4. Put in the Stocks for two dayes and one night such a one as he in his discretion shall think fit and shall command to woâ—k in the Harvest time for the saving of Corn or Hay 5. Send to the Goal or house of Correction common Labourers that will not work for the wages set down by the Justices and others that have nothing but their work to live by and will not work for reasonable wages 6. Hear and end any difference between the Clothiers and their Workmen Upon 4. Ed. 4. 1. 7. Send for and commit to ward him that refuseth to serve as an Apprentice according to 5 Eliz. 4. 3. There must be two Justices to do any of these following things 1. To bind to the good behaviour and to appear at the Sessions or to send to the Bridewell such as having no ability to live by but their work and live out of Service and have been by the Justices limited to a time to put themselves into Service and have not done it within the time 2. To punish the Servant by Imprisonment that is retained according to and in the Trades named by the Statute and doth refuse to serve till he give bond to serve or to punish him so for any miscarriage in his Service or to punish him for his going away before his time be expired or to punish him for his going away without giving warning when his time is ended 3. To imprison such Women above 12 years old and under 40 years old unmarried as are compellable to serve by the Statute and refuse to go to service till they give bond to do it 4. To lay the 40 s. Fine upon the Masterâ— for putting away his Servant within his time or at the end of his time without giving of him a quarters warning 5. To punish the Master by the 5 l. Fine and Imprisonment ten dayes for giving of more wages then is set down by the Justice upon the Statute And to imprison the Servant 21 dayes for the taking of that wages 6. To put in Prison for one year or for lesse time the Servant that upon his own Consession or the oath of two witnesses before them is proved to have made an Assray or assault on his Master Mistresse or Governour 7. To inflict the Fine of Five pound upon the Master that retaineth the Servant without a Testimoniall according to the Statute 8. To commit him to Prison that doth hire a Servant for lesse time then a year 9. To imprison a Labourer and Fine him 5 l. for departing from the Work he hath undertaken against the will of the Master before he hath ended it 4. But our Advise to the Justices of Peace herein is That they be very Caveat to the Justices cautious what they do out of Sessions these things upon this Statute and that they use not some of my Warrants as to this I have given in the Clarks Cabinet See chap. 7. Sect. 6. For there is a Clause in it That every Retainer and giving of wages contrary to the true meaning of the Statute shall be void And there are few Retainers according to the Statute Besides there is some doubt either in the power and way of Conviction of the Offender or levying of the Forseiture for the Offence upon most of the branches of the Statute And yet this perhaps a Justice may adventure to do If a Labourer be in his presence and idle and disengaged and he refuse to work in a time of need in the Harvest to commit him according to the Statute And such as have had time set them by the Justices wherein to set themselves into a Service and they do it not and the parties be before them and consesse it and are willfull there the Justices may Proceed against them according to the Stitute And in case of purloyning by Servants from their Masters and where the Contumacy and miscarriage of Servants towards their Masters is very fowl there they may adventure and so may one Justice perhaps by the very Common-Law and of his own discretion to bind him to the good behaviour and to appear at the Sessions And for differences that arise between Masters and Servants and Apprentices any Justice may of his discretion labour to set them agreed and by consent of both parties order any thing between them And in some Cases where he seeth a stubbornnesse bind over the party to appear at Sessions But other wise the safe way is to refer these matters to and to have all these offenders punished at the Quarter-Sessions For we do not perceive that it can well be done any where else 5. Every Justice not hindered by Sicknesse or other good cause is to be present at the Taxing of wages under pain of 10 l. by 5 Eliz. 4. 1. Iac. 6. 6. As to a Clothier or other that Clothiers for wages refuseth to pay to his Workmen the wages set down by the Justices at the Sessions In this case two Justices of the Peace one of them of the Quorum may upon the Consession of the offender himself or the proof thereof but doth not say upon oath of two lawfull and sufficient witnesses before them send their Warrant to the Constables of the place where c. to levy the 10 s. Forfeiture upon the offender by distresse and sale of his goods Upon 1 Iac. 6. 7. If any Servant or Apprentice shall imbesill or steal away the goods of his Master any one Justice of Peace if by circumstances the case comes to a plain Felony may deal with him as he doth with other men in cases of Felony according to the nature of the case But for this see 21 H. 8 7. 33 H. 6. 1. and Dalton's Iustice of Peace page 95. and 320. See the Cabinet for the Presidents to some of these things in Chap. 13. 8. Poor people that have many children Binding poor children Apprentices The Overseers of the poor with the consent of two Justices may bind them Apprentices And if their Parents hinder their binding or being bound entice them away the Parents may be sent to Bride-well by the Resolution of the Judges 1633. But this we conceive must be by the Justices in and not out of their Sessions 9. If any such person as by the Servants to service Bridewell 5 Eliz. 4. are appointed to be in service as one brought up in husbandry under 30 years old or a Maid-Servant brought up in any of the Trades named in the Statute live out of Service not having visible means to maintain themselves without their labour and refuse to serve as an hired servant by the year and he or she hath been warned by two Justices to put her self into service by such a time and doth not such person may be sent to the house of Correction Resol of Iudges 1633. But this we conceive also must be done by the Justices within and may not be done by any of the Justices out of
Perry and to take his Recognisance for the keeping of good order and this they must certifie it into the Sessions or forfeit five marks Upon 5 and 6 Ed. 6. 25. 9. There must be two Justices to License License Labourers and others to be in an Ale-house tipling Upon 1 Iac. 9. 10. There must be two Justices and one of them of the Quorum to discharge or put down an Ale-house-keeper at their own discretion Upon 5 6 Ed. 6. 25. 11. The oath of the party confessing he hath been tipling or drunk in an Ale-house shall be sufficient to convince the Ale-house-keeper of his offence by suffering tipling c. 21 Iac. 7. For Inne-keepers and Victuallers dressing of meat in the Lent see Lent SECT 29. About a Libeller or Slanderer and Libell c. AS to this kind of offender and his offence which we take now to be clearly within the words of the Act against Challenges forbidding all provoking Words and Gestures and so punishable thereupon by way of Indictment in the Sessions But there is this more in it As to one that hath his hand in the Contrivance procuring or publishing of a Libell especially if it be against a Magistrate Or one that doth use commonly libelling against others or is a common Slanderer or Tale-bearer and his Tales and Slanders are of dangerous consequence and do much mischief In such a case as this any Justice may doubtlesse out of the Sessions take Informations hereof by good witnesses against him and if he find it so bind him to the good Behaviour and to appear Good Behaviour at the Sessions and if he refuse to be bound send him to Goal till he so do See Chap. 3. Sect. 4 SECT 30. About Licenses 1. ANy one Justice of Peace dwelling near the place where any poor Mariner or other person Mariner having suffered Shipwrack shall land may give a Testimonial under his hand Testimoniall of his case and thereby license him to passe the next way to his place of birth or last dwelling and to ask relief as he goeth and limit him a convenient time for it upon 39 Eliz. 4. 17. 1 Iac 25. 2. One Justice may under his hand and Seal license Labourers to go out of Labourers one into another Country to work at harvest-Harvest-work in the Harvest-time Upon 5 Eliz 4. 3. One Justice may license a man upon good cause to travail or to do Lords-day a work of mercy or necessity on the Lords-day Or to come in later on the Saturday night or go out earlier on the Munday morning than the Lawes do prescribe for this or to grind at a Mill or be in go or send to a common Ale-house Wine-Tavern Tobacco-house or to have or use a Coach Sedan Horse-Litter Boat or Horse on this day Upon the Act of 6th of April 1654. 4. There must be two Tustices of the Church-Wardens and Over-seers to set up a Trade for the Poor Peace and one of them of the Quorum to give allowance and license to Church-Wardens and Overseers of the Poor of a Parish to set up a Trade there for the better Relief of the Poor there Upon 43 Eliz. 5. So to set up an Ale-house See To sell Ale Ale-houses 6. Any two Justices of Peace may license poor people to travail to Bath or To travail to Bath Buxton for cure of their diseases at their own charge Upon 5 Eiz 4. But no Justices can license poor people to begg but in the Case before of a Marriner To begg 7. There must be two Justices of the Servants Peace to license Servants to depart out of their Masters Service Upon 5 Eliz. 4. 8. There must be sour Justices to Recusant joyn with the Lievtenant to license a confined Recusant to go about any speciall businesse upon 3. Iac. 5. and 35 Eliz. 2. See for Presidents of Licenses in most of these Cases in the Cabinet Chip 2. 8. SECT 31. About the Lords Day AS to this thing and the Justices power herein out of the Sessions these things are to be known 1. That as to such as use or meet Sports for Bear-bayting Bull-bayting Enterludes Common-Playes or other unlawfull pastimes whatsoever in or out of their own Parishes on the Lords Day In this Case any one Justice of the Peace may upon his own sight hereof the Confession of the party or the Oath of one witnesse which he may administer send his warrant under his hand and Seal to the Constable or Church-Wardens of the place where c. to levy of the goods of the Offender by way of distresse and Sale thereof rendring c. the 3 s. 4 d. Forfeiture The Act goeth further and saith That in default of Distresse the Party Offending be set publiquely in the Stocks three hours And these words albeit they are so penned that they are ambiguous whether they shall be understood to be a part of the warrant to be made under the hand and Seal of the Justice or of a new power in case of lack of distresse And it is given to no body in certain yet that the Justice of Peace hath power to do it and we conceive the Justice may safely make out his Warrant so to do And therefore in this as to this branch that he may safely follow our President in the Clarks Cabinet chap. 4. Warrant 1. But no man may be punished upon this Law of 1 Car. 1. unlesse he be questioned for his offence within a Moneth after it is done And the Justice in this case may if he please reward the Informer with a third part of the Forfeiture See chap. 7. Sect. 6. Numb 24. 2. As to such as use or be at Wrestlings Ringing of Bells for pleasure Masques Wakes Church-Ales Dancing in their own or in other Parishes on this day In this Case any one Justice of peace may upon his own view thereof the confession of the party or proof thereof by the oath of one Witnesse send his Warrant under his hand and Seal to the Constables and Church-wardens of the place where c. If he be above 14 years old which the Justice in the taking of his information must inform himself of to levy of his goods by distresse c. to the use of the poor of the place c. 5 s. And if he be under 14 years of age then so to levy of the Governour of the Offender 12 d. And then the Act is penned further in such like words that the Offender shall be put in the stocks three hours as the last Act was penned and is likewise doubtfull And therefore we here leave the same advise with the Justice as we did in the former Case that he may give warrant to put in the Stocks for three hours Act. 6th of April 1644. And to follow our President in the Cabinet herein See chap. 7. Sect. 6. Here the Justice may also if he please reward the Informer
lay a Rate upon any other Parish within the Hundred to help them But if they go Sessions further then the Hundred with the Rate then it must be done at the Sessions And there a Rate may be imposed upon any part of the County for Contribution to that Parish And there also a Rate may be imposed upon the Parents Grand-Parents or Children of Parents to relieve Children such as are poor towards their relief The which they are to pay or forfeit 20 s. a Moneth And these two Justices may give their Warrant to the Church-wardens and Overseers of the Poor to levy the Rate by distresse and sale of goods upon such as rated and for lack of distresse to send them to prison till it be paid Also these two Justices may send their Warrant to the present or subsequent Churchwardens and Overseers to levy by distresse and sale of goods all Arrears of Rates remaining in any mans hands And for lack of distresse to send them to Goal till it be paid Upon 49 Eliz. 2. 39 Eliz. 3. 3. Any two Justices may compell the Overseers and Church-wardens at the end of their year to account and pay over to their Successours the Money remaining in their hands at the end of their year or the 20 s. forfeiture for neglect of it or of one part of the Duty of their Office and cause it to be levied by way of distresse and sale of goods and for lack of distresse to imprison the parties upon 43 Eliz. 2. And so may two Justices take account of these Officers yearly of their Imployment of all such Money as they have in their hands of any mans gift for the binding of poor Children Apprentices Upon 7. Iac. 3. 4. Any two Justices may joyn with the Church-wardens and Over-seers of the Poor in the placing of the children of Poor people at the Parish-charge or otherwise with Husband-men or other Trades-men and punish them that will not take them by putting them to give surety of the good Behaviour and to appear at Sessions And Good Behaviour punish also the Parents that refuse to let their Children to go and the Children that refuse to go Upon 43 Eliz. 2. 5. Any two Justices may agree to and License the setting up of a Trade in the Parish to set the Poor on work there Upon 43 Eliz. 2. 5. Any two Justices may under their hands appoint present Relief to any poor Souldier hurt in the late Wars and the Wives and Children of such Poor Souldiers and Mariners their Wives and Children as were slain or dyed in the same Wars till the Quarter-Sessions But for this take these things 1. There must be two Justices living near to the place where the maimed Souldier or Mariner in the last Wars before the 22d of May 1647 settled when he took up Arms that upon a Certificate of his Service and or his hurt under the hand of his Captain or his Comissary Officer or in case where they be dead under the hands of other persons of credit who may examine the Truth of the thing by his own Oath and by Witnesses and appoint the Treasurer of the publike money to this use to give him Relief till the next Quarter-Sessions And then a Pension Pension may be given to him 2. And as to the Widows and Orphans of the Souldiers Widows and Orphans of Souldiers slain or dead or Mariners that were slain or dyed in those Wars In this case the two next Justices may by warrant under their hands appoint the Treasurers what to give them for their Relief and to acquaint the next Sessions therewith to the end it may be continued or determined Ord. May 22. 1647. August 1647. December 1647. September 1651. 3. Every Justice is to take order for the Relief of all the maimed Souldiers belonging to the Arâ—its in England Scotland and Ireland and the Widowes and Orphans of such Souldiers as have been slain there as soon as they bring into them such a Certificate as is mentioned in the Ord. of 30th Septemb. 1651. or be sent unto them by the Treasurer for maimed Souldiers by a Passe under their hands and the publike seal of their Office for that purpose the same allowance not exceeding 4 s. a week to one such Souldier or Widow Or if they be able to work the same Justice is to provide that they may have such work as to get 4 s. a week And the Justices are to help to place their Children Apprentices The same Ordinance of 30th September 1651. 6. Any two Justices next to the place where a poor Mariner or Souldier that is become from beyond Sea to his place of Settlement and can get no work to take order to set him on work and to Rate tax the Hundred for his Relief till he can have work 39 Eliz. 17. 7. How the idle poor that will not work shall be ordered and disorderly poor punished see Rogues Sect. 48. of this Chapter For the binding of poor Children Apprentices see Sect. 33. Numb 8. SECT 43. About Rates and Assessements AS to this what may be done herein out of Sessions take these things 1. Four Justices may with the Consent of the Constables of a place set a Rate for the repair of a Bridge Upon For Bridges 12 H. 8. 5. 2. In case where the Parishioners For Kings-Bench c. Maimed Souldiers c. Constables and Church-wardens of a Parish shall all of them neglect to set and distribute upon the Parishioners the Rate set by the Justices of the Peace in the Quarter-Sessions for the Kings-Bench and Marshalsies In this case any one or more Justices of the Peace may by him or themselves alone set the Rate and give Warrant to levy it by distresse and sale of goods c. and for lack of distresse to send the party to Goal till payment Upon 43 Eliz. 2. And so likewise he may do save onely as to Commitment upon the Rate for Relief of maimed Souldiers and Mariners Upon 43 Eliz. 3. 3. There must be two Justices of the Peace and one of them of the Quorum to Rate and give Warrant to levy the Poor Rate set upon other Parishes of the Hundred for the help of another Parish not able to keep the poor thereof Upon 43 Eliz. 2. So for a Rate set upon a Hundred for the Relief of a poor Souldier or Mariner that is come from the Sea and wanteth work or relief Upon 39 Eliz. 17. See Sect. 38. of this Chapter 4. The Justices may and as it seems out of Sessions set down the For Barrels and Firkins of Ale Rates that the Brewers of Ale and Beer within the County shall sell by their Barrels Kilderkins or Firkins of Ale or Beer which they may not exceed Upon 23 H. 34. But the fittest place to do this is in the publike Sessions 5. For the Rate of a Hundred charged with the money lost by a Robbery see
Fine of 40 s or under upon any of the same Constables for not appearing before them or for not making a Return or for not making an Execution of their Warrant or for not Executing the Justices warrant at any time in the Convey of Rogues to the Bridewell upon 7 Iac. 4. 21 Iâ—c 28. But herein is no way of Conviction of Offenders or of Levy of the penalty set down and Caution to the Justices therefore we cannot see any way to punish these Officers herein with safety out of the Sessions 6. As to the poor man or Woman A poor man that doth threaten to run away from his Family that is able to work and that shall threaten to run away and leave his Family upon the charge of the Parish in this case any two Justices of the Peace upon proof hereof by the Oath of two witnesses may send the Offender to the House of Correction unlesse he or shee can put in sufficient Security House of Correction for the discharge of the Parish upon 7 Iac. 4. 7. As for such poor as have able bodies Poor that will not work and nothing but their work to live by and do not work in any ordinary and daily Trade to get their livings by their work And the Overseers of the poor do provide them work and appoint them to do it and they will not work It is said in this case that the Justices or any of them may commit such persons to the Goal or to the Bride-well And so are the words of the Statute of 43 Eliz. 20. But we cannot see how this can be done out of the Sessions For there is no way of Conviction of the offence And this therefore must be necessarily implyed by the Act that if they shall punish they must first Convict the offender 8. It hath been said that such poor persons as begg beyond their license Idle poor to be sent to Bride-well Such poor as are able to work and are idle or will not work by the appointment of the Overseers of the poor such common-Labourers poor men as refuse to work for the wages appointed and some others may be sent to Bride-well by the Justices of the Peace But we cannot see by what Authority onely this in the 7 Iac. 4. That if Constables shall neglect to convey safely all such Rogues with all other idle and disorderly persons c. as by the Justices of Peace his Warrant shall be sent to the houses of Correction c. That then they shall forfeit c. By which is implyed that the Justices might and do send such persons thither But this must refer to the cases in which they are by other Lawes empowred to send them thither And howsoever it be it is sure it cannot be safely done by any Justices of the Peace out of the publick Sessions See 39 Eliz. 4. 7 Iac. 4. 9. As to the Warrants then in the Clerks Cabines in Chap. 18. and some Caution of the Mittimus in Chap. 25. which are contrary to the Cautions we have herein given we do now upon better Consideration utterly dislike them and advise the Justices of the Peace not to use them SECT 49. About Sewers SIx Justices of the Peace two of them of the Quorum have some power with the Commissioners of Sewers for a year For which see 13 Eliz. 9. SECT 50. About Sheriffs AS to this head these things are to be known 1. Any one Justice may punish the defaults of Sheriffs in not returning good Jurors to enquire of a Forcible Entry Upon 8 H. 6. 9. 2. He may punish his defaults in the County Court by entring a plaint in the name of a man not present himself or his Atturney or by not taking care that the Plaintiff in every Suit do put in his pledges Or by entring more Plaints then one or more then the Plaintiff doth desire for one and the same cause Or where a proceeding is against a Defendant in a Suit and he hath no warning to appear In these cases any one Justice may examine the Sheriff or any of his Officers And if he find the thing by their confession or otherwise he is to certifie it into the Exchequer the Sheriff doth forfeit 40 s. Upon 11 H. 7. 15. So one Justice may examine the Collectors of the Sheriff's Amercements of the County-Court if they have collected more then is due upon their Estreats And if he find it so he may certifie the offence against them into the Exchequer 11 H. 7. 15. 3. There must be two Justices and one of them of the Quorum to overlook the Sheriff's Books and Amercements and to seal the Indentures of his Estreats and to swear the Bayliff that he shall levy no more then is contained in those Estreats Upon 12 H. 7. 15. 4. Any two Justices one of them being of the Quorum may give the Under-Sherift his Bayliffs of Franchiles Deputies and Clerks their Oaths which they are to take before they meddle with their Office Upon 27 Eliz. 12. SECT 51. About a Supplicavit 1. THis Writ the Justice to whom it is sent and given must see that he do execute it 2. He is thereupon to send his Warrant to the Constable to bring the party to be bound before him to put in Sureties according to the Writ or if he refuse to carry him to Goal And if the sum be left to his discretion it is fit for him to set down a good Sum. 3. After Sureties given he is to grant a Supersedeas to stop all other proceedings upon Warrants granted by himself or other Justices to the sanie end 4. He need not certify the Recognisance till a Cerciorari come to require it SECT 52. About Superstitious Reliques ANy one Justice of Peace where any Altars Tables of Stone Crucifixes Crosses Images Pictures of any Person of the Trinity or Saint or like superstitious Reliques are yet remaining may upon Information to him given thereof cause the same to be taken down Upon Ord. May 1644. SECT 53. About Swearing and Cursing AS to him that doth prosanely Swear or Curse Any one Justice of Peace upon his own hearing thereof the Confession of the patry or Oath of one Witnesse may send his Warrant to the Constable to levy distresse and sale of goods to the use of the poor c. the Forfeitures appointed by the Act. Which is if the offender be above 14 years old and in degree a Lord or higher 30 s. If a Baronet or Knight 20 s. If an Esquire 10 s. If a Gentleman 6 s. 8 d. If a common person 3 s 4 d. And this for the first offence And after one Conviction for every offence afterwards twice as much And in case no distresse can be had nor Surety given to pay the money Then to put the offender for the first offence in the Stocks three hours And for every offence after the first Conviction six hours And if the offender
A New SURVEY OF THE Justice of Peace HIS OFFICE Wherein is briefly yet clearly opened the severall Parts thereof And what one or more Justices of Peace may do therein in or out of the Sessions of the Peace by all the Laws made to this Day and now in force With the Names or Times of the Statutes Acts and Ordinances themselves relating to this Office Alphabetically set down under apt Titles By W. S. Serjeant at Law LONDON Printed by J. S. and are to be sold in Fleet-street the Temple and Holburn 1659. To the READER Courteous Reader THere is a little Piece on this Subject made by one as I am informed That is dead of which there hath been several Editions And being earnestly Intreated to make some Additions to it especially of the New Lawes that hath come forth since that time The which while I considered thereon I concluded within my self That the Labour would not be much more to make a New Book by way of an Abridgement to all the Larger Volumes For the Office of a Justice of Peace being Large and the Books that have been writ on that Subject so numerous that those who have much other businesse Incumbent on them will not have leisure to read those Larger Treatises There are some things very obscure Therefore I have digested this small Piece for a more Compendious and plain help therein Observing this Method in it That in things which happen but seldome I am very short and do only refer to the Lawes themselves that give directions about them But in those things that are Common and of daily use to the Justices of Peace I am more Exact and Full. At the latter end of this Work you shall meet with Certain Questions and their Answers which will be of very great Concernment and use And so I shall send this amongst you after the rest of my former Pieces and desire to continue Your true Friend W. S. CHAP. I. Of some things necessary to be known for the better understanding of this Work FOr the better understanding of this whole WORK we must know 1. That which we shall do in this whole Work is 1. To say a little to the general power of the Justices of the Peace 2. To shew what the Justices of Peace may do out of the Sessions of the Peace 3. What they may do in their Sessions of the Peace 4. What they may do in or out of the Sessions of the Peace 5. What they may not do in or out of the Sessions of the Peace 2. By that which we say may be done by one Justice of the Peace we inteud that it may also be done by two or more Justices of the Peace And so by that which may be done by two that it may also be done by three or more Justices of the Peace 3. Where we say A thing may be done by two or more Justices there it cannot be done by fewer then that number 4. When we say That it is requisite to the doing of a thing by the Justices that one or two of them that do it be of the Quorum then it cannot be done by others 5. Where we say That one or more Justices of the Peace may do a thing we do hereby intend also that he or they ought and it is his or their duty to do it And it may be expected from him or them if it be required and he or they may in one way or other be blamed for his or their not doing of it And wherein we say He is commanded or ought to to do or must do or is to do such a thing by this we intend also That he may and hath power to do the same thing 6. Where we say One or two Justices may do a thing and do not adde and one of them of the Quorum there we intend that any Justices whether of the Quorum or not of the Quorum may do it 7. Where we say Justices of Peace have power to do a thing there we intend That not onely the Justices of the Peace of Counties have power to do the Mayors Bayliffs c. same thing within their Counties but that Mayors and other Head-Officers also that are Justices of the Peace within Cities c. may do the same thing within their Cities c. 8. Where we say The Conviction is Conviction Confession to be by the Confession of the party or by Confession onely by this we mean the Confession of the party offending Where we say It is to be by view by View this we mean the view or sight of the Justice of the Peace himself Where we say the Conviction must be by proof of Witnesse we do not intend by this Witnesse that it must be by proof of Witnesse upon Oath unlesse we so expresse it 9. Where we speak of a Warrant Warrant that the Justice or Justices of the Peace may make and say not what kind of Warrant or to whom it shall be directed we do generally intend a Warrant in Writing under the hand and seal of the Justice or Justices of the Peace And that it be directed to the Constable Tything-man or other Officer of the place And where we say That the warrant is to be sent to the Constable and no more we do by this generally intend the Constable of the place where the offender dwells 10. Where we speak of sale of goods Rendring c. rendring c. and say no more we do by this intend That the Officer is to prze and sell the goods Distrained and to keep up so much of the money as the Forfeiture is and return the overplus to him that did owe the goods 11. Where we say Levied by his or His or Their. their Warrant we do intend hereby the Warrant of the Justice or Justices of the Peace 12. Where we say The Justices Where c. where c. or the poor where c. and no more we do hereby intend the Justices of the County or the poor of the place where the offence is committed But where we say the Justices or the Poor where or where c. by this we Where or where c. do generally intend that the case is such That the Warrant must be penned and directed according to the Act which sometimes is meant of the Justices of the County and poor of the place where the offender doth live or is first apprehended And sometimes where the offender doth live or the offence is done In this case the Statute must be looked into 13. Where we say That the Forfeiture shall go to the use of the poor Poor c. and say not what poor we do generally intend the poor of the place where the offence is committed 14. Where we say an offender is to be punished to be convicted or the penalty Before or In the last levied or the offender disabled c. as before or as
But if any Caution to Iustices Justice shall resolve upon the doing of any thing upon this Branch our Counsel is that he do it by very good advice especially in case where the offender doth deny the matter of Fact 4. For the disarming of Recusants â—ee Recusants Sect. 45. of this Chapter SECT 2. About Baile or Bailment AS to this these things are to be known 1. Any one Justice of Peace may â—ad or deliver out of prison any pâ—â—soner that is a prisoner for any offence within the Connusâ—nce of the Justices of the Peace and that is baylable by the Law as where a man is arrested on a Sessions process for Trespasse or such like thing But no one Justice may bayl a man in Felonie prison on a suspition of Fclony or greater Crime 3 Ed. 1. 15. 2. But there must be two or three Justices of the Peace and one of them of the Quorum to Bayl such as are in prison upon a suspicion of Felony And they two must be together when they do it And before they do it they must take the Examination of the prisoner in writing And this Examination with the Bayl and Recognizances for the appearance of the Witnesses they must certifie to the next Gaol-delivery or they Certificate may be fined by the Judges And so they may be for bayling a man not caution to Iustices bailable 2 Mar. 13. 3 H. 7. 3. 3. No Justices may bayl one in prison for Treason or for the death of a man or for any great offence in case where he doth confesse the offence and the Mittimus of the Justice or Justices of Peace by which he is sent to Gaol doth so expresse it 4. No Justice may bayl a prisoner in any case where any Law doth expresly forbid the taking of Bayl in that case 1 2 Ph. and M. 13. 5. Where any Statute doth appoint the Bail to be taken by more Justices then one there no one Justice may bayl the prisoner 3 H. 7. 3. 2 Mar. 13. 6. Where two Justices may bayl one that hath recanted his blasphemous opinions See Blasphâ—my 7. How Bayl is to be given and the Recognizance to be given in such cases See my Justice of Peace Clerk's Cabinet Chap. 24. SECT 3. About Bargain and Sale ANy one Justice may joyn with the Clerk of the Peace to take and inroll a Deed of Bargain and Sale of Land acknowledged before them within six moneths Upon 27 H. 8. 16. SECT 4. About binding to the good Behaviour AS to persons of ill Name and Fame Suspect-Theeves such as are generally suspected to be Theeves or Robbers or that keep company with such men Common Cheaters or Couzeners that get money Cheaters by false Tokens false Dice counterfeit Letters or the like Common-Quarrellers Fighters or Breakers of the Common-Quarrellers Peace Such as are like to commit Murder or outrage Such as are common Libellers and Slanderers Such as Libellers and Slanderers Poysoners are common hedge-breakers and woodstealers Such as endeavour to poyson men or do poyson Cattel or the like Such as lye in wait to rob maime or kill men Rioters Common-Drunkards Rioters Drunkards as some say yet see for this 4 Iac. 5. which as to the Drunkard makes it a little doubtfull Lewd and incontinent persons that either keep or Incontinent persons Eves-droppers Barretors Night-walkers haunt Bawdy-houses One that hath or is suspected to have a Bastard Common Evesdroppers common Night-walkers Common-Barrettors Persons that live idly and into dinately having no Esture nor Calling to live by and yet spend much Such as manifest contempt of Magistrates and such like persons And any one Justice of Peace may as it is generally held and practised upon his own knowledge and of his own head or at the request of others and upon Information of Witnesses upon Oath as in his discretion he shall judge it meet send his Warrant to apprehend them and bring them before him or some other Justice of the Peace to put in Sureties for their good Behaviour and Surety of the good Behaviour to appear at the next Sessions And if the offender be in his presence require him to put in such Surety as the Justice shall think meet The which if he will not or cannot do the same Justice may by his Mittimus send him to the Common Gaol till he so do But in all these cases it is most safe for the Justices to go upon generals and not upon a particular And it is good for Justices of the Peace to have this work as much as may be Caution to the Justices done upon Articles exhibited and well proved And before two Justices of the Peace and indeed most safe to do it in the publique Sessions But for this see the Books at large and my Books of this Office Chap 18. For a Warrant for the good Behaviour and Mittimus to send the party refusing to be bound to the Goal see Clark's Cabinet for Justices Chap. 9. Numb 3. Chap. 25. Numb 3. Chap. 24. Numb 17. SECT 5. About Binding over 1. IT is said that in cases where a Justice of Peace hath power given him by an Act of Parliament to enforce a man to do a thing and he is in his presence and doth refuse to do it That in this case he may send him to the Goal or bind him over to the Sessions c. And that a Justice of Peace may bind over a man that is an offender against a penal Law and that before he is Indicted But it is good to be well advised Caution to Justices herein before a man doth it and to consider what he may do to the party in case he refuse to be bound 2. One Justice may bind over to the Challenge Sessions him that fighteth or is about to fight a Duell See Challenge 3. There must be three or more Justices Depravers of the Sacrament of the Peace and one of them of the Quorum after examination taken against him that depraveth the Sacrament to bind over the Accuser and Witnesses Upon 1 Ed. 6. 1. See more of this in other Titles SECT 6. About Blasphemie and Heresie AS to him that maintaineth any of the blasphemous opinions first named in the Ordinance of May 2. 1648. That there is no God or he is not present in all places doth not know all things is not Almighty c. There must be two Justices of the Peace who upon proof thereof before them by the Oath of two Witnesses which the Justices may administer or the Confession of the party himself may commit the offender to prison without Bayl and bind over the Witnesses to appear at the next Gaol-delivery And so likewise they may take bond with two Sureties Subsidie-men of the offender herein being convicted upon his Tryall and having renounced his opinion that he will never hold it again 2. And as to the opinions
viz. 1. To levy by distress and sale of goods upon every man all the Church-Rates and the Arrears thereof 2. To levy by distress and sale of goods all the Forfeitures committed for any offence within the Act. 3. To levy all the money that shall be remaining in the hands of any Church-Warden upon his Accompt 4. To levy the 2 s. 6 d. Forfeiture given to the Church-Wardens that are put to distrain for their Rate on him that will not pay it without a diâ—stess 5. To send to the Goal the party that doth not pay his Rate 6. To send to the Goale the Church-warden that doth refuse to account till he do account and pay over Account to the succeeding Church-Wardens the money remaining in his hands 7. And to joyn with the subsequent Church-Wardens in the taking of the Account Caution to the Justices of the precedent Church-wardens But it seems not safe here for a Justice of Peace to send his Warrant to levy any Forfeiture upon this Law or to follow the Presidents we have for this purpose given in our clarks cabinet because there is no way for the Conviction of the offender set down and therefore that then it must be in the Sessions or no where And there the offender may be punished by way of Indictment or presentment upon the general power of Oyer and Terminer given by the Act to the Justices of the Peace 5. There must be two Justices and Lands given to the Church any two Justices may examine by proof of Witnesses the case of Lands or Rents to be had or paid towards the repair of any Churches within any Parish And to send their Warrant to the Church-Wardens of the place to cause the parties who ought to pay the same to be bound over to the next Sessions where Bind over the parties are to be ordered And in this case it seems to me that the clearest way for the Justice of Peace is to send his Warrant fiâ—st of all to the Church-Wardens to warn the party to be bound if he live within the County to come before him to be bound over And if he refuse upon proof by Oath thereof by way of Information to send for him by his Warrant and bind him to the Good Behaviour good Behaviour and to appear at Sessions See for all this Act. 9. February 1647. And sor Presidents of Warrants in the case The clarks cabinet Chap. 8. 6. There must be three Justices of the Peace who out of Sessions may call Ministers and School-masters before them that have Houses Chancels and Church-yards belonging to them that are in decay and to order them to repair them And if they do neglect it to cause to be levied of their goods by way of distress and sale thereof so much as to do it Upon Ord. 29 August 1654. 7. Any two Justices of the Peace may Sexton order the payment of the due Fees to the Sexton or Parish-Clerk that is duly chosen to the place And where his Fees are denyed they may order the payment thereof and in case it be not paid they may send their Warrant to the Constable to levy it as they do for the levying of a Church-Rate what he shall have for his service Upon the same Act. 9. February 1647. See a President for this in the cabinet Châ—p 8. Numb 9. And that seems to be all that a Justice of Peace may safely do herein that is call the party refusing before him and examine the matter and if he find it ve y clear order the party to pay him And if he shew himself obstinate herein the party grieved he must apply himself to the Justices of the Peace in their Quarter-Sessions where they may by the general power of Oyer and Teâ—miner given to them by the Act find a way to bring him to it Or if the case be so clear that the party shall consesse before the Justice what is due there perhaps the Justice might cause a distress to be made of his goods as in case of a distresse for a Church-Rate But it Caution to the Justices is good to be well advised for the Law is very obscure herein And it is dangerous for a Justice of Peace so to do where he hath not a clear authority for it SECT 10. About Cloath and Clothiers AS to Cloath and Clothiers and to the things that relate to their Trade this is to be known 1. Any one Justice of Peace may enter Tenters Winches into any house to search for Tenters Winches and such kind of Engines used to make deceitfull Cloath and finding them he may deface them And in case of second offence he may sell them And he with another Justice of Peace may joyn together and distribute the money made thereby to the poor 39 Eliz. 20. 43 Eliz. 18. 2. There must be two Justices to Speciall Sessions hear and determine the offences about faulty Cloath And this for much of it must be done in and by a Speciall Sessions kept for the purpose 39 Eliz 20. 21 Iac. 18. 3. There must be two Justices to sell divide and distribute the money made of faulty Broad-Cloth 39 Eliz. 20. 21 Iac. 18. 4 5 Ph. and M. 2. 4 Iac. 2. And so to sell and divide the money made of Kersies Frizes or Cottons 5 and 6 Ed. 6. 4. There must be two Justices to Searches and Over-seers of Cloth make and appoint Searchers and Over-seers of Cloth in Towns not Incorporate and to bind them by Oath and Bond to look to and punish the defaults in Cloath-making Upon 4 â—d 4. 1. 39 Eliz 20. 43 Eliz. 10. 2 Ed. 6. 2. 4 Iac. 2. 21 Iac. 28. 5 Ed. 6. 6. 7. Iac. 16. 3. 1. 5. So there must be two Justices to punish Carders Weavers Sorters Spinners that imbesil or detain any Wooll or Imbesiling of Wooll or Yarn Yarn and to punish them that receive it and upon proof made thereof before them by the oath of one witnesse to order them to give satisfaction or to be whipped 7 Iac. 7. 6. There must be two Justices that upon an Officer's Complaint of bad Cloth made by the mixing of Flocks Nails Thrums Hairs c. may call before them the parties accused and their Witnesses and if they find it true punish it according to 21 Iac. 18. 7. There must be two Justices and Clothier one of them of the Quorum that upon proof of two Witnesses or confession of the Clothier himself that doth refuse to pay his Workman the wages set down Wages may send their Warrant to levy of him the 10 s. forfeiture by distress and sale of his goods 1 Iac. 6. 8. There must be two such Justices also that may take Information of deceitfull Linnen Cloath Linnen Cloath made and that may bind the offender over to the Sessions to give Evidence that seized it 1 Eliz. 12. 9. Any one Justice of
not safely in any case baile such a person Baile accused of Felony But if he see cause or desire to Bail him because the offence is small as perhaps but a Petit Larceny or if it be greater and the evidence against him is very little or none at all he must call to his assistance another Justice of Peace For there must be two Justices of the Peace and one of them of the Quorum and they must be together to do this work See Baile and 1 2 Ph. and M. 13. 10 Any one Justice may send his Warrant to arrest any one that stands indicted of a Felonie See the Presidents in the Cabinet for all these things Chap. 5. throughout Chap. 25. 1 c. 2. Any two Justices before whom Reward for the taking of Felons any one shall be convict of a Robbery or Buâ—glary may give order to the Sheriff to pay to the party that did apprehend and prosecute him 10 l. for his reward therein Act. 17th of Septemb 1656. 3. How Felonies done beyond Sea may be prosecuted here by the Prosecutor thereof and what the Justice of Peace is to do in it see Act. 20th of September 1649. 4. How and at whose charge Felons shall he carried to Goal see Sect. 20th of this Chapter SECT 17. About Fish and Fishers AS to this we are to know 1. That no Fisherman is to be forced to be a Marriner under the Lord Proâ—ector's Commission unlesse he be chosen by the two next Justices to the place where he dwells 5 Eliz. 5. 2. Justices of the Peace are to be Conservators of the Rivers and shall have power to â—arch Weâ—res lest by their straitnesse the Fly of Fish be destroyed Upon weâ—â— 2. â—â— and 13 â— â—â—9 And they may appoint under-Officers to look to the Rivers and to inform against offenders therein West 2. 47. 13 R. 2. 19. SECT 18. About a Forcible Entry AS to such as make Forcible Entries into Lands in this case any one Justice of Peace upon Complaint hereof made to him and that the Force doth continue may go to the place to view it And if he find it upon his own view to be so he may remove it Record the Force and as some would have it Fine the offenders according to his discretion bind them to the good Behaviour send them to Goal till they have paid or secured the Fine And then make a Record of all this and certifie it into the Upper-Bench or Quarter-Sessions which he will And when the Fine is paid or secured he may deliver the offender But if the Force be done and past Then hath he nothing to do but to summon a Jury to enquire of it which he must do by his Warrant to the Sheriff and do it within a moneth of the Complaint or it will be very panal to him And by this Jury upon a Traverse he must enquire And if the Jury find any Forcible Entry or detainer in the Case then is the Justice to send his Warrant to the Sheriff to restore the party put out of into possession again and may Fine c. 15 R. 2. 2. 8 H. 6. 9. 31 Eliz. 11. 21 Iac. 15. See for this the Books at large and in my Iustice of Peace Book Chap. 15. and in the Clarks Cabinet See all the Presidents of Warrants for it in Chap. 7. of that Book And because there is some difficulty in Caution to Justices this work it will be the Justices wisedome to call in for the help of some or at least of one of his Fellow-Justices of Peace herein SECT 19. About Free-Quarter AS to Souldiers that take Free-Quarter in mens houses against the owners consent In this case any two Justices of the Peace may examine the offence upon Oath And when they have done this they are to send this Examination under their hands and seals up to the Committee of Examination Certificate the Army And so satisfaction will be made to him that is wronged Upon Act. 19. December 1651. 24 April 1648. and 24 December 1647. SECT 20. About Goals or Prisons and Prisoners AS to this take these things 1. Justices of the Peace regularly are to send such prisoners as they do commit to prison to none other but the Common-Goal of the County Upon 5. H. 4. 10. And yet where any Statute directs them to send to another prison as to the Bride-well Stocks or the like there they must pursue the same direction 2. The Goaler is to receive such a prisoner so sent to him by a Justice of Peace and that without Fee And if â—he Goaler do not so he may be punished by the Justices of the Peace by Fine for his Contempt c. But not upon the Statute of 4 Ed. 3. 10. For the Justices of the Peace have not the power of Execution of that Statute 3. An offender to be conveyed to Charges of Convey of a Prisoner to Goal Goal is to bear all the charge of himself and of those that guard him thither if he be able And in case he refuse so to do Any one Justice of Peace may send his Warrant to the Constable of any Township in the County where he hath goods and take them and prize them by four of the Neighbours and sell so much thereof as the Justice shall think fit to satisfie the charge And if the offender have no goods a Rate for Rate the raising of the money may be made by the Constables and Church-wardens and two or three others or for lack of such Officers by four of the more sufficient men of the place where he was taken And any one Justice of Peace may by putting his hand to it confirm it And after give his Warrant under his hand to levy it by distresse of the goods of them that refuse and after apprisal by four of the Inhabitants by sale thereof to give back the over-plus And so to pay over the money to them that did bear the charge of his Convey to prison Upon 3. Iac. 10. See the President for this in the Clark's Cabinet Chap. 17. SECT 21. About Habeas-Corpus Certiorario Supersedeas Writ of Errour AS to these four things which are Writs that serve to prevent stop or undo the power of the Justices of the Peace these things are to be known 1. The Habeas-Corpus is to remove Remove of Records and Prisoners the prisoner and his cause from the Justices into a higher Court upon supposall that they are doing or have done illegally The Certiorani to remove the Cause and Record from before the Justices before a higher power upon this pretence The Supersedeas is from a Higher Court to forbid any further or other proceeding before the Justices The Writ of Errour to undo what hath been done before the Justices where upon on Indictment or Information a Judgment is given against Law 2. Every Habeas-Corpus and Certiorari to remove a Record or Prisoner ought to be signed
by one of the Judges of the Court whence it comes Upon 1 and 2 Ph. and M. 13. And yet if this be omitted the Justice of Peace must notwithstanding obey it 3. Writs of Supersedeas out of the Higher Courts are to be void that are not granted upon Motion in the open Court and upon good cause also shewed by Oath and the same set down on the back of the Writ And if this be not done it seems the Justices of the Peace may refuse to obey it Upon 21 Iuc 8. 4. No Remove shall be of an Indictment grounded upon the Ordinance of June 1654 about Challenges Nor Challenges upon the Act of the 6th of October 1650. where the proceeding is upon any penall Law for the buying selling searching viewing ordering or disposing of any Corn Wint Beer Ale Fish Flesh Sale-Butter Cheese or any other dead Victuals whatsoever Nor upon any Indictment grounded upon the last Act made the 17th of September 1656 about the Sabbath Nor to remove any Presentment or Conviction for a Popish Recusancy Nor shall any Writ Recusants of Errour be granted to reverse any such Conviction Upon the Act of 17th of September 1656. 5. The Justices of the Peace may refuse to send away an Indictment upon any such Wâ—it if it be for a Riâ—t Forcible Entry Assault and Battery except the Writ he delivered in â—â— the Justices of Peace in their Quarter-Sessions sitting the Court and except the party indicted will be bound with good Sureties to pay the Prosecutor his Costs But in case of Indictments for a Foreible Detainer and for any other offence then that before named it is otherwise Upon 21 Iac. 8. 6. The Justices of the Peace when any such Writ is duly â—ssued â—orth and sent to them must obey it for it is penal to them if they do not so And if the Writ for bid the Justice to do that which he hath sent out his Warrant to command to be done he must recall and countermand his Warrant 7. If the Writ do not require the sending away of the Recognizance that the Justice hath taken he â—â— to send the Writ and Recognizance to the next Sessions to be siled there 8. The Judges of the Higher Courts that do send for any such Record or prisoner may if they please send it down again to be determined by the Justices of the Peace Upon 6 H. 8. 6. See Steel's Rep. 475. 322. 399. SECT 22. About High-wayes and Bridges AS to High-wayes and Bridges these things are to be known 1. Any one Justice of Peace may upon his own View make a Presentment to the Sessions in the nature of an indictment against any place or Parish for that their wayes are not sufficiently amended And also against any man for any offence by him done against the Statutes of 2 3 Ph. and M. 8. and 5. Eliz. 13. That is to say The Constables and Church-wardens of the place for not choosing the Surveyors or not setting down the time for the six dayes work or for not giving publike notice thereof in the Church Or the Surveyors for refusing the Office or for their neglect in their office and in particular for not making Presentment to a Justice of Peace of such defaults as they find upon these Statutes Or the Parishioners that do not observe and attend to do the dayes-works appointed them Or such as suffer any Nusances in their Grounds hedges or ditches near to the High-wayes Or the Baylifts or High Constables for their neglect in the levy of the Amercements sent to them by the Clerk of the Peace against oftenders about the High-wayes or for the not making of their Account and the like And this presentment of the Justice if he have cause to have it drawn up he may put the Clerk of the Peace to do it And being put in it is of the same sorce as if it were found by Grand-Jury 2. Any one Justice may and must receive from the Surveyors of the High-wayes any Presentment that they shall make and tender to him of any default upon these two before named Statutes about the High-wayes And this Presentment he is to certifie and send in to Certificate the next Sessions under pain of 5 l. upon 5 Eliz. 13. 3. There must be two Justices one of them of the Quorum to enforce and take the Account of any Officer that hath in his hands any of the Forfeitures upon the Statute of 2 3 Ph. M. 8. about High-wayes And to imprison them who do account and are sound to have money in their hands till they pay it But if in this case the Officer be Caution to the Justices obstinate they cannot tell what to do to order him But it must be in the Sessions or no where See Steel's Rep. 399. Chap. 7. Sect. 6. 4. Any one Justice might have caused High-wayes to be enlarged and cleered of Trees and Bushes upon the Statute of Winchester 1 Ed. 3. But now they do nothing out of Sessions but according to the two afore-named Statutes 5. There must be four Justices of the Peace one of them of the Quorum Bridges And where so many Justices are not met together it cannot be done who with the Constables and two of the Inhabitants of every Parish and without their consent also it cannot be done to tax the Inhabitants of any place or places for the repairing of a Bridge or High-way within 300 foot of the Bridg when it is unknown who ought to repair it And they may appoint two Collectors to gather the money and two Surveyors to look to the work and to give an Account thereof and of the Account money And they may call these Officers their Executors or Administrators to an Account Upon 5 Eliz. 13. and 18 Eliz. 9. 6. For the Repair of Chepslow Bridge see 3. Iac. 23. 7. For the Repair of the High-wayâ—s in the Wild of Kent see 14. 15. H. 8. 6. Of Huntington Lane near to Chester see 37 H. 8. 3. In Sussex see 39 Eliz 19. 26 H. 8. 7. 15 H. 8. 6. Of the Cauce-way between Dorchester and Sherborn see 1 Mar. Parl. 2. Chap. 5. Of the King's Ferry in Kent see 18 Eliz. 10. SECT 23. About Horses AS to this there is this onely as belonging to the Office of the Justice of Peace out of Sessions to be known That if any horse be stolne and sold in an open Market the true owner thereof or his Executors may within six moneths after the stealing thereof make his claym for him before any one Justice of Peace near to the place where the horse is found And this Claym the Justice of Peace to whom it is made must take and hear And if within fourty dayes after the claym he can make proof his property by two Witnesses upon oath before the Justice and will pay down to the buyer so much as he before the Justice will depose that he bond side
As to the Inne-keeper Ale-house-keeper Tipling suffered by the Inne-keeper Taverner or Victualler that doth suffer any one of the same or of another Parish to sit Tipling in his house In this case any one Justice of Peace may upon his own fight hereof or the confession of the offender or the proof thereof by the oath of one witnesse which he may administer convict him of it And after this Conviction he is to give notice of it to the Constables or Church-wardens of the place where the offence is done and call upon them to do their office therein which is to levy of the offender's goods 10 s. forfeiture for the offence to the use of the poor of the place where c. by way of distresse of goods and after six dayes by sale thereof rendring c. And if it be not paid or there be no distresse to be had the Constables or Church-Wardens that had the notice they are to certifie the same to any one of the Justices of the Peace And thereupon the same Justice of Peace may send his Warrant to commit the offender to Goal till he pay the same forfeiture And also to give him notice That he is disabled for three years to keep any Ale-house again And if these Officers do not levy the money Officers nor certifie the lack of distresse or non-payment within 20 dayes to the Justice of Peace The Statute saith That the Justice of Peace by Warrant under his hand and seal shall levy 40 s. penalty â—pon them by way of distâ—essâ— of goods And this distresse to be detained six dayes then prized and sold rendring c. And for lack of such distresse the same Officers to be sent by the same Justice to the Goal till they pay their forfeiture But doth not say how the Constable or Church-Wardens shall be convicted of this offence And therefore the Justice may Caveat to Justices not send such a Warrant to levy it but this punishment may be inflicted by the Justices of the Peace in their Quarter-Sessions against the Officers for their neglect by the general power of Oyer and Terminer given to them by the Act. Also the Justices in this case must take heed of sending their Warrant against the Inne-keeper c. for the 10 s. For the Constable and Church-Wardens are by their Office to do it without Warrant 1 Iac. 9. 21 Iac. 7. 1 Car. 4. 3 Car. 3. See Chap. 7. Sect. 6. Quest 19. 4. As to the Inne-keeper Ale-house-keeper Assife Vintner c. that shall sell lesse then one quart of the best and two quarts of the small Ale or Beer for a penny In this case any one Justice of the Peace may upon his own sight of it the confession of it by the party or proof thereof by the oath of one Witnesse which he may administer convict him of it and after his conviction proceed against him as he is to do in the last case before against the Ale-house-keeper for suffering tipling in his house And so also against the Officers throughout 1 Iac. 9. 21 Iac. Caveat to Justices 7. 1 Car. 4. with the same Caveat as in the last See for the Warrant in the Cabinet Chap. 12. Sect. 6. 5. As to him that is drunk In this Drunkennesse case any one Justice of Peace may upon his own view or the offenders confession thereof or proof by the oath of one witnesse convict him And for the first offence he may within a week after the conviction send his Warrant to the Constable of the place where c. to levy of the offenders goods to the use of the poor c. 5 s. if it he not paid in within a week after the Conviction by way of distresse and sale of goods c. And for lack of distresse the offender is to be put in the Stocks six hours And Caveat to Justices albeit there is no expresse power by the Act given to the Justice nor to any others to do this Yet it is conceived that the Justice may safely do it And therefore that he may safely follow my Presidents in the clark's Cabinet herein to make his Warrant forth in this case to do it For the words of 4. Iac. 5. are That if the offender lack a distresse he shall be commited to the Stocks six hours But it doth not say the Justice shall commit him to the Stocks Or that he shall send his Warrant to do it But this must as it is conceived be necessarily understood For the Act of 21 Iac. 7. hath these words That one Justice may convict him and the offender shall be punished as in the Statute is appointed And if it be the. Ale-house-keeper that is drunk the Justice is to give him notice that he is disabled for three years to keep an Ale-house again And for the second offence in any Drunkard the Justice of Peace is to put him to give two Sureties for his good Behaviour in a Recognizance of 10 l. And in this Statute there is the like Clause to punish the Officers neglect as is in the two last before the third and fourth Number But no way of Conviction except it may be by the parties own confession upon the general words of 21 Iac. 7. in the beginning thereof But Caveat to Justices this being doubtfull it is not safe for the Justice of Peace to grant his Warrant against the Officers for this But to leave it to the Sessions 4 Iac. 5. See the Warrant on this part in the Cabinet Chap. 12. Sect. 3. But no Justice of Peace can punish any man for this offence of Drunkennesse after six moneths is past after the offence is committed See Chap. 7. Sect. 6. Numb 24. 6. As to the Townesman or Stranger that shall be tipling in an Inne Tipling Ale-house or Victualling-house and not invited by a Traveller and during the Traveller's stay there onely and labourers that are there for the conveniency of their work or one that is there for cause to be allowed by two Justices of the Peace In this case any one Justice of Peace may upon his own view thereof the confession of the party or proof thereof by the oath of one witnesse send his Warrant to the Constables of the place where c. to levy of the offenders goods to the use of the poor c. 3 s. 4 d. by way of distress and sale rendring c. And for want of distresse to set him in the Stocks for four hours And to give the Inne-keeper notice that he is disabled c. 4 Iac. 5. 21 Iac. 7. See the Warrants for these things in the Cabinet Chap. 12. Sect. 4. 7. No man is to be punished twice for the same offence in any case upon these Statutes 3 Car. 3. 8. There must be two Justices and License one of them of the Quorum to give license to any man out of Sessions to sell Ale Beer Cyder or
with a third part of the Forseiture See in the Cabinet a Warrant for it chap. 4. Sect. 3. 3. As to Carriers with Houses Carriers Drovers of Cattle Wains or Carts and Drovers of Cattle that Travell on this day In this Case any one Justice of Peace may upon his own fight of it the Consession of the party or proof of it by the Oath of two Witnesses send his Warrant to the Constables or Church-Wardens of the place where c. to levy of the goods of the Offender 20 s. to the use of the poor of the place where c. by way of distresse and sale thereof rendring c. upon 3. Car. 1. But no man is to be punished upon this Law unlesse he be questioned for his offence within six Moneths after it is done And here the Justice may also if he please reward the Informer with a third part of the Forseiture See the President for it in the Clarks Cabbinet Chap. 4. Sect. 4. 4. As to Butchers that by themselves Butchers or others kill or sell their meat on this Day In this case any one Justice of Peace may upon his own sight thereof the Consession of the patry or Oath of two Witnesses send his Warrant to the Constables and Churchwardens of the place where c. to levy to the use of the poor of the place of the Offenders goods 6 s. 8 d. by way of distresse and sale thereof c. upon 3. Car. 1. But no man is to be punished upon this Law for his offence after the six months And here also the Justice may if he please reward the Informer with a third part of the Penalty See the Warrant in the Cabinet Chap. 4. Sect. 5. 5. As to such as Cry shew sorth Crying and shewing of Wares offer or put to sale any Goods Wares or Commodities except it he provision in an Inne or Ale-house or milk in London upon this day the things are to forfeited and any Church-wardens Constables or Overseers of the poor may without warrant from a Justice of Peace seize and secure them Also any one Justice of Peace may give a Warrant to any such Officers so to do Upon the Act of 6th of Aprill 1644 and 19th of April 1650. And now it is added That any one Justice of Peace upon proof of the offence by his own view the confession of the party or oath of witnesse may give order to sell the goods and give the money to the poor of the place where the goods were first seized Or the Justice if he please may give the thirds thereof to the Informer the rest to the poor But this new thing must be done within a moneth after the offence is done or it cannot now be done Upon the new Act. 17th September 1646. See in the Cabinet a President for it in the same place 6. As to such as Travail abroad on horseback or on foot without License Travailers of a Justice of Peace on this day Any one Justice of Peace may upon his own sight of it the confession of the offender or proof thereof by oath of one witnesse send his Warrant under his hand and seal to the Constables or Church-Wardens of the place where c. to levy of the goods of the offender 10 s. to the use of the poor of the place where c. by way of distresse and sale thereof rendring c. And then the Ordinance is further That for lack of distresse the offender shall be put in the Stocks three hours But the words being doubtfully penned as we shewed before and that it may be safe to put this clause and to follow my President for this in my Cabinet Upon Ordinance of 6th of April 1644. And here also the Justice may if he please give a third part of the forfeiture to the Informer 7. As to such as carry any Burdens Carrying of Burdens or do any worldly work on this day In this case any one Justice of Peace upon sight hereof the Consession of the offender or proof thereof by the Oath of one witnesse may send his Warrant under his hand and Seal to the Constables or Church-Wardens of the place where c. to levy of the oftenders goods â— s. to the use of the poor of the place where c. by way of distresse and sale thereof rendring c. And this is by the same Ordinance of 6th of April 1644. where the case is the same as in the last offence And therefore the Justice we conceive may here also use the Clause of putting in the Stocks three hours And here also the Justice may if he please give a third part of the Forfeiture to the Informer 8. As to the Travellers Wagoners Time of coming in and going out of the Inne Saturday nights Butchers Higlers Drovers and their Servants that shall come into their Inne Saturday night after 12 of the Clock and go out Munday morning before one of the clock without leave of a Justice of Peace And as for such as Dance prosanely sing drink or tipple in an Inne Tavern Ale-house or Tobacco-house or is there or doth grind at a Corn-Mill on this day without leave of a Justice of Peace the travailer and Inne-keeper and all the rest forfeit 10 s. a piece And as to them that execute any Writs Orders or Warrants but in case of Treason Felony Breach of the Peace or profanation of Serving process the Lords-day upon this day they forfeit 5 l. And as to them that use Coaches Boats Lighters Horses or Going wiâ—â— Coaches c. Sedans but in case of Gods Service and for cause allowed by one Justice of Peace on this day they forfeit 10 s. for every offence And all these Forfeitures in these four cases lastly named are by Warrant of one Justice of Peace under his hand and seal to be levied of the goods of the offenders by distresse and sale of their goods c. And for lack of distresse the offender is to be put six hours in the Stocks But there is no Caution to the Justices way of Conviction of either of these offenders set down by the Act. of 19th of April 1650. And therefore we conceive that no Justice may grant his Warrant in either of these cases to levy the Forfeitures But that it must be done by the Justices of the Peace in their Quarter-Sessions if they have any Sessions power given to them therein by the Law If not it cannot be done at all 9. As to the common Brewers of Beer or Ale the Soape-boyler or distiller Brewers of Aqua-vita or hot-Waters that shall brew or Tunne any Beer or Ale boyl or make any Soape or distill or make any Aqua-vita or hot-waters on this day In this case any one Justice of Peace may within three moneths after the offence committed upon the confession of the party or oath of one witnesse send his Warrant to the Constable
be under 12 years old then the Justice may send his Warrant to the Constable to see him whipped by the Father or Master of the offender in presence of the Constable Or that the Constable do it himself And of this Conviction the Justice of Peace is to keep a Record and to make Certificates quarterly to the Clerk of the Peace Upon 22 June 1650. But he that is by Jury in a Sessions being Indicted found guilty of swearing the Tenth Oath or ten times once is to be adjudged a common-Swearer and to be bound to the good Behaviour Good Behaviour with good Sureties for three years over and besides the Forfeitures aforesaid Or the Justice of Peace may if he will after he hath taken the Conviction send his Warrant to the Constable to apprehend the body of the offender and bring him before him to be proceeded against as before And there the Justice may perhaps perswade him to pay to the Constable the Forfeiture imposed But if he will not do it the Caution to Justices Justice must let him go and can do no more but send his Warrant as before SECT 54. About a Testimonial or Certificat AS to this these things are to be known 1. Any one Justice may give a Labourers Testimonial under his hand and Seal to Labourers to go into another County to work in the Harvest-time Upon 5 Eliz. 4. 2. There must be two Justices to give a Testimonial to a Servant of his departing Servant out of his Masters Service with his good will Upon 5 Eliz. 4. 3. There must be three Justices to certifie under their hands and seals the worth of the Parents or Children to be taken in as Apprentices or Servants Apprentices to Clothiers or Merchants Upon 5 Eliz. 4. 4. There must be two Justices of the Peace and one of them of the Quorum to certifie to the Sessions against an Ale-house-keeper that he doth sell Ale without License Upon Ale-house-keeper 5 and 6 Ed. 6. 25. 5. One Justice may certifie deceive able Deceiveable Cloth Cloth Upon 21 Iac. 18. 6. One Justice may joyn with a Customer to certifie the unlading and selling of Corn and Cattle carried from one part of the Land to another Upon 5 6 Ed. 6. 14. 7. One Justice may take and certifie Jesuit into the Chancery the submission and Oath of a Jesuit or Priest given within three dayes of his landing in England Upon 27 Eliz. 2. 8. One Justice near to the place where a Souldier or Mariner shall land Mariner or Souldier may give a Testimonial to him shewing where he landed whither he is to go and in what time he is to go it Upon 39 Eliz. 17. 9. One Justice may take and certifie the Examinations of a Dyer and his Servants about Logwood Upon Logwood 39 Eliz. 11. 10. One Justice may under his hand and seal with the Constable or Minister give a Testimonial of the whipping of a Rogue and limit the place whither Rogue he is to go and in what time he is to go it Upon 39 Eliz. 4. 11. Recognisances and Examinations Recognisances Examinations taken before one Justice of Peace may be certified by him alone unto the Sessions Judges of the Goal-delivery or Justices of the Sessions But when they are taken before two or more Justices there a Certificate thereof by one of them is not sufficient See more Cerciorari Sect. 21. of this chap. Forcible Entry Sect. 18. of this chap. Felony chap. 3. Sect. 16. Numb 8. SECT 55. About Tythes AS to the power of the Justices of the Peace to hear and determine matters of Tythe these things are to be known Any two Justices of the Peace not being Patron of the place wherein the Substraction is nor parties nor any way interested in the thing in question may therein out of any Sessions do these following things 1. They may send their Warrant of Summons to the Constable of the place where c. to call in the person complained of before them 2. They may upon his default send a second Summons 3. They may upon the parties second default the same summons being proved upon Oath in the absence of the defendant or in his presence upon his Appearance proceed by the Oaths of Witnesses and other proofs on either side to hear and determine the matter in difference between the parties And by writing under their hands and Seals adjudge the Case and give reasonable costs and damages to either party as they shall think fit 4. They may also if they please give treble damages where the Statute doth allow it 5. If the party do not within 30 dayes after he hath notice given to him of this Judgment given by the Justices of Peace pay to the complaynant the Tythes or Money so adjudged according to the Judgment then the same two Justices upon complaint made to them may give and send their warrant to the Plaintiff the Constable or such other persons as the Plaintiff shall name to distrain and sell the goods and Chattels of the Defendant to satisfy it rendring the Over-plus 6. If no distresse can be had to satisfy the Judgment the same or any two Justices may by their warrant send the Defendant to Goal without Bayl till he do satisfy the debt upon the Judgment 7. If the Officer or other person imployed about the Execution of this Warrant of the two Justices they may fine them for it any sum not exceeding 40 s. to the use of the poor of the place where c. And send their warrant to whom they please to levy the Fine to levy it of his goods and Chattels upon Ord. 8. November 1644 9th August 1647. 20th October 1648. But in this work the Justices must take care of these four things 1. That the Plaintiff Caution to Justices have a good Title to the thing in demand 2. That the Defendant be a Parishioner 3. That the thing demanded be a modus Decimandi or a Tythe paid two years before the wars 4. That the proceedings be in every particular according to the directions given by the Ordinance SECT 56. About Titles of Honour Assumed IF any by writing or otherwise do voluntarily and knowingly give to any person any Title of Honour or Dignity given to him by the late King since January 4th 1641 In this case ony one Justice of Peace upon the Confession hereof by the party or Oath of one witnesse may send his Warrant to the Constable of the place where c. to levy by way of distresse and sale of goods rendring c. the 10 s. Forfeiture named in the Act. And if there be no distresse to put him in the Stocks for three hours Febr. 4th 1641. SECT 57. About Transportation IF any load a ship or carry away in any Ship or Vessel with intent to transport any Wool Yarn Woollen Flox Wooll-Fell Fullers-Earth Clay Fullers Earth Tobacco-pipe-Clay
or any other Earth or Clay which may be used in the Art of Fulling beyond Sea and the owner of the ground where it is digged do by a note under his hand ofter to discover it to any one Justice of Peace This Justice must receive it and within three moneths aâ—ter the discovery Certificate thereof make it known by his Certificate under his hand and seal to the Batons of the Exchequer 9. Jan. 1647. SECT 58. About a Trespasse in Orchards Woods c. AS to him that shall cut or carry away standing corn rob Orchards or Gardens of Fruit c. break hedges or do any such like thing that is not Felony In this case any one Justice of Peace upon the confession of the offence by the party or proof thereof by the Oath of one witnesse may order the offender to give the party wronged such satisfaction as the Justice shall think fit Or if he judge him unable to make any satisfaction by money or however in case of a second offence the Justice may send his Warrant to the Constable to whip him And if the Constable neglect to do his duty upon this Warrant the Justice may send him to Goal till he procure the party to be whipt according to the Justice of Peace his Warrant 43 Eliz. 7. But there is no way nor power given to the Justice to convict the Constable of this neglect And therefore this punishment may not be inflicted but in a Sessions-way If the Justices have power of it there Wherefore otherwise they may fine him or bind him to the good Behaviour for his contempt as an offence at the Common-Law Some say also that for a common-hedg-breaker woodstealer or robber of Orchards That he may be sent to the House of Correction Bridewell which is more then we dare affirm But this is certain That if it be done it must be done by order of the Justices of the Peace in and not out of the Sessions SECT 59. About warrants made by the Justices AS to the Warrants the Justices of Peace are to make these things are to he heeded 1. It is safe for the Justice to make all his Warrants in writing 2. To see they be perfectly done when the Justice doth Subscribe them And not to leave them with blanks to be filled up afterwards by others 3. In all cases his hand must be subscribed and in some cases his Seal is necessary And therefore it is best in all cases to put his hand and affix his seal to it 4. For the manner of penning it He may if he will put the style of it in the Lord Protector 's Name thus Glouc. ff Oliver Lord c. Or he may send it in his own Name A. B. Esquire one of the Justices c. Or without any style at all thus Complaint being made to me c. These are to require you c. And it may be with or without a Tesle But it is Teste not amisse to say Witnesse my hand and seal c. And a certain Date of the Date day moneth and year may not be omitted See in the Clerks Cabinet and in the 30th Chapter of my first Book of the Justice of Peace his Office more of this 5. The Justice is to take care hi Warrant be penned plainly and clear ly that the Officer that is to execute it may understand and to declare ambiguous words in it Such as this That you cause to come before me for by this he may not understand whether he may fummon him to come or bring him prisoner And therefore to say rather That you warn or summon bin to come or be before me c. 6. If the Warrant be to be grounded on a Statute-Law the more care must be had in it exactly to puâ—sue the directions of the Statute therein And where the Statute saith It shall be under the hand and seal of the Justice or to the Constables and Church-Wardens accordingly to pen it 7. If a Warrant be made by a Justice to apprehend a man and bring him before this or some other Justice of the Peace it is safe to set down in the Warrant the cause of it as that it is to put in Sureties of the Peace or for the good Behaviour or because he is charged with a Felony or the like And to be sure the cause will bear such a Warrant And therefore we cannot approve at any hand the usual Warrant to attach or apprehend men and bring them before a Justice of Peace and say no more but for misdemeanor onely or to answer to such matters as shall be objected against him See for this Coo. 2. Part of Inst 59â— 8. Where by a Statute-Law power is given to a Justice or Justices of the Caution Peace to commit to prison Bride-weil or the like in case of lack of distresse or insufficiency or the like whereby to levy the forfeiture There the best way for the Justices is to do it by one Warrant thus and therein pursue the words of the Warrant thus That you levy of the goods c. And in case you can find no distresse or for lack of distresse or that the party be insufficient c. That then you carry him to Goal for three dayes Or that you whip him c. as the case is according to the Statute in that case provided Rather then to take upon him to know his insufficiency or lack of distresse And thereupon to send a second Warrant absolutely to do it 9. Where any of the Presidents in the Clarks Cabinet do differ from the things we have laid down in this Work our advice is that you do not follow them SECT 60. About Watch and Ward ANy one Justice of Peace may cause Watches to be set from Sun to Sun between Aseension and Michaelmas-day But it is handsome to do this by two or more Justices of the Peace at a Meeting of Justices And if neglect be found in them that Watch or look to the Watch one Justice alone may punish it perhaps by binding to the good Behaviour or Good Behaviour which is more safe he may cause him to be Indicted at the Sessions for it SECT 61. About Weights and Measures AS to him that shall buy or sell by or keep any other Weight or Measure whereby any thing is bought or sold then according to the Standard of the Exchequer In this case any one Justice of Peace may upon the proof hereof by the oath of one witnesse convict him and then may send his Warrant to the Church-Wardens and Overseers of the place where c. or one of them to give them notice hereof who by their Offices are to levy of him 5 s. to the use of the Poor of the place where c. by distresse and sale of goods rendring c. And if there be no distresse the Act is to send the offender to Goal till he pay the Forseiture But it
Be guilty or not And the Jury doth find him Guilty And this is the common way of Tryall But there are in some special cases other wayes of Tryall there by Certificate Examination of the offenders and witnesses but this is very rarely used The Statute-Lawes Acts and Ordinances of Parliament wherewith the Justices of the Peace have to do are many And those especially as to the point of Conviction of offenders and the execution thereupon they are variously penned Not three of threescore of them do agree therein but are of severall forms of drawing in that part For 1. As to the persons that are to do the work Some of them say That the Justices of the Peace of the County may do it Some That all the Justices may do it Some That any of the Justices may do it Some That any one of the Justices may do it Some direct That the thing must be done by one some by two some by more Justices And some That one of them that do it must be of the Quorum 2. As to the place where they are to do it Some of the Lawes say That it shall be done by the Justices and do not say where is shall be done Others say It shall be done in the Quarter-Session Others in the General Sessions Others in the open Sessions or in the publike Sessions Others in the General or Quarter-Sessions Others in the ordinary Sessions Others at the usual and General Sessions And others say in the Sessions Others in any Sessions of the Peace c. 3. As to the words by which the Justices are empowered Some Statutes c. give to the Justices power and authority by these expresse words That they shall have power Others are That they shall do it Others That they may do it Others That it may be done before or by them Others thus Such a thing to be done by the Justices of the Peace and the like 4. So for the manner of the doing of it 1. For the Conviction of the offender of his offence Some Statutes c. set down a penalty and say That the Justices shall hear and end it and do not say how Others say That the Conviction shall be by the Oath of witnesses some by one some by more witnesses Some by the hearing view or sight of Justice of Peace Some by the Consession of the offender Some by the proof not saying upon Oath of Witnesse or Witnesses Some by Information Some by Examination And some by Certificate Some by any one some by two or three of these wayes And some give power to administer the Oath and some give no power to administer the Oath 2. And so for Execution Some direct somewhat to be done and say not who shall do it Some of them direct the Justice of Peace to make a Warrant and say not what Warrant whether in writing or under hand or seal or to whom it shall be directed Some are appointed to be sent to the Constables some to the Church-wardens some to Overseers of the Poor and some to two sorts of them Some appoint the Warrant to be in writing and under the hand and seal of the Justice of the Peace 5. And so for the matter or thing to be done Some to hear and determine in the offence some to punish the offender some are to put the Statute in execution Others to punish offenders against that Law Some give a power to commit the offender to the Goal some to the Bride-well some to distrain his goods c. Some are to convict the offender and then to proceed to execution Others are That the Justices shall convict the offender and then certifie this Conviction to some other Court c. We shall lay down divers examples of these things And then give our opinion upon them by way of Question and Answer SECT 2. 1. Some of the Statutes c. we speak of seem to give to the Justices of the Peace a power to do something onely or cheifly in the Sessions of the Peace And some again seem to give them a power to do somewhat with out the Sessions of the Peace And some again seem to give them a power to do something within and without the Sessions as they please to do it And some seem to give a Power to do the work part of it without and part of it within the Sessions 2. Some Statutes Acts and Ordinances of Parliament are penned as to the Conviction of Offenders to this To hear and Determine Horses Sheriffs High waies and Bridges Fish Victuallers Guns Perjury Navy Lords-day Forcible Entry Captains Prophecies Hunting Gold and Silver Blasphemy Wandring Souldiers and Mariners purpose That the Justices of the Peace shall have power to hear and determine the offences So is 2 and 3 Ph. and M. 7. 31 Eliz. 12. 32 H. 8. 13. of Horses 27 Eliz. 7. 12. Of Sheriffs 12 March 1649. of Butter 18 Eliz. 12. of High-wayes 22 H. 8. 5. Of Bridges 1 Eliz. 17. of Fish 2 and 3 Ed. 6. 15. of Victuallers 33 H. 8 6. of Guns 5 Eliz. 9. of Perjury 8 Eliz. 5. of the Navy 17 Septemb. 1656 of the Lords Day 8 H. 6. 7. of Forcible Entry 2 and 3 Ed 6. 2. of Captains 5 Eliz. 15. of Prophecies 5 Eliz. 21. 3 Jac. 13. of Hunting 23 of Eliz. 10. of Hawking 8 H. 5. 3. of Gold 2 H. 6. 14. of Silver 9 August 1650. of Blasphemy 39 Eliz. 17. of wandring Souldiers and Mariners All these and some others do run to this purpose And yet the greatest part if not all of these do differ amongst themselves the one from the other some of them give power to the Justices of the Peace to enquire hear and determine Others to examine enquire hear and determine others to examine and determine And some of them are onely to hear and determine Some of these also are to hear and determine in the Quarter-Sessions others in the generall Sessions Others in the Sessions Others to hear and determine the offences But doth not say where And in some of them there are Additions of other things Some give them power to hear and determine by Bill Plaint c. and some by one way and some by another way and some by no way at all Some of them do add that the Justices shall grant out process Others that they shall fine Others that they shall do execution thereupon according to the Law and the like 3. Others there are that are penned in other words but much to the same purpose As for example One is penned to this purpose That the Justices of the Peace in their Sessions Adultery shall have power to give in charge to a Jewry to enquire and shall enquire by the verdict of twelve men of all the said offences c. And upon Enditement or presentment to hear and determine as in other cases of Felony or Trespasse So 10th May 1650 of Adultery 4. Others to this purpose That a
the overplus And for lack of distresse That the party offending shall be set in the stocks three hours See 6th of April 1644. and 1 Car. 1. Of the Lords Day 19th April 1650. Of the Lords Day 2. Another to this purpose That if Swearing any shall offend c. in the presence or hearing of any Justice of Peace where the same offence shall be committed or shall be thereof convicted by the Confession of the party or by the Oath of one Witnesse before any Justice of Peace which Oath he shall administer that he shall forfeit c. And that all and every the said Forfeitures shall be levied of the Goods and Cattle of every person so offending by Warrant from such Justice of Peace by distresse and sale thereof restoring c. and in default of payment thereof or security given for it if no distresse be found the offender if above 12 years shall by Warrant from such Justices of Peace be set in the stocks for three hours If above 12 years old then that the Justice of Peace shall give his Warrant to the Constable to whip him So Act. 1650. Of Swearing 3. Another to this purpose That the offender shall forfeit c. being Stage-Players convicted thereof by his own Confession or proof of any one witnesse upon oath before any one Justice of Peace which he shall administer to be levied by the Constables or Church-wardens of the Parish where c. by Warrant of the Justice of the Peace by distresse and sale c. See Old 11th Febr. 1647. Of Stage-Players 4. Another branch of the same Law Stage-Playes is to this purpose That all such offenders as upon view of two Justices of the Peace or any of them Or by the Oath of two witnesses which they may administer shall be proved before any two of them to have offended c. that they by their Warrant under their hands and seals shall cause them to be apprehended and openly whipt in a Market-Town 11th Febr. 1647. Of Stage-Playes 5. Another branch of the same Law is to this purpose That he that offends Lords-Day shall forfeit c. The said offence being done in view of any Justice of Peace c. or being proved upon Oath by two or more witnesses or by the Confession of the party offending before any such Justice of Peace which they may administer All which penalties shall be levied by any Constable or Church warden by Warrant from any such Justice of Peace by distresse and sale c. So 3 Car. 1. Of the Lords Day 6. Another to this purpose That Excise the offender upon due proof thereof made by the Oath of two or more witnesses before any Justice of the Peace of c. shall forfeit c. To be levied by distresse c. And that all Justices of the Peace of the c. are hereby required and authorized to put this Clause in Execution and the said penalties and forfeitures to cause to be paid to the Sub-Commissioners of Excise Act. 14. August 1649. Of the Excise Another after the same manner the offence being proved by the confession of the party and proof by the oath Titles of Honour of one or more witnesses before one or more Justices of the Peace Which said Justice and Justices are hereby authorized and required to cause the same to be paid accordingly and in case of Refusal to levy by distresse c. And for want of distresse to cause the said offender to be set in the publike stocks for three hours So 4th of April 1651. Of Titles of Honour 7. Another to this purpose That the offender shall forfeit 10 5. the same Ale-houses offence being seen and viewed by a Justice of Peace c. or proved by the Oath of two witnesses before any such Justice of Peace which he may administer And that all the said penalties be levied by the Constables or Church-wardens of the place by Warrant from one Justice of the Peace of the County c. by way of distresse to be taken and detained for the Forfeiture And for default of satisfaction within six dayes after the distresse taken the same to be presently apprised and sold and the surplusage to be delivered c. And for want of such sufficient distresse the party offending to be by the said Justice committed to the Common Goal there to abide till the penalty be paid So 1 Iac. 9. 21 Iac. 7. Of Ale-houses 8. Another to this purpose That Drunkennesse the offender shall forfeit c. to be levied by way of distresse by any person or persons having Warrant from any Justice of Peace or Court where any such Conviction shall be So 4 Iac. 4. Of Drunkennesse And after by 21 Iac. it is added thus That proof of one witnesse shall be enough-And that any one Justice of Peace shall have power upon his own view Confession of the party or proof of one witnesse upon Oath which he shall have power to administer to convict any offender 9. Another to this purpose That any two Justices of the Peace may Cloth grant their Warrant to call before them Witnesses and to examine them upon Oath And if it be found by the oath of two witnesses or Confession of the party offending that he hath done it that he shall remain convict of it And the Justices may certifie it under their hands and seals unto the Church-Wardens and Overseers of the Poor of the place where c. And that then immediately after the said Certificate shall be so delivered to such Church-wardens c. and Warrant by them made to the said Overseers and Church-Wardens for the levying of the said Forfeiture it shall be lawfull for them to levy the same by distresse c. And for lack of such distresse it shall be lawfull for the said two Justices of Peace to commit the offender to the Common Goal without bayl till payment be made of the Forfeiture to the Church-Wardens c. 21 Iac. 18. Of cloath 10. Another is to this purpose After Ale-houses a good power given to convict of one offence and to levy the Forfeiture for the same That for another offence it being duly proved in manner as is before limited To be levied in such manner as is before appointed by this Statute So 1 Jac. 9. 4. Jac. 4 5. Of Ale-houses 11. Another thus That any Justice Logwood or Justices of the Peace c. may cause the Servants or Workmen of the offender to come before him oâ— them and them to examine by oath or otherwise And if upon Examination they find the thing to be so That then they may bind them and the Witnesses over and certifie the Examinations to the next Sessions or if they refuse to be bound send them to Goal So 39 Eliz. 11. Of Log-wood 12. Another to this purpose That they that shall offend and the offence be proved by the Consession of
Justices may without oath examine Witnesses and order his punishment as upon the Act of 18 Eliz. about a Bastard But the words seem to me to contain in them probably a power of Oyer and Terminer in the ordinary way of Tryall But we do not presume to give forth anything for certain herein Quest 17. Where a Statute c. in one part thereof giveth power to the Justices of the Peace to hear and determine an offence and in another part thereof is this clause That any two Justices out of the Sessions may examine hear enquire and determine and to administer Oaths c. As it is in 1 Iac. 27. of Phesants How this Phesants shall be taken and what the two Justices of the Peace may do herein out of Sessions Answ We do not understand what the two Justices of the Peace may by these words do out of the Sessions nor what the words do intend except it be to give power to convict the offender at the generall Sessions and also at a speciall Sessions kept for that purpose onely Quest 18. Where a Statute c. giveth a power to one two or more Justices of the Peace in a special way and out of the Sessions to convict an offender of his offence And the same Statute doth nor give to the Justices of the Peace a generall power also to hear and determine the offence As it is in the Act of 1650 about Swearing and Swearing divers others Whether in this case the Justices of the Peace may by their Ordinary way of Tryall in the Sessions hear and punish this offence Answ As to this case we do conceive that there can be no conviction of this offender for his offence elsewhere or otherwise then before the one two or three Justices of the Peace out of a Sessions of the Peace And that the Justices of the Peace in their Sessions are not to intermeddle therewith But that Sessioâ—â— in cases where there is a generall clause also inserted in the Statute to give to the Justices a power to hear and determine the offence as there is in 23 Eliz. 10. 39 Eliz. 4. 1 Iac. 27. 9 August 1650. 9 Febr. 1647. There the offender may be proceeded against by the one or by the other way Quest 19. Where a Statute c. doth give power to the Justices of the Peace to distrain the goods of an offender or to send him to prison for a Forfeiture But there is no way for the Poor Marriners and maimed Souldiers Conviction of the offender set down by the Statute As it is 43 Eliz. 2. of the Poor and Chap. 3. of Mariners and maimed Souldiers 13 Eliz. 10. of High-wayes 5 and 6 of Ed. 6. 25. of Ale-houses 1 Jac 9. 21 Jac. 7. 4 Jac. High-wayes Ale-houses Drunkennesse Lords-Day 5. 1 Car. 4. of Ale-houses and Drunkennesse and 19 April 1650. of the Lords-Day 7 Jac. 4. What shall be done in this case And whether it may not be supplyed by the Sessions Answ We do conceive it will be in this as in the last Case That where there are no generall words in the Statute c. to give power to the Justices of the Peace to hear and determine Sessions the offence That in this case there is no way to punish the offender And so also it will be in case where the Statute doth give a power of Conviction but no power of Execution As it is in two and three of Ed 6. about Souldiers 21 Iac. 18. of Cloath 17 Septemb Souldiers Cloth Lords-day 1656. of the Lords-Day And so also it will be where the Statute c. doth not appoint a way of Conviction or of Execution but both are omitted As it is in 7 Iac. 4. of Bridgewell and 21 Iac. 28. And that it is Bride-well Caution to the Justices not safe for the Justices of the Peace to give Warrants in these Cases Quest 20. Where a Statute c. doth say a Conviction shall be before the Justices by the proof or by the Testimony of witnesses And it doth not say upon Oath As in 21 Jac. 18. of Cloth 39 Eliz. 4. of Bride-well Cloth Bride-well Crows 24 H. 8. 10. of Crowes What proof this must be Whether proof upon oath Answ We conceive it to be doubtfull But that the most sure way for the Justices is to adventure to do it by the ordinary way of Indictment and the Tryal of a Jury Quest 21. Where a Statute c. doth direct the Conviction of an offender to be by oath before one or niore Justices of the Peace But it doth not give power to the Justice to administer the oath As in Act. 4th Febr. 1641. of Titles of Honour 14 August Titles of Hounour-Excise Hue-and-Cry 1649. of the Excise 27 Eliz. 13. of Hue-and-Cry Whether in this case the Justice of Peace may administer the oath Answ We conceive Yea. And yet there are very few of the Statutes and Acts that do omit the inserting of a Clause to give power to the Justice to administer the oath See for this the manner of penning of the Act of 27 Eliz. 13. for the oath of him that is robbed to be taken before a Justice of Peace Which is admitted to be good and taken daily Quest 22. Where a Statute c. doth give power to a Justice or Justices of the Peace to convict an offender and levy the Forfeiture by distresse with this That in case of lack of distresse they may proceed further How this lack of distressâ— shall be understood Answ By this we conceive shall be understood Lack of distresse in the place into which the Officer by his Warrant is to enter and execute it Quest 23. Where a Statute c. gives a power to a Justice to distrain and for lack of distresse to proceed further to imprison c. How the Justice shall in this case take notice of the lack of distresse so as to grant his second Warrant upon it Answ In this case we conceive iâ— safest for the Justice if the Statute will bear it out to put it in his first Warrant to the officer thus That he shall distrain and in case of lack of distresse that he shall carry the party to prison or put him in the stocks c. as the Case is And so put the work upon the Officer to take care of it Quest 24. Where a Statute c. gives power to a Justice to convict an offender and levy the Forfeiture for his offence And then these words are added That in case of lack of distresse the offender shall be committed or the offender to be committed but it doth not say by whom he shall be committed As is 39 Eliz. 11 of Log-wood Log-wood Blasphemy Deer Drunkennesse Excise Ale-houses Lords day Such as live at high Rates c. 9 August 1650 of Blasphemy 19 H. 7. 11. of Deer 4 Jac. 5. 21 Iac. 7 of Drunkennesse 14 August 1649.