EIRENARCHA or of The Office of the Iustices of Peace in two Bookes Gathered 1579. and now reuised and firste published in the. 24. yeare of the peaceable reigne of our gratious Queene ELIZABETH By WILLIAM LAMBARD of Lincolnes Inne Gent. Hae tibi artes erunt pacique imponere morem AT LONDON Imprinted by Ra Newbery and H. Bynneman by the ass of Ri. Tot. Chr. Bar. ANNO. DOM 1581. TO THE RIGHT HONORABLE SYR Thomas Bromley Knight Lord Chauncelour of England AFTER suche tyme as it liked you Right honorable to commaunde my name to be put into the Commission of the Peace for Kent I thought it my part aswel for sauing you my speciall good L. and fauourer blamelesse in the Choice as also for mine owne Information and discharge in the Seruice it selfe to looke diligently into that portion of our Lawe which concerneth the office of the Peace wherewith I had before that time very litle or none acquaintance And therefore in greedie appetite I beganne first with M. Fitzherbertes treatise of the Iusticers of Peace then went I to an other auncient booke of the same Argument but of an Author unknowen to me and thirdly I came to M. Marrowes reading All which when I had perused I seemed to my selfe to haue taken same such taste of the thing that I sought as did rather incense than satisfie my thirste and desire Wherefore seeking after a full meale and calling to minds that it was truely sayd Gratiùs ex ipso fonte bibuntur aquae I betooke me to the olde and newe bookes of the Common Lawes and to the volumes of the Actes and Statutes and mistrusting the slippâ—rnesse of mine owne msâ—â—eâ—ie I did vapon a seconde reading plot the master with my penne and made as it were a Module thereof in a small booke wherein I brought togeather stuffe of â—â—h kinde sorted in beapâ—◠〈◊〉 lâ—â—ed veadie to be wrought and framed Howbeit I did not then purpose te haue waded any deeper in this foorde as fearing that the water was higher than my head and thinking it sufficient for mine owne priâ—â—â—â— vse 〈◊〉 haue some seruiceable furniture ready at hand though otherwise neither much orderly digested nor painfully penned But when as through dayly occasion to vse that booke abroad I had emparted it with other men I was perswaded by sundrie godly wife and not vntegrned gentlemen my friendes that the more parte of the Iustices of the Peace at this day had neede of some helpe in writing for their better conduict in that office that it might increase the knowledge of many of them and consequntly doe a common good to haue the booke made common by Impression Then againe I tooke the booke into my bandes and ripping stitche by stitche my former doing I enlarged the work graâ—â—ing vnto it more breathe rooâ—â— of speache I planted Precedentes here and there in it I gaue it some light of Order Methode and added withall some delight of historie and Recorde Finally framing it altogether to commune conceipt and practise I prouided as I might both for profite and pleasure and fraught and laded it with the bact ware of counsell and aduice that I had of myne owne or could borrowe of my friendes determining so to send it from the Cape of good Hope and to aduenture it to the Seas and windes of the Iudgements and reaportes of other men The same now my singular good L. though neither aunswearable to your woorthinesse nor to myne owne wish I am bold to present vnto you being there vnto carried by these respectes First trusting that you which doe goe before them all in the perfect knowledge of our Lawe that have gone before you in that honourable place which you now holde will accoding to the Rule of Lawe in your owne handes rectifie the Commission of the Peace and some other crookednesse whereof this booke shall bring complaint before you Secondly assuring my selfe that if you shall not condemne or Cancell it but shall allow it and seale as it were the Writte De pace for it then both I shall finde the better comfort and defence and the books it selfe shall haue the more curâ—â—ous entertainment and freer passage with other men Lastly wishing that it may remaine a perpetuall Monument of the Sacrifice of mine owne thankefulnesse for those your rare and long continued fauours from time to time euen vndeseruedly bestowed and cast vpon me Vouchsafe therefore I pray you my verie good L. this slender gift as the hand and from the heart of him who if he had equall mixture of might to his minde would giue you that which should be proportionable to the setting foorth of your Honour and the acquitall of his owne dutie and deuation towardes you The Lord of Lordes blesse you for his Christes sake with the spirit of godly and couragious wisedom and make you a long and happie Counsailour of this Estate to the furtherence of his holy Gospell the weale of the English nation the true seruice of the Queenes Maiestie and your owne Honourable and long lasting memorie Amen From Lincolnes Inne this 27. day of Ianurrie 1581. Your H. most humble and readie to be commaunded in the Lord WILLIAM LAMBARD A Table of the Contents The Contents of the Chapiters in the first Booke  The Proheme Pag. 1 CAP. 1. What Iustices of the Peace bee and why called Iustices 3 2 Of the signification of the word Peace 4 3 Of such as had the Conseruation of the Peace at the commune lawe 11 4 Of the first ordayning of the Wardens and Iustices of the Peace by Statute law 20 5 By whose auctoritie and by what meanes Iustices of the Peace bee appointed and of what fortes they be pag. 26 6 What manner of men the Commissioners of the Peace ought to bee 32 7 How many Commissioners of the Peace there ought to bee in eache Countie 36 8 The forme of the Commission of the Peace 39 9 Certaine obseruations coÌ„cerning the matter forme of the Commission of the Peace 46 10 Of the two oathes ministred to the Iustices of the Peace 57 11 Of the power absolute and limited that the Iustices of the Peace haue 63 12 Of the Iurisdiction and Coertion belonging to the Iustices of Peace 65 13 That Iustices of the Peace bee Iudges of Record 69 14 How long time the auctoritie of the Commissioners of the Peace is to endure and by what meanes it may bee suspended or determined 74 15 That all the auctoritie of the Iustices of the Peace it exercised either out of the Sessions or at or by reason of the Sessions of the Peace 80 16 Of Suertie of the Peace and the Good abearing and of sundrie things incident vnto the same what one Iustice of Peace out of the Sessions may do therein 82 17 Of the Breache of the Peace without a Multitude against the person and howe it may be stayed or punished by one Iustice of Peace out of the
Sessions pag. 132 18 Of the Breache of the Peace without a Multitude or with a Multitude by forcible entrie into landes or tenementes and what one Iustice of Peace out of the Sessions may doe therein 145 19 Of other breaches of the Peace with a multitude as by Riot Rout or vnlawfull assembly c. And what one Iustice of Peace out of the Sessions may doe therein 172 20 What other things one Iustice of the Peace alone may doe out of the Sessions by vertue of Statutes mentioned in the Commission 184 21 What other things one Iustice of the Peace may doe out of the Sessions by the power of other Statutes not mentioned in the Commission 190 22 What things any two Iustices of the Peace may do out of the Sessions 227 23 What things some two Iustices of the Peace may doe out of the Sessions 246 24 What things three or moe Iustices of the Peace may do out of the Sessions 273 25 Of the Rewarde and punishment of Iustices of the Peace for things done not done or missdone out of the Sessions of the Peace 276  The Epilogue 281 The Contentes of the Chapiters in the second Booke  The Proheme 283 1 The description of the Sessions of the Peace 284 2 Who shall appoint the Sessions of the Peace and howe and where 289 3 What persons ought to appeare at the Sessions And therein of the Gâ—â—stos Roâ—â—lorâ— the Recordes of the Sessions and the Clerke of the Peace and howe the Iuroâ—â—s ought to be qualified and ordered 294 4 Of the Articles that are to be giuen in charge at the Sessions of the Peace 310 5 Of the Enditements and Presentmentes given by the Iuroâ—â—rs and of the matter and forme and receiuing and reiecting and reiecting of them 383 6 Of the Presentments and Informations of Officers and other men 403 7 Of the Impedimentes of proceding vpon Enditements before Iustices of Peace 409 8 Of the Processe vpon Enditements and Informations pag. 415 9 Of hearing vpon Confession 426 10 Of hearing by Diserection 428 11 Of hearing or Triall vpon Examination 431 12 Of Triall or hearing by Cerâ—ifieas 434 13 Of hearing or Triall by Trauerses 436 14 Of Triall vpon Araignment and therewithall of Felotâ—es 449 15 Of Iudgement 453 16 Of the Processe for the Fine of the Queene and of the assessing thereof and of Estreating for the Queene pag. 458 17 Of the Executorie Processe and execution for the parties that sue or for other persons 469 18 Of Certifying Recordes of the Sessions of the Peace to other Courts or Officers 472 19 Of the Generall of Quarter Sessions of the Peace 477 20 Of the Speciall Sessions of the Peace 500 21 Of the Rewardes and Punishments due to Iustices of the Peace in respect of their Sessions 503  The Epilogue 518 The ende of the Table EIRENARCHA Or of the Office of the Iustices of Peace THE PROHEME TO write of the Office and Duetie of Iustices of the Peace after M. Marrowe whose learned Reading in that behalf made the xviii yeare of King Henrie the seauenth is in manie handes to bée séene and after Iustice Fitzherbert who published an excellent treatise thereof which is yet euery where bée had may at the firste séeme no lesse vnaduisedly done than if a man shoulde bring Owles to Athens as the Prouerbe is or stickes into a growing Wood or Copise Howbeit if it be considered that since their time this Office is charged with manie Statutes which were not made when their wrytings were penned and if it bée weighed also that sundry things in them had theÌ„ the the force of law which now at this day they haue lost by alteration of like authoritie It cannot bée thought altogither in vayne to conferre their writings with the Booke cases Statutes that haue arisen of latter tymes and out of them all to collect some discourse that may serue for the present age wherein wée now liue and somewhat further the good endeuour of such as bée not trained up in the studie of the lawes In which doyng as I meane to robbe no man of his right but to yéeld to eche one the due prayse of his owne fearing least as the Poet sayd Moueat Cornicula risum Furtiuis nudata coloribus So if I my selfe shal be found here and there to dissent in opinion from other men I desire heartilie that my good meaning bée not euill interpreted that my allegations and reasons be weighed indifferently and that the respect of my person bring no preiudice to the thyng in question ⧠What Iustices of the Peace bee and why called Iustices CHAP. I. IVSTICES of the Peace A definition or description of Iustices of the Peace bée Iudge of Iudges of Recorde appointed by the Quéene to bée Iustices within certaine limites for the Conseruation of the Peace and for the execution of sundrie thinges comprehended in their Commision and in diuers lawes committed vnto them These and many other Iudiciall officers in our lawe be called Iustices per metonymiam subieti bicause they doe or should doe lawe and Iustices For in many olde Histories Why they be called Iustices the Chiefe Iustices of England is termed Capitalis Iustitia and Prima post Regem in Anglia Iustitia and the Originall Writtes that are in M. Glanuils Booke which was written vnder the raigne of king Henry the second haue this forme quod sit coram me vel Iustitijs meis And this no doubt was done of speciall purpose and to the ende that the mention of their name should put them in minde of their office and should continually as it were sollicite them to administer Iustice for whole sake they were appoynted But in the dayes of King Henry the third M. Bracton who reduced the body of our law into Latine and therein imitated the Methode of the Ciuile Lawyers chaunged the worde Iustitijs into Iustitiarijs how Latine like let them iudge that can skil and setteth downe the Writtes accordingly coram Iustitiarijs nostris Since which tyme not onely all our Writtes that commaund appearance before the Iustices at Westminster do vse the word Iustitiariss but all Commissions of Sewers of the Peace of Oyer Terminer and such like do obserue the same forme also And of this it commeth that M. Fitzherbert in his treatise of the Iustices of Peace calleth them Iusticers contractly for Iusticiars and not Iustices as we commonly and not altogither vnproperly do name them Of the signification of the worde Peace CHAP. II. Peace hath many significations OF the Latine worde Pax the Normans framed their Paix and we out of the that our peace which name hath sundry significations in the holy Scripture For there is an inward and an outward Peace And this inward Peace is either good or euill First then there is pax apud Deum that is to say our reconciliation made with God the father by the death of Christ his sonne who is pax
H. 8. c. 6. Greate cause hathe the Iustice of Peace therefore to take â—iligente héede that he abuse not this credite either to the oppressing of any subiect by making an untrue Recorde or to the defrauding of the Prince by suppressing anye true Record Much more reason is there to holde that two Iustices of peace or more sirting in the execution of their authoritie in open Sessions must néeds be taken to be Iudges of Recorde Howe long time the auctoritie of the Commissioners of the Peace is to indure and by what meanes it may be suspended or determined CHAP. XIIII WE haue alreadie touched that the power of the Commissioners of the Peace is not perpetuall but nowe the place serueth to handel it at full The Commissioners of the Peace are to continue during only the pleasure of the Prince by whose pleasure they were at the first appointed and therefore by the determination of that pleasure their auctoritie ceasseth also Besids the which there are other means to determine their Actoritie as namely the Accession of an other office the Presence of a higher power and in some speciall case the wante of Adiournement of their Commission The pleasure of the Prince may bée determined either by expresse word or by implication or by death By expresse word The Queenes Maiestie therefore maye discharge the Commissioners of the Peace by hir expresse Writte vnder the gret Seale L. 5. E. 4.32 If she sende a Super sedeas to al the Commissioners of the Peace that will suspende all their auctoritie But yet so as it may be reuiued by a Procedendo and therefore it doth not vtterlie determine their auctoritie as may be gathered by 12. lib. Ass Pl. 21. Againe when the Queenes Maiestie maketh other Commissioners of the same kind within the same Limites it is implied thereby that the former Commissioners shall have no longer power although there be neuer a worde spoken of the discharge of the for the repugnaÌ„cie By implycation of a new Commission 3. Mar. Regi Brooke Tit. Commssion 24. But yet if there be Iustice of the Peace by Commission in a whole Countie and afterward the Queene maketh another man Iustice of the Peace in one Towne of the saide Countie onelie Chocke was of opinion General and proper Iustices 10. E. 4.7 that the power of the first Commissioners continued still in that Towne bycause that is not altogither contrariant And Iudge Fineux helde so also 20. H. 7.8 that if the Queene make a proper Iustice of the Peace within a speciall Libertie yet maye the generall Iustices of the Peace of the Shire medle there also vnlesse there be wordes of Prohibition in the Patent as ê™ nulli alij Iusticiarij nostri se intromittaÌ„t c. If the antient CoÌ„mission of the Peace were to foure persoÌ„s afterward the Queene should make one man a full Iustice of the peace through that same limit during his life then shoulde the handes of the fours Commissioners be closed saith Marrow And a newe Commission pro hac vice taÌ„tum will determine the olde So also a new CoÌ„missioÌ„ to heare and determine Felonies determineth the olde Commission of the Peace concerning Felonies but not concerning the Peace And a new Commission of the Peace ad inquirendum tantum is a determination of the old Commission ad audiendum terminandum by Mar. But it is plain by the preamble of the statute 2. 3. Phil. Mar. ca. 18 that the law was take that if a CoÌ„mission of the Peace was first graÌ„ted to certain wtin a towne after another CoÌ„mission had bin granted to other within the whole shire that this had bene a Supersedeas to the CoÌ„missioners within the said towne Nowbeit this determination of the olde Commission that we speake of groweth not immediately by the making of a newe CoÌ„mission but either after the reading or proclayming of the new CoÌ„mission at the Session of the Peace or at the full Countie or else by holding of some Session by vertue of the new Commission in al which cases the old Commissioners must take notice of the new Commission or els after the giuing of notice of the new Commission vnto the old Commissioners for otherwise al the meane actes of the olde Commissioners be good in Law Mar. 21. H. 6. 29. 34 lib. Assi Pl. 28. And for as much as some Cities Corporate townes found theÌ„ selues gréeued with the Law staÌ„ding as hath bin remebred it was specially ordained by the said Statute 2. 3. Phi. Mar. ca. 18. that a Commission of the Peace and Gaole deliuerie made to a Citie or corporate towne not being a Countie by it selfe should not be determined by the making of such an other Commission after to any of the Shire Lath Rape or Wapentake in the which that Citie or towne standeth Finally it is to be noted that in al cases wher an auntient Commission of the peace is determined by a new yet no Processe or Suite hanging before the old Commissioners shall be discontinued therby by the Statute 11. H. 6. ca. 6 I. E. 6. ca. 7. By the death or demise of the Prince also dieth the power of all the Commissioners of the Peace made by him for he maketh the Iusticiarios suos so that he being once deade or hauing giuen ouer his Crowne they are no more his Iustices and the Iustices of the next Prince they shal not be vnlesse he wil make them his 4. E. 4.44 1. E. 5.1 By death If sseacute emeth that some toke the Lawe to bée that if a Iustice of the Peace were created a Duke Marquesse Earle Vicount or Baron or elected an Archbishop or Bishop or made a Knight or Iustice of any of the two Benches or Serieant at the lawe that then his Office of the Peace was determined therby bycause it could not be thought that his name being changed he should remaine the same person Accession of a new office or calling And so if he were made Shirife that his Iusticeship ceased also bicause as Marrow faith he could not be both a Iustice an Officer to direct serue his owne Precepts and so likewise was it thought of him if he were made a Coroner but not so if he were made an Vndershirife And therefore for the declaration of the Law in the most of these cases it was enaded 1. E. 6. ca. 7. that if a Iustice of the Peace were made Duke Marquesse Erle Vicount Baron Archbishop Bishop Iustice of the one Benche or other Knight Serieant at the Law or Shirife the yet he shuld be Iustice of the Peace still But that acte was afterwarde upon good reason controlled in parte and a newe law made I. Mar. Parl. I. ca. 8. by whiche it was ordered that no man shoulde exercise the office of a Iustice of the Peace during only the time that he is Shirife of the same Countie wherein he is also
Iustice of the peace Furthermore if the Iustices in Eire being of a higher power than Iustices of the Peace doe after proclamation ther of firste made come into any Countie and sit there by vertue of their auctorities then ceaseth the auctoritie of the Commissioners of the Peace by Mar. By the presence of a higher power And he thinketh so likewise if the kings bench bpoÌ„ proclamation therof made shoulde remoue into any Countie But aske of this for if it should be so then it may be some question also what is wrought by the comming of the Iustices of the Nisâ—prius into the Countrie who doe ordinarily bring Commission of Oyer Determiner and of Gaole deliuerie with them Lastly it Iustices of the Peace that haue a Commission has vice tantum do sit by vertue of their Commission do not Adiourne the same it séemeth that their Commission is determined therby Brokke Tit. Commission 11. By want of adjournement That al the autctoritie of the Iustices of the Peace is exercised eiy ther out of the Sessons or at or by reason of the Sessions of the Peace c. CAP. XV. HItherto I haue dilated that which lyeth in the first part of the Definition of the Iustices of peace I haue withal giuen you a Theoricque or Insight it s it were of their whole Office in the wing what it is when it began how it is endowed by what meanes it is maintained and after what fort it may be determined A summe of that which in saide But now for as much as all the power of the Iustices of the Peace is directed to that end whiche is disclosed in the latter parte of the same Definition namelye For the conseruation of the Peace for the execution of their Commission and of the Statutes committed to their charge it is méete that I enter into the Practicque of their Ofsice dutie shew you from pointe to point how the fame is to be done administred And for the more lightsome procéeding herein I will set swrth the power of the Iustices of the Peace by a Distribution thoughe not Essential yet such as may suffice to conueigh my whole meaning Whether therefore the Iustices of the Peace doe by vertue of the Commission or Statutes enquire or Heare and Determine by the may of Iâ—â—sdietion or else doc keep or cause to be kepte the Peace or doc punishe and execute by waye of Coertion And whether the same also be done by their Regular power or Absolute auctoritie It is always pradised and done either out of the Sessions of the Peace or else at or by reason of the Sessions of the Peace A partition of that which foloweth in both these bookes And that which is done out of the Sessions is either such as one Iustice alone maye doc or else it requireth the helpe I presence of other Iustices with him And therefore first of that whiche one Iustice alone maye doe out of the Sessions The summe of that whiche is hereafter conteinedin this fâ—â—st booke Of Suertie of the Peace and the Good Abearing and ofsundrie things incident vnto the lame And what one Iustice of Peace out of the Ses sions may do therin CHAP. XVI FDr as much as the Conseruation of the Peace standeth partlye in prouiding that it be not broken and partlye in punishing such as haue alreadie biolated and broke it and for that any one Iustice of the Peace is susticiently armed with audoritie out of the Sessopms to preuent the breache of the Peare both by taking Suertie for the kéeping of it and for the good behauiour also of offenders I thinke good first to shem what Suertie of the Peace is then to open howe it maye bée commaunded after that to declare how the same commaundement shall be executed I brought to effect fourthly to disclose what shal become of the Suerty when it is taken and lastly to describe the Suerty of the good behauiour or good Abearing I to conferre the handling therof with that of the Peace The partes of this Chapter The auntient Normans had a manner of Suertie of the Peare whiche they named Treues the same that we cal Truce I which they bsed to giue after this order He of whom it was demanded did in ope Court take hun by the hande that demaunded it I did withall solemnely sweare that neither he nor anye of his shoulde doe him harme But or Bouernours knowing that euill men be more restrayned by los se of goods than by conscience of an oath haue dsed to take sure bonds and that to the Prince for the securitie of such as be in feare And therefore I wil at this day cal Suertie of y peace An acknowledging of a bond tothe Prince taken by a Iudge of Recorde for the keeping of the Peace What suerty of the Peace is And it is called Suertie of is the word Securitas bicause the partie that was in seare is thereby the more quiet and secure This Suertie may a Iustice of the Peace commaunde either as a Minister when hée is willed to do it by a higher auctoritie or as a Iudge when he doth it of his owne power deriued from his Commission He doth it as a minister when the writte of Supplicauit which in old time was called breue de minis as appeareth by the Register directed out of the Chauncerie is deliuered into his hands for then he only is to direct his Precept to come pel the partie vpon that writ to find Suertie for the Peace Suertie of Peace taken vpon a Sutplicauit by a Iustice of the Peace Minister 21. H. 7.20 Fineux The forme of which Precept or warrant may be thus in English GEORGE MVLTON one of the Iustices of the Peace of out Soueraigne Lady the Queenes Maiestie within the Countie of Kent To the Shirife of the saide Shire the Conestables of the hundred of Wroteham the Borsholder of the Towne of Ightham and to al and singular the Queenes Maiesties Bailies and other ministers as wel within liberties as without in the said CouÌ„tie and to euery of them greeting Know ye that I haue receyued the commaundement of our sayde Soueraigne Ladye in these wordes reciting the whole Writte of Supplicauit which is not always of one forme bycause it is sometimes directed to all the Iustices of the Peace sometimes to them and the Shirife and sometimes to one Iustice alone or reciting onely the effecte of the Supplicautt thus Knowe yee that I haue receyued the commaundemente of oure sayde Soueraigne Ladie to compel A. B. of Ightham in the sayde Countie yeoman to finde sufficiente suerty for hir Maiesties Peace by hym to be kepte towards C. D. of the ssayde Towne of Ightham Taylor And therfore on the behalfe of our sayde soueraigne Ladye I commaunde and charge you ioyntly seuerally that immediately vpon the receipte here of you cause the saide A. B. to come before mee at Ightham
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
Besids this you may see admitted by the opinid of the Court 13. H. 7.10 that if a man do in the night season hauÌ„t a house that is suspeded for Bawdene or do vse suspitious coÌ„pany the may the CoÌ„stable arrest his to find suerties of his good abearing For Bawderie is not méerely a spirituall offence but mixed and but sounding little againste the Peace of the land 27. H. 8.14 Fitz. 1. H. 7.6 And therfore it shal not be amisse at this day in my sleder opinioÌ„ to grant Suertie of the good Abearing against him the is suspected to haue begotte a Bastard child to the end the he may be forth comming when it shall bée borne for other wise there will be no Putatiue father found when that the two Iustices of the Peace shall after the birth by vertue of the statute 18. Eliza. ca. 3. come to take order for his punishmet And for some aduise by the way in coÌ„ceiuing rightly this suspition marke what M. Bracton writeth Oritur suspitio ex fama ex fama suspitione oritur grauis praesuÌ„ptio Fama verò suspitione induces oriri debet apud bonos graues idque noÌ„ semel sed saepius Oritur etiam suspitio ex facto praecedente cui standum est donec probetur coÌ„trarium nam qui semel est malus semper preasumitu ess malus in eodem genere mali But the further that this bond of the good Abearing doth extende the more regarde there ought to be in the awarding of it and therfore although the Iustices of the Peace haue power to grant it eyther by their own Discretion or uppon the complaint of others euen as they may that of the Peace pet I wish rather that they doe not commaunde it but onely upon sufficient cause séene to themselues or upon the sute complaint of diuers and the same very honest and credible persons And here forasmuch as one Iustice of the Peace alone and out of the Sessions may both by the first Clause of the CommissioÌ„ and also by the opinion of M. Fitz. 9. E 4. 3. graunt thys suertie of the good Abearing although the common manner bée that two such Iustices do ioin in that doing whereof also M. Fitz hath very good liking I wil not sticke to set forth here the coÌ„mon formes as wel of the Precept as of the Recognusance for the same wherein if I shalvse the names of two Iustices you muste take that also to be done according to the common fashion not of any necessitie in law For as I woulde more gladly vse the assistance of a fellow Iustice in this behalfe if I may conueniently have it so if that may not be had I woulde not greatly feare when good cause shal require to vndertake the thing my selfe alone The Precept may have this course GEORGE MVLTON and William Laembarde two of the Iustices of the Peace of our Souereigne Ladie the Queenes Maiestie in the Countie of Kent To the Shirife of the said Countie to the Constables of the Hundred of Wroteham and to the Borsholder of the Towne of shipborne in the said Countie and to every of them greeting For as much as A. B. of Shipborne aforesaid is not of good fame not of honest conuersatioÌ„ but an euill doer Riotour Barrettour perturber of the Peace of our said Souereigne Ladie as we are giuen to understande by the reaporte of sundrie credible persons The Precept of the good abearing Any one of these is sufficient cause Therefore on the behalfe of our said Souereigne Ladie we commaund you and every of you that you cause the sayd A. B. to come before vs or some others of our fellowe Iustices to finde sufficient suertie and mainprise for his good abearing towards our said Souereigne Ladie and all her liege people And if he shall refuse so to doe c. as in the Precept of the Peace with a verie litle chaunge The vsuall Recognusance hath this forme MEmorandum quòd 5. die mensis Iuly Anno regni Elizab. c. 23. venit coram nobis Georgio Multon Wilhelmo Lambard caetera vt antea in Recognitione pacis vsque ad hoc Quod idem R. G. personaliter comparebit coram Iusticiarys dictae Dominae Reginae ac Pacem c. ad proximam generalem Sessionem c. The Recognusance of the good Abearing Et quòd ipse interim se bene geret erga Dominam Reginam cunctum pepulum suum praecipué erge I. B. de C. c. Et quod ipse non inferet nec inferri procurabit per se nec per alios damnum aliquod seu grauamen praefato I. B. seu alicuide populo ipsius Dominae Reginae de corporibus suis per insidias insultus seu aliquo alio modo quod in lasionem seu perturbarionem pacis dictae Dominae Reginae cedere valeat quouismodo videlicet vterque praedictorum H. C. I. S. sub poena 100 th Et praedictus R. G. sub poena 200. th quas quidem seperales summas 100. th vterque praedictorum H. C. I. S. vt praedicitur perse ac praedictus R. G. dictas 200. th recognouerunt se debere dictae Dominae Reginae de teris tenementis bonis catallis suis cuiuslibet corum ad opus ipsius dictae Dominae Reginae fieri leuari St contingat preaefatum R. G. in alliquo praemissorum deficere inde legitimo modo conuinci c. Or by a simpel Recognusance with this Condicion Endorced or vnder written COnditio Recognitionis praedictae talis est Quod si praedictus R. G. imposterum se bene geret pacem Dominae Reginae conseruet erga dictam Dominam Reginam et cunctum populum suum et nullum damnum corporale c. Extunc Recognitio praedicta pronullo teneatur alioquin in suo robore permaneat Thaue knowen it doubted whether the Suertie of the good Abearing commaunded vpon complaint may be released by any speciall person or no bicause it séemeth more popular than the Suertie of the Peace Release of the good Abeariâ—â— But if it may as it seemeth all one to me then may the forme of such a Release be easily made by that which is before concerning the Peace vsing the words Securitatem de se bene gerendo in steade of the wordes Securitatem pacis And the like imitation may bée vsed also for a Supersede as of the good Abearing if at the least that be grauntable by Iustices of the Peace I might here without breach of Order prosecute the preseruation of the Peace by the preueÌ„ting of such as be riotouslly assembled by handing the Statute of Northampton which séemeth by plaine speache to be prouided for preuention of the breache of the Peace also But bicause the first shall haue his proper place and the latter is commonly put in vre at this day after the Peace broken by forcible Entrie I will spare
Iudge Fineux saith in that case of Sir Thomas Greene the Statute which I take to bée that of â—4 of E. 3. ca. 1. was giucn as a hastie remedie for to preuent a mischiefe being imminent and before the eye therfore the law shall largelie construe the auctoritie of a Iustice of Peace in that behalfe So that he shall neither néede to make anie Precept in wrting nor to expecte the comming of his Companions nor to bée present in his own person but may vse al reasonable meanes for preuention and staye of the euil And yet the ordinary power of punishing Routes Riots resteth not in his hand but rather belongeth to two Iustices of the Peace as it shal hereafter appeare In the meane time I will adioine somewhat out of the Statutes of our owne age the whiche séeing further into the perilles that ensue of these vnlawful conuentions haue also prouided further as wel in pollicie to preuente them as in seueritie to punish them The statutes 1. Mar. Parl. 1. ca. 12 1. El. ca. 17. do make thrée degrées of Riottous Seditious Assemblies in certaine special cases the first consisting of the commune number of thrée petsons and being vnder the nuÌ„ber of twelue the seconde of twelue persons or more and the thirde of fortie persons vpward Al which are to bée punished diuersly according to the number intent acte obstinacie of the parties assembled wherein there is some imitation of an auntient law that King Ina made against théeues whose degrées in offence the seuered punished by their nuÌ„ber also saying thus þeofar we hataþ oððe seofan menn fram seofan hloþ oþ fif þrittig and syþþan here that is Théeues we call them vntill the number of seauen mem from seuen a Troupe vntil 35 and an Armie aboue that number Rebellious and vnlaweful assemblies But I will procéede One Iustice of the Peace therfore maye by vertue of these Statutes make proclamation in the Queenes name that the persons assebled in offence of these lawes shal seuer themselues and departe to their dwellings peaceably and withal may at his difcreation assemble hir Maiesties subiectes to take the and may also take them indéede if they disobey shal bée vnpunished for the hurting mayming or killing of any of them if they make resistance Proclamation He also is to take the declaratioÌ„ of any person that being moued to any such assembly wil within 24. houres after reueale the same vnto him Here I must stay and for a time goe no further with these asseblies bicause the power of one Iustice of the Peace fayleth mee ertendeth no further in them the rest shal bée disclosed when order shall lead vs to intreate of the aurtoritie of two Iustices VVhat other things one Iustice of the Peace alone may do out of the Sessions by vertue of Statutes mentioned in the Commission CAP. XX. BEFDKE that I shall descende to shewe suche further partes of power as bée giuen to one Iustice of the Peace by latter Statutes it shall not bée amisse to take in my waye that remnaunte of hys aucthoritye whyche lyeth in the firste Assignauimus of the Commission and hath not bene yet fully applyed to the practise The whole consisteth of such members as I haue alredy shewed namely of the Statute made at Winchester 13. E. 1. of the Statute made at Northampton 2. E. 3. ca. 3. the Statute made at Westminster 5. E. 3. ca. 14. the Statute mentioned to be made at Cambridge but mistaken for Canterburie 12. R. 2. the Statutes 1. H. 4. ca. 7 2. H. 4. ca. 21 of Liueries and the Statute 3. H. 5. ca. 6. 7. of counterfeting and other falsifying of money Of this laste Statute as also of that at Northampton I haue heretofore saide what I thought Concerning Winchester Westminster I say shortly that by the forme of the Commission as it is one Iustice of the Peace may put the articles of them in execution First by commaunding fresh sute hue and crie and search to be made by the Shirffes and Baylifes others after thefts and robberies watches to be kept for arresting of suspected persons and night-walkers and highwayes to be enlarged Then by séeing that two Constables be in each Hundred and Franchise by forbidding Fairs and Markets to be holde in Church yards by compelling such as be betwéene the age of fiftéene yeares and thréescore to be sworne to the Peace for that also is in the Articles vppon the Statute of Winton lastly by charging the Constables to arrest such as shal be suspected to be Drawlatches Wastours or Robertsmen that is to say either myching or mightie théeues for the meaning muste remaine howsoeuer the word be gone out of vse The Statute of Canterburie made chiefly for Artisicers and Labourers and partly for Victualers is repealed for the first and runneth for the last in a generalitie And as for that law those of H. the 4. concerning Liueries I sée not what one Iustice of the Peace may well do towardes the execution of them further than by commaunding the to be obserued For the forfeiture groweth either by Attainder vppon enquirie or by Record of the Iustices in their presence as the Statutes themselues do appoint And these bothe doe require two Iustices as the very wordes thereof and of the second Assignammus in their Commission being in the plurall number doe plainely purporte For I do not thinke that any other maner of execution of these lawes by one Iustice of the Peace ought to bée gathered by any general words of the first Assignauimus I know that M. Fitz. in his Nat. Br. Fol. 82. saith that albeit a Iustice of the Peace hath none expresse auctoritie within his Commission to take a Recognusaunce of the Peace yet of Congruence it followeth that he may take it because he hathe auctoritie in plaine wordes to cause the Peace to bee kept and to compell men to finde Suertie for the same And it is a Rule of Lawe Concesso vno aliquo etiam id concedi videtur sine quo prius concessum habers nequit But howe farre these things may bée drawen I will not determine remembring that also is an other Kule In generali concessione non ventunt ca quoe quis non esset verisimiliter in specie concessurus But as I haue saide heretofore A newe reforming of the present forme of the Commission woulde easily remoue from vs all these doubts This I do not like at al that one Iustice of the Peace shoulde take vppon him to binde an offendor agaynste anie Penall Lawe being wythin the power of Iustices of the Peace but yet neyther comprehended in their Commission nor committed to the charge of anye one of them to appeare at the Sessions to aunsmeare to his faulte For although I haue séene sundrye olde Precedents of Attachments to be made from one Iustice of the Peace agaynste Labourers to be before the Iustices at
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
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
and maner of them Let vs therefore examine the power of the Iustices of Peace in this behalfe It séemety that Iustices of the Peace might after the statute of 34. Ed. 3. cap. 1. that made them complete Iudges haue letten to baile such persons as were indited of Felonie before them in their Sessions as the Iustices of the Kings Bench vse to doe but not such as were arrested for suspition of Felonie and not endited thereof before them because before the enditement they were no Iudges ouer them And for helpe herein it was ordayned 1. R. cap. 3. that euery Iustice of Peace might lette to Baile any suspectes of Felonie But that Law begatte some inconueniences and therefors it was soone after repealed by 3. H. 7. cap. 3. whiche lefte power to twoo Iustices of the Peace the one beeing of the Qorum to lette anye prisoners mainpernable by the Lawe to baile to the nexte generall Sessions or the nexte Gaole deliuerie and willeth that they shall then certifie suche baile taken vpon paine to forféite for euerye defaulte therevppon recorded tenne poundes to the Kyng 3. H. 7. cap. 3. And here againe there sprang vppe an other inconnenience for then Iustices of Peace woulde not sticke to borrowe one an others name as manye yet still doe and by that meanes defraude the good meanyng of the Statute Wherevppon it was lastly further prouided by 1. 2. Phil. Mar as followeth That no Iustice nor Iustices of Peace Bailement of prisoners and examination before they bee bailed shoulde lette to baile anye person contrarie to the sayde Statute of West 1. cap. 15. And that no person beeing arrested for Manslaughter or Felonie or for suspition of eyther of them beeing baileable by the Lawe shoulde bee bailed by anye Iustice of Peace if it bee not in open Sessions or by twoo Iustices of the Peace at the leaste the one of them beeing of the Quorum and the same Iustices to bee present togither at the tyme of the saide Bailement and that they shall certifie in writing subscribed or signed wyth their owne handes the sayde bailement or Mainprise at the nexte generall Gaole deliuerie to bee holden wythin that Shire where that person shall be arrested or suspected And that the saide Iustices or one of them beeing of the Quorum when suche prisoner is brought bcefore them for Manslaughter or Felonie shall bcefore anye bailement take the examination of that prisoner and the information of them that bring hym of the facte and circumstaunces thereof and the same or so muche thereof as shall bee materiall to prooue the Felonie shall putte in writing beefore they make that Bailement whiche examination and bailement the saide Iustices shall certifie at the nexte Gaole deliuerie within the limittes of their Commission And the saide Iustices shall haue auctoritie by this Acte to binde all such by Recognusaunce or Obligation as doe declare any thing materiall to proue the saide Murder or Manslaughter offences or Felonies or to be Accessorie or Accessories to the same as is aforesaide to appeare at the saide nexte Gaole deliuerie where the triall thereof shall bee then and there to giue euidence against the partie at the time of his triall and shall certifie all and euerie suche bond in like maner as is aboucsaide of the Bailement and examination 1. 2. Phil. Mar. cap. 13. This Statute of Bailement I haue recited the moze at large because it both comprehendeth some such other things as must concurre with the Bailement of the prisoner and giueth me occasion to sette downe the Statute of W. 1. and to shewe what persons be baileable by the Law for to either of these it referreth it selfe as you haue seeacutene and is also restrained by them Nowe by the Statute of W. 1. cap. 15. Prisoners that bee before outlawed or haue abiured prouours felons taken wyth the maner those that haue broken the Kings prison notorious and proclaymed theeues those that are appealed of prouours so long as the prouours bee liuing if they be not of good same those which are taken for felonious burnings or for falsifying the Kings mony or his Seale or which are taken vpon excommunication or for open euill or for treason touching the King himselfe or for the death of a man or by the commandement of the King himselfe or of hys priuie Counsell or by the absolute and not ordinarie commaundement of the Kings Iustices or for the Forest be not repleuisable by the common Writ nor without Writ by Shirifes nor other gardines of prisons But hee that is taken for light suspition or is indited of petite Larcinie not being giltie before of other Larcinie those that be charged with the receit of theeues or felons or of commaunding or force or aide or charged wyth Trespasse that toucheth not losse of life nor member and he that is appealed by a Prouour beeing no common theefe nor defamed after the death of the prouour is baileable by that Statute Againe the Statute 23. H. 6. cap. 10. prohibiteth those that bee in prison by condēnation execution Capias vtlagatum excommunication for Suertie of the Peace or by speciall commaundement of any Iustice to be bailed by Shirife keeper of prison or other ther Officer or Minister But willeth and cōmaundeth that all those that be Arrested by force of any Writ Bill or Warrant in any action Personall or because of any enditement of Trespasse to be let out of prison vpon reasonable suerties of sufficient persons hauing sufficiēt within the Counties where they bee to bee lette to Baile or Mainprise to keepe their dayes in suche places as the saide Writtes Billes or Warrantes shall require Both these last Statutes as appeareth were at the firste ment to giue a rule vnto Shirifes and other meaner Officers in what cases to let their prysoners to Baile and in what not But as the Statute of W. 1. is by the expresse letter of 1. 2. of ph Mar. sette foorth as a line whereby the Iustices of Peace are to guide themselues so it séemeth to mée that they ought to haue an eie vnto the other Statute also for asmuch as certaine other persons bée therein also meneioned not to bée Baileable by lame and so within the reach of these berie wordes that lir in the Statute 1. 2. Phil. Mar. cap. 13. This Statute of 1. 2. Ph. Mar. séemeth as hath bene faide befoze this to distinguish betwéene Murder Manslaughter making this offence Baileable but not the other So as it shoulde restraine as it were the generall woordes death of a man in the Statute of W. 1. to cause them to bée vnderstood of Murder onely Manslaughter baileable and not Murder And besides it maketh mencion of the Bailement of Acceslones whereof the Statute 2 3. Ph. Mar. cap. 18. hath neuer a woorde I will be therefore a little bolde to remember here some fewe cases of these matters to giue as my
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
alliance counsell or sée to the Lord or owner of a woode appointed by the more parte of the Iustices of Peace at their Sessions vpon complaint of the Lorde made unto them may divide set out the fourth parte of it if the Lord and Commoners therof being first called before them can not agree vpon it 35. H. 8. ca. 17 13. Eliz. ca. 25. Divide the fourth parts of a wood Two Iustices of the Peace whereof the one to be of the Quorum appointed by the Custos in the CouÌ„Rotulorum or by the Eldest of the Quorum in his absence are to ouversée controle the Shirifes bookes and amercements the estreits of the said amercements are to be made by Indenture betwene them and the Shirife or undershirife to be sealed with their seales And they may vpon suggestion make proces as in an action of Trespasse against the offendors against the Statute to aunswere before them 11. H. 7. ca. 15. Amercernâ—â—â— in tie couÌ„tie Court And here also is place for those private Actes wherein any power is given to two Iustices of the Peace as 5. E. 6. ca. 24. For the making of Couerlets Dernikes in Norwich Norwich 35. H. 8. ca. II. Forwages of the knights of Parle met II. H. 7. ca. 9. For recognusances to be taken of Lessces in Northumberland Wales Northumberland Vniuersities 2. 8. c. 3. Phil. Mar. ca. 15 13. Elizab. Cap. 21. For prohibition of purueiances within fiue miles of either of the vniuersities 14. H. 8. ca. 6. 26. H. ca. 7. For laying out new high waies in Kent and Sussex Kent Sussex Cardiffe 23. Eliz. ca. II. For the repairing of Cardiffe bridge VVhat things three or moe Iustices of the Peace may do out of the Sessions CAP. XXIIII THe Auctoritie as well of any two Iustices of the Peace generally as of some certayne two susfices specially being thus at some length unfolded it remaineth that for an ende we speake somewhat of thréee and the greater number Thrée Iustices of the Peace one of them being of the Quorum may discharge out of prison any person committed thither for his offence in not declaring to a Iustice within 24. houres that he was moved to ioyne in any unlawful Assembly contrary to the statnte 1. Mar. 1. Parl. ca. 12 1. Eliz. ca. 17. Vnlawfull Assemblie It is requisite that the Certisicat that is to be made to the heade Officer of a Citie or Towne corporate where a childe is to be put Apprentice to a Marchaunt Hercer Draper Botosmith Ironmonger Imbrode derer or Clothier that the father or mother of such childe may dispende fortie shillings fréehold by yeare be bunder the handes and seals of thrée Iustices of the Peace where the lands lye 5. Eliz. ca. 4. Certifie for an Apretile Thrée Iustices of the Peace the one of the being of the Quorum may with the Surplusage of the collections and forfaitures by their discretions settle the Koges borne or abyding for the most parte of thrée yeares in that Shire to worke there to be holden to worke by ouerfeers 14. Eliz. ca. 5. Roges The Bishop his Chauncelour and thrée such Iustices of the Peace haue power to eramine how money or other reliefe appointed by King Henrie the eight or any other to the bse of the Poore or of amending of Highwayes or Bridges is bestowed and to cal to account the deteiners thereof c. 14. Elizab. cap. 5. Money giue to the poore high wayes or bridges If séemeth that thrée such Iustices of the Peace may out of the Sessions take information and accusation by the oathes of two honest persons against such as shal depraue the Sacrament of the body and bloud of our Lord and Sauiour lesus christ against the Statute and cramine them what other witnesses were then by and to bynd them al by Kecognusance to give in euidenee at the day of triall 1. E. 6. ca. 1. but enquire of this matter Depraue the Sacrame of the Lords supper Foure Iustices of the Peace where of one to be of the Quorum may where a decayed Bridge is where it can not be proued who or what lands be chargeable to the repairing therof fare the inhabitants make collectors and appoint ouerséers for the amendement of the same c. 22. H. 8. ca. 5. Foure â—â—â—ccs Bridges Sire Iustices of the Peace may in sundrie shires take order for common Gaoles wherof the Shirite shal have the custody and to the which murderers felons c. shal be sent and may be performe diuers incidentes thereto by the Statuts 23. H. 8. ca. 2 13 Eliz. ca. 25. Sixe Iufuo Gaole Sire Iustices of the Peace two of the being of the Quorum may for a whole yeare after the expiration of any Commission of Sewers cxecute the lawes of the Comissioners of Sewers vnlesse that a new Commission of Sewers be published within the yere 13. El. c. 9 Sewers To this Title also do these particuler Statutes belong 13. El. ca. 23 23. El. ca. 12. For pauing the streete by Alegate 34. H. 8. ca. For establishing Iustices of the Peace in Wales c. 27. H. 8. c. 5 For Iustices of the Peace in Cheshire c. 23. H. 8. ca. 2 5. Eliz. ca. 24 13. Eliz. ca. 25. For the appointing building of Gaoles in sundry shires 18. El. ca. 20. For amending of Bridges within fiue milis of Oxford 18. Eliz. ca. 10. For the reparation of the ferry called the Kings ferrie in the Isle of Shepey in Kent Of the reward punishment of Iustices of the Peace for things done not done or misledone out of the Sessions of the Peace CAP. XXV OF Reward and Punishmet as said SoioÌ„ all Common weales doe consist for as the care of equitie and Iustice wareth cold vnlesse there be rewarde readie for vertue So the negligence of euill men must néedes be corrected by seueritic and chastisement of paines And therefore albeit the meaning of our Parliamentes hath alwayes béene that choise should be made of such persons for this Office of the Peace as néeded no rewarde for their trauaile in that behalfe yet to the ends that they shoulde with the more alacritie and chéerefulnesse procéede in their affaires they do nowe and then cast them a trifle rather to let them knowe that they doe beholde their well doing than that they ffande in néede of any recompence Reward Hereupon euerie Iustice of Peace stting in ececution of the Statute of Labourers Seruauntes shall haue fiue shillings the day for thrée daies togither out of the forfeitures that grow by the same Statute 5. Eliz ca. 4. Seruauntes And if any persons commaunded by two Iustices of Peace to appeare to be made an ouerséer to sée Statute of Cloth making kept doe without reasonable excuse refuse to come and to take vpon
seuerall Volume by it selfe or so marked in M. Rastals Abridgement that every man that will may easisly finde much good by it THE SECONDE BOOKE INTREAting of the Sessions of the Peace and of things incident therevnto THE PROHEME IT may peraduenture séeme that having alreadye stoode long in matters that were of the lesse importance and such as might be dispatched at home sine strepitu I will be now both long and tedious when I beginne with those of greater weight and which dos require the solemne Benche But as at the first I thought it téte to help most where most néde was I meane wherer one or two Iustices pressted with the necessitie of tyme and destitute of the assistaunce of their learned companions were to administer office alone So nowe knowing that at the Sessions of the Peace there be commonly many Iustices in number and amongest them sundrie so well instructed in lawe as in being too busic with that which belongeth thereto I shall as the saying is but sette a candle in the Sunne shine and rather bewray want in my selfe than bring helpe or light vnto them I purpose to runne ouer this residue more swiftly except it be in a fewe places where either the profite or necessitie or both of the matters them selues shall begge licence and pardon for me The description of the Sessions of the Peace CAP. I. AS a man that hath reseaed hurt in his bodie by a stroke wher of he bléedeth freshely will be contented for the present to admitte the helpe of any meane Leche or Surgeon comming next to hande for the staunâ—hing of his blood binding up of the wound and yet would more gladly have vsed the conference of diuers expert Surgeons for doing the same if the danger of the hurt would have graunted the time that will be lost in calling them together So also the common councell of this Realme finding that the bedie of it may be déepely wounded in some one member and perceiuing that some euills must be resisted at the verie first least otherwise they grow past helpe and ware incurable hath many times thought it good to committe to one or to a fewe Iustices of the Peace for that they be readie and at hande the sfopping of the blood as it were and first dressing of the wounde by repressing of force and other outrages that doe soudainly arise and hath yet neuerthelesse when as the tyme and matter will permit politikely established an assemblie and conference of all the Iustice at certaine tymeâ— in full Court and open Session And as it is true thatif the publiqus peace shoulde not be preserued by taking of Suertie before it be broken If suche as doe violate the commune tranquilitis shoulde not be committed to prison when they have broken it If seditious talebearers the sowers of Kebellion shoulde not bée snapt vppe and restreyned If finally riotous assemblies should not be dispersed and forcible inunasions withstoode and remoued the hurte bodie woulde bléede to deathe and too late and in baine woulde it bée to summone a session for remedie So when the bridele is once cast vpon the heade of the offender then and not before is the matter readis for the sitter And great and many are the profittes that woulde followe of these Sessions if they were often kept and duely ordered I will for this tyme call a Session of the Peace An assemblie of any two or moe Iustices of the Peace one of them being of the Quorum at a certaine daye and place within the limittes of their Commission appointed to enquire by a Iuric or otherwise to take knowledge and therevpon to proceedc to heare and determine according to their power of the matters within their Commission and Statutes referred to their charge The description of 2 Session of the peace And this Description excludeth all méetings that are onely for Enquirie in se much as to enquire and not to heare and determine is but a halfe doing and not worthye the name of a Session of the Peace It shutteth out also such assemblics as doe consist of two Iustices of the Peace méeting onely to enquire heare and determine of a Riotte by vertue of fhe Statute 13. H. 4. for that may they doe as also the former though neyther of them bée of the Quorum So that it is but a particular seruice layde vppon two Iustices and the Shirife by this Statute and the Record thereof shall not as I thinke remayne amongest the Recorder Of the Sessions Of the Peace as hath bene sayd already And therfore the assemblie that I meane is a méeting of such Iustices for the execution of their generall auctoritie and albeit that happily some one matter bée the motiue and thiefe cause of their comming togither yet if they deale with that and others witthin their Commission and charge let it on Gods name passe for a Session of the Peace according to my meaning These Sessions of the Peace then bés grounded chiefely vppon the wordes of the thirde Assignauimus in the Commission the which béeing duos vestrum quoruus aliqucm c. doe very necessarily require the presence of one of the Quorum for the wordes of the seconde Assignauimus doe give no power to heare and to determine but onely to make enquirie Which thrée thinges namely to Enquire Heare and Determine doe in effect comprehends whatatsoeuer belongeth to these Sessions So that euerie thinge whereof I shall hereafter intreate will concern eyther the Information of the Iustices by enquirie and other méete meane Dr the Hearing and tryall of the cause Dr the Iudgement and execution which is the determining given and done dponit A partition of that which followeth in this booke And therefore in this pathe God willing will I freade and by it you shall trars me to the ende VVho shall appoint the Sessions of the Peace and how and where CAP. II THe Iustices of the Peace doe at their Sessions take knowledge of causes with in their Iurisdiction eyther by the Dath Of lnquirours or by the presentment or declaration of other men And this Inquirie is firste prepared by the apparance of the Officers and Countrie by the Articles giuen in charge and then performed by the presentment or Jnditement of them that had the charge to make it The vsuall manner of calling the Officers and Countie togither for this feruice is by a Precepte to the Shirife wherein both the disposition of the Iustices is notified for the holding of a Session and feruice and attendaunce of those others is cornmaunded to bée thereat with them which they be wel warranted to directe vnto hun by the laste Assignauimus of theic Commmission and the Mandauimus that followeth thervpon The Forme thereof hath bene like this Thomas Randolphe Thomas Wotton duo Iusticiarierum Do. Reg. ad pacem in Comitaiu Kancia conseruandam necnon ad diuersa felonias transgrossiones alia malefacta in dicto Comitatu perpetrata audienda
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
processus indictamenta praedicta coram vobis dictis sociâ—s venire faciatis The â— Rotulorum And as his berie name she weth he hath the custodie of the Rolles or Recordes of the Sessions of the Peace and whether the custodie of the Commission of the Peace it selfe doe perteine to him alone it hath bene made some question For M. Marrowe sayth that seeing the other Iustices maye holde a Session without him it is méete they shoulde then haue the Commission with them Who shall Keepe the Commission of the Peace But Chocke in the Booke 9. E. 4. 2. holdeth that a Iustics of the Peace in making any Iustification by vertue of his Dffice nédeth not to the we the Commifsion of the Peace because saith he the kéepyng thereof belongeth to the Custos Rotulorum and for the same cause also the Bailie of a Iustice of the Peace shall not bée driuen to she we the Commission as it séemeth 20. H. 7. 7. And truely since it is suche a thing as can remaine but in the handes of one at once it séemeth moste reasonable that hée which is put in truste with the reste of the Records should be credited with the custodie of the Commission also But vnder the name of the Recordes of Sessions of the Peace I do not comprehende all manner of recordes concerning the Peace but those onely whyche oughte to be at the Sessions of the peace as Billes Plaints Information Inditemets Presentments the Roolles of Processcs Trialles Iudgements and Executions and all other the Actes of the Sessions of the Peace them selues And furthermore the Peace good Abearing Recognusances concerning Felones and Alehouse képers and suche like as ought to be certified or brought to the Selssions of the Peace must bé numbered amongest the Recordes of the Sessions of the Peace For of all these there may be vse at the Sessions and therefore the Custos Rotulorum or some for him ought to bé readie to shew them The Recordes of the peace And although it were before time at the libertie of a Iustice of the Peace to certifie a Recognusaunce of the Peace to the Custos Rotulorum as you may see 2. H. 7. â— Yet now by the Statute 3. H. 7. cap. 1. he ought to certifie send or bring it to the nexte Sessions of the Peace that the partie may be called and to the ende also that his default if he make any may be recorded and by such record of his default he is concluded to say that he appeared there 13. E. 4. As for Precepts for Suertie of the Peace special Records for conuictions of forcible cntries Riots such like as he made out of the Sessions of the Peace by particular Iustices be to remaine with theselues not appointed to be certified thither I can not recken them in the number of the Recordes of the Sessions of the Peace no more than I can well doe the Inrolments of bargains and sales and such other Recordes lying in the charge of the Custos Rotâ—lorum or Clark of the Peace But M. Brooke Tit. Commission 11. addeth that the Records of the Iustices of the Gaole Deliuerie do remaine amongest the Records of the Peace also ho wheit I think he meant notit of all the Recordes of the Gaole deliuerie for as the Iustices of Gaole deliuerie haue their proper Clearke whiche maketh vp kéepeth the Records of things determined by that CoÌ„mission so the same Iustices being withal Iustices of Peare do leaue wyth the Clarke of the Peace Indiremets such causes of the Peace as be not determined but haÌ„g in mocesse to the end offendors may be more spéelig vily Iusticed And it appeareth 13. H. 4. 10. that Hanford Iustice of Gaole deliuerie at his departure called the Clarke of the Peace willed him to take the name of a prisoner that had bene sent thither for Felonie without any sufficient proofe to cause it to be inquired of at the next Sessions of the Peace The Office of the Custos Retulorum was of auntient time giuen by the discretion of the Lord Chauncelour vntil that aboute the latter and of the raigne of king H the 8. sundrie persons no lesse vnworthie to occupie the Office than gréedie to haue the place did by labour and friendship obtaine at that kings handes graunts of the same by his Letters Patents for terme of their liues by meanes whereof so many cuilles did shortly ensue both to the hindraunce of Iustice and to the disherison of the Kings subiects that the last Parliament of his raign viz. 37. H. 8. cap. 1. did somwhat restrain that course and though it did ordain that none should thencefoorth bee appointed custos Rotulorum in any Shire a fewe place of Priuiledge onelie excepted wythout a Bil signed with the Kings hande yet it tooke further order that the same Bill assigned shoulde bee but as a Warrant to the Lorde Chauncelour to assigne in the Commissions of the Peace the same person to be Custos Rotulorum only vntill the King should by an other Bill signed with his hande make appointment of another for the same Office The gifte of the Office of the Custos RotuloruÌ„ But neyther this ordinaunce had any long life for wythin a feme yeares after it was thought so preiudiciall to the power of the Lord Chauncelour and so troublesomea matter to sue to the King for bils so signed that by the Parliament 3. E. 6. ca. 1. the Lord Chauncelor was wholy restored to his auÌ„tient auctoritie in naming the Custos Rotulorum againe excepte in suche priuiledged places without expecting any such Bill and that the Custos appointed by the discreation of the Lord Chauncelour shoulde enioy the same Office to be occupied by himselfe or his sufficient Deputie in as ample maner as if that Statute 37. H. 8. cap. 1. had neuer bene made The Clearke of the Peace oweth his aftendance at these Sessions also for he rest deth the Inditements seâ—ueth the Court he enrolleth the Actes of the Sessions and braweth the Processe Clearke of the Peace He also must deliuer Letters to such as bée acquited of felonie and will begge for their fées 22. H. 8. cap. 12. He must record the burning of Roags thorow the eares 18. Eliz. ca. 3. and muste like wise record the Proclamations of Rates for seruants wages and inroll the discharge of Apprentices 5. Eliza. ca. 4. He is appointed to kéepe the counterpane of the Indenture of Armour 4. 5. Phil. Mar. cap. 2. He kéepeth the Register Booke of licences giuen to Badgers and Laders of corne 5. Eliz. cap. 12. and of those that are licenced to shoote in Gunnes 2. E. 6. cap. 14. And he is bounde vnder the paine of xl shillings to certifie into the Kings Bench transcripts of Inditements Vtlawries Attainders and Conuictions had before the Iustices of the Peace within the time limited by the Statute 34. H. 8. cap. 14. All
default of those which are returned the Iustices may take a Iurie de circumstantibus And herevnto also the Statute 3. 0 H. S. ca. 12. she weth some further consent in that it giueth power to the Iustices by their discretion to commaund the Shirife or his Deputis to adde alter or diminish the names of the pannell which if he refuse to do it he shal forfeit xx.l. for the same contempt Neither is it to be obiected that men being all of one Shire maye not take knowledge of things done in diuers Hundreds Séeing they haue diuers occasions of méeting togither as at the Countre Courts the Shirifs furnes the Assises generall Duarter Sessions And if a Iurie of one Hundred would make presētmēt of an offence done within any parte of the Shire out of theyr own Hundred this were good in Law Besides which if M. Marr. mixture be followed fewe of them that doe appeare shall lose their labour whereas nowe the moste of them doe come in vaine But these men bée not truely Jurours til they bée sworne as their name pretendeth and otherwise their presentment is betterly voide How they of the Iurie muste be sworne and ordered And yet if it should by any oversight happen that they or some one of them were not sworn at all if the Record make mention that they be sworne their presentment is of force ynough for the Record may not bée gainsayed Each Iurie of Enquirie ought to containe 12. in number at the leaste and if there bée 18. or moe it shall not bée amisse Bea the common order wyth us is to have them of an odde number as 17. 19. 02 21. to the end as it séemeth that if they shoulde dissent in opinion somewhat equallye yet there shoulde bée alwayes one to weigh downe the side and caste the ballance The number of Iurours But if 12. of them doe agrée the gaine-saying of the residue can not hinder the presentment The Iustices ought not to commit these Iurours to anye kéeper nor to kéepe them wythout meate or drincke nor to carrye them out of the Town And yet they maye adiourne them to an other place to gyue their Verdite and that may bée then taken by any two Iustices though neyther of th◠be of the Quorum faith Marr. If these Iurours doe wilfully conceale offences presentable y be complayned of by Bill then may the Iustices choose an Enquest of persons whereof euerie one may dispend fortie shillings by yere to enquire of their concealement and if anye suche concealement bée founde within the yeare euerie one of the first Enquest shall bée amerced in full Sessions by the discretion of the same Iustices 3. H. 7. ca. 1. Concealement And because the lurours of those dayes were yet wilfull in their concealementes it was prouided wythin eight yeares after that the Iustices of Peace should determine rauses upon information without any such presentment But In vitium ducit culpae fuga sicaret arte and therefore that ordināce endured not long as you shall hereafter perceiue Finally these Iurours ought not to discover their owne doings for it is a parte of their oath that they shal kéepe the Queenes Counsel and their fellowes And we reade in Fitzh Tit. Coron 207. 272. that to indite a man of Felonie and then to shew abroade to others what they haue done therein hath bene taken for Felonie Nowbeit that offence is nowe taken to be fineable onelie Of the Articles that are to bee given in charge at the Scssions of the Peace CAP. IIII. IT was the auntient maner that twice in the yeare at the Shirifes Turne whyche was sometime a Court of greate authoritie and called the Shirremoote the Bishop of the Diocesse and the Alderman or Carle of the Shire shoulde be present the the one to informe the people in the lawes of God and the other to instructe them in the lawes of the lande Archaionom in legibus Canuti Cap. 17. And it were to be wished that as there is commonly at euerie Assises a Sermon vttered by some learned man so also the like might be at each generall or Duarter Sessions of the Peace For séeing that the lawes of men must be obeyed for God it doth of necessitie ensuc that he which will séeke to haue man obeyed rightly must first cause God to be preached truly The Iustices of the Peace saith M. Fitz for therepartes be bounde to enforme the people And no doubt the charge is giuen aswel to instruct those that be ignoreāt least they offende vnwares as to enquire of those that haue alreadie fallen into daunger by offence and thereof it is that many Statutes do expresly commaund that they shall be openly read or declared at the Sessions as you shall sée in place for it But the manner of giuing the charge and receiuing the Verdite at this day differeth from that whyche the Iustices in Eire were wont to vse for you maye sée in M. Bracton Fol. 116 that first one of the Iustices did open before the whole assemblie the benefites of the seruice in hande the commodities of kéeping the Peace and the euilles of the contrarie and that then the Articles of the charge were read by one and one to the Iurours who receiuing the same at the handes of the Iustices did also make aunsweare in the yéelding vp of their Verdite to each Article seuerally and by it selfe The auntient order of giuing the charge in Eire Which custome as it had many profits so is it worthie in mine opinion to be recontinued and brought in vre againe neyther oughte the multitude of the Articles nowe inquirable to discourage any man in this behalfe For if those Lawes whych be leaste seruiceable either for the presente time or for the place or other iust respect were onelie touched or runne ouer by way of thorte Article then would there bée the more time affoorded for spéeche that mighte bée well spente as well in discourse of exhortation or dehortation as in the larger handling of suche other Statutes whereof there is greater vse and necessitie And this libertie the Iustices in Eire themselues did vse also as the same M. Bracton in the same place reporteth The points of the charge that wée haue in hande may bée reduced to a fewe heads and that after sundrie sorts of distribution of which for examples sake I will shewe you some first thus The pointes of the charge diuided Al the matters inquirable bée either Eccleasticall or Temporall and these Temporall be either high treason petite treasons felonies or otherwise punishable and finable offences Or thus All these pointes doe either cōcerne God the Prince or Subiect Or thus All these Articles bée offensiue either against the first or the seconde Table of the ten Commaundements of God Or thus All these matters bée inquireable eyther by vertue of the Commission of the Peace and of the Statutes therein conteyned or else by power of the
Statutes not comprehended within the Commission Or thus All these Lawes doe prohibite thinges contrarie to some of the foure Cardinall or principall vertues Prudence Iustice Fortitude or Temperance They may also be diuided by the barietie of the punishments and by some other Accidentall respects all whiche I leaue to the choice of suche as shall give them in charge and will now for this time set downe the Articles themselues after the order of the first diuision pointing out in the first place the Ecclesiasticall causes and then pursuing the Temporall In whiche doing first I will omitte all such Statutes as doe concerne but onely some one or a few particular places knowing that I write to the most part who haue not to doe with them The manner of this Charge Secondly I will purposely pretermit the rehearsall of the punishments conteyned in the Statutes that I am to run thorow aâ—well bicause those doe rather perteine to the Iustices than to the lurours as also for that I haue an auncient Precedent of the Iustices in Eire to make for me who in their charge did only deliuer the Articles in offence without any mention of the paines due vnto the same As it appeareth in the small volume of the old Statutes vnder the Title Capitula Itineris And thirdly I will neither recite all the other partes of each generall Statute by it selfe nor yet comprehend them wholie and fullie with others bicause the firste of the se waies wonld be very long through the ofteiteration of the same things and the other would bée so crooked I comberous through the barietie and difficultie of the exceptioÌ„s that the hearer would bée many times loste before I should come to the ende I know that M. Fitzh was of the opinion that the Iustices of Peace ought at their Quarter Sessions and may at their priuate Sessions giue in charge to the Enquest all such matters as they haue power to determine and this he vrgeth aswel by the Dath of the Iustices who are sworne to do right in all causes within their Commission or the Statutes as by the ignoraÌ„ce of the Iurours who cannot bée instructed but by the charge which if it bée so I sée not for my part how either these Iustices that are bound to vtter all can bée discharged or the Iurours that ought to heare all can be enfourmed without this 02 some such compendious plaine waie that may bothe shortly for the time lightsomely for the order comprehende the substaunce of that which belongeth to their Enquirie Howbeit as I thinke it the best for the Iustices to rehearse all such pointes whereof the Iurie may make presentment before them so yet I holde them discharged in my slender opinion if they vnfold onely the articles of their Commission and of such other Statutes as doe expressie auctorize them to make enquirie For as there bée sundrie Lawes that doe giue to Iustices of the Peace a certaine speciall 02 particular power in them and doe not yet yéelde vnto them any auctoritie to enquire vpon the same of which sorte be the Statutes 27. H. 8. c. 20 32. H. 8. c. 7. of Tythes The Statute 35. H. 8. ca. 17. of Woodes The Statute 23. El. ca. 9. of Logwood and sundrie others So also there be diuers others that do aforde to the Iustices of Peace the power of hearing and determining and yet doe not exprestie giue them the name of Inquine And for as much as they may heare and determine of these by Information giuen to themselves by them commaunded to the Iurie it séemeth to me that they bée not so necessarily boúd to giue them in charge but that they be well inough discharged if they lie open and be readie to receiue the informations and presentments that shall bée offered vpon them And of this kinde bée the Statutes of Highwaies 5. El. c. 13 18. El. ca. 9. the statute of Fighting in Churche or Churchyarde 5. E. 6. ca. 4 the Statute of Informours 18. El. ca. 5. and sundrie others whereof it shall be superfluous to make rehearsall Neuer the lesse bicause I will not that my fantasie shall either stand against his iudgement or be preiudiciall to other mens profite I haue contended what I may to deliuer the principall most seruiceable partes not only of the Commission and of suche Lawes as doe specially conteyne their Inquirie within them but also of al such other Statutes as may be hearde and determined by Iustices of the peace at any their Sessions and that in so narrowe a roome as if I be not after some proofe deceiued they may be distinuly read ouer in a couple of houres or litle more so that the yeares of the Kings and the other Notes be left vnread and passed ouer Ecclesiastical causes If anye person haue within this halfe yere by writing printing teaching preaching expresse déede or act aduisedly malitiouslye and directly affirmed holden sette foorth or defended the auctoritie preheminence power or iurisdiction spirituall or Ccclesiasticall of anye forreine Prince or perso whatsoeuer heretofore claymed vsed or vsurped in this Kealm or any the Quéenes dominions or haue aduisedlye malitiously and directlye put in ble or executed anye thing for the ertolling setting foorth or defence of anye suche pretended or bsurped iurisdiation preheminence or auctoritie or any part thereof Treason the third offece Extolany forraine power Or if anye person coÌ„pellable to take the oath of Kecognition of the Quéenes Maiestie to bée supreame Gouernour in all causes within hir domonions haue refused to take the saide oathe after lawfull tender thereof to him made 1. Eli. c. 1 5. Eli. c. 1. enquirable by words of 23. El. ca. 1. Refuse the oathe If any person vnder the Quéenes obedience haue at anye time wythin this yere by Writing Ciphering Priting Preaching or Acte aduisedlye holden or stoode with to extoll or defende the power of the Bishoppe of Rome or of his Sée heretofore calymed or vsurped within this realme or by any spéech open déede or acte aduisedlye attributed anye suche manner of auctoritye to the saide Sée of Rome or to the Bishoppe thereof within any the Quéenes dominioÌ„s yée shall presente him his Abettours procurers counsellours aiders and comforters Premunire Pope 5. Eliz. ca. 1 If any person haue by anye meanes practised to absolue perswade or withdrawe anye other within the Quéenes dominions from their naturall obedience or for that intente from the religion now established here to the Komishe religion or to moue them to promise obedience to the Sée of Rome or other estate Or if anye person haue bene willingly so absolude or wdrawn or haue promised such obedience Treason Withdraw any from obedience And if anye person haue willingly ayded or maintayned anye suche offender or knowing such offence haue concealed it and not within twentie dayes disclosed it to some Iustice of peace or other higher Officer Misprision of treason 23 Eliz.
1. E. 3. ca. 17 31. E. 3. ca. 14 1. E. 4. ca. 2 1. R. 3. ca. 4 And for this purpose the sayd Statute 1. E. 4. ca. 2. bindeth the Shirife to certifie to the Iustces of Peace at their next Scssions the Enditementes founde in hi Turne or Lawdaye It séemeth also by way of admitting in the Booke 27. H. 8. 2. that the like ought to be done of the Presentments of felonie in any Leete by vertue of the said Statute of 1. E. 4. ca. 2 But that is further to bée enquired of for I find no better Warrant for it This is certaine that Iustices of the Peace ought to receive Enditementes found in any Lectes or Lawdayes vpon the Statute made for the bréeding of horses to which end also the Courtholders of such Leetes are bound to certifie the same vnto them within the spare of forty dayes 32. H. 8. ca. 13. Iustices of the Peace have none auctoritis to receiue an Enditement of the killing of a man se defendendo sayth Stamf. 15. as he had heard say But enquire further thereof for though it be not felonie as appeareth by the Statute of Glo. c. 9. Yet be their other words in their Commission large enough to giue them power to heare and determine such an offence But they are not to receiue an Enditement of the killing of a Hart proclaimed for the Iurisdiction of it belongeth to the Iustices of the Forest 21. H. 7. 30. Fineux And as it séemeth they may reject an Enditement that findeth any matter of Recorde as Vtlawrie or such like unless it be shewed vnto the Iurours sub pede sigilli for Iurours are to finde matters in déede onely and not of Recorde 1. H. 7. 6 3. H. 7. 1. 10 And so if the Shirife will offer Enditementes of Liueries Rauishment of Women or of Felonies by Statutes or of such other causes whereof they haue no power to enquire in their Turnes the Iustices of the Peace ought to relect them 4. E. 4. 31 8. E. 4. 5 22. E. 4. 22 Stanford 87. Thus much for the better remembrance of our Iustice of the Peace I thougt to say of Enditementes the rather because it behoueth him to Iudge of them and for that they be the chiefe grounde worke whereupon the whole Triall is afterward to be built and framed Of the Presentementes and Informations of Officers and other men CAP. VI. HAuing shewed how these Iustices take knowledge by the labour of Iurours in Enquests it followeth to declare also howe they may have understanding by other men And that is to be done either by the presentment of persons publicque or by the information of priuate men In some cases therfore these Iustices may heare one an other for euerie Iustice of the Peace may vppon his proper knowledge make Presentment at the Sessions of any offence done against the Actes 2. 3. Phil. Mar. ca. 8 5. Eliza. ca. 13. concerning the amendment of the High wayes Presentmets of Iustices of peace and constables And in this such like cases his reaport hath the force of a Presentment of twelue men So that he and his fellowes may procée vpon it 21. H. 6. 5. Of like value is a Presentment made at the next Sessions by Searchers appoynted to examine the true making of Tile 17. E. 4. ca. 4. And of like strength also as I thinke is the presentment of the Constables concerning sundrie poinctes contayned in the Statute of Winchester 13. E. 1. This Court may also bée given to vnderstande by the meanes of priuate men and that eyther for the Queene onely or for the Queene and them selues or in some speciall causes for them selues without the Queene InformatioÌ„ by priuate men That which is for the benefite of the Queene or for hir and the partie is sometimes moued by the free offer of him that openeth the matter and sometimes wrought by commaundement of the Court. The frée motion of the partie is sometimes by word only which is properly but a Suggestion and sometimes by writing named a Bill plaint Complaint or Information all which be not alwaies of one force in this businesse Free Voluntarie information For albeit that we reade 1. E. 5. 6. that the Courte of Chauncerie will sometimes both take knowledge and also award Processe vpon an Information by word in the behalfe Of the Prince and that 39. H. 6. 41. also admitteth such a matter Yet I thinks that before Iustices of the Peace these suggestions and Informations both bée they by worde or writing are but of the force to stirre up the Iustices to recommende the cause to the Enquest and not to award any Processe vpon them unlesse it be in certaine causes where that validitie is specially giuen them by the Statutes as you shall hereafter perceiue There was once a time I confesse when Iustices of the Peace might haue awarded Processe vpon an Information for the King only of offences against any penall lawes euen as they may yet vpon Enditementes against the Peace But that lasted not long and therfore that course is holden now in speciall Statutes only Neuerthelesse at cuerie Sessions sayth Iudge Prisot 35. H. 6. 15. the Iustices of the Peace do vse to make Proclamation that if any will informe for the Prince he shall be hearde and thereupon any man may come in and may both informe the Iustices of the Peace and giue euidence to the Enquest without daunger of Conspiracie by the opinion of the Court in the last said booke And as that which ariseth vpon Presentment or Enditement is properly called the sute of the Queene So this Other whether it be by Bill plaint Complaint or Information is most aptly tearmed the sute of the partie at whose sute the Iustices Of the Peace may heare of the abuse of Innekeepers and Victuallers and of Extortions and Regratories and perhappes of higher offences also either for him selfe or for the Queene but of the other Articles in the Commission at the sute of the Queene only by the expresse forme of the words in the last Assignauâ—mus of the Comission of the Peace But therein among other some amendment if I be not deceiueb is to be desired if it be not ment the they shall hold plea of Appeales betwene party party which the Statute 8. H. 6. c. 10. séemeth also to allow unto them In other Statuts at large such rules are to be followed as they them selues do prescribe And in this Information the Statute of Additions 1. H. 5. ca. 5. séemeth vpon the bare words to haue no place for Informations be not mentioned in it and vpon that reason the Court 13. H. 7. 21. did holde it cleare that if Rescous bée retourned by the Shirife against certaine persons wtout their Addititions yet in the case they may well be Vtlawed vpon it The other compulsorie informatioÌ„ groweth by examination Of witnesses called into the Court and is
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
M. Fitzh Fol. 16. that albeit two Iustices of the Peace the one of them being of the Quarum may heare and try Felonies yet no Iustices of the Peace haue auctoritie to deliuer Felons by proclamation or without sufficient acquital nor yet to deliuer such as bée in prison for suspition of Felonie For they must procéede by enquiring hearing betermining as their Commimission appoints them and not ridde the Gaole other Wise as the Iusties of Gaole deliuerie may doe Things feuerall to lustices of the Peace in the triall of Felonies And therfore such persons if they can not bée endited must either remaine the comming of the Iustices of Gaole deliuerie as the commune manner now is or els being remoued into the Kings Bench they may bée deliuered vpon the writ degestu fama as the to olde order was or otherwise as the manner is at this day These Iustices can take no appeale of any appronour nor other before them say all the Iustices of the Common Peace 2. H. 4. 19. and so is it clearly holden 9. H. 4. 1. because their Commission stretcheth not so farre Where vppon hauing had no leysure to make the searche I am induced to suspect that the serme of those Commissions was in the last Assgnauimus other than these of our time bée in that point which as I haue sayd before bée now very large and do giue a great shew to the contrary But howsoeuer that bée yet it seemeth no lesse reasonable than seruiceable that if one Felon will accuse an other before them they may take his confession reprye him and therevpon cause the other to bée enqiured of then proceede against him Further they can not arratgne one vpon his abiuration sayth Mar. It hath also béene thought vnméete that they should try a Felon the same day in which they awarded the venire facias against the lurie 22. E. 4. Fitz. Tit. Coro 44. but that hath no necessitie the law is now otherwise taken Marrow sayth that they can not award the writ venire facias tot matron as to try whether a woman arraigned before them bée with child or no but séeing it standeth with law and reason so staye hir for the tyme that the childe may bée preserued can not but doubt of it They may giue Clcargie to a Felon if the Ordinarie or his Deputie bée present to take him but if they bée absent he must bée repried bicause as Marrow sayth these Iustices can set no fyne vppon the Ordinarie for his absence no more than if he will accept one to reade as a Clarke where in truth he can not But if you reade M.. Stanford lib. 2. ca. 45. he will perswade you that the Ordinarie is not the Iudge but a Minister in the triall of Cleargic and that Cleargic may lawfully bée giuen allowed in his absence Of the Fine for his default at these Sessions I am doubtfull as I haue sayd before but touching the allowance of Clcargie to the offendor I sée no cause at all why it may not belong to the Iustices of Peace as well as to other Iudges séeing that they bée Iudges of the felonie as other Iustices are other wise all men might bée defeated of that priuiledge Marrow sayth also that is Bygamie that vngodly Popish counterplea had bene alleadged against one that prayed his Cleargie the Iustices of Peace could not haue written to the Ordinarie to certifie the same But let that passe as now not worth the debating And if a man outlawed of Felonie by Processe before the Iustices of Peace bée brought before them and do alleadge that he was at the time of the Utlawrie pronounced out of the Realme in the Queenes seruice vnder such a Captaine or that he was then emprisoned in an other Countie they can neyther write to the Captaine nor into the Countie by the opinion of Marrow Which if it bée so it shall bée good to learne further what they ought to doe with the prisoner in such a case Thus much onely of things restrayning the Iustices of Peace in the Trial of felonies where in also they are not now adaies much occupied the rather bicause they deferre it til the comming of the Iustices of Assise by reason that the Statuts 1. 2. Phil. Mar. ca. 13 2. 3. Phil. Mar. ca. 10. doe enioyne them to Certifie at the next generall Gaole deliuerie both the examinations and bonus that they shal take concernirg Felons and suspects brought before them This I may adde not as a restreint but for an enlargement of the auctoritie of Iustices of the Peace that if they sée cause and do write to the Clarke of the Crowne of the Kings Benche for the names of any persons being other where attainted of Felonie by Vtlawrie or being Clarkes conuict or attainted he ought without delay and vnder the paine of rl ye. to certifie the same vnto them togither with the causes of such attainder or conuiction 34. H. 8. ca. 14. Of Iudgement CAP. XV. THe Iustices of Peace hauing thus sifted and tried the causes in heauidence giuen to the Iurie or by the eramination of witnesses or by Certificate allowed or other reasonable and discréete proofe are now come to make an ende and to determine of it For I may wel apply that to hearing and determining which M. Bracton requireth to the making vp of a true Iudgement that is to say an equall and indisferent acceptation of the persons an earnest examination and thorow searche of the cause a true deliuerie of the sentence and a diligent execution of the same Of these the two first belong to Hearing or Triall which we haue already handeted and the latter two bée the very parts of determining wher with we haue now to deale For Iudge ment and Execution doc make an ende of the wbole cause You haue heard before how M. Fitzh collectcth a generall learning out of one speciall case in the Commission I meane that if any difficultie doc arise in determination vppon Tryall the Iustices of Peace are restreyned to procéede to Iudgement and you may reade 6. H. 7 16. that if a Certiorari bée brought to the Iustices of Peace they are stayed by the opinion of Keble from determination although the Recorde bée not there by remoued from them But supposing that there is none impediment let them procéede to Judgement The Judgements of the Iustices of Peace bée in some cases arbitrarie or referred to discretion and in other some cases prescribed or limited Of the first sort take this one or two for all Iudgements by discretion He that is orderly conuicted before them in their generall Sessions of the deceiptfull getting of anye thing into his handes by meanes of any false token or counterfaite letter made in the name of any other may bée adiudged by them to suffer Emprisonment standing on the Pillorie or anye other corporall payne that they shall appoynt except the
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
brought to a seconde handling either to the ende to reuerse that which they haue done or that their doings may be an euidence and testimonie in the triall of causes before other Iudges And because this can not in any sorte be perfourmed Without the presence of those former Recordes or the transcripts thereof which due remayne with the Iustices of the Peace it is therefore requisite that they we make Certificat of them vnto those other Courtes or officers that shall be interessed to vse the same But as this Certificat ought in some cases to bée made by the Iustices of the Peace or their Clarke without any writ of Certierari therefore directed and in some other cased they may spare to Certifie vntill that Writte or some other commaundement bée brought vnto them So also sometimes they are to certifie and send up onely a Tenor or Transcript of the Recorde before them and sometimes the verie Recorde it selfe must be conueyed from them The Clarke of the Peace must vnder the paine of rl ◠certifie into the Kings Benche a true transcript of euery Attainder Vtlawrie and Conuiction had before Iustices of the Peace in any place except Wales Chester Lancaster and Durham within 40. dayes after if it bée then Terme if not then within 20 dayes after the beginning of the next Terme that the same may there also appeare of Record to be used as that Statute hath appointed if there bée cause and he must also Deliuer to the Ordinarie a Transcript of Clarkes conuicted or attainted before the sayd Iustices 34. H. 8. c. 14. Certifie without the writ of Certiorari But enquire whether this last bée nécdefull at this day by reason that Clarkes bée not now deliuered to the Didinarie by the Statute 18. El. ca. 7. And if a principal bee attainted of murder or felonie in one Countie wher vnto an other is accessorie in an other Countie then vpon writing from the Iustices of Gaole deliueric or Oier and Terminer to the Custos Rotulorum where such principall is attainted he must certifie in writing under his Scale to the said Iustices Whether such principall be attainted or other wise discharged or not that they may procéeds there upon to the trial of the Acceslorie 2. E. 6. ca. 24. But in cases where Iustices of the Peace haue power to receyue Enditements and no power to procéede any further vppon them whereof you haue alreadye the eramples in the seuenth Chapter of thts seconds Booke there they ought to sunde vppe and certifie the Enditements them felues and that of duetie as I thinke without any Certtorari commaunding the same bicause hauing none auctoritie to heare and trye the offences the Recordes thereof shall bée vnprofitable before them and therefore they can haue no iust cause to reteine them and yet for the more suertie it is specially commaunded by 5. El. ca. 1. that they shall certifie the presentmentes of some offences against that Statute And so if a man bound to kéepe the Peace doe make default of apparance at the next Quarter Sessions the Recognulance it selfe togither with the Recorde of that default must be certified into the Chauncerie Kings Benche or Excheaquer that execution 3. Henri 7. cap. 1. and so ought it as I thinke if it bée presented that the partis hath for fayted his Recognusance by breache of the peace And likewise if it bee presented before them that the chattels of a man attainted of felonie bée in the handes of an other For in these and such other cases where they can not of them selues proccede they ought to sande the Recordes to such as haue auctozitie to determine vppon them and otherwise they doc not discharge that duetie which the words Saluis c. alys ad nos inde spectantibus in the Commission doc séeme to expecte at their handes Furthermore the Statute of Purueyours 2. 3. Phil. Mar. cap. 6. doth appoynt the Iustices of the Peace to certifie to the Treasorer of the Queenes housholde the Dockets of Purueiours brought to their Sessions by Constables that the seruing of such Commissions and the true aunswearing of purueyances may bée the better eramined thereby and although it may bée doubted whether these bée Recordes or no yet for that they are to bée certified from the Sessions of the Peace I sticke not to afoard them this place And if you will also repute in this number the Licences and such other ates of that kinde which passe at the Sessions of the Peace I will not bée against it Louching the Certiorari if it be made accordingly the is of force to remoue not only Enditements or other executorie Recordes wherein the Iustices of Peace can goe no further and whereof I haue spoken already but also the Recordes of caused fully and lawfully heard and determined by them to the ende that they may bée reuersed and adnulled in the Kinges Benche if good matter and cause due so require Certiorari For that preheminence hath the Kinges Benche as you may see by Proofe yea all other the higher Courtes may write to the Iustices of Peace to certifie their Recordes that doe make for the Triall of causes hanging in them as you may reade 19. H. 6. 19. where they of the Commune Place did send to the Iustices of Peace for an Enditeiment bicause in a writte of Conspiracie brought before them it was materiall to haue it And yet neither they of the Commune Place nor Kinges Benche do use to write for Enditements or such other Recordes unlesse they bée there vnto enduced by a cause hanging in their owne Courtes before them For otherwise the right way to remoue them is by Certiorari out of the Chauncerie from whence they may bée transferred by Mittimus to any other Court 41. lib. Ass Pl. 22. Knyuet Chiefe Iustice Howbeit a man may gather vpon the Booke 1. R. 3. 4. that if any Recorde bée sent up without warrant to such a higher Court they may there procéede vpon it bicause it is a Recorde in that Court and that Court is the Court of the Quéene aswellas the other Of the genrrall or Quarter Sessions of the Peace CAP. XIX WE haue hitherto laboured and at the lengthe runne ouer sundry thing which in the opinion of some men bée commune to all Sessions of the yeare And yet becuse there bée also certayne thinges as it séemeth to mée appropriated some to any and others to some one of the generall Sessions it remayneth that we nowe distinguishe the Sessions of the Peace and enter into consideration what is a generall and what a speciall Session The generall Sessions of the Peace bée those which are prouided for the generall execution of the auctoritie of the Iustices of Peace whether you respect the limits of the place within their Commission or the boundes sof power procéeding from the Commission and Statutes The generall Sessions For at these Sessions as sayth M. Fitzh generally
all things ought to bée giuen in Charge that doe lye within the auctoritie of these Iustices to bée determined These bée moreouer called the Quarter Sessions bicause they bée holden Quarterly or foure times in the yeare and the statute 4. H. 7. ca. 12. tearmed them principall Sessions for that in them chiefly the power of Iustices of the Peace doth shine and shewe it selfe in which respect some other Statuts doe giue them the name of open Sessions also But we shall not not néede to dwell vpon the names whereof there can bée no great controuersie séeing that they all doe ayme at one marke rather bicause these generall Sessions bée at this day diuersly summoned begonne and continued in diuers partes of the Realme it lyeth fitly in my way to make examination of that diuersitie in this doing For to beginne with the Summons the manner is in some Shires to summon yearly fix standing Sessions of the Peace in others 8. in others 12. or 16. in others otherwise How many Sessions All which is done chiefly vppon pretence to ease the Inhabitants of the Countie for whome it would other wise bée verie painfull to trauaile so often from all the partes of the Shire to any one place of the same And therefore such as doe maintaine 6. or 8. Sessions doe vse to Summon all the whole Shire to a couple of them and to the residue they call onely such partes of the Shire as they doe therefore specially appoint But yet so that vpon the reckoning eache corner of the Country giueth attendance at foure feuerall Sessions which also falleth out accordingly in those Shires where they haue â—2 or 16. Sessions for albeit that they do not at any one time summone the whole Shire to any one place as the others do yet diuiding their Shire into 3. or 4. partes and kéeping foure seuerall Sessions ineache of those partes they also as well as the other doe serue their whole countrie with foure sundrye Sittings And therefore in myne opinion although none of these doe followe the precise letter of the lawe which requireth but onely foure qnarter Sessions in any Shire yet euery of them draweth neare to the true meaning of the law which looketh for nothing els but that the Courte of these Sessions shoulde yearely bée foure tymes opened for the whole Countie But if there bée any that doe for this purpose diuide their Shire into halfes and doe holde onely foure Sessions in the yeare that is to say two in the one part and two in the other calling the one halfe of their Hundreds to those two Sessions at the one place and the other halfe to the other two Sessions holden at the other place These men as some haue thought do neither reteine the letter nor attaine the meaning of the lawe in this their doing For vpon the matter no part of their Shire hath any moe than two Sessions which manner who séeth not how much it may hinder Iustice And although that they will peraduenture séeke to salue it in saying that they doe call the Constales of the whole Shire to euerye of those Sessions yet they can not so escape for both reason it selfe and their owne experience herein doeth informe them that it is likelie they shall haue moe presentmets where moe persons that can present of their own knowledge be assembled and do take the charge vpon them Besids all which these men do not bring ease but trauel and delaie to their countriemen whom by this meane they compell either to go far out of one part into another to haue a fault punished or else to tarrie for help til a SessioÌ„ shal be kept in the part where they dwel Neither may I well omitte that this doing may bréede danger to the Iustices themselues whilest any of them hauing taken a Recognusaunce of a Tippler doth not Certifie it vntil the Sessions happen to be in hys owne part and in the meane season the nexte Session of the Peace within the thire chaunceth to be holden in the other part whereof what may follow the Statute 5. E. 6. ca. 25. wil tel you and teach them And like faulte is it though not like forfeite so to receiue a Recognusaunce taken for the Peace as you may sée by the Statute 3. H. 7. ca. 1. Thus much of the summonas or number of these Quarter Sessions The times of holding the Quatter Sessions Nowe followeth the time in which they ought to be holde at aboute the whiche also all Counties doe not agrée and therfore it shal be good before other things to peruse those Statuts which do either in déede or shewe concerne thys pointe The Statute 25. E. 3. ca. 8 ordained thus Item that the saide Iustices make their Sessions in all the Counties of Englande at the least foure times in the yeare viz. At The Annuntiation of our Lady Sainct Margaret Sainct Michael and Sainct Nicholas The Statute 36. E. 3. ca. 12. saith That the Commission of the Peace shall make mention that the Session shal be holden thus Within the vta of the Epiphanie Within the second wéeke of Lent Betwéene Pentecost and Midsomer Within the vtas of Sainct Michael The Statute 12. R. 2. ca. 10. doeth after warde set the matter at libertie saying They shall holde their Session in euerie quarter of the yeare at the least But they of Midlesex bée excepted by 14. H. 6. ca. 4. Lastly the Statute 2 H. 5. ca. 4. doth reduce the times to certaintie againe saying thus Ouer all the Realme the Sessions shall bee In the first wéeke after Sainct Michael The Epiphanie The clause of Easter The translatioÌ„ of Sainct Thomas the Martyre The first of these foure Statutes doeth in shewe and in commune opinion concerne Sessions of the Iustices of Peace but in trueth it belongeth not at all vnto them for it was made to direct the Iustices of Labourers in the times of holding theyr Sessions and they were not Commissioners of the Peace but speciall Iustices for the causes of Labourers alone not resiaunt in the Country but sent downe for the time of that seruice as it may expressely appeare not onelye by the preamble and all the partes of the saide Statute it selfe but also by the Statutes 28. Edward 3. cap. 5 31. Edward 3. cap. 6 34. Edward 3. cap. 11. during all whiche time also the Wardeins of the Peace wese neither called Iustices by anye Statute nor auctorized to deale with Labourers For in 34. Edward 3. cap. 1. they are called Wardeins and the firste name of Iustices of the Peace by anye Statute that I haue séene is founde 36. Edward 3. cap. 12. before mentioned where it is sayde thus In the Commissions of Iustices of the Peace and of Labourers expresse mention shall bee made that they shall holde theyr Sessions c. as before And as for the auctoritie ouer Labourers that was first appointed to Iustices of the Pcace by the Statute 42. Edward
3. cap. 6 in the fourth Chapter of whych sayde Statute there were certaine Commissions distiked of whiche I beléeue that of the Iustices of Labourers was one and order taken that from thecefoorth some of the Iustices of the one Bench or other or Iustices of Assise or Iustices of the Peace with other of the most worthy of the Countrie should be named in all Commissions of Enquirie So that we haue not so doe with the Statute 25 Edward 3. cap. 8. and may therefore procéede to examine the rest The next is the Statute 36. Edward 3. ca. 12. But neythere that maketh anye Laws for holding the Sessions of the Peace at thys day as well bycause it was fet at large by 12 R. 2. ca. 10. as also if it were not bycause the Commissions of our time use no suche mention as it commaundeth Then came wée to 2. Henri 5. cap. 4. which restrayneth the libertie of 12. Richard 2. cap. 10. and reduceth the times of these Scssions to certaintie againet and yet so that the one of these Statutes doeth not frette the other for the latter is an exosition of the former so that it is all one as if they both had bene but one Lawe and shoulde haue said That the Iustices of Peace thall holde their Sessions in euerie quarter of the yeare at the leaste namely in the firste weeke after Sainct Michaell in the firste weeke after the Epiphanic c. Nowe to proue that the Quarter Sessions of the Peace were holden after the prescript of this Statute 2. H. 5. cap. 4. vntyll the time of the Statute 5. Eli. ca. 4. these bée my warrants First M Marrow saith plainly that in his dayes the Quarter Sessions were so holden Secondly for as muche as there can bée no higher auctoritie of exposition then to coÌ„strue one Statute by an other I will shewe you some Statutes also that haue accounted of these Sessions to be holden accordingly At the Generall Sessions after the seast of Sainct Michaell the Custos Rotulorum or in his absence the eldest pf the Quorâ— oughte to appointe two Iustices of the Peace for the oversigt and controlement of the Shintes and their Clarkes c by the Statute 11. H 7. cap. 15. And at the generall Sessions holden at Michaelmas the Iustices of Peace ought to appopynte Searchers for Brasse and â—ewter by the Statutes 19. Henri 7. cap. 6 4. Henri 8. cap. 7. where the worde At muste of necessitie beée vnderstoode for After whether you will take it according to the sayde Statute 2. Henri 5. cap. 4. whyche sayeth plainely After or according to 36 Edward 3. cap. 12. whiche sayeth Within the Vias of Saincte Michaell séeyng that the Vias as eueric man knoweth is atwayes after the feast and not béefore it But to proue two at once whereas the Statute 27. H. 8. ca. 5. had taken order for Iustices of the peace to be made in Cheshire and certain other shires and had willed that they should be sworn to the keeping of their Sessions of the peace c. as other Iustices of the Peace in other the Counties of Englande were it fell out that the Gentlemen and fréeholders of the Countrie of cheshire were much troubled by attending yearely both at the saide 4. quarter Sessions and also at 8 or 9. Countie Courts which they had besides thervpoÌ„ it was prouided by another statute 32. H. 8. ca. 42. the the administration of Iustice before time used in the said CouÌ„tie Courtes should froÌ„ thencefoorth be done executed at two times in the yere only the is to say at the SessioÌ„s next after the feast of S. Michael at the SessioÌ„s next after Easter yerely for euer I might adde that the quarter Sessions in the wéeke next after the Claute of Easter was tyed to the Twesday of that wéeke by the Statute 33. H. S. c. 10. And the it was not without some graue consideration that the Statute 2. H. 5. ca. 4 did commaunde the Sessions of the Peace to be holden ouer all Englande in one and the selfsame weeke But I think it clearely ynoughe proued that hitherto these Quarter Sessions ought to bée directed by that Statute and therfore I will descend to the Statute 5. El. ca. 4. and weigh the time in which they ought to be holden at this verie day The words of that Statute be these As much of all the Statutes heretofore made euerie braunche of them as touche or concerne the hyring keeping departing worKing wages or order of Seruantes Workemen Aruficers Apprentices or Labourers or anye of them and the penalties and forfaitures concerning the same shal be repealed vtterly voide of none effect And that all the saide Statutes and eâ—crie braunche thereof for anie matter contained in them and not repealed by this Statute shall remaine and bee in ful force and effect anye thing in this Statute to the contrarie notwithstanding Vpon this Statute some haue thought the the said Statute 2. H. 5. ca. 4. is repealed concerning the braunche of the Sessions And others do thinke the contrarie and therefore let vs holde the beame and put in balance their resons on either side They of the one side doe alleage that this braunche of the Sessions lyeth in the midst Of that Statute 2. Henrie 5. whiche was made for Labourers and that it was mente only of Sessions to be holden for the order of Labourers and so is within the wordes of repeale And they saye also that it will fall out vnseasonablie to holdte the Sessions especiallye that after Michaelmas according to this Statute bycause the same happeneth verie neare to that tearme of Sainct Michael whereat the presence of manye is no lesse requâ—site than at the Sessioans of the peacâ— They on the other side doe gather vppon the said words of 5. El. cap. 4. that some parts of the Statutes of Labourers must néeds remaine in force notwithstaÌ„ding those words of repeale for otherwise say they the maKers of 5. E1 mighte with lesse laboure of speach have repealed them al at once And threrefore they say that two Statutes of Labourers viz. 12. R. 2. cap. 3 and 23. H. 6. cap. 13. bée yet inforre for so much of them as both concerne Victuallers and like wise that so much of this Statute 2. H. 5. 4. as doth concerne the resiancie of those Iustices of the Peace whiche be named of the QuoruÌ„ and the holding of the Quarter Sessions is vnrepealed also for that that they concerne not the hyring kéeping c or order of seruants c. whych mighte bée done wythout the Setsions of the Peace but the general seruice of the Commission and Statutes that doe aucthorize the Iustices of Peacewhereof also these Scssions be called the Sessions of the Peace And it is not newe in their opinions to finde a generall ordinaunce in a particu lar Statute as in the Statute 38. H. 8. ca. 39. made specially for the erection
of the Courte of Surueyours there is a generall Laws that all Dhligations concerning the Kings commoditie shall be made to himself by the words Domino regi c. Neither was there cuer saye they anye Duarter Sessions holden onely for the causes of Labourers by the lastices of Peace althoughe the petite Sessions of Constaâ—les were chiefly bent to that feruice And that the saide Statute 2. H. 5. didde meane the verie Sessions of the Peace no other they offer to proue by the auctoritie of those selfe same Statutes which bée alleadged already for the holding of the Quarter Sessions vntil the time of this Act of Queene Elizabeth for that they haue heretofore so construed and taken the Statute But to make the proofe full they adde that euen this same Statute of repeale 5. El. cap. 4. both in a certaine place there of speake of the Quarter Sessions to be holden after Easter which cannot be vnoderffoode of any other of thosse Statutes cocerning the Sessions but onelie of 2. H. 5. cap. 4. because the reste that haue certaintie do appoint that Session eyther at the Annuntiation of the Lent And like wise that the Statutes 8. Eli. cap. 9. concerning the prices of vesselles of â—ope Ale and Béere and 14. Elizab. cap. 5 and 18. Elizab. cap. 3. concerning poore people and vagabonds haue mention of the Quarter Sessions to bée holden next after Easter Which Statutes as they make not in this point any new Lawe but bée grounded vpon former Lawe supposed to be in force So allowing of any one of these soure Sessions they doe therein giue allowance of all the other thrée also As for answeare to the obiection of the nearenesse of the Michaelmasse Sessions to the Michaelmasse Terme they say that this was foreséene to the makers of that Statute 2. H. 5. who do therein dispense with the absence of the Iustices of the Benches at Westminst the Barons of the Escheaquer c. And yet to the end that they also might once in the yere be present at a Session of the Peace for the better direction of that seruice the Statute 33. H. 8. ca. 10. did specially appoint that the Easter Sessions shoulde bée holden yerely vpon the Tewsday nexte after Low Sonday in euerie Shire of the Kealme Now if it shal séeme to any maÌ„ a strange thing that I moue question of the tyme of holding these Sessions I lette him knowe firstâ— that it is one of the Articles of the Oath ministred to the Iustices of Peace that they shall holde their Sessions after the forme of Statutes thereof made Secondly that the articles of many Statutes are inquirable as it séemeth to me onely at the Quarter Sessions because they are not in the Commission at all and the Statutes them selves doe appoint of none other Inquiry but at the Quarter Sessions and then if the Iustices of Peace do not hold their Quarter Sessions according to the times appointed by Lawe they be no Quarter but Speciall Sessions and consequently such Statutes shall eyther not be enquired of at all or else enquired of without Warrant both whych be verie greate inconueniences So that this matter if it be not rightly conceiued tendeth both to the hurt of the conscience and to the hindrance of this seruice Touching the continuance of these quarter Sesions I haue shortelye but this one thing to say that almost two hundred yeres agoe it was ordained by statute 12. R. 2. cap. 10. that they shoulde bee continued three dayes togither if neede were vppon paine of punishment And yet in these days of ours wherein the affaires of the Sessions be excéedingly encreased and consequently more néede to continue them now than béefore many doe scantly affoorde them thrée whole houres besides that time whyche is spent in giving of the charge How long the Quarter Sessions shall continue But it is more than time that I descende to some of those Statutes whych do specially relie vppon the Quarter Sessions therefore I will firste beginne with such as haue refeence indifferently to any of them Things referred to the quarter Sessions The Iustices of Peace maye in their open Quarter Sessions enquire of heare and determine all offences excepte treason and misprision of treason committed againste the Acte made 23. El. ca. 1. for reteyning the Queenes subiects in their due obedience Pope They may also in their open Quarter Sessions enquire of such as do extoll the vsurped auctoritie of the sea of Rome againste the Statute 5. Eli. ca. 1 And the Clarke of the Peace must reade that Acte at euerie of the Quarter Sessions Pope Acte read And they may in their generall or Quarter Sessions enquire of seditious wordes and rumours vttered againste the Queenes Maiestie 23. E. cap. 2. Seditious wordes All the Articles mentioned in the Statute 33. H. 8. cap. 10. shall be enquired of reformed by the Iustices of Peace in theyr auntient Quarter Sessions 37. H. 8. cap. 7. Execution of Statutes They may in their generall Sessions determine of the offences of killing and selling Wainlings vnder two yeares age 24. H. 8. cap. 6 13. Eli. cap. 25 and of the offences of not kéeping Mylch Kine and Calues 2. 3. Wainlings Phillip Mar. cap. 3 13. Elizab. cap. 25. Milch Kine and Calues The Enquirie Hearing and Determination of Forestallings ingrossings and Regratings maye bée at the Quarter Sessions 5. E. 6. cap. 14. Forstalling The Enquirie whether Ale-house kéepers haue forfeited theyr Recognusances ought to bée at the Quarter Sessions 5. E. 6. cap. 25. Alehouse The Fine for vnlawfull Huntyng by night or wyth painted faces shall bée sette at the nexte generall Sessions 1. H. 7. cap. 7. Hunting Iustices of the Peace maye in sheyr Quarter Sessions heare and determine offences againste the Statute of Armour 4. 5. Phil. Mar. cap. 2. and may there enquire of heare and determine the offences of putting to pasture anye stoned Horses c. vnder the heighth appointed by the Statute 32. H. 8. cap. 13 And maye there also enquire of conueying Horses into Scotlande 23. H. 8. cap. 16 1. E. 6. cap. 5 1. Elzab cap. 8. Armour Horses They maye at their like Sessions enquire of and determine te offences of not amending the highwayes 2. 3. Phil. Mar. cap. 8 5. Elizab. cap. 13 18. Elizabeth cap. 9. Highwayes In their Quarter and generall Sessions they ought to enquire of heare and determine the offences of not kéeping continuall housholdes vppon the Precinctes of the late Monasteries 27. H. 8. cap. 5 5. Elizab. ca. 2 14. Elizab. ca. 11. Keepe houholdes And in their Quarter Sessions they may heare and determine the offences of Informers 18. Elizab. cap. 5 And at the like Sessions they may doe the like for offendors in Periurie 5. Eliz. ca. 9. Informers Periurie Suche as bée suspected of
vsing counterfaite Tokens or Letters maye bée called by Processe to the nexte generall Sessions and muste bée comuicted there 8. cap. 1. Counterfait tokens or Letters Iustices of the Peace maye in theyr open Quarter Sessions call beefore them the owner of a Wood and twelve of the Cōmoners there for setting out the fourth parte therof Wood 35. H. 8. cap. 17 13. Elizab. cap. 25. The proofe of the sufficientie or insufciencie of the cause for whiche the Maister may put away his seruaunt or te seruaunt may depart from his Maister before the end of the terme shall be made at the Quarter Sessions 5. Elizab. cap. 4. Maister and Seruaut The licences for Badgers Drouers c. areto be granted in the open Quarter Sessions 5. Eliz. cap. 12. and the prohibition of transporting Corne is to be made by the more part of the Iustices of Peace at their Quarter Sessions 13. Eli. ca. 13. Badgers Transport corne The licences that the poore of surcharged Cities or Lownes may begge are to bée given at the generall Sessions and he that is grieued with any taxation made vppon him for the pore may be eased there and the taxation for the reliese of the prisoners in Gaoles ought to be made there also poore Prisoners 14. El. cap. 5. The assigment of such as shall kéepe any Lauerne to vtter Wine ought by the Statute 7. E. 6. cap. 5. to be made at the general Sessions Tauerne A Beggers child may at the generall Sessions be bounde to serve any subiect of this Realure being of honest calling 14. Eli. ca. 5 18. El. cap. 3. Beggars childe The Dockets of Purueyours ought to be deliuered ouer to the Iustices of Peace at the next generall Sessions 2. 3. Phil. Ma. cap. 6. Purueiors The Acte of rebellious assemblies or the effecte thereof ought to be openly read at ewerie Quarter Session 1. Mar. Parl. 1. ca. 12 1. Elizab. cap. 17. Act reade And enquire whether the Proclamation set foorth 4. H. 7. cap. 12. bée not yet to be read at euery Quarter Session also for some doe thinke that it was to endure for the time of that King onelie Proclamation read These and some others which I omitte haue reference as you sée to any of the same generall Sessions for so many of the which as bée inquirable and ought therefore to bée giuen in charge I maye séeme eyther to haue committed a Tautologie in reporting the twice or which is worse to have written a Repugnancie in that I did firste deliuer them as common to all Sessions of the Peace and doe nowe here restraine them as proper to the generall The reason why some things be repeated But this is shortly the cause Some men bée of the opinion that these Statutes which be enquirable by expresse words at the Quarter Sessions onlie may neuerthelesse be enquired of at the speciall Sessions also And I haue hitherto doubted whether that be true in all cases or no for as the Iustices of Peace haue none other warrant to enquire of these matters but onely by those Statutes which doe appoint the enquirie to be made at the Quarter Sessions So as me thinketh they ought to pursue that warrant if they wil take vpō them to enquire and haue any care to haue their doings warranted And I thinke it bée no greate doubte but that as the Statutes do many times giue degrées of power somtimes in great measure and sometimes in lesse So also the same Statutes maye restraine the auctorifie of Enquirie to some ceetain Sessions especially to the Quarter Sessions in respecte that they be bothe more open more commonly known before hand and better furnished with Iustices and consequently the méeter for administration of Iustice specially in affaires of the waightier sort And therefore I hane in this parte laboured both to satisfie their opinion in the one and to serue mine owne phantasie in the other But nowe also let looke out some such things as bée lefte onelie to the Easter or Michaelmsse Sessions Easter Sessions The prices of vesselles for Sope Ale and Baere shall bée set and proclaimed by the Iustices of Peace at their Quarter Sessions after Easter 3. Elizab. cap. 9. Prices of Vessels The wages of Seruants and Labourers are to bée rated by the Iustices of Peace at their Easter Sessions or wythin sixe wéeks after Easter 5. Elizab. cap. 4. Wages of Seruants And they maste yearely in the same Sessions examine the perfourmaunce or not perfourmaunce of the Statute made for the poore Poore 14 Elizab. cap. 5. They must also in the same generall Sessions yearely take order for the prouision of storkes and store for the fetting of youth and ydle persons on worke and ought then also to appoint houses of correction for such as will not worke 18. Elizab. cap. 3. Worke and correction for ydle persons At the Quarter Sessions to be holden after Michaelmasse the Iustices of Peace are to appoint Searchers for Brasse and Pewter 19. H. 7. cap. 6 4 H. 8. cap. 7. Michaelmasse Sessions Brasse and Pewter Shirifes Bookes And at generall Sessions after Michaelmasse two Iustices of the Peace oughte to be appointed by the Custos Rotulorum or in his absence by the eldest of the Quorum for the ouerfight and controllment of the Shirifes Bookes c. 11. H. 7. cap. 15. Of the speciall Sessions of the Peace CAP. XX. The speciall Sessions of the Peace vo varie from the general in this chieflye that they bée holden at other times when it shall please the Iustices themselues or any two of them the one being of the Quorum to appoint them And this power they haue not only by the Commission where it saith Adcertos dies loca quos vos seu aliqus vestrum ad hoc prouideritis c. but also by the Statute 2. H. 5. cap. 4. which alloweth them to doe it More often than the 4. times if neede doe so require They be also for the moste parte summoned for some specill busnesse and not directd to the generall seruice of the Commission And yet there is no doubt but that all the Articles within the Commission of the Peace are bothe inquirable determinable at any speciall Session of the Peace M. Fitzh as I haue alreadie noted vseth a third difference betwéene the generall and speciall Sessions of the of the Peace affirming the whereas at the general Sessions the Iostices of Peace ought of duty to giue in charge al matters within the Commission or Statutes that are to be determined before the yet neuerthelesse at the speciall Sessions they are at libertie to giue charge eyther all or any of them as it shall séeme good vnto tyemselues What thinges ges be inquiuble at the spcciall Sessions of the Peace I will not gainesay but that the Iustices of Peace may at any speciall Session
of the Peace giue in charge all suche Statutes as doe giue vnto them a generall power of enquirie without vsing mention of any Session as doth the Statute 25. H. 8. cap. 13. of Shcepe yea I will graunt that they may also at their speciall Sessions of the Peace giue in charge to enquire vpon all suche other Statutes as do vse the worde Sessions indifferently wythout adding Generall or Speciall of which sort there bée a great many as 5. E. 6. cap. 4. of fighting in Churche or Churchyard 14. H. 8. cap 11 19. H. 7. cap. 11. of Hunting Elizab. cap. 13 of linnen cloth 2. 3. Phil. Mar. ca. 7 of Faires and Markets 5. H. 4. cap. 3 of Seawatch and 7. E. 6. cap. 5. of Wines and sundry others But whether they may there also enquire of such other statutes as do only assigne the enquirie to be made at the Quarter S. ssions you haue heard my minde and read my reasons in the laste Chapter Nowsoeuer it bée there might bée great vse of the special Sessions of the Peace if they were nowe and then holden betwéene the Quarter Sessions to deliuer the Gaoles of vntuly seruants sturdie vagabonds ydle poore folks petite théeues and some others The vse of the speciall Sessions For it is dayly prooued that manye being sent thither for correction doe come foorth more corrupted than they went in whiche euill happeneth by long abode there in wicked company whereas if they hadde more spéedie triall both they should be amended and the Countrie lesse charged by it Forraine Realmes and Countries doe reape the fruite of spéedie Iustice and if our Gaoles in Englande were more often swepte emptied I doubt not but that wée also shoulde finde a sensible profite to arise by it Peraduenture some man will say that by this meane we shall drawe vppon vs againe the same inconuenience of troubling the Countrie that happend by the sixe wée Sessions which were therefore abrogated by the Statute 37. H. 8. cap. 7. But that is not to be feared for whereas those Sessions were to bée holden in everie limite of the Shire these may bée kept onelie where the Gaole standeth the whyche since it is commonly scituate in a populas Towne shall bée easily able to furnishe thys seruice wythout calling any other vnto it Of the Rewardes and Punishments due to Iustices of the Peace in respect of their Sessions CAP. XXI WEl and euil doing do from the firste to the laste deserue reward and punishment and therefore as we closed vppe the first parte of this Treatise wyth them So also shall this latter Booke receiue the same ende and conclusion VVhilest it was at the liberty of the Iustices of Peace to holde their Quarter Sessions as shorte time as they woulde the Lawe did not allowe them anye Wages for theyr paines The Wages of the Iustice of the Peace at the Quarter Sessions But when the Statute 12. R. 2. cap. 10. had bounde them vnder paine of punishement to continue their Sessions thrée dayes together if the affaires of their office did so require the the same Statute thought it méet also to allow to euerie of them foure shillings by the daye for the time of theyr Session to be payed by the hands of the Shirife out of the Fines and Amerciaments rising of the same Sessions And that the Lords of Franchies shoulde bée contributories to those Wages after the proportion of their parties of the sayde Fines and Amerciaments But because it was verye Dilatorie for the Iustices of Peace to take those Wages at the handes of the Shirife as I haue alreadie touched vppon the Estreate sente out of the Escheaquer and for that also it grewe in question whether such Lordes as were named in the Commissions of the Peace shoulde bée partakers of the same Wages the Statute 14. Ric. 2. cap. 11. did plainely prouide that the Wages of these Iustices shoulde bée leuied and payed by the Shirife vpon Estreates doubled and indented betwene the Shirife and them And that no Ducke Earle Baron or Baronet albeit they were Iustices of the Peace did holde their Sessions with the other eight Iustices should take anye Wages for their Office in this behalfe And hereof also M. Marr. collecteth the howsoeuer many Commissioners of the Peace there shal be assembled at these Sessions yet only eight of them shall receiue the wages bycause saith he that at such time as these wages were first appointed the law did take knowledge and make allowaÌ„ce of eight Iustices and no more And he also maketh it doubtfull whether it lie not in the power of the Barons of the Escheaquer to appoint which eight when moe be assembled at the Sessions shall haue the wages paide them For the first point it would be some what harde indéed to straine that Statute so far as to giue wages therbyto so many Iustices as be nowe at these dayes in euerie Shire and would be present at the Sessions Yet the Statute of Labourers 5. El. ca. 4. the willeth the Iustices of Peace in euerie shiâ—e to deuide theÌ„ selues and to kéepe two special sittings yerely for the execution of that Law alloweth to as many of them as shall giue their attedance flue shillings a day for thrée dayes togither But concerning the latter it séemeth by the late Statute it self that the Shirife shal first paie the wages and the the Barons shal make the allowance according to the Indenture So that I sée no libertie of such nomination left vnto them I confesse that it might bréede bothe offence against the Shirife iealousie among the Iustices themselues to haue one of them preferred before an other in this payment therefore I thinke it wisely done as it is vsed to bestow the whole allowance vppon the defraying of their Commune diet If the Fines and Amercements of the same Sessions sayeth M. Marr. will not fullie amount to the sum of the wages then due to the Iustices yet shal the wages be ratably paid out of them so farre as they will extende Furthermore those two Iustices of the peace the do in their Sessions cal before the and persoÌ„ suspected to offed the Statute of Deerhayes Buckstals Stalking do examine him thervpoÌ„ finde him faulty therin shal haue the tenth part of the forfeiture growing therby Buckstals 19. H. 7. ca. 11. Nitherto of Reward hencefoorth of punishment Punishmets at the commune law It séemeth by the opinion of some Iustices 2. R. 3. 10. the if a Iustice of the Peace do any thing of Recorde ignorantly for want of knowledge that he shal not be punished for it And this opinion of theirs is not new in this Realm although it be otherwise truely said Imperitta quoque culpae adnumeratur for you amy reade in the old lawes of King Edgar cap. 3. and of King Canute cap. 14. that if a Iudge had erred in his office he mighte then haue excused
himselfe by oath That he did it not of euil minde and that he knewe not how to do better which I speake not to comfort men in carelesse ignoraunce but to shew you that me may erre and that erring by infirmity they are not altogither vnworthie of pardon and withall to let the Iustices of Peace sée that it may be a fault to erre by ignorance and that therfore they ought to stay where they méet with noÌ„ liquet as their owne Commission doth direct them Now on the other side if a Iustice of the Peace will craftilye embesill an Enditemet or wilfully raze any part therof or malitiously enroll or file the for an Enditement which was neuer found by the Iurie Then by the resolution of al the Iustices assembled before the King in the Starre ChaÌ„ber 2. R. 3 a CoÌ„missioÌ„ may go out to enquire by the oathes of 12. men of such his misdemeanor and if he bée conuicted therof he deserueth to loose his office to make fine to the Queene according to the quantitie of his misprision offece ibid. Fo. 10. And euen so may he be punished as this booke leadeth me to thinke if he alter an Enditement of Trespas into an Enditement of felonie howsoeuer the opinioÌ„ 27. lib. Asl P 1. 18 be foound against it A Iustice of the Peace may also be endited of the vnlawful taking of mony for doing his office or of such other falsitie Fitz. Nat. Br. 243. And if he cause a man to be endited at the Sessions by former conspiracie or indirect practise he is punishable for it as a priuate man 21. E. 4. 67. But if in the handling of a cause at the open Sessions it happen him to speake against an offendor somewhat excessiuely yet he shal not be punished for it Iuris enim executio non habet iniuriaÌ„ Neuerthelesse Iudges oughte not to abuse their tongs by inteperance but they must rather take great héede as Cicero pro Font saide Quibus verbis vtantur ne quid minus moder atè prositum ne quid ab aliqua cupidstate prolap sum verbum esse videatur Thus farre of punishmets by the commune Law now to those by Statutes Punishmets by Statutes If the Iustices of Peace hauving taken a Recognusance for an Alehouse do not certifie it at the nexte quarter Sessions of the Peace they shal loose fiue markes Alehouse Fiue Marks 5. E. 6. ca. 25. That next Iustice of the Peace which doth not certifie at the next general Sessions of the Peace such presentmets as the ouerséers of the Highwayes haue before presented vnto him shall loose v. â—â— for euerie default Highwaics Fiue pound 2 3. Phil. Mar. ca. 8 5. El. ca. 13. If any Iustice of Peace not being sicke nor hauing other lawful excuse to be testified vnder the Oach of one assessed in the Subsidie booke at v. â—â— c. do not assemble at the Easter Sessions to rate the wages of seruaÌ„ts c. he shal loose x. â—â— to the Queene 5. El ca. 4. Seruaunts wages Ten pounds And if any Iustice of the peace so assebled shal depart thece before conferece had about the execution of this Acte for setting idle persons on worke he shal fofeit v. â—â— 18. El. ca. 3. Poore on worke Fiue pound The Iustice of the Peace which faileth to recorde at the next quarter Sessions the name of any person auctorized to shoote in a Gun the hath preseted his name vnto him shal loose xx â— 2. E. 6. ca. 14. Gunnes Twentie shillings If that Statute do so far extend wherof the words giue cause of doubt And if the Proclamation annexed to the Statute 4. H. 7. ought now to be read then if it be not read at each quarter Sessions euerie Iustice of the Peace there present shall loose xx â— 4. H. 7. ca. 12 Proclamation reade Twentie shillings If the Iustices of the Peace before whoÌ„ any presentmet shal be made at their quarter Sessions against any person for extolling the auctoritie of the see of Rome do not certifie the same into the Kings Bench within 40. days after if the Tearme be then open and if not then at the first day of the nextful Tearme they shal euerie of them loose E. â—â— for euerie default 5. El. ca. 1. Pope A hundreth poundes And those Iustices of the Peace which do not certifie into the Escheaquer their examinations taken concerning the entring of plaintes by the Shirifes shall loose xl â— 11. H. 7. ca. 15. Examinations Fortie shillings The Epilogve Thus haue I by the fauor of God brought this treatise to an end wherin if many things haue escaped me vnséene I doe not greatlye marueile when I looke backe and behold the varietie multitude of the matter that I haue passed thorough and it shall not be harde for him that méeteth with such Estrayes to take and lodge them in their right Titles here The Epilogue Againe if I shal be thought to haue heaped vp too many conceites borowed out of M. Marrowes reading I make aunsweare that I haue omitted many and haue made the best choice that I could If furthermore I shal séeme to those that be maisters in Arte Methode mot to have throughly obserued their rules and speciallye that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bycause I do manye times mingle aliena things not preciselye pertayning to my matter in hand To them I say that it is the receiued manner of teaching in out law To shew things by their contraâ—ies and disterents and séeing that great lighte commeth to the matter thereby I may neyther condemne it as vnapt nor reiect it as vnseruiceable Moreoure if I haue bene deceiued in laying downe ouerboldely mine own opinion I wil no lesse gladlye be admonished of it than readily reforme my mistakenings Finally whasoeuer other thing is done amisse I protest that it hath escaped of vnskill and not procéeded of wilfulness and therfore I desire that I may be allowed the benefite of the pardon which as I tolde you euen now is in like case grauntable to a Iustice of the Peace Finis A Table conteining verie neare all the imprinted Statutes bothe generall and particular wherewith Iustices of the Peace haue in any sorte to deale King Yeare Chap Content He the 3. 9 25 Of measures and weights  51  Thassise of Bread and Ale  51  The Iudgemet of the pillory  51  The ordinaunce for measuring  51  Of weights and measures Ed. the 1. 3 9 Of fresh suite after Felons   10 Of Coroners   15 Of Bailement of Felons   25 Against maintenaunce   26 That Shirifes and other Ministersshall take no rewardes   27 Of fees for deliuering chapiters   28 Of Maintenance of quarrels  13 34 Of rauishing women   47 Of taking Salmons   49 Against maintenance    The
Statute of Winchester  28 11 Against mainteinance  34  For measuring of lande    Definition of Champartors Ed. the 2. 1  For breaking Prisons  18  For Purueiours    For Estreats of the Escheaquer Ed. the 3. 1 14 For maintenance of quarels  16 For keeping of the Peace   17 Enditements before Shirifes to be taken by Indenture  2 3 For comming before the Kings Iustices with force armes   6 A confirmation of the Statute of Winchester  4 2 Of Wardeins of the Peace   4 That Purueiours pay in hande and haue a warrant vnder the great or small Seale   10 Against Shirifes Gaolers that will not receyue theeues and such other into their Gaoles  5 2 Against the Kings Purueiours   10 Iurours that take money shall no more passe vpon Iuries   11 That Iustices assigned to determine felonies haue power to write to forrein Countries   14 Against Robertsmen and draw-latches  14 10 Gaoles of the Counties to bee annexed to the Shirifes  18. St. 2 2 Iustices of Peace made  20 4 5 For mainteining of quarrels  23 6 For Vitailers  25 1 For Purueyours  25. St 4 3 For forestalling of Wines  25. St. 5 9 Auncell weight taken away   10 For weight and measuring   15 For takers of Sheepe  27. St. 2 4 None going to the Staple be disturbed by the Kings takers   10 For waights of the Staple  28 11 For safegard of Marchāts aliens cōming within this Realme 34 1 For Iustices of Peace   2 For Purueyours   5. 6 Iustices of Peace to enquire of measures   22 For Hawkes found  36 2. 3. 4. 5. 6 Against Purueyours   12 For the Sessions of the Peace  37 19 For finding of Hawkes  42 9 For leuying of the greene waxe Ric. the 2 1 3 All Statutes of Purueyours cōfirmed   4 For maintenaunce of quarrels   7 For giuing of Liueries  2 2 For forestalling of Wines  5 7 For entring into lands  7 8 For Purueyours   13 For riding in Harnesse  12 3 A confirmation of all Statutes for Vitailers   6 For bearing weapons   10 Iustices of Peace to punish Vagabounds and for holding their Sessions  13 4 Clarke of the Market   7 Iustices of Peace be made a new   8 For price of vitayle   9 For weights   13 For Hunters   19 For safegard of Fishe  14 11 For assigning of Iustices of Peace  15 2 For forcible entries   4 For measuring Corne.  16 3 The Clarke of the market to haue readie his weightes according to the Standard  4 For liueries of companies  17 8 For Riots vnlawful asseblies   9 That Iustices of the Peace shall be conseruatours of the Statutes made for Riuers   10 Two men of Lawe to bee assigned in the Commission of the Peace to deliuer Gaoles  20 1 For riding armed in the Realme   2 For wearing of Liueries He. the. 4. 1 7 For giuing of Liueries   11 For extortion by Shirifes  2 14 For Purueyours   21 For giuing of Liueries  4 25 For Hostelers and Vitailers  5 3 For watche vpon the Sea coasts   4 Multiplication made Felonie   5 For cutting tongues and putting out of eyes   10 Iustices of Peace to imprison men in the common Gaole  7 3 Of the maner of making out Estreates   7 For Arrowheads   14 For giuing of Liueries  13 7 Of Riots and Routes He. the 5. 1 10 For weights and measures of Corne.  2 4 Of the Sessions of the Peace   8 For reformation of Riots and Routes   9 Processe against Riotours that flee into woodes  Stat. 2. 1 Of Iustices of Peace  3 7 For clipping washing and filing ling of money 8 3 For guilting and siluering  9. St. 2 8 Of false Weights  2 11 For the measure of Wines He. the 6.  14 For Goldsmithes selling worke of siluer  8 4 For giuing of Liueries   5 For weights   9 For forcible entries   10 For processe in Enditements Appelles   14 For Felons and Murderers that voide themselues into woods  11 6 For Commissions of Peace   8 For weights and measures   12 For Waxechaundlors  14 4 For Sessions in Midlesex  18 11 A Iustice of Peace to haue twetie pound land   19 For Souldiours departing with out licence  20 8 For resistance of Purueyours  23 1. 2. Against Purueyours   10 For extortion of Shirifes   11 For leuying Knights wages for the Parliament   13 Proclayming the Statutes for vitailers  31 3 Of attachements in the Courtes of the Marches  33 2 A repeale of an act for Outlagaries in Lancaster   7 For Attornies in Norff. Suff. Ed. the 4. 1 2 For Enditemets Presentmets in Shirifes Turnes and Leets 8 2 For Liueries of companies  12 2 For Bowstaues   9 For Escheatours  17 4 For making of Tile Ric. the 3. 1 3 For Enquirie of escapes for letting of suspects of Felonie to Bayle   11 For Bowstaues   12 For the measure of wine oile He. the. 7. 1 7 Against Hunters  3 1 Giuing of Liueries certifying of Recognusance coroners   2 Taking Maydens Widowes or Wiues agaynst their willes made Felonie  7 4 For Weights and Measures  11 4 One Weight and Measure to bevsed thorow the Realme   9 For the inhabitants of North South Tindale   15 Against vntrue demeaning of Shirifes and their Officers in holding their Counties   17 Against destroying of Phesants and Partriches with vnlawfull Engines and for Hawkes  12 5 For Weights and Measures  19 6 For Pewterers and Brasiers   11 For keeping of Deerehayes and Buckstalles   13 For punishment of Riots He. the 8. 1 7 Cōcerning the office of Coroners  3 12 For reformation of Impanels for the King 4 7 For Pewterers and true waights and beames  6 6 For remitting Prisoners to the place where the crime was cōmitted  14. 15 6 For High wayes in the Wealde of Kent   10 For hunting the Hart.   5 Fees for Testaments and letters of Administration   7 Agaynst seruaunts imbeseling their Maisters goods  22 5 For repairing of bridges in high waies   10 Concerning Egyptians   11 For Powdike in Maishland   14 How persons commiting petie Treason shall abiure  23 2 Where
shoulde be both willing wise to forsée and be also enabled with méete auctoritie to represse all intention of vproare and force and that euen in the firste séede thereof and before that it shoulde grow vp to any offer of daunger So that for thys cause as I thinke the election of the simple Conseruatours or Wardeins of the Peace was first taken from the people and traÌ„slated to the assignement of the King And whether their auctoritie and power were then also with this alteration anye thing increased or no I will not affirme But I find 3. E. 3. Titul Coron Fitzh 360. that an Enditement of murder was founde before one Wardein of the Peace onlie and that he therevpon wrote his letter or precept to the Shirife to apprehende the person endited who tooke and brought him before the Iustices in Eire and that they also therevpon procéeded to the arraignemente and triall of him And the Statute 4. E. 3. ca. 2. taketh order that such as should be endited or taken by the Wardeins of the Peace should not be bayled by the Shirife or other Ministers vnlesse they were Mainpernable by the Law Howsoever that were the same King vsed as I thinke for the first 33. yeares of his raigne to make his assignements and commissions to the Wardeins of the Peace not alwayes seuerallie into eache Shire but sometimes iointlie to sundrie persons ouer sundrie Shires for so I find a Comission 2. E. 3. part 2. patent in dorso made to William Roos and thrée others his companions to be Wardeins of the Peace not only in Lincolneshire but also in thrée or foure of the other Counties thervnto next adioining CoÌ„missioÌ„s or assignements for the Peace And this mighte be warranted after 18. E. 3 as I suppose out of the Construction of the worde Countie vsed Plurally in the Statute 18. E. 3. Stat. 2. ca. 2. contrarie to the meaning of the former lawes made 1. E. 3. ca. 15. 4. E. 3. ca. 2. where the same word is read Euerie Countie in the Singular number But the Parliament 34. E. 3. ca. 1 restored the proper sense of those lawes saying In euerâ—e Countie of England there shall bee assigned for the safe keeping of the Peace one Lord and with him three or four of the mightiest men in that Countie And afterwards speaking of Felonies c. it addeth They shall haue power to heare and determine at the Kings suite al manner of the felonies or trespasses done in the same Countie Hereof it commeth to passe that euer sâ—thence eche CouÌ„tie hath her proper CoÌ„missioners for the Peace that Counties haue not bene conioyned in Commission as they were sometimes before Hereunto also may that be referred which M. Fitzh Fol. 171. hath saying That before the Statues whiche ordined Iustices of the Peace the King vsed to make Conseruatours of the Peace by his commission in those Counties and places where he thought best to kéepe his Peace But now at what time these Wardeins of the Peace were first named and mighte truely be tearmed Iustices of the Peace it is not so cuident that I dare determine vpon it for on the one side I knowe that M. Marrow taketh it cleare that they were made Iustices by the Statute 18. E. 3. Stat. 2. ca. 2. and on the other side I sée that they were not named Iustices in anye Statute that I have founde within 17. yeres after and it is true to this verie Day theyr owne Commission giueth them not anye such Title There is a shewe I confesse in that Statute 18. E. 3 that they sshoulde be Iustices because of the power to heare and determine felonies whiche is mentioned there The First name of Iustices of the Peace But if it be well weighed it will appeare by the Statute it selfe that the Wardeins of the peare were to haue one Commission by themseluse for the kéeping of the Peace that they and others onely at times néedefull were to haue an other Commission to heare and determine Felonies So that as they were méerlye Commissioners for the Peace they had none aucthoritie to determine felonies and consequently could not in regarde thereof be then worthilye called Iustices and it is plaine in mine opinion that the generall power of determining felonies was first given unto the Wardeins of the Peace as to themselues by the Statute 34. E. 3. ca. 1. After which time it is uerie true that were were commonlie reputed and called Iustices for within one yere after that time there is a Commission which I have sséene in dor so patentium parte 2 that speaketh thus Assignauimus etiam vos tres vestrum Iustictarios nostros c. and the Statute 36. E. 3. ca. 12. taking order for the Quarter Sessions to be holden as well by them as by the coÌ„missioners for Labourers called both the sortes of them by the name of Iustices I might here disclose home and by what degrées the auctoritie of these Iustices of the Peace was froÌ„ time to time enlarged But I wil reserue that vntill I shall come to the forme of their Commission where I shall finde both fitter occasion and more proper place for it By whose auctoritie and by what means Iustices of the peace be appointed and of what sortes they bee CHAP. V. FRom the king who is the head of Iustice ought to flow all aucoritie to the inferiour and subalterne Iusrices And vpoÌ„ this reason it séemeth that the said Statutes 18. E. 3. ca. 2 and 34. E. 3 ca. 1. did ordaine that the Wardeins of the Peace in each Countie should be assigned by the kings CommissioÌ„ that it might thereby appeare that they receiued their whole authoritie and power as it were by his owne hande and deliuerie Howbeit afterward partly through such as had Iurategalia within their Counties Palatine and did thereby make Iustices of the Peace in their owne names and partly by the meanes of sudrie Abbats and Religious persons who labouring by all policie to increase their iurisdictions and to shoale out themselues from the ordinary gouernement had obtayned graunts from the King of the Realme that they theÌ„ selues might make Iusticiarious suos ad pacem coseruandam within their owne liberties this prerogatiue of making Iusstices was in manye places afterward seuered froÌ„ the Crowne to no small detrimente of the royall estate of the same And therefore although by the opinion of Iudge Fineux in the Abbat of S. Albans case 20. H. 7. 8. such a graunt was of no value in lawe because it was of a Prerogatiue inseparablie annered to the Crowne yet King Henrie the eight thought it fit by a generall resumption in Parliament of all such liberties to restore vnto the Crowne hir antient right in this behalfe And therevppon 27. H. 8. ca. 24. it was decriéed that no person whatsoeuer should haue any power to make Iustices of the Peace but that they should be made by letters patents vnder the Kings great
seale in the name and by the auctoritie of the King and his heires Kings of the Realme in all Shires Counties Palatine and other places within his dominions So that now againe al Iustices of the Peace at this day except the Archbishop of Yoke and the Bishops of Durham and Elâ—e their temporall Chauncelours for the time being whiche are seuerallie by that verie Parliament auctorised to be Iustices of the Peace within the libertie of Hexam the Byshopricke of Durham and the I le of Elte and except the Iustices of Peace within the Countie Palatine of Lancaster which also are by prouision in the same Statute to be made vuder the Kings vsual seale of the same Ducâ—â—e be ordained by the meane of the greate Seale and ministerie of the L. Chauncelour that hath the charge of the same but yet so that some of them be made by Letters Patents vpon speciall sute to the Queene and by hir bill assigned and other some by Commission of CoÌ„mune Cource that resteth in the dispensation of the L. Chauncelour Two sortes of Iustices of the peace They of the firste sorte be of some called Indiciall Iustices and Iustices of themselues for that the Queene can not discharge them at hir will and pleasure but they are to continue and to enioy Inrisdiction so far foorth as their Patent of graunt doth enable them Mar. By graunt And therefore if the Queene do graunt vnto aÌ„maÌ„ to be a Iustice of the Peace during his life within a certaine precinct without any further wordes he shall continue such a Iustice during his life and shall haue al that power that a Wardein or Conseruatour of the Peace had and perhaps such power also as is gyuen so a Iustice of the Peace by expresse wordes in any Statute but the shal not haue all that power which is ordinarily giuen so the Commissioners of the Peace by their Commission Mar The Maiors and other heade officers of manie Cities corporate Townes be Iustices of this kinde at thys daye by grauntes of the Queene hyr progenitors Those other Iustices of the Peace which deriue their power from the Commission be called Commissioners of the Peace and doe differ from the other in this point speciallie that they be Iustices during onely the Queenes life and in hir life during only hir owne will and pleasure as you shall hereafter see at large By Commission These as I said bée now at thys day appointed by discretion of the Lord ChauÌ„celour but whether the King himselfe did at the firste nominate them as he did those whiche were made by Graunt or else did leaue the choice of them to the Lord Chauncelour alone or to him and others it hath some shew of question CoÌ„missioners of the Peace appointed by the Lord Chauncelor It is true that in the Parliament holde at Canterburte 12. R. 2. ca. 2. which happened shortlie after that Michael de la pole had bene remoued from that place and after the troublesome Parliamente of the eleauenth yeare of that kings raigne It was enacted that the Chauncelour Treasorer and keeper of the priuie Scale the Steward of the kings house the kings Chamberlaine the Clerke of the Rolles now called Master of the Rolles the Iustices of both Benches the Barons of the Escheaquer and others that shoulde be called to the naming of the Iustices of the Peace Shirifes Eschactors Customers Controllers and other officers should be sworn to doe the same faithfullie and without affection But whether the meaning of that Statute were that they all should be continually present togither at the nomination of all suche officers and whether that Statute were made but for that busy time only it may well be doubted For againe vppon fault founde as it shoulde séeme that the Commissioners of the Peace were made of persons insufficient and dwelling in forraine CouÌ„ties it was enacted 2. H. 5. Parl. 2. ca. 1. that from thencefoorth they should be assigned by the aduise of the Chauncelor of the kings Counsel which wordes may be taken to sounde as though they hadde bene named before by the Lord Chauncelor alone yet may they indifferentlye be extended either so adioine the aduise of the kings counsell to the Chauncelour or the aduise of them both vnto the king him selfe This is out of al dout that 18. H. 6. ca. II. did take order that vpon knowledge giuen to the Chauncelour of England by any appointed to be a Iustice of Peace that he had not lands to the value of twentie pound by years the Chauncelor himselfe should put an other sufficiente in his place And for want of sfficient men hauing lands of that value learned in the Law and good gouernaunce that the Chauncelour of England for the time being shold haue power by his discreation to put into the Commission other discrete persons learned in the Lawe thoughe they had not landes to that value And albeit this credite were here giuen vnto him in these particular cases onlie yet it may wel be thought that he had bene before and shoulde be afterwarde trusted with the choice of all the Commissioners of the Peace generallie where of there is greate presumption also euen vpon the Statute 3. E. 6. ca. 1. that mentioneth that the nomination of the Custos Rotulorum being a verie speciall Iustice of the Peace hadde of long time before belonged to the Office of the Chauncelour till vpon some occasion it was take from him by the Statute of 37. H. 8 ca. 1. and therefore was then restored to him againe VVhat manner of men the Commissoners of the Peace ought to bee CHAP. VI. IN the choice of the Wardeins and Iustices of the Peace the Statute lawes haue respecte to the manners and abilitie or liuelihoode of them all and to the skil and learning of such as are speciallie selected and therefore named of the Quorum For Gardeins of the Peace ought to bee good men and lawfull no maintainers of euill nor Barretours in the Countrey or as some Bookes haue it no mainetainers of euill Barretours in the Countrey 1. E. 3. ca. 15. Men of the beste reputation Meultz vailantz most substantiall or of moste valour shall be assigned keepers of of the Peace 18. E. 3. ca. 2. 17. R. 2. ca. 9. In euerie Countie for safegarde of the Peace shal be assigned one Lord and with him three or foure of the Mieultes vanees most valiant men of the Countie togither with some Sages of the lawes 34. E. 3. ca. 1. And after some troubles in the time of K. Richard 2. it was enacted that none shal be made Iustice of the Peace for any gift brocage fauour or affection nor any which sueth by himselfe or any other priuilie or openly to be a Iustice of the Peace shall bee admitted to that office 12. R. 2. ca. 2. And of some special policie the also enacted ca. 10 of the same parliamet that no Steward of any
Lord should be assigned in the Commission of the Peace 12. R. 2. ca. 10. Yet in the Parliament of the next year ca. 7. it was ordered that notwithstanding that clause of the former Statute Iustices of the Peace should then bee made of newe in all places of the most sufficient Knightes Esquires and men of law Againe Iustices of the Peace especiallye those of the Quorum from hencefoorthe shall be made of the most sufficient persons dwelling in the Countie without taking any others dwelling in forraine Counties except the Lords Iustices of both Benches Iustices of Assise the chiefe Baron the chiefe Stewards of the duchie of Lancaster the Seriants and the kings Attorney 2. H. 5. Parl. 2. ca. 1. Lastly for that contrarie to these former Statutes men of smal substaunce had crept into the Commission whose pouertie made them both couetous contemptible a newe law was published to this effect following None shal be assigned Iustice of the Peace if he haue not landes or tenementes to the value of twentie pounds by the yeare And if any be otherwise appointed he shal within a moneth after notice of the Commission and vnder the paine of twentie pounds and to be put out of the Commission giue knowledge of his not hauing such lands or tenements to the Lord Chauncelour who shall put an other person sufficiente in his place And the like paine is if he sit or make warrant or anye precepte by force of the Commission But this extendeth not to Cities Boroughes or Townes that be CouÌ„ties of themselues or that haue Iustices of Peace dwelling in them by Commission or graunt of the king Nor to such Counties where there be not men sufficient hauing landes or tenements to the value aforesaid learned in the lawe and of good gouernaunce naunce for then other discrete persons learned in the Lawe maye by the Lorde Chauncelour bee putte in the Commission 18. H. 6. ca. 11. Now although this portion of twentie pounds a yeare be not at this day in account aunswerable to the charge and countenance fitte for a Iustice of the Peace yet who knoweth not that at the making of this Lawe it was farre otherwise And I do not doubt but as the rate of all things is greatlye risen since that time so is there also good care taken that none he nowe placed in the Commission whose liuinges be not increased according to the same proportion And thus our Parliaments entending to make the Iustice of peace an able Iudge doe require that he come furnished with thrée of the principall ornamentes of a Iudge that is to saye with Iustice Wisedome and Fortitude for to that summe the words Good Learned Valiant do wel amounte And aboue all that he loue feare God aright without whiche he can not bée â—â—ounted Good at all How manie Commisioners of the Peace there ought to be in each Countie CAP. VII THE number of the Wardeins of the peace was not limitted untill that the Statute 18. E. 3. ca. 2. ordenined that there shuld be two or thrée in each Countie And bycause it was founde within a few years experience that this number suffised not for the gouernaunce of the Countrie therefore by an Acte made 34. E. 3. ca. 1. it was further prouided that in euerie Shire one Lorde and with him thrée or foure of the Best in the Countie and some learned in the Lawes shoulde be assigned for kéeping of the Peace and to restraine offendors In execution of whiche Statute there was amongst many other one Commission for Kent awared 35. E. 3. to Robert Herle Iohn Cobham Roger Northwood Ralph Ireningham Thomas Lodelowe Robert bert Vintar Iohn Barry and Thomas Hartrege But as it falleth out many times that euill examples doe followe of good lawes So here it came to passe that whilest the Parliament prouided an increase of Officers to restraine offendors ambition so multiplied the number of those Iustices that it was after warde high time to make a contrarie lawe to diminish them And therefore by the Statutes 12. R. 2. ca. 10. and 14. R. 2. ca. II. it was prohibited that there should not bée any moe than sire Iustices of the Peace in any Commission besides the two Iustices of Assise and certaine Lordes that were assigned in the Parliament itselfe And for the better restrainte of the increase of them in time to come it was also then further enacted that no Assotiation shoulde bée made to the Iustices of Peace after their firste Commission 12. R. 2. Ca. 10. Which lawe although it bée not abrogated till this day yet it was loÌ„g since cluded by making of newe Commissions that had more new Iustices thrust in to them And truelie it séemeth to me that togither with the like ambitious desire of bearing rule in some the growing number of the Statute lawes committed from time to time to the charge of the Iustices of the Peace hath bene the cause that they also are nowe againe increased to the ouerflowing of each Shire at this day Verie many Iustices of Peace at this day For if Hussey the chiefe Iustice 1. H. 7. 3 thought that it was ynough to loade all the Iustices of the Peace of those dayes wyth the execution onelie of the Statutes of Winchester Westminster for Robberies and Felonies the Statute of Forcible entries the Statutes of Labourers Vagaboundes Liueries Maintenaunce Embracerie and Shirifes Then how many Iustices thinke you many now suffise without breaking theyr backes to beare so manie not loades but Stacks of Statutes that haue since that time bene laide vppon them To dispute whether it be better to haue manye or few Iustices of the Peace in each Shire if all putte in were able for the place is a noble question worthie of a higher consideration and therefore it becommeth not mée to enter into it Iustices of Peace be ouerladen with Statutes The forme of the Commission of the Peace CHAP. VIII For as much as al the auctoritie and power of the Commissioners of the Peace floweth out of theyr Commission and the Statutes as it were out of two Principall springs or fountaines it is nowe time to vnfolde the Commission it selfe and to sée what is contained in it Two fountaines of the power of Iustices of the Peace ELizabetha Deigratia Angliae Franciae Hiberniae Reginae fidei defensor c. Praedilecto fideli Edmundo Cantuar. The saluâ—â—tion Archiepiscopo c. Necnon praedilectis Thomae Bromley militi domino CaÌ„cellario Willihelmo domino Burghley Thesauriario c. saluté SCIATIS quòd assignauim'vos coniuÌ„ctim et diuisim adpacem nostraÌ„ ac ad Statuta ordinationes apud Winton Northampton Westmonasterium pro oonseruatioâ—e pacis ciusdem Necnon ad ordinationes ibidâ— apud Cantabrigiam de venatoribuu operarys artificibus seruitoribus hostellarys mendicantiê° vegabundis alys hominiê° mendicaÌ„tiê° qui se nominant Trauailing men Et similiter ad Statuta ordinationes
reddendum nisi in praesentia vnius IusticiarioruÌ„ nostrorum de vno vel de altero Banco aut Iusticiariorum nostrorum ad Assis as in comitatu praedicto capiendas assignatorum coram vobis minimè procedatur The charge to the Iustices Et ideo vobis et cuilibet vestruÌ„ mandamus quod circa custodiam pacis ordinationum Statutorum praedictoruÌ„ diligenter intendatis Et ad certos dies loca quos vos seu aliqui vestrum ad hoc prouideritis diligenter super praemissa faciatis inquisitiones Et praemissa omnia singula audiatis terminetis ac ea faciatis expleatis in forma praedicta facturi inde quod ad iustitiam pertinet secundùm legem consuetudinem regni nostri Angliae Saluis nobis amerciametis alys ad nos inde spectantiê° Mandauimus enim vicecomiti nostro Kanciae quod ad certos dies loca quos vos seu aliqui vestrum ei scire faciatis venire faciat coram vobis seu aliquibus vestrum tot tales probos legales homines de Balliua sua tam infra libertates quà m extra per quos rei veritas in praemissis melius sciri poterit inquiri To the Shirife Et vos prarfati Thom Wotton ad dies locae praedicta breuia praeceptae processus indictamenta praedicta coram vobis dictis socys vestris venire faciatis ea inspiciatis debito fine terminetis sicut praedictum est In cuius rei testimonium c. Datum 6. die Aug. Anno regninostri 21 To the Custos Rotulourn Certaine obseruations concerning the matter forme of the Commission of the Peace CAP. IX MAister Fitzherberte in his treatise of Iustices of te Peace Fo. 11. b. séemeth to bée of the opinioÌ„ that this forme of Commission was deuised when Iustices Of the peace were first ordained But sauing the reuerence due to so learned a Iudge I suspect that the matter is mistaken by him For besides that the Commission it selfe doth rehearse certaine Statutes made in the times of King Henrie the fourth and of King Henrie the fift many yeares after that Iustices of the peace were created It is the agréeing opinioÌ„ of al the Iustices 2 R. 3.9 the Iustices of the peace had no power at the first but only ad ConseruandaÌ„ paceÌ„ Regis and that afterward wheÌ„ they had power giuen theÌ„ ouer Felons it was not ynough for them to say in their Certificate of an Enditemente of Felonie that it was founde Coram Iusticiarijs Domini Regis ad pacem in comitatu praedicto conseruandam but that they must adde withall Necnon ad diuersas felontas c. and that otherwise their Certificat was of no value And as it is euideÌ„t that 34 E. 3 ca. 1. was the firste Statute that gaue to them that power to heare and determine felonies and trespasses So there is a Precedent to be séene 35 E. 3. in dorso patent parte 2. wherby it appeareth that the forme of their Commission was then enlarged accordingly Alterations from time to time of the Commission of the Peace After that time also it is apparaunte that sundrie things were by expresse commaundement of diuerse Statutes put into theyr Commission of whiche sorte bée these the Statute 36. E. 3. ca. 12. by whiche there ought to be mention in the Commission of the times of holding the Sessions of the Peace although the same were afterwardes pretermitted bycause 2. H. 5. ca. 4. did alter those times in apointing of others the Acte 42. E. 3. ca. 6. by whiche auctoritie ouer Labourers was giuen unto them and willed to bée putte into their Commission The Statute 5. H. 4. ca 3. whereby it was commaunded that mention of Winchester concerning watch should be added so their Commission and the Statute 3. H. 5. ca. 7. which tooke order that Iustices of Peace shoulde haue power by the Kings Commission to enquire of the counterfaiting and other falsifying of money Besides all whiche it is verie probable and likelie that the mention of Weightes and Measures of Vagaboundes of Liueries and of some other things was first put into the Commission after the making of these Statutes 34. E. 3. ca. 5. .6 7. R. 2. ca. 5 17. R. 2. ca. 4 2. H. 4. ca. 21. and some others whyche did first giue power to the Wardeins and Iustices of the Peace to deale with those and some other matters So farre of is it that this Commission hath from the beginning retained one constant tenour and forme Yea as I am verelie persuaded that the forme of this Commission hath veried with the time and receiued sundrie accessions so I trust hereafter to make it plaine that it were conuenient to reforme it now also for diuers imperfections that do yet remaine in it euen as in our memorie the Statute of Lollards which was thrust into the Commission by 2. H. 5. ca. 7 and was in Maister Fitz. own dayes vsually read in it is nowe vpon iust reason as a thing sauouring of the pumpe the Pope I woulde say throwen cleane out of the booke But first let me breake it as it is into partes and leaue with you a few notes vpon the same The whole substaunce of this Commission The partes of the Commission is comprehended within these fewe tearmes 1 The Salutation of the Prince 2 The power of the Iustices and 3 The Charge from the Prince to them and others The Salutation of the Prince expresseth the names of the Iustices 1. The Salutation and hath nothing else in it that néedeth light Then followeth the Power of the Iustices 2. The power of the Iustices whiche is comprehended in thrée clauses whereof the first beginneth thus Sciatis quòd assignauimus vos contunctim diuisim ad pacem c. custodienda custodiri facienda The second beginneth in these wordes Assignauimus etiam vos quoscunque vestrum Iusticiarios nostros ad inquirendum c. The last beginneth likewise Assignauimus etiam vos duos vestrum quorum c. vnum essevolumus ad felonias c. audienda terminanda The first Clause or Assignauimus giueth power to all to many or any one of them First clause or Assignauimus for so Maister Fitzherb vnderstandeth the wordes coniunctim diuisim to kéepe and cause to be kepte the Peace and especially to kéepe these Statutes made for the maintenaunce of the same that is to say first the Statute of Winchester 13 E. 1. The the Statute of Northampton 2. E. 3. ca. 3. And the Statute of Westminster 5. E. 3 ca. 14. whyche doeth concerne the Peace and not as Maister Fitzh wil haue it the Statutes of Westminster the first second or thirde whiche as they have almoste nothing concerning the matter of Peace that of W. 1. ca. 9. onely excepted so to go from the Statute of NorthaÌ„pton to them were to ascende contrary to the
course of the Commission whiche descendeth by degrées of age and time from elder to latter lawes and Statutes and for my Warrant herein I vouche the Recorde 20. E. 3 in dorso patent parte 2. membrana 7. where in a Commission of the Peace to Adam of Scarborowe and others they are charged to putte in execution the Statutes of Winchester Northampton and Westminster made the fift yeare of that King After this the Statute of Cambridge whiche worde in déede as Maister Fitzh thinketh is mistaken for Canterburie and was made there 12. R. 2. ca. 7.8 .10 concerning Artuficers Labourers Seruauntes and Vagaboundes for of Hunters it hath no worde whatsoeuer the Commission say of Venatoribus whiche should be Viatoribus as I thinke the Statute 1. H. 4. ca. 7 2. H. 4. ca. 21 of Liueries and Badges and the Statute 3. H. 5. ca. 6. .7 of Counterfayting Clipping and Washing money The same Clause also giueth them power to kéepe and cause to be kepte al other Statutes made pro bono pacis quieto regimine populi by whiche wordes the Commission meaneth as I thinke all Statutes for Armor for that tendeth to the kéeping of the Peace as the Statute of Winchester it selfe confesseth All Statutes for arresting of Robbers Murderers Felons Royotters and Suspected Persons whiche are euerie where saide to be againste the Peace All Statutes concerning the duties of Shirifes Bailifes Conestables c. without whiche the Peace can not be kepte as the Statute of Northampton 2. E. 3 ca. 4. plainelie affirmeth and al Statutes made for the repressing or punishment of Force Violence and Fighting This first Clause or Assignauimus is closed vp with a declaration of the meane by which they shall cause the Peace and these Statutes to be kepte that is to saye by chastising the offendors either according to the orders of the saide Statutes or by taking suertie of them for their kéeping of the Peace or for their good abearing or by imprisonment vntil they wil be so bound But here before I conclude this Clause I must admonith the reader that these statutes of Laboureâ—s Seruants Artificers and Vagaboundes be repealed by new Actes of our time prouided in that behalfe and that therefore they are vainely rehearsed in the CommissioÌ„ at this day Imperfections in the CommissioÌ„ It séemeth also that the Statute 3. H. 5. ca. 6. for the washing clipping and fyling of money ought to haue no place in the Commission of the Peace at this day for those special Treasons be repealed by the generall wordes of 1. Mariae although the same offences be made Treason againe by 5. Eliza. ca. 11. yet that newe Statute giueth no power therein to the Iustices of the Peace But yet as concerning the counterfayting of false money the Iustices of Peace haue still in mine opinion power to enquire by vertue of that Statute 3. H. 5. ca. 7. and by this Commission bycause that that Treason was declared by the Statute 25. E. 3. and therefore it is not now repealed by 1. Mariae as the others were And these as also that mistaking of CaÌ„bridge for Caterburie the inserting of that words per quos rei veritas c. in thys first clause wtout any sense the stil calling of the that be the Commissioners custodes pacis according to the old name omitting throughe the whole course of the CoÌ„missioÌ„ to giue vnto the once the name of Iustices of the Peace althoughe in all Statutes since 36. E. 3. they be so called bée some of the imperfections that I meant when I thought it méete to haue the Commission reformed Neither may I wel ouerpasse that by these wordes Et ad omnes illos quos contra formam Statutorum proedictoruÌ„ c. delinquentes inueneritis pun iendos prout secundùm formam Statutorum proedictorum fueru facienduÌ„ c. in this first Assignauimus greater power seemeth to be giuen by the letter of the CommissioÌ„ than is ment by the Author of the Commission for by these wordes it séemeth that one Iustice of the Peace may punish the Treason of counterfaiting whiche I thinke is more thaÌ„ is thought méete to be put into his haÌ„vs And in the commissions next folowing the Statute it selfe of 3. H. 5. euen for that reason was placed in the last Assignauimus of those Commissions The second Clause or Assignauimus first enableth all or anie two of these Iustices for so M. Fitzh taketh the words Vos quoscunque vestrum to enquire of al Felonies and Trespasses and of all offences done againste those Statutes that are contained within the same clause and to enquire of all Shirifes and other inferiour Officers that be remisse in the execution of the saide laws statutes committed to their charge 2. Clause or Assignauiâ—â—s Then it authorizeth them or any two of them to procéede and to make processe vpoÌ„ al auntient present Enditements vntil the parties shal either be take or shal yéeld theselues or be outlawed for their contumacie Here also that form of this Comission desireth help in that there is reference made to those Statutes of Artificers Labourers and VagabouÌ„ds which be repealed as I told you And also metioÌ„ made of Inditemets take to long ago to make any processe out vpon them at this day But for as much as it auailed little to the correction of offendors to haue their faults brought to light by Enquirie vnlesse Iudgement Execution had bene also giue done vpon the same with some conuenient spéede therefore the thirde Clause or Assignauimus in the Commission was added which giueth power to the Iustices of the Peace or to two of them whereof the one muste be one of the select number of them now commoÌ„ly called of the Quorum bicause the CoÌ„missioÌ„ in making that choise beginneth with that word to heare determine al the offences coÌ„prehended within the same to chastise the offendors according to the laws customes of the Realme according to the Statutes in that behalfe made ordeyned But yet so that if any question or difficultie do arise concerning Extortions the they should not procéede to Iudgement thereupon without the aduise of one of the Iustices of the one Bench or of the other or who be their Commune Oracle for aunswere in Law of the Iustices of Assâ—sâ— By the equitie of whiche Prouisoe M. Fitzh Fo. 7. thinketh that they are likewise restrayned in all cases of doubt whatsoeuer howbeit he graunteth that if they do procéede of the selues their Iudgement standeth good vntil it be reuersed by Error 3. Clause or Assignauiâ—â—s Decision of difficulties or questioÌ„s arising before Iustices of the peace These of the Quorum were wont not without iust cause to be chosen specially for their learning in the laws of the Realme and therefore there is no separatioÌ„ metioned til the CommissioÌ„ come to giue the power to heare and determine in which
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
Peace amongest others to take before that they should exercise the office and it hath these words I William Lambarde do vtterly testifie and decleare in my conscience that the Queenes Highnesse is the onely superame Gouernour of this Realme and of all other hir Highnesse Dominions and Countries as well in all spirituall and ecclesiasticall things or cause as temporall and that no forraine Prince Person Prelate State or Potentate hath or ought to haue any iurisdictionm power superioritie preheminence or authoritie ecclesiasticall or spirituall within this realme The Othe of Supremacie And therefore I do vtterly renounce and forsake al forraine iurisdiction powers superiorities and authorities and doe promise that from hencefoorth I shall beare faith and true alleageaunce to the Queenes Highnesse hir heires and lawfull successors and to my power shal assist and defende all iurisdiction priuiledge preheminence and authoritie graunted or belonging to the Queenes Highnesse hir heires and successors and vnited and annexed to the Imperiall Crowne of the Realme So help me God c. There hath bene care taken once or twice in our memorie to exact this latter Othe of all the Iustices of Peace throughout the Realme where of some good hath ensued But yet many a Iustice there is that by indirect practise neuer tooke neyther thys nor the former whereof what harmes doe and may grow I leaue to wiser and higher men to be considered Of the power absolute and limited that the Iustices of the Peace haue CHAP. XI THe power of the Iustice of Peace is in some cases Limited in other some cases Absolute Discretion By which latter word I do not meane absolute Simply but after a Manner For they may neither hang a man for a gréeuous Trespas nor fine him for a Felonie and therefore this absolute authoritie is to our Law better knowen by the name of Discretion because the Iustice of Peace may exercise sometimes Legis actionem and sometimes Iudicis officium or which is all one Iudicium Decretum as the case shall offer and the law suffer him It is a good Counsell which Aristotle giueth in his Rhetorikes ad Theodectem that in the making of lawes Quoad eius fieri possit quam plurima legibus ipsis definiantur quà m paucissimaverò Iudicis arbitrio relinquantur and the Commission of the Peace following that aduise doth leaue little or nothing to the discreation of the Iustices of the Peace but bindeth them faste with the chaines of the Lawes customes ordinances and Statutes Howbeit our latter lawes of Parliament although they also endeuour for the most parte to hold the same course yet forasmuche as euerie considerable circumstance can not be foreséene at the time of the making of the Lawe they doe many times leaue to be supplied by the discretion of the Executioner of the Lawe that thing which was not conueniently comprehended before hand by the wisedom of the maker of the Law And therefore although Discretion be necessary in the execution of euery law be it neuer so certainely set forth and bounded in it selfe yet in the mouth language of our Lawe that onelie and properly is said to be done by Discretion which is not specially limited with all the circumstances but is indifferently referred to the consideration of the Iustice that is putte in trust with it And truely it is to be wished that Iustices of the Peace would not by colour of this reference to their Discretion in some fewe cases arrogate vnto themselues authoritie to vse their discretion to play as it were the Chauncelours in euery cause that commeth before them For no way better shall the Discretion of a Iustice of the Peace appeare thā if he remembring that he is Lex loquens do containe himselfe within the lists of law and being soberly wise do not vse his owne Discretion but onely where both the law permitteth and the present case requireth it Right well saide Cicero Est sapientis Iudicis cogttare tantum sibi esse permissum quantum sit commissum ac creditum Of the Iurisdiction and Coertion belonging to the Iustices of Peace CHAP. XII AS Iustice can not bée administred without both a Declaration of the Law and an Execution of the same So to the ende that our Iustices of the Peace may be able to deliuer Iustice they are accomplished with double power the one of Iurisdiction and the other of Coertion the which other men doe call Vocationem Praehensionem that is to say Authoritie not onelie to conuent the persons but also after the cause heard and adiudged to constraine them to obey their order and decrée This Iurisdiction of theirs is exercised for the most part if not althogither aboute those causes which be in a maner the same that the Ciuil Lawyers do call Iudicia publica partely because the Prince who representeth the head of the common wealth hath interest in the most of them as wel as that priuate perso which is immediatly offended and partely because they are not commonly tryed by suche Action as other Ciuil and Priuate causes are but rather by Criminall and Publique Accusation Information or Presentment Iurisdictió And herein the Iustice of the Peace is by the one halfe superiour to the antient Conseruatour of the Peace who had onlie Coertion in a fewe cases and no Iurisdiction in any case that I remember But if the aucthoritie of these Iustices should cease when the fault is told hearde and adiudged then should they be no better than halfe Iustices and therefore the Law hath also Cohertion Execution or punishment as I said into their hands least otherwise their iudgements should be deluded for want of power to bring the to effect This Punishment then is an orderly execution of a lawfull iudgement layed vpon an offendour by the minister of the Lawe and it is done for foure causes first for the amendment of the offendor Cohertior or punishement for what causes it is appointed Secondly for examples sake that others may thereby bée kept from offeding Thirdly for the maintainance of the authoritie and credite of the person that is offended these thrée reasons be common to all such punishments Seneca rehearseth the fourth finall cause that is to say that wicked men being take away the good may liue in better securitie and this pertaineth not to all but to Capitall punishments onelie as euerie man may at the first hearing vnderstande The Romanes vsed specially eight sortes of chastisements knowen to them by these names Damnum Vincula Verbera Talio Ignominia Exilium Seruitus Mors that is losse of goods imprisonment stripes retaliation reproch banishment seruitude death All which our lawe before the Conquest was wont to inflict albeit that now Seruitude Retaliation and Banishment be out of vse The punishments that be commonly put in execution at this day and wherewith the Iustices of the Peace haue to do may be dinided into Corporal Pecuniarie
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.
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
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
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
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
to speake of any of them till I come to treate of those matters by them selues Of the breach of the Peace without a multitude against the person and how it may be stayed or punished by one Iustice of Peace out of the Sessions CAP. XVII The Preuention Of The Breach Of Y E Peace Hath Appeared AsWell In The Suertie Of The Peace As Of The Good Abearing Therefore Mine Owne Order ReQuireth That I Nowe Declare What One Iustice Of The Peace May Doe Out Of The SesSions For PunisHment Of such as doe breake the Peace Breache of the Peace without a multitude For our law is no lesse carefull this way to conserue the Peace both by staying them that doe any way aduenture towardes the breache thereof and by punishing them that doe acually enter into the verie violation of the same than it was prouident to sée it preserued before it came to any neare shewe of disturbance or greater euill But because the breache of the Peace as the law is taken at this day whether it be by word or other acte and that also whether it be to the person or to his goods or lands may be aswell committed by one onely or by two vpon a side both which we hold to be done without a multitude though two in precise speache doe make a number as by thrée or more in one companie which the lawe properly calleth a multitude it shall be good to intreate by it selfe first of that breache of the Peace which may be committed without a multitude and then to prosecute the other If there withall we put the Iustice of Peace in remembraunce that by what way soeuer the may preuent or punishe the breache of the Peace in one person the same meanes may he also bse against any multitude so offending The breache of the Peace that may be practised against the person climbeth to the destruction of the person by sundry degrées as by Threates Assray or assault and violent and malicious striking and beating wounding mayheming and killing The matter of manacing and threatning is sufficiently touched in the last Chapter The wordes Affray and Assault bée indifferently vsed of many men euen in our booke cases but yet there wanteth not a iust difference betweene them in myne opinion Affray and Assault For Affray is deriued of the french effrayer which signifieth to terrifie or bring feare and is the more heynous trespasse for it is in lawe vnderstood to bée a common wrong done and therfore is inquirable punishable in the Turne of Shirife and in a Léet by 4. H. 5.10 and 8. E. 4.5 Otherwise it is of an assault as it séemeth by those bookes Yet it may be done without word or blowe giuen as if a man shall shewe him selfe furnished with armour or weapon which is not vsually worne and borne it will strike a feare into others that be not armed as he is and therefore both the Statute of Northampton 2. E. 3. ca. 3 made aganist the wearing of armour and weapon and the Writte therevpon grounded doe speake of it by the wordes effray delpays and interrorem populi An Assault as it is fetched from an other fountaine namely from the Latine Assultus which denoteth a leaping or flying vpon a man So it can not bée perfourmed without the offer of some hurtfull blowe or at the least some fearfull speache And therfore to rebuke a Collector with fowle wordes so that he departed for feare without doing his office was taken for an Assault 27. lib. Assis plac 11. And to strike at a man although he were neither hurt nor hit with the blowe was adiudged an Assault 22. libr. Assis pl. 60. For this Assault both not alwayes necessarily emplie a hitting and therefore in Trespasse of Assault and Batterie a man may bée fouunde guiltie of the Assault and get bée excused of the Batterie 40. Ed. 3.40 and 45. Ed. 3. 24. Manacings then Affrayes Assaultes iniurious and violent handelings and misentreatings of the person batteries malicious strikings c. bée breaches of the Peace and doe drawe after them the forfaiture of a Recognusance knowledged for the kéeping of the Peace What actes be breaches of the Peace and what not And therefore for example if a man doe imprison an other without warrant or doe thrust him into a water or river whereby he is in danger of drowning or doe raushe a woman against hir wil or doe commit manslaughter or burglarie or robberie vpon the person of an other or do coÌ„mit treason against the person of the Prince who as he is the head of his people so are they also wounded in his hurte he hath broken the Peace Marr. But concerning the manacing assault or batterie of the person of one this is to be noted by the way that it is not in all cases a violation and breache of the Peace for some are allowed to haue priuately a natural and some a Câ—â—le power or auctoritie ouer others so that they may excuse themselves if but in reasonable manner they correct and chastise them for their offences without imputation of any such breach After the one forte the parent is suffered with moderation to threaten and chastice the childe within age By reason of the other fort of power the husband is not punishable so that it be not outragiously if he chastice his wife Master his seruant the Schoolemaster his scholers a Gaoler or his seruant by his commaundement his vnruly prisoners and the Lord may beate his villaine But these things must neuerthelesse be done in conuenient place and therefore not in the presence of the Prince as it is thought 27. lib. Ass pl. 49. This power of the husbande ouer the wife seemeth to be permitted by the words of the Supplicauit that is sette downe for hir in the Register 89. when she standeth in neede of the Peace against him where it is said That he shall be bounde to doe her no corporall harme but with this exception Aliter quà m ad virum ex caussaregiminis Castigationis vxoris suoe licitè rationabiliter perâ—â—net Wherein it agréeth with the Ciuil Lawe which yeldeth to the husband that power so that he vse it Modice moderately And sayth M. Peter Martyr vpon the 1. to the Corinthians c. 11. ver 3. The husband may Corripere castigare vxorem eadem charitate qua Christus Ecclesiam verberat nimiruÌ„ vt melior fiat c. The power of the Master Schoolemaister ouer the Seruaunt and Scholer is affirmed by M. Marrow and confirmed by some opinion in the booke 21. E. 4. 6. 53. Whereunto I may also adde the minde of those that made the Statute 33. H. 8. cap. 12. concerning malicious striking in the kings house for they do therein specially exempt the Maister that striketh his Seruaunt with his hand fist small staffe or sticke for his correction for any offence Howbeit in these cases I doe aduise both husbande and
maister not to prouide so much howe they may escape the breach of a Recognusance or punishment of our lawes as to foesee that they kéepe the lawe of God and doe nothing against honestie the one as knowing that the wife is his owne fleshe and the other as considering that he also hath a Maister in heauen Euerie man also maye take his kinsman that is madde and may put him in a house and binde and beate him with roddes without breache of the Peace 22. lib. Aff. plac 56. A Constable or other Officer or any other being of their companie that shal be driuen to strike any person for the better executing of their Office or charge as in many cases they may lawfully doe breaketh not the Peace nor shal be in any perill of forfeiting any Recognusance of the Peace by reason of any such assault or batterie as may bée well inferred upon the booke cases 17. E. 4. 5 2. E. 4. 6. 8 4. H. 7. 1 14. H. 7. 8. For suche Actes bée iustifiable And sée for this purpose also M. Stamforde Fo. 13. 14. 15. Besides this if a man be inforced to repulse violence done unto his owne person or to the person of his wife father mother childe kinsman maister seruant or to his goodes being in his possession either by threatning or striking againe his so doing is also iustifiable as may be séene in Marr. 33. H. 6. 18 19. H. 6. 3 9. E. 4. 48 35. H. 6. 50. But a Fermer or Tenant cannot iustifie suche an acte in defence of his Lanlorde nor a Commoner in defence of the Maior or Bayliffes of a corporate Towne If one man also hurt or kill an other at Fence play or at the Title Turneament or Barriers in pefence of the Quéene and by hir licence or in a wager of Battell for the trial of a cause according to the auncient Lawes of this Realme it is no breach of the Peace at all Marr. Thus farre of those breaches that maie bring daunger to a Recognusance of the Peace for some others there bée whiche are in a degrée against the Peace so that an Enditement Contrapacem may bée founde vpon them but yet no forfaiture of such a Recognusance shall ensue of them Breaches of the Peace that make no breache of bond for the Peace As if a man so bounde doe take a mans goodes wrongfullie so that it bée not from his person or doe Rauish a Warde from the possession of his Garden or do a Trespasse in an others mans corne or grasse or do Disseasse an other of his landes or do enter into landes where he ought to bring his Action it will bréede no forfaiture of his bonde Therefore let vs nowe come to the pacifying and punishing of the Breache of the Peace upon the person by one Iustice of the Peace out of the Sessions A Iustice of the Peace is undoubtedly for this purpose endowed with no lesse power thaÌ„ euerie Prâ—uate man or any Constable hath as it is plaine by 14. H. 7. 8 9. E. 4. 3. And therefore it may not be thought Heterogeneum or besides my purpose if I shal shew what both a Priuate man and Constable may do in this case yea rather I choose to vtter this matter vnder their names to the end that I may with the one labour bewray the duties both of them and of the Iustice of the Peace him selfe in this behalfe The Lawe looketh that euerie Priuate person whom it shall happen to be present at an Affray Assault or Batterie for now I will confounde those names should doe his parte to departe them that fight together and it doth to that ende enable him also with some portion of auctoritie The duty of a stander by at an Affray For if two be fighting every Stander by may lawfully and shall do well to put them in sunder and if he take hurt thereby he shal haue his remedy by Action against him that did the hurt To parte them But yet he being but a Priuate man may doe no hurt if they resist him for they also stall then haue Action for it against him wherein his case differeth as you shall sée anone from the case of an Officer And if an Affray be in the high streate and one commeth towardes it with harnesse or weapon to take with the one partie euerie man that séeth it may stay him til the Affray bée ended Any man also may stay the Affravours vntill the storme of their heate be calmed and then may he deliuer them ouer to the Constable to imprison them till they finde Suertie for the Peace but he him selfe may not commit them to prison vnlesse the one of them be in perill of death by some hurt for then may any man carrie the other to the Gaole till it be knowen whether he so hurt will liue or dye as appeareth by the Statute 3. H. 7. ca. 1. To stay them But as the kéeping of the Peace is more speciallie recommended to the charge of Iustices of peace CoÌ„stables petit-Constables Borsholders Tithing men and such like Officers so be they also therefore armed with a larger measure of auctoritie And there fore if a Constable or such other Officer doe sée a man endeuouring to make an Affray he may coÌ„maunde him to auoide vpon paine of imprisonment and if the Affray bée great or dangerous he may make Proclamation and may commaunde the parties to pryson for a small time till their heate be passed ouer then he must deliuer the without any fine taking The Officers duetie in an Affray But if twoo doe vse onely hoate woordes one against the other the Officer may laie no handes vpon them vnlesse they doe also drawe weapon or doe otherwise offer to strike If they once fight togither then may the Officer departe them and if he happe to bée hurte in that doing he maye haue an Action of Trespasse for it but if any of them bée hurte by him in the resistance no Action lieth for them For the Officer ought to doe his beste to departe them in so muche as if it bée presented at the Sessions of the Peace that he was present at an Affray did not vse his indeuour to put them in sunder that fought togither he shall bée fâ—â—ed for it Otherwise it is if he were not present but were onely tolde of the Affray Marr. If any of the parties bée in daunger by reason of a hurte receyued in the Affray then ought the Officer arrest and carrie the other to the Gaole vntill he shall finde suertie to appeare at the Gaole deliuerie Fitzh 72 38. E. 3. 6. 22 â—b Aff. pl. 56. And if twoo men bée fighting in a house the doores shut then may the Officer break open the doores to see the Peace kept though neyther of them have taken hurte And yet when the Constable hath taken an Affrayor he may not imprison him in his house but in the
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
testimonium huic praesentas certificationimeae sigillum meum apposm Dat. apud B. praedict die Anno supradictis By this you have séene what one Iustice of the Peace ought to do in execution of this Statute as a Minister and by the same you maye also sée what he maye doe therein of himselfe Ex efficio as a Iudge and without any Writte brought vnto him if one Iustice maye deale therein as a Iudge For not onely by the plaine wordes of the Statute of Northampton the Wardeins of the Peace haue power within their Wardes and are commaunded to execute this Acte vpon a prins But also by expresse speach in the Commission it selfe eucrye Wardein of the Peace hathe the Statute of Northampton committed to his charge So that both in the matter and manner the doing is all one sauing that if he doe it as a Iudge he nedeth notto make any proclamation the Statute being a prohibition in it selfe nor yet to sende any Certificat into the Chauncerie but only to make his owne Record of that which he shal do in this behalfe and thereout to sende some estreit into the Eschequer that the Queene may bée answered of the Armour or of the value there of And here prehappes the redemption of the imprisonment maye bée at the same Iustices discreation as in the former Statutes of 15. R. 2 8. H. 6. it séemeth to bée Of other breaches of the Peace with a multitude as by Riot Route or other vnlawful Assemblie c. CHAP. XIX OVr Parliaments séeing well that the assemblie of many for breach of the Peace offereth more daunger and hurt both generallye to the Commune wealth wherein it happeneth and perticularly to him against whom it is bent than the force of any one or two turbulent persons can bring haue no lesse carefully endeauoured to suppresse the one than wisely foreséene to preuent and punish the other And therfore not onely the Commission giueth power to enquire of Conuenticles againste the Peace but sundrie Statutes also haue deuised many meanes and paines to méete with and to punish the same wheras before they wet punishable only as other trespasses though sometimes by a greater and sometimes by a smaller fine as the case it selfe required Conuenticles Vnlawfull Connenticles bée not al of one fort for sometimes those are called Conuenticles wherein many do impart with others their meaning to kil a man or to take one an others part in al things or such like Champerties also Maintenances Conspiracies Confederacies and giving of Liueries to other than to Meniall Seruauntes and officers bée contained vnder the worde Conuenticles saith Mar. And it appeareth 27. lib. Assi Pl. 44. to bée one of the Articles enquirable in the Kings bench whether any persons take others to their Auowment and Protection and receiue of them rentes or other giftes yearely in the name of Chyuage or rther Cheifage bycause they séeme to take vpon them to bée their Cheifes heades or leaders Chyuage But for as much as all these couenaunts may bée without any apparant shewe of Assemblie against the Peace thoughe otherwise they bée finable offences vnder the name calling of Conuenticles as Mar. thinketh I will leaue them and resorte to those orther that bring manifest terror to the Subject Of these some consist of a number of people gathered togither disorderly for the cause of some one or of a fewe persons and do not bréede any generall or present danger to the Estate or Couernement and yet bée against law and be called Riots Routs and Vnlawful asseblies against the law against which the Statutes 13. H. 4. ca. 7 2. H. 5. ca 8 19. H. 7. ca. 13 were specially prouided and before that the penaltic of the Statute of Nort. 2. E. 3. ca. 3 ordained to bée laide vpon them by 2. R. 2. ca. 6. But others there bée that sauour of a more generall disobedience and bée either in regarde of the number or quarrell a verie Seede of Rebellion if not the Weede it selfe and are therefore also sometimes called Rumors great Ridings Routs Riots against the Peace 5. R. 2. ca. 6 7. R. 6. 17. R. 2. ca. 2. sometimes Assemblies of people in great number in manner of insurrection◠H. 5. ca. 9. and sometimes Rebellio is Infurrections and Rebellious Assemblies 15. R. 2. c. 2 8. H. 6. ca. 14 and 1. Mar. Parl. 1. ca. 12. Of all whiche so farrefoorth as the Iusices of peace haue interest in them I wil intreat but yet severally and so as either one or moe of the Iustices of Peace have to do with them and that out of the Sessions They of the first kinde bée as I haue said commonly called Riottes Vnlawful Assemblies and Routes But concerning the proper difference that is betwéene each of these thrée all men do not throughly agrée And therefore reiecting al diversities of opiniōs I wil folow the whiche I take to bee most colourable most cōmōly receiued at this day wherin neuerthelesse I submit my self vnto the experience of the Starchamber as to the best direction the the Iustices of Peace can haue to follow in this case Riot seemeth to come of the French word Riotte Rioter which signifieth to braule or scolde for commonly Riottes in deede do follow of braulling in worde Riotte And it is taken to bee Where there is an vnlawful assemblie of me gathered togither to commit an vnlawful act they do excecute it in deed as to beate a man or to enter vpō a possession forcibly or such like the fact is properly called a Riot An Vnlawful Aslebly is the cōpany of thrée Vnlawful persons or more gathered togither to doe Assembly such an vnlawfull acte althoughe they do it not in deede Vnlzwful Assembly Our Rout is the very same which the Germans do yet cal Rot meaning a band or great cōpanie of me gathered togither going about to execute or executing in déed any Kiot or vnlawful act Route And sayth Mar. it is said properly of the multitude the assemble theselues in such disorderly sort for their cōmon quarel As if the inhabitants of a Towneship do assemble to pull downe a hedge or pale to haue their Common where they oughte to haue none or to beate a man that hath done them some publike offence or displeasure But the Statute of 18. E. 3. Sta. 1. Whiche giueth processe of vtlagarie againste suche as bring Routes into the presece of the Iustices or in Affray of the people And the Statute of 2. R. 2. ca. 6. that speaketh of riding in great Routes to make entrie into lands to beate others and to take their wiues c. doe séeme to vnderstande it more largelie And it is a Route whether they put their purpose in execution or no if so bée that they doe go ride or moue forward after their méeting Broo. Tit. Riotte 4. 5. So as it séemeth a Route should bée a speciall
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
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
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
person hauing the charge of him or of the worke and they maye appoint any woman being vnmarried of the age of twelue yeares and vnder fortie that is out of seruice and that they shal thinke méete to serue to bée retained by their disrreatiō and may vpon hir refusall commit hir to Warde till she wil be so bound to serue 5. Eh. ca. 4. Seruanes Labourers Any two Iustrces of Peace may licence such as be deliuered out of Gaoles to begge for their fées or to trauel to their Countrie or friendes and may giue licence for fortie days to a Roge that is marked may make testimoniall to a Seruingman that is turned away from his matster or whose maister is deade 14 Eliz. ca. 5 18. Eliz. ca. 3. Begge for sees Roag Seruingme Such two Iustices may certifie at the quarter Setsions that a Citie or Towne Corporate of the Shire being no countie of it self is surcharged with poore togither with the names and number of them that order may bée taken there for their reliefe they maye Licence diseased persōs liuing of almes to trauell to Bathe or to Bucstone for ease of their griefe 14. Eliz. ca. 5. Surcharged with poore Licence to go to Bach or Bucstone By the ouersight of two such Iustices and twelue discréete men of the Hundred and Hundreds adioyning any persō within the Wealde of Kent may make in his own lād a new highway more commodious thā the olde 14. H. 8. ca. 6. Chiungea high way Two such Iustices may once euery yeare appoint Ouerseers for that whole yeare following of cloath to bée made or solde in any towne not being Corporate and maye charge them vpon their oathes to sée execution of some partes of the Statute 3. E. 6. ca. 2. yet in force Appoint Ouerseers of Cloth Within sire dayes after accusation had that any person hath disturbed a Preacher and after his committing to safe custodie by one Iustice of the Peace one other Iustice of that shire muste ioine with him in the eramination of the Offender maye procéede to finde him guiltie by his owne confession or two witnesses and therevpon commit him to the next Gaole for thrée monethes 1. Mar. Parl. 1. ca. 3. quoere of the cotntinuance of this Statute as before Disturbe Preacher Any two Iustices of the Peace of the Countie where any Logwood alias Biockwood shal be founde in whose handes soeuer it bée maye openly burne the same as forfeited 23. El. ca. 9. Logwood VVhat things some twoo Iustices of the Peace may doe out of the Sessions CAP. XXIII IT falleth out many times that the Statute lawes regarding some Iustices aboue others either for the opiniō of the abilitis or learning that they should haue being of the Quorum or for the aduantage and facilitie that they haue to dispatch the affaire by meanes of their nearenesse and dwelling or for the indifferencis that they are likely to vse in the handling of the cause as being neyther of kindred nor alliance to any of the parties doe many times make choise of two Iustices and doe either altogither close the hands of the rest or else do chiefly reposs the trust in these that bée so chosen elected Among those of this kind the Bailement of prisoners worthily craueth the first place whether you respect the weight of the matter that it concerneth or the length of the discourse that it requireth the one tending to desired libertie and the other comprehending great varietie This sauing then or deliuerie of a person out of prison before he hath satisfied the Law is vttered by thrée termes in our Statute lawes that is to saie Bailement Mainprise or manucaption and Repleuine Difference betweene Bailement Mainprise Repleuine And they bée indifferently vsed to erpresse that suertie whiche the prysoner is to finde in such a case For that which Bracton and the statute of W. 1. cap. 15. made 3. E. 1. doe speake of setting at libertie of accessaries by the woordes Replegiari and of letting out by sufficient Pleuin Britton and the Register doe erpresse by finding of Mainprise the Statute 5. E. 3. cap. 8. by letting to Baile that of Marlebrige cap. 27 made 52. H. 3. by tradi in ballium vel Replegtari And the Statute of 1. E. 3. ca. 9. making mention of the writ De Homine Replegiando to bée directed to the garden of a Forest declareth the effect therof to bée that hée should Repleuy the prysoner by good Mainprise The Statute 23. H. 6. ca. 10. that cōmaundeth the Shirife to let out of prison such as he hath arrested vpon Enditements of trespasse vpō reasonable suertie of sufficient persons calleth the same a letting to Baile or Mainprise And lastly 1. 8 c 2. Ph. Mar. c. 13. séemeth to make al the thrée wordes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and of the same significatiō Yet it séemeth that Replevine had his orginall of the word Pledges which denoteth them that vndertake for the partie that hée shall abide to bée iustifyed by Lawe And is vsed in diuerse other cases as in Replevine of Cattell vpon a distresse Replevine of Franchises in a quo Warranto Replevine of Lande vppon a Grande Cape in olde time and Replevijng of the person of a man in case of Villenage and this our case Bailement is deriued from the French tearme Bailler And that also commeth of the Gréek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they both signifiyng to Dehaer into hand For he that is Bailed is taken or kepte out of prison and deliuered as it were into the handes of his friendes as Suerties for him whereof also the worde Manucaptio or Maineprise which is all one giueth good euidence the one mentioning the deliuery the other the receiuing And in this respecte the Booke of the Norman Customes calleth Bailement a liue prison for that the partie is therby become prisoner to his friends that do vndertake for him But Bailmet Mainprise haue bin take to differ in the practse of our common law for he which is properly Bailed by the Iustices of any court hath bene neuerthelesse reputed to be a prisouer ther fril his suerties to be as it wer his speciall gardeins other wise it hath bin thought of him that is let to Mainprise as may be séene by the Booke cases 33. E. 3 36. E. 3. Coron Fitzh 12. 13 7. H. 6. 42 31. H. 6. 10 38. H. 6. 23 9. E. 4. 2 21. H. 7. 33. But at this day how long he shall he adiudged to be aprisoner Erin Custodia Mariscalli Mariscalcioe c. that is Bailed in the Kings Bench the custome of the Courte it selse must rule the matter for it differeth somewhat if I be not deceiued from those opinons Howbeit forasmuch as in our course concerning Iustices of the Peace it is not so néedefull to siay vppon the difference betwéene them as to procéede to disrlose the vse
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
or bicause of Enditement in trespasse and not beyng in for any condemnation execution vtlawrie excommunication suertie of the Peace or commaundement of any Iustice or for beyng a vagabound Or haue taken any Obligation by colour of his office but onely to him seife vpon the name of his office and vpon condition onely to appeare according to the Writte or Warrant Or haue taken for an arrest aboue twentie pence Or if he or any other minister haue taken any thing for making of any Returne or Pannell or aboue foure pence for the copie of a Pannell aboue foure pence for the saide Obligation or for any warrant or precept Or anie Baily aboue foure pence for making any arrest or the Gaoler aboue foure pence vppon the committing to his warde of any person arrested or attached 23. H. 6. ca. 10. If any Shitife or other his minister haue arrested or imprisoned or caused any fine or raunsome or amerciament to ' bee leauied of any person by reason of any priditment or presentment made in the Shirifes turne or lauway witout processe from the Iustices of peace for the same first obtained Dr haue not brought in such enditmets and presentments to the Iustices of the Peace at their next Sessions Shirifes arresting or leauying fine for Enditements in his turne 1. E. 4. ca. 2. If any Shirife or any his ministers haue entered into his booke any plaintes in any mans name not being present in the Court either in his owne person or by sufficient and honest Attourney or Deputie Fr haue entred anye moe plaintes than the plaintise supposeth that he hath cause of action for or haue leaused the Shire amerciaments without booke endensed betwene them and two Iustices of the Peace Dr if the Baylie of the Hundred haue made default in warning or executing any warrant against any Desendant in the Shirifes Court Shirifes entring of plaintes and leauying amercements Bailie seruing warrant 11. H. 7. ca. 15. If any Shirife or his minister haue leauied any the debtes of the â—uéene without shewing to the parties the Cstreates of the same vnder the Seale of the Creates Shirifes must shew the Estreats vnder the Eschequer seale 42. E. 3 ca. 9. If any Shirife or Gaoler have denied to receaue felons by the deliuerie of any Cons tables or towneshippes or haue taken any thing for receiuing of such Shirife and Gaoler 4. E. 3. Ca. 10. In liberties the Baylifes Stewards and other ministers there haue like fées and punis hmentes for extortion as Shirifes and their minister haue out of liberites 27. H. 8. cap. 24. Fees in liberties If any Corner haue refused to doe his office vpon the views of a beade body by misadventure without taking any fée therefore Coroner â— H. 8. ca. 7. or haue taken vpon the view of the bodie of a man flayne or murdered aboue thirtéene shillings foure pence of the goods of the flaier or murderer if he had goods or otherwise of the towne where he was flaine in the day time and was suffered to escape 3. H. 7. ca. 1. If any Didinary or his Scribe or Register haue taken moe or greater fées for the probate of a Testament or for Letters of administration than he ought to take that is to say fire pence for the Scribe for writing the probate of a Testamente that shall be brought written in parchment and likewise fire pence for the Administration where the goods of the Testator or Intestate be not aboue fiue poundes Ordinary If the goods be avoue fius pounds and not aboue fortie poundes then two shillings fire pence for the Drbinarie â— twelue pence for the Scribe If they excéede fortie pouds then two thillings fire pence for the Drdinarie and two shillings fixe pence to the Scribe or else one penny for euery ten lines at ten inches length at the Scribes election the like shall be giuen for euerie copie of a Testament or Inuentarie or else after the rate of lines as before 21. H. 8. ca. 5. If the Drdinarie haue cited any man to beare witnesse in the Spirituall Court Dr haue exacted any Dth in any cause other than Testamentarie or Matrimoniall If any Parson Vicar or Curate haue taken aboue iiâ— pence for entring in the Church booke the licence of a sicke peron to eate sleth vpon the Wednesdayes 5. Elizab. ca. 5 Dr aboue two pence for registring of a Testime niall of any seruaunt departing from one place to an other Parson Vicar Curate 5. Elizab. ca 4. Quaere If the taking of Mortuaries or corps pres ets against the Stature 25. H. 8. C. 6. be extortioÌ„ or no. If the Clearke of the Peace haue taken aboue twelue pence for the inrolling of the bargaine and sale of any lande not excéeding fortie shillings by the yere or aboue two shillings fire pence if the lande excéede that value by the yeare 27. H. 8. ca. 16. Clearke of the Peace Dr if the Clearke of the Peace haue taken aboue two shillings in all for any licence and Recognusance of a Badger Drouer Kidder or Lader and for the registring therof 5. Eliz. ca. 12 Dr haue sake aboue twelue pence for a Recognusance of him that tabath a Roge into his seruice for one yeare 14. Elizab. ca. 5. If the Clearke of any Iustice of Peace haue taken aboue twelue pence for any Recognus ance of an Alehouse kéeper or Tippler 5. E. 6. ca. 25 If the Clearke of the market hath taken any commen fine to dispence with 〈◊〉 hath ridde with â—â—oe than fire horses or hath taried longer in the countrie than the necessity of his businesse required Clearke of the market 13. R. 2. ca. 4. If any Officer haue in any Toâ—vne taken Stauage or Shewage the is to say any thing for the shewing of wares or Marchaundise that be truely custonied to the Queene before 19. H. 7. ca. 8. If the Maior of this Towne of Maidstone and so of other Townes in other Shires haue taken aboue f. 〈◊〉 for sealing a Bushell measure or aboue ob for any other measure or aboue f. D. for sealing C. weight or aboue ob for halse C. weight or aboue a farthing for a my lesse weight 7. H. 7. ca. 3 11. H. 7. ca. 4. Sundrie other sees of Officers there be as of Alnageours Gaugeors Sergeaunts at Aimes and whereof there is not so common vse therefore I omit them If any Purueyour of the Quéenes Maiesties haue taken any thing of the value of fortie shillings or vnder without ready payment therefore made If any Constable or Borsholder haue not vpon request made assisted the owners to refist the purueyours so taking And if any of the Quéenes Officers haue procured any to be arrested or vered for such resistance 20. H. 6. ca. 8. Purueyours If any Purueyour haue taken or selled any timber trées méete to be backed but onely in barking time except it were for the
shooting therein or haue not for euerie man childe in his house betwéene seauen yeres and seauentéene of age a Bow and two Shaftes and for euerie such being aboue seuentéene yeares a Bowe and foure Shaftes or haue not brought them vppe in Shooting If any man vnder the age of four and twentie yeares haue shotte at standing prickes or being aboue that age haue shot at any mark vnder eleuen score yards with any Prickeshaft or Flight Archerie If the inhabitants of any town haue not made and continued their Buttes as they ought to doe Buttes If any Bowier haue not for euerie Bow that he made of Ewe made also four others Bowes of apt wood to shoote in Or haue not solde his Bowes for all ages at their due prices If any straunger borne not being a Denizein haue vsed to shoote in a long bow without the Quéenes licence or haue conueyed out of hir Maiestries dominions any long Bow or Shaftes without such licence Bowiers 33. H. 8. ca. 9. If any temporal person hauing estate for life in fréeholde landes or tenements to the value of 200. ◠by yeare or vnder and not aboue 400. ◠Armour Or not being other wise charged and hauing fées annuities or copiehold lands for life to the value of 30. ◠or aboue or hauing goods to the value of 10. ◠or vpware haue not and kéepe not in a readinesse suche Horses Geldings Weapon armour and other furniture for the wars as after the proportion of his abilitie he ought by the Statute thereof made to haue and kéepe 4. 5. Phil. Mar. ca. 2. If any temporall person of full age whose wife not being diuorsed nor willingly abseting hir selfe from him doeth weare anye Gown or Peticoate of silke or any Veluet in hir kirtle or in any lyning or part of hir Gowne other thā in Cuffes or Purfles or any Frenchhoode or Bonet or Veluet with any habiliment past or edge of golde pearle or stone or any chaine of golde about hit neck or upon any hir apparell haue not founde and kepte a light Horsse furnished excepte he haue bene otherwise charged by the Statute to finde Horsse or Gelding 33. H. 8. ca. 5 4. 5. Ph. Mar. ca. 2. Horsse for apparell If the Inhabitauntes of anye Parishe Town or Borough haue not or kéepe not such common armour and furniture for the warres as hath bene appointed for them by the Commissioners thereto assigned 4. 5. Phi. Mar. ca. 2. Commune armour If anye person being generally or speciallie commaunded to Muster before anye hauing auctoritie for the same haue without true and reasonable cause absented him self or haue not brought with him in a readinesse his best furniture of array armour for his own person Musters If anye person auctorized to Muster or to leuie men for the Quéenes seruice in warre haue taken anye rewarde for the discharge or sparing of anye person from that seruice or if anye person hauing charge of meanne for warrefare haue not paide to his souldiours their whole wages conduict and cote money or haue for anye gayne licensed anye of them to depart out of the seruice 4. 5. Phil. Mar. ca. 3. Captaines If anye Souldiour seruing the Quéene in hyr warres haue giuen awaye wilfullye purloyned or pur awaye anye Horse Gelding Mare or harnesse wherewyth he was set foorth Souldiours 2. 3. E. 6. ca. 2. 4. 5. Phil. Mar. ca. 3. If any person haue conueyed solde or giuen into any place beyond the Sea out of the Quéenes dominions or to any Scottisheman to be conueyed into Scotlande any Horsse Gelding or Hare aboue tenne shillings price wythout the Queenes licence vnder hyr greate Seale or priuie Signet vnlesse it were to serue the Quéene in hir warres Couney Horsses c. 1 E. 6. ca. 5. If anye person haue putte to féede in anye Forest Chace Moore Marish Heathe Common or waste grounde within this shire where anye Mares are vsed to be kept anye stoned Horsse being aboue two yeres olde and not being fouretéene handefuls highe betwéene the lowest parte of the hoofe and the toppe of the wyther If anye such Forrest or groūds haue not bene yerelye driuen within 15. dayes after Michaelmas by the owners or officers thereto appointed Horsses and Mares for breede 32. H. 8. ca. 13. If watches haue not bene made uppon the Sea Coastes in suche places and wyth suche number of people and in such maner as it was wont to bée Sea Watch. 5. H. 4. ca. 3. The Statutes of leuying the wages of the Kinghtes of the Parliament made 23. H. 6. cap. 11. hath no gret vse Parliament Note also that these Statutes following are to bee openly published at any Sessions of the Peace viz. The Statutes 36. E. 3. cap. 2. 3. 4. shall bee proclaimed by the Iustices of Peace euerie yeare and thereof enformed the people Purueiours 23. H. 6. cap. 2. Alformer Statutes for victualers being in force shal be proclaymed two times yearely in the Sessions of Iustices of the Peace Victualers 23. H. 6. ca. 13. The Acte for Archerie 33. H. 8. ca. 9. muste bee proclaymed at the seuerall Sessions of the Peace Archerie Of the Enditementes and Presentments giuen by the Iurours and of the Matter and forine and receiuing and reiecting of them CAP. V. THe preparatiō to this Enquirie thus made let vs also looke vpon the performaunce of the same The vnderstanding or knowledge which the Iustices of the Peace do take by the trauel of these Enquirours is by the mean of their reaport put in writing and commonlye called an Enditement or Presentment betwéene the which two wordes howsoeuer they be confounded in common spéeche me thinketh that there doeth easilie appeare a certaine difference Presentmet For I take a Presentmente to bée a méere denuntiation of the Iurours themselues or of some other Officer as you shall hereafter heare wythout anye other information and an Enditemente to bée the Verdite of the Iurours grounded vppon the accusation of a thirde person So that a Presentment is but a declaration of the Iurours or Officers without any bill offered before an Enditement is their finding of a Bill of accusation to bée true Enditemet The òne séemeth to come of the Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I accuse the other of the Frenche Presenter to offer vnto a man or to set beefore him But taking them as others doe lette vs consulte wyth M. Marrowe and others that wée may learne of them what things bée requisite to make a good Enditement For the Iustices of Peace ought to haue an eye vpon the Enditementes taken before them and therefore they vse to command that the Enqueste shall take no Billes but suche as the Iustices themselues hane firste perused Howbeit if the Enquest do the contrarie it is good ynoughe so long as their bils doe
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
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
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
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
Et Adam Martin qui pro Domina Reginae in hac parte sequitur similiter c Ideo veniat inde Iurata coram Iucticiarys dicta Domina Reginae ad pacem in comitatu prudicto conseruandam asignatis c. ad Sessione pacis apud Welles c. die Martis proxime post Epipbaniam Domini tunc proxime futuro tenendnm Processc to aynsweare Trauersc Iurie Et qui c. Adrecognit c. Quia tam c. Idem dies datue est tam prasato Adam Martin qui sequitur c. quám preafatis I. L. R. M. T. L. c. Adquas quidem Sessiones pacis tentas eapud W. preadict in comitatu pradico die c. Day giuen Coram DomiHo T. P. G. N. H. P. milit socijs suis Iucticarijs dictea D. Reg. adpacens in comiteatu preadicto conseruandam Necnonad diuersas felonias traÌ„sgressiones alia malefacta in codem comitatu perpetreatea audienda terminanda assignatis venerunt tam prafatus A. Martin qui sequitur c. quádm prtfati I. L. R. M. T. L. in proprijs personis suis Et Iuratores praedicti per vicecomitem Comitatus prtdicti ad hoc impanellati exacti viz Iacobus F. Gen. I. G. c. similicar veneunt qui ad veritatem de premissis dicendam trialti inrati dicunt super Sacramentum suum quod pradicti I. L. R. M. T. L culpabiles sunt eorum quilâ—ber culpabilis est de transgressione contempiu riot to pradict is in Indictamento praedicto superim specificatis modo forma prout superius versus eos supponitur Ià o concessuÌ„ est curtam quod praedicti I. L. R. M. T. L. capiantur ad satistaciendum dicta D. Reg. de finibus suis casione transgressionis contemptus riottipraedictis Verdite Iudgement Capias pro fine Qui quidem I. L. R. M. T L. adtunc ibidem praesentes ibidem in Curia pet ierunt se ad ficum dicta Domina Reginae occasione pradicta admitti Et indeponunt se seperatim inmisericordiam Do. Re Et assatur finis eiusdem I. L. per Iucticiarios praedictos ad 3. â— 6. â— 8. â— Et finis einsdem R. M. Assessatur ad xx â— Ponunt se in miscricordised Reginae Fine assefsed Et assessatur finis einsdem T. L. ad quinque hbras bona legalis moneta Anglia ad opm vsum dictae Dominae Reginae And this is to bée noted that this Recorde was after ward remoued into the Kings BeÌ„ch and that the paetie was dismissed there for want of those worder in the Enditemente that you sée vnderlined in other letters in certaine partes of the same Enditement voide Of Triall vppon Arraigne went and there withall of Felonies CAP. XIIII ARraignemcnte â— Trauerse doe not so much differ in the nature or substaunce of the Triall it selfe as in the fame Difference between Trauerse and arraignment For as there is no Enditement Trauerfable by the partie but that he may also bée arraigned vpon it So like wise is there no Editemet where vpon the partie may be arraigned but that he may also if he will tender his Trauerse vnto it The difference then staÌ„deth in this that commoÌ„ly he which is to be arraigned commeth in by compulson of bonde or Processe and is touched with matter concerning life and death or some suche heynous offence and pleadeth generaliye Not Guiltie to the Enditement Commonly I saye bycause althoaghe hée come in fréeiyc r bée endited of some inferiour offence yet hée maye bée neuerthelesse arraigned neyther is hée of necessitie driuen to pleade Not Guiltie whiche runneth to the facte but maye if the case wyll suffer pleade a Iustification 02 matter in Lawe thoughe it bée in case of Felonie It féemeth to haue horowed the name out of the worde Arraye whych is the pannell or Iurie bycause he that is arraigneo must bée tryed by them béeing first calle sworne and tryed in order for that seruice If I shoulde rippe dand prosecute the whole learning that belongeth to arraignement I shoulde but Acum agere and yet not doe it halfc so well as you maye elsewhere finde it and therefore referring yon wholifor that matter to the learned labour of IusticeStanforde I will onIy offer to consideration a point or twaine whereof it speciallye behoueth the Iustices of Peace to be aduertised and then passs oner to determining Felonies not triable before luctices of the Peace The firste thing ie that there be sunorye Felonies ano sme Cnditementes of Felonies the which as it séemeth to mée Iustices of the Peace can not heare or trie at all the seconde that in the handling of the verie Felomes wherewith they maye deale there be yet certaine considerations peculiar to the Iustices of the Peace only and not common to them with other Iudges ouer Felonies Iustices of the Peace can not heare the triall of the Felonie for vsing Witchcrafte or Sorcerie wherby any man is hurt in bodye or goodes bycause it is made Felonie by the Statute 5. Elizabeth cap. 16. after a former conuiction onely the power whereof is not committed to the Iustices of Peace and so they can take no knowledge of the Recorde therof not being before them selues Of the same sorte is that Felonye for Forgerie by the Statute 5. Elizabeth cap. 14. after conuiction for a former offence and that Felonie after a former conuiction also for slaunderous speache againste the Queenes Maiestie in offence of the Statute made 23. Eliz. cap. 2. Neyther doth the hearing and tryall of that felonie of a seruant taking the goods of his maister after hys death belong to the Iustices of Peacs in the Countrie bycause they can not take notice of his defaulte in the Kings Benche by whych default it firste beginneth to bée felonie by the Statute 33. H. 6. ca. 1. The like thoughe for vnlike reason is to bée sayde of the Felonious embeseling of anye the Recordes of the Courtes at Westminster agaynsre the Statute 8. Henrie 6 cap. 12. And of an Acceslorie in one Countie where the Felonie was done in an other Countie vppon the Statute 2. 3. Edwarde 6. cap. 24. bycause the iurisdiction ouer these Felonies is not comp mitted to the Iustices of Peace but remitted to other Iudges by the verye same Statutes Furthermore they can not make Triall of suche as were endited of Felonie befor the Coroners or before the Iustices of Gaole deliuerie or of Oyer and Terminer if the same persons bée not Iustices of Peace also in the same Shire so as the Enditements bée vnderstoode to be taken before the as before Iustices of the Peace for their CoÌ„mission and auctoritie ertedeth only to such as stande endited before themselues or former Iustices of the Peace or the Shirife in his Turne Thus farre of the first point Touching the second it séemeth by Marr. and
paynes of deathe 33. H. 8. cap. 1. And that Seruant Workeman or Labourer that shall so wilfuly and maliciously make assault or affray vppon his Maister or Mastresse or other that then shall haue charge ouer him that he shall deserue further punishment than the imprisonment of one whole yeare may be put to such further open punishment so as it ertende not to life nor limme as the Iustices of Peace in open Sessions shall thinke conuenient 5. Eliz. cap. 4. Their prescribed Iudgements bée of sundry formes according to the seuerall natures of the offences whereof they haue to iuuge which bée diuers also Prescribed Iudgements For vpon Murders and other Felonies they must pronounce the vsuall Judgement of Felonie bpon such as bée ccnuicted of Trespailes Contempts Riots and such other offences wherevpon no certaine for faiture is layed by Statutes they must adindge that they bee taken and raunsomed and so to satisfie the Queene for their offences by making their tynes and vppon offendours against such penall lawes as doe inslict any certayne payne they ought to adiudge as the Statutes them solues doe direct their course For vpon conuiction of the first offence against the Statut of for stasling 5. E. 6. ca. 14. they must awarde imprisonment for two monethes without Baile or Mainprise and the forfaiture of the value of the goods so had vpon the second attainder or conuiction such imprisonment for sir monethes the double value of the goods and vpon contuition of the thirde offence they must giue sentence that the offender bée set on the pillorie and to forfaite all his goods and further to haue imprisonment of his bodie during the Queenes pleasure Forstalling Against him that shall bring or procure to bée brought into any shippe any hinde of shée being aliue to bee conueyed out of any the Queenes dominions they ought for the first offence to adiudge that he shall loose all his goods to the Queene and suffer imprisonment by the space of one whole yeare without Baile or Mainprise that at the years ende he shall in the ful market of some market towne haue his left hand striken off and naylco vppon the openest place of such market Conucy sheepe 8. El. ca. 3. Against him that is conuicted for the vnlawefull taking or sleaing of any Déere or for such taking of any Dawke or egges of Dawke contrary to the Statute 5. El. ca. 21. they must adiudge treble damages to the partie grieued three mone the imprisonment of the bodie of the offendour and after that expired to finde suerties of his good behauiour for seuen yeares after or else to remaine in prison vntill he shall finde suche suerties during those seuen yeares Taking of Deere or Hawkes c. And vpon Certificat made at the next quarter Sessions of the Peace by two Iustices of the Peace the one of them being of the Quarum against him that shall obstinately kéepe an Alehouse contrarie to the Statute 5. E. 6. ca. 25. the Iustices of the Peace ought in the open Sessions to assesse the fine of twentie shillings the which I do purposely rehearse because they are there warranted to Aslesse the fine without processe first made against the offendour vnlike to the common order of assessing fines as you shall sée when I come to that matter Alehouse It were more laboursome than profitable to runne ouer the diuerse Iudgementes that Statues doc appoint and it may suffise in this place to haue giuen this rast of these few and therefore I will in hand with Execution Of the Processe for the Fine of the Queene and of the assessing thereof and of Estreating for the Queene CAP. XVI SEeing that Execution is but a performance of the Iudgement I shall not néede to make long enumeration of the sortes of Executions which are within the power of the Iustices of Peace For bes ides that by the knowledge of the one the other is knowen al 's o the Ius tice of the Peace them s elues haue in many cas es perfourmed their dutie in both when they haue in the one pronounced that which is due to the offendour Howbeit for as muche as that which they are to doe by way of Execution offereth profite either to the Queene or to her ubiected and that which pertayneth to the Queene is brought about eyhter mediatly first by Processe or Imprisonment for the Fine then by Assessing of the Fine and lastlye by Estreating the same or else immediatlye by Estreating of the penaltie and forfeyture I will first bestowe a fewe wordes vppon the Fine and Estreates for the Queene and then speake of the benefite that belongeth to the subiect Execution for the Queene Where the Conuictian is for Trespasses against the Peace Riots and such other Contempts and offences against the Commission or statutes for the which no certayne Fine is appoynated there as you haue séene alreadie the iudgement is That the partie shall be taken to satisfie to the Queene her Fine And thereupon the capias pro sine and if the partie can not be founde other Iudiciall Procsle goeth out till he be Vtlawed vnlesse it be in a verie fewe cases where by the words of the Statuts them selves they may proceéede to assesse the Fine in the presence of the parties without calling them by any Processe for so it standeth in the Statute of Alehouses 5. E. 6. cap. 25. As I tolde you euen now and in the Statute of High wayes 5. Elizab. ca. 13. But if the partie be brought in then is he aprisoner and then are the Iustices of Peace by their discretion to assesse the Fine and so estreate it and deliuer him For in no case as J take it can they of them selues leuie any Fine or forfeiture due to the Queene insomuch as not they but the Shirife is the accomptāt for all such matters The imprisonment that I speake of is only to the ende that the Prince may haue the Fine and therefore vpon the payment thereof or vpon pledges found by Recognusance to pay it the offendour ought to be deliuered Imprisonment 2. Mar. Brooke imprison 100. Hereof also the Fine tooke first his name of the Latine Finis because it maketh an and with the Prince for his imprisonment for the offence committed against his Law Difference betwene Fine Amercement And in that respect chiefly doth it differre from an Amercement For when the offedor hath not so déepely trespassed that therby he deserueth any bpdly punishment at all as if he be nonsuit in an action or do commit any such like fault the is sayd to fall into the Kings Mercie because he is therein mercifully to be dealt with and by the Great charter ca. 14. that Amercement and summe of money which he is to pay for the same ought to be asseased and afféered by the good and lawfull men of the neighbourhoode which also Glanuil lib. 9. cap. 11. affirineth to haue
bene the Law of the lande long before that time saying that Misericordia Domini regis est qua quis per inramentu legalium hominum de Viceneto eatenus amerciandus est ne aliquid de suo honorabili coÌ„tenemento amittat But where the offence or Contempt falleth out to be so great that it asketh the imprisonment of the bodie it selfe and that during the Kings will and pleasure then is the partie to redéeme his libertie with some portion of money as he can best agrse with the King or his Iustices for the same which composition is properly called his Fine or his Raunsome in Latine Redeptio as may be plainly séene by the Statue of Marleb 52. H. 3. ca. 1. 2. 3. 4. And by the Statute called Ragman and diuerse other auncient Statuts But of later time the Iustices ahue in sonie cases of Amercements also vsed to assesse and rate them selves without any other helpe As where the Dssicers of their Courts haue offended 33. H. 6. 54 34 H. 6. 20 Lo. 5. E. 4. 5. which séemeth to make an other difference betwene the two wordes But because neither of these be strictly obserued in our common spéeche nor yet in the vndersranding of the Statutes of later time I will no longer stand vpon it Nowe then if the offence be Fineable by generall wordes onely without speaking of any Fine or without shewing by whom it shall be assessed for so it is commonly in the elder Statutes that do prohibite any thing to be done there the assessement thereof belongeth to the Iustices before whome the Conuiction is lawfully had Fine by diseretion of the Iustices Again if it be Finable by these or such like wordes at the Kings will or At the Kings pleasure as you shall find it in many Statuts then also the same Iustices before whom the Conuiction wag shal assesse the Fine at their wills and pleasures for say the Bookes 2. R. 3. 11 18. H. 8. 1. the King in all such cased bttereth his owne will and pleasure by the mouthes of his Iustices And yet some Statutes vsing playner spéech do namely referre the Fine to the discretion of the Iustices of Peace For they may after Conuiction before them Fine by their discretions such as take Salmons or destroy the Fry of Fishe in Kiuers against the Statutes Destroy the Fry of Fish W. 2. cap. 47 13. R. 2. c. 19 17. R 2. c. 9. And as this is sayd of the Fine so sundrie Statutes doe giue the same power to the Iustices of Peace in the execution of the corporal punishment it selset as you haue already heard in the case of counfeiters of false letters or tokens and may reade in oter the Statutes at large For I labour to be short and therefore I giue but an assay of eche thing knowing that these Iustices will not procéede to the execution of any Statute without the sight of the Statute it selfe howsoeuer they should finde it alleaged by me And in these cases as in cases of Amercementes the Iustices ought to take héede that the Fines be reasonable and just hauing regrade to the quantity of the trespase and the causes for which they be made as it is commaunaded by the Statute 34. E. 3. ca. 1. This Fine or peine awarded by the discretion of the Iustices of Peace shall doe the more good both to the Prince in profite to the people in example and to the Iustices themselues in credite if it bée pronounced-at the Benche openly as it ought to bée and not shuffled vppe in a Chamber or Corner secretely as in some places it hath béene bsed to bée Fine to be assessed openly I haue heard that in cases where the Statutes doe appoynt a certayne forfeiture as fiue pounos or fenne poundes c. yet the prartise is to mitigate the same by discretion if so bée that the partie will come in and put himselfe in gratiam Reginae without playne confession of the faulte as I have folde you before Mitigatioa of the forfeiture of a Statute So that the Fine shall bée small where the fault was great and the penaltie of the Law it selfe not small But this maner of doing is in my mind so voide of saunde reason that I can not recoÌ„mende it to the Iustices of Peace but doe rather condemne it as a mockerie of the Law and I finde that sundry Statutes fearing belikw some suche thing haue specially preuented it comnaunding that Iustice of the Peace shall assesse no lesse Fine than is in those Statutes them selues before hande appointed Such is the Statute 17. E. 4. cap. 4 of Tiles the Statute 33. H. 8. ca. 6. of Crossebowes and hand Gunnes and the Statute 5. E. 6. ca. 25. concerning Alcheuses and such others may be found if the Books of Statuts be well perused But hitherto we haue not sufficiently performed that which the Commission of the Peace hath in these wordes Saluis nobis amerciamentis aliâ—s ad nos inde spectantibus and therefore it is not enough to haue assessed the Fine but we must also disclose the meanes by which as well this Fine that is reduced to certainetie by the discretion of the Iustices as all other Amercementes those other penalties and forfeitures that are certainly prefined by wordes of the Statutes may be leuied and brought into the Princes coffers Estreating for the Qucene Order was taken by an auncient Statute intituled de Scaccario and noted to be made 51. H. 3. that all Iustices Commissioners and Enquirers whatsoeuer shoulde deliuer into the Eschequer at the feast of S. Michael yerely the extracts of Fines and Amerciaments taxed and mafe before them that the King might be duely aunswered thereof and the same in effect was after ward confirmed by an other Statute intituled De formamittendi extreta ad Scaccarium which although it be sayd to be made 15. E. 2. Yet forasmuch as it mentioneth that the former Statute was made in the time of the father of that King which made the later it must néedes be that either the one or the other of them was made in the time of King E. 1. No doubt but this ordinance doth extende to the Iustices of Peace as a man may easily gather by words in the Statute of Labourers 5. Elizab. ca. 4 and the act of Sewers 13. Elizab. ca. 9. and other Statutes But because it is verie generall and hath nothing peculiar vnto them from other Iustices I will descende to lower times and looke there for nearcr helpes The Statute 12. R. 2. ca. 1 had allowed to eucrie Iustice of the Peace foure shillings by the daye for the time of their Quarter Sessions to bée payed by the handes of the Shirife of the Fines and Amerciamentes comming of the same Sessions But because it was soone after séene that it was a great delay to the Iustices of Peace in this paymente to expecte the leaying of these Fines
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