should deteine any lands or teneme t s with force after that they had entred into the same in peaceable maner yet was it thought conuenient as in truth it was to except out of that punishment met all those who hauing made their entries in peaceable maner especially vpon good title had continued that possession by thrée yeares space before any forcible deteyner of the same And therefore such persons bée not onely to take aduauntage of that clause in actions brought against them vppon the statute in myne opinion but against the King to eschue the punishment of a forcible defence committed and against the partie grieued to kéepe him from any restitution at the handes of the Iustice of the Peace also And therefore M. Marr. speaketh generally that if the thrée yeares possession bée founde by the Inquirie then 〈◊〉 forcible deteyners shall haue the aduantage of it against the King also which séemeth to be a very reasonable opinion especially as I haue sayd in case where the deteynors did enter peaceably and by good Title For so farre extendeth the speache of all the Iustice opinions 22. H. 6. 18 And otherwise I sée not how that may wel stande which M Fineux him selfe afterward 21. H. 7. 39. affirmeth saying that A mans house is his Castle which he may defende with force against any priuate armie that shall inuade him Neuerthelesse in the principll case 14. H. 7. 28. being as it is there put of a wrongfull entrie and that with force and of the continuance of that possession with force also by diuers yeares I sée no great reason why such a disorder person should by any continuing of his wrong take benefite by this prouisoe eyther against the King vpon an Inditement or against the partie grieued to stay his restitution or to conclude him in an action brought vppon this Statute But nowe whether such as bée Indited map bée admitted to their Trauers before the same Iustice of the Peace or no where or before whom this Trauers is to be made or receyued I will not take vppon me here to discusse Tender of Trauers This séemeth vppon both the Statutes to be playne that such persons as the Iustice of the Peace doth finde and see continuing the force at his comming may be immediatly committed by him to the next Gaole without any gainesaying there to remayne conuict of that offence by the onely recorde of the same Iustice till they shall haue made fine and raunsome to the King for the same But vppon the enquirie it séemeth that he hath no further power giuen vnto him by this last statute than to make restitution onely And therefore the surest maye in this case is to deliuer ouer the Inditement either to the Custos Rotulorum or to the Istices of Gaole deliuerie as in other cases they were in olde time by the statute of 4. E. 3. ca. 2 appointed to doe or rather into
kinde of Vnlawfull Assemblie And a Riot the disordered fact committed generally by anye vnlawful Assemblie Howsoeuer that bée two things are commune both to Riotte Route and Vnlawfull Assemblie the one that thrée persons at the leaste be gathered togither for so is it commonly taken at this daye as I haue learned Things Commune and considerable in Riottes c. The other that their being togither doe bréede some disturbance of the Peace either by signification of Speach shew of Armour turbulent Gesture or actuall and crpresse Violence so that either the peaceable sort of men bée vnquieted and feared by the Facte or the lighter sort and busie bodies emboldned by the Example And in these matters not onelye the Facte it selfe but also the Manner of doing the same fallcth sometimes iustly into consideration in so muche as the lawfulnesse or vnlawfulnesse of the thing it selfe that is done or intended doeth not alwaies excuse or accuse the parties to a Riotte Route or Vnlawfull Assemblie but so that the Order and Circumstance of the doing muste also bée brought into indgement with it And therefore sayeth Maisler Marrow the manner of the doing of a lawfull thing may make it vnlawfull As if many in one companie riding or going to the Sessions Faire Market or Church it selfe will ride or goe armed to the terrour of the people And coÌ„trariwise an Assemblie to do a wroÌ„g sateth he maye bée so handled that it shall proue none of chese offences as if I gather mécte companie togither to carrie awaye a péece of Timber which will not bée moued without a good many whereto I pretends right though in lawe it bée an other mans And so also to doe an vnlawfull thing as if many doe méete to play at bowies tables or Cardes do vse no missebehauior agaist the Peace they are not punishable in this degrée And yet if he the carieth the péece of timber away wil vse dreadful words as to say the he wil carrie it in spight of him that hath it or the he wil haue it though he die for it or suche like his doing may their proue a Riot The maner and handling of a thing may make it either blame-worthie or blamelesse Furthermore the intetioÌ„ purpose of those the be assebled is worthie the weighing For to vse harnesse on Didsomer night in LoÌ„don or on Day day in the couÌ„try for sporteonly is no such offence séeing no terror followeth of it the words in terrore populs séeme to bée material in an Inditemet of this kinde So if the Shirite or his Bailie do leuy people to serue the Queenes writs of Capias or if a CoÌ„stable do gather assistaÌ„ce of me with weapoÌ„ to part an Assray it maketh no Riot 3. H. 7. 1 10. So if amaÌ„ hearing the another wil fetch him out of his house beate him do assemble coÌ„panie with force it wil bée no vnlawful assemblie 21. H. 7. 39. And so also if many bée assébled none of them knoweth to what ende it can make no Rout nos Riot as M. Mar. thought til the intent bée knowen For if the maister intend to make a Riot take his vsuall seruants with him not foretelling thé what he intedeth the coÌ„mitteth an outrage with the this is no Riot in thé for although he shal bée punished they shal bée excused But otherwise it is if he make thé priuy to his purpose Mar. in the report of Daliso And in the former case it is not material whether his number of seruants bée aboue his degrée or no so loÌ„g as they bée his Menials or houshold me And if a nuÌ„ber of women or infants vnder the age of discretion do assemble theselues for theit own cause this is no vnlawful asseblie punishable by these Statutes But if a man of discreation cause them to assemble to coÌ„mit an vnlawful act then it is otherwise sayeth Mar. And I remeber the not many yeres since wome were punished in the Starchamber and the worthily for that hauing put off their séemely shamefastnesse apparelling theÌ„ selues in the attire of me the assebled in gret nuÌ„ber in Riottous maner pulled downe an inclosure If many be at an Alehouse a Christmasse dinner or Churcbale without any intetioÌ„ of an Affray they sodainly fall togither by the eares make it LapitharuÌ„ conutniuÌ„ yet this is no Riot vnles they betake themselues to parts for so it wil easily become a Riottous assembly And if 12. Iurours being committed to their kéeper do fal out fighte sire as against sixe this maketh no Riot saith Mar. bycause they were lawfully assembled and were compelled to bée in companye together Finally if the Maior and Communaltie of a town do assemble and make a Route in their common quarrell this offence shal bée iudged and punished in their Naâ—â—rail persons not in their bodie politicke Mar. Thus farre you sée what these offences bée and in what manner they may bée committed now therefore beholde what power one Iustice of the Peace hath ouer them One Iustice of the Peace can neither make enquirie of a Route or Riotte when it is done nor assesse anie Fine nor yet award anye processe for it nor otherwise meddle with it in the nature of a Route or Riotte but only as a Trespasse against the peace or upon the Statutes of Northampton or of Forcible Entries before treated of The power of one lustice of the Peace in Riotte c. And therfore if he heare of any Route or of any intention of a Riot he alone or with his seruants may go to the place such as he findeth Riottously assembled armed he may arrest to finde Suertie of their good abearing and may committe them to warde if they refuse to giue it and take their weapons froÌ„ them And if he come to the place and doe not finde the yet come thither he may leaue his Seruauntes there to make suche arrest when they shall come So also if he bée sicke he may send his seruants to the place to arrest them And this is the iudgemente of all the Courte in the case of Sir Thomas Greene 14. H. 7. 8. grounded vpon the words both of the Commssion of the Peace and of the Statute 24. E. 3. ca. 1 as I take it But if one Iustice of the Peace alone will take vpon him to Recorde a Riotte that he séeth the partie shall not bée concluded thereby for he may trauerse it and if the Iussice wil coÌ„mit one to warde pretending vntruelye that he did a Riot where he did none an Action of trespasse lieth for the party against him Fitz. Fo. 18. So that vppon the whole matter one Iustice of the Peace alone may do somewhat to preuet a Route or a Rior before it be done and for the staye of it whilest it is a doing but nothing in effect to punish it as a Riotte or Route when it is committed and done For as
their Sessions to aunsweare to their contempts yet I am not persuaded that the like maye be done against the offendors of other Statutes vnlesse it be specially therein so appointed no more than it might haue bene done in that case of Labourers it selfe had not the Statute of Labourers 25. E. 3. ca. 6. expresly commaunded it And I doubt not but they of the last Parliament were also of this minde with me For if they had thought it generally lawful so to doe they woulde not haue so specially prouided for it as you shall anone sée in the notes of the Statutes 23. Eliza. againste Slaunderous newes and against the taking of Pheasants and Partriges And surely much harme followeth of it for it falleth out moste commonly in experience that those Iustices whiche be moste busie to take such bondes bée no lesse readie to release them and so playing faste and loose they kéepe as it were priuie Sessions wythin their own houses in which both the Queene looseth hir Fine and the common wealth an example and if the offendor loose also then that belike falleth to the share of him that worketh the deliuerance And therefore it were better as I wéene that such offendors were first Endited and then that Processe were orderly awarded against them vntill that eyther they yéelded themselues or were taken or outlawed There is an other thing also whereof I thought méete to admonishe the Iustices of Peace in this place Many of them doe vse to giue out their Precepts to attach persons suspected of Felonie to haue them brought before them which thing is neyther newly deuised nor done without colour for they haue such a Precedent in the olde Booke of Iustices of the Peace Fol. 41. and there is no doubt but that if a Felonie bée done euery man may arrest whomsoeuer he suspecteth of it But for all that the whole Courte 14. H 8. 18. condemneth such Precepts because if the Baihâ—e which serueth the Warrant haue suspition in the partie he may of himselfe without the Warrant arreste him and if he haue not the Warrant of the Iustice of Peace is no warrant to arrest him vnlesse he be endited before VVhat other things one Iustice of the Peace may do out of the Sessions by the power of other Statutes not mentioned in the Commission CHAP. XXI SEing the whole power of one Iustice of the Peace as wel in the very businesse of the Peace it selfe as in the execution of some Statutes mentioned in the CoÌ„mission hath now at length bene rehearsed Any one Iustice of the Peace It is coÌ„uenient to summe vp such other partes of power also as other Statutes haue putte into his hands which done we wil no longer treate of one Iustice alone but wil associate some other vnto him Euerie Iustice of the Peace is a Conseruatór of Riuers wythin his Countie and when he may attende it oughte to suruey the Weares in Riuers that they be of reasonable widenesse and shall suruey the offences of taking Salmons in any Waters out of the Countie of Lancaster betwéene the Natituitie of the Virgine Marie and S. Martins day and there betwéene the feasts of S. Michaell the Purification of the said Virgine and taking yong Salmons at Myll Pooles or other places from the middest of Aprill till midsommer and of casting Nettes into any Waters by whych the fry of any fish may be taken and punish the same by burning of their Nets and engins Conseruator of Riuers Westminst 2. ca. 47 13 R. 2. ca. 19. 17. R. 2. ca. 9. One Iustice of the Peace may take vpon him to heare and order the controuersies betwéene Maisters and seruants touching their departure may alow of the reason sufficience of the cause for which a Master may put away his reteyned seruant or the seruant may departe before the ende of hys terme and may in Day time or Daruest vpon request and for the sauing of Corne graine or hay cause suche Artificers and persons as be méete to labour by his discretion to serue by the day for the getting cutting inning or carying therof according to the skil and qualitie of the person may vppon his refusall imprison him in the Stockes by the space of two dayes and one night Appretices seruants and laboures And his testimoniall vnder his hand and seale to such as may passe in Day and haruest time from one Shire to another is sufficient And he also vpoÌ„ complaint made may commit that partie to warde that in his iudgement shall bée thought méete and yet shall refuse to be bound as an Apprentice according to the intent of the Statute there to remaine vntill he bée contented so to be bound And also may by his discretion vpon the complaint of the Apprentice take order betwéene his Maister and hym and for want of conformity in the Maister may binde him to appeare at the next Sessions before the Iustices 5. Eliz. ca. 4. If any such person as is declared to bée a Roage Vagabonde or sturdy Beggar by the Statute 14. Eliz. ca. 5. being aboue the age of fourtéene yeares shall bée taken begging or wandring or missusing hymselfe contrary to that Acte and be brought before a Iustice of the Peace he is presently to committe him to the common Gaole or to such other place as shall be by the Iustices of the Peace or thrée of them at their generall Sessions appointed therfore to remaine there without bayle or mainprise till the next Session of Peace or generall Gaole deliuerie whiche shall firste happen Roages and vagabonds And the Register booke of the Pore within each diuision of the Iustices of Peace is to remaine with one of the Iustices of that diuision poor people And eyther of those two Iustices before whom the Collectours for the poore are appointed to make their accompt may commit him that shall refuse or neglect to make his accompt by the space of 14. dayes after request to him thereof made to the next Gaole there to remaine wythout baile or mainprise til he hath made it and payed the surplussage of his receit 14. Eliza. ca. 5. Learne if the Register Booke is to haue continuance still Vpon information to anye Iustice of Peace of any vnlawfull hunting by night or with painted faces or other disguising in Forrest Parke or Warrein of anye person to bée suspected thereof that Iustice may make a Warrant to the Shirife Constable Baylife or other Officer to take the partie and to haue him before him or any other Iustice of the Peace in that CouÌ„tie who may examine him of that hunting and of the doers in that behalfe and if he do wilfully conceale that hunting or any person with him defectiue therein then the same concealement shal be Felonie in such concealour but if he confesse the truth of all that he shall be examined in that behalfe then his offence of Hunting shall bée but Trcspasse and Finable at the nexte
bounde to some parte of hys body Assises of Fewel 7. E. 6. ca. 7. but consider whether a Iustice of Peace maye conuicte him of the saide forfeiture or no for it seemeth by the wordes of the Statute that hée is to be rather a Minister than a Iudge in that case If any person aboue firetéene yéeres of age doe by the space of twelue Moneths forbeare to repaire to some Church Chappell or vsuall place of common Prayer contrarie to the tenor of the Statute 1. Eli. ca. 2. then any one Iustice of Peace of the Countie where such offendor shall dwell or be may make Certificat thereof in writing into the Kings Bench to the ende that the offendor maye there vppon bée bounde in 200 lb at the leaft with sufficient suerties to the good behauiour for that this so loÌ„g obstinacie besides the other penalties 23. Repayre to the Church Eliz. cap. 1. Euerie Iustice of Peace maye eramine offences against the Statute made for preseruation of Phesants and Patriches against hauking in Corne if the same offences bée not before lawsully hearde or determined otherwise and may take bond of the offendor with good suerties for his apparaÌ„ce af the nerf general Seisions of the Peace to aumswere to the saide offence and to pay the penaltie or receiue the punishmet due therfore and may also after conuiction and punisment of suche offender in taking or killing PhesaÌ„ts or Patriches take like bosd of him suerties that for the space of two yeares he shall not offende against the saide Statute Phesants Patriches 23. El. ca. 10. If séemeth that one Iustice of the Peace may vpon complaint of the partie gréeued eramine the Shirife Vndershirife and Plaintife concerning the taking or entering of plaintes in their Conntie Courtes bookes against the Statute And if he finde therby any fault or offence committed that shall stande for a sufficiente conuiction and attainder without any further enquirie or examina mination So may be also eramine the Bailic of the Hundred for not warning of the Defendant in such a plaint according to his precept from the shirife or Vndershinte and if thereby he finde a default and offence that also shall stand for a sufficient condemnation Plaints in the Countie Courts And the saide Iustice must Certific those eraminations within a quarter of a yeare into the Eschequer And further the Custos Rotulorum or the Elbeft of the Quorum in his absece ought at the General Sessrions after S. Michael appoint two Iuslices of the Peace the one being of the Quorun to haue the ouer fighte and controlement of the said Shirifes c. and of the amercemets And that one of those Iustices may examine and without further enquirie conuict the gatherers of the same if they gather any more money than is contained in their lawfull Esfreites 11. H. 7. ca. 15. The Cerificate of one Iustice of Peace ioyned with the Customer of the place of the vnlading and felling of Corne Graine or Cattell carried by Water from one place to an other of thys kealme vnto the Customer and Controller of the place where the same was imbarked is sufficiente and ynough vppon the Statute of forestalling Certificar of selling Corne. 5. Edward 6. cap. 14 13. Eliz. cap. 25. One Iustice of peace maye take out of Sanctuarie certayne abiured persons thither and others being indited of some kind of offences mentioned in the Statute done after they become Sanctuarie men maye commit them to the Gaole in the Countis where the inditement is founde til they bée tried Sanctuarie persâ—â— 22. H. 8. ca. 14. Euerie person finding or seacute eing anye to offende the Statutes made againste the shooting in Crossebowes and Handgunnes maye arreste and bring or conuey him to the next Iustice of the Peace of the Countie wherein be was founde offend who vpon due examination and proofe thereof béefore him made may by his difscreation commit him to the Gaole there to remane tpll be shall truely pay the one moitie of the for feyture of this Statute to the Quéene and the other moitie to such 〈◊〉 bringer or coÌ„ueyer Crosfebowes and handguns 33. H. 8. cap. 6. Here therfore thys Iustrce of Peace hauing as it séemeth the whole matter committed to hym selfe in thys case is to bée verye circumspecte therein leaste hée too hastelye conbemne the guiltlesse or negtigentlyâ— suffer the offendor to escape for vpon the offence sufficiently proued it is necessarie that in his Mittimus or precept to the Gaoler there be contained the names of al the parties the offence and how long hée is to bée helde in prison And further he is to make a Record of this matter and send the Estreit thereof into the Eschequer wherby the Barons may haue intelligence of the same to haue the Quéenes dutie leuied to hir vse The forme of this Mittimus may bée easely drawne by some other Precedents in thys Booke Euerie person other than such as are auctorifed by value of 100. th in landes ought if he bée auctorised to shoote and do inhabite in the Countrey present his name to the next Iustice of Peace adioyning And there vpon the Iustice ought to present and recorde the same before the Iustices of the Peace at the next quarter Sessions 2 E. 6. ca. 14 But learn of others whether this matter is to haue cotinuaunce still or else did onely extended to suche persons as had licence at that time The Superuisors for amendement of the highwayes ought within one moneth after any offence done by any againste the Actes 2. 3. Ph. Ma. ca. 8 5. Eli. ca. 13. present that offence to the next Iustice of the Peace And there vpon he ought to certifie the same at the next Generall Sessions within the same Countie Highwaies 5. El. ca. 13. Euerie Iustice of Peace as it séemeth within the Shires next adioyning to the riuer of Thamis within their seuerall iurisdiction hath power vpon complaint made vnto him by the Duerséers and Rulers of the Whirrymen and Waterme or two of the or the maisters of any such seruaunts both to examine heare and determine all offences committed against the Statute and to set at large him that shall bée imprisoned by the ouerséers rulers if there bée iufte cause and also by his discreation to punishe the ouerséers and Rulers that shall vniustlye punishe anye person Thamis 2. 3. Phi. Mar. cap. 16. Euerie Iustice of Pease before whom any person arrested for Manflaughter or Felome or suspition thereof shall bée brought ought before he committe him to prison to take the examination of such prisoner and the information of those that bring him and to put the same or so much thereof as shall bée materiall to proue the Felonie in writing within two dayes after and to take Bonde of all such as doe declare any thyng material to proue the offence to appeare at the
some little direction to the Iustice of Peace may at thys tyme suffise VVhat things any twoo Iustices of the Peace may doe out of the Sessions CAP. XXII THe auctoritie and power of one Iustice of the Peace without the Sessions thus perused passed ouer let vs eramine the like power of twoo boshe in generalitie and in particular It is vniuersally true the whatsoeuer thing one Iustice of the Peare alone is permit mitted so doe eyther for the conseruasion of the Peace or in the execution of the Cōmission or Statutes the fame also may bée no lesse lawfully performed by two or mo Iustices except it bee in a very fewe cases where some Statutes do séeme specially to appropriate the execution thereof to some one certaine Iustice eyther in respede that he is Next to the place Eldest of the Quorum or such like But we will proceede by particularities The power of twoo Iusticcs of the Peace in punishing os Riots c. and because the first place of right belongeth to the Peace as where in the office of this Iusticer chiefly consisseth lette us here supply in two Iustices that power in punishing Riots Routs and vnlawsull Aisemblies whyche wée sayde before to bée wanting in one And that shall wée the better doe if wée firste of al lay open the Statute of King Henry the fouth contayning a moste ample auctoritie as well for the repressing as for the Recording of the same and then adioyne somewhat out of some other Statutes IF any Riot Assemblie or Rout of people againste the lawe be made the Iustices of Peace or 3. or 2. at the least of them dwelling most highest to the place the Shirif or Vndershirif of the Countie shal come with the power of the Countie if neede be to arest them and shall arrest them shal haue power to record that which they shall find so done in their prefencc against the law And by that Record such offēdors shall be conuicted in maner and fourme as is cōteined in the Statute of Forcible entries viz. 15. R2 c2 And if such trespassers be de parted before their coming then these Iustices of Peace or thre or two of them shall diligently enquire within a moneth after such Riot Assemblie or Reut made and therof shall heare and determine according to the lawe of the lande and if the trueth may not be found in the maner as aforsaid then with in a month then next following the said Iustices and Shirif or vndershirif shal certifie before the King his Councel all the dedes circumstāces therof which Certificate shall be of like force as the verdit of twelue mē c And if such offendors do trauerse the matter so certified then the Ccrtificat and Trauerfe shall be sent into the Kings Bēch to be tried determined as law requireth And that the same Iustices and Shirife shall doe execution of this Statute euery one vpon paine of one hundred pound to be payed to the King as ofte as they shall bee founde in defaulte 13. H. 4. cap 7. Whereunto the Statute 19. H. 7. addeth that it the saide Riotte Maintenāce embracerie Route or vnlawful assemblie be not founde by the saide Iury by reason of anye maintenaunce or embracerie of the saide Iurours then the same Iustices and Shirife or Vndershirife shall also certife the names of the maintainours and embraceours in that behalfe if anye bee wyth theyr misdemeanours that they knowe vppon payne of euerye of the said Iustices Shirif or vndershirif to forfeit twentie powndes if they haue no reasonable excuse for not certifying the same which Certificate so made shal be of like force as before c. And euery person duely prooued to bee a mainteynor or embracer in the same shall forfeite twentie powndes to the King and shall be committed to warde there to remayne by the discreation of the Iustices 19. H. 7. cap. 13. Hereunto also the Statue 2. H. 5. adioyneth further Assistance that the Kings liege people beeing sufficient to trauaile shall bee assistant to these Iustices Shirife or Vndershirife when they shall bee reasonably warned to ryde wyth them in aide to resiste suche Riots Routs and assemblies vppon payne of imprisonment and to make fine and ransome to the King Prouided alwayes that the saide Iustices Shirife or Vndershirife shall doe their sayde offices at the Kings costes in going tarrying and retourning by payment thereof to bee made by the Shirife by Indenture betweene him and them of the sayde payment At the Kings charges And that suche Rioters attaynted of greate and hainous Riots shall haue one whole yeares imprisonment at the leaste without beeing lette oute of prison by Bayle Maineprise or in anye other manner during the years aforesa I de ◠that the Rioters attainted of petite Riots shall haue imprisonment as beste shall seeme to the King and to his Councell And that the fines of suche Riotours attainted shall bee by the same Iustices encreased and putte in greater summes than they were wonte to bee putte in suche cases before that tyme in ayde and supportation of the costes of the Iustices and other Officers aforesaide in this behalfe 2. H. ◠ca. 8. Nowe if it bee witnessed by twoo Iustices of the Peace and the Shirife by Letters vnder their Scales to the Lord Chauncelour of Englande that any murders manslaughters batteries robberies assemblies of people in great number in maner of Insurrection or other rebellious Riots haue bene done and that suche offendours haue withdrawen themselues to the intent to auoide the execution of the common Law then the Lord Chauncelour may make a Writte of Capias and therevpon if neede be a Proclamation c. 2. H. 5. cap. 9. Capias and Proclamation which Statute was made to endure till the nexte Parliament and so discontinued but it was reuiued by 8. H. 6. and made prepetuall which moreouer ordayneth that beefore thys Writ of Capias shall bee awarded two Iustices of the Peace and the Shirife of the Shire where such Riot is supposed ought to witnesse that the common voice and fame runneth in the said Countie of the same Riots 8. H. 6. ca. 14. The Letter or Text of these Lawes béeing thus laide downe lette vs also sée what exposition and helpe M. Marrow and others doe bring to some partes thereof namely to that of king Henry the fourth Vnder the wordes Power of the Countie the Iustices Shirife or Vndershirife oughte to haue the aide and attendaunce of knightes and of all maner of Gentlement yeomen Labourers Seruauntes Apprentises and Willaines And so likewise of Infants that bée aboue fiftéene yeares of age For all of that age were boude to haue harnesse by the Statute of Winchester But women men entred into the ministerie and such as bée decrepite or doe labour of anye continuall infirmitie shall not bée compelled to affende And it resteth in the discreattion of the Iustices and Shirife
or Vndershirife Now many or how fewe they wil haue to assist them in making the arrest But yet after such arrest made the Power of that countie is bounde to goe with the Shirife to the Gaole to aide him thither also whiche is otherwise in the case of a Felon taken by Hue and Cry for there when the Countrie hath deliuered him that Shirife they are discharged Mar. This auctoritie of assembling the power of the countie and of arresting imprisoning Riotters til due execution of law were done vpon them was once before this time namely 2. R. 2. 6. committed to some was by by after resumed in the same yeare of the same kings raigne as a thing too gréuous to be suffered that any man should be imprisoned without an Inditement or Sine leg ali indicio parium suoruns as magna Carta speaketh first had against him But nowe if information bée made to two Iustices of the Peace that certain persons bée riotously assemb ed at Dale and they assisted wyth the Shirife or Vndershirife doe gather people to suppresse it and when they come to the place they finde no Riote there yet are they excusable for the assemblie of Power made by them because they did it vpon information And if they do it without information and find a Riot indéede when they come then shall they not onelie bée ercused for making suche assemblie of their owne heads but may also lawfully procéed to punish the offeÌ„dors Fitz 17. And that punishment muste be grounded either vpon their Recorde of the thing done in their owne presence or else by enquirie vpon the oath of other men And therefore if two Iustices of the Peace assisted with the Shirife or Vndershirife do sée a Riotte they may command the Riottors to be arrested and the parties shall bée so concluded thereby the they shal neuer be receiued to Trauerse or deny it But otherwise it is if they do not sée it themselues 14. H. 7. as M. Fitz. Tit. Iustice del peace 9. reporteth who saith moreouer in his booke of Iustices of the peace Fo. 18. that if they doe so recorde a Riote as though they had séene it the parties shall bée stopped thereby although there were neuer any such Riot by them committed for saith he the view of a Riot is neuer to be trauersed Likewise if the Iustices of Peace bée disturbed by Riotors in coÌ„ming to their Sessions they may without any Inquirie make their record of it Fitz. 17 7. E. 4. 18. Recording of the Riot The Record which these Iustices ought to make must bée by writting and muste remaine with the one of them and the â— and none other Iustices ought to impriâ—â—n the Riotors and to assesse their fine cause the same to be estreated into the Escheaquer If they sée the Riot the Riotors escape yet they ought to Record it but then they cannot arrest the Riotors at another time neither can they make any Processe upon that Record neither ought it to be kept amongst the Records of the Peace but it must be sent into the Kings Bench that processe may be there made vpon it And in the case the parties are not to be admitted to their Trauerse there but must of necessity make fine for it If these Iustices come to sée one Riotte and another Riotte is made in their presere they may Recorde that So if the Iustices the Shirife or Vndershirife be assembled at a place for an Arbitrement or such other pris uate cause and a Riotte appeareth to bée comitted in their presenc they may Recorde it also But if the Riottours séeing them coÌ„ming do flie into another Countie and doe committe a Riotte there these Iustices can not Recorde that Riotte If the Riottours make a Riotte vpon the Iustices and Shirife that do come of putpose to arrest them they may Recorde that And it séemth that they may like wife do so though M Marrow denyedit if they come for an other cause and such a Riotte bée done vpon them If a maÌ„ be slain in the Riot or Maymed or if Rescous bée done to an officer the Record must be Riotosè occidit or Riatosè Maybemauit or Riotosè rescussit not Felonicé nor simply Rescussit for their polver in this case is restrayned to the Riot only therfore the parties may not withstaÌ„doing their Recorde plcade not guilty to the Felonie or Refcous though not to the Riot it self If they make a Recorde of a Riotte doe imprison the partie till he haue made Fine and it do after ward appeare by the Recorde it selfe that the Acte which they recorded is no Riot yet be the parties without remedy and if a man bée bound to the Peace such a Recorde of a Riotte is after wardes made against him and others hée shall not iustifie nor pleade not guiltie in a Scire facias vpon his Recognusance Mar. But althoughe these Iustices Shirife or Vndershirife doe not goe to sée the Riotte yet maye the the Iustices enquire of it within the moneth after it and they all are allo to make Certificat within a moneth after that arcording to the forme of thc Statute And although this Statute saye that the same Iustices shall doe it yet if other Iustices of the peace there doe it that is sufficient Mar. Enquirie of the Riottes and certify So that if two Iustices and the shirife goe to sée a Riotte and other two Iustices make the Enquirie now the one sorte or the other of them with the shirife or Vndershirife may Certifie it If this enquirie bée not made within the moneth yet it is good but then no good Certificat can bée made thereof So if the Enquirie bée within the moneth and the Certificat not made Within a moneth after that is not good Mar. But if the Iustices doe enquire within the moneth and doe giue daye to the lurie to yéeld their Verdite after the moneth that is good ynough If the Enquest find that the Riot was made by ry persons wher in déed it was made by Cpersons it may be creatified so and then the Cretificat not the Inditement shal be take but if they barie only in the day then the Inditement shall be prefered to if the Certificat And if the Inditement be of ry persons the Certificat of ry persons in harnesse the Certificat shal be preferred So if the Inditement speake only of a Riotous assault batterie and mayheming If foure Iustices the shirife and Vndershirife goe to fée a Riote and two of those Iustices and the Shifife joyne in one Certificat and the other two joyne with the vndershirif in an other Certificat that Certificat wherevnto the Shirife is partie shall bée preferred for in hys presence the Vndershirife hathe non autoritie But yet if the Certificat bée otherwile equall then the best shall be taken for the Queene If after the Riote séene and the Enquirie made one of the
Iustices be putte out of the Commission then cannot be Cretifi But If he Recorded the Riot vpon the view thereof and the Rioters had escaped yet the might he Certifi Mar. The force of this Certificat is but only to put the parties to answere and forasmuch as it is of the nature of a declaration agaist them it ought to comprehende the certaine yeare and day thought peraduenture as M. Mar. holdeth it néedeth not to erpresse the Additions of the parties being not within the words of the Statute 1. H. 5. Ca. 5. Furthermore wheras this Statute speaketh of the paine of C. lb to be layed vppon the next Iustices Yet if other then the next Iustices doe perfourme the office that shall ercuse them that be the nexte justices to the place And that in the cause why I have taken leaue to place there things before under the audoritie of any two justices generally Next Iustices Yea all the justices of Peace within the commission how far off soellre they dwel dught if they have notice of suche a Riotte Rout 02 Assembly to supply the defaulte of the next Iustices For so it was now lately adiudged in the starre Chamber Howbite that paine of an hundred pound was layds vpon the next Iustices onlie and theresidue were fined by discertiō of that Court. Lastly euery of these Iusticcs shal be ercosed of this penaltie by the not cōming of the shirief But yet they ought in this seruice to sende for the shirife and not he for the Mar. Thus muche of the Riottes after this cōsideration now a little for the furtherance of the Iustices in their execution and then then other matters A Precept to the Shirife to warne the Countrie to enquire of a Riotte GEorgius Multō Wilhelmus Lambard dou Iusstiled ticiariorum c. assignatorum Vicecomiti eiusdem comitatus Salutem Exparte ditae Dominae Reginae tibi praecipimus quòd ventre facias coram nobis apud I. m comitatu praedictor die Ostob. proximè futuro 24. probes sufficientes legales homines de comitatu pradisto quorum quilibet babent terras tenementa infra distūcomitatum liberè per cbartam ad annuum valorem 20. solid aut per copiam Curiae adannuum valorem 26. solid 8. denars aut per vtrumgum ultra omnes reprisas ad inquir endum pro indenitate nostra in bac parie super sacramentū suū S. t A. B. C. D. E. F. s alis malefastores et pacis dista Dominae Reginae Perturbatores ignoti domū cuiusdam G. H. apud Ightham praedistā riotose fregerint in ipsum insulsū fecerint vnlnerauerint contrapacem dista Domma Ragina contraformam Statuli m ialicasu 13. H. 4. 0 lim regis Angliae editi proxist Et hoc nullatenus omittas sub poena 20th quam incursurus as fi in executione pramissorum defeceris Kang Et habeas ibitunc hoc praceptum Testibus praefatis G. M. W. L. 20. die Septemb. Annoregni dicta Demine nostrae Eliza. 23. The Inquirie Inquisitio pro Domina Reginae c. as before in forcible entries coram Georgio Multon Wilhelmo Lambard c. Quiad hoc inratiee onerati dicunt super sacramentum suum quod A. B. C. D. E. F. simul cum alijs malefactoribus pacis dictae Dominae Reginae pertur batoribus ignotis ad numerum septem personarum mode guerrino arcaiati vt armis viz. hawberdis gladijs arcubus sagittis 19. die mens Sep. vlt. Praeterito apud Ightham in comitatn Praedicto inter horas octauam nonam post meridiem eiusdem diei Domū G. H. de Ightham Praedict Yeoman scituatā in Ightham praedicta riotose fregerunt in ipsum G. H. tunc ibidem insuliū fecerūr ac ipsū tunc ibidem verberaue runt vulnerauerunt indignis modis tractaucrant is a quod de vita eius desperabatur in magnam pacis dict Domine Reginae perturbationem popult terrorem ac contra formam Statuti de riotis routis congregationibus Gentium Anno. 13. H. 4. olim regis Anglia progoniter is dicte Domina Reginae editi promisi The Certificat to the Queene hir Coū sell ought to be made by the two Iustices the Shirife or Vndershirife Whiche may be done in English after the order of a Letter and as the case shall require But the Record of the Iustices and the Shirife or Vndershirise if they will procée that may may be in this manner MEmorandum quod 20. die Septem anneregni Dominea nostra Elizabe der gratia c. 23. Questiled tus est nobis Georgio Multō Wilhelmo Lambard duobus Iuiticiariorum c. essigmatorū Thomae C. sub vicecomiti comitatus ciusdem quidam G. H. de Ightham in dist comitatu Yeoman Quod A. B. C. D. E. F. c. alij malefastorcs pacis dicte Domina Reginae perinrbatores ignoti domurn eiusdem G. H. apud Ig pradicu riotosé fregerht et ibidem in ipsum G. H. insultum fecerunt ac ipsum vulneraucrunt cōtra pacem dicta Domina Reginae ac proinde pctyt 4 nobis sibi in hac parte remedinm apponi Quthus guidem quarimonia petitione anditis nos dict G. M. W. L. T. C. ipso codem dicto die ad domuns pradictans accessimus in propriss persouis noctris ac tunc ibidem inuenimus prafatos A. B. C. D. c. ad numerum septem per sonarum modo gucrrino arraiatos vz. gladijs pugionibus lorisis galeis arcubus sagittis riotose in simul aggregatos domum proefatam fregisse multa mala in ipsum G. H. ibidem comminantes in magnam paeis dictoe Dominoe Reginoe perturbationem ac popali sui terrorem necnon in contemptum Statute de Riotis Routis congregationibus populorum Anno 13. H. 4. olim regis Anglioe progenitoris dictoe Dominoe Reginoe diti ac prossist Ac proptereanos proefati G. M. W. L. T. C. corpora dict◠rum A. B. C. D. c. arrestari Ac proximoe Gaols dictoe Dominoe Reginoe in comitatu praedicto duci ficimus per Recordum hoc nostrum connict in praesentia nostra In cuius reitestimontnssnos Praefati G. M. W. L T. C. huic dicto records nostro sigillae nostra apposuimus Datum apud I. praedict die anno supradictis And nowe wishing the two Iustices of Peace in this matter to looke backe into the which hath bene satd before of forcible entries and Kiots in the person of one Iustice let vs make spéede to other statutes Any two Iushces of the Peace may imprison forx dayes the Naister that giueth for x. daies the seruant that taketh more wages than after the rates thereof made may imprison for a whole yeare suche seruaunt as shall bée Conuicted before them by his owne confession or by the Dathes of two honest men to haue made any assault vpon his maister maisiresse or other
of the Quorum doe ioyne in graunting suerite for the good a bearing but thereof I have already spoken my minde The good Abearing Two Iustices of the Peace the one being of the Quorum may prohibite remove common Aleselling may also allow the same taking bonde with suretie by Recongnusance for good rule to be kept in such Ale house c by their discretion Alchouses And they may also commit imprison for three days those that kéepe common Ale seling of their own heads against prohibition or without allowance thereof and after take recognusance of them with two suerties that they shall kéepe none 5. E. 6. ca. 25. And heare séeÃing that the order of the Conditions of these bondes is partely refer red to discretion I will for the better brideling of thes nurseries of naughtinesse leave with you that forme of the firste of them which I have knowen practised by that Honourable Iusticer the lorde Willliam Cobham nowe Lorde Warden of the Fiue Portes The Condicion of this Recognusance is suche That whereas the withinbounden A. B. is admitted and allowed by the withinnamed Lorde cobbam and William Lambard two of the Queenes Maiesties Iustices of the Peace within the Countie of Kent within written to keepe a common Ale-house or Tippling house and to vse common felling of Ale or Beere onely within the nowe house of him the said A. B. and notelsewhere scituate in the High streate of the Towne of M. within written and called the signe of the Hart If therefore he the sayde A. B. during suche time as he shall keepe suche common Alchouse there shall not suffer any vnlawfull play at the Tables Dice Cardes Tennis Bowles Closh Coytes Loggets or other vnlawfull games to be vsed in his sayde house or in his garden orcharde or other his grounde or place Nor dresse or causc or suffer to bee dressed anye fleshe to bee eaten vpon any daye forbidden by the Lawes or Statutes of this Realme of Englande Nor wittingly and willingly admit orreceiue into his sayd house or any parte thereof any person notoriously defamed of or for theft incontinencie or drunkennesse or that shall be before hande notified to him the said A. B. by the Constable or Borsholder of M. aforesaid for the time being or by the Deputie of either of them to be an vnmeete person to be rcceiued into a common Alehouse Nor keepe or lodge there any straunge person aboue the space of one day and one night togeather without notice thereof first giuen to the Confiable or Borsholder or the Deputie of the one of them there And finally if he the said A. B. during all the time that he shall keepe common felling of Ale or Beere in the said house shall and will there vse and maintaine good order and rule That then this present Recognusance c. or elfe c. For euerls place is not méete Two Iustices of the peace to that the one Be of the Quorum map by examination or Inquirie heare and determine the faultes of heade Dissicers in cities Boroughs and market lowness that doe not twice pearely view and examine Weightes and Measures and brake and burne the defediue as also the defaults of Buyers and sellers by other meightes and measures than they ought to doe and may brake and burne the desectiue weightes and measures and amerce and fine the offendours by their discretion and make processe against them as if they were indisted of Trespasse against the peace 11. H. 7. ca. 4. 12. H. 7. ca. 5. Weightes Measures Two suche Iustices may give licence to Fencers Beareweards Common players in Enterludes Minstrels Iuglers Pedlers Tinkers and Petiechapmen to goe abroade so as they shall not be taken as koges 14. Eli zab. ca. 5. Pedlers Tinkers Fencers Players c. Sute may be commenced against a high Constable in the name of two of the next Iustifices of the Peace to the place if it be out of citie Borough and Lowne corporate for not suing a negligent Collector of the money for the poore within the time limitted by the Statute and they shall euerie halfe years take the account of such Collector and may take order with the Surplusage of such collection and may also commit him to prison for refusing to account or to bring in his surplusage contrarie to the Statute 14. Elizab. cap. 5. Poore Two Iustices of the Peace the one being of the Quorum may imprison such as doe refuse to give towardes the reliefe of the poore or doe discourage other to give poore And the Bishop or his Chauncelour shall call the two Justices of the Peace next inhabiting to any Hospitall to assist them in taking the account of such as have had the collection of the reuenues and profites of such Hospitall and they thrée may charge the accomptant under penaltie to loose such summe of money as they shall thinke méete to account not to delay it and foorth with to employ the Surplusage to the bse of the Hospital 14. Elizab. cap. 5. Hospitall Two Iustices of Peace the one being of the Quorum in or next to the limits where the parish church is in which a Bastard child left to the charge of the Parsh shal be borne ought to take order by their discretion as wel for the reliefe of the Parish and the keping of the childe as also for the punishment of the mother and reputed father therof 18. Eli. ca. 3. Barstard childe Two Iustices of Peace the one being of the Quorum vpon complaint by any competent Iudge of Tithes for any misdemeanour of the defendant in a sute of Lithes may cause him to be attached or committed to warde till he finde suertie unto them by Kecognusance to the Kings use to obey the Processe and Sentence of that Iudge 27. H. 8. ca. 20. Tithes And also vpon complaint in writing by an Ecclesiasticall Iudge that hath given definitive sentence in case of Lithes against one which wilfully refuseth to pay the Lithes or summes of money so adiudged two such Iustifices may cause the partie to be attached and committed to the next Gaole till he finde such suertie as is aforesayd to performe that sentence 32. H. 8. ca. 7. Two Iustices of Peace dwelling next any Citie or Towne where any Ketaylour of wollen cloth shall present unto them any defective cloth against this Statute being coÌ„ferred with the Statute 4. 5. Phil. Mar. ca. 5. shall cause the same to be cut into thrée equall partes whereof the one to be to the Queene the other to the Presentours and the third to the Iustices them selues 5. Ed. 6. cap. 6. Cloth No Fisherman shall be taken to serue as a Mariner by the Queenes Commission but by the choice of two Iustices of the Peace adioyning to the place where he is to be taken 5. Elizab. ca. 5. Fisherman Two Iustices of the Peace not being of kinred
him that office he is to forfeit for euery such refusall fortie fhillings and thereof those Iustices are appointed to haue the one halfe by the Statute 3. E. 6. ca. 2. Ouerseers of Cloth Those two Iustices of Peace also hert adjoyning to whome any Cloth faultie against the statutes shall be presented may cut the same into thrée equall peeces and shall haue to them selues the one of the same by the Ad 5. E. 6. ca. 6 4. E. 5 Phil. Mar. ca. 5. Faulty cloth And euery Iustice of the Peace is allowed to retaine to his owne bse the one moitie of all straungers goods calling them selucs Egiptians that he shall lawfully seise by ver fue of the Statute 22 H. 8. ca. 10. Egiptians The Iustice or Iustices of the Peace that doe ioyne with Clerke of the Peace in taking Conusance of an Indenture of bargaine sale of land to be Inrolled shall haue ry â— therfore if the land excéede not in value â—l â— by the yeare and y. â— vj. â— if it do excéd that value by the Statute 27. H. 8. ca. 16. Inrolloment of bargaune and sale The Queenes highnesse shall beare the costes that the Iustices of Peace shall sustain in the cxecution of the Statute of Riots â— made 13. H. 4. ca. 7 by 2. H. 5. cap. 8. Riot And the Iustices of the Peace shal make executioÌ„ of â— Statute of forcible Cntries at the costs charges of the party gréeued 3 H. 6 ca. 9 Forcible lourd And twelue pence is giuen to the two Iustices of Peace for euery Recognusaunce taking of him that is allowed to képe a common Alehouse by Statute 5. E. 6. ca. 25. Alchouse On the other side also the Statutes doe nowe and then correcte the dulnesse of these Iustices with some strokes of the rodde or spurre Punishmét And therefore euen at the â—rst it was ordayned that if the Wardeins of the Peace did not look vnto the execution of the Statute vpon such as should ride or go armed in any place putting the Country in feare then the Iustices assigned by the king should enquire of their defaulte and punishe them Star North. 2. E. 3. cap. 3 Ride armed And the Statute of Riots c. 13. H. 4. c. 7 layeth C. it forfeiture vpon those Justices of Peace that shal dwell nighest to the Riot c. if thay doe not put that Statute in execution Riots And those Iustices of the Peace and Shirife or Vndershirife which in sending their Certificat to the Queen hir counsel concerning such a Riot do not with all certifie the names of the mainteinors embraceors in that behalf with their misdemeanors that they knowe shall euerie of them forfeite twentie pounds bnlesse they haue reasonable excuse for not certifying the same 19. H. 7. ca. 13. Certificat That Iustice of the Peace whyche seiseth the goodes of any Egyptians and doth not incontinently restore such part thereof as shall be proued before hym to haue bene craftily or felonioufly taken shall forfeite the double thereof to such prouer 22 H. 8. cap. 10. Egyptians That Iustice of Peace which doth not vpon request made giue attendance vpon the Queencs Lieutenante of the Shire for the suppreffion of anye Rebellion or vnlawfull assmblie shal suffer a yeres imprisonment vnlesse there be cause of reasonable excuse 1. Mar. Parl. 1. cap. 12 1. Elizab. cap. 17. Rebellious assemblie If any Iustice of Peace shall be proued to be in dcfault about thc execution of the Act of the Poore by two sufficient witreffes béefore the Iustices of Assise at their nexte generall Gaole deliuerie he shal loose o. tt 14. Eli. cap. 5 Poorch That next Iustice of Peace which faileth in presenting the name of him that preseteth it to him according to the Statute of shooting in Crosbowes or Gunncs shall forfaite â— shillings 2. E. 6. ca. 14. Gunnes and Crosbowes But enquire of the continuance of this as before in the 21. Chapter That Iustice of Peace whyche doeth not wythin fouretéene dayes after matter vttâ— red to hym concerning any Agneus Dei c. signifie the same to some one of the Queenes priuie Counsell shall incurre the paines of the Acte 16. R. 2 of Premunire 13. Eli. ca. 2. Agnils Dei. That Iustice of the Peace whyche hauing taken any examination concerning Plaintes in the Shirifes Courte doeth not Certifie the same into the Escheaquer within one quarter of a yeare after shall loose fortie sillings for his default 11. H. 7 qa 15. Certifie in to the Escheaquer Those Iustices of the Peace which do grant any Baile contrarie to the Law or do not cer tifie the Baile examination of the Felonie according to these Statutes shall paye suche Fine as the Iustices of Gaole deliueris shall thinke méete 1. 2. Phil. Mar. cap 13 2. 3. Phil. Mar. ca. 10. Baile and scrisie Euerie Iustice of Peace the dwelling with in 7. miles London doth not vpon request assist the Colledge of Phisitions of London in the execution of the Statute 32. H. 8. ca. 8 shall bée punished as one that runnth in contept of the Queene 1. Mar. ca. 9. Phisition And how that Iustice of the Peace shal be punished that shal take vpon him the office not hauing twentie pounds in lands it hath lands bene shewed alreadie ca. 6. Not. XX. pounds in lands THE EPILOGVE THVS muche so shortly as I coulde I thought fit to say concerning the audoritie of Iustices of the Peace without the Sessions wherin J haue rather sought to admonish them by a sleight view and rehearsall of the most parte what things they haue to handle than laboured to accomplishe them with ful skill how to administer execute them all The Epilogue Neither doeth that knowledge lye in my power but in but in their owne diligence muste therefore bée woonne by a continuall studie and painfull meditation of the Statutes at large towardes their helpe and furtherance wherein J haue entreated a godly and learned Gentleman M. Iohn Tyndall a friende and fellow of mine in Lincolnes Inne to take the paines to cull out all those Statutes by them selues which are now in force and wherewithall Iustices of the Peace haue to deale not altogither beheading the of their preambles For any whit curfailing the the of their words For other wise dismembring them or scattering their partes in sunder But laying foorth bodies of them whole and at large vnder their proper Titles togither with the material parts of al their preambles and not without any of their prouisoes Eherewithal amending the corruptions of the English translation out of yelatine french And finally adding vnto the where néede shall be some notes of helpful directioÌ„ which things no maÌ„ that I know hath hitherto assayed And this shal shortly I trust come to light either in a
terminanda assignatorum Vicecomiti eiusdem Comitatus Salutem Ex parte dictae Dominae Reginae tibi praecipimus quod non omittas propter aliquam libertatem in Balliua tua quin cam ingrediaris venire facias coram nobis vel socijs mostris Iusticiarijs pacis tali die c proximè futuro apud Maidstone in Comitatu pradicto 24. liberos legales homines de quolibet hundrede in Balliua tua tam infra libertates quà m extra ad faciendum exequendum tunc ibidem ea qua ex parte dictae Deminae Reginae eis iniungentur Scire facias etiam omnibus Coronatoribus Comitatus tui Seueschallis Constabularijs Subconstabularijs Balliuis infra Hundreda praedicta quod sint tumc ibi ad faciedum perimplendum ea qua ex parte Dicta Dominae Reginae eis tunc ibidem smiliter pracipientur Et tu ipse tunc sis ibidem ad faciendum exercendum ea quao ad officium tuum pertinent habeas ibi tunc nomina Iuratorum Cosronatorum Seneschallorum Constabularierum Balliuorum praedictorum hoc praceptum Precept to summon the Sessions Dat. fsub sigillis nostris apud Boughton Maleherbe in comitatu pradicto 16. die Octobris Annoregni dicta Domina nostre Reginoe Eliz. dei gratia c. 23. This precepte may bée made by any two Iustices of the Peace so that the one of them bée of the Quorum for two such may holde a Session of the Peace as it doth plainely appeare by the Commission and therefore as Maister Marrowe saith it sufficeth not to have it runne vnder the name of the Custos Rotulorum alone séeing that he hath no more auctoritie in this behalfe thaÌ„ one of his fellowes hath for the worus of the said MaÌ„dauimus in the Commission to the Shirife be Coram vobis sen aliquibus vostrum venire faciat tot tales c Ypa if two such Iustica make a precept for a Session of the Peace all their fellow Iustices can not discharge it by their Supersedeas but a Supersdeas out of the Chaunccrie wil discharge it sayth Fitzherberf And if one Iustice of the Peace alone woulde take vpon him to holde a Session of the Peace that was alreadie summoned by suche two Ius tices and wyll make the Stile of the Session in the names of hym slefe and the other Iustice all pre sentmentes so taken before him may bée auoided if the Sessions bée in trueth holden by two suel sufficient Iustices only and the Stile or Title thereof bée made in the names of thrée then al the presentments before them shall stand good For it will not helpe the partie to saie that one of fhe thrée was not there when it shall appeare that was of them the one being of the Quorum were present which will suffise Marr. Touching the time of holding the Session of the Peace I wil forbeare to speake till I shal come to divide the Sessions The time But the place of howing them is arbi trable and at the pleasure of the Iustices themselves so that it bée méete for accesse And although the precept doe appointe the Session to bée holden in some one Eowne by name yet may the Iusces kéepe it inany other Eowue and all the presentments shall bée good that shall bée taken where they holde it But no amerciament can bée fet vppon any man for his defaulte of apparanee there bicause he had no warning of it faith Marr. The place So if 〈◊〉 Iudices make a precept for a Session to bée holden in dwne Eowne and 〈◊〉 other Iustices shoulde make an other Precept for an other Session to bée holden at an other Towne or in an other parte of the same Towne the same daye then presentments taken before eyther of them shall bée good Marr. And then also it séemeth that he whiche serueth at the one Session as a Iuror or Officer shall bée excused for his defaulte at the other bycause they bée bothe the Queencs Courtes and of equall auctoritie And albeit that these Sessìons bée coÌ„monlie and most orderlie summoned by a Precept in writing yet is not altogither of necesstie to haue it so to make a lawfull Session for if 〈◊〉 such Iustices of the Peace doe gette men to serue and doe holde a Session without any Precepte before directed all Presentmentes made before them by twelue men shall bée of force in Lawe But there againe no man shal loose any thing for his default by cause none had notice of their sitting Marr. VVhat persons ought to appeare at these Sessions therin of the Custos Rotulorum the Recordes of the Sessions and the Clerke of the Peace and how the Iurors ought to bee qualified and ordred CAP. III. FOr the better preparation towards thys Enquirie let vs pervse the persons that are to attende and do seruice at the Sessions The Iustices of the Peace bée so necessarie as without theme though all others should appeare no Session can bée kept and yet if any of them be absent their fellow Iustices caÌ„not amerce the as the Iustices of Assise may do for their absence at the Gaoledeliuerie for Inter paresnoÌ„ est potestas and the auctoritie of all the Iustices of the peace at the Sessions is equall so that like power hath he which is not of the Quorum with him that is excepte it bée in speciall cases set foorthe in the Commission and Statutes And therfore it was holden 3. H. 7. Fitzh Tit. Iustice del Peace 3 that if One which is not of the Quorum wil bée so bolde as to rebuke one that is of the Quorum he his companions may not committe him to prison for it The Iuftices The Recognusors that stand bound to the kéeping of the Peace and to appeare at the Sesions and such like bée commonly tyed to the Quarter Sessions wherevnto I am not yet come And those prisoners that are sente by Iustices of the Peace for felonie or manslaughter or suspition therof or bée lette to Baile for Mainprise vpon any such offence be reserued till the Gaole deliuerie wherewith I have not to do The rest of that kinde and the Rogues c maye bée broughte foorth at euerie Sessions of the peace The Recognusors The Prisoners But two sortes of men there are that owe theyr Drdinarie attendaunce at these Sessions that is to say the Officers or Ministers of the Courte and the Iurors of the Countre Amongst the Officers the Custos Rotulorun hath worthily the firste place bothe for that hée is alwayes a Iustice of the Quorum in the commission and amongst them of the Quorum a manne for the moste parte especially piked out for wisedome countenance and credite And yet in this behalf hée beareth the person of an Officer and ought to attend for the words in the Commission bée to him by name Quod ad dies loca predicta brenia pracâ—pta
whiche things hée can not doe if hée hée present so that he is an Officer to this Courte and the Clearke of the Iustices as the Statute 12. R. 2. cap. 10. nameth him and not as M. Marrow thought the Clearke of the Custos Rotulorum onelie And you maye reade 2. H. 7. 1. that if a Recognusance of the Peace bée brought in to the Custos RotuloruÌ„ and the partie grieued wil not sue forward then the Clearke of the Peace who is the Clarke and Attornie of the King saith that Booke shall call vpon it for the Kings aduauntage and I am sure that the saide Statute 37. H. 8. cap. 1. ralleth his place an Office also Howbeit the nomination and appointmet of him hath long time belonged to the Custos Rotulorum and he is to enioy his Dffice so long as the Custos Rotulorum kéepeth his place and may exercise it by himself or by a Deputie sufficiently instructed in the Lawe and admitted by the Custos Rotulorum The nomination of the Clearke of the Peace And this Office was also for a time gyuen by the kings Letters Patents for termc of life as that of the Custos Rotulorum was vntill the sayde Statute 37. H. 8. cap. 1. recontinud the auntient order of giuing it to the Custos Rotulorum onelie Furthermore the Coroners as the common forme of the Precept sheweth and the Statute 27. H. 8. cap. 5. presumeth ought to be present at the Sessions But yet that is not for to certifie their Inquisitions for that ought by 1. 2. Phil. mar cap. 12. to bée done at the general Gaole deliuerie nor yet to receiue any Approuour for neyther that belongeth to the Iustices of Peace 9. H. 4. 1. but it is onelie saith M. Marrow because the Coroners be parties to the Exigents and be Iudges of the Vtlawries Howbeit they are besides that Conseruatours of the Peace and may in cases commit men to prison and therefore ought to be at the Sessions to obiect against them The Corosars The Shirife also ought to attende at these Sessions for the double duetie that he beareth the one as Shirife to retourne the Precept to take the charge of Prisoners and to serue the courte otherwise as hée hath in charge by the Mandauimus that is métioned in the Commission to haue bene sent vnto him the other because he also hath Care of the the Peace The Shirife The Bailifes of Franchises and the Constables of Hundreds are to serue also the one as Ministers the other as Iurours therfore ought to giue their attendaunce Bailifes and Constables And euery of these excepte it bée the Custos Rotulorum for thereof I doubt maye without controuersie bée amerced if they make defaulte But the Ordinarie oweth not his attendaunce here at any Sessions of the Peace as he doth at the generall Gaole Dehuerie in the opinion of M. Marrow The Ordinarie Iâ—déede he is not warned by the commune Precept and therefore cannot so conueniently take knowledge of the Sessions of the Peace Howbeit if he come I thinke that he ought to serue when he shall bée called But especiallye there oughte to appears suche Iurours as be retourned by the Shirite and warned by his Baylifes whether it bée for Enquiri or triall Iurours for Inquirie and tnall And in thys behalfe both the Commission the commune forme of the Precept and the Law it selfe 11. H. 4. cap. 9. willeth that they shoulde be probi legales homines for if any of them be discredited in Lawe as by Attainder in Conspiracie Attaint decies tantum Subornation of Periurie or such like they bée not Probi and their presentment is voide by it vnlesse there bée twelue besides them that are not so blemished Againe if they bée outlawed abiured coÌ„demned in a Premunire or attainted of treason felonie or such like then bée they not Legales and their presentment is merely voide also as it may be gathered vppon the case 11. H. 4. 41. And women infants vnder fouretéens yeres of age Aliens and such bée within orders of the Ministerie or Cleargie cannot be empanelled amongst others And generally these Iurours ought also either to be inhabiting wythin the Shire or else to haue lands there for the Commission willeth that they shoulde be suche Per quos rei veritas melius sciri poterit whiche muste néedes be vnderstoode of such as haue cause to knowe the Countrie And the precept is vsually according to the same forme But specially in the Countie Palatine of Lancaster ech of them ought to haue to the yearely value of fiue pound by the Statute 33. H. 6. cap. 2. If any of the Iurours returned be thréescore and tenne yeares of age or haue anye continuall infirmitie or be otherwise decrepite yet that shall not excuse him for not appearing if the Iustices will require his seruice but he driuen to his Action gainste the Shirife for retourning of hym vppon the Statute of W. 2. cap. 38. Marr. And if he haue a Charter of Exemption he ought to she we it to the Shirife againste whome if he will notwithstanding empanell him he may haue his Action vpon the Case and hath none other remedie by 18. H. 8. 5. Cur. which may be truely said as to the sauing of his issues but by some other books and namely 42. Ass Pl. 5. Marr. he is to be discharged vpon his apparance specially where he hath in his Charter of CremptioÌ„ these wordes Licet tangat nos vnlesse there want others that he sufficient to serue Nowe though some of the Cnquest of Cnquiry be of affinitic or consanguinitie with any party grieued that procureth any inditement yet that hindreth not their presentment howheit it is no discreation for the Iustices to suffer any surhe to bée empanelled amongest them The common manner in Kent agréeing with the forme of the Precept is to return particular Iâ—ries for the Hundreds and one generall Iurie for the body of the Shâ—re this laste is made vppe wyth vs for the moste parte of the Constables onelie and those others if they be not filled at the first are wonte to bée renued wyth the lyke from Scssions to Sessions Generall and particular Iuries But that vsage is no small hinderaunce to the seruice as many doe thinke by reason that those particular Iuries béeing seldome serued with full apparance the whole Cnquirie standeth onelie vppon their labour that are empanelled for the bodie of the Shire that is to say vppon one man of each Hundred at them moste who cannot be thought to sée so much as a whole Iurie maye and dothe And therefore they think that it were good to make vppe some of the particular Iuries also when they be not full de circumstanbus out of other Hundreds by which mean eyther the whole Shire or at the leaste a great many parts therof might be perused To this opinion M. Marr. séemeth to encline saying that in
set foorth in the Statute of Drouers Badgers 5. Eliz. ca. 12. where it appeareth that vpon the examination of two lawfull witnesses the Iustices of Peace may make Processe as if it were vpon an Inquisition of twelue men Forced Information The like may they do vpon the Statute of Armour 4. 5. Phil. Mar. ca. 2. Sute betwene party and party And the berie like also may they doe vppon the Statute made against Forstallers 5. E. 6. ca. 14. which last sayd Statute séemeth for this point to haue bene followed as a Paterne by the other two so right they tread in the steps of the same Herunto also you may adde the examination of the M Marmers of ships wherin corne or victuall shall be transported against the meaning of the Statute 1. 2. Phil. Mar. ca. 5. Thus much of the knowledge of cause exhibited by such as either doe it at large for the Queene onely to haue the offence punished or be special1y allured thereto by regard of benefit growing in common to them with the Queene thereby Now of those that seeke to informe the Court for the profite due to them selues alone The knowledge that commeth this way is by the priuate sute and proper action of the partie and is therefore in the Statute 11. H. 6. ca. 6. tearmed a sute betwene partie and partie whereof that Statute had no lesse consideration than of those other sutes that bée for the Queene her selfe and therefore prouided that they also should not be discontinued by new Commissions of the Peace to be made I know that there be not many Statuts which do giue power to the Justices of Peace to hold Plea betwene partie and partie and I thinke it hath not bene often experimented vpon those very Statutes which do giue it and how the Judges do expound this verie Statute I can not tell Neuer the lesse because I may neither wittingly conceale any such parte of their auctority Iurisdiction although it were but my opinion nor safely reaport it without some proofe I will giue you one example of this kinde as I take it and leaue the rest further search The Iustices of Peace haue power to enquire heare determine of all the defaultes against the Statute made 23. H. 6. ca. 11. concerning the leuying of the wages of the knights of the Parliament as well by enquire at the kings sute as by action at the sute of the party In this and suche like as in Appeales by warrant of the large words of the Commission as hath bene sayd the Iustices of Peace ought to proceede after the vsuall manner of ather Courtes of Recorde at the Common law if I doe not miscall it and therefore I wil goe no further with it but will prosecute that hearing and determining that more properly pertaineth unto them if first I may shew you how they are sometimes preuented in that behalfe Of the Impedimentes of proceading vpon Enditements before the Iustices of Peace CAP. VII IT falleth out not seldome when Iustices of the Peace haus taken an Endâ—ement founde before them that they can not proceede to hearing and determining vpon it either bicause it is grounded vpon some such Statute as giueth vnto them no further power but onely to enquire thereof or els bicause the Enditement is taken out of their handes by Certiorari and conueyed to Iustices of a higher auctoritie at the sollicitation and by the meanes of some parties grieued to the end that either they may trauerse them aboue or there auoide them for insufficiencie of forme or matter And therefore Iustices of the Peace may only enquire of certaine the offences against the Actes 1. El. ca. 2 ca. 3 5. El. ca. 1 13. El. cap. 2. touching the acknowledging of the Queenes supremacie or the seruice of God or comming to the Churche or the stablishment of true religion as you may see 23. El. cap. 1. And they may onely enquire of any the Treasons or Misprisions of treasons made by the same Acte 23. El. ca. 1. Neither can they goe any further than onely to enquire of and to endite the offendours against any the Articles of the Acte made 23. El. ca. 2. concerning seditious rumors against the Queene In the rest so farre as I haue found their power of Enquirie is accompanied with the auctoritie to heare and determine also For this want of Jurisdiction is not found in the Commission of the Peace it selfe but onely in cortaine Statutes that for weightie causes doe restreine this further proceeding By what means such Enditements shall bée remoued to those higher Courtes I will shew you when I come to speake of Certifying the Recordes of the Sessions and will now goe on with those other Enditements that bée remoued by labour of the parties Albert that in the remouing of pleas betwene partie and partie from inferiour to higher Courts by Tolt Ponc Recordare c. there was wont to bée a probable cause alleaged for which the same were remoued yet in this case of the Crowne there néedeth no cause to bée comprised in the writ of Certiorari bicause they all bée the Courtes of the Queene and it breedeth neither iniurie to the offendour nor losse to any other person in what Court soeuer the offence bée tried This Certiorari then may commaunde either the Recorde it selfe or Tenorem Recordi to bée sent vppe and it ought to bée obeyed accordingly Enditements remoued by labour of the parties For vpon fayle thereof first an Aliâ—s then a Pluries vel Causam nobis significes and lastly an Attachment shall goe out against them that should sende it as M. Fitzh noteth in his Nat. Br. Fol. 245. but I haue heard that they vse also Sub poena at this day And albeit the Certiorari be a Supersede as of it selfe yet may the partie vpon the Certiorari purchased have a Supersede as also directed to the Shirife commauÌ„ding him that he arrest him not vpon that Record before the Iustices of Peace Fitzh ibid. Fol. 237. In which place also he doubteth whether the Iustices of Peace them selues ought of dutie to awarde their owne Supersedeas to the same effect after that the writ of Cortiorari is brought to their hands This writ of Certiorari is euer directed to the Iustices of Peace and yet as you haue heard the Custos Rotulorum onely hath the kéeping of these Recordes but the auncient Commission of the Peace had no Custos Rotulorum specially named in them and then this certifying belonged to them all which forme the Writ retaineth to this day And if it fall in question whether such a Certiorari were deliuered to the Iustices of Peace or no that must be tried sayth the Booke 10. H. 7. 24. by the verdit of twelue men Now if a Certiorari come to the Iustices of Peace to remoue an Enditement and the partie sueth not to haue it remoued but suffereth it to lye
still the Iustices of Peace may procéede notwithstanding the Writ as Hubbert the Kinges Attourney sayd 6. H. 7. 16. for otherwise the triall of a Felon if the Enditement Were of Felonie might bée delayed and deluded also But yet Keble held opinion against him and was fearfull that in such a case it might proue felonie to make execution after such a writ And if a Certiorari come to the Iustices of Peace to remoue an Enditement and in truth the Enditement was not taken till after the date of that Certiorari yet if the Enditement bée remoued thereby it is good enough for that they both bée the Queenes Courtes 1 R. 3. 4. In the making of a Certificat vppon this Certiorari the Iustices of the Peace ought neither to omitte that which both auctorize them nor to excéede that which belongeth vnto them For on the one side if they certifie an Enditement of Felonie as taken coram Iusticiarys ad pacem it is not enough without saying further Nec non ad diuersas felonias c. and otherwise it is doubtful whether the Endited shall bée quite dismissed or no because the Iustices of Peace haue then no Recorde at all remaining with them for the Clarke of the Peace maketh an entrie accordingly that Record which they sent up is insufficiēt And therfore the Clarke of the Crowne was forbidden to receaue any such Certificat 12. H. 7. 25. On the other side if they certifie one Enditement of felonie not determined into the Kings Benche they ought not Without warrant to certifie an other Recorde of the acquitall of that Enditee for the same matter for nothing ought by them to bée sent thither without warrant but that which is executorie and néedeth the helpe of that Court. 8. E. 4. 18. And if a Certiorari bée to send up the Enditement of A. in which Enditement some others bée endited togither with the same A. yet néede not the Iustice of Peace to make Certificat concerning any but A. 6. E. 4. 5. For although they bée named ioyntly yet bée they endited seuerally as I haue sayd before and the Queene may pardon A. without forgiuing the other 6. E. 4. 5. Markam Finally it is noted 8. H. 5. 5. that Hankforde the chiefe Iustice of the Kings Benche abserued this order that he which brought thither an Enditement taken before Iustices of the Peace should endorce his name vpon the backeside of it which I note not to teache them of the Kinges Benche but to let Iustices of the Peace sée that there is some héede to be taken of him by whom they send up their Enditements Of the Processe vpon Enditements and Informations CAP. VIII THe Court béeing thus made priuie and possessed of causes must of duetie procéede to the handeling or hearing and tryall of them the whiche bicause it can not indifferently doe vnlesse it keepe one eare for the offendour that he also may be heard in his owne discharge as others were heard to lay the charge vppon him the manner is to awarde Processe against him to come in and to aunswere For commonly an Enditement or Information béeing but an accusation or declaration against a man is of none other force but to put him to aunswere And thereof all Processe hath the name bicause it proceedeth or goeth out vpon former matter either Original or Iudicial Processe whereof it is named How be it I make difference whether this processe bée grounded vpon an Enditemet or vpon some other information for they bée not all one vnlesse it bée in a fewe Statutes so specially prouided Although the Statute 33. H. 8. cap. 10. did once conioyne and coople them The power of making processe vpon Enditements is giuen by erpresse wordes in the ende of the second Assignauimus of the Commission and in other cases where it is not namely giuen it is emplyed of congruencs or rather of necessitie in the wordes heare and determine which not bée perfourmed vnlesse the partie doe either come in graiis or bée brought in by processe Auctoritie to make out processe This Processe ought alwaies to bée in the name of the Queene thus Elizabeth Dei gratia c. Vicecomiti Kancia c. And the Teste thereof may bée vnder the names of any two Iustices so that it be made sitting the Court in the Sessions Teste of the Processe Commission del Peace Brooke Tit. Peace 6. 7. But now whereas the Commission giueth to the present Iustices auctoritie to make processe vpon Enditements taken aswell before former Iustices as before them selues al that doing was wont to bée discontinued in Law by the comming out of a newe Commission of the Peace vntill that the Statute 11. H. 6. ca. 6. did establish that no pleas suits or processe to bée taken before Iustices of the Peace shoulde bée discontinued by a newe Commission of the Peace to be made but that they shoulde stande in their strength that the Iustices assigned in the same new Cōmission shoulde haue power to continue the same and to heare and determine all that whiche dependeth vpon them New commissions of Peace doe not discontinue the old processe And of the like effect there is a braunche in the latter ende of the Statute 1. E. 6. ca. 7. Furthermore whereas Shirifes and their Baylifes vsed to arrest men and to procéede vppon Enditementes founde in theyr Turnes or Lawdayes an other Statute made 1. E. 4. ca. 2. wringeth that power out of their handes and deliuereth it ouer to the Iustices of the Peace also appoynting them to procéede vpon them as if they had bene found before themselues Enditement before Shirifes Nowe séeing that this Processe of the Sessions is sent out to this ende that either the partie shall come in to answere and be iusticed by lawe or else that he shall for hys contumacie bée dèpriued of the benefitte of lawe for so muche in effect doe the wordes of the Commission Quensque capiantur reddant se aut vtlagentur importe in them it followeth that in al cases of Enditements if the partie be retourned insufficient the Processe of Vtlawrie lyeth againste the offendor if he bée not taken before or doe not otherwise offer and yéelde himselfe Processe of vtlawrie But a good while after that Commissions of the Peace were first awarded there was not giuen by them any power to make out anye Processe of Vtlawrie for I haue séene a Commission of the Peace 20. Ed. 3. Part. 1. Patent in dorso wherein were wordes auctorizing the Commissioners to arrest all suche as shoulde bée endited before them but by and by this followeth Et ad nomina eorum qui fugerint coram vobis iusticiari noluerint certificandum in Cancellaria c. So that if they mighte not gette them arrested they coulde goe no further but to certifye theyr names The meane to this Vtlawrie is not one in all cases for vpon Enditements of Trespasses
of the Peace may awarde Processe It seemeth by M. Marrowe that the Processe at the common Lawe vppon Enditements of felonie was but one Capias then the Exigent But the old Precedents grounding the mselues vpon the Statute 25. E. 3. c. 14. doe vse the mention of two Writtes of Capias before the Exigent For that Statute prouideth that after retourne of Non est inuentus vpon the first Capias an other Capias shal be incontinently awarded whereby the Shirife shall be commaunded to seise the cattailes of the Enditee and safely to kéepe the till the day of the Capias retourned and if he then also returne Non est inuentus the Enditee commeth not in the Exigent shal bée awarded and the Cattailes shal be forfeited But if hée come yéelde him or be taken before the returne of the second Capias the goods and Cattels shal be saued vnto him And here the Iustices of peace haue power to send into a Forraine CouÌ„tie for whereas by the coÌ„mon Law no maÌ„ could be Attached vpoÌ„ an Enditement or vtlawrie of Felony but only in the Countie wherein he was Endited or outlawed whereby many euil men were much incouraged the Statute 5. E. ca. 11. did take order that Iustices assigned to heare and determine Felonies might direct their Writtes to any Countie in Englande to take suche Enditees whether soeuer they had remoued themselues Processe into Forâ—â—â—ne shires And on the other side if the Inditement be found in one Countie and the Enditee is therein named to be then dwelling in another Countie I haue tolde you already in this Chapter for the benefit of the Enditee what Processe belongeth to it and therefore I will in hande with Processe vpon Informations The power of making Processe vppon Informations procéedeth from speciall Statutes may not therefore varie from their direction although they varie one from an other Processevpon Informations For vpon an Information giuen for the Queene before Iustices of the Peace vppon the Statute of Liueries made 8. E. 4. cap. 2. the shall awarde suche Processe as is made vpon an Originall Writte of Trespasse done against the Queenes Peace because the Information it selfe is by force of that Statute in steade of an Originall Writte Liueties And vpon Information made vnto them that an Alehouse kéeper hathe done any acte whereby he hath forfaited his Recognusance they may awarde Processe againste him to shew why he should not forfeite hys Rccognusance by the Statute 5. E. 6. ca 25. as hath bene saide But learne if that be meant of a Scire facias or of some other Proceffe Of Hearing vpon Confession CAP. IX THe partie being thus brought in or otherwis yelding him selfe to answeare Iustice requyreth that he be heard to speakâ— and therefore hiâ— may as hys case wil serue eyther ronfessue or deny the offence wherewith he is burdened And this Confession is of two sortes frée or forced and that former is of two kindes also absolutc or after a manner Free confession In the open or absolute Confession hée taketh the faulte vppon him and péeldeth himselfe simply to suche paine as the Court will inflid for it And this frée Consfession is of great force in Lawe for if it be vpon an Enditement of Batteric and after such confession had for the Queen the partie beaten wil also bring his Action of Trefpns for his owne damage then shal the defendant be concluded by his confesession vpon the Enditement so that he shall not bée receiued to say the contrarie 9. H. 4. 8 11. H. 4. 65. But the other which I call Consession after a manner is onely a not denying in which the partie both cunningly and after a sorte take the fault vppon him without confessing hym selfe guiltie thereof as where he putteth hym selfe in Gratiam Reginae wythout anye more or by Proteftation that heacute e is not guiltie pleadeth his pardon And such a Confession if I maye so call it both not so conclude hym but that he maye afterwarde pleade Not guiltie in anye Action brought aqainst him 9. H. 6. 60. Cur. 11. H. 4. 65. The forced Confession whereof I spake is that which the Iustices do wring out Of the partie by the ExaminatioÌ„ of him in such cases wherein it is permitted Forced Confefsion But because I intend to speake of Examination by it selfe I will reserue this till I come to that Of hearing by Discretion CAP. X. WHether the offender shall fréely confes ss the faulte or finely yéelde hym selfe to Grace or pleace hys pardon without confessing it yet then is that matter fullye heard and the Court made readie to determine of it But if he shall deny the fact then muste some other course of Hearing or triall be taken for it And that is in some cases by Dis cretion of the Iustices in some other cases by Examination of the parties or witnesses and in s ome other cases by Ccrtificat of other men but in meste cases by Trauers e or Araignement bothe which laste trialles are perfourmed by the verdite of twelue For Ius tices of the Peace can not vpon an Inditement of Mayheme make the Triall by their own view or inspection as the Iustices of the Kings Bench may faith Marr. The Statute 11. H. 7. cap. 3. pretending that offences committed againste the Statutes Of Riotes Retainers Maintenaunces Embraceries Extortions Vnlawful games and such like mis demeanours were neither accordingly punis hed before Iustices of the Peace by reason of the greate corruption and fauoure of the Enquestes fworne and charged there vppon to enquire before them nor coulde be otherwise conueniently corrected by order of Law wulesse they were founde and presented by twelue men thereto duely sworne did enact that from thenceforth Iuftices of the Peace vpon information made for the King before them should haue ful power by their Diseretion to heare and determine all offences and contempts against many penall lawes then inforce not repealed But as one saide Exbonis legibus mala exempla So the Parliament 1. H. 8. cap. 1. complayned that manye men were deceitfully entrapped and wrongfully condemned thereby and therefore it resumed that power yea and the King withall chopped off the heads of some that had filled hys fathers purse by the execution of that some other penall Statutes So that now againe the Triall of offences ought for the moste parte to procéede eyther after the generall order of the common Lawe or vpon suche speciall examination or other proofe as some Statutes doe giue in speciall cases and this hearing at libertie and discretion hath seldome airye place But whersoeuer it is permitted that couÌ„sell which M. Bracton lib. 1. giueth is to be hearkened vnto In Iudiciall hearing of a fault saith he besides the bodie of the facte it selfe these seauen circumstances are to be weyghed namely the cause the person the time the place the quantitie the qualitie and the euent And
for proofe that hearing by discretion is yet in some sorte suffered take thys for example The Iustices of Peace may heare by their discreation as well by Examination as other wise at the suite of the king or of the partie the offences done againste the Statute prouided for the true making of Lile 17. E. 4. cap. 4. But howe farre this discreation and the worde otherwise maye bée extended in thys and suche like cases it can not wel bée foretolde for it is referred to them and they muste take counsell exre extempore for it Of Hearing or Triall vpon Examination CAP. XI THe obstinacie of euil dooers that woulde shewe no conscience in acknowleging of their faultes and the corruption of Iurors that would presente nothing that lay onlie in their owne knowledges hath begotten and brought into our Lawe thys triall by Examination wherewith it was not before acquainted And yet thys manner of Triall is not loosly permitted to Iustices of the Peace but in cases onelie where eyther the Statutes doe generally referre the trial to their Discretions or else doe specially auctorise them to take the Examinations The Examination then is sometimes of the offendours them selues sometimes of Witnesses that can speake to the matter and sometimes both of the parties and witnesses of euerie of which I wil giue you an auctoritie or twaine and leaue the reste to your owne reading and examination Vpon apparance after Procesle against the offendors of these Statutes of Liueries Liueries the Iustices of Peace may examine them and there vpon conuince them so as if they were thereof conuict by Enquest 8. H. 6. cap. 4 8. E. 4. cap. 2. They may also call before them and examine all such as shall be suspected to kéepe Deere hayes Deere hayes c. or Buckstalles or that vse to stalke or to take yong Herons againste this Statute and maye finding them faultie committe them to prison till they find Suerties to pay the forfeiture 19. H. 7. ca. 11. And because it is often séene that those which haue committed an offence will also increase their faulte by denying of the same therefore some Statutes as I saide do appoint that the Iustices of Peace shall take the examination of others besides the offendors themselues And therevpon the vsers of false priuie tokens False tokeÌ„s or of counterfaite Letters may bée tried out by the examination of Witnesses 33. H. 8. cap. 1. And the vnlawfull takers of Dawkes Hawkes egs Hawkes eggâ— or Swans egs may be detected and coÌ„uinced by information and such proofs 11. H. 7. ca. 17. Now whereas some Statutes doe enable the Iustices of Peace to heare and determine by the generall vse of the word Examination without shewing of what persoÌ„s it séemeth to me that they may ther vpon examine as wel the parties as other witnesses Such a one is the Statute prouided for the true making of Tiles Tiles 17. E. 4. cip 4 Such an other is the Statute made for the examination of offences done by Coroners 1. H. 8. ca. 7 Coroners And such an other also is the Statute ordained for the examination of putting into Foreits or Wastes any stoned Horses being vnder the height of fiftéene handfulles Stoned Horses 32. H. 8. cap. 13. Thus farre of Examinations which whether they ought to be takeÌ„ vpon oath or no you maye coniecture by that whiche I haue alreadie sayde thereof in the firste Booke and yet for more aide towardes your resolution I saye nowe that these Examinations ought in my slender iugement to be vpon Dathe because the triall here dependeth vppon them whereas those others are but to enforme the Iurie towardes an â—â—ditement onelie in so muche as the parties are bounde to giue the matter of them innuidence Vina voce when the triall shall bée Of Triall or Hearing by Certificat CAP. XII BEfore som other Iudges the Lawe hath allowed Trial by sundrie sortes of Certificat as from the Quenes Lieuetenaunt in the case of Escuage from the Bishop in the cases of Bastardic Bygamie Excommunication c. and in some other cases from other men But before Iustices of the Peace I haue not hitherto founde anye triall by Certificat appointed by Statute but in this one case following If any man being impeached vpon this Statute of Armour for not hauing his appointed furniture shall alledge that the same furniture so lacking coulde not bée conueniently prouided for waÌ„t of the same wythin the Realme this shall be taken for a good answeare in case it be true but if it be denyed or trauersed issue shall be ioyned vpon it and the Trial shall be onelie by Certificat to be made by the L. Armour Chauncelor L. Treasouror L. President of the Counsell L. Steward of the Queenes house L. Priuie Seale L. Admirall and L. Chamberlaine of the saide housholde or by thrée of them in writing vnder their Seales 4. 5. Phil. Mar. cap. 2. For the Certificat of the offence and of the Recognusance taken by two Iustices of the Peace one being of the Quorum of hym that hath obstinately kepte a common Ale-house againste the Statute 5. E. 6. cap. 25. is made a sufficient conuiction of the same offence wythout further Triall Alehouse keeper Of Hearing or Trill by Trauerfe CAP. XIII THe moste solemne auntient Triall of the fact against an offendor that wil not con fesse it is that which we sée perfourmed by the berdite of twelue good and lawful men of the Countrie and it also doth beste con tent and quiet the guiltie man for that it passeth by hys owne Countrymen Neighbours and Peeres according to the auntient libertie of the Lande wherevato every frée borne man thinketh him selfe inheritable and therevppon it is named Mag. Cart. cap. 29. Legale indicium parium suorum the lamfull iudgement of a mans owne Peeres or Equalles because as the Nobilitie soalso the Comminalty are to be tried intreason felonie or misprision of treason not the one by the other but each by men of their owne estate and calling I meane by the worde Nobilitie as our own Law speaketh which calleth none Noble vnder the degrée of a Baron and not as men of forraine Countries doe dse to Gentile birth is accompted Noble for wée dayly sée that bothe Gentlemen and Kinghts doe serue in the Parliament as members of the Comminaltie Nowbeit in cases of forcible Centrie Riot Rout vnlawful Assemblie or such like they of the Nobilitie shal be tried by twelue men as well as other inferiour subiectes 3. 4. Phil. Mar. reported by Dalizon Thys Triall happeneth before Iustices of the Peace sometimes vppon Trauerse and sometimes vpon Arraignment But yet some things be commune to them both For if the partie charged will Demurre in Lawe vppon the euidance the Iustices ought to recorde his Demurrer So if he wil pleade in Iuttification any matter of Recode that is before other Iustices they ought to
give him day to bring it in Marr. So also if the Iustices thinking an Enditement to be doide haue discharged the prisoner paying his Fées yet vppon chaunge of their opinion they may stay him againe at any time before Iudgement Fitzh Endite 27. But if he pleade a Pardon before them in whych certaine persons be excepted and the Queenes Attourney is not present to ioine issue that he whyche pleadeth it is one of those that be excepted then they themselues maye supply the office of the Attourney in that behalfe 8. E. 4. 7. wherevpon also I gather this generall learning that they ought not to suffer the Queene to be disaduauntaged where it lyeth lawfully in their power to preuent it And if an Inditement be challenged for suche cause as these Iustices will not allow then may they seale a Bill of that exception for the partie if he will write and require it according to the Statute W. 2. ca. 30. as M. Marr. writeth The Trauerse tooke name of the French de Trauers Trauerse which is no more than de transuerso in Latine signifying on the other side because as the Eaditement on the one side chargeth the partie so he on the other side commeth in to discharge him selfe For whereas the Arraignement procéedeth vppon hym that is dnwillinglye brought in by Processe the Trauerse is for the moste parte fréely tendred dy the partie To Trauerse an Enditement then is to take issue vppon the chiefe matter thereof whiche is none other to saye than to make contradiction or to denye the point of the Enditement As in a presentment againste one for beating the seruant of A. the parte may come in and may choose to saye that he did not beate him which is to trauerse the matter or that he is not the seruant of A. which is to trauerse the cause but hée cannot saye that A. loste not hys seruica for thereby the batterie is confessed and then of necessitie it followeth that hée is a Trespasser 31. H. 6. 12 Brooke Til. Trauerfe 182. And the libertie of Trauerse is commonly restrained to Enditements of Trespasses Contemptes Riotes and other inferiour offences wythin the Commission or Statutes auctoriring the Iustices of Peace and is not dsully ertended to Treasons or Felonies as you shall héereafter sée M. Brooke noteth that it is not muche dsed to Trauerse Enditements before Iustices of the Peace but rather to remoue them into the King Bench and to Trauerse them there Trauerse before Instices of the Peace stices of the Peace Howbeit commun experience at this days can shelve manye Trauerses béefore Iustices of the Peace also And there is no doubte but that as Iustices of the Peace haue power to awarde Processe and the parties also haue libetie to speake for them selues So hauing spoken the Iustices may Heare and Determine of their speach whether it touch them in feéeholde or otherwife For although it be holden 2. R. 3. cap. 11 19. H. 8. 11 Fitze Tit. Afs. 442. and in other bookes that a man shall not be receiued to trauerse a Prefentment vnlesse it do charge his fréeholde yet Hussey and Fairetax saide 5. H. 7. 4. that a Presentment not concerning fréeholde which is founde before Iustices of the Peace may be traucrsed and whether they meante it of a Trauerse in the Kings Bench or béefore Iustistices of the Peace it maketh no difference because the reason is all one that is if Processe be awarded the partie maye come in and offer his Trauerse and otherwise the Processe should be in baine Hereunto agréeth Moubray 41. Ed. 3. 26. saying further that in a Leete suche a Presentment is not Trauersable because out of a Leetee no Processe can be awarded vppon it And this peraduenture is the reason of the booke 8. E. 4. ca. 5. and of M. Mar. where they say that a Presentment of bloudshead found in the Shirifes Turne and sent as it otgh to be to the Iustices of Peace cannot be trauersed before them as wherevppon they can neyther make Processe nordischarge the partie by waye of Plea So that this séemeth a generall learning that wheresoeuer any Processe adrespondendum goeth out vpon suche an Enditemente as is trauersable there the partie may offer and ought to haue his Trauerse But Marrowc sayeth that if a man bée of an Enquest that Endited him of Trespasle or suche like so that vppon the matter he emdied hymselfe thys is so strong that hée shall neuer bée receyued to Trauerse it It is not my meaning to pester this latter Booke with Precedents But yet for as musc as in the Recorde of one Trauerse there is at once discouered the Stile of the Sessions the Enditement the Processe to aunsweare the Trauerse it selse the Verdite and Iudgement therevpon the Processe of execution the yéeldng of the parties and the assesmet of their fines so that it alone maye serue in steade of all I trust it shall not bée troublesome to insect it ALias seict cet ad Sessiossem pacis tentam apssd Bridgewater in comitatu pradicto die Martis proxime ante festū Sancti Mathei Apostoli annoregni Dom nestra Elizabethae dei gratia Anglia Frácaea Hibernia Reginae sidei defensoris c. vicesimo Coram Iohanne Stowell milite Humfrido Walron vno magistrorum Curia Cancellariea dscta D. Reginae alijs socijs suis Iusticiarijs dicta Domina Reginae ad pacem in comitatu preadicto conseruandam Necnon ad diuersas felorias trangressioncs alia malefactain code comitatu perpetrata audienda terminanda assignatis per sacramentum xij Inratorum extitit prasentatum guód Iohannes Long de c. R. M. de c Et T. L. de c. cum diuersis alijs ignetis malefactoribus pacis dicta Dom. Reginae perturbatoribus modo gueriino arraiati vnsti assemblati vicesimo die Iulij in nocte eiusdem diei anno c. Vi armis viz Baculis gladijs clipeis pugionibus falcactris alijs armis tam inuasiuis guám defensiuis apud C. c clausum cuiusdam Willi. Willkt vocatum B. illicité riotose routosé fregerunt intrauerūt octoplauctra foeni ad valenciam c. adtunc ibidem existentia de bonis catallis dicti Willi. Willet adtunc ibidem iniucté illicité ceperunt acportauerunt contra pacen dicta Domina Reginae c. Et coatra formam Statuti inde editi Se prouifï Enditcment Per quod praceptum fuit vicecomsti quod non omitteret c. quin venire faceret eos ad recpondendum c. posteag scilicet praedicto die Martis proxime ante feslum Sancti Mathai Āpostoli an vicesimo supradecto coram prafatis Iustictarijs venerunt pradicti I. L. R. M. T. L. in proprijs personis suis habito auditu Indictamenti praedicti seperatime dicunt quod ipsinon sunt inde culpabiles Et de hoc ponunt se super patriar
and Amerciamentes by Estreates first sent vppe to the Eschequer and then deliuered thence to the Shirife which was at that time the common manner of leuying Fines and Amerciamentes therefore it was within two yeares after videlicet 14. R. 2. cap. 11. prouided that the Estreates of the Iustices of Peace should bée indented or doubled and the one parte thereof deliuered by them to the Shirife so leuie the money thereof rising and to pay the Iustices their wages by Indenture betwene him and them to be made and the other parte thereof sent into the Eschcquer to charge the Shirife withall vpon the making of his account there And hereby as I thinke the Estreates of the Iustices of the Peace be no we an immediat warrant for the Shirife to leuie not only the Fines and Amerciamentes but also all other â—â—â—ues Penalties Lesses Forfeitures and Summes whatsoeuer arising before themL for the wordes of the Statute are generall The money thereof arising and therfore whatsoeuer summes are to be Escreated into the Eschequer by the one of these doubles the sme are also to be leuied by the Shirife by the other double Such order did the Statute 3â— H. 8. cap. 10. of the fire weekes Sessions take for the leuying as well of Fines and Amerciamentes as of peines Losses and Forfextures of money So doth the Statute of Tillage 2. 3. phil Mar. cap. 2. by way of admittance rehearse that Iustices of the Peace may make out Processe for the leuying of Fines and Forfcitures before themselues and so are the Estreates amde and the Fines and Forfeitures thereby leauied at this presente time if I bée not deceâ—ued And those are properly called Estreates of the woordâ— Extractae because they bée shorte Notes or Memorialls extracted or vrawen out of the Recordes by the Clarke of the Peace and by him indented and deliuered sunderly to the Shirife and to the Barous of the Eschequer bearing this or the like Title Extract finsium amerciamentorum forisfactormum ad goâ—ralem Sessionem Pacis tentam apnd Maidstone c. Coram c. For the whole forme of the making wherof there is full Direction giuen to all Clarkes of Estreates by the Statute 7. H. 4. ca. 3. Where vnto I referre them Howbeit I do not thinke that in our case this dutie of Estreating is so peculiar to the Clarke of the Peace but that the Iustices of the Peace them selues ought also to haue a common and carefull eye vnto it For if you remember it is both specially prouided for in the Commission and also an Article of their Dath to see vnto the faithfull Entrie and Certificat of the Issue Fines Forfeits and Amerciamentes that doe happen before them And therefore it were well done in mine opinion if the Iustices would by turns or other wise both take knowledge of things that haue passed before them and also take order that the same be certified accordingly least other wise it lye altogither in the power of the Clarke of the Peace to Saue or Slay as one sayd the Sparrow that he holdeth closed in his hand Iustices of the Peace ought to haue care of Estreates Of Executorie Processe execution for the parties that sue or for other persons CAP. XVII ALbeit that the Iustices of Peace haue this power to make warrant for leuying the Amerciamentes Fines and other forfeits that doe growe vnto the Queene by their seruice yet is it commonly thought that they may not but in some cases onely and that by speciall spéech of the Statutes make execution either for him that will sue or for any other of such parte of the forfeiture as the Law doth aford them For most commonly the partie that will sue is put to his Action at the Common law for recouerie of that which he is to haue as for his moitie of a forfeiture againste the Status 24. H. 8. ca. 13 of apparell he is perhappes driven to his Action of Dstinue for his maytie growing vppon conuiction of any offence centrarie to the Statute 13. Elizab. cap. 14. concerning bringing ouer of Bowstaues or contrary to the statute of Musters 4. 5. Phil. Mar. ca. 3. he is to commence his Action or Bill of Debt and so of sundry others that are ech where to be foúd Apparell 〈◊〉 Musters But Where they haue power either by their Commission Or by any Statute to heare and determine any cause at the sute of aprituate person I do not see how the cause can well be said to be fully determined till the complaint hath had the effect of his sute which can not be without execution Doubtlesse by speciall prouision made in the Statute 5. E. 6. ca. 14. against Forestalle is the Iustices of the Peace may make execration of the one moitie of the forfeiture for ht in that sueth by fieri facias or capias as the Q ueenes Iustices at Westminster vse to dec Forestallers The like power in like words haue they for leuying the moitie of any forfeture against the Statute of Armour made 4. 5. Phil. Mar. ca. 2 or against the Statute made 5. Elizab cap. 12. concerning Badgers Drouers c. and their licences Armour For the moitie growing to the Informour vpon the Statute of Liueries 8. E. 4. cap. 2. they shall make suche execution as ought to be had in Kccourries of Der or Trespaile at his owne pleasure Li ue ries They may also awarde execution for the partie that sueth vpon the Statute of Flaxe and Hemp 24. H. 8. ca. 4. by such Processe as to them shall seeme by their discretion Flaxe and Hempe And the Estreates made by the Clarke of the Peace of forfaits for defaultes of amending Highways area safficient warrant to the Constables to leuie the same by Distresse to the vse of the Churchwardeins of the Parish where the Default was towardes the amendment of the said wayes Highwayes 2. 3. Phi. Mar. ca. 8 5. Elizab. ca. 13. Ann like wise the Estreates of the Iustices of Peace of any Fines assessed by them vpon Presentmentes in the shnifesTurne being inrolled indented deltuered to the Shinfe are a good warraÌ„t vnto him to leuy the same to the vse of him that was shirite at the time of such Presentmentes taken Shirifes Tisma 1. E. 4. ca. 2. Searche may aforde you some moe eramples but thrse may suffise for my desire which is not in this or any other to recount all but to make some proofe of that which I offer and propose Of Certifying Recordes of the Sessions of the Peace to other Courtes or Officers CAP. XVIII AS we haue alreadie manifested that Iustices of the Peace haue not a sufficient and thorowe powur of them selues to heare and determine all causes whereof they haue in their Sessions auctoritie to enquire So also be there sundry things determinable before them there which neuerthelesse may in some respectes be