Year upon Proof the Infection at the time he or she so Offends 1 Jacobi 1. Chap. 13. Wingate's Stat. Tit. Plague Dalt Just P. Chap. 39. Folio 91. If a Constable or such other Officer whom it concerns shall neglect or willingly refuse to Levy the Money by Warrant under the Hands and Seals of two Justices of the Peace upon the Statute for the Relief of any Town or Place Infected with the Plague by Distress and Sale of the Goods of such persons as neglect or refuse to pay on such emergency for every such Offence the said Officers are liable to forfeit Ten Shillings to be distributed among the Sick as by the Statute is directed 1 Jacobi 1. Chap. 13. Dalt Just P. Chap. 39. Folio 91. Wingate's Stat. Tit. Plague The Justices of Peace one or more of them are to appoint in their several Limits Watchmen Keepers Searchers and Buryers as likewise may the Head Officers in Towns and Corporations do the same And if any Infected person contrary to the Commandment of the Justice Constable or other Head Officer c. shall wilfully attempt to go abroad and Resist their Keepers or Watch-men they may Restrain them by Violence and Compel them by Force to keep their Houses and if they be Hurt or Wounded the Watch-man shall not be Troubled for it because it was their Duty after such Warning to have kept their Houses 1 Jacobi 1. Chap. 13. Crompt 122 c. Dalt Just P. Chap. 39. Folio 91. Wingate's Stat. Tit. Plague CHAP. LIII The Office of a Constable c. Relating to Routs and Riots and what they are THE Power of a Constable in Disorders of this Kind is very great and it is his Business to be diligent in Suppressing them as also that of the Sheriffs and others the King's Officers by reason such Tumults are of dangerous Consequence to the Government and many times as it has been known from small beginnings broke into open Rebellions and disturbed the Peace of the whole Kingdom and therefore Note where three or more Persons shall Meet and Assemble themselves together to the intent to do any unlawful Act with Violence or Force against the Person of another his Possessions or Goods as to beat kill or otherwise to hurt or without Authority to Imprison a Man in his own House or elsewhere To pull down a Wall Pale House Hedg Ditch or wrongfully to enter upon or into the Possession of another Man's House or Land c. Or without Right to cut or take away Wood Corn Grass or other Goods or Unlawfully to Hunt in any Warren or Park or with Force or Violence do any other unlawful Act against the King's Peace to the manifest Terror of the people And if they only meet to such Intent or Purpose though they afterwards depart of their own accord without putting their Intentions in Execution it is nevertheless an unlawful Assembly by reason their first Intention which occasioned them so to Assemble was with an evil Design Bro. Tit. Riots 4 5. Co. 3. Part Institutes Folio 176. Dalt Just P. Chap. 85. Folio 217. Stat. 27 Rich. 2. Chap. 8. CHAP. LIV. The Office of a Constable in what concerns it relating to Rogues Vagabonds sturdy Beggars c. TO disencumber the Kingdom of lazy persons who loyter about and decline Working in expectation to live upon others Labours by Begging or Pilfering the Law has in the following manner provided against such Nusances Therefore The Constable Headborough or Tythingman assisted by the Minister and one other Inhabitant of the Parish may take any Rogue or sturdy Beggar Vagabond c. they shall find Loytering up and down in their Parish or Precinct and strip him or her naked from the middle upwards and whip or cause to be whipped openly the said Rogue or Vagabond till the Body be bloody and then forthwith be sent away from Parish to Parish or Tything to Tything the next strait way guiding or leading to the place of the Birth of such Vagrant and if that may not be known then to the place where he or she last Inhabited or Resided by the space of one whole Year before such punishment Inflicted and if that be unknown then to the Town through which the party last past Unpunished and being there if it cannot be discovered where the party was Born or last dwelt then the Constable of that Town or place is to convey him or her to the House of Correction or Common-goal of the County there to be employed at hard Labour or put to Service for the space of one Year and if disabled by Age or Casualty as maiming c. and so not fit for Labour that Town is to be at the Charge of keeping the said Vagrant till such time as he may be placed in some Alms-house within the County by 39 Eliz. Chap. 4. Wingate's Stat. Tit. Vagabonds Bulst 2. part Reports Folio 257 Resol Judges Sect. 417. It is further provided that after such punishment is inflicted that the Vagrant shall have a Testimonial under the Hand and Seal of the Constable Tythingman or other Officer subscribed also by the Minister of the Parish testifying the Place and Day of such Punishment being inflicted and the time he is to have in going to the Place to which he is directed and if he or she loyter by the way till the time is out such Punishment may again be inflicted and so as often as the Default is made till arrived at the limited Place and such Testimonial Especial in Substance is to be registred by the Minister in a Book kept for that purpose or in defect he to forfeit 5 s. Dalt Folio 129. CHAP. LV. A Copy of a Testimonial in Manner and Form as in this Case the Law directs N. T. A Sturdy Vagrant Beggar aged about 30 Years of middle Stature black Hair fresh Coloured and Round Visaged with a Cut on his left Cheek was this 26 Day of September in the 12th Year of the Reign of our Gracious Lord King William the Third c. openly whipt at D. in the County of C. according to the Law for a wandring Rogue and Vagabond and is assigned to pass forthwith from Parish to Parish by the Officers thereof the next straitway to L. in the County of M. where he declareth himself to be Born and he is limited to be at L. aforesaid within 14 Days next ensuing the Date hereof at his Peril Given under the Hands and Seals of us James Forbs Minister and Timothy Darcy Constable of D. Given the Day and Year aforesaid This may be granted also by a Justice of the Peace alone under his Hand and Seal And if the Act of the Thirty ninth of Elizabeth be neglected in the Execution of it by any Constable Tythingman Headborough c. he so neglecting forfeits 10 s. for every Default and he that hinders any Execution of this Law upon Rogues and Vagabonds incurs the Penalty of five Pounds and may be bound over to the good
they are many and in the Main they tend to one and the same thing though in Circumstances many CHAP. XVII Of Sessions and Matters properly to be done c. by Justices therein c. THE Sessions is the Assembly of any two or more Justices of the Peace one being of the Quorum at a certain Day and Place within the Limits of their Commission appointed to Enquire by a Jury or otherwise to take Knowledge and thereupon to hear and determin according to their Power of Causes within their Commission and Statutes referred to their Charge Lamb. 378. A Sessions held without Summons is good but in such Case none shall lose any thing for Default of Appearing Lamb. 380 381. Summons of the Sessions is usually by Precept Written to the Sheriff and by him to be returned at Sessions Lamb. 381. Precepts for Summoning the Sessions may be made by any two Justices of the Peace one being of the Quorum but not the Custos Rotulorum alone and Summons cannot be discharged by Supersedeas of all other Justices but by Supersedeas out of Chancery Lamb. 382 383. CHAP. XVIII The Justice of Peace his Clerk c. his Business relating to Warrants Hue and Cry Order for Bastard-Children Recognizances Mittimus's Releases Bailments Supersedeas c. in due Form Latin and English and other things with Observations or Notes thereon for better Information Instructions for Clerks to Justices of the Peace containing many necessary Forms or Precedents of Warrants on several Occasions directed to Constables As for Warrants grantable by Justices of the Peace they may be stiled and made after several manners viz. 1st In the Name of the King and yet the Teste may be under the Name of the Justice or Justices of Peace who grant them 2dly Or they may be stiled and made only by the Name of the Justices so granting 3dly Or else be made without any such Stile and only under the Teste of the Justice of Peace or only subscribed by the Justice as the cause requires But not having room for every Particular the Nature of things in this case requires in so small a Book I shall only set down what are most common and useful in their order The Form of a General Warrant for a Misdemeanour Bucks T. G. Esquire one of the Justices of the Peace c. to the Constables of D. c. in the said County and to every of them These are to will and require you in his Majesties Name straightly to charge and command you upon sight hereof to attach and forthwith to bring before me the Body of I. P. Baker to answer such Mattters of Misdemeanour in his Majesties behalf as shall be objected against him and hereof fail not at your Peril Given under my Hand c. or Dated c. The Form of a Warrant for the good Behaviour to the Constables c. Bucks Forasmuch as A. B. of your said Town is not of good Name or Fame nor of honest Conversation a Rioter and Disturber of the Peace of our Sovereign Lord the King as we are given to understand by the complaint of sundry credible Persons Therefore on the behalf of our Sovereign Lord the King we straightly charge and command you or either of you immediately upon sight hereof you or one of you require the said A. B. to come before me or some other of his Majesties Justices of the Peace to find sufficient Sureties and Mainprize as well for his good Abearing towards our said Sovereign Lord and all his Leige-People until the next Quarter-Sessions to be holden in the said County as also for his Appearance then and there and if he shall refuse so to do that then you him safely Convey or cause to be Conveyed to the common Goal of the County aforesaid or to the next Goal of His Majesty 's in the said County there to remain until he shall willingly do the same So that he may be before the Justices of the Peace of our said Sovereign Lord the King within the said County at the next general Sessions of the Peace to be holden for the County and there to Answer our said Sovereign Lord for his Contempt on this Behalf And see that you certifie your Doings in the Premises to the said Justices in the said Sessions bringing then thither this Precept with you Given at B. under my Hand and Seal the fourth Day of December c. The Form of a Warrant immediately in the King's Name Grantable by Justices of the Peace William by the Grace of God King of England c. To our Sheriffs of our County of Oxford the high Constables of the Hundred of R The Petty Constables of the Town of B And to all and singular our Bayliffs and other Magistrates in the said County as well within Liberties as without Greeting forasmuch as L. B. of c. hath come before Sir W. M. Knight and Baronet one of our Justices of the Peace within the said County and hath c. Concluding in the Justices Name thus Witness the said W. M. at B. the _____ Day of _____ c. ☞ Here Note that wherever the Warrant is made in the King's Name as afore there it seemeth it ought to be directed to all Ministers as well within Liberties as without for the King is made a Party and so it may be done it seemeth in all other Warrants especially for Felony or for the Peace or good Behaviour c. because it is the Service of the King and no Franchise or Liberty shall be allowed or hold place against the King Br. Franch 31. However it is further held that the Justices of the Peace of the County may not Intermeddle in any City Town or Liberty which have their proper Justices Vide Dalton Chap. 6. Folio 25. Where you will find it set down more largely The Form of a Warrant for the Peace Surrey To the Constables of C. c. and to either of them Forasmuch as A. B. of your said Town Yeoman hath required Sureties of the Peace against T. L. of your said Town Labourer and withal hath taken his Corporal Oath before me that he requireth the same not for any private Hatred or Evil Will but simply that he is afraid of his Life or the Hurting or Maiming his Body or the Burning of his Houses These are therefore to Will and Require you in His Majesty's Name straitly to charge and command you that immediately upon the sight hereof you or one of you require the said T. L. to come before me or some other of His Majesty's Justices of the Peace within the said County to find sufficient Sureties as well for his Appearance at the next Quarter Sessions of c. to be holden for this County as also that the said T. L. shall in the mean time keep His Majesty's Peace as well towards his said Majesty as towards all People and especially towards the said A. B. and that if he shall refuse so
Elizabeth Entituled An Act for the Relief of the Poor These are to Will and Require you whose Names are here Under-written That you together with the Church-wardens of your Parish for the Time being do according to the Form of the same Statute take Order from Time to Time for the Year to come for the setting to Work the Poor within your Parish and for raising a convenient Stock of some Wares or Stuffs in your Town to that Purpose and providing necessary Relief for such as are Lame and Impotent amongst you and for the placing Apprentices such Children whose Parents are not able to Maintain them And hereof see that you fail not at your Peril Dated c. Under the Hands and Seals of us c. This Warrant must be under the Hands and Seals of two Justices of the County The Form of a Warrant to Distrain such as refuse to pay their Rates to the Poor c. To the Church-wardens and other Overseers of the Poor within the Parish of K. and every of them Warwick Forasmuch as we are Credible Informed or that it hath been duly proved before us That the Persons here under-named do refuse to Contribute or pay the Summs of Money here undermentioned set upon their Heads being sessed and rated upon them severally for and towards the necessary Relief of the Poor of your said Town according to the Form of the Statute in that behalf lately provided These are therefore in his Majesties Name straitly to charge and command you and every of you forthwith to require the said Persons so refusing to be before us to shew cause of their said Refusal and if they or any of them shall refuse to come before us that then immediately you do Levy all and every the said several Sums of Mony unpaid and all Arrearages thereof of all and every the said Persons so refusing by Distress and Sale of the Offenders Goods you rendring to the said Parties the Over-plus that shall remain upon the Sale of the said Goods if any be and this shall be a sufficient Warrant for your so doing Dated c. ☞ Note the Parties offending must be named here c. CHAP. XXI The Form of a Warrant for suppressing an Ale-house Surrey W. L. and C. L. two of his Majesty's Justices of Peace within the said County of S. To the Constables of G. and either of them Greeting Whereas we are credibly informed that M. B. of your Town Victualler is himself a Man of Evil Behaviour and besides doth suffer Evil Rule and Disorder to be kept in his House contrary to the Laws and Statutes of this Realm These are therefore to will and command you forthwith to repair to the House of the said M. B. and to charge him to surcease keeping any longer any Ale-house or Tipling-house and from common selling of Ale or Beer at his Peril and withal that you cause his Sign to be pulled down and hereof fail not as you and either of you will answer the contrary at your Peril Given under our Hands and Seals at T. the Day of and in the Year of the Reign of our most Gracious Sovereign Lord King William the third c. But it is usual with the Justices e'er they grant this last Warrant or a Warrant to Levy Monies forfeited by Ale-house Haunters to send for the Offenders and Examin them of the Offence that the Truth may be known and that the Information be not upon the Account of Brangling or Malice between the Parties so informed against and the Party informing but the Truth known upon plain Conviction Forfeitures in the latter Case may be Levyed upon refusal to pay by Distresses and Sale of Goods and for want of such Distress the Offenders set in the Stocks c. See more in the Office of a Constable in this Book CHAP. XXII Supersedeas Grantable by Justices of the Peace to supercede Warrants c. their Forms The Form of a Supersedeas by a Justice of Peace Sussex R. D. Esquire one of the Justices of Peace of our Sovereign Lord the King within the County of Sussex To the Sheriffs Bailiffs Constables and other of the Faithful Ministers of our Sovereign Lord within the said County and to every of them sendeth Greeting Forasmuch as L. T. of C. c. Husbandman hath personally come before me at D. c. and hath found sufficient Sureties that is to say W. C. and R. B. c. Yeomen either of which hath undertaken for the said L. T. under the pain of Twenty Pounds and the said L. T. hath undertaken for himself under the pain of Forty Pounds that he the said L. T. shall well and truly keep the Peace towards our Sovereign Lord and all his Leige People and especially towards R. M. of c. Baker and also that he shall personally appear before the Justices of the Peace of our said Sovereign Lord at the next General Sessions of the Peace to be holden for this County of Sussex Therefore on the behalf of our said Sovereign Lord I command you and every of you that you utterly forbear to Arrest Attatch Take or Imprison or otherwise by any means for the said occasion to molest the said L. T. and if you have for the said occasion and no other taken or imprisoned him that then you do cause him to be delivered and set at Liberty without farther Delay Given at D. in the County aforesaid under my Hand and Seal this 29 of January c. ☞ Note a Supersedeas of this Nature is held good though the Sureties are not named nor the Summ they are penally obliged in yet it is better to express them both for in such case if it shall appear the Sureties are not sufficiently Responsible nor bound in sufficient Summs better Sureties may be taken and accordingly all the Supersedeas issuing out of the Court of Chancery King's-bench and Common-pleas do mention the Names of the Sureties and the Summs they are obliged in for the Delinquents forth-coming to answer c. And further note that upon good Sureties taken for the good Behaviour a Supersedeas of good Behaviour may be granted as for the Peace Mutatis mutandis Crompt 237. Also a Supersedeas de capias indictamentum de Transgressione and so of an Exigent may be granted by the Justices of Peace out of the Sessions otherwise it would be Mischievous for the Party not only by Reason of his Imprisonment but also that he may be outlawed before the Sessions if so it were that the Justices of Peace might not take Sureties of him for his Appearance and all is no more than to appear and answer to the Indictment And these according to Crompton's Opinion Cromp. 234. may be granted by one Justice of the Peace and with him agree the Books of Entries However Lambert thinketh it not in the lawful Power of any one Justice of Peace to grant such Supersedeas at this Day but that it must run in the Names
of two Justices one to be of the Quorum Lam 508. However a great many Presidents run in the Name of one Justice of the Peace which seemeth to be the ancient Practice Notwithstanding the joining of two Justices of Peace herein and one of them of the Quorum is on all Hands concluded most Authentick and so Dalton is of the Opinion it ought to be The Form of a Supersedeas to deliver one out of Prison for Trespass or the like Wigorn. T. B. Armig. Vnus Just Dom. Reg. nunc ad Pacem in Com. Praed Conservand Constabut Ville de S. nec non custodi Gaolae dicti Domini Regis in Com. praed Salutem Quia M. B. de C. Labourer venit coram me invenit suffic securitat essendi coram Justic dicti Domini Regis ad Proximam Generalem Session Pacis in Com. praedict tenend ad respondend tam Domino Regi quam C. B. de quibusdam Transgr s seu Contemptibus c. per ipsum perpetratis ideo vobis cuilibet vestrum Mando quod praedict M. B. à custodia vestra sine dilatione deliberari faciatis alio mandato meo inde direct interim supersedere hoc Mandatum meum erit vobis cuilibet vestrum Warrant Datum apud V. tali Die c. Or you may begin it thus ss T. B. Armig. Justic Constabul Ville de S. nec non c. Supersedeas de Exig Fac. de Felonia Ebor. Gulielmus c. Vic. Com. Ebor. Salutem Quia D. C. de B. in Com. tuo Pistor venit coram F. E. invenit sufficien Manucaptor essendi coram Custod Pacis nostrae ac Just nostris ad diversas Felon c. ad General Session Pacis nostrae apud G. tali die tenend ad respondend nobis de quibusdam Feloniu unde indictatus est Ideo tibi praecipimus quod de ulterius Exigent praefat D. C. ad aliqu Comitat tuum vel Imprisonand sive ipsum ea occasione aliqualiter molestand omnino supersed habeas ibi tunc hoc breve Teste W. M. apud L. tali Die Anno. c. Supersedeas de capias pro fine Cantab. I. B. Armiger unus Justic Dom. Regis nunc ad Pacem in com praedict Salutem Quia L. C. de N. in dict com Tonsor venit coram me invenit sufficient Manucapt essendi ad proximam Generalem Sess Pacis in Comitat. praedict tenend ad faciend Finem cum dicto Dom. Rege pro quibusdam Transgres Contempt offensis unde indictatus existit Ideo tibi praecipio quod de capiend praef L. C. Imprisonand seu ipsam ea occasione aliqualit molestand omnino supersed habeas ibi tunc hoc praeceptum Teste me c. There are other Supersedeas's on several occasions but finding these Forms I thought good to set them down as a Light to further Matter of this Kind and for a Treatise of them more at large I refer you to Dalton Chap. 133. Crompton 234. CHAP. XXIII The Forms of Recognizances on several occasions to be taken by Justices of Peace and written by them or their Clerks c. The Form of a single Recognizance to be taken before a Justice of the Peace Surrey Memorand quod die Anno Regni Domini nostri Gulielmi tertii Dei Gratia Angliae Scotiae Franciae Hiberniae Regis Fidei Defensoris c. Venerunt coram M. D. W. C. Armiger Justiciar dicti Domini Regis ad Pacem in Com. S. conservand Assignat S. I. de B. in comitatu praedict Yeoman W. S. de eodem Textor ac D. R. de S. in comitat praedict Sutor Recognover se debere Dicto Domino Regi viz. quilibet Manucapt praedict decem Libr. Praedict S. I. in viginti Libr. bonae et legalis Monetae Angliae solvend eidem Domino Regi in Festo Purificationis Beatae Mariae Virginis proximo futur post dat present nisi fecerint concesserunt pro se Haered Executor Administ suis per presentes quod dicta separales summae levent recuperent de maneriis Mesuagiis Ter. Tenement Bonis Catallis Haereditament ipsor S. I. W. S. D. R. Haered Executor Assign suor ubicunque fuerint invent Dat. c. The Form of a Recognizance for the Peace Sussex Memorand quod Die Anno Regni Domini nostri Gulielmi Tertii Dei Gratia c. P. P. de E. in com praedict Auri faber in propria persona sua venit coram me T. L. Armig. uno Justic dicti Dom. Reg. ad pacem in dicto com conservand assign assumpsit pro seipso sub poena Quinquaginta Libr. W. I. de M. in com praed Yeoman T. N. de c. Agricultur tunc ibid. in propriis personis suis similiter vener manuceperunt pro praedict P. P. viz. quilibet cor separat sub poena vigint quinqu lib. quod idem P. P. personalit comparebit coram Justic Dom. Reg. ad pacem ad prox Generalem Sessionem pacis in com praedict tenend ad faciend recipiend quod ei per curiam tunc ibid. injungetur quod ipse interim pacem dict Dom. custodiet erga ipsum Dom. Reg. cunct populum suum praecipue versus N. M. Yeoman quod dampnum vel malum aliqu Corporale gravamen Praef. N. M. aut alicui de populo dicti Dom. Regis quod in Laesionem aut Perturbationem pacis ipsius Domini Regis seu praef N. M. cedere valeant quovis modo non faciet nec fieri procurabit Quam quidem sum Quinquaginta lib. praedict P. P. quilibet Manucapt praed praedictas separales summas viginti quinque Libr. se debere dicto Dom. Regi de Terris Tenementis bonis catallis suis quorumlibet cujuslibet eor ad opus dict Domini Regis Haered successor suor fieri levari ad quarumcumque manus devenerit si contigerit ipsum P. P. praemissa vel eorum aliquid in aliquo infringere inde Legitimo modo convinci In cujus rei Testimon ego praedict T. L. sigillum meum apposui Dat. apud c. ☞ Note here if the Justice only subscribe his Name to the Recognizance without putting his Seal it may be well enough And further that all Bonds Obligations and Recognizances that shall be taken by any Justice of the Peace or any other Person for any cause touching the King must be made and be taken in his Name and by these words Domino Regi c. under a Penalty to him that takes them as I have elsewhere said The Forms of Conditions of Recognizances to be set under the Recognizance or Indorsed The Form of a Condition to keep the Peace The Condition of this Recognizance is such that if the within bounden P. P. shall personally appear before the Justices of our said Sovereign Lord the King at the next General Sessions for the Peace to be held in the said County of Sussex
Common Pleas. Dy. Dyer sometimes Lord Chief Justice of the Common Pleas. Dr. certain Directions or Resolutions of the Judges of Assize Anno 1643. Co. Sr. Edward Coke sometimes Ld. Chief Justice of the King's Bench viz. his Book of Reports Co Lit. Sr. Edw. Coke's first part of his Institutes upon Littleton Fi. M. Hen. Finch Apprentice del Ley. P. Pl. Plow Mr. Plowden's Commentaries Ras. or Rast Rastals Abridgment oâ— the Statutes Lib. Intr. The Book of Entries Cr. Cro. or Crom. Cromptons Justicâ— of the Peace P. Po. or Pol. Mr. Polton's Abridgâ—ment of the Statutes P. R. Mr. Polton deâ— pace Regis B. A. Sr. Francis Bacon his Elementâ— of the common Law B. A. V. his use oâ— the Law Resol of the Judges Resolution of the Judges of Assize Anno 1633. to certain Queries Wing Wingates Abridgment of the Statutes As for the Statutes cited I conclude they are easy to be directed to by what is set down from the Names of the Kings and Queens as 2 R. 2. the Second of Richard the second 6 Hen. 7. the sixth of Henry the 7. P. M. Philip and Mary El. or Eliz. Queen Elizabeth Jâ—c or Jacobi I. King James the first and so of others For where there have been more Kings of a Name than one the figure is set down to distinguish that King in what Reign the Statute was made from the rest as Edw. 1. Edw. 2. Edw. 3. Edw. 4. The Experienced Justice of Peace In Respect to his Power in and out of Sessions in many Cases of great Importance useful for Justices their Clerks and others CHAP. I. The Antiquity of a Justice of the Peace his Power and what he may do the Execution of his Office in many material Cases THE Power of a Justice of the Peace is very great and is a main Propp and Pillar of good Government in taking Care to prevent and Punish Offences whereby the Peace is Conserved and Men maintained in their Rights and the Possessions of their Goods and Chattels c. peaceably whereas were there not such Over-awing Magistrates Offenders would be Imboldened to make more frequent Depredations and Strength and Violence would seize upon what the Weaker could no ways defend against them were not the Law by this means very much their Aid and Safeguard This Office is of great Antiquity and has all along held up a venerable Esteem and Good-liking among the People who find great Advantage and Benefit by those so Commissioned being usually Men of Estates Discreet and Judicious capable of discerning Truth from Falsehood and to relieve the Injured and restrain Oppressors to punish Criminals and Discharge the Innocent and Faultless Justices of the Peace were Created 1 Ed. 3. Chap. 15. Dalt 6. Lamb. 10. But they were first named so by 36 Edw. 3. Chap. 12. A Justice of the Peace is a Judge of Record from whence called Justices and before 1 Ed. 3. they were called Conservators 3. Cro. 29 c. He may take Recognizance of Peace which none can do but a Judge of Record Lam. 186. Dalt 8. Crompt 196. a Num. 1. He is called Commissioner of the Peace by reason he is Authorized by the King's Commission so Custos Pacis or Keeper of the Peace the same with Justiciarius Pacis or Justice of the Peace And the Constitution of Justices of Peace is Inherent and Inseparable from the Crown Stat. 27. Hen. 8. And this Power cannot be Transferred 20 H. 7. His Warrant is not to be disputed by the Constable for any thing wherein he hath Jurisdiction of the Cause Dalt 8. Cap. 147. 6. c. In some Cases the Testimony of a Justice of the Peace is of as great Force and in some Cases greater than an Indictment of 12 Men upon Oath viz. In Case of Presentments of Highways Force Riot Dalt 9. Lamb. 65. A Justice of the Peace being Assaulted may Commit the Party so offending to prison Dalt 371. Lamb. 134. Crompt 68. a. If a Justice see one about to make an Affray and charge him to keep the Peace and he answers he will not he may bind him to his good Behaviour Dalt 294. A Justice of the Peace must proceed by Prescript of the Statute and Commission Dalt 22. Where the Statute referre to the Tryal to the Justice's Discretion it seemeth he may examin upon Oath Dalt 20. Every Justice of the Peace is a proper Conservator of Rivers within his County Lamb. 189. And Justices of the Peace at Sessions are of equal Authority Lamb. 385 c. Vide Crompt 122. a Nu. 33. If a Felon be brought before a Justice of the Peace upon suspicion though it appear to the Justice he be not guilty nevertheless he may not be set at Liberty but so that he may come to his Tryal Lamb. 233. Dalt 389. Cro. 40. b. Nu. 20. Otherways it will prove a voluntary Escape in the Justice for he is not to be delivered by any Man's Discretion Dalt 8. Lamb. 223. CHAP. II. What may be done by a Justice of Peace Ex Officio c. HE may Record a Demurrer upon Evidence Lamb. 539. He may give Day to the Party to bring in Records which is before other Justices which is Pleaded by way of Justification Lamb. 539. In Absence of the King's Attorney a Justice of the Peace may take Issue with one that Pleadeth a Pardon that he is one of the Parties Excepted Lamb. 540. A Justice of the Peace may take Money for the Security of the Peace in deposito where Bail cannot be procured and which upon the Party so depositing the Money breaking the Peace shall be forfeited to the King Just Berkley 1 Cro. 446. If upon supposing an Indictment to be void the Justices have discharged the Prisoner paying his Fees yet upon change of their Opinion they may stay him any time before Judgment Lamb. 540. Justices of the Peace may inquire of all manner of Felonies at the Common Law or given by any Statute and of all manner of Trespasses against the King's Peace and such Trespasses wherein Actions of the Case will lye for Trespasses or Deceit and in the end of the Writ grounded upon the Case It is contained Contra Pacem nostram Crompt 8. a. Num. 25. Defaults against the Statute of 3 Hen. 6. Chap. 11. For Levying of Wages for Knights of the Shire are to be heard and determined by Inquiry for the King or Action for the Party before the Justice of Peace Lamb. 512. A Justice of the Peace has no need to shew his Commission by which he is made Justice of Peace when he Justifieth the doing of any thing as a Justice for he is Justice of Record and the Commission remaineth with the custos Rotulorum of the same County and he is called by Commission in open Assize or Sessions Crompt 120. b. Nu. 13. Lamb. 387. A Justice of Peace may have his Action of the Case against the Party that calleth him false Justice of the Peace it also
it were Summoned by two and Stiled by their Names but two sufficient Justices Warrants Sealed Quorum c. Vide Dalton c. Quarter Sessions are to be held 4 times in the Year viz. The first Week after St. Michaeâ— The Epiphany the close of Easter and after the Translation of Thomas the Martyr which is July 7. 2 Hen 5. Chap. Lamb. 597. Dalt 531. Justices of the Peace shall hold their Sessions 4 times in the Year viz. One within the Octaves of Epiphany the second in the second Week of Lent the third between the Feasts of Pentecost and St. John Baptist the fourth within the Octaves of St. Michael 36 Edw. 3. Chap. 12. Dalt 531. Crompt 123. B. Nu. 15. c. The place where Sessions is to be held is Arbitrable and therefore though by Summons they are to be kept in one place yet they may be kept in another but then there can be no Amercement for Default of Appearance Lamb. 383. 384. But they must be kept within the County Dalt 531. So in a Town Corporate but not to intermeddle Two Sessions at one time for one County Lawfully Summoned at two Places are good but Appearance at one shall excuse the default of an Appearance at the other and Presentment taken before either of them shall stand good Lamb. 384 But Punishable without notice At a General Sessions all Matters Enquirable by Justices of the Peace either by Statute or their Commission ought to be given in Charge otherwise at special Sessions Lamb. 613. And may be held 3 Days 606. 12 R. 2. Chap. 10. At the Quarter Sessions Officers and Ministers of the Court and Jurors of the County owe their Attendance Lam. 386. Jurors not appearing according to Summons are Punishable for loss of Issues the usual part of Estreats Constables making Default are Fineable The Justices of the Peace if need require may keep a special Sessions by Virtue of their Commission or by the Statute 1 Hen. 5. Chap. 4. Lamb. 623. All Matters within the Commission or Statute may at a special Sessions of the Peace be given in Charge yet they are at liberty to give in Charge either all or any of them Lamb. 623 624. If two Justices of the Peace one being of the Quorum make a Precept to the Sheriff for the holding a Sessions at such a Place and Day and to return a Jury before them other Justices cannot by their Supersedeas Inhibit it Crompt 126. B. But the King by his Writ of Supersedeas may Discharge it Ibid. All that come to the Sessions for publick Service or upon Compulsion upon Complaint and Examination of the Matter upon Oath shall be freed from any Arrest upon Original Process Lamb. Cro. 190. B. Lamb. 402. Indictments are many times Tried the same Sessions wherein the Persons were Indicted yea the same Day before Justices of Goal Delivery or Justices of Oyer c. Dalt 537. 1 Cro. 315 438 448. But in Case of Felony it seems very reasonable to be deferred to the next Sessions upon Cause shewn it being so in an Indictment of Nusance generally and life is more to be valued and favoured c. Dalt 537. Many things of great Import cannot be done but at the Sessions and some but at such a particular Sessions Dalt 537. Of the first sort are the Discharge of Apprentices Ill-used Badgers Licensed Officers Sworn after the Sacrament received proved and declaring against Transubstantiation c. Dalt 538. The second is taking Accounts for Maimed Soldiers of the Treasurers and for Charitable Uses c. 43 Eliz. in Easter Sessions the Rates of Wages in Easter Sessions and 6 Weeks after Dalt 538. Making Order in the Chamber after the Adjournment of the Sessions as for the Bastard-Children and Settlements and some other Things and Matters But not to be tedious to the Reader I shall hear close Treating of Matters of this Kind and proceed to others Executed CHAP. XIV Of Mittimus's and their Form and what is to be considered in them c. A Mittimus must contain the name of the Party or Parties his or their Offences and the time of Imprisonment that it may appear whether the Prisoner be Bailable or not Lamb. 297. Dalt 439 406. Crompt 153. A. Num. 11. If one be Committed without Bail or Main-prise and the Cause be expressed in the Mittimus and yet is Bailable other Justices may Bail him yet Quaere seeing their Authority is equal Dalt 439. But if no Cause be expressed other Justices shall not do well to Bail him without the Privity of the first Justice or Justices because the Cause of Commitment probably may not be Bailable Dalt 439. If the Mittimus be General the other Justices that Bail must take notice at Peril Ibid. There is a Writ called a Mittimus for removing Records of Outlawry Judgment in the King's-bench c. Unto the common Place or an Act of Parliament unto the King's-bench c. See of this 1 Cro. 134 298. Hob. 111 135. The Form of the Mittimus see To send Rioters to Goal Lamb. 321. To send Shooters in Pieces to Goal 229. Dalt 515. To send upon Forcible Entry c. Lamb. 150 520. To send to the House of Correction Dalt 513. To send an Ale-seller without License Dalt 512. To send a Reputed Father of a Bastard Ibid. CHAP. XV. Of Recognizances what they are and how and in what Cases to be taken by a Justice of the Peace c. A Recognizance of a Bond of Record Testifying the Recognizor to owe a certain Summ of Money to some other and that Acknowledgment of the Summ is to remain of Record and none can lawfully take it but a Judge or Officer of Record Dalt 457. Every Recognizance taken by a Justice of the Peace must be made by these words Domino Regi and great Care to be had in so doing for it is Imprisonment for any Person to take it otherwise For these Words Domino Regi import and Imply the Recognizor is bound to our Lord the King and not to any other 33 Hen. 8. Chap. 9. Crompt 196. B. Num. 11. Lamb. 162. Dalt 276. Sureties in Recognizance ought to be Subsidy Men and they must be two besides the Party himself Dalt 276. Lamb. 101. It is in the Discretion of a Justice of the Peace if he take a Recognizance Ex Officio to appoint the Number of the Sureties their Sufficiency in their Goods and Lands and the Summ of Money and how long the Party shall be bound Dalt 275. Lamb. 100. Recognizance for the Peace unless the words be expressed for keeping of the Peace seemeth void Lamb. 103. Dalt 204 276. Coram non Judice So it is if a Recognizance be that the Recognizor shall not Beat or Maim B. without the Expressing the keeping the Peace in it Ibid. A Recognizance expressing no Time of Appearance but generally to keep the Peace is good Ibid. And so these few may serve to give a Light into others for
to answer to such matters as shall be objected against him by N. M. within named to do and receive what the Court shall then and there enjoin him and that he do in the mean time keep the Peace of our said Sovereign Lord the King towards the King's Majesty and all his Liege People and especially towards the said N. M. of E. aforesaid Yeoman that then this Recognizance to be void and of none effect or else to be and remain in full Force and Virtue The Form of a Condition for one to appear before the Justices of Peace at their next Sessions The Condition of this Recognizance is such that if the within Bounden W. A. shall make his Personal Appearance before the King's Majesties Justices of the Peace at the next Quarter-Sessions of the Peace to be holden for the said County of S. then and there to make Answer unto such Matters as on His Majesty's behalf shall be objected against him by W. A. or concerning c. and there shew the Matter shortly and shall also stand and abide such further Order as the said Court shall award or set down therein that then and from thenceforth this present Recognizance shall be frustrate and void or else to remain in full Force and Virtue The Form of a Condition for one that hath dangerously hurt another The Condition of this Recognizance is such that whereas the within bound K. R. hath now dangerously Hurt or Wounded L. G. of R. within the said County of S. Butcher giving him divers Blows or Cuts on the Head Face c. with a Chopper made of Iron and Steel so as the said L. G. is in danger of Death thereby If therefore the said K. R. shall make his Personal Appearance before the King's Majesty's Justices at the next General Goal-delivery to be held in the said County of S. then and there to make Answer to the Premises and to receive that which then shall be by the Court Injoyned him and that he the said K. R. in the mean time do keep the Peace of our said Sovereign Lord the King towards the King's Majesty and all his Liege-people that then c. as before CHAP. XXIV The Forms of Mittimus's to deliver Persons Committed to Goal c. The Form of a Mittimus to send a Disorderly Servant or other Disorderly Person to the House of Correction Berks. I Have send you herewithal the Body of D. B. of R. in the said County of B. being an Idle Dissolute and Disorderly Fellow or one that will not keep his Service nor follow an Honest Course of Life These are therefore to Will and Require you to receive the said D. B. and him safely to keep till he shall be thence delivered by Warrant from my self or some other His Majesties Justices of the Peace for this County of Berks and in the mean time to hold him to hard Labour giving him the moderate Correction of the House by Whipping and otherways according to Law in such Cases provided and hereof fail not at your Peril Dated c. ☞ Note that the Justice at his Discretion may Limit a Time for his Imprisonment in the Mittimus as two or three Days and then to be Discharged c. The Form of a Mittimus of a Felon after his Examination taken Surrey I. B. Knight one of His Majesties Justices for the County aforesaid to the Keeper of His Majesties Goal at the Marshalsea in the Burrough of Southwark in the County aforesaid c. Greeting I send you herewith the Body of B A. late of G. Labourer brought before me this present Day and Charged with the Felonious taking five Swine which he hath also confessed upon Examination before me And therefore these are on the Behalf of our said Sovereign Lord the King to Command you that you immediately receive the said B. A. and him safely keep in your said Goal until that he shall be thence delivered by due Course of Law Hereof fail not as you will answer the Contempt at your Peril Given at C. the Day of in the Year of the Reign of our Sovereign Lord c. ☞ Note here the Party Confessing the Felony on Examination is held to Bar himself of being Bailed by the Justice c. The Form of a Mittimus upon Suspicion of Felony c. Essex I. D. Esq one of the Justices of the Peace for the County aforesaid To the Keeper of his Majesty's Goal at Chelmsford in the said County or to his Deputy there Greeting These are in his Majesty's Name to Charge and Command you that you receive into your said Goal the Body of B. K. late of D. Mariner taken by L. C. Constable of the Town of C. and by him brought before me for Suspicion of Felony c. and that you safely keep the said B. K. in your said Goal until the next General Goal-delivery for the said County if he be not Bailable or if Bailable then thus until he shall be thence delivered by due Course of Law And hereof fail not as you will answer the Contempt at your Peril c. The Form of a Mittimus to send the Reputed Father of a Bastard-child to Goal Warwick I send you herewithal the Body of C. R. of B. in the County of W. Labourer brought before me this present Day and Charged by S. J. of the same Town to have gotten her with Child and for that the said C. R. refuseth to put in Security for his Appearance at the next Quarter-Sessions and to the end he may be forth coming when as Order shall be taken for the Relief and Discharge of the said Town of B. and for the keeping of the said Child when it shall happen to be Born according to the Statute in that Case made and provided These are therefore on His Mejesties behalf to Charge and Command you that you immediately receive the said C. R. and him safely keep in your said Goal until such time as he shall be from thence delivered by due Order of Law and hereof fail not as you will answer your Contempt at your Peril Dated c. ☞ Note that in every Mittimus the Cause of the Commitment is to be set down to the end that it may appear and be made known whether the Prisoner be Bailable or not and the Mittimus must be directed to the Goal-keeper or his Deputy Also where the Justices of the Peace out of their Sessions may hear and determin and so may Commit Offenders for the Offences or Fine it is necessary that in their Mittimus there be contained the Manner of the Offence and how long time the Prisoner is to be kept in Prison for it and after this manner with varying the Names of Places and Persons as it shall happen on the Occasion and some other Variations i◠Point of Fact c. These may direct a Clerk to make others c. And Mittimus's may be directed thus c. To the Keeper of His Majesty's Goal
of N. and to the Deputy or Deputies there and every of them And in case one be Committed for a Fact where the Statute appoints the Fine upon the Parties being Convicted before a Justice of the Peace by Witness or his own Confession the Fact must be at large set down as also the Penalty or Summ and then it must be to continue him till he pays the Money therein mentioned as in Case of Unlawful Fishing Hunting Shooting of Conies Pidgeons or the like with Hand-gun c. CHAP. XXIV The Form of Bailment by the Justices of the Peace c. The Form of the Liberate to deliver a Prisoner Committed for Felony Rutland A. D. and C. D. Esquires two of His Majesties Justices of the Peace to the Keeper c. of His Majesties Goal in the County aforesaid Greeting Forasmuch as G. F. c. Labourer hath before us found sufficient Main-prize to appear before the Justices of the Goal-delivery at the next General Goal-delivery to be holden in the said County there to answer to such things as shall be then and there 〈◊〉 â—he behalf of our said Sovereign Lord the King objected against him and namely to the Felonious taking five Geese for the Suspicion whereof he was taken and Committed to your said Go l we Command you on the Behalf of our Sovereign Lord that if the said G. F. do remain in your said Goal for the said Cause and for none other Then you forbear to Grieve or Detain him any longer but that you deliver him thence and suffer him to go at large and that upon Pain that will fall thereon Given under our Hands and Seals this c. The Form of another Bailment where the Goaler can conveniently bring the Prisoner before the Justices Cantabr Memorandum quod Decimo die Novembris c. L. C. de G. c. W. W. de M. c. Venerunt coram nobis S. T. P. T. Militibus duobus Justic Domini Regis ad Pacem Com. praedict conservand Assignat apud H. in Com. praedict Manucep pro G. L. de c. utrumque eorum sub poena viginti Libra c. praedict G. L. nunc ibidem similiter Assumit sub poena Quadraginta Librar consimilis Monetae Angliae de Bonis Catallis Tenement eorum cujuslibet eorum ad opus usum dicti Dom. Reg. Haered Successor suorum fieri levari si praefat L. C. defecerit in conditione indorsata The Condition of this Recognizance is such that if the within Bounden L. C. shall make his Personal Appearance before the King's Majesty's Justices of the Peace at the next general Sessions to be holden for this County then and there to make Answer to our Sovereign Lord the King for and concerning the Suspicion of Stealing five Sheep whereof he standeth charged then this Obligation to be void and of none Effect or else to be and remain in full Force and Virtue c. A Warrant to deliver a Servant out of a Goal Sussex F. B. Armiger unus Justic Domini Regis c. Custodi Gaolae dicti Domini Regis in compraedict Salutem Quia C. W. de R. Labourer coram me invenit sufficient Securitat essendi coram Justic dicti Dom. Reg. ad pacem in com praedict conservand c. ad proximam Generalem Sessinem pacis in com praedict tenend ad respondend tam dicto Dom. Reg. quam D. C. de N. de Transgres contemptu suis contra formam Stat. de servientibus nuper edit provis ideo tibi ex parte dicti Dom. Reg. mando quod praedict C. W. a Prisona tua si ea occasione non aliâ ibid. deteneatur sine dilatione delib fac Dat. c. ☞ Note wheresoever a Justice of the Peace upon his own Motion or Discretion hath committed a Party to the common Goal or any other Goal or House of Correction for want of Sureties for the Peace good Behaviour or for being a vagrant or idle Person or such like it seemeth the same Justice in like discretion may afterwards discharge him again and make his Liberate or Warrant to deliver such Prisoner c. vide 14 Hen. 6. Folio 8. Tit. Impris 27. The Form of a Bailment for the Peace the Party being in Prison Memorand c. B. A. de C. C. D. de L. L. L. C. de M. venerunt coram me G. W. c. manuca erunt pro R. B. de L. quod ipse pacem geret erga cunctum Populum Domini Regis praecipue erga S. I. sub poena cujuslibet manucaptor viginti Librar quod praedict R. B. comparebiâ— coram Justic Domini Regis ad proximam Generalem Sessionem Pacis pro Com. praedict tenend apud L. in Com. praedict c. Dat. CHAP. XXV The Form of Releases by Justices of the Peace c. The Forms of the Release of a Justice of the Peace EGO praefat L. D. qui supra nominatum A. B. ad praed Securitat Pacis inveniend ex mea Discretione compuli eandem securitat Pacis quantum in me est ex mea Discretione primo die Decembris c. remisi relaxavi In cujus rei Testimon huic praesenti relaxationi meae sigillum meum apposui Dat. Die Anno superdictis The Form of the Release of a Party before the same Justice that took it Ebor. Memorand quod Decimo Die Novembris c. praefat L. K. venit coram me R. G. Gratis remisit relaxavit quantum in se est praedict securitat pacis per ipsum coram me versus supra nominatum B. A. petitam In cujus rei Testimon ego praefat R. G. sigillum meum apposui Dat. c. ☞ Note that these two Releases are to be written under the Recognizance it self and if the Justice shall only Subscribe his Name without his Seal it is sufficient especially where the Recognizance is not Sealed Or the Release of the Party may be by it self in this Form Cantab. Memorand quod D. C. de S. in compraedict Yeoman Vicesimo Die Decembris Anno Regni Dom. nostri c. venit coram me B. I. Armig. uno Justic dicti Dom. Regis ad Pacem in Com. praedict conservand assign apud W. in com praed ibi remisit gratis relaxavit W. L. de S. in Com. praed Labourer Securitatem pacis per ipsum D. C. versus dictum W. L. coram me petitam Dat. Die Anno supradictis And if the Release be made before another Justice who took not or hath not the Recognizance it may be thus Memorand quod D C. de S. in com praedict Yeoman Vicesimo Die Decembris venit coram me D. N. Armig. uno Justic dicti Dom. Regis ad Pacem in com praed conservand assign apud S. in com praedict Securitatem Pacis quam habet versus I. D. de V. c. penitus Remisit relaxavit Dat. Die Anno
Lamb. 254. Dalt 351. For Example A School master Father Mother or M ster Correcting a Child Scholar or Servant Moderately Shooting at Pricks Butts or lawful Marks A Work-man casting Tiles Timber or Stone from off a House or any thing from a Cart and giving warning or doing other lawful things giving warning But the Killing of a Man in doing any unlawful Act without evil Intent is Felony as shooting Arrows casting Stones into Highways where People resort or unto other places of usual Resort Dalt 352. If a Man be Slain by the Fall of a House or Tree by a Beast c. Any Party by a wilful Default causing it it is Felony Dalt 251. The thing that causes the Death is a Deodand and forfeited to the King Dalt 353. Crompt 35. a. Deodands are not Forfeit till the Matter be found on Record If a Man be Slain under 14 Years of Age nothing is forfeited as a Deodand Dalt 353. Lamb. 21 c. These Generals and Particulars among others are to be taken notice of by the Coroner on the view of Dead Bodies hearing of Evidence upon their Inquisition and others concerned as Occasion shall administer that Justice may be done and Matters so ordered as may make things bear a true Face in the Eye of the Law And so in this Briefness for want of a larger Scope I am constrain'd to end what relates to the Office of a Coroner out of which he may gather many useful Matters and Things to his great Easement in performing the weighty Trust reposed in him CHAP. XXXVII Customs Advantages c. peculiar to the City of London Statutes made in its Favour Of the Court of Request commonly called the Court of Conscience c. THE City of London enjoys many Priviledges by Charter and Customs which in some Cases bear the Force of a Law or are Equivalent to it as well as many Statutes made in Favour of that City the Metropolis of England and for Trade and Riches Famed throughout the known World some of which Advantages for the better Information of those that are Ignorant of them I shall set down in their Order Feme sole Merchant A Feme Covert shall have Action without her Husband she being the Wife of a Freeman of London by the Custom of the City of London and an Action may be brought against such a Woman sole Merchant without naming her Husband but it seems her Dealing must be different from his c. 1 Edw. 4. P. 1. 35 Hen. 6.38 Where Plaint is entred against the Husband and Wife in London because the Wife is a sole Merchant or against another to find better Sureties there if the Suit be here in Trespass or otherwise and the Wife appeareth upon an Exigent upon a Habeas Corpus or cometh in upon a Cepi Corpus so as she cannot make an Attorney here although the Plaint be upon the Custom only for which at the Common-law there is no Remedy yet the Prisoner may be Discharged of the first Suit and shall be sent to the Fleet c. And if he who is Out-lawed coming to Sue forth his Charter of Pardon be Arrested he may have his Priviledge and so it is of one who cometh to Sue forth a Writ of Error he shall have his Priviledge here if be be Arrested in the King's-bench M. 9. E. 4.35 36. Where a Gift of Goods by a Woman is Pleaded in Bar in an Action of Trespass brought if the Plaintiff say the Woman was his Wife at that Time if he say that the Custom of London is that Women are sole Merchants c. The same is a Departure Hen. 7.21 H. 18. B. 1. In London a Debt upon simple Contract is good against an Executor M. 1. E. 4.6 P. 1. CHAP. XXXVIII Where an Action will lye before the Day or Payment to find better Sureties by the Custom of London IT is Ordained that a Merchant may cause his Debtor to come before the Lord Mayor of London or of any other Town and a Clerk by the King appointed to acknowledge his Debt and the Day of Payment c. Vide Stat. Burnel 11 Edw. 1. Recog 1. And afterwards it is enlarged by the Statute de Mercatoribus and a more speedy Remedy is given 13. Edw. 1. Recog 2. The Custom of London is if a Man be Fugitive who is Indebted that the Creditor may Arrest him to find better Sureties but he shall not Recover before the day of Payment 5 Edw. 4. Lond. 24. Where one is Arrested in London to find better Sureties if the Suit be here in Trespass or otherwise and he comes by Cepi Corpus although the Plaint be upon the Custom only for which Remedy is at the Common-Law yet the Prisoner may be Discharged 9 Edw. 4 35. The Custom of London is that one may be Arrested before the day of Payment to find better Sureties 11 Hen. 6.3 P. 1. Covenant without Deed. In London an Action of Covenant lyeth without a Specialty and divers other Actions by Custom which do not lye at Common-Law and of small Contracts under 40 s. for which an Action doth not lye by Writ Hen. 14. Hen. 6 36. P. 1. Concessit Solvere Upon a Contract made at Sea Of a Contract made beyond the Sea and upon the Account between the Parties if the Party by Bill grant to repay it upon their coming concessit solvere lyeth in London upon the recoming for before that Account there was no Remedy within England nor no Remedy for it at Common-Law And although that the Bill doth Recite the Merchandize yet the concessit solvere doth not rehearse the Merchandizes Sold but generally for certain Merchandizes Goods and Chattels Sibi primo venditis concessit solvere P. Hen. 6 30. P. 1. Of Mainpernors for the Defendant By the Custom of London he who is Bail for another for Debt or Trespass to answer the Action that if he be Condemn'd that the Plaintiff shall have Execution as well against the Bail or one of them as against the Principal at his Election And it was holden that in such a Case he may maintain for the Charges that shall be upon him The Custom of London was alledg'd that if any Matter be pleaded to Issue which cannot be Try'd by those of the City that then the Party shall be Examined upon it and then that Judgment shall be according to that which is found by the Examination and if the Party refuse to be Examined that then the Judgment hath been used to be given against him Book of Entries 203. Taking Goods to Pledge It was agreed that the Custom to keep Goods of any Person put to him in Pledge by the Custom untill he be paid is not good and if it were a Custom it ought to be by ancient Charter of the King and by continuance after But the Custom of Attaint in London is good and also that the Creditor may Arrest such Goods which the Debtor hath in his Possession and that if
it 898. and is held to appoint the first High and Petty Constables in England which Offices have ever since continued in good Esteem nay the Saxon Word makes the Antiquity of Constables plain in Etymology The Saxon being Coning or Cyng and Staple or Stable which signifies a Stay or Prop to the King that is to the Government in laying Hands on Offenders and bringing them to Justice and though the High Constable of England's Office usually a Noble Man appointed by the King is ceased yet the High Constables of Hundreds in a great measure retain and hold up the Power as to what concerns the Civil Government and these are chosen most usually in each County by the Justices in their General Quarter Sessions or their respective Divisions for they have Power to give them Authority and to discharge them of their Office as they shall see cause The High Constable is as it were Overseer or Director of the Petty Constables Headboroughs or Tything-men which are chosen under him in the respective Towns Villages or Precincts within his Hundred or such Franchises as are under his Jurisdiction by the consent of the Inhabitants or the Majority of them and their Duty it is to execute the High Constables Office in his Absence in keeping the Peace and good Order in their respective Limits and upon the High Constables Order to be aiding and assisting to him so far as concerns his Office And now since both these are necessarily Sworn upon entring on their respective Offices it will be requisite for the better understanding of what they undertake by entring on so weighty a Trust to set down the Form of their respective Oaths before the Justices c. The Oath to be taken by a High Constable You shall swear that you shall well and truly serve our Sovereign Lord the King in the office of a Constable you shall see and cause his Majestys Peace to be well and truly kept and preserved so far as in your Power lyeth you shall Arrest all such Persons as in your sight or presence shall Ride or go Armed offensively or shall commit or make any Riot Affray or any other Breach of his Majestys Peace you shall do your best Endeavour upon complaint to you made to apprehend all Felons Barretors and Rioters or Persons Riotously assembled and if any such Offenders shall make resistance with force you shall Levy Hue and Cry and shall pursue them till they be taken you shall do your best endeavour that the Watch in and about your Hundred be duly kept for the apprehending Vagabonds Rogues Night-walkers Eves-droppers Scouts and other suspected Persons and of such as go Armed and the like and that Hue and Cry be duly rais'd pursued according to the Statute of Winchester against Murtherers Thieves and other Felons and that the Statutes made for Rogues Vagabonds and such other idle Persons as come within your Bounds and Limits be duly put in Execution you shall have a watchful Eye upon such Persons as shall maintain or keep any Common House or Place where any unlawful Gamâ— is or shall be used as also to such as shall frequent or use such Places or shall use or exerâ—c se any unlawful Games there or elsewhere contrary to the Statutes At your Sessions Aâ— size or Leets you shall present all and every the Offences done contrary to the Statutes of the 1.4 and 21 of James the first to restrain the inordinate haunting and tipling in Inns Ale-houses and other Victualling Houses and for the repressing Drunkeness you shall there likewise true presentment make of all Blood-sheddings Affrays Outcries Rescous and other Offences committed or done against the Kings Majestys Peace within your Limits you shall once every Year during your Office present at the Quarter Sessions all Popish Recusants within your Liberty and their Children above Nine Years Old and their Servants viz. their Monthly Absence from the Church 3 Jacobi 1. Chap. 4. You shall well and duly execute all Precepts and Warrants to you directed from the Justices of the Peace of the County or Superior Officers you shall be aiding to your Neighbours against unlawful purveyances In time of Hay or Corn Harvest upon request you shall cause all Persons meet to serve by the day for the Mowing Reaping or getting in of Corn and Hay you shall in Easter Week cause your Parishoners to chuse your Surveyors for the mending the High Ways in your Parish or Liberty and you shall well and duly according to your Knowledge Power and Ability do and execute all other things belonging to the Office and Duty of a Constable so long as you shall continue in the said Office By this Tenor of an Oath a Constable may gain a considerable Light into what he is to do in the Management and Execution of his Office being as it were an Epitome of what I shall hereafter set down more intelligibly and plainly to be understood But this Oath is often administred in Abstract to a Petty Constable Tything-man c. So that what I now recite suffices The Petty Constable c. his Oath You shall swear that you well and truly execute the Office of a Tything-man of the Tything of B. or Headborough c. his Majesties Peace in your Person you shall keep and see it kept in others as much in you lyeth in the Presence of the High Constable you shall be aiding and assisting to him and in his Absence you shall execute his Office according to your Power and Knowledge till an other be chosen in your Place or you be Legally Discharged So help you God The High Constables in their respective Hundreds are Conservators of the Peace at Common Law as are the Petty Constables in their respective Towns and Liberties and have a large Power to back and support them in the Execution of their Office if they proceed within the Bounds of it for it is so ordered that if an Action be brought against a Constable Headborough c. or their Assistants for any thing done by reason of their respective Offices they may plead the General Issue and give the special matter in Evidence 7 Jac. 1. Chap. 5. 21 Jac. 1. Chap. 22. Wingate's Abridg. Stat. Tit. Evidence c. And if it so happen any Action be brought against one or more of them it is so provided that it shall be layed in the County where the Fact commenced and if the Verdict pass for the Defendant he is to have double Costs and this to be recovered as other Defendants recover their Costs by 7 Jacobi 1. Chap. 5. 21 Jacobi Chap. 1â— Windg Abridg. Stat. Tit. Evidence For indeed a Constable Legally chosen is compelled to serve the Office being a fit Man able of Body and in Substance and it would go hard if for every trivial slip he should run the risk of being Ruined by Vexatious Suits for if a Constable c. Legally Elected to the Office do refuse to serve and take the Oath unless
a Quaker and then according to the late Statute for taking the Oaths c. his Affirmation will hold good in lieu of an Oath he may be bound over by the Justices to the next Sessions or Assize and there Prosecuted for a Contempt But passing over these I now come to direct the Constable c. in the more material Parts of his Office wherein he may readily order and manage his Affairs in d scharge of his Duty without running into Inconveniences or Hazards that may being Trouble and Charges upon him for whatever the Fancy of some is a Constable is no more a Priviledged Man than any other where he exceeds the Bounds of his Office in unaccountable Actions And the first Particular I shall offer is his Duty in Serving of Warrants directed to him by Justices in Commission for the Peace or other Magistrates having Power to grant Warrants and how far he may be safe in this and where he may err CHAP. XLIII The Office and Duty of a Constable Headborough c. in Serving or Executing Warrants directed to him by Justices in Commission for the Peace c. IF a Warrant be brought to a Constable or other Sworn Officer his safest way is to Charge the Party making the Plaine to Assist him in the King's Name and shew him the Party or Parties mentioned in the Warrant unless himself be well acquainted with him or them lest a Mistake by the Names agreeing may run him into an Error in taking the wrong Party and if he be a Sworn known Officer he may refuse to shew his Warrant but must declare to the Party he goes to Arrest what is therein charged against him but it is otherwise where a Warrant is given to be served by one who is not a known Sworn Officer as a Justices Servant c. For there upon demand he must produce the Warrant or the Party on whom it is Served may refuse to Obey and Lawfully Resist If a Constable Arrest a Man or Woman in the Kings Name pretending he has a Warrant and at that time has none but presently goes and gets one the Party may bring an Action of false Imprisonment against him and recover such Damages with Cost as shall be Awarded Coke 6.69 If a Constable have a Warrant against A. B. the Son of L. B. and he takes into his Custody A. B. the Son of R. B. though he happen to be the Offender against whom the Complaint was made yet he goes from his Warrant and doing thereby an unjustifiable Action there lies an Action of false Imprisonment against him 10 E. 4. Fol. 12. If a Constable Arrests a Man with a Warrant from a Justice of the Peace and having him in Custody takes his Word to come again another time by his so dismissing him the Warrant is void and cannot be Served again But if a Rescue be made or the Prisoner Escapes without the Officer's Consent then upon fresh Pursuit he may take him with the same Warrant as often as he is Rescued or Escapes and may pursue him into another Town or County though he be out of sight C ompt 214. a. and 184. Cro. 53 114. If a Justice send a Warrant for a Matter wherein he hath Jurisdiction though he goes beyond his Authority yet the Officer is bound to obey it and his producing his Warrant saves him harmless the Justice being then to answer for it but on the contrary if a Justice Issues out a Warrant for a Matter out of his Jurisdiction where he is no Judge of the Cause the Constable is not bound to Obey it for he is bound to take notice of the Jurisdiction and Authority of the Judge and where the Justice as is said can be no Judge of the Matter charged in the Warrant he is no more bound to Obey him than if he had no Commission 14 H. 8. Co. 10. â—6 If a Warrant be directed to an Officer to serve on a Person for ordinary Matters the Warrant not specifying the Cause but only to answer to all such Matters as shall be objected against him or her this is held to be an illegal Warrant and the Officer that Executes it lies liable to an Action of false Imprisonment Cook 's Institutes part 4. Tit. de Frangent Prison However for Reason of State Warrants for Treason or such as are Granted by the Lords of the Privy Council Secretaries of State or the Lord Chief Justice of England these need not set forth the Cause by reason they are usually granted on Matters of great Importance where Secrecy is required If any Party be taken by a Legal Warrant and make Resistance the Constable in the King's Name may command Assistance and if the Resisting Party be Beaten or Wounded the Amends is in his own Hand for Opposing the King's Authority but if the Constable or any of his Assistants be Beaten or Wounded the Party is Indictable as likewise liable to an Action at Common-law and if any of them Die of the Beating and Wounds within 12 Months it is Murther Persons refusing to assist a known Sworn Officer charging them in the King's Name lye liable to be bound over to the Sessions and Fined at the Discretion of the Justices and the like for those that shall contemn or abuse a Justices Warrant by tearing treading under Foot or any way defacing it c. over and above being bound to the good Behaviour for it is a Contempt against the King's Process Crompt 144. CHAP. XLIV The Office of a Constable c. How it ought to be executed relating to Affrays c. IF a Constable be present at an Affray he may command the standers by in the King's Name to assist him in keeping the Peace and upon Complaint of the Constable the Inquest may Indict the Party refusing and be F ned by the Justices at their Sessions for refusing to do his Duty If a Constable or other such like Officer be present when one Man or Woman Assaults another or with violent Words threatens to beat or kill any one and be in a fury ready to break the Peace In such case the Constable Headborough c. may commit the Offenders to the Stocks or some other safe place of Custody till he can carry them before a Justice who may upon Complaint compel them to find Sureties for the Peace or good Behaviour and for want of such Sureties commit them to Prison 3 Hen. 4 9 and 10. Bacon's use of the Law c. Where any Affray is like to be the Constable in the King's Name may command them to depart on Pain of Imprisonment and if they refuse he may take them into Custody or Indict such as refuse if any harm be done at the next Sessions and if a Constable be present at an Affray and does not his Endeavour to prevent it and seize the Offenders he lies liable upon a Presentment of the Jury to be Fined Dalton's Justice of the Peace c. 1. Fol. 4. 5. A
Money shall be had to the use of the Parish where the Distress is first made for though they pass through several Parishes yet are they to pay but 20 s. for one Journey 3 Car. 1. Chap. 1. Dalton Chap. 50. Folio 134. If any Bull-baiting Bear-baiting Enterludes or other unlawful Games and Pastimes of the like Nature be held in the Parish or out of the Parish on the Lords Day upon Warrant to him directed the Constables c. may levy 3 s. 8 d. by Distress and Sale of the Offenders Goods rendring the Overplus to the Owner if any bâ—â— or set the Party for want of such Distress in the Stocks by the space of 3 Hours but then the Party offending must be questioned within the space of a Month after the Offence committed 1 Caroli 1. Chap. 1 Dalt Just P. Chap. 23. Folio 6â— None shall do any work by Labour or Business on the Lords Day Works of Necessity and Charity only excepted but that the Offender if above the Age of 14 Years or upwards shall forfeit 5 s. None shall cry and expose to sale any Wares that Day on pain to forfeit them except Milk and that before Nine in the Morning and after Four in the Afternoon No Drover Higler Horsecourser Butcher or their Servants shall Travel on the Lords Day upon pain of forfeiting 20 s. No Person shall Travel on this Day on Horseback or with Boat or Wherry unless on extraordinary Occasions to be allowed by a Justice of the Peace or Head Officer of the Place under penalty of forfeiting 5 s. No Hackny Coaches to Travel that day unless such as are allowed by the late Act of his present Majesty King William 3. c. for Licensing Hackney Coaches c. 29 Caroli 2. Chap. 7. And Penalties upon this Act are for the use of the Poor of the Parish where they are levied or the Offence committed saving the Justice or other Head Officer may reward the Informer if he think fit with a Third Part. And further note that the Prosecution of this Act must be made within 10 Days after the Fact committed Dressing Meat in Inns Cooks Shops and private Families are not prohibited on the Lords Day by the Statute of 29 Caroli 2. And for the better encouragement of the Mackrel Fishery they are in the Season to be Sold on this Day but before and after Sermon time only CHAP. XLIX The Office and Duty of a Constable c. required about hired Servants Labourers c. IF Labourers are wanting in Harvest or Hay time the Party so standing in need may require the Constable to cause such Persons as he thinks fit to Mow Reap or do any Work relating to getting in the Hay and Corn Harvest and they to be payed by the Day according as they are able to perform and if they shall refuse to work after they are requested thereunto by the Constable he has Power to set them in the Stocks by the space of two Days and one Night and upon the Constables neglect to perform his Duty in this Case he forfeits 40 s. 5 Eliz. Chap 14. Servants c. After the time of their Work be expired they being employed in Husbandry or any Arts appointed in that Statute they shall not depart the Parish City or Town where they last served to any other without a Testimonial that is in a Town Corporate under the Hand and Seal of the Chief Magistrate and two Housholders there and in the Country under the Hands and Seals of the Constable or other Officers and two Housholders of the said Town or Parish where he or she last served and the Minister is to receive Two Pence for Registring the said Testimonial which is to be delivered by him to the Party whose Name is mentioned therein according to the Statute of the 5 Eliz. Chap. 5. and the Testimonial is to run in this Form The Form of a Testimonial c. Memorandum That John Digs Servant to James Dillion of Stretham in the County of Surry Grazier is licensed to depart from his said Master and is at full Liberty to serve elsewhere according to the Statute in that Case made and provided in Witness whereof we have hereunto set our Hands and Seals on the 28th of September in the 12th Year of the Reign of our Gracious Sovereign Lord King William the Third and in the Year of our Lord 1700. James Wade Constable of Stretham Housholders there Richard Tims John Nobs If the Party lives with a Widow or any single Person then instead of Master set down Mistress or Dame with the Womans Name and the Name of the Servant be it Man or Maid Servant or what else they term themselves and if the Parties they live with be Handycrafts or any other Calling their Calling with their Names and the place of Abode must be set down and testified in all respects as aforesaid He or She that Entertains any Servant without such a Testimonial forfeits Five Pounds being lawfully Convicted upon Indictment before the Justices in Sessions and every Servant not producing such a Testimonial to the Mayor Constable Churchwarden Minister or other Officers impowered to inspect it may be Imprisoned till such a one be procured and if he or she procure not one in 21 Days ensuing the Day of Imprisonment or produce a false and counterfeit one he or she so doing is to be Whipt and used as a Vagabond 5 Elizabeth Chap. 4. Dalton Just P. Chap. 31. Folio 63. And this Statute relating to Testimonials was punctually observed tho' of latter days it has not been much regarded that people taking Servants at they knew not what Hand have been frequently Robbed by them not knowing afterwards where to find them or enquire after them and therefore it would be well if it was yet strictly kept in use and indeed the penalties are in as much force to be inflicted as ever CHAP. L. The Office of a Constable as to what he is to do relating to Popish Recusants and Conventicles ANY one exceeding Sixteen Years of Age being a Popish Recusant must within 40 Days after Conviction repair to their usual and known Dwellings and not to remove five Miles thence under Penalty of forfeiting all their Goods Lands and Chattels Anuities c. during Life and if they can assign no certain place of Aboad then are they to repair to the place of their Birth or where their Father or Mother dwell if they are living and in 20 days after their Arrival give in their Names to the Minister Constable and Headborough in Writing which Minister is to enter them in a Book to be kept for the purpose and he with the said Officers are to certify the same the next Quarter Sessions where the Justices of Peace are obliged to cause the same to be inrolled 35 Eliz. Chap. 2. Wingate's Stat. Title Crown Note that the Church Wardens and Constables of every Parish or one of them and where there are none such the
not held liable to this though he brings her considerable of his own or is afterward enabled by his Industry or at least if the latter which is held doubtful he is â—bliged to it no longer than his Wife lives Second Part of Bulst Reports Fol. 245 246 247. If any Poor Beg in the Parish a License must be granted for it by the Overseers and if in the High-ways by those Overseers And by an Order of Sessions a Cottage may be erected on the waste of a Mannor and poor Inmates may be lodged therein but it is afterward to be employed to no other Use And such Poor as cannot get Work and are able are to be set on Work by the Overseers and a Justice of Peace may send such to the House of Correction that being employed by them and the Church-wardens will not Work being not otherways able to maintain themselves and they with the consent of two Justices of Peace or more one being of the Quorum may set up occupy and use any Mystery Trade or Occupation for the better Relief of the Poor in the Parish Town or Place within their Districts to set them on Work which is very commendable and may be wished it were more put in Practice CHAP. LXXVI What relates to the Office of the Overseers in taking care to put poor Children Apprentice and what Indenture is required to find them c. IN this Care must be taken that they must be so placed as not again to be chargeable to the Parish and that they may learn such sâ—lâ—able Crafts and Mysteries as when their Time expires with Labour and Diligence they may be enabled to keep themselves and Children their Age to be above 7 and under 15 when they are so placed and in doing this the Overseers must have the Consent of two Justices of the Peace and they may Bind Men-children to the Age of 24 and the Female to the Age of 21 or till she be Married which first shall happen but it must be within the Parish or Hundred and they may give Money if they cannot put them off without and the Master's refusing to take them when so offered may be presented and indicted for the same upon the Statute of 43 Eliz. at the Assizes or Sessions of the Peace and Parents refusing to let them be so put Apprentice without good Cause shewed for it may by the Justice be bound over to answer the Default and the Children refusing may be sent to the House of Correction till they will comply He or she must be bound by Indenture and the word Apprentice specified in it or else it is not Binding The Form of which for the better Transcript on occasion by those that are ignorant of it I shall here set down The Form of an Indenture of an Apprentice put out and bound by the Overseers c. THis Indenture made the 20th of December in the Twelfth Year of the Reign of our most Gracious Sovereign Lord William the Third by the Grace of God of England Scotland France and Ireland King Defender of the Faith c. Anno Dom. 1700. witnesseth That A P. and L. G. Overseers of the Poor in the Town of Nottingham and K. M. Church-warden of the same Town by and with the Consent of G. B. Esq and L. G. Esq two of his Majesty's Justices of the Peace of the County of Nottingham have by these Presents Placed and bound L. C. being a Poor and Fatherless Child as an Apprentice to W. H. of Nottingham aforesaid Shoemaker and as an Apprentice with him the said W. H. to dwell from the day of the Date of these Presents until he the said L. C. shall come to the Age of 24 Years according to the Statute in that Case made and provided by and during all which Time and Term the said L. C. shall the said W. H. his Master well and faithfully Serve in all such lawful Business as the said W. H. shall put him the said L. C. unto according to his Power Wit and Ability and honestly and obediently in all things shall behave himself towards his said Master and all the rest of the Family of the said W. H. And he the said H. W. for his part promiseth covenanâ—eth and agreeth that he the said W. H. the said L. C. in the Art and Mystery of Shoemaking in the best manner that he can or may shall Teach Instruct or Inform or cause to be Taught Instructed or Informed as much as thereunto belongeth or he the said W. H. knoweth And also during all the said Term to find unto him his said Apprentice Meat Drink Linnen Woollen Hose Shoes Washing and all other things necessary or needful for an Apprentice In Witness whereof we the said W. H. and L. C. have interchangeably set our Hands and Seals the Day and Year of Date abovesaid ☞ Note In this Case the Binding is effectual to all Purposes as if the Children were of full Aâ—â—e and did Bind themselves by free Consent of Indenture and Covenant and they so bound may safely be received and kept by their Masters or Mistresses to whom they are bound only if she be a Female her Marriage will release her though the time of her Indenture be not expired as in all other Cases of Indenture on that account and here otherways neither Sex can be discharged from their Masters or Mistresses to whom they are bound as Apprentices but by a Justices of Peace at least in open Sessions or else by the Agreement of the Master c. and Apprentice under the Master's Hand in Writing CHAP. LXXVII How far the Overseer is concerned about settling the Poâ—r and what otherways relates with some nice Points relating to Bastards c. BY Settlement of the Poor it is here meant such as are likely to be troublesome and chargeable to the Parish or Place where they reside And by the 13 and 14 of Charles 2. Chap. 1â— The Overseers and Church-wardens making their Complaint to any Justices of Peace within 4 days after any Person that is poor and likely to trouble the Parish cometh to settle in a Tenement under 10 l. by the Year 2 of the Justiceâ— one being of the Quorum by Warrant under their Hands and Seals may remove such a Person to the Parish where they last had a legal Settlement by the space of 40 days or more unless Surety can be by them given that the Justices shall approve of to secure the Parish c. from Damages or Charges that may ensue and all Persons agrieved have free Liberty to appeal to the Quarter-Sessions In Harvest or Work-time poor Persons setled in a Parish having a Certificate under the Hands of the Minister of the Parish one Church-warden and one Overseer of the Poor declaring them Inhabitants there may go into any of the adjacent or distant Parishes to Work and if they do not return by reason of Sickness or any other Impediment it shall not be accounted an Impediment