he and they whose estate he hath in the Manor of Dale haue bene Conseruatours within the Hundred of Sale either all the yeare or onlie at one certaine time of the yeare And as hée may prescribe in the power it selfe so also may he in the maner of the exercise of the same as that they haue vsed to take the Suertie of Peace by obligation pledge or Caution so also in the maner of the Processe therefore as to Distreigne and to sell the distresse Mar. But all this is to be doubted of because that in the opinion Of Brian and Pigot 21. E. 4. 67. 22. E. 4. 35. the Maior of Dale cannot prescribe to be a Conseruatour or to commaunde Suertie of the Peace to commit to prison for an affraie in his presence vntill such suertie be found Furthermore euen as the shirifes were auntientlie chosen and as the Coroners yet bée So also certaine persons were wont to be elected Conseruatours of the Peace in the full Countie before the Shirife and of this kinde I my selfe haue séene certaine Recordes in Rotul patent de Anno. 5. E. 1. running in this course By ElectioÌ„ First a Writte to the Shirife of Norfolke commaunding him to choose in his ful CouÌ„tie unum homâ—nem de probioribus potentioâ—â—bus Comitatus sâ—â— in custodem pacis Then an other Writte directed Balliuis fidelibus of the same Countie giuing vnto theÌ„ notice of the former Writte to the ende as it séemeth that the Bailies should warne the men of the Countie and that they should appeare at the Countie Court to make the Election And lastlie to the Conseruatour elected this Writte following Edwardus dei gratia Rex Angliae Dominus Hyberniae dux Aquitaniae dilecto fideli suo Iohannt le Bretun Salutem CuÌ„vicecomes noster Norfolc et coÌ„munitas eiusdem comitatus elegerit vos in Custodem pacis nostrae ibidem vobis mandamus quod ad hoc diligenter intendatis prout idem vicecomes vobis scirifaciet exparte nostra donec aliud inde praeceperimus In cuâ—us rei c. Datum per manum venerabilis patris F. Bathon Wellen. Episcopi Cancellarij nostri apud Cest secundo die Septemb. Annoregni nostri quinto Touching the conseruation of the Peace by Tenure of Land M. Marrow putteth this case If the King graunt vnto a man landes to holde of him by Kinghtes seruice and to be a Conseruatour of the Peace in a Countie he is a Conseruatour by Tenure agreably wherevnto saith an Inquisition founde at Chester An. 4. E. 2. after the death of one Vrianus de Sancto Petro inter alia thus By Tenure Touching the ... Quòd idem Vrianus tenuit de Domino Rege in capite in dominico suo vt de feodo die quo obyt Medietatem Seriantiae pacis per seruitium inueniendi decem serutentes pacis ad Custodiam pacis in Cestr pro qua quideÌ„ custodia antecessores sui percipere solebant xxx â— per annum ad scaccarium Cestr pro Mantellis dictorum decem seruientum c. These sortes and some others which M. Marrow reciteth and whiche I wanting Recordes to warrant them do omitte I cal Ordinarie Conseruatours of the Peace bycause thier auctoritie was then Ordinarie alwayes one and the same wel ynough knowen Extraordinarie conseruatours But the Extraordinarie Conseruatour as he was endowed with an higher power so was he not ordinarilie appointed but in the times of greate troubles onlie much like as the Lieutenaunts of shires are now in our dayes And he had the charge to defende the coasts and Countrey both from forraine and inwarde enemies and might commaund the Shirife and all the Shire to aide and assiste him as it may well appeare by this Patent remayning of Record in the Tower Rotul Patent de An. 49. H. 3. made by that king or rather in his name by Simon the Earle of Leicester whose prisoner he then was Rex Iohanni de Plesset salutem Cùm nuper de consilio Magnatum qui sunt de consilio nostro constunerimus vos custodem pacis nostrae in comitatu Northumb. ac vos tam landabiliter circumspecte in officio illo gesseritis quod probitatem ac diligentiam vestram merito duximus recommendandam adhuc necesse sit sicut intelleximus quod ad tuitionem partium illarum conseruationem pacis nostrae èìdem officio intendatis vobis de consilio Magnatum praedictorum mandamies firmiter iniungentes quatenus omnem diligentiam quam poteritis adhibeatis ad pacem nostram conseruandam in partibus praedictis in forma qua vobis aliâs iniuÌ„ximus MaÌ„dauimus enim Vic nostro Northumb. quod quotiens opus fuerit à vobis fuerit requisitus cum toto posse sui comit vobis ad hoc assistat Nolumus autem quod praetextu huius maÌ„dati nostri de aliquibus quae ad officium vic pertinent vos intromittatis quo minus vic de exitibus eiusdem comit nobis plenè respondere valeat ad Scaccarium nostrum Teste Rege apud Westmonast xj die February Anno Regni sui quadragesimo nono And sundrie the like Patents were at the same time also made as to Iobn de la Haye to be Conseruatour of Kent and of the Sea coastes there to Ralph Baslet of Dravâ—on to be Conseruatour of Staffordshire and so to others for other Counties Of the first ordaining of the Wardeins and Iustices of the Peace by Statute Lawe CAP. IIII. After suche time as Queene Isabell contending with hir husband King Edwarde the second was retourned ouer the Seas into England accompanied with hir Son Prince Edward called afterward the thirde King of that name and with Sir Roger Mortymer and such others of the Englishe Nobilitie as had for the indignation of the King fledde ouer the Seas vnto hir She soone after gotte into hir handes the person of the olde King partlie by the assistaunce of the Henâ—lders that the brought with hir and partlie by the aide of such other hir friends as the found readie here and immediatelye caused him by forced patience to surrender his Crowne to the young Prince And then also for as muche as it was not without cause feared that some attempte would be made to rescue the imprisoned King order was taken that he should be canueyed secreatelie and by night watches from house to house and from Castle to Castle to the ende that his fauourers should be ignorant what was become of him Yea and then withall it was ordained by Parliament in the life time of that deposed King and in the varie first entrie of his sonnes raigne 1. E. 3. ca. 15 That in euerie Shire of the Realme good man and lawful which were no maintainers of euill nor Barrettours in the Countrey should bee assigned to keepe the peace which was as much as to say that in euerie Shire the King himselfe should place speciall eyes and watches ouer the common people that
vnà cum posse comitatus tui sinecesse fuerit accedas ad mesuagium caetera premissa aceadem cum pertinentijs reseisiri facias prafatum C. D. ad in plenam possessionem suam inde prout ipse ante ingressum praedict fuer at restitui mitti facias iuxtra formam dicti statuti de ingressibê° manu forti factis editi prouisi hoc nullatenus omittas periculo incuÌ„bente Teste me prafato c I will now come to the performance of the promise which I made coÌ„cerning the statute of Northampton for that also is now of late dayes chiefly put in vre for the punishment of Forcible Cntries The execution of a Writ vpon the Statute of Northam That Law in effecte for this purpose is thus No man whatsoeuer except the Kings seruants and Ministers in his presence or in executing his precepts or their Offices and such as shall assistthem and except it be vpon crye or proclamation made for armes to keepe the Peace that in places where such actes do hape be so hardy to come before the kings Iustices or other his Ministers doing theyr offices with force and armes Nor bring any force in affray of the Countrie nor goe nor ride armed by night or by day in faires or Markets or in presence of the Iustices or other ministers nor in my place elsewhere vpon paine to forfeite his Armoure to the King and his bodie to prison at the Kings pleasure 2 E. 3. ca. 3. Vpon this Statute he that is put out or holden out of his land with force vseth to have at this day a Writ directed out of the Chauncerie eyther to the Shirife onely as M. Fitz in his Nat. Br. Fol 249. rehearseth it for I finde if not in the Register of Writs or else Custodibus pacis ac Vicecomiti coruÌ„ cuiliber as the common maner is commanding that Proclamation be made upon this Statute and that if any bée afterward found offending against the same that then they shall be committed to Prison there to remaine vntill that some other commaundement be given concerning them and that their armour and weapon shall be prised and the same aunsweared to the vse of the Ruéene But forasumuch as that Iustice of Peace to whome this Writ shall be delivered is to make execution of the same as a Minister onelie and is to Certifie hys dwing therein I thinke good to lend him these few helps towards it At his comming to the place where the force is supposed by this Writ he may cause the Oyes for silece to be made with this or such an other Proclamation The Queenes Maiesties Iustice of hir Peace straightly chargeth and in hir Maiesties name commaundeth all and euerie person to keepe silence whilest hir Maiesties Writ vpon the Statute made at Northampton in the 2. years of King E. 3. hir noble Progenitour deliuered to the saide Iustice be read and Proclamation be thervpon made accordingly Then may he reade the Writ as declare the effect thereof in English After that let the Oyes bée made againe and therevpon may this Proclamation follow Hir Maiesties said Iustice doth in hyr Highnesse name and by vertue of hir sayde Writte straightlye charge and commaunde that no manner of person of what estate degree or condition soeuen nowe being wythin the house of B. c. named in the said Writ shall goe armed nor keepe force of armour or weapon nor doe any thing there or elsewhere in disturbaÌ„ce of hir Maiesties Peace or in offence of the said Statute vpon the paines of loosing his said armour weapon of imprisoning of his bodie at hir Maiesties pleasure God saue the Qucene This done the Iustice may enter and search whyther there be any force of armor or weapon worne or borne againste this Proclamation or otherwise he may enquire thereof by a Iurie for so the Writ it selfe doth warrant him to do and if any such be sounde he ought to imprison the offendors and to seise and praise the armoure and weapon so fouÌ„d with them But if vpoÌ„ the Proclamation made they do depart in peaceable maner then hath he no warrant by the Writ to commit them to prison And what weapons be offensiue in the case of this Statute he shall the better discerne if he take with him these fewe lines drawen oute of M. Bractons Booke Fol. 162. where he speaketh of the like violent disseisine shus Est euam vis armata non solum si quis venerit cum telis verumetiam omnes illos dicimus armatos qui habent cum quo nocere possunt Telorum autem appellatione amnia in quibus singuli homines nocere possunt accipiuntur Sed si quis venerit sine armis in ipsa concertatione ligna sumpserit fustes aut lapides talis dicetur vis armat a. Si quis autem venerit cuÌ„ armis armis tamen ad deijciendum non vsus fuerit et deiecerit vis armata dicitur esse facta Sufficit enim terror armorum vt videatur armis detecisse But nowe let me shew him a Forme of Certificat or returne of this Writ into the Chauncerie and then make an ende Vpon the Writte it selfe these words may bée Endorsed Executio istius Brcuis patet in quadam Scedula eidem Breui consuta And the Scedule may bée thus EGo Wilhelmus Lambarde vnus IusticiarioruÌ„ pacis Dominae Reginae in comitatu Kanciae certifico in Cancellariam dictae Dominae Reginae quod virtute istius Breuis mihi primo deliberati publicè proclamari ex parte dictae Dominae Reginae feci apud B. cuius in dicto Breut sit mentio tali die c prout in dicto Breui praecipitar Et quod quidam A. C. D. E. de F. in comitatu praedicto Laborers praedictam proclamatioâ—e paruipendentes post proclamationem sic factaÌ„ armatiiuerunt ac armatam potentiam duxeruÌ„t scilicet duas galeas vnum arcum decem sagittas duos gladious totidem pugiones in perturbationem pacis dictae Do. Reginae ac terrorem popule sus necnon in contemptum Statuti in dicto Breui specificats manifestum Ac proinde dict A. C. D. E. vna cum armataris fuis arrestaui ac seisiui corum corpora adproximam prisonaÌ„ dictae Dom. Reginae in comitatu praedict duci feci ibidem moratura donec aliud à dicta Dom. Regiâ—â— Proipsorum deliberatione habouero in maÌ„datis Armatur as etiam corum praedict appretiari feci per A. B. C. D. E. F. de B. praedict Yeomen ad hoc iuratos qui dicunt quod praedictae duae galeae valent x. s Et quod dict arcus 10. sagittae valent vj. s Et quod gladij praedict valent xx s Et quod dictae pugiones vgalent v. s sic quod armaturae praedict valent in tot xlj s de quibus paratus sum respondere secundum tenorem dicti Breuis In cuitus rei
Sâ—ockes and that not aboue suche a reasonable tyme as he may prouide to conuey him to the Gaolâ— till he find suertie of the Peace 3. H. 4. 9 22. E. 4. 35. And herein he differeth from a Gaoler or the Shirife who hath the charge of the Gaole for he may make a Gaole of his house and so caÌ„not a Constabe or Iustice of the Peace doe And by the Statute 5. H. 4. ca. 10. the Iustice of Peace must sende his prisoners to the common Gaole If one doe make an Affray vpon the Iustice of Peace Constable or suche other Officer he maye not onely defende him selfe but maye also apprehende the offendour and sende him to the Gaole till he wil finde suertie of the Peace 5. H. 7. 6. And the Iustice or Constable maye if néede bée commauno assistance of the Queenes people for the pacifying of an Affray 3. H. 7. 10. If he that maketh an Affray do flie into a house when the Iustice of Peace or Constable coÌ„meth to arrest him they may in fresh sute breake open the doores and take him Mar. Or if he flie thence they may make fresh sute and arrest him though it be in an other Countie by the opinion of some men 13. E. 4. 9. And it shoulde séeme by the reason of that Booke that in this case also they may breake open the doores to apprehend him because the Prince hath an interest in the matter and then a mans house shall be no refuge for him as it shoulde be in Debt or Trespas where the interest is but onelie to some particular partie Now if the Constable do arrest one that hath hurt an other and do voluntarily suffer him to Escape and then he that was hurte â—ieth thereof within the yeare and day the Constable shal make a great Fine and that to the valewe of his goodes in the opinion of some 11. H. â— 12. Stanford 35. 1. But the offence shall not have suche Relation to the stroke as to make the escape to become Felonie thereby Commentar Plowd 263. Of the breach of the Peace without a multitude or with a multitude by forcible entrie into landes or tenements c. And what one Iustice of the Peace out of the Sessions may doe therein CAP. XVIII BEfore the troublesome reign of King Richard the second it séemeth that the common Law permitted any person which had good right or title to enter into any laÌ„d to winne the possession thereof by force if otherwise he could not haue obtained it And still at this day if in a common Action or enditement of Trespassle for entring into any land the Defendant will make Title therevnto the whole matter of the Force alleadged against him wil rest altogither vpon the validitie of his Title as appeareth 7 H. 6. 13. and 40. And a man maye also at this daye retaine wyth force his owne goodes and cattailes agaynste an other 19 H. 6. 31. 9. E. 4. 18. But after the rebellious insurrecon of the velleins other of the commons whiche happned in the fourth yeare of that Kinges reigne The Parliament in 5 R. 2. cap. 7. thinking it necessarie to prouide against all occasions of any further vproare or newe breach of the Peace did ordaine among other thinges That from thenceforth none shoulde make any entrie into any landes or tenements although his entrie into the same were lawfull but onely in peaceable and easie maner and not with strong hande nor with multitude of people vpon paine of imprisonment and to be raunsommed at the Kings will But because this Statute gaue no quicke remedie in this point nor any special power therein to the Iustices of the Peace of the countrie whereas the experience of that busie time required a great deale more spéede in suppressing such disorder After that they had in 13. of that king c. 7. Stat. 1. taken order that Iustices of Peace shold be made of new in all the Counties of England of the most sufficient Knights Esquiers men of law of the same Countie And that they should be sworne to keepe put in execution all Statuts ordinaunces touching their offices The in 15 R. 2. c. 2 they caused it to be further enacted That when such forcible entrie should be made into landes or tenementes or into Benefices or Offices of the Church and complaint thereof come to any Iustice of the Peace he should take sufficieÌ„t power of the Countie and go to the place where the forcible entrie was made if he found any that held such place forciblie after such entrie made the same should be taken and put in the nexte Gaole there to abide conuicted by the Recorde of the same Iustice till they had made fine and raunsome to the King And that aswell the Shirife as all others of the Countie shoulde attende vpon the saide Iustice to go and arrest such offendours vpon pairâ—e of imprisonment and to make fine to the King Now againe for asmuch as this laste Statute did not extende to those that entred Peaceablie and then helde with Force nor against the offendors if they were remoued before the comming of the Iustices nor yet any paine therein ordained against the Sherife that did not obey the preceptes of the Iustices in this behalfe it was not onelie ordayned by a thribe Acte made 8. Hen. 6. cap. 9. That the sayde former Statutes shoulde be holden and duelye executed But it was adjoyned also thereunto That if anye from thenceforth forth shoulde make suche forcible entrie into lands tenements or other possessions or should them holde forcibly after complainte thereof made wythin the same Countie to any of the Iustices of the Peace thereby the parties greeued that the Iustice so warned should in conuenient time cause the last said Statute duely to bee executed at the costes of the sayde party And whether the perfons making suche entries were present or auoided before the Iustices comming the same Iustices or Iustice in some good towne next to the said tenements or in some other conuenient place at his discretion shoulde haue power to enquire by the people of the same countie as well of them which made suche forcible entries into landes or tenementes as of them whiche held the same with force And if it be found before any of them that any doth contrary to this Statute then the sayd Iustices or Iustice shall doe the saide landes or tenements to be reseised and shal put the partie so put out in full possession of the same And when the saide Iustices or Iustice make suche enquirie they shall directe their Precept to the Shirife commaunding him on the Kings behalfe to cause to come before them and euerie of them sufficient and indifferent persons dwelling nexte aboute the same landes or tenementes whereof â—ucrie man shall haue landes or tenementes of the cleare yerely value offourtie shillings at the least and the Shirife shall returne twentie shillings in issues vpon euerie one