any evill intent happeneth to kill a man by the law of God there was a Citie of refuge appointed for such persons to flye unto Numb 35.15 22. Iosh 20.3 And by our law now this is no felony of death for he shall have his pardon of course for his life and lands but yet hee shall forfeit his goods in regard that a subject is killed by his meanes See Stamf. 16. a. b. Fitz. Coron 69. 302. 354. As if a Schoole-master in reasonable manner beating his scholler for correction only See Exod. 11. 20. 21. or a man correcting his child or servant in reasonable manner and the scholler Stamf. 12. c. childe or servant happen to dye thereof this is homicide by misadventure â—1 H. 7. 29. 6. E. 4. 7. 2. So if a man shooting at Buts prickes or other lawfull marke and by the shaking of his hand or otherwise against his will hee killeth one that standeth by Or if a Carpenter Mason or other person doth throw or let fall a stone Br. Coron 59. Tile or peice of Timber from an house or wood or other thing from a Cart c. and giveth warning thereof and another is killed thereby against his will Or if a labourer that is falling or cropping of a Tree 6. Ed. 4. 7. F. Coron 398. Plow 19. and the same or part thereof falleth and killeth a man Or if the head of his hatchet or other toole falleth from him and hapneth to kill one standing by Or if a man be in due and convenient time doing any other lawfull thing that may breed danger to such as passe by and shall give warning thereof so that such as passe by may heare and flie the perill and yet another passing that way shall be killed therewith 11. H. 7. 23. See Br. Coron 2 9. contra Or if men shall run at Tilt Iust or fight at Barriers together by the Kings commandement and one of them doth kill another In these former cases and the like it is homicide by misadventure and no felony of death 3. And yet in cases of misadventure as also where one killeth another Se defendendo by the common Law 21. E. 3. 17. Br. Coro 40. these offences were felony of death and the offendour should have dyed for the same But now by statute such offendors are to have pardon for their life and lands yet their goods remaine forfeit as before at the common Law See the stat 6. E. 1. c. 9. 2. E. 3. c. 2. 4. Also in these cases of misadventure Fitzh 246. c. 2. 8. â— Br. Cor. 1. ce fâ—at 6. E 9. 4. H. 7. f. 2. a. Regi fo 209. and in the former cases of homicide committed by Infants and other persons being Non compos mentis And also where one killeth another in defence of his person the ancient course was that they shall be discharged in this manner sc if they desire to purchase their pardon they must upon their tryall plead not guilty and shall give in Evidence the speciall matter and then this speciall matter being found by verdict they shall be bailed and then they must sue forth a Certiorari to have this record certified to the Lord Chancellor who thereupon shall make them a Charter of pardon of course under the great seale without speaking or sueing to the King for it See Stamf. 15. t. But now the usuall course is that without any Certiorari the Iustices of gaole delivery make a Certificate to the Lord Chancellor and thereupon the pardon is granted of course and in the case of Infants and Non compos mentis the Iudges receive a verdict of not guilty in which case there needeth no pardon neither is there any forfeiture of goods 5. But if a man be doing of an unlawfull Act Vnlawfull Act. though without any evill intent and he hapneth by chance to kill a man this is felony viz. Manslaughter at the least Stamf 6 c. if not murder in regard the thing he was doing was unlawfull As shooting of Arrowes Stamf. 12. c. or casting of stones into the high-way or other place whither men doe usually resort So of fighting at Barriers or running at Tilt or Iusts without the Kings commandement whereby a man is slaine And although it were by the Kings commandement yet it was holden felony by the Iustices Tempore H. 8. Br. Cor. 229. 6. Playing at hand-sword Bucklers foot-ball 11 H. 7. 2â— Crom. 26. b. 29. A. wrastling and the like where by one of them receiveth a hurt and dyeth thereof within the yeare and day in these cases some are of opinion that this is felony of death some others are of opinion that this is no felony of death but that they shall have their pardon of course as for misadventure for that such their play was by consent and againe there was neither former nor present intent to doe hurt nor any former malice but done onely for disport and tryall of manhood and this seemeth to be the better opinion 7. A man casteth a stone at a Bird or beast Fitz Coron 30â— 3â—4 and another man passing by is slaine therewith this is but manslaughter by misadventure And the opinion of Fineux chiefe Iustice in 11. H. 7. fol. 23. is that if a man cast a stone over a house and killeth a man See Numb 35. 23. Br. Cor. 229. this is no felony of death but misadventure but this is to be understood where there was no intention of hurt to any by casting thereof likewise some hold that to cast a stone for pleasure and not in lawfull labour whereby one is slaine Stamf. 12. c. 16. c. is felony of death and so was the opinion of Maister Bracton and Maister Stamford but I cannot conceive it to be any other then by misadventure when it is not done felleo animo Casuall death 8. Also a man may be slaine by other casualty than by the hands or meanes of another man as by the fall of a house or tree c. upon him or be killed by a Bull Beare or other beast c. or be killed by some fall which he himselfe taketh And in these and the like cases observe these rules 1. First if a man be slaine in any such manner yet if it be by the meanes or procurement or wilfull default of another man this shall be felony in the party procuring or causing it 2. The thing which is the cause of such casuall death shall be forfeit to the King as a Deodand and distributed in Almes by the Kings Almoner but the Almoner hath no interest as it seemeth in such goods but hath onely the disposition of the Kings Almes durante bene placito so that the King may grant them to any other See Co. 1. 50. Dyer 77. Flo. 260. 3. The forfeiture shall have relation from the stroke given so as the party or owner selling thereof sc of
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
many Iustices as be now at these dayes in every Shire and would be present at the Sessions and concerning the latter point it seemeth by the latter Statute it selfe that the sheriffe shall first pay the wages and then the Barons shall make the allowance according to the Indenture So that I see no libertie of such nomination left unto the Barons 5. I confesse that it might breed both offence against the Sheriffe and a jealousie among the Iustices themselves to have one of them preferred before another in this payment and therefore I thinke it wisely done as it is somewhere used to bestow the whole allowance upon the defraying of their Common Diet. 6. If the Fynes and Amerciaments of the same sessions saith M. Marr. will not fully amount to the summe of the wages then due to the Iustices yet shall the wages be ratably payed out of them so farre as they will extend 7. Hitherto of reward henceforth of punishment Punishment at the Common Law It seemeth by the opinion of some Iustices 2. R. 3. 10. that if a Iustice of the peace doe any thing of Record ignorantly and for want of knowledge that he shall not be punished for it Lamb. li. 4. pag. 630. And this opinion of theirs is not new in this realme although it bee otherwise truly said Imperitia quoque culpae adnumeratur for you may read in the old lawes of King Edgar cap. 2. and of King Canut cap. 14. that if a Iudge had erred in his office hee might then have excused himselfe by oath That he did it not of evill minde and that he knew not how to doe better which I speake not to comfort men in carelesse ignorance but to shew you that men may erre and erring by infirmitie they are not altogether unworthy of pardon and withall to let the Iustices of peace see that it may be a fault to erre by ignorance and that therefore they ought to stay where they meet with non liquet as their owne Commission doth direct them 8. Now on the other side if a Iustice of the peace will craftily embezell an Endictment or wilfully raze any part thereof or malitiously enrole or file that for an Endictment which was never found by the Iurie Then by the Resolution of all the Iustices assembled before the King in the Starrechamber 2. R. 3. a Commission may goe out to enquire by the oathes of twelve men of such his misdemeanour and if he bee convicted thereof he deserveth to loose his office and to make Fyne to the King according to the quantitie of his misprision and offence Ibidem fol. 10. And even so may he be punished as this booke leadeth mee to thinke if he alter an Endictment of Trespasse into an Endictment of Felonie howsoever the opinion 27. lib. Ass pl. 18. be found against it 9. A Iustice of the peace may also be indicted of the unlawfull taking of money for doing his office or of such other falsitie Fitzh Na. b. 243. And if he cause a man to bee endicted at the Sessions by former conspiracy or indirect practise hee is punishable for it as a private man 21. E. 4. 67. 10. But if in the handling of a cause at the open Sessions it happeneth him to speake against an offendour somewhat excessively yet he shall not bee punished for it Iuris enim executio non habet injuriam Neverthelesse Iudges ought not to abuse their tongues by intemperance but they must rather take great heed as Cic. pro Font. said Quibus verbis utantur nè quid nimis moderatè positam nè quid ab aliqua cupiditate prolapsum verbum esse videatur FINIS A briefe Roll of the Articles and matters to be given in Charge and inquired of by the Grand-Iury in the generall or quarter Sessions of the peace set forth in two Columnes the first containing the Offences the second declaring the severall punishments which are to be inflicted for every particular Offence The offences consist of these five parts following viz. 1. Of Treasons 2. Of Felonies 3. Of Misprisions 4. Of Praemunires 5. Of Finable Offences 1. Concerning Treasons it is to be observed that at the Common Law before the tenth yeare of King Henry the seventh there were two sorts of Treasons viz. high Treason and pettie Treason but now by the statute of 10. H. 7. ca. 21. all such offences as at the Common Law were but pettie Treason are made high Treason 2. Concerning Felonies they be of tWo sorts viz. Felonies of death for which the offendor shall loose his life lands and goods and felonies not of death for which the offendour shall neither loose life nor lands but shall forfeit onely his goods and chattels and either have his pardon of course or otherwise bee punished by imprisonment whipping or burning in the hand as the case shall require 3. Concerning Misprisions they be of three sorts viz. Misprisions of Treason Misprisions of Felonie and other Misprisions 4. Concerning Praemuniries they are of two sorts the one is the extolling of forraigne power and Iurisdiction in this Kingdome the other is for prosecuting causes in the Ecclesiasticall Courts for matters meerely temporall and determinable at the Common Law 5. Concerning Finable Offences they are of foure sorts viz. First Offences of force and violence Secondly Offences of fraud and deceit Thirdly Offences of Omissions and neglects of Officers and others and lastly other abuses and enormities of severall sorts tending to the hurt and prejudice of the Common-wealth The particulars of all these Offences you shall find in the first Columne and of the punishments in the second as followeth viz. The Offences  The Punishments First of Treasons viz.  1. The compassing or imagining the death or destruction of the Kings Majestie the Queene or their sonne and heire apparant 2. The conspiring to depose the King or to take from him any of his Forts or to defeat his Armie 3. The deflouring of the Queene or the eldest daughter of the King not marryed or the wife of the eldest sonne and heire apparant of the King The punishment for the 6. 7. 8. 14. 15. 21. and 22. of these treasons for a man is to bee drawen and hanged and for a woman to be burned and for all the rest for a man to be hanged drawne and quartered and for a woman to be burned vide Coke libro Intrationum fo 360. 6. El. Dy. fo 230. p. 55. 1. H. 6. fo 6. Stamford fo 32. f. 4. Levying of warre against the King in his realme 5. Adhering to the Kings enemies in his realme or giving them ayde or comfort in his Realme or elsewhere 6. The counterfeiting of the great or privy seale of the King 7. The counterfeiting clipping fyleing washing or other falsifying of the Kings mony and also the forging and counterfeiting of forraigne Coine permitted to passe currant in this kingdome 8. The bringing in of false money like to the money of this
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
idle persons meet to serve to be compelled to goe to service also negligent Recusants which shall not resort every Sunday to Church that such bee punished according to the stâ—tute for the first meanes to bring men to God is to bring them to Church 4. Rogues and Vagabonds to be duely punished 5. Houses of correction to be mainetained 6. Watch to be duly kept 7. Weights and measures the abuses therein to be reformed 8. Further the Iu. of P. are to be carefull that they suffer not the King to be disadvantaged where it lyeth lawfully in their power to prevent 9. Also that they remember how that they exercise not the judgements of men only but of God himselfe whose power they doe participate and who is alwayes present with them and therefore must take heed that in all their actions they set God continually before their Eyes 10. But forasmuch as most of the businesse of the Iu. of P. out of Sessions consisteth in the execution of diverse statutes committed to their charge which statutes cannot be so sufficiently abridged but that they will come short of the substance and body thereof therefore it shal be safest for the Iu. of Peace not to relie overmuch upon these short collections thereof but to have an Eye to the Abridgement of those Statutes or rather to the booke of Statutes at large and therby to take their further and better directions for their whole proceedings For as Sir Edw. Coke observeth Abridgements are of good and necessary use to serve as Tables but not to ground any opinion much lesse to proceed judicially upon them Ideò saith he satius est petere fontes quà m sectari Rivulos Coke 10. 117. b. 11. And lastly for the better encouragement of Iu. of P. Constables and other officers who by causelesse suits commenced by contentious persons against them for executing their offices have lately been discouraged from doing their offices with that courage care diligence which is required at their hands Now for their case in pleading they are by the statute of 10. Caroli in Ireland allowed to plead the generall issue of Not guilty and to give the speciall matter in Evidence and for their wrongfull vexation double Costs Barretor CHAP. 4. 9. E. 4 3. 1. EVery Iustice of peace upon his discretion may binde to the peace or good behaviour such as are common Barretors 2. Now a common Barretor is he who is either a common mover or stirrer up or maintainer of suits in Law in any Court Co. 1. 6. or else of quarrels in the Countrie In Courts 3. As if in any Court of Record County Court hundred or other inferior Courts any person by fraud and malice under colour of Law shall themselves maintaine or stirre up others unto multiplicitie of unjust and fained suites or informations upon penall lawes or shall malitiously purchase speciall Supplicavits of the peace to force others to yeeld him composition all such are Barretors 4. In the Countrie and these are of three sorts 1. Disturbers of the peace In the Country viz. such as are either common quarrellers or fighters in their owne cause or common movers or maintainers of quarrels and Affrayes betweene others 2. Common takers or detainers by force or subtiltie of the possession of houses lands or goods which beene in question 3. Inventers or sowers of false reports Co. 8. 361. whereby discord ariseth betweene neighbours all these are Barretors 5. But all such persons must be common Barretors Co. 8. 37. sc not in one or two but in many causes Bailement and Mainprise CHAP. 5. 1. BAilement Mainprise or Replevin is the saving or delivery of a man out of prison before that he hath satisfied the Law sc by finding sureties to answere and be justified by the Law And to this purpose these three termes Bailement Mainprise and Replevin be indifferently used in our statutes and bookes 2. He that is bayled Stamf. 65. is taken or kept out of prison and delivered as it were into the hands of his sureties who are reputed his guardians and who may keepe him with them F. Manip 12. and may imprison him by some opinions See 22. H. 6. Br. Surety 8. Mainp 89. 3. By the common law the Sheriffe and every Constable being conservators of the peace might have bailed a suspect of felony but this authoritie is taken from them and given to the Iustices of peace by these statutes following 4. First by the statute 1. R. 3. cap. 3. every Iustice of peace had authority by his discretion to let to bayle persons imprisoned for suspition of felony But forasmuch as after the making of that statute diverse not being baileable were notwithstanding let to Bayle Two Iustices and so many notable felons escaped therefore this statute was repealed by the statute of 3. H. 7. 3. H. 7. cap. 38 Fitz. Na. Br. 251. f. And thereby any two Iustices of peace the one being of the Quorum were enabled to let any prisoners mainpernable by the Law to baile to the next generall Sessions of the peace or gaole delivery as the case should require After for that one Iustice of peace in the name of himselfe and of one other of his fellow Iustices not making the other Iustice privie unto the cause wherefore the prisoner should be bailed did oftentimes by sinister meanes set at large great and notable offendors such as were not baileable and yet to hide their affection therein did signifie the cause of their apprehension to be but onely for a suspition of felony whereby the said offendors have escaped unpunished for reformation whereof by the statute 10. Carol. cap. 18. 10. Carol. 18. in Ireland it was enacted that if it be for Manslaughter or felony or suspition of manslaughter or felony in which cases the party is baileable then the same Iustices must be present together at the time of the said bailement and that they must certifie in writing subscribed with their owne hands the said Bailement at the next generall gaole delivery to be holden within the County where the person shall be arrested or suspected upon paine to be fined by the Iustices of gaole delivery Now by the preamble of both last recited statutes the mischiefe seemeth to bee the escape of felons and therefore if it be not in case of felony it seemeth any one Iustice of peace alone may baile a prisoner except where some particular statute shall otherwise prescribe Cromp. 1 57. 5. If the Mainpernors or sureties doe at any time or in any case doubt that their prisoner or the party by them bailed will flie they may take him and bring him before any Iustice of peace and upon their prayer the said Iu. of P. may discharge such sureties and commit the party to prison except he shall finde new sureties such as the Iustices shall conceive to be sufficient So if a prisoner be bailed by insufficient persons the Iu.
Cashes and cutting or clearing of Paces within the parishes where he dwelleth as farre forth and in such manner and forme as any person having a plow-land in any parish ought to be chargeable by the said Act as aforesaid and that every person or persons occupying or keeping in his or their hand or possession severall or divers plow-lands as aforesaid in severall or divers parishes shall be charged to finde in each parish where the plow-lands being in his occupying doe lye one Cart Waine Tumbrell Dungpot or Courtslad Carres or drags furnished and two men and other things as before for the amendment and repairing of the high-wayes making of Cashes and cleering of Paces within the severall parishes where the said plow-lands doe lye in such manner and forme as if hee or they were a parishioner dwelling within the parishes where the same severall plow-lands doe lye And for the better keeping of the high-wayes passable for his Majesties subjects It is likewise enacted that no person or persons having any ground by lease or otherwise adjoyning to any high-way or common fairing way leading to any market Towne shall cast or scoure any ditch and throw and lay the soyle thereof into the high way and suffer it to lye there by the space of sixe moneths to the annoyance of the said high way or common fairing way upon paine of forfeiture for every load of soyle so cast into the high way or common fairing way in ditching or scouring twelve pence and where any heretofore have beene so cast into the high-wayes or common fairing way that there is a banke betweene the said way and ditch that it shall be lawfull for the supervisors and workemen appointed for the amendment of the said high-wayes to make sluces or other devices by their discretions to convay the water out of the said way into the ditch any Law right interest custome or usage notwithstanding 20. And it is further enacted that all and every Iustices of Assise Iustices of Oyer and Terminer and Iustices of the peace in their Sessions and Stewards of Lectes and Law dayes in their Leetes and Law dayes shall enquire of and heare and determine all and every offence matter and cause that shall grow come or arise by reason of this Statute and to assesse such reasonable Fines and amerciaments for the same as by them shall be thought meete and that all and every penalty summe or summes of money forfeited or to be imposed for any cause within this Statute shall be levied within every parish by the Surveyors of the wayes within that parish for the time being by distresse and sale of distresses in manner and Forme as Fines and amerciaments in Leets have beene used and the money so levyed to be imployed upon the high-way or common fairing way where the offence was committed within one yeare and the said Surveyors shall at least once every yeare at the quarter Sessions to be holden for the said County make a true Accompt before the Iustices of peace there or any two of them whereof one to be of the Quorum and shall make payment of all such summâ— of mony to the Surveyors to be appointed for the yeare next following as he or they shall have collected upon the Estreares thereof to be made unto them upon paine to forfeit for every time hee shall not so doe forty shillings sterl and to be committed untill they make payment thereof and the Clerke of the Crowne or of the peace and the Steward of every Leete shall make estreate indented of all the Fines forfeitures and amerciaments upon the said defaults and shall deliver the one part thereof to the Surveyors of every parish where the said offence was committed yearely within Six weekes after the Feast of Saint Michael the Archangell and the said Surveyors upon their accompt shall have allowed for every pound they shall collect and pay Eight pence for his owne paines and 12. d. English for the Fees of the Clerke of the Crowne Clerke of the Peace or Steward of the Leete for the estrates indented of every severall parish that they shall deliver as is aforesaid 21. Note that the Kings high way or Regia vid loading either to the Market or from towne to towne the freehold and soile thereof and the interest of all the trees and other such profitâ— thereupon growing doe belong to the Lord of the soile or Lord of the Mannor 17. Ed. 3. fol. 9. Br. Chimin 1â— â—1 â—7 H. 6. fol. 9. Br. Leeteâ— And therefore such Lords are chargeable to cut downe the Trees and bushes growing in such high-wayes and yet by the opinion of Keble 8. H. 7. fol. 5. the freehold of the high-way and the Trees thereupon growing are belonging to him that hath the land next adjoyning Br. Nusans 18. but it seemeth this must be understood of common field wayes or other private wayes and not of the Kings high-way See â— Ed. 4. fol. 9. Britton fol. 111. 22. Note also that he which hath land adjoyning next to the K. high-way by the common Law before these statutes was and is chargeable and bound of common right to clense and scoure the ditches adjoyning to the said high-way 8. H. 7. fol. 1. A. Br. Nasanus 28. 23. And it is called the Kings high-way for that the King at all times hath therein passage for himselfe and all his people and may punish all Nufans therein though otherwise the interest thereof be in the Lord to take all the Trees and such other profits there growing and to bring his Action for digging therein or for any other like Trespasse there done 24. F.N.B. 113. A. And the King by the common Law may award his Commission for the amending of the high-wayes and Bridges throughout his Realme so as his people may have safe passage thereby Cloth CHAP. 7. EVery Iustice of peace may examine and punish certaine abuses concerning the making of cloth as appeareth by a Branch of a statute made in Anno 4. E. 4. ca. 1. which branch followeth in these words viz. 1. Therefore it is ordeined and established by the authority aforesaid that every man and woman being cloth-makers Cloth-makers from the Feast of Saint Peter shall pay to the Carders spinsters and all such other labourers of any member thereof lawfull money for all their lawfull wages Wages and payment of the same And also to deliver wolles to be wrought according to the faithfull delivery and due weight upon paine of forfaiture to the same labourer the treble of his said wages so not paid as often as the said cloth-maker doth refuse to pay the same in the said manner and forme to any such labourer put by him to the occupation in any of the said members of cloth-making And also to forfeit to the same labourer for every delivery of excessive and unlawfull weight to him delivered to be wrought 6. d. for every default and that every Carder Spinster Weaver
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
si tunc domisit vel alii de familia qui tunc interfuerunt poenam capitalem subibunt nisi forte per patriam fuerint liberati Stamf. 97. 179. 5. Sunt etiam quaedam presumptiones ita violentae ut probationem non admittunt in contrarium ut si quis cum cultello cruentato captus sit super mortuum vel fugiendo à mortuo vel mortem confitetur quibus casibus non admittitur mortem dedicere nec alia opus est probatione 10. And yet in cases of felony Co. 11. 30. 2. Vide. c. the confession of the offendor upon his examination before the Iustice of peace shall be no conviction of the offendor except he shall after confesse the same againe upon his triall or arraignement or be found guilty by verdict of 12. men c. 11. Also in cases of secret murders and in cases of poysoning witchcraft and the like secret offences where open and evident proofes are seldome to be had there it seemeth halfe proofes are to be allowed and are good causes of suspition 12. Note by the common Law 8 E. 4. 4. 5. H. 7. 4. Br. Faux imp 4. 16. that in an action of false imprisonment brought against the Constable or other person that shall aâ—rest another upon suspition of felony it is no plea for them to say that the plainetiffe was suspected of felony but he must alledge that there was such a felony committed and that the plainetiffe was suspected for the same for suspition onely without a felony committed is no cause to arrest another 13. Also the defendant must alledge some speciall matter in fact 17. E. 4. 5. 21. H. 7. 29. to prove that he who is arrested was suspected of felony as to say that the parry arrested is a man of evill fame c. otherwise every man may arrest one another without cause 14. Also by the opinions of Keble Vavisor and Townsend 7. E. 4. 10. Br. Faux imp 16. 25. aswell the Constable as others in his ayde may arrest one that is suspected of felony upon the suspition and complaint made to the Constable of the party robbed 2. H. 7. 15. 16. Br. Faux Impris 14. 2. H. 7. 15. 16. And although others there be of opinion that the suspition can extend to none other but only to him that hath the suspition yet I conceive the opinion of Keble Vavisor and Townsend to be good Law for if felons may not be arrested or stayed but only by those that shall suspect them and that others may not ayde and assist the party that shall suspect another to have robbed him many felons shall escape and goe unpunished to the exceeding great prejudice of the common wealth 15. But now by the statute of 10. Caroli in Ireland The constable c. in the former cases 10. Caroli c. 16. in Ireland may plead the generall issue not guilty and give the said speciall matters in Evidence 16. Also if the Constable or other person shall arrest another upon suspition of felony by vertue of a warrant from a Iust of P. such warrant shall excuse him it being given in Evidence Forceible Entrie and Forceible Detainer CHAP. 29. 1. Cromp. 67. THe common Law being the preserver of the common peace of the land hath alwayes abhorred force as the capitall enemy thereto Co. 3. 12. And yet before the Raigne of King Richard the second the common Law seemed to permit any man to have entred into lands and tenements with force and armes and also to have kept and detained them with force where his Entry was lawfull 2. And at this day if a man doth enter with force or multitude of people where his entrie is lawfull he is not punishable by action either at the common Law nor by action upon any statute for where the title of the plainetiffe is not good there he hath no cause of action 15 H. 7. 15. Br. Force 11. although the defendant doth enter with force but in such case he that entreth with force must be indicted upon the statute of 8. H. 6. or otherwise complaint may be made thereof to the Iustices of peace and aswell upon such indictment as upon such complaint the offendor shall be punished but the party ousted shall not be restored without indictment 5. R. 1. ca. 7. Regist 182. 3. And for the better restraining of such force and forceible Entries and to inflict condigne punishment upon the offendors therein it was first ordained by the statute 5. R. 2. that no man should enter into any lands or Tenements with force or multitude though he had good right or title to enter but only in peaceable and lawfull manner 4. But this statute provided no speedy remedy nor extended to holding with force 15. R. 2. ca. 2. nor gave any speciall power therein to the Iustices of peace and therefore by a statute made 15. R. 2. it was further provided that if any man should detaine or hold with force after such forceible Entrie made upon complaint thereof he should be imprisoned by the Iustices of peace 5. Yet neither of the former statutes extended to those that entred peaceably â— H. 6. ca. 9. and then held with force and therefore by the statute 8. H. 6. it was and is provided that no man shall enter with force nor detaine or hold with force generally 6. Now these two last statutes 15. R. 2. and 8. H. 6. doe enable any one Iustice of peace to give present remedy viz. to remove the force and commit the offendors in cases of forceible Entrie or holding against the aforesaid statutes 7. Also the statute of 8. H. 6. extendeth further reaching the offendors if they were removed before the comming of the Iustices giving the Enquiry and restitution and also punishing the Sheriffe that shall not obey the precepts of the Iust in this behalfe One Iustice 8. Every Iustice of peace upon complaint to him made or upon other notice to him given 15. R. 2. ca. 2. of any forceible Entrie into or holding or detainer of possession of any lands tenements or other possessions or of any benefices â— H. 6. ca. 9. P. 1. or offices of the church contrary to these statutes without any examining questioning or standing upon the right or title of either party ought in convenient time at the costs of the party grieved to doe execution of these statutes in manner and forme following 9. 15. R. 2. ca. 2. First he ought to goe to the place where such force shall be and he may take with him sufficient power of the County or Town by his discretion and the Sheriffe also if need be to aide him for the better execution of this businesse sc aswell for the arresting of such offendors as also for the removing of the force and for the convaying of them to the next gaole 10. He ought to arrest and remove all such
peace doe not goe to see the place where the force is 12. And it is convenient upon such enquiry that the Evidence be given openly to the Iury to the intent it may appeare to the Iustices of peace or Court whether there shall be reasonable cause to stay restitution or no after the indictment found See Dyer 122. Of restitution to be made to the party put out CHAP. 34. 1. I Will here shortly recite the words of the statute Restitution which for this businesse of restitution will give the better light which are as followeth videlicet 8. H 6. ca. 9. And if upon such enquiry it be found before the said Iustices that any have done contrary to this statute viz. have entred or held with force the said Iustice of peace c. shall reseise the said lands or tenements so entred upon or holden and put the party so put out in full possession of the same lands and tenements so entred or holden as before 2. Here we see that after such forceible Entrie P.R. 35. or holding so found by enquiry the said Iustice of peace c. shall remove the force sc all such offendors as shall be found in the house or upon the lands that either entred or held with force and upon the prayer of the party so put out the said Iustice of peace shall restore him to his possession againe 3. And herein the Iustice of peace needeth not to stay or stand upon the right and title of either of the parties as is said before 4. But no restitution shall be made but where the forceible entry or detainer is first found by Inquisition Br. force 27. 5. Concerning this Inquisition or Indictment the Iustices of peace shall doe well to peruse and regard the same Cromp. 166. to see if it be sufficient Indictment the forme for the Iustice of peace ought not to award restitution where the indictment shall appeare to them to be any way insufficient in the Law either in matter or forme Dalton 193. 6. First therefore to have restitution the putting out by expresse words must be in the indictment and found by the Inquisition for another man may enter upon me and yet not put me out and then there needs no restitution to be made by the Iustices 7. And this putting out is to be understood only of the house or land Ibid. and not of a rent common advowson and such like into which an actuall Entry cannot be made and therefore none shall have restitution but such only as are put out of the house or land as is formerly ca. 29. herein declared Ibid. 8. Also the indictment ought to expresse the quality of the thing entred upon c. sc whether it be a messuage cottage meadow pasture wood or land errable for if the indictment be quod manuforti intraverunt in tenement c. it is void for the incertainty because the word tenementum may extend to either of them 9. Also the indictment must have these words sc adhuc extra tenent 14. H. 6 16. Br. force 13. otherwise the party shall have no restitution and yet these words be not in the statute but without these words in the Indictment it may be supposed and thought that he which put me out hath left the possession againe or that I have gotten it againe and then the restitution is needlesse Dalton 193. 10. So as in every such indictment these words are materiall sc expulerunt adhuc extra tenent And for lack of either of these words no restitution shall be made or awarded 11. Also one of these two words Manuforti or cum multitudine seeme to be materiall in the indictment Dalton 194. unlesse they be implyed by reciting the statute of 8. H. 6. and concluding contra formam statut predict or by some other words in the Indictment See the presidents herein in the title of warrants and presidents Cromp. 162. 12. If a man shall be restored upon an insufficient indictment taken before the Iustice of peace and this be removed into the Kings Bench the Court there will cause the party to be restored that before was put out by the Iustice of peace by a writ of restitution Cromp. 165. 166. b. 13. Also if error or insufficiency be in the indictment taken before Iustices of peace yet restitution is awarded by them any two of those Iustices of peace which were present at the taking of the said indictment upon the prayer of the party may at another Sessions grant and award a Supersedeas to the Sheriffe to stay the same restitution Dyer 187. if the Sheriffe hath not made restitution before the Supersedeas come to his hands but no other Iustice of peace besides those which were present at the taking and finding of the said indictment can grant a Supersedeas if the indictment were found at a speciall Sessions 14. A man is indicted that he entred with force and held with force and upon the traverse it is found that he entred with force Cromp. 165. but not that he held with force yet this indictment seemeth good enough and the party shall be restored 15. So if two be indicted of a forceible Entrie or deteiner Severall indictments and upon the traverse it is found that the one entred with force and the other held or detained with force yet the party shall be restored Ibid. 16. If it be found by one Enquest that A. put me out by force Dalton 194. Cromp. 166. Br. force 6. and by another Enquest that I did put out A. by force either of us may pray to have restitution against the other but he that is first restored is in the worst case for the other may have restitution afterwards and then he that had restitution first is without remedy by the hands of the Iustice of peace saving that he may reenter if he can peaceably or have his action 17. If it be found by one Enquest that A. did put mee out by force and by another Enquest taken at the same Sessions that B. did put me out by force I may chuse upon whether of these indictments I will be restored Cromp. 166. and if I have restitution against A. and this be returned I cannot have restitution upon the other Dalton 194. But if upon the writ of restitution it be not returned that I have restitution then I may afterwards have restitutiō against B. upon the other Indictment if B. hath reentred upon the first restitution made to me 18. Dalton 194. 195. A. is disseised or put out with force by B. and after B. is put out with force by C. and all this is found by one and the same Inquisition here B. may have restitution against C. for B. hath more right to the possession than C. and then may A. have restitution against B. but upon this Inquisition if A. have restitution
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
gathered together or else it can be no Riot Rout or unlawfull assembly within the meaning of these statutes 6. But an assembly of an hundred persons or more yea though they be in armour yet if it be not in terrorem populi and were assembled without any intent to breake the peace it is not prohibited by any of these statutes Cromp. 6â— P. R. 2â— The intent Cromp. 61. Dalton 201. 7. For it seemeth it can be no Riot c. except there be an intent precedent to doe some unlawfull Act and with violence or force 8. And therefore if diverse be assembled aâ—d none of them doe know to what end or purpose they are met this can make no riot or Rout till the intent be knowne 9. If the master intending to make a Riot taketh with him his ordinary servants and maketh an affray or other outrage with them this is no Riot in the servants Ibid. except their master had made them privie to his intent before but the master only shall be punished for the riot and the servants as trespassers 10. And in this former case it is not materiall though the number of his servants which goe with him be above his degree so long as they be his houshold servants P. R. 25. Cromp. â—â— 11. If diverse being lawfully assembled shall quarrell or fall out upon the sudden without any such former intent this is no riot but a sudden Affray Dalton p. â—â—â— 12. If divers bee at an Alehouse and without any intention of an Affray they suddenly fall together by the Eares this is no riot but a sudden affray because they had no such intention before 13. If a Iury being together shall fall out and fight Ibid. this is no riot because they were lawfully assembled but it is a great misdemeanor for which they shall be fyned and imprisoned 14. Also where there be three or more gathered together 〈◊〉 201. either to execute the Iustice of the Law or for the exercise of valouâ— and triall of activity 3. H. 7. 1. Br. Riots 2. or for the increase of amitie and neighbourly friendship and being met without any intent to breake or disturbe the peace or to offer violence or hurt to the person of any such assemblies be not prohibited by any statute nor unlawfull as if the Sheriffe undersheriffe bailiffe or other officer shall take power what number he shall thinke good to execute the Kings processe this is no unlawfull assembly 15. So it is a lawfull assembly which is gathered together to run at Tilt c. by the Kings commandement 16. So the assembly of people and their use of harnesse upon usuall dayes in Dublin Dalton 202. and other Citties and Townes being onely for disport or exercise of Armes is lawfull and though it be with a great assembly of people and in armour yet it being neither in terrorem populi nor to doe any act with force or violence against the peace it is lawfull 17. Also if divers doe assemble and gather together Ibid. to drinke at an Alehouse or to play at foot-ball bucklers beare or bullbaitings dancings Bowles Cards or Dice or such like disports that is no Riot nor prohibited for these meetings usually are not with any intent to offer or doe violence or hurt to the person possessions or goods of any other neither are they malum in se but if these be done upon the Sabboth day they are misdemeanors and sufficient cause to bind the offendors to the good behaviour and so it is of keeping faires and markets upon the Sabboth day 18. Ibid. But if any of the persons assembled together for any the disports above mentioned or for the like came with an intent or purpose to breake or disturbe the peace or to offer violence or hurt to the person of any and shall make an affray or doe any other outrage this seemeth to be a riot in so many as came with any such unlawfull intent or purpose 19. P. R. 25. And if any of the persons assembled together to drinke or play at an Alehouse or for any the disports above mentioned or the like shall fall out suddenly without any former intention of an affray and in that their falling out they shall betake themselves to sundry parts and shall make an affray this seemeth to be no Riot Dalton p. â—02â— for that it was without any such intent before their said assembly and done only upon the sudden and upon a sudden occasion happening after their said meeting and againe their said assembly was at the first lawfull or at least not prohibited by any of these statutes nor yet by the common Law 20. But otherwise if by agreement they shall meet againe and fight afterwards Ibid. that maketh it a Riot as being a new assembly upon the former quarrell and so their second meeting was upon an intent precedent to doe an evill Act. 21. Now concerning the lawfulnesse or unlawfulnesse of the Act Lawfulnesse of the Act. it is to be observed that lawfulnesse or unlawfulnesse of the thing done or intended doth not alwayes excuse or accuse the parties to a Riot c. but so that the manner and circumstances of the fact must also be considered Br. Riots 1. 22. For every man may assemble company to aide him in his house against injury or violence but if a man be threatned that if he come to such a place he shall be beaten in this case if he shall assemble any company to goe thither with him though it be to the safegard of his person it seemeth to be within the compasse of these statutes and unlawfull Br. Riots 1. Cromp. 66. 23. Every man in peaceable manner may assemble meete company and may come to doe any lawfull thing or to remove or cast downe any common nusance done to them Co. 5. 101. 9. 55. 24. Every private man to whose house or land any nusans shall be erected made or done may in peaceable manner assemble a meete company with necessary tooles and may remove pull or cast down such nusans and that before any prejudice received thereby and for that purpose if need be may also enter into the other mans ground 36. Eliz. Cromp. 66. 25. A man erects a weare crosse a common Ryver where people have a common passage with their boats and diverse did assemble with spades Crowes of Iron and other things necessary to remove the said Weare and made a Trench in his land that did erect the weare to turne the water so as they might the better take up the said weare and they did remove the said nusans this was holden neither any forceible Entry nor yet any Riot Dalton 203. 26. But in the cases aforesaid if in removing any such nusans c. the persons so assembled shall use any threatning words as to say they will doe it in despight of the other or they will
the request of one and for the preservation of the peace chiefely towards one 11. Also this surety of good abearing is most commonly granted either in open Sessions of the peace or out of the Sessions by two or three Iustices of peace whereas that of the peace is usually granted by one Iustice of peace and out of Sessions 12. And yet by the words of the Commission 14. H. 7. 8. â— as also by the opinion of the learned any one Iustice of peace alone and out of the Sessions may grant this surety of the good abearing and that either by his owne discretion or upon the complaint of others as they may that of the peace 13. But this is not usuall unlesse it be to prevent some great and sudden danger especially against a man that is of any good estate carriage or report 14. Also this surety may be granted at the suit of one person 15. But the more difficult and dangerous this surety is to the party bound the more regard there ought to be taken in the granting of it and therefore it shall be good discretion in the Iustices of peace that they doe not command or grant it but either upon sufficient cause seene to themselves or upon the suit and complaint of diverse others as aforesaid and the same very honest and credible persons 16. Also this surety of good abearing is often taken by the Iustice of peace by vertue of a speciall writ in nature of a supplicavit Supplicavit directed out of the Chancery or Kings Bench and then the Iustice of peace upon such a writ is to proceed as a minister as in case for the P. mutatis mutandis vide ante tit Suretie for the peace and supplicavit 17. Master Dalton affirmeth that he once received out of the Chancery Dalton p. 170. such a writ directed custodibus pacis in comit Cantabrigiae ac vicecomiti ejusdem comit eorum cuilibet and grounded upon the statute of 34. Ed. 3. commanding them and every of them to take foure sureties besides the party whereof every one of them should have lands of such a yearely value or goods of such a value and to bind the sureties every of them in such a summe quod ipse boni gestus de cetero erit erga nos cunctum populum nostrum quod nihil in contrarium statuti pradicti attemptabit c. and therein he proceeded as a minister onely 18. The party against whom such a supplicavit for the good behaviour shall be granted out before he be attached thereupon may goe or send up and give sureties in the Chancery as here before is said for the peace and thereupon he shall have a supersedeas out of that Court directed to the Iustices of peace and Sheriffe and to every of them commanding every of them to surcease to arrest the said party or to doe any other execution of the said writ of supplicavit and that if before the comming of the said supersedeas they have taken any such security for the good behaviour of the party that then they presently release the party of such surety found by him the former writ of supplicavit notwithstanding For what cause this suretie of the good behaviour shall be granted CHAP. 63. 1. IT is chiefely to be granted by the Iustices of peace out of their Sessions in these cases following viz. against common Barretors common Quarrellers and common breakers or perturbers of the peace 2. Also it is grantable against Rioters see hereof before tit Riots 3. Also against such as shall lye in wait to rob or shall be suspected to lye in wait to rob or shall assault P. Iustice 18. or attempt to rob another or shall put passengers by the way in feare or perill 4. Also against such as be generally feared or suspected to be Robbers by the high way 5. Also against such as are like to commit murder homicide Cromp. 135. b. or other grievances to any of the Kings subjects in their bodies 6. Also against such as shall practise to poyson another 7. One had bought Ratsbane and mingled the same with corne and then wilfully did cast the same amongst his neighbours poultry Dalton p. 171. whereby most of them dyed and this was holden to be a good cause to bind the offendor to the good behaviour 8. P. Iustice 18. 34. Ed. 3. ca. 1. It is also grantable against such as be of evill name and fame generally but more especially against all such as are defamed and detected in any of these partitulars following 9. 13. H. 7. 10. First against all those that are greatly defamed for resorting to houses suspected to maintaine adultery or incontinence 10. Also against the maintainers of houses commonly suspected to be houses of common Bawdrie 11. Cromp. 140. One that had such lewd women found in his house was bound to his good behaviour by Wray Anderson and Manwood 28. El. 12. Also against common whoremongers and common whores 1. H. 7. 7. 27. H. 8. 14. for by good opinion Avowtry or Bawdry is an offence temporall aswell as spirituall and is against the peace of the land 13. Upon information given to a Constable 13. H. 10 Br. Traverse 432. that a man and a woman be in adulterie or fornication together or that a man and a woman of an evill report are gone to a suspected house together in the night the officer may take company with him and if he find them so he may carry them to prison or he may carry them before a Iustice of peace to find sureties for the good behaviour 14. Also against night-walkers that be suspected to be pilferers or otherwise like to disturbe the peace or that be persons of evill behaviour or of evill fame or report generally or that shall keep company with any such or with any other suspitious persons in the night 13. H. 7. 10. 15. Against such as be Evesdroppers that is to say that in the night shal harken neare the wals of mens houses to heare what is spoken within and to make use thereof to breed discord or dissention amongst neighbours 16. Against Night-walkers that shall cast mens gates or Carts into ponds c. or shall commit other misdemeanors or outrages in the night time 17. Against suspected persons who live idly and yet fare well or are well apparelled having nothing whereon to live except upon examination they shall give accompt of such their living 18. Against common Haunters of Alehouses or Tavernes but more specially if they have not whereon to live and also against common Drunkards and Prophaners of the Sabbath and against common Gamesters and Keepers of common gaming houses whereby mens servants and children are drawne to Unthriftinesse and also against Alehouse-keepers and Inne-keepers that maintaine misorder in their houses and especially on the Sabboth day 19. Against such as shall use to goe in the message of Theeves See stat 18.
Ed. 2. P. Leete 1. 20. All these former offendors and the like are evill members in the common wealth and such their demeanor and living is greatly to be suspected and besides doe seeme to be more properly said against the peace of the land then Avowtrey in the case before 1. H. 7. 7. and therefore it seemeth reasonable just and expedient that the Iustices of peace upon their discretion should convent such persons before them and their courses of life and if they cannot yeild a good reason and accompt of such their courses then to bind them to their good behaviour 21. Also the good behaviour seemeth grantable against such as shall make false outcries or shall raise Huy and Cryes without cause for these are disturbances of the peace Cromp. 179. 22. If two men doe levie Huy and Cry one upon another without cause both of them may be attached and bound over as disturbers of the peace P. R. 156. 23. Also Cheators and Cozoners may be bound to the good behaviour See Co. 5. 125. P. R. 12. 24. Libellers it seemeth may also be bound to their good behaviour as disturbers of the peace whether they be the contrivers the procurers or the publishers of the libell for such libelling and defamation tendeth to the raising of quarrels and effusion of blood and are specially occasions and meanes tending and inciting greatly to the breach of the peace 25. Also it seemeth grantable against unlawfull hunters in parks after their examination taken vide antea tit Hunting 26. Also it shall be granted against him that shall abuse a Iustice of peace Constable or other officer of the peace in executing of their office 9. El. 43. 27. A Iustice of peace seeth a man breake the peace sc to make an assault or affray upon A. and he chargeth him to keepe the peace and the other answereth that he will not the Iustice of peace may bind him to the good behaviour See Exod. 22.28 28. For if as one saith contempt or contumelie used to the person of a mans better neither policie for example nor religion for peace may tolerate much lesse to use contempt towards or to abuse such as are in authority especially when they are in executing their office 29. Nay it seemeth that he which shall use words of contempt or contra bonos more 's against a Iustice of peace though it be not at such time as he is executing his office yet hee shall be bound to his good behaviour 30. If a Citizen or free man of a Citty Co. 11. 98. or Towne corporate shall use words of contempt or contra bonos more 's against the chiefe officer of the City or Towne or his brethren they are good causes to commit him to prison untill he shall finde sureties for his good behaviour for obedience and reverence ought to be yeelded to the magistrate for that they derive their authority from the King 31. Also he that shall abuse a Iustice of peace his warrant may be bound to his good behaviour 32. A man complaineth of a Riot or a forceible Entry so that the Iustices of peace are assembled to enquire therof and then the party that complained will not prosecute the matter it seemeth the said Iustices of peace may bind him to his good behaviour for his deluding them 33. And so of such as shall charge another with felonie before a Iust of Peace and yet will not give Evidence c. 34. A. is bound to keepe the peace against B. only Cromp. 134. and getteth a supersedeas and after B. releaseth him after A. is arrested for suretie for the peace at another mans suit and sheweth this first supersedeas it seemeth he shall be bound to his good behaviour for this deceit 35. He that hath a pardon for any felony 10. Ed 3. P. pardon 5. shall finde surety for his good behaviour but he shall bee bound before the Sheriffe and Coroners who shall returne the same into the Chancerie 36. Also he that is acquitted of felonie if he be of evill fame or of evill behaviour it seemeth the Iustices of peace upon their discretion may bind him to his good behaviour 37. The forme of a warrant for the good behaviour vide postea tit Warrants 38. The forme of the Recog for the good behaviour vide postea tit Recognisance 39. Whether the suretie of the good behaviour taken upon complaint may be released by any speciall person some do doubt it Release Lamb. 126. because it seemeth more popular then the suretie of the peace yet others doe hold that it may be released either by the Iustice of peace himselfe that tooke it in discretion P.R. 2â— or by the party upon whose complaint it was granted even as that for the peace may 40. It seemeth also a Supersedeas Supersedeas of the good behaviour may bee granted by the Iustices of peace as well as for the peace mutatis mutandis upon good sureties taken by the said Iustices of the party to be of the good behaviour Cromp. 237. 41. Cromp. 146. If a man be bound to the good behaviour before Iustices of peace and to appeare at the next Assises or Sessions yet the party bound may by a Certiorari Certiorari remove the Recognisance into the Chancerie or Kings Bench before the day and then he shall not need to appeare at the Assises or Sessions for they have no record whereupon he may be called there Swearing and Cursing CHAP. 64. 1. FOrasmuch as all prophane swearing and cursing is forbidden by the Word of God 10. Caroli ca. 1. in Ireland it is enacted by Parliament in anno 10. Caroli ca. 1. that no person or persons shall prophanely sweare or curse and that every person or persons that shall at any time or times offend herein either in the hearing of a Iustice of peace bailiffe or any other head officer of any Citty or Towne corporate where such offence is or shall be committed or shall be thereof convicted by the oathes of two witnesses or by confession of the party before any Iustice of Peace of the County or head officer or Iustice of Peace in the Citty or towne corporate where such offence is or shall be committed to which end every Iustice of peace and every such head officer have power by that Act to minister the same oath that then every such offendour shall for every time so offending forfeit and pay to the use of the poore of that parish where the same offence is or shall bee committed the summe of Twelve pence and it shall also be lawfull for the Constables and Church-wardens or any one of them by warrant from such Iustice of peace or head officer to levie the same summe or summes of money by distresse and sale of the offendours goods rendring to the party the overplus and in defect of such distresse the offendor if he or she be above the age of
the discretion of the Court. 5. Ed. 3. cap. 10. Bribery 33. If any officer or minister of Iustice shall take any bribe to neglect the doing of his office or to doe his office falsely or corruptly he is to be punished by the common law by Fyne and imprisonment Conspiracy 34. If any Tradesman Artificers Labourers or servants shall combine and conspire not to worke or serve at the rates published by the Iustices of peace this is a misdemeanor at the common law and punishable by fyne and imprisonment 35. If any persons shall make any conspiracy or combination by colour of Iustice to take away any mans life malitiously without cause this is a high misdemeanor and to be grievously punished by the villanous Iudgement viz. imprisonment during life the offendours testimony to bee rejected his house to be rased his medowes plowed his woods to be rooted up and his person never to approch any of the Kings Courts 36. If any person or persons shall wittingly forge or cause to be forged any false deeds or writings or publish the same knowing them to be forged this is a misdemeanor punishable at the common law by Fyne and imprisonment and may bee so punished by the Iustices of peace but by a statute made in 28. El. cap. 4. in Ireland if it concerne Inheritance or Freehold of any lands or hereditaments it is punishable by Pillorie losse of Eares slitting the Nose forfeiture of land during life and perpetuall imprisonment but this punishment is to be inflicted by the Iustice of Assize or Iustice of Oyer and Terminer and not by the Iustices of Peace Offences of Omission CHAP. 6. 1. THe third sort of fineable offences are omissions Omissions in officers and others in not doing and performing such things as by the Lawes of the Kingdome they ought to doe for as the Lawes prohibit the doing of such things as are unlawfull so likewise they command the doing and performing of other duties which are for the preservation of the peace and good governement of the Common-wealth and therefore if Constables In Constables shall not set forth nor levie Huy and Cry after Felons and Traytors upon notice to them given this is a grievous offence of omission tending greatly to the prejudice of the Common-wealth and by the statute of 13. Ed. 1. ca. 1. 2. called the statute of Winchester to be punished by a great Fyne and imprisonment 2. If Constables shall bee negligent in the apprehending and punishing of Rogues Vagabonds and sturdy beggars and others that begge without licence or having Licences begge out of the limits appointed for them to begge in Such Constables for their neglects by a statute made 33. H. 8. cap. 13. in Ireland are to be punished by Fyne and imprisonment 3. If Constables shall be negligent in appointing the watch in every Towne by a statute made in 5. Ed. 4. cap. 5. in Ireland they are to be punished by a Fyne of three pence for every time that they shall faile in this particular 4. If Constables shall not doe their best endeavour to part an Affray and to see the Kings peace preserved and to apprehend the offendors and bring them before a Iustice of peace this is a neglect of their dutie and punishable at the common Law by fyne and imprisonment 5. If Constables shall not make search for idle and suspected persons and common gamesters that live idly and expensively having no meanes to maintaine themselves and bring them before a Iustice of peace this neglect is a misdemeanor at the common law and punishable by fyne and imprisonment 6. If Constables shall neglect or refuse to apprehend Felons or Traitors or to make search for them upon request or notice given them this is likewise a misdemeanor at the common law and punishable by fyne and imprisonment 7. If Constables or any other officers Neglect of officers others or ministers of Iustice shall refuse or neglect to execute the warrants of any Iustice of peace to them or any of them directed this is likewise a misdemeanor at the Common law and punishable by fyne and imprisonment 8. If any person or persons shall refuse to follow Huy and Cry after Felons and Traytors at the Constables command by the Statute of Winchester made Anno 10. Edw. 1. cap. 1. 2. they are to be punished by fine and imprisonment 9. If any person or persons shall refuse to assist the Constable to make search for and to apprehend Felons or Traytors or other suspected persons or to convey prisoners to the gaole or before a Iustice of the peace this is a misdemeanor at the Common Law and punishable by Fine and imprisonment 10. If any person shall refuse or neglect to keepe the watch when he shall be required by the Constable this is likewise a misdemeanor at the common law and punishable by fine and imprisonment Neglect of Towneships 11. If any Towneship shall permit and suffer sturdy beggers Rogues or Vagabonds to abide in or passe through their towneship without punishment or other impotent beggers which begge without licence The Towneship is to be punished in manner following viz. To be fined for every impotent begger 3 s.4.d and for every sturdy begger Rogue or Vagabond 6. s. 8. d. and this by the statute of 33. H. 8. ca. 15. in Ireland 12. Every Towneship ought to have stockes for the punishment of Rogues Vagabonds and sturdy beggers and likewise for the safe keeping of breakers of the peace and other malefactors untill they can conveniently be brought before a Iustice of the peace And also common and overt pounds wherein distresses are to be impounded and such towneships as shall want such stockes and common pounds are to be punished by fine at the discretion of the Iustice of peace 13. If any servant artificer or labourer Servants Labourers and Artificers shall refuse to worke or labour at the wages rated by the Iustice of peace or shall take more wages then according to the rates published by the said Iustices by the stat of 33. H. 8. cap. 9. in Ireland they are to be punished in manner following viz. To forfeit so much as they take above the rates and imprisonment at the discretion of the Iustices of Peace 14. All such as are idlers and will not labour at all and yet have nothing to maintaine themselves are to be enquired of presented and to be punished by the Common law by fine and imprisonment untill they finde sureties to labour or for the good behaviour at the discretion of the Iustice of peace 15. All defects of Bridges Defects of Bridges c. causeys and high-wayes are to bee presented in the generall Sessions of the peace and all such as ought to repaire the same whether it be the whole countie one or more Barronies Parishes or any one person in particular they are to be fined for their neglect herein by the common