who giveth victory according to truth Se defendendo tollerated 11. Also when one man killeth another in the necessarie defence of himselfe or his thereby to deliver himselfe his possessions or his goods or some other persons which he is bound to defend from perill and which cannot otherwise escape this is homicide tollerated upon necessitie 12. As to kill an offendor which shall attempt feloniously to murder or rob me in my dwelling house 24. H. 8. 50 P. Forf 1. Coro 103. 305. or in or neere any high way horse-way or foot-way or that shall attempt Burglariously to breake my dwelling house in the night this is justifiable by my selfe or by any of my servants or company Co. 5. 91. 11. 82. Exod. 22.2 And this being so found by verdict upon triall we shall be all discharged without losse of life lands or goods or pardon For to kill a Theefe or murderer in the defence of my person my house or goods is no felony 26. Ass 32. F. Coron 261. 305. 330. but justifiable by the common Law Stamf. f. 14. See Co. 5. 91. 11. 82. Br. Coron 100. 102. 13. And if one or moe come to burne my house I or any of my servants may justifie to shoot forth of my house at them and to kill them for such intent of theirs is felonious Prohibited But if a man shall forceibly get and keepe possession of a house they within cannot justifie to shoot and kill him that was so put out or any of his Company for that they in the house were there unlawfully See Cromp. 26. B. 14. If one commeth in the day time or in the night to enter into my house pretending title thereto and to put me out of my possession and I kill him this seemeth to be manslaughter in me 15. If one commeth in the day time to my house to beat me F. Coro 305. and doth make an assault upon me in my house and fighteth with me and I kill him in defence of my person Co. 5. 91. yet in this case I shall forfeite my goods and must have the K. pardon of course except it be found that the assaylant came with a felonious intent to kill or rob mee 16. Note if one kill a true man in defence of his person there ought to be so great a necessity Stamf. 15. 2. that it must be esteemed to be inevitable or otherwise it will not excuse and therefore he that shall be assaulted by a true man must first flie as far as he can Co. 5. 91. 4. H. 7. 2. and till he be letted by some wall hedge ditch presse of people or other impediment so as he can flie no further without danger of his life or of being wounded or maimed and yet in such case if he kill the other he shall be committed till the time of his tryall and must then get his pardon for his life and lands which pardon notwithstanding he shall have of course yet he shall loose and forfeite his goods and Chattels for the great regard which the Law hath of a mans life Co. 5. 91. b. 17. 6. E. 1. c. â— P. Pardon 1. A. maketh an Affray upon B. and striketh B. and B. flyeth so farre as he can for saving his life before any stroke given by B. and A. continueth his assault whereupon B. doth also strike A. and killeth him this is homicide in his owne defence otherwise it seemeth to some if B. had stroken the first blow or had stroken before he had fled and yet by other good opinions the first stroke or who began the Affray is not materiall but the whole matter will consist upon the inevitable necessitie sc whether the said B. who killed A. could not have escaped with his life Stamf. 15. c. without killing A. for otherwise it will not excuse B. for cuncta prius tentanda And as it is a charitable so it is a safe principle in these cases not to trie an extremitie till thou hast tryed all other meanes And by Stamf. fo 15. It is holden in the former case F. Coro 184. 286. 287. Stamf. 15. if B. before he had fled had striken A. and given him diverse wounds that yet if he flie to a straight before hee give A. the mortall wound and then he giveth his deaths wound this is homicide in his owne defence 18. But in the former case if B. upon malice prepensed had first stroken A. and then B. flyeth to a strait or wall F. Coro â— 87. Cromp. 22. 28. b. and A. pursueth him and striketh him and B. killeth A. thereupon this is murder in B. for the malice prepensed was the ground and beginner hereof yet if there had been former malice betweene A. and B. and they meet suddenly and A. assaulteth B. and B. before any stroke by him given flyeth so farre as he can and A. pursueth him and then B. killeth A. this seemeth to be homicide in his owne defence notwithstanding the former malice 19. Copstones case There was malice between Copstone and one S. and they had fought divers times 15. El. Cromp. 27. and after met suddenly in London and C. told S. that he would fight with him and S. answered that he had nothing to say unto him and S. went to the wall and after C. assaulted S. and then S. stroke and killed C. and it was found that C. began the Affray and S. was thereupon discharged without forfeiting any thing But that was by force of the statute 24. H. 8. cap. 5. which is not in force in Ireland and therefore as the Law is in Ireland Copstone should have forfeited his goods and have had his pardon of course 20. Also if a Theife assaults mee to rob or kill mee I am not bound to flie to a wall Stamf. 14. c. as I must in case a true man assaults mee and so if an officer of Iustice or Minister of the Law in the execution of his office Co. 9. 98. be assaulted he is not bound to fly to a wall c. as other subjects are 21. Also the servant may justifie the killing of another in defence of his masters person â—1 H. 7. 19. or house if the hurt cannot be otherwise avoided Br. Coron 63. Also the servant may justifie the killing of him who robbed and killed his Master so that it be done presently and by a statute in Ireland made in Anno 28. H. 6. ca. 3. It is lawfull to kill Theeves found robbing 22. In the defence of the possession of my goods I may justifie to beat him that shall wrongfully take them from me but I cannot justifie to kill him except he be a Theife 23. So then to kill a true man in defence of my person in case where there is an inevitable necessity sc that I first shall fly so farr as I can for saving my life c. this is no felony
39 40 41. Ca. 31. Who may commit a forcible Entrie c. 1. Of the number of the persons S. 1 7. 2. Of the qualitie of the persons S. 2 3 4. 3. Of the commandement before or consent after the force Sect. 5 6. 4. Of the persons put out by force S. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22. 5. Of the weapons offensive S. 23 24 25. 6. Of force justifiable or not justifiable S. 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Ca. 32. Where a forceible detainer of possession is lawfull Where a continued possession of 3. yeares may bee maintained with force S. 1 2 3 4 c. to the end of the Chapter Ca. 33. How many severall remedies the party hath which is either forcibly put or thrust out of posses 1. By an action upon the statute of 8. H. 6. S. 1 2. 2. By a writ upon the statute of Northhampton S. 3 4. 3. By endictment upon the statute of 8. H. 6. in the Sessions of the peace S. 5. 4. By complaint to one or more Iustices of peace out of Sessions Sect. 6. 5. By removing the Endictment into the Kings Bench S. 7. 6. How the Iustice of peace is to proceed to the enquiry S. 8 9 10 11 12. Ca. 34. Of restitution to be made to the party put out 1. In what cases the party put out shall be restored and by whom S. 1 2 3 4 14 15 16 17 18. 2. The Endictment must be sufficient matter and forme S. 5 6 8 9 10 11 12 13. 3. Of what things restitution may be made S. 8. Ca. 35. Who shall award and make this restitution 1. The Iustice of peace before whom the Inquisition was found shall award or make the restitution and none other S. 1 2 3. 2. The Iustices of the Kings Bench upon a Certiorari may award it but not doe it in person S. 4 5. 3. The Sheriffe shall be amerced if he returne that he could not make restitution by reason of resistance S. 6 7. Ca. 36. To whom this restitution is to be made 1. To the party that was put out and to none other S. 1 2 3 4 5 6. 2. Where the disseisor which is put out with force shall not be restored and if he that entred with force shall be fyned and imprisoned S. 7 8 9. 3. Where diverse claime the possession and both are upon the land who shall be adjudged session S. 10 11. 4. Where one Ioyntenant or Tenant in Common putteth out the other by force he that is put out cannot be restored by a Iustice of peace S. 12. 5. Two Iointenants put out S. 13. 6. Coppiholder Lessee for yeares Tenant at will Tenant by Elegit c. S. 14 15. Ca. 37. Causes for staying the Iustices of P. from granting Restit 1. The title found or proved before the Iustice of peace S. 1. 2. Three yeares possession S. 2 5. 3. A Certiorari S. 2 6 7 8 9. 4. The insufficiency of the Indictment S. 3. 5. The tender of a Traverse S. 10 11 12 13. 11. Games unlawfull ca. 38. 1. What punishment a Iustice of peace may inflict upon common gamesters such as keepe common gaming houses S. 1. 2. What games are unlawfull and what not S. 2. 12. Hâ—y cry ca. 39. 1. In what case the Iustice may cause it to be levyed Sect. 1. 2. How it ought to be made S. 2 3. 13. Hunting hawking and hawkes ca. 40. 1. What a Iustice of peace ought to doe upon Information unlawfull hunting S. 1 2 3. 2. Where and in what cases such hunting will be felony and where a Riot S. 2 4. 3. No man can make a parke or warren without the Kings lycense or grant S. 5. 4. The imbezelling of a hawke that is lost is felony S. 6. 14. Inrolements ca. 41. 1. What deeds may bee inrolled before a Iustice of peace and Clerke of the peace and within what time S. 1 2 3 4. 2. How many dayes shall be accompted for a moneth S. 4 5 6. 15. Labourers Artificers servants ca. 42. 1. Iustices of peace may commit such as refuse to labour Sect. 23. 2. What persons may be compelled to labour and how they shall be punished for their refusall Sect. 1 23 35 36 37 38 39 40 41. 3. The punishment of servants departing within the time of their service S. 2. 4 The retaining of one that is another mans servant S. 2. 5. What wages servants Labourers or Artificers ought to take S. 3 4 5 6 7 8 9 20 21 24 25 26. 6. The punishment of such as refuse to performe the ordinances of the statutes of Labourers c. S. 7 10 11 14. 7. That Bailiffes and Constables be sworne to enquire of and present all such as shall transgresse the ordinances concerning Labourers c. S. 11. 8. Nothing to be taken by Gaolers or any others of Labourers c. for fees S. 12 19. 9. Encouraging of Labourers c. against the ordinances concerning them and the punishment of servants departing into other Counties contrary to those ordinances S. 13 15 16. 10. Iustices of peace to heare and determine the points of the statutes concerning Labourers and Artificers Sect. 17 18 22 23. 11. That servants intending to depart from their masters at the end of the Terme shall give warning S. 23. 12. What the Common Law was concerning Labourers c. S. 28 29 30 31 32 33 34. 13. Who are compellable to labour by the statute of 23. E. 3. S. 35 36 37 38 39 40 41 42 43 44 45. 14. What is a good retainer by that statute S. 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64. 15. What be good causes for a servant to depart S. 65 66 67 68 69. 16. How and in what manner the master may discharge his servant S. 70 71 72 73. 17. Who may lawfully take a servant out of his masters service S. 74 75 76 77 78 79 80. 18. In what cases a man may receive another mans servant S. 81 82. 19. Who shall in law be adjudged another mans servant S. 83 84 85. 16. Misprisions ca. 43. 1. The severall sorts of Misprision and the severall punishnishments S. 1 5. 2. What offences are misprisions of Treason or felony S. 2 3 4. 3. What authority a Iustice of peace hath in cases of Misprision of Treason or felonie 17. Night-walkers ca. 44. 1. How Night-walkers are to be punished S. 1. 18. Peace ca. 45. 1. The power of the Iustice of Peace for the keeping of peace Sect. 1 2. 19. Posse comitatus containing two Chapters viz. 46. and 47. 1. Who may raise Posse comitatus and for what cause S. 1 4. 2. Who ought to assist when Posse comitatus is required S. 1 2. 3. The number requisite how they shall be armed Sect. 3. 1. A Iustice
yet it is not disputable by the Constable or other such officer but must be obeyed and executed by the Officer As if the Iu. of peace shall make his warrant to arrest one for the peace or good behaviour without cause the officer shall not bee punished for executing this Co. 10. 67. But if a Iu. of P. shall make his warrant to do a thing out of his Iurisdiction or in a cause whereof the Iustice of peace is no Iudge if the officer shall execute such a warrant here he is punishable for the officer is not bound to obey him who is not Iudge of the cause no more then a meere stranger And so note that the officer is bound to take notice of the authority and jurisdiction of the Iudge 22. Ass 64. Plo. 394. b. 41. If any man shall abuse the Iu. of peace his warrant as by casting of it into the dirt or treading it under his feete he may be bound to his good behaviour and may also be indicted and fined for it is the Kings processe 42. When any person commeth before the Iu. of peace by force of any warrant for the peace good behaviour or for a Riot or the like the party must offer sureties or else the Iu. may commit him 43. If a Iustice of peace shall grant his warrant to one to apprehend another for Treason or felony it shal be safe for the Iustice upon the delivery of his said warrant to take upon oath the examination of the said party that requireth the warrant or at least to bind him over by recognizance to give Evidence at the next gaole delivery against the offendour least that afterwards when the offendor shal be brought by the officer before the Iu. upon his said warrant or else happen to yeild himselfe to the said Iustice then the party that procured the warrant be gone 44. If the Constable or other officer upon a warrant received from a Iu. of peace shall come unto the party and require or charge or command him to goe or come before the Iu. this is no arrest or imprisonment and upon a warrant for the P. the officer ought first to require the party to goe before the Iu. before he may arrest him 45. But this arrest being in execution of the commandement of some Court or some officer of Iustice is expressed in their writs precepts or warrants by these words or the like sc Capias Attachias c. to attach arrest take bring or convay or cause to be attached arrested c. All which words do imply the taking and laying hold of the person 46. What persons To this arrest all lay persons under the degree of Barons or peeres of the Realme be subject and that by warrant from the Iustices of peace as you may see here tit Surety for the peace 47. But the Iu. of P. are not to grant their warrants for the peace or the like against any noble man And yet if a capias or attachment shal be awarded against a Baron or Peere of the Realme from the K. Iustices at Dublin for a contempt or in case of debt or trespasse the officer without any offence of Law may execute the same for that the officer is not to dispute the authority of the Court. 48. Ecclesiasticall persons also may be arrested and that by warrant from the Iustices of peace in some cases see more hereof in the Title Suretie for the peace A woman covert may be imprisoned by the Iu. of P. for a force or Riot committed by her 49. But otherwise of young Infants in such cases yet if an Infant of yeares of discretion cannot find sureties for the peace being demanded against him he shal be committed untill he hath found sureties 50. The liberty of a man is a thing specially favoured by the common Law of this land and therefore if any of the K. subjects shall imprison another without sufficient warrant the party grieved may have his Action of false imprisonment and shall recover damages against the other And the King also shall have a Fine of him For imprisonment of another without authority of the Law 51. Also by the statute of Magna Charta made 9. H. 3. ca. 29. No freeman shal be taken or imprisoned c. but by the lawfull judgement of his equals sc by the verdict of a Iury of 12. P. Accusat 1. 5. E. 3. ca. 9. good and lawfull men or by the Law of the realme Co. 10. 74. 75. And by this statute of Magna Charta Every arrest or imprisonment and every oppression against the Law of the land is forbidden and if any Iudge Officer or other person against the Law shal usurpe any jurisdiction and by colour thereof shall arrest imprison or oppresse any man it is punishable by this statute See Co. 10. 75. 52. Note that all jurisdictions ought to be either by Charter or by prescription Co. 11. 99. 42. Ass p. 5. 53. Also by the statutes of 25. Ed. 3. cap. 4. 42. Ed. 3. cap. 3. No person shal be taken nor put to answere unlesse it be by indictment or presentment of a Iurie before Iustices or matter of record or by due processe made by writ originall at the common Law 42. Ass 5. 42. Ass p. 5. 54. A Commission to arrest or take a man and his goods was holden to be against Law for that this ought to be either upon indictment or suit of the party or other due processe of Law Br. Commiss 15. 16. Faux Impris 9. 55. Neither shall any man commit another to prison except he he be a Iudge of Record Co. 10. 103. See Co. 3. 12. A. 56. And yet for misdemeanors done against the Kings peace the offendors aswell by the common Law as by diverse statutes may be arrested and imprisoned by the officers of justice and sometimes by private persons as hereunder followeth without either presentment or processe c. And these being by the Law of the realme are warranted by the aforesaid statute of Magna Charta 10. E. 4. 17. As every private man may arrest another whom he knoweth to have committed a Treason robbery manslaughter or other felonie and may deliver him to the Constable of the Towne where such an offendor is apprehended 9. E. 4. 28. Or in the Constables absence may imprison and set him in the stocks and if there be no stocks there it seemeth he may carry the offendor to the next Towne and deliver him to the Constable there Vide 9. E. 4. 28. or bring him before a Iustice of peace to be by him committed and examined 57. Also when a Treason or felony is committed every man may arrest suspitious persons that be of evill fame and if such person shall make resistance the other may justifie to beat him 58. But for the arresting of such suspitious persons note that there must be some Treason or felony committed indeed 59. Also the party
Fuller Shereman and Dyer shall duely doe his labour in his occupation upon paine to yeeld to the party grieved in this behalfe his double damages 2. And that every Fuller Fuller in his Craft and occupation of fulling rowing or tazeyling of cloth shall exercise tazells and no Cardes deceiptfully empayring the same cloth upon paine to yeeld to the party grieved his double damages 3. And that every Iustice of peace for the time being of every County of this Realme throughout the same County out of Cities Burroughes and Townes where any Maior Maister Warden bailiffe or bailiffes is or be and every Maior where there is no maister and every maister where there is no Maior and every bailiffe or bailiffes where there is no Maior nor maister and every Portreve where no Maior maister bailiffe nor bailiffes is or be of every City Burgh and Towne within every such County aforesaid and every Constable of hundred where any Constable of hundred is out of every Citty Burgh and Towne where any Maior Maister Bailiffe or Bailiffes or portrives is or be And every Steward keeping or holding Wapentake or Leete of any person out of City Burgh or Towne where no Maior Maister bailiffe or bailiffes or portreves is or be shall have power and authority by this ordinance to heare and determine the Complaints of every such cloth-maker and labourer aswell for non payment of the said labourers wages as of the said forfaiture and damages by due examination of the parties in this behalfe thereupon for non payment of the said duties and forfaiture and for the said damages to commit the said offendors in this behalfe to the next gaole within the same County there to remaine till the said duties forfaitures and damages be duely paid to the said labourer or cloth-maker And also that every of the said Iustices of P. Maior Maister Warden bailiffe or bailiffes portreve and steward or Wapentake and Leete upon the information or complaint of any other person which is not grieved in this behalfe shall have power by the said authoritie within his jurisdiction to cause the party to come before him against whom such Information or complaint shall be made for offending this ordinance and to examine them in and upon the matter contained in the same information or complaint And if the party by examination or other due proofe be found guilty or defective that then the same party as often and for every time that he is so found guilty or defective shall forfeite to the King or to such person or persons which is or be intituled to have fines or amerciaments for offences done within there Iurisdiction three shillings and foure pence And that every of the said Iustices of peace and other officers aforesaid within their Iurisdiction upon every of the said Informations or complaints shall have full power to make like proces against the party upon whom any such Information or complaint as before is rehearsed shal be made to cause him personally to appeare before him thereupon to be examined as Iustices of peace have upon Information or complaint made to them for surety of the peace without any Fee or reward to be taken or had by any of the said Iustices or any other officer in this party for the execution of their offices in this behalfe Constables CHAP. 8. 1. EVery Iustice of peace may cause two Constables to be chosen in each hundred or barony And this is to be understood of the high Constables of hundreds and it is implyed of congruence that he sweare them 13. Ed. 1. ca. 6. and this seemeth to bee by vertue and force of the statute of Winchester made 13. Ed. 1. and of the first Assignavimus of the Commission of the peace 2. 13. Ed. 1. ca. 6. Note that these Constables of hundreds were first ordained by the said statute of Winchester tempore Ed. 1. And they were to make view of armour twice every yeare and to present before Iustices assigned defaults of Armour of Watches of high-waies and of Huy and Cry and also all such as lodged strangers for whom they would not answere 3. See stat 4. Ed. â— ca. 3. 10. Petie Constables in Townes and parishes were after devised for the aide of the Constables of the hundred viz. about the beginning of the raigne of K. E. 3. as appeareth by Master Lambert in his booke of the duties of Constables pag. 9. 4. The chusing and swearing of these petty Constables is reputed properly to belong to the Court Leet One Iustice yet we finde it usuall and warranted by common experience that every Iustice of Peace doth also sweare them 5. And here for the better chusing of these Constables you shall understand that the law requireth that every Constable be Idoneus homo Co. 8. 41. that is apt and fit for the execution of the said office and he is said in law to bee Idoneus who hath these three things honestie knowledge and abilitie 1. Honestie to execute his office truely without malice affection or partialitie 2. Knowledge to understand what he ought to doe 3. Ability aswell in substance or estate as in body that so he may intend and execute his office diligently and not through impotency of body or want to neglect the place 6. And if any shall be chosen Constable which is not thus inabled and qualified he may by Law be discharged of his said office and another fit man appointed in his place 7. Also by a statute made in Ireland in the fifth yeare of the Raigne of King Edward the fourth it is ordained that in every English Towne of this land that hath more then three houses holden by Tenants where no other president is be chosen by his neighbours or by the Lord of the same Towne one Constable to be president and governour of the same Towne Co. 8. 42. 5. Ed. 4. ca. 5. in Ireland in all things that pertaineth to the common rule of the same Towne as is in ordinance of night watch from Michaelmas to Easter yearely under paine of three pence every night and also to ordaine one paire of Buts for shooting within the Towne or well neare upon the Costs and labour of the said Towne under paine of two shillings from one moneth to other after the publication hereof till the Constable be made and the Buts also and that every man of the same Towne in such houre as the Constable or his Deputy of his neighbours will assigne that is betwixt threescore and sixteene yeares of age muster before the Constable or his deputy at the said Buts and shoot up and downe three times every feast day betwixt the first of March and the last day of Iuly under paine of one halfe penny for every day and that all these paines belevied of their goods or wages from moneth to moneth by the Constable to be spent in strengthning of the same Towne or otherwise in his default to be
such things as was cause of such death after the stroke given taketh not away the Kings right but that he shall have it as forfeited notwithstanding such sale Co. 5. 110. 4. Deodands are not forfeited untill the matter be found of record and therefore they cannot be claymed by prescription Co. 5. 120. F. Cor. 298. Stamf. 21. 5. The Iury which finde the death of the man must also finde and appreise the Deodand and the same shall be levied of the Towne where it happeneth although it were not committed to the Towne to keepe and therefore it behoveth the Towne to see it forth comming See the statute de officio Coronatoris 4. Ed. 1. F. Cor. 289. Stamf. 21. 6. If he that is so slaine be under 14. yeares of age nothing shall be forfeit to the King as Deodand for him by some opinions but I cannot conceive those opinions to be Law 7. And if a man that is unknowne be found dead in the field his apparell and money about him shall be given to the poore P. indictment 27. Stamf. 21. c. And if he were knowne then his goods shall be delivered to his executors or administrators or to the ordinary but shall not be taken as a Deodand in either case for they are not of the nature of a Deodand they being no cause of his death Dyer 77. Co. 5. 110. 8. Next what shall be forfeited and taken for a Deodand The old rule is Omnia quae movent ad mortem sunt Deodanda And yet Deodands may be of some things that a man shall move or fall from though the thing it selfe moves not Deodand quid as to fall from a ship Cart Mow of Corne or Hay c. So as Deodands are any goods which doe cause or are occasion of the death of a man by misadventure See Fitz. Coron 314. 326. 341. 342. 348. 388. 389. 398. 401. 409. 9. If a man killeth another with my sword or other weapon of mine my weapon shall be forfeited as a Deodand Doct. Student fo 156. B. 10. The inquiry of such casuall death belongeth also to the Coroner but if the Coroner cannot have the sight of the body and so cannot inquire thereof it seemeth the King shall be intituled to the goods by a presentment at the quarter Sessions or at the generall Assizes or in the Kings Bench or else the King may be defrauded Homicide upon necessitie CHAP. 15. 1. Commanded SOmetimes the Iustice of Law commandeth a man to be put to death As when the Iudge hath pronounced sentence of death against an offendour attainted by due course of Law there in execution of Iustice an officer or other person thereto lawfully deputed may orderly execute such judgement or sentence according to his warrant and such sentence or judgement pronounced by the Iudge and after lawfully executed by the officer leaveth the name and nature of murder or homicide and is called justice or rather judgement which is the lawfull execution of Iustice Stamf See Doâ— Stuâ—ent fo 133 But if the officer or other person shall proceede therein upon his owne authority without warrant or ordine juris non observato as where an offendour hath judgement given upon him to be hanged if the Sheriffe or other officer c. shall be head him or by other meanes put him to death it is felony in such officer c. 2. Also if a stranger Stamf. 13. being not thereto lawfully deputed shall upon his owne authority put to death an offendor that is condemned to dye this is felony Nay if the Iudge himselfe who gave the judgement of death upon an offendor shall after put the same offendor to death it is not justifiable by him 3. Tollerated Sometimes also the Iustice of Law tollerateth and suffereth a man to be slaine sc for the necessary execution and advancement of justice which otherwise should be left undone And in such case the Law of the land imputeth it not as any fault to him that shall so kill a man but freely dischargeth him thereof without the K. pardon As a Sheriffe Bailiffe F Cor. 261. Stamf. 13. or any other person who hath a lawfull warrant to arreast a man indicted of felony or Treason may well justifie the killing of him if he will not suffer himselfe to be arrested and yeild himselfe and that they cannot otherwise take him F. Cor. 261. Stamf. 13. And so every person whatsoever without any warrant may apprehend a felon or a Traitor upon huy and cry or otherwise and if he will not yeild to be arrested but shall resist or flie the pursuer may kill him without blame 4. Herewith also agreeth the Doctor and Student lib. 2. cap. 41. saying If any person that is no Officer would arrest a man that is outlawed abjured or attainted of Murder or of any other felony and such offend or shall disobey the arrest and by reason of that disobedience he is slaine the other shall not be impeached for his death For it is lawfull unto every man to arrest and take such persons and to bring them forth that they may be ordered according to the Law 5. An offendor in felony or Treason is led towards the Gaole and breaketh away from those that conduct him and maketh resistance or flyeth his conductors may justifie to kill him F. Cor. 288. 328. if they cannot otherwise take him againe 22. Ass 55. 6. A prisoner in the gaole attempteth to escape and having broken his Irons striketh the Gaoler comming in the night to see his prisoners and the Gaoler slayeth such a prisoner this is no felony 7. Riotters and such as shall make any forceible Entrie or deteyner Cromp. 23. 30. 158. against the statutes if they shall resist the Iustices of peace or other the Kings officers or shall not yeild themselves but shall stand at their defence when the Iustice of peace or other Officer shall come to arrest or remove them if any of them happen to be slaine this is no felony in the Iustice of peace or officer or in any of their company that killeth such Riotters c. Cromp. 24. 30. 8. The Sheriffe or his Bailiffe or other officer commeth by vertue of the Kings processe to arrest another for debt or trespasse who maketh resistance Doct. Student 133. and thereupon is slaine by such officer or any of his company this hath been taken to be no felony Stamf. 13. c. f. g. 9. But in all these former cases there must be an inevitable necessity sc that the offendor could not be taken c. without killing of him 7. H. 6. 21. 10. Also in an Appeale of felonie if the Appellant and Appellee doe joyne to try it by battell and therein the one doth kill the other as the law doth allow such tryall so doth it allow the Event to bee justifiable as depending upon the judgement of God
usually weare or shall make any use of such weapons as he doth find in the house to defend his possession therewith these are forceible Deteiners within these statutes 33. If a man that hath peaceably entred into an house will bestow men with force scil with harnesse Ibid. guns or other weapons in some other house or place not farre distant to the intent that they may be ready to assault such as shall enter upon him this is a deteiner with force Cromp. 69. 34. So is it if the disseisor of a house or land shall forestall the way of the dissesee with force and Armes so that the disseisee dareth not enter nor come neere thereto for feare of death c. Dalton pag. 35. So is it if a man shall keepe his cattell in another mans ground by force P.R. 39. claming Common there when he hath no Common in this case the Iustice of peace upon complaint to him made may remove this force And upon view thereof may record it and may commit such offendors to prison and may fine them but cannot award restitution By words 36. Also there may be a forceible deteining of possession by word only without any forceible Act. Cromp. 70. P.R. 39. 37. As if A. hath wrongfully though peaceably entred into the house or upon the land of B. and hath put out B. and shall presently threaten or say to B. that if he doe come thither againe to enter he will kill him This seemeth a forceible Entrie by A. and if B. shall afterwards come againe to make his Entrie and then A. shall threaten to kill him if he entreth there this is a forceible deteiner in A. 38. And it seemeth that to threaten to maime beate or to doe other bodily hurt to B. in the case aforesaid amounteth to a forceible Entrie or deteiner for that death may ensue upon such beating or hurt See 39. H. 6. 50. 7. E. 4. 21. 39. H. 6. 50. 39. But to threaten to burne the house or to spoile his goods therein if B. shall come thither to enter againe this seemeth not to amount to any such matter Br. Dures 9. 12. 16. for that B. may afterwards have his action for the burning of his house or spoyling of his goods and shall thereby recover damages to the value thereof c. 40. Also when B. shall come to make his Entrie as aforesaid Cromp. 70. if A. shall say to him that he will not open the doore this is no forceible deteiner 41. So it is if A. be in possession of a house Cromp. 73. or hath a lease thereof at the will of B. and after B. entreth into the house and commandeth A. to goe out and to leave him the possession and A. will not goe out this is no force for refusing or denying only to goe out is no force unlesse there be withall some forceible Act or threatning speeches ubi factum nullum ibi fortia nulla where there is no fact there is no force Co. 4. 43. 42. A morgageth his house to B. upon condition that if A. shall pay to B. such a day 40. Dalton pa. 181. l. then the said morgage and feoffment to be voide and by agreement of them both A. the morgager continueth the possession untill the day of redemption at which day A. payeth not the 40. l. and after B. commeth to reenter and A. keepeth the possession by force this is a deteiner by force in A. by the opinion of Master Richard Godfrey in a case betweene Willowes and Thurger which opinion I conceive to be good Law for the possession of the morgager after the morgage by agreement was in Law the possession of the morgagee 43. Cromp. 69. The disseisor maketh a gift in Taile to B. who keepeth the land with force at the time when the disseisee maketh his claime which claime is made within the view so neare as he dareth Litt. 429. for feare of death battery or other bodily hurt if B. after such claime shall continue the possess with force he may be thereof indicted for this amounteth to a new Entrie and a deteiner with force by B. 44. And note that wheresoever mine Entrie is lawfull Dalton pag. 181. if the possess be deteined or holden from me by force I may pray the aide of the Iustices of peace to remove such force as it seemeth 45. Rent Cromp. 70. P.R. 63. Dalton pa. 181. If a man hath a Rent or common of pasture out of another mans land and comming to distraine for his rent or to use his common he is so forceibly resisted by the Tenant of the land that he cannot or dareth not either distraine for his rent or take the benefit of his common This is a holding with force in the Tenant and punishable by these statutes 46. Cromp. 69. So it is if the Tenant of the land shall forestall the way with force and Armes or shall threaten him that hath the rent or Common so that he dareth not to come to distraine for his rent nor to take his Common 47. So it is if a man shall distraine for his rent Ibid. Dalton 181. 182. and the Tenant of the land shall make rescous with force and Armes 48. And in these cases of a rent or common the Iustice of peace upon complaint to him made may remove such force and upon view of such force may record it and may therefore imprison and fine such offendors but cannot award restitution sc cannot restore the party to his rent or Common which are to be taken and used in another mans land for restitution is not to be made but only of the house or land as you may see hereafter in its proper place Who may commit a forceible Entrie c. CHAP. 31. 1. ONe person alone may commit or make a forceible Entrie or deteiner The persons if so be he doe it with offensive weapons or doe use turbulent behaviour to the terror or Affray of others Dalton 182. Cromp. 69. 2. An infant of the age of Eighteene yeares by his owne Act may commit a forceible Entrie or deteiner and so he may though he be under Eighteene Dalton 18â— yet it shall be good discretion in the Iustices of P. to forbeare the imprisonment of such Infants See Br. Impris 43. 45. 75. 101. 3. But if an infant commandeth another to enter or hold with force to his use Dalton ibid. which is done accordingly yet the Infant shall not be punished for such offence for his commandement therein was voide Cromp. 69. 16. Ass 7. Br. Impris 45. 53. See more after in the title riot 4. Also a feme Covert by her owne Act may commit a forceible entry or deteiner and upon the Iustices view of the force she shall be imprisoned and it seemeth also she may bee fined in such case But such fine set upon the wife shall not be
levied upon the husband for the husband shall never be charged for the Act or default of his wife but when he is made a party to the action and judgement given against him and his wife Co. 9. 72. Co. 11. 61. 2. H. 7. 16. 5. Diverse doe enter with force to the use of A. who is not then present with them but doth after agree thereto this agreement after maketh A. to be a disseisor Br. force 25. but not to be punished for the force and if A. had counselled consented or agreed thereto before the Entrie yet it seemeth that a commandement consent or agreement before or after though it may make one a disseisor yet it is not to be punished by the Iustice of peace upon these statutes Consent for that a forceible Entrie cannot be adjudged against a man without an actuall Entrie be also made by him or that at least he be present 6. But if A. that shall command or counsell others thereto shall also be present at the time of the Entrie Dalton 182. although he doth then nothing yet he is now become a principall and punishable by these statutes 7. If diverse doe come in one company to enter into lands c. where their entry is not lawfull Dalton 183. and all of them saving one did enter and demeane themselves in peaceable manner and one only doth enter with force or after entry made doth use force and violence this shall be adjudged a forceible Entrie in them all although the force were against their wils Co. 9. 67. 112. 11. 5. for where diverse doe come in one company to any place to the intent to doe any unlawfull thing be it robbery homicide ryot affray or any trespasse here every one of them shal be adjudged a principall doer although they stand but by and doe nothing So it seemeth though some of them come without any intent of evill if they came together in company with the other offendors or if they came after yet if they be either ayding or countenancing to the offendors they shall be also adjudged principall doers aswell as the other 8. An Indictment upon the statute of 8. H. 6. for the King The personâ— put out Co. 1. 46. 10. 112. is not good for the King cannot be disseised nor put out of his freehold neither can the King bring any action upon the statute of 8. H. 6. nor any other action which might prove him out of possession of the land 9. And if the K. termor be put out by force The Kings Tenant Dalton 183. Cromp. 69. he cannot preferre a bill of indictment upon the statute of 8. H. 6. that he was put out and the King disseised But he must have an Information of Intrusion in the Exchequer 10. Dalton 183. Yet it seemeth that upon complaint made to a Iust of peace by the K. termor of any such force the Iustice of peace ought to remove the force and upon his view thereof to record it and to commit the offendors to prison and may fine them and after such force removed the Kings termor may presently reenter if he can in peaceable manner 11. If a forceible entry Lesseâ— for yeares Coppiholdâ—â— or deteiner shall be made upon any Lessee for yeares Tenant at will or upon a Coppiholder whether it be by an estranger or by the lessor or by the Lord the Iustices of peace upon their view thereof are to remove such force Dalton 183. and may commit to prison the parties which made such entry or which shall hold it with force and may fine them but whether the Iustice of peace may make such restitution and set them sc the Lessee for yeares Tenant at will or Coppiholder into their possessions againe hath beene much questioned But now by a statute made in Ireland in 10. Caroli ca. 13. restitution shall be made to Tenant for yeares Tenant at will Coppiholder Tenant by Elegit or statute merchant or of the staple 12. Some held opinion that before this statute the Iustice of peace may put them in possession againe and of this opinion was Maister Marrow and Maister Lamb. and to maintaine this opinion these reasons may be given 1. First for that the words of the statutes seeme to warrant it for the statute 15. R. 2. in the Preamble thereof as also the stat 8. H. 6. in the body thereof hath this word possessions which word most properly doth extend to a lease for yeares c. 2. Again that clause of the stat 8. H. 6. which provideth for the restitution is thus if it be found that any doth contrary to this statute then the said Iustice c. shall put the party so put out in full possession c. 13. Now it cannot be denied but that he which by force expulseth Lessee for yeares tenant at will or a coppiholder doth contrary to this statute also they bee the parties put out and the same mischiefe and inconvenience which these lawes do labour to remove is to Lessee for yeares tenant at will and to the coppiholder Co. 11. 33. 34. Plo. 178. And we may finde it usuall that where statutes are made for to remedy any common mischiefe there to help things in the same degree one action thing place and person hath in construction beene taken for another and a good expounder saith Sir Ed. Co. 11. 34 maketh every sentence to have his operation to suppresse all the mischiefes before the said Act and principally those that are specified in these acts Co. 3. 7. 12. 73. 14. And againe saith he it is the office of the Iudges alwaies to make such construction of statutes as may represse the mischiefe and advance the remedie and to suppresse all evasions which may continue the mischiefe and to adde force and life to the cure and remedy according to the true intent of the makers of the statute Co. 11. 73. b. Co. 3. 7. 15. Others held the contrary sc that Lessee for yeares nor a coppiholder or tenant at will cannot have restitution by the hands of the Iustice of Peace and this was the common opinion their reason is for that the words in the statute of 8. H. 6. in that clause which specially provideth for the restitution are thus The said Iustices c. shall reseise the said lands or tenements and thereof shall put the party so put out in full possession c. which words lands or tenements are only to be understood of them that have inheritance Rast 174. or a freehold at the least but to this it may be answered that the said statute of 8. H. 6. in the body thereof hath these words where any doe make any Forceible Entry into lands tenements or other possessions or them hold forceibly c. which words possessions extendeth to a lease for yeares c. And then the words possessions being in the same statute we shall
in possession of a house peaceably and doubteth that another who indeed hath more right to the possession and who may enter will enter upon him here he which is in possession may defend and keepe his possession of the house with his ordinary company and may justifie to beate the other which shall attempt to enter upon him But if he kill him it is felony nay he in possession in this former case may not hire any strangers to aid him neither may he have his owne ordinary company in armour nor otherwise be provided with Bowes or guns to shoot at the other as it seemeth Cromp. 70. a. 6. Also if a man being in his house In defence of his person 21. H. 7. 39. Br. Riots 1. Co. 11. 82. doe heare that another will come thither to beat him he may lawfully assemble his neighbours and friends c. to assist and ayde him there in the defence of his person 7. And yet if he or any of his company shall kill the other or any of the other company in such defence of himselfe or his Dalton 188. this seemeth to be such a felony in all of them which be in the house and in that action that they shall forfeit their goods thereby 43. But if a man be threatned that if he come to such a place 21. H 7. 3â— Co. 11. 82. that then he shall be beaten in this case hee may not assemble any company to goe thither to safegard his person for there is no necessitie of his going thither Besides he may have surety of the peace against such as threatned him 44. If there be an attempt made to beat a man his wife father In defence of others Dalton 188. mother or any of his children within age he may lawfully use force to resist it and may justifie the beating of the other in such case 45. Also the servant may justifie to beat another in defence of his master Br. Trespas 217. 21. H. 7. 39. 2. 46. In defence of his goods Cromp. 65. 69. Also a man may justifie to beat another in the defence of the possession of his goods and if another hath taken away my goods may take them againe from him with force 47. Also if there be an attempt made to disseise me of my land Dalton 188. or to disturbe me of my high way or to turne an ancient water course from my Mill I may lawfully use force to resist it 48. A Keeper doth enter and chase upon my land pretending this to be within his purliew where it is not Dyer 327. Cromp. 68. if I command my servants to beat him of my ground this seemeth justifiable in the defence of my possession against such unlawfull claime Where Forceible Detainer of possession is lawfull CHAP. 32. 8. H. 6. c. 9. Br. force 4. 10. carol ca. 13. in Ireland 1. THe statute of 8. H. 6. concludeth thus Provided that such as keepe their possession by force after that they or their ancestors c. have continued their possession in the same 3. yeares or more shall not be indamaged by force of that statute 22. H. 6. f. 18 b. 2. This proviso must as it seemeth be thus construed sc that where a man is seised of a lawfull estate or posses of an house or lands or he and his ancestors or they whose estate hee hath therein have continued the posses of the same peaceably by the space of 3. whole yeares together without interruption and his estate not ended there he may hold and keepe such possession with force See the stat against all others yea it seemeth if hee shall hire strangers to aide him to keepe such possession or shall have his company in armour hee is not punishable by these statutes but he may not resist the Iustices of Peace that shall come to view this 10. Caroli c. 13. â—n Ireland 3. And if he shall be indicted for such his forceible holding after three yeares such quiet possession he may plead such his lawfull and peaceable possession by the space of three yeares next before such indictment and thereby he shall avoide both the imprisonment and fine and also shall debarre the other party of his restitution Neither may the Iustices of peace remove him from his possession though it be found by the Inquisition taken before them that he held that house or land by force after three yeares lawfull and peaceable possession as aforesaid 4. But here it seemeth these foure diversities are to bee observed 6. 7. Ed. 6. 22. H. â— 8. 1. First where the party in possession did enter peaceably and where forceibly for if a man enter forceibly and after continueth his possession peaceably by the space of three yeares without interruption Br. Restâ— 12. yet it seemeth he shall not be aided by the proviso in the statute of 8. H. 6. ca. 9. 2. Secondly where the party in possession hath continued his three yeares possession peaceably Br. force 22. 19. and where by force for if after a lawfull and peaceable entrie a man shall continue or hold his possession by force this is a Forceible holding or deteyner and punishable by the statute of S. H. 6. And three yeares of such possession shall not aide him 22. H. 6. 18. b. Fi Entre 20. Br. force 6. Vide 23. H 8. pag seq 14. H. 7. 18. Br. force 10. 3. Thirdly where the party in possession is in by right and of a lawfull estate or by wrong as a disseisor and yet without force and hath continued such his possession peaceably by the space of three yeares without interruption he shall be aided by the Proviso of the said statute of S. H. 6. and by the statute of 10. Caroli ca. 13. and not removed from the possession upon an Indictment but if a disseisor hath continued his possession forceibly by the space of 20. yeares together yet he may be indicted upon the said statute of 8. H. 6. before a Iustice of peace of the forceible detayning of the same and the same being found the said Iustice of Peace is to reseise the same and to award restitution to the party disseised or so put out 4. Fourthly where the party hath continued such his possession three yeares without interruption and where his possession hath been interrupted or discontinued for if a man hath been in peaceable possession of land c. by the space of three yeares and above by a good title and then is disseised and expelled by force and the disseisee reentreth peaceably or the disseisor is therefore indicted upon the statute of 8. H. 6. and the disseisee is thereupon restored Dyer 142. Br. force 32. 29. and is in possession accordingly yet in these cases the disseisee cannot justifie the Detainer of the possession of those lands by force because his possession was once interrupted but after such interruption and reentry or
first then B. shall not have any restitution otherwise if these had been found by severall Inquisitions Who shall award and make this restitution CHAP. 35. 1. AFter the force is found by the Enquest the Iustice of peace before whom the said force shall be so found may himselfe put the party in possession againe Dalton 195. or he may make his precept under his owne teste alone to the Sheriffe to doe it 2. The forme of the precept to the Sheriffe to make restitution you may see postea tit of Warrants and presidents 3. 3. Eliz. Dalis Co. 11. 59. 65. Dyer 187. But no other Iust of peace hath any authority by the statute to grant or award restitution but only he or they before whom the force was found by Inquisition nay the Iust of Oyer and Terminer nor the Iust of goale deliverie cannot grant restitution nor the Iustices of peace at their generall Sessions of the peace cannot grant this restitution except the indictment were found before them 4. And yet the Iustices of the Kings Bench in regard of their supreme authoritie in all cases of the Crowne either upon certificate to them made by the Iustice of peace Co. 9. 118. Co. 11. 65. 4. H. 7. 18. before whom such force was found of the presentment of such force or if the said presentment or indictment shall be removed before them by Certiorari in both these cases the Iustices of the Kings Bench may award restitution Dalton p. 195. 5. But neither the Iu. of the K. Bench nor any other besides him or them that made the inquiry can personally restore the party but only by way of Precept to the Sheriffe 6. The Sheriffe if need be may take the power of the County to execute the precept of the Iu. of peace herein 7. And if the Sheriffe upon such a precept or upon a writ of restitution from the Sessions c. shall returne that he cannot make restitution for resistance Dalton p. 195. c. he shall be amerced for making such a returne because in such case he might have taken the power of the County to assist him therein see the like case Fitz. Execution 147. To whom restitution shall be made CHAP. 36. 1. THis restitution ought to be made to him that was put out and to none other for so are the words of the statute P. R. â—8 2. Therefore if a father be put out by force and dyeth his heire shall not have restitution Dalton p. 195. yet here the Iustices may imprison and fine the offendors for by such forceible Entry they have broken the peace 3. Also if after the death of the Father a stranger abateth or entreth into his land by force Dalton p. 196. before the heire hath gotten actuall possession indeed the heire shall not have restitution because he had but a possession in law descended upon him 4. The disseisee doth put the disseisor out with force the disseisor shall be restored Fitz Na Br. 248. h. for upon an indictment of force the right or title is not disputable or materiall but by the words of the statute of 8. H. 6. ca. 9. hee that is in such sort sc forceibly put out shall bee restored Dyer 12â— 5. Yet it seemeth in this case that upon traverse tendred by the disseisee and his right appearing the Iust of peace may stay restitution Br. force 6. 6. Also if the disseisor be restored againe yet the disseisee may after reenter peaceably or have his Assise 7. But if the disseisee shall enter peaceably upon the disseisor and so they both shall abide and continue there together Cromp. 163. for divers daies and after the disseisee doth put out the disseisor with force and is thereof indicted here it seemeth the disseisor shall not be restored for the disseisors possession was avoided in quiet manner at the first entry of the disseisee and so the disseisor had no possession in the eye of Law when he was put out 8. If the disseisee shall enter peaceably Cromp. 162. 164. Dalton 196. the disseisor and his family being abroad and after the disseisee shall keepe his possession with force the disseisor shall not be restored by reason of the eigne title of the disseisee and for that he entred peaceably 9. But here the disseisee shall bee imprisoned and fined for keeping his possession with force for Forceible keeping or detaining is aswell prohibited as Forceible Entrie 10. And here note that the being of a mans wife children Cromp. 164. Fitzh Assise 418. of servants in the house or upon the land doe preserve his possession but his cattell being upon the ground doe not preserve his possession 11. Also when two are in possession of an house c. and the one claimeth by one title and the other by another title Litt. 140. Park 45. here the law shall adjudge him to be in possession who hath the best right to the possession So that if A. shall wrongfully enter upon B. and they both shall continue in the house and after B. shall put out A. with force A. shall not be restored for A. never gained any possession by his Entry 12. Two Iointenants or Tenants in Common Fitz. 249. d. and one of them doth forceibly put out the other out of his possession he that is so expelled may have an action of Trespasse of Forceible Entry against his Companion upon the statute of 8. H. 6. and thereupon he shall have a writ of restitution to restore him to his former estate P. R. 39. but it seemeth the Iustice of peace can doe nothing herein for that his entry and possession is lawfull through the whole land in respect of his owne moity and estate 13. Two Iointenants be put out with force Dalton p. 197. and one of them only sueth to have restitution restitution shall be made unto him 14. Coppiholder lessee for yeares or tenant at will 10. Carol. c. 13. tenant by Elegit statute merchant or of the Staple shall have restitution by the statute of 10. Caroli in Ireland 15. If Lessee for yeares be put out of his Terme by force and die P. R. 38. though after his death this force be found by Inquisition taken by a Iustice of peace Dalton pa. 197. yet his executors shall not be restored to that land by the Iustice for that they are not the same person which was put out What causes there may bee for staying the Iustices of peace from granting Restitution CHAP. 37. 1. ALthough the partie thus to be indicted for a force Cromp. 162. Br. force 11. shall not be heard nor suffred to give his Title in evidence to excuse himselfe of his Forceible Entrie or detayner Dalton p. 197. to save his fyne due to the King for such force which fyne he shall make though his right bee never so good Lambert pa. 147.
within the age of Forty yeares not living in Merchandise nor exercising any Craft nor having of his owne whereof he may live Requâ—â—ed to serve wages nor any lands about tillage whereof hee may imploy himselfe and not serving any others if he inconvenient service his estate considered be required to serve 33. H. 1. ca. 9. shall be bounden to serve him which so shall require him the wages are to be rated by the Iustices of peace according to a statute made in Ireland in 33. H. 8. ca. 9. Provided alwaies that the Lords be preferred before other in their bondmen or their land tenants so in their services to be retained So that neverthelesse the said Lords shall retaine no more then be necessarie for them and if any such man or woman being so required to serve will not the same doe and that proved by two true men before the Sheriffe or Bailiffes of our Soveraigne Lord the King or the Constable of the Towne where the same shall happen to be done he shall anone be taken by them or any of them Imprison and committed to the next goale there to remaine under strait keeping till he finde suretie Surety to serve in the forme aforesaid 23. E. 3. de servient cap. 1. 2. If any reaper mower or other workman Depart without license or servant of what estate or condition that he be retained in any mans service do depart from the said service without reasonable cause or licence before the Terme agreed he shall have paine of imprisonment and that none under the same paine presume to receive or to retaine any such in his service Anno 23. E. 3. cap. 2. Receive to service 3. That no man pay or promise to pay to any servant any more wages Wages liveries meede or salarie then was wont nor that any in other manner shall demand or receive the same upon paine Paine of doubling of that that so shall be paid promised required or received to him which thereof shall feele himselfe grieved 23. Ed. 3. ca. 3. pursuing for the same Ann. 23. Ed. 3. ca. 3. Cap. 2. Stat. de servient 4. If the Lords Lords of the Townes or Mannors presume in any point to come against this present ordinance either by them or by their servants then pursuit shall be made against them in the counties Wapentakes Tithings or such other Courts Damages for the treble paine payed or promised by them or their servants in the forme aforesaid and if any hath covenanted with any to serve for more wages Covenant he shall not be bound by reason of the same covenant to pay more then at another time was wont to be paid to such person nor upon the said paine shall presume any more to pay An. 23. Ed. 3. ca. 4. But now the wages must be such as shall be rated by the Iustices of peace according to the said statute of 33. H. 8. ca. 9. 33. H. 8. ca. 9. in Ireland 5. That Sadlers Skinners Whitetawers Cordwaynees Taylors Artificers Smiths Carpenters Masons Tylers Shipwrights Carters and all other Artificers and workemen shall not take for their labour and workemanship Workemanship above the same that was wont to be such paid to such persons and if any man take more he shall be committed to the next gaole in manner as is aforesaid Ann. 23. Ed. 3. cap. 5. 33. H. 8. ca. 9. in Ireland But this statute also as to the wages only is altered by the said statute of 33. H. 8. ca. 9. 6. Anno 23. Ed. 3. de servi ca. 7. It was enacted that all the forfeitures given by this statute de servientibus against Labourers should be levyed of every of them 23. Ed. 3. ca. 7. and should be imployed to the payment of the tenth and fifteene then granted and after to the Kings use to be levied by certaine appointed in the statute neverthelesse he that will may sue for these forfeitures to have them to his owne use Threshers 7. That none take for the threshing of a quarter of wheate or rye over two pence halfe penny and the quarter of Barley Beanes Pease and Oates one peny halfe peny if so much were wont to be given and in the Countrey where it is used to reape by certaine sheaves and to thresh by certaine bushels they shall take no more nor in other manner then was wont and that the same servant be sworne two times in the yeare before Lords Oath Stewards Bailiffes Constables Stewards Bailiffes and Constables of every Towne to hold and doe these ordinances and that none of them goe out of the Towne where he dwelleth in the winter to serve in the Summer if he may have service in the same Towne taking as before is said Refuse Stocks Imprison Stocks and that those which refuse to make such Oath or to performe that that they be sworne to or have taken upon them shall be put in the Stocks by the said Lords Stewards Bailiffes and Constables of the Townes by three dayes or more or sent to the next gaole thereto remaine till they will justifie themselves and that Stocks be made in every Towne by such occasion Anno 25. Ed. 3. de servien cap. 2. But the wages in this also are to be regulated by the said statute of 33. H. 8. Artificers 8. That Carpenters Masons and Tylers and other workemen of houses 33. H. 8. ca. 9. in Ireland shall not take by the day for their worke but in manner as they were wont Anno 25. E. 3. cap. 3. but wages in this case also is to be regulated by the said statute of 33. H. 8. ca. 9. Plaisterers c. Wages 9. Plaisterers and other workers of Mudwals and their knaves by the same manner without meate or drinke S. from Easter to Saint Michael and from that time lesse 33. H. 8. ca. 9. in Ireland according to the rate and discretion of the Iustices which shall be thereto assigned Ann. 25. E. 3. cap. 3. 33. H. 8. ca. 9. in Ireland 10. Goldsmiths Sadlers Horsesmiths Spurriers Tanners Curriers Artificers Tawers of Leather Taylors and all other workemen Artificers and labourers and all other servants here not specifyed shall be sworne before the Iustices Oath to doe and use their crafts and offices in the manner as they were wont to doe without refusing the same because of this ordinance And if any of the said servants Labourers workemen or Artificers after such oath made come against this ordinance he shall be punished by Fine and ransome Iustice and imprisonment after the discretion of the Iustices Imprison Anno 25. Ed. 3. cap. 4. the wages also in this case are to be regulated by the said statute of 33. H. 8. ca. 9. by the Iustices of peace in the Quarter Sessions next after Easter and Michaelmas halfe yearely Stewards Constables Oath Inquitie
diem with meat and drinke for his Iourneyman and 12. d. sterling with meat and drinke for a boy that can scarce bore a hole as it should be and this I speake of mine owne knowledge and therefore I wish that the Iustices of peace would henceforth better remember their oaths the duty of their places and the good of the common wealth then hitherto they have done but if the Iustices of peace shall wilfully continue still their neglect herein I cannot but let them know that for this their neglect they are and that worthily for their neglect to be punished in the Starchamber Misprision CHAP. 43. 1. THere be also certaine offences which by the common Law are misprision of treason or felonies or at least punishable in the same degree and more 22. Ed. 3. 13. Stamf. 38. as to draw a sword to stricke a Iustice sitting in place of Iudgement to strike a Iuror in the presence of the Iust sitting in place of judgement Stam. 37. 38. Br. contempts 9. 0. or to stricke another in the house where the Courts of Iustice are kept sitting any of the Kings Courts there or to draw any weapons therewithall to strike any person in the presence of the Iustices P. Paine 16. or to make any Affray in their presence they sitting in Iudgement or to rescous any such offendor these are such misprisions for which the offendour shall have more grievous punishment then for misprisions of Treason or felony for in these cases the offendor shall not only forfeit all his goods and chattels and the profits of his lands during his life and be imprisoned during his life but also shall have his hand cut of 28. El. ca. 7. in Ireland 2. The counterfeiting of the coine of gold or silver of other Countreyes which is not currant in this Kingdome is by a statute made in 28. Eliz. ca. 7. enacted to be misprision of high treason in the Actors their procurers ayders and abettors Stamf. 37. d. Cromp. 44. 3. Note that every treason or felony doe include misprision so that where any person hath committed treason or felony the King may cause the offendor to be indicted and arraigned but of misprision Stamf. fo 37. 4. Misprision of Treason or felony is properly when one knoweth that another hath committed or is about to commit any treason or felony but was not or is not consenting thereto and yet will not discover the offendor to the King or his Councell or to some Magistrate but conceales both the offence and the offendors Br. Treason 19. Stamf. fo 38. 5. For misprision of treason the offend or shall forfeite to the King all his goods and chattels for ever and the profits of his lands during his life and also shall be imprisoned during his life but for misprision of felony the offendor shall be only fined and ransomed as it seemes 3. H. 7. 10. Br. Treason 25. and shall be committed to prison untill he hath paid his fine 3. H. 7. fol. 10. 6. Note for the offendors in high treason misprision of treason and praemunire that although the Iu. of Peace by their Commission nor by statute cannot medle with them in the very point of their offences saving in some particulars and that by way of inquiry only which you may see hic antea tit felony yet for that all treasons and such other offences are against the peace of the King and of the Realme therefore upon complaint made to the Iustice of peace or other knowledge had by him of any such offendors it shall be his part to cause such offendors to be apprehended and to take their examinations and the information upon oath of such as bring them or of others that can prove any thing materiall against them and to put the same in writing under the hands of the Informers and then to commit the offendors to the Gaole Dalton p. 212. and also to bind over by recognisance all such as doe declare any thing materiall to appeare and give evidence against such offendors before the Lords of the Kings Majesties privy Councell or elsewhere when they shall be called upon reasonable warning or before the Iustices of Assises at the next generall gaole delivery and after to certifie their doing therein to some of the Lords of his Majesties said Councell Nightwalkers CHAP. 44. 1. EVery Iustice of peace ex officio and by the first Assignavimus of the Commission may cause to be arrested all Nightwalkers 13. H. 7. 1â— Dalton pa. 76. be they strangers or other persons that be suspected or that be of evill behaviour or of evill fame and more particularly all such suspected persons as shall sleepe in the day time and goe abroad in the night season haunt any house that is suspected for bawdery or shall in the night time use other suspitious company or shall commit any other outrages or misdemeanors and may force them to finde surety for their good behaviour see the title surety for the good behaviour Peace CHAP. 45. 1. EVery Iustice of peace hath authority and power given him by the first Assignavimus or clause in the Commission Dalton pa. 79. to keepe and cause to be kept the Kings majesties peace by force of which words they have aswell the ancient power touching the keeping of the peace which the ancient conservators of the peace had by the common Law as also all authority which the statutes since have added thereto and so they may cause to be kept all the statutes and Lawes now in force which beene made for the peace or keeping thereof and more especially they may arrest or cause to be arrested and sent to the Gaole all Traitors Murtherers Robbers and Felons and persons suspected of such things and all such are guilty of any misprision or praemunire 2. They may also suppresse and bind to the peace or good behaviour all Affrayors Dalton p. 80. and all persons unlawfully and riotously assembled or unlawfully wearing armour or any weapons by night or by day or otherwayes putting the people in feare and all unlawfull nightwalkers and barrettors and the like all which may well be said to be disturbances or breaches of the peace see more fully of these under their particular Titles Posse Comitatus CHAP. 46. 1. VVHere the Iustice of peace Sheriffe or other officer is enabled to take the power of the County it seemeth they may command and ought to have the helpe and attendance of all Knights Gentlemen Yeomen Husbandmen Labourers Tradesmen Servants and Apprentices and of all other such persons being above the age of fifteene yeares and that are able to travell 2. But women Ecclesiasticall persons and such as be decrepit or diseased of any continuall infirmity shall not be compelled to attend them 3. And in such cases it is referred to the discretion of the Iustices of peace or Sheriffe c. what number they will have to attend upon them and
conteined in the statute of provisors made in 27. Ed. 3. by the same processe comprised in the said statute and by warning to be made to them in their benefices or other their possessions within the Realme 8. After this in anno 12. R. 2. ca. 15. another statute was made to this â—ffâ—â—â— that is to say that no liege man of the King of what estate or conditiâ—n that he be 〈◊〉 over sea great or litle shall passe over the sea nor send out of the Realme of England by license nor without license without speciall license of the King himselfe to provide or purchase for himseâ—fe a benefice of holy Church with cure or without cure in the said Realme and if any doe and by vertue of such provision accept by himselfe or by any other any benefice of the same Realme that from that time the same provisor shall be out of the Kings protection Protection and the same benefice voide Voide so that it shall be lawfull to the patron Patron of the same benefice aswell spirituall as temporall to present Present to the same an able Clarke at his pleasure 9. Moreover in anno 16. R. 2. ca. 5. it is ordeined by Parliament at the prayer of the commons Sue that if any purchase or pursue or cause to be purchased and pursued in the Court of Rome Court of rome or elsewhere any such translations processes and sentences of excommunication bulles Bulles instruments or any other thing which touch the King against him his Crowne and regalitie or his Realme and they which bring within the Realme or them receive or make thereof notification or any other execution within the same Realme or without that they their notaries procurators Procurators mainteinors Mainteinors abettors fautors and Counsellors shall be put out of the Kings protection Protection and their lands and tenements goods and chattels forfeite to the King Forf and that they be attached by their bodyes if they may be found and brought before the King and his Councell there to answere to the cases aforesaid or that proces be made against them by praemunire facias Praemunire facias in manner as it is ordeined in other statutes of provisors and others which doe sue in any other Court in derogation of the regalitie of our soveraigne Lord the King 10. In anno 2. H. 4. ca. 4. it is ordeined that aswell they of the order of Cisteaux as all other religious or Seculars of what estate soever that they be which doe put any of the popes bulles Bulles in execution or from thenceforth doe purchase other such bulles of new or by colour of the same buls purchased doe take advantage in any manner proces shall be made against them and every of them by garnishment of two moneths by writ of praemunire facias Praemunire facias and if they make default or be attainted Forf then they shall incurre the paines and forfeitures conteined in the statute of provisors made in anno 16. R. 2. 11. In anno 7. H. 4. ca. 6. it is ordeined that no person religious nor secular of what estate or condition that he be by colour of any buls conteining priviledges to be discharged of dismes pertaining to parish Churches prebends hospitals or vicariges purchased before the first yeare of King Richard the second or after not executed shall put in execution any such buls so purchased or any such buls to be purchased in time to come and if any such religious Religious or secular person from thenceforth by colour of such buls Disturbe doe trouble any persons of holy Church prebendaries keepers of hospitals or vicars so that they cannot take nor enjoy the dismes due or appertaining to them of their said benefices that then such disturber shall incurre like procâ—sâ—â— and paine Paine as is ordained by the statute made against them of the 〈…〉 of Cisteaux in the second yeare of the Raigne of King Henry the 〈◊〉 32. H 6. ca. 1. in Ireland 12. Anno 32. H. 6. in Ireland it is ordained and established that all the acts ordinances and statutes made against provisors aswell in England as in Ireland be had and kept in force within this land of Ireland and also if any provisor or provisors doe henceforward sue any provision upon any man beneficed in this land of Ireland and because of the provision do enter into any benefice or benefices of the Church and doe take any goods or chattels from any beneficer of the church against whom any such provisions are sued that then the party grieved may recover treble damages and hee that taketh such goods and thereof is convicted shall pay 20. l. the halfe to the King and halfe to him that will sue 13. Anno 7. Ed. 4. it is ordeyned and enacted that whatsoever manner man of holy church purchase any manner of dignity 7. Ed. 4. ca. 1. in Ireland parsonage or vicarage by Buls of the pope to hold in commendum and the said Buls dignities parsonages or vicarages accept that they shall be out of the protection of the King and forfeit the value of the said benefices during his life naturall notwithstanding whatsoever his benefice be dignity or personage or vicarage and shall incurre in all penalties of the estatutes or ordinances made against provisors of benefices and that no pardon or license of the King made or to be made be availeable but voide if it be not by Act of Parliament and if any manner man of the Church occupy now or hereafter doe occupy any personage or vicarage by way of commendum by the Buls Apostolique if it be of his owne collation that he shall make collation thereof within six moneths and if he doe not that then the deane and chapter of the diocesse in which diocesse the benefice is shall make collation of the said benefice within six moneths then next ensueing and if the said Deane and Chapter be negligent and make no collation of the said benefice within six moneths as before is said that then it shall be lawfull to the King to present to the said benefice for that time and as often as the cases require as is aforesaid 14. Anno 10. H. 7. it is enacted and established that all manner of estatutes aswell made within the Realme of England as within this land of Ireland against provisors by the authority of this present Parliament be authorished 10. H 7. ca. 5. in Ireland approved and confirmed and be deemed good and effectuall in the Law and also by the authority aforesaid that all and every of the statutes made against provisors be from henceforth duely and straightly executed in all points within the said land according to the effect of the same and the Kings Iustices and Commissioners of the said land diligently enquire at their Sessions and all other times requisite and behovefull of all and every manner
as shall be living and within this Realme at the time of arraignement of such person so indicted shall be brought forth face to face before the party so arraigned and there shall testifie and declare what they can say against the party so arraigned if he require the same provided that if any person or persons shall hereafter happen to give any reliefe aide or comfort or in any wise be aiding helping or comforting to the person or persons of any that shall happen to be an offendor in any matter of case of praemunire or Treason revived or made by this Act that then such reliefe aide or comfort given shall not be judged or taken to be any offence unlesse there be two sufficient witnesses at the least that can and will openly testifie and declare that the person or persons that so gave such reliefe aide or comfort had notice and knowledge of such offence committed and done by the said offendor at the time of such reliefe aide or comfort so to be given or ministred 17. And now I have set forth the statutes of praemunire I will here also set forth some few booke cases and resolutions for the better explanation of those concurrent statutes 18. In 44. E. 3. a praemunire was brought against diverse 44. E. 3. fo 7. Br. praemunire 4. 8. H. 4. fo 6. Br. praemunire 6. some as principals and some as accessaries the principals made default and the accessaries appeared and demanded judgement if they should be put to answer before the principals were attainted and it was adjudged that they should answer for in a Praemunire all are principals and there be no Accessaries 19. If a man lease his vicarige for yeares or life paying rent 44. E. 3. fo 36. Br. praemunirc 5. and sue in the Ecclesiasticall Court for the recovery of this rent he is in case of a Praemunire for the rent reserved is a lay thing and not Ecclesiasticall 20. 9. E. 4. fo 3. Br. praemunire 9. In a Praemunire in the Kings Bench the opinion was that if a Clarke sue another man in curia Romana for a thing spirituall where he may have remedie within this Realme in the Court of the Ordinary that he is in case of a Praemunire quia trahit in placitum extra regnum 21. 5. E. 4. fo f. Note that the words of the statute are in curia Romana vel alibi which is intended in Curia Episcopi and therefore if a man be excommunicate or prosecuted in the spirituall Court for a thing which appertaines to the common Law hee that prosecuteth such suiâ— is in case of a Praemunire 22. A prohibition lieth often where a Praemunire lyeth not Br. praemunire 16. as of Tâ—thâ—s of great Trees or for Tithes of the seventh part a prohiâ—â—â—ion lieth and not a Praemunire for the nature of the action belongeth to the spirituall Court but not the cause in this forme but where it is of a lay thing or of a thing which never appertained to the spirituall Court of that a Praemunire lieth as of debt against Executors upon a simple contract or pro lesione fidei upon a promise to pay Ten pounds by such a day Doct. Student lib. 2. ca. 24. 2. R. 3. fo 17. Br. praemunire 19. 23. If Executors sue for the goods of their Testator in the spirituall Court they are in case of a Praemunire for in 34. H. 8. Richard Farmer was attainted in a Praemunire and forfeited his Fee simple land for ever for suing for the goods of his Testator in the spirituall Court 24. There be some opinions in 8. ass that a benefice donative by the patron onely is a lay thing 8. Ass pl 29. and the Bishop shall not visit nor deprive and therefore if he medle with it in that kinde he is in the case of a Praemunire and in that case was Barloe Bishop of Bath in the time of King Edward the sixth and was constrained to obtaine a pardon because he had deprived the Deane of Wels which was a Donative by the Kings letters pattents 25. I have beene more large in this Title because many men of great quality and good understanding in Ireland are very confident that the papall Iurisdiction never received any check or opposition in England or Ireland before the time of King Henry the Eight and therefore to make it to appeare to all men that will but open their Eyes to see the truth I have set downe the said ancient statutes and booke cases whereby it plainly appeareth that in the very height of poperie when prince and people Laitie and Clergy were of the popes religion yet in all ages of those very times the papall Iurisdiction was mainely opposed and utterly rejected and great and grievous penalties videlicet losse of lands and goods and perpetuall imprisonment was inflicted upon all such as should uphold or any wise maintaine that papall Iurisdiction within these Kingdomes of England and Ireland Purveyors CHAP. 49. 1. FOr the reformation of abuses oppressions committed by Purveyors diverse good Lawes and statutes have beene made in England which are of force in Ireland and because that the Iustices of peace are enabled to put many of those statutes in execution in part or in the whole I shall here expresse the effect of so many of them as I conceive the Iu. of P. have to doe withall which are these following 28. E. 1. articuli super cart c. 2. Without warrant vide the statute of 28. Ed. 1. articul super cart cap. 2. It is enacted amongst other things that if any make takings without warrant and carry them away against the will of the owner he shall be immediately arrested by the Towne where the taking was made and shall be sent to the next gaole and if he be attainted thereupon it shall be done of him as of a Theife Felony if the quantitie of the goods will warrant it 2. Also it is enacted in anno 5. E. 3. ca. 2. 5. E 3. ca. 2. that the takings and purveyances for the houses of the King the Queene and their children be made by praisements to bee made by the Constables Constable and other discreet men of the Townes where there shall be such takings and purveyances thereto sworne and without menace Oath as in the statutes of 28. E. 1. aforesaid and 4. E. 3. ca. 3. is contained and that betwixt the purveyors and them whose goods shall be taken there be in the presence of the Constables and praisers Talles Talles made and sealed with the purveyors seales by which talles satisfaction shall bee made to them from whom such goods shall be taken and if any taker or purveyor for the said houses doe take in any other maner he shall be incontinently arrested Arrest by the Towne where such taking was made and brought to the next gaole Impris Felony and if he be thereof attainted it shall be done
doe it though they dye for it or such like words or shall use any other behaviour in apparant disturbance of the peace then it seemeth to be a Riot and therefore where there is cause to remove any such nusans or to doe any like Act it is the safest not to assemble any multitude of people but only to send one or two persons or if a greater number yet no more then are needfull and only with meete tooles to remove cast or pull downe the same and that such persons tend their businesse only without disturbance of the peace for the manner of doing a lawfull thing may make it unlawfull Ibid. 27. Also the manner of doing an unlawfull Act by an assembly of people may be such and so handled as that it shall not be punished as a Riot as if I should assemble a meete company to carry away a peece of Timber or other thing whereto I pretend a right that cannot be carryed without a great number if the number be not more then are needfull for such purpose although another man have better right to the thing so carryed away and that this Act be a wrong and unlawfull yet is it of it selfe no Riot except there be withall threatning words used or other disturbance of the peace 28. The manner As there must necessarily be three persons at the least assembled together to make a Riot Dalton 204. c. so they being together and their demeanor must be such as shall or may breed some apparant disturbance of the peace either by threatning speeches turbulent gesture shew of armour or actuall force or violence to the terror of the peaceable sort of people or to the emboldening and stirring up of such as are busie headed and of evill disposition by such fact or else it can be no Riot c. for as I said before the manner of doing a lawfull thing may make it unlawfull sic è converso 29. And therefore if diverse in one company going to the church Ibid. faire or market shall goe armed or one going to the Sessions or other like assembly shall goe in harnesse to the terror of the people though he or they have no intent to fight or to commit any Riot yet this is a Rout by the manner of his or their going being needlesse disordered and against the Law see the statute 2. Ed. 3. ca. 3. 30. Cromp. 64. But in the former cases if they had gone in privie Coats of plate shirts of maile or the like to the intent to defend themselves from some adversarie this seemeth not punishable within these statutes for that there is nothing openly done in terrorem populi 31. One N. W. together with fourescore persons 31. El. came with spades mattocks pistols swords and daggers in the night to a peece of ground where Sir Thomas St. had made a great weare crosse over the river of Trent in the County of Notting to the great nusans of passengers there Cromp. 64. c. and there they made one or two litle Trenches to let the water passe c. and though it were lawfull to make the Trenches and to debruse the nusans yet for that they came with such number and weapons they were deeply fyned in the Star-chamber 32. Also a Lord of a Coppihold did enter with twenty persons 31 and 32. El. Cromp. 64. Dalton 204. and cut his Coppiholders corne with force for that his Coppiholder would not compound with him for his fyne and although the entry of the Lord was holden lawfull yet punishable as a Riot in regard of his number and force 33. In all cases where three or more shall enter into lands Cromp. 64. Dalton 205. c. with force upon the possession of another where their entry is lawfull yet it is a Riot by reason of the number and force for the statute of 5. R. 2. prohibiteth the entry with force or with multitude of people although the entry be otherwise lawfull What persons may commit a Riot CHAP. 52. 1. IF a number of women or children under the age of discretion doe flocke together for their owne cause this is no assemblie punishable by these statutes unlesse a man of discretion moved them to assemble for the doing of some unlawfull Act as Master Marrow held Cromp. 62. but yet certaine women that had apparelled themselves in mens apparell Dalton 205. and had pulled downe riotously a lawfull inclosure were worthily punished for the same in the Starchamber contrary to Master Marrowes opinion 2. Also women covert are holden to be within the statute of Mert. ca. 6. Co. 3. 72. 11. 161. for ravishment of wards and within the statute of Westm. 1. ca. 20. de malefactoribus in parcis and within the statute of 2. Eliz. ca. 2. for recusancy although they be not particularly named within any of this statute Co ibid f. bre 670. 4. E 4. 16. 3. Also if a woman covert shall commit any riot or doe any Trespasse or other wrong she is punishable for it and for a trespasse done by the wife or for a scandall published by her the action lieth both against the husband and wife sc an action of trespasse or of the case shall be brought against the husband and the wife and there the husband is chargeable to the damages or fyne because he is a partie to the action and Iudgement but if a woman covert without her husband be indicted of a Trespasse Co. 21. 61. b. riot or other wrong there the wife shall answere and be party to the Iudgement only and in such case the fyne set upon the wife shall not be levied upon the husband 22. Ass â—7 43. E. 3. 18. yet after the husbands death it seemeth such damages or fyne shall then be levied upon the wife her selfe and as for imprisonment or other corporall paine it shall be inflicted upon the wife only and not upon the husband for his wives Act or default Dalâ—â—n 205. 4. If a Mayor and Alderman or Bailiffe and Burgesses or the fellowes of any other society doe assemble in their common quarrell and make a riot or rout this shall be punished in their owne private naturall persons and not in the body politique Recognisance CHAP. 53. 1. A Recognisance is a bond of record testifying the Recognisor to owe a certaine summe of money to some other and the acknowledging of the same is to remaine of record and none can take it but only a Iudge or Officer of record 2. And these recog in some cases the Iu. of peace are enabled to take by the expresse words of certaine statutes but in other cases as for the peace and good behaviour or the like they may doe it of congruity without any expresse authority given them either by their Commission or by statute 3. Note wheresoever any statute giveth them power to take a bond of any man or to binde over any
or for vexation only Ibid. without any just cause of feare it seemeth he may safely deny it as in common experience we finde it that where A. shall upon just cause come and crave the peace against B. and hath it granted to him when B. shall come before the Iustice B. likewise will crave the peace against A. and will perhaps surmise some cause but yet will neverthelesse be content to surcease his suit and demand against A. so as A. will relinquish to have the peace against him here the Iustice of peace shall doe well as I thinke not to be too forward in granting the peace thus required by B. but to perswade with him and to shew him the danger of his oath which he is to take but yet if B. will not be perswaded but will take his oath that he is in feare where indeed he neither doth feare nor hath cause to feare the Iustice may if he please upon such oath to grant the peace and this oath shall discharge the Iustice and the fault shall remaine upon the party but in such case I thinke it better discretion in the Iustice to forbeare taking of such oath and the security for the peace then to grant it 39. The Law hath conceived such an opinion of the peaceable disposition of noble men Noble men that it hath beene thought enough to take one of their promisses upon his honour that he would not breake the peace against a man Br. contempts 6. 24. Ed. 3. 3. and 17. Ed. 4. 4. 40. And therefore if a man shall have cause to have the surety of the peace against a Lord of the Parliament or such great and noble personage he shall not have a warrant from the Iustices of peace to that purpose nor yet have a supplicavit out of the Chancery directed to the Iustices of peace therefore but if there be cause he may have a Sub poena out of the Chancery of common right as it seemeth and there such Lord or noble man shall be bound to the peace and yet if such Lord will not appeare upon the Sub poena served Fitz. subp 20. it seemeth an attachment will lye against him upon such his default Master Cromp. fo 134. b. saith that it was held in the case of the Lord Cromwell in the Chancery about 18. Eliz. that an attachment lieth not against a Lord where he maketh default upon a Sub poena against him out of the Chancery Dyer 315. seemeth to accord but I conceive that this opinion is no Law but that for a personall contempt in a noble man an attachment lyeth or he may be fined by the Court for his contempt Co. 6. 53. 54. 11. H. 4. 15. Br. Rep. 19. 41. But though it be true that the persons of Barons who are peeres of the Parliament shall not be arrested for or in cases of debt or trespasse by their bodies first in respect of their dignity secondly that the Law presumeth that they have sufficient lands and tenements wherein they may be distrained yet in cases of contempt it seemeth they may be arrested by capias or attachment c. Fitz. subp 20. 42. Or else it seemeth that the party may crave the peace in the Chancery against such Lord or peere sc to have a supplicavit directed to the Sheriffe and that the Sheriffe may and ought to execute the same and that if the Sheriffe shall not doe his office therein an alias plur attachment lieth against him F.N.B. 79. g. and if the Sheriffe shall returne that such Lord is puissant that he cannot arrest him upon such return the Sheriffe shall be grievously amerced for he might have posse comitatus sc he might have levyed 300. men by his discretion if there had beene need Crom p. 134. to have aided him in such case and if such Lord or peere who is by the Sheriffe so arrested shall refuse the arrest and shall make a rescous whereupon the Sheriffe shall returne a rescous hereupon an attachment shall be granted out against such Lord to arrest and take his body for such his contempt Co. 6. 52. 53. 43. The same Law and remedy seemeth to be where a man hath cause to have the surety of the peace against a Dutchesse Countesse or Baronesse for they are Peeres of the Realme and shall be tryed by their peeres although in respect of their sexe they cannot sit in parliament and they are in the same degree as concerning their nobility and the priviledges incident to their dignities with Dukes Earles and Barons but here note this diversity sc if such a woman being a Countesse or Baronesse c. by marriage only shall marry againe under the degree of nobility she hath thereby lost her name of dignity together with the priviledges of her said nobility also as it seemeth for in such a case si mulier nobilis nupserit ignobili deserit esse nobilis Co. ibid. and that which was gotten by marriage may also be lost by marriage for eodem modo quo quid constituitur dissolvitur but if shee be noble by birth or discent whomsoever shee shall marry yet she remaineth noble for birthright est character indelebilis 44. And yet by the curtesie of England if women get to any degree of estate they never lose it by marriage but doe still take place according to the estate of their first husband but this matter of curtesie hath no place in legall proceedings Dalton 146. 45. Suretie of the peace may be granted by the Iustice of peace against a Knight and against all other lay persons being under the degree of a Baron or peere of the Realme and they shall be bound with sureties 26. H. 6. 23. Br. Maigne 14. 15. 46. Ecclesiasticall persons if they be not attending upon divine service may be arrested for the peace and they shall be bound with sureties but whilst they are doing any divine service in the Church Churchyard or other place dedicated to God they may not be arrested 5. Ed. 3. 5. P. Arrests 1. See the stat 1. R. 2. cap. 15. 47. Surety of the peace may be granted against the Sheriffe Dalton 146. Coroner Escheator and other such officers of Iustice but Master Marrow adviseth that such persons be not bound versus cunctum populum but only against such person as shall demand it least otherwise it should argue them unworthy of their offices 48. One Iustice of peace may grant this surety to any man Dalton 146. Lambert f. 80. against one of his fellow Iustices but great discretion is herein to be used otherwise he shall bring the office into contempt and himselfe to reproofe by it saith Master Lambert but although one Iustice of peace may take a recognisance of the peace of one of his fellow Iustices yet if his fellow Iustice shall refuse to finde such security I cannot conceive that the Iustice of peace may commit his fellow Iustice for
would beat his servant Pr. 5. f. Iustifie 3. but the master with a sword staffe or other weapon may defend his servant assaulted from being beaten in respect of the losse of his service yet Master Lambert and Master Crompton are of opinion that the master may beat another in defence of his servant Cromp. 136. which seemeth to be the better opinion by reason of the losse which the Master shall sustaine by the wounding of his servant 36. Lamb. 131. But the farmour or tenant cannot justifie such an Act in defence of his landlord nor a Citizen c. in defence of the Maior or Bailiffes of the Citty or Towne corporate where he dwelleth unlesse it be in the legall execution of their offices 37. 9. Ed. 4. 28. 19. H. 6. 31. 63. Li. intr 611. In defence of my goods Also the Law doth tollerate a man to beate another for the preservation of his goods and therefore he that shall attempt by force and violence to take away my goods wrongfully from me whether they bee goods whereof I have a lawfull property or such goods whereof I have only a possession by the bailement of another I may justifie to defend the same by force and if I shall beat or hurt such person it is no breach of my recog for the peace but if I kill him it is felony and then a breach of the recog 38. The same Law is in every case 10. Ed. 4. 6. 3. H. 4. 9. 11. H. 6. 33. where another shall attempt by force and violence to take away my land freehold copihold or lease or to stop and turne my lawfull high way or my ancient river or water course leading to my mill in these and like cases if I shall disturbe him therein whereupon he doth assault and attempt to beat me I may justifie to beat him againe aswell in defence of my person as of my possessions but not to kill him 39. The same Law is also in every case where any offendour is by order of Law punished by whipping stocks pillory or otherwise for any offence by him committed contrary to the Lawes or statutes of this Realme there is no peace broken nor any recog of the peace forfeited by him or them which shall lawfully execute any such punishments 40. Note further that there are diverse offences for which an indictment contra pacem will lye and yet the committing of such offence shall be no forfeiture of the recog for the peace for that the Act that shall breed a forfeiture of such a recog must be done or intended unto the person as aforesaid or in terrorem populi 41. Therefore to enter into the lands Dalton 163. 164. where he ought to bring his Action or to disseise another of his lands or to enter into lands or tenements with force being without offer of violence to any mans person and without publique terrour Cromp. 136. or to doe a trespasse in another mans corne or grasse or to take away another mans Ward to take away another mans goods wrongfully so it be not from his person or to steale another mans horse or other goods feloniously being not from his person these will make no breach of this recog 4 H. 7. 8. 42. Note that if a man be bound in such a recog for himselfe and his servants if any one of them breake the peace the whole recog is forfeited Et sic in similibus 43. Note also that the sureties may plead that the party principall hath not broken the peace although upon issue the same shall be found against the said principall for they are estrangers thereto Fitz. averment 46. Concerning the writ of supplicavit CHAP. 61. 1. THe formes of this writ out of the Chancery are of diverse sorts as you may see Fitz. Na. Br. 80. d. 2. By which formes of the writ it appeareth that it may be directed to the Iustices of peace or to one of them or to the Sheriffe or to every of them to cause the party that is to be bound to come before him or them to finde surety of the peace and this writ may be that the principall shall be bound in such a summe and the sureties in such a summe certaine and also it may be in what certaine summes the demandant will or the summes may by the writ be referred to the Iustice of peace c. with this clause therein contained pro qua respondere volueris and the said writ is further that if the party shall refuse c. that they shall commit him to the gaole quousque c. and that when they have taken such surety they doe certifie the recog which they have so taken under their seales and returne the writ into the Court whence the same was awarded and that without delay 3. And for that this writ is of diverse formes the Iustice of peace must have a care that he doe execute the same in every behalfe as the same writ shall direct him 4. When the writ doth referre the summe wherein the principall and his sureties shall be bound to the Iustice c. then it resteth in their discretion but yet it is then safe for them to take good sureties and to bind them in good summes and the rather when that clause is in the writ pro qua respondere volueris 21. H. 7. 20. Br. peace 9. 5. When this writ is directed to the Sheriffe and to all the Iustices and is delivered to any one of them he onely to whom it is first delivered ought to execute the same writ in every behalfe scil he only shall make a warrant c. returneable before himselfe and shall take sureties and make returne thereof only without any other 6. The forme of a warrant for the peace upon a supplicavit you may see postea tit Warrants and Presidents 7. Also the same Iustice of peace after such surety taken may make the party a supersedeas to discharge him from any other arrest or to deliver him being in prison for the peace at any other mans suit as it seemeth Cromp. 237. b. 8. The forme of the supersedeas you may see after tit of Warrants and Presidents 9. The party who is attached upon this writ of supplicavit 21. H. 7. Br. peace 9. cannot goe to be bound before any other Iustice of peace but only before him from whom the warrant proceedeth upon this writ neither can another Iustice of peace by a supersedeas discharge such a warrant made by his fellow Iustice by force of this writ 10. The Iustice or Sheriffe to whom this writ shall be delivered may make a Deputy therein 9. Ed. 4. 35. f. Fx. Imp. 4. scil may make a warrant to the Constable or other person indifferent to apprehend the body or cause the party to come before him the said Iustice or Sheriffe to finde sureties c. and that if he shall refuse that then the Constable c. shall carry him
Lamb. li. 4. pag. 498. and lay them downe in certaine vel his similia it is voyd for the incertainety Brooke action sur le case 112. And if it be that A. and B. manuforti intraverunt in tenementum c. that also is insufficient for the like incertainety because the word tenementum may aswell extend to a house or cottage as to land meadow pasture c. Dallison 38. So if the Endictment run thus Apud C. in Comitat. predict insultum fecit ipsum cum quodam cultello pretij c. felonicè percussit ex malitia sua praecogitata murdravit it is not sufficient without shewing the place where he murdred him which may be in some other place then where he assaulted him Collect. Dyer 69. And an Endictment of selling tanned leather was disliked 1. Ric. 3. 1. because it neither contained the place where nor the person to whom the leather was sold both which be materiall and traversable 39. If the Endictment be that a man is a common Theefe without shewing especially in what thing it is nothing worth 22. lib. Ass Pl. 75. 29. 45. And so if it be of a generall extortion against an Ordinary without shewing in what by 25. Ed. 3. Stat. 3. ca. 9. And so also if the Endictment stand upon these Termes onely Insidiatores viarum depopulatores agrorum by 4. Hen. 4. cap. 2. And thereupon the Court said in 17. Ed. 4. 4. that upon such an Endictment the party shall be dismissed Howbeit the Commission of the peace hath the words Insidijs jacuerint but it goeth further ad gentem nostram mayhemandam 40. Neither is it good in an Endictment against an Accessary to say that he received the goods without saying that he received the felon 27. lib. Ass Pl. 69. 9. H. 4. 1. 25. Ed. 3. 39. nor to say that he scienter felonem Domini Regis apud A. recepit without shewing what felony he committed 7. H. 6. 65. nor without saying that he knowing it received him feloniously 7. H. 6. ca. 2. unlesse he receive one that is attainted of felony in the same County for then he must at his perill take knowledge of the attainder and so no such mention of knowledge needeth to be used as it is holden 8. Ed. 4. 3. notwithstanding that opinion I thinke that it is necessary that the accessary re verae have notice of the felony 41. And if such an Edictment be Sciens ipsos 4. homines feloniam c. fecisse apud D. felonicè recepit it is not good for that it sheweth not which of them he received 30. H. 6. 2. and yet if foure be endicted joyntly then are they also each one severally endicted thereby 6. Ed. 4. 5. per Markham 42. Concerning the nature of the offence Nature of the offence it is to be observed that in an indictment of Treason presentable before the Iustices of peace the word proditoriè ought to be used In the Endictment of Murder murdravit is necessary 9. Ed. 4. 26. and that word alone implyeth ex malitia praecogitata Collection Dyer 69. But if without murdravit it be quod A. occidit B. ex malitia praecogitata voluntariè it is not enough because one man may kill another so in a wager of battell and yet be no murderer And for the same reason if it be of Manslaughter it must be felonicè 43. An Endictment was that the son had taken the sicke Father and carryed him into the cold weather whereof he dyed but it was disallowed because it lacked felonicè Fitz. Endict 3. Againe if the Endictment be of Burglary then it must be Burglariter or ea intentione ad feloniam sive murdrum faciendum for it is not enough to say felonicè fregit domum mansionalem in nocte And if it be of Rape then it must say felonicè rapuit for without rapuit it sufficeth not to say felonicè cepit Aliciam eam carnaliter cognovit 9. Ed. 4. 27. 11. H. 4. 12. 44. If it be furatus est it seemeth to Marr. to be good without the word felonicè but 18. Ed. 4. fo 10. is against him 45. If it be felonicè abduxit unum equum it is not of value without saying cepit neither is cepit good alone without abduxit Fitz. End 4. And if it be felonicè succidit arbores illas asportavit or vi et armis succidit arbores et felonicè asportavit neither of them will make it felony because the Trees be a part of the Freehold wherof no felony can be commited 12. lib. Ass pl. 32. But if it be vi et armis succidit arbores et eas felonicè at another day after cepit et asportavit that will make it felony as I have said already and if the Endictment be of petit Larcēny it ought to have felonicè in it 27. H. 8. 27. 46. And albeit the Endictment be but of a Maiheme it must say felonicè maihemavit and yet Maihem is no felony but an haynous and as it were a felonious Trespasse But where in an Endictment of felony the word felonicè wanteth there the Endictment may neverthelesse stand good to make a Trespasse 7. H. 7. 7. 6. H. 7. 4. 18. Ed. 4. 10. 47. And in an Endictment of Trespasse or felony the words contra pacem and the words vi et armis viz. cum baculis cultellis Stamf. fo 98. c. must of necessity be used for the statute of 37. H. 8. ca. 8. in England which maketh the Endictment good without those words is not of force in Ireland 48. If the Endictment be of forceible Entry then the words vi armis be needlesse because they are necessarily implyed in the word force Marr. And if the Endictment be founded upon a statute it ought to say contra formam statuti in hujusmodi casu provisi ac editi or where many statutes doe concerne one offence as in the case of Liveries and such like contra formam diver sorum statutorum without speciall naming of any and then the best shall be taken for the King but an Endictment of a Ryot without saying contra formam statuti c. is not good Lamb. li. 4. pag. 502. because it is no Riot but by that statute And yet it is not of necessity that the statute be verbally rehearsed but only that the offence against the statute be sufficiently and with full words described Comment 1. 79. 49. In the twentieth yeare of Queene Elizabeth a man was endicted upon the statutes 1. El. cap. 1. 13. El. cap. 2. in England for ayding another knowing him to be a principall mainteyner of the authority of the See of Rome contra formam statutorum praedictorum but because the Endictment wanted certaine materiall words expressely mentioned in the Acts viz. upon purpose and to the intent to set forth and extoll the authority c. the endictment was thought
same 2. 2. Counterfeiting of forraigne coyne not currant in this Kingdome 3. 3. The uttering of false money made within this kingdome knowing it to bee false and counterfeit 1. The punishment of these Misprisions of Treason is forfeiture of goods chattels and the profits of lands during the life of the offendor and perpetuall imprisonment 2. 3. Secondly of Felony viz.   1. Concealing of any felony and not revealing it to some magistrate speedily after notice had of it 1. The punishment of Misprision of felony is by fyne and ransome and imprisonment at the discretion of the Iudge Thirdly other Misprisions viz.   1. Offering to strike any Iustice sitting in Iudgement 1. The punishment for offering to strike a Iustice sitting in Iudgement or a Iuror in presence of the Iustice is forfeiture of lands goods and Chattels losse of his right hand and perpetuall imprisonment 2. Striking a Iuror in presence of the Iustices 2. 3. Striking of a Knight or man of honor by any person of meane quality 3. The punishment of striking of a Knight c. by one of meane qualitie in ancient time was the losse of his hand but now it is used to be but fyne and imprisonment and bonds of the good behaviour 4. Rescuing of a prisoner arrested by any of the Kings Iustices sitting in Iudgement 4. Rescuing of a prisoner arrested by a Iustice is forfeiture of lands goods and chattels and perpetuall imprisonment Fourthly of Praemuniries which be of two sorts viz. the one the extolling of forraigne Iurisdiction the other for prosecuting of causes in the Ecclesiasticall Courts which are meere lay causes c.   1. Exercising of forraigne authoritie or Iurisdiction in causes Ecclesiasticall The punishment of all these offences of Praemunire is forfeiture of lands goods chattels and perpetuall imprisonment 2. Maintaining or publishing by word or writing that the Bishop of Rome hath or ought to have any authority or Iurisdiction within the Kings Dominions the second offence is a Praemunire  The punishment of all these offences of Praemunire is forfeiture of lands goods chattels and perpetuall imprisonment 3. The purchasing of any provision Bull or other processe from the Court of Rome  4. The obeying of any such processe procured from the Court of Rome 5. The prosecuting of any lay cause in any Ecclesiasticall court which originally belongeth to the Kings temporall Courts Fifthly Finable Offences which are either of 1. Force 2. Fraud 3. Omission or 4. Other abuses   First Finable offences of Force viz. 1. Riots Routs and unlawfull assemblies 1 For great Riots a great Fyne and a yeares imprisonment at the least For small Riots Routs and unlawfull assemblies besides the Fine imprisonment in discretion 13. H. 4. cap. 7. 2. Forcible Entries and forcible detainers 2 Fyne ransome and imprisonment and restitution of possession 15. R. 2. ca. 2. 8. H. 6. ca. 9. 10. Caroli ca. 16. 3. Assaults Batteries bloodsheds Maihems and all other Trespasses in lands and wrongfull taking of goods 3 Fyne and imprisonment at the discretion of the Iudge 4. Rescuing of distresses and pound breaches 4 Fine and imprisonment at the discretion of the Iudge 5. Riding or going armed in terrorem populi 5 Imprisonment and forfeiture of the Armour 2. E. 3. c. 3. 7. R. 2. ca. 13. 20. R. 2. ca. 1. 6. Lying in waite to kill or maihem 6 Fine and imprisonment and bonds of the good behaviour Secondly Offences of fraud and deceit viz.   1. Extortions and oppressions by officers in taking more Fees then are due or in exacting Fees where none are due 1 Fyne and imprisonment during pleasure 2. Extortions and oppressions in Land-lords and their servants in exacting of an Irish pretended duty called Loghtavy upon their Tenants 2 The like punishment 3. Escheators taking above xl.s. for an office 3 To forfeit 40.l 27. H. 6. ca. 17. 4. Sheriffes undersheriffes and their Clerkes entring of plaints in the County Court without notice of the plaintiffe or dividing one contract or Trespasse into severall plaints 4 Fyne and imprisonment 5. Sheriffes levying the Kings debt without shewing the party the Estreats under the seale of the Exchequer 5 Fyne to the King treble damage to the partie 42. E. 3. ca. 9. 7. H. 4. ca. 3. 6. Sheriffes or Gaolers that have denied to receive felons or that take any thing for the receiving of them 6 Fyne and imprisonment 4. E. 3. ca. 10. 7. Coroners that exact more Fees for taking an Inquisition upon the view of a body murdred or killed then 13. s. 4. d. which is to be paid of the goods of the offendour or of the Towneship where the offence was committed in the day time if the offendor have escaped 7 Forfeiture of 5.l 3. H. 7. ca. 1. 8. Ordnaries or their officers which take more Fees for the probate of Testaments granting of letters of administration then is appointed for them to take by the statute in that case provided 8 Forfeiture of 10. l. 28. H. 8. cap. 18. in Hibernia 9. Clerkes of the peace that take above 12. d. for the enrolling of a bargaine and sale where the land doth not exceed xl.s. per annum and where it exceedeth that summe 2 s 6.d 9 Fyne and imprisonment 10. Caroli cap. 1. in Ireland 10. Clerke of the Market that taketh any bribe to dispence with offences or tarryeth any longer in the countrey then the necessity of the businesse requireth 10 Fyne and imprisonment 11. Mayors and chiefe officers of townes and corporations that take excessive Fees for scaling of measures waights 11 Forfeiture of 40 s 7. H. 7. c. 3. 12. Purveyors that take any Bribe to spare any man or take corn by any other measure then the striked bushell or take carriages without readie payment 12 Two yeares imprisonment treble damage and ransome 15. E. 3. cap. 1. 36. E. 3. c. 3. 1. H. 5. cap. 10. 13. Iurors that take any thing to make their presentments favourably 13 Imprisonment and ransome 5. E. 3. c. 10. 34. E. 3. ca. 8. 38. E. 3. cap. 1. decies tantum and if he have not to pay a yeares imprisonment 14. If any have gotten into his possession any money or other goods by any false token or counterfeit letter 14 Great fyne and to be bound to the good behaviour 15. Packing of fish deceitfully and mixing small fish with the countable fish 15 Forfeiture for every vessell 6 s 8.d 22. E. 4. ca. 2. 16. Cowpers that make vessell for Beare or Ale of unseasonable Timber 16 Fyne and imprisonment 17. Millers that take Toll by the heape 17 Fyne and imprisonment 3. E. 1. p. Toll 2. 18. Maintenance of suits in Courts and quarrels in the Countrie and Champerties 18 Fyne and imprisonment 1. E. 3. ca. 14 1. R. 2. ca. 5. 19. Subornation of perjurie 19 Forfeiture of 40.l and if the offendor be not worth so
much halfe a yeares imprisonment and to stand upon the pillory and his testimony for ever to be disabled 28. El. ca. 1. in Ireland 20. Perjurie 20 Forfeiture of 20.l six months imprisonment and if the offendor have no goods to the value to be set upon the pillory and both his Eares nayled to the same and his testimony to bee disallowed forever 28. El. ca. 1. in Ireland 21. Forestallers Regrators and Ingrossers of Corne and other things 21 The Forestallers for the first offence are to forfeit the thing bought or the value of it and also to be amerced for the second to be set upon the Pillorie for the third to be imprisoned and ransomed for the fourth to abjure the towne by the statute of 31. Ed. 1. Rastall Forestallers 1. And for the Regrators and Ingrossers they are to be punished onely by Fyne and imprisonment as for a Misdemeanor at the Common law 22. Forgerie and publishing of forged deeds and writings 22 To be punished by Fyne and imprisonment as for a misdemeanor at the Common Law for Iustices of peace have not power to inflict the punishment ordained by the statute of 28. El. ca. 4. but that is to be inflicted by the Iustices of Assize or in the Kings Bench. 23. Using of false weights and measures 23 Fyne and ransome 9. H. 6. cap. ◠24. Breaking of the Assise of bread and drinke 24 The first second and third offence amerciament the fourth the pillory for the man and Tumbrell for the woman Baker and the Tumbrell for the Brewer 51. H. 3. Rastal weights 2. 25. Selling or setting to sale any manner of unwholsome or corrupt meat or drinke 25 Fyne and imprisonment 26. Artificers as Tanners Shoomakers Clothiers Dyers and all other Tradesmen making of their manufactures or using of their Trade deceitfully 26 Fyne and Imprisonment 27. Goldsmiths working of base mettall or using any other deceit in their Trade 27 To forfeit the value of the thing wrought and for gilding upon base mettall 10. times the value 2. H. 5. ca. 4. and 8. H. 5. c. 3. 28. Embracery of Iurors 28 To forfeit ten times as much as was given by way of embracery and imprisonment 5. E. 3. cap. 10. 29. Bribery and corruption in officers or ministers of Iustice 29 Fyne and imprisonment 30. Conspiracies in Tradesmen Labourers and servants not to worke at the rates published by the Iustices of peace 30 Fyne and imprisonment 31. Conspiracies by colour of Iustice to take away any mans life malitiously without cause 31 The villanous judgement viz. imprisonment during life the offendors testimony to be rejected his house to be raized his meadowes ploughed and his woods to be rooted up 32. All other false and deceitfull practises tending any way to the prejudice of the common wealth or perverting of Iustice 32 Fyne and imprisonment and bonds of the Court. Thirdly Offences of Omission viz.   1. Constables not setting forth nor pursuing Huy and Cry after felons and Traitours 1 Fyne and imprisonment 13. E. 1. ca. 1. 2. Statute de Winchester 2. Constables not apprehending and punishing of Rogues and sturdy beggers and others that begge without licence or having licences begge out of their limits appointed for them to begge in 2 Fyne and imprisonment 33. H. 8. ca. 15. in Ireland 3. Constables not setting the watch or not endevouring to part an affray 3 Fyne and imprisonment by 5. Ed. 4. ca. 5. the fyne is to be 3.d for every day 4. Constables not making search for idle and suspected persons and common gamesters that live idly and expensively having no meanes to maintaine themselves 4 Fyne and imprisonment 5. Constables that neglect or refuse to search for or apprehend felons or Traitours upon request or notice given them 5 Fyne and imprisonment 6. Constables and all other officers that refuse or neglect to execute the warrants of any Iustice of peace directed to them 6 Fyne and imprisonment 7. Such persons as will not follow Huy and Cry at the Constables command 7 Fyne and imprisonment by the statute of Winchester 13. Ed. 1. ca. 1. 2. 8. Such persons as will not assist the Constable to make search for and apprehend Felons or Traitours and other suspected persons and to convay prisoners to the gaole or before a Iustice of peace 8 Fyne and imprisonment 9. Such persons as refuse or neglect to keepe watch when they are required by the Constable 9 Fyne and imprisonment 10. Such Towneships as suffer sturdy beggers Rogues and Vagabonds to passe without punishment 10 For every impotent begger 3 s 4.d and for every sturdy begger 6 s 8.d forfeiture 11. Such Towneships as have not stocks common pounds 11 Fyne 12. Such servants Artificers and labourers as refuse to serve worke or labour at the wages rated by the Iustices of peace or that shall take more wages then according to the rates published by the Iustices of peace 12 Forfeiture of so much as they take above the rate and imprisonment at the discretion of the Iustice of peace 33. H. 8. ca. 9. in Ireland 13. All such as are Idlers and will not labour at all and yet have nothing to maintaine themselves 13 Imprisonment untill they finde sureties to labour or be of good behaviour 14. All defects of Bridges Causeyes and high-waies 14 Fyne 15. The neglect of Church-wardens and Constables in not choosing Surveyors for the high-wayes 15 Fyne and imprisonment according to the statute of 11. Iacobi ca. 7. in Ireland 16. The neglect of the Surveyors of high-wayes in not executing that office as they ought to doe 16 Forfeiture of 10. l. by the statute of 21. Iacobi ca. 7. 17. The neglect of such as do not labour six dayes at the appointment of the Surveyors for the amending of high-wayes according to the statute in that case provided 17 Forfeiture of 20 s for default of every wayne or Cart with two men to be sent by everyone that hath 5.l in goods or 40 s in lands for every day and for Cottiers and such as have no Cart 2 s every day by the said statute of 11. Iacob ca. 7. 18. The neglect of such as doe not scowre their ditches nor cut their paces by reason whereof the highwayes are impayred 18 20.l forfeiture per 11. Iacob ca. 7. in Ireland 19. The neglect of all officers whatsoever whereby the Commonwealth receiveth any prejudice 19 Fyne and Imprisonment 20. The neglect of repairing to the Church to heare divine Service upon Sundayes and Holy-dayes 20 For every Sunday or Holy-day 12. d. 1. El. ca. 2. in Ireland 21. Such persons as shall refuse to be assistant to the Iustices of peace Cōmissioners Sheriffe or Undersheriffe when they shall be required to ayde them to arrest the offendors of riots routs unlawfull assemblies 21 Fyne and imprisonment 22. Ordinaries not giving an oath to Incumbents to keepe Schooles in their parishes to teach English 22 To forfeit for every
of death c. But otherwise it is to kill a true man in defence of my house lands or goods that is manslaughter at least 21. Ed. 1. P. Forrests 4. Stamf. 13. 14. 24. If any Forrester parke-keeper or warreiner or any in their company shall kill an offendor in their Forrest parke or warren which after Huy and Cry levied to keepe the peace and to obey the Law will not yeild themselves but will flie or defend themselves by violence this is no felony if there were no former malice in such keeper Cromp. 30. But if any such keeper by reason of any former malice will lay to a mans charge that he came to doe hurt whereas he did not neither was found wandring nor offending and so kill him this is murder in such keeper Burglarie CHAP. 16. 1. BUrglarie is when one or more in the night time doe breake a dwelling house or a Church or the walls or gates of a City 22. E. 3. Dalton 231. or walled Towne with an intent to doe felony although he or they carry away nothing yet it is felony of death 2. First for the time Br. Cor. 125. Stamf. 30. Co. 11. 36. Burglary cannot be committed in the day time but only in the night for all indictments of Burglary be Quod noctantur fregit And the night to this purpose beginneth at the Sun setting and continueth to the Sun rising And therefore to breake a house c. after the Sun setting and before it be darke or after day light in Summer and before the Sun riseth is Burglarie 3. Next Stamf. 30. Dyer 99. Br. Cor. 106. for the manner it is holden by some good opinions that if a man breake the house to doe felony and yet entreth not it is no Burglary and that the indictment must be fregit intravit And yet by the opinion of Shard 27. Ass 38. and by the opinions of Sir Anthony Browne Sir Edward Montague and Sir Robert Brooke late chiefe Iustice of the common pleas Cromp. 31. 32. 33. and others as Maister Crompton reporteth if a man doe but attempt or enterprise to breake or enter into a dwelling house by night to the intent to rob or kill any person there though he make no actuall entry there yet it is a full and compleat Burglary for if he doe but put in his hand or foot it is an entrie in Law although his whole body were not in Also to put backe the leafe of a window with his dagger to draw the latch of the doore to turne but the key being on the Inner side of the doore or to breake the glasse window and to draw out any goods there with a hooke c. or to breake a hole in the wall Dalton pag. 231. 232. and to shoote in thereby at any in the house in all these cases it is Burglary 4. So likewise the doore being opened by some of the house if any the attempters shall discharge a dag against any in the house and in discharging his dag shall hold his hand over the threshold though he set no foot over this is Burglary So if upon attempt of Burglary they within the house shall cast out their money for feare Dalton ib. and the attempters take it away in all these cases it is Burglary and yet there is no actuall entrie made in any of these cases 5. But if a Theefe setteth but his foot over the threshold or into any part of the house to commit felony this much more shall convict him of Burglary 6. Cromp. 32. Also one being let downe the Chimney in the night to commit felony Dalton ib. it was adjudged burglary by Sir Roger Manwood chiefe Baron and yet he broke not the house 7. So is it to come into a house by the helpe of a key or suddenly to come into the house by night the doores being open and the owner flyeth to his chamber and the offendor is taken shoving at the chamber doore 8. So it is likewise if Theeves pretending that they bee robbed c. shall come to the Constable and pray him to make search for the felons and going with the Constable into a mans house to search they rob the good man of the house this is Burglary 21. El. 9. In like manner if a servant conspiring with another to rob his master shall open his masters doore or window in the night and the other entreth thereat Dalton ib. this is Burglary in the stranger by the opinion of Sir Roger Manwood who was an ingenious and learned Iudge and yet the house was not broken in any of these cases 10. But if one commeth into a house in the day and there hideth himselfe till night and then stealeth any thing out of the house or if any that is lodged in a house in the night goeth out of the house and stealeth some of the goods yet this is no Burglarie but only felony for that he broke not the house the first of these two cases was resolved at Derby Ass 32. El. Cromp. 34. 11. Also if diverse come to commit Burglarie and but one of them entreth and commits it 11. H. 4. 13. the rest standing about the house or not farre of to watch that no helpe shall come this is Burglary in all that company The place 12. Now concerning the place it may be either publique or private publique as the Church or walls or gates of a City or walled Towne private as a dwelling house and here commonly it is no Burglarie unlesse some person be at that time within the house And yet if a man hath a dwelling house and he and all his family upon some occasion are part of the night out of the house Co. 4. 40. and in the meane time one commeth and breaketh the house to commit felony this is Burglary 13. So if a man hath two dwelling houses and sometimes dwelleth at the one Co. 4. 40. and sometimes at the other and hath a family or servants in both and in the night when his servants are out of the house the house is broken by Theeves this is Burglary adjudged 38. Eliz. Cromp. 33. 14. If one breaketh a chamber in any Innes of Court or Chancery or in any Colledge in a university in the night to the intent to commit felony there this is Burglary although there were no person in the same Chamber For that Colledges and houses of Court and Chancery be entire houses whereof such chamber is parcell so that if any person shall be in any other chamber within the same house or Colledge at the same time it is Burglary 2. Ed. 6. Br. Cor. 180. Lamb. 156. 15. Also the breaking in the night of a Stable Barne or other out house adjoyning or neere to the dwelling house to the intent to steale is Burglary though he take nothing 16. At Summer Assizes at Cambridge Anno Domini 1616. two men were