HONI SOIT QVI MAL Y PENSE DIEV ET MON DROIT A IVSTICE OF PEACE for IRELAND consisting of two Bookes The first declaring th'exercise of that office by one or more Iustices of Peace out of Sessions The second setting forth the forme of proceeding in Sessions and the matters to be enquired of and handled therein Composed by Sir RICHARD BOLTON Knight Chief Baron of his Majesties Court of Exchequer in Ireland Whereunto are added many Presidents of Indictments of Treasons Felonies Misprisions Praemunires and Finable offences of Force Fraud Omission and other misdemeanors of severall sorts more then ever heretofore have beene published in print PSAL. 7. vers 9. Oh let the wickednesse of the wicked come to an end but establish the just for the righteous God trieth the hearts and reines DUBLIN Printed by the Society of Stationers Printers to the Kings most excellent Majestie 1638. BEATI PACIFICI C R SVM GVILHELMI BOLD DE TRE-YR-DDÔL IN COMITATV ANGLESEY ARMIGERI EX DONO AVTHORIS EN DIEV EST TOVT TO THE RIGHT HONORABLE THOMAS Lord Viscount WENTWORTH Baron of Wentworth-woodhouse LORD Newmarsh and Oversley Lord President of the Councell established in the North part of England Lord Lievetenant of Yorkshire One of his Majesties most most honorable Privie Councell in England and Lord Deputie generall of Ireland RIGHT HONORABLE SInce the Conquest of Ireland made by King Henry the second untill of late the Office and Authoritie of a Iustice of Peace have very little or nothing at all beene here understood or regarded but have beene altogether eclipsed by those many and often Rebellions which have beene in this Kingdome almost in all ages since that happie Conquest These Rebellions after many yeares continuance were totally repressed by that illustrious Princesse Queene Elizabeth who having finished that worke was called to another Kingdome there to enjoy an everlasting Crowne of Glory Since which time by the goodnesse of Almighty God and the most happy prudent and peaceable governement of our late Soveraigne King Iames of blessed memory and of his most Excellent Majestie that now is especially since your Lordships governement here that Eclipse is so vanished and dispersed that now the light of Iustice doth cleerely appeare and shew it selfe in all parts of Ireland and the office of a Iustice of Peace is duely regarded and his Warrant in all parts of the Kingdome obeyed So as now it will be needfull that the Iustice of Peace should well understand the duty of his place and neither exceede nor come short of the Authority given him either by Cōmission or by the statute Lawes of the Realme And albeit divers worthy and learned men in England have published many profitable Bookes concerning the Pleas of the Crowne and the Office of a Iustice of peace yet none of those will be any sufficient guide for the Iustices of peace in Ireland because the Statute lawes of England and Ireland doe in many things differ for there be many ancient Statutes made in England some whereof are in some things altered and others repealed either in part or in the whole by later Statutes which are not of force in Ireland so as those ancient Statutes as they were first enacted remaine still of force in this Kingdome and likewise there be many statutes made in Ireland aswell before 10. H. 7. as since which were never any lawes in England The consideration whereof hath incited me although by reason of mine age and other infirmities least able of all my brethren the Iudges for the helpe of the Iustices of peace here to compose this worke according to the lawes and Statutes now of force in this Kingdome which I humbly make bold to present to your Lordships view protection not doubting but as all other labours which any way tend to the advancement of Iustice the well ordering of this Common-wealth so also these poore endevours of mine to that purpose vvill easily obtaine your favourable acceptance Mine errors or mistakings I shall humbly beseech your Lordship to pardon impute them rather to my weaknesse want of abilitie and multiplicitie of other imployments then to my will and to accept of this small mite as a free-vvill offering at the hands of him who for your Lordships many noble favors will not only ever pray for your happinesse and long continuance in this place of governement but also earnestly desire to manifest his thankfulnes for the same and to be accounted Your Lordships humble and faithfull servant RI. BOLTON The Method and Contents of the first Booke conteyning the exercise of the office of one or more Iustices of Peace out of Sessions THe first booke beginneth with an Introduction which is divided into two Chapters The first whereof declareth who were and yet are Conservators of the peace at the Common law by vertue of their severall offices The second Chapter thereof setteth forth the first ordayning of Iustices of the peace the duty of their places in a generalitie the formes of the severall Commissions of the peace used in Ireland the meanes how the same may be suspended or determined the severall oathes which the Iustices of peace are to take and lastly a briefe exposition of the first Assignavimus in the Commission of the peace The rest of the first booke is divided into 36. severall Titles according to the Alphabet some of which Titles containe but one Chapter some others containe severall Chapters according to the severall sorts of the matters contained under those severall Titles The Table of the severall Titles and of the severall matters contained in every Title followeth viz. 1. Affray ca. 1. 1. The derivation of the word Affray Sect. 1. 2. What every private man may doe to pacifie an Affray Sect. 2. 3. 4. 5. 3. What a Constable may doe for pacifying an Affray and punishing the offendors S. 6. 7 8 9 10 11 12 13 14 15 21. 4. What a Iustice of peace may doe herein S. 16 17 18 19. 20. 2. Armour ca. 2. 1. Who may weare weapons or got armed and who not Sect. 1 2 3. 2. What a Iustice of peace or Sheriffe is to doe when Armour is worne unlawfully in terrorem populi Sect. 1 2 4 5. 3. What a Constable or other officer may do in such case S. 1. 5. 3. Arrest Imprisonment ca. 3. 1. What is an Arrest and Imprisonment S. 12. 44. 45. 2. By what warrant and when an Arrest may be made by word only S. 3 4 5 6 7. 3. When and in what case it must be by writing S. 8. 9. 10. 4. How and in what maner such warrant ought to be executed S. 11 12 26 27 28 29 30 31 32 33 34 35 36 37 38 39. 5. For what causes a Iustice of peace may grant such warrants S. 14 15 16 17 18 19 20. 6. Certaine causes for which the Iustices of peace ought not to grant such warrants S. 21. 22. 7. To whom such warrants may be directed S.
maintenance of this peace was recommended and who with their other offices had and yet still have the conservation of the Peace annexed to their charges as a thing incident to and unseparable from those offices And yet neverthelesse they were and are called by the names of their offices onely the conservation of the Peace being included therein First 20. H. 7. 7. 2. Co. 11. 85. the Kings Majestie by his Dignitie Royall is the principall Conservator of the Peace within his Dominions and is Capitalis Iusticiarius Angliae in whose hands at the beginning the administration of all Iustice first was and afterwards by and from him only was this authority derived and given to others 2. The Lord Chancellour or Lord Keeper of the great Seale the Lord high Steward of England the Lord Marshall and high Constable of England the Lord Treasurer of England and every Iustice of the Kings Bench and also the Master of the Rolls have inclosed in their said Offices the conservation of the Peace over all the Realme and every of these may award precepts and take recognizance for the Peace by vertue of their places and the like Officers in Ireland may doe the like 2. H. 7. 1. Br. peace 12. 3. There be others also who by vertue of their Offices have the conservation of the Peace but yet onely within the precinct of their severall Courts as namely the Iustices of the Court of Common Pleas the Barons of the Exchequer and the Iustices of Assise 4. Also the Steward of the Sheriffes Turne the Steward of a Leete and the Steward of a Court of Pypowder every of these are Conservators of the Peace within their severall Courts for every of them may commit him to ward that shall make an Affray in their presence whilst they be in execution of their Offices for that these be Courts of Record and so in all other Courts of Record 5. And as well the Steward of the Sheriffes Turne as also the Steward of a Leete during their Courts may by recognizance binde him to the peace that shall make an Affray in their presence Br. Leet 39. F.N.B. 82. sitting the Court 13. H. 4. 12. And may commit him to Ward untill hee hath found sureties for the peace And may also take the examination of Felons at the Common Law 21. Ed. 4. â—1 and commit them to the Gaole and may also take the presentment of any Felony at the Common Law committed within their precinct or of any other offence against the peace except the death of a man See Br. Leet 1. 2. 14. 18. 22. 26. Co. 8. 38. 6. And so if any other contempt or disturbance to the Court shall be committed in any of the said Courts or in any other Court of Record the Iudge or Steward there may impose upon such Offendors a reasonable Fyne F.N.B. 81. d. 7. The Sheriffe is a Conservator of the peace within his Countie And upon request to him made he may command another to finde surety of the Peace and may commit him untill hee finde such suretie 7. Coroners also by the Common Law are Conservators of the peace within the County where they be Coroners but they have power for the keeping of the peace only as the Constables have and no otherwise 9. The high Constables for hundreds are Conservators of the peace within their severall hundreds and limits Br. peace 13. 10. All petty Constables within the limits of their severall Townes be Conservators of the peace by vertue of their Office 11. If any man shall make an Affray or assault upon another in the presence of the Constable Or if any man shall threaten to kill beat or hurt another and that complaint shall bee made thereof to the Constable hee may commit the offendour to the Stockes or to some other safe custodie for the present and after may carry him before some Iustice of peace or to the Gaole untill hee shall finde suretie for the peace 12. These conservators of the peace by the ancient common Law are to imploy their owne valour and may also command the helpe aide and force of others to arrest and pacifie all such who in their presence and within their Iurisdiction and limits by word or deed shall goe about to breake the peace 13. Also these Conservators of the peace if they have committed or bound over any such offendours it seemeth they are then to send to or to be present at and attend the next Sessions of the peace or Gaole-delivery there to object against such offendours The first ordering of Iustices of the Peace and their authoritie CHAP. 2. 1. IN Anno Domini 1327. Iustices or Commissioners of the Peace were first created and ordained by the statute of 1. Ed. 3. cap. 16. by which statute it was ordained that in every Shire of the Realme certaine persons should be assigned sc by the Kings Commission to keepe the peace And their authoritie was after inlarged by the statutes of 4. Ed. 3. cap. 2. 18. Ed. 3. cap. 2 And 34. Ed. cap. 1. And by the said statute of 34. Ed. 3. cap. 1. they were first generally enabled to heare and determine at the Kings suite all manner of Felonies and Trespasses And each County had now its proper Commissioners for the peace whereas before it seemeth the Commissions to the Iustices of peace were not alwayes made severally into each shire but sometimes joyntly to sundry persons over sundry shires 2. But the statute of 36. Edw. 3. cap. 12. is the first statute that nameth them Iustices of the peace For the statutes of 2. Ed. 3. cap. 6. and 25. Ed. 3. cap. 6. 7. 8. speaking of Iustices seeme not to bee of our Iustices of peace but that of 2. E. 3. as also the statute of Winchester cap. 6. therein mentioned to bee meant of Iustices Itinerants or Iustices in Eyre and the other of 25. E. 3. to bee meant of Iustices or Commissioners specially assigned for servants and labourers 3. They be called Iustices of the peace because they be Iudges of Record and withall to put them in minde by their names that they are to doe Iustice which is to yeeld to every man his owne by even portions and according to the lawes customes and statutes of this Realme without respect of persons 4. They are named also Commissioners of the peace because they have authoritie by the Kings Commission 5. And here it shall not be amisse to put them in minde how that Iustice may be perverted many wayes if they shall not arme themselves with the feare of God the love of Truth and Iustice and with the authority and knowledge of the Lawes and Statutes of this Realme As namely 1. First by feare when fearing the power or countenance of another they doe not Iustice Deut. 1.17 Yee shall not feare the face of man for the judgement is Gods 2. Favour when they seeke to please their Friend neighbour or others
most worthy to be commended to the care of the Iustices of Peace 19. Iustices of peace at this day in Ireland are of two sorts and are appointed or created by two severall meanes videlicet The one by grant made by the King by Charter under the great seale By Charter Br. Commiss 5. as Mayors and chiefe Officers in divers corporate Townes And such the King cannot discharge againe at his pleasure but they shall continue and enjoy their Iurisdiction according as their Charters doe enable them And therefore if the King grant to a Mayor or other head Officer of a City or corporate Towne and to their Successors to bee Iustices of peace in their City or Towne and after maketh out a Commission of the peace to others there yet the authoritie and Iurisdiction of the Mayor c. remaineth good for that it was granted to them and their successors and is not revocable at the Kings pleasure as a Commission of the peace is And such Iustices of peace by Charter have thereby the same power that the Conservators of the peace had by the Common law And it seemeth such power also as is given to the Iustices of peace or to any one Iustice of peace by expresse words in any statute but none of them have thereby the whole power which is ordinarily given to the Commissioners of the peace by their Commission 20. The other sort of Iustices of peace are by Commission By Commission made of common course under the great seale and these are appointed by the discretion of the Lord Chancellour but the authority of these Commissioners of the peace doth determine by divers meanes yet more usually by three meanes First by the death of the King or by his Resignation of the Crowne Secondly at the Kings pleasure and that in two sorts Either by the Kings pleasure expressed as the King in expresse words may discharge them by his writ under the great seale or by Supersedeas 5. E. 4. â—2 Br Commis 1â— 12. Ass 2â— Br. Commis 13 Br. Commiss 20. â—â— but the Supersedeas doth but suspend their authoritie which may be revived by a procedendo Or by implication as by making other Commissioners of the same kinde and within the same limits leaving out the ancient Commissioners names 10. Ed. 4. 7. 3. Mar. 1. 21. But here the ancient Commissioners must have knowledge of such new Commission for this determination of the old Commission Br. Commiss 2. groweth not immediately by the making of the new Commission but either by giving speciall notice of the new Commission unto the old Commissioners Or else by and after the reading or proclaiming of the new Commission at the Assises Sessions of the peace or at the full County Or else by holding of some open Sessions by vertue of the new Commission in which two last cases the old Commissioners must take notice of the new Commission And in all these cases if the ancient Commissioners doe sit by vertue of their ancient Commission after such notice or publishing of the new Commission whatsoever such ancient Commissioners shall so doe is voide And contrariwise untill such notice or publishing of the new Commission whatsoever meane Acts such ancient Commissioners shall so doe by vertue of their ancient Commission the same are good in Law 34. Ass p. S. Br. Commiss 14. 22. 11. H. 6. ca. â— Also in all cases where an ancient Commission of the peace is determined by a new yet no proce's or suit depending before the old Commissioners shall be discontinued thereby neither shall any other thing done by the Iustices of the peace by force of their ancient Commission be made or become voide thereby Br. Com. 19. 21 Br. Offic. 15. 23. Note also that although by the death of the King or by his resignation the authoritie of all Iustices of peace yea and of all Iudges Dyer 165. Co. 7. 30. Br. Com. 5. Commissioners of Oyer and Termyner Commissioners of Gaole-delivery Sheriffes Escheators and other Officers that are by Commission doth cease yet Mayors and chiefe Officers in Citties and corporate Townes which have the authoritie of Iustice of peace or of the conservation of the peace by Charter to them and their Successors their authoritie still remaineth notwithstanding the Kings death or resignation 24. So also the authoritie of the high Constables and pettie Constables remaineth notwithstanding the death of the King c. for that their authoritie is by the common Law and to their said Office the conservation of the peace remaineth as a thing incident and unseparable from the same 4. E. 4. 44. Br Offic. 25. Dyer 165. 25. Coroners also do remaine Conservators of the peace within the County where they are Coroners notwithstanding the Kings death c. for they are made by the Kings Writ and not by Commission and their office and authoritie doth remaine untill they be removed by the Kings Writ and their office remaining the conservation of the peace remaineth as incident thereto Their oathes 26. Every Iustice of peace before he shall take upon him to exercise the office of a Iustice of Peace shall take two corporall oaths the one concerning the office of a Iustice of peace the other concerning the Kings supremacie 27. The oath concerning the office seemeth to be by force of the statute made 13. R. 2. ca. 7. the forme whereof as it now is followeth in these words viz 28. Ye shall sweare that as Iustice of the peace in the County of Dublin in all Articles of the Kings Commission to you directed you shall doe equall right to the poore and to the rich after your running wit and power and after the lawes and customes of the realme and statutes thereof made And ye shall not bee of Councell of any quarrell hanging before you And that yee hold your Sessions after the forme of the Statutes thereof made And the Issues Fynes and Amerciaments that shall happen to be made and all Forfeitures which shall fall before you ye shall cause to be entred without any concealement or imbesilling and truely send them to the Kings Exchequer ye shall not let for gift or other cause but well and truly you shall doe your office of Iustice of the peace in that behalfe and that you take nothing for your office of Iustice of the peace to be done but of the King and Fees accustomed and costs limitted by the statute and ye shall not direct nor cause to be directed any warrant by you to bee made to the parties but ye shall direct them to the Bailiffes of the said County or other the Kings Officers or Ministers or other indifferent persons to doe execution thereof So help you God c. 29. The parts of this Oath are shortly sixe 1. That they shall doe equall right to rich and poore and according to the lawes and statutes of the realme 2. That they shall not be of Counsell with any person
suorum circa premissa seu eorum aliqua indebite se habuerunt aut imposterum indebite se habere presumpserint aut tepidi remissi vel negligentes fuerunt aut imposterum fore contigerint in Comitatu predicto et de omnibus et singulis articulis circumstantijs et alijs rebus quibuscunque per quoscunque et qualitercunque in Comitatu predicto factis sive perpetratis vel quae imposterum ibidem fieri vel attemptari contigerint qualitercunque premissorum vel eorum alicujus concernentibus plenius veritatem Et ad indictamenta quacunque sic coram vobis seu aliquibus vestrum capta sive capienda aut coram alijs nuper Iusticiarijs pacis in Comitatu praedicto facta sive capta et nondum terminata inspiciendum Ac ad processus inde versus omnes et singulos sic indictatos vel quos coram vobis imposterum indictari contigerint preterquam de proditionibus quousque capiantur reddant se vel utlagentur faciendum et continuandum Et ad omnia et singula felonias veneficia incantationes sortilegia artes magicas transgressiones forstallarias ingrossarias regratarias extortiones Conventicula indictamenta predicta ceteraque omnia et singula premissa preterquam proditiones secundum leges et statuta regni nostri Hiberniae prout in hujusmodi casu fieri consuevit aut debuit audiendum et terminandum et ad eosdem delinquentes et quemlibet eorum pro delictis suis per fines redemptiones amerciamenta forisfacturas ac alio modo prout secundum legem et consuetudinem regni nostri Hiberniae ac formam ordinationum vel statutorum praedictorum fieri consuevit aut debuit castigandum et puniendum ac gaclam nostram ibidem de prisonarijs in eadem pro felonia detent et incarcerat debito modo deliberand Proviso semper quod si casus difficultatis vel magni momenti super determinationem aliquorum premissorum coram vobis vel aliquibus duobus vel luribus vestrum evenire contigerit tunc ad judiciuminde reddendum nisi in praesentia unius Iusticiariorum nostrorum de uno vel altero Banco aut unius Baronum de Scacario nostro aut unius de Concilio nostro in lege erudito coram vobis vel aliquibus duobus vel pluribus vestrum minime procedatur Et ideo vobis et cuilibet vestrum mandamus quod circa custodiam pacis ordinationum statutorum et omnium et singulorum ceterorum premissorum diligenter intendatis et ad certos dies et loca quae vos vel aliqui hujusmodi duo vel plures vestrum ut predictum est ad hoc provideritis super premissis faciatis inquisitiones et promissa omnia et singula audiatis et terminetis ac ea faciatis et expleatis in forma predicta factur inde quod ad justitiam pertinet secundum legem et consuetudinem Regni nostri Hibernia Salvis nobis amerciamentis et alijs ad nos inde spectantibus Mandamus enim tenore presentium vicecomiti nostro Comitatus Dublin quod ad certos dies et loca qua vos vel aliqui hujusmodi duo vel plures vestrum ut predictum est ei ut predictum est scire feceritis venire faciat coram vobis vel hujusmodi duobus vel pluribus vestrum ut dictum est tot et tales probos et legales homines de Balliva sua tam infra libertates quam extra per quos rei veritas in premissis melius sciri poterit et inquiri Assignavimus denique te prefat A. Custodem rotulorum pacis nostrae in dicto Cemitatu nostro ac propterea tu ad dies et loca predicta brevia precepta processus et indictamenta predicta coram te et dictis socijs tuis aut aliquibus duobus vel pluribus eorum ut predictum est venire facias ut ea inspiciantur et debito fine terminentur sicut predictum est In cujus rei testimonium c. These two Commissions do somewhat differ in the second Assignavimus for by that for the County of Dublin the Iustices of peace have power to heare and determine felonyes but in the other they have no power given them thereby to heare and determine of any felonie and the reason of this difference is twofold First because no Iustices of Assise and gaole delivery go into the County of Dublin Secondly because at the quarter Sessions of the peace there is alwayes one or more of the Iudges or of the Kings counsell present Also both these Commissions do differ from the usuall Commission of the peace in England in this particular videlicet By these Commissions the Iustices of peace have power to enquire of Treason which the Iustices of peace in England by their Commission have not The reason is because many offences which are common here are by the Lawes of this kingdome Treason which by the Lawes in England are but felonie 33. These Commissions have two parts containing the power of the Iustices of peace Stat. Winch. 13. E. 1. 2. E. 3. 6. 2. E. 3. 3. 34. The first Assignavimus or first part of the Commission doth give power to any one Iustice of peace more or all to keepe and cause to be kept the peace and all ordinances and statutes made for the conservation of the peace and for the quiet governement of the people As namely the statutes made for Huy and Cry after felons And the statutes made against Murtherers Robbers Felons Night-walkers Affrayers Armour worne in terrorem Riots forceible Entries and all other force and violence All which be directly against the peace The particulars thereof you shall finde more fully hereafter and most of them under their proper titles 35. By this first clause in the Commission the Iustices of peace have aswell all the ancyent power touching the peace which the Conservators of the peace had by the Common law as also that whole authoritie which the statutes have since added thereto 36. The meanes which the Iustices of peace must use for the keeping of the peace and for the execution of these statutes is as followeth 37. For to prevent the breach of the peace the Iu. of P. may send his warrant for the party and may take sufficient sureties of him by recognizance for the peace or for the good behaviour as the case shall require and may send the partie to the Gaole for not finding such sureties 38. But for these statutes made for the peace they are to be executed according to such prescript order as themselves do deliver wherein if no power at all be expressely given to any one Iustice of peace alone then can he not otherwise compell the observation thereof as it seemeth then by admonition onely In which behalfe if he shall not be obeyed he may preferre the cause at the Sessions and to worke it to a presentment upon the statute and so by the help of his fellow Iustices to heare and
determine thereof as law requireth 39. The second Assignavimus in the Commission doth give authoritie to any two Iustices of the peace or more the one being of the Quorum in these five things following 1. To enquire by a Iurie of all offences mentioned within the Commission 2. To take and view all Iudictments and presentments of the Iurie 3. To grant out proces against the offendors except in cases of Treason in the County of Dublin and cases of Treason and felonie in the other Counties thereby to cause them to come and answere to the said Iudictments 4. To trie and heare all such offences except before excepted upon any former or future indictments taken before themselves or before any other Iustices of the peace after the offendors be come in 5. To determine thereof by giving Iudgement and inflicting punishment upon the offendors according to the Lawes and statutes 40. But all the busines included within the second Assignavimus belongeth to the Sessions of the peace which is to be declared in the second part of this booke and therefore I forbeare to speake of it in this place 41. Note also that there be diverse statutes which be not specified within the Commission and yet are committed to the charge and care of the Iustices of peace and are a sufficient warrant and Commission of themselves although they be not recited in the Commission And all such statutes are also to be executed according as the same statutes themselves do severally prescribe and set downe 42. And for that most of the busines and practise of the Iustices of peace doth consist and lye in the execution of such statutes as are committed to their charge whether they be specified in the Commission or not specified there the numbers of which statutes are exceedingly encreased of late yeares to the overburthening of all the Iustices of peace And the rather to give some little help to such Iustices of peace who being destitute of the assistance of such as are learned in the Lawes are daily to administer Iustice and to execute their office at home and out of their Sessions I have for their better case herein endeavored in this treatise to set downe more orderly and particularly the severall parts and branches of every such statute by it selfe under their proper titles with further referments to the statutes themselves at large or to the Abridgements 43. The power and authoritie of the Iustices of peace aswell given them by the said Commission as by the statutes is in some cases Ministeriall or regular and limited as a Minister onely And in some other cases judiciall or absolute and as a Iudge 44. Ministeriall when he is thereto commaunded by a higher authoritie 45. As upon A supplicavit out of the Chancery or Kings Bench for the taking of suretie for the peace or good behaviour and a Writ upon the statute of North-hampton upon a forceible Entrie In the execution of which two Writs the Iustice of peace may proceede no further or otherwise then hee is authorised by such writ and is also to returne the writ and to certifie his doings therein into the Court whence the writ came 46. But in all other cases the power of the Iustices of peace is absolute in some manner so as they and every of them may of their owne power proceede ex officio and as a Iudge yet this their power is also limited for they may neither hang a man for a trespasse nor fine him for a felony but must proceede in all things according as they are prescribed by the Commission and by the said severall statutes 47. And yet for that all Considerable circumstances can neither be comprehended in the Commission Discretion nor fore-seene at the time of the making of the statutes Therefore oftentimes some things are referred to the consideration of the Iustices of peace and left to be supplyed by them in their discretion 48. The Commission of the peace in it selfe doth leave litle or nothing to the discretion of the Iustices of peace but doth limit them to proceede secundum leges consuetudines ordinationes et statuta 49. But by some late statutes some things are therein by speciall words referred to the discretion of the Iustices of peace some out of Sessions and some at their Sessions 50. I will here onely set downe some particulars of such things as are referred to their discretions out of their Sessions 1. Labourers 23. H 6. ca. 13. One Iustice of peace may cause all such persons as be meete to labour by his discretion to worke in harvest and hay time 2. Trespassers in Corne Orchards Hedges or Woods Trespasse 10. Carol. ca. 23. in hib which in the discretion of the Iustice are not thought able to give satisfaction shal be whipped 3. Tyle 17. E. 4. ca. 4. One Iustice of peace may heare and determine by examination or otherwise by his discretion the offences cōmitted in Tile making 4. Two Iustices may assesse 10. Carol. ca. 13. according to their discretions proprotionably all the parishes within the hundred towards a contribution for the parties charged upon a Robberie c. 5. Two 9. H. 5. ca. 8. Iustices may fine by their discretion all buyers and sellers with unlawfull weights and measures 6. There be some other statutes and some other cases wherein the discretion of the Iustices of peace out of their Sessions is tollerated But the Counsell of Cicero herein is to be observed Sapientis est Iudicis cogitare tantū sibi esse permissum quantum sit commissum ac creditum 7. Also the sayings of the late reverend Iudge and Sage of the Law in his fifth part in Rooks case Co. li. 5. fo 100. li. 10. fo 140. and in his tenth part in Keighleys case are worthy observation sc That discretion is a knowledge or understanding to discerne betweene truth and falshood betweene right and wrong betweene shaddowes and substance betweene Equity and colourable glosses and pretences and not to doe according to our wills and private affections for talis discretio discretionem confundit And therefore in both the recited cases it was holden that though the words in the Commission of Sewers do give authoritie to those Commissioners to do according to their discretions that yet their discretion and proceedings ought to be limited and bounded with the rules of reason Law and Iustice Againe discretion saith he is scire per legem quid sit justum And therefore every Iudge Iustice or Commissioner ought to have duos sales viz. Salem sapientiae ne sit insipidus Et salem conscientiae ne sit Diabolus 8. And as Master Lambert well said no way better shall the discretion of a Iustice of peace appeare then if he remembring that he is lex loquens shall containe himselfe within the lists of Law and shall not use his discretion but only where both the Law permitteth and the present case requireth 9. In all
cases therefore where the statutes do referre the Triall of offendors or hearing and determining of offences to the discretion of the Iustice or Iustices of peace out of Sessions it is very requisite that upon such tryall or hearing the said Iustices take due examination of the offendors themselves or of credible witnesses aswell concerning the fact it selfe as the circumstances thereof and upon confession or other due proofe of the offence Then to proceede according to Law and Iustice 10. Note that in all cases where the statute referreth the trial c. to the discretion of the Iustices the said statutes themselves do also enable the said Iust of P. to take the examination of witnesses upon oath 11. Note further that the Iustices of peace out of their Sessions are now armed with farre more ample authority and power than the ancient Conservators of the peace were For the Iustices of peace have double power given them The one of Iurisdiction to convent the offendors before them by their warrant in diverse cases to examine heare and determine the cause The other of coertion sc that after the cause hard to constraine them to the obedience and observance of their order and decree which notwithstanding must be according to the rules of Law and Iustice as aforesaid Whereas the ancient conservatours of the peace had no Iurisdiction or authoriâ—ie at all either to convent the offendor before them or to examine heare or determine the cause but had onely coertion prehension or punishment of an offendour in some few cases Plo. 37. And here I must further put the Iustices of peace in minde that their authoritie and power is limited to be by them exercised only within the County or Countyes where they be in Commission And yet in that or those County or Countyes the Iustices of peace of the County must not intermedle in any City there which is a County of it selfe Nor in any City or corporate Towne there though it be no County of it selfe but within the County which have their proper Iustices of peace within themselves by the Kings Charter or Commission Cromp. 8. 181. especially if in such Charter there be any speciall words of prohibition that the Iustices of the shire Non se intromittant c. except such Country Iustices shall also be in Commission in such City or Towne corporate 12. But in other corporate Townes which have not their proper Iustices of peace Cromp. ib. As also in all liberties and Franchises within the County which have the returne of writs but have not their proper Iustices there the Iustices of peace of the County ought to execute their authoritie and that by the words of their Commission 13. Againe if a parish shall extend into two or more Counties Or if part thereof shall lye within the liberties of any City or Towne corporate which have their proper Iustices and part without Then aswell the Iustices of peace of every County as also the Iustices or officers of such City or Towne corporate shall intermedle only within their owne proper and distinct limits bounds sc within so much of the said parish Co. 4. 46. c. as lyeth within their severall liberties and limits and not to inuade or deale in other jurisdictions for it shal be against Law reason where offices and Iurisdictions are severall that the one should intermedle within the Iurisdiction of the other 14. Neither shall any Iustice of peace deale in or punish any trespasse Vbi quis delinquet ibi puniet or other like offence coÌ„mitted in any other County against any penall statute though such offendor shal be brought before him Except the statute shall specially enable them thereto or that it be for matters of the peace or in cases of felonie or Treason in which cases onely he may take examinations both of the offendour and accusers and commit the offendours to prison and security for the peace if it be offred 15. Neither shall any Iustice of peace for the time that he shall make his abode or be out of the County where he is in Commission exercise his office For being out of the County where he is in Commission he is but a private man 16. Now my purpose is to set downe more particularly what things Iustices of peace out of their Sessions of the peace may do in the execution of their Commission or of the statutes wherewith they are charged And herein you must observe that some things are permitted to be executed by any one two or more Iustices either in regard that such Iustice or Iustices is or are next to the place or are of the Quorum or the like 17. And here note that whatsoever any one Iustice of peace alone may doe either for the keeping of the peace or in other execution of the Commission or statutes the same also may lawfully be done and performed by any two or more Iustices 18. But where the Law giveth authority to Two Co. li. 4. fo 46. there one alone cannot execute this for una persona non potest supplere vicem duarum Et plus vident Oculi quam oculus 19. Also when things by statute are appropriated to some one certaine Iustice or to more Co. li. 11. fo 92. there such Iustice or Iustices are to pursue such their authoritie accordingly for where an authoritie is given to foure or to one of them if two of them shall execute this it seemeth they have not pursued their authoritie 20. Plo. fo 206. 6. Besides there seemeth a generall rule to be put in Stradlings case in M. Plo. that when a thing is appointed by any statute to be done by or before one person See Co. li. 11. fo 59. 64. certaine that such thing cannot be done by or before any other But that it ought to be done as the statute hath appointed and by such expresse designation of one or power given to one certaine person all others are excluded 21. And in such things appropriate to some one or more Iustices of peace if without such Iustice or Iustices all or any of the residue of the Iustices of that County shall intermedle therein Such their doings is no wayes warrantable and in such their proceedings there is no necessitie to obey them as being no lawfull Iudges of the cause 22. Now having made a briefe declaration of the office of Iustices of the peace in generall by way of Introduction I shall proceede to the particulars of their imployment in severall Titles according to the Alphabet Affray CHAP. 1. 1. AFfray is derived of the French-word Effrayer which signifieth to terrifie or bring feare and which the Law understandeth to be a common wrong and therefore I will shew you what every man may doe in such cases Every private man 2. Every private man being present before or in and during the time of an Affray ought to stay the Affrayors and to part them
Iustice may cause them to finde sureties for the peace and may take away such weapons 3. And yet the Kings servants in his presence and Sheriffes and their officers and other the Kings Ministers and such as bee in their company assisting them in executing the Kings processe or otherwise in executing of their office and all others in pursuing Huy and Cry where any Treason Felony or other like offences against the peace be done may lawfully beare armour or weapons 4. Also any Iustice of peace may command that weapons be taken from such prisoners as at any time shall bee brought before him 5. Also if any servant to husbandrie or to any Artificer or Victualer or any Labourer shall beare any Buckler Sword or Dagger except they be travelling with their Master or in their Masters message Every Iustice of peace may imprison them till they have found sureties for the peace 12. R. 2. 6. P. 2. and may seize and take away their said weapons or may cause the Constable to seize the same and to present the said weapons at the next Sessions of the peace Arrest and imprisonment by what warrant and how and in what manner it may be executed CHAP. 3. What. 1. AN arrest is the apprehending and first restrayning of a mans person depriving it of his owne will and liberty and may be called the beginning of Imprisonment 2. Imprisonment is where a man is arrested against his will and is restrained of his libertie by putting him into the Gaole cage or Stocks or into some house or otherwise by keeping him in the high street or open field so as he cannot freely goe at libertie when and whither he would 3. By Parol Now concerning the precepts and warrants made by the Iustices of peace 4. The Iustice of peace seeing that he is a Iudge of Record his precept or Commandement by word of mouth in some cases is as strong as his precept in writing 5. And therefore the Iustice of peace upon a Riot done in his presence may command the Riotters to be arrested and cause them to finde sureties for their good behaviour 6. So upon an Affray assault threatning or other breach of the peace done in his presence the Iustice of peace may command by word the Officer being present or his owne servant to arrest such offendors to finde sureties for the peace 7. And where the Iustice of peace commandeth one being present to arrest another that is also in his presence 14. H. 7. 8 9. though that commandement be by word only it is good and it is reputed as an arrest made by the Iustice himselfe he being present when the arrest is made 8. But the Iustice of peace cannot command by word 14. H. 7. 8. to arrest another being out of his presente neither may one in the absence of the Iustice arrest another upon his command by paroll Br. peace 7. but it must be by a precept or warrant in writing 9. Next the warrant or precept of a Iustice of peace by writing By writing ought to be under his hand and seale or under his hand at least 10. And if it be for the peace or good behaviour or the like where sureties are to be found or required There the warrant ought to containe the speciall cause and matter whereupon it is granted to the intent that the party upon whom it is to be served may provide his sureties ready and take them with him to the Iu. of peace to be bound for him But if the warrant be for Treason murder or felony or other capitall offence or for great conspiracies rebellions assemblies or the like it needs not containe any speciall cause but there the warrant of the Iu. of peace may be to bring the party before him to make answere to such things or matters generally as shal be objected against him on the Kings Majesties behalfe Cromp. 148. and this is now the common usage 11. Plo. 37. A Iustice of peace who is dwelling out of the County granteth his warrant to be served within the County the officer cannot carry the party out of the County to the Iustice of peace who made the warrant but must carry him before some other Iu. within the County 12. Br. Peace ◠Co. 5. 59. The Iustice of peace may make his warrant of the peace to bring the party before himselfe and then the officer need not to carry the party before any other Iustice And yet upon a warrant for the peace granted ex officio the usuall manner is otherwise 13. Also the Iustice of peace may in some cases make his warrant to attach the offendor to be at the next Sessions of the peace there to answere his said offence For what cause 14. A Iustice of peace ex officio by the the first Assignavimus in the Commission may grant his warrant to arrest or attach one that hath broken the peace or committed other misdemeanour against the peace to find sureties for the peace or good behaviour 15. Also the Iustices of peace in diverse cases as the case shall require do use to grant their warrant against a man for his neglect or other default as for refusing to pay Country or Towne Rates and the like and is warranted by the first Assignavimus of the Commission for it is pro bono regimine 16. And such warrant may be either to attach the offendor to be at the next Sessions there to answer c. or els to bring the offendor before the said Iu. or any other Iustice c. who finding cause may bind such an offendor to appeare at the next Sessions to answer the said default 17. Also wheresoever any statute doth give authority to the Iustices of peace to cause another person to do a thing there it seemeth they have power given them of congruity to grant their warrant to bring such person before them that so they may take order therein 18. Also a Iustice of peace may grant his warrant to attach persons suspected of felony or Treason and that by the first Assignavimus in the Commission and by the true construction of the statute of 5. Ed. 3. 14. 19. Againe if a felony or Treason be committed there is no doubt but that every private man without a warrant may arrest whomsoever he suspecteth of it being a man of evill fame c. But if the offendor being pursued shall resist who shal be ayding to a private man whose goods are stolne and who suspecteth another to have stolne them either to search for his goods or to apprehend the party suspected if the Iustice of peace by this warrant shall not cōmand the Constable to ayde him therein If it be objected that the Constable may do all this of his owne authority upon request to him made by the party robbed it is true and yet we find by common experience that the Constables wihout the Iustices warrant therein are for the
that shall arrest such suspected person must have a suspition of him himselfe and for the same Treason or felony 9. Ed. 4. 28. or otherwise suspition generally is no cause to arrest another 60. So that when any Treason or felony is done every man that shall suspect another to be guilty thereof may arrest him 5. H. 7. 4. 5. H. 7. 4. B. Br. Faux Imprisonment 16. 61. Also when a felony is committed the common voice and fame that I.S. did the felony is sufficient cause for any man to suspect him 5. H. 7. 4. and to arrest him Also Huy and Cry after I. S. for felony seemeth to be sufficient cause to arrest him though there be no felony committed Also Huy and Cry is sufficient cause to arrest any suspitious person 62. So when a felony is done to be in company of the offendors is sufficient cause to arrest him 9. Ed. 4. 28. Nedham So to live idlely and vagrant is good cause of suspition Also every man may arrest such as apparantly goe about to commit any felony and may imprison them 63. Also upon Huy and Cry for goods stolne sc for a horse or Bullockes c. of such a colour c. 29. Ed. 3. 39. 5. H. 7. 4. If A. bee taken driving or leading such a horse or bullocke or having such other stolne goods about him though he be a man of good name and credit yet every man may apprehend and stay A. hereupon and may deliver him to the Constables by them to be set in the stocks or safely kept untill they can carrie him before a Iustice of peace that so he may be delivered by course of Law 64. If any man shall be dangerously hurt in an Affray 10. H. 7. 28. or otherwise every man may arrest and imprison the offendour 65. Nightwalkers being strangers or suspected persons watchmen may arrest them and may stay them till the morning yea every man may arrest such Nightwalkers for it is for the good of the Common-wealth 4. H. 7. 18. Br. Faux Imprisonment 15. 66. The Sheriffe Bailiffes Constables and other the Kings officers may arrest and imprison offendours By officers in all cases where a private person may and without any writ or warrant 67. A Constable being informed of a lewd man and woman that are together in incontinency 1. H. 7. 7. 13. H. 7. 10. may take with him so many of his neighbours as he will to arrest the said man and woman to finde sureties for their good behaviour 1. H. 7. 7. 13. H. 7. 16. 68. The Iustice of peace may arrest and imprison offendours in all cases where a private person or Constable may 69. The Iu. of P. upon his owne motion and discretion or upon complaint may also grant out his warrant for the arresting or conventing before him of all such persons as shall breake or goe about to breake the peace or as he shall suspect to bee inclined to breake the peace and may commit them to prison if they shall refuse to finde or cannot finde sureties for to keepe the peace 70. The Iu. of peace in diverse cases may in like sort grant out his warrant for the good behaviour against offendors and commiâ— them to prison for not finding sureties accordingly 71. And these things the Iu. of peace may doe by force of the Commission and of the statutes 18. E. 3. ca. 2. et 34. Ed. 3. cap. 1. 72. If one commeth before the Iustice of peace upon his warrant for the peace good behaviour or for a Riot or the like the Iustice needeth not to demaund surety of him but may commit him if he doe not offer it Br. peace 7. 73. Also the Iustices of peace upon their owne view of the offences may imprison the offendors against diverse penall Lawes as namely such as shall make any forceible Entries or holdings of possessions 74. There be diverse other offences which by the statutes are committed to the Iu. of peace out of their Sessions to heare and determine And of which the offendors shal be convicted sometimes upon their owne confession before the Iu. and sometimes upon examination and proofe of witnesses In all which cases the said Iustices of peace may convent the said offendors before them by their processe or warrant and after such examination and conviction they may Imprison or otherwise punish the offendors according as they are limitted by the said statutes 75. Wheresoever the Iu. of peace hath power or authority given him by any statute to bind over any man or to cause a man to doe any thing if such person being in his presence shall refuse to be bound or to doe such thing such Iustice may send such person to the Gaole there to remaine till he shall performe the same 76. All men being required ought to assist the K. officers to pursue and arrest Traitours Felons and all other offendors against the peace Resist 2. E. 4. 6. 21. H. 7. 39. 77. If the party against whom any lawfull warrant is granted shall make resistance or shall make an assault upon the officer the officer may justifie the beating and hurting of him and may also imprison him in the Stocks for the same But if the party resisteth or flyeth before he be arrested the officer cannot justifie the beating of him 2. Ed. 4. 7. a. Br. Trespas 296. Imprisonment the place 5. H. 4. 10. P. Prison 1. 78. None shal be imprisoned by any Iu. of peace but only in the Common gaole by the statute of 5. H. 4. And therefore Iustices of peace cannot commit felons to any prisons which be no common gaoles nor make a gaole of their owne houses And yet Iustices of peace may commit to the stocks some offendors against certaine penall statutes 20. Ed. 4. 6. 22. Ed 4. 35. 3. H. 4. 9. 79. The Constable or other such officer cannot imprison any man in his house as it seemeth but in the Stocks and that not above such a reasonable time as he may provide conveniently and safely to convey the prisoner to the Iust of peace or to the gaole 80. If a man commit felony or Treason in one County and be arrested for the same in another County although he cannot be tryed nor indicted in the County where he was apprehended yet he shal be there imprisoned untill by the Iustices of Assise or the Iustices of the Kings Bench he shal be sent to the gaole of the County where the fact was committed 81. The Constable or other officer pursuing a felon into another County takes him there 13. E. 4. 8. the felon shall be brought before a Iustice of peace of that County and by him committed to the gaole of the County where he is taken For the officer being out of his County hath no more authority there than a private man 82. Also if the Constable or other officer shall see an Affray and he comming to arrest them
shall seeme by their discretions to be necessary convenient for the speedy amendment erecting and making of such Bridges Causeys and Toghers every or any of them And where in many parts of this Realme it cannot be knowne and proved what County Barony Citty Burrough Towne or parish nor what person certaine or body politique ought of right to make or repaire such Bridges Causeys or Toghers by reason wherof such Bridges Causeys Toghers for lacke of knowledge of such as ought to make or repaire them for the most part lye without making or repairing to the great annoyance of the Kings subjects It is further enacted that in every such case the said Bridges Causeys and Toghers if they be without Citty or Towne corporate shall be made by the Inhabitants of the Shire or Barony within the which the said Bridges Causeys and Toghers shal happen to be in decay or thought fit to be newly erected or made And if within any City or Towne corporate which is a County of it selfe then by the Inhabitants of every such City or Town corporate wherein such Bridges Causeys Toghers or any of them happen to be in decay or thought fit to be newly erected made and if within a Towne corporate which is no County then by the County or Barony wherein such Bridges Causeys or Toghers shall happen to be or thought fit to be newly erected and if part of any such Bridges Causeys and Toghers or any of them happen to be in one County and the other part thereof in another County that then in every such case the Inhabitants of both the said Counties shall be charged and chargeable to amend make and repaire such part and portion of such Bridges Causeys Toghers or any of them as shall lie and be within the limits of the Shire wherein they be inhabiting and dwelling 8. And it is further enacted that in every such case the said Iustices of Assise in their Circuits and the said Iustices of the peace in the Quarter Sessions respectively with the assent of the Grand Iury shall have power and authority to taxe and set every Inhabitant in any such County Barony Citty Burrough Towne or parish within the limits of their Commissions and authorities to such reasonable aide and summe of money as they shall thinke by ther discretions convenient and sufficient for the new building repairing re-edifying and amendment of such Bridges Causeys and Toghers and after such taxations made the Iustices of Assize and Iustices of peace respectively shall cause the names and summes of every particular person so by them taxed to be written in a Rolle indented and shall also have power and authority to make two Collectors of every Barony Citty Burrough Towne or Parish for collection of all such summes of money by them set and taxed with Collectors receiving the one part of the said Rolle indented under the seales of the said Iustices shall have power and authority to collect and receive all the particular summes of money therein contained and to distraine every such Inhabitants as shall be taxed and refuse payment thereof in his lands goods and Chattells and to sell such distresse and of the sale thereof retaine and perceive all the money taxed and the residue if the distresse be better to deliver to the owner thereof And that the same Iustices of Assize and Iustices of the peace respectively within the limits of their Commissions and authorities shall also have power and authority to name and appoint two Surveyors which shall see every such Bridge Causey and Togher builded repaired and amended from time to time as often as need shall require to whose hands the said Collectors shall pay the said summes of money taxed and by them received And that the Collectors and Surveyors and every of them and their Executors and administrators and the Executors and administrators of them and every of them from time to time shall at the publique Sessions of the peace make a true declaration and accompt to the Iustices of peace of the Shire Citty or Towne corporate wherein they shall be appointed Collectors or Surveyors of the receipts payments and expences of the said summes of money And if they or any of them refuse that to doe that then the Iustices of the peace from time to time by their discretions shall have power and authority to make processe against the said Collectors and Surveyors and every of them their Executors and administrators and the Executors and administrators of every of them by Attachments under their seales returneable at the generall Sessions of the peace And if they appeare then to compell them to accompt as is aforesaid or else if they or any of them refuse that to doe then to commit such of them as shall refuse toward there to remaine without baile or mainprise till the said declaration and accompt be truely made 9. And lastly it is enacted by the said statute that the Iustices of Assize and Iustices of the peace respectively shall have full power and authority to allow such reasonable costs and charges to the said Surveyors and Collectors as by their discretions shall be thought convenient 10. Now concerning high-wayes although by the ancient common Law every Country ought to maintaine and repaire wayes and passages betweene Market Townes yet for the better performance thereof diverse ancient statutes have beene made viz. the statute of Winchester in the time of E. 1. whereby it is ordained that the wayes should be so inlarged that no bushes should be within 200. foote and the statute of 11. Iacobi ca. 7. 11. Iacobi ca. 7. in Ireland whereby it is ordained that Constables and Churchwardens of every Parish within this Realme shall yearely upon the Tuesday and wednesday in Easter weeke call together a number of the parishioners and shal then elect and choose two honest persons of the parish to be Surveyors and orderers of the works for the amendment of the high wayes Cashes and paces in their parish leading to any market Towne the which persons have authority by vertue of that Act to order and direct the persons and carriages that shall be appointed for those workes by their discretions and the said persons so named shall take upon them the execucution of their said offices upon paine every of them making default to forfeit ten pounds 11. And the said Constables and Churchwardens shall also then name and appoint sixe dayes for the amendment and clearing of the said high-wayes cashes and paces in the said severall parishes before the feast of Saint Iohn Baptist then next following and shall openly in the Church the next Sunday after Easter give notice of the same sixe dayes and upon the said dayes the parishioners shall endeavor themselves to the amendment and cleering of the said wayes cashes and paces and shall be chargeable thereunto as followeth that is to say all and every person or persons for every plow land in tillage or
Cashes and cutting or clearing of Paces within the parishes where he dwelleth as farre forth and in such manner and forme as any person having a plow-land in any parish ought to be chargeable by the said Act as aforesaid and that every person or persons occupying or keeping in his or their hand or possession severall or divers plow-lands as aforesaid in severall or divers parishes shall be charged to finde in each parish where the plow-lands being in his occupying doe lye one Cart Waine Tumbrell Dungpot or Courtslad Carres or drags furnished and two men and other things as before for the amendment and repairing of the high-wayes making of Cashes and cleering of Paces within the severall parishes where the said plow-lands doe lye in such manner and forme as if hee or they were a parishioner dwelling within the parishes where the same severall plow-lands doe lye And for the better keeping of the high-wayes passable for his Majesties subjects It is likewise enacted that no person or persons having any ground by lease or otherwise adjoyning to any high-way or common fairing way leading to any market Towne shall cast or scoure any ditch and throw and lay the soyle thereof into the high way and suffer it to lye there by the space of sixe moneths to the annoyance of the said high way or common fairing way upon paine of forfeiture for every load of soyle so cast into the high way or common fairing way in ditching or scouring twelve pence and where any heretofore have beene so cast into the high-wayes or common fairing way that there is a banke betweene the said way and ditch that it shall be lawfull for the supervisors and workemen appointed for the amendment of the said high-wayes to make sluces or other devices by their discretions to convay the water out of the said way into the ditch any Law right interest custome or usage notwithstanding 20. And it is further enacted that all and every Iustices of Assise Iustices of Oyer and Terminer and Iustices of the peace in their Sessions and Stewards of Lectes and Law dayes in their Leetes and Law dayes shall enquire of and heare and determine all and every offence matter and cause that shall grow come or arise by reason of this Statute and to assesse such reasonable Fines and amerciaments for the same as by them shall be thought meete and that all and every penalty summe or summes of money forfeited or to be imposed for any cause within this Statute shall be levied within every parish by the Surveyors of the wayes within that parish for the time being by distresse and sale of distresses in manner and Forme as Fines and amerciaments in Leets have beene used and the money so levyed to be imployed upon the high-way or common fairing way where the offence was committed within one yeare and the said Surveyors shall at least once every yeare at the quarter Sessions to be holden for the said County make a true Accompt before the Iustices of peace there or any two of them whereof one to be of the Quorum and shall make payment of all such summâ— of mony to the Surveyors to be appointed for the yeare next following as he or they shall have collected upon the Estreares thereof to be made unto them upon paine to forfeit for every time hee shall not so doe forty shillings sterl and to be committed untill they make payment thereof and the Clerke of the Crowne or of the peace and the Steward of every Leete shall make estreate indented of all the Fines forfeitures and amerciaments upon the said defaults and shall deliver the one part thereof to the Surveyors of every parish where the said offence was committed yearely within Six weekes after the Feast of Saint Michael the Archangell and the said Surveyors upon their accompt shall have allowed for every pound they shall collect and pay Eight pence for his owne paines and 12. d. English for the Fees of the Clerke of the Crowne Clerke of the Peace or Steward of the Leete for the estrates indented of every severall parish that they shall deliver as is aforesaid 21. Note that the Kings high way or Regia vid loading either to the Market or from towne to towne the freehold and soile thereof and the interest of all the trees and other such profitâ— thereupon growing doe belong to the Lord of the soile or Lord of the Mannor 17. Ed. 3. fol. 9. Br. Chimin 1â— â—1 â—7 H. 6. fol. 9. Br. Leeteâ— And therefore such Lords are chargeable to cut downe the Trees and bushes growing in such high-wayes and yet by the opinion of Keble 8. H. 7. fol. 5. the freehold of the high-way and the Trees thereupon growing are belonging to him that hath the land next adjoyning Br. Nusans 18. but it seemeth this must be understood of common field wayes or other private wayes and not of the Kings high-way See â— Ed. 4. fol. 9. Britton fol. 111. 22. Note also that he which hath land adjoyning next to the K. high-way by the common Law before these statutes was and is chargeable and bound of common right to clense and scoure the ditches adjoyning to the said high-way 8. H. 7. fol. 1. A. Br. Nasanus 28. 23. And it is called the Kings high-way for that the King at all times hath therein passage for himselfe and all his people and may punish all Nufans therein though otherwise the interest thereof be in the Lord to take all the Trees and such other profits there growing and to bring his Action for digging therein or for any other like Trespasse there done 24. F.N.B. 113. A. And the King by the common Law may award his Commission for the amending of the high-wayes and Bridges throughout his Realme so as his people may have safe passage thereby Cloth CHAP. 7. EVery Iustice of peace may examine and punish certaine abuses concerning the making of cloth as appeareth by a Branch of a statute made in Anno 4. E. 4. ca. 1. which branch followeth in these words viz. 1. Therefore it is ordeined and established by the authority aforesaid that every man and woman being cloth-makers Cloth-makers from the Feast of Saint Peter shall pay to the Carders spinsters and all such other labourers of any member thereof lawfull money for all their lawfull wages Wages and payment of the same And also to deliver wolles to be wrought according to the faithfull delivery and due weight upon paine of forfaiture to the same labourer the treble of his said wages so not paid as often as the said cloth-maker doth refuse to pay the same in the said manner and forme to any such labourer put by him to the occupation in any of the said members of cloth-making And also to forfeit to the same labourer for every delivery of excessive and unlawfull weight to him delivered to be wrought 6. d. for every default and that every Carder Spinster Weaver
levyed by the Warden of the peace and that the paines lost be spent upon the Townes where the said paines riseth 8. Also by a statute made in Ireland in the tenth yeare of King Henry the seventh it is ordained That every subject having goods and Chattels to the value of Ten pounds have an English Bow and a sneafe of Arrowes according every subject having goods to the value of 20. l. have a Iacke Sallet and English Bow and a sheafe of arrowes every Freeholder having land to the value yearely of foure pounds have his horse Iacke Sallet Bow and Sheafe of Arrowes every Lord Knight and Esquire within the said land have for every yeoman daily in their houshold Iacke Salet Bow and Arrowes to the intent that all the Commons of the said land may be able to doe the King or his Lievetenant service for their owne defence and suretie And that if the foresaid persons or any of them doe not observe and performe the premises as it is before specified that then they and every of them doe forfeit to the King 6. s. 8. d. as often times as they and every of them shall offend the foresaid ordinance And likewise that there be in every Barony within every Shire of the said land two Wardens of peace having authority as it hath been used of old time and in every parish Constables of able persons inhabitants within the said parishes and a paire of Buts to be had within every of the foresaid parishes at the cost of the said parishioners that the Commons of the said land may the sooner attaine the practise and experience of Archers And that the foresaid Constables in every parish upon paine of forfeiture of 12. d. at every default doe call before them or one of them every holy day all and every of the foresaid persons having Bowes and Arrowes as afore is rehearsed 10. H. 7 ca. 9. in Ireland to shoot and cause them to shoot at the least two or three games at the said Buts and if any of the said persons make default at any holy day without a reasonable cause shewed that then the said Constables have full power and authority to record their defaults and amerce them and every of them at every such default in 4.d and the said Constables to present the said amerciaments in writing to the Barons of the Kings Eschequer in the said land to be levyed and perceived in like manner and forme as the Kings Revenues have beene levyed there Felonie CHAP. 9. 1. EVery Iustice of peace by force of the first Assignavimus of the Commission may cause fresh suite Huy and Cry and search to be made by the Sheriffe bailiffes Constables and others upon any Treason robbery theft or other felony and also may cause the Constables to arrest and to imprison all such as shall be suspected of such Treason or felony or to be Theeves Murderers or Felons 2. Also every Iustice of peace may and must take the examination of all such felons or persons suspected of treason or felony as shall be brought before him 10. Carolica 18. and must also take information against them of those that bring them sc of the fact and of circumstances thereof and must put in writing such examinations and informations or so much thereof as shall be materiall to prove the felony and must certifie them to the next generall gaole delivery and after such examination and information taken then must commit such traitors or felons to the gaole if they be not baileable but if they be baileable then there must be two Iustices together the one of them of the Quorum to bayle them or else they cannot be bailed 3. The Iustice of peace that taketh the examinations must by recognisance binde the Informers that doe declare any thing materiall to prove the felony or treason to appeare and give evidence against the felon at the next generall gaole delivery to be holden within the County City or Towne corporate where the triall of the said offence shall be Stamf. 58. Li. intr 385. Co. 9. 118. 4. The Iustices of peace in the County of Dublin as well by vertue of their Commission as also by force of the statutes of 18. E. 3. 2. 34. Ed. 3. 1. 17. R. 2. 10. have authority to heare and determine all felonies for the words of the Commission to that purpose are Audiendum terminandum ad delinquentes castigandum puniendum 5. Also there be divers statutes which by speciall words did ordaine that the Iustices of peace should have authority at their generall quarter Sessions to inquire of heare and determine certaine felonies As the statutes 18. H. 6. 19. and 1. Ed. 4. for felonies presented before Sheriffes in their Turnes or law dayes Cromp. 5â— 6. And yet there be some felonies which the Iustices of peace cannot heare or try at all neither can they enquire thereof nor otherwise deale therewith as it seemeth as namely â— H. 6. â—2 12. Co. 11. 34. 7. Embeazelling of any record writ returne panel proces or warrant of Atturney in the Chancery Eschequer the one bench or the other or in the treasury whereby any judgement shall be reversed Every such offence is made felony in such imbezellor stealer or taker away and in their procurors Counsellors and abettors by the statute of 8. H. 6. But such offences are by the same statute appointed to be tryed by a Iury whereof the one halfe shall be of the men of the same Courts and before the Iudges of the said Courts of the one Bench or of the other 2. R. 3. fo 10. 8. Razing of any such record is also felony within the said statute of 8. H. 6. and to be tryed as aforesaid Br. Coro 174. 9. Forging of any deed or writing sealed or of any Court Roll will or acquittance Or to cause or assent to be made any such forged writing or to publish or shew forth in Evidence any such forged writing knowing the same to be forged If any person being once lawfully convicted of any of the said offences shall afterwards commit any the said offences againe 2â— El ca. 4. in Ireland every such second offence is made felony by the statute of 5. El. ca. 24. in England But by the same statute such offences are to be inquired of heard and determined by and before Iustices of Oyer and Terminer and Iustices of Assize which statute is enacted in Ireland in Anno 28. El. ca. 4. 10. And therefore whereas one R. Smith was indicted at the Sâ—ssions of the peace in the County of Oxford upon the said statute of 5. Elizab. for forging of a false deed it was adjudged by the whole Court in the K. bench Anno 30. Co. 9. 118. Elizab. that the said indictment was not well taken For although the Iustices of peace by their Commission have power of Oyer and Terminer to heare and determine felonies and trespasses
c. And have in their said Commission an expresse clause ad audiendum terminandum and so are Iustices of Oyer and Terminer yet it was resolved by the Court that forasmuch as there is a Commission of Oyer and Terminer knowne distinctly by that name and the Commission of the peace is knowne distinctly by another name that the said indictment taken before the Iustices of the peace at their Sessions was not well taken and therefore it was quashed 11. The reason of this last case and Iudgement seemeth to hold in the former cases and in all other like cases where any statute doth specially give authoritie to any other distinct Court or to other Iustices or Commissioners leaving out the Iustice of peace to enquire of heare and determine or to trie felons c. there the Iustices of the peace at their Sessions cannot enquire thereof c. 12. Against servants imbeazelling or taking away the goods of their deceased maister the executors of the party deceased may have a writ directed to the Sheriffe to make open proclamation two market dayes that such offendours shall appeare in the K. Bench at a certaine day And if such writ bee returned and proclamation is thereupon made accordingly then if the said persons which should appeare by reason of the said proclamation do make default 33. H. 6. ca. 1. and do not appeare in the K. Bench at the day specifyed in the said writ they shall be attainted of felony by the statute of 33. Hen. 6. So that such offence of servants embeazelling their said masters goods beginneth first to be felony upon their default of apparance in the Kings Bench after proclamation Of which default the Iustices of peace cannot take notice for that they have not before them the record of such default or not appearing and therefore the Iu. of P. cannot inquire of such felony 13. But in the former cases if any such offendor shall be brought before any Iust of peace and charged with any such felony quare how farre the Iustice of peace is to deale or what he is to doe therein considering the Iustices of peace are no Iudges of such felonies neither have they any Iurisdiction given them by the statutes in such cases Neverthelesse I conceive it to be both serviceable and safe for the Iustice of peace not onely to examine the offence and the circumstances thereof and then to certifie those examinations to such persons as by the statute are made Iudges of the cause but also to commit such an offendour to prison 10. Caroli ca. 1â— in Ireland and to binde over the Informers to give Evidence and this I conceive to bee warranted by the statute of 10. Caroli ca. 18. in Ireland 14. Againe if a man had been feloniously stricken poysoned or bewitched in one County and after dyed thereof in another County by the common Law no Indictment could be thereof taken in either of the said two Counties for that the Iurors of the County where such party dyed could not take knowledge of the said stroke poysoning or bewitching being in a forraigne County Nor the Iurors of the County where the stroke poysoning or bewitching was committed could not take knowledge of the death in another County 10. Caroli ca. 1â— in Ireland But now by the statute of 10. Caroli ca. 19. an Indictment thereof found by Iurors of the County where the death shall happen whether it shall be found before the Coroner or before Iustices of peace or other Iustices c. shall bee good and effectuall in Law and that the Iustices of gaole delivery and Oyer and Terminer in the same County where such indictment shall bee taken shall and may proceede upon the same as if such stroke poysoning or bewitching and death had beene all in one and the same County 15. Also where Felons had robbed or stolne goods in one County and after conveyed the spoile or goods so stollen into another County to their adherents there 10. Caroli ca. 19 in Ireland who knowing of such felony received the same goods In which case although the principall were after attainted the accessary notwithstanding escaped by reason that he was accessary in another County And that the Iurors of the said other County by the common law could take no knowledge of the principall felony in the first County But now by the said statute it is enacted that where any murder or felony shall bee committed and done in one County and other persons shall be accessary in any manner to any such murder or felony in any other County That an Indictment thereof found or taken against such accessary Co. 9. 117. before the Iustices of peace or other Iustices c. in the County where such offence of accessarie shall be committed shall be good and effectuall in law And that the Iustices of Gaole delivery or Oyer and Terminer of or in such County where the offence of any such accessarie shall be committed shall write to the Custos Rotulorum where such principall shall bee attainted or convict to certifie them whether such principall bee attainted convicted or otherwise discharged of such felony And thereupon the Custos Rotulorum shall make certificate in writing under his seale to the said Iustices accordingly and then the Iustices of Gaole delivery or Oyer and Terminer shall proceed upon every such accessary in the County where such accessary became Accessary as if both the principall offence and accessary had beene committed and done in the said County where the offence of accessary was committed 16. So as by the letter of this last recited statute the jurisdiction over these last recited felonies and over such Accessaries is not committed to the Iustices of peace to proceed to the tryall of them But this authority is committed to the Iustices of gaole delivery or of Oyer and Terminer yet the Iustices of peace may examine these offences and take information against the offendors and certifie the same to the next generall gaole delivery and may bind over the Informers and commit the offendors Also the Iustices of peace may inquire thereof and take indictments against them as in other cases of felony 17. Lastly the Iustices of peace at their Sessions cannot make tryall of such as be indicted of Felonie before Coroners or before the Iustices of gaole delivery or of Oyer and Terminer unlesse the same persons scilicet the said Coroner Iustices of Gaole delivery Lamb. 530. or of Oyer and Terminer were also Iustices of peace in the same County so as the indictment may be understood to be taken by them as before Iustices of the peace For the Commission of the peace and the authority of Iustices of the peace extendeth onely to try such as stand indicted before themselves or before former Iustices of the P. or before the Sheriffe in his Tourne of the Steward in a Leete See the statute 1. Ed. 4. cap. 2. for indictments taken in the Sheriffes Tourne
of their worke in grosse with such labourers and Artificers when please them so that they performe such workes well and lawfully according to the bargaine or Covenant with them thereof made Anno 34. Ed. 3. cap. 9. 15. Of Labourers and Artificers that absent them out of their services in other Townes or another County the party shall have the suit before the Iustices and that the Sheriffe take him at the first day as is contained in the statute if he be found and doe of him execution as afore is said and if he returne that he is not found he shall have an Exigent at the first day and the same pursue till he be outlawed and after the Outlarie a writ of the same Iustices shall be sent to every Sheriffe of Ireland that the party will sue to take him and to send him to the Sheriffe of the County where he is outlawed and when he shall be there brought he shall have there imprisonment till he will justifie himselfe and have made gree to the party and neverthelesse for the falsitie he shall be burnt in the forehead with an Iron made and formed to this letter F. in token of falsitie if the party grieved the same will sue but this burning is not to be executed unlesse it be by the advice of the Iustices and the Iron shall abide in the custody of the Sheriffe And that the Sheriffe and some Bailiffe of the Franchise be attending to the plaintiffe to put this ordinance in execution upon paine aforesaid and that no labourer servant nor Artificer shall take no manner of wages the festivall dayes Anno 34. Ed. 3. ca. 10. 16. If any labourer servant or Artificer absent himselfe in any City or Burrough and the party plainetiffe come to the Mayor and Bailiffes and require delivery of his servant they shall make him delivery without delay and if they refuse to doe the same the party shall have his suit against the Mayors and Bailiffes before the Iustices of Labourers which the Iustices of peace by their Commission now are and if they be thereof attainted they shall pay to the King 10. l. and to the party 100. s. Anno 34. Ed. 3. cap. 11. 17. The statutes and ordinances made of labourers and Artificers be holden and kept and duely executed and thereupon Commission shall be made to the Iustices of peace in every County to heare and determine the points of the said statutes and to award damages at the suit of the party according to the quantitie of his Trespasse Anno 42. Ed. 3. cap. 6. 18. All the statutes of Artificers Labourers Servants and Victualers made aswell in the time of our Soveraigne Lord the King that now is as in the time of his noble grandfather whom God assoile not repealed shall be firmely holden and kept and duely executed and that the said Artificers Labourers Servants and Victualers be duely justified by the Iustices of peace aswell at the suit of the King as of the party according as the said Statutes require and that the Mayors Bailiffes and Stewards of Lords and Constables of Townes doe duely their offices touching such Artificers Servants Labourers and Victualers and that a paire of Stocks be in every Towne to justifie the same Servants and Labourers as is ordained in the said statutes And moreover it is ordained and assented that no Servant nor Labourer be he man or woman shall depart at the end of his Terme out of the hundred Rape or Weapontake where he is dwelling to serve or dwell elsewhere or by colour to goe from thence in pilgrimage unlesse he bring a letter patent containing the cause of his going and the time of his Terme if he ought to returne under the Kings Seale which for this intent shall be assigned and delivered to the keeping of some good man of the hundred Rape Wapentake City or Borrough after the discretion of the Iustices of peace to be kept and lawfully to make such letters when it needeth and not in any other manner by his owne Oath and that about the same Seale shall be written the name of the County and overtwhart the said Seale the name of the hundred Rape or Wapentake City or Borrough and also if any Servant or Labourer be found in any City or Borrough or elsewhere comming from any place wandring without such letter he shall be forthwith taken by the said Mayors Bailiffes Stewards or Constables and put in the Stocks and kept till he hath found surety to returne to his service or to serve or labour in the Towne from whence he came till he have such letter to depart for a reasonable cause and it is to be remembred that a Servant or Labourer may freely depart out of his service at the end of his Terme and to serve in another place so that he be in a certainty with whom and shall have such a letter as before but the meaning of this ordinance is not that any Servants which shall ride or goe in the businesse of their Lords or Masters shall be comprised within the same ordinance for the time of the same businesse and if any beare such letter which may be found forged or false he shall have imprisonment of Forty dayes for the falsity and further till he hath found surety to returne or serve to labour as is aforesaid and that none receive Servant or Labourer going out of their hundred Rape or Wapentake City or Borrough without letter Testimoniall nor with letter Testimoniall above one night except it be for cause of sicknesse or other cause reasonable or which will and may serve and labour thereby the fame Testimoniall upon a paine to be limitted by the Iustice of peace that aswell Artificers and people of mistery as servants and apprentices which be of no great avoyer and of which craft or mistery a man hath no great need in harvest time shall be compelled to serve in harvest to cut gather and bring in Corne and that these statutes be duly executed by Mayors Bailiffes Stewards and Constables of Townes upon paine limitted and judged by the said Iustices of peace in their Sessions and that no man take above a peny for the making Sealing and delivering of such letter Anno 12. Ric. 2. cap. 2. 19. That the ordinances aforesaid of Servants and Labourers Beggers and Vagabonds shall hold place and be executed aswell in Cities and Borroughes as in other Counties and places within the Realme aswell within the Franchises as without and that the Sheriffes Mayors Bailiffes and keepers of the Gaoles shall be holden and charged to receive the said Servants Labourers Beggers Vagabonds and to keepe them in prison in the forme aforesaid without letting to mainprise or to baile and without Fee or any other thing taking of them by themselfe or by any other as long as they be so imprisoned or at their going forth upon paine to pay an hundred shillings to our soveraigne Lord the King Anno 12. R. 2.
man Cromp. 197. or to take sureties for any matter or cause See Fitz. 82. it seemeth they may take a Recog yea wheresoever they have authority given them to cause a man to doe any thing there it seemeth they have of congruity power given them to binde the partie by recog to performe or doe it Dalton 298. and if the partie shall refuse so to be bound that then the Iudge may send him to the Gaole 4. I will here set downe only some particulars Ibid. where the Iustices of peace out of their Sessions may take a recognisance 5. One Iustice of peace may take a recognisance for the peace 6. Ibid. Also the Iustice of peace may take a recognisance for the good behaviour by the Commission and these the Iustice of peace may take either upon discretion or upon complaint made to him or upon a supplicavit delivered to him 7. Ibid. One Iustice of peace may binde by recognisance such as doe declare any thing against a felon or Traitor to appeare at the Assizes or Sessions there to give Evidence against the offendor and so in diverse other offences 8. Ibid. One Iustice of peace may binde by recognisance the master that shall misuse his apprentice c. to appeare at the Sessions c. 9. Two Iustices c. may baile prisoners which must be done by recognisance see here tit Bailement 10. Also two Iustices of peace may binde by recognisance the defendant in a suit of Tithes to obey the sentence of the Iudge see postea tit Tithes 11. A Iustice of peace can take no Recognisance but onely for such matters as concerne his office see hereof postea tit Surety for the Peace 12. Note also that a recognisance taken by a Iustice is a matter of record presently so soone as it is taken and acknowledged although it be not made up but only entred into his booke nay although it be not entred as it seemeth See Stamf. 77. c. Br. record 58. 13. If a Iustice of peace shall take a recognisance where he hath no authoritie it is voide 14. And these recognisances taken by the Iustices of peace are to be certified by them at their next quarter Sessions except recog taken for such as shall informe against felons or Traitors and upon bailement of felons which by statute they are appointed to certifie at their next generall gaole deliverie 15. For the Formes of recognisances see hereafter tit Warrants and Presidents Robberie CHAP. 54. One Iustice 11. Caroli c. 13. in Ireland P. Huy and Cry 8. 10. co 77. 1. AFter a Robberie committed the party robbed shall not have his action upon the statute against the hundred except hee shall with all speed convenient give notice of the said robbery to some of the inhabitants neare to the place where such robbery was committed and also except he shall commence his suit or action within one yeare next after such Robbery committed and also except hee shall first bee examined upon oath within twenty dayes next before such action brought by some one Iustice of peace of the County where the Robberie was committed dwelling within or neare to the said hundred where the robbery was done whether hee doth know the parties that committed the said robberie or any of them and if he knoweth any of them then also before such action brought he shall be bound before the same Iust by sufficient recognisance to prosecute effectually the said offendors by indictment or otherwise according to the due course of law 1â— Caroli c. 13. â—n Ireland P. Huy and Cry 15. 2. After a robbery committed the whole hundred must answere the losse if the Robbers be not taken within Forty dayes and yet for that the party robbed hath his recovery and execution against some one or few persons of that hundred therefore for a contribution to be yeelded from the residue of the said hundred upon complaint made by the parties against whom such recovery and execution is had any two Iust of peace the one being of the Quorum being of the same County and inhabiting in or neare the same hundred where such execution shall be had may assesse and taxe according to their discretions proportionably all and every the Townes and Parishes c. as well of the same hundred where the robbery was committed as also of the liberties within the said hundred towards an equall contribution to be had for the reliefe of the parties charged the which money the Constables of every Towne shall levy and deliver over to the same Iustices or to one of them within Ten dayes after collection and which the said Iustices shall deliver over upon request to the parties charged to whose use the same was collected 3. The like taxation assessement levying and payment shall be had and made for a contribution within every hundred 11. Caroli c. 13. in Ireland P. Huy and Cry â— where there was any negligence fault or defect of pursuit and fresh suit after huy and cry viz. if upon suit any recoverie and execution of any money or any damages shall be had against some one or few persons of that hundred where such default was towards the ease of the hundred where the Robberie was done upon complaint made by the parties so charged to any two such Iustices of peace the said Iustices may make the like assessement c. towards the reliefe of the parties so charged Co. 7. 6. 4. Note that if any man be robbed in his house the hundred shall not be charged therewith whether it were done in the night or in the day 5. Also a robberie done in the night shall not charge the hundred but yet if it be in the day time or by day light Co. ibid. though it be afore Sun rising or after the Sun setting the hundred shall answere for it 6. If upon pursuite any one of the offendors be apprehended the hundred shall not be charged 11. Caroli c. 13. in Ireland although the residue of the offendors happen to escape but pursuite without apprehending some of the Robbers is no excuse 7. Cromp. 179. If the party that was robbed shall himselfe take any of the theeves after Huy and Cry made this shall excuse the hundred 8. It is said by my Lord Dyer obitur in anno 22. El. that the statute is satisfied if the names of the offendors be discryed Dyer 370. so that they may be indicted and outlawed but that seemeth to be no Law P. R. 155. for the words of the statutes of 13. Ed. 1. and 28. Ed 3. Dalton 117. are that the Countrey must answer for the bodies of such offendors Winch. 13. E. 1. ca. 2. 28. Ed. 3. ca. 11. 9. Ibid. Note the party robbed must bring his Action within twenty dayes next after his examination taken before the Iustice of peace 10. Ibid. Also the Iustice of peace must be abiding
be intended of men travailed Travailed men that goe begging through the Countrey after their arrivall 6. Also by a statute made in Ireland in Anno 33. H. 8. ca. 14. 33. H 8. ca. 148 in Ireland It is ordained that where in all places throughout this realme of Ireland Vagabonds and beggers have of long time encreased and daily doe encrease in great and excessive numbers by the occasion of idlenesse mother and root of all vices whereby hath insurged and sprung and daily insueth and springeth continuall thefts murders and sundry other heynous offences and great enormities to the high displeasure of God the inquietation and damage of the Kings people and to marvellous disturbances of the common wealth of this realme and whereas many and sundry good lawes strait statutes and ordinances have beene before this time devised and made as well by the said King H. 8. as also by divers his most noble progenitors Kings of England for the most necessary and due reformation of the premisses yet that notwithstanding the said number of Vagabonds and beggars be not seene in any part to be minished but rather daily augmented and increased into great Routs and companies the Iustices of peace of all and singular the shires within the limits of their Commissions and all other Iustices of peace Mayors Sheriffes bailiffes and other officers of all and every Citty Borrough Ridings or Franchises within the realme of Ireland within the limits of their authoritie shall from time to time as often as need shall require by their discretions divide themselves within the said shires Citties boroughs ridings or Franchises whereof they be Iustices of peace Mayors sheriffes bailiffes or officers and so being divided shall make diligent search and enquirie of all aged poore and impotent persons which live or of necessitie are compelled to live by almes of the charitie of the people that be or shall be hereafter abiding within every hundred rape wapentake Cittie borough parish libertie or Franchises within the limits of their division and after and upon such search made the said Iustices of peace Mayors Sheriffes bailiffes and other Officers that is to say every of them in the limits of their authorities whereunto they are divided shall have power and authoritie by their discretions to enable to begge within such hundred rape or wapentake Citty Towne parish or other limits as they shall appoint such of the impotent persons which they shall finde and thinke most convenient within the limits of their division to live of the charitie and almes of the people and to give in commandement to every such aged and impotent begger by them enabled that none of them shall begge without the limits to them so appointed and shall also register and write the names of every such impotent begger by them appointed in a bill or roll indented the one part thereof to remaine with themselves and the other part by them to be certified before the Iâ—â—tices of peace at the next Sessions after such search had to be holden within the said shires Cities Townes or Franchise there to remaine under the keeping of the Custos Rotulorum and that the said Iustices of peace Mayors Sheriffes bailiffes and other officers that is to say as they be divided shall have power and authoritie to make such and so many seales to be engraved with the names of the hundreds rapes wapentakes Cities Boroughs townes or places within the which they shall appoint and limit every such impotent person to begge and commit the said feales to the custodie of such of them or to the custodie of such a one as they shall thinke convenient and shall make and deliver to every such impotent persons by them enabled to beg a letter containing the name of such impotent person and witnessing that he is authorised to begge and the limits within which he is appointed to begge the same letter to be sealed with such of the said seales as shall be engraved with the names of the limit wherein such impotent person shall be appointed to begge in and to be subscribed with the name of one of the said Iustices or officers aforesaid and if any such impotent person so authorished to begge doe begge in any other place then within such limits that he shall be assigned unto that then the Iustices of peace Maiors Sheriffes Bailiffes Constables and other the Kings officers and ministers shall by their discretions punish all such persons by imprisonment in the stocks by the space of two dayes and two nights giving them onely but bread and water and after that cause every impotent person to be sworne to returne againe without delay to the hundred rape wapentake City Burrough Towne Parish or Franchises where they be authorised to begge in and that no such impotent person as is above said shal begge within any part of this Realme except he be authorised by writing under seale as is abovesaid and if any such impotent person be vagrant and going a begging having no such letter under seale as is above specified that then the Constables and all other inhabitants within such Towne or Parish where such person shall begge shall cause every such begger to be taken and brought to the next Iustice of peace or high Constable of the hundred and thereupon the said Iustice of peace or high Constable shall command the said Constables and other inhabitants of the Towne or Parish which shall bring before him any such begger that they shall strip him naked from the middle upward and cause him to be whipped within the Towne where he was taken or within some other Towne where the same Iustice or high Constable shall appoint if it shall seeme to the discretion of the said Iustice of peace or high Constable that it be convenient so to punish such begger to him brought and if not then to command such beggar to be set in the Stocks in the same Parish where he was taken by the space of three dayes and nights there to have only bread and water and thereupon the said Iustice or high Constable before whom such begger shall be brought shall limit to him a place to begge in and give to him a letter under seale in forme above remembred and sweare him to depart and repaire thither immediately after his punishment to him executed and that if any person or persons being whole and mighty in body and able to labour be taken in begging in any part of this Realme or if any man or woman being whole and mighty in body and able to labour having no land master nor using any lawfull merchandize craft or mysterie whereby he might get his living be vagrant and can give no reckoning how he doth lawfully get his living that then it shall be lawfull to the Constables and all other the Kings officers ministers and subjects of every Towne Parish and Hamlet to arrest the said Vagabonds and idle persons and them bring to any of the Iustices of
send this to the Sessions this shall discharge his bonds without his personall apparance at the Sessions 30. 28. H. 8. Dyer â—o 29. A man being arrested by the Sheriffe upon a capias found sureties for his apparance at the day and after there came a Supersedeas to the Sheriffe and it was moved whether it were necessary for the defendant to appeare or not or that this apparance and surety were discharged by the Supersedeas Lib. Int. 453. and the opinion of that Court was that he ought to appeare for the saving of his bond also the presidents of Entries are that the party bound did shew his Supersedeas in Court and prayed allowance thereof and was thereupon discharged Now concerning the recognisance for the peace CHAP. 58. 1. THis recognisance Recognisance which the Iustice taketh for the keeping of the peace is rather of congruence then by any expresse authority given them Fitz. Na. Br. 82. a. 7. H. 7. 34. 2. And this recognisance for the peace if the Iustice of peace doth take it by force of the writ of supplicavit then he ought to execute it and to doe in all things as the writ directeth him but where such writ prescribeth 〈◊〉 the same c. or such like that resteth in his owne discretion 3. But if he taketh the recog ex officio and by force of the Commission and so is a Iudge not as a minister then it resteth in the discretion of the same Iustice of peace wholly to appoint and allow the number of sureties their sufficiency in lands or goods the summe of money wherein they shall be bound and to limit the time how long the party shall be bound and such other circumstances 7. H. 4. 34. 4. In the booke 7. H. 4. fo 34. you shall finde the principall to be bound in 1000. l. and foure sureties every one of them in one thousand marks before Iustices of peace for the keeping of the peace 5. The Iustice of peace may examine upon their oathes the sureties concerning their sufficiency Br. imp 18. and that seemeth to be the usage in the Courts at Westminster and Master Crompton saith that the Iustices of peace in their Sessions may doe it Cromp. 194. 6. The most usuall manner and safest way for the Iustice of peace is to take two sureties at the least and those subsidie men besides the party himselfe and to bind them by recognisance to the King viz. domino Regi and it must alwayes be for the keeping of the peace Lamb. 104. 7. And yet by the opinion of Master Marrow who was in the time of King H. 7. a Iustice of peace might have taken this surety by a gage pawned to him only but this is not the course at this day but the security ought to be by recognisance 8. Also by his opinion a Iustice of peace might have taken this surety by an obligation made to himselfe by the name of a Iustice of peace but this course is not now in use and the safest way is by recognisance which is the usuall way for via trita is via tuta and to ground his proceeding upon conceits 9. Yet if a Iustice of peace had enjoyned a man upon paine of 20. l. to keepe the peace this had beene nothing worth but in this F.N.B. 81. d. and the former two cases and the like this one general ground or reason may be given for all sc that a man cannot be bound to the King but only by matter of record and therefore such suretie taken by gage or obligation or such enjoyning of the peace seemeth nothing worth to binde the party 10. A Iustice of peace may take a recognisance and thereby may binde the party to keepe the peace for one yeare or for a longer time by his discretion yea he may binde the party during his life upon reasonable cause 11. If the recognisance be made to keepe the peace generally without any day or time limited it shall be construed to bee during the parties life 12. A Iustice of peace intending to take a recognisance for the peace and yet maketh no mention therein Dalton 155. nor in the condition thereof that it is for the preservation of the peace it seemeth to bee voide as being taken coram non judice for a Iustice of Peace hath no authoritie to take a recognisance generally but for matters concerning his office specially 13. If the Recognisance be that the party bound shall not beat nor maime A. yet it is not good Ibid. because it ought to bee for the keeping of the peace generally and the peace may bee broken by burning the house of A. or the like 14. If the Recognisance doe not limit any time of apparance but be generally to keepe the peace yet it is good for the time of apparance is referred to the discretion of the Iustice and the chiefe scope is the keeping of the peace by Master Marrow 15. Also by his opinion if the Recognisance doe limit a time of apparance but therein is no person named before whom the party so found shall appeare then may he appeare where he will before that Iustice of peace which tooke the recognisance ibidem but in that case I thinke the Condition is voide by reason of the incertainty 16. But in the two last cases if a recognisance should be taken in such maner at this day I should thinke it safe for the party to appeare at the next Sessions for the peace and there to record his apparance but to avoide these doubts let the Iustice of peace expresse that the party shall appeare before his Majesties Iustices of peace at the next generall Sessions of the peace to be holden in that County or at the next generall Assise and gaole delivery before his Majesties Iustices of gaole delivery in that County and in so doing these scruples are avoyded 17. If the Recognisance be to appeare at any other Sessions after and not at the next Sessions yet the Recognisance is good Crom. 141. P. Iust 106. and yet by the statute of 3. H. 7. cap. 1. It is enacted that every Recognisance taken for the peace by the Iustice of peace ex officio shall bee certified sc sent or brought in at the next Sessions of the peace and there delivered to the Custos Rotulorum or else the Iustice of peace is fineable but it doth not therefore follow that every Recognisance taken for the peace ought to be to appeare at the next Sessions but that it ought to be brought in and then the party may be called at the time expressed in the Recognisance and not before 18. If the Recognisance be in Twenty pounds to be levied of his lands only or of his goods only yet it is good and these words only may seeme voide for the acknowledgement of the Recognisance before a competent Iudge both maketh it a debt Dalton 1 55. and implieth the ordinary
meanes of Law to come to it 19. If the Recognisance be to keep the peace towards the King and all his people but not towards any person certaine yet it is good 20. So if the Recognisance be to keepe the peace towards A. only F.N.B. 80. g. Cromp. 141. it is good or to keepe the peace towards A. and his servants without being bound toward the King and all his Subjects it is good enough 21. But the best forme is to bind the party to keepe the peace towards the King and all his people for first the words of the Commission are to finde suretie erga nos populum nostrum and againe the common usage is so and besides it may prove dangerous to the party who hath cause to crave this surety of the peace for the other party who shall give just cause to crave this surety against him because he will not be bound to the peace towards him that prayeth it he will perhaps pray to bind himselfe to the peace to A. who is his Companion and then if the Iustice of peace shall so bind him then may he and A. goe to another Iustice of peace and that peradventure within one weeke and there A. may release him of the peace and so the party that first prayed the peace trusting that hee is still bound may be after beaten maimed or slaine by him or by his procurement 22. So then though the Recognisance being taken in any maner or sort aforesaid may prove sufficient to bind the party to the King yet peradventure it will not excuse the Iustice of peace from blame and therefore it is safest for the Iustice of peace to follow the received forme 23. The forme of the Recognisance for the Peace you shall see postea tit Warrants and Presidents 24. The Recognisance for the peace being thus taken if it were by a writ of supplicavit the Iustice ought to returne the writ and to certifie under his Seale his doing therein into the Court from whence the supplicavit proceeded and he may also send such Recognisance so taken by him with this certificate or else he may keepe the Recognisance in his hands still untill he shall receive a Certiorari out of the Chancerie directed to him for removing of this Recognisance 25. But if this recognisance for the peace were taken by the Iustice of peace ex officio 3. H. 7. ca. 1. P. Iust 106. then the Iustice of peace ought to certifie send or bring the Recognisance to the next Sessions of the peace so that the party bound may be called thereupon and that if the party make default of apparance the same default may be then recorded and the recog with the record of such default shall be estreated into the Exchequer 3. H. 7. ca 1. Recog forf that from thence processe may goe out against the party and so ought it to be if it be presented that the party hath forfeited his recognisance by breach of the peace 26. If the Iustice of peace shall not certifie such recog at the next Sessions by the said stat 3. H. 7. ca. 1. he is to be fined at the discretion of the Court and yet see Brooke tit Peace 11. that the Iustice shall forfeit 10. l. if hee shall not certifie the Recog of the peace at the next Sessions but Brooke there mentioneth the stat 3. H. 7. ca. 3. which stat of 3. H. 7. ca. 3. was only for bailement of prisoners and certifying the same and not for Bonds of the peace 27. Cromp. 169. If he which demanded the peace shall release the peace before the next Sessions yet the Iustice of peace ought to certifie the Recog together with the Release for peradventure it was forfeited before the Release made 28. 2. H. 7. 1. â—â—â— 11. Fit N. B. 8. 1. Recognisance removed Also he that demandeth this suretie may by a Certiorari remove such Recog into the Chancerie before the Iustice hath certified the same to the Sessions and then the Iustice shall be excused for not certifying the same to the Sessions 29. If the Iustice of peace were deceived in the sufficiency of the sureties Dalton 157. the same Iustice of peace or any other Iustice of peace may afterwards compell the party to finde and put in more sufficient surety and may take a new Recog for the same for that the precept is ad inveniendum sufficientem securitatem but if the sureties dye the party principall shall not be compelled to find new sureties What thing shall discharge this Recognisance of the peace or the party of his apparance at the Sessions CHAP. 59. 1. A Supersedeas out of the Chancerie c. will not discharge the party of his apparance but he ought to appeare and shew the Supersedeas in Court and thereupon he shall be discharged as is before declared in this Title 2. He that is bound to the peace and to appeare at a certaine day 30. H. 6. 26. he must appeare at the day and record his apparance Br. sâ—rety â—â— although he who craved the peace commeth not in to desire that it may be continued otherwise the recog shall be forfeited 3. And if a man be bound to keepe the peace towards the King and all his people but not towards any certaine person and to appeare at such a Sessions the Court at that Sessions may make Proclamation c. and if no person commeth to demand the peace against him then the Court may discharge him but if a man be bound as aforesaid and especially to keepe the peace towards A. there though A. commeth not in to desire that the peace may be continued yet the Court by their discretion shall doe well to bind him over till the next Sessions and that may be to keepe the peace against A. onely if they shall thinke good for it may be that A. who first craved the peace is sicke or otherwise letted so as he cannot come to that Sessions to demand the continuance of the peace 4. If the Iustice of peace shall not certifie the recog to the Sessions yet the party ought to appeare and to record his apparance for if a Sheriffe arrest one upon a capias and take bonds for his apparance at the day the writ is returneable and the Sheriffe returnes not his writ c. yet the party must appeare to save his bond 18. Ed. 4. 18. Cromp. 134. 5. If the party that is bound to appeare be so sicke as that he cannot appeare nor by any meanes travell at the day upon due proofe of such his sickenesse the Iustices of peace shall forbeare to certifie or record such default for impotentia in this and such like cases by the hand of God excusat legem Cromp. 144. 6. If the husband be bound that he and his wife shall appeare at such a Sessions and that they shall keepe the peace in the meane time c. and at the day
the request of one and for the preservation of the peace chiefely towards one 11. Also this surety of good abearing is most commonly granted either in open Sessions of the peace or out of the Sessions by two or three Iustices of peace whereas that of the peace is usually granted by one Iustice of peace and out of Sessions 12. And yet by the words of the Commission 14. H. 7. 8. â— as also by the opinion of the learned any one Iustice of peace alone and out of the Sessions may grant this surety of the good abearing and that either by his owne discretion or upon the complaint of others as they may that of the peace 13. But this is not usuall unlesse it be to prevent some great and sudden danger especially against a man that is of any good estate carriage or report 14. Also this surety may be granted at the suit of one person 15. But the more difficult and dangerous this surety is to the party bound the more regard there ought to be taken in the granting of it and therefore it shall be good discretion in the Iustices of peace that they doe not command or grant it but either upon sufficient cause seene to themselves or upon the suit and complaint of diverse others as aforesaid and the same very honest and credible persons 16. Also this surety of good abearing is often taken by the Iustice of peace by vertue of a speciall writ in nature of a supplicavit Supplicavit directed out of the Chancery or Kings Bench and then the Iustice of peace upon such a writ is to proceed as a minister as in case for the P. mutatis mutandis vide ante tit Suretie for the peace and supplicavit 17. Master Dalton affirmeth that he once received out of the Chancery Dalton p. 170. such a writ directed custodibus pacis in comit Cantabrigiae ac vicecomiti ejusdem comit eorum cuilibet and grounded upon the statute of 34. Ed. 3. commanding them and every of them to take foure sureties besides the party whereof every one of them should have lands of such a yearely value or goods of such a value and to bind the sureties every of them in such a summe quod ipse boni gestus de cetero erit erga nos cunctum populum nostrum quod nihil in contrarium statuti pradicti attemptabit c. and therein he proceeded as a minister onely 18. The party against whom such a supplicavit for the good behaviour shall be granted out before he be attached thereupon may goe or send up and give sureties in the Chancery as here before is said for the peace and thereupon he shall have a supersedeas out of that Court directed to the Iustices of peace and Sheriffe and to every of them commanding every of them to surcease to arrest the said party or to doe any other execution of the said writ of supplicavit and that if before the comming of the said supersedeas they have taken any such security for the good behaviour of the party that then they presently release the party of such surety found by him the former writ of supplicavit notwithstanding For what cause this suretie of the good behaviour shall be granted CHAP. 63. 1. IT is chiefely to be granted by the Iustices of peace out of their Sessions in these cases following viz. against common Barretors common Quarrellers and common breakers or perturbers of the peace 2. Also it is grantable against Rioters see hereof before tit Riots 3. Also against such as shall lye in wait to rob or shall be suspected to lye in wait to rob or shall assault P. Iustice 18. or attempt to rob another or shall put passengers by the way in feare or perill 4. Also against such as be generally feared or suspected to be Robbers by the high way 5. Also against such as are like to commit murder homicide Cromp. 135. b. or other grievances to any of the Kings subjects in their bodies 6. Also against such as shall practise to poyson another 7. One had bought Ratsbane and mingled the same with corne and then wilfully did cast the same amongst his neighbours poultry Dalton p. 171. whereby most of them dyed and this was holden to be a good cause to bind the offendor to the good behaviour 8. P. Iustice 18. 34. Ed. 3. ca. 1. It is also grantable against such as be of evill name and fame generally but more especially against all such as are defamed and detected in any of these partitulars following 9. 13. H. 7. 10. First against all those that are greatly defamed for resorting to houses suspected to maintaine adultery or incontinence 10. Also against the maintainers of houses commonly suspected to be houses of common Bawdrie 11. Cromp. 140. One that had such lewd women found in his house was bound to his good behaviour by Wray Anderson and Manwood 28. El. 12. Also against common whoremongers and common whores 1. H. 7. 7. 27. H. 8. 14. for by good opinion Avowtry or Bawdry is an offence temporall aswell as spirituall and is against the peace of the land 13. Upon information given to a Constable 13. H. 10 Br. Traverse 432. that a man and a woman be in adulterie or fornication together or that a man and a woman of an evill report are gone to a suspected house together in the night the officer may take company with him and if he find them so he may carry them to prison or he may carry them before a Iustice of peace to find sureties for the good behaviour 14. Also against night-walkers that be suspected to be pilferers or otherwise like to disturbe the peace or that be persons of evill behaviour or of evill fame or report generally or that shall keep company with any such or with any other suspitious persons in the night 13. H. 7. 10. 15. Against such as be Evesdroppers that is to say that in the night shal harken neare the wals of mens houses to heare what is spoken within and to make use thereof to breed discord or dissention amongst neighbours 16. Against Night-walkers that shall cast mens gates or Carts into ponds c. or shall commit other misdemeanors or outrages in the night time 17. Against suspected persons who live idly and yet fare well or are well apparelled having nothing whereon to live except upon examination they shall give accompt of such their living 18. Against common Haunters of Alehouses or Tavernes but more specially if they have not whereon to live and also against common Drunkards and Prophaners of the Sabbath and against common Gamesters and Keepers of common gaming houses whereby mens servants and children are drawne to Unthriftinesse and also against Alehouse-keepers and Inne-keepers that maintaine misorder in their houses and especially on the Sabboth day 19. Against such as shall use to goe in the message of Theeves See stat 18.
Co. 4. 47. dictum veritatis and a matter of record ought to set forth all the truth that by Law is requisite for de non apparentibus et non existentibus eadem est ratio and every part of the endictment materiall ought to be found by the oath of the Iurors and is not to be supplyed by averment Processe 1. The forme of Processe upon indictments of Trespasse which also the Iustices of peace out of sessions may in some few cases make out against offendors as it seemeth 2. As the authority of making processe upon endictments is given by expresse words in the Commission to the Iustices of peace in their Sessions so is it given by expresse words in some statutes to the Iustices of peace yea to one Iustice of peace out of their sessions to make processe upon endictments found before them against offendors or upon information against them as if they were endicted of Trespasse in Sessions as in cases of forceible Entrie c. 3. Also in some other cases and by some other statutes this authority of making out processe against offendors by the Iustice of peace out of their Sessions seemeth to be implyed of congruence or rather of necessity as where any statute doth give power and authority to the Iustices or Iustice of peace out of their Sessions to enquire heare and determine as hic tit Riots tit Tyle and tit Weights in these and in all other such cases where the Iustice may enquire heare and determine there after indictment or presentment of the offence the said Iustice may make out processe against such offendors to cause the offendors to come and answere for unlesse the offendors doe come in either gratis or by processe the Iustices cannot proceed to heare and determine againe in the former cases of Tyle and Weights as also in all other cases where any statute doth give power to the Iustices of peace out of their Sessions to heare and determine either upon the confession of the offendors or upon examination of witnesses in all such cases it seemeth the Iustices of peace may grant out their warrant against such offendors to appeare before them to answere to their said offences and thereupon may proceed to examine heare and determine the offence as being convict thereof upon such confession or examination without any indictment or processe Now these processe may be as followeth First if the offendor be absent a venire facias A Venire facias shall be awarded by the Iustice or Iustices of peace under his or their owne teste and if thereupon the offendor be returned sufficient and maketh default then a distringas Distringas or capias shall be awarded which distringas shall goe forth infinite till the offendor come in but if a nihil habet c. be at the first returned then after the venire facias first a capias then an alias and after a pluries shall goe forth and after that an exigent till the party be taken or yeild himselfe or else be outlawed And these are the ordinary processe upon all indictments of trespasse against the peace or of other offences against penall statutes not being felonies or a greater offence but this processe is commonly grounded upon an endictment and is onely to cause the offendor to come in and to make his answere and therefore if the offendor be present and confesse such indictment information or offence then needeth there no processe at all for he shall be committed forthwith to prison there to remaine till he hath payed his fyne or given sureties for it 1. H. 7. 20. Br. Imprisonment 100. Also these processe shall be alwayes directed to the Sheriffe who is the immediate minister and officer of the King to execute all processe except the Sheriffe himselfe or his officers be parties but if the Iustice of peace be to grant out processe against the Sheriffe under-sheriffe or other officers offending contrary to the statute 8. H. 6. ca. 9. It seemeth such processe shall be directed to the Coroners of the County and shall be served by them and so are diverse bookes as 2. H. 6. fo 12. 8. H. 6. fo 30. 9. H. 6. 11. and 18. Ed. 4. fo 7. and others and so also the oath of the Iustice of peace seemeth to bind them Note also that this Processe ought alwaies to be made in the name of the King and for that the King is a party Br. franchise 18. it must also be with a non omittas propter aliquam libertatem c. but the Teste thereof may be under the name of the Iustice of peace If the offendour be within any liberty or Franchise yet the Sheriffe is to enter the Franchise and to execute the Processe himselfe and not to write to the Bailiffe of the Franchise because the King is a party see 41. Assise p. 17. Br. Franch 18. 31. The formes of these Processe to be made by the Iustice of Peace out of the Sessions seeme to be as followeth The Venire facias thus Iacobus Dei gratia Angliae Scotiae Franciae Hiberniae Rex Fidei Defensor c. vicecom Com. Dublin salut precipimus tibi quod non omittas propter aliquam libertatem in balliva tua quin venire facias A.B. de C. in dicto Com. tuo Yeoman coram R. M. Milite M. D. armigero duobus Iusticiar nostr ad pacem conservand nec non ad diversa felonias transgressiones alia malefacta in dicto Com. perpetrat audiend terminand assignat apud Killmainham in Com. tuo _____ die Maij proxim futurum ad respondend nobis super quibusdam articulis super ipsum A.B. presentat habeas ibi tunc hoc praeceptum Teste R.M. apud Killmainham die c. The Distringas thus Iacobus Dei gratia Angliae Scotiae Franciae Hiberniae Rex fidei Defensor c. vicecom Civitatis Dublin salut praecipimus tibi quod non omittas propter aliquam libertatem in balliva tua quin eam ingrediaris distringas A.B. de C. in Com. tuo Yeoman per omnia terras tenementa c. et quod de exitibus eorum respondeas c. et quod habeas corpus ejus coram c. Iustic c. ad respondend c. Teste c. The writ of Capias thus Iacobus Dei gratia Angliae c. vicecom Com. Dublin salutem praecipimus quod non omittas propter aliquam libertatem in balliva tua quin cam ingrediaris capias I. D. de A. in Com. tuo Yeoman c. si inventus fuerit in balliva tua eum solvo custod facias Ita quod habeas corpus ejus coram R.M. Milite M. D. Armigero duobus Iusticiar nostr ad pacem conservandam necnon ad diversa felonias transgressiones alia malefacta in eodem Com. tuo perpetrata audiend et terminand assign apud L. in Com. tuo die Martis proxim futur ad respondend
nobis de diversis transgressionibus contempt offens de quibus ipse indictatus existit habeas ibi tunc hoc breve Teste R.M. apud Lynton sexto die Ian. c. Anno regni nostri c. Ad quem diem Willielmus Wendy Miles vicecom predict retorn quod ipse non est inventus in balliva sua et ipse non venit ideo praeceptum est sicut alias c. The Capias alias Iacobus c. vic c. praecipimus tibi sicut alias tibi praecipimus quod non omittas c. verbatim ut supra Ad quem diem c. ut supra ipse non venit ideò preceptam est vicecom sicut pluries c. The party may appeare gratis and so avoide the Attachment or arresting of his body and that is the cause that the Entry is made ipse non venit The Pluries capias Iacobus c. vicecom c. salut precipimus tibi sicut pluries preciperimus quod non omittas c. ut supra Ad quem diem Willielmus Wendy Mil. vicecom predict retur quod predict C.D. non est inventus c. ipse non venit Ideò preceptum est quod exigi facias c. The Exigent Iacobus c. vicecom c. salut praecipimus tibi quod exigi fac C.D. de A. in Com. tuo Yeoman quousque secundum legem consuetudinem regni nostri Angliae utlagatur si non comparuit si compar tunc cum capias salvo custodiri fac Ita quod habeas corpus ejus coram R.M. Mil. et M.D. ar duobus Iusticiar ad pacem nostram conservand nec non ad diversa felonias transgress et alia malefacta in Com. tuo perpetrat audiend et terminand assig apud L. in Com. tuo _____ die Septembris prox futur ad respondendum nobis de diversis transgr contempt et offensis de quibus ipse indictatus existit et habeas ibi tunc hoc breve Teste R. M. apud L. octavo die Septembris Anno Regni nostri c. Ad quem diem Willielmus Wendey miles vicecom predict retorn quod ad Com. tentum apud Killmainham die _____ Anno regni Domini regis nunc c. et sic ad quatuor alios Com. tunc prox sequent ibid. tent predict C. D. exactus fuit et non comparuit Ideò utlagatus fuit These Processe are sent forth to the end that either the party shall come or be brought in to make his answere Dalton 369. and to bee justiced by the Law or else that for his contumacy he shall be outlawed and so to be deprived of the benefit of law but the power of the Iustice of peace endeth with the Outlawry for they can make no capias utlagatum but must certifie the Outlawry into the Kings bench Also all such Processe aswell of capias c. as of Outlawry may be stayed by a supersedeas Dalton 369. issuing from other Iustices of peace out of Sessions testifying that the party hath come before them and hath found sureties for his appearance to answer to the endictment or to pay his fyne c. Note that this authority of the Iustice of Peace in sending out these Processe being out of their sessions is beyond the bounds of their Commission and againe by the Commission The Commission 14. H. 7 8. Br. peace 6. 7. one Iust of Peace alone cannot grant a capias nor other Processe but two Iustices of Peace at the least must doe it and that sitting in the Court and in their Sessions and yet neverthelesse in these former cases the statutes expressely or by necessary implication giving such authority to the Iustices of Peace or to any Iustice alone and that out of Sessions are a sufficient warrant and Commission to the Iustice of peace as it seemeth Traverse After that such Processe Dalton 369. or any other Processe ad respondend be awarded against the party it seemeth he may come and yeeld himselfe to pay his fyne or else he may offer his Traverse to the indictment found against him before the Iustice of Peace and the Iustice ought to allow him his Traverse against it which traverse is to take issue upon the chiefe matter of the indictment or to deny the point of the indictment But although the Iustices of Peace have power in some cases as aforesaid out of their generall Sessions to take indictments and after such indictment found to award processe ad respon against offendors and to heare and determine thereof and the offendors also have liberty to come in and to speake and answere for themselves and may offer their Traverse and that the Iustices of peace are to allow of and to receive the same yet quaere whether the Iustices of peace out of their generall Sessions may try such traverse being tendred to them without which tryall all the rest may seeme idle or that upon the traverse tendred they must certifie or send the Inquisition or indictment so found before them into the Kings Bench or unto their quarter or generall Sessions of the peace there to be tryed and determined howsoever it is safest after such traverse tendred to certifie or deliver such Inquisition or indictment into the Kings Bench or to their next quarter Sessions and so to referre the tryall of the traverse and further proceedings therein to them Certiorari The returne of a Certiorari sent to remove an endictment may be thus First upon the backside of the writ of Certiorari endorse these or the like words Executio istius brevis patet in quadam scedula eidem brevi annexa And that schedule may be thus Ego Mich. Dalton unus Custod pacis ac Iusticiar Dom. Regis ad pacem in dict Com. Dublin conservand necnon ad diversa felonias transgr et alia malefacta in eodem Com. perpetrata audiend et terminan assig virtute istius brevis mihi deliberati indictam illud unde in dicto brevi fit mentio una cum omnibus idem indictamentum tangent in Cancellar dicti Domini Regis distincte et apertè sub sigillo meo certifico In cujus rei testimonium ego prefatus M.D. his presentibus sigillum meum apposui Datum _____ die mensis _____ Anno Regni c. Then take the record of the indictment and close it within the schedule and seale and send them up both together Now to shew what is further meet for the Iustices of peace to know concerning this writ of Certiorari and their certifying or returne thereof After an endictment found before Iust of peace a Certiorari is procured by the meanes of some party indicted or grieved thereby to remove such indictment from the said Iust and to convey it to Iust of a higher authority to the end the party may either traverse such endictment above or may there avoyd it for insufficiency of forme or matter Fâ—tz Na. Br. â—0 245. And this Certiorari is the
without a Certiorari S. 1 2 3. 2. When the Iustices of peace are to certifie without Certiorari S. 3 4 5. 3. Of the force of the Certiorari S. 6 7 8. Ca. 20. Matters by severall statutes especially appointed to bee done and executed in the quarter-Quarter-sessions 1. What Sessions is and ought to be called a Quarter-Sessions S. 1 2 3. 2. At what time the Quarter-Sessions ought to be holden S. 4 5 6 7 8. 3. What things are appropriat to the quarter Sessions only S. 9 10 11 12 13 14 15 16 17 18 19 20 21. Ca. 21. Of the speciall Sessions of the peace 1. How many Iustices are requisite for the holding of it and their authoritie to hold the same S. 1. 2. The occasions for holding the same S. 2. 3. What matters may be handled therein S. 2 3. 4. The forme of the precept for summoning the same S. 4. Ca. 22. Of Rewards Punishments due to the Iustices of Peace in respect of their Sessions 1. How long the Iustices are to continue the holding of the quarter-Quarter-Sessions and what wages they are to have for the same S. 1 2. 2. How many of the Iustices shall have wages and who shall be excluded S. 3 4 5 6. 3. In what Cases the Iustices shall receive no punishment for errours committed by them S. 7 10. 4. In what Cases the Iustices are to be punished for their misdoings S. 8 9. THE SECOND BOOKE The Description of the generall Sessions of the Iustices of Peace CHAP. I. 1 I Have so largely in the former booke set forth the power and authority of one or more Iustices of peace out of the generall Sessions that I shall not need to be long in setting forth their power and authority and the formes of their proceedings in their generall Sessions 2. The generall Sessions of the peace is an assembly or a meeting of two or more Iustices of peace whereof one must be of the Quorum for the executing of their generall authority 3. This generall Sessions of the peace is grounded chiefely upon the words of the second Assignavimus in the Commission Lamb. li. 4. fo 379. the which being vos et quoslibet duos vel plures vestrum quorum c. doe very necessarily require the presence of one of the Quorum and these generall Sessions by the statute of 2. H. 5. ca. 4. are to be holden at foure times in the yeare viz. in the first weeke after the feast of Saint Michael the Archangell the first weeke after the Epiphany the first weeke after the Easter weeke and the first weeke after the translation of Saint Thomas the Martyr which is the third of Iuly or oftner if need require 4. And these three things namely to enquire Lamb. li. 4. fo 379. heare and determine doe in effect comprehend whatsoever belongeth to the generall Sessions so that every thing whereof I shall hereafter intreat will concerne either the information of the Iustices by enquiry or otherwise the hearing and triall of the cause it selfe or the judgement and execution which is the determining given and done upon it Who shall appoint the Sessions of the peace and how and where CHAP. 2. 1. THe Iustices of the peace doe at their Sessions take knowledge of causes within their Iurisdiction either by the oath of Enquirors Lambard li. 4. fo 380. or by the Presentment or Declaration of other men and this inquiry is first prepared by the apparance of the officers and Countrey and by the Articles given in charge and then performed by the presentment or indictment of them that had the charge to make it 2. Now albeit that these Sessions be commonly and most orderly summoned by a precept in writing yet is it not altogether of necessity for the making of a lawfull Sessions to have it so for if competent Iustices of the peace doe get men to serve and thereupon doe hold a Session without any precept before directed Lamb. li. 4. fo 380. all presentments made before them by twelve lawfull men shall be of force in Law but no man shall loose any thing for his default of apparance there because no man had notice of their sitting Lamb. li. 4. fo 381. 3. Neverthelesse because the common and more allowable maner is to call the officers and County together for this service by a precept to the Sheriffe wherein both the disposition of the Iust is notified for the holding of a Session and the service and attendance of those others is commanded to be thereat It will be needfull to set forth the forme thereof which may be thus Precept to summon the Sessions of the peace Lamb. li. 4. fo 381. 4. Edwardus Hoby Miles Radulphus Hayman Armiger duo Iusticiar domini reg ad pacem in Comitatu Dublin conservand necnon ad diversa felonias transgressiones alia malefacta in dicto Comitat. perpetrata audiendum terminandum assignatorum vicecomiti ejusdem comitatus salutem Ex parte dicti Domini Regis tibi praecipimus quod non omittas propter aliquam libertatem in balliva tua quin eam ingrediaris venire facias coram nobis vel sociis nostris Iusticiariis pacis c. tali die c. prox futuro apud Killmainham in Comitatu predicto tam 24. probos legales homines de qualibet Baronia in balliva tua quam 24. milites alios probos legales homines de corpore comitatus tui tam infra libertates quam extra quorum quilibet habeat 40. s. redditus terrarum tenementorum liber per ann ad minùs ad inquirendum tunc ibidem super hiis quae ex parte dicti domini Regis eis injungentur scire facias etiam omnibus Coronatoribus Comitatus tui Seneschallis Constabulariis Subconstabulariis Ballivis libertatum infra baronias libertates predict quod sint tunc ibi ad faciendum perimplendum ea quae ratione officiorum suorum sunt facienda proclamari praeterea facias per totam ballivam tuam in locis idoneis predictam sessionem pacis ad diem locum predictum fore tenend Et tu ipse tunc sis ibidem ad faciend exercend ea quae ad officium tuum pertinent Et habeas ibi tunc tam nomina Iuratorum Coronatorum Seneschallorum Constabulariorum Subconstabulariorum Ballivorum pred quà m hoc preceptum Datum sub sigillis nostris apud S. in Com. predict die Martij Anno Regni dicti Domini nostri Regis Caroli dei gratia c. 5. This precept may be made as here it is by any two Iustices The number of the Iustices of the peace so that the one of them be of the Quorum for two such may hold a Session of the peace as it doth plainely appeare by the Commission Lamb. li. 4. fo 382. and therefore as Master Marrow saith it sufficeth not to have it run under the name of the
Custos Rotulorum alone seeing that he hath no more authority in this behalfe then any one of his fellowes hath for the words of the mandamus in the Commission to the Sheriffe be coram nobis c. venire facias tot tales c. yea if two such Iustices make a precept for a Session of the peace all their fellow Iustices cannot discharge it by their Supersedeas but a Supersedeas out of the Chancery may discharge it 6. Lamb. li. 4. fo 383. And if one Iustice of peace alone will take upon him to hold a Sessions of the peace that was lawfully summoned by him and another such Iustice and will make the stile of the Session in the names of himselfe and the other all presentments so taken before him may be avoided but if the Sessions be in truth holden by two sufficient Iustices only and the stile or title thereof be made in the names of three then all the presentments before them shall stand good for it will not helpe the party to say that one of the three was not there when it shall appeare that two of them the one being of the Quorum were present which will suffice by Marrow 7. But the place The place of holding them is arbitrable and at the pleasure of the Iustices themselves so that it be meet for accesse and although the precept doe appoint the Sessions to bee holden in some one Towne by name Lamb. li. 4. fo 383. yet may the Iustices keepe it in any other Towne and all the presentments shall be good that shall be taken where they hold it but then againe no amerciament can be set upon any man for his default of appearance because hee had no warning of it Marr. 8. Lamb. li. 4. fo 384. So if two such Iustices make a precept for a Session to be holden in one Towne and two other Iustices make another precept for another Session to be holden at another Towne or in any other part of the said Towne the same day then the presentments taken before either of them shall be good Marr. and then it seemeth that he that serveth at the one Session as a Iuror or officer shall bee excused for his default at the other because as they both be the Kings Courts and of equall authority so hee cannot present himselfe in both of them at once What persons ought to appeare at the Sessions and therein of the Custos Rotulorum the Records of the Sessions and the Clerke of the peace and how the Iurors ought to be qualified and ordered and of the priviledge of the Sessions CHAP. 3. 1. FOr the better preparation towards this Enquirie let us peruse the persons that are to attend and doe service at the Sessions 2. The Iustices of the Peace bee so necessary The Iustices and their equality as without them though all others should appeare no Session can bee kept and yet if any of them be absent Lamb. li. 4. fo 385. their fellow Iustices cannot amerce them as the Iust of Assise may doe for their absence at the gaole delivery for inter pares non est potestas and the authority of all the Iustices of the peace at the Sessions is equall so that like power hath he which is not of the Quorum with him that is except it be in speciall cases set forth in the Commission and statutes and therefore it was holden 3. H. 7. Fitz. tit Iustice of peace 3. that if one which is not of the Quorum will be so bold as to rebuke one that is of the Quorum hee and his companions may not commit him to prison for it neither will any discreet Iustice take liberty hereby to carpe at or scorne any of his Collegues because hee is equall with them but will rather draw from thence a lesson to use them with all lenity and modestie seeing that in authority they be not inferior to him Lamb. li. 4. fo 386. 3. And albeit the power of these Iustices be joint at the Sessions yet to some purpose each one hath a distinct power by himselfe also for if one of them sitting in this Iudiciall place shall see a Riot he may cause the parties to be arrested and may also record the Riot whereby they shall be so concluded as they shall have none answere to it Fitzherbert tit Iustice del peace 9. 4. But two sorts of men there are that especially owe their ordinary attendance at the Sessions that is to say the officers or ministers of the Court and the Iurors of the County 5. Amongst the officers the Custos Rotulorum The Custos Rotulorum hath worthily the first place both for that he is alwayes a Iustice of the Quorum in the Commission Lamb. li. 4. fo 387. and amongst them of the Quorum a man for the most part especially picked out either for wisedome countenance or credit and yet in this behalfe he beareth the person of an officer and ought to attend by himselfe or his Deputy and as he is an officer he may be fyned for his neglect 6. For the words in the Commission be to him by his proper name quod ad dies et loca predicta brevia precepta processus et indictamenta predicta coram te Who shall keepe the Commission of the peace et dict socijs tuis venire facias Whereas untill the 14. yeare of the Raigne of King Richard the second that charge was generall to all the Iustices and not speciall to any one person of the Commission 9. E. 4. fo 2. 10. H. 7. fo 7. 7. This man as his very name declareth hath the custody of the Rolls or Records of the Sessions of the peace and of the Commission of the peace it selfe 8. But under the name of the Records of the Sessions of the peace The Records of the peace Lamb. li. 4. fo 388. I doe not comprehend all manner of Records concerning the peace but those onely which ought to be at the Sessions as Bils Plaints Informations Indictments Presentments the Rolls of processes Trials Iudgements Executions and all other Acts of the Sessions of the peace themselves and furthermore the ingrossement of the Rates of servants wages all Recognisances of the peace and good Abearing Recognisances concerning Treasons Felonies and such like as ought to be certified or brought to the Sessions of the peace must be numbred amongst the Records of the Sessions of the peace for of all these there may be use in the Sessions and therefore the Custos Rotulorum or some for him ought to be ready there to shew them 9. For which end it is meet that howsoever those Records have heretofore beene suffered to lye in the hands of the Clearke of the peace and by the death and remove of him have beene to seeke yet now the inconveniency being found and the Records themselves being drawne to greater bulke the same should be lodged in some
speciall and proper Roome under safe custody and not without an Inventorie or Register indented whereof the one part to remaine with the Custos Rotulorum and the other with the keeper of them 10. Lamb. li. 4. fo 389. Although it were before time at the liberty of a Iustice of peace to certifie a Recognisance of the peace to the Custos Rotulorum as you may see in 2. H. 7. 1. Yet now by the statute of 3. H. 7. ca. 1. he ought to certifie send or bring it to the next generall Sessions of the peace that the party may be called and to the end also that his default if he make any may be recorded and by such Record of his default he is concluded to say that he appeared there 11. As for precepts for surety of the peace the speciall Records for conviction of forceible Entries Riots and such like as be made out of the Sessions of the peace by particular Iustices and be to remaine with themselves and not appointed to be certifyed thither I cannot reckon them in the number of the Records of the Sessions of the peace no more then I may well doe the Inrollments of bargaines and sales and such other Records lying in the charge of the Custos Rotulorum or Clearke of the peace 12. And now as this man is by name and office keeper of the Records of the peace so would it not a litle amend the service if he were indeed also carefull for the due preservation of them and would not loosely leave them as commonly it is found to the onely custody of the Clearke of the peace without having any Register of their number and sorts and without appointing any convenient place certaine for the more ready search and safe bestowing of them whereby it falleth out very often that after the death of such a Clearke these Records are hardly recovered and that by peece meale from his widdow servants or executors who at their pleasure may embezell misuse or conceale what they will the which how farre it may reach to the losse of his Majestie in his escheats fynes and forfeits royall and to the hurt of his subjects aswell in their purchases of lands the Inrollments whereof also are not alwayes orderly disgested as in their goods and towards their persons by the filching of Bonds Endictments or Processes I leave to be debated and decided in the Court of their owne consciences that take this charge upon them 13. The Clearke of the peace Clerke of the peace oweth his attendance also at the Sessions for he readeth the indictments and serveth the Court he inrolleth the Acts of the Sessions and draweth the processe he must Record the Proclamations of rates for servants wages and many other things 14. All which things he cannot doe if he be not present so that he is an officer of this Court and is the Clearke to the Iustices as the statute of 12. R. 2. ca. 10. nameth him and not as Master Marrow thought the Clearke of the Custos Rotulorum 15. You may reade also in 2. H. 7. that if a Recognisance of the peace be brought in to the Custos Rotulorum and the party grieved will not sue forward then the Clearke of the peace who is the Clearke and Atturney of the King saith that booke shall call upon it for the Kings advantage 16. Furthermore the Coroners The Coroners as the common forme of the precept sheweth ought to be present at the Sessions because the Coroners be parties to the Exigents and the Iudges of the utlary howbeit they are besides that Conservators of the peace also and may in some cases commit men to prison and therefore ought to be at the Sessions to object against them 17. The Seriffe The Sheriffe in like manner ought to attend at the Sessions for the double duty that he beareth the one as Sheriffe to returne the precept to take the charge of prisoners and so to serve the Court otherwise as he hath in charge by the mandamus that is mentioned in the Commission the other because he also hath care and charge of the peace 18. The Bailiffes of Franchises and the Constables Bailiffes and Constables of Baronies are to serve here the one as Ministers and the other as Iurors and therefore ought to give their attendance 19. And every of those may be amerced if they make default 20. But especially here ought to appeare such Iurors as be returned by the Sheriffe and warned by his Bailiffes whether it be for enquiry or tryall Iurors for enquâ—ry and tryall and in this behalfe both the Commission the common forme of the precept and the Law it selfe in 11. H. 4. cap. 9. willeth that they should be probi legales homines 21. For if any of them be discredited in Law as by attainder in conspiracy attaint decies tantum subornation of perjury concealement or such like they be not probi and their presentment will be voyd unlesse there be twelve besides them that are not so blemished 22. Againe if they be outlawed abjured condemned in a praemunire or attainted of Treason Felony or such like then be they not legales and their presentments are meerely voyd also as it may be gathered upon the case in 11. H. 4. 41. 23. And women Infants under 21. yeares of age Aliens and such as be within orders of the Ministery or Clergy cannot be impanelled amongst others Marrow 24. Generally also Lamb. li. 4. pa. 396. et 397. the Iurors ought either to be inhabiting within the shire or else to have lands there for the Commission willeth that they should be such per quos rei veritas melius sciri poterit which must needs be understood of such as have causes to know the Countrey and the precept is usually according to the same forme 25. If any of these Iurors returned Lamb. ibid. be threescore and ten yeares of age or have any continuall infirmity or be otherwise decrepit yet that shall not excuse him for not appearing if the Iustices will exact his service but he is driven to his Action upon the statute of Westm. 2. ca. 38. against the Sheriffe for his returning of him Marrow 26. And if he have a Charter of exemption he ought to shew it to the Sheriffe against whom if he will notwithstanding empanell him he may have onely his Action upon the case and none other remedy 18. H. 8. 5. 18. H. 8. fo 5. which may be truely said as to the saving of his issues but by some other bookes and namely 42. Ass p. 5. 48. Ass pa. 5. and Marrow he is to be discharged upon his apparance and specially where he he hath in his charter of exemption these words licet tangat nos unlesse his exemption be grounded upon a false suggestion or that it fall out that there want others that be sufficient to serve and furnish the number in which case none is to be spared
insufficient by the greater part of the Iustices assembled for that purpose notwithstanding the words contra formam statutorum praedictorum were therein contained Collection Dyer 363. 50. Againe it is not safe to recite the dayes or places of the beginnings continuances prerogations or dissolutions of the Parliaments least by mistaking of any of them the whole Endictment fall to the ground thereby Ibid. 203. 51. Thus farre of these points by way of short rule and direction for the better imitation and practise whereof you may use the helpe of such formes of Endictments as the Appendix at the end of this worke will afford you Now let us with a few words consider what Endictments be receiveable by the Iustices of peace and what ought to be rejected by them Endictments to be received or rejected 52. Generally they may receive Endictments before themselves of all causes being either within their Commission or within the statutes whereof they have to enquire And they may also receive Endictments taken before the Sheriffe in his Turne so that the Turne be holden within the moneth after Easter or within the moneth after Michaelmas and so that those Endictments or presentments be indented and sealed betweene the Sheriffe and the Iurors and so that they be made by the oath of xij men at the least and that those Iurors be of good fame and legales homines that may dispend yearely xx s of freehold or xxvj s.viij.d of copihold W. 2. c. 14. 1. Ed. 3. ca. 17. 31. Ed. 3. ca. 14. 1. Ed. 4. ca. 2. 1. R. 3. ca. 4. And for this purpose the said statute 1. Ed. 4. ca. 2. binds the Sheriffe to certifie to the Iust of Peace at their next Sessions the Endictments found in his Turne or Law day The duty of Iustices about Endictments 53. Thus much for the better assistance of our Iustices of the peace I thought meet to say of Endictments not onely because they be the chiefe bases and groundworke whereupon the whole tryall is afterward to be built and framed but also because the Iustices being Iudges of the Court ought of office to see that the bils of Endictment have sufficient matter and forme in them 24. Ed. 3. 74. Of the impediments of proceeding upon Endictments before the Iustices of peace and therewithall of the Certiorari to remove Records CHAP. 9. 1. IT falleth out not seldome that when Iustices of the peace have taken an Endictment found before them they cannot proceed to hearing and determining upon it either because their Commission or some statute whereupon it is grounded giveth unto them no further power but only to enquire thereof or else because the Endictment is taken out of their hands by Certiorari and convayed to Iustices of a higher authority at the sollicitation and by the meanes of some parties grieved to the end that they may either traverse it above or there avoyd it for insufficiency of forme or matter 2. Albeit that in the removing of Pleas betweene party and party from inferiour to higher Courts by Tolt Pond recordare c. there was wont to be a probable cause alledged for which the same were removed yet in this case of the Crowne there needs no cause to be comprised in the writ of Certiorari because they all be the Courts of the King against whom the offence is committed and it breedeth neither injury to the offendor nor losse to any other person in what Court soever the offence be tryed 3. This Certiorari then may command either the Record it selfe or tenorem Recordi to be sent up and it ought to be obeyed accordingly for upon faile thereof first an Alias then a Pluries vel causam nobis significes And lastly an Attachment shall goe out against them that should send it as Master Fitz. noteth in his Nat. Br. fol. 245. but they use at this day to impose a fine upon Affidavit made of the delivery of the writ and refusall to certifie 4. And albeit the Certiorari be a Supersedeas of it selfe yet may the partie upon the Certiorari purchased have a Supersedeas also directed to the Sheriffe commanding him that he arrest him not upon that Record before the Iustices of peace Fitzh ibid. fol. 237. 5. This writ of Certiorari is usually directed to the Iustices of peace Lamb. li. 4. pag. 515. and yet as you have heard the Custos Rotulorum only hath the keeping of these Records but the ancient Commissions of the peace had no Custos Rotulorum specially named in them and then this certifying belonged to them all but now it belongeth to the Custos Rotulorum 6. Now if a Certiorari come to the Iustices of peace to remove an Endictment and the party sueth not to have it removed but suffereth it to lye still then the Iustices of peace may proceede notwithstanding the writ as Hubbert the Kings Atturney said in 6. H. 7. 16. For otherwise the tryall of a Felon if the Endictment were of Felony might be delayed and deluded also But yet Keble held opinion against him and was fearefull that in such a case it might prove felony to make execution of the felon after such writ received and to say the truth the Iustices ought of office to send it away because the writ contayneth in it selfe a commandement to them so to doe 7. And if a Certiorari come to the Iustices of peace to remove an Endictment and in truth the Endictment was not taken till after the date of that Certiorari yet if the Endictment be removed thereby it is good enough for that they both be the Kings Courts 1. R. 3. 4. and in such case it is now usuall to remove it 8. In the making of a Certificate The manner of the certificate upon this Certiorari the Iustices of the peace ought neither to omit that which doth authorize them nor to exceed that authoritie which belongeth unto them For on the one side if they certifie an Endictment of Felonie or of a Riot as taken coram Iusticiarijs ad pacem it was not thought enough without saying further Nec non ad diversa felonias c. and otherwise it was doubtfull whether the Endictee shall be quite dismissed or no because the Iustices of the peace had then no Record at all remaining with them for the Clerke of the peace maketh his Entrie accordingly and that Record which they sent up is insufficient And therefore the Clerke of the Crowne was forbidden to receive any such Certificate 12. H. 7. 25. 9. On the other side if they certifie an Endictment of felony not determined into the Kings Bench they ought not without warrant to certifie another Record of the acquittall of that Endictee for the same matter for nothing ought by them to be sent thither without warrant but that which is Executorie and needeth the help of that higher Court 8. Ed. 4. 18. 10. And if a Certiorari be to send up the
Endictment of A. in which Endictment some others be indicted together with the same A. yet need not the Iustices of the peace to make certificate concerning any but A. 6. Ed. 4. 5. For although they be named joyntly yet be they endicted severally and the King may pardon A. without forgiving the other 6. E. 4. 5. Mark 11. Againe if the Endictment be of the stealing of two horses and the Certiorari speaketh but of one horse it seemeth that they neede not to certifie it at all because of the variance for it is certaine that they of the Kings Bench will not arraigne the Endictee upon it but will rather write againe to know whether there be any Indictment that agreeth with the writ 3. Lib. Ass pl. 3. Cur. 12. Finally it is noted in 8. H. 5. fo 5. that Haukeford the chiefe Iustice of the Kings Bench observed this order that hee which brought thither an Indictment taken before Iustices of the Peace should endorce his name upon the backside of it which I note not to teach them of the Kings Bench but to let the Iustices of peace see that there is some heed to be taken of him by whom they send up their Endictments Of the sundry sorts of Processe upon Endictments and of the Supersedeas for stay of them CHAP. 10. 1. THe Court being thus made privie and possessed of causes must of dutie proceed to the handling or hearing and tryall of them the which because it cannot indifferently doe unlesse it keepe one Eare for the offendor that he also may be heard in his owne discharge as others were heard to lay the charge upon him the manner is if he be absent to award processe against him to come in and to make his answer 2. But if he be present in Court and confesse the Indictment then needeth there no Processe at all Lamb. li. 4. pag. 519. for he shall be committed forthwith to prison untill that he hath made his Fyne or given sureties for it 1. H. 7. 3. Commonly an Indictment or Information being but an accusation or declaration against a man is of none other force Processe wherin it is named but only to put him to answere unto it And hereof all Processe hath the name because it proceedeth or goeth out upon former matter either originall or judiciall 4. The authority of making Processe Authority to make out processe upon indictments is given by expresse words in the Commission and in other cases where it is not namely given it is implyed of congruence or rather of necessity in the words heare and determine which cannot bee performed unlesse the party either doe come in gratis or be brought in by the power of Processe 5. This Processe ought alwayes to be in the name of the King Lamb. li. 4. pag. 420. thus Iacobus Dei gratia c. vicecomiti Dublin c. And therefore also seeing he is partie it must say non omittas propter aliquam libertatem quin c. Fitz. Prerog 21. 6. And the Teste thereof may bee under the names of some two Iustices so that it may be made sitting the Court in the Sessions Teste of the processe Brooke tit Peace 6. and 7. 7. But now whereas the Commission giveth to the present Iustices authority to make Processe upon Indictments New Cōmissions of peace doe not discontinue the old processe taken aswell before former Iustices as before themselves all that doing was wont to be discontinued in law by the comming out of a new Commission of the Peace untill that the statute 11. H. 6. ca. 6. did establish that no pleas suits or processe to be taken before Iustices of the peace should be discontinued by a new Commission of the peace to bee made but that they should stand in their strength and that the Iustices assigned in the same new Commission should have power to continue the same and to heare and determine all that which dependeth upon them And of the like effect there is a branch in the later end of the statute of 10. Carol. ca. 14. in Ireland 8. Furthermore whereas Sheriffes and their Bailiffes used to arrest men Endictments before Sheriffs and to proceed upon Indictments found in their Turnes or Law-dayes another statute made 1. Ed. 4. cap. 2. taketh that power out of their hands and delivereth it over to the Iustices of the peace appointing them to proceed upon them as if they had beene found before themselves Processe of utlary 9. Now seeing that this Processe of the Sessions is sent out to this end that either the party shall come in to answere and to bee justified by the Law or else that he shall for his contumacy bee deprived of the benefit of law for so much in effect doe the words of the Commission Quousque capiantur reddant se aut utlagentur import in them it followeth that in all cases of Indictments if the party be returned insufficient the processe of Outlawrie lieth against the offendour if he be not taken before or doe not otherwise offer and yeeld himselfe And then the power of these Iustices endeth with the Outlawrie for they can make no Capias utlagatum but must certifie the Outlawrie into the Kings Bench. 10. A good while after that Commissions of the peace were first awarded there was not given by them any power to make out any Processe of Outlawrie Lamb. li. 4. pag. 422. for by a Commission of the peace in 20. E. 3. Parl. 1. Patent in dorso wherein were words authorising the Commissioners to arrest all such as should be endicted before them but by and by this followeth there Et ad nomina eorum qui fugerint coram vobis justiciari noluerint certificandum in Cancellaria c. So that if they might not get them arrested they could goe no further but to certifie their names only 11. Now the meane to this Outlawrie is not all one in all cases The generall processe upon Endictments of Trespasse for upon Indictments of Trespasses against the P. or such other contempts the Processe is one and upon Indictments of Treason or felony it is another 12. Upon Indictments of Trespasse against the peace of Conspiracies and of Routs in presence of the Iustices or in Affray of the people if the offendors may not be found nor brought in by Attachment or distresse by reason of their insufficiencie the processe of Outlawrie is to be awarded by the statutes 18. Ed. 3. Stat. 1. Stat. 2. cap. 5. The like is against such as bee indicted upon the statute of Liveries 8. H. 7. cap. 4. 13. Upon the Indictment a Venire facias is to issue first and then if thereupon he be returned sufficient a Distringas and upon the same processe of Distringas infinite till he come in but if a Nihil habet c. be at the first returned against him then a Capias Alias and Pluries and after an Exigent as it
Marleb 52. H. 3. cap. 1. 2. 3. 4. and by the statute called Ragman and divers other ancient statutes Where by the way it seemeth by the propriety of the word redemptio that the party offendor ought first to be imprisoned and then to be delivered or ransomed in consideration of his fyne 11. Also whereas any statute speaketh of fyne and ransome both as 38. Ed. 3. ca. 9. and others doe it is taken that the ransome ought thereto beat the least treble so much as the Fyne Dyer 232. 12. But now of later time the Iustices themselves have in some cases of amerciaments also used to assesse and rate the same without any other helpe as where the officers of their Courts have offended 33. H. 6. 54. 34. H. 6. 20. Lo. 5. Ed. 4. 5. which also seemeth to make an other difference betweene the two words But because neither of these be strictly observed either in common speech or in the understanding of the later statutes I will no longer stand upon it 13. Now therefore if the offence be fineable Fine by discretion of the Iustices by generall words only without speaking of any fyne or without shewing by whom the fyne shall be assessed for so it is commonly in the elder statutes that doe prohibite any thing to be done there the assessement thereof belongeth to the Iustices before whom the conviction is lawfully had 14. Againe if it be fineable by these or such like words at the Kings pleasure as you shall finde it in many statutes then also the same Iustices before whom the conviction was shall assesse the fynes at their wils and pleasures For say the bookes 2. R. 3. 11. 18. H. 8. 1. the King in all such cases uttereth his owne will and pleasure by the mouthes of the Iustices 15. And yet some statutes using plainer speech doe namely referre the fyne to the discretion of the Iustices of peace 16. For they may upon conviction had before them set fyne by their discretion upon such as take Salmons or destroy the fry of fish in Rivers against the statutes W. 2. cap. 47. 13. R. 2. cap. 19. 17. R. 2. ca. 9. 17. And in these cases even as in cases of amerciaments the Iust ought to take heed that the fynes be reasonable and just having regard to the nature and quality of the offence as it is commanded by the statute of 34. Ed. 3. cap. 1. Fyue to be assessed openly 18. But this fyne or paine awarded by the discretion of the Iustices of P. shall doe the more good both to the Prince in profit to the people in example and to the Iustices themselves in credit if it be pronounced at the Bench openly as it ought to be and not shufled up in a chamber or Corner secretly as in some places it hath beene used to be Mitigation of the forfeiture of a statute 19. I have heard that even in cases where the statutes doe appoint a certaine forfeiture as v.l. or x. l. c. yet the practise is to mitigate the same by discretion if so be that the party will come in upon the Endictment and put himselfe in gratiam regis with or without confession of the fault as I have told you before so that the fyne shall be small where the fault was great and the penalty of the Law it selfe not small 20. But this manner of doing in my minde is so void of sound reason that I cannot recommend it to the Iustices of peace but doe rather condemne it as a mockery of the Law yea I finde that sundry statutes fearing belike some such thing have specially prevented it commanding that Iustices of the peace shall assesse no lesse fyne then is in those statutes themselves beforehand appointed Estreating for the King 21. But hitherto we have not sufficiently performed that which the Commission of the peace hath in these words Salvis nobis amerciamentis alijs ad nos inde spectantibus and therefore it is not enough to have assessed the fyne but we must also disclose the meanes by which aswell this fyne that is reduced to certainety by the discretion of the Iustices as all other amerciaments and those other penalties and forfeitures also that are certainely prefixed by words of the statutes may be levyed and brought into the Kings Coffers 22. Order was taken by an ancient statute intituled de Scacario and noted to be made 51. H. 3. that all Iustices Commissioners and Enquirers whatsoever should deliver into the Exchequer at the feast of Saint Michael yearely the extracts of Fynes and amerciaments taxed and made before them that the King might be duely answered thereof And the same in effect was afterwards confirmed by another statute entituled de forma mittendi extreta ad Scacarium which although it be said to be made 15. Ed. 2. yet forasmuch as it mentioneth that the former statute was made in the time of the father of the same King which made the latter it must needs be that either the one or the other of them was in the time of King Ed. 1. 23. The statute 12. R. 2. cap. 10. had allowed to every of eight Iustices of the peace iiij s. by the day for the time of their quarter Sessions to be paid by the hands of the Sheriffe of the Fynes and amerciaments comming of the same Sessions But because it was soone after seene that it was a great delay to the Iustices of peace in this payment to expect the levying of these Fynes and amerciaments by estreats first sent up to the Exchequer and then delivered thence to the Sheriffe which was at that time the common manner of levying fynes and amerciaments therefore it was within two yeares after viz. 14. R. 2. ca. 11. provided that the estreats of Iustices of peace should be indented or doubled and the one part thereof delivered by them to the Sheriffe to the intent that he may levye the money thereof rising and pay the Iustices their wages by indenture betweene him and them to be made that thereupon he may have allowance upon the passing of his account and the other part to be sent into the Exchequer 24. And hereby as I thinke the estreats of the Iustices of the peace bee now an immediate warrant for the Sheriffe to levy not only the fynes and amerciaments but also all other issues penalties losses forfeitures and summes whatsoever arising before them For the words of the statute are generall the money thereof arising and there whatsoever summes are to be estreated into the Exchequer the same are also to be levyed by the Sheriffe 25. And these are properly called Estreates of the word Extracta because they be short notes or memorials extracted or drawne out of the Records by the Clerke of the peace and by him indented delivered the one part to the Sheriffe and the other to the Barons of the Exchequer bearing this or the like title Extract
these and such other cases where they cannot of themselves proceed they ought to send the Records to such as have authority to determine upon them and otherwise they doe not discharge that duty which the words Salvis c. alijs ad nos indespectantibus in the Commission doe seeme to expect at their hands 6. Touching the Certiorari it is of force if it be made accordingly to remove not only Endictments or other executory Records wherein the Iustices of peace can goe no further and whereof I have spoken already but also the Records of causes fully and lawfully heard and determined by them to the end that they may be reversed and annulled in the Kings Bench if good matter and cause doe require it 7. For that preheminence hath the Kings Bench and all other the higher Courts to write to the Iustices of peace to certifie their Records that doe make for the tryall of causes hanging in them as you may read in 19. H. 6. 19. where the Iustices of the common place did send to the Iustices of peace for an Endictment because in a writ of conspiracy brought before them it was materiall to have it 8. And yet they of the common place doe not use to write for Endictments or such other Records unlesse they be thereunto induced by cause hanging in their owne Courts before them For otherwise the right way to remove them is by Certiorari out of the Chancery from whence they may be transferred by Mirtimus to any other Court 41. li. Ass pl. 2. per Knyvet chiefe Iustice Matters by severall Statutes specially appointed to be done and executed in the Quarter Sessions CHAP. 20. 1. VVEe have hitherto laboured and run over such things as are common to all generall Sessions of the peace and yet because there be certaine matters that are by severall statutes specially appropriated some to any and others to some one of the quarter Sessions it will not be amisse to set forth what Sessions is and ought to be called a quarter-Sessions 2. Every quarter Sessions is a generall Sessions of the peace and is styled generalis sessio pacis but other Sessions which are held upon speciall occasions although all the articles inquirable in the Sessions of the peace be given in charge are not quarter-quarter-Sessions nor to be styled generalis sessio pacis but only Sessio pacis c. 3. This quarter-Sessions is so called because it is holden quarterly viz. foure times in the yeare and the stat of 4. H. 7. cap. 12. calleth these foure quarter-Sessions principall Sessions for that in them chiefely the whole power and authority of the Iustices of peace doth shine and shew it selfe more then in other Sessions 4. These quarter-Sessions have beene appointed by severall statutes to be holden quarterly and at speciall times and therefore it will not be amisse for our better instruction to peruse such statutes as doe either in deed or in shew concerne this point 5. The stat of 25. Ed. 3. cap. 8. ordaineth That the Iustices of peace make their Sessions in all the Counties of England at the least foure times in the yeare viz. at the Feasts of the Annunciation of our Lady Saint Margaret S. Michael and S. Nicholas and also at all times that shall be needfull according to the discretion of the same Iustices 6. But this ordinance was altered as to the times by the Stat. of 36. Ed. 3. cap. 12. which ordaineth that in the Commission of the peace shall be contained that the Iustices of peace shall hold their Sessions foure times in the yeare viz. one within the Vtas of the Epiphanie the second within the second weeke of Lent the third betweene the Feasts of Pentecost and Saint Iohn Baptist and the fourth within eight dayes next after Michaelmas 7. But this is againe altered as to the times by the stat of 12. R. 2. cap. 10. which hath ordained that the Iustices of peace should hold their Sessions once in every Quarter of the yeare at the least without expressing any certaine time and hereupon as I conceive it gained the name of the Quarter-Sessions and ever sithence hath been so called For before this statute although foure Sessions were to be held yearely yet the same were not quarterly 8. But after this in Anno secundo H. 5. cap. 4. there was another stat made whereby it is ordained that the Iustices of the peace in every Shire named of the Quorum be resiant within the same Shire except Lords named in the Commission of the peace and also except the Iustices of the one Bench and of the other the chiefe Baron of the Exchequer Serjeants at Law and the Kings Attourney for the time that the same Iustices Chiefe Baron Serjeants at the Law and the Kings Attourney be attending and occupied in the Kings Courts or otherwise in some other place occupied in the Kings service and also make their Sessions foure times by the yeare that is to say in the first weeke after the Feast of S. Michael the first weeke after the Epiphanie the first weeke after Easter weeke and in the first weeke after the Translation of Saint Thomas the Martyr which is the third of Iuly and more often if need be 9. Now there are divers offences which by severall statutes are inquirable and some other things are to be done by the Iustices of peace for the well ordering of the Common-wealth only at the quarter-Quarter-Sessions because the Statutes themselves doe appoint the Quarter Sessions for the enquiring and doing of the same 10. The Statutes which doe appropriate divers matters to the Quarter Sessions or to some one of them are these that follow viz. 11. By the Stat. of 1. H. 7. cap. 7. unlawfull hunting in forrests parks and warrens with painted faces vizzards or otherwise disguised is to bee punished by Fyne to bee assessed at the next generall Sessions of the peace which is to be intended of the quarter Sessions which were publiquely knowne and not of any Sessions held upon speciall occasion 12. So likewise by the Stat. of 11. Iac. cap. 7. in Ireland the defaults for not amending of high-wayes according to that stat are to be punished at the next Quarter-Sessions 13. So likewise perjurie and subornation of perjurie are by the stat of 28. Eliz. cap. 1. in Ireland to bee punished in the Quarter-Sessions 14. Also by the statute of 11. Caroli cap. 4. in Ireland the Iustices of peace or the more part of them may at any quarter-Quarter-Sessions give order for the erection of houses of Correction and for stockes of money and all other things necessary for the same and for the governement thereof and such houses of Correction are to be purchased conveyed or assured upon trust to such persons as by the Iustices of peace or the more part of them in their Quarter Sessions of the peace shall bee thought fit and such Iustices may at their Quarter Sessions of the peace next after
such houses shall bee built and so from time to time appoint Governours or masters thereof and may make them such allowance and maintainance as they shall thinke meet And if the masters of such houses doe not every Quarter Sessions yeeld a true and lawfull accompt unto the Iustices of peace of all such persons as have beene committed to their custodie or if the said persons trouble the Countrie by going abroad or escape from such houses of Correction the most part of the said Iustices in their Quarter Sessions may Fine the said Masters and Governors as they shall thinke fit 15. In like manner by the statute of 10. Car. cap. 18. in Ireland the Iustices of peace in their open Sessions have power to enquire heare and determine the defaults of Vnder-Sheriffes Sheriffes Clerkes or the Clerkes of Under-sheriffes and the defaults of bailiffes of Franchises for not duely executing their office according to the said stat 16. So likewise by the stat made in Anno 10. Car. cap. 26. in Ireland the Iustices of peace in the Quarter Sessions with the assent of the Grand Iury have power and authority to taxe and set every inhabitant in any such County Baronie Citty Burrough Towne or Parish within the limits of their Commissions to such reasonable aide and summe of money as they shall thinke by their discretions convenient and sufficient for the new building repairing reedifying and amendment of any Bridges Causeyes and Toghers and after such taxations made the said Iustices of peace shall cause the names and summes of every particular person so by them taxed to be written in a Roll indented and shall also have power and authoritie to make two Collectors of every Baronie Cittie Burrough Towne or Parish for Collection of all such summes of money by them set and taxed which Collectors receiving the one part of the said Roll indented under the Seales of the said Iustices shall have power and authoritie to collect and receive all the particular summes of money therein contained and to distraine every such inhabitant as shall be taxed and shall refuse paiment thereof in his lands goods and chattels and to sell such distresse and of the sale thereof retaine and perceive all the money taxed and the residue if the distresse be better deliver to the owner thereof And likewise the said Iustices of the peace have power and authoritie to name and appoint two Surveyors which shall see every such Bridge Causey and Togher builded repaired and amended from time to time as often as need shall require to whose hands the said Collectors shall pay the said summes of money taxed and by them received and that the Collectors and Surveyors and every of them and their executors and administrators and the executors and administrators of them and every of them from time to time shall at the publike Sessions of the peace make a true declaration and accompt to the Iustices of peace of the Shire Citty or Towne corporate wherein they shall be appointed Collectors or Surveyors of the receipts payments and expences of the said summes of money and if they or any of them refuse that to doe that then the Iustices of peace from time to time by their discretions shall have power and authority to make processe against the said Collectors and Surveyors and every of them their executors and administrators and the executors and administrators of every of them by Attachments under their seales returneable at the generall Sessions of the peace and if they appeare then to compell them to accompt as is aforesaid or else if they or any of them refuse that to doe then to commit such of them as shall refuse toward there to remaine without baile or mainprise till the said declaration and accompt be truely made and the said Iustices have full power and authoritie to allow such reasonable costs and charges to the said Surveyors and Collectors as by their discretion shall bee thought fit and convenient 16. And likewise by another statute made in Anno 10. Carol. ca. 15. in Ireland the Iustices of peace have power in their Quarter Sessions to enquire heare and determine all and every offence and offences of plowing harrowing drawing and working with Horses Mares Gueldings Garrans and Colts by the Tayle And also of pulling the wooll from living sheepe in stead of clipping or shearing of them and to punish the offendors by Fyne and Imprisonment 17. So likewise by the statute of 33. H. 8. ca. 9. in Ireland the wages of Artificers and Labourers are to be rated twice in the yeare viz. at the Quarter Sessions next after Easter for that halfe yeare following and at the quarter Sessions next after Michaelmas for the other halfe yeare and the wages of servants which are to serve by the yeare to be rated in the Quarter Sessions next after Easter And in like manner by the statute of 13. R. 2. cap. 8. the Iustices of peace in any generall Sessions are to set rates upon victuals and to punish the victuallers which breake those Rates 18. But here M. Lambard in his fourth booke cap. 19. of the Quarter Sessions would make us to beleeve that if the quarter sessions or generall sessions of the peace be not holden at the precise times appointed by the said statute of 2. H. 5. cap. 4. but that the same be held at any other time the Iustices of peace have no power to enquire of heare determine or otherwise to intermedle with any of the matters aforesaid which are appropriated to the quarter Sessions for saith he such Sessions as are not held at the times prescribed by the said statute of 2. H. 5. are no Quarter Sessions and then all that is done before the Iustices of peace concerning the matters aforesaid in any sessions holden at any other time is coram non judice and without warrant but herein I am not of M. Lambards opinion for that the sessions named in some statutes the principall sessions in others the open Sessions and in others the generall or quarter sessions of the peace are all one and the same and are all styled by one and the same style that is generalis sessio pacis and there is not any Sessions styled by the name of Quarter Sessions although in common parlance we call them so because they are held quarterly So as those statutes which referre any thing to the principall the publick open or quarter sessions are all to be understood of that generall Sessions which is held quarterly and all those things may bee there handled although the same be not held at the precise times prescribed by the statute of 2. H. 5. as M. Lambard would have it to bee for the authority whereby the generall sessions of the peace are held is not the statute of 2. H. 5. nor any other statute but the Commission under the great seale whereby the Iustices of the peace are authorised to hold their sessions at such times and places as
they or any two or more of them so as one be of the Quorum shall thinke fit to appoint 19. Also the statute of 2. H. 5. cap. 4. hath not any negative words videlicet that the sessions should not bee holden at any other times then those which are mentioned in the same statute 20. But if the statute of 2. H. 5. had been in the negative or else if the Commission had been specially grounded upon that statute as formerly from 36. E. 3. untill 12. R. 2. it was grounded upon the statute of 36. E. 3. ca. 12. wherein expresse mention was made of the speciall times wherein the Sessions of the peace should be holden I should have beene of M. Lambards opinion 21. So as upon consideration of all the statutes and of the Commission I am of opinion clearely that the generall Sessions of the peace held quarterly although at other times then are mentioned in the said statute of 2. H. 5. are holden by good warrant and authority and are both generall principall open and Quarter sessions within the meaning of all the said statutes and maketh not any nullity of the Acts done therein neither are the Iustices punishable for not observing the time appointed by the said statute of 2. H. 5. because the Commission doth dispence with the statute in that point yet notwithstanding I could wish that the Iustices of peace by reason of their oath would be carefull to hold their Quarter Sessions at those appointed times Of the Speciall Sessions of the Peace CHAP. 21. 1. THe speciall Sessions of the peace doe varie from the generall in this chiefly that they be holden at other times when it shall please the Iustices themselves or any two of them the one being of the Quorum to appoint them upon any speciall occasion And this power they have not only by the Commission but also by the statute 2. H. 5. c. 4. which alloweth them to doe it more often then the foure times if need doe so require 2. Lamb. li. 4. pag. 623. They be also for the most part summoned for some speciall businesse and not directed to the generall service of the Commission And yet there is no doubt but that all the Articles within the Commission of the peace are both inquirable and determinable at any speciall Sessions of the peace if the Iustices shall so please 3. M. Fitzh useth a third difference betweene the generall and speciall Sessions of the peace What things be inquirable at the speciall Sessions of the Peace affirming that whereas at the generall Sessions the Iustices of P. ought of dutie to give in charge all matters within the Commission or statutes that are to be determined before them yet neverthelesse at the speciall Sessions they are at libertie to give in charge either all or any of them Ibid. as it shall seeme good unto themselves The forme of the precept for Summons of a speciall Sessions may bee thus R. B. Miles I.L. T.M. armigeri Iusticiarij inter alios Domini Regis nunc ad pacem in Comitatu Dublin conservandam assignati Nec non ad diversas felonias c. vicecomiti comitatus pradicti salutem Ex parte dicti Domini regis praecipimus firmiter injungentes quod non omittas propter aliquam libertatem infra Baroniam de U. N. aut eorum aliquod in Comitatu praedicto quin venire facias coram nobis apud L. infra Baroniam de V. praedict X. die August proximè futuro xxiiij probos legales homines de eisdem Baronijs ad inquirendum tunc ibi pro dicto Domino Rege tam super quibusdam articulis in statuto in Parliamento nuper Reg. Edwardi tertij Anno regni sui vicessimo tertio edit Artifices laboratores servientes apprenticios concernentibus quam super articulis quibusdam in statuto in Parliamento nuper Reg. H. 8. Anno regni sui 33. tent edit Roguos Vagabundos validos mendicantes alios pauperes tangentibus Proclamari etiam facias in idoneis locis per Baronias praedictas quod omnes qui versus praedictos artifices laboratores servientes apprenticios roguos vagabundos validos mendicantes alios pauperes seu eorum aliquos conqueri voluerint sint tunc ibidem coram nobis ad prosequendum versus eos parati Et sis ibi tunc vel vicecomes tuus habens nomina Iuratorum praed hoc nostrum breve Testibus nobis R. B. I. L. T.M. apud K. in Comitatu praedicto ultimo die Martij Anno Regni Domini nostri Caroli Dei gratia Angliae c. regis c. Of the Rewards and punishments due to the Iustices of Peace in respect of their Sessions CHAP. 22. 1. VVHilest it was at the libertie of the Iustices of peace to hold their quarter Sessions as short time as they would the law did not allow them any wages for their paines But when the statute 13. R. 2. ca. 10. had bound them under paine of punishment to continue their Sessions three daies together if the affaires of their office did so require the same statute thought it meete also The wages of the Iust of the P. at the quarter Session to allow to every of them iiij.s. by the day for the time of their Sessions to be paid by the hands of the Sheriffe out of the Fynes and amerciaments rising of the same Sessions and that the Lords of Franchises should bee contributories to those wages after the proportion of their parts of the said Fines and Amerciaments 2. But because it was very dilatory for the Iustices of peace to take those wages at the hands of the Sheriffe as I have already touched upon the Estreat sent out of the Exchequer And for that also it grew in question whether such Lords as were named in the Commission of the peace should be partakers of the same wages the statute 14. R. 2. ca. 11. did plainely provide that the wages of these Iustices should be levyed and paid by the Sheriffe upon estreates indented betweene the Sheriffe and them And that no Duke Earle Baron or Baronet albeit they were Iustices of the peace and did hold their Sessions with other eight Iustices should take any wages for their office in their behalfe 3. And hereof also M. Mar. collecteth that how many soever Commissioners of the peace there shall be assembled at these Sessions yet only eight of them shall receive the wages because saith he that at such time as these wages were first appointed the Law did take knowledge and make allowance only of eight Iustices and no more And he also maketh it doubtfull whether it bee not in the power of the Barons of the Exchequer to appoint which eight when moe be assembled at the Sessions shall have the wages paid unto them 4. For the first point it would bee somewhat hard indeed to straine that statute so farre as to give wages thereby to so
many Iustices as be now at these dayes in every Shire and would be present at the Sessions and concerning the latter point it seemeth by the latter Statute it selfe that the sheriffe shall first pay the wages and then the Barons shall make the allowance according to the Indenture So that I see no libertie of such nomination left unto the Barons 5. I confesse that it might breed both offence against the Sheriffe and a jealousie among the Iustices themselves to have one of them preferred before another in this payment and therefore I thinke it wisely done as it is somewhere used to bestow the whole allowance upon the defraying of their Common Diet. 6. If the Fynes and Amerciaments of the same sessions saith M. Marr. will not fully amount to the summe of the wages then due to the Iustices yet shall the wages be ratably payed out of them so farre as they will extend 7. Hitherto of reward henceforth of punishment Punishment at the Common Law It seemeth by the opinion of some Iustices 2. R. 3. 10. that if a Iustice of the peace doe any thing of Record ignorantly and for want of knowledge that he shall not be punished for it Lamb. li. 4. pag. 630. And this opinion of theirs is not new in this realme although it bee otherwise truly said Imperitia quoque culpae adnumeratur for you may read in the old lawes of King Edgar cap. 2. and of King Canut cap. 14. that if a Iudge had erred in his office hee might then have excused himselfe by oath That he did it not of evill minde and that he knew not how to doe better which I speake not to comfort men in carelesse ignorance but to shew you that men may erre and erring by infirmitie they are not altogether unworthy of pardon and withall to let the Iustices of peace see that it may be a fault to erre by ignorance and that therefore they ought to stay where they meet with non liquet as their owne Commission doth direct them 8. Now on the other side if a Iustice of the peace will craftily embezell an Endictment or wilfully raze any part thereof or malitiously enrole or file that for an Endictment which was never found by the Iurie Then by the Resolution of all the Iustices assembled before the King in the Starrechamber 2. R. 3. a Commission may goe out to enquire by the oathes of twelve men of such his misdemeanour and if he bee convicted thereof he deserveth to loose his office and to make Fyne to the King according to the quantitie of his misprision and offence Ibidem fol. 10. And even so may he be punished as this booke leadeth mee to thinke if he alter an Endictment of Trespasse into an Endictment of Felonie howsoever the opinion 27. lib. Ass pl. 18. be found against it 9. A Iustice of the peace may also be indicted of the unlawfull taking of money for doing his office or of such other falsitie Fitzh Na. b. 243. And if he cause a man to bee endicted at the Sessions by former conspiracy or indirect practise hee is punishable for it as a private man 21. E. 4. 67. 10. But if in the handling of a cause at the open Sessions it happeneth him to speake against an offendour somewhat excessively yet he shall not bee punished for it Iuris enim executio non habet injuriam Neverthelesse Iudges ought not to abuse their tongues by intemperance but they must rather take great heed as Cic. pro Font. said Quibus verbis utantur nè quid nimis moderatè positam nè quid ab aliqua cupiditate prolapsum verbum esse videatur FINIS A briefe Roll of the Articles and matters to be given in Charge and inquired of by the Grand-Iury in the generall or quarter Sessions of the peace set forth in two Columnes the first containing the Offences the second declaring the severall punishments which are to be inflicted for every particular Offence The offences consist of these five parts following viz. 1. Of Treasons 2. Of Felonies 3. Of Misprisions 4. Of Praemunires 5. Of Finable Offences 1. Concerning Treasons it is to be observed that at the Common Law before the tenth yeare of King Henry the seventh there were two sorts of Treasons viz. high Treason and pettie Treason but now by the statute of 10. H. 7. ca. 21. all such offences as at the Common Law were but pettie Treason are made high Treason 2. Concerning Felonies they be of tWo sorts viz. Felonies of death for which the offendor shall loose his life lands and goods and felonies not of death for which the offendour shall neither loose life nor lands but shall forfeit onely his goods and chattels and either have his pardon of course or otherwise bee punished by imprisonment whipping or burning in the hand as the case shall require 3. Concerning Misprisions they be of three sorts viz. Misprisions of Treason Misprisions of Felonie and other Misprisions 4. Concerning Praemuniries they are of two sorts the one is the extolling of forraigne power and Iurisdiction in this Kingdome the other is for prosecuting causes in the Ecclesiasticall Courts for matters meerely temporall and determinable at the Common Law 5. Concerning Finable Offences they are of foure sorts viz. First Offences of force and violence Secondly Offences of fraud and deceit Thirdly Offences of Omissions and neglects of Officers and others and lastly other abuses and enormities of severall sorts tending to the hurt and prejudice of the Common-wealth The particulars of all these Offences you shall find in the first Columne and of the punishments in the second as followeth viz. The Offences  The Punishments First of Treasons viz.  1. The compassing or imagining the death or destruction of the Kings Majestie the Queene or their sonne and heire apparant 2. The conspiring to depose the King or to take from him any of his Forts or to defeat his Armie 3. The deflouring of the Queene or the eldest daughter of the King not marryed or the wife of the eldest sonne and heire apparant of the King The punishment for the 6. 7. 8. 14. 15. 21. and 22. of these treasons for a man is to bee drawen and hanged and for a woman to be burned and for all the rest for a man to be hanged drawne and quartered and for a woman to be burned vide Coke libro Intrationum fo 360. 6. El. Dy. fo 230. p. 55. 1. H. 6. fo 6. Stamford fo 32. f. 4. Levying of warre against the King in his realme 5. Adhering to the Kings enemies in his realme or giving them ayde or comfort in his Realme or elsewhere 6. The counterfeiting of the great or privy seale of the King 7. The counterfeiting clipping fyleing washing or other falsifying of the Kings mony and also the forging and counterfeiting of forraigne Coine permitted to passe currant in this kingdome 8. The bringing in of false money like to the money of this
24 25 28. 8. What warrants of the Iustices of peace are to be executed by the Constable or other officer and what not S. 40. 9. Abusing the warrant of a Iustice of peace S. 41. 10. Causes wherein the Iustices of peace are to take Examinations and Recognisance to prosecute before they grant their warrant to apprehend the offender S. 43. 11. What persons may be arrested and imprisoned and what not S. 46 47 48 49 50 51 52 53 54. 12. Who may arrest and imprison and for what causes S. 55. 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77. 13. The places of imprisonment S. 78 79 80 81. 14. Where an officer may arrest and pursue a prisoner into another County S. 82 83 84. 15. What is to be done with a felon or Traitor when the Gaoler will not receive him S. 85. 16. How long the prisoner is to be kept in prison and in what manner S. 86 87 88 89 90. 17. What persons ought to assist when Posse comitatus is required and who may raise the same and in what cases S. 91 92 93 94 95 96 97 98 99 100 101 102 103. 18. Certaine advises to the Iustices of peace how and in what manner they ought to exercise their offices S. 104. and so forward to the end of the Chapter 4. Barretor ca. 4. 1. Who shall be said to be a Barretor S. 2 3 5. 2. The severall sorts of Barretors S. 4. and so forward to the end of the Chapter 3. The punishment to be inflicted upon Barretors S. 1. 5. Bailement and Mainprise ca. 5. 1. What it is S. 1 2. 2. Who may baile and let to mainprise S. 3 4 10. 3. What persons are baileable and what not S. 4 11 14 15 16 17 18 19. and so forward to the end of the Chapter 4. One bailed upon insufficient suretie may notwithstanding be committed untill he find better S. 5. 5. Iustices of peace may be fined for taking insufficient bayle Sect. 5. 6. The punishment for bailing of such as are not baileable S. 6 7 8 9. 6. Bridges Causeys Toghers high-wayes ca. 6. 1. Who are compellable by the common law to make or repaire Bridges and who not S. 1 2 3 4 5 6. 2. The power of the Iustices of peace for erecting and repairing of Bridges Causeys and Toghers by statute S. 7. 3. The power and authoritie given by statute for amending of high-wayes S. 10 11 12 13 14 15 16 17 18 19 20. 4. To whom the soyle of the high-wayes belongeth S. 21 23. 5. Lands adjoyning to the high-way of common right ought to clense the ditches S. 22. 6. By the common law Commissions might be awarded for the amending of high-wayes S. 24. 7. Cloth ca. 7. 1. Every Iustice of peace may punish certaine abuses concerning the making of Cloth and may heare and determine some matters arising betweene the Clothiers their Carders Spinsters Weavers Fullers Shermen Dyers S. 1 2 3. 8. Constables ca. 8. 1. That every Iustice of peace may cause two Constables to bee chosen in every Barony S. 1. 2. The duty of those Constables and how they were first ordained S. 2. 3. The ordayning of petty Constables and the chusing and swearing of them S. 3 4 5 6 7. 4. The particular duties of those pettie Constables S. 7. 8. 9. Felonies of severall sorts containing 20. Chapters beginning with the 9. and ending with the 28 Chapter 1. What a Iustice of peace may doe for the apprehending of Felons and Traitors S. 1. 2. What a Iustice of peace ought to doe when a Felon or Traitor is apprehended and brought before him S. 2 3. 3. What felonies Iustices of peace in the County of Dublin may heare and determine S. 4 5. 4. What Felonies Iustices of peace cannot heare and determine S. 6 7 8 9 10 11 12 16 17. 5. How farre Iustices of peace may proceede in such felonies which they have not power to heare and determine S. 13. 6. Where an Endictment of the death of one which is strucken bewitched or poisoned in one County and dyeth in another is made good by statute S. 14. 7. Where the principall is in one County and the Accessarie in another the Endictment of the Accessarie taken in the County where he became Accessarie is made good by statute S. 15. 8. That a Iustice of peace may commit one that can give Evidence against a prisoner and refuseth so to doe S. 18. Ca. 10. of Felonies by the common Law 1. What offences are felony by the common Law S. 1. 2. What shall be felony by homicide S. 2 3 4 5 6 7 8. 3. The severall sorts of homicide S. 9 10 11 12 13 14 15 16 17. 4. In what cases Iustices of peace in default of the Coroner may inquire of homicide S. 18. 5. What Felo de se shall forfeit S. 11 12 13 14 15 16 17. Ca. 11. of Murder 1. What killing shall be adjudged murder by the common law S. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 17 18 23 24 25 26 27 28 29 33. 2. What killing shall not be adjudged felonie S. 15 18. 3. What killing by poison shall be adjudged murder by the common law S. 19 20 21 22 34. 4. Where the Act of one shall be murder in all that are present in the house or upon the same ground S. 30 31 32. 5. Murder must be the killing of one in rerum natura S. 35. 6. In cases of murder or poisoning no Clergie nor in case of witchcraft S. 36. 7. No pardon to be granted for murder and how farre a pardon of all Felonies will extend S. 38 39. 8. The King only hath authoritie to pardon S. 40. Ca. 12. of Manslaughter What shall bee adjudged Manslaughter Sect. 1 2 3 4 5 6. Ca. 13. Who may bee charged with homicide and who not 1. Lunatickes Ideots and non compos mentis cannot bee charged S. 1 2 3. 2. An Infant that hath no discretion cannot be charged but an Infant of discretion may be charged S. 4. 3. One that is dumbe may be charged S. 5. 4. One borne deafe and dumbe cannot be charged Sect. 6 7. 5. A man that is drunke which killeth another may bee charged S. 7. Ca. 14. of homicide by misadventure 1. What shall be adjudged homicide by misadventure S. 1 2 3 5 6 7. 2. The punishment of homicide by misadventure and Se defendendo S. 3. 3. How the partie found guiltie of homicide by misadventure may obtaine his pardon S. 4. 4. What shall bee adjudged to bee a casuall death and what shall be forfeited by reason thereof S. 8. c. to the end of the Chapter 5. How the King shall be intituled to things forfeited by reason of such casuall death S. 10. Ca. 15. of homicide upon necessity as 1. The killing of one condemned to dye by a stranger or the putting of
39 40 41. Ca. 31. Who may commit a forcible Entrie c. 1. Of the number of the persons S. 1 7. 2. Of the qualitie of the persons S. 2 3 4. 3. Of the commandement before or consent after the force Sect. 5 6. 4. Of the persons put out by force S. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22. 5. Of the weapons offensive S. 23 24 25. 6. Of force justifiable or not justifiable S. 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Ca. 32. Where a forceible detainer of possession is lawfull Where a continued possession of 3. yeares may bee maintained with force S. 1 2 3 4 c. to the end of the Chapter Ca. 33. How many severall remedies the party hath which is either forcibly put or thrust out of posses 1. By an action upon the statute of 8. H. 6. S. 1 2. 2. By a writ upon the statute of Northhampton S. 3 4. 3. By endictment upon the statute of 8. H. 6. in the Sessions of the peace S. 5. 4. By complaint to one or more Iustices of peace out of Sessions Sect. 6. 5. By removing the Endictment into the Kings Bench S. 7. 6. How the Iustice of peace is to proceed to the enquiry S. 8 9 10 11 12. Ca. 34. Of restitution to be made to the party put out 1. In what cases the party put out shall be restored and by whom S. 1 2 3 4 14 15 16 17 18. 2. The Endictment must be sufficient matter and forme S. 5 6 8 9 10 11 12 13. 3. Of what things restitution may be made S. 8. Ca. 35. Who shall award and make this restitution 1. The Iustice of peace before whom the Inquisition was found shall award or make the restitution and none other S. 1 2 3. 2. The Iustices of the Kings Bench upon a Certiorari may award it but not doe it in person S. 4 5. 3. The Sheriffe shall be amerced if he returne that he could not make restitution by reason of resistance S. 6 7. Ca. 36. To whom this restitution is to be made 1. To the party that was put out and to none other S. 1 2 3 4 5 6. 2. Where the disseisor which is put out with force shall not be restored and if he that entred with force shall be fyned and imprisoned S. 7 8 9. 3. Where diverse claime the possession and both are upon the land who shall be adjudged session S. 10 11. 4. Where one Ioyntenant or Tenant in Common putteth out the other by force he that is put out cannot be restored by a Iustice of peace S. 12. 5. Two Iointenants put out S. 13. 6. Coppiholder Lessee for yeares Tenant at will Tenant by Elegit c. S. 14 15. Ca. 37. Causes for staying the Iustices of P. from granting Restit 1. The title found or proved before the Iustice of peace S. 1. 2. Three yeares possession S. 2 5. 3. A Certiorari S. 2 6 7 8 9. 4. The insufficiency of the Indictment S. 3. 5. The tender of a Traverse S. 10 11 12 13. 11. Games unlawfull ca. 38. 1. What punishment a Iustice of peace may inflict upon common gamesters such as keepe common gaming houses S. 1. 2. What games are unlawfull and what not S. 2. 12. Hâ—y cry ca. 39. 1. In what case the Iustice may cause it to be levyed Sect. 1. 2. How it ought to be made S. 2 3. 13. Hunting hawking and hawkes ca. 40. 1. What a Iustice of peace ought to doe upon Information unlawfull hunting S. 1 2 3. 2. Where and in what cases such hunting will be felony and where a Riot S. 2 4. 3. No man can make a parke or warren without the Kings lycense or grant S. 5. 4. The imbezelling of a hawke that is lost is felony S. 6. 14. Inrolements ca. 41. 1. What deeds may bee inrolled before a Iustice of peace and Clerke of the peace and within what time S. 1 2 3 4. 2. How many dayes shall be accompted for a moneth S. 4 5 6. 15. Labourers Artificers servants ca. 42. 1. Iustices of peace may commit such as refuse to labour Sect. 23. 2. What persons may be compelled to labour and how they shall be punished for their refusall Sect. 1 23 35 36 37 38 39 40 41. 3. The punishment of servants departing within the time of their service S. 2. 4 The retaining of one that is another mans servant S. 2. 5. What wages servants Labourers or Artificers ought to take S. 3 4 5 6 7 8 9 20 21 24 25 26. 6. The punishment of such as refuse to performe the ordinances of the statutes of Labourers c. S. 7 10 11 14. 7. That Bailiffes and Constables be sworne to enquire of and present all such as shall transgresse the ordinances concerning Labourers c. S. 11. 8. Nothing to be taken by Gaolers or any others of Labourers c. for fees S. 12 19. 9. Encouraging of Labourers c. against the ordinances concerning them and the punishment of servants departing into other Counties contrary to those ordinances S. 13 15 16. 10. Iustices of peace to heare and determine the points of the statutes concerning Labourers and Artificers Sect. 17 18 22 23. 11. That servants intending to depart from their masters at the end of the Terme shall give warning S. 23. 12. What the Common Law was concerning Labourers c. S. 28 29 30 31 32 33 34. 13. Who are compellable to labour by the statute of 23. E. 3. S. 35 36 37 38 39 40 41 42 43 44 45. 14. What is a good retainer by that statute S. 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64. 15. What be good causes for a servant to depart S. 65 66 67 68 69. 16. How and in what manner the master may discharge his servant S. 70 71 72 73. 17. Who may lawfully take a servant out of his masters service S. 74 75 76 77 78 79 80. 18. In what cases a man may receive another mans servant S. 81 82. 19. Who shall in law be adjudged another mans servant S. 83 84 85. 16. Misprisions ca. 43. 1. The severall sorts of Misprision and the severall punishnishments S. 1 5. 2. What offences are misprisions of Treason or felony S. 2 3 4. 3. What authority a Iustice of peace hath in cases of Misprision of Treason or felonie 17. Night-walkers ca. 44. 1. How Night-walkers are to be punished S. 1. 18. Peace ca. 45. 1. The power of the Iustice of Peace for the keeping of peace Sect. 1 2. 19. Posse comitatus containing two Chapters viz. 46. and 47. 1. Who may raise Posse comitatus and for what cause S. 1 4. 2. Who ought to assist when Posse comitatus is required S. 1 2. 3. The number requisite how they shall be armed Sect. 3. 1. A Iustice
or any other may deliver him that is committed for want of sureties S. 12 13. 6. To what Iustice the party arrested may goe to put in his security for the peace S. 14 15. 7. Where a Iustice of peace may grant a Supersedeas Sect. 15 16 17. 8. The remedy for him that is arrested notwithstanding hee hath a Supersedeas S. 18 19 20. 9. In what cases the party may have a Supersedeas out of the Chancery or Kings Bench S. 21 22 23 24 25 26 27 28 29 30. Ca. 58. Matters concerning the Recognisance of the peace 1. Certaine differences where the Iustice of peace taketh a Recognisance by vertue of a Supplicavit and when he doth it ex officio S. 1 2 3 4 5 6 24. 2. Certaine opinions how security of the peace may be taken otherwise then by recognisance S. 7 8 9. 3. For how long time a Iustice of peace may binde one to the peace S. 10 11. 4. What Recognisances taken before a Iustice of peace shall bee void and what not S. 12 13 14 15 16 17 18 19 20 21 22. 5. In what cases the Iustice of peace ought to returne the Recognisance to the Sessions S. 26 27 28. 6. If the Sureties be Insufficient a Iustice of peace may compell the party to finde better S. 29. Ca. 59. What shall discharge a Recognisance of the peace or the party of his appearance at the quarter-quarter-sessions 1. In what maner the party bound to the peace may be discharged S. 1 2 3 7 16 17 18 19 20 21. 2. What will discharge the apparance of him that is bound to the peace what not S. 1 2 3 4 5 6 8 9 3. Where the Recognisance of the peace may be released and by whom S. 8 9 10 11 12 13 14 15. Ca. 60. what act shall amount to a forfeiture of the Recognisance of the peace 1. Menacing words assault or affray S. 1 2 3 4 5. 2. Commanding or procuring another to breake the peace S. 6. 3. Arrest or imprisonment without warrant S. 7. 4. Putting into malice S. 8. 5. Rape S. 9. 6. Treason Burglary Robbery or Manslaughter S. 10 11 12. 7. Riotous assemblies S. 13. 8. Wearing armour or company not usuall S. 14 15. 9. Where correction and chastisement shall be no breach of the peace S. 16 17 18 19 20 21 22 23 24 25 26. 10. In what cases force used by ministers of Iustice shall be no breach of the peace S. 27. 39. 11. In what cases so used by a private man shall be no breach of the peace S. 28 29 30 31 32 33 34 35 36 37 38 40 41. 12. When the Act of one shall cause another to forfeit his Recognisance S. 42 43. Ca. 61. Concerning the writ of Supplicavit 1. The formes of the Writs of Supplicavit and to whom it may be directed S. 1 2. 2. In what manner the Iustices of peace are to execute the writ of Supplicavit S. 2 3 4 5 6 7 8 9 10 11 12 13 14 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38. 3. The manner how to procure a Supersedeas to the writ of Supplicavit S. 15 16 17 18 19. 4. Where and in what cases the writ of Supplicavit is to bee granted S. 20 21 22 23. 27. Suretie of the good behaviour ca. 62. containing two Chapters viz. 62. and 63. 1. Who may grant it S. 1 11 12 13. 2. The difference betweene it and surety of the peace Sect. 2 9 10 11. 3. What Acts shall be a breach of the good behaviour S. 2 3 4 5 6 7 8. 4. What discretion circumspection is to be used in granting it S. 13 14 15. 5. When it is to be taken by writ of Supplicavit the writ must be pursued S. 17. 6. How the party may procure a Supersedeas to prevent it Sect. 18. Ca. 63. For what causes this suretie of the good behaviour may bee granted 1. Against common Barretor common quarreller common disturbeâ—â— of the peace S. 1. 2. Against Riotters persons suspected to be lyers in waite to Robbe S. 2 3 4. 3. Against such as shall use any unlawfull endeavour to take away anothers life or destroy his goods S. 5 6 7. 4. Against Keepers or Frequenters of baudy-houses common Whores and common whoremongers S. 8 9 10 11 12 13. 5. Against Night-walkers Evesdroppers and Idlers Sect. 14 15 16 17. 6. Against prophaners of the Sabbath and common haunters of Ale-houses c. S. 18. 7. Against such as goe in messages of Theeves S. 19. 8. The reason why such offendors should be bound to the good behaviour S. 20. 9. Against such as levie Huy and Cry without cause Sect. 21 22. 10. Against Cheators Consiners Libellers and unlawfull hunters in parkes c. S. 23 24 25 34. 11. Against such as abuse a Magistrate or other officer S. 26. 27 28 29 30 31 32 33. 12. In what cases a felon shal finde sureties for the good behaviour S. 35 36. 13. Whether suretie of the good behaviour may be released and by whom S. 39. 14. Whether a Supersedeas may be granted and by whom Sect. 40. 15. Whether Certiorari will discharge the appearance Sect. 41. 28. Cursing and Swearing ca. 64. 1. The punishment for Cursing Swearing and by whom it may bee inflicted Sect. 1. 29. Treason ca. 65. 1. What offences are declared to bee Treason by the statute of 25. E. 3. ca. 2. de proditionibus S. 1 2 3 4 5 6. 2. Pettie Treason S. 3. 3. Clipping filing and washing of money S. 4. 4. Counterfeiting of forraine Coine S. 5. 5. Burning of houses or Corne S. 6. 6. Assuming the name of O Necle S. 7. 7. Cessing of horse or foot S. 8. 8. Putting or taking in Comrick S. 9. 9. Causing of insurrection or Rebellion S. 10. 10. Other offences of severall kinds made Treason by severall statutes S. 11 3 22. 11. The exposition of the statute of 25. E. 3. de proditionibus S. 12 13. 12. What offences were Treason at the common Law S. 14 15 16 17 19 20 23 24 26 29. 13. What shall be Treasons and murders S. 18. 14. What breaking of prison shall be Treason S. 25. 15. Entring into Rebellion S. 27. 16. Killing the Kings Messenger S. 28. 17. All are principals in Treason S. 30. 30. Trespasse ca. 66. 1. Cutting of Corne robbing Orchards breaking of hedges cutting of wood and barking of Trees S. 1 2 3 4. 31. Tyles ca. 67. 1. How and in what manner Tyles ought to be made and what punishment against the offendours S. 1. 32. Tithes ca. 68. 1. What a Iustice of peace may doe for the execution of a sentence for Tithes S. 1. 33. Watch. ca. 69. 1. What a Iustice of peace may doe concerning watch to bee kept Sect. 1. 2. How long it ought to be kept Sect. 1. 3. The authority of the watchmen S. 2. 34. Waxe ca. 70. 1. Wherein Iustices of Peace may punish Waxe-Chandlers
Deut. ibid. Ye shall have no respect of persons in judgement 3. Hatred or malice against the partie or some of his See Levit 19.18 4. Covetousnesse when they receive or expect gift or reward for as the wise man saith Rewards and gifts doe blinde the eyes of the wise Eccles 10.28 and make them dumbe that they cannot reprove faults 5. Perturbation of mind as anger or such like passion Iames 1.20 The wrath of man doth not accomplish the Righteousnesse of God 6. Ignorance or want of true understanding what is to bee done Ignorantia mater erroris 7. Presumption when without law or other sufficient rule or warrant they presuming of their owne wits proceede according to their owne wils and affections There is more hope of a foole then of him that is wise in his owne conceit Prov. 26.12 8. Delay which in effect is a denying of Iustice Negligentia semper habet Comitem infortunium mora trahit periculum 9. Precipitation or too much rashnesse when they proceede hastily without due examination and consideration of the fact and of all materiall circumstances or without hearing both parties for as another saith qui aliquid statuerit parte inaudita altera aquum licet staâ—uerit haud aquus est hee that shall judge or determine of a matter the one party being unheard although he shall give just judgement yet is he not a just Iudge His Ma. speech in the Sâ—archamber Anno. 1616. 6. All these his late Majestie King Iames hath shortly yet fully observed in his charge lately given to the Iudges of England sc charging them That they doe Iustice uprightly and indifferently without delay partiality feare or bribery with stout and upright hearts with cleane and uncorrupt hands and yet not to utter their owne consents but the true meaning of the law not making lawes but interpreting the Law and that according to the true sence thereof and after deliberate consultation remembring that their Office is Ius dicere and not Ius dare 7. According to this last also is the rule given in the booke of Iudges sc in all causes doubtfull first to consider of the matter Iudges 1930. to consult and then to give sentence 8. Yea God himselfe hath given us Presidents of such deliberate proceedings as you may see in Genesis chap. 3. vers 8. Gen. 3.8.9.11 c. and chap. 18. vers 21. 9. These are worthy Directions for all Iustices of peace that they may carry themselves in their places uprightly and indifferently not uttering their owne conceites nor upon the sudden to over-rule things but after deliberate consideration and consultation then to proceede to execute the authority committed to them 10. Iustices of peace are Iudges of Record Their description or definâ—tion appointed by the King to bee Iustices within certaine limits for the conservation of the peace and for the execution of divers things comprehended within their Commission and within divers statutes committed to their charge 11. Now first that the Iustices of peace are Iudges of Record 9. E. 3. 4. 14. H. 8. 16. yea that every Iustice of peace by himselfe is a Iudge of Record and upon whose sole report and testimony the law reposeth it selfe very much appeareth more plainely if you observe these things following 1. Hee is made under the great Seale which is a matter of Record 2. Every Iustice of peace hath judiciall power given unto him by the Commission sc in the first assignavimus 3. Also by some statutes they have judiciall power given them for they may make a Record of a force by them viewed and may thereupon fine and imprison the offendors yea one Iustice of peace may also heare and determine and punish an offendor in some cases as convicted upon his owne view or examination as in cases of forcible Deteyner 4. His warrant though it be beyond his authority is not disputable by the Constable or other inferior Minister but must be obeyed and executed by them But this must bee understood 14. H. 8. 18. Co. 10. 7. 6. when the Iustice of peace hath Iurisdiction of the cause for or concerning which he hath granted his warrant for otherwise the Constable or other Officer executing such warrant is punishable notwithstanding the warrant 5. Hee may take a Recognizance for the peace c. which is a matter of Record and which none can doe but a Iudge of Record See Br. Recog 8. 14. 6. His record or testimony in some cases is of as great force and in some other cases of greater force then an Indictment upon the oath of twelve men as in cases of Forcible Entry forcible Deteyner and Riots 7. Great cause therefore have the Iustices of P. to take heed that they abuse not this their credit and authoritie either to the oppressing of the subject by making untrue Records or defrauding of the King by suppressing true Records 12. Now concerning peace it is the amitie confidence and quiet that is betweene men and he that breaketh this amitie or quiet breaketh the peace 13. Yet peace in our law most commonly is taken for an abstinence from actuall and injurious force and offer of violence and so is rather a restraining of hands then an uniting of mindes And for the maintenance of this peace chiefly were the Iustices of Peace first made 14. The breach of this peace seemeth to be any injurious force or violence moved against the person of another his goods lands or other possessions whether it be by threatning words or by furious gesture or force of the bodie or any other force used in terrorem populi 15. The Office of the Iustice of Peace is principally to be exercised to the suppressing of such injurious and unlawfull force or violence and yet the Commission of the P. being pro conservatione pacis pro quieto regimine gubernatione populi I see not why the Iustices of Peace should be restrained from preventing and repressing such other offences misbehaviours and deceits as may breake the amitie quiet and good governement of the people and whereof discords and so breaches of the peace doe often arise though there appeare neither force nor violence in the offence it selfe as libellings cosinages and such other offences 16. But it is no part of their office to forbid lawfull suits albeit they shall doe well to be mediators of peace in such suites and controversies as shall arise amongst their neighbours 17. The Conservation of the peace and therein the care of the Iustice of peace consisteth in three things viz 1. In preventing the breach of the peace wisely fore-seeing and repressing the beginnings thereof by taking surety for the keeping of it or for the good behaviour of the offendors as the case shall require 2. In pacifying such as are in breaking of the peace 3. In punishing according to the law such as have broken the peace 18. But of the three the first viz. the preventing part is
in any matter depending before them 3. That they shall keepe their Sessions according to the statutes 2. H. 5. 4. which as it seemeth ought to be in the weeke after the Feast of S. Michael after the Epiphany after the clause of Easter and after the translation of S. Thomas which is the third of Iuly 4. That all Issues Fines Amerciaments and Forfeitures which happen before them be by them truly entred and sent into the Exchequer 5. That they take nothing for doing their office but of the King and the accustomed Fees appointed by the statutes 6. That they shall not direct any their warrants to the parties but to the Bailiffes of the County or to other the Kings Officers or other indifferent persons 26. The other oath concerning the Kings supremacie is by force of the statute made secundo Eliz. ca. 1. The forme of which oath also followeth in these words videlicet 27. I. R. B. doe utterly testifie and declare in my conscience that the Kings Highnesse is the onely supreme governour of this Realme and of all other his Highnesse Dominions and Countries as well in all spirituall and Ecclesiasticall things or causes as temporall And that no forraigne Prince person prelate State or potentate hath or ought to have any Iurisdiction power superiority preheminence or authority Ecclesiasticall or spirituall within this Realme And therefore I doe utterly renounce and forsake all forraigne Iurisdiction powers superiorities and authorities and doe promise that from henceforth I shall beare faith and true allegiance to the Kings Highnesse his heires and lawfull Successors and to my power shall assist and defend all Iurisdictions privileges preheminences and authorities granted or belonging to the Kings highnesse his heires and Successors and united and annexed to the Imperiall Crowne of the Realme So help me God c. 28. Yet it is most usuall that both these oathes are taken by a speciall Commission viz. by a writ of Dedimus potestatem directed out of the Chancery to some ancient Iustice of Peace to take the same oathes which by them is to be certified into the same Court at such day as the writ commandeth 29. If the Iustice of peace or other person to whom a Dedimus potestatem shall be directed to take the oathes of a new Iustice of peace shall returne the Commission and the Oathes to be taken when they were not taken this is fineable in the Star-chamber 30. So if the new Iustice of peace shall exercise this office before he hath taken both these Oathes he is likewise fineable in the Star-chamber 31. Also if a Iustice of peace shall not performe his oath concerning his office he is fineable in the Star-chamber if the neglect be of corruption or any sinister affection otherwise it is if it be by Ignorance onely 32. Now forasmuch as the authoritie of the Iustices of peace ariseth partly out of their Commission and partly out of the statutes I will set downe the forme of the Commissions now used in Ireland which are consonant to the Lawes and statutes and to the politique government of this Kingdome A president for the Commissions of the peace for all the â—ountyes of Ireland except Dublin CAroluâ— Dei gratia Angliae Scotiae Franciae Hiberniae Rex fidei defensor c. Predilecto fideli Consiliario nostro Adamo Vice-comiti Loftus de Ely Concellario nostro Regni nostri Hiberniae c. salutem Sciatis quod nos de fidelitat circumspectionibus vestris plurimum confidentes Assignavimus per praesentes assignamus vos conjunctim divisim quemlibet vestrum Iusticiarios nostros ad pacem nostram in Comitatu nostro Middie conservand Ac ad omnes ordinationes statuta pro bono pacis nostrae pro conservatione ejusdem pro quieto regimine gubernatione populi nostri edita in omnibus singulis suis articulis in dicto comitatu nostro tam infra libertates quam extra juxta Vim formam effectum eorundem custodiendum custodiri faciendum ad omnes contra formam ordinationum vel statutorum illorum aut eorum alicujus in comitatu predicto delinquentes castigandum puniendum prout secundum formam ordinationum statutorum illorum fuerit faciendum Ac ad omnes illos qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorum suarum minas fecerint ad sufficientem securitatem de pace vel de bono gestu suo erga nos populum nostrum inveniendum coram vobis seu aliquo vestrum venire faciendum Et si hujusmodi securitatem invenire recusaverint tunc eos in prisonis nostris quousque hujusmodi securitatem invenerint salvo custodiri faciendum Assignavimus etiam per praesentes assignamus vos quoslibet duos vel plures vestrum quorum prefat Cancellar nostr aut A. B. aut C. D. unum esse volumus Iusticiarios nostros in per totum Comitatum predictum tam infra libertates quam extra ad inquirendum per sacramentum proborum legalium hominum Comitatus predicti ac omnibus alijs medijs modis quibus rei veritas melius sciri poterit de omnibus singulis proditionibus murdris homicidiis incendiis illicitis assemblationibus feloniis roberâ—s veneficiis incantationibus sortilegiis arte magica transgressionibus forstallariis regratariis ingrossariis extortionibus quibuscunque Ac de omnibus singulis aliis malefactis et offensis quibuscunque de quibus Iusticiarii pacis nostrae legitimè inquirere possunt aut debent per quosâ—unque qualitercunque in Comitatu predicto factis vel quae imposterum ibidem fieri vel attemptari contigerint Ac etiam de omnibus illis qui in Comitatu predicto in Conventiculis contra pacem nostram in perturbationem populi nostri seu vi armat ierunt vel equitaverunt aut imposterum ire vel equitare presumpserint Ac de omnibus illis qui ibidem ad gentem nostram maheymandam vel interficiendam in insidiis jacuerunt aut imposterum jacere presumpserint Ac etiam de hostellariis omnibus singulis aliis personis qui in abusu ponderum vel mensurarum sive in venditione victualium contra pacem communem legem nostram ac contra formam ordinationum vel statutorum vel eorum alicujus inde pro Communi utilitate dicti Regni nostri aut populi nostri ejusdem edit delinquerunt vel attemptaverunt aut imposterum delinquere vel attemptare presumpserint in Comitatu predicto Ac etiam de quibuscunque vicecomitibus Ballivis Seneschallis Constabulariis Custodibus Gaolarum aliis officiariis qui in executione officiorum suorum circa premissa seu eorum aliqua indebite se habuerunt aut imposterum indebite se habere presumpseriut aut tepidi remissi vel negligentes fuerunt aut imposterum fore contigerint in Comitatu predicto Et de
and to put them in sunder but may not hurt them if they resist him for that he is but a private man 3. An Affray being in the street if any other shall come with harnesse or weapon to joyne with either part every person present or that seeth it may stay them till the Affray be over 4. Also every private man being present may stay the Affrayors untill their heat be over and then may deliver them to the Constable to imprison them till they finde surety for the peace 3. H. 7. cap. 1. Br. Coron 225. 5. If any person be dangerously hurt in any Affray or otherwise every person may arrest the offendor and carrie him to a Iustice of peace who is either to baile him untill the next gaole deliverie or to commit him to the gaole untill it be knowne whether the party hurt will live or dye thereon 6. The Constable The Constable in such cases is armed with a more large authoritie for he may and ought in the Kings name to command the Affrayors or such as are about to make an Affray to avoide or surcease and to depart And if the Constable being present at an Affray doth not his best to part them it being presented at the Sessions of the peace such Constable shall be deepely fined for it 3. H. 7. 10. 7. If the Affrayors will not depart but shall draw weapon or give any blow the Constable may command of assistance of others for the pacifying of the Affray and may justifie the hurting of them if they make resistance 8. The Constable may in the Kings name command the Affrayors to keepe the Kings peace 9. The Constables may commit the Affrayors to prison for a small time till their heat be over yea they may imprison the Affrayors till they finde sureties for the peace And if any of the parties hath received any dangerous hurt in the Affray the Constable ought to arrest and carry the offendor to the gaole or to a Iustice of peace to the end he may finde suretie to appeare at the next gaole deliverie and the Constable may justifie the beating of such an offendor 8. Ed. 3. 8. 11. if he will not obey the arrest but make resistance or flyeth 10. Note that it is properly no Affray unlesse there be some weapons drawne or some stroke given or offred to be given or other attempt to such purpose For if men shall contend onely in hot words this is no Affray neither may the Constable for words only lay hands upon them unlesse they shall threaten to kill beat or hurt one another and then may the Constable arrest such persons to goe before some Iustice of peace to finde sureties for the keeping of the peace and yet such threatning is no Affray 11. If the Affray be in an house and the doores shut the Constable may breake into the house to see the peace kept because he by his office is a Conservator of the peace by the common Law 12. If the Affrayors flie into another mans house 7. Ed. 3. 19. the Constable in fresh suite may breake into the house and apprehend the Affrayors 7. Ed. 3. 19. 13. If the Affrayors flie into another County the Constable or Iustice of Peace seeing this may in fresh suite pursue Plo. 37. A. crom 146. B. 172. b. or cause them to be pursued and to be taken there but they can then medle no further but as every private person may doe to carry them before some Iustice of peace of the County where they are taken to cause them to find suretie for the peace 14. Cromp. 1. 46. But if the Affrayors flie into a Franchise within the same County the Constable or Iustice of peace seeing this may in fresh suite pursue and take them out of such Franchise 15. After the Affray it seemeth the Constable without a warrant cannot arrest the Affrayors F. Imp. 6. except some person be in perill of death by some hurt there receyved 16. Every Iustice of peace may do that which every Constable or private man may do by the common Law 17. 9. Ed. 4. 3. Cromp. 195. 196. Besides every Iustice of peace within his limits may presently after the Affray commit the offendors untill they have found suretie for the peace if the Affray were in his presence And if the Affray were not in his presence then upon Complaint or upon his owne discretion he may after make his warrant to take and commit such offendors untill they have found suretie for the peace 18. If an Affray be made in the presence of a Iustice of peace he may lay hands upon and arrest the offendors to finde sureties c. and may take away their weapons 19. Every Iustice of peace in his owne discretion and ex officio The Iustice may binde all such to the peace as in his presence shall strike another or shall threaten to hurt another or shall contend onely in hot words vide tit Suretie for the peace 20. If any person be dangerously hurt F Iust P 137. 10. H. 7. 20. Cromp. 154. in an Affray or otherwise every Iustice of peace within the yeare and day after such hurt may commit to the gaole such offendors there to remaine untill the day and yeare be expired or that the said offendors shall finde sureties to appeare at the next generall gaole deliverie to answer to the felonie if the partie hurt happen to die within the yeare after the hurt 21. If an Affray or assault shal be made upon a Iustice of peace 5. H. 7. 6. or Constable they may not onely defend themselves but may also apprehend and commit the offendors untill they have found sureties for the peace the Iustice of peace may send them to the gaole but the Constable must commit them to the Stockes for the present and after carry them before a Iustice of peace Armour CHAP. 2. One Iustice 1. IF any person shall ride or goe armed offensively before the Iustices or any other the Kings officers 2. E. 3. cap. 3. P. 1. 20. R. 2. ca 1. Or in Fayres Markets or elsewhere by night or by day in Affray of the Kings people the Sheriffe and other the Kings officers and every Iustice of peace upon his owne view or upon complaint thereof may cause them to be stayed and arrested and may bind all such to the peace or good behaviour or for want of sureties may commit them to the Gaole And the said Iustice of peace as also every Constable may seize and take away their armour and other weapons and shall cause them to be praised and answered to the King as forfeited Lamb. office of a Constable 13. and this the Iustice of peace may do by the first Assignavimus in the Commission 2. So of such as shall carry any Guns Dagges or Pistols that be charged or that shall goe apparelled with privy Coates or doublets the
most part both very fearefull and also remisse as neither knowing their owne authoritie nor the danger 20. Besides his is no new thing for there is such a president in the old booke of Iustices of peace impress 1561. F. 41. a. and it is the Common practise at this day and seemeth to be very serviceable Crom. 197. 21. Next for the Iustices of peace to binde over or to grant a warrant against offendors upon any penall statute to appeare at the Sessions to answere to their offence or fault though such statute be within the power of the Iustices of peace yet such warrant or binding over of such offendors is not warranted unlesse it be specially so appointed in the statute 22. But such offendors ought first to be indicted and thereupon the ordinary processe from the Sessions to be issued by the Clerke of the peace is to be awarded against them untill they come in 23. Crom. 238. And yet there bee sundrie presidents of Attachments made from one Iustice of peace against labourers and servants that shall refuse to serve or that shall depart out of their service c. contrary to the statutes to be before the Iustices at then Sessions to answere to their said defaults Rast 232. D. But these seeme also to be warranted and so appointed by the statutes of Laborers made in anno 23. Ed. 3. Anno. 25. lid 3. ca. 6. and other statutes to that purpose 24. To whom directed 14. H. 8. 16. B. peace 6. The Iustice of peace may direct his precept or warrant to the Sheriffe Bailiffe Constable or other officer or to any other indifferent person by name though he be no officer yea to any person that he shall thinke meet but yet the safest way is to direct it to the Constables or to some other sworne officers 25. A warrant directed by the Iu. of peace to the Constable or other sworne officer and to a stranger who is no officer Cromp. 147. and the warrant is made conjunctim et divisim and is delivered to the stranger who executeth it all this is good 26. A warrant directed by the Iu. of P. to the Sheriffe he may by word command his undersheriffe Bailiffe or other sworne officer to serve it without any precept by writing 27. But if the Sheriffe will command another man that is no such knowne officer to serve it he must deliver him a precept in writing otherwise a writ of false imprisonment will lye for the arrest 28. A warrant directed by the Iu. of P. to the Sheriffes Baliffe or to the Constable or to the Iu. servant or to an estranger to arrest one c. such person to whom that warrant is made must serve it himselfe for these can command none other to do it neither by word nor writing nor make any deputy 29. The officer to whom any warrant shal be directed and delivered The officers dutie ought withall speed and secrecy to seeke and finde out the party and then to execute his said warrant 30. A sworne and knowne officer be he Sheriffe 8. E. 4. 1. 4. 14. H. 7. 9. b. 20. H. 7. 11. 21. H. 7. 24. Co. 9. 69. undersheriffe Bailiffe or Constable c. needs not to shew his warrant to a man when he commeth to serve it upon him although he demandeth it But if the Iustice will direct his warrant to his servant or to another who is no sworne officer to serve it they must shew their warrant to the party if he demand it or otherwise the party may make resistance and need not to obey it 31. But a knowne and sworne officer Co. 6. 54. 96. 8. if he will not shew his warrant to the party yet he ought upon the arrest to declare the contents of his warrant c. Co. 9. 69. 32. And an officer giveth sufficient notice what he is when he saith to the party I arrest you in the Kings name c. And in such case the party at his perill ought to obey him though he knoweth him not to be an officer And if he have no lawfull warrant the party grieved may have his action of false imprisonment against him Dyer 224. F. Bar. 248. 33. If an officer do arrest a man for the peace or the like before that he hath any warrant and then afterwards doth procure a warrant or a warrant commeth after to him to arrest the party for the same cause yet the first arrest was wrongfull and the officer is subject to an action of false imprisonment 34. Where they be two or three knowne by the name of I. S. of D. yeoman and upon a warrant or other processe granted out against one of them another of them is arrested an action of false imprisonment will not lye against the officer for this for the officer is not bound at his perill to take notice which of them is the offendour And perhaps no particular offence is mentioned in the warrant 35. Where a warrant is granted out against I. N. the sonne of W. N. and the officer thereupon arresteth 10. E. 4. 12. I. N. the sonne of T. N. although in truth he be the same person that offended and against whom the complaint was made yet this arrest is tortious and the Officer subject to an Action of false imprisonment 36. The officer upon any warrant from a Iustice of peace for the peace or good behaviour or in any other case where the King is a party may by force breake open a mans house to arrest the offendor 37. If an officer or other person hath arrested a man by vertue of his warrant which he hath from a Iu. of peace and then taketh his promisse that he will come againe to him such a day to go to the Iu. with him according to his warrant and so letteth the party goe who comes not againe at the day appointed co 1. 44. 52. the officer cannot after arrest or take him againe by force of his former warrant for that this was by the consent of the officer But if the party arrested had escaped of his owne wrong without the consent of the officer now upon fresh suite the officer may take him againe although he were out of view or that he shall flie into another Towne or County 38. Where an officer hath received a warrant he is bound to pursue the effect of his warrant in every behalfe or otherwise his warrant will not excuse him of that which he hath done 21. H. 7. 39. 39. If an officer having a lawfull warrant to arrest another shal be resisted or assaulted by the party or by any other person then may that officer justifie the beating or hurting of such persons and others upon his prayer may and ought to ayde the Officer â—4 H. 8. 16. 40. If a Iustice of peace shall make any warrant for a matter wherein he hath jurisdiction although it be beyond his authority
idle persons meet to serve to be compelled to goe to service also negligent Recusants which shall not resort every Sunday to Church that such bee punished according to the stâ—tute for the first meanes to bring men to God is to bring them to Church 4. Rogues and Vagabonds to be duely punished 5. Houses of correction to be mainetained 6. Watch to be duly kept 7. Weights and measures the abuses therein to be reformed 8. Further the Iu. of P. are to be carefull that they suffer not the King to be disadvantaged where it lyeth lawfully in their power to prevent 9. Also that they remember how that they exercise not the judgements of men only but of God himselfe whose power they doe participate and who is alwayes present with them and therefore must take heed that in all their actions they set God continually before their Eyes 10. But forasmuch as most of the businesse of the Iu. of P. out of Sessions consisteth in the execution of diverse statutes committed to their charge which statutes cannot be so sufficiently abridged but that they will come short of the substance and body thereof therefore it shal be safest for the Iu. of Peace not to relie overmuch upon these short collections thereof but to have an Eye to the Abridgement of those Statutes or rather to the booke of Statutes at large and therby to take their further and better directions for their whole proceedings For as Sir Edw. Coke observeth Abridgements are of good and necessary use to serve as Tables but not to ground any opinion much lesse to proceed judicially upon them Ideò saith he satius est petere fontes quà m sectari Rivulos Coke 10. 117. b. 11. And lastly for the better encouragement of Iu. of P. Constables and other officers who by causelesse suits commenced by contentious persons against them for executing their offices have lately been discouraged from doing their offices with that courage care diligence which is required at their hands Now for their case in pleading they are by the statute of 10. Caroli in Ireland allowed to plead the generall issue of Not guilty and to give the speciall matter in Evidence and for their wrongfull vexation double Costs Barretor CHAP. 4. 9. E. 4 3. 1. EVery Iustice of peace upon his discretion may binde to the peace or good behaviour such as are common Barretors 2. Now a common Barretor is he who is either a common mover or stirrer up or maintainer of suits in Law in any Court Co. 1. 6. or else of quarrels in the Countrie In Courts 3. As if in any Court of Record County Court hundred or other inferior Courts any person by fraud and malice under colour of Law shall themselves maintaine or stirre up others unto multiplicitie of unjust and fained suites or informations upon penall lawes or shall malitiously purchase speciall Supplicavits of the peace to force others to yeeld him composition all such are Barretors 4. In the Countrie and these are of three sorts 1. Disturbers of the peace In the Country viz. such as are either common quarrellers or fighters in their owne cause or common movers or maintainers of quarrels and Affrayes betweene others 2. Common takers or detainers by force or subtiltie of the possession of houses lands or goods which beene in question 3. Inventers or sowers of false reports Co. 8. 361. whereby discord ariseth betweene neighbours all these are Barretors 5. But all such persons must be common Barretors Co. 8. 37. sc not in one or two but in many causes Bailement and Mainprise CHAP. 5. 1. BAilement Mainprise or Replevin is the saving or delivery of a man out of prison before that he hath satisfied the Law sc by finding sureties to answere and be justified by the Law And to this purpose these three termes Bailement Mainprise and Replevin be indifferently used in our statutes and bookes 2. He that is bayled Stamf. 65. is taken or kept out of prison and delivered as it were into the hands of his sureties who are reputed his guardians and who may keepe him with them F. Manip 12. and may imprison him by some opinions See 22. H. 6. Br. Surety 8. Mainp 89. 3. By the common law the Sheriffe and every Constable being conservators of the peace might have bailed a suspect of felony but this authoritie is taken from them and given to the Iustices of peace by these statutes following 4. First by the statute 1. R. 3. cap. 3. every Iustice of peace had authority by his discretion to let to bayle persons imprisoned for suspition of felony But forasmuch as after the making of that statute diverse not being baileable were notwithstanding let to Bayle Two Iustices and so many notable felons escaped therefore this statute was repealed by the statute of 3. H. 7. 3. H. 7. cap. 38 Fitz. Na. Br. 251. f. And thereby any two Iustices of peace the one being of the Quorum were enabled to let any prisoners mainpernable by the Law to baile to the next generall Sessions of the peace or gaole delivery as the case should require After for that one Iustice of peace in the name of himselfe and of one other of his fellow Iustices not making the other Iustice privie unto the cause wherefore the prisoner should be bailed did oftentimes by sinister meanes set at large great and notable offendors such as were not baileable and yet to hide their affection therein did signifie the cause of their apprehension to be but onely for a suspition of felony whereby the said offendors have escaped unpunished for reformation whereof by the statute 10. Carol. cap. 18. 10. Carol. 18. in Ireland it was enacted that if it be for Manslaughter or felony or suspition of manslaughter or felony in which cases the party is baileable then the same Iustices must be present together at the time of the said bailement and that they must certifie in writing subscribed with their owne hands the said Bailement at the next generall gaole delivery to be holden within the County where the person shall be arrested or suspected upon paine to be fined by the Iustices of gaole delivery Now by the preamble of both last recited statutes the mischiefe seemeth to bee the escape of felons and therefore if it be not in case of felony it seemeth any one Iustice of peace alone may baile a prisoner except where some particular statute shall otherwise prescribe Cromp. 1 57. 5. If the Mainpernors or sureties doe at any time or in any case doubt that their prisoner or the party by them bailed will flie they may take him and bring him before any Iustice of peace and upon their prayer the said Iu. of P. may discharge such sureties and commit the party to prison except he shall finde new sureties such as the Iustices shall conceive to be sufficient So if a prisoner be bailed by insufficient persons the Iu.
60. 63. 78. 47. 10. Carol. ca. 18. in Ireland 15. Also the statute of 10. Caroli in Ireland seemeth to admit that for manslaughter and all other homicide except murder only the slayer may be bailed by the Iustices of peace which also is the common practise at this day but let the Iustices of peace be sparing and well advised herein viz. that the offence be but manslaughter and not murder 16. Also it seemeth the Iustices of peace cannot baile him that hath committed manslaughter if either he hath confessed the offence upon his examination Or that he be taken with the manner Or that it be apparantly knowne that he killed the other for then it is more then suspition but he that hath dangerously hurt another may goe under baile 17. Likewise no person taken by the Kings commandement was baileable by the common Law but this must be intended of the Kings commadement by his owne mouth or by his privy counsell which are incorporate to him Stamf. 73. See Stamf. 72. Br. Mainp 37. 47. neither was any person taken by the commandement of the Kings Iustices baileable by the common Law but this must be intended of their absolute commandement as if the Iustice commands one to prison without shewing cause why he doth so command or for misdemeanour done in his presence or for some other cause which lyeth in the discretion of the Iustices more then in his ordinary power P. Iust 107. 18. But now for that by the statute 10. Caroli ca. 18. It is provided that no Iust or Iustices of P. shall let to baile any person contrary to the aforesaid statute of Westm 1. made 3. Ed. 1. ca. 15. And so the said statute of Westm 1. is now as a line whereby the Iustice of peace are to guide themselves in cases of Bailement I will shew here what persons are baileable by that statute of Westm 1. and what not 19. By the statute of Westm 1. no prisoner shall be let to baile 3. Ed. 1. 15. P. Mainp 1. F. N. B. 66. c. which is taken in any of these twelve cases following 1. First such as have abjured the Realme shall not be bailed 2. Stamf. 144. b. Nor any approver or appellor for that he confesseth the felony and himselfe guilty before he can burthen or accuse another as coadjutor or helper with him in doing the same 3. Nor he which is appealed by an approver Fitz. 250. D. Br. Mainp 97. so long as the approver doth live except he be of good name or that the Approver doth waive his appeale See Stamf. 74. 4. Nor he which is taken for burning of burning of a house c. feloniously 5. Nor any excommunicate person taken at the Bishops request sc upon his certificate by the writ of Excom capiend F. N. B. 66. 6. Nor any felon taken with the manner or taken for a manifest offence 7. Nor a Theefe openly defamed and knowne 8. Nor he which is outlawed and yet in some cases such as be outlawed may be bailed by the Court c. See Stamf. 74. 9. Nor he which hath broken the Kings prison 10. Nor he which is taken for Treason 11. Nor he which is taken for falsifying the Kings mony 12. Nor he which counterfeiteth the Kings seale Br. Mainp 59. 20. But by the same statute of West 1. Persons baiâ—eable West 1. 15. P. Mainp 2. Persons suspect such persons are baileable which be taken in any of these cases following 1. First he that is taken or indicted for light suspition of felony is baileable F. N. Br. 249. g. 250. c. 251. f. 2. He that is taken upon suspition of burglary robbery or theft Stamf. 74. c. if he be not of evill fame nor that there be any strong presumption against him it seemeth he is baileable 3. A man had stolne certaine hoggs 16. E. 4. 5. Br. Mainp 75. and for that he was of evill fame he was committed without baile yet if he could have brought proofe or witnesse that he bought them hee should have beene bailed 4. A man is arrested for suspition of felony and brought before the Iustice if it shall appeare there is no such felony committed Cromp. 15. the party may be set at liberty without baile but if there be a felony committed and any probability that the prisoner is guilty although in truth he be not guilty yet the Iustice must either commit him or baile him 5. Pery Larceny B. Mainp 2. Fitz. 150. E. He that is taken or indicted for pety Larceny that amounteth not above the value of xij d if he were not guilty of some Larceny before he is baileable 6. Persons indicted P. Mainp 2. Such as be indicted of Larceny generally shall be set at liberty upon sufficient surety 21. And yet they shall not be bailed if they be not also of good fame Stamf. 74. Fitz. 1. 9. 250. Br. Mainp 97. but if they be of good fame they may be bayled although they be indicted by the Iustices that have authority to heare and determine felony yet the Iustices of peace out of their Sessions may not safely baile such persons for being indicted they are then more then vehemently suspected 22. One that was indicted before the Coroner that he had killed another Se defendendo was by the Iustices of gaole delivery bailed till the next Assises to purchase his pardon 26. Eliz. Cromp. 153. Fitz. Na. br fo 249. g. 23. One that was indicted in the Sheriffes Turne for stealing of a horse may be bailed by the Sheriffe if he be of good fame as appeareth by the writ de manucaptione F. N. B. 249. g. Also one that was indicted of Burglary as principall pleaded not guilty and was after bailed 29. lib. Ass Fitz. Mainp 9. Another that was indicted of Robbery was bailed 41. lib. Ass 30. Br. Mainp 61. but these were bailed by the Court and not by a Iustice of peace in the Country Persons attaint or convict Stamf. 74. D. F. Cor. 297. 354. 24. But such as are attainted or convicted of felony are not baileable for although it doth not appeare by any words of the said statute of Westminst 1. that it doth prohibit the bailement of such as be convicted by verdict yet it is to be intended that the statute doth aswell prohibite the bailement of those convicted and attainted by verdict as it doth of them who be attainted by Outlarie And therefore if a prisoner after he hath pleaded not guilty be convicted by verdict that be killed a man Se defendendo 25. E. 3. 42. or by misfortune yet he shall not be bailed by the opinion of some bookes Neverthelesse the Iustices of Assise use to baile the prisoners that are found guilty Se defendendo or per infortunium taking security by recognizance that the prisoner at the next Assizes shall appeare and produce his pardon of grace And this I conceive to
be legall enough for avoyding of charge and circuite for if the prisoner procure a certificate of the verdict into the Chancery it appeareth by Stamford fo 74. that a writ shall issue to the Sheriffe to baile him Dyer 179. See Br. Mainp 94. 25. And if a man that is arraigned of homicide doth plead not guilty and is found guilty and doth pray his Clergie and is reprived without judgement he is not baileable for being convicted of the felony he is more now then vehemently suspected and the intendment of Law in cases of Bailement is that it resteth indifferent whether he be guilty or not untill Tryall c. 26. The same reason seemeth to hold if a man be indicted of homicide before the Coroner yet See 22. Ass p. 94. Br. Cor. 90. that such are baileable as are indicted before the Coroner but of Manslaughter and so is the common practise at this day 27. Also a man convicted of felony remaineth in prison and after obtaineth the K. pardon the Iust of gaole delivery may baile him till the next gaole delivery that he may then come with his pardon and plead it 2. E. 6. Br. Manip 94. 28. Stamf. 1. Those that be charged as accessaries in felony be baileable and it seemeth that accessaries to felonies are within the Equity of this statute Stamf. 71. c. Fitz. 250. c. Br. Main 11. 58. and are baileable if they be of good fame untill the principall be convict or attaint but after the principall is attainted the accessary shall not be bailed but kept in prison 40 E 3. f. 28. Stamf. 71. c. Br. Main 58. and yet if after the attainder of the principall the accessary shall plead not guilty or other plea it seemeth he shall be bailed See more in Br. Mainp 6. 9. 22. 54. 64. 97. 29. If a man be accessary to two Stamf. 71. F. Cor. 200. and the one principall is attainted though the other be not yet the accessary shall not be bailed 30. In felony if the principall dye in prison or be attainted of another felony the accessary shall be bailed F. Coro 378. Br. Mainp 91. 31. Also the said statute of Westm. 1. cap. 15. doth no more restraine the principals to be bailed then the accessaries in those cases where the same statute doth not prohibite to let to Mainprise Stamf. 74. Br. Main 53. F. Mainp 9. and therefore if a man be indicted of Burglary as principall yet he may be bailed Stamf. 74. Stamf. 74. Also the principall in appeale of Robbery may be bailed And so may he be bailed upon an Indictment of Robbery Br. 61. 75. 97. Stamf. 71. Br. 56. 58. 97. But the principall for murder is not baileable either by the common Law or by the stat of Westminst 1. by the Iustices of peace or by the Sheriffe but the Iustices of the Kings Bench doe use to baile them for they are not restrained neither by the common Law nor by the said statute Trespasse West 1. 15. P. Mainp 2. howbeit I doe advise the Iustices of peace to be sparing in the bailement either of Burglars Robbers or other notorious felons and to take very good sureties for such as they shall baile 32. Those that be charged with or guilty of any Trespasse that toucheth not losse of life nor member be baileable by the statute of Westm. 1. 15. before they be convicted But yet let the Iustice of peace have a Care that baile be not prohibited by any other latter statute in such cases of Trespasse 33. If any person be committed to prison Fitz. 250. g. by proces from the Sessions made upon an Indictment upon any penall statute not prohibiting baile he maybe bailed out of the Sessions by two Iustices of peace the one being of the Quorum Br. 97. Or he may have a writ out of the Chancery directed to the Iustices of peace or to the Sheriffe to take surety of him for his apparance before the Iustices at their Sessions Or he may have a Cerciorari to remove the record into the Kings Bench and a habeas corpus to remove the body thither also Fitz. 250. g. h. i. 251. c. 34. If proces from the Sessions shall goe forth upon any indictment of Trespasse Cromp. 197. 134. c. any one Iustice of peace may take bayle of the party to appeare at the day c. to answere to the indictment and the same Iu. may thereupon make his Supersedeas for otherwise besides the mischiefe of imprisonment the party may be outlawed before the Sessions Note that the Iustices of peace are not to baile any prisoner except the prisoner be committed for such cause wherof the said Iustices of peace may â—either enquire heare â—or determine Cromp. 152. and therefore if a man bee taken upon proces of rebellion issuing out of the Chancery or Star-chamber or such like the Iustices of peace are not to baile him And Master Crompton reporteth of two Iustices of peace who were fined for bailing one in such a case 35. Also if a man be arrested by force of any proces writ bill or warrant in any action personall the Iustices of peace are not to baile him 36. Persons condemned in any of the Kings Courts and by vertue thereof committed to prison And persons being in execution upon any statute or recognisance c. at the suit of any person the Iu. of P. are not to baile any such Execution P. Mainp 2. Fitz. 250. d. 37. He that is appealed by an approver being no common thiefe nor defamed after the death of the Approver is baileable by the statute of West 1. 38. Note that a man cannot become an Approver before a Iustice of peace Stamf. 144. 2. neverthelesse it seemeth both reasonable and serviceable that if a felon will become an Approver that is will confesse his felony and also accuse others that were coadjutors with him in doing the same felony or in other felonies before a Iustice of peace that such Iustice may take his confession and commit him to the gaole and may also grant out his warrant for the apprehending of the others that are so accused 39. Againe the statute of 23. H. 6. c. 10. taketh away baile from all such as be in prison by condemnation execution Capias utlagatum excommunication surety for the peace or by the speciall commandement of any Iustice prohibiting that such be not bailed either by the Sheriffe or other officer or minister 40. There be divers other statutes which doe take away baile from the offendours thereof and that not onely upon their solemne conviction after publick hearing triall and judgement but also upon the record of one or two Iustices of peace or by private examination and confession of the offendour or proofe of witnesses or such other private tryall had before the Iustices of peace out of their Sessions most of which I have here set downe whereof
the Iustices of the peace as I said before are to be carefull 1. No person being imprisoned or taken for any of the offences or causes here-under mentioned Where Baile is taken away 13. E. 1. ca. 11. shall be bailed or let to Mainprise otherwise then as hereafter followeth sc Accomptants found in arrearages before Auditors shall be imprisoned without baile untill they have satisfied their Master all arrearages 2. Appellors or approvers shall not be bailed West 1. cap. 15. Nor he which is appealed by an Approver Ibid. 3. Persons going or riding armed contrary to the statute of Northhampton and being thereof convict shall bee imprisoned untill they have paid such Fyne as shall be therefore imposed upon them 4. Breakers of prison are not baileable Westm. 1. 15. 5. Surveyors and Collectors 10. Caroli ca. 20. in Ireland appointed for the repairing of Bridges if they refuse to accompt of the money by them received they shall be imprisoned untill they have truely accompted 6. Burners of houses or Ricks of Corne in Towne or fields 13. H. 8. ca. 1. in Ireland are not baileable for these offences in Ireland are Treason 7. Constables neglecting to whip Trespassers in Corne woods or Orchards at the commandement of a Iustice of peace shall be imprisoned untill they have caused the offendour to be whipped 10. Caroli ca. 23. 8. Persons condemned in any of the Kings Courts See 23. H. 6. cap. 10. and by vertue thereof committed to prison they shall not be bailed untill they have agreed with the plaintiffe 1. R. 2. c. 12. 2. H. 5. c. 2. Fitz. N. B. 121. A. 9. Conjurers and Witches shall not be bailed 10. Counterfeiters of the Kings seale or money are not baileable West 1. cap. 15. 11. Excommunicate persons Where baile is taken away West 1. 15. See 23. H. 6. ca. 10. taken by a writ de excommunicato capiendo shall not be bailed 12. Such persons as are in execution upon any statute or recognizance or upon judgement given in the Kings Courts at the suit of any person shall not bee bailed untill they have agreed with the plaintiffe 1. R. 2. ca. 12. 23. H. 6. ca. 10. Fitz. N. Br. fol. 93. c. 121 a. 13. Felons taken for murder are not baileable but if it be but for Manslaughter they may be bailed But felons taken with the manner are not baileable Westminster 1. cap. 15. Or if it bee apparantly knowne that they did the felony they are not baileable 14. Or if they confesse the felony upon their examination before the Iust of P. Cromp. 152. B. Or if he be a Thiefe openly knowne West 1. 15. Or if he bee of evill fame by credible report Br. Mainp 75. in all these cases they are not baileable 15. Yet in these former cases of felony if the theft be not above the value of Twelve pence the Iustices of peace may baile the prisoner it being no felony of death 16. Nor hee which is convict or attaint of felony is not baileable 17. Also persons convict of Forceible Entry or detainer shall not be bailed untill they have paid their Fyne or have found sureties by recognizance for payment thereof 18. Forgers of any deed writing sealed will or Court Roll and the assenters thereto and the publishers thereof knowing the same 28. Eliz. ca. 4. in Ireland shall not be bailed if they be convicted thereof but every of the offendours aforesaid in all cases of forgery being thereof convicted shall suffer perpetuall imprisonment during their lives where any mans estate of inheritance Free-hold or Coppy-hold shall bee defeated charged or molested thereby otherwise the offendours shall suffer one yeares imprisonment without baile 10. Caroli ca. 3. in Ireland 19. Persons convicted of making fraudulent conveyances their defenders Iustifyers or putters thereof in ure knowing the same and those which shall assigne over any lands leases or goods so to them convayed knowing the same shall suffer imprisonment one halfe yeare without baile 20. Maintainers of houses or places for any unlawfull game and common gamesters every Iustice of Peace seeing or finding any such may imprison the offendors till they finde sureties by recognisance no more to offend in the premises or for their good behaviour and this he may doe by the common Law and by the first Assignavimus of the Commission of the peace and the offendours shall not be bailed without finding such bonds 10. Caroli ca. 26. 21. Collectors for high-wayes bridges Causeys or Toghers which shall refuse to accompt for the mony by them collected shall be imprisoned untill they have accompted for and paid the same and shall not be bailed 22. Hunting if any lay man not having in lands 40. s. per annum Or if any Priest or Clerke not having 10.l living per annum shall keepe any hound greyhound or other dogge for to hunt or any Ferrets hayes nets or other engines to take or destroy Deare Hare Conyes or other Gentlemens game and shall be thereof convicted every such offendour shall be imprisoned for one whole yeare and not bailed 13. R. 2. ca. 13. 23. Reporters of false newes which may cause discord betweene the King and his people and spreaders of false newes or lyes of any of the Peeres or great officers of the Realme if they be thereof convicted shall be imprisoned untill they have brought him into the Court who was first author of the tale and shall not be bailed 3. E. 1. ca. 33. 2. R. 2. ca. 5. 23. H. 6. ca. 10. 24. No person committed by the King or Counsels commandement nor by any of the K. Iust shall be bailed 25. So in all cases where a statute ordaineth that an offendor shall be imprisoned at the Kings will and pleasure there the prisoner cannot be bailed or delivered untill the King hath signified his pleasure of him as if one be imprisoned for going or riding armed contrary to the statute of North-hampton made Anno 2. E. 3. ca. 3. 24. E. 3. f. 3. Br. contempts 6. 26. And in such cases the prisoner is to redeeme his liberty with some portion of money as he can best agree with the King or his Iustices for the same And so it seemeth the Iu. before whom such an offendour shall be convict may assesse such Fine or ransome according to their discretions and upon payment thereof may deliver the prisoner out of prison for the King signifieth therein his pleasure by the mouths of his Iustices 27. Servants departing from their masters without good cause and persons compellable to serve that upon request made shall refuse to serve for the wages rated and appointed by proclamation and being committed for that cause are not baileable 28. Such persons as at their proper Costs shall buy 8. H. 6. 4. or weare any Liveries cloathes or hats to have maintenance and be thereof convicted shall have one whole yeares imprisonment without baile 29. Persons taken for falsifying
and for Indictments taken in a Leet See Br. tit Leet 1. 18. But now to returne to the businesse of the Iustices of peace out of their Sessions If one shall bring a man suspected of Treason or felony before any Iust of P. but refuseth to be bound to give Evidence against the prisoner either at the generall gaole delivery or quarter Sessions as the case shall require If such bringer hath given Evidence before the said Iu. against the prisoner or can declare any thing materiall to prove the felony and will not Cromp. 10â— b. the Iustice of peace upon his discretion may commit to prison such person so refusing or may bind him to his good behaviour But if the bringer of a person suspected of felony cannot declare any thing materiall to prove the felony nor any other person then present the Iustice ought not to commit the prisoner yet the Iustice of peace shall doe well to examine the prisoner and if he shall confesse the felony then to commit him Or if upon his examination there shall appeare any just cause of suspition Or if the prisoner be a man of evill fame and that there be a felony committed in these cases the Iustice shall doe well not to let him goe but at least to bind him over to the next gaole delivery and in the meane time to take further information against him Now forasmuch as it appeareth that a great part of the office of a Iustice of pâ—ace is to be exercised in the apprehending examining and committing of felons it will be necessary to know first what offences are felony by the common Law And in the next place to set forth what offences are felony by the statute Lawes Felonies by the Common Law CHAP. 10. 1. FElonies by the Common Law are of diverse sorts as Homicide Burglarie Theft burning of houses Rescous and escape 2. Homicide Homicide most properly is hominis occisio ab homine facta for if a man be killed by a beast as a horse or dogge or by any other thing or mischance although that be hominis cedium of which two words Homicide is derived yet in such cases it is not aptly nor usually said that homicide is committed but onely a man is said to be slaine 3. Others doe thus defyne or describe it Homicide is the felonious killing of one man by another within the Realme and living under the Kings protection 4. But to kill a man beyond the Seas or to strike and give one a mortall wound beyond the Seas or upon the Sea whereupon he dyeth upon the land within this Realme these homicides are not punishable as felony by the common Law for that they cannot be inquired of nor tryed here 10. Caroli ca. 19. in Ireland for in criminall causes the rule is ubi quis delinquit ibi punietur But now by a statute made in 10. Caroli ca. 19. it is otherwise and by that statute these offences are felony and shall be tried here 5. But whether he that is slaine be an Alien or a Denizen an Englishman or stranger it maketh no difference if he live under the Kings protection Co. 7. 13. 14. Cromp. 24. 6. To kill a man attainted by verdict or by outlawry or otherwise of any murder felony or Treason is felony For none may kill or put to death any of these but the Officer of Iustice and that by warrant See Doct. Student f. 133. 7. To kill the Kings enemy is no Felony And by the statute of 25. E. 3. ca. 22. to kill a man attainted upon a praemunire is not felony but by a statute made in England in 5. El. ca. 1. it is declared to be Felony to kill one that is attainted in a Praemunire 8. Also to kill a man that hath abjured the realme is Felony See Co. 7. 9. b. and the Doct. and Student fol. 133. 9. Note that the Kings protection belongeth by the law of nature to all these Co. 7. 14. and the King may protect and pardon them all Homicide is threefold Voluntate est duplex Murder Manslaughter or Chancemedley Casu or misadventure this also is considerable after two sorts sc whether it happen in doing a thing lawfull or unlawfull Necessitate this is sometimes 1. Commanded sc in execution of Iustice 2. Tollerated 3. Prohibited for advancement of Iustice Se defendendo Felo de se 10. But first to write something of Felo de se Dyer 262 Plo. 261. 11. If a man kill himselfe either with a premeditate hatred against his owne life or out of discontent or other humor he is called Felo de se and he shall forfeit to the King his goods and Chattels reall and personall and his debts due to him by specialty Stamf. fo 188. Co. li. 4. fo 95. and also debts due to him without specialtie or upon simple contract and yet Dyer 262. 16. Ed. 4. 7. are that debts upon contract shall not be forfeited but Stamford fo 188. and Co. li. 4. fo 95. resolve that debts upon contracts shall be forfaited 12. But he shall not forfeite his lands Fi. Coro 301. Plo. 261. neither shall his blood be corrupt See Fitz. Coron 362. 426. 13. If a man doe give himselfe a deadly wound and dyeth thereof within the yeare and a day after Plo. 262. All his goods c. which he had the time of the blow given or at any time after shall be forfeited to the King 14. Yet the goods of felo de se Co. â— 110. 21. H. 7. 33. be not forfeited till his death be presented and found of record neither can these goods be claymed by prescription by Lords of liberties c. but by the Kings grant because the King is intitled by matter of record 15. If A. doe strike B. to the ground and then draweth his knife to kill B. and B. lying upon the ground 44. Ed. 3. 44. draweth his knife to defend himselfe and A. is so hasty to kill B. that he falleth upon B. his knife Fitz Cor. 94. and so A. is slaine here A. in a manner is Felo de se And yet shall not A. forfeite his goods in this case See 44. Ass p. 17. Br. Cor. 12. 14. 16. If one that wanteth discretion killeth himselfe as an Infant Stamf. 19. co 1. 9â— Plo. 269. F. Cor. 342. Co. 4. 125. or a man non compos mentis he shall not forfeite his goods c. 17. If a lunatique person killeth himselfe he shall forfeite his goods sc if he killeth himselfe out of his lunacy otherwise if he killeth himselfe during his lunacy 18. The enquiry of such a felony belongeth to the Coroher And yet if Felo de se be cast into the Sea Co. 5. 110. or so secretly buryed that the Coroner cannot have the sight of his body and so cannot enquire thereof then the Iustices of peace or any other having authority to
breake a house in the day time although hee hath a felonious intent yet if he carrieth away nothing this is no felony for there must be an actuall felony done besides the breaking of the house in the day And by the report of Master Dallison these statutes shall be straightly construed in favour of life and according to the bare letter so that if the Robbery be done by day and there be in the house but one servant onely or there be in the house Booth or Tent but a stranger or sojourner onely the fact shall not be adjudged an offence against these statutes to take away the benefit of Clergy 27. If servants imbezell the goods of their deceased master or goe away with their masters goods See antea in the chapter of Larceny ca. 19. Sect. 15. 23. where this shall be felony 18. H. 6. 10. P. Fel 23. P. Capt. 3. 28. Souldiers entred of record and having taken prest mony or parcell of their wages of their Captaine if they shall not passe the sea or goe with their Captaine or being in the Kings service shall depart without licence Co. 6. 27. it is felony See Co. 6. 27. that this statute of 18. H. 6. 19 is now of litle force but yet the departure of a souldier without licence is felony by the statute 7. H. 7. 1. which statute is yet in force and perpetuall Co. ibid. 1 Ed. 1. 35. â—d â—4 29. To ravish a woman where she doth neither consent before nor after or to ravish any woman with force though she doe consent after it is felony and the offendour shall have no benefit of Clergy 11. Ia. ca. 3. in Ireland Stamf. 22. Cromp. 100. But a woman that is ravished ought presently to levy Huy and Cry or to complaine thereof presently to some credible persons as it seemeth Glanvill 115. See the Stat. de officio Coronatoris 4. E. 1. 30. Britton 45. Stamf. 25. If a woman at the time of the supposed Rape doe conceive with childe by the ravisher this is no Rape for a woman cannot conceive with childe except she doe consent 4. E. 4. 6. Br. Parliament 55. But if a man ravish a woman who consenteth for feare of death or dures yet this is ravishment against her will for that consent ought to bee voluntarie and free 31. All such as are present abetting ayding 11. H. 4. Stamf. 44. or procuring another to commit rape are principall felons 32. It is a good plea in an appeale of rape Stamf. 24. to say that before the ravishment supposed she was his concubine as Maister Bracton saith And yet to ravish an harlot against her will is felony Cromp. 47. for licet meretrix suerit ante certè tunc temporis non fuit cum nequitiae ejus reclamando consentire noluit Bract. lib. 2. 33. Also to take away any Maide 3. H. 7. 2. P. Fel. 16. widdow or wife having lands or goods or being heire apparant to her Ancestor against her will unlawfully is felony and to receive any so taken knowing thereof or to procure and abet the same is felony And shall be all reputed as principals 34. The taking away of a mayde under 16 yeares of age without the consent of her parents or governours 10. Caroli ca. 17. in Ireland or contracting marriage with her or deflowring her is no felony but yet shall be punished with long imprisonment without bayle or with grievous fyne 35. 13. Ass 6. Br. Cor. 77. Stamf. 94. Cromp. 35. Also to take away a mans wife with the goods of her husband whether it be against her will or against her husbands will seemeth to be felony by the stat of West 2. cap. 34. the words thereof are de mulieribus abductis cum bonis virorum suorum habeat rex sectam de bonis sic asportatis 36. But if the wife take her husbands goods F. Cor. 455. Stamf. 27. and so goeth away voluntarily with another man and with those goods or delivereth those goods to another man these two last cases seeme not to bee felony 37. By a statute made in Ireland in the third yeare of the Raigne of King Edward the second cap. 1. 2. 3. Ed. 3. ca. 1. 2. Taking of meat or drinke against the will of the owner is felony 38. Also by a statute made in Ireland in the fifteenth yeare of the raigne of King Edward the fourth Rot. Parliament cap. 8. the taking of a distresse contrary to the common law that is to say where no distresse lyeth in the case as to distrayne for debt breach of Covenant or such like is felony but to distrayne where a distresse lyeth in the case as for rent service or such like although the taking of the distresse be unlawfull because no rent is arreare yet that is no felony for that distresse is not contrary to the common law 39. Also by a statute made in Ireland in the Eleventh yeare of the raigne of Queene Elizabeth cap. 10. It is felonie in a Searcher to conceale the transporting of wooll and other prohibited merchandises 13. El. ca. 4. in Ireland 40. By another statute made in Ireland in the thirteenth yeare of Queene Elizabeth ca. 4. it is ordained that the shipping loading imbarquing and putting into any ship barque Pickard Boat or any other vessell whatsoever of any prohibited merchandises as Wooll woolfels c. in any port haven harbrow or Creeke within this Realme before entrie made of the same and the customes well and truely paid according the tenor and effect of another statute made in 11. 11. El. ca. 10. in Ireland Eliz. ca. 10. shall be adjudged and deemed felonie in all and every such person and persons their ayders consorts and assistants that will so ship loade imbarque and put the said goods into any Ship Barque Pickard Boate or other vessell before entrie made and the said customes paid as aforesaid and that the same persons their ayders consentours and assistants so to doe shall have the same order of processe inquiry triall judgement forfeiture and execution as in cases of felony is used by the common Law in this Realme and that the Iustices of peace at their Sessions and all and every officer and officers within Cities and incorporated Townes having authoritie to be Iustices of peace or of gaole deliverie within the said Citties and incorporated Townes shall and may lawfully inquire heare and determine all and singular the premisses made felony by the said Act. 41. By a statute made in Ireland in Anno 10. H. 7. ca. 11. It is enacted that if any person take any money or other amends for the death or murder of his kinsman or friend other then the lawes of the kingdome will permit the same 10. H. 7. ca. 11. shall be felony 42. By a statute made in 33. H. 8. ca. 5. It is felony for a servant of the age of 18. 33.
Prisots reason they may seise such goods 10. Co. 11. 30. 38. Conviction in felony is where a man being indicted of felony upon his arraignement submitteth himselfe to be tryed by the Countrey P.R. 179. and then is found guilty by the verdict of twelve other Iurors Or shall confesse the offence upon his triall or is outlawed for the same Co. 1â— 30. Also conviction in all other offences by the common Law is where the offendor is indicted or the offence presented by a Iury whereto the offendor pleadeth Not guilty and is found guilty by the verdict of twelve other Iurors 11. And yet by diverse statutes you shall finde that an offendor may be convicted out of Court either upon the view and record of the Iustice of peace Or by the confession of the offendor or upon examination of witnesses before one or two Iustices of peace and that out of the Sessions 12. And sometimes by confession or examination of witnesses in Court without any verdict taken See Crom. 130. 131. Br. Confes 32. And in some cases conviction shall be taken for attaineder see Co. 11. 59. 60. 13. The difference betweene attainder and conviction Co. 11. 58. Stamf. 138. 185. b. in case of felony is the person attainted hath judgement of death given upon him The person convict before judgement prayeth his Clergy and hath it c. Or after verdict confession or outlary the felon is said to be convicted till judgement be given 14. And so a man is properly said to be indicted when the offence is first found by the great Enquest or other Iury of Enquiry 15. Convicted when the offendor is found guilty by a second Iury. 16. Attainted when after such conviction judgement is given against the offendor Examination of felons and Evidence against them CHAP. 27. 1. VVHen any person shall be brought before a Iu. of P. for Treason 10. Caroli c. 18. in Ireland murder manslaughter or any other felony wherewith the Iu. of P. may deale or for suspition thereof before the Iustice shall commit or send such offendor to prison he shall take 1. The examination of such offendor in writing but not upon oath 2. The information of such as bring him viz. he shall take their examination and information of the fact and circumstances thereof upon oath And so much thereof as shall be materiall to prove the felony he shall put in writing within two dayes after the said examination 3. Also the same Iu. of P. shall binde all such by recognisance as doe declare any thing materiall to prove the treason or felony to appeare at the next generall gaole delivery to be holden where the triall of the said felony shall be to give in evidence against such offendors 4. And then the same Iustice shall make his Mittimus to carry the offendor to the Gaole 10. Caroli c. 18. in Ireland 5. Or if such offendor be baileable and that there be two Iustices of P. present together the one of them being of the Quorum after such examination and information taken and put in writing the said Iu. of peace may baile such prisoner 6. And the said Iu. or Iustices of P. shall certifie at the next generall gaole delivery such examination information recognisance and bailement 7. And if any Iu. of P. shall offend in any thing contrary to the true intent and meaning of this statute the Iustices of gaole delivery in their discretions shall fine every such Iustice of peace 8. And yet for petty Larcenies and felonies the offendors in the County of Dublin may be tryed at the quarter Sessions and the examinations and informations may be certified thither and the Informers bound thither 9. For the forme of the recognisance the forme of the Mittimus and the forme of the bailement See postea in the title of warrants and presidents 10. It the offendor upon his examination before the Iustices of P. shall confesse the matter it shall not be amisse that the offendor subscribes his name or marke under such confession made by him 11. If the offendor confesseth the felony before the Iustice of peace and notwithstanding he letteth him goe without committing or bailing of him this seemeth to be a voluntary escape and so felony in the Iustice Cromp. 39. 44. 12. Also if any person shall be brought before a Iustice of Peace and charged with any manner of homicide other than that which shall be done in the orderly execution of Iudgement as if it were done se defendendo or by casualty which are not felonies of death or done by an infant a lunaticke or the like yet it is the Iustices part and safest for him to commit the offendour to prison or at least to joyne with some other in the bailement of him if the cause will suffer it to the end the party may be discharged by a lawfull tryall 13. Children may be examined to prove a felony against their parents and bound to give Evidence for the sonne and daughter of Elizab. Device a witch were not onely examined by the Iustice of Peace against their said mother and the said examinations certified and openly read upon the arraignement and triall but the daughter also was commanded and did give open Evidence against her mother then prisoner at the Barre And by the statute of 10. 10. Carol. ca. 19. in Ireland Caroli in Ireland the Iustices of peace are to binde by recognisance to give Evidence all such as doe declare any thing materiall to prove the felonie 14. It appeareth in the booke of the discovery of witches By an Infant that two children the one about 9. yeares of age the other of 14. did upon their oathes give Evidence against the prisoners upon their arraignement And likewise at an Assise at Downe a murder was discovered and the murderer condemned upon the sole evidence of a child of about 10. yeares old and the murderer after she had received her judgement confessed the fact with all the circumstances according as the child had declared the same 15. Two informe against another in matter of felonie By persons discredited and they varie in their tales viz. in the day and place when and where the felony was committed such information is not much to bee credited See the storie of Susanna 16. He that is examined Cromp. 100. if part of that he speaketh be proved to be false Dalton pag. 271. he is not much to be credited in the residue of his information and therefore we shall find in 16. Ed. 4. that a man who was produced as a witnesse in the Chancery in his deposition was found to sweare falsely in part and thereupon his testimony was utterly rejected 17. A man attainted of perjurie and after pardoned and restored such a persons information is not much to be credited against a prisoner for the old saying is Once forsworne ever forlorne 18. A man attainted of conspiracie or forgerie shall
offendors as at his comming he shall see or finde touching the force Arrest And may take away their weapons harnesse and Armour and presently cause them to be preised and afterwards to be answered to the King as forfeited or the value thereof 11. If the doores be shut and they within the house shall deny the Iustice to enter he may breake open the house to remove the force 12. But if such offendors being in the house at the comming of the Iustice shall make no resistance nor make shew of any force then the Iustice cannot arrest or remove them except upon the enquiry a force be found See Cromp. 37. 13. Also if the house or land which is holden with force shall extend into two Counties Cromp. 71. and the offendors remove their force into that part of the house or land which is in the other County when the Iustices doe come they cannot then remove the force 14. And if the Iustice at his comming shall see or finde a force and shall remove the offendors yet he may not upon his owne view restore the party ousted to his possession againe without enquiry first made of the force by a Iury. 15. Record 14. H. 7. 8. Co. 8. 121. Also the Iustice ought to make a Record of such force by him viewed which Record shall be a sufficient conviction of the offendors and the parties shall not be allowed to travers it 16. 163. 375. And this record being made out of the Sessions by a particular Iustice the said Iustice may keepe it by him or he may make it indented and certifie the one part into the Kings Bench or leave it with the Clerke of the peace and the other part he may keepe himselfe 17. The forme of the record you shall finde hereafter in the Title of warrants and presidents 18. Imprison 21. H. 6. 5. Br. Peace 4. Also he ought to commit immediately to the next gaole all such persons as he shall finde and see continuing the force at his comming to the place there to remaine convict by his owne view testimony and record untill they have paid a Fine to the King Co. 8. 12â— P. 2. For this sight and view of the force by the Iustice being a Iudge of Record maketh his record thereof in the Iudgement of Law as strong and effectuall as if the offendors had confessed the force before him and touching the restraining of a traverse more effectuall then if the force had beene found by a Iury upon the Evidence of others 19. Aâ—d yet the words of the statute seeme more large sc And if he doe finde any that made any such forceible Entrie or that hold the place with force Cromp. 1â—5 c. he shall commit the offendors to the gaole c. But such force must be in the presence or view of the Iustice of peace or else he can neither record it nor yet commit the offendors 13. H. 7. Crooke 41. 20. The forme of the Mittimus you may see afterwards in the Title of warrants and presidents 21. Also the same Iustice of peace or some of them that shall see the force as having best knowledge of the matter and of the quality of the offence Fine Co. 8. 41. a. 557. and having the custodie of this record are the proper Iudges over this offence And therefore may assesse the fine upon every such offendor and commit him untill he make payment thereof But the fine must be imposed upon every offendor severally and not upon them jointly Co. 11. 43. 3. And the Iustice ought to estreate the same Fine and committall and to send the estreate immediately into the Eschequer that there the Sheriffe may be charged with the said Fine upon his account 22. Also upon payment of the said Fine the said Iustice may deliver the offendors out of prison againe by some opinions Br. Imp. 100. but the safest way for the Iustice of peace is to estreate the Fine and committall into the Eschequer and leave the further proceeding therein to that Court. 23. Or the Iustice of peace by some opinions may record such force and commit the offendors and after certifie the record to the Iustices of Assise Cromp. 161. and gaole delivery as it was done at Stafford Assises Anno 26. Eliz. by the report of Master Crompton or else to certifie it to the generall Sessions of the peace as it seemeth to Master Crompton and there the offendors may be fined For saith he the statute doth not say that the Fine shall be assessed by them that record the force more than by other Iustices 24. Or rather the Iustice of peace may certifie or deliver the record by him made and referre the fine and further proceedings therein to the K. Bench in regard of their supreame authority in such cases And this Master Lambert thinketh to be the safest course Enquirie 25. Also the Iustice of peace notwithstanding his owne view of the force may and ought in some good towne and place neere where the force was to enquire by a sufficient Iury of the same County to be returned by the Sheriffe aswell of those which made such forceible Entrie as of those which made such forceible deteyner 26. And here note that any one Iustice of peace alone out of the Sessions may make an Enquiry being so appointed by the statute whereas otherwise there must be two Iustices at the least to make an inquiry or to hold a Sessions and one of them of the Quorum 27. And this enquiry ought to be made whether the offendors be present or gone at the comming of the Iustice of peace yea this enquiry the Iustice must make though he goe not to see the place where the force is for without this enquiry there can be no restitution 28. The forme of a precept to the Sheriffe to returne a Iury and the forme of the Enquiry Presentment or verdict you shall finde in the Title of warrants and presidents 29. And if upon such Enquiry Restitution such forceible Entrie or forceible holding or deteiner shall be found by the Oathes of the Enquirors then the said Iustice of peace shall reseise the lands and tenements so entred upon or holden and thereof put the party in possession againe which in such sort was put or holden out 30. But aswell the putting out as also the holding out must of necessity be found and that by expresse words in the Indictment 31. And this restitution the Iustice of peace may make himselfe Or he may make his warrant to the Sheriffe to doe it Or else he may certifie such presentment or indictment taken before him into the Kings Bench and so leave the restitution to be awarded out of that Court. 32. But the Iustices of Assise and gaole delivery nor Iustices of peace at their generall Sessions cannot as it seemeth make or award restitution except the Indictment were found before them but the
Majesties pleasure God save the King 4. Then the Iust of P. may enter and search whether there be any force of Armour or weapon worne or borne against this proclamation or otherwise he may inquire thereof by a Iury for so the writ it selfe doth warrant him And if after proclamation any such be found he ought to imprison the offendors and to seise to the K. use and preise by the oathes of some present the armour and weapons so found with them and the offendors so imprisoned are to remaine in prison untill that some other commandement bee given concerning them from his Majestie viz. by writ out of the Chancerie 5. But if upon the Proclamation made they doe depart in peaceable manner then hath the Iust no warrant by the writ to commit them to prison nor to take away their Armour 6. But when the Iustice hath removed the force upon his writ he may not put the party that was put out Cromp. 74. 162. in possession againe for if he doe it seemeth both the Iustice and the party also are punishable in the Starchamber for the writ doth authorish the Iustice onely to remove the force and not to make restitution 48. The forme of this writ upon the statute of North-hampton you may see in Fitz. N.B. 249. Without writ 49. The forme of the certificate or returne into the Chancery of this writ you may see after in the Title of warrants and presidents 2. Ed. 3. 3. P. Armor 1. 50. Also every Iustice of peace ex officio and without any writ may doe execution of this statute of North-hampton and that aswell by force of the commission as also of the said statute 51. The manner to execute this statute by the Iustice of peace ex officio seemeth to be all one as before where he hath a writ delivered him saving that when he doth this ex officio and without writ he needeth not to make any proclamation nor to send any certificate into the Chancery But the Iustice may goe to the place where the force is and if it be in a house may enter and search if any force of Armour or weapon be worne and borne against this statute And if any such offendors be found he may commit them to prison and may seise and preise the Armour and weapon so found with them and he ought to record all that which he shall doe in this behalfe and the same to Estreate into the Exchequer that the King may be answered of the Armour or of the value thereof 52. But here againe the Iustice must not make any restitution of the possession to the party ousted but must only remove the force 53. And concerning the offendors so found and committed by the said Iustice of peace Cromp. 160. it seemeth the Iustice at his discretion may fine them and upon payment thereof may deliver the offendors even as in the former statutes of 15. R. 2. 8. H. 6. Or else the said Iustice may record such force and commit the offendors and after certifie the record into the Kings Bench or to the Iustices of gaole delivery or to the generall Sessions of the peace but if he commit and fine the offendors he must Estreate the same into the Exchequer 54. So that these statutes doe now give full remedy and doe prohibit and are made against these three degrees or sorts of force viz. against Fitz. 248. c. 1. Such as enter peaceably and then hold forceibly 2. Such as enter with force and then hold peaceably 3. Such as doe both enter forceibly and hold forceibly 55. Now it is requisit to show how the Iustice of peace shall demeane himselfe in the execution of these statutes I will therefore proceede to give him some further light in these seven particulars following 1. First what is a forceible Entrie and what is a forceible holding within the meaning of these statutes 2. Who may commit a forceible Entrie c. and upon whom 3. Where a force or forceible holding is justifieable or lawfull 4. What and how many severall remedies the party hath that is so put or kept out of his possessions 5. The manner of proceeding of the Iustice of peace by Enquiry 6. Of restitution to be made to the party so put out by whom and to whom 7. What causes there may be for staying the Iustice of peace from making restitution What is a forceible Entrie or holding within these statutes CHAP. 30. 1. OUr Law taketh knowledge of two manners of force the one may be termed a force in judgemēt of Law which accompteth every private Trespasse to be a force so as if I doe but passe over another mans ground without licence he may have his action of Trespasse against me Quare vi armis c. 2. The other manner of force is more apparant and alwayes carryeth some fearefull shew and matter of terror with it 3. This last sort of force is that which is prohibited by these statutes and therefore note that every force punishable by these statutes must have one of these two badges sc it must be either Manuforti or multitudine 4. Manuforti sc either with apparent violence in deed Dalton p. 177. or word offered to the person of another as threatning speeches turbulent behaviour or actuall violence or else that they be furnished with offensive weapons by them not usually borne and this may be done by one person onely 5. Multitudine 10. H. 7. 12. sc with company more than usually they have attending on them 10. H. 7. 12. The law properly calleth it a multitude when there be three or moe in one company 6. If therefore one Forceible Entrie or moe persons shall come weaponed especially with weapons not usually borne to a house or land and shall violently enter thereinto this is a forceible Entrie within the meaning of these statutes 7. Much more if being so entred hee or they shall there offer violence or feare of harme Dalton p. 177. to the person of any that is in possession thereof most of all if he or they shall forceibly and furiously expell and drive another out of such his possession 8. So is it if one shall enter peaceably the doore being open Dalton ibid. or onely latched and after he is in the house he shall forceibly put another out of his possession Dalton ibid. 9. So is it if he or they that shall enter peaceably shall after their Entrie offer apparant violence threatnings or feare of harme to the person of any that is in possession to the intent to get him out and to make him leave the possession though they doe not put him out of possession much more if they get the possession thereby 10. If he or they that have entred peaceably shall after use words to any in possession to this effect Dalton pa. 178. as to say they will hold or keepe it though they die for it
restitution if hee shall continue a peaceable posses againe for three yeares together then it seemeth he may justifie the Deteiner of the posses thereof by force by vertue of the Proviso in the stat of 8. H. 6. 5. If a Disseisor hath continued his possession peaceably three yeares and after the disseisee doth reenter 23. H. 8. Br. force 22. or doth make his claime so neere as he dareth and then the disseisor reentreth againe or continueth his possession after such claime here the disseisor cannot justifie to hold the same with force Lit. 429. for by the reentry or claime of the disseisee the first disseisin and possession of the disseisor was determined and the disseisor is in of a new disseisin 6. Also if he that hath been a lawfull possessor of lands by the space of Twenty yeares together be once clearely and wholly removed from the possession of the same land hee cannot come with force or multitude to put himselfe in possession thereof againe and to detayne the same with force because his possession was once interrupted and if he be indicted upon the statute of 8. H. 6. for such Forceible Entry he shall not be relieved touching the restitution by the stat of 10. Carol. for that hee had not the occupation of the said lands nor had been in quiet possession thereof by the space of three yeares together next before the day of such indictment found How many severall remedies the party hath which forceibly is either put out or kept out of the possession of his houses or lands CHAP. 33. 1. FIrst the party so grieved having an estate for life Action upon the statute of 8. H. 6. 1. R. 2. ca. 9. 8. H. 6. ca. 9. F. N. B. 348. c. c. 249. 2. co 10. 115. in Taile or Fee may have his Assise or action of trespasse of Forceible Entry upon the statute of 8. H. 6. against such disseisor and therein if the defendant be attainted of force he shall fyne to the King and also answere to the plaintiffe his treble damages and treble Costs of suit and also the plaintiffe shall thereupon have a writ of restitution to restore him to his former estate 2. But this action being the suit of the party and onely for the right 9 H. 6. 16. this remedy by action is only where the Entry of the defendant was not lawfull Fitz. 248. h. for if a man entreth with force where his Entry is lawfull as if the disseisee shall enter upon the disseisor with force he shall not bee punished by action But yet he may be indicted upon the statute Br. force 29. and upon such indictment found the party put out shall be restored for the indictment is for the force and for the King and here the offendor shall make fyne to the King although his right be never so good Br. Force 11. 3. Also the party so grieved if hee will loose the benefit of his treble damages and costs Writ upon the statute of Northampton he may be aided and have the assistance of the Iustices of peace and that after diverse sorts first he may purchase a writ out of the Chancery directed to the Sheriffe only or the Sheriffe and Iustices of peace and to every of them for to remove the force and this is upon the statute of Northhampton 2. E. 3. cap. 3. the forme of which writ you may see F. N. B. 249. f. Cromp 74. 162. 4. But upon this writ the Iustice of peace is to proceed only as a minister and is to certifie his doings herein and that Iustice of peace to whom the writ shall be delivered ought for to execute it scil he may remove the force but here he may not put the party in possession againe who was put out Indictment in Sessions 5. Also the party grieved may at the generall Sessions of the peace within the same County preferre his bill of indictment upon the statute of 8. H. 6. for such forceible entry or deteiner which being found there Dyer 187. Cromp. 165. the complaynant shall be restored to his possession by a writ of restitution granted out of the said Court to the Sheriffe 6. Also the party so grieved for a more speedy remedy may complaine to any one or more Iustices of peace of the same County of the said force By the In out of Sessions and thereupon the said Iustice of peace may ex officio Dalton 191. 192. and without any writ either doe execution of the statute of Northhampton as aforesaid Or else the said Iustice of peace upon such complaint may goe to the place where such force is to see it and may remove the force and arrest and commit the offendors which he shall find committing the force and shall also keep a speciall Sessions to inquire of the said force and if upon such inquiry such force shall be found then the said Iustice shall restore the party grieved to his possession againe and here no other Iustice of peace can grant a Supersedeas to stay the same restitution Dalton 192. 7. Also the party grieved may remove such indictment found either at such generall or speciall Sessions by a Certiorari into the Kings Bench and the Iudges of that Court may award a writ of restitution to the Sheriffe of the County to restore possession to the party Eâ—quirie 8. Now when the Iustice of peace shall make such inquiry he shall direct his precept or warrant to the Sheriffe commanding him to cause to come before the said Iustice of peace Dalton ibid. at some good Towne neere to the place 24. sufficient and indifferent persons dwelling neere to the said lands or tenements whereof every one shall have in lands or tenements 40 s by the yeare at the least to inquire upon their oathes of such force 9. Upon default of apparance of those Iurors the Iust of peace may award an alias and after that Pluries in finite till they come 8. H. 6. c. 9. but so that at the day of the second precept or writ the Sheriffe must returne 40 s in issues upon every one of them and at the third writ 5. li. and at every day after the double 10. And although any of such Iurors shall not have 40 s land per annum yet their presentment of such force is good for the King so as the offendors shall be fined to the King But the party shall have no restitution upon such a presentment if it be pleaded at or before the time of the awarding of the restitution for the statute of 8. H. 6. ca. 9. requireth that such Iuror shall have 40 s freehold per annum at the least 11. If the Sheriffe shall returne smaller issues upon the Enquirors then the statute doth appoint yet the party indicted shall not impeach the enquiry therefore neither is it cause to impeach the enquiry though the Iustice of
peace doe not goe to see the place where the force is 12. And it is convenient upon such enquiry that the Evidence be given openly to the Iury to the intent it may appeare to the Iustices of peace or Court whether there shall be reasonable cause to stay restitution or no after the indictment found See Dyer 122. Of restitution to be made to the party put out CHAP. 34. 1. I Will here shortly recite the words of the statute Restitution which for this businesse of restitution will give the better light which are as followeth videlicet 8. H 6. ca. 9. And if upon such enquiry it be found before the said Iustices that any have done contrary to this statute viz. have entred or held with force the said Iustice of peace c. shall reseise the said lands or tenements so entred upon or holden and put the party so put out in full possession of the same lands and tenements so entred or holden as before 2. Here we see that after such forceible Entrie P.R. 35. or holding so found by enquiry the said Iustice of peace c. shall remove the force sc all such offendors as shall be found in the house or upon the lands that either entred or held with force and upon the prayer of the party so put out the said Iustice of peace shall restore him to his possession againe 3. And herein the Iustice of peace needeth not to stay or stand upon the right and title of either of the parties as is said before 4. But no restitution shall be made but where the forceible entry or detainer is first found by Inquisition Br. force 27. 5. Concerning this Inquisition or Indictment the Iustices of peace shall doe well to peruse and regard the same Cromp. 166. to see if it be sufficient Indictment the forme for the Iustice of peace ought not to award restitution where the indictment shall appeare to them to be any way insufficient in the Law either in matter or forme Dalton 193. 6. First therefore to have restitution the putting out by expresse words must be in the indictment and found by the Inquisition for another man may enter upon me and yet not put me out and then there needs no restitution to be made by the Iustices 7. And this putting out is to be understood only of the house or land Ibid. and not of a rent common advowson and such like into which an actuall Entry cannot be made and therefore none shall have restitution but such only as are put out of the house or land as is formerly ca. 29. herein declared Ibid. 8. Also the indictment ought to expresse the quality of the thing entred upon c. sc whether it be a messuage cottage meadow pasture wood or land errable for if the indictment be quod manuforti intraverunt in tenement c. it is void for the incertainty because the word tenementum may extend to either of them 9. Also the indictment must have these words sc adhuc extra tenent 14. H. 6 16. Br. force 13. otherwise the party shall have no restitution and yet these words be not in the statute but without these words in the Indictment it may be supposed and thought that he which put me out hath left the possession againe or that I have gotten it againe and then the restitution is needlesse Dalton 193. 10. So as in every such indictment these words are materiall sc expulerunt adhuc extra tenent And for lack of either of these words no restitution shall be made or awarded 11. Also one of these two words Manuforti or cum multitudine seeme to be materiall in the indictment Dalton 194. unlesse they be implyed by reciting the statute of 8. H. 6. and concluding contra formam statut predict or by some other words in the Indictment See the presidents herein in the title of warrants and presidents Cromp. 162. 12. If a man shall be restored upon an insufficient indictment taken before the Iustice of peace and this be removed into the Kings Bench the Court there will cause the party to be restored that before was put out by the Iustice of peace by a writ of restitution Cromp. 165. 166. b. 13. Also if error or insufficiency be in the indictment taken before Iustices of peace yet restitution is awarded by them any two of those Iustices of peace which were present at the taking of the said indictment upon the prayer of the party may at another Sessions grant and award a Supersedeas to the Sheriffe to stay the same restitution Dyer 187. if the Sheriffe hath not made restitution before the Supersedeas come to his hands but no other Iustice of peace besides those which were present at the taking and finding of the said indictment can grant a Supersedeas if the indictment were found at a speciall Sessions 14. A man is indicted that he entred with force and held with force and upon the traverse it is found that he entred with force Cromp. 165. but not that he held with force yet this indictment seemeth good enough and the party shall be restored 15. So if two be indicted of a forceible Entrie or deteiner Severall indictments and upon the traverse it is found that the one entred with force and the other held or detained with force yet the party shall be restored Ibid. 16. If it be found by one Enquest that A. put me out by force Dalton 194. Cromp. 166. Br. force 6. and by another Enquest that I did put out A. by force either of us may pray to have restitution against the other but he that is first restored is in the worst case for the other may have restitution afterwards and then he that had restitution first is without remedy by the hands of the Iustice of peace saving that he may reenter if he can peaceably or have his action 17. If it be found by one Enquest that A. did put mee out by force and by another Enquest taken at the same Sessions that B. did put me out by force I may chuse upon whether of these indictments I will be restored Cromp. 166. and if I have restitution against A. and this be returned I cannot have restitution upon the other Dalton 194. But if upon the writ of restitution it be not returned that I have restitution then I may afterwards have restitutiō against B. upon the other Indictment if B. hath reentred upon the first restitution made to me 18. Dalton 194. 195. A. is disseised or put out with force by B. and after B. is put out with force by C. and all this is found by one and the same Inquisition here B. may have restitution against C. for B. hath more right to the possession than C. and then may A. have restitution against B. but upon this Inquisition if A. have restitution
first then B. shall not have any restitution otherwise if these had been found by severall Inquisitions Who shall award and make this restitution CHAP. 35. 1. AFter the force is found by the Enquest the Iustice of peace before whom the said force shall be so found may himselfe put the party in possession againe Dalton 195. or he may make his precept under his owne teste alone to the Sheriffe to doe it 2. The forme of the precept to the Sheriffe to make restitution you may see postea tit of Warrants and presidents 3. 3. Eliz. Dalis Co. 11. 59. 65. Dyer 187. But no other Iust of peace hath any authority by the statute to grant or award restitution but only he or they before whom the force was found by Inquisition nay the Iust of Oyer and Terminer nor the Iust of goale deliverie cannot grant restitution nor the Iustices of peace at their generall Sessions of the peace cannot grant this restitution except the indictment were found before them 4. And yet the Iustices of the Kings Bench in regard of their supreme authoritie in all cases of the Crowne either upon certificate to them made by the Iustice of peace Co. 9. 118. Co. 11. 65. 4. H. 7. 18. before whom such force was found of the presentment of such force or if the said presentment or indictment shall be removed before them by Certiorari in both these cases the Iustices of the Kings Bench may award restitution Dalton p. 195. 5. But neither the Iu. of the K. Bench nor any other besides him or them that made the inquiry can personally restore the party but only by way of Precept to the Sheriffe 6. The Sheriffe if need be may take the power of the County to execute the precept of the Iu. of peace herein 7. And if the Sheriffe upon such a precept or upon a writ of restitution from the Sessions c. shall returne that he cannot make restitution for resistance Dalton p. 195. c. he shall be amerced for making such a returne because in such case he might have taken the power of the County to assist him therein see the like case Fitz. Execution 147. To whom restitution shall be made CHAP. 36. 1. THis restitution ought to be made to him that was put out and to none other for so are the words of the statute P. R. â—8 2. Therefore if a father be put out by force and dyeth his heire shall not have restitution Dalton p. 195. yet here the Iustices may imprison and fine the offendors for by such forceible Entry they have broken the peace 3. Also if after the death of the Father a stranger abateth or entreth into his land by force Dalton p. 196. before the heire hath gotten actuall possession indeed the heire shall not have restitution because he had but a possession in law descended upon him 4. The disseisee doth put the disseisor out with force the disseisor shall be restored Fitz Na Br. 248. h. for upon an indictment of force the right or title is not disputable or materiall but by the words of the statute of 8. H. 6. ca. 9. hee that is in such sort sc forceibly put out shall bee restored Dyer 12â— 5. Yet it seemeth in this case that upon traverse tendred by the disseisee and his right appearing the Iust of peace may stay restitution Br. force 6. 6. Also if the disseisor be restored againe yet the disseisee may after reenter peaceably or have his Assise 7. But if the disseisee shall enter peaceably upon the disseisor and so they both shall abide and continue there together Cromp. 163. for divers daies and after the disseisee doth put out the disseisor with force and is thereof indicted here it seemeth the disseisor shall not be restored for the disseisors possession was avoided in quiet manner at the first entry of the disseisee and so the disseisor had no possession in the eye of Law when he was put out 8. If the disseisee shall enter peaceably Cromp. 162. 164. Dalton 196. the disseisor and his family being abroad and after the disseisee shall keepe his possession with force the disseisor shall not be restored by reason of the eigne title of the disseisee and for that he entred peaceably 9. But here the disseisee shall bee imprisoned and fined for keeping his possession with force for Forceible keeping or detaining is aswell prohibited as Forceible Entrie 10. And here note that the being of a mans wife children Cromp. 164. Fitzh Assise 418. of servants in the house or upon the land doe preserve his possession but his cattell being upon the ground doe not preserve his possession 11. Also when two are in possession of an house c. and the one claimeth by one title and the other by another title Litt. 140. Park 45. here the law shall adjudge him to be in possession who hath the best right to the possession So that if A. shall wrongfully enter upon B. and they both shall continue in the house and after B. shall put out A. with force A. shall not be restored for A. never gained any possession by his Entry 12. Two Iointenants or Tenants in Common Fitz. 249. d. and one of them doth forceibly put out the other out of his possession he that is so expelled may have an action of Trespasse of Forceible Entry against his Companion upon the statute of 8. H. 6. and thereupon he shall have a writ of restitution to restore him to his former estate P. R. 39. but it seemeth the Iustice of peace can doe nothing herein for that his entry and possession is lawfull through the whole land in respect of his owne moity and estate 13. Two Iointenants be put out with force Dalton p. 197. and one of them only sueth to have restitution restitution shall be made unto him 14. Coppiholder lessee for yeares or tenant at will 10. Carol. c. 13. tenant by Elegit statute merchant or of the Staple shall have restitution by the statute of 10. Caroli in Ireland 15. If Lessee for yeares be put out of his Terme by force and die P. R. 38. though after his death this force be found by Inquisition taken by a Iustice of peace Dalton pa. 197. yet his executors shall not be restored to that land by the Iustice for that they are not the same person which was put out What causes there may bee for staying the Iustices of peace from granting Restitution CHAP. 37. 1. ALthough the partie thus to be indicted for a force Cromp. 162. Br. force 11. shall not be heard nor suffred to give his Title in evidence to excuse himselfe of his Forceible Entrie or detayner Dalton p. 197. to save his fyne due to the King for such force which fyne he shall make though his right bee never so good Lambert pa. 147.
within the age of Forty yeares not living in Merchandise nor exercising any Craft nor having of his owne whereof he may live Requâ—â—ed to serve wages nor any lands about tillage whereof hee may imploy himselfe and not serving any others if he inconvenient service his estate considered be required to serve 33. H. 1. ca. 9. shall be bounden to serve him which so shall require him the wages are to be rated by the Iustices of peace according to a statute made in Ireland in 33. H. 8. ca. 9. Provided alwaies that the Lords be preferred before other in their bondmen or their land tenants so in their services to be retained So that neverthelesse the said Lords shall retaine no more then be necessarie for them and if any such man or woman being so required to serve will not the same doe and that proved by two true men before the Sheriffe or Bailiffes of our Soveraigne Lord the King or the Constable of the Towne where the same shall happen to be done he shall anone be taken by them or any of them Imprison and committed to the next goale there to remaine under strait keeping till he finde suretie Surety to serve in the forme aforesaid 23. E. 3. de servient cap. 1. 2. If any reaper mower or other workman Depart without license or servant of what estate or condition that he be retained in any mans service do depart from the said service without reasonable cause or licence before the Terme agreed he shall have paine of imprisonment and that none under the same paine presume to receive or to retaine any such in his service Anno 23. E. 3. cap. 2. Receive to service 3. That no man pay or promise to pay to any servant any more wages Wages liveries meede or salarie then was wont nor that any in other manner shall demand or receive the same upon paine Paine of doubling of that that so shall be paid promised required or received to him which thereof shall feele himselfe grieved 23. Ed. 3. ca. 3. pursuing for the same Ann. 23. Ed. 3. ca. 3. Cap. 2. Stat. de servient 4. If the Lords Lords of the Townes or Mannors presume in any point to come against this present ordinance either by them or by their servants then pursuit shall be made against them in the counties Wapentakes Tithings or such other Courts Damages for the treble paine payed or promised by them or their servants in the forme aforesaid and if any hath covenanted with any to serve for more wages Covenant he shall not be bound by reason of the same covenant to pay more then at another time was wont to be paid to such person nor upon the said paine shall presume any more to pay An. 23. Ed. 3. ca. 4. But now the wages must be such as shall be rated by the Iustices of peace according to the said statute of 33. H. 8. ca. 9. 33. H. 8. ca. 9. in Ireland 5. That Sadlers Skinners Whitetawers Cordwaynees Taylors Artificers Smiths Carpenters Masons Tylers Shipwrights Carters and all other Artificers and workemen shall not take for their labour and workemanship Workemanship above the same that was wont to be such paid to such persons and if any man take more he shall be committed to the next gaole in manner as is aforesaid Ann. 23. Ed. 3. cap. 5. 33. H. 8. ca. 9. in Ireland But this statute also as to the wages only is altered by the said statute of 33. H. 8. ca. 9. 6. Anno 23. Ed. 3. de servi ca. 7. It was enacted that all the forfeitures given by this statute de servientibus against Labourers should be levyed of every of them 23. Ed. 3. ca. 7. and should be imployed to the payment of the tenth and fifteene then granted and after to the Kings use to be levied by certaine appointed in the statute neverthelesse he that will may sue for these forfeitures to have them to his owne use Threshers 7. That none take for the threshing of a quarter of wheate or rye over two pence halfe penny and the quarter of Barley Beanes Pease and Oates one peny halfe peny if so much were wont to be given and in the Countrey where it is used to reape by certaine sheaves and to thresh by certaine bushels they shall take no more nor in other manner then was wont and that the same servant be sworne two times in the yeare before Lords Oath Stewards Bailiffes Constables Stewards Bailiffes and Constables of every Towne to hold and doe these ordinances and that none of them goe out of the Towne where he dwelleth in the winter to serve in the Summer if he may have service in the same Towne taking as before is said Refuse Stocks Imprison Stocks and that those which refuse to make such Oath or to performe that that they be sworne to or have taken upon them shall be put in the Stocks by the said Lords Stewards Bailiffes and Constables of the Townes by three dayes or more or sent to the next gaole thereto remaine till they will justifie themselves and that Stocks be made in every Towne by such occasion Anno 25. Ed. 3. de servien cap. 2. But the wages in this also are to be regulated by the said statute of 33. H. 8. Artificers 8. That Carpenters Masons and Tylers and other workemen of houses 33. H. 8. ca. 9. in Ireland shall not take by the day for their worke but in manner as they were wont Anno 25. E. 3. cap. 3. but wages in this case also is to be regulated by the said statute of 33. H. 8. ca. 9. Plaisterers c. Wages 9. Plaisterers and other workers of Mudwals and their knaves by the same manner without meate or drinke S. from Easter to Saint Michael and from that time lesse 33. H. 8. ca. 9. in Ireland according to the rate and discretion of the Iustices which shall be thereto assigned Ann. 25. E. 3. cap. 3. 33. H. 8. ca. 9. in Ireland 10. Goldsmiths Sadlers Horsesmiths Spurriers Tanners Curriers Artificers Tawers of Leather Taylors and all other workemen Artificers and labourers and all other servants here not specifyed shall be sworne before the Iustices Oath to doe and use their crafts and offices in the manner as they were wont to doe without refusing the same because of this ordinance And if any of the said servants Labourers workemen or Artificers after such oath made come against this ordinance he shall be punished by Fine and ransome Iustice and imprisonment after the discretion of the Iustices Imprison Anno 25. Ed. 3. cap. 4. the wages also in this case are to be regulated by the said statute of 33. H. 8. ca. 9. by the Iustices of peace in the Quarter Sessions next after Easter and Michaelmas halfe yearely Stewards Constables Oath Inquitie
Sheriffes Bailiffes Constables Provost Marshals and other his Majesties loyall subjects are required to be ayding assisting and helpfull to every Iustice of peace and Iustices of Assize in the apprehending of the said Cosherers and wandring Idlers when they shall be thereunto required upon paine of such fine or fines to be set upon them for their neglect as upon conviction before the Iustices of peace or before the Iustices of Assise at their discretion shall be set upon them for their said default 30. Both which last mentioned statutes are in a manner but a declaration of the common Law for the constant course in Ireland hath ever beene at the generall Sessions of the peace and at the Assises to enquire of such Idlers and to fine and imprison them untill they shall finde surety to betake themselves to some honest labour or else to be bound to their good behaviour at the discretion of the Iudge 31. So likewise at the common Law if a man had taken my servant from me I might have had an action of Trespasse Quare vi armis c. but if he had procured the servant to depart who did depart accordingly and he retained him or if he had departed of his owne head and another had retained him knowing of the first retainer an Action did not lye at the common Law Quare vi armis c. but an action upon the case did lye upon the departure by such procurement and in case where the servant did depart without any such procurement and was retained by another 11. H. 4. 21. 22. there no action at all did lye by the common Law and therefore the said statute of 23. Ed. 3. was made which gives an action in these cases 11. H. 4. 21. 22. Co. lib. 11. fo 86. 32. Likewise by the common Law no man may be prohibited to worke in any lawfull trade for the Law abhorreth Idlenesse Coke lib. 11. fo 86. 33. Also by the common Law no man is prohibited to use diverse misteries or Trades at his pleasure and although this was prohibited by the statute of 37. Ed. 3. cap. 6. yet shortly after at the next Parliament that restraint of free Trade being found prejudiciall to the common wealth it was enacted againe that all persons should be as free to use severall Trades as they were at anytime before Co. lib. 11. fo 54. as appeares by the statute of 38. Ed. 3. ca. 2. and therefore without an Act of Parliament no man may be restrained either to worke in any lawfull Trade or to use diverse mysteries or Trades by any ordinances or by-lawes made to restraine the same but such by-lawes and ordinances are meerely voide and against the law 34. Also it is lawfull for any person to use privately any Trade as of a Cooke Brewer Baker Taylor or such like in his owne house or in the house of any other for the private use of the family although such person were never Apprentice to the Trade Who are compellable to serve by the statute 35. By the statute of 23. Ed. 3. and the rest of the statutes above mentioned a Iustice of peace may command vagrant persons to prison if they will not serve and labour and they may command the Gaoler to let them at large without other writ Fitz Na. Br. fo 168. b. and if a man be retained in service and goe vagrant out of his service another man may compell him to serve or labour because he is out of service Fitz. Na. Br. fo 168 b. Fitz. Na. Br. fo 168. 1. 36. He which hath not lands sufficient of his owne to manure or hath not some mistery or occupation to live upon shall be compelled to serve and labour by the said statute of 23. Ed. 3. Fitz. Na. Br. fol. 168. i. 37. In an action upon the statute of Labourers the defendant saith that he holdeth land for which he ought to doe certaine dayes works yearly to the Bishop of D. at his Mannor of S. and demands Iudgement if he shall be compelled to serve and the plaintiffe saith that he had but six acres for which he shall pay but six dayes worke upon which the defendant demurred in law and it was awarded by the Court that the plaintiffe shall be barred of his action the reason is 40. Ed. 3. 39. that if he shall bee retained with another it will not be lawfull for him to depart from him to doe the six dayes worke Brooke Lab. 5. nor to doe any worke 40. Ed. 3. 39. Brooke Labourers 5. 38. An Infant of the age of five yeares is not compellable to serve by the said statute by reason of his disability of body 41. Ed. 3. 17. Brooke Lab. 6. for the statute requireth that he should be potens in corpore 41. Ed. 3. 17. Brooke Labourers 6. 39. In an action of false imprisonment the defendant justifieth being Lord of the tenant because the plaintife was vagrant and I.N. complained for lacke of a servant and required him to serve and he would not wherefore he put him in the Stocks and the plaintiffe said that he had two Acres of land five sheepe and ten Cowes to the value of 20. l. to be occupied and the defendant said that hee had but a cottage and no land and so not sufficient to be occupied and the other said and maintained that he had sufficient Chattels to bee occupied and thereupon the issue was joyned 47. Ed. 3. 18. Br. Lab. 14. which proves that if his Chattels were sufficient to imploy him in labour he is not compellable to serve as a servant 47. Ed. 3. 18. Br. Lab. 14. 40. An action was brought upon the statute of Labourers against a litle Damosell of the age of ten yeares upon retainer and departure and the plaintiffe declared against her and the defendant said that she is but of the age of Ten yeares and demanded Iudgement of action and because it appeared to the Court by inspection that shee was not of age to make a Covenant therefore the writ was abated 2. H. 4. 5. Br. Lab. 19. and there Rickhill said that she is not of age to bind herselfe by Covenant ante annos nubiles that is to say before the age of 12. yeares 2. H. 4. 5. Br. Lab. 19. 41. In an action upon the statute of Labourers 7. H 4. 5. Br. Lab. 20. it was said that the statute of Anno. 23. Ed. 3. cap. 1. is that quilibet potens in corpore ought to serve and by Hankford an Infant of 12. yeares retained ought to serve 7. H. 4. 5. Br. Lab. 20. 42. A man brought an Action upon the statute of Labourers for taking his servant out of his possession 38. Ed. 3. 5. Br. Lab. 24. the defendant said that the servant is an Infant under the age of Ten yeares and because the plaintiffe could not gainsay it he was barred of his action 38. Ed. 3. 5.
diem with meat and drinke for his Iourneyman and 12. d. sterling with meat and drinke for a boy that can scarce bore a hole as it should be and this I speake of mine owne knowledge and therefore I wish that the Iustices of peace would henceforth better remember their oaths the duty of their places and the good of the common wealth then hitherto they have done but if the Iustices of peace shall wilfully continue still their neglect herein I cannot but let them know that for this their neglect they are and that worthily for their neglect to be punished in the Starchamber Misprision CHAP. 43. 1. THere be also certaine offences which by the common Law are misprision of treason or felonies or at least punishable in the same degree and more 22. Ed. 3. 13. Stamf. 38. as to draw a sword to stricke a Iustice sitting in place of Iudgement to strike a Iuror in the presence of the Iust sitting in place of judgement Stam. 37. 38. Br. contempts 9. 0. or to stricke another in the house where the Courts of Iustice are kept sitting any of the Kings Courts there or to draw any weapons therewithall to strike any person in the presence of the Iustices P. Paine 16. or to make any Affray in their presence they sitting in Iudgement or to rescous any such offendor these are such misprisions for which the offendour shall have more grievous punishment then for misprisions of Treason or felony for in these cases the offendor shall not only forfeit all his goods and chattels and the profits of his lands during his life and be imprisoned during his life but also shall have his hand cut of 28. El. ca. 7. in Ireland 2. The counterfeiting of the coine of gold or silver of other Countreyes which is not currant in this Kingdome is by a statute made in 28. Eliz. ca. 7. enacted to be misprision of high treason in the Actors their procurers ayders and abettors Stamf. 37. d. Cromp. 44. 3. Note that every treason or felony doe include misprision so that where any person hath committed treason or felony the King may cause the offendor to be indicted and arraigned but of misprision Stamf. fo 37. 4. Misprision of Treason or felony is properly when one knoweth that another hath committed or is about to commit any treason or felony but was not or is not consenting thereto and yet will not discover the offendor to the King or his Councell or to some Magistrate but conceales both the offence and the offendors Br. Treason 19. Stamf. fo 38. 5. For misprision of treason the offend or shall forfeite to the King all his goods and chattels for ever and the profits of his lands during his life and also shall be imprisoned during his life but for misprision of felony the offendor shall be only fined and ransomed as it seemes 3. H. 7. 10. Br. Treason 25. and shall be committed to prison untill he hath paid his fine 3. H. 7. fol. 10. 6. Note for the offendors in high treason misprision of treason and praemunire that although the Iu. of Peace by their Commission nor by statute cannot medle with them in the very point of their offences saving in some particulars and that by way of inquiry only which you may see hic antea tit felony yet for that all treasons and such other offences are against the peace of the King and of the Realme therefore upon complaint made to the Iustice of peace or other knowledge had by him of any such offendors it shall be his part to cause such offendors to be apprehended and to take their examinations and the information upon oath of such as bring them or of others that can prove any thing materiall against them and to put the same in writing under the hands of the Informers and then to commit the offendors to the Gaole Dalton p. 212. and also to bind over by recognisance all such as doe declare any thing materiall to appeare and give evidence against such offendors before the Lords of the Kings Majesties privy Councell or elsewhere when they shall be called upon reasonable warning or before the Iustices of Assises at the next generall gaole delivery and after to certifie their doing therein to some of the Lords of his Majesties said Councell Nightwalkers CHAP. 44. 1. EVery Iustice of peace ex officio and by the first Assignavimus of the Commission may cause to be arrested all Nightwalkers 13. H. 7. 1â— Dalton pa. 76. be they strangers or other persons that be suspected or that be of evill behaviour or of evill fame and more particularly all such suspected persons as shall sleepe in the day time and goe abroad in the night season haunt any house that is suspected for bawdery or shall in the night time use other suspitious company or shall commit any other outrages or misdemeanors and may force them to finde surety for their good behaviour see the title surety for the good behaviour Peace CHAP. 45. 1. EVery Iustice of peace hath authority and power given him by the first Assignavimus or clause in the Commission Dalton pa. 79. to keepe and cause to be kept the Kings majesties peace by force of which words they have aswell the ancient power touching the keeping of the peace which the ancient conservators of the peace had by the common Law as also all authority which the statutes since have added thereto and so they may cause to be kept all the statutes and Lawes now in force which beene made for the peace or keeping thereof and more especially they may arrest or cause to be arrested and sent to the Gaole all Traitors Murtherers Robbers and Felons and persons suspected of such things and all such are guilty of any misprision or praemunire 2. They may also suppresse and bind to the peace or good behaviour all Affrayors Dalton p. 80. and all persons unlawfully and riotously assembled or unlawfully wearing armour or any weapons by night or by day or otherwayes putting the people in feare and all unlawfull nightwalkers and barrettors and the like all which may well be said to be disturbances or breaches of the peace see more fully of these under their particular Titles Posse Comitatus CHAP. 46. 1. VVHere the Iustice of peace Sheriffe or other officer is enabled to take the power of the County it seemeth they may command and ought to have the helpe and attendance of all Knights Gentlemen Yeomen Husbandmen Labourers Tradesmen Servants and Apprentices and of all other such persons being above the age of fifteene yeares and that are able to travell 2. But women Ecclesiasticall persons and such as be decrepit or diseased of any continuall infirmity shall not be compelled to attend them 3. And in such cases it is referred to the discretion of the Iustices of peace or Sheriffe c. what number they will have to attend upon them and
how and after what manner they shall be armed weaponed and otherwise furnished 4. But it is not justifiable for the Iustices of peace Sheriffe or other officer to assemble posse comitatus or raise a power or assembly of people upon their owne heads without just cause What persons may take posse comitatus and in what â—ases CHAP. 47. Dalton 314. 1. ANy Iustice of peace or Sheriffe may take of that County where he is a Iustice or Sheriffe any number that they shall thinke meete to pursue apprehend arrest and imprison Traitors Murderers Robbers and other felons or such as doe breake or goe about to breake or disturbe the Kings peace and every man being required ought to assist and aide them 2. The Iustice of peace and Sheriffe or undersheriffe may take posse comitatus Dalton ibid. for the suppressing of riots and all sorts of persons being able and required ought to assist them therein 14. H. 7. 8. 3. Yea any one Iustice of peace may take the power and aide of the whole Countrey to suppresse Rioters and needs not to tarry for the comming of another Iustice or of the Sheriffe Dalton 314. 4. Also in cases of forceible entry any Iustice of peace may take posse comitatus to remove such persons as by his view or by inquisition taken before him shall be found to have made any forceible entry into other mens possessions or to detaine them with force 3. H. 1. 7. 10. Co. 5. 1. 15. p. Distr 4. pretor 5. Br. fine p. 27. Br. Riots 23. 5. The Sheriffe Undersheriffe or Bailiffe c. if need be may by the common Law take the power of the County what number they shall thinke good to execute the Kings processe or writ be it a writ of execution replevin estreperment capias or other writ it being the Kings commandement see also the statute Westm 1. 17. Westm 2. 39. and such as shall not assist them therein being required shall pay a fine to the King 6. 3. H. 7. 1. Br. Trespasse 266. The Sheriffes Bailiffe to execute a Replevin tooke with him three hundred men armed modo guerino with brigandines jacks and guns and it was holden lawfull for the Sheriffes officer hath power to take assistance aswell as the Sheriffe himselfe for that all is one office and one authority 7. Dalton 324. A man demands the peace in the Chancery against a great Lord and hath a supplicavit directed to the Sheriffe there if need shall be the Sheriffe may take his posse comitatus to aid him to arrest such a Lord c. 8. So it seemeth if a supplicavit be directed to a Iustice of peace Dalton ibid. the Iustice of peace or the officer to whom the Iustice of peace shall make his warrant in this behalfe upon resistance made may if need be take posse comitatus to aid him to arrest the party quia quando Co. li. 5. fo 115. aliquid mandatur mandatur omne per quod pervenitur ad illud Co. 5. 115. 9. The Sheriffe may take Posse comitatus to apprehend felons c. or disturbers of the Peace 10. So he may take Posse comitatus to execute the precept of the Iustice of Peace 11. 3. H 7. 10. 1â— H. 7 19. Bâ— Trespassâ— 432. The Constable of the Towne upon a treason or felony committed or upon any affray or the like may take the aide of his neighbours or other persons being present to apprehend the Traytor or felons or to cause the peace to be kept and to carry the offendors before the Iust of peace 12. One hath hurt another whereby he is in perill of death 38. Ed 〈◊〉 the Constable may take power or aide to arrest him that did the hurt Praemunire CHAP. 48. 1. EVery Iustice of peace may cause all such as are suspected to have fallen into the danger of a Praemunire to be arrested and to commit the offendor upon probable proofe thereof and this he may doe by the first assignavimus of the Commission for nothing can be more against the peace and good governement then bringing in and extolling of forraigne Iurisdictions and authority and therefore it will be needfull to informe the Iustices of peace what offences by the lawes and statutes of force in Ireland will bring a man into the danger of a Praemunire 2. At the common law before the statute of 25. Ed. 3. de proditionibus the extolling of forraigne Iurisdiction was Treason but by that statute the law is altered and as well in that Parliament as in many other parliaments severall provisions have beene made against offendors of this kinde the substance and effect of which statutes are here expressed as followeth videlicet Rome Abbies Priories 3. In anno 25. E. 3. c. 22. It is ordained that because that some doe purchase in the Court of Rome provisions to have Abbies and Priories in the Kings Dominions in destruction of the Realme and holy Religion every man that purchaseth such provisions of Abbies or Priories that he and his Executors Executors and Procurators which doe sue and make execution of such provisions shall be out of the Kings Protection Protection and that a man may doe with them as with enemies of our Soveraigne Lord the King and the realme and he that shall commit any thing against such provisors in body or in goods or in other possessions shall be excused Excused against all people and shall never be impeached or grieved for the same at any mans suit 4. Afterwards in anno 27. E. 3. ca. 1. another statute was made to this effect that is to say because that it is shewed to the King by the grievous and clamorous complaints of great men and commons how that diverse of the people be and have beene drawne out of the realme to answer of things whereof the cognisance pertaineth to the Kings Court and also that the Iudgements given in the same Courts be impeached in another Court in prejudice and disherison of the King and of his Crowne and of all the people of his said realme and in the undoing and destruction of the common Law of the same Realme at all times heretofore used whereupon good deliberation being had with the great men and other of his said councell it is assented and accorded by our soveraigne Lord the Kings and the great men and commons aforesaid that all the people of the Kings liegeance of what condition that they be which draw any out of the Realme in plea whereof the cognisance pertaineth to the Kings Court Court or of things whereof Iudgements be given in the Kings Court or which doe sue Sue in any other Court to defeat or impeach the judgements given in the Kings Court shall have day containing the space of two months by warning made to them in the place where the possessions be which bee in debate or where they have lands or other
happen to be that the said Maior Sheriffe Constable Officer and Minister to whom such notice or request shall be made by and by shall take and arrest all such buyers and officers so doing or offending Arrests Impris Mainprise and them shall send to the Kings next prison there to remaine and not to be let to baile nor maineprise till the time that they have restored all the said victuals carriages and other things so taken or the very value of the fame and if the said Maior Maior Sheriffes Sheriffe Bailiffes Bailiffe Constables Constable and Officers aforesaid doe contrary to this that then they shall forfeite twenty pound whereof the King shall have the halfe Forf Moitie and the party from whom such things be taken the other halfe if he will sue by an Action of debt Action of debt in the which the defendant shall not doe his Law and if he will not sue whosoever will sue for the King and himselfe shall have the suite to recover to himselfe the one halfe thereof and the King the other halfe and if any of the said buyers other then of the King and the Queene be duely convict Convict of such unlawfull taking as afore is recited at the suite of such parties as shall be against them in this behalfe that then they shall yeild to the party which so sueth the treble value of the victuals or other thing so taken and the double costs of their suits 3. Value 2. Costs and for the said trespasses to make fine Fine and ransome to the King and that in all such Actions or suits aforesaid the Kings protection shall not be allowed nor availeable for the defendant provided alwayes that by this Act the punishment ordained against the Kings Purveyors in no wise shall be restrained Anno 23. H. 6. cap. 14. 15. And lastly by a statute made in Ireland in anno 18. H. 6. It is enacted that from thenceforth no Purveyor Harbinger nor Aveyner be within the said land but that the Iust of the said land of Ireland that then was and the Leivetenants Iustices or Governours that for the time should be should pay or agree with them from whom any goods should be taken by their Achators and if the said Lievetenants Iustices or Governours by their Achators doe not in the order aforesaid it should be lawfull to him whose the goods are to make resistance to such Achators or officers without offence or impeachment of the King And it was also agreed and established that all the statutes in this behalfe made within the Realme of England be holden and kept in all points and put in execution in this land 16. These statutes I have rehearsed the more at large to the end that it may thereby appeare what grieveous oppressions have beene committed in times past by Purveyors and that every man may understand the ease and benefit which the subjects of Ireland enjoy by the royall composition heretofore made and established and now continued in this kingdome Riots Routs and unlawfull assemblies CHAP. 50. 1. ANy one Iustice of peace alone may use all good meanes to prevent a Riot or Rout before it be done Lamb. 184. 34. Ed. 3. 1. P. Iust 18. Dalton pa. 97. and for to stay it whilst it is in doing and in the doing may take and imprison the Riotters and bind them to their good behaviour but being once done and committed one Iustice of peace can neither record the Riot nor make enquiry thereof 14. H. 7. 8. 9. nor assesse any fine nor award any proces nor otherwise medle to punish it Dalton pa. 97. in the nature of a Riot or Rout but only as a Trespasse against the peace or upon the statutes of Northhampton or of forceible entries 2. And yet if one Iustice of peace sitting in a judiciall place as in the Sessions shall see a Riot Cromp. 65. he may command them to be arrested and may make a record thereof and the offendors shall be concluded thereby but if one Iustice of peace shall see a Riot in another place and shall command them to be arrested and shall make a record thereof the offendors shall not be concluded thereby but may traverse it 3. If a Iustice of peace will commit a man to ward pretending untruely that he did a Riot Br. Iudges 2. 10. 9. H 6. â—0 9. Ed. 4. 3. where he did none the party may not have an action of trespasse upon the case against him for an action will not lie against a Iustice or Iudge of Record in a thing that hee doth as Iudge by the opinions in 9. H. 6. 60. 9. E. 4. 3. but if this bee done of malice or corruption he shall be punished for it in the Star-chamber 4. Every Iustice of peace being of and in the County and having notice of any Riot Dyer 210. Rout or unlawfull assembly ought to have a care of the execution of the statute made 13. H. 4. cap. 7. 13. H. 4. 7. viz. that the Riotters c. be arrested and removed for if the statute be not executed by some of the Iustices the two next Iustices of peace shall forfeit each of them 100. l. and every other Iustice of peace within that County in whom there shall be any default shall be fined in the Starchamber 5. And therefore every Iu. of P. of the County 14. H. 7. 9. hearing of any Riot or of any Intention of a Riot without making any precept or tarrying for his fellow Iustice shall doe well to goe himselfe if he be able with his servants or other power of the County if neede be to the place where such persons be so assembled and to suppresse them and all such as he shall finde riotously assembled and armed to arrest them and to force them to put in suretie for the peace or for their good behaviour and for refusing to give such suretie or in default of suretie to imprison them Also he may take away their weapons and armour and seize and prise them for the King 6. 14. H. 7. 10. Br. peace 7. And if the Iu. of P. being come to the place shall not finde the Riotters yet come thither he may leave his servants there to restraine them in their said enterprise or else to arrest such offendors when they shall come if they shall offer to commit any Riot or to breake the peace 7. So if the Iu. be sicke and shall heare of a Riot he may send his servants or other power of the County if need be as it seemeth to the place to represse it or to arrest such offendors and to bring them before him to finde sureties for the peace and all this he may doe 14. H. 7. 10. Br. peace 17. and command by word of mouth without any warrant in writing and without expecting the comming of any his fellow Iustices or of the Sheriffe or
undersheriffe 8. Also any one Iustice of peace by the first Assignavimus in the Commission may cause to be kept and put in execution all other statutes made for the repressing of Riots force and violence Dalton pa. 9â— but therein he must deale onely according to the forme and order in such statutes prescribed 9. 13. H. 4. ca. 7. P. 1. 5. Two Iustices But the ordinary power of punishing of Riots belongeth unto two Iu. of P. at the least and therefore the two next Iustices of peace which dwell nearest in the County where any Riot assembly or Rout of people shall be against the law together with the Sheriffe or undersheriffe of the County upon complaint or other notice of the Riot shall doe execution of the statute 13. H. 4. 7. videlicet Dyer 210. of all and every part thereof respectively as to them is appointed Every one of them upon paine of 100.l and in default of the two next Iustices the other Iustices of peace of and within the County upon notice of such riot ought to doe execution thereof Cromp. 63. every one upon danger to be fined in the Starchamber but the penalty of 100. l. is only to be levied upon the two next Iustices 10. And if the Riot Dalton 9â— c. bee great and notorious whereof by common Intendment every person may take knowledge it is not safe for the Iustice or Sheriffe c. to expect and stay till complaint thereof shall be made to them or that they shall have information or notice given them thereof least they incurre thereby the said penalty of 100.l a peece 11. If any other of the Iustices of peace of the County P. R. â—0 besides those two which are next shall execute this statute Dalton 98. that shall excuse the two next Iustices for that the statute giveth power herein to all Iustices Dalton 98. 12. If one or the two next Iustices shall come and not the Sheriffe or undersheriffe such Iustices as doe come shall be excused of the forfeiture of 100.l but though the said Iustices shall be excused of the said forfeiture yet if there commeth but one Iustice of peace he ought to arrest the Riotters and to remove the force and commit the riotters otherwise he is fineable c. 13. And if there shall bee two Iustices present and neither the Sheriffe nor undersheriffe Dalton pag. 98. 99. yet those two Iustices are fineable if they shall not doe all that which without the Sheriffe or undersheriffe they are authorised to doe by the said statute Dalton pa. 99. 14. But no Iustice of peace that dwelleth in another County is bound upon the said penalty of 100.l to execute the said statute of 13. H. 4. although he dwelleth next to the place where the Riot is and although he be in the Commission of the peace for the County where the riot is as it seemeth for the words of the statute are the Iustices which dwell nearest in every County where such Riot shall be and not which dwell neare to the place where the riot shall be and yet it seemeth safe that such Iustice dwelling out of the County upon notice of such riot doe come into the County and doe his endevour to suppresse the same riot and to execute the statute for that he is one of the Iustices of the County 15. If the Sheriffe or undersheriffe doe not come the Iustices ought to send for them as Master Marrow thinketh 16. And some seeme to be of opinion that if the Sheriffe or undersheriffe shall not come to the Iustices P. R. 30. being sent for to assist them that then all the Iustices of peace dwelling neere or remote shall be excused of the same penalty of 100.l or of any other penalty or fine for that the said statute doth give the Sheriffe or undersheriffe equall authority and as it were joine him in Commission in the copulative with the Iustices of peace Cromp. 63. Dalton pa. 99. but others seeme to be of another opinion videlicet that if the Sheriffe or undersheriffe shall not come yet the Iustices of peace shall be fined if they come not and arrest the riotters and doe not moreover proceed to doe therein all that which without the Sheriffe or undersheriffe they are any wayes authorised to performe 17. Now what the Iustices of peace may or ought to doe therein by force of this statute 13. H. 4. 7. without or in the absence of the Sheriffe and undersheriffe is worthy consideration as being needfull for the Iustices of peace to know and safe for them to performe aswell for the speedy preventing of such present mischiefes as may happen to the common wealth by such dangerous assemblies as also for their saving of the penalty of the Law otherwise like to lye upon them 18. Dalton pa. 99. But herein others of good judgement and experience that have written thereof have both seemed to doubt and written sparingly thereof notwithstanding I shall not spare to deliver mine opinion and leave it to the further consideration of others of better Iudgement 19. As I conceive there is no doubt but that the Iustices of peace without the Sheriffe or undersheriffe upon all riots may and ought first to goe to the place and such riotters as they shall see or finde riotously assembled they may and ought to arrest and to take away their armour and weapons and to remove the riotters and may cause them to finde sureties for the peace or good behaviour and for want of such sureties may commit them to the gaole all which any one Iustice of peace may doe 20. Also two Iustices of peace after the riot committed P. Riots 4. Cromp. 6. 7. b. without the Sheriffe or undersheriffe as I conceive may and ought to inquire of the riot and if upon such inquiry the riot be found the Iustices may fine and imprison the offendors 21. But two Iustices of peace as I conceive seeing a riot may not record the same upon their owne view without the Sheriffe or undersheriffe and thereupon without any inquirie fyne them for the same and commit them to prison till they have paid their said fyne for by the statute the Sheriffe or undersheriffe are associated to the Iustices of peace and have equall and joynt authoritie with them therein and then consequently the Iustices of peace alone upon their owne view without inquirie can neither fyne them nor imprison them for their fyne 14. H. 7. 9. b. See Co. 10. 103. b. such a matter M. Lamb. thinketh it to be the stat 34. Ed. 3. 1. that Fineux meant rather then the statute of 13. H. 4. 21. H. 6. fo 5â— 22. Yet Fineux chiefe Iustice saith that this statute of 13. H. 4. was made for the common profit of the Realme and for a hastie remedie and to avoide a present mischiefe like to happen and therefore shall be construed largely for
Dalton ibid. Also the said Iustices may take from such riotters their Armour harnesse and weapons and shall cause the same to be prised and to be answered to the King as forfeited 41. After the arrest made Record 13. H. 4. ca. 7. P. 1. the said Iustices and Sheriffe or undersheriffe shall make a record in writing of the said riot scil of all that which they shall see and finde done in their presence against the Law without any other inquiry 42. But if the Iustices of peace doe not themselves see the Riot Dalton 103. then they cannot make a record thereof but then they must inquire thereof Ibid. 43. If the Iustices of peace c. going to see a Riot another riot shall happen in their presence they may record this and arrest and imprison the offendors Ibid. 44. So if the Riotters shall make a Riot upon the Iustices and Sheriffe that doe come to arrest them for their former riot they may record that also Ibid. 45. So if two Iustices of peace and the Sheriffe or undersheriffe shall meet for any other occasion of service or for any private businesse as upon an arbitrement or other like matter and a riot shall happen to be done upon themselves or in their sight they may record it and may arrest and imprison the offendors 9. H. 6. fo 60. Cromp. 63. 65. 46. And if the Iustices of peace shall record a riot and upon examination of the matter after it shall appeare to be no riot or that they saw it not or that there was no riot at all yet the parties shall be concluded thereby and have no remedy by course of common Law but if it be done of malice or partiality they shall be punished for it in the Starchamber and therefore the Iustices shall doe well to be advised what they record See 9. H. 6. fo 60. Br. Iudges 2. Dalton pa. 103. 47. And againe for that this record of the Iustices and Sheriffe is a sufficient conviction in it selfe against the offendors therefore it ought to be formall and certaine as well for the time and place as also for the number of weapons manner and other circumstances because the parties be concluded thereby and shall not bee received to traverse or deny it in any point 48. For the forme of the record vide tit Warrants and presidents 49. The record ought to remaine with one of the said Iustices of peace Dalton pa. 103. and shall not be left amongst the records of the Sessions of the peace it being made out of the Sessions and not appointed to be certified thither 50. Also the said Iustices of peace and none other Iustices of peace shall commit such offendors to the gaole Dalton pa. 103. there to remaine convict by their view testimony and record as in case of forceible Entrie untill they have paid a fyne to the King 51. Also such commitment of the offendors to the gaole ought to be done presently Co. â— 120. 52. And the power of the County ought to bee ayding to the Sheriffe and undersheriffe for the convaying of them to the gaole Dalton pa. 103. if there be occasion 53. If the Iustices of peace and Sheriffe or undersheriffe shall record the riot Cromp. 61. and shall not presently commit the riotters to prison or if they shall commit them to prison and shall not record the riot they shall forfeite every of them 100.l by the statute 13. H. 4. Fâ—oâ—â—â— Pâ—â—â—tâ— 1â— H. 4. â—a 7. for that 〈◊〉 â—haâ—e noâ— done execution of the same stat for by the statute they shall record fine and commit the offendors or else the statute is not fully executed 54. Also the said Iustices of peace and none other shall assesse the fines upon the offendors Cromp. 161. 2. H. 5. ca. 8. for they have best knowledge of the matter c. Co. 8. 4. 1. a. which fines by the statute 2. H. 5. 8. ought to be of good value that out thereof the charges of the said Iustices and other officers may be borne sc their charges in going tarrying Dalton pa. 104. and returning c. about the suppressing and inquiry of such riots of which charges payment shall be made by the Sheriffe by Indenture thereof made betweene him and the said Iustices 55. And yet such fines must be reasonable and just and secundum quantitatem qualitatem delicti and not unreasonable or excessive for excessus in re qualibet jure reprobatur communi Co. 11. 44. and so it is commanded by the statutes 18. E. 3. 2. 34. Edw. 3. 1. P. Iust 1. 18. 56. Note also that the fine assessed in this and such like cases must not be imposed upon all the offendors jointly but must be assessed upon every offendor severally Co. 11. 43. 44. 57. And the said Iustices shall cause the said fines to be estreated into the Exchequer Dalton 104. that so the said fines may be levyed to the Kings use and then they are to deliver the offendors againe as it seemeth or else the said Iustices may record such riot by them viewed and commit the offendors and after certifie the record to the Assizes or Sessions or into the Kings Bench as in case of a forceible Entry 58. 13. H. 4. 7. But it the riot was not committed in the presence of the Iustices of peace or that the offendors be departed before the comming of the said Iustices and Sheriffe or undersheriffe then the said Iustices or two of them at the least within one moneth after such riot assembly or rout shall inquire thereof Enquiry by the oathes of a sufficient Iury to be returned by the Sheriffe and the same riot c. being found by such Inquisition the said Iustices must make a record in writing of such their inquiry and presentment found before them which record also is to remaine with one of the said Iustices P. R. 29. 59. The forme of such enquiry or presentment you may fee in the title of warrants and presidents 60. This enquiry shall not be Cromp. 62. but where the rioters are gone before the comming of the Iustices 61. Dalton pa. 104. It is not necessary that one of the Iustices of peace which shall make enquiry of a riot be of the Quorum 62. Although the words of the statute are the same Iustices Dalton pa. 104. scil which came to see the riot shall enquire yet if any other two Iustices of peace of that County shall doe it that will suffice 63. Ibid. Also the Iustices of peace although they goe not to see the riot yet they may enquire thereof within the moneth after 64. Dalton pa. 10â— Neither is it of such necessity to have the enquiry within the moneth that for default thereof the presentment shall be voide for the Iustice of peace may enquire thereof at any time by force of their Commission but
so this certificate is only of the nature of a declaration or indictment at the common law and therefoâ—e it ought to comprehend the certainty of the time place persons and other materiall circumstances Dalton p. 107. 78. If this certificate be not made within one moneth after the enquirie then it is not according to the statute and so not good to force the offendors to answere Ibid. 79. If two Iustices of peace and the Sheriffe shall goe to see a Riot yet any two other Iustices of the County may make the enquiry and then they altogether or the first two or the last two with the Sheriffe or undershâ—riffe may make certificate thereof within the moneth after that inquisition taken Cromp. 63. 80. Where there be severall certificates made or that the certificate and enquiry doe disagree then that shall be proferred which is best for the King 81. If there shall be twenty parties to a Riot and the Iury shall finde but ten of them guilty Dalton 107. yet the Iustices may certifie that twenty committed the Riot and this certificate of the Iustices shall stand good Dalton 107. 82. Also it seemeth if any thing materiall happen to be omitted or left out in the inquisition yet it may be supplied by this certificate and it shall stand good 83. If after the inquiry and before the certificate the Sheriffe shall dye Ibid. or one of the Iustices be put out of the Commission no certificate can be made by the opinion of Master Marrow 84. For the forme of such certificate see the Title of warrants and presidents 2. H 5. 8. P. 6. 85. Upon the default of the two next Iustices and Sheriffe or undersheriffe for not excuting the said statute of 13. H. 4. ca. 7. the party grieved may have a Commission Commission to inquire aswell of the Riot as of the defaults of the said Iustices and Sheriffe 2. H 5. â— P. 6. 86. Also the Lord Chancellor of Ireland if he shall have notice of such a Riot shall send the Kings writ to the Iustices and Sheriffe commanding them to execute the said statute of 13. H. 4. 87. And although that such writ come not to the said Iustices Sheriffe or undersheriffe yet they shall not be excused of the penalty of 100.l aforesaid if they make not execution of the said statute 2. H. 5 ca. 9. 88. Also if any assemblies of people in great number in manner of insurrection 8. H. 6. ca. 14. or other rebellious Riots shall be done or committed Rast 374. and that such offâ—ndors shall withdraw themselves to the intent to avoide the execution of the Law thereupon certificate by two Iustices of peace Dalton p. 108. and the Sheriffe of that County by letters under their seales to the Lord Chancellor of England of the same Riot and that the common voice and fame thereof runneth in the said County the Lord Chancellor may make a Capias to the said Sheriffe for the apprehending of such offendors and after if need be a writ of Proclamation that the said offendors yeild themselves in the Kings Bench at a certaine day upon paine to be convicted thereof 89. The statute of 13. H. 4. 13. H. 4. ca. 7. authorising and enjoyning the Iustices of peace together with the Sheriffe to arrest remove and punish the offendors as is before declared gave no remedie to the partie grieved if the Iustices of peace or Sheriffe should make default therein and therefore the said statute of 2. H. 5. was made authorising the Lord Chancellor at the instance of the partie grieved to grant a Commission to inquire of the defaults of the two next Iustices of peace and Sheriffe in not executing the aforesaid statute of 13. H. 4. and withall providing how the charges of the Iust spent about the suppressing and inquirie of such Riots should be borne and also limitting what punishment aswell the offendors of such riots as also all such as should not be ready to assist and aide the said Iustices to represse such Riotters should suffer 90. So as now it appeareth by that which hath been said that the Iustices of peace are to be severely punished if they shall be remisse or negligent in the due execution of the said statute of 13. H. 4. and therefore it will be requisite in this place to set forth for the instruction of the Iustices of peace these particulars following videlicet 1. First what shall be said to be a Riot Rout or unlawfull assembly and what not 2. What persons may commit a Riot Rout or unlawfull assembly What shall be said to be a Riot Rout or unlawfull assembly within the meaning of these statutes CHAP. 51. 1. VVHen three persons or more shall come or assemble themselves together Br. Riot 5. Cromp. 68. P.R. 25. to the intent to doe any unlawfull Act with force or violence against the person of another his possessions or goods as to kill beate or otherwise to hurt or to imprison a man to pull downe a house wall pale hedge or ditch wrongfully to enter upon another mans possession or to cut or take away Corne grasse Br. Riots 4. Vnlawfull Assembly wood or other goods wrongfully to hunt unlawfully in any parke or warren or to doe any other unlawfull act with force or violence against the peace or to the manifest terror of the people if they only meet to such a purpose or intent although they shall after depart of their owne accord Rout. without doing any thing yet this is an unlawfull assembly 2. If after their first meeting they shall ride goe Dalton 20â— or move forward toward the execution of any such Act whether they put their intended purpose in execution or not this is a Rout. 3. And if they doe execute any such thing indeed then it is a riot Riot and yet by the opinion of some a Rout is only where such a company of three or more are so assembled for their owne common quarrell Ibid. as where the Inhabitants of a Towne doe assemble together to pull downe a house wall pale ditch or other inclosure pretending to have title of common or a way there or to beat a man that hath done them some publick offence but yet the word Rout seemeth to have a more large and ample meaning as appeareth by the statute of 18. Ed. 3. st 1. speaking of Routs that are brought in the presence of the Iustices and the statute of 7. R. 2. ca. 6. treating of riding in great Routs 4. Now in Riots Routs or unlawfull assemblies these foure circumstances are to be considered 1. First the number of the persons assembled 2. Secondly the intent or purpose of their meeting 3. Thirdly the lawfulnesse or unlawfulnesse of the Act. 4. Fourthly the manner and circumstances of the Act. 5. For the number The number there must be necessarily three persons at the least so
peace of the same shire or liberty or else to the high Constable of the hundred rape or wapentake within which such persons shall be taken and if he be taken within any City or Towne corporate then to be brought before the Maior Sheriffes or Bailiffes of every Towne corporate and that every such Iustice of peace high Constable Maiors Sheriffes and Bailiffes by their discretions shall cause every such idle person to him so brought to be had to the next market Towne or other place where the said Iustices of peace high Constable Maiors Sheriffes Bailiffes oâ— other officers shall thinke most convenient by his or their discretion and there to be tyed to the â—nd of a Cart naked and be beaten with whippes throughout the â—ame market Towne or other place till his body be bloudy by reason of such whipping and after such punishment and whipping had the person so punished by the discretion of the Iustice of peace high Constable Maiors Sheriffes Bailiffes and other officers before whom such person shall be brought shall be enjoyned by his oath to returne forthwith without delay in the next and straight way to the place where he was borne or where he last dwelled before the same punishment by the space of three yeares and there to put himselfe to labour like as a true man ought to doe and after that done every such person so punished and ordered shall have a letter sealed with the seale of the hundred rape wapentake City Borough Towne liberty or Franchise wherein he shall be punished witnessing that he hath beene punished according to this statute and containing the day and place of his punishing and the place whereunto he is limited to come thither within which time he may lawfully begge by the way shewing the letter and otherwise not and if he doe not accomplish the order to him appointed by the said letter thereto be eftsoones taken and whipped and so as often as any default shall be found in him contrary to the statute in every place to be taken and whipped till he be repaired where he was borne or where he last dwelled by the space of three yeares and there put his body to labour for his living or otherwise truely to get his living without begging as long as he is able so to doe and if the person so whipped be an idle person and no common begger then after such whipping he shall be kept in the Stocks till he have found surety to goe to service or else to labour after the discretion of the said Iustices of peace Maiors Sheriffes Bailiffes high Constables or other such officers before whom any such idle person being no common begger shall be brought if by the discretion of the same Iustice of peace Maior Sheriffe Bailiffe high Constable or other such head officer it be so thought convenient and that the party so punished be able to finde surety or else to be ordered and sworne to repaire to the place where he was borne or where he last dwelled by the space of three yeares and to have like letter and such further punishment if he eftsoones offend this statute as is above appointed to and for the common strong and able beggers and so from time to time to be ordred and punished till he put his body in labour or otherwise get his living truely according to the statute and that the Iustices of peace of every shire riding City Towne and liberty shall have power and authority within their limits of their Commissions to enquire of all Maiors Sheriffes Bailiffes Constables and other like officers and persons that shall be negligent in executing of this Act and if the Constables and inhabitants within any Towne or Parish where any such impotent person or strong begger doth happen to begge contrary to the forme of this statute be negligent and take not every such impotent and strong begger that so shall begge against the forme of the statute and order and punish every such begger as is above limitted that then the Towneship or Parish where such default shall be shall lose and forfeite for every such impotent begger that shall be suffred to begge within the said Towneship or Parish not being taken ordred and punished according to the forme of this statute three shillings and foure pence and for every strong begger that shall happen to begge within any such Towneship or Parish not being taken and ordered as is above limitted by this statute six shillings and eight pence the one halfe of all which forfeitures to be to the King our soveraigne Lord and the other halfe to him that will sue for the same by any bill of information before the Kings Iustices of his peace in their Sessions to be holden within the Shire or within the liberty where such default shall happen and that all Iustices of peace within any Shire City Borough or liberty shall have full power and authority aswell to heare and determine every such default by presentment as by such bill of Information and upon every presentment afore them and upon every such bill of Information to make processe by distresse against the Inhabitants of every such Towne and Parish where any such default shall be presented or supposd by any such Information by authority of which distresse the Sheriffe or other officer to whom by the Law such distresse shall be made shall distreine the goods and Chattels of such one or two of the said Inhabitants as he may have knowledge were most negligent and in default in the execution of this Act and the said distresse retaine till they finde surety to appeare at the next Sessions limitted in their said distresse and in case they appeare and confesse the default or else if they traverse the presentment and it be tryed against them by verdict or deny the Information and it be proved against them by sufficient witnesse then the said Iustices of peace in their Sessions shall have power and authority to assesse the fines as beene above limitted after the rates abovesaid and to make processe for the levying of the fame by distresse of the Inhabitants of such Townes or Parishes where such default shall be tryed or proved and that every such fyne if it grow by presentment to be only to the Kings use and if it grow by Information the moity thereof to be to him that pursueth the information for the fame and the other moity thereof to the Kings use as is aforesaid and if any such person or persons distrained appeare not at the day and place contained in such distresse then upon the returne of the Sheriffe or other officer to whom the distresse was delivered to execute that such person or persons were distrained then every such person or persons so distrained at the first distresse shall loose 40. d. and at the second 5. s. 8. d. and so to be doubled upon every distresse in such cases to be awarded till apparance may be had by one of the
Inhabitants of such Towne or Parish to deny traverse or confesse the presentment or information exhibited against any such Towne or Parish to the intent that upon tryall or proofe thereof the fynes above limitted may be assessed and levyed of the Inhabitants of every such Towne or Parish as is above rehearsed and that Schollers of the universities that goe about begging not being authorised under the seale of the universities by the Commissary Chancellor or Vice-chancellor of the same and all and singular shipmen pretending losses of ther ships and goods of the Sea going about the Countrey begging without sufficient authority witnessing the same shall be punished and ordered in manner and forme as is above rehearsed of strong beggers and that all proctors and pardoners going about in any Countrey or Countreyes without sufficient authority and all other idle persons going about in any Countrey or abiding in any City Borough or Towne some of them using diverse and subtile crafty and unlawfull gaines and playes and some of them faining themselves to have knowledge in Physicke Phisnomy Palmestry and other crafty sciences whereby they beare the people in hand that they can tell their destines diseases and fortunes and such other like fantasticall imaginations to the great deceit of the Kings subjects shall upon examination had before two Iustices of peace whereof the one shall be of the Quorum if he by proveable witnesse be found guilty of any such deceits be punished by whipping at two dayes together after the manner before rehearsed and if he eftsoones offend in the said offence or in the like offence then to be scourged two dayes and the third day to be put upon the pillory from 9. of the clocke till 11. before noone of the same day and to have one of his Eares cut of and if he offend the third time to have like punishment with whipping standing on the pillory and to have his other Eare cut of and that Iustices of peace have like authority in every liberty and franchise within their Shires where they be Iustices of peace for the execution of this Act in every part thereof as they shall have without their liberty or franchise and that this Act shall every yeare be read in open Sessions to the intent that the statute shall be the more feared and the better put in execution and furthermore be it enacted that if any person or persons at any time hereafter give any harbour money or lodging to any beggers being strong and able in their bodies to worke which order themselves contrary to the forme of this statute that every such person so doing being sufficiently proved or presented before any Iustice of peace shall make such fine to the King as by the discretion of the said Iustices of peace at their generall Sessions shall be assessed and if any person or persons doe disturbe or let the execution of this Act in any manner wise or make rescous against any Maior sheriffe bailiffe or other person that shall endeavour himselfe for the due execution thereof that then every such person and persons for every such offence doing shall loose 100. s. and over that to have imprisonment at the Kings will the one halfe of which forf if such offence be committed in any Citie or towne corporate to be to the Maior Sheriffe Bailiffe or other head Officers of such Towne or City corporate where any such offence shall be done to the use of the commonaltie of every such Citie of towne corporate and if it be committed out of the Cittie or Towne corporate then the said one halfe to be to the Lord of the Leere or Law day where such offence shall be done and the other halfe of every such forf to be to the King for the which forf of 5. l. recoverie shall be had by action of debt Bill or plaint or information in any of the Kings Courts in which suits the defendants shall not wage their Law nor have any essoigne or protection allowed And it is ordeined and enacted that the seales above rehearsed shall be made at the costs and charges of the Iustices of peace Maiors Sheriffes Bailiffes and other officers above written that is to say that every of them should doe the said seales to be made within the limits of their divisions jurisdictions and authorities And it is also ordeined and enacted that every letter to be made by the authoritie of this Act whereby any impotent begger shall be authorised and assigned to begge shall be made in this forme ensuing viz Dublin ss Memorandum that A. B. of dale for reasonable consideration is licensed to begge within the hundred of P. K. and L. in the said County given under the seale of that limit tali die anno And that every such letter that shall be made and delivered to such begger or Vagabond after he hath beene whipped by authority of this Act shall be made in this wife following Dublin I. S. whipped for a vagrant strong begger at Dale in the said County according to the Law the 28. day of Iuly in the 13. yeare of King Charles c. was assigned to passe forthwith and directly from thence to sale in the County of Meath where he saith he was borne or where he last dwelled by the time of three yeares and he is limitted to be there within 14. dayes next ensuing at his perill or within such number of dayes as to him shall be limitted by the discretion of him that maketh the said letter In witnesse wherof the seale of the limit of the said place of his punishment hereunto is set 7. And it is enacted that every such letter shall be made at the equall costs of such the said Iustices mayors sheriffes bailiffes and other officers within whose Iurisdictions powers and authorities the said begger or Vagabond shall be whipped or limitted to begge in by authoritie of this Act and every such letter shall be subscribed with the hand of one of the Iustices Maiors sheriffes bailiffes or other officers in this forme following Per me A. B. unam Iusticiariorum pacis or majorem civitatis or ballivum villae or constabularium talis hundredi or else in like forme in English 8. And it is further enacted that every such person or persons that have the custodie of any gaoles within any shire City borough or towne corporate shall doe make a seale engraved with the name of the Castle prison or gaole which he keepeth and in case any person or persons that shall be delivered out of any gaole or prison for suspition of felony by proclamation or be acquit of any felony and hath no friends to pay his fees nor was borne within the hundred or place where he shall happen to be so delivered nor can get him no master there to abide and worke with shall have libertie to begge for his Fees by the license of his Keeper by the space of six weekes next after such deliverance and after that to
of peace resident and dwelling within any County of this realme where such house and backside shall not be so erected and provided shall forf for his neglect Five pounds sterling and so for every yeare which shall ensue after the Feast of Saint Michael wherein the said house and backside shall not be erected and provided every such Iustice of peace as is aforesaid shall forf 5.l sterling the one moitye of the said forfeitures to be unto him or them that will sue for the same by action of debt Bill plaint or information in which suit no protection essoine or wager of law shall be admitted and the other moitie thereof to be imployed and bestowed towards the erection building procuring or providing the same houses and backsides respectively and such necessary imployments as aforesaid and by the said Act it is further ordained that the Iustices of peace in every County within this Realme or the more partie of them shall have power at any their quarter Sessions of the peace within the said County to make such orders as to them or the more part of them from time to time shall be thought fit for the raising of money upon the inhabitants of the said County for erecting or providing the said houses and for the government and ordering the said houses respectively or for stocks of money for the setting to worke such persons as shall be committed to the same or for the yearely payment of such officers as hereafter by this present Act shall bee appointed for governor or governors of the said house or houses and for such other as they shall thinke fit to be imployed therein and that the said Iustices at their said Quarter Sessions wherein they shall set such order for the raising of money as aforesaid shall then and so yearely afterwards nominate and appoint one sufficient man inhabiting in the said County to be and be called the treasurer of the receiving and paying out of such monies as shall be collected for the said houses or for the use of them and the said treasurer so elected to continue for the space of one whole yeare in this office and then to give up his charge with a due accompt of his receipts and disbursements at the quarter Sessions to be holden next after the Feast of Saint Michael every yeare in the presence of two Iustices of peace to such other as shall be from yeare to yeare successively elected treasurer and if any man chosen as aforesaid shall refuse to accept or execute the said office of treasurership that then it shall be lawfull for the Iustices of peace in their quarter Sessions or in their defaults for the Iustices of Assise at the Assises to be holden in the same County to fyne the said treasurer by their discretion the same fyne not to be under three pounds sterling which shall be levyed by sale of his goods by vertue of a warrant to be given for that and by the said Iustices to such person or persons as they shall thinke fit which fyne so levyed to be to the use and towards the maintenance of the said house of correction And it is further enacted that the Iustices of peace of every County within the realme of Ireland at their quarter Sessions of the peace to be holden for their severall Countyes next after the erecting providing or building of the said house or houses and so from time to time or the most part of them shall elect nominate and appoint at their will and pleasure one or more honest fit person or persons to be governor or master of the said house or houses so to be purchased erected built or provided which person or persons so chosen by vertue of this present Act shall have power and authority to set such Rogues Vagabonds idle and disorderly persons as shall be brought and sent unto the said house to worke and labour being able from time to time for such time as they shall continue and be remaining in the said house of correction and to punish the said Rogues Vagabonds idle and disorderly persons by putting fetters or ginnes upon them and by moderate whipping of them and that the said Rogues Vagabonds and idle persons during such time as they shall remaine in the said house of correction shall in no sort be chargeable to the Countrey for any allowance either at their bringing in or going forth or during the time of their abode there but shall have such and so much allowance as they shall deserve by their owne labour and worke And for that it is convenient that the masters and governors of the said houses of correction shall have some fit allowance and maintenance for their travaile and care to be had in the said service as also for the releiving of such as shall happen to be weake and sicke in their custody It is therefore enacted that the masters or governors of the said houses of correction shall have such summe of money paid him yearely as shall be thought meete by the most part of the Iustices of peace within the said County at their quarter Sessions of the peace the same to be paid quarterly before hand by the treasurer aforesaid during the time that the said masters or governors shall be imployed in the service the said master or governor giving sufficient securitie for the continuance and performance of the said service which if the Treasurer shall neglect or refuse to performe then the said master or governor of the said house of correction shall by warrant from any two Iustices of the peace of the said County levye such summe or summes of mony as ought to be paid to the said master or governor by distresse and sale of so much of the said treasurers goods as the said money which shall be behind doth amount unto rendring to the said treasurer the overplus if any shall remaine and in defect of such distresse it shall be lawfull for any two Iustices of peace as aforesaid to commit the said treasurer to the County gaole of the County there to remaine without baile or mainprise untill payment be had of such summes as is behind to the said master and governor provided alwayes that before any such warrant be granted for distraining of the said treasurers goods or committing of his body that it shall appeare before the said Iustices of peace either by confession of the party or by testimony of two sufficient witnesses in the presence of the treasurer that he hath so much money in his hands appertaining to the said uses as may satisfie the said masters or governor and because there shall be the more care taken by all such masters of the houses of correction that when the Countrey hath beene at trouble and charge to bring all such disorderly persons as aforesaid to their safe keeping that then they shall performe their dueties in that behalfe It is therefore enacted that if they shall not every quarter Sessions yeeld a true
and lawfull accompt to the Iustices of peace of all such persons as have beene committed to their custody or any of them shall be troublesome to the Countrey by going abroad or otherwise shall escape away from the said house of correction before they shall be from thence lawfully delivered that then the said Iustices shall set downe such fynes and penalties upon the said masters and governors as the most part of them in their quarter Sessions shall thinke fit and convenient and all fynes and penalties not herein before limitted shall be paid unto the treasurer and accompted for by the treasurer aforesaid and further that the said Iustices of peace of every County or any two or more of them twice in every yeare at the least and oftner if there be occasion shall assemble and meet together for the better execution of this statute and that some foure or five dayes before their assembly and meeting the said Iustices or the more part of them shall by their warrant command the Constables of every Barony Towne Parish Village and hamlet within the said County or so many of them as they in their discretions shall thinke fit which shall be assisted with sufficient men of the same places to make a generall privy search in one night within their said Barronies Townes Parishes villages and hamlets for the finding out and apprehending of the said Rogues Vagabonds wandring and idle persons and that such Rogues Vagabonds wandring and idle persons as they shall then finde and apprehend in the said search shall by them be brought before the said Iustices at their said assembly and meeting there to be examined of their idle and wandring life there to be punished according to a statute in the 33. yeare of King H. 8. in this kingdome against Vagabonds or otherwise by their warrant to be sent or conveyed unto the said house or houses of correction within the said County appointed and prefixed there to be delivered to the master or governor of the said house or to his Deputie or assignee to be set to labour and worke at which dayes and times of assembly and meeting so to be held by the said Iustices of peace the Constables of the said Barronies Parishes Townes Villages and hamlets shall then appeare before the said Iustices of peace at the said assemblies or meetings and there shall accompt and reckon upon oath in writing what Rogues Vagabonds and wandring disorderly persons they have apprehended both in the same search and also betweene every such assemblies and meetings and how many have beene by them punished or otherwise sent unto the houses of correction which if the said Constables shall neglect to performe as also to convey safely all such Rogues with all other idle or disorderly persons at the charge of the Constablewicke as by the Iustices of peace warrants shall be sent unto the houses of correction in the same County that then they shall forfeite such further fynes paines and penalties as by the said Iustices of peace or the most part of them shall be thought fit and convenient not exceeding the summe of Forty shillings for every offence And it is further enacted that all persons calling themselves schollers going about begging all idle persons going about in any Countrey either begging or using any subtill craft or unlawfull games or playes or feigning themselves to have knowledge in Phisiognomie Palmestry or other like crafty science or pretending that they can tell destinies fortunes or other like phantasticall imaginations all persons that be or utter themselves to bee proctors procurers patentgatherers or collectors for gaoles prisons or hospitals all Fencers Bearewards common players of enterludes and minstrels wandring abroad all Iuglers all wandring persons and common labourers being persons able in body using loytering and refusing to worke for such reasonable wages as is taxed and commonly given in such parts where such persons doe or shall happen to abide or dwell not having living otherwise to mainetaine themselves all persons delivered out of gaoles that begge for their fees or otherwise travell begging all such persons as shall wander abroad pretending losse by fire or otherwise all such as wandring pretend themselves to be Egyptians or wander in the habite forme or attire of counterfeit Egyptians shall be taken adjudged and deemed Rogues Vagabonds and sturdy beggers and shall sustaine such punishments as are appointed by the said statute made in the three and thirtieth yeare of King Henry the Eighth cap. 15. in this kingdome against Vagabonds or be otherwise dealt withall by sending them to the house of correction in the County where they shall be found as to the Iustices of peace of the said County or to any one or more of them shall be thought fit and for that many wilfull people finding that they have children have some hope to have reliefe from the Parish wherein they have dwelled and being able to labour and thereby to relieve themselves and their families doe neverthelesse runne away out of their Parishes and leave their families upon the Parish for remedy whereof it is enacted that all such persons so running away shall be taken and deemed to be incorrigible Rogues and endure the paines of incorrigible rogues and if either such man or woman being able to worke and shall threaten to run away and leave their families as aforesaid the same being proved by two sufficient witnesses upon oath before two Iustices of peace in the County where they dwell or whither they runne that then the said person so threatning shall by the Iustices of peace be sent to the houses of correction unlesse he or shee can put in sufficient sureties for the discharge of the Parish there to be dealt with as a sturdy and wandring Rogue and to be delivered by the said Iustices at any of their meetings or at their quarter Sessions and not otherwise And it is further enacted that if any Action of Trespasse or other suite shall happen to be attempted and brought against any person or persons for taking of any distresse making of any sale or any other thing doing by authority of this present Act the defendant or defendants in any such Action or suite shall and may either plead not guilty or otherwise make avowry cognisance or justification for taking of the said distresse making of sale or other thing doing by vertue of this Act alledging in such avowry cognisance or justification that the said distresse sale trespasse or other thing whereof the plainetiffe or plainetiffes complained was done by authority of this Act and according to the tenor purport and effect of this Act without any expressing or rehearsall of any other matter or circumstance contained in this present Act to which avowry cognisance or justification the plainetiffe shall be admitted to reply that the defendant did take the said distresse made the said sale or did any other Act of Trespasse supposed in his declaration of his owne wrong without any such cause
alledged by the defendant whereupon the issue in every such Action shall be joyned to be tryed by verdict of twelve men and upon the tryall of that issue the whole matter to be given on both parties in Evidence according to the very truth of the same and after such issue tryed for the defendant or nonsuite of the plainetiffe the sad defendant shall recover treble damages by reason of his wrongfull vexation in that behalfe with his costs also in that part sustained and that to be assessed by the same Iury or by writ to enquire of damages as the same cause shall require And it is further enacted that the Iustices of Assize in their severall circuits shall have full power to enquire of all defects defaults and negligences of any Iustice of peace or any other officer person or persons whatsoever in the not due execution of this Law and also of all offences done contrary to the intent and true meaning thereof and to punish the same by fyne or imprisonment or otherwise according to their discretions Suretie for the peace CHAP. 56. 1. Dalton 140. SUretie for the peace is the acknowledging of a Recognisance or bond to the King taken by a competent Iudge of Record for the keeping of the peace and it is called surety of the word securitas because the party that was in feare is thereby the more secure and safe 2. This surety for the peace F. N. B. 7. 9. h. Lamb. 77. every Iustice of peace may take and command in two manners or by a twofold authority 3. First as a Minister commanded thereto by a higher authority as when a writ of supplicavit directed out of the Chancery or Kings Bench is delivered to his hands upon this writ that Iustice of peace only to whom such writ was delivered is to direct his warrant to cause the party to be brought before him alone to finde sureties for the peace and therein the said Iustice is to doe in every behalfe according as the writ doth direct him 4. Secondly as a Iudge and by vertue of his office and of his owne power derived from his Commission he may command this surety of the peace to be found and that either of his owne motion and discretion or else at the request or prayer of another 5. The Iustice of peace upon his owne motion and discretion may if he see cause command surety for the peace to be found or may bind a man to the peace and that against all the Kings subjects Vpon discreton Dalton 141. if the Iustice shall so thinke fit in these cases following 6. One that maketh an assault or affray upon the Iustice of peace himselfe the Iustice of peace may commit him to prison 5. H. 7. 6. till he hath found sureties for the peace or if he please for the good behaviour 7. So of such as in his presence shall make an affray upon another P. R. 18. 19. or shall stricke or assault or offer to stricke another 8. So he may doe of such as in his presence and hearing shall threaten to kill beat or hurt another or to burne his house 9. So likewise may he doe of such as in his presence shall contend in hot words P. R. 1â— for from thence oftentimes doe ensue affrayes and batteries and sometimes mischiefes yea manslaughters and murders See Cromp. 761. 142. P. R. 4. 10. So also may he doe of such as shall in his presence goe or ride armed offensively or with an unusuall number of servants or attendants for these are accompted to be in affray and feare of the people and a meanes of the breach of the peace so of servants and labourers that shall beare any weapons contrary to the statute of 20. R. 2. ca. 1. 9. Ed. 4. 3. P. R. 18. 11. Also he may binde to the peace any other person by him suspected to be inclined to the breach of the peace 12. If out of the presence of the Iustice of peace any man shall threaten to kill Cromp. 135. 143. P. R. 22. maime or beate another or doe attempt or goe about to doe it then any Constable being present or at the prayer of the other party may arrest such offendor to come before a Iustice of peace to finde sureties for the peace Fit bar 202. and the Iustice may bind him to the peace 13. If any Constable shall perceive any other persons in his presence 14. H. 7. 7. to be about to breake the peace either by drawing weapons or by stricking or assaulting one another or by assaulting the Constable himselfe he may take assistance and carry them all before the Iustice to finde sureties for the peace and the Iustice may bind them accordingly and for default of sufficient sureties the Iustice of peace may commit them to the gaole untill they finde such security 14. If the Constable shall learne that certaine persons be fighting or quarrelling in a house P. R. 22. he may breake open the doores and arrest them and bring them before a Iustice of peace to finde surety of the peace and the Iustice may bind them to the peace or in default of such sureties commit them to the gaole Dalton 141. 15. Yea the Iustice of peace either upon his owne discretion or upon any mans complaint may make his warrant for any such as have made an affray though out of his presence and may bind them to the peace or commit in default of sufficient sureties 16. If one hath received a wound the Iustice of peace may take surety of the peace of the one See Br peace 21. and the other by his discretion untill the wound be cured and the malice be over Popham the Lord chiefe Iustice of England an honourable and grave Iudge did accordingly betweene Iames and Benton at Cambridge Assizes 3. Iacobi 17. All such as shall goe or ride armed offensively in faires markets 2. Ed. 3. ca. 3 or elsewhere or shall weare or carry any guns daggs or pistols charged Dalton 142. in disturbance of the peace or terror of the people any Constable seeing this may arrest them and may bring them before any Iustice of peace and the Iustice may bind them to the peace yea though those persons were so armed or weaponed for their defence for they might have had the peace against the other persons whom they feared and besides it striketh a feare and terrour in the Kings subjects 18. Also the Iustice of peace upon his discretion may bind to the peace a common Barretor Ibid. and so he may Riotters 19. If he that standeth bound to keepe the peace hath broken 21. Ed. 4. 40. or forfeited his recognisance the Iustice of peace ought and may of his discretion to bind him anew but that must not be done untill the party be convicted of the breach of the peace upon his recognisance for before his conviction it resteth indifferent
whether the recognisance be forfeited or no but after that he is thereof convicted Br. peace 17. the recognisance is utterly determined Cromp. 42. and then he is to be compelled to finde new surety or else to be sent to the gaole 20. So it seemeth if the Iustice of his owne knowledge know that the party which was bound hath sithence his entring into bonds broken the peace he shall be bound of new and if he refuse to finde new sufficient sureties he shall be committed to prison Cromp. 141. Br. recog 21. 21. Also he that standeth bound to keepe the peace Dalton 14â— if his sureties be insufficient the same Iustice or another Iustice of the peace may compell him to finde better sureties or else commit him to the gaole 22. And in many of the former cases the Iustice of peace ought of duty or at least in good discretion to command the surety for the peace although the same be not required by any other person and if any such person shall refuse to give such surety the Iustice of peace ought to send him to prison there to remaine untill he shall finde such surety 23. 9. Ed. 4. 3. Br. peace 8. If a Iustice of peace upon his owne discretion shall cause one to be arrested to finde sureties for the peace and shall after let him goe without taking surety or binding him to the peace yet the party hath no remedy for an Action will not lye against the Iustice of peace he being a Iustice of Record See 9. H. 6. fo 60. 9. Ed 4. fo 3. Br. Iudges 2. 10. 24. A Iustice of peace may perswade a man to require the surety of peace against another and he himselfe may grant a warrant for it P. R. 18. Dalton 143. because it is no more then he might have granted of his owne authority without any demand made and it shall be presumed that he saw cause to doe all this 25. Also at the request or prayer of another Vpon request the Iustice of peace may command this surety of the peace and may grant his warrant for it 26. But here the Iustice of peace must and ought to take an oath of the party that demandeth the peace F. N. B. 7â— â— which oath must be to this effect scil that he standeth in feare of his life Dalton 143. or of some bodily hurt to be done to himselfe or to have his houses burned and that he doth not crave the peace for any private malice or for vexation but of very feare and for the needfull safety of his body or houses for the words of the Commission herein are Et ad omnes illes qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorum suarum minas fecerint ad sufficientem securitatem de pace c. inveniendam c. 27. So as he that shall be threatned to be hurt in his body scil to be beaten Ibid. wounded maimed or killed the party so threatned may crave and have the surety of peace against the other Ibid. 28. Also if a man doe feare that another will kill maime beat assault or hurt him in body he may crave the peace against such other person 29. So if a man doe feare that another will burne his house 30. So if a man doe feare that one will procure or cause any such hurt to be done him by another Ibid. either in his body or in his house for the words of the recognisance be non faciet neque fieri procurabit Ibid. 31. So if a man lieth in waite to beate kill or hurt another it is good cause to require this surety Cromp. 135. Ibid. 32. If a man be threatned to have his goods burned it seemeth by the opinion of Master Fitz. that he may demand surety of the peace for this 17. Ed. 44. Br. peace 22. 33. But where a man shall threaten to imprison another it is holden that the peace shall not be granted for this may be intended to be by legall processe but if one shall threaten another of his owne wrong without any legall processe to Imprison him by force and violence it seemeth to me that this is good cause not onely to grant security for the peace but also for the good behaviour for to threaten such imprisonment is within the words minas de corporibus and like harme may happen to a man by hard imprisonment as by cruell beating of him and to threaten such imprisonment seemeth to be a good cause to avoide a deed aswell as to threaten to kill or maime one c. 39. H. 6. Br. Duress 9. Fitz. Na. Br. fo 80. g. Dalton 144. 34. Where a master is in feare that another will hurt his servants or his Cattell or other goods this surety of the peace shall not be granted by the Iustice of peace but in this case Master Fitzherbert saith the party may have a speciall writ out of the Chancery directed to the Sheriffe that he shall cause such person to finde surety that he shall doe no hurt nor damage to the other man in his body or to his servants or goods and if he will not finde surety that then he shall arrest and detaine him in prison untill he shall finde surety and that the Sheriffe shall certifie all that he shall doe thereupon into the Chancerie c. and it seemeth the Sheriffe ought to take such surety by recognisance and yet if a man shall threaten to hurt my servant or my wife or child I see no cause but that in their behalfe I may crave the peace at the Iustices hands by the words of the Commission and that the Iustice ought to doe it 35. If a man will require the peace because he is at variance or in suite with his neighbour it shall not be granted by the Iustice of peace Br. Impris 41. P.R. 14. 36. Note also that the surety for the peace shall not be granted but where there is a feare of some present or future danger and not meerely for a batterie or trespasse that is past or for any breach of the peace that is past for this surety of the peace is only for the security of such as are in feare â—â—â—â—â—metus est presentis vel futuri periculi causa mentis trepidatio so this surety is providere praesentia futura non praeterita 37. And as for a battery or other like trespasse that is past Dalton 144. the party wronged may have his Action of trespasse or battery c. or may punish the offendor by indictment at the Kings suit and yet in such case the Iustice may if the party hurt do pray it or upon any good circumstance if he see cause bind the party that made the affray to the peace 38. If the Iustice of peace shall perceive that this surety for the peace is demanded meerely of malice
by the Lord without any protestation c. How this Suretie of the peace may be commanded and how the same commandement shall be executed CHAP. 57. 1. THe Iustice of peace may command this suretie of the peace either by word only or by writing 2. By word only the party being in his presence as if in the presence and hearing of the Iust of peace one man doth threaten another or shall make an affray or assault upon another 14. H. 7. 8. or doe some other like thing tending to the breach of the peace the Iustice of peace may command him by word to finde sureties for the peace and for want of such sureties may commit him to prison untill hee shall finde the saâ—e 3. Also if one shall demand this surety against another 14. H. 7. â— who is then in the presence of the Iustice of peace and will be sworne that hee is affrayd of him the Iustice may by word command him to finde sureties for the peace 4. And the Iustice of peace in such cases 14. H. 7. â— â— may by word only command the Constable or any knowne officer or his owne servant being then present to arrest such party to finde sureties for the peace and if the party shall refuse to finde such sureties then the Iustice of peace may commit him to the gaole 5. By precept or warrant in writing and under seale and this must be directed to some officer or other indifferent person By writing and must containe the cause and at whose suit to the intent the party to be bound may provide his sureties and take them with him The forme of which precept See postea tit Warrants and Presidents Co. 5. 59. 6. The Iustice of peace may make his warrant to bring the party before himselfe to finde suretie for the peace by the opinion of Wray chiefe Iustice Br. peace 9. for he that maketh the warrant for the most part hath the best knowledge of the matter and therefore is the fittest to doe Iustice in that case and yet the most usuall manner is to make such a warrant to bring the party before the same Iustice or some other of the Iustices of peace of the same County 21. H. 7. 21. c. and Iudge Fineux his opinion was that where a Iustice of peace doth make a warrant for the party ex officio there the party may choose to appeare before him or any other Iustice in that County and that the party may have his action of false imprisonment against the officer if he doe otherwise compell him How it shall be executed 5. Ed. 4. 13. 7. The Constable or other officer before he arresteth the party upon such a warrant ought first to acquaint him with the matter and withall to require the party in the Kings Name to goe with him before the Iustices to finde sureties according to the warrant and if the party shall refuse either to goe before the Iustice P. R. 20. and Cromp. 235. or to finde sureties then the officer may arrest him by vertue of that warrant and may convey him to the gaole without carrying him to any Iustice of peace and there the party shall remaine untill he shall voluntarily offer and find sureties 8. But if the partie shall yeeld to goe and finde sureties then the officer may not absolutely arrest him but yet the officer is not bound to goe up and downe with him to finde sureties but may keepe the party untill he can procure sureties to come to him yet if afterwards the party shall make any resistance or shall offer to goe his way then the officer may arrest him and by vertue of that warrant may carrie him to the gaole and may also imprison him in the stockes untill he can provide aide to convey him to the gaole 14. H. 7. f. 10. 2. Br. peace 9. When the party commeth before the Iustice of peace by force of this warrant or by force of any other warrant for the peace or good behaviour or for a riot or the like the party must offer sureties to the Iustice of peace or else the Iustice may commit him to the prison for the Iustice needeth not to demand surety of him 10. Also after that the party shall be brought before the Iustice if before him he shall refuse to finde sureties the officer without any new warrant or commandement may carry the party to prison co 5. â—â— and that by the words of the first warrant and if he shall refuse this to doe that then c. see the forme of the warrant in the title of warrants and presidents 11. If the officer doe arrest the party 5. Ed. 4. 6. P. R. 20. and doe not carry him before some Iustice of peace to finde sureties c. or upon the refusall of the party if the officer shall arrest him and doe not carry him to the gaole in both these cases the officer is punishable by the Iustices of peace for this neglect by fyne at their Sessions and also the party arrested may have his Action of false imprisonment for the arrest for where the officer doth not pursue the effect of his warrant his warrant will not excuse him of that which he hath done 21. H. 7. 23. a. See 3. H. 7. fo 3. b. Bryan 12. And if the party be imprisoned for default of sureties and after he that demanded the peace against him happen to dye or shall release the party it seemeth in these cases the Iustice of peace may make his liberate or warrant for the delivery of such prisoner for after such death or release there seemeth no cause to continue the other in prison also any Iustice of peace may upon the offer of such prisoner take surety of him for the peace c. and may thereupon deliver him 13. It seemeth by some opinions 4. Ed. 4. â—6 2. H. 7. 24. Br. priviledge 35. 52. Lambert 96. that if the party imprisoned for not finding sureties hath a suite depending in the common place he may by the course of that Court by a writ of priviledge be discharged of his imprisonment if the other party be not ready in the Court at the day of the returne of the writ to pray sureties of the peace but if upon the returne of the habeas corpus the cause be returned as it ought to be the Court will not discharge him without finding such surety for he that demandeth the peace is not to have notice of the removing of his body and then how can he be ready in the Court of common place at the day and therefore it were a hard case that he should be so defeated of his surety 14. If the party hath gotten sureties then if the warrant proceed ex officio and not upon the writ of supplicavit and be a generall warrant scil to come before me or some other Iustice Co. 5. 59. Br. exâ—mp 11. Br.
peace 9. the party may goe before any other Iustice of peace to offer his surety yet he shall not inforce the officer to travell to a Iustice out of the division or limit where they be dwelling without good cause Nay it is at the election of the officer who is the minister of Iustice to carry the party attached to any other Iustice of peace that he will for it is more reason to give this election to the officer who in presumption of Law is a person indifferent and is sworne to execute his office duely then to give the election to the delinquent himselfe who by presumption will seeke shifts and to weary the Officer 15. If the other Iustice of peace before whom the party so attached shall come shall refuse to accept and take such surety being offered to him this is punishable in the Starchamber for such Iustice of peace ought to take of him such sureties and to binde him by recognisance but yet that must be done in such sort in all points as the forme of the former precept doth require Supersedeas by a Iustice of peace and thereupon the same other Iustice of peace having so taken suretie for the peace may and ought upon request to make his supersedeas to all officers and to all other the Iustices of peace of the same County and thereby the said party shall be discharged from finding other suretie Cromp. 145. and from any other arrest for the same cause but by such supersedeas that other Iustice cannot dischardge the first warrant of the first Iustice untill the party be bound indeed nor can give any other day to the party to appeare at any other Sessions c. Dalton 151. 16. Also a Iustice of peace of the County by a Supersedeas cannot discharge a warrant awarded by his fellow Iustice by force of a supplicavit to him directed out of the Chancerie or Kings Bench to take the suretie of the peace of one resident in that County Ibid. 17. Also when a man doth feare that surety of the peace will be demanded against him in the Countrey or doth heare that such a warrant for the peace is granted alreadie out against him by a Iustice of peace it seemeth in either of these cases he may goe and give suretie of the peace before any other Iustice of peace of the same County where he dwelleth and thereupon may have a supersedeas from that Iustice of peace c. but in such case it is fit that such party be urged by such Iustice to put insufficient sureties and that he be bound towards the King and all his people and to appeare at the next Sessions Ibids 18. If any officer having a warrant from a Iust of peace to arrest a man to finde surety of the peace shall receive a supersedeas out of the Chancerie or Kings Bench or from any Iustice of the Kings Bench Dalton 152. or from any Iustice of peace of the County to discharge the same surety of the peace Lamb. 101. and yet neverthelesse will urge the party by force of his warrant to finde new suretie for the peace the party may refuse to give it and if he be arrested or imprisoned for such refusall he may have his action of false imprisonment against such officer for such supersedeas is a discharge of the former precept or warrant 19. The forme of a Supersedeas granted by a Iustice of peace you may see postea tit Warrants and Presidents 20. And this Supersedeas is sufficient though it never name the sureties nor containe the fummes wherein they are bound but yet it is the better forme to expresse them both F. N. B. 81. 2. and 238. Supersedeas from above 21. If the party shall mislike to be or stand bound to the peace by the Iustice of peace in the Countrey then may he either before or after that he is bound in the Countrie goe or send up to Dublin and there give suretie for the peace either in the Kings Bench or in the Chancerie and thereupon the party may have a Supersedeas our of that Court where he hath given such suretie to restraine the Iustice of Peace of the Countrey from taking any surety of the peace of him and then the Iustices of peace of the Countrey after the receipt of such Supersedeas must forbeare to make any warrant for the peace against the party and if any Iustice of peace have granted out any such warrant against the said party the said Iustice may make his Supersedeas to the officers thereby commanding them to surcease to put his former warrant in execution and so to discharge it and to discharge the party of any arrest or imprisonment thereupon 21. The forme of a Supersedeas for the peace out of the Kings Bench See lib. Intr. 454. 22. For the forme of a Supersedeas for the peace out of the Chancery See Fitz. Na. Br. 238. c. and Register 89. 23. Note that this Supersedeas out of the Chancery may be procured at any time in the vacation and out of the terme Fitz. Na. Br. 236. a. 24. If the Iustice of peace shall not furcease after a Supersedeas out of the Chancery or Kings Bench to him delivered an attachment will lye against him for such contempt aâ—â— besides he may be fyned and imprisoned for it 25. Yea such a Supersedeas comming out of those high Courts to the Iustices of peace they ought thereupon to surcease although such a Superdeas should be awarded against Law 26. If such Supersedeas shall be directed to the Iustices of peace and Sheriffe that Iustice to whose hands it shall be delivered may keepe it and may deliver the labell to the party 27. And in these and like cases Dalton 153. the Iustice of peace shall doe well to send to the next generall Sessions of the peace aswell the said Supersedeas if it come to his hands as also the recognisance which he hath formerly taken of the party if he had taken any for peradventure the recognisance was forfeited before the Supersedeas was purchased or if it were not forfeited yet the conusor is not endamaged thereby 28. Ibid. If the party shall procure such Supersedeas out of the Chancery or Kings Bench after that he is bound by recognisance before the Iustice of peace to keepe the peace c. and to appeare at the next Sessions he ought to appeare in person and there shew his Supersedeas Cromp. 139. and pray allowance of it and thereupon he shall be discharged but if he faile to appeare his recognisance wil be forfeited notwithstanding his Supersedeas 29. But if the party were bound before the Iustice of peace to keepe the peace against all men during his life and not to appeare Dalton 153. and shall after procure such a Supersedeas testifying that he hath found such surety in the Chancery c. against all men for ever and shall
the husband doth appeare but not his wife here Master Cromp. saith the recog is not forfeited for if there shall be cause to continue the peace against the husband and wife still the husband shall be bound and not the wife and therefore the wives personall apparance seemeth not greatly materiall 21. Id. 4. 40. 7. If a man be bound to the peace during his life or generally without any time or day limitted it seemeth that neither the King the Iustice of peace nor the party can discharge this recog during the life of the party so bound by release or otherwise Br. peace 17. 8. The Iustice of peace who upon his owne discretion hath compelled him to finde sureties of the peace untill a certaine day and hath taken recog for his appearing c. may upon the like discretion release the same before the day and such a release will discharge the recog taken by that Iustice if it were not forfeited before but yet the Iustice of peace ought to certifie the Recognisance together with his release and this certificate will discharge the apparance of the party 9. If a Iustice of peace shall grant the peace at the request of another scil at the suite of A. and the recognisance be taken to keepe the peace against B. only then before the next Sessions may B. only release it and none other and that release being certified with the recognisance at the next quarter Sessions will discharge the party so bound of his apparance so as he shall not be called upon his recog for that release being so certified is now become of record aswell as the recognisance 10. Bâ— pâ—â—â—â— 17. If the Recog were to keepe the peace versus cunctum populum precipuè versus A. yet may the same A. release it for although this may seeme popular and that all others should have interest therein aswell as A. yet it appeareth by the word precipâ—â—è that it was especially taken for his safety but the contrary was holden by all the Iustices 21. Ed. 4. 40. saith Master Lambert neverthelesse the usage now is aâ—d long hath beene that A. may release the peace but having perused the booke in 21. Ed. 4. fo 40. I find the word precipue is not there but it is toward A. cunctum populum So as that opinion may be Law and yet not contrary to the common usage for the word precipuè doth appropriate the recognisance to be chiefly for the safety of him that prayeth the peace 11. But in those former cases although this surety of the peace be released yet the recog shall not be cancelled by the Iustice of peace for peradventure the recog was forfeited before such release was made and therefore the Iustice of peace shall doe best to certifie such recog with the release together to the next quarter Sessions 12. The forme of the release of the Iustice of peace and the forme of the release of the party you may see postea in the title of Warrants Presidents 13. Note that the party that first demanded the peace may release the same either before the same Iustice of peace that tooke the recog or before any other Iustice of peace 14. Note also that to release such surety of the peace by deed under his hand and seale is nothing worth but it must be by acknowledgement before a Iustice of peace 15. Note also that the King cannot release or pardon the surety of the peace nor such recog taken in the behalfe of any of his subjects untill it be forfeited for the mischiefe that may come to the party thereby but being forfeited then the King and none other may release and pardon the forfeiture 16. But the death or resignation of the King dischargeth this surety of the peace taken by his subject 1. H. 7. 1. Br peace 15. Br. Cor. 21. for the recog is to keepe the peace of the King then being and when he is dead c. it is not his Peace 17. Also the death of the Recognisor scil the party principall that is bound dischargeth this surety of the peace and the recog if it were not forfeited before his death 18. Also the death of the party at whose suit the peace was taken dischargeth the recog if it were to keep the peace against him alone if it were not forfeited before his death 19. But yet in these three former cases such death should not discharge the recog if it were forfeited before and therefore it shall be best for the Iustice of peace to send to the next Sessions such recog notwithstanding such death else the King may be defrauded of a forfeiture if any were before 20. The death of the sureties shall not discharge the recog neither shall the party principall be compelled to finde new sureties after their death 21. Ed. 4. 4â— Br. peace 17. for if the peace be broken after their deaths their executors shall be charged therewith and so there is no mischiefe by their deaths if they were sufficient but if the sureties were insufficient then the principall shall be compelled to finde new sureties 21. Ed. 4. 40. 10. H. 7. 11. Br. Recog 21. 21. If the King and the Recognisor be at issue upon the breach of the peace and the King waives the issue yet is not this recog discharged but remaineth in force and may be sued againe upon a new breach of the peace afterwards What Act shall be or makes a forfeiture of the Recognisance taken for the peace CHAP. 60. 1. VVHatsoever Act is an expresse breach of the peace the same is a forfeiture of this recognisance 2. And first this breach of the peace may be committed by using any fearefull or threatning speeches to another 18. Ed. 4. 28 Br. peace 16. therefore all menacing or threatning to kill or beat another to his face is a forfeiture of this recog otherwise if the party so threatned be absent and yet if the party so bound shall threaten to kill or beat A. who is absent and after shall lye in wait for him to kill or beat him this is a forfeiture of his recognisance 3. So also to strike at or offer to strike at a man although he never hurt nor hit him Dalton 160. is a forfeiture of his Recognisance Ibid. 4. Much more all affrayes or violent or malitious batteries strikings beatings woundings or other misintreating of the person of another are forfeitures of this Recognisance 5. The difference of these three viz. menacing assaulting and beating Ibid. are these viz. menacing beginneth the breach of the peace assaulting encreaseth it and battery accomplisheth it 6. If he that is bound doe but command or procure another to breake the peace and that it be indeed done this is a forfeiture of this Recog Br. Peace 20. 7. All imprisonment or arresting of another without warrant is a forfeiture of this Recognisance 8. So to thrust another into the water whereby hee is
supplicavit then must the Iustice of peace make returne of the writ and certificate of his doings under his seale into the Court from whence the supplicavit did proceed which may be done in this manner 24. First let him write upon the backe of the supplicavit thus 25. Executio istius brevis The returne of the supp patet in quadam scedula huic brevi annexat 26. Then may the certificate The certificate or scedule be thus and be filed to the backe of the writ 27. Ego I. S. Miles unus custodum pacis domini Regis in comitatu Dublin certifico in Cancellarium dicti domini regis me virtute istius brevis mihi per A. B. in eodem brevi nominatum primo deliberat personaliter coram me tali die loco venire fecisse F. R. in dicto brevi nominatum ac eundem F. adsufficientem securitatem manucaptores pacis inveniendum secundum formam dicti brevis viz c. as the writ shall appoint compulisse In cujus rei testimonium huic praesenti certificationi meae sigillum meum apposui datum apud D. praedictum in comitatu praedicto 16. die Ianuarij anno Regni domini nostri Caroli dei gratia regis c. 28. The returne of the Certiorari The Iustice of peace may also therewith send the recog if he will or may keepe and stay the recog untill a Certiorari come to him for it 29. And of the Recognisance And if a Certiorari be directed out of the Chancery to the Iustice of peace for removing of this recog because it was not sent up together with the certificate as there was no necessity that it should then that writ may be also answered in this manner videlicet 30. Write upon the backe of the Certiorari thus Virtute istius brevis ego I. S. Miles unus custodum pacis domini regis in Comit. Dublin tenorem securitatis paâ—is Lib. intr 453â— unde infra fit mentio dicto domino Regi in Cancellar suam sub Sigillo meo distincte aperte mitto prout patet in scedula huic brevi consuta 31. And then write the recog verbatim in this manner hereunder following The sâ—hedule or certificate and thereto set your seale 32. Memorandum quod 16. die Ianuarij c. reciting the whole recog to the end In cujus rei testimonium ego praedictus I. S. sigillum meum apposui datum c. 33. And file this scedule or note of the recog to the backe of the Certiorari 34. The forme of the Certiorari you may see Fitz. Na. Br. 81. c. vide postea tit Warrants and Presidents F.N.B. 81. c. 35. Also the like forme of the certificate may serve where a Certiorari is brought to a Iustice of peace to remove a recog of the peace taken by him ex officio without any writ of supplicavit 36. And if the Iustice of peace shall not returne the supplicavit nor certificate of his doings therein F.N.B. 81. b. untill a Certiorari come to him for it it is no danger to him 37. Also if the supplicavit be against diverse and the demandant will release his prayer of the peace against one of them then that release ought to be certified for him and the writ must be served and executed for the rest or else non est inventus may be certified for him and the writ executed for the rest Br. peace 11. 38. By the booke in 30. Assisarum placito 14. It appeareth that a man may be compelled to finde sureties both for the good behaviour 2. H. 7. 2. b. and for the peace and yet it seemeth that the good behaviour includeth the peace and that he that is bound to the good behaviour is therein also bound to the peace see the usuall formes of both recog Suretie for the good behaviour CHAP. 62. 1. THis surety for the good behaviour or good abearing is granted by the Iustice of peace aswell by authority of the Commission of the peace P. Iustice 18. that is to say by the first Assign as also by force of the statute of 34. Ed. 3. ca. 1. 2. And this surety for the good behaviour is of great affinity with that of the peace and is provided and ordeined chiefely for the preservation of the peace as that other is as you may observe out of the usuall formes of the recog yea by some opinions it differeth in litle or nothing from that of the peace but that there is more difficulty in the performance thereof and the party so bound may sooner fall into the danger of it then of his recog for the peace P.R. 18. 2. H. 7. 2. for say they the recognisance for the peace is not broken without an affray committed battery assaulting imprisoning or extremity of menacing whereas the good abearing may be broken and the parties recog forfeited without any of these as namely 3. By the extraordinary number of the people attending upon the party bound 4. Or by his wearing of harnesse or other weapons more then usually he hath done or more then be meet for his degree 5. P.R. 22. Or by using words or threatnings tending or inciting to the breach of the peace 6. Or by doing any other thing which shall tend to the breach of the peace or to put the people in dread or feare although there be no actuall breach of the peace 7. Yet note these foure last matters as they are breaches of the good abearing so are they causes also to bind a man to the peace and a forfeiture of the recog for the peace 8. The booke 2. H. 7. fo 2. concludeth that the Iust were not all certainely advised how those words de se bene gerendo should be taken M. Bro. abridging thereof tit Suretie 12. saith that it was holden that he who is bound to the peace ought to demeane himselfe well in his part sc behaviour and company and not doing any thing that may be the cause of the breach of the peace or to put the people in feare or trouble yet the booke seemeth to meane this of the good behaviour 9. But though this extraordinary number of attendants and wearing of harnesse c. are breaches aswell of the peace as of the good behaviour yet it may seeme that this for the good behaviour doth include the peace and besides importeth some greater or other matters of misbehaviour and for which the surety of the peace is not to be granted although they also are against the peace and quiet and good governement of the land and you shall finde that this surety of the good behaviour is grantable in other diverse cases in which the surety of the peace is not grantable 10. This surety of the good behaviour is to be granted at the suit of diverse and those being men of credit and to provide for the safety of many whereas the surety of the peace is usually granted at
common lawes of this realme wherein no essoyne protection nor wage of Law to be admitted or allowed and that all the Maiors Bailiffes Soveraignes Portriffes and other head officers of every City Borough or market Towne within every the Shires above said shall cause twice in the yeare or oftner as they shall thinke necessary all measures within the said Cities Boroughes or market Townes to be brought afore them and to be duely viewed and examined and such as they shall upon examination finde defective immediately to be broken and burnt and the party or parties which in that behalfe hath offended and be found defective shall forfeite six shillings eight pence the forfeiture thereof to be unto the said Maior Bailiffe Soveraigne Portriffe or other having Iurisdiction or correction in that behalfe and at the second time the said offendors to forfeite thirteene shillings foure pence and at the third time likewise to forfeite twenty shillings the same forfeitures to be to the head officers as afore is said and for further punishment to be set upon the pillory to the example of others and that the Iustices of peace in every Shire of this Realme of Ireland have full power and authority to enquire heare and determine the said defaults and that the said Iustices of peace above said have authority to make like processe against all persons found as is above said defective and for such fynes and amerciaments as upon them shall be assessed as if they were endicted afore them for breaking of the Queenes peace provided alwayes that the examination of the defaults abovesaid and punishments of the offendours of every offence committed hereafter within any City or Towne corporate of this Realme that have by grant or Charter the office of Clerke of the Market or of Iustices of peace and their authorities or that have by grant or Charter fines amerciaments or forfeitures growing within their City or towne shall be had done and ministred by the head officers Clerke of the market or Iustices of peace within the same Cities or Townes incorporate for the time being and by none other the premisses notwithstanding and the same Maiors Bailiffes Soveraignes Portriffes or other head officers and their successors shall take perceive and retaine all and singular the fynes amerciaments forfeitures and penalties to grow by any offence to bee committed against any branch or article of this Act within their severall Iurisdictions and authorities in like manner as they should mought or ought to have any forfeitures fynes amerciaments and penalties within the severall Iurisdictions and authorities by reason of any grant or Charter made to them before the making of this Act any thing therein contained or any Law prescription custome or usage to the contrary hereof in any wise notwithstanding And forasmuch as great inconveniences and intollerable damage have and doth ensue by the occasion of diversity of measures within the Shires above mentioned thereby amongst other hatefull evils men are moved to buy in one market and sell the same graine in another to the great subvertion of good orders in markets it was enacted and established that the several Standerds to be made by her Majestie for the severall Shires Cities and Townes before named shall keepe and hold the quantities hereafter following that is to say the bushell for the Wheat Rye Maslen Beanes and Peese shall containe 16. Ale gallons and the bushell for the Mault Oates and Barley shall containe 20. Ale gallons and that the same Standerds and measures shall be kept and remaine in the Townes and places hereafter appointed in this Act as her Majesties Standerds for ever and that every bushell of Wheat Corne shall be received stricked without heape and the bushell of Mault Corne shall be layed and pressed downe just with the brim of the bushell after the accustomed manner of measuring Mault and not in other manner upon forfeiture of the Corne received contrary to the tenor hereof or of the just value and price thereof The Names of the Townes limitted for the Custodie of Measures according to the Queenes Standard appointed by the said Act for the Shires in the same Act mentioned 1. County of the Citty of Dublin and the County of Dublin 1. The Citty of Dublin 2. The County of the Towne of Drogheda 2. The Towne of Drogheda 3. The County of Catherlagh 3. The Towne of Catherlagh 4. The County of Lowth 4. The Towne of Dundalke 5. The Kings County 5. The Towne of Phillipstowne 6. The County of Meath 6. The Towne of Tryme 7. The County of Kildare 7. The Towne of Kildare 8. The County of Wexford 8. The Towne of Wexford 9. The County of Westmeath 9. The Towne of Molingare 10. The Queenes County 10. The Towne of Maryborough These two last statutes I have rehearsed at large because upon them two the authority of the Iustice of peace out of the Sessions chiefely dependeth Warrants and Presidents CHAP. 72. 1. VVArrants and presidents which concerne the exercise of the office of a Iustice of peace out of the generall Sessions are of severall sorts viz. they concerne either Treasons Felonies Misprisions Praemunires forcible Entries forceible detainers Riots Routs and unlawfull assemblies security of the peace and good behaviour or other misdemeanors or offences of severall sorts 2. As concerning Treasons and felonies upon information made of any Treason or felon commited any one Iustice of peace may direct his warrant to the Sheriffe or to the high Constables or petty Constables or to all or any of them to make search for the traitours or felons and also for the stolne goods A warrant to apprehend a Traitour may be thus 2. Comitat. Dublin A.B. Esquire one of his Majesties Iustices of peace within the County of D. To the high Sheriffe of the said County to all high Constables petty Constables and other his Majesties officers greeting c. Whereas E. F. and G. H. are vehemently suspected to have committed Treason whereof I have received Information These are therefore in his Majesties name streightly to charge and command you and every of you upon sight hereof without any delay within your severall Bailiwickes Hundreds Baronies and Constablewicks to make diligent search for the bodies of the said E. F. and G.H. and them or either of them so found to attach and arrest and immediately upon such arrest to bring before me at my house at Dale in the said County whereof you may not saile at your perill sealed with my seale and dated the first day of Ianuary in the xiij yeare of the Raigne of our soveraigne Lord King Charles of England Scotland France and Ireland defendor of the faith c. 3. The like warrant may be made for the apprehension of felons mutatis mutandis A warrant to search for stolne goods may be thus Comitat. Dublin 4. A.B. Esquire one of his Majesties Iustices of peace within the County of Dublin To the Sheriffe of the said County and to
all high Constables petty Constables and all other his Majesties officers greeting c. whereas E. F. hath informed me that diverse goods and cattel viz. xx l. in money c. and so name all the goods have beene lately stolne from him these are therefore in his Majesties name straightly to charge and command you and every of you upon sight hereof presently without delay in all suspected houses and places within your severall Bailiwickes Hundreds Baronies and Constablewicks to make diligent search for the said goods and where you shall finde the same or any part thereof to arrest the parties in whose houses or possessions the said goods or any part thereof shall be so found and so them arrested to bring before me to my house at Dale with all convenient speed whereof you may not faile at your perill sealed with my seale and dated the _____ day of _____ c. 5. When any of the said felons or traitours shall be so arrested and brought before the Iustice of peace the Iustice must take the examination of the traitours or felons in writing but not upon oath and must examine them upon all circumstances whereof he shall receive information from the accusers and upon such other circumstances as he in his owne discretion shall thinke fit for the discovery of the Treason or felony The forme of the Examinations may be thus 6. The Examination of A.B. c. taken before me R.B. one of his Majesties Iustices of peace in the County of M. the first day of February in the xiij yeare of the Raigne of our soveraigne Lord Charles by the grace of God King of England Scotland France and Ireland defendor of the faith c. The said examinat being duely examined saith c. and so set downe every particular answer that the prisoner shall make to the questions that shall be demanded of him 7. This being done the Iustice of peace must take the examinations of the accusers and such other as can give any evidence materiall against the prisoner and their examinations must be taken in writing severally and that upon oath The forme whereof may be thus 8. The examination of A.B. c. taken before me C.B. Esquire one of his Majesties Iustices of peace in the County of Dublin the first day of March in the xiij yeare of the Raigne of our soveraigne Lord Charles by the grace of God King of England Scotland France and Ireland defendor of the faith c. This examinat being duely sworne upon the holy Evangelist and examined upon his oath saith c. and so set downe at large all the materiall circumstances that he shall declare to prove the treason or felony 9. This being done the Iustice of peace must make a Mittimus to convay the prisoner to the County Gaole The Mittimus may be in this forme 10. Comitat. Cavan A.B. Esquire one of the Iustices of peace in the County of C. to the keeper of his Majesties Gaole in the said County greeting I send you therewithall the body of E.F. late of G. labourer brought before me this present day and charged with the felonious stealing of one blacke horse of the goods of I.H. and therefore these are in his Majesties name to command you that immediately upon sight hereof you receive the said E.F. into your custody and him safely keepe in his Majesties Gaole of the said County untill he shall be thence delivered by due order of his Majesties Lawes whereof you may not faile as you will answere for your contempt at your perill dated at Dale the first day of Ianuary c. 11. I doe not like of the Mittimus commonly used in Ireland that is to send the prisoner from Constable to Constable for I finde by experience that thereby many notable offendors doe escape and then many times goe into Rebellion to the great prejudice of the common wealth but I like better that he should be convayed to the Gaole by the Constable of that Constablewicke where he was apprehended and that by a sufficient guard at the charge of the Constablewicke for which the Iustices of peace shall doe well to conceive a generall order at their generall Sessions of the peace 12. This being done the Iustice of peace must take a severall Recognisance of every one of the accusers and of every one that can give evidence against the prisoner the forme of which Recognisance may be thus Com. Dublin 13. Memorandum quod tertio die Aprilis anno Regni Domini nostri Caroli Dei gratia Angliae Scotiae Franciae Hiberniae regis fidei defensoris A.B. de C. in comitatu praedicto Yeoman personaliter coram me I. H. uno Iusticiariorum dicti Domini Regis in per totum comitatum praedictum ad pacem dicti Domini Regis conservandum c. assignat apud Dale in Com. praedict recognovit se debere dicto Domino Regi decem libras bonae legalis monetae de bonis Catallis terris tenementis suis fieri levari ad opus dicti Domini regis heredum successorum suorum si defecerit in conditione subsequenti The condition of the above Recognisance is such that whereas one A.B. late of C. labourer was this present day brought before me and was charged with the felonious stealing of one blacke horse of the goods of the above named B.E. and thereupon was sent by me the above named Iustice of peace to the Kings Majesties gaole of the said County of Dublin If therefore he the said B. E. shall and will at the next generall gaole delivery to be holden in the said County preferre or cause to be framed and preferred a bill of indictment of the said felony against the said A.B. and shall and will then also give evidence there concerning the same aswell to the Iurors that shall then make enquiry of the said felony as also to them that shall passe upon the tryall of the said A. B. That then the said Recognisance shall be voyd or else c. 14. The like Recognisance must be taken severally of all such as can give any materiall evidence against the prisoner with the like condition 15. And in cases of Treason the like Recognisance must be taken as in felony mutatis mutandis 16. Also the Iustice of peace ought to returne the said examinations and Recognisances at the next gaole delivery or else he is to be fyned 17. Now concerning Misprisions and Praemunires the Iust of peace may make out a warrant to apprehend offendours in this forme following viz. A.B. Esquire one of his Majesties Iustices of peace within the County of Lowth Lowth To the Sheriffe of the said County and to all and singular the high Constables petty Constables and all other his Majesties officers in the said County greeting These are in his Majesties name streightly to charge and command you and every of you within your severall Bailiwickes Hundreds Baronies and Constablewickes to
Kings writ issuing sometimes out of the Chancery and sometimes out of the Kings Bench and may be directed to any Court of Record or officer of Record as to a Iustice of peace Sheriffe Coroner or Escheator to be certified of any Record which is before any of them and first an alias then a pluries and lastly an attachment lyeth against them that should send it if the Record be not certified accordingly or it seemeth a sub poena is used at this day If it be returneable into the Chancery then are the words in Cancellaria nostra and if into the Kings Bench then the words are coram nobis ubicunque c. mittatis The Certiorari may be sometimes to remove Fitz. Na. Br. fo 245. and send up the Record it selfe and sometimes but onely the Tenor of the Record as the words therein be and it must be obeyed accordingly If there be variance betweene the Certiorari Plo. 393. and the Record which is to be removed the Iustices need not to certifie such Record A Iustice of peace may deliver Crompton fo 132. a. and 133. b. or send into the Kings Bench an endictment found before him or a Recognisance of the peace taken by him or a force recorded by him without any Certiorari but if a Iustice of peace having a Record with him be discharged of his office now he cannot certifie it without a Certiorari although he be made a Iustice of the peace againe See 8. H. 4. fo 5. Br. Record 64. If a Certiorari be to send up the indictment of A. in which endictment some others be endicted together with the same A. yet need not the Iustices of peace to make certificate concerning any but A. for although they be named joyntly yet be they indicted severally and the King may pardon A. without forgiving the other 6. E. 4. 5. 6. Ed. 4. fo 5. If a Certiorari shall come to the Iustices to remove an endictment and the party sueth not to have it removed but suffereth it to lye still 9. H. 7. 16. Br. Iudgement 17. yet it seemeth the Iust of peace ought ex officio to send it away because the writ containeth in it selfe a commandement to them so to doe and so is a supersedeas of it selfe to the Iust of peace to stay their other proceedings And albeit the Certiorari be a supersedeas of it selfe Fitz. Na. Br. 237. yet may the party upon the Certiorari purchased have a supersedeas also directed to the Sheriffe commanding him that he arrest him not Fitzh fo 237. in which place also he doubteth whether the Iustices of peace themselves ought not of duty to award their owne supersedeas to the same effect after that the writ of Certiorari is brought to their hands If a Certiorari come to the Iustice of peace to remove an endictment and in truth the indictment was not taken till after the date of the Certiorari yet if the endictment be removed thereby Dalton 371. it is good enough for that they both be the Kings Courts 1. R. 3. 4. and in such case it is now usuall to remove it All the higher Courts at Dublin may write to the Iustices of peace to certifie their Records that doe make for the tryall of causes in them depending as you may reade 19. H. 6. 19. where they of the common place did send to the Iustices of peace for an endictment because in a writ of conspiracy brought before them it was materiall to have it In some cases the Iustice of peace may certifie a Record by him made Dalton fo 372. or found before him out of Sessions without any writ of Certiorari therefore to him directed vide antea tit forceible Entrie In other cases he must of duty certifie the proceedings but may spare to certifie the Record untill a Certiorari come to him for it see hereof antea title Suretie for the peace For the manner of the writ of Certiorari to remove Records from one Court to another or from the Iust of peace or other officers of Record to any the higher Courts of Dublin c. there are diverse formes and sorts thereof as you may see in Fitz. Na. Br. fo 242. c. I will onely set you downe one forme for all The forme of a Certiorari out of the Chancery to certifie a Recog taken by a Iustice of peace in the Country for the keeping of the peace Iacobus Dei gratia Angliae Scotiae Franciae et Hiberniae Rex fidei defensor custodibus pacis nostrae in Com. Dublin et eorum cuilibet salutem volentes certis de causis Certiorari super tenorem cujusdam securitatis pacis vel boni gestus qua A.H. ar invenit coram vobis vel aliquo vestrum de eo quod ipse damnum vel malum aliquod R.S. vel alicui alij de populo nostro de corpore suo nec faceret nec fieri procuraret quovismodi vobis mandamus quod tenorem securitatis pacis sive boni gestus predict nobis in Cancellar nostr in octabis purificat beatae Mariae virginis prox futur ubicunque tunc fuerit sub sigill vestr vel unus vestrum distincte et apertè sine dilatione mittatis et hoc sub poena centum librarum nullatenus omittatis nec aliqu vestr omittat Teste meipso apud Dublin _____ die Novembris Anno Regni nostri c. The returne hereof See antea titulo Surety for the peace Concerning the surety of the peace When a writ of supplicavit which in old time was called breve de minis as appeareth by the Register directed out of the Chancery is delivered to a Iustice of peace he is to direct his precept or warrant to compell the party upon that writ to finde surety for the peace as appeareth by Fineux chiefe Iustice in 21. H. 7. fol. 20. the forme of which precept or warrant may be thus in English George Multon one of the Iustices of peace of our soveraigne Lord the Kings Majestie within the County of Dublin Com. Dublin to the Sheriffe of the said County and to all the high Constables of the severall baronies within the said County and to all petty Constables and all and singular other the Kings Majesties Bailiffes and other ministers aswell within liberties as without in the said County and to every of them greeting Know yee that I have received the commandement of our said soveraigne Lord the King by his Majesties writ of supplicavit in these words reciting the whole writ of supplicavit which is not alwayes of one forme because it is sometimes directed to all the Iustices of the peace sometime to them and the Sheriffe and sometimes to one Iustice alone or reciting only the effect of the supplicavit thus Know yee that I have received the commandement of our said soveraigne Lord the King by his Majesties writ of supplicavit to compell A. B. of D. in the said
County Yeoman to finde sufficient sureties for his Majesties peace by him to be kept toward C.D. of the same Towne of Dale in the said County Taylor and therefore on the behalfe of our said soveraigne Lord I command and charge you joyntly and severally that immediately upon the receipt hereof you cause the said A.B. to come before me at my house in Dale in the County aforesaid to finde sufficient surety and mainprise for the peace to be kept towards our said soveraigne Lord and all his liege people and especially towards the said C.D. and if the said A.B. shall refuse thus to doe that then you him safely convey or cause to be safely conveyed to his Majesties gaole in the said County there to remaine untill he shall willingly doe the same so that he may be before the Iustices of the peace of our soveraigne Lord within the said County at the next generall Sessions of the peace to be holden for the said County there to answere to our said soveraigne Lord for his contempt in this behalfe and see that you certifie your doings in the premisses to the said Iustices at the said Sessions bringing then thither this precept with you Given at dale under my seale the fourth day of c The forme of the Recog of the peace to be taken upon the said writ of Supplicavit Memorandum quod quarto die Iulij anno Regni Domini nostri Caroli Dei gratia Angliae Scotiae Franciae et Hiberniae Regis fidei defensoris c. Com. Dublin A.B. de E. in Com. Dublin predict Yeoman in propriae persona sua virtute brevis dicti Domini Regis de Supplicavit apud S. in Com. pred venit coram me I.L. Milite uno Iusticiar dicti Domini Regis ad pacem in dicto Com. Dublin conservandam assignatorum et assumpsit pro seipso sub poena viginti librarum et H.I. de L. in Com. predicto Yeoman et I.F. de M. in eodem Com. husbandman tunc et ibidem in proprijs personis suis similitèr vener coram me et manuceperunt pro predicto A.B. viz. quilibet eorum separatim sub poena decem librarum quod idem A.B. custodiet pacem dicti Domini Regis erga ipsum Dom. Regem et cunctum populum suum et precipuè versus C.D. de E. Yeoman et quod damnum vel malum aliquod corporale aut gravamen prefato C.D. aut alicui de populo dicti Domini Regis quod in laesionem aut perturbationem pacis ipsius Domini Regis cedere valeat quovismodo non faciet nec fieri procurabit or otherwise as the writ of supplicavit shall require quam quidem summam viginti librarum pred A.B. et quilibet manucaptorum predictorum pred seperales summas decem librarum separatìm recognover se debere dicto Dom. Regi de terris et tenementis bonis catallis quorumlibet et cujuslibet eorum ad opus dicti Domini Regis haeredum et successorum suorum fieri et levari ad quorumcunque manus devenerint si contigerit ipsum A.B. premissa vel eorum aliquod in aliquo infringere et inde legitimo modo convinci In cujus rei testimonium ego pred I.L. sigill meum apposui datum c. And this may be done also by a single Recognisance in latine with a Condition added or endorsed in english in manner following Memorandum quod _____ die c. Anno Regni c. virtute brevis Domini Regis huic Recognitioni annexat apud T. in Com. Dublin Com. Dublin predict venerunt coram me Henrico Martin Ar. uno Iusticiar dicti Dom. Regis ad pacem in Com. predicto conservandam assignat T.H. de K. in Com. predict Yeoman et I.S. de Lan eodem Com. husbandman et manuceperunt et uterque eorum separatim manucepit sub poena decem librarum legalis monetae Angliae pro W.S. de H. in Com. pred Taylor et pred W.S. assumpsit pro seipso sub poena vigint librarum consimilis monetae Angliae quas quidem seperales summas recognoverunt et quilibet eorum ut predicitur recognovit se debere dicto Domino Regi de terris et tenementis bonis et Catallis suis fieri et levari ad opus dicti Domini Regis haeredum et successorum suorum si pred W.S. deficerit in performatione conditionis infrascripti The Condition of this Recognisance is such that if the above bounden I.S. shall keepe the peace of our soveraigne Lord the King towards the Kings Majestie and to all his liege people and especially towards A.B. of C. aforesaid Yeoman that then the said Recognisance to be voyd or else c. This Recognisance of the peace being thus taken by vertue of a supplicavit the Iustice of peace being in this case but a Minister and not a Iudge must make returne of the writ and a certificate of his doing therein into the Court from whence the supplicavit did issue in this forme following viz. upon the backe of the writ of supplicavit he must write thus Executio istius brevis patet in quadam scedula eidem brevi annexa and then subscribe his name to it The schedule may be thus which must be fixt to the writ of supplicavit Ego T.F. miles unus custodu pacis Dom. Regis in Com. Dublin certifico in Cancellariam dicti Domini Regis me virtute istius brevis mihi per A.B. in eodem brevi nominat primo deliberat personaliter coram me _____ die c. apud Dale in Com. pred venire fecisse T.R. in dicto brevi nominat ac eundem T. ad sufficientem securitatem et manucaptores pacis inveniendam secundùm formam dicti brevis viz. ad pacem Domini Regis erga ipsum Dom. Regem et cunctum populum suum et precipuè c. as the writ shall appoint compulisse In cujus rei testimonium huic presenti certificationi sigillum meum apposui datum apud D. in Com. pred _____ die c. Anno Regni dicti Dom. Regis c. The like certificate may be made into the Kings Bench if the writ of supplicavit issue out of that Court mutatis mutandis And if a Certiorari be directed out of the Chancery to the Iustice of peace for removing this Recog because it was not sent up together with the certificate as there is no necessity it should be then that writ must be returned in this manner viz Upon the backe of the writ the Iustice of peace must write thus Virtute istius brevis Ego P.H. unus custodum pacis Domini Regis in Com. Dublin tenorem securitatis pacis unde infra fit mentio dicto Domino Regi in Cancellariam suam sub sigillo meo distinctè et apertè mitto prout patet in schedula huic brevi consuta And the Iustice must hereunto subscribe his name The schedule must be thus Memorandum quod vicessimo die Iulij c.
reciting the whole Recog de verbo in verbum and then conclude in cujus rei testimonium ego predictus P.H. sigillum meum apposui dat c. The like may be made into the Kings Bench mutatis mutandis if the writ issue out of that Court. If the supplicavit be against diverse and the party that prosecuteth the same will release his prayer of the peace against one of them then the release ought to be certified for him and the writ must be served for the rest or else non est inventus may be certified for him that is released and the writ served for the rest The forme of the Release may be thus Memorandum quod primo die Augusti Com. Dublin c. C.D. de E. in brevi de supplicavit huic Relaxationi annex nominat venit coram me P. H. un Iusticiar ad pacem in Com. predict conservand c. et gratis remisit et relaxavit quantum in se est securitat per ipsum coram me versus supra nominatum C.D. petitam In cujus rei testimonium ego prefatus P.H. sigillum meum apposui datum c. The forme of a supersedeas by a Iustice of peace upon a writ of supplicavit against an Infant A.B. armiger unus Iusticiar Dom. Regis Caroli Dei gratia c. ad pacem in Com. Dublin Com. Dublin predict conservandam assignatorum vicecom ejusdem Com. ac omnibus et singulis Ballivis Constabularijs ceterisque dicti Domini Regis Ministris tam infra libertat quam extra in Com. predict salut Sciatis quod breve dicti Domini Regis recepi in haec verba Iacobus c. reciting here all the writ verbatim et quia I.B. de c. I.S. de c. et prefat C.A. coram me prefato A.B. personaliter comparuer et predictus I.B. et I.S. manuceperunt pro predicto C.A. qui infra aetatem 21. annorum existit viz. quilibet manucaptor predictor in 20. l. quas recognover se deber dicto Domino Regi ac concess de terris et tenementis bonis et catallis suis ad opus dicti Domini regis levand viz. quod predict C.A. damnum vel malum aliquod alicui de populo dicti Domini Regis de corpor suis vel de incendio domor suarum non faciet nec fieri procurabit quevismodo ideo ex parte dicti Domini regis vobis et cuilibet vestrum mando quod de coarctan aut attachand dictum C.A. ad inveniendam aliquam securitatem pacis per ipsum observand erga dict Dom. Regem et cunctum populum suum seu alicui de eodem populo suo coram vobis seu aliquo vestrum inveniend supersed seu supersed fac omninò si ipsum C.A. occasione predict non alia ceperitis seu capi mandaveritis in prisona ipsius Dom. regis sub custodia vestra detineritis tunc ipsum à prisona in qua detinetur sine dilatione deliber fac Teste me praefat A.B. 20. die Novembris Anno regni dicti Dom. regis c. A Iustice of Peace may also by vertue of his office and as he is a Iudge command this surety to be found and this hee may doe either of his owne motion and discretion or else at the request and prayer of another When it is at the Prayer of another he may make out his precept or warrant in this forme following Charles by the grace of God King of England Scotland France and Ireland Defendor of the Faith c. To our Sheriffe of the County of Dublin Com. Dublin the Constable of the Barony of Castleknock and to all and singular our Bailiffes and other our ministers in the said County aswell within liberties as without greeting Forasmuch as A. B. of Kilmainham yeoman hath personally come before George Bring of the said Towne Esquire one of our Iustices of the peace within the said County and hath taken a corporall oath that hee is afraid that one C.D. of Killmainham in the said County yeoman will beat maime wound or kill him or burne his houses and hath therewithall prayed surety of the peace against the said C. D. Therfore we command and charge you joyntly and severally that immediately upon the receipt hereof you cause the said C.D. to come before the said G.B. or some other of our Iustices of the said County to finde sufficient sureties and mainprise aswell for his appearance at the next quarter Sessions of our peace to be holden in the said County as also for our peace to be kept towards us and all our liege people and chiefly towards the said A.B. that is to say that he the said C.D. shall not doe nor by any meanes procure or cause to be done any of the said evils to any of our said people and especially to the said A. B. And if the said C.D. shall refuse thus doe that then immediately without expecting any further warrant you him safely convey or cause to be conveyed to our common gaole in the said County there to remaine untill he shall willingly doe the same so that he may bee before our said Iustices at the said next generall Sessions of the peace to be holden in the County aforesaid then and there to answere unto us for his contempt in this behalfe And see that you certifie your doing in the premisses to our said Iustices at the said Sessions bringing then thither this precept with you witnesse the said G.B. at Killmainham aforesaid the fourth day of August c. The like warrant may be in the name of the Iustice of peace himselfe in this forme following viz. A. B. Knight Com. Dublin one of the Iustices of the peace of our Soveraigne Lord the King within the County of Dublin To the Sheriffe of the said County To the Constable of the Barony of C. and all other Constables Bailiffes and other his Majesties officers in the said County aswell within liberties as without greeting Forasmuch as B.A. the wife of W.A. of D. in the said County Labourer hath required suretie of the peace against T.B. of the said Towne of D. Butcher and withall hath taken her corporall oath before me that shee requireth the same not for any private malice hatred or evill will but simply that she is afraid of her life or the hurting or mayming of her body or the burning of her houses These are therefore to will and require you and in his Majesties name to charge and command you that immediately upon the sight hereof you or one of you require the said T.B. to come before me or some other of the Kings Majesties Iustices within the said County to finde sufficient sureties aswell for the appearance at the next generall quarter Sessions of the peace to be holden for the said County as also that the said T.B. shall in the meanetime keepe the Kings Majesties peace aswell towards his said Majestie as towards all his liege people and especially
towards the said B.A. and if he shall refuse so to doe that then immediately you doe arrest and convey the said T.B. or cause him to be conveyed to his Majesties gaole of the said County there to remaine untill he shall willingly doe the same and see that you certifie your doings in the premisses to the Iustices at the said Sessions and have you there this warrant dated at c. The forme of the Recognisance of the peace may be thus Memorand quod die Anno regni Domini nostri Caroli Dei gratiâ c. R. P. de E. in Com. Dublin praedict Yeoman Com. Dublin in propria persona sua apud F. in Com. praedict venit coram me Rogero Thorneton Armigero uno Iusticiar dicti Domini Regis ad pacem in dicto Comitat. conservandam assignat assumpsit pro scipso sub poena viginti librarum Et H.I. de L. in Com. praedicto Yeoman M.N. de c. Husbandmen tunc ibidem in propriis personis suis similiter venerunt manuceperunt pro predicto R.P. viz. quilibet corum separatìm sub poena decem librarum quod idem R.P. personaliter comperebit coram Iusticiariis dicti Domini Regis ad pacem ad proximam generalem Sessionem pacis in Com. predict tenend ad faciend recipiendum quod ei per Curiam tunc ibidem injungetur quod ipse interim pacem dicti Domini regis custodiet erga ipsum Dominum regem cunctum populum suum praecipuè versus M.N. de D. praedict Yeoman quod damnum vel malum aliquod corporale aut gravamen praesato M.N. aut alicui de populo dicti Domini Regis quod in laesionem aut perturbationem pacis ipsius Domini regis seu praefati M. cedere valeat quovismodi non faciet nec fieri procurabit quam quidem summam viginti librarum praedictus R.P. quilibet manucaptorum praedictorum predictas seperales summas decem librarum recognoverunt se debere dicto Domino Regi de terris tenementis bonis Catallis suis quorumlibet cujuslibet eorum ad opus dicti Domini Regis haeredum successorum suorum fieri levari ad quorumcunque manus devenerint si contigerit ipsum R.P. praemissa vel eorum aliquod in aliquo infringere in de legitimo modo convinci Datum apud c. Or the like may be upon a single Recognisance with a Condition in forme following Memorand quod die Anno Regni Domini nostri Caroli Dei gratia c. venerunt coram me M.D. uno Iusticiar c. assignat T.H. de W. in praedicto Com. Dublin Com. Dublin Yeoman I.S. de ijsdem villa Comitatu Husbandman manuceperunt uterque eorum separatìm manucepit sub poena quinque librarum legalis monetae Angliae pro W.S. de W. praedict Taylor Et praedictus W.S. assumpsit pro seipso sub poena decem librarum consimilis monetae Angliae quas quidem seperales summas recognoverunt quilibet eorum ut predicitur recognovit se debere dicto Domino Regi de terris tenementis bonis Catallis suis fieri levari si predictus W.S. deficerit in performatione conditionis subsequentis The Condition of this Recognisance is such that if the above bounden W.S. shall personally appeare before the Iustices of our said Soveraigne Lord the King at the next generall Sessions of the peace to be holden in the said County of Dublin to doe and receive that which by the Court shall be then and there enjoyned him and in the meanetime doe keepe the peace of our said Soveraigne Lord the King towards the Kings Majestie and all his liege people and especially towards A. B. of C. in the County aforesaid Yeoman That then the said Recognisance to be voide or else c. The forme of a Supersedeas for the peace may be thus Com. Dublin A. B. Esquire one of the Iustices of peace of our Soveraigne Lord the Kings Majestie within the County of Dublin To the Sheriffe Bailiffes Constables and other the faithfull ministers and subjects of our said Soveraigne Lord within the said County and to every of them sendeth greeting Forasmuch as A.B. of c. Yeoman hath personally come before me at c. and hath found sufficient surety that is to say C.D. and E.F. c. Yeomen The supersedeas is good though it name neither the sureties nor the summes either of which hath undertaken for the said A.B. under the paine of Twenty pounds and the said A.B. hath undertaken for himselfe under the paine of forty pounds that he the said A.B. shall well and truely keepe the peace towards our said Soveraigne Lord and all his liege people and especially towards G.H. of c. Yeoman And also that he shall personally appeare before the Iustices of the peace of our said Soveraigne Lord at the next generall Sessions of the peace to be holden for the said County of Dublin Therefore on the behalfe of our said Soveraigne Lord I command you and every of you that you utterly forbeare and surcease to arrest take imprison or otherwise by any meanes for the said occasion to molest the said A.B. and if you have for the said occasion and for none other taken or imprisoned him that then you do cause him to be delivered and set at liberty without further delay Given at D. under my seale this last of Iuly c. The forme of the precept or warrant for the good behaviour may be thus Concerning the good behaviour I. S. Knight one of the Iustices of peace of our Soveraigne Lord the Kings Majestie within the County of Dublin To the Sheriffe of the said County and to all high Constables petty Constables and to all and singular Bailiffes and other his Majesties Officers and Ministers aswell within liberties as without in the 〈◊〉 County and to every of them greeting Forasmuch as A.B. 〈◊〉 in the said County labourer is not of good name or fame nor of honest conversation but an evill doer a Riotter Barretor and perturber of the peace of our said soveraigne Lord I command you and every of you that immediately upon sight hereof you cause the said A.B. to come before me or some other of my fellow Iustices to finde sufficient surety and mainprise aswell for his good abearing towards our said soveraigne Lord and all his liege people untill the next generall Sessions of the peace to be holden in the said County as also for his apparance then and there and if he shall refuse so to doe that then immediately without expecting any further warrant you him safely convey or cause to be safely conveyed to his Majesties gaole in the said County thereto remaine untill he shall willingly doe the same so that he may be before his Majesties Iustices at the said next generall Sessions of the peace to be holden in the said County
then and there to answere for his contempt in this behalfe and see that you certifie your doings in the premisses to the said Iustices at the said Sessions bringing then thither this precept with you dated at c. Or it may be thus I. S. Esquire one of his Majesties Iustices c. as in the next precedent president Forasmuch as I have beene credibly informed that A.B. of C. in the said County labourer is a man of evill behaviour one that dayly moveth discord strife and dissention amongst his neighbours and a common perturber of his Majesties peace These are therefore in the Kings Majesties name to command you c. as in the former president This warrant for the good behaviour although it may be granted by one Iustice of peace alone yet it is usually granted by two and may be also in Latine in this forme following Iohannes Payton Miles et Willielmus Woodhouse Miles Iusticiarij Dom. Regis nunc ad pacem in Com. Dublin conservandam assignat vicecom Com. predict nec non omnibus et singulis Ballivis Constabularijs ceterisque dicti Domini regis ministris tam infra libertat quam extra in eodem Comitat. salutem Quia datum est nobis intelligi per relationem et testimonium multorum fide dignorum Com. predict quod A.B. de C. in Com. pred generosus et C.A. de eadem Yeoman non sunt bonorum nominis et famae nec conversationis honestae sed malae famae et mali gestus ac malae dispositionis Barratores et pacis dicti Domini Regis perturbatores Ita quod veresimilis sit murderum homicidium lites discordias et alia gravamina et damna interligeos dicti Domini Regis de corporibus suis pretextu premissorum in dies oriri Ideo ex parte dicti Domini Regis vobis et cuilibet vestrum precipimus quod non omittat propter aliquam libertatem in Com. pred quin attachatis seu unus vestrum attachiat prefat A.B. et R.A. Ita quod habeat eos coram nobis seu alijs sociorum nostrorum Iusticiariorum dicti Domini Regis ad pacem in Com. predict conservandam ad proximam generalem sessionem pacis in eodem Com. tenend ad inveniend tunc coram nobis vel dictis Iusticiarijs sufficientem securitatem de se bene gerend erga dict Dom. Regem et cunctum populum suum juxta formam statut inde edit et provis sub certa poena eis per nos vel per prefat Iusticiar tunc imponend Et hoc nullatenus omittatis periculo incumbente Et habeat coram nobis vel dictis Iusticiarijs apud sessiones predict hoc preceptum Testibus nobis pred I.P.W.W. ultimo die Iulij anno regni dicti domini nostri Caroli Dei gratia Angliae c. Upon good sureties taken for the good behaviour a Supersedeas may be granted for the good behaviour aswell as for the peace and the same may be in the same forme as the supersedeas for the peace is mutatis mutandis Libro intra fo 61. Cromp. 232. Many other Supersedeasses may be granted by the Iustice of peace out of Sessions for otherwise it were mischievous for the party aswell by reason of his imprisonment as also for that otherwise he may be outlawed before the Sessions if the Iustice of peace Dalton 333. might not take sureties of him for his appearance And Master Crompton is of opinion that these may be granted by any one Iustice of peace with whom agreeth the booke of Entries Cromp. 234. but Master Lamberd thinketh it not in the power of any one Iustice of peace to grant such supersedeas at this day li. intr 601 but that it must be done by two Iustices at the least and the one being of the Quorum neverthelesse for that I finde the old presidents to run in the name of one Iustice of peace alone I have drawne these accordingly notwithstanding I would advise the joyning of two Iustices herein the one to be of the Quorum if they may conveniently begotten A Supersedeas de capias indictatum de transgressione Iohannes Richardson sacrae Theologiae doctor unus Iusticiar dom Com. Dublin regis nunc ad pacem in Com. predicto conservandam necnon ad diversa felonias transgressiones c. in eodem Com. audiend terminand assignat vicecom Comitat. predict salutem Quia C.D. de A. in Com. predict Yeoman apud Dale in Com. predict venit coram me invenit sufficien manucaptores essendi coram Iusticiar dicti Domini regis ad pacem in Com. predict conservandam necnon ad diversa felonias transgressiones c. in dicto Com. audiend terminand assignat ad proximam generalem sessionem pacis apud C. in Com. predicto tenend ad respondend dicto domino regi de quibusdam transgr contemptibus offensis unde indict existit Ideo ex parte dicti domini regis tibi praecipio quod de capiend prefat C.D. seu ipsum imprisonand aut eum ea ex causa aliqualit molestand omnino supersed si eum ea ex causa non al. ceperis tunc ipsum sine dilatione deliber facias Teste me prefato Iohanne Richardson tal die Anno c. Alias quia invenit plegios pro fine Samuel Collins sacrae Theologiae doctor unus Iusticiar dicti dom Com. Dublin regis ad pacem in Com. predicto conservandam necnon ad diversa felonias transgress alia malefacta in eodem Com. audiend terminand assignat vicecom Com. predicti ac omnibus singulis Ballivis Constabulariis Cromp. 234. ceterisque dicti Domini regis ministris tam infra libertates quam extra in Com. predicto salutem licet nuper per breve dicti Dom. regis vobis seu uni vestrum preceptum fuit quod caperetis seu unus vestrum caperet A. B. de S. in Com. predicto Yeoman si inventus fuerit in eodem Comitatu ipsum salva custod Ita quod haberetis seu unus vestrum haberet corpus ejus coram custodibus pacis ac Iust dicti Domini regis ad pacem in Com. predicto necnon ad diversa felonias transgressâ—ones alia malefacta in eodem Com. audiend Terminand assignat apud Killmainham tali die ad respondend dicto domino regi de contemptibus transgressionibus unde coram dictis Iusticiariis indictatus existit quia modo predictus A. B. apud Dale in Com. predict venit coram me invenit sufficientem plegios pro fine suo cum dicto domino Rege pro premissis faciend Ideo ex parte dicti domini regis vobis conjunctim divisim mando quod ad executionem brevis predicti ulterius fac supersedeas omninò si ipsum A.B. ea occasione non alia ceperitis in prisona dicti Domini regis detineritis tunc ipsum sine dilatione ab eadem deliber fac seu
sorts viz. Offences 1. Of force and violence 2. Of Fraud and deceit 3. Of Omissions in Officers others and fourthly other Abuses and enormities tending to the prejudice of the common-wealth 4. The eighth Chapter treateth of the substance certaintie and legall formes that ought to be in Indictments and Presentments and the difference betweene the one and the other 5. The ninth Chapter declareth the impediments of proceeding before the Iustices of Peace 6. The tenth Chapter setteth forth the sundry sorts of processe that are to issue upon Indictments and Presentments 7. The 11 12 13 and 14. Chapters declare the severall wayes of hearing and Tryall viz. Vpon Confession Discretion Examination Traverse 8. The 15. Chapter setteth forth the manner of the Tryall of felons upon Arraignement and what helps the prisoners may have to alledge or plead for their acquittall or delay of Tryall Iudgement or Execution 9. The 16. Chapter declareth the severall Iudgements that are to be given upon the offendors for the severall offences aforesaid 10. The 17. Chapter setteth forth the processe which are to issue for the Kings Fyne 11. The 18. Chapter setteth forth the executory processe which are to issue for the parties that prosecute and for restitution of the goods stolne or satisfaction for them 12. The 19. Chapter declareth the manner and forme of certifying the Records of the Sessions into other Courts or unto other officers 13. The 20. Chapter sheweth what matters are to be done and handled in the Quarter-Sessions only or in some one or more of them and at what time they are to be holden 14. The 21. Chapter setteth forth the speciall Sessions of the peace and the matters to be handled therein 15. The 22. Chapter declareth the Rewards and Punishments that are due to the Iustices of Peace The Heads of the severall Chapters and the particular matters contained in each Chapter follow in order as they are set forth in the Booke viz. Ca. 1. The description of the generall Sessions of the peace 1. It is an Assemblie of two Iustices of the peace or more for the executing their generall authoritie S. 2. 2. The times when it is to be holden S. 3. 3. Three things to be done in the Sessions S. 4. Ca. 2. Who shall appoint the sessions and how and when 1. By whom it is to be appointed S. 5. 2. The manner how S. 2 3 4. 3. The wayes whereby the Iustices are to take knowledge of the Causes there to be handled S. 1. 4. By whom it is to be holden S. 6. 5. The place where the Sessions may be holden S. 7 8. 1. The Iustices of peace and their authorities S. 1 2 3. 2. The Custos Rotulorum and his authoritie S. 4 5 6 7. 3. The Records of the Sessions S. 8 9 10 11. Ca. 3. What persons ought to appeare at the sessions and the priviledge of the Sessions 4. The Clerke of the peace and his office S. 13 14 15. 5. The Coroners and their duties S. 16. 6. The Sheriffe and the dutie of his place S. 17. 7. The Bailiffes of Franchises and Constables S. 18 19. 8. Iurors and how they ought to be qualified S. 20 21 22 23 24 25 26 27 28 29. 9. The number of the Iurors and how they ought to bee kept S. 30 31. 10. The punishment of the Iurors for concealement S. 32 33 34 35. 11. The priviledge of the Sessions S. 36. Ca. 4. Of the Articles that are to be given in Charge in the generall Sessions Offences of Force 1. The ancient order of giving the Charge S. 1 2 3 4 5 6. 2. The points of the Charge S. 7 8. 3. Of force as Riots Routs c. S. 9. 4. Of Maihems 5. Of all Assaults Batteries and other Trespasses whatsoever against the body goods or other things of any pag. 10. S. 2 3. 6. Rescuing of distresses pag. 11. S. 4. 7. Breaking of Pounds pag. 11. S. 5. Ca. 5. Offences of Fraud and deceit 1. The description of Extortion S. 1. 2. Extortion in Landlords S. 2. 3. In Escheators S. 3. 4. In Sheriffes S. 4 5 6. 5. In Coroners S. 7. Extortion 6. In ordinaries and their Clerkes S. 8. 7. In Clerkes of the Peace S. 9. Embracery and Imbraceours 8. In Clerkes of the Market S. 10. 9. In Maiors and their Officers c. S. 11. 10. In Purveyors S. 12. 11. Iurors that shall take bribes S. 13. Cousinage 12. By false tokens c. S. 14. 13. Packing of Fish deceitfully S. 15. 14. By Cowpers S. 16. 15. By Millers S. 17. Maintenance and Champerty 16. By buying pretended Titles S. 18. 17. By maintaining of suits or quarrels S. 19 20. Subornation and Perjurie 18. By procuring any to give false testimony S. 21. 19. By giving false testimony S. 22. Forestalling Regrating and ingrossing 20. By buying of Corne or other things comming to the Market S. 23. 21. By buying of Corne or other victuall in the Market and selling the same in the same Market c. S. 24. 22. By ingrossing of Corne and other dead victuals S. 25. False weights and measures 23. Vsing of false weights and measures Sect. 26 27. Victualers 24. By selling corrupt victuals S. 28. 25. By selling at excessive rates S. 29. Artificers 26. By working deceitfully S. 30 31. Conspiracies 27. By Artificers Labourers and servants S. 34. 28. By false Conspiracies to take away ones life S. 35. Forgery 29. By forging of false deeds c. S. 36. Ca. 6. Offences of Omission 1. Omissions in Constables S. 1 2 3 4 5 6 7. 2. Omissions in others S. 7 8 9 10. 3. Neglect of Towneships S. 11 12. 4. Neglect of Servants Labourers c. S. 13 14. 5. Neglect of repairing Bridges c. S. 15. 6. Neglect of Constables and Church-wardens for not electing Surveyors for the high-wayes S. 16. 7. The neglect of the Surveyors S. 17. 8. The neglect of the parishioners for not working on the high-wayes S. 18 19. 9. The neglect of all Officers and Ministers of Iustice for not executing their offices S. 20. 10. The neglect of repairing to the Church c. S. 21. 11. The neglect of such as shall be required by the Iustices of Peace or Sheriffes to assist them to arrest offendors in Riots c. and other malefactors S. 22. 1. Prophaning the Sabbath S. 1 2. 2. Depraving the Booke of Common Prayer or disturbing the Minister S. 3 4. 3. Cursing and swearing S. 5. 4. Common Drunkards and common Adulterers S. 6 7. 5. Keepers of Bawdy-houses and the Frequenters of them S. 8. 6. Common gaming houses and common gamesters S. 9. 7. Alehouse-keepers and Taverners that keepe disorder S. 10. 8. Destroying of Salmon Frye S. 11. Ca. 7. Other abuses tending to the dishonour of God and prejudice to the Commonwealth 9. The taking away of young women S. 12. 10. Plowing by the taile S. 13. 11. Burning of Corne in the Straw S. 14. 12. Coshering and idle wandring
S. 15. 13. Selling wine c. by measures not scaled S. 16. 14. The not using the English habit and language S. 17. 15. Leazing of Corne in Harvest S. 18. 16. Keeping inmates S. 19. 17. Keeping Swine upon the Strand S. 20. 18. Severall common Nusances S. 21 22 23 24. 19. Buying of Hydes and some other things out of the market Sect. 25. 20. Not keeping Schooles in every parish S. 26 27. 21. Severall offences in their Sheriffes and their Bailiffes S. 28. 29 30 31 32 45. 22. Certaine offences by Purveyors S. 33. 23. Keeping of Grey hounds S. 34. 24. Constables refusing to assist the owners of goods unlawfully taken by Purveyors S. 35. 25. Huy and Cry and escapes S. 36 37. 26. Giving of Liveries S. 38. 27. Buying of Corne. S. 39. 28. Selling victuals at excessive rates S. 40. 29. Tyle-makers S. 41 42 43. 30. Rogues and sturdy beggars 31. Gaolers taking Fees c. S. 46. 32. Libellers and slanderers c. S. 47. 33. All other offences c. S. 48. Ca. 8. Of the indictments Presentments and of the matter forme of them of the Receiving and recording of them 1. Of the difference betweene Indictments and Presentments S. 1 2 3 4. 2. Of the time within which Indictments or Informations ought to be exhibited S. 5. 3. What certaintie ought to be contained in Indictments and Presentments S. 6. 4. Of the Additions of the estate degree Mystery c. of the party indicted S. 7 8 9 10 11 12 13. 5. Of the certainty of the time S. 14 15 16 17 18 19. 6. Of the certainty of the place S. 20 21 22 23 24. 7. Of the certainty of the name of the party to whom the offence is done S. 25 26 27 28 29 30. 8. Of the name and value of the thing S. 31 32 33 34 35. 9. Of the manner of the fact and nature of the offence S. 36. 37 38 39 40 41. 10. What words are requisite to expresse the offence S. 42 43 44 45 46 47 48 49 50. 11. What Indictments the Iustices of peace are to receive in the Sessions S. 52 53. Ca. 9. Of the impediments of proceeding upon Indictments before the Iustices of peace and therewithall of the Certiorari to remove Records 1. Of the Force of the Certiorari S. 1 2 3 4. 2. To whom it is directed S. 5. 3. The duety of the Iustices of peace upon the Certiorari S. 6 7. 4. The manner of certifying the record upon the Certiorari S. 8 9 10 11 12. Ca. 10. Of the sundry sorts of processe upon Indictments and of the Supersedeas for stay of them 1 In what cases Processe is needfull and in what not S. 1 2. 2. Whereof Processe taketh the name S. 3. 3. The authority to make Processe and in whose name it ought to be S. 4 5 6. 4. Vpon what Indictments Iustices of peace may make Processe Sect. 7 8. 5. How farre Iustices of peace may proceede in making Processe Sect. 9 10. 6. The Processe in Cases of Trespasse c. S. 11 12 13. 7. The Processe in other speciall Cases grounded upon speciall Statutes S. 14 15 16 17 18. 8. Of Supersedeas for stay of Processe S. 19. 9. Of Processe upon Indictments of Treason and Felony Sect. 20 21 22 23. Of Processe upon Informations S. 24 25. Ca. 11. Of hearing upon Confession 1. Of the severall sorts of Confession S. 1 2. 2. Of free Confession S. 3 4. 3. Of Confession after a manner S. 5 6. 4. Of forced Confession S. 7. Ca. 12. Of hearing by discretion 1. When the offendor doth not deny the fact S. 1. 2. When the Offendor doth deny the fact S. 2 3 4 5 6 7 8. Ca. 13. Of hearing or Tryall upon Examination 1. The occasion of Tryall by Examination S. 1. 2. In what Cases this Triall is permitted S. 2 4 5. 3. The manner of this Examination S. 3 5 6. 4. In what Cases the Examination ought to be upon oath Sect. 7. 1. Vpon a Traverse by whom the issue is to be tryed S. 1 2 3. 2. Tryall of matter in law S. 4. 3. Vpon pleading of a pardon wherein certaine persons are excepted what is to be done S. 5 6. Ca. 14. Of hearing or Tryall by Traverse 4. Of a Bill of Exception when the Iustices will not allow of the Exceptions taken to the Indictment S. 7. 5. The difference betweene Traverse and Arraignement and the signification of the word Traverse S. 8. 6. What is a Traverse S. 9 10 11. 7. In what Cases a Traverse is to be admitted S. 12 13 14 15. 8. The forme of the whole Record of a Traverse S. 16. Ca. 15. Of triall of prisoners upon Arraignement and what Pleas or other helps may be used therein by the prisoners 1. Of the difference between Arraignement Traverse S. 1. 2. 2. Of the derivation of the word Arraignement S. 4. 3. What the prisoner may plead upon his Arraignement S. 3 5. 4. What Felonies the Iustices of peace may not trye S. 6 7 8 9 10 11 12 13 14 15. 5. What Pleas the prisoner may plead for him or her selfe in acquittall or in stay of Iudgement or execution S. 17 18 19 20. 6. What Challenge the prisoner may take to the Iury S. 23 24 25. 7. Where the Tryall shall be de medietate linguarum S. 26. 8. Another time acquitted of the same felony S. 27 28 29 30 31 32 33. 9. Another time attainted of another felony S. 34 35 36 37 38 10. Another time Clergie S. 39 40. 11. By Pardon S. 41 42 43 44 45 46 47 48 49. 12. By Clergie or Sanctuarie S. 50 51 52 53 54 55 56 57 58 59 60 61 62. Ca. 16. Of Indictments and the severall sorts therof 1. For Treasons by the Common law S. 4. 2. For Treasons by statute S. 5 6 7. 3. For Felonies S. 8 9 10. 4. For Misprisions of Treason S. 11 12. 5. For Misprisions of Felonie S. 13. 6. For other Misprisions S. 14 15 16. 7. For an offence of Praemunire S. 17. 8. For Finable offences S. 18. Ca. 17. Of the Processe for the Kings Fine of the assessing and estreating thereof 1. For the King S. 1 2 3 4 5 6 7. 2. The difference betweene a Fine an Amerciament and a Ransome S. 7 8 9 10 11 12. 3. Of the Fines for finable Offences and who may impose the same S. 13 14 15 16 17. 4. Fines ought to be assessed in open Court S. 18 19 20. 5. Estreating the Fines S. 21 22 23 24 25 26. Ca. 18. Of executory Processe and execution for the parties that sue or for other persons and of the Restitution of goods stolne 1. Of execution for the partie that doth prosecute S. 1 2 3 4. 2. Of Restitution of goods stolne S. 6. Ca. 19. Of the certifying of the Records of the Sessions to other Courts or officers 1. When the Iustices need not to certifie
Law 16. If the Ministers Churchwardens and Constables shall not upon Tuesday or Wednesday in Easter weeke yearely chuse Surveyors for the high-wayes according to the stat in that case provided This neglect of theirs ought to bee presented at the generall Sessions of the peace for which they are to be punished by fine and imprisonment 11. Iacob cap. 7. in Ireland 17. If the Surveyors for the high-wayes or any of them being chosen as in the next precedent Section is specified shall refuse to execute that office by the stat of 11. Iac. cap. 7. in Ireland every of them so offending is to forfeit ten pounds for such his neglect 18. All inhabitants of every parish by the said stat of 11. Iacob are to labour six dayes at the appointment of the Surveyors for mending of the high-wayes within their severall parishes in manner following viz. Every Parishioner that hath a waine or Cart is to labour with his waine or cart with two men and in default therof to forfeit for every day twenty shillings and every other person being a house-holder shall send one man to labour in the amendment of the high-wayes and Cashes or Causeys or else in default thereof every such person making default is to forfeit for every such default two shillings And every of the said Waines Carts and persons are to labour eight houres in every of the said six daies 19. All persons that have lands adjoyning to any high-wayes are to scoure their ditches and to cut the paces adjoyning to such high wayes so as the high-wayes be not impared or annoyed for want of scouring of the ditches or cutting of the paces or in default thereof every person so offending is to forfeit twenty pounds by the said statute of 11. Iac. cap. 7. 20. The neglects of all officers or ministers of Iustice whatsoever in the execution of their severall offices whereby the common-wealth receiveth any prejudice are to be presented at the generall Sessions and by the common law they are to be punished by fine and imprisonment at the discretion of the Court. 21. The neglect of repairing to the church Not repairing to the Church c. to heare Divine Service upon Sundayes and Holy-dayes is likewise to be presented and the partie offending for every such neglect upon any Sunday or Holy-day is to forfeit one shilling 2. Eliz. ca. 2. in Ireland 22. If any person or persons shall refuse to be assistant to the Iustices of peace Sheriffe or undersheriffe when they shall be required to aide them to arrest the offendors in riots routs Refusing to assist the Iustices of peace c. to arrest Rioters c. and unlawfull assemblies and other malefactors this by the common Law is inquirable at the generall Sessions of the peace and to bee punished by fyne and imprisonment at the discretion of the Court. Other abuses and enormities tending to the dishonour of God or the prejudice of the Common-wealth CHAP. 7. THe fourth sort of finable offences are these viz. 1. The prophaning of the Sabbath Prophaning the Sabbath by keeping faires or markets by manuall labour by playes or haunting Tavernes and Ale-houses and these are inquirable in the generall Sessions of the peace and to be punished by imprisonment and bonds of the good behaviour and this by the rule of the Common Law and the first Assignavimus of the Commission of the peace 2. Keeping of Faires or markets in Churches or Church-yards is likewise punishable and by the statute of 13. Edw. 1. called the stat of Winchester to be punished by fyne and imprisonment 3. Depraving of the Booke of Common Prayer by word or by writing Depraving the Book of Common Prayer or the using of any other Common Prayer or administration of Sacraments then such as are prescribed in that Booke is inquirable and by the stat of 2. Eliz. cap. 2. in Ireland to bee punished in manner following viz. If the offendour be an Ecclesiasticall person for the first offence he is to forfeit the profits of all his spirituall promotions for the space of one yeare and to suffer imprisonment by the space of six months for his second offence he is to suffer imprisonment by the space of one whole yeare and to bee deprived of all his spirituall promotions and for his third offence to be deprived ipso facto of all his spirituall promotions and suffer imprisonment during his life And if the offendour be a lay person or one that hath not any spirituall promotion he shall for his first offence suffer imprisonment by the space of one whole yeare without baile or maineprise and for the second offence he shall suffer imprisonment during his life 2. Eliz. cap. 2. in Ireland Disturbing the Minister 4. If any person or persons shall disturbe the Minister in execution of his function according to that Booke of Common Prayer this is likewise inquirable and the offendour herein for his first offence is to forfeit an hundred marke or in liew thereof to suffer imprisonment for the space of six months for his second offence hee is to forfeit foure hundred markes or to suffer imprisonment by the space of twelve months for his third offence he is to forfeit all his goods and Chattles and to be imprisoned during his life 2. Eliz. c. 2. in Ireland Cursing and swearing 5. Such as use to curse and sweare by the statute of 10. Car. cap. 1. in Ireland are to forfeit for every such oath or cursing one shilling Common Drunkards 6. Likewise common Drunkards are to be enquired of for this is an offence at the Common Law and contrary to good governement and such are to be punished by imprisonment and bonds of the good behaviour Common Adulterers 7. So likewise common adulterers by the rule of Common Law are to be enquired of and to be punished by imprisonment and bonds for the good behaviour Common baudy houses 8. And in like manner keepers of common baudy-houses and such as frequent them are by the Common Law to be punished by fyne and imprisonment and to be bound to their good behaviour 9. Keepers of common gaming-houses and common gamesters are to be punished by fyne Common Gaming houses imprisonment and bonds for the good behaviour as a misdemeanor at the common Law 10. In like manner Alehouse-keepers and Taverners that keepe misorder in their houses Alehouses and Tavernes are to bee presented for this offence as a misdemeanor at the common law and are to be punished by fyne imprisonment and bonds of the good behaviour 11. All such persons as shall kill or destroy any frye of Salmon or Eeles with any nets or Engines are to be presented Destroying of Frye c. and by the statute of 10. Car. cap. 14. in Ireland they are for every such offence to forfeit fortie shillings and also their nets and Engines 12. If any person or persons shall take or convey away or
2. Rich. 2. cap. 5. and 12. R. 2. cap. 11. by fyne and imprisonment at the discretion of the Court and to be bound to the good behaviour 48. Finally all manner of offences whatsoever which tend to the disturbance of the publique peace or to the oppression or defrauding of the people or to the maintenance and upholding of any disorder in the common wealth or that may any wayes trench upon the setled governement of the Church or common wealth are inquirable in the Sessions of the peace and are aswell by the Commission of the peace as by the rule of the common Law to be punished by fyne imprisonment bonds of the good behaviour or otherwise at the discretion of the Court as the cause shall require Of the indictments and presentments given by the Iurors and of the matter and forme and receiving and rejecting of them CHAP. 8. 1. THe preparation to this Enquiry thus made let us goe neare and looke also into the performance of the same Lamb. li. 4. pag. 485. the understanding or knowledge which the Iustices of the peace doe take by the travell of these enquirors is by their report put in writing and commonly called an indictment or presentment betweene the two which words howsoever they be confounded or not rightly distinguished in common speech me thinketh that there doth easily appeare a true and certaine difference Presenment indictment Ibid. 2. For I take a presentment to be a meere denuntiation of the Iurors themselves or of some other officer as you shall hereafter heare without any Information and an endictment to be the verdict of the Iurors grounded upon the accusation of a third person so that a presentment is but a declaration of the Iurors or officers without any bill offred before and an endictment is their finding of a bill of accusation to be true Endictment 3. An indictment ought therefore to be the verdict of Iurors that be charged to enquire of that offence which is presented by them for if A. be indicted of stealing the goods of B. and pleadeth thereto not guilty Lamb. li. 4. pag. 486. and the Iury findeth that C. stole his goods and that A. tooke them from him but not feloniously this verdict shall not stand for an indictment against C. because that Iury had no charge to enquire generally who did the felony but to try specially whether A. were hereof guilty or no. 13. Ed. 4. 3. 4. But if A. be arraigned upon an Indictment of murder taken before the Coroner Ibid. and is not found guilty Now the Iury ought to finde who is guilty thereof and if they say that C. killed the man that verdict shall serve for a good endictment against C. because the Iury had taken so much in charge ibidem 5. This also is generally true that all bils informations and indictments grounded upon penall statutes wherein the King only is to reape the forfeiture ought to be commenced within three yeares next after the offence committed and if the suite be given to any other person for him and the King that ought also to commence for the King within three yeares but if a common person shall informe for himselfe and the King then the Information c. must be commenced within one yeare next after the offence done otherwise it is meerely voyd unlesse longer or shorter time be limitted by that speciall statute upon which the Information indictment or presentment is made and framed 28. H. 8. cap. 21. in Ireland Lamb. li. 4. pag. 487. 488. 6. Furthermore all indictments forasmuch as they be in the nature of a declaration ought to containe certainety and therefore as saith Master Marrow five principall things be most commonly requisite in presentments before the Iustices of peace viz. 1. First the name surname and addition of the party endicted 2. The yeare the day and place in which the offence was done 3. The name of the person to whom the offence was done 4. The name and value of the thing in which the offence was committed 5. The manner of the fact and the nature of the offence as the manner of the Treason murder felony or Trespasse 6. The name and surname The name and surname of the party indicted must be certainely expressed and if the indictment be of an accessary in felony the name of the principall must be set downe also for if the indictment be quod A. mandavit euidam ignoto occidere B. quod fecit this is vitious Ibid. but in Treason Trespasse or Murther where all be principals it may be quod procuravit personas ignotas to doe the Treason Trespasse or Mayheime Mar. Lambart li. 4. pag. 488. 7. Besides the name and surname of the party indicted there ought also by the statute 1. H. 5. ca. 5. in every presentment wherein processe of utlary lyeth to be added his estate degree or mystery Lamb. li. 4. pag. 488. and the County Towne Hamlet or place where he is or was conversant and even so ought it to have beene at the common Law touching names of dignity made by creation as Duke Marquesse Earle Viscount Archbishop Bishop Knight or Sergeant at the Law because every of these titles were accounted parcell of the name but it was not so for the names of Baron Banneret and Esquire which are names of dignity without creation nor for Chancellor Treasurer Chamberlaine Sheriffe Coroner Escheator Bailiffe Deane Archdeacon Deacon prebendary or parson which are names of dignity by reason of office onely unlesse the presentment did charge them in respect of their offices for then the name of office also as Bailiffe or Escheator ought to be used in the indictment Marrow 8. But now Baron Knight Esquire Gentleman Alderman Degree or mystery Widow Single woman Deane Archdeacon Parson Doctor Clerk Parish Clearke are good additions of estate or degree as I take it within the meaning of this statute of additions but farmer servant Lamb. li. 4. pag. 489. Butler Chamberlaine are not because they be common to Gentlemen and Yeomen and they be uncertaine so Merchant Grocer Mercer Tayler Broker Husbandman Hostler Labourer Lighterman Waterman Spinner c. be good additions of mysteries but Citizen is not because it is no mystery Art or degree neither is Extortioner Maintainer Vagabond Hereticke Dicer Carder or such like any good addition because they are every one evill and against the Law 9. And this part of the addition of estate degree or mystery must alwayes be knit to the proper person for Sybilla Batt nuper de T. in Com. D. uxor Iohannis Batt nuper Spinster was rejected Dyer fo 47. because Spinster was more properly to be referred to Iohn which is the last antecedent then to Sybilla Collect. Dyer 47. 10. Also by the said statute as I said the addition ought to comprehend the County and the Towne and Hamlet or place knowne out of any Towne or Hamlet
sometimes upon Traverse and sometimes upon Arraignement 4. But yet some things be common to them both for if the partie charged will demurre in law upon the Evidence the Iustices ought to record his demurrer so if he will plead in justification any matter of Record that is before other Iustices they ought to give him day to bring it in Marr. So also if the Iustices thinking an Endictment to be void have discharged the prisoner paying his Fees yet upon change of their opinion they may stay him againe at any time before Iudgement Fitzh Endict 27. 5. But if he plead a pardon before them in which certaine persons be excepted and the Kings Atturney is not present to joyne issue that he which pleadeth it is one of those that be excepted then they themselves may supply the office of the Atturney in that behalfe 8. E. 4. 7. The Kings advantage 6. Whereupon also I gather this generall learning that they ought not to suffer the King to be disadvantaged where it lyeth lawfully in their power to prevent it 7. And if an Endictment bee challenged for such cause as these Iust will not allow then may they seale a Bill of that exception for the party if he will write and require it according to the statute W. 2. ca. 30. as M. Marr. writeth 8. The Traverse tooke the name of the French de Traverses which is none other then de transverso in Latine signifying on the other side because as the Endictment on the one side chargeth the partie so he on the other side commeth in to discharge himselfe For whereas the arraignement proceedeth upon him that is unwillingly brought in by Processe the Traverse is for the most part freely tendred by the party himselfe 9. To Traverse Traverse an Indictment then is to take issue upon the chiefe matter thereof which is none other to say then to make contradiction or to deny the point of the Indictment As in a presentment against A. for a high way overflowne with water for default of scowring a ditch which he and they whose estate hee hath in certaine land there have used to scowre or clense A. may traverse either the matter viz. that there is no high-way there or that the ditch is sufficiently scowred or otherwise he may traverse the cause viz. that he hath not that land c. or that he and they whose estate c. have not used to scowre the ditch 5. H. 7. 3. 10. And this libertie of Traverse is commonly restrayned to an Endictment of Trespasses contempts Riots c. and other inferiour offences within the Commission or statutes authorising the Iustices of peace and is not usually extended to Treasons or felonies as you shall hereafter see 11. And there is no doubt but that as Iustices of the peace have power to award Processe the parties also have libertie to speake for themselves and having spoken the Iustices may heare and determine of their speech whether it touch them in Freehold or otherwise 12. For although it be holden 2. R. 3. 11. 19. H. 8. 11. Fitz. tit Ass 442. and in other bookes that a man shall not be received to traverse a presentment unlesse it doe charge him in his Freehold yet Hussey and Fairefax said in 5. H. 7. 4. that a presentment not concerning freehold which is found before Iustices of the peace may be traversed For if processe be awarded the partie may come in and offer his Traverse or otherwise the processe should bee in vaine 13. Hereunto agreeth Moubray 41. Ed. 3. 26. saying further that in a Leet such a presentment is not traversable because out of a Leet no processe can be awarded upon it And this peradventure is the reason of the booke 8. Ed. 4. 5. and of M. Marrow where they say that a presentment of bloodshed found in the Sheriffes Turne and sent as it ought to be to the Iustices of the peace cannot be traversed before them as whereupon they can neither make proces nor discharge the party by way of plea. 14. So that this seemeth to be a generall learning that wheresoever any processe ad respondendum goeth out by force of such an Indictment as is traversable there also the party may offer and ought to have his Traverse against it 15. But Marr. saith that if a man be of an Enquest that indicted him of Trespasse or such like so that upon the matter hee indicted himselfe this is so strong that hee shall never bee received to traverse it 16. It is not my meaning to pester this booke with Presidents But yet forasmuch as in the record of one Traverse there is at once discovered the Stile of the Sessions the Indictment the processe to answer the Traverse it selfe the verdict and Iudgement thereupon the processe of execution the yeelding of the parties and the assessement of their Fynes so that it alone may serve in stead of all I trust it shall not be troublesome to insert it and it is as followeth Alias scilicet ad sessionem pacis tentam apud Kilmainham in Comitatu praedict dic Martis proxime ante festum sancti Mathaei Apostoli Co. Dublin Stile of the Sessions Anno Regni Domini nostri Caroli Dei gratia Angliae Scotiae Franciae Hiberniae Rex fidei defensor c. decimo tertio coram R. B. S.M. alijs socijs suis Iusticiarijs dicti domini regis ad pacem in comitatu praedicto conservandam Nec non ad diversa felonias transgressiones alia malefacta in eodem Comitatu perpetrata audiend terminand assignatis per sacramentum xij Iuratorum extitit praesentatum quod I. L. de c. R.M. de c. T.L. de c. cum diversis alijs ignotis malefactoribus pacis dicti Domini regis perturbatoribus modo guerino arraiati uniti assemblati xx die Iulij in nocte ejusdem diei anno c. vi armis videlicet baculis gladijs clipeis pugionibus falcastris alijs armis tam invasivis quam defensivis apud C. c. clausum cujusdam W. Willet vocatum B. illicitè riotosè routosè fregerunt intraverunt octo palustra foeni ad valentiam c. adtunc ibidem existentia de bonis catallis dicti W. Willet adtunc ibidem injustè et illicitè ceperunt et asportaverunt contra pacem dicti Domini Regis c. contra formam statuti inde edit provis Processe to answer Per quod praeceptum fuit vicecomiti quod non omitteret c. quin venire faceret eos ad respondendum c. posteaque sci praed die Martis proxime antefestum S. Mathaei Apostoli anno 20. supradicto coram praefat Iustic venerunt praedicti I.L. R.M. T.L. in proprijs personis suis et habito auditu indictamenti praedicti seperatim dicunt quod ipsi non sunt inde culpabiles Traverse Et de
were not Iust of P. also in the same shire so as the indictment may be understood to be taken by them as before Iustices of the peace for their Commission and authority extendeth only to such as stand endicted before themselves or before former Iustices of the peace or the Sheriffe in his Turne Things peculiar to Iu. of the peace in the tryall of felonies 11. Thus farre of the first point touching the second it seemeth by Marr. and Fitz. fol. 16. that albeit two Iustices of the peace the one of them being of the Quorum may in the County of Dublin heare and try felonies yet no Iustices of the peace have authority to deliver felons by Proclamation without sufficient acquittall nor yet to deliver such as be in prison for suspition of felony unlesse there be in the Commission a speciall clause ad gaolam deliberand c. as it is in the Commission for the County of Dublin 12. For they must proceed by inquiring hearing and determining as their Commission appointeth them and not rid the gaole otherwise as the Iustices of Gaole delivery may doe And therefore such persons if they cannot be indicted must either remaine the comming of the Iustices of Gaole delivery or else being removed into the Kings Bench they are either to be delivered thence upon the writ de gestu et fama as the old order was or by such other meanes as they at this day doe use therein 13. These Iustices of peace can take no Appeale of any approver nor other before them 2. H. 4. 19. and so it is cleerely holden 9. H. 4. 1. because their Commission stretcheth not so farre but onely to such felonies as fall out by enquiry before themselves or their former fellow Iustices howsoever the booke in 44. Ed. 3. 44. upon the statute 5. Ed. 3. ca. 11. or the statute 8. H. 6. ca. 10. may seeme to a running Reader to allow that power unto them and therefore Master Stamford fol. 95. doubteth of it 14. But howsoever that be yet seemeth it to me no lesse reasonable then serviceable that if one felon will accuse another before Iust of the peace they may take his confession and reprive him and thereupon cause the other to be inquired of and so proceed against him by way of Indictment 15. Furthermore they cannot arraigne a man upon his abjuration saith Marr. 16. It hath also beene thought unmeet that they should try a felon the same day in which they awarded the venire facias against the Iury. 22. Ed. 4. 44. Fitz. Coron tit 44. but that hath no necessity and the Law is now otherwise taken 17. Marr. saith that they cannot award the writ of venire facias tot matrones to try whether a woman arraigned before them be with child or no but seeing it standeth with Law and reason to stay her for the time that the child may be preserved It must of necessity follow that this opinion of Marrow is against the Law 18. They may give Clergy to a felon if the Ordinary or his Deputy be present to take him but if they be absent he must be reprived because as Mar. saith these Iustices can set no Fyne upon the ordinary for his absence no more then if he will accept one to read as a Clerke where in truth he cannot read at all but if you looke upon Master Stamford lib. 2. ca. 25. he will perswade you that the Ordinary is not the Iudge but a Minister in the tryall of Clergy and that Clergy may lawfully be given and allowed in his absence 19. Of the Fyne for his default at these Sessions Lamb li. 4. pag. 55â— I am a litle doubtfull as I have said before but touching the allowance of Clergy to the offendor I see no cause at all why it may not belong to the Iust of peace aswell as to other Iudges seeing that they be Iudges of the felony as other Iust are 20. Mar. saith also that if Bigamy had been alledged against one that prayed his Clergy the Iust of P. could not have written to the Ordinary to certifie the same but this opinion seemeth to be no Law for where Iustices have power to heare and determine of congruity they have power to doe all things necessary to bring the cause to an end 21. And if a man outlawed of felony by processe before the Iustices of peace be brought before them and doe alledge that he was at the time of the utlary pronounced out of the Realme in the Kings service under such a Captaine or that he was then imprisoded in another County they can neither write to the Captaine nor into the County by the opinion of Mar. 22. Thus much only of things restraining the Iustices of peace in the tryall of Felonies wherein they are not in Ireland at all occupied saving onely in the County of Dublin but the gaole delivery is wholly left to the Iustices of Assize 23. These things thus premised Let us now suppose all impediments to be removed and set we the felon at the barre ready to take whatsoever lawfull advantage of Challenge plea or other benefit that may be allowed unto him 24. It was ever permitted Challenge that the prisoner might challenge so many of the Iury as he would shewing lawfull cause for it as namely to say that he whom he challengeth was one of the Iury which did indict him for such a one it may be thought he will not falsifie his former oath 25. Ed. 3. cap. 3. or to say that he hath not lands of the cleere yearely value of xl.s. for such a one is disabled 2. H. 5. ca. 3. or to say that hee is not probus or legalis because he hath beene attainted of felony forgery perjury or of such like as are shewed before 11. Caroli ca. 9. in Ireland 25. The common Law hath also in favour of life allowed unto the prisoner his peremptory challenge without shewing any cause at all for it But yet forasmuch as it was long time doubtfull how many he might challenge the same is now put into certainety by the statute 11. Caroli ca. 9. and restrained to the number of xx persons at the most 26. Now if the tryall be of an Alien borne for felony or murder committed by him the Iury shall be de medietare lingua that is halfe of our Nation and halfe of strangers except it be in the case of a Scot whose Iury shall be altogether English aswell because he speaketh one language as also for that he is reputed a subject and not an Alien Collection Dyer 304. 357. 27. Thus shortly of challenge which is but dilatory and to win time and therefore let us now heare what he may plead in chiefe as it were and for the safety of his life Another time acquit 28. And if the prisoner have beene at any time before lawfully acquited of the selfe same felony or have beene orderly attainted of any other
finium amerciamentorum forisfactorum ad generalem Sessionem pacis tentam apud Trym c. Coram c. For the whole forme of the making whereof there is full direction given to all Clerkes of Estreates by the statute 7. H. 4. cap. 3. whereunto I referre them 26. Howbeit I doe not thinke Iu. of the P. ought to have caâ—e of the Estreats that in our case this duty of estreating is so peculiar to the Clerke of the peace but that the Iu. of P. themselves ought also to have a common and carefull eye unto it For if you remember it is both specially provided for in the Commission and also an Article of their oath to see unto the faithfull entry and certificate of the issues fynes forfeits and amerciaments that doe happen before them and therefore it were well done in my opinion if the Iu. would by turne or otherwise both take knowledge of things that have passed before them and also take order that the same be certified accordingly lest otherwise it lye altogether in the power of the Clerke of the peace to save or slay as one said the Sparrow that he holdeth closed in his hands Of executory processe and execution for the parties that sun or for other persons and of the restitution of goods stollen CHAP. 18. 1. ALbeit that the Iustices of the peace have this power to make warrants for levying the amerciaments fynes and other forfeits that grow unto the King by their service yet is it commonly thought that they may not but in some cases only and that by speciall words of the statutes make execution for them that will sue of such part of the forfeiture as the statutes doe appoint for them 2. For most commonly the party that will sue is by the statutes put to his action at the common Law for recovery of that which he is to have growing upon conviction of any offence contrary to the statutes for which he is to commence his action or bill of debt But where they have power either by their Commission or by any statute to heare determine any cause at the prosecution of a private person I doe not see how the cause can well be said to be fully determined till the complainant hath had the effect of his suite which cannot be without execution Liveries 3. For the moity growing to the Informer upon the statute of Liveries 8. Ed. 4. cap. 2. they shall make such execution as ought to be had in recovery of debt or Trespasse High wayes 4. And the Estreats made by the Clerke of the peace of forfeits for default of amending high wayes are a sufficient warrant to the Constables to levye the same by distresses to the use of the Church-wardens of the Parish where the default was 11. Iacobi ca. 7. in Ireland toward the amendment of the said wayes Perjurie 5. So upon the statute of perjurie made in 28. El. cap. 1. in Ireland And peradventure search will afford some more examples but these may suffice for my desire which is not in this or any the like to recount all but to make good proofe of that which I offer and propound the rather that the Iustices and Clerke of the peace may thereby take occasion to looke upon the statute whensoever Execution shall be prayed for any cause depending before them upon any statute whatsoever Restitution of goods stollen 6. And because the awarding of restitution of goods stollen to the owner or partie robbed after the attainder of a felon by reason of the evidence given by them is a manner of execution for the party 28. H. 8. ca. 10. 4. Ma. cap. 6. in Ireland I may without violence bring hither the effect of the statutes made upon that point and lying within the authority of Iustices of the peace which standeth thus if any felon of goods money or chattels taken from any of the Kings subjects be indicted arraigned and found guilty thereof or otherwise attainted by reason of evidence given by the party robbed or the owner of the said goods money or chattels or by any other by their procurement then shall such party or owner be restored thereunto and the Iustices before whom such finding guilty or such attainder shall be shall have power to award writs of Restitution of the goods stolne in specie if they may be found and if they cannot be found or that the property be altered then they may award Restitution of the felons goods Of certifying the Records of the Sessions of the peace to other Courts or officers CHAP. 19. 1. AS I have already manifested that Iustices of the peace have not sufficient power of themselves to heare and determine all causes whereof they have in their Sessions authority to enquire So also there be sundry things determinable before them there which neverthelesse may in some respects be brought to a second handling either to the end to reverse that which they have done or that their doings may be an evidence and testimony in the tryall of causes before other Iudges 2. And because this cannot in any sort be performed without the presence of those former Records or the transcripts thereof which began with the Iustices of the peace it is therefore requisite that they doe make certificate of them unto those other Courts or officers that shall use the same 3. But as this certificate ought in some cases to be made by the Iustices of peace or their Clerke without any writ of Certiorari therefore directed and in some other cases they may spare to certifie untill that writ or some other commandement be brought unto them So also sometimes they are to certâ—fie and send up only a Tenor or Transcript as I have formerly said of the Record before them and sometimes the very Record it selfe must be conveyed from them 4. But in cases where Iustices of the peace have power to receive Endictments and no power to proceed any further upon them as in cases of Treason and some others which I have formerly declared there they ought to send up and certifie the Endictments themselves into the Kings Bench and that of duty without any Certiorari commanding the same because having none authority to heare and try the offences the Records thereof shall be unprofitable before them and therefore they can have no just cause to retaine them 5. And so if a man that is bound to keepe the peace and to appeare at the next Sessions of the peace doe make default of apparance the Recognisance it selfe together with the Record of that default must be estreated into the Exchequer that execution upon the Recognisance may be had there 3. H. 7. ca. 1. and so ought it if it be presented that the party hath forfeited his Recognisance by breach of the peace And likewise if it be presented before them that the chattels of a man attainted of felony be in the hands of another For in
Sect. 1. 1. The power of the Iustices of Peace to punish falsifiers weights and measures S. 1 2 13. 2. What weights and measures are warrantable or accustomed S. 3 4 13 14. 3. Troy weight and what shall be weighed by it S. 4 5. to pag. 27. S. 6 7. 4. Averdepois weight and what shal be weighed by it S. 6 7 8. 35. Weights measures ca. 71. 5. What measures of Corne ought to containe pag. 272. Sect. 1 2 3 4 5. 6. The punishment of bakers for selling of bread not being of full weight pag. 273. S. 8 9. 7. What measures of Wine Beere and Ale ought to containe pag. 273. S. 9. 8. The weights of Cheese Flesh Herrings wooll Spices Waxe and Hops p. 273. S. 1 2 3 4 5 6. 9. The weights of lead pag. 274. S. 7. 10. Things sold by number and measure p. 274. S. 8 9 10 11 12 13 14 15 1 2 3 4 5 6 7 8. 11. The measure of land pag. 274. S. 7 8 9 10 11 12. 36. Warrants and Presidents ca. 72. 1. Warrants and Presidents concerning Treasons and Felonies S. 1 2 3 4. 2. The forme of the examination of Traitours and felons Sect. 5 6 7 8. 3. The forme of the Mittimus S. 9 10 11. Concerning Treasons Felonies Misprisions and Praemuniries 4. The forme of the Recognisance taken of prosecutors Sect. 12 13 14 15. 5. The Iustice of peace is to returne Recognisances to the next gaole delivery S. 16. 6. The forme of the warrant concerning Misprisions and Praemuniries S. 17. 7. The forme of a bayle S. 18 19. 8. The baile must bee returned to the next gaole deliverie Sect. 20. 9. The forme of a warrant to enlarge a prisoner upon bayle Sect. 21. 10. The forme of the record of a force and what the Iustice of peace is to doe therein S. 22 23. Concerning Forcible Entries c. 11. The forme of the Mittimus upon a force Sect. 24. 12. The forme of the precept to enquire upon a force and the returne thereof S. 25. 13. Severall formes of Inquisitions of forceible Entries c. S. 26 27 28 29 30 31 32. 14. The forme of the warrant to the Sheriffe to make restitution S. 33 34. 15. The certificate of the force into the Kings Bench Sect. 35 36 37 38. 16. The forme of proceeding by writ upon the statute of North-hampton for removing a force and the returne thereof S. 39. 40 41 42 43 44 45 46 47 48 49 50 51. 17. The forme of proceeding by a Iustice of peace ex officio upon the said statute S. 52 53 54. Concerning Riots c. 18. The forme of recording a Riot and the Mittimus Sect. 55 56 57. 19. The forme of the precept to enquire of Riot Sect. 58. 20. The forme of the Inquirie upon a Riot S. 59. 21. The certificate of a Riot S. 60. 22. The forme of the Record of a Traverse to an Endictment of a Riot S. 61. 23. Rules concerning Endictments of Riot c. pag. 296. S. 1 2. Rules and observations concerning endictments in generall Concerning Processe upon Endictments 24. For Endictments framed upon statutes pag. 197. S. 34. 25. Six principall parts to be observed in all Endictments pag. 197. S. 5. and to the end of the page 26. The Processe upon Endictments out of Sessions how and by whom they may be made pag. 298. S. 1 2 3. 27. To whom these processe shall be directed page 299. 28. The Venire facias and Distringas pag. 299. 29. The Capias alias plures and Exigent pag. 300 301. Concerning Traversses 30. Whether the Iustices of peace may determine Traversses out of Sessions pag. 301. 302. 31. The forme of the returne of the Certiorari pag. 302 303. Concerning Certiorari 32. The Certiorari is a Supersedeas in it selfe pag. 303. 33. The forme of the Certiorari pag. 304. Concerning the Supplicavit 34. The forme of the warrant upon a Supplicavit pag. 304. 35. The forme of the Recognisance upon the Supplicavit pag. 305. 306. 36. The returne of the Supplicavit pag. 306. 307. 37. The forme of the Release upon a Supplicavit pag. 307. 38. The forme of a Supersedeas upon a Supplicavit pag. 307. Concerning the peace ex officio 39. The forme of the warrant for the peace pag. 308. 309. 40. The forme of the Recognisance of the peace pag. 309 310. 41. The forme of the Supersedeas ex officio pag. 310. 311. Concerning the good behaviour 42. The forme of the warrant of good behaviour pag. 311 312. 43. The Supersedeas for the good behaviour pag. 312 313. Concerning Supersedeas 44. A Supersedeas for one endicted of Trespasse pag. 313. 45. A Supersedeas upon a Capias pro fine pag. 314. 46. A Supersedeas upon a Capias of felony pa. 314. 47. A Supersedeas upon an Exigent of felony pag. 314. 48. A generall warrant for misdemeanor pag. 315. 49. A warrant for one that hath dangerously hurt another pag. 315. Severall warrants for severall misdemeanors 50. A warrant for a generall search for Rogues pag. 315. 316. 51. Severall warrants for fugitive servants pag. 317. 318. 52. A warrant for one that refuseth to serve pag. 318. 319. 53. A warrant for suppressing an Ale-house pag. 319. 54. A warrant for removing a pettie Constable pag. 319. 55. The forme of a warrant to one that is appointed to be Constable to come and take his oath pag. 320. 56. The forme of the Constables oath pag. 320. THE INTRODVCTION Of the Conservators of the Peace CHAP. 1. 1. BEfore I enter into the handling of the particulars wherein the Iustice of Peace is to exercise his Authority it will not be amisse in a generality by way of Introduction to set forth how the Common Law-hath provided for the preservation of peace and good government of the Subjects and how the same hath from time to time beene enlarged by severall Acts of Parliament Co. 3. 9. parti prefaâ—e It is plaine and apparant that the common Lawes of England receiving principally their grounds from the Lawes of God and nature which law of nature as it pertaineth to man is also called the law of reason and being for their antiquity those whereby the Realme of England was governed many hundred yeares before the Norman Conquest the Equity and Excellency whereof is such as that there is no humane Law within the circuite of the whole world by infinite degrees so apt and profitable for the honourable peaceable and prosperous governement of the Kingdomes of England and Ireland and so necessarie for all estates and for all causes concerning life lands or goods as these Lawes beene These Lawes I say even from their beginning have continued a speciall care for the conservation of the peace and good governement of the people And to that purpose at the Common Law long before Iustices of the peace were made there were sundry persons to whose charge the
omnibus singulis articulis circumstanciis aliis rebus quibuscunque per quoscunque qualitercunque in Comitatu predicto factis sive perpetratis vel quae imposterum ibidem fieri vel attemptari contigerint qualitercunque premissorum vel eorum alicujus concernentibus plenius veritatem Et ad indictamenta quecunque sic coram vobis seu aliquibus vestrum capta sive capienda aut coram aliis nuper Iusticiariis pacis in Comitatu predicto facta sive capta nondum terminata inspiciendum Ac ad processus inde versus omnes singulos indictatos vel quos coram vobis imposterum indictari contigerint quousque capiantur reddant se vel utlagentur faciendum et continuandum preterquam super indictamentis de proditionibus et fellonijs Et ad omnia et singula veneficia incantationes sortilegia artes magicas transgressiones forstallarias regratarias ingrossarias extortiones conventicula indictamenta ceteraque omnia et singula premissa preterquam proditiones et felonias secundum leges et statuta Regni nostri Hiberniae prout in hujusmodi casu fieri consuevit aut debuit audiendum et terminandum Et ad eosdem delinquentes et quemlibet eorum pro delictis suis per fines redemptiones amerciamenta forisfacturaâ— ac alio modo prout secundum legem et consuetudinem Regni nostri Hiberniae aut formam ordinationum vel statutorum predictorum fieri consuevit aut debuit castigandum et puniendum Proviso semper quod si casus difficultatis sive magni momenti super determinationem aliquorum premissorum coram vobis vel aliquibus duobus vel pluribus vestrum evenire contigerit tunc ad justicium inde reddendum nisi in presentia unius Iusticiariorum nostrorum de uno vel de altero Banco vel unius Baronum de Scacario nostro aut unius Iusticiariorum nostrorum ad Assisas in Comitatu predicto capiendas assignatorum coram vobis vel aliquibus duobus vel pluribus vestrum minime procedatur Et ideo vobis et cuilibet vestrum mandamus quod circa Custodiam pacis ordinationum statutorum et omnium et singulorum ceterorum premissorum diligenter intendatis et ad certos dies et loca quae vos vel ali qui hujusmodi duo vel plures vestrum ad hoc provi-videritis super premissis faciatis inquisitiones Et premissa omnia et singula exceptis praeexceptis audiatis et terminetis ac ea faciatis et expleatis in forma predicta facturi inde quod ad justitiam pertinet secundum legem et consuetudinem Regni nostri Hiberniae Salvis nobis amerciamentis et aliis ad nos indespectantibus Mandamus enim tenore presentium vicecomiti nostro Middie quod ad certos dies et loca quae vos vel aliqui hujusmodi duo vel plures vestrum ut predictum est ei ut predictum est scire feceritis Venire faciat coram vobis vel hujusmodi duobus vel pluribus vestrum ut dictum est tot et tales probos et legales homines de Balliva sua tam infra libertates quam extra per quos rei veritas in premissis melius sciri poterit et inquiri Assignavimus denique te prefatum A. B. Custodem Rotulorum pacis nostrae in dicto Comitatu nostro Ac propterea tu ad dies et loca predicta brevia precepta processus et indictamenta predicta coram te et dictis sociis tuis vel aliquibus duobus vel pluribus eorum ut predictum est venire facias ut ea inspiciantur et debito fine terminentur sicut predictum est Teste c. Dat. c. A president for the Commission of the peace for the county of Dublin onely CArolus Dei gratia Angliae Scotiae Franciae Hiberniae Rex fidei Defensor c. Adamo Vicecomiti Loftus de Ely c. Salutem Sciatis quod nos de fidelitatibus circumspectionibus industrijs vestris plurimum confidentes Assignavimus vos conjunctim divisim quemlibet vestrum Iusticiarios nostros ad pacem nostram in Comitatu nostro Dublin tam infra libertates quam extra conservandam ac ad omnia ordinationes statuta pro bono pacis nostrae ac pro conservatione ejusdem pro quieto regimine gubernatione populi nostri edita in omnibus singulis suis articulis in dicto Comitatu nostro tam infra libertates quam extra juxta vim formam effectum eorundem custodiendum custodiri faciendum Et ad omnes contra formam ordinationum vel statutorum illorum aut eorum alicujus in Comitatu predicto delinquentes castigandum puniendum prout secundum â—ormam ordinationum statutorum illorum fuerit faciendum Et ad omnes illos qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorum suarum minas fecerint ad sufficientem securitatem de pace vel bono gestâ— suo erga nos populum nostrum inveniendum coram vobis seu aliquo vestrum venire faciendum si hujusmodi securitatem invenire recusaverint tunc eos in prisonis nostris quousque securitatem invenerint salvo custodiri faciendum Assignavimus etiam vos quoslibet duos vel plures vestrum quorum aliquem vestrum A. B. C. D. c. unum esse volumus Iusticiarios nostros ad inquirendum per sacramentum proborum legalium hominum de Comitatu predicto per quos rei veritas melius sciri poterit de omnibus omnimodis proditionibus felonijs veneficijs incantationibus sortilegijs arte magica transgressionibus forstallarijs regratarijs ingrossarijs extortionibus ac de omnibus singulis alijs malefactis offensis de quibus Iusticiarij pacis nostrae legitimè inquirere possunt aut debent per quoscunque et qualitercunque in Comitatu praedicto factis sive perpetratis vel quae imposterum ibidem fieri vel attemptari contigerint Ac etiam de omnibus illis qui in Comitatu predicto in conventiculis contra pacem nostram in perturbationem populi nostri seu vi armata ierunt vel equitaverunt seu imposterum ire vel equitare presumpserint Ac etiam de omnibus hijs qui ibidem ad gentem nostram mayhemandam vel interficiendam in insidijs jacuerunt vel imposterum jacere presumpserint Ac etiam de hostellarijs et alijs omnibus et singulis personis qui in abusu ponderum vel mensurarum sive in venditione victualium contra formam ordinationum vel statutorum vel eorum alicujus inde pro communi utilitate regni nostri Hiberniae et populi nostri ejusdem editorum delinquerunt vel attemptaverunt seu imposterum delinquere vel attemptare presumpserint in Comitatu predicto Ac etiam de quibuscunque vicecomitibus Ballivis Seneschallis Constabularijs custodibus Gaolarum et alijs officiarijs qui in executione officiorum
assemble Posse Comitatus or raise a power or assembly of people upon their owne heads without just cause and therefore it is to be considered upon what occasion a Iustice of peace or other officer may to his assistance take posse Comitatus 94. Any Iustice of peace or Sheriffe may take of that County where he is a Iustice or Sheriffe any number that they shall thinke meet to pursue apprehend arrest and imprison Traytors Murderers Robbers and other felons or such as doe breake or goe about to breake or disturbe the Kings peace in any outragious manner and every man being required ought to assist and aide them 95. The Iust of P. and the Sheriffe or undersheriffe may take Posse comitatus for the suppressing of Riots and all sorts of persons being able and required ought to assist them therein 96. 14. H. 7. 8. Yea any one Iustice of peace may take the power and aide of the County to suppresse Riottets and needs not to tarry for the comming of another Iust or of the Sheriffe 97. Also in cases of forceible entry any Iustices of peace may take Posse comitatus to remove such persons as by his view or by Inquisition taken before him shal be found to have made any forceible entry into other mens possessions or to detaine them with force 98. The Sheriffe or undersheriffe or Bailiffe c. if need be may by the common Law take the power of the County what number they shall thinke good to execute the K. processe or writ 3. H. 7. 1. 10. Co. 5. 115. Br. Fine p. 37. be it a writ of execution Replevin Estreperment Capias or other writ it being the Kings commandement Br. Riots 2. 3. See the stat Westminst 1. 17. Westminst 2. 39. And such as shall not assist them therein being required shall pay a Fine to the King 3. H. 7. 1. Br. Trespasse 266. The Sheriffes Bailiffe to execute a Replevin tooke with him three hundred men armed modo guerino sc with Brigandines Iacks and Guns and it was holden lawfull for the Sheriffes officer hath power to take assistance aswell as the Sheriffe himselfe for that all is one office and one Authority 99. A man demands the P. in Chancery against a great Lord and hath a Supplicavit directed to the Sheriffe there if need shall be the Sheriffe may take his Posse comitatus to aide him to arrest such a Lord. So it seemeth if a Supplicavit bee directed to a Iustice of peace the Iustice of peace or the officer to whom the Iustice of peace shall make his warrant in this behalfe upon resistance made may if neede be take Posse Comitatus to aide him to arrest the party Quia quando aliquid mandatur mandatur omne per quod pervenitur ad illud Co. 5. 115. 100. But besides this every Sheriffe is enabled by his writ of assistance whereby there is commandement under the great seale to all Archbishops Dukes Earles Barons and all other the Kings subjects within the fame County to be aiding to him in whatsoever belongeth to his office c. 101. The Sheriffe if need require it or the Constable may take Posse Comitatus to execute the precept of a Iustice of peace 3. H. 7. 10. 13. H. 7. 19. Br. Trespasse 432. The Constable of a Towne upon a felony committed or upon any Affray or the like may take the aide of his neighbours or other persons being present to apprehend the Felons or to cause the peace to be kept and to carry the offendors before the Iu. of peace and if any refuse to aide the Constable in this case he is to be punished in the Sessions of the peace by Fyne and imprisonment 38. Ed. 3. 8. 102. One hath hurt another whereby he is in perill of death the Constable may take power or aide to arrest him c. 103. Every man may assemble his friends and neighbours to defend his person c. being in his house against violence c. but not to goe abroad with him in a Faire or market Advices to the Iustices of peace 104. I thought it not amisse here shortly to admonish the Iustices of peace of some few things for their better memory 1. First that they exercise not the office of a Iustice of peace before they have taken the oath of their office and the oath of Supremacy 2. That they execute not this their office in their owne case but to cause the offendour to bee convented before some other Iustice quia iniquum est aliquem sui rei esse judicem Co. 8. 18. And some late statutes have taken speciall care to prevent this as you may see by the statute of 10. Caroli ca. 23. in hibernia And yet if the Iustice shall deale in his owne case it seemeth good and justifiable in divers cases as when a Iu. of peace shal be assaulted or in the doing of his office especially shall be abused to his face and no other Iustice of peace present with him then he may commit such an offendor untill he shall finde sureties for the peace or good behaviour as the case shall require and the said Iustice in such case may himselfe binde the offendor and take his suretie but if any other Iustice of peace shall be present it were better to desire his aide 3. That they be carefull for the execution of the statute of Riots and if upon their enquiry of a Riot the truth cannot bee found by reason of any maintenance c. that they certifie the same within one moneth to the Lord Deputy and Counsell according to the statute of 13. H. 4. ca. 7. 4. That upon a forceible Entry they make no restitution without Enquiry 5. That they be circumspect in bayling of prisoners viz. that they neither deny it to such as are baileable nor yeeld it where it is not grantable 6. That all Recognisances taken by them bee certified at their next quarter Sessions or Gaole delivery according as the case shall require 7. Also that they doe Iustice and give remedy to every party grieved in any thing that lyeth within their power to heare determine or execute and that without respect of persons and according to the lawes and statutes of this Realme 8. Note that all these former matters are penall to the Iustices of peace if they shall offend in any of them and therefore it is likely they will be the more carefull therein But there are certaine other things principally tending to the publique good and fit to be commended to the care of the Iustices of peace in all which the Iustices of peace are to imploy also their speciall care and diligence and they are shortly these following 1. The abuses disorders in Ale-houses and Innes to bee reformed 2. High wayes and Bridges to be amended 3. Huy and Cry and fresh suit to be duly made and pursued after Rebels Robbers and other Felons and Traytors 4. Labourers sc
the Kings money shall not be bailed Westm. 1. ca. 15. 30. Persons committing perjury by his or their deposition in any Court of Record or Court Baron 28. El. ca. 1. in Ireland being thereof lawfully convicted shall have sixe moneths imprisonment without baile So of procurers of such perjury they being thereof lawfully convicted and not having to pay the penalty of the statute they shall have one yeares imprisonment without baile 31. Such as offend against the statute 2. Eli. ca. â— concerning uniformity of common prayer and service in the Church 2. El. ca. 2. in Ireland and be thereof lawfully convicted by verdict of 12. men or by their owne confession or by the notorious evidence of the fact they shall be committed without baile See the statute 2. El. 2. for in some cases the offendor shall suffer sixe moneths imprisonment in other cases one whole yeares imprisonment and in other cases imprisonment during life 32. Purveyor or other officer of any noble man c. taking any thing of any subject against his will â—3 H. 6. ca. 14. such offendors shall bee committed to prison without bayle untill they shall redeliver the goods so taken or the value thereof See ibid. 33. Riotters attainted of great Riots shall have one yeares imprisonment without baile 2 H. 5. ca. 7. and all persons convicted by the view of the Iu. or upon the enquiry or otherwise of any Riot shall bee committed untill they have paid their Fyne and shall not be bailed 34. Sheriffes not making their election of Knights for the Parliament in their full County betweene the houres of 8. and 11. in the forenoone 23. H. 6. ca. 15. or returning knights for the Parliament contrary to the statute and being of either of the said offences attainted before the Iustices of Assise they shall be imprisoned for one whole yeare without baile 35. The defendant in a suit for Tithes 33. H. 8. ca. 12. in Ireland that disobeyeth the Iudges sentence shall be committed without baile untill he shall find sufficient sureties by recognizance to obey and performe that sentence vid. tit Tithes 36. Persons committed for any Treason touching the King they are not baileable Westm 1. ca. 15. 37. Counterfeiters of money or of the Kings seale are not baileable Westm. 1. ca. 15. Br. Mainp 59. 33. H. 8. ca. 15. in Ireland 38. Vagabonds or Rogues committed according to the statute of 33. H. 8. ca. 15. are not to be bailed 39. Outlawed persons taken for the same are not baileable Westm 1. ca 15. 23. H. 6. ca. 10. 40. Falsifyers or counterfeiters of waights or measures after they be indicted thereof shall bee taken and imprisoned without baile untill they be acquitted or attainted and if they be attainted â—hey shall remaine in prison untill they have made Fyne and ransome according to the Iust discretion 9. H. 5. 8. Parl. 2. 41. Witches and Sorcerers being of any of the said offences lawfully convicted are not baileable 42. Taking of women unmarried and under the age of 16 yeares out of the possession of their parents or other person having lawfully the keeping of them 10. Caroli ca. 17. in Ireland and against their wils or contracting marriage with such a maid against the will of or unknowing of or to the Father of such a mayd if he be living or against the will c. of the mother having the custody and governance of such child The offendors in these two last cases being thereof lawfully convicted for the first is to have two yeares imprisonment and for the latter shall have five yeares imprisonment without baile c. Bridges Causeys Toghers and High-wayes CHAP. 6. Mag Chart. 15. P. tit Waies 1. 1. NO village or freemen by the common Law shall be compelled to make any bridge but such as by right they had wont to make and that they and their ancestors have used time out of mind to make the same F. Grants 94. 44. E. 3. 31. 21. E. 4. 46. or that they hold certaine lands to make the same for though a man of his owne accord hath made or amended a Bridge yet shall he not be thereto constrained at another time and yet if a man and his ancestors or a corporation c. have time out of minde used to doe such things although they did it of their owne free minde and accord and not of right yet such continuance shall conclude them and their heires and successors And so of high-wayes 21. Ed. 4. 46. P. Bridges 1. 2. He that hath his land adjoyning to such Bridge is not chargeable to make or repaire the Bridge except where they have made it by prescription 8. H. 7. fol. 5. b. Cromp. 186. b. 187. b. 3. By common right Bridges shall be amended by the whole County for that it is for their common good and ease and yet if any have fishings 37. Aff. pl. 10. per Greene. or other profit in that River they in reason and Law as it seemeth are chargeable and therefore the Iust of P. in good discretion may taxe such proportionably to their profit 4. Where men are charged by their Tenure or lands every owner or occupier of such lands are to be charged proportionably to their said lands 5. Such as are chargeable to repaire such Bridge may enter upon any other mans land or soyle adjoyning and may lay there stone Co. 11. 52. lime timber or other things necessary for the repairing and amending thereof and the owner of the lands shall have no action therefore for it is for the common profit c. 43. Ass 7. 6. If a man maketh a Bridge for easement to his Mill and that dee ayeth the party nor any other shall be charged to repaire this Cromp. 187. for it is no common passage 7. But now by a statute made in Anno. 10. Caroli ca. 26. It is enacted that aswell the Iustices of Assize in their severall circuits as also the Iustices of peace in every Shire of this Realme Franchise Citty or Burrough shal have power and authority to enquire heare and determine publiquely in the generall Assizes or Sessions of the peace respectively of all maner of annoynances of Bridges Causeys Toghers broken or decaied in the high waies to the damage of the Kings liege people And also of and concerning the new building erecting and making of new Bridges Causeys and Toghers broken or decayed in the high-wayes to the damage of the Kings liege people and also of and concerning the new building erecting making of new Bridges Causeys or Toghers in other places fit necessary for the fame and to make such processe and peines upon every presentment afore them respectively for the reformation of the same against such as ought to be charged for the making or amending of such Bridges Causeys and Toghers as the Kings Iustices of his Bench use commonly to doe or as it
Fuller Shereman and Dyer shall duely doe his labour in his occupation upon paine to yeeld to the party grieved in this behalfe his double damages 2. And that every Fuller Fuller in his Craft and occupation of fulling rowing or tazeyling of cloth shall exercise tazells and no Cardes deceiptfully empayring the same cloth upon paine to yeeld to the party grieved his double damages 3. And that every Iustice of peace for the time being of every County of this Realme throughout the same County out of Cities Burroughes and Townes where any Maior Maister Warden bailiffe or bailiffes is or be and every Maior where there is no maister and every maister where there is no Maior and every bailiffe or bailiffes where there is no Maior nor maister and every Portreve where no Maior maister bailiffe nor bailiffes is or be of every City Burgh and Towne within every such County aforesaid and every Constable of hundred where any Constable of hundred is out of every Citty Burgh and Towne where any Maior Maister Bailiffe or Bailiffes or portrives is or be And every Steward keeping or holding Wapentake or Leete of any person out of City Burgh or Towne where no Maior Maister bailiffe or bailiffes or portreves is or be shall have power and authority by this ordinance to heare and determine the Complaints of every such cloth-maker and labourer aswell for non payment of the said labourers wages as of the said forfaiture and damages by due examination of the parties in this behalfe thereupon for non payment of the said duties and forfaiture and for the said damages to commit the said offendors in this behalfe to the next gaole within the same County there to remaine till the said duties forfaitures and damages be duely paid to the said labourer or cloth-maker And also that every of the said Iustices of P. Maior Maister Warden bailiffe or bailiffes portreve and steward or Wapentake and Leete upon the information or complaint of any other person which is not grieved in this behalfe shall have power by the said authoritie within his jurisdiction to cause the party to come before him against whom such Information or complaint shall be made for offending this ordinance and to examine them in and upon the matter contained in the same information or complaint And if the party by examination or other due proofe be found guilty or defective that then the same party as often and for every time that he is so found guilty or defective shall forfeite to the King or to such person or persons which is or be intituled to have fines or amerciaments for offences done within there Iurisdiction three shillings and foure pence And that every of the said Iustices of peace and other officers aforesaid within their Iurisdiction upon every of the said Informations or complaints shall have full power to make like proces against the party upon whom any such Information or complaint as before is rehearsed shal be made to cause him personally to appeare before him thereupon to be examined as Iustices of peace have upon Information or complaint made to them for surety of the peace without any Fee or reward to be taken or had by any of the said Iustices or any other officer in this party for the execution of their offices in this behalfe Constables CHAP. 8. 1. EVery Iustice of peace may cause two Constables to be chosen in each hundred or barony And this is to be understood of the high Constables of hundreds and it is implyed of congruence that he sweare them 13. Ed. 1. ca. 6. and this seemeth to bee by vertue and force of the statute of Winchester made 13. Ed. 1. and of the first Assignavimus of the Commission of the peace 2. 13. Ed. 1. ca. 6. Note that these Constables of hundreds were first ordained by the said statute of Winchester tempore Ed. 1. And they were to make view of armour twice every yeare and to present before Iustices assigned defaults of Armour of Watches of high-waies and of Huy and Cry and also all such as lodged strangers for whom they would not answere 3. See stat 4. Ed. â— ca. 3. 10. Petie Constables in Townes and parishes were after devised for the aide of the Constables of the hundred viz. about the beginning of the raigne of K. E. 3. as appeareth by Master Lambert in his booke of the duties of Constables pag. 9. 4. The chusing and swearing of these petty Constables is reputed properly to belong to the Court Leet One Iustice yet we finde it usuall and warranted by common experience that every Iustice of Peace doth also sweare them 5. And here for the better chusing of these Constables you shall understand that the law requireth that every Constable be Idoneus homo Co. 8. 41. that is apt and fit for the execution of the said office and he is said in law to bee Idoneus who hath these three things honestie knowledge and abilitie 1. Honestie to execute his office truely without malice affection or partialitie 2. Knowledge to understand what he ought to doe 3. Ability aswell in substance or estate as in body that so he may intend and execute his office diligently and not through impotency of body or want to neglect the place 6. And if any shall be chosen Constable which is not thus inabled and qualified he may by Law be discharged of his said office and another fit man appointed in his place 7. Also by a statute made in Ireland in the fifth yeare of the Raigne of King Edward the fourth it is ordained that in every English Towne of this land that hath more then three houses holden by Tenants where no other president is be chosen by his neighbours or by the Lord of the same Towne one Constable to be president and governour of the same Towne Co. 8. 42. 5. Ed. 4. ca. 5. in Ireland in all things that pertaineth to the common rule of the same Towne as is in ordinance of night watch from Michaelmas to Easter yearely under paine of three pence every night and also to ordaine one paire of Buts for shooting within the Towne or well neare upon the Costs and labour of the said Towne under paine of two shillings from one moneth to other after the publication hereof till the Constable be made and the Buts also and that every man of the same Towne in such houre as the Constable or his Deputy of his neighbours will assigne that is betwixt threescore and sixteene yeares of age muster before the Constable or his deputy at the said Buts and shoot up and downe three times every feast day betwixt the first of March and the last day of Iuly under paine of one halfe penny for every day and that all these paines belevied of their goods or wages from moneth to moneth by the Constable to be spent in strengthning of the same Towne or otherwise in his default to be
Iudgement of death shall be given upon the offendor except he be saved by his booke 4. And yet if the goods stollen be to the value of ten shillings F. Cor. 451. if the Iury that passeth upon his arraignement shall finde that the goods did not exceed the value of xij d then that offence shall be taken but for Pety Larceny 5. Pety Larceny West 1. c. 15. Br. Cor. 84. 85. Pety Larceny is when the goods stollen doe not exceede the value of xij d and for this the offendor shall be imprisoned for some certaine time and after shall be whipped or otherwise punished by the discretion of the Iustices before whom he was arraigned but it is not felony of death 6. Yet may not the Iustice of peace before whom such an offendor shall be brought out of the Sessions punish by his discretion the said offendor for Pety Larceny and so let him goe but must commit him to prison or baile him to the intent he may come to his triall as in case of other felonies and if upon his triall the Iurie shall finde the goods stollen to exceede xij d in value the offendor shall have Iudgement to dye for the fault 7. Although Pety Larceny be not punishable by death 29. H. 8. 22. F. Coro 218. Br Cor. 2. 84. 85. 2â—6 yet it is a felonious taking for the indictment of Pety Larceny must be felonice cepit and he shall forfeite all his goods and Chattells for such a felony and there is no difference either in the nature of the offence or in the minde of the offendor but only in the value of the thing stollen which maketh the difference of punishment 8. If one shall steale goods to the value of 4. F. Coro 415. Stamf 24. Crom. 36. 2. d. at one time and vj.d. at another time and of iij. d at another time which together doe exceede the value of xij d and that these severall goods be all stollen from one and the same person then may they be put together in one Indictment and the offendor being thereupon arraigned and found guilty shall have judgement of death F. Coro 440. Stamf. 24. 1. 9. Againe if two or more together doe steale goods above the value of 12. d. this is felony of death in them all for the felony in them is severall though the stealing be joyntly done 10. In Larcenie two things must concurre scil to take and to carry away The manner or remove the thing taken with a purpose to steale the same for the indictment must be Cepit asportavit or cepit abduxit and yet in these words the letter is not so much to be insisted upon as the meaning and that for the better suppressing of offendours in this kinde For although by the Law in Maister Glanvils time à furto omnimodo excusatur qui initium habuerit suae detentionis per dominum illius rei yet at this day it may be felony though the offendour take not the thing but comes first unto it by delivery from the owners owne hand and so commeth lawfully to the possession As if a Taverner doe set a peece of plate before his guest to drinke in 13 Ed. 4 9. Stamf. 25. and the guest carrieth it away this is felony for the Taverner gave him no possession thereof but onely the use to drinke in it for the time Or if I deliver goods to a Carrier or other person and bargaine with him to carry them to a certaine place appointed if he carrieth them to the place and then convayeth them away fraudulently this is felony for the privity of bailement was determined when they came at the place appointed So if the Carrier shall take out parcell of the goods this is felony and likewise if the Carrier shall carry them to another place and there breaketh them up and converteth part or all to his owne use this is felony but if the Carrier shall sell or give away or otherwise imbezell the whole as he received them this is holden to be no felony because it was delivered him in the same kinde Stamf. 25. a. Cromp. 36. a. 11. And yet in this last case there is besides the delivery a bargaine and agreement to carry the goods and the delivery was only to that intent so that the property of those goods did alwayes remaine in the first owner But if A. lendeth his horse to B. being a stranger who rideth quite away with the horse this is no felony in B. by reason of the delivery And so did Sir Iohn Dodderidge Knight give direction at Cambridge Assises 1617. upon an Indictment of Felony preferred in such a case 12. If a Clothier shall deliver any Wooll or Yarne to his Carder Spinster or Weaver c. to dresse and they shall convay away imbezell or sell any part thereof this seemeth to be no felony by reason of the delivery 13. Ed 4. 9. 13. So if I deliver my goods to another to keepe and he fraudulently consumeth them or otherwise converteth them to his owne profit this is no felony because of the delivery 14. And so it seemeth if I deliver mony or goods to A. to deliver to B. and A. flyeth away with them consumeth them or converteth them to his owne use this is no felony by reason of the delivery 15. If a man delivers money to his servant to keepe Servants or plate to his Butler or vessell to his Cooke or horse to his horse keeper 13. E. 4. 10. 3. H. 7. 12. 21. H. 7. 15. or Sheepe to his Shepherd and such servant doth goe away with them this is felony by the common Law in that servant for these goods were alwayes in the master possession and kept and used by the servant to the masters behoofe But yet there was much difference of opinions herein 33. H. 8. ca. 5. in Ireland for the clearing whereof in some part a statute was in the time of King H. 8. made whereby it was provided that all and singular servants of the age of Eighteene yeares Cromp. 50. other than an Apprentice which must be understood of such as are bound by Indenture and by the name of an Apprentice to whom any money Apprentices and servants under the age of Eighteene shall be in case as they were before the making of this statute goods or Chattells c. by his or their master or mistresse shall be delivered to keepe of the value of xl.s. or above if such servant shall goe away with or shall imbezell or shall convert to his owne use any such money goods or Chattells of the said value to the intent to steale the same or to defraud his Master or Mistresse thereof it shall be felony but this must be prosecuted within one yeare after the offence 16. And now upon the construction of this stat diverse new questions and cases have since beene moved Dyer 5. As if a
and I doe not see in reason but that the former should also be accessary for by the money which is given for the stolne goods the felon is as much relieved in the one case as in the other and the cases as I conceive in 27. ass p. 69. 25. E. 3. fo 39. remembred by Maister Stamford fo 43. 69. are not contrary if they be duely considered for the reason of those bookes is because the indictment or appeale was but only for receiving the stolne goods without speaking of relieving the felon but if the Indictment had beene for relieving the felon the buying of the goods knowing them to be stolne would have beene good Evidence to maintaine the indictment Cromp. 4â— 30. A man buyeth stolne goods for 5. s. which are worth 20. s. this maketh the buyer an accessary by the opinion of Maister Crompton fo 43. for it may well appeare by the price that the seller came not truely by them and therefore it is safe to lay hold of such sellers as shall sell any thing at any great under value 31. Taking agâ—ine stolâ—e goods Br. Cor. 2â— A man pursueth and taketh a felon that hath stolne his goods and then taketh his goods againe and suffereth the Theife to escape he is no accessary thereby by some opinions for hee may in initio agere civiliter or criminaliter at his pleasure as Maister Bract. writeth Cromp. 37. 41. 42. but Maister Stamf. fo 40. saith If he takes his goods againe from the felon to favour him this is theft boot the punishment whereof in ancient time was of life and member but at this day by Maister Stamford fol. 40. It is but ransome and imprisonment Cromp. 41. P.R. 131. Br. Cor 121. 42. Ass p. â— Dalton pag. 262. The like seemeth to be if he takes his goods againe from the felon and then favoureth him and letteth him goe but if the party robbed take money c. of the thiefe to the end he shall favour him or shall not give Evidence against him whereby the thiefe escapeth now he is an accessary to the felony of his owne goods by good opinion though some other seeme to take this for theft boot and so to be punishable at this day only by ransome and imprisonment 32. If the party robbed or if he that shall have any goods stolne from him after complaint by him made of the felony to a Iustice of Peace or to the Constable shall then take his goods againe and will not prosecute this matter against the felon any further but will suffer him to escape after he was once so charged and perhaps arrested for the same this maketh him an accessary for that he did once agere criminaliter by complaint made to the officer against the felon and in such case the Iustice of Peace shall doe well either to commit or at least to binde over both the one and other to the next Goale delivery 33. But if upon Huy and Cry a man doe arrest a thiefe that hath stolne another mans goods 22. Ass 62. and doe then take the goods from the felon and so let him goe this maketh him an accessary to the felony and also a principall felon for the voluntary escape 34. Note in all cases of an accessary after the fact it is requisite that the fact Stamf. 287. to which he is an accessary be a felony at the very time in which he becommeth an accessary to it For if A. giveth a mortall wound to B. upon the first of March and C. knowing thereof receiveth c. A. 2. or 3. dayes together and letteth him goe and after B. dyeth of the wound within the yeare yet this receipt c. maketh C. no accessary because the principall fact was no felony at the time either of the receipt or of the letting him goe P. Trial. 2. 35. By the statute of 10. Caroli ca. 19. in Ireland accessaries may be to a felony done in another County Stamf. 41. fo 63. li. whereas before that statute the common law laid no hold of such accessaries for that these in another County upon the triall could not have conusance of the principall offence c. But now by the said statute there shall be a Certificate from the Custos Rotulorum of the County where the principall shall be attainted or convicted Stamf. 44â— 36. Note that if an offence bee made felony by statute although the same stat doth not expressely make mention of procurors counsellors abettors receivers consentors and aiders c. yet they shall be taken as accessaries within the compasse of the same statute even in the same manner as if it were felony at the common Law 37. A man may be an accessary to an accessary as if hee shall receive 26. Ass 52. F. Cor. 196. releive or comfort him who is accessary to a felon knowing the same P. Appeal â— Co 4. 43. 9. 117. 119. Plo. 98. 99. 38. Although the accessary shall bee punished and shall have judgement of life and member as well as the principall which did the felony yet the principall ought first to be attainted after verdict or after confession or by Utlary before any judgement can be given against the accessary and the acquittall of the principall is the acquittall of the accessary for ubi non est principalis non potest esse accessarius but yet the accessary shall bee attached and surely kept and shall be committed by the Iust of Peace c. untill the principall be attainted 39. And if the principall be attainted though erroniously that shall not availe the accessary but he must answer c. Co. 9. 68. b. 119 Co. 4. 43. 44. F. Cor. 166. 378. Vide Br. Coro 70. 71. 80. 83. 86. 132. 40. If the principall dye before he be attainted or if the principall be found not guilty by verdict or be found by verdict that hee slew the other in his owne defence or if after conviction and before judgement he hath his Clergie or getteth his pardon the Accessarie in all these cases shall be discharged but it is not safe for the Iustice of Peace to dischardge such an accessary out of Sessions Cromp 34. b 41. A man killeth another se defendendo or by misadventure and it is so found upon his triall the accessary shall be discharged for that in these cases the principall shall not have judgement of death Et omne accessar sequitur suum principale See Br. Forf 13. Certaine rules concerning felonies CHAP. 25. 1. IF a man committeth felony in the time of one King Rules concerning felony 1. E 6. Br. Cor. 178 he may be charged and arraigned for it after in the time of another King 2. If a man doe commit murder steale goods or doe any other felony in one County and then flyeth into another County 13. Ed. 4. 9. and is taken there and brought before a Iustice of
Peace there he shall be by the Iustice imprisoned in the gaole of the County where he is taken and after shall be removed by the Kings writ into the gaole of the County where he committed the felony but for those that do informe against such felons the said Iustice shall binde such Informers over to appeare and to give Evidence against such felons at the next generall gaole delivery to be holden in that County where the tryall of such murder or felony shall be whither also the said Iustice must certifie such information taken by him 3. If a man committeth a robbery or stealeth a horse 4 H. 7. 5. â—4 H 8. Br. Cor. 171. Co. 7. 2. beast or other goods in one County and doth carry leade or drive the goods into another County it is felony in every County whither he doth carry or drive those goods and the offendor may be indicted or appealed of felony or theft and be arraigned and have his judgement in any of those Counties but the offendor cannot be appealed or indicted of robbery but only in the County where the robbery was done for it is not robbery in any other County for Robbery must be done to the person of a man 4. If a felon doe steale another mans goods 11. E. 4. 3. 4. H. 7. 5. and after another stealeth the same from him the owner of the goods may charge the first or second felon at his choice 5. P.R. 130. Also if a man shall deliver cloth to a Taylor to make a garment if the cloth be stolne from the Taylor the offendor may be charged and indicted for stealing the same either at the owners suite or at the Taylors 6. Also an indictment may be Dyer 99. Quod bona Catalla cujusdam hominis ignoti felonice cepit and in such case any man may both informe the Court and by their direction may preferre an indictment against the felon and give Evidence to the Enquest therein And so if the owner be knowne and will not charge the felon therewith any other person especially after proclamation made in the Court that if any will enforme for the King Stamf. 163. he shall be heard may safely informe the Court preferre an indictment and give in Evidence for the King against the felon because it is for the K. advantage to have the forfeiture of the felons goods and in the two former cases if the Iu. of P. shall heare of any person that can informe any materiall thing against such a felon or against any felon the Iu. in his discretion may send for him take his information and may bind him to give evidence against such felon Dalton pag. 265. 7. Also if any robbery or Theft be committed and the party robbed or other owner of the goods will not charge the felon therewith yet every Iust of P. may cause such felon or any person suspected for such felony to be apprehended and may examine them thereof and also may send aswell for the party robbed c. as for all such other persons as can informe any thing materiall concerning the said felony and may take their informations upon oath and if upon such examination he shall finde cause the said Iustice may commit the offendors and binde over the informers 8. Note also for the better prevention and apprehending of felons that upon all homicides Huy Cry 3. E 1. c. 9. burglaries robberies and other felonies and when men are put in great danger Huy and Cry shall be levyed P. Fel. 38. Huy Cry 1. and every man shal I follow the Huy and Cry and whosoever doth not shall be attached to appeare before the Iu. of gaole delivery and any Iu. of P. may bind them over by the Commission of the peace 3. Ed. 1. c. 9. yea upon any felony committed all men generally shall be ready at the commandement of the Sheriffe or Constable and at the cry of the countrey to pursue and arrest felons upon paine to bee grievously fined 13. Ed. 1. c. 1. 2. 28 E. 3. c. 11. 9. And such Huy and Cry and pursuit shall bee made from towne to Towne and from Countrey to Countrey and shall be made by horsemen and footmen and in case of robbery if none of the felons be taken within Forty dayes after the felony committed 11. Caroli c. 13. in Ireland then the whole hundred where the robbery was done shall answere for the robbery done See Br. deâ— 104. and the damages but yet the inhabitants of any other hundred wherein negligence fault or defect of pursuit and fresh suite shall happen to be shall answere and satisfie the one moitie and halfe of all and every such summes of money and damages 3. H. 7. c. 1. Co. 7. 6. b. 10. And if a man be slaine in the day time in a Towne not walled and the murderer or manslayer escape the whole Towne shall be amerced for this escape But if it be in a City or Towne walled then if the murder or manslaughter were by day or by night they shall be amerced for the escape Fitz. Coron 238. 293. 302. Stamf. 33. l. 3. H. 7. 1. P. Coroners 13. 11. And if a man be slaine in the day time out of any Towne then the hundred shall be charged therewith and for the insufficiency of the hundred all the County shall be charged c. Stamford 34. f. yet see Dyer 210. b. that the towneship shall be amerced for the escape although the murder were committed in the fields of the Towne or in a lane c. and the Iust of P. are to inquire of such escapes and to certifie the same into the K. Bench. P. Iustices 19. 12. Also every man is a sufficient Bailiffe and officer to apprehend him that is pursued by Huy and Cry P.R. 156. and if he be taken with the thing supposed to be stolne though he neither be of evill fame nor a stranger yet every man may commit aswell such suspected person as also such goods to the Towne where they be apprehended to answere to the King according to the Law And the Constables of the Towne are to carry before some Iustice of peace aswell such prisoners as also the bringers that the Iustice may take there Information against such prisoner and may examine and commit such offendor or person so suspected 13. Dalton pag. 266. But if a man doe levy Huy and Cry upon another without cause both the one and the other shall be attached and carryed before a Iu. of P. to answere it as disturbers of the peace and to be bound to their good behaviour 14. Note also that the Kings officer may breake open any mans house to apprehend any felon 9. Ed. 4. 9. Co. 5. 92. or any person that is suspected of felony being in the said house 15. Watch. And for the better detecting and apprehending of such offendors in great Townes
148. Dyer 122. 9. H. 6. fo 19. 22. H. 6. fo 18. and also the Iustice may proceed to the restitution which the Complaynant shall demand if the force be found without examining the title and yet by Dyer fo 122. the Iustice may if he please examine the title and thereupon stay the awarding of restitution but if the force be apparant I conceive the safest way and most agreeable to the statute is to award restitution without examining the title 2. Now the defendant or party indicted for the stay of restitution may at the time of the restitution to be made pleade or alledge any of these things following 1. His quiet possession by three yeares together 2. He may deliver to the Iustice of peace or Court a Certiorari and this is a supersedeas to them 3. He may shew the insufficiency of the indictment if there be any Dalton p. 197. 4. He may pleade the insufficiency of any of the Iurors sc for not having Forty shillings land per annum And in this case Master Marrow is of opinion that the party shall have no restitution Three yeares possession 5. For the first there shall be no restitution awarded where the party indicted hath beene in quiet possession by the space of three whole yeares together next before the day of such indictment found if his estate be not ended Dalton pag. 197. 198. and this the party indicted may alledge to stay the restitution and the restitution upon this shall be stayed by the Iustice of peace untill it be tryed if the other party will deny or traverse the same Certiorari 6. Also if a man who hath made a forceible Entrie or deteiner be in doubt that he shall be indicted thereof before the Iustice of peace upon the statute of 8. Cromp. 164. H. 6. and that thereupon restitution will be awarded against him P. R. 7. he may have a writ of Certiorari out of the Kings Bench ready and when the bill of indictment is found he may presently deliver it to the Iustice of peace or Court and this is a Supersedeas to them for to stay the restitution for that upon this writ the said indictment shall be removed from them into the Kings Bench. And although the indictment be found after the teste of the Certiorari it is not materiall for they be both in the Kings Courts c. 6. H. 7. 16. 7. But if a Certiorari commeth to remove an indictment taken before the Iustice of peace in the Countrey and the party will not sue to remove it Cromp. 166. but suffereth it to lye still the Iustice of peace may proceed to grant restitution notwithstanding the writ as Hobert the Kings Atturney said in 6. H. 7. But Keble held opinion against him and it seemeth the Iustices of peace ought ex officio to send the indictment away because they are commanded so by the writ and this writ is a Supersedeas of it selfe to the Iustice of peace to stay their proceedings and if they shall proceed after it is erronious Br. Iudges 17. Cromp. 162. 8. After restitution made by the Iustices of peace if the other party doth remove the indictment by a Certiorari of a more eigne date then is in the indictment the Iustice of the Kings Bench may award restitution back againe for upon the matter the Iu. of peace had no power to make restitution for that the Certiorari hath relation from the date thereof 9. Ibid. After restitution granted from the Sessions and delivered to the Sheriffe the other party having a Certiorari delivereth it also to the Sheriffe after the Sessions the Sheriffe shall not surcease thereupon for he hath no authority to allow thereof but if the Certiorari were delivered to any Iustice of peace he may thereupon grant a Superdeas to the Sheriffe And if restitution were made by the Sheriffe before the said Superdeas came to his hands then the other party shall have restitution back againe in the Kings Bench upon the indictment removed thither 10. Traverse The tender of a traverse to an Indictment of forceible Entry upon the statute of 8. H. 6. is no Supersedeas but in discretion Dyer 122. so as the Iustices of peace or Court may grant or may stay the restitution at their discretion according as the truth of the right or title shall appeare to them and so is the use of the Kings Bench. 11. Or else the Iustices of peace before whom the indictment was found may after Traverse tendred certifie or deliver the indictment into the Kings Bench and so referre the further proceedings therein to them 12. But if the party indicted shall tender a Traverse presently Cromp. 66â— whereupon restitution is stayed and after he shall not pursue his Traverse with effect but discontinueth it and after doth tender another traverse upon restitution prayed at another time the Iustices of peace or Court shall doe well to proceed to grant restitution notwithstanding such traverse tendred 13. Cromp. 166. And it is the course of the Kings Bench that he that tendreth the traverse there upon such an Indictment shall beare all the charges of the triall and not the King nor he at whose suite the Indictment was found and the same reason seemeth upon an indictment traversed before Iustices of peace Games unlawfull and Idlers CHAP. 38. 1. Vide 12. R. 2. ca. 6. 11. H. 4. ca. 4. 17. E. 4. ca. 3. A Iustice of peace by the first Assignavimus of the Commission pro pace conservanda bono regimine populi and by the common Law may arrest and imprison all common gamesters Idlers and all such as be of ill fame and the keepers of such common gaming houses untill they shall finde shall finde sureties to leave of their gaming and keeping of gaming houses and to betake themselves to some honest labour or else to be of good behaviour at the discretion of the Iustice 2. Note that playing at Cards Dice and the like are not prohibited by the common lawes of this Realme except that one be deceived by false Dice or false Cards and then he that is deceived may have his action of the case for such deceipt neither are they malum in se or of their owne natures for then none might be tolerated or licensed to use them And yet good Divines doe hold diverse of these recreations to be altogether unlawfull as being Actions wherein we neither blesse God nor looke to receive a blessing from God nay such as we dare not pray to God for a blessing on them nor on our selves in the use thereof but especially on the Sabboth day all such recreations and Games are holden unlawfull for if lawfull works be forbidden on that day much more unlawfull sports yea such sports and games which otherwise and at other times are lawfull See Esay 58.13 Huy and Cry CHAP. 39. 1. EVery Iustice of peace
ca. 9. 20. That the Iustices of peace in every County in two of their Sessions to be holden betwixt the Feast of Easter and Saint Michael shall make proclamation by their discretion after the dearth of victuals how much every Mason Carpenter Tyler and other Craftesmen workemen and labourers by the day aswell in harvest as in other times of the yeare after their degree shall take by the day with meate and drinke or without meate and drinke betweene the two Sessions aforesaid notwithstanding the statute thereof heretofore made and that every man obey to such proclamations from time to time as a thing done by statute Anno 13. Ri. 2. cap. 8. vide 33. H. 8. cap. 9. in Ireland that these proclamations must be in the next Sessions after Easter and Michaelmas 21. That no Labourer be retained to worke by the weeke not that no Labourers Carpenters Masons Tilets Plaisterers Daubers Coverers of houses nor none other Labourers shall take any hire for the holy dayes nor for the Evens of Feasts where they doe not labour but till the houre of Noone but only for the halfe day upon the paine that such Labourer Carpenter Mason Tiler Plaisterer Dauber Coverer of houses or any other Labourer that taketh contrary to this statute shall pay to the King for every time that he doth so contrary 20. s. Anno 4. H. 4. ca. 14. 22. The statute of Labourers made at Canterbury and all other good statutes of Labourers made and not repealed be firmely holden and kept and put in due execution and moreover that the Iustices of peace have power to send their writs for such fugitive Laborers to every Sheriffe of the Realme of England and to make such processes as the statute of Anno 34. Ed. 3. cap. 10. requireth to bring them before them to answere to our soveraigne Lord the King and to the parties of the contempts and Trespasses made or done against the ordinances and statutes aforesaid in like manner as the Iustices have power to send to every Sheriffe for the Theeves before them indicted And also that all the statutes and ordinances of Labourers servants and artificers before this time made and not repealed be exemplified under the great Seale and sent to every Sheriffe of the Realme thereof to make Proclamation in full County and after this Proclamation so made that every Sheriffe shall cause the same Ex-emplification to him directed to be delivered to the Iustices of the peace in his County named in the Quorum or to one of them to remaine with such Iustices which be or shall be for the better putting of the aforesaid statutes and ordinances in due execution And also that the Iustices of peace from henceforth have power to examine aswell all manner of Labourers and servants and their masters as Artificers by their oathes of all things by them done contrary to the said ordinances and statutes and upon that to punish them upon their confession after the effect of the statutes and ordinances aforesaid as though they were convict by Inquest and that the Sheriffe in every Shire of the Realme shall doe well and duely in his office in this behalfe upon paine to lose and to forfeit to our Soveraigne Lord the King Twenty pounds Anno 2. H. 5. cap. 4. 23. If any servant of husbandrie purposing to depart from his Master at the end of his Terme at the midest of his Terme or otherwise make a Covenant before with another man to serve him for the next yeare if he be in such case as the law will compell him to serve that the said servant and he which so shall make covenant with him at the middest of the said Terme or before shall give warning to the master of the said servant of the said Covenant so newly made so that the same master may provide another servant against the end of his Terme and if any covenant with any such servant be otherwise made or such warning in manner and forme aforesaid not had that the same Covenant shall be voide and that the same servant be compelled to serve his first master for the next yeare except that a lawfull cause being of a latter time require the contrary and if any person refuse to serve or labour for the wages assessed by the Iustices of peace then every Iustice of peace in their Counties shall have power at every time to call them to examination of the same and such as they shall finde defective to commit to the gaole there to remaine till they have found sufficient surety to serve and labour in forme by the law required And if any servant Artificer workman or labourer doe contrary to the premisses or deny his service occupation of labour by reason of not giving of salarie or wages contrary to these statutes that hee shall lose to the partie that will sue in this behalfe 20. s. and that the said Iustices of peace shall have power to heare and determine all manner of offences done contrary to the forme of this statute aswell at the Kings suit as at the parties And that every of the Kings leige people may have the suit against every person that shall offend in any point against this statute and the processe shall be by Attachment Capias and Exigent and that the Iustices of peace shall assesse no fyne upon any which shall be convict before them of any thing done to the contrary to any statute of Labourers or Artificers or for this cause to put him in the good grace of out Soveraigne Lord the King under three shillings foure pence And also that the Iustices of peace thorow the Realme two times every yeare shall doe openly to be proclaimed in their Sessions all the statutes of Labourers Artificers Hostlers Victualers servants and Vagabonds before this time made and not revoked with this statute Also that by colour of the Tenure of lesse lands then the husbandry of the same shall suffice to the continuall occupation of one man no man shall be excused to serve by they yeare upon the paine to be justified as a Vagabond also that Iustices of peace shall have power to take all servants retained with any person by colour of Husbandrie and not duely occupied about the same which servants ought by the law to be servants of Husbandrie to such as shall require their service and to justifie them in every point as the same Iustices have power to justifie Vagabonds 23. H. 6. ca. 13. 24. And now because the rating and assessing of the wages of Labourers Artificers and Servants by force of an Act of Parliament made in Ireland in Anno 33. H. 8. cap. 9. 33. H. 8. ca. 9. in Ireland is to be done by the Iustices of peace so as by this statute all the former statutes are altered in that particular point of wages only It will not be amisse to recite the statute verbatim which is as followeth 25. Forasmuch as prices of victuals cloth and other necessaries
for Labourers Servants at Husbandry and Artificers yearely change aswell sometime by reason of death and scarcenesse of corne and victuall as otherwise so that hard it is to limit in certaine what wages Servants at Husbandry should take by the yeare and other Artificers and Labourers by the day by reason whereof they now aske and take unreasonable wages within the land of Ireland For reformation whereof be it enacted by authority of this present Parliament that the Iustice of peace in every County within this land of Ireland yearely in their Sessions to be holden within one moneth next after the Feast of Easter and one moneth next after the Feast of Saint Michael the Archangell shall make Proclamations by their discretion having respect to such prices as victuals cloth and other necessaries then shall be at how much every Mason Carpenter Sclauter and every other Artificer and Labourer shall take by the day aswell in harvest season as any other time of the yeare with meate and drinke and how much without meate and drinke betwixt both the said Sessions And also at the Sessions to be holden next after the Feast of Easter how much every servant at Husbandry shall take by the yeare following with meate and drinke and that every of them shall obey such Proclamations from time to time as a thing made and established by Act of Parliament for a law in that behalfe upon paine of forfeiture every one of the said Carpenters Sclauters Artificers Labourers and Servants that shall take any thing contrary to the said Proclamation or Proclamations the thing so taken and imprisonment of their bodyes by the discretion of the said Iustices and that Iustices of peace at any Sessions shall enquire heare and determine the same offences and thalffendell of the said forfeiture to be to the Kings highnesse and the other halfe to him or them that shall give information of the same forfeiture and that all and every Act before this time made concerning the limitation of wages for the said Servants Artificers and Labourers be in that point only voide and of none effect within this land and this Act to endure till the next Parliament within this land to be holden 11. Eliz. ca. 5. in Ireland 26. Which statute by another Act of Parliament made in Ireland in Anno 11. Eliz. cap. 5. is made perpetuall 27. And having now set forth the statutes concerning Labourers Artificers and Servants it will be necessary for the better information of the Iustices of peace to make some exposition of the said statute of 23. Ed. 3. which is the ground of all the rest which I shall briefely doe in these eight particulars following 1. First what the common Law was concerning Labourers Artificers and Servants before the said statute 2. Secondly who are compellable to labour by the said statute of 23. Ed. 3. 3. What is a good retainer within that statute and what not 4. What be good causes for a servant to depart from his service within his Terme and what not 5. How and in what manner the master may discharge the servant apprentice or other Artificer of his service 6. Sixtly who may lawfully take a servant out of the service of his master with whom he is retained without the danger of the said statute 7. Seventhly In what cases a man may receive or retaine a servant that is formerly retained by another 8. And lastly who shall in Law be taken to be a servant within the meaning of the said statute of 23. Ed. 3. The common Law before the statutes 28. For the First by the common Law before the said statutes a Iustice of peace by the first Assignavimus of the Commission pro bono regimine might commit to prison all Idle wanderers which were able to worke and would not which had no meanes or livelyhood of their owne to remaine in prison untill they should finde surety either to betake themselves to some honest labour or else to be bound to their good behaviour and this is agreeable to the Law of God as appeares in the second Epistle of Saint Paul to the Thessalonians the third Chapter where Saint Paul giveth a commandement and a precept that if any would not worke he should not eate that is he should not eate the fruite of other mens labours but should worke and eate his owne bread and it is plaine and manifest in the kingdome of Ireland that Idlenesse hath beene the chiefe occasion of many rebellions and yet is a great occasion of the poverty of that kingdome and for the better suppressing of all such Idle living diverse good Lawes and statutes have beene enacted and made in that kingdome as namely in Anno. 25. H. 6. ca. 7. It was enacted that the Sonnes of Husbandmen and Labourers should be Labourers and travellers upon the ground as they were in old time and in all other workes and labours lawfull and honest according to their state and if it fortune that any such sonne of an Husbandman or of a Labourer doe the contrary and thereof be lawfully convicted before any Iudge of the King or Iudge of Franchise that he shall have the imprisonment of one yeare and over that he shall make fyne to the King or to the Lord of the Franchise according to the discretion of the Iudge before whom he is convicted 29. 11. Caroli c. 16. And by another staâ—ute lately made in Ireland in the eleventh yeare of the Kings Majestie that now is It is enacted that if any person or persons that hath no meanes of ability of his owne or sufficient meanes of support from his parents and kindred that shall walke up and downe the Countrey with their Fosterers or kindred and retinue with one or more Greyhound or Greyhounds or otherwise or that shall casher lodge or sesse themselves their followers their horses or their Greyhounds upon the Inhabitants of the Countrey or shall directly or indirectly exact meat drinke or money from them or shall crave any helpes in such sort as the poore people dare not deny the same for feare of some scandalous Rime or song to be made upon them or some worse inconvenience to be done them that it shall bee lawfull for every Iustice of peace of each County within the Realme of Ireland and for the Iustices of Assise in their severall Circuits to apprehend or cause to be apprehended all such person or persons and him or them to bind to their loyaltie and allegeance or allegeances or to the good behaviour as in the discretion of such Iustices shall seeme meete and to commit the said persons to the common gaole of the said County untill he or they shall finde bonds by recognisance as aforesaid with very good sureties which the Iustice of peace shall returne all and every such Bonds or Recognisances so by him to be taken at the next generall Sessions of the peace for the said County where the same shall be taken and all
be compelled to goe to the hundred where he was borne or last dwelled for the space of three yeeres within such time as shall be limited to him by one of the Iustices of peace Mayors sheriffes bailiffes or other officers where such deliverance shall be had And it is enacted that every such person so delivered shall have a letter made to him by the Clarke of the peace of the shire within the which he was delivered if he be delivered within the shire and if he bee delivered within any Towne Citie borough corporate then he to have a letter of the common Clerke of every such City borough or towne corporate where he is delivered every such letter witnessing the day of his deliverance and the place where he was delivered and before whom and the time appointed when he shall begge for his Fees and the place to the which he shall be assigned to repaire unto in case he can get no master to fall to worke where he was delivered and to every such letter the gaoler or keeper of the prison out of which the person shall be delivered shall put the seale limitted to be made as is aforesaid for the said prison and that every such letter shall be made in this wise following Dublin ss the 20. day of Iuly Anno regni regis Caroli I. S. was delivered for felony our of the gaole of D. in the said County at the Sessions holden afore A.B. and his fellowes at Sale the day and yeare aforesaid and is allowed to begge for his Fees by the space of six weekes and in case he can get no master to worke with in the said terme then he is assigned to goe directly to D. in the county of Meath wherein he saith he was borne or last dwelled by the space of three yeares and he is allowed 14. dayes next after the six weeks for his passage thither or such number of daies as to him shall bee limited by the discretion of the maker of the said letter In witnesse whereof the seale of the prison from the which hee was delivered thereunto is set and in such shires where no gaole is the sheriffe therof for the time being shall cause a seale to be engraved with the name of the shire and shall order and use the same seale to and for such persons so delivered as is aforesaid after like maner and forme as the Gaoler and keeper of the gaole is limitted and appointed to doe by this Act. And it is also enacted that every Clerke of the peace of the Shire within the which such person shall be delivered and every common Clerke of every Citie borough or towne corporate within the which any such person shall bee delivered shall make for every such person as shall be so delivered where they be such officers the said letter in forme abovesaid without any Fee taking for the same and shall deliver every such letter to the Gaoler or keeper of the prison from the which such person shall be delivered and if there be no Gaole there then to the Sheriffe of the shire where such deliverance shall be had within one day next after the end of the Sessions where any such deliverance is had upon paine to loose and forfeit for the default of every letter 12. d. to the Kings Majestie and that the Gaoler or Keeper of the prison from the which the person shall be so delivered and in case there be no Gaole then the Sheriffe of the shire where any such deliverance shall be had shall not suffer any such person to goe abroad to begge for his fees nor depart out of prison except it be to service or labour unlesse the said Gaoler or sheriffe first deliver to the said person the said letter containing his name sealed with the seale of the prison from the which he shall be delivered or else with the seale engraved with the name of the shire if there be no prison upon paine for every default to loose 12. d. to the Kings highnesse And it is enacted that if any person or persons so being delivered out of prison at any time after the said feast doe begge not having the letter aforesaid sealed in forme abovesaid or begge contrary to the tennor of the said letter that then he shall be taken ordered and whipped in every behalfe like as is above appointed for strong beggers and that to bee done and executed by such as be above limitted to doe the same upon strong beggers and in such wife and upon such paine as is above limitted for non execution of the punishment of strong beggers provided alway that it be lawfull to every person and persons being bounden by reason of any foundation or ordinance to give or distribute any money in Almes and also to every person and persons at common doles used at burials or obytes to give and dispose in Almes any money to every person and persons commīng to such Almes or Doles after like forme and manner as they have beene accustomed to doe in that behalfe before the making of this Act without any danger or penaltie of this statute any thing contained in this present statute to the contrary hereof notwithstanding provided also that it be lawfull to all masters and Governours of hospitals to lodge and harbour any person or persons of charitie or Almes according to the foundation of such hospitals and to give money in Almes in as large manner and forme as they are bounden or owen to doe any thing in this statute to the contrary hereof notwithstanding And lastly in anno 11. Caroli ca. 4. in Ireland it is ordeined for the better suppressing of Rogues Vagabonds and other idle and disorderly persons that before the Feast of Saint Michael the Archangell which shall be in the yeare of our Lord God one thousand six hundred thirty and six there shall be erected built or otherwise provided within every County of this realme of Ireland one or more fit and convenient house or houses of correction with convenient backside thereunto adjoyning together with Mils working cards and other necessary implements to set the said Rogues and other idle and disordered persons on worke the same houses to be built erected or provided in some convenient place or Towne in every County which houses shall be purchased conveyed or assured unto such person or persons as by the Iustices of peace or the more part of them in their quarter Sessions of the peace to be holden within every county of this Realme of Ireland shall be thought fit upon trust to the intent that the same shall be used and imployed for the keeping correcting and setting to worke of the said Rogues Vagabonds sturdie beggers and other idle persons And it is further enacted by the authoritie aforesaid that if the said house and houses respectively so to be erected purchased or provided shall not be erected built or otherwise provided before the said feast of Saint Michael that then every Iustice
Ed. 2. P. Leete 1. 20. All these former offendors and the like are evill members in the common wealth and such their demeanor and living is greatly to be suspected and besides doe seeme to be more properly said against the peace of the land then Avowtrey in the case before 1. H. 7. 7. and therefore it seemeth reasonable just and expedient that the Iustices of peace upon their discretion should convent such persons before them and their courses of life and if they cannot yeild a good reason and accompt of such their courses then to bind them to their good behaviour 21. Also the good behaviour seemeth grantable against such as shall make false outcries or shall raise Huy and Cryes without cause for these are disturbances of the peace Cromp. 179. 22. If two men doe levie Huy and Cry one upon another without cause both of them may be attached and bound over as disturbers of the peace P. R. 156. 23. Also Cheators and Cozoners may be bound to the good behaviour See Co. 5. 125. P. R. 12. 24. Libellers it seemeth may also be bound to their good behaviour as disturbers of the peace whether they be the contrivers the procurers or the publishers of the libell for such libelling and defamation tendeth to the raising of quarrels and effusion of blood and are specially occasions and meanes tending and inciting greatly to the breach of the peace 25. Also it seemeth grantable against unlawfull hunters in parks after their examination taken vide antea tit Hunting 26. Also it shall be granted against him that shall abuse a Iustice of peace Constable or other officer of the peace in executing of their office 9. El. 43. 27. A Iustice of peace seeth a man breake the peace sc to make an assault or affray upon A. and he chargeth him to keepe the peace and the other answereth that he will not the Iustice of peace may bind him to the good behaviour See Exod. 22.28 28. For if as one saith contempt or contumelie used to the person of a mans better neither policie for example nor religion for peace may tolerate much lesse to use contempt towards or to abuse such as are in authority especially when they are in executing their office 29. Nay it seemeth that he which shall use words of contempt or contra bonos more 's against a Iustice of peace though it be not at such time as he is executing his office yet hee shall be bound to his good behaviour 30. If a Citizen or free man of a Citty Co. 11. 98. or Towne corporate shall use words of contempt or contra bonos more 's against the chiefe officer of the City or Towne or his brethren they are good causes to commit him to prison untill he shall finde sureties for his good behaviour for obedience and reverence ought to be yeelded to the magistrate for that they derive their authority from the King 31. Also he that shall abuse a Iustice of peace his warrant may be bound to his good behaviour 32. A man complaineth of a Riot or a forceible Entry so that the Iustices of peace are assembled to enquire therof and then the party that complained will not prosecute the matter it seemeth the said Iustices of peace may bind him to his good behaviour for his deluding them 33. And so of such as shall charge another with felonie before a Iust of Peace and yet will not give Evidence c. 34. A. is bound to keepe the peace against B. only Cromp. 134. and getteth a supersedeas and after B. releaseth him after A. is arrested for suretie for the peace at another mans suit and sheweth this first supersedeas it seemeth he shall be bound to his good behaviour for this deceit 35. He that hath a pardon for any felony 10. Ed 3. P. pardon 5. shall finde surety for his good behaviour but he shall bee bound before the Sheriffe and Coroners who shall returne the same into the Chancerie 36. Also he that is acquitted of felonie if he be of evill fame or of evill behaviour it seemeth the Iustices of peace upon their discretion may bind him to his good behaviour 37. The forme of a warrant for the good behaviour vide postea tit Warrants 38. The forme of the Recog for the good behaviour vide postea tit Recognisance 39. Whether the suretie of the good behaviour taken upon complaint may be released by any speciall person some do doubt it Release Lamb. 126. because it seemeth more popular then the suretie of the peace yet others doe hold that it may be released either by the Iustice of peace himselfe that tooke it in discretion P.R. 2â— or by the party upon whose complaint it was granted even as that for the peace may 40. It seemeth also a Supersedeas Supersedeas of the good behaviour may bee granted by the Iustices of peace as well as for the peace mutatis mutandis upon good sureties taken by the said Iustices of the party to be of the good behaviour Cromp. 237. 41. Cromp. 146. If a man be bound to the good behaviour before Iustices of peace and to appeare at the next Assises or Sessions yet the party bound may by a Certiorari Certiorari remove the Recognisance into the Chancerie or Kings Bench before the day and then he shall not need to appeare at the Assises or Sessions for they have no record whereupon he may be called there Swearing and Cursing CHAP. 64. 1. FOrasmuch as all prophane swearing and cursing is forbidden by the Word of God 10. Caroli ca. 1. in Ireland it is enacted by Parliament in anno 10. Caroli ca. 1. that no person or persons shall prophanely sweare or curse and that every person or persons that shall at any time or times offend herein either in the hearing of a Iustice of peace bailiffe or any other head officer of any Citty or Towne corporate where such offence is or shall be committed or shall be thereof convicted by the oathes of two witnesses or by confession of the party before any Iustice of Peace of the County or head officer or Iustice of Peace in the Citty or towne corporate where such offence is or shall be committed to which end every Iustice of peace and every such head officer have power by that Act to minister the same oath that then every such offendour shall for every time so offending forfeit and pay to the use of the poore of that parish where the same offence is or shall bee committed the summe of Twelve pence and it shall also be lawfull for the Constables and Church-wardens or any one of them by warrant from such Iustice of peace or head officer to levie the same summe or summes of money by distresse and sale of the offendours goods rendring to the party the overplus and in defect of such distresse the offendor if he or she be above the age of
common tyle or gutter tyle shall make it good seasonable sufficient and throughly whited and anealed and that the ground whereof any such tyle shall be made shall be digged and cast up before the first day of November next before that they shall be made and that the same earth be stirred and turned before the first day of February then next following and not wrought before the first of March then next following and that the same ground before it be put to making of tyle be truely wrought and tryed of stones and also that the vaines called malyne or marle and chalke lying commonly in the ground neere to the earth convenient to make tyle after the digging of the said ground whereof any such tyle shall be made shall be well and truely severed and cast from the earth whereof any such tyle shall be made and that every such plaine tyle so to be made shall containe in length ten Inches and a halfe Plaine Tyle Length Bredth and in breadth six Inches and a quarter and in thicknesse halfe an Inch and halfe a quarter at the least and that every such Rooofe tyle Roofe Tyle or Crest tyle so to be made shall containe in length thirteene Inches and the thicknesse of halfe an Inch and halfe a quarter at the least with convenient deepenesse accordingly and that every gutter tyle and corner tyle to be made shall containe in length ten Inches and a halfe with convenient thicknesse breadth and deepenesse accordingly and if any person or persons set to sale to any person or persons any such tyle above specified made or to be made against the said ordinance then the seller thereof shall forfeite to the buyer of the same the double value of the same tyle Forf double value fyne and besides that shall make fyne and ransome to the King at his will and that every person that feeleth himselfe grieved and will sue in this behalfe shall have an action of debt against the offendors wherein shall be made and had like processe recovery and execution as is or may be in any other action of debt pursued at the common Law and that the plaintiffe in every such action if it be found with him shall recover against the defendant in the same action his reasonable costs Costs and expences of his suit and that the defendant in any such action shall not be admitted to wage his law or to have any essoyne or protection allowed nor no advantage by forcing Any Iustice of Peace by Essoyne or distresse And also that the Iustices for the time being within any County of this Realme and every of them shall have full power to enquire heare and determine Enquire heare and determine by their discretions aswell by examination or otherwise the defaults offences and trespasses which shall happen to bee done against this ordinance aswell at the Kings suit as at the parties that shall feele themselves grieved in that behalfe and if it be found or may appeare to the Iustices of peace or any of them by examination or otherwise by their discretion that any person or persons have offended contrary to this ordinance that then the same Iustices before whom it shall bee found or appeare shall assesse upon the offendor in this behalfe no lesse fine Fine then for every thousand of plain Tyle set to sale contrary to this ordinance five shillings and for every hundred of Roofe Tyle six shillings eight pence and for every hundred of Corner Tyle or gutter Tyle two shillings sold contrary to this ordinance and if lesse be put to sale that lesse fine be made after the rate of the same by the discretion of the said Iustices of peace or any of them and that the same Iustices shall have full power to call before them or any of them at any time and place requisite such and so many persons as by their discretion have or shall have best experience and knowledge in the occupation of making of Tyle to search and examine Examine the digging casting turning parting making whiting and anealing aforesaid and that the same person or persons which so shall be assigned searchers shall have full power to make such search Search and that no person put no such Tyle to sale before that it be searched by the said Searchers upon paine of forfeiture Forfeiture of the said Tyle and if the same Searchers or any of them doe finde that any person or persons exercising the making of Tyles doe offend contrary to this ordinance that then the same Searchers shall present such defaults before the Iustices of peace at their next Sessions In. of peace Sessions And that every such presentment be as strong and effectuall in Law as the presentment of twelve men and that such Searchers so to be ordained assigned and deputed shall have of every such Tylemaker for his labour of the said search for every thousand plaine Tyle 2.d for every thousand Roofe Tyle ob and every hundred Corner Tyle and gutter Tyle a farthing And that the same Searchers shall doe and execute their effectuall devoir and diligence in this behalfe according to this ordinance upon paine of forfeiture to our Soveraigne Lord the King for every default in this behalfe Ten shillings Forf Iu. of peace and that the Iustices of peace shall have power to examine enquire and determine the default of such Searchers in the premisses in like forme as above is ordained for the default of Tile-makers Anno 17. Ed. 4. cap. 4. Tythes CHAP. 68. 1. IF sentence definitive be given for Tithes by any Ecclesiasticall Iudge 33. H. 8. ca. 12. and the party against whom such sentence is given shall refuse to performe the same then upon Certificate thereof made by the same Iudge that gave the sentence two Iustices of the peace whereof one to be of the Quorum may cause him to bee attached and committed to Ward there to remaine without baile or mainprise untill he finde sufficient sureties before the said Iustices by Recognisance or otherwise to the King to performe the said definitive sentence and Iudgement as appeareth by a statute made in Ireland in Anno 33. H. 8. ca. 12. Watch. CHAP. 69. 1. EVery Iustice of peace may cause night watch to be duely kept for the arresting of persons suspected and night-walkers bee they strangers or others that be of evill fame or behaviour and this they may doe by force of the first Assignavimus of the Commission and of the statute of Winchester and by the said statute this Watch is to be kept yearely from the Feast of the Ascention untill Michaelmas in every Towne and shall continue all the night scil from the Sun-setting to the Sun-rising and by another statute made in anno 5. E. 4. ca. 5. in Ireland the Watch is to bee kept in every Towne from Michaelmas untill Easter so as by both these statutes watch is to be kept all
or in executing his precepts or their offices and such as shall assist them and except it be upon Cry or Proclamation made for Armes to keepe the peace and that in places where such Acts doe happen be so hardy to come before the Kings Iustices or other his Ministers doing their offices with force and Armes nor bring any force in Affray of the countrey 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 any place elsewhere upon paine to forfeit his armour to the King and his bodie to imprison at the Kings pleasure 2. Ed. 3. cap. 3. 40. Upon this statute he that is put out or holden out of his land with force useth to have at this day a writ directed out of the Chancerie either to the Sheriffe only as Master Fitzh in his Na. Br. fol. 149. rehearseth it for I finde it not in the Register of writs or else custodibus pacis ac vicecomiti eorum cuilibet as the common manner is commanding that Proclamation be made upon the statute and that if any be afterwards found offending against the same they shall be committed to prison there to remaine untill some other commandement be given concerning them and that their armour and weapon shall be prised and the same answered to the use of the Kings Majestie 41. But forasmuch as that Iustice of peace to whom this writ shall be delivered is to make execution of the same as a minister only and is to certifie his doing therein I thinke good to lend these few helpes towards it 42. At his comming to the place where the force is supposed by this writ he may cause three O yes for silence to be made with this or such another Proclamation 43. The Kings Majesties Iustice of his peace straightly chargeth and in his Majâ—sties name commandeth all and every person to keepe silence whilest his Majesties writ upon the statute made at North-hampton in the second yeare of King Edward the third his noble Progenitor delivered to the said Iustice be read and Proclamation be made thereupon accordingly 44. Then may he read the writ or declare the effect thereof in English 45. After that let three other O yes be made and thereupon may this Proclamation follow 46. His Majesties said Iustice doth in his Highnesse name and by vertue of his said writ straightly charge and command that no manner of person of what estate degree or condition soever now being within the house of B. c. named in the said writ shall go armed nor keepe force of armour or weapon nor doe any thing there or elsewhere in disturbance of his Majesties peace or in offence of the said statute upon the paines of loosing his said armour and weapon and of imprisoning his body at his Majesties pleasure God save the King 47. This done the Iustice may enter and search whether there be any force of armour or weapon worne or borne against this Proclamation or otherwise he may enquire thereof by a Iury for so the writ it selfe doth warrant him to doe and if any such be found hee ought to imprison the offendors and to seise and apprise the Armour and weapon so found with them but if upon the Proclamation made they doe depart in peaceable manner then hath hee no warrant by the writ to commit them to prison 48. But now let me shew him a forme of Certificate or returne of this writ into the Chancery and then make an end 49. Upon the back of the writ these words may be endorced viz. 50. Executio istius brevis patet in quadam scedula eidem brevi consuta The scedule may be thus 51. Ego Iohannes Twysden armiger unus custodum pacis Domini Regis in Com. Dublin certifico in Cancellariam dicti Domini Regis quod virtute istius brevis mihi primo deliberati decimo die Aprilis Anno c. publicè proclamari ex parte dicti Domini Regis feci apud B. Cujus in dicto brevi fit mentio prout in dicto brevi precipitur quod quidem A. D.E. de F. in Com. praedict Labourers predictam Proclamationem parvi pendentes post Proclamationem predictam ibidem sic factam armati iverunt as armatam potentiam ibidem duxerunt scilicet duas galeas unum arcum et decem sagittas duos gladios et totidem pugiones in perturbationem pacis dicti Domini Regis ac terrorem populi sui necnon in contemp statut in dicto brevi specificati manifestum Ac proinde dict A.C. et D.E. unacum armaturis suis predict arrestavi ac seisivi et eorum corpora ad proximam prisonam dicti Domini Regis in Com. pred duci feci ibidem moratus donec aliud à dicto Domino Rege pro ipsorum deliberatione habuero in mandatis armaturas etiam eorum predictorum appretiari feci per A.B.C.D. et E.F. de B. predict Yeomen ad hoc juratos Qui dicunt super sacramentum suum pred quod predictae duae galea valent decem solid et quod dict arcus et decem sagitti valent sex sol et quod gladij predicti valent viginti sol et quod dicti pugiones valent quinque solid et sic quod armatura pred valet in toto quadraginta et unum solid de quibus paratus sum respondere secundum tenorem dicti brevis In cujus rei testimonium huic presenti certificationi mea sigillum meum apposui dat apud B. pred die et anno supradictis 52. By this you have seene what one Iustice of the peace ought to doe in the execution of this statute as a Minister and by the same you may also see what he may doe therein of himselfe ex officio as a Iudge and without any writ brought unto him 53. For not onely by the plaine words of the statute of Northhampton the wardens of the peace have power within their wards and are commanded to execute this Act upon a paine but also by good implication in the Commission it selfe every Warden of the peace hath the statute of Northhampton committed to his charge so that both in the matter and manner the doing is all one saving that if he doe it as a Iudge he needeth not to make any Proclamation the statute being a prohibition in it selfe nor yet to send any certificate into the Chancery but onely to make his owne Record of that which he shall doe in this behalfe and thereout to send an estreate into the Exchequer that the King may be answered of the armour or of the value thereof 54. And here perhaps the redemption of the imprisonment may be at the discretion of the same Iustice even as inâ—â—â— statutes of 15. R. 2. and 8. H. 6. it seemeth to be but therein my advâ— shall be the same that I gave them before Adjoyning this that in 〈◊〉 execution of this statute of Northhampton the
command you that you together with the petty Constables of the severall Townes Parishes and Hamlets within your Barony taking sufficient assistance out of the said Townes doe make a generall privy search within every of the said severall Townes Parishes and Hamlets upon _____ at night next comming for the finding out and apprehending of all Rogues Vagabonds and wandring idle persons in or about their said severall Townes and that such as shall be found and apprehended you doe cause them to be punished in every severall Towne or Parish where they shal be so apprehended by the petty Constables of every severall Parish respectively and by them also further to be conveyed according to the statute And if any of the said Rogues shall appeare to be dangerous or incorrigible that then you cause such to be brought before me or any other of his Majesties Iustices of peace to be further dealt withall according to the statute in such cases provided dated c. Afterwards any one of these Iustices may take the examination of or proofe against such dangerous Rogues finding cause may then commit such Rogues to the gaole and from thence he may by two Iustices of peace be sent to the house of correction A warrant for a fugitive servant Iohn Cuts Knight one of the Iustices of the peace of our soveraigne Lord the King c. To the Baliffes of the Barony of C. and to T.H. Constable of M. in the County of Dublin Dublin greeting Whereas E. L. hath beene retained to serve I. T. of M. aforesaid according to the forme and effect of a statute made for servants without just cause or licence of the said I.T. hath departed from his service Therefore on the behalfe of our soveraigne Lord the King I charge and command you and every of you that immediately after sight hereof you cause the said E.L. to be delivered to his said master to serve him and if he shall refuse so to doe that then you cause him to be convayed to his Majesties gaole of the said County of Dublin there to remaine untill he shall doe the same So that you may have him before me and the rest of my fellow Iustices at the next Sessions of the peace to be holden for the said County to receive such punishment as shall be then and there inflicted upon him sealed with my seale _____ dated c. Or thus in Latine Iohannes Cutts Miles unus Iusticiar Domini Regis c. Com. Dublin Ballivis Baroniae de C. et T.H. Constabular de M. in comitatu praed salut Quia E.L. retentus in servic I.T. de M. predict sibi serviend secundum formam et effectum statuti de servientibus edit à servitio pred I.T. sine causa rationabili et licentia ipsius I. T. recessit ut dicitur ideo ex parte Domini Regis vobis et cuilibet vestrum praecipio quod praef E.L. ad praefat I.T. magistrum suum deserviend deliberar faciat West â—78 Et si hoc recusaver tunc eum gaolae Com. praedict duci faciatis quousque c. Ita quod eum habeatis coram me et socijs meis Iustic dicti Dom. Regis in Com. praed ad prox sess pacis ibid. tenend ad faciend et recipiend ea quae ei tunc et ibid. in hac parte objicientur Sigill meo sigillat dat apud Another for the same Simon Steward Knight one of the Iustices of the peace of our soveraigne Lord the King c. To the Sheriffe of the County of Dublin Dublin and also to I.B. Constable of the Towne of B. and to R.N. Bailiffe Itinerant in the same County and to every of them greeting On the behalfe of our soveraigne Lord the King I command you and every of you that you or one of you attach the bodie of W.R. of B. aforesaid Labourer so that you or one of you have him before me and the rest of my fellow Iustices of our soveraigne Lord the King in the County aforesaid at the next generall Sessions of the peace to be holden in the aforesaid County to answer aswell to our said soveraigne Lord the King as to R.C. of c. Yeoman wherefore he being lately retained in the service of the said R. at T. in the County aforesaid from the said service before the end of the terme betwixt them agreed upon without just cause or licence of him the said R. hath departed in contempt of our soveraigne Lord the King and to the great damage of him the said R. and contrary to the forme of the statute in that case provided And that you or one of you have then there this precept witnesse c. Or thus in Latine Com. Dublin Simeon Steward Miles unus Iustic c. vic Com. pred Necnon I. B. Constabular vill de B. et R. N. ballivo itineranti in eodem Com. et eorum cuilibet salutem Ex parte dicti Domini Regis vobis et cuilibet vestrum mando Cromp. 238. quod attach seu unus vestrum attach W.R. de B. pred Labourer ita quod eum habeatis seu unus vestrum habeat coram me et socijs meis Iustic dict Dom. Regis ad pacem in Com. pred conservand Necnon et assign ad prox general sessionem pacis in Com. pred tenend ad respondend tam dicto Dom. Regi quam R.C. de c. Yeoman quare in servitio ipsius R. apud T. in Com. pred nuper retentus ab eodem servitio ante finem termini inter eos concordat sine causa rationabili et licenc ipsius R. recessit in Dict. Dom. Regis nunc contemptum et ipsius R. grave damnum et contra form statut inde edit et provis Et habeatis seu unus vestrum habeat ibi tunc hoc preceptum Teste c. A warrant for one refusing to serve Roger Millisent Knight one of the Iustices of the peace of our soveraigne Lord the King c. To R.L. Bailiffe of S. in the County of Dublin Dublin greeting On the behalfe of our soveraigne Lord the King I command you that you attach the body of R.A. of S. aforesaid Labourer so that you have him before me or my fellow Iustices of the peace in the County aforesaid at the next generall Sessions of the peace to be holden in the said County to answere aswell to our said soveraigne Lord the King as to B.C. of A. c. Yeoman wherefore he the said R.A. although he were often required to serve the said B.C. in a competent service for his estate yet notwithstanding he the said R.A. hath altogether refused to serve the said B.C. in contempt of our soveraigne Lord the King and to the great damage of him the said B.C. and contrary to the forme of the statute for servants in that case lately made and provided And see that you have this warrant there witnesse c. Or thus in Latine Rogerus Millisent
the discretion of the Court. 5. Ed. 3. cap. 10. Bribery 33. If any officer or minister of Iustice shall take any bribe to neglect the doing of his office or to doe his office falsely or corruptly he is to be punished by the common law by Fyne and imprisonment Conspiracy 34. If any Tradesman Artificers Labourers or servants shall combine and conspire not to worke or serve at the rates published by the Iustices of peace this is a misdemeanor at the common law and punishable by fyne and imprisonment 35. If any persons shall make any conspiracy or combination by colour of Iustice to take away any mans life malitiously without cause this is a high misdemeanor and to be grievously punished by the villanous Iudgement viz. imprisonment during life the offendours testimony to bee rejected his house to be rased his medowes plowed his woods to be rooted up and his person never to approch any of the Kings Courts 36. If any person or persons shall wittingly forge or cause to be forged any false deeds or writings or publish the same knowing them to be forged this is a misdemeanor punishable at the common law by Fyne and imprisonment and may bee so punished by the Iustices of peace but by a statute made in 28. El. cap. 4. in Ireland if it concerne Inheritance or Freehold of any lands or hereditaments it is punishable by Pillorie losse of Eares slitting the Nose forfeiture of land during life and perpetuall imprisonment but this punishment is to be inflicted by the Iustice of Assize or Iustice of Oyer and Terminer and not by the Iustices of Peace Offences of Omission CHAP. 6. 1. THe third sort of fineable offences are omissions Omissions in officers and others in not doing and performing such things as by the Lawes of the Kingdome they ought to doe for as the Lawes prohibit the doing of such things as are unlawfull so likewise they command the doing and performing of other duties which are for the preservation of the peace and good governement of the Common-wealth and therefore if Constables In Constables shall not set forth nor levie Huy and Cry after Felons and Traytors upon notice to them given this is a grievous offence of omission tending greatly to the prejudice of the Common-wealth and by the statute of 13. Ed. 1. ca. 1. 2. called the statute of Winchester to be punished by a great Fyne and imprisonment 2. If Constables shall bee negligent in the apprehending and punishing of Rogues Vagabonds and sturdy beggars and others that begge without licence or having Licences begge out of the limits appointed for them to begge in Such Constables for their neglects by a statute made 33. H. 8. cap. 13. in Ireland are to be punished by Fyne and imprisonment 3. If Constables shall be negligent in appointing the watch in every Towne by a statute made in 5. Ed. 4. cap. 5. in Ireland they are to be punished by a Fyne of three pence for every time that they shall faile in this particular 4. If Constables shall not doe their best endeavour to part an Affray and to see the Kings peace preserved and to apprehend the offendors and bring them before a Iustice of peace this is a neglect of their dutie and punishable at the common Law by fyne and imprisonment 5. If Constables shall not make search for idle and suspected persons and common gamesters that live idly and expensively having no meanes to maintaine themselves and bring them before a Iustice of peace this neglect is a misdemeanor at the common law and punishable by fyne and imprisonment 6. If Constables shall neglect or refuse to apprehend Felons or Traitors or to make search for them upon request or notice given them this is likewise a misdemeanor at the common law and punishable by fyne and imprisonment 7. If Constables or any other officers Neglect of officers others or ministers of Iustice shall refuse or neglect to execute the warrants of any Iustice of peace to them or any of them directed this is likewise a misdemeanor at the Common law and punishable by fyne and imprisonment 8. If any person or persons shall refuse to follow Huy and Cry after Felons and Traytors at the Constables command by the Statute of Winchester made Anno 10. Edw. 1. cap. 1. 2. they are to be punished by fine and imprisonment 9. If any person or persons shall refuse to assist the Constable to make search for and to apprehend Felons or Traytors or other suspected persons or to convey prisoners to the gaole or before a Iustice of the peace this is a misdemeanor at the Common Law and punishable by Fine and imprisonment 10. If any person shall refuse or neglect to keepe the watch when he shall be required by the Constable this is likewise a misdemeanor at the common law and punishable by fine and imprisonment Neglect of Towneships 11. If any Towneship shall permit and suffer sturdy beggers Rogues or Vagabonds to abide in or passe through their towneship without punishment or other impotent beggers which begge without licence The Towneship is to be punished in manner following viz. To be fined for every impotent begger 3 s.4.d and for every sturdy begger Rogue or Vagabond 6. s. 8. d. and this by the statute of 33. H. 8. ca. 15. in Ireland 12. Every Towneship ought to have stockes for the punishment of Rogues Vagabonds and sturdy beggers and likewise for the safe keeping of breakers of the peace and other malefactors untill they can conveniently be brought before a Iustice of the peace And also common and overt pounds wherein distresses are to be impounded and such towneships as shall want such stockes and common pounds are to be punished by fine at the discretion of the Iustice of peace 13. If any servant artificer or labourer Servants Labourers and Artificers shall refuse to worke or labour at the wages rated by the Iustice of peace or shall take more wages then according to the rates published by the said Iustices by the stat of 33. H. 8. cap. 9. in Ireland they are to be punished in manner following viz. To forfeit so much as they take above the rates and imprisonment at the discretion of the Iustices of Peace 14. All such as are idlers and will not labour at all and yet have nothing to maintaine themselves are to be enquired of presented and to be punished by the Common law by fine and imprisonment untill they finde sureties to labour or for the good behaviour at the discretion of the Iustice of peace 15. All defects of Bridges Defects of Bridges c. causeys and high-wayes are to bee presented in the generall Sessions of the peace and all such as ought to repaire the same whether it be the whole countie one or more Barronies Parishes or any one person in particular they are to be fined for their neglect herein by the common
is an offence punishable at the common Law by fyne and imprisonment at the discretion of the Court. 23. So likewise the stopping or diverting of any water-course whereby any common way or passage is annoyed this is an offence at the Common Law and punishable in manner following viz. by fyne and imprisonment at the discretion of the Court and by abatement of the nusans 24. In like manner the casting of dung or any other thing into any common street or high-way which doth in any sort annoy the passage is an offence at the Common Law and punishable by fyne and imprisonment and removing of the nusans as in the next precedent Section is set forth 25. By a statute made in 33. H. 8. cap. 2. in Ireland it is enacted Buying out of market that no person or persons shall buy any Hydes Fels chequers Flegs Yarne Linnen-cloath wooll or flockes to sell againe in any other place but in markets or faires the offendour by the said statute is to be punished as a Fore-staller 26. If Ordinaries upon the admission of incumbents shall not give an oath to such incumbents to keepe a schoole in their parishes Schooles every such ordinarie for every such neglect is to forfeit 3.l 6 s 8.d 28. H. 8. cap. 15. in Ireland 27. So likewise such incumbents as shall not keepe a Schoole in their parishes for the teaching of English by the said statute of the 28. H. 8. cap. 15. in Ireland is to forfeit for the first offence 6 s 8.d for the second offence 20 s and for the third offence to loose their benefices Sheriffes 28. If any Sheriffe shall let his bailiwickes to farme by the statute of 23. H. 6. cap. 10. he is to forfeit 40.l 29. If any Sheriffe shall refuse to let men to baile which by the Law are baileable he is to forfeit 40.l to the King and treble damage to the partie 23. H. 6. cap. 10. 30. Sheriffes that shall levie any fines or amercements by reason of any indictment or presentment in their Turne Courts without processe from the Iustices of peace or that have not brought in such indictments or presentments to the next generall Sessions of the peace are to forfeit 40.l 1. Edw. 4. cap. 2. Undersheriffs c. to be sworne 31. Undersheriffes bailiffes of Liberties and others that take upon on them to returne pannels or tales or medle with the execution of processe before they take the oath for the true execution of their offices according to the statute of 10. Car. in Ireland are to bee fined in 40.l to the King and pay treble damage to the party grieved 10. Car. cap. 18. 32. If undersheriffâ—s bailiffes and others shall doe any thing contrary to their oathes mentioned in the next precedent Section they are by the said Statute of 10. Car. to forfeit 40.l to the King and treble damage to the partie grieved Purveyors 33. Purveyors that take any thing by way of purveyance to the value of fortie shillings or under without making present payment are to forfeit the value of the thing so taken and loose their offices 2. H. 4. cap. 14. 34. Artificers Labourers and other Laymen that have not lands worth 40 s per annum or Priests that have not 10.l per annum that shall keepe any grey-hound Keeping of greyhounds or any dogge to hunt or use any Ferrets nets or other engines to kill Deere Hares or Conies are to suffer a yeares imprisonment 13. Rich. 2. cap. 13. Constables 35. Constables that have not given assistance to the owners of goods to resist Purveyors that take goods under the value of 40 s without making present payment and any of the Kings officers that have procured any to be arrested or vexed for such resistance such officer is to be fyned in 20.l and the Constable in the value of the thing taken and double damage to the party 20. H. 6. cap. 8. 36. All such persons as have raised Huy and Cry Raising Huy and Cry without cause they are to be punished by fyne and imprisonment Escape by negligence 37. If any person arrested or imprisoned for treason of felony have by negligence been suffered to escape the Gaoler or such other persons as had the custodie of him shall be punished by fyne and imprisonment Giving of liveries 38. Giving of Liveries unto such as are not houshold servants is to be punished by imprisonment fyne and ransome the retayner to loose 5.l and the party reâ—ained likewise to loose 5.l for each month 1. Ric. 2. cap 4. 20. Rich. 2. cap. 1. 2. 1. H. 4. cap. 7. 7. H. 4. ca. 14. Buying of Corne. 39. If any person having store of Corne of his owne doe buy Corne in the market he shal be punished as a regrator which punishment is by fyne and imprisonment 8. Edw. 4. cap. 2. in Ireland 40. Butchers Fishmongers Butchers and Fishmongers Inneholders and other sellers of victuals are to sell the same at reasonable rates and prices and for moderate gaine and such as shall doe otherwise shall forfeit double the value of that they shall receive 23. Edw. 3. cap. 6. 41. Tylemakers Tyle-makers that have not digged and cast up earth for making of Tyle till after the first of November and have not turned it untill after the first of February are to loose double the value and the Tyles so made 17. Edw. 4. ca. 4. 42. Tylemakers that make or any person that putteth to sale any plaine Tyle under ten inches and an halfe in length six inches and a quarter in bredth and halfe an inch and halfe a quarter in thicknesse with convenient deepnesse or any gutter Tyle under ten inches and an halfe in length with convenient thicknesse bredth and depth the offendor to be punished in manner following viz. for every hundred of plaine Tyle to forfeite 5 s for every hundred of roofe Tyle 6 s 8.d and for every hundred of gutter Tyle 2 s 17 Ed. 4. cap. 4. 43. If any searchers appointed for the true making of Tyle have not done their endeavour in that behalfe they are to forfeite for every default x.s. 17. Edw. 4. cap. 4. 44. If any person shall disturbe the execution of the stat against Rogues Rogues and sturdy beggers the offendor therein is to forfeite 5.l ster 33. H. 8. cap. 15. in Ireland 45. Sheriffes that doe not appoint foure Deputies at the least to make Replevins not twelve miles distant one from an other are to forfeite 5.l 10. Caroli cap. 25. in Ireland 46. Gaolers Gaolors taking Fees of servants artificers or Labourers that refuse to serve shall forfeit x.l. to the King and v.l. to the party grieved 34. Edw. 3. cap. 9. 47. Libellers Libellers and raisors of schandals upon magistrates and ministers of Iustice are to be punished aswell by the common Law as by the statute of Winchester cap. 33. and by the statutes of
Lamb. li. 4. pag. 498. and lay them downe in certaine vel his similia it is voyd for the incertainety Brooke action sur le case 112. And if it be that A. and B. manuforti intraverunt in tenementum c. that also is insufficient for the like incertainety because the word tenementum may aswell extend to a house or cottage as to land meadow pasture c. Dallison 38. So if the Endictment run thus Apud C. in Comitat. predict insultum fecit ipsum cum quodam cultello pretij c. felonicè percussit ex malitia sua praecogitata murdravit it is not sufficient without shewing the place where he murdred him which may be in some other place then where he assaulted him Collect. Dyer 69. And an Endictment of selling tanned leather was disliked 1. Ric. 3. 1. because it neither contained the place where nor the person to whom the leather was sold both which be materiall and traversable 39. If the Endictment be that a man is a common Theefe without shewing especially in what thing it is nothing worth 22. lib. Ass Pl. 75. 29. 45. And so if it be of a generall extortion against an Ordinary without shewing in what by 25. Ed. 3. Stat. 3. ca. 9. And so also if the Endictment stand upon these Termes onely Insidiatores viarum depopulatores agrorum by 4. Hen. 4. cap. 2. And thereupon the Court said in 17. Ed. 4. 4. that upon such an Endictment the party shall be dismissed Howbeit the Commission of the peace hath the words Insidijs jacuerint but it goeth further ad gentem nostram mayhemandam 40. Neither is it good in an Endictment against an Accessary to say that he received the goods without saying that he received the felon 27. lib. Ass Pl. 69. 9. H. 4. 1. 25. Ed. 3. 39. nor to say that he scienter felonem Domini Regis apud A. recepit without shewing what felony he committed 7. H. 6. 65. nor without saying that he knowing it received him feloniously 7. H. 6. ca. 2. unlesse he receive one that is attainted of felony in the same County for then he must at his perill take knowledge of the attainder and so no such mention of knowledge needeth to be used as it is holden 8. Ed. 4. 3. notwithstanding that opinion I thinke that it is necessary that the accessary re verae have notice of the felony 41. And if such an Edictment be Sciens ipsos 4. homines feloniam c. fecisse apud D. felonicè recepit it is not good for that it sheweth not which of them he received 30. H. 6. 2. and yet if foure be endicted joyntly then are they also each one severally endicted thereby 6. Ed. 4. 5. per Markham 42. Concerning the nature of the offence Nature of the offence it is to be observed that in an indictment of Treason presentable before the Iustices of peace the word proditoriè ought to be used In the Endictment of Murder murdravit is necessary 9. Ed. 4. 26. and that word alone implyeth ex malitia praecogitata Collection Dyer 69. But if without murdravit it be quod A. occidit B. ex malitia praecogitata voluntariè it is not enough because one man may kill another so in a wager of battell and yet be no murderer And for the same reason if it be of Manslaughter it must be felonicè 43. An Endictment was that the son had taken the sicke Father and carryed him into the cold weather whereof he dyed but it was disallowed because it lacked felonicè Fitz. Endict 3. Againe if the Endictment be of Burglary then it must be Burglariter or ea intentione ad feloniam sive murdrum faciendum for it is not enough to say felonicè fregit domum mansionalem in nocte And if it be of Rape then it must say felonicè rapuit for without rapuit it sufficeth not to say felonicè cepit Aliciam eam carnaliter cognovit 9. Ed. 4. 27. 11. H. 4. 12. 44. If it be furatus est it seemeth to Marr. to be good without the word felonicè but 18. Ed. 4. fo 10. is against him 45. If it be felonicè abduxit unum equum it is not of value without saying cepit neither is cepit good alone without abduxit Fitz. End 4. And if it be felonicè succidit arbores illas asportavit or vi et armis succidit arbores et felonicè asportavit neither of them will make it felony because the Trees be a part of the Freehold wherof no felony can be commited 12. lib. Ass pl. 32. But if it be vi et armis succidit arbores et eas felonicè at another day after cepit et asportavit that will make it felony as I have said already and if the Endictment be of petit Larcēny it ought to have felonicè in it 27. H. 8. 27. 46. And albeit the Endictment be but of a Maiheme it must say felonicè maihemavit and yet Maihem is no felony but an haynous and as it were a felonious Trespasse But where in an Endictment of felony the word felonicè wanteth there the Endictment may neverthelesse stand good to make a Trespasse 7. H. 7. 7. 6. H. 7. 4. 18. Ed. 4. 10. 47. And in an Endictment of Trespasse or felony the words contra pacem and the words vi et armis viz. cum baculis cultellis Stamf. fo 98. c. must of necessity be used for the statute of 37. H. 8. ca. 8. in England which maketh the Endictment good without those words is not of force in Ireland 48. If the Endictment be of forceible Entry then the words vi armis be needlesse because they are necessarily implyed in the word force Marr. And if the Endictment be founded upon a statute it ought to say contra formam statuti in hujusmodi casu provisi ac editi or where many statutes doe concerne one offence as in the case of Liveries and such like contra formam diver sorum statutorum without speciall naming of any and then the best shall be taken for the King but an Endictment of a Ryot without saying contra formam statuti c. is not good Lamb. li. 4. pag. 502. because it is no Riot but by that statute And yet it is not of necessity that the statute be verbally rehearsed but only that the offence against the statute be sufficiently and with full words described Comment 1. 79. 49. In the twentieth yeare of Queene Elizabeth a man was endicted upon the statutes 1. El. cap. 1. 13. El. cap. 2. in England for ayding another knowing him to be a principall mainteyner of the authority of the See of Rome contra formam statutorum praedictorum but because the Endictment wanted certaine materiall words expressely mentioned in the Acts viz. upon purpose and to the intent to set forth and extoll the authority c. the endictment was thought
offence 3.l 6 s 8.d 28. H. 8. ca. 15. in Ireland 23. Incumbents not keeping Schooles in their parishes to teach English 23 To forfeite for the first time 6 s 8.d for the second 20 s and for the third time to loose their benefices 28. H. 8. ca. 15. in Ireland Fourthly Other abuses and enormities viz.   1. Prophaning of the Sabbath by keeping Faires and markets by manuall labour by playes and haunting Tavernes and Ale-houses upon the Sabbath day 1 Imprisonment and to bee bound to the good behaviour 2. Keeping of Fayres or Markets in Churches or Church-yards 2 Fyne and imprisonment 13. E. 1. Statute de Winton 3. Depraving the booke of Common prayer by words or by writing or using any other common prayer or administration of Sacraments then is prescribed in that booke 3 For the first offence the profits of all the offendors spirituall promotions and six months imprisonment for the second offence deprivation a yeares imprisonmēt for the third time imprisonment during life and deprivation in spiritual persons For lay persons for the first offence a yeares imprisonment for the second offence imprisonment during life 2. El. ca. 2. in Ireland 4. Disturbing the Minister in execution of his function according to that booke 4 To forfeit for the first offence 100. markes or six months imprisonment For the second offence 400. markes or 12. months imprisonment For the third offence all his goods and chattels and imprisonment during life 2. El. ca. 2. in Ireland 5. Cursing and swearing 5 For every time 12. d. 10. Caroli cap. 1. in Ireland 6. Common turbulent drunkards 6 Imprisonment Fyne and bonds for the good behaviour 7. Common Adulterers 7 Imprisonment and bonds for the good behaviour 8. Keepers of common Baudie-houses and such as frequent them 8 Imprisonment Fyne and Bonds for the good behaviour 9. Keepers of common gaming houses and common gamesters 9 Imprisonment Fyne and Bonds for the good behaviour 10. Alehouse-keepers that keepe misorder in their houses 10 Imprisonment Fyne and Bonds of the good behaviour 11. The killing of yong Spawne and Frie of Samon and Eeles 11 Forfeiture of 40 s and of the Nets and Engines 10. Caroli ca. 14. in Ireland 12. The taking away of yong women under the age of sixteene yeares or marrying of them without the consent of their parents or Tutors 12 Imprisonment by the space of two yeares and if the offendor shall marry her imprisonment by the space of five yeares 10. Caroli ca. 17. in Ireland 13. Plowing by the Taile and pulling the wooll off living sheepe 13 Fyne and imprisonment 11. Caroli ca. 15. in Ireland 14. Burning of Corne in the Straw 14 Fyne and imprisonment 11. Car. ca. 17. in Ireland 15. Coshering and idle wandring 15 Imprisonment and bonds of loyaltie or of the good behaviour at the discretion of the Iustices of Peace 11. Caroli ca. 16. in Ireland 16. Selling of Wine Ale or any other liquor within any Citty or Towne Franchised by measures not sealed 16 Forfeiture 10 s 28. H. 6. ca. 3. in Ireland 17. Wearing of Irish apparell and not using the English habite and language 17 For every Lord Spirituall and Temporall 6.l 13 s 4.d For every Knight and Squire 40 s For every Gentleman or Merchant 20 s For every Freeholder and yeoman 10 s For every Husbandman 6 s 8.d And for all others 3 s 4.d for every offence 28. H. 8. cap. 15. in Ireland 18. Leasing of Corne in harvest by such as are able to labour and permitting of it by the owners 18 For every time offending to loose the Corne and to forfeit 12.d and the owner of the field that willingly shall suffer such leazers to forfeit for every time 12.d 28. H. 8. ca. 24. in Ireland 19. Such as keepe Inmates in harvest that leaze Corne. 19 Forfeiture 6 s 8.d 28. H. 8. ca. 24. in Ireland 20. The rescuing of Swine kept upon any Strand where the Sea doth ebbe and flow from him that shall sease upon them as forfeit 20 Fyne and imprisonment 11. El. ca. 3. in Ireland 21. Laying of Hempe Flax or lymed Hydes in any fresh river 21 Forfeiture of the Hempe Flax Hydes or the treble value of the same 11. El. ca. 5. in Ireland 22. Stopping or straightning of any common way 22 Fyne and imprisonment 23. Stopping or diverting of any water-course whereby any common way or passage is annoyed 23 Fyne and imprisonment 24. Casting of dung or any other thing into any common street or way which doth in any sort annoy the passage 24 Fyne and imprisonment 25. The buying of Hydes Fels Chequers Flegs Yarne Linnen cloath wooll and Flocks by Gray Merchants to sell againe in any other place but in Market or Fayre 25 To be punished as a Forestaller vide supra Forestaller 33. H. 8. ca. 2. in Ireland 26. Sheriffes letting their Bailiwickes to Farme 26 Forfeiture 40.l 23. H. 6. ca. 10. 27. Sheriffes refusing to let men to baile that are baileable 27 To forfeit 40.l to the King and treble damage to the party 23. H. 6. ca. 10. 28. Sheriffes levying Fynes or amerciaments by reason of any indictment or presentment in his Turne Court without processe from the Iustices of peace or that have not brought in such presentments or indictments to the next generall Sessions of the Peace 28 To forfeit 40.l 1. E. 4. ca. 2. 29. Undersheriffes Bailiffes of liberties and others that take upon them to returne panels or Talles or medle with the execution of processe before they take the oath for the true execution of their offices according to the statute of 10. Caroli 29 To be fined to the King in 40.l and pay treble damages to the party grieved 10. Caroli ca. 18. in Ireland 30. Undersheriffes Bailiffes and others that doe any thing contrary to the said oath 30 Fyne to the King 40.l treble damages to the party grieved 10. Carol. ca. 18. in Ireland 31. Purveyors that take any thing of the value of 40 s or under without making ready payment 31 To forfeit the value to the partie and loose his office 2. H. 4. ca. 14. 32. Artificers Labourers or lay men that have not lands worth 40. s. per annum nor priests that have not 10.l per annum that shal keep any Greyhound or other Dog to hunt or use any Ferrets Nets or other Engines to kill Deere Hares or Conyes 32 A yeares imprisonment 13. R. 2. ca. 13. 33. Constables that have not given assistance to the owners of goods to resist Purveyors that take goods under the value of 40 s without paying for the same and any of the Kings officers that have procured any to be arrested or vexed for such resistance 33 Forfeit of 20.l by the officer of the King and the Constable the value of the thing and double damage to the party 20. H. 6. ca. 8. 34. If any man have raised Huy and Cry without cause or being raised upon good cause
in the first Pres et alia enormia ei adtunc et ibidem intulerunt contra formam statut in hujusmodi casu edit et provis et contra pacem dicti dom regis coronam et dignitat suas 9. For a Riot and rescous of a woman arrested among divers others by the Sheriffes officers upon a warrant from a Iustice of the peace in their generall Sessions to put in suretie to appeare before them at the next Sessions and in the meane time to be of good behaviour and for the hurting of one of the said officers with an Arrow IVratores pro dom Rege praesentant quod cum H.C.R.H. et I.B. arm ac socij sui Iust dict dom reg ad pacem in Com. E. conservand necnon ad diversa felon transgr alia malefacta in eodem Com. perpetrat audiend terminand assign in generali sessione pac tenta apud T. in Com. E. praed die Martis proxim post festum S. Trin. Anno c. mandaver vic ejusdem comit E. necnon c. eorū cuilibet quod non omitterent propter aliquam libertatem Comit. E. praed quin eam ingrederentur seu unus eorū ingrederetur attachiarent seu unus eorum attachiaret corpora C.W. nuper de W. in Com. E. Labourer A.I. de W. praed in Comit. E. praed Seruant eos coram Iusticiar praedict vel uno socior Iustic pacis in Com. E. praedicto venire compellerent seu eorum unus venire compelleret ad inveniendum sufficientem manucaptionem quod ipsi personalitèr comparerent coram dictis Iustic socijs suis praed ad proxim Sessionem pacis in Com. E. praed tenend quod interim se bene gererent erga dictum dom Regem cunctum populum suum secundum formam statuti in hujusmodi casu edit provis Cumque praefat G.L. I.R. virtute mandati praed arrestassent praed Agn. I. eam coram Iustic praed vel eorum uno ducere voluissent prout mandatum praed Iustic praedict in se exigebat quidam tamen A.B. de W. praedicta in Com. E. praed gen R.W. de W. praedicta in Comitatu E. praed yeoman leges dict dom regis minimè verent ex malitia sua praecogitata in contemptum dicti domini regis legum suarum ac mandati Iustic praed 10. die Maij anno c. apud W. praedict in Com. E. praed riotosè illicitè assemblati congregati in praefat G.L. I.R. in pace Dei dicti domini Regis adtunc ibidem existen insultum affraiam fecer ac praefat R.W. divers sagittas Anglicè vocat Arrowes versus praefat G.L. I.R. adtunc ibidem sagittabat ea intentione ut praefat G.L. I.R. vulneraret ac praedict Agnetem in custodia eorund G. I. rescusser ac praef R.W. cum una sagitta valor unius denar quam adtunc ibidem ipse ejaculabat mittebat versus praefat I.R. è quodam arcu Anglicè vocato a long Bow valor 2 s quem in manu sua laeva adtunc ibid. tenuit percussit ac crus dextrum ejusdem I.R. adtunc ibidem perforabat transforabat dans eidem I.R. adtunc ibidem in crure suo praed unam plagam in profunditate trium pollicium ac idem R.W. cum una alia sagitta valor unius denar quam adtunc ibidem jaculabat mittebat versus praed G.L. è praedicto arcu quem in manu sua sinistra idem R.W. adtunc ibidem tenuit praefat G.L. percussit dans eidem G. adtunc ibidem in infima parte sinistri cruris ejusdem G. unam plagam in longitudine dimidij pollicis ac in profunditate usque ad ossa praed cruris ejusdem G. Ac praeterea praef A. B. et R.W. Agnetem I. adtunc ibidem à cust dict G. L. I. R. vi armis rescusser atgue eandem Agnetem I. adtunc ibidem ad largum ire evadere fecer contra pacem c. Iudgement as in the first Pres 10. An Indict of Riot for an Affray made by divers at the generall Sessions of the Peace IUratores pro domina Regina c. praesentant quod vicesimo nono die Decembris Anno Regni dicta◠dominae nostrae Elizabethae dei gratia Angliae Franciae Hiberniae Reg. fidei defensor c. tricesimo quinto apud M. in Com. G. tempore generalis Sessionis pacis in praedicto Comit. tunc ibidem tentae H.C. milite socijs suis Iusticiar dict dominae Reginae ad pacem in dicto Comitat. G. conservandam assignat tunc ibidem existentibus in plena Curia sedentibus quidam A.B.C.D.E.F.G.H. I.K. de S. in Com. G. praed generosi aggregatis sibi nonnullis alijs pacis dictae dominae Reg. perturbatoribus ignotis ad numerum 30. hominum vi armis viz. gladijs pugionibus armat illicitè routosè riotosè sese assemblaverunt ac inter se insultum affraiam maximam tunc ibidem secerunt sese invicem verberantes vulnerantes in magnum terrorem tam dictorum Iusticiariorum tunc ibidem in Curia sedentium Iudgement ut supra in the first Pres quam totius populi dictae dominae Reginae ad dictam Sessionem pacis tunc ibidem convenientis ac contra pacem coronam dignitatem dict Dominae Reginae nostrae Or thus 11. IUratores pro domina Reg. c. praesentant quod I.B. de R. in Com. E. praed yeoman I.G. de eisdem yeoman W.B. de P. in Com. E. praed yeoman T.K. de eisdem yeoman undecimo die Ianuarij Anno Regni Reginae El. c. tertio apud W. in Com. E. praed tempore general Session pacis adtunc ibidem tentae Iustic dictae dom reg ad pacem in Com. praed conservand assign ibidem existent vi armis viz. c. illicitè riotosè sese assemblaver per instigationem procurationem praed I.B. W.B. insultum magnam affraiam adtunc ibidem fecer commiser in magnum timorem tremorem perturbationem tam praedict Iusticiar dictae dominae Reginae adtunc ibidem existent quam totius populi ligeor subdit dictae dom Reg. in Com. S. praed adtunc ibidem confluen contra formam ordin Iustic praed adtunc ibidem de pace gerenda fact in manifest contemptum dictae dom Reg. ac in Iustitiae ibidem exequendae administrandae retardation manifest ac contra pacem dictae dom Reg. c. Iudgement ut supra in the first Pres 12. Of forceible Entrie upon the statute of An. 5. R. 2. for pulling up by the roots of 100. pearches of quickset IUratores pro dom Rege c. quod cum in statuto in Parliamento domini Ric. nuper Regis Angliae secundi post conquestum apud Westm Anno Regni sui 5. tent edit inter
Iustices of peace only or some of them that were present at the enquiry Co. 9. 11â— and when the indictment was found they only have power to make restitution except the Iustices of the Kings Bench who have a supreame authority in all cases of the Crowne 33. And therefore if the record sc the presentment of such force shall be certified by the Iustice of peace into the Kings Bench Or that the same prefentment or indictment shall be removed thither by Certiorari there the Iustice of the Kings Bench may award a writ of Restitution to the Sheriffe of the same County to restore possession to the party so expelled 34. After it shall be found by such Enquiry P.R. 14. b. that such forceible entrie or deteiner is made the Iustice of peace may breake open the house by force to reseise the same and to put the party so put out in possession againe And so may the Sheriffe doe having the Iustice warrant 35. The forme of such warrant from the Iustice of peace to the Sheriffe to make restitution you may see in the Title of warrants and presidents 36. But the Iustice of peace may not in any wise make restitution without such inquiry first had and such force thereby found And if the Iustice shall make restitution without inquiry it seemeth to be punishable in the Starchamber 37. Also this restitution ought to be made to none but to him only that was put out so that if the Father be put out by force and dyeth after inquiry and before restitution his heire shall not have restitution 38. Also such restitution must be made only where a man is put out or holden out c. of house or land and is not to be understood of a Rent Common Advowson or such like 39. Also the Iustice may make restitution notwithstanding any offer of Traverse but yet upon Traverse tendred the safest way for the Iustice of peace seemeth to be for him to deliver or certifie the presentment into the Kings Bench and so to referre the further proceedings therein to them 40. And although these statutes doe inflict no penaltie upon the Iustice of peace if they shall not execute these statutes yet if upon complaint or other notice to them given of such force they shall not at least remove the force record it and commit the offendors they are punishable in the Starchamber 41. Although the Iustice of peace ought to commit to the gaole and may fine all such as he shall see continuing the force at his comming to the place yet upon a force found by the inquiry only and not viewed and seene by the Iustice he may neither fine nor send to the gaole the said offendors by the statute of 8. H. 6. which appointeth the inquiry for the Iustice hath power by the said statute to make restitution only as saith Master Lambert Cromp. 161. b. yet Master Crompton holdeth the contrary But howsoever the Iust of P. is to remove the offendors that be present that so he may restore the other and may bind the offendors to their good behaviour and if the offendors be gone yet the Iustice may make his warrant to take the offendors and may after send them to the Gaole untill they have found sureties for their good behaviour 13. H. 4. ca. 7. 42. Note that if such forceible Entrie or detainer shall be made by three persons Cromp. 68. b. or moe then is it also a Riot and then if there be no former enquiry thereof made the two next Iustices of peace upon notice ought to inquire thereof as of a Riot by a Iury within one moneth upon paine to either of them making default to forfeite 100. l. Defaults of Sheriffes 43. Also one Iustice of peace may as it semmeth heare and determine the defaults of Sheriffes and Bailiffes in not returning sufficient Iurors whereof every one shall have lands 8. H. 6. 9. P. Iust 89. Rast 174. c. c. to the value of Forty shillings by the yeare at the least before him to inquire of such forceible Entrie or deteiner and the said Iustice of peace may proceede therein aswell by bill at the suite of the party grieved for himselfe as also by indictment only for the King And the same processe shall be made against such persons indicted or sued by Bill in this behalfe as should be made against persons indicted or sued by writ of Trespasse with force and Armes against the Kings peace 44. And though any one Iustice of peace may proceede in every of these former cases of forceible Entrie or deteiner as aforesaid yet if two or more Iustices shall joine therein together it is the better foâ— plus vident oculi quam oculus securius expediuntur negotia pluribus â—â—â—missa Co. 4. 46. 〈…〉 45. Also the Mayors and Iustices of Peace and the Sheriffes and Bailiffes of Cities and Burroughes having Franchise 8. H. 8. 9. Rast 174. d. have in the said Cities townes and Burroughes like authoritie to inquire of such Entries or putting out and in other the Articles aforesaid rising within the same as the Iust of Peace and Sheriffes in Counties and Shires have 46. The stat of Northampt. Also every Iustice of Peace to whom a writ upon the statute of North-hampton concerning the removing of a force shall bee delivered ought to execute the same writ sc hee ought to remove the force and to certifie his doings therein into the Chancerie 1. Ed. 3. 3. 47. And for that the Iustices of peace to whom this writ shall be delivered is herein but a minister and is to certifie that which he shall doe therein I will here set downe the manner how hee shall proceede to execute this writ 1. When the Iustice of Peace shall come to the place where the force is supposed by this writ he may cause three Oyes for silence to be made and then he may make Proclamation in the Kings name to this effect The Kings Majesties Iustice of Peace straightly chargeth and in his Majesties name commandeth all and every person to keepe silence whilst his Majesties writ c. be read and proclamation be thereupon made accordingly 2. Then may he read or cause to be read the writ or may declare the effect thereof 3. Then let three other Oyes be made And thereupon make proclamation againe as followeth His Majesties said Iustice doth in his Highnesse name and by vertue of his Majesties writ straightly charge and command that no manner of person of what estate degree or condition soever now being within the house of B. c. named in the said writ shall goe armed or keepe force of armour or weapon nor doe any thing there or elsewhere in disturbance of his Majesties peace or in offence of the stat made at North-hampton in the 2. yeare of King E. 3. upon paine of loosing his said armour and weapons and of imprisoning his bodie at his