be by men of discretion Numb 2 able bodies and sufficiently armed 3. It Watch Ward Kitch 47. 48. 49. must be by turn or by the house according to the custome of the place 4. The Constable ex officio is to order it and he may enlarge it as there is occasion but he cannot change the course of it at his pleasure and make some Watch and excuse others 5. If any neglect or refuse to doe his duty the Constable may present this default at the Assizes or Sessions or complain of it to a Justice of Peace And some hold the Constable may put him in the Stocks for his contempt 6. This Watch is from Assention to Michaelmas and must be from Sun to Sun And the Warding then in congruity of reason must be the rest of the twenty and four hours day 7. These Watch and Wardmen are to pose all men to arrest and secure till morning Rogues and others suspicious and them to bring to a Justice of Peace to be examined Or if they will they Dalt J. P. 60. Winch. 13 Ed. 1. 4. 5 Ed. 3. 14. Hue and Cry may deliver them to the Constable who must take care of them And if any resist them and goe away they may send Hue and Cry after them and upon this any man may arrest them 8. For default of this Watch and Ward the Township may be punished So that all that the Constable hath to doe in this case is to appoint it in an orderly way who when and how it shall be done and to see it be done and if it be neglected to complain of it and get it punished The Watch-men thus appointed may have from the Constable these or the like instructions viz. To keep the Peace amongst themselves to Watchmans charge continue their Watch diligently untill the Sun rising without noyse disturbance of the Inhabitants That they abide and frequent the common passages but so as they have regard also to all other places That they examine all such persons as they shall see stirring or shall passe by them what they be and whence they come whether they goe and the reason of their late travell or being abroad and if cause of suspicion be found in them to stay them if they obey not but resist to constrain them by force and to beat them if it cannot be avoyed for resisting the Peace of the Nation if they be too strong or fly them to levy Hue and Cry for the apprehending of them and to set them in the Stocks untill the morning and then to have them before some Justice of Peace to be dealt withall according to Justice To resort to such places where they behold any Candle or fire-light to know the cause or where they here any noyse of People especially in Taverns Innes and Ale-houses and finding any there to admonish them to depart and refusing to compell them as aforesaid And if any unknown Person hors-man or foot-man shall pass by them or that shall drive any Cattel Horse or the like or that shall carry any burthen on Hors-back Cart or otherwise to stay them till the morning to justifie themselves unless they can render good account both of themselves their company and carriage And if any Post come by them to know what number they have lest Offenders also pass under that pretence And the Constables are also to be aiding and assisting to these Watchmen upon all occasions 3. In an action of Trespass of an assult and Numb 3 battery the Defendant pleaded that there were Night-walkers divers Felonies committed in those parts where he dwelt and he being watching in his house came into the high-street where the Plantiff was at eleven of the clock in the night and the Defendant came unto him and laid his hands in peaceable manner upon him to see his face and when he perceived he was a true man he left him and departed And this was allowed to be a good justification for by the Statute of Winchester Watchmen may arrest Night-walkers and may appose them from whence they come and what they be Also any other man may arrest Night-walkers because it is for the good of the Common-wealth 4. If any Person whatsoever except the Keepers Numb 4 of the Liberties Servants and Ministers of Against persons that ride armed or make Insurrection 2 Ed. 3. 3. 2 R. 2. 13. Fitz. J. P. 202. Justice in executing Precepts or their Offices or such as shall assist them and except it be in pursuit upon Hue and Cry made to keep the Peace and that in places where Acts against the Peace doe happen shall be so bold as to goe or ride armed by night or by day as to carry any Dags or Pistols or to be apparrelled with privy Coats or Doublets in any Faires Markets or any other place to terrify the people And if any doe so or if any great Assembly Riot or Rumor be made in any outragious manner in nature of an insurrection In the first of these Cases the high-Constable or petty-Constable may and must take their Armer from them and seize it to the Seize Armes Arrest use of the Keepers of the Libertyes and arrest the parties and carry them to a Justice of Peace or as it seems to Gaol there to abide during the pleasure of the Keepers of the Liberties And in the last of these Cases they may and must take with them the power of the Power of the County County and suppress them and arrest the Offendors and carry them to a Justice of Peace or commit them to Prison till they put in Sureties Ayde for their good behaviour 5. And if one man doe threaten to kill another Numb 5 and especially if he lye in wait so to Against him that doth threathen Murder Fitz. Bar 202. 2 Ed. 4. 36. per. Briam 3 H. 4. 9. doe and he who is so threatened doth complain to any one of these Officers being Officers of the place wherein the party threatning is abiding or doth dwell and intreat him to arrest the party to finde Sureties of the Peace In this case the Officer may and must arrest him forthwith to finde Sureties and therefore carry him before a Justice of Peace or being there to get Sureties the Officer may presently carry him to Gaol But some say that this threatning must be in the hearing of the Constable or else that he cannot doe it But if the thing be true it seems in both cases alike And in such Cases the Constable if the party have no Sureties ready may carry him to Gaole of his own Authority 2. As these Officers are to take care to prevent Numb 6 the breach of the Peace before it be To suppress the breach thereof in case of Affrayors Fitz. J. P. 130. Lamb. J. P. 173. Dalt J. P. 28. 29. 22 Ed. 4. 35. 21 H. 7. 21. 13. H. 7 10 So are they to take care to suppress and
alay it when it is And therefore in case of Affrayes they are to labour carefully and speedily to appease them wherein these things are to be known 1. If any of these Officers shall see a man presently bent and in fury going about to breake the Peace as by using of hot words or the like by which an Affray is like to grow he may and must straitly charge and command the Persons at debate in the name of the Keepers of the Liberties of England to keep the Peace c. and to avoyd upon pain of imprisonment And if there be nothing but words between the parties it seeme the Constable can doe no more but this and may not lay hands on them unless they goe further But 2. If the parties at variance will not hereupon obey the Officer and depart but goe on further to threaten to beat hurt or kill and especially if either of them draw weapon or give or attempt to give any blow then the Officer may and must keep them assunder by force and for that purpose if there be need may use his Ayde his own weapon amd may call and require others to help him who at their perils must doe 21 H. 7. 21. Fitz. J. P. 130. so 3. And if the affrayors shall still proceed and goe from words to blows the Officer and his assistants may by force apprehend the Affrayors and cause them to render themselves and put them in the Stocks or in some other Prison or place untill the heat be past or if it be in the night untill the morning or they may carry them unto the next Gaole or to a Justice of Peace 4. If the Affray be great and dangerous the Officers may make Proclamation that the Affrayors shall depart and if they refuse or resist they may commit them to prison in the Stocks or other fit place till the heat Imprisonment be over or that they can carry them to a Justice to finde Sureties especially if any man be hurt in the Affray 5. If the Officer or 21 H. 7. 21. Lamb J. P. 141. 142. any of his Assistants in this service shall be hurt by the Affrayors they shall have good remedy against the Affrayors But if the Affrayors be hurt by the officers or their Assistants in doing of their duty herein the Affrayors shall have no remedy against them For if the Affrayors shall resist and refuse to obey the Officer In Officer may beat c. this case he may beat or wound them and Justifie the doing thereof And yet if another man that is no Officer of his own head shall take upon him to part Affrayors as he may and in the parting of them he hurt one of them In this Case he that is hurt shall have an actiof Trespass against him that did hurt him 6. If he that doth make the Affray when he doth see the Officer coming to arrest him shall flye into a house the Officer may in the Breaking open of a house lawfull Fitz. J. P. 130. Dalt J. P. 28. 29. Lamb. J. P. 143. 144. Arrest out of his Precinct fresh pursuit of him break open the dores upon him to take him and justifie it and if he flie out of the Officers libery into another Hundred or Tything or into a Franchise in the same County when he seeth the Officer coming to arrest him the Officer may upon a fresh pursuit follow him and take him there and so may he also where he doth flie out of one County into another But in this last case when the Officer doth apprehend the party in another County he can doe no more with him than a private man may doe viz. carry him before some Justice of the Peace of that County wherein he is taken to cause him there to finde Sureties for the Peace Eliz. J. P. 130. 7. If two men be fighting together in either of their own or another mans house the dores being shut in this case the Officer if he cannot otherwise get in may break open the dores to get in to keep the Peace albeit neither of the parties be hurt 8. In these cases before the Officer may and ought to carry them before some Justice of the Peace to finde Sureties for the Peace because they have broken the Peace already and are meet to be bound that they shall not break it again 9 Ed. 4 26. 10 Ed. 4. 17. 9. It is said that the Constable carrying the Affrayors to Gaole may himself take bond of them to the use of the Keepers of the Liberty for the keeping of the Peace the which bond he is to certifie into the Fxchequer or Chancery from whence the Process is to be made if the Peace be broken and thereupon deliver them and that if they will not finde Sureties the Constable may imprison them untill they doe finde Sureties But this is not used any where It is thererefore safe to carry them to a Justice of Peace 10. When the Officer doth carry the Affrayor to Prison or to a Justice of Peace so that he is bound over to appear at the Quarter-Sessions or Goal-delivery to answer it in these Cases the Officer must see then that he appear at the next Quarter-Sessions of the Peace or the next Goale-delivery there to object against the Affrayor as there shall be cause 11. If one make an assault and affray upon the 21 H. 7. 21. 5 H. 7. 7. 6. Lamb. J. P. 14. Fitz. J. P. 14. Officer himself he may take the Party carry him to a Justice of Peace or to prison as he may in case of an Affray done upon another man 12. If an Affray be made in the presence of the Constable and he doe not his endeavor to pacifie it he may be fined for it at the Sessions according to the discretion of the Justices But if the Affray be in another place and notice be given thereof to the Constable and he doe not his best to pacifie it it is said he shall not be fined for this but let this be doubted and Constables advised not to trust to it but to doe their utmost to suppress all Affrays and keep the publique Peace every where within their Precincts And in this Case every private man being present and during the time of the Affray may and must doe his best to quench and alay it But he may not hurt or imprison the Affrayors unless some man be hurt in the Affray Numb 7 3. For the duty of these Officers after the After the peace is broken Peace is broken If the Peace be but newly and freshly broken by an Affray the officer Bro. Faux Imp. 6. Fitz. J. P. 131. Dalt J. P. 29. 38 Ed. 3. 6. 12. Ass 56. 10 H. 7. 20. Poult de pace 13. have notice of it it hath been said he may arrest the parties and carry them before a Justice of Peace to finde Surety for the Peace because they
is cause of suspicion of Fellony when a Fellony is committed but when there is no Fellony done it seems this is not cause sufficient to warrant the arresting of such a person And yet as before it appeareth the accusation of a man where no Fellony in truth is done by Hue and Cry is cause sufficient to warrant the arresting of such a person as is described by the Hue and Cry In an Action of Fals-imprisonment the Defendant did plead That before the imprisonment A. B. was slain at C. and that the Plaintiff was in the 7 H. 4. 10. Dyer 276. company of those who killed him at the time of the Fellony committed and the common voyce and fame of the Countrie at C. was that the Plaintiff was party to the Fellony whereupon the Defendant finding the Plaintiff at C. arrested him for suspicion of Folony and committed him to the Sheriff c. and this was allowed a good and sufficient Plea 9. If a man doe assault another in or neet Imprisoning him that doth attempt to rob Fitz. Bar. 202. 2 Ed. 4. 26. Numb 13. Carrying one to a Justice or to Gaole the high-way to rob him and he that doth make this assault is taken and brought to the Constable of the place In this case the Constable must take him to his ward and carry him before a Justice of Peace to give sureties for his good behaviour In an Action of Trespass of Assault and Battery and Fals-imprisonment the Defendant pleaded That the Plaintiff lay in wait in a high-way to rob such persons as travelled that way and assaied to rob one L. and drew his sword and commanded the same L. to deliver his purse whereupon L. fled and levyed Hue and Cry and this Defendant be ing travelling that way pursued the Plaintiff and took him and committed him to the Constable Arrest to be put in the Stocks who did it accordingly and this was adjudged a good justification for every man may arrest him that doth a Fellony or him who maketh it apparent that he doth intend and goe about to commit a Fellony for that he doth thereby manifest himself to be a principall breaker of Law and Peace of the Nation 10. The Constable is to levy Hue and Cry Hue and Cry when there is cause and to send it East West North and South and it is best to express in the Hue and Cry the nature of the thing stoln colour and marks and to describe the number of Fellons their Horse Apparel c. And this Officer receiving a Hue and Cry after a Fellon must with all speed make diligent pursuit with Horse and Foot after the offendors from Town to Town the way it is sent and make diligent search in his own Town And the Constable and Hundred both may be punished for neglect herein And all other men must hereupon be industrious to take them Hitherto for the most part we have shewed you nothing but what is of the primitive and immediate authority and duty of these Officers and what they may and must doe ex Officio without any commandement or authority from others But for as much as a great part of their duty especially concerning the Peace resteth in making of due execution of the Precepts of higher Officers and especially of the Justices of Peace who be as it were immediately set over them We are therefore in the next place to shew you some part of that which they are to doe in that behalf Albeit these Officers be subject to the commandements In executing of the Precepts of others of the justices of Gaole-delivery of Oyer and Terminer and of some higher Justices yea and to the Precepts of Sheriffs Lamb. Const off Numb 14. Coroners and Stewards of Leets and of other Officers in some certain Cases yet because they are called upon most commonly by the Justices of Peace so as at this day their Office is for the most part conversant about the execution of their Warrants For if the Justice of Peace doth understand by complaint that any man hath stoln or slain or any Servant or Laborour without License hath departed out of his Masters service or any that liveth idly or suspectedly knowing once in what Parish he is he doth write to any one of these Officers to command him to bring this person before him and then he doth examine him and if he finde cause he doth commit him to some Constable or Officer to convey him to the Gaole there to abide till the Justices meet at their Quarter-Sessions or at their Gaole-delivery that the Law may either condemn or acquit him And to these Precepts these Officers ought especially to shew themselves obedient and then also especially when their Aide is called for to suppress Ryots unlawfull Assemblies and such like notorious breaches of the Peace And 1. howsoever it be so that if a Felloâ— Search Dalt J. P. 289. man have Goods stoln and he doth suspect that such a man hath stoln them and he complain thereof to the Constable so that now Numb 15 the Constable hath cause to suspect him also That the Constable in this case of his own authority without Warrant from a Justice of Peace may search for the Goods and the Fellon and if he finde the Goods seize them and if he finde the Fellon apprehend him yet for the most part the Constable not knowing his authority or the danger is so fearfull and remiss herein that he doth nothing until he have a Warrant of a Justice of Peace to provoke and enable him so to doe And if such a Warrant be sent to him from a Justice of Peace to search Search after Goods stoln and the party that is suspected to steal them the Constable may and must execute this Warrant accordingly 2. If a Warrant come to any of these Officers from a Justice of Peace to bring such a man before him to give Sureties for the Peace or Good-behaviour In this Case the Officer cannot make a Deputy or command another to doe it Deputy Dalt J. P. 290 291. Dalt J. P. 291. Coo. 5. 59. Broo. Faux Impr. 2. Warrant but he may require the aid of others to help himself in the doing of it 3. If a Warrant be directed to this Officer from the Justice of Peace to bring any person before some Justice of the Peace of the County for the Peace or Good-behaviour and the cause as it ought to be is set down in the Warrant In this Case the duty of the Officer is first to finde out the party and having found him to require him in the name of the Keepers of the Libertie of England to goe with him to a Justice of Peace to put in security according to the Warrant The which if he refuse or delay to doe or if he offer to â—un away from him or resist him then must the Officer forthwith arrest him and convey him to the Prison if the Warrant
Arrest be so as usually it is or put him in some Stocks until he can conveniently have strength to goe with him without carrying him to Stocks a Justice of Peace and then must the party remain in Prison until he shall voluntatily offer and finde Sureties according to the Warrant And if the party upon the first demand thereof made by the Officer doe yeeld to goe and finde Sureties then may not the Officer absolutely arrest him And if he be obstinate and will not yeeld to the Officer but resist him the Officer may justifie the beating Beating or hurting of him And of this Warrants execution and of his proceedings upon it the Officer must give an account to the Justices of the Peace at their next Sessions of the Peace And if the party doth yeeld to goe to a Justice of Peace to give Surety according to the Warrant but will not goe to the same Justice that made the Warrant but to some other Justice he doth name herein the Officer may if he please suffer him to have his will howbeit in this case the Law doth give the election to the Officer and he may bring the party before what Justice of Peace he please And yet if the Warrant be to bring the party before the same Justice of Peace that made it In this case the Officer must bring him before the same Justice and cannot bring him before any other And if the party being before the Justice of Peace refuse to give Surety according to the Warrant and the Warrant have words of authority to the Officer to carry him to the Gaol as most commonly every Warrant hath then Carrying to Gaole may the Officer carry him to prison without any new Warrant from the same or any other Justice of Peace so to doe And in these Cases also the Officer is to consider whether the Warrant doe come directly from the meer authority of the Justice of Peace or else be grounded on a Writ of Supplicavit sent down from the Warrant higher authority which difference ought to appear in all well made Warrants For if the Warrant be grounded on such a Writ then may the Officer compell the party to goe to the very same Justice or Justices of Peace that made the same Warrant or else he may carry Dalt J. P. 137. him to Gaole Neither is it requisite in this case that the Officer should dance up and down after the party untill he can finde out Sureties but he may detain the prisoner untill he can 5 Ed. 4. 6. bring Sureties to the Officer And the Officer that doth arrest a man upon such a Warrant of the Peace or Good-behaviour must see that he doe afterwards bring the party to the Justice of Peace to give Sureties or to the Gaol for if he doe not so he may be punished for it by fine at the Sessions and as it seems also by Action of Fals-imprisonment at the suit of the party arrested And if the party against whom such a Warrant is granted hearing thereof Numb 16 doth as oft times he doth offer himself with Sureties for the cause to some other Justâ—ce of Peace and he doth binde them or he findeth Sureties in some of the Courts at Westminster and so hath a Supersedeas out of Supersedeas the Chancery upper-Bench or from any Justice of the upper-Bench or from any Justice of Peace of that Countie directed to all the Officers of the County to discharge the same Surety of the Peace or Good-behaviour and he hath the same ready to shew to such Officer as shall come to him with the Warrant as Arrest aforesaid and doth shew and deliver the same to him when he is about to execute the same Warrant In this Case the Officer is not to meddle with him For if the Officer shall require the party to obey the arrest he may refuse it and if the Officer shall arrest the patty he may have an Action of False-imprisonment against the Officer for it And by this Supersedeas the Officer is discharged of any duty touching the Warrant of the Justice of Peace directed to him But let the Officer see that he keep his Supersedeas safe for his discharge if he be questioned for not serving the Warrant And it is not amiss for him to give notice of the same to the Justice of Peace from whom he received the commandement of service that thereby he may see the cause why the same was not done But in these Cases some say that another Justice of Peace cannot discharge the Warrant of the first Justice of Peace untill the party be bound indeed Howbeit if such a Supersedeas come to the Officer that hath the Warrant to arrest it seems that by this he is discharged and that he is to obey the Supersedeas especially if he know not whether the party have given Bond or not Hitherto we have spoken of the Office of these Officers set forth by the ancient common Laws of the Nation And now we come to speak of the same as it is enlarged by divers Statutes wherein also we shall finde the same difference we had before That by the same Statutes they are required and enabled to doe something as of their own authority and without any commandement or authority from â—â—hers and other things they are required and enabled to doe when they have commandement from the Justices of Peace or some other superior power so to doe SECT 3. Of the Office of the High-Constable and Petit-Constable against Prophaners of the Lords-Day FOR the better understanding of their Duty herein these things are to be known 1. This day is by every one to be sanctified and kept holy and men must be carefull herein to exercise themselves in the duties of Piety and true Religion publiquely and privately and every one on this day not having a reasonable excuse must diligently resort to some publique place where the service of God is exercised or must be present at some other place in the practise of some Religious duty either Prayer Preaching Reading or Expounding the Scriptures or conferring upon the same 2. None may on this day meet out of their own Parish at any sports whatsoever nor may they meet within their own Parish for Boar-bayting Bull-Bayting Enterludes or other unlawfull exercises under pain to forfeit three shillings four pence for every offence to be levyed by distress and sale of Goods and for lack of distress to sit three hours in the Stocks Nor may any one on this day keep or be present at any Wrestlings Shootings Bowlings Ringing of Bells for pleasure Masque Wake Church-Ale Dancing Games Sport or Pastime whatsoever under pain to forfeit five shillings if he be above fourteen yeers old and twelve pence by him that hath the government of him if he be under fourteen yeers old to be levyed by distress and sale of Goods and if no distress be to be had to
if a Justice of Peace send a generall Warrant to an Officer to carry J. S. to Gaol or to bring him before him and express no cause why it seems to me reasonable in both these cases the Officer in the doing hereof is excusable But if the Justice have not good cause for it he may be sued for it And so perhaps he may be though he have cause for the not expressing of it within his Warrant If this Officer doe arrest any man under Warrant pretence of a Warrant let him be sure he have the Warrant first For if the Officer first arrest and bring the man to the Justice and then get a Warrant to doe it this will not make the arrest lawfull 5. A Warrant of a Justice of Peace by word of mouth is as good in some Cases as a Warrant by writing As if a Ryot or other breach of the Peace be in his presence he may by word of mouth command the Officers or any other to arrest the offendors to finde Sureties of the good Behaviour in the first or Peace in the last Case and if they refuse to put in Sureties he may by word of mouth command to convey them to the Gaole But in other Cases he cannot give warrant to an Officer that is absent and out of his presence and if he send a Warrant by Message only to an Officer to arrest a man and carry him to Gaole the Constable may refuse to doe it 6. If any Warrant come from a Justice of Peace to one of these Officers to doe a thing the Officer himself must doe it and he cannot by word or writing make a Deputy or Deputy command another to doe it but he may call what ayde he will 7. In the execution of these Warrants he is to take great care that he follow the contents of his Warrant and not to exceed it for that may be dangerous And yet this must be understood that when any thing is commanded all that doth necessarily conduce to the doing of that thing and without which it cannot be done is commanded also and therefore all that and so much may be done albeit it be not set down in express words in the Warrant And it is said that if a Warrant be made to J. S. and J. K. to arrest J. D. In this Case either of them alone may make the Arrest 8. A Constable or other Coo. 9. 69. 6. 54. 8 Ed. 4. 15. Dalt J. P. 28. sworn or known Officer albeit he be not known to the party arrested needs not to shew his Warrant to the man when he comes to serve it upon him although he demand it but otherwise it is when he that is no Officer shall arrest a man upon a Justice of Peace warrant for he must shew his warrant and the sworn or known Officer also must upon the arrest of the party declare the contents of the Warrant to him 9. A Constable or the Coo. 9. 69. like Officer giveth sufficient notice what he is when he saith to the Party I arrest you in the Arrest what it is name of the Keepers of the Liberty of England c. for this is an arrest in Law and therefore in this case the party arrested at his perill must obey though he know him not to be an Officer for if he have no lawfull Warrant the party grieved may hereupon have his Action of false imprisonment against him 10. The Officer must take care that he take the very party named in the Warrant and not another for if a Warrant be intended against J. S. who is the Delinquent but it be sent against J. D. another man in this Case the Officer cannot arrest J. S. but must arrest J. D. 11. If the Prosecutor for the Peace or good Behaviour after the Warrant sent agree yet the Officer must execute his Warrant 18. When any one of these Officers hath Numb 18 arrested any man for any cause the Officer must take great heed that he doe keep the Prisoner safe and not suffer him to escape Dalt J. P. 292. Escape especially if the arrest be for matter of Fellony for in this Case if he willingly suffer him to escape this offence is Fellony in the Officer And be the cause of the Arrest whatsoever it will if the Officer doe willingly or unwillingly and negligently suffer him to escape and doe not take him again he shall be fined for it according to his offence by the discretion of those that shall be Judges of the cause 11 H. 4. 25. Stamf. 35. for Officers in these Cases may require what help they will And lest any Officer should flatter himself that he may escape with an easie Fine he is to know that the Judges of his fault may set his Fine equall to the value oâ— all his goods if his offence so require And if an Officer take a man upon a Warrant from a Justice of Peace and then letteth him goe and taketh his word that he shall come again to him such a day to goe to the Justice of Peace Arrest and the party cometh not this is an escape in the Officer for which he may be punished and the Officer as it seems cannot now arrest him upon this Warrant But if the party in this or any such like Case escape of his own wrong without the consent of the Officer the Officer in a fresh pursuit may take him again albeit he be out of his sight and out of his Precinct as is before shewed Nineteenthly Numb 19 The Gaoler must receive the Prisoner offered Duty of the Gaoler 4 Ed. 3. 10. 11 Ed. 4. 7. Bro. Faux Impr. 24. 25. 27. unto him freely without taking any thing of them that bring him But it is said that a Gaoler is not bound to receive any Prisoner from an officer immediately but by a Justice of Peace Warrant But it is not safe for a Gaoler to refuse such a Prisoner for if a Constable may in some cases must is bound by the duty of his place to bring some Offenders to Gaol without any Warrant of a Justice of Peace as he is the Gaoler is bound to receive them so brought And if a man be arrested for Fellony and the Constable carry him to the Gaol and the Gaoler will not receive him it is said the Constable must bring him back to the Town where he was taken and that the Town must be at the charges of keeping him untill the next Gaol-delivery But howsoever the Officer must look to him for fear of an escape and in this case the best way for the Officer is to get a Justice of Peace his Warrant to send the Prisoner to the Gaol and hereupon the Gaoler doubtlesse will receive him Twentiethly In what case an Officer maey set a Prisoner at liberty again Fitz. Office of J. P. 130. These Officers albeit they have power in divers cases before and after shewed
have broken the same already and are meet to be bound that they shall not thenceforth break it again But it seems this is not Law at this day for it hath been resolved that a Constable ex Officio and without a Warrant from a Justice of Peace may not imprison any man for an assault or affray except he be present at the affray himself In Skarrets Case Hll. 37 Eliz. C B. But in all Cases where an Affray is past this Officer may by Warrant from a Justice of Peace take and imprison the Affrayors and in case where Arrest one is hurt in the Affray and thereby in peril of death he may ex Officio and without any such Warrant arrest and imprison the Affrayors For in this Case when one hath received a dangerous hurt in the affray the officer after the Affray is past may and must arrest and imprison him that did the hurt till he give Surety to appear at the next Gaol-delivery or otherwise he may with less labor than to carry him to Gaole carry him to a Justice of Peace who ought to take such order as the party may give such Surety For the Fact may fall out to be Fellony if he that is hurt happen to dye within a year and a day next after the hurt done And if the Officer doe not so or suffer such a Person to escape he may be deeply fined for it And in this Case also it is said that the officer may after he hath arrested him that gave the wound keep him a while in some other place out of the common Prison untill it may be known whether the party wil live or not If Fellons or Murderers be in the Village Numb 8 and these Officers of the Village have notice of Against persons committing Fellony or suspect of Fellony Fitz. J. P. 201. 1 R. 3. 3. Lamb. Office of Const 17. them it is their duty to gather men together and to apprehend them And if any Fellon be taken it is the Constables office to see him conveyed safely to Gaol And any other man as well as an Officer may arrest and keep in hold such a man as he doth know to have committed any Fellony And as touching persons suspect of Fellony it is said That if any man doth suspect any other man of any Fellony that he hath committed and doe declare the same to any one of these Officers that thereupon he may if the party suspect be within the limits of his Office arrest and bring him with him he shall doe well to bring the other party that did suspect him to the Justice of Peace to be examined But as touching the arresting of another man upon the suspicion of a third Person it seems the Law is otherwise For it is the opinion of the whole Court in the 17 Ed. 4. 5. 11 Ed. 4. 4. Bro. Faux Impr. 24. and in 5 H. 7. 4. That one cannot imprison another man upon the suspicion of a third man for Fellony unless he himself have some cause of suspicion also And that one man albeit he be an Officer cannot justifie the imprisonment of another man susppcted by a third man and at his commandement that doth suspect And of this opinion was Mr. Justice Bridgman and the whole Court of the Marches of Wales And therefore it was held there that if I suspect a man for Fellony and give notice hereof to the Constable that he cannot arrest him upon my suspicion And yet when I have arrested him upon mine own suspicion and delivered him to the Constable that in this case the Constable must look to him at his peril And if the Constable from this doe receive a suspicion of him as he may upon a fame or any flight report I think it reasonable and justifiable in him to arrest him But as touching this matter and for the cleering of this point these things are to be known 1. That any one of these Officers or any other 9 Ed. 4. 26. 17 Ed. 4. 5. 20 Ed. 4. 6. Bro. Faux Impr. 27. private person whatsoever having cause to suspect another of a Felony committed by Murder or Theft may himself arrest and apprehend such person suspect but herein he whosoever he be must take heed to three things 1. That there be a Fellony committed or at least confidently reported to be committed for otherwise there can be no good cause to suspect any man 2. That there be some cause to suspect the party arrested more than another 3. That after the arrest the party that doth arrest him doth carry him to a Justice of Peace or to the common Gaole to the end that the party accused may be Indicted or acquitted at the next Sessions c. Or if it be a private man that doth make the arrest that he doe deliver the party arrested to the Constables c. of the place 2. These or any or either of these are Causes of suspicion of a man for Fellony 29 Ed. 3. 39. 9. 4 H. 7. 4. 7 H. 4. 35. 27 H. 8. 21. 14 H. 8. 16. 2 H. 7. 15. 11 Ed. 3. 44. 21 H. 7. 27. Fiâ—z J. P. 201. Numb 9. held to be sufficient causes of suspicion 1. That the person suspect is Indicted for the same Fellony 2. If the Fellony be a Murder that he was present at the time of the Murder committed with a Sword drawn in his hand 3. That the person suspect is a person of evill name or is a Vagarant in the Country where the Fellony was done 4. If the Fellony be a Robbery and the party suspect is found with some part of the goods in his hands 5. If one apprehended for the same Fellony hath taken his oath upon a Book that the party suspect is one of the Fellons 6. That it is the common fame and report of the Country that the party suspect did the fact 7. If the party suspect doth flie upon the Fellony committed 8. If there be a Hue and Cry out against the Fellon and the person suspect and apprehended is such a person as is described by the Hue and Cry or if the Fellony be for stealing of Cattel and the party suspect is taken driving such Cattel as are set forth by the Hue and Cry to be stoln And yet hereby an honest man may be apprehended for a Hue and Cry may be raised where no Fellony is done But in this case he that raised it may be punished and he that doth arrest the party is to be excused or there may be no other cause to suspect this man but the possession of the goods and he might come by them lawfully howsoever this is cause enough to give him that doth arrest ground of suspicion 9. If J. S. would have arresteh one that had robbed him and the party suspect forbid him and saith he shall not arrest him this is sufficient cause to make him to be suspected for an accessary And therefore in all these and
whose Husband have not been three years absent beyond Sea or by common report reputed to be dead or three years together from her and she doth not know him to be alive shall be carnally known by any but her Husband except she be ravished it is Fellony and both Man and Woman shall dye without Clergy 3. If any shall carnally know any unmarryed Maid or Widdow they both if they confess it or it be found by verdict shall be committed to the common-Goale without bayle for three Moneths and until they respectively give security before some Justice to be of Good-behaviour for one year the second offence is Fellony without Clergy 4. If any man or Woman be committed for a common Bawd or keeping a common Bawdy-house for his first offence he is to be openly whipped set in the Pillory and marked with a hot Iron in thâ— forehead with this letter B and then sent to Prison or Bridewell for three years without bayle and untill they give surety for their Good behaviour for life The second offence is Fellony without Clergy Act 10. May. 1650. and 9. Aug. 16. 8. 5. No party to be believed against the other not Husband against the Wife nor Wife against Husband 6. If any of these Officers be informed that a Man or Woman be committing of Adultery or Fornication together he may and ought to take company with him and if he finde it so he may arrest them and carry them both to prison till they give suretie of their good behaviour 7. If any Warrant come from a Justice of Peace to any one of these Constables to apprehend 1 H. 7. 7. 13 H. 7. 10. any such lewd person that he may put in sureties for his good behahiour he must execute it duely according the contents thereof SECT 6. Of the Office of the High-Constable and Petit-Constable in common about Rogues IT is the duty of all these Officers to punish Rogues and Vagabonds As touching this part of their Office two things are to be known 1. What a Rogue is and who is to be accounted Against Rogues and Vagabonds 39 Elâ—z 4. 1 Jac. 7. Dalt J. P. 96. Lamb. J. P. 192. 39 Eliz. 17. Who a Rogue is a Vagabond Secondly What is to be done unto him As touching the former of these these things are to be known that all the persons hereafter mentioned being above the age of seven years and offending as hereafter is mentioned shall be adjudged Rogues or at the least shall be punished as Rogues viz. 1. All persons going about begging upon any Numb 1 pretence whatsoever as Sea-faring men pretending losses of their Ships or Goods upon the Sea or such as call themselves Scholars or the like Secondly All idle persons going about the Country either using any subtle craft or unlawfull Games or being Fortune tellers or Juglers or using any such crafty Science Thirdly Stage-players declared to be Rogues and to be punished by Ord. Feb. 1647. 4. All persons that be or utter themselves to be Proctors Procurers Patent-gatherers or Collectors for Gaoles Prisons or Hospitalls And yet Pattent-gatherers for fire or the like albeit perhaps they may be within the words of the Statute yet are they not had or reputed as Rogues nor so to be dealt with for such Patents are alwaies made with a non obstante the Statute 5. All Fencers Beare-wards and Minstrels wandring abroad 6. All Tinkers Pedlers and petty-Chapmen and also Glasse-men that wander up and down the Countrey to sell Wares But if they bee going to a Fayre or Market only they are not to be taken as Rogues 7. All wandring Persons and common Labourers being Persons able in Body using loytering and refusing to work for such reasonable wages as is taxed or commonly given in such parts where such persons shall dwell or abide not having living otherwise to maintain themselves and yet such persons as be of any Parish and have able bodies to work and doe not wander abroad out of the Parish though they refuse to work for the wages given or taxed are not to be sent to their place of byrth or last habitation c. but to the house of Correction 8. All poor Lamb. J. P. 97. persons that are appointed to ask relief in the Parish where they dwell by the Overseeers thereof if they shall beg in any other sort than is so appointed them or shall beg by the high-wayes though in their own Parish And yet these persons are not to be sent to their place of byrth or out of the Town except it be to the house of Correction and so also it seemeth of all other persons that beg in the Parish where they dwell without the appointment of the Overseers in these cases they are to be sent to the house of Correction 9. All persons not being Fellons wandring and pretending themselves to be Egyptians or wandring in the habit forme or attyre of counterfeit Egyptians 10. All such persons as being punished for Rogues and having a testimoniall through their own default shall not pursue the order appointed by the Testimoniall aforesaid for so often as they shall break the same they are to be taken and whipped again untill they come to the place appointed them by the Testimoniall 11. All such poor persons diseased and impotent that being Licenced travell from their home to the City of Bathe or Town of Buxton to the Baths for ease of their griefs or from thence homeward that shall beg or if such persons be not lycenced by two Justices or shall not return home again according as they are limited by their Licence or shall not be provided of relief for their travel 12. All Souldiers or Marriners that shall beg or shall counterfeit any Certificate from their Generall or Governor but this in some cases is Fellony Stat. 39 Eliz. 17. And yet it hath been held that if a Sea-fating man suffering Shipwrack or a poor Souldier or Mariner not having wherewith to relieve himself in his travel homewards and having a Testimoniall under the hand of some one Justice of Peace of or neer the place where he landed setting down therein the place where and the time when he landed and the place of the parties dwelling and byrth whither he is to pass and a convenient time for his passage that if in this time and way they had begged that they were not to be accounted Rogues But it seems the Law at this day is taken by most men to be otherwise and that this Licence will not serve for the Souldier or Mariner especially if he be hurt or maimed for then he may and ought to be relieved with money by every Treasurer of the County where he passeth viz a convenient summe of money to carry him through the same to the next County And it is thought that at this day no Justice of Peace can licence a man to beg in any case Howbeit in some cases he may licence a man to wander as
duty of these Collectors to see them indicted before the Justices that so they may be fined for without indictment they cannot be fined Stat. 14 Eliz. 5. CHAP. V. Of the Governor of the House of Correction for the County and his Office THe Governor or Master of the What he is and how he is chosen House of Correction is an Officer appointed by the Justices of Peace to have Oversight and Government of the House of Correction and of persons committed to the same For such Houses are to be and are provided and maintained with Mills Turns Cards and such like necessary implements in every County for the Keeping Correcting and Setting to work of Rogues Vagabonds Sturdy Beggers and other idle and disorderly persons And the Justices of the Peace or the greater part of them at the Quarter-Sessions are to choose and appoint one or more sufficient and honest persons to be Governors or Masters of the said House and to take sufficient security from the said Governors for the continuance and performance of the said Service and to set down what allowance they shall have yeerly for their pains which they may charge upon the County and for the relief of such as shall happen to be weak and sick in their Custody and for the Stock to set on work such persons as shall be committed thither and to set down other Orders touching the same according to their discretion And this Money so allowed they shall have according to the appointment of the Justices of Peace as aforesaid to be paid quarterly before-hand by the Treasurer of the County for the relief of the prisoners in the Kings-Bench and Marshalsey And if the Treasurer refuse or neglect to pay it thus the Master of the House of Correction may levy the same or so much thereof as shall be unpaid upon the Treasurers accompt by distresse and sale of his Goods rendring unto him the overplus of the Money 39 Eliz. 4. 7 Jac. 4. The Office and Duty of this Officer is in these things First To look well to the same House and His Office and Duty the backside thereof and all the Implements and Goods he doth finde there he is also to look to all the persons he doth finde there or that shall be afterwards committed to him Secondly To receive such Rogues Vagabonds Idle or Disorderly Persons as by any of the Justices of Peace shall be sent thither Thirdly To keep safely all such as are committed to him and not to suffer them to wander about the Countrey or to escape away without Order of the Justices Fourthly To see and take care that amongst the persons committed to his charge if there be any sick or otherwise impotent c. that have need of relief That he doe relieve them according to their necessity Fifthly To see and take care as for the rest that are able to work that he doe from time to time as they shall remain there set them to work and labor for during that time they must in no sort be chargeable to the Countrey for any allowance either at their coming in or going forth or abode there for they are to have such and so much allowance only as they shall deserve by their own labor and work Sixthly To punish them as he seeth cause with putting on Fetters or Gives upon them and by a moderate whipping of them Seventhly and lastly At every Quarter-Sessions to give an account of all such persons as have been committed to his custody And if they shall offend in any of these particulars or any other incident to the duty of their Office the Justices of the Peace may impose such Fines and Penalties upon them for the same as they shall think fit And these fines must be paid unto and accounted for by the Treasurer of the County for the Kings-Bench and Marshalsey CHAP. VI. Of the Keeper of the Gaole of the County and his Office THe Gaoler or Keeper of Gaoler what a Prison is one that hath the Custody of the place and Prison wherein Prisoners are kept and of these there are as many as there be Gaoles and Prisons As to the Power and Office of these Officers His Power and Office these things are to be known 1. They are to receive such Prisoners as are duly sent or offered to them and all that are sent by a Justice of peace Warrant they must receive If any Officer arrest a man upon suspition of Felony and carry him to the Gaoler he must receive him without a Justice Warrant and if any man that is no Officer take a Fellon doing the Fellony and bring him to the Gaoler it seemes also that in this case he is to receive him also 2. His duty and charge is to look well to the Prisoners that are in his custody for if he suffer any of them to escape he will be punished for it If they be Prisoners for debt and he let them escape voluntarily or negligently he must pay to the Creditor his debt If they be in for Fllony and the Keeper suffer them willfully to escape he is a Fellon if negligently he is finable and so he is for the escapes of lesser Offenders 3. It hath been held by some Judges therefore that a Gaoler may justifie the putting of Bolts upon the Legs of any Prisoners committed to him 4. Keepers they are to see that their Prisoners have necessary provision 5. For this the Law doth give an action of debt to the Gaoler against his Prisoner nor can the Prisoner in this action be suffered to wage his law 6. They are to take care that such Prisoners as are in their custody in execution for debt be kept in strait custody and have not too much liberty for by this means they will be forced the sooner to pay their debts 7. They may not compell or procure their Prisoners to become approveres that is accusers of others for this is Fellony 8. If a Prisoner of debt get away from a Gaoler against his will he may follow him and take him again and bring him to and put him in the Gaole again And so he may any Prisoner that is in for any Crime or offence But if a Keeper doe voluntarily deliver a Prisoner of debt there he cannot retake him put him in Prison again for he is discharged of his imprisonment and the Gaoler must satisfie the debt Coo. 9. 87. Dier 249. Stat. 1 Ed. 3. Stat 1 7 5 Ed. 3. 14 Ed 3. Stat. 1 10. Br. Faux Impr. 24. 27. CHAP. VII Of Constables Tithing-men and the like Officers and their Office SECT 1. What they are and how many sorts of them there are TO omit to shew the Etymologie Statute of Wixchester 1. Lāb of the Duty of Constables Finches Law 306. Sir Tho. Smith de Repub l. 2. cap. 25. 12 H. 7. 18. and diverse acceptance of the word Constable the Antiquity and Originall of the Office of the Constable we are
Borsholders Tything-men Numb 1 Borow heads Head-borowes Third-borowes and Lamb. in the Duty of Constables f. 6. Chief-pledges hath two severall Offices at this day the one being his Ancient and first Office and the other his later made Office his first Office began thus By the ancient Lawes of this Nation before the comming in of King William the Conqueror it was ordained for the more sure keeping of the Peace and for the better repressing of Theeves and Robbers That all free born men should cast themselves into severall Companies by ten in each Company and that every of those ten men of the Company should be surety and pledge for the forth-coming of his fellowes so that if any harm were done by any of these ten against the Peace then the rest of the ten should be amerced if he of their Company that did the harm should flie and were not forth-coming to answer to that wherewith he should be charged and for this cause these Companies be yet in some places of England called Boroes of the word Borhes Pledges or Sureties albeit in the Western parts of this Nation they be commonly named Tythings because they contain the number of ten men with their families and even as ten times ten doe make an hundred so because it was then also appointed that ten of these Companies should at certain times meet together for the matters of greater weight therefore that generall Assembly or Court was and yet is called a Hundred And it was then also ordained That if any man were of so evill credit that he could not get himself to be received into one of these Tythings or Boroes then he should be shut up in prison as a man unworthy to live at liberty amongst men abroad and whereas every of these Tythings or Boroes did use to make choice of one man amongst themselves to speak and to doe in the name of them all he was therefore in some places called the Tything-man in other places the Boroes-Elder now called Borsholder in some places in other places the Boroe-Head or Head-Borow and in some other places the Chief-Pledg which last name doth expound the other three that are next before it For Head or Elder of the Boroes and Chief of the Pledges are all one and in some Shires where every Third-Borow hath a Constable there the Officers of the other two are called Third-Borowes Moreover in these Tythings or Boroes sundry good orders were observed and amongst others First That every man of the age of twelve yeers should be sworn to the King Then that no man should be suffered to dwell in any Town or place unlesse he were also received into some Suretyship and Pledge as is aforesaid And that if any of these Pledges were imprisoned for his offence then he ought not to be delivered without the assent of the rest of his Pledges Again That no man might reâ—ove out of one Tything or Boroe to dwell in another without lawfull Warrant in that behalf Lastly That every of these Pledges should yeerly be presented and brought forth by their Chief-Pledg at a generall Assembly for that purpose which at this day is called The view of Frank Pledg And of this ancient Office there is yet some shew in our Leets or Law dayes and well were it for us if the very substance thereof were throughly performed at this day The latter Office of these Officers is in manner all one with the Office of a Petty-Constable Secondly some things these Officers are to Numb 2 doe in their Office they are to doe Ex Officio and by the duties of their places without any command from others and for other they must doe them by command from others and without this they need not doe it not can they justifie the doing thereof Thirdly Some Numb 3 part of their Offices are derived from the ancient Common-Law and other parts from certain Acts of Parliament newly made whereby they are further enabled or charged than they were before by the Common-Law Fourthly Numb 4 The Office of the Petty-Constable and High-Constable is one and the same for most things only the High-Constable is over all the Hundred and the power of the other is only in his Parish or Tything Fiftly That whatsoever the Numb 5 Law doth require of these Officers by the duty of their place that it doth give them authority Daltons J. P. 28. 296. Fitz. Just. P. 30. Lamb. Just of Peace 240. to doe and whatsoever the Law doth give them authority to doe that for the most part the Law doth enjoyn them by the duty of their place to doe Sixtly Whatsoâ—â—er any other man may doe in those things whereabout the Numb 6 Office of a Constable is conversant the Constable What every man may doe in the Constables Office may much more doe And therefore a Constable may without doubt part Affrayors or keep them asunder in a Room of his own or of another mans house for a time to prevent mischief And if he see one coming with a weapon drawn or the like intending to take part in the Affray he may lay hands on him and stay him and he may Arrest or Imprison one he Arrest doth know or suspect to have committed a Fellony Fellons or one that is apparently about to commit a Felony or one that hath dangerously wounded another or night-walkers that are Nightwalkers dangerously suspicious or one that keepeth or useth any Gunne c. contrary to the Statute or the like for in all these cases any other private man that is no Officer may doe the same and justifie it Seventhly That Numb 7 which shall be said of one of these Officers must regularly be understood of all the rest except it be in the cases wherein the office of the High-Constable of the Hundred and of the head Constable of a Town are in some few things singular So that as the Constable of a Parish is to labor to keep the Peace suppresse Fellons execute the Justice of Peace his Warrant and the like So is the Tythingman Borsholder Borohead Thirdborow and chief Pledge of a Parish to doe the same and this Officer where he is called by this name within his Precinct hath the same authority in all things as the Constable hath within his Precinct Eighthly Numb 8 All the cases herein set down touching the office and duty of these Officers must be so understood as to give them authority to charge them within their own limits and precincts only and no farther for howsoever these Officers are bound to look to the Peace to suppress Fellons execute the Justices warrants and the like yet all this is to be understood within their own Hundreds Parishes anâ— Tythings only within which only they have authority and power except it be in some speciall cases shewed after for out of the Compass of their Hundreds Tythings and Parishes they have no more authority than a private man neither are they
such like cases a man may justifie the arresting of the party suspected 3. What shall be said a sufficient cause of suspicion Tryal what not shal be tryed by the Judges 4. It is the duty of these Officers to doe their utmost indeavour with all diligence to finde out and apprehend Fellons And if there shall be herein any neglect found in them especially if it be for favour or reward they may be grievously punished And for this Search cause they may and they must after a Fellony is done either by or without the Warrant of some Justice of Peace make diligent search for him that did it in all such places within their Numb 10 Liberty as they shall understand to be likely to finde him in for it is the chief part of their Office to represse Fellony and albeit it be a mans house he doth dwell in which they doe suspect the Fellon to be in yet they may enter in there to search and if the owner of the house upon request will not open his dores Braking of a house open lawfull it seems the Officer may break open the dores upon him to come in to search And so also it seems the Officer may search for goods stoln as he may for the Fellon himself that doth steal them and if the Officer upon search cannot finde the Fellon it is his duty to raise a Hue and Cry and send him directing it to these Officers whose duty it is carefully to Hue and Cry pursue them as soon as they receive them and it is the duty of all other men being called upon by Officers and at the Cry of the Country to be ready to pursue and arrest Fellons and upon the Hue and Cry any man may atrest him that is taken with the things be he never so honest and he may deliver him and the goods to the Constable of the Town to be kept safely 5. If they be about to arrest any man suspected of Fellony they may require the aid Ayd and help of others both to arrest and carry to prison the party suspected and the parties required must in this case help them at their perill 6. If a private man arrest another man as he may upon his own suspicion and then deliver him to the Constable of the place he 10 Ed. 4. 17. Fitz. J. P. 21. must then look to him that he suffer him not to escape at his perill but that he bring him and the party with him that did arrest him to Carrying of a Prisoner to Gaâ—lâ— a Justice of Peace or that he bring the party arrested to the Gaole for in this case the Constable may not refuse to take charge of a Fellon so brought unto him by another And if there be no Constable of the place where the party is apprehended and the party that doth arrest doth bring the prisoner to the Constable of the next Parish it seems this Constable in this case is bound to take charge of him at his perill 7. If a man flie for Fellonie the Constable Seizâ—re of Goods Fitz. J. P. 201. of the Village where his Goods are must seize them and keep them safe and not part with any of them but so much only as is needfull for the sustentation of the Prisoner and if the Numb 11 goods be impaired the Constable must answer for them and therefore it will be his wisdom to take them by Inventory and in the presence of honest neighbours 8. An Action of Trespass was brought by a man for an Assault and Battery of his Servant whereby he did lose his service three dayes and the Defendant pleaded that A was robbed at midnight of Goods to the value of two pounds whereupon the said A came to the Constable and prayed him to search for the Search suspicious persons and to apprehend and arrest them and accordingly he did search and Arrest found the same servant walking suspiciously in the street in the night and therefore he would have arrested him but the said servant fled and would not yeeld to the arrest and the Defendant by the Constables commandement pursued and took him This was adjudged a good Plea in Barre For when a Fellony is committed the Constable or any others upon suspicion of persons that are suspicious may arrest them and if they will not yeeld to the arrest but assault him or them that doth arrest him they may justifie the beating of him for that he doth resist the Peace Beating justifiable Hue and Cry 29 Ed. 3 9. Pulton de Pace 12. 5 H. 7. 4. and Justice of the Common-wealth when he doth forcibly strive to flie and not to be justified by it If a Hue and Cry be levyed and pursued that a Horse of such a colour or mark so many Beasts of such a sort or age or so many Sheep of such a brand be stoln and Numb 12 one is taken leading or driving of the said Horses Beasts or Sheep In this case it is lawfull for these Officers or any other man to stay and apprehend him and if he that doth apprehend him be not an Officer he may commit him to the Constable of the place where he is apprehended and by him to be put in the Stocks or safe kept until he be delivered by course of Law though the party apprehended be not a man of evill name or fame but a man of good credit for seeing the Law hath by the Hue and Cry accused him he must be by a course of Law again acquitted and discharged And in this case he that is so taken shall not have an Action of Trespass Fals-imprisonment Arrest or other remedy against him that pid apprehend him or against the Constable to whom he was committed albeit he be afterwards acquit of the Fellony In an Action of Fals-imprisonment the Defendant pleaded 27 H. 8. 13. That there was a Fellony done and he suspected the Plaintiff to have done it and therefore he arrested him In this case this was held no good Plea for he should have shewed some ground and cause of his suspicion And in an Action of fall-imprisonment it is no Plea for the Defendant to plead That it was told him that the Plaintiff had brought the Cattel to the Town and put them in a blinde corner and that there was great cause of suspicion that the Plaintiff had stoln them whereupon he did arrest him for suspicion only without a Fellony committed is no cause to arrest another And in an Action of false-imprisonment the Defendant pleaded That J. S. was poysoned and that the common voyce and fame of the Countrie was That the 5 H. 7. 4. 2 H. 7. 15. 11 Ed. 4. 4. Plaintiff had poysoned him whereupon the Defendant apprehended the Plaintiff and committed him to prison as was lawfull for him to doe And this was adjudged a good Plea in Barre of the said Action for common voyce and fame of the Country
sit in the Stocks three houres 3. No Carrier may goe with his Horses no Waggoner Carter or Wain-man may goe Carryers with his Cart Waggon or Wain or Drover with his Cattel on this day under pain to forfeit twenty shillings for every offence to be levyed by distress and sale of his Goods if he be questioned within six weeks after the offence done But there shall be but one twenty shillings forfeited for one journey although he pass through twenty Parishes and this twenty shillings that Parish shall have where the distress is first taken 4. No Butcher may kill Butchers or sell any victuals on this day under pain to forfeit six shillings eight pence if it be questioned within six weeks after the offence done to be levyed by distress and sale of Goods 5. None may Cry shew forth or put to sale Tradesmen any Wares Merchandises Fruits Herbs Goods or Cattel on this day unless it be in an Inne or Victualing-house and for such as cannot otherwise be provided for and unless it be the crying and selling of Milk before nine in the morning and after four in the afternoon from the tenth of September to the tenth of March and for the rest of the year before eight in the morning and after five in the afternoon under pain to forfeit the things so cryed or offered to sale 6. None may on this day without good cause by allowance of one Travellors Justice of Peace travel under pain to forfeit ten-shillings nor carry any burthen nor doe any worldly labour under pain to forfeit five shillings both these forfeitures to be levyed by distress and sale of Goods and if no distress to be had to sit in the Stocks three houres 7. None may on this day or the dayes of Humiliation Drinking Tipling or Thanks-giving use Dancing prophanely Singing Drinking or Tipling in any Tavern Inne Ale-house or Tobacco-house nor be there Or grinde any Corn at a Mill but upon cause to be allowed by one Justice of Peace under pain to forfeit ten shillings a peece both he that is in the Inne and he that keeps the Inne the Millar and he that owes the Corn to be levyed by distress or sale of Goods and for lack of distress to be set six hours in the Cage or Stocks 8. No Traveller Carryer Waggoner Butcher Higler Drover or their Servants shall come into their Inne or Lodging on Saturday night after twelve a clock Nor goe from thence Monday morning before one a clock without necessary cause to be allowed by one Justice of the Peace under pain of the forfeiture of ten shillings by the Inne-keeper and ten shillings by the Traveller and to be levyed by distress and sale of Goods and for lack of distress to sit six hours in the Stocks or Cage 9. None may execute Serving of Process any Writ Order or Warrant on this day dayes of Humiliation or Thanks-giving but in case of Treason Fellony breach of the Peace and profanation of the day under pain to forfeit five pounds to be levyed by distress and sale of Goods and for want of distress to sit six hours in the Cage or Stocks and the serving of the Process is void 10. None but Coaches Boats in case allowed by one Justice or for Gods Service may travel with a Boat Wherry Lyter Barge Horse Coach or Sedan on this day under pain of forfeiture of ten shillings by him that is carryed and five shillings by him that doth carry to be levyed by distress and sale of Goods and for lack of distress to sit six hours in the Stocks or Cage 11. All Constables Church-Wardens Overseers of the Poor Governors of Companies of Watermen Officers and other Officers must upon sight and knowledge or information of any of these offences before named committed seize and secure Seize Goods the Goods and Wares cryed shewed forth or put to sale and make diligent search for the discovering finding out and punishing Search of the offendors under pain of twenty shillings to be levyed by distress and sale of Goods and this punishment they must as it seems endeavor by carrying the offendor to a Justice of Peace And this it seems is hereby lawfull to be done by one of these Officers ex officio and without a Warrant hearing or seeing any one prophane this day by any of the particular offences aforesaid Also if a Warrant be sent to the Constables Church-Wardens and Overseers of the Poor of the Parish or place to levy the forfeitures or to inflict the punishment aforesaid they must pursue their Warrant and doe it under pain of twenty shillings forfeiture Stat. 1 Car. 1. 3 Car. 1. Ordin 6. April 1644. Act 19. April 1650. SECT 4. Of the Office of High-Constables and Petit-Constables against Swearers AS touching this these things are to be premised 1. The former Act is repealed 2. Every one that sweareth is to forfeit for the first offence as followeth The Lord and all above him in degree thirty shillings The Barronet or Knight twenty shillings The Esquire ten shillings The Gentleman six shillings eight pence Any other Man or Woman single or married three shillings four pence And for every offence afterward twice as much And for the tenth offence being proved by verdict or confession he is to be bound with Sureties to the Good-behaviour for three years And for lack of payment or giving security to pay it and distress to levy it If he be above twelve years old he is to sit by the heels in the Stocks three hours for the first offence and six hours for every offence after If under twelve years he is to be whipped by the Constable or Master or Father in his presence 3. Swearing after the Surety for the Good-behaviour given is a breach of the Bond. 4. Any Officer Constable Church-Warden or Overseer of the Poor may ex officio that heareth it bring the offendor to a Justice to be punished And if any one Justice of Peace send his Warrant to any high-Constable or petit-Constable to doe execution upon this Statute they are to see it done accordingly 5. He that is sued for doing any thing on this Law may plead the general issue and if it goe Pleading Costs with him shall recover treble cost Act. 22. Junii 1650. SECT 5. Of the Office of the High-Constable and Petit-Constable against Adulterers and Incontinent Persons FOR the knowledge hereof take these things 1. If any shall marry or have the carnal knowledge of the body of his or her Grand-father or Grand-mother Father or Mother Brother or Sister Sonne or Daughter or Grandchild Father or Mothers Brother or Sister Fathers Wife Mothers Husband Sonnes Wife Daughters Husband Wifes Mother or Daughter Husbands Father or Sonne and confess it within twelve moneths after or if it be found by verdict before Justices of Assize and the Peace it is Fellony wherein is no Clergy 2. If any marryed Woman
forfeitures arising in the Sessions of the Peace or in the Leet upon the Statutes of High-wayes of which Estreats one part ought to be delivered yeerly within six weeks after Michaelmas to the High-Constable of the Hundred wherein the defaults were committed and the other part to the Constables and Church Wardens of the Parish wherein the defaults were to the end that such High-Constable may thereby levy by distress the same forfeitures or the double thereof if no distress can be found or if such forfeitures be not paid within twenty dayes after a lawfull demand of the same by the Officer and to the intent also that the said Constables and Church-wardens may thereby call the said High-Constable to an account before two Justices of Peace the one being of the Quorum for the said High-Constable is once every year between the first day of March and the last day of Aprill to make a true account and payment of all such summs of monie as he hath received by means aforesaid to the Pety-Constables or Church-Wardens of the place where the offence is committed or any two of them under pain of fourty shillings And this if they refuse to doe they may be compelled unto by the Church-Wardens by the help of any two Justices of the Peace the one being of the Quorum And this monie is to be bestowed by the Church-Wardens on the High-wayes of the Parish And upon this account the High-Constable is to have for his pains eight peace for every pound he hath levyed and paid SECT 4. Of the Power and Duty of the High-Constable alone about keeping petty-Sessions Sea-banks in Northfolk presenting of Recusants THe High-Constables in all such Shires Keeping petit Sessions 5 Eliz. 4. where the petit Sessions for Servants and Laborers otherwise called Statute Sessions were used to be kept before 5 Eliz. may yet still hold their Sessions so that nothing be done in them contrary to the Statute of Laborers and Servants made 5 Eliz. 4. The High-Constables of Hundreds there Sea-banks in Norfolk 29 Eliz. 24. must overlook the work for amending the Sea-banks according to the order of the Justices of Peace at Sessions The high-Constable in default of the Church Making Presentment of Recusants 3 Jac. 4. Wardens and Constables of the Parish is once a year to present at the Sessions the names of Popish Recusants their Children and Servants CHAP. X. Of the Office of Constables of Towns that are head Officers and have others under them about Weights and Measures unlawfull Games Coopers Merchandise making Mault THere are also in some places Constables of Towns or Parishes that are head Officers and have others under them And these in some Corporate Towns are part of the name of their in corporation And in some places they have other Officers under them And this Officer is in some Statutes called a High-Constable And to him doe some of the things aforesaid belong in common with other Constables as to make a Testimoniall for a Servant to goe into another Parish to compell an Artificer to work in the Harvest time and some other things And some other things there are that are said to belong to the Constable of a Town only and to none other of the Officers aforesaid as the things hereafter mentioned viz. 1. Every City Borough and Market Town Weights and Measures 8 H. 6. 5. 11 H. 7. 4. that hath a Constable ought also to have common measures sealed and also common weights sealed at which the Inhabitants may freely weigh 2. The Major Sheriffs Bayliffs Constables Uunlawfull Games 13 H. 8. 9. and other head Officers within every City Borough and Town where any such Officers be ought under pain of fourty shillings for every default once every moneth at the least to make search as well within Liberties as without in all places where any unlawfull Games shall be suspected to be kept and may arrest and imprison as well the keepers of such places as the haunters to the same till they be bound no more to keep and haunt such places And if any such Head Officer shall finde or know that any Artificer Crafts-man Husband-man Apprentice Laborer Servant at Husbandry Journy-man or Servant of Artificer Or that any Mariner Fisher-man Water-man or Serving-man doth play at the Tables Dice Cards Tennis Bowls Closh Coyting Logating or other unlawfull Game out of Christmas time or out of their Masters house or presence in the Christmas time unless it be by the licence of such Masters as have 100 l. by the year or above and then also that playing be within the precinct of such Masters House Garden or Orchard then such head Officer may commit such offendor to Ward till he shall be bound by such obligation to the use of The Keepers of the Liberty c. in such sum as to the discretion of such Officers shall be thought fit that he shall not from thence forth use such unlawfull Games 3 In all Cities Boroughs and Towns Coopers 23 H. 8. 4. wherein no Wardens of Coopers be the Majors Sheriffs Bayliffs Constable or other head Officers there have power to search view and gage Barrels Kilderkins Firkins and other vessels to be made there and to take such advantage thereby and in such manner as the Wardens of Coopers within the Citie of London may take on every behalf 4. If any Woolls or other Merchandizes Merchandize 14 H. 6. 5. be shipped to the Staple in any suspected place adjoyning to the Coast of the water then Indentures ought thereof to be made between the owner and the Major or Constable of that place or otherwise such Merchandize shall be forfeited 5. The Constable of every Borough or Making of Mault 27 Eliz. 14. Market-Town or other Town may view search and survey all such Mault as shall be made or put to sale there And if he shall finde any Barley-Mault made at any time the moneths of June July and August only excepted but that the same shall have the space of three weeks at the least in the Fat Floar Steeping and such sufficient Floar Steeping and such sufficient drying thereof and in these three moneths the space of seventeen dayes at the least And if he finde any person to put to sale any good Mault mingled with Mault not sufficiently made or with Mault made of Mow-burned or spired Barley or put to sale any Mault not sufficiently well trodden rubbed and fanned whereby half a peck or more of dust may be fanned out of one Quarter thereof then may such Constable with the advice of one Justice of the Peace in that Shire cause the same Mault to be sold to such persons and at such reasonable prices under the common price of the Market as to his discretion shall seem expedient All these things last aforesaid appertain only to the head Constable of Market and great Towns and as it seems the High-Constables of Hundreds and petty-Constables and Tything-men of
are chargeable to this Rate and for these things they must be proportioned to a yearly benefit So that if a man have a hundred Acres of wood within the Parish it must be considered what wood he may sell and what benefit he may make thereof yearly to the Worlds end and according to the same the Rate must be made And for Coal-mines it must be considered what benefit a man doth make by them and according to the same he must be rated 10. Parsons Vicars and such like persons as Inhabitanâ—s within the intent of this Statute are to be rated towards the relief of the Poor as well as other men and so hath it been Resolved of late by the Judges 11. Any man that dwelleth within the Parish albeit he have no Land within the Parish may be rated towards the relief of the Poor of the Parish And so hath it been also Resolved by the Judges 12. In some cases a man may be taxed for his Goods as well as for his Lands and in case of a Rate for the Poor men may be taxed for their visible Estate of goods viz. their Oxen Kine Sheep c. as well as for their Lands and not only for those goods that are within the same Parish where a man doth dwell but also for those goods which he hath in any other place for a man shall not be rated for his goods in any place but in the place where he doth dwell Nay it is held in this case of Rating for the poor some respect may be had to mens invisible Estate of money for the case may be so that the Raters may know a man within the parish that hath no other Estate and yet perhaps hath an annuity of one hundred pounds by the year or hath hundreds of thousands of pounds of money owing to him and in such a clear and certain case they may no doubt Rate him according to that value 13. In some special case a man may be Rated beyond his ability for if a Parishioner for his own gain or otherwise shall bring into the parish without the consent thereof a Stranger who is or is apparently like to be burthensom to the parish in this case the Parishioners because they have no other remedy against him may Rate him not only according to his ability of Lands and Goods but according to the Damage he bringeth or is like to bring to the Parish by his folly For if any person shall finde himself grieved with any such Rate to the Poor or other such like act done by the Overseers of the Poor or the Justices of the Peace he hath no other remedy but to complain to the Justices of the Peace at the Quarter Sessions where the case appearing to be as aforesaid he shall have a little relief 14. If any man refuse to pay his Rates for the poor the present or subsequent Overseers of the Poor shall have a Warrant from the Justices of the Peace to levy the same of the parties Goods And thereupon they may and must sell the parties Goods and pay themselves their Rate and give the party the over-plus of the money if there be any and if he have no Goods then to carry him to Gaol there to abide until he doe pay it It seems to me that for relief of the poor that they have not places for in case of necessity that they may Rate the parish to build a house and to buy a peece of ground in some of the Parishioners names to set it upon For it is in their discretion which way to provide And if they over-rate any man to these ends they cannot be sued by the party grieved But if there be any conspiracie in the case to oppress a man or he be rated to pay debts or for Alimonie or for any other purpose by these Officers an Action will lye against them These Officers with the Church-wardens the Parson or Vicar and the Constables of the place or the most part of them where any money is or shall be given to be continually imployed for the binding out as Apprentices the poorest sorts of Children shall within the same places have the nomination and placing of such Apprentices and the guiding and imployment of such monies as have been heretofore so given or which hereafter shall be so given to and for the continual binding forth of such and so many Apprentices and in such sort as is already or shall hereafter be so given and appointed either by the last Will or any Writing under the Hand and Seal of the givers of such monies And if any of them wilfully forbear or refuse according to their duties to imploy such monies by means whereof the said monie shall not be imployed accordingly then every of them so offending shall forfeit three pounds for every such offence And the Master Mistress or Dame of such Apprentices shall be bound with one or two sufficient Sureties in double the sum they have received with such Apprentices to such persons as aforesaid appointed to dispose the same monies to repay the money so received at seven years end or within three moneths next after the same seven years ended And if the Apprentice Master c. happen to die within the said seven years then within one year next after such death And these Officers and the rest ought to put forth and employ such monies within three moneths at the furthest after the same shall come to their hands And if there shall not be found fit persons to be bound out Apprentices in the Towns and Parishes where such monies are or shall be given to be employed as aforesaid the poorest Children of any of the Parishes next adjoyning may by the discretion of the said Parson Vicar c. be bound Apprentices taking such Bonds as are before mentioned And choise must be alwaies made of the poorest sort of Children and that no Apprentice be above fifteen years old when he shall be first bound And the said Parson Vicar c. are once every year in Easter week or within a moneth after Easter day to be accomptable before four three or two Justices of the Peace dwelling in or next the said Towns or Parishes for all such monies as they have employed in binding of Apprentices and of all Bonds and Obligations taken for payment thereof and of the monie remaining in their hands and are at such accompt or within ten dayes after to deliver to their Successors or to such as have been in their times or places all the said Bonds and Obligations and such monies as remain in their hands not then employed They must being required by the Justices Numb 8. of Peace attend them and with the Church-wardens In making Presentment give them an accompt of these things what Stocks of monie are in their Parish by Rates or otherwise what Apprentices they have placed and what they have done in all the rest of their Office These Officers and the
is in the Inn and he that keeps the Inn the Milard and he that owes the Corn to be levied by distress and sale of Goods and for lack of distress to be set six houres in the Cage or Stocks 8. No Traveller Waggoner Butcher Higler Drover or their Servants shall come into their Inn or lodge on Saturday night after twelve a clock nor goe from thence Monday morning before one of the clock without necessary cause to be allowed by one Justice of the Peace under pain of forfeiture of ten shillings by the Traveller and to be levied by distress and sale of Goods and for lack of distress to be set six hours in the Stocks or Cage 9. None Serving of Process may execute any Writ Order or Warrant on this day dayes of Humiliation or Thanksgiving but in case of Treason Fellony breach of the Peace any profaning of the day under pain to forfeit five pounds to be levyed by distress and sale of Goods and for want of distress to sit six hours in the Cage or Stockâ— and the serving of the Proces is void 10. None but in case allowed by one Justice or for Gods service may travel Coaches Boats with any Boat Wherry Lyter Barge Horse Coach or Sedan on this day under pain of forfeiture of ten shillings by him that is carried and five shillings by him that doth carry to be levied by distress and sale of Goods and for lack of distress to sit six hours in the Cage or Stocks Any one of these Officers upon their own sight or knowledge of any Offence done by selling crying or offering of Wares to sel on the Lords day as before may seize and secure the Wares and Goods till Justice may be done against the Offender therein Also any of these Officers may search for the discovery finding out apprehending and punishing of all the Offenders against any of the Lawes aforesaid And all that this Officer is to doe as it seems by this Law is only to search and if he finde any thing to inform the Justice of Peace thereof for it seems to me he cannot doe more without a Warrant from a Justice of Peace Act. 9. April one thousand six hundred and fifty Every one that sweareth is to forfeit for Numb 10 the first Offence as followeth The Lord Against Sweaters and all above him in degree thirty shillings The Baronet or Kinght twenty shillings The Esquire ten shillings The Gentleman six shillings eight pence Any other man or woman single or married three shillings four pence and for every offence afterwards twice as much And for the tenth offence being proved by verdict or confession he is to be bound with Sureties to the Good-Behavior for three years and for lack of payment or giving security to pay it and distress to levy it if he be above twelve yeers old he is to sit by the Heels in the Stocks three hours for the first offence and six hours for every offence after if under Twelve years he is to be whipped by the Constable or Master or Father in his presence three swearings after the Surety for the Good-behavior given is a breach of the Bond. Any one of these Offcers may without Warrant apprehended or cause to be apprehended and carry or cause to be carried to a Justice of Peace to the end he may be there punished any one that doth swear or curse against the Law Act. 28. June one thousand six hundred and fifty Any one of these Officers may also take About superstitious Monuments down superstitious Monuments and Pictures upon the Ordinance of May one thousand six hundred fourty and four If a Rogue be tendred and brought to any About Rogues one of the said Officers to be conveyed to any place he is to receive him and look to him as well as the Constable or he may forfeit the five pound penalty appointed by the Statute of 29 Eliz. CHAP. XIII Of the Supravisors of the High-wayes and their Office THe Supravisors or Surveyors Numb 1 of the High-wayes are What they are and how they are chosen Officers yearly chosen by the Constables Church-wardens of the Parish to look to the amendment of the High-wayes within the Parish For the Constables and Church-wardens of every Parish must yeerly upon the Tuesday or Wednesday in the Easter week call together some of the Parishioners and then choose two honest persons of the Parish to be Orderers and Overseers of the works for the amendment of the High-wayes of the Parish leading to Market Towns But now by the new Ordinance the choise is to be made the first Tuesday after the twenty fifth of March yearly And the safe way is to choose them the first and to choose them or approve them the second day again The which persons so chosen shall have power to order the persons and carriages appointed for the work acâ—â—â—ding to their discretion And if either of the said persons so chosen and appointed shall refuse to take on him and execute the said Office he shall forfeit twenty shillings for this refusall Stat. 2 3 Phil. Ma. c. 8. 18. Eliz. 9. 5 13. 29. 5. For the discovery of the duty of these Officers Numb 2 and the Law in this point these things Their Office and Duty are to be known 1. That they have to doe with no wayes but the publick High-wayes And so hath it been resolved by the Judges in the Upper Bench For the Statute is High-wayes leading to Market Towns 2. The Constables and the Church wardens of the Parish are at the time of choosing of these Officers to name and appoint six dayes to be before the Nativity of Saint John the Baptist then next following set apart for the amending of the High-wayes and they are to give notice thereof the next Sunday after in publick in the Church And this being done these Officers viz. The Surveyors of the High-wayes are to see that the same be observed and that all the Parishioners doe their work on the same dayes in manner as followeth 3. Every person having a Plough Land in Tillage or in Pasture in the same Parish or keeping there a Plough or a Daught shall finde and send on every day to the place appointed one Wain or Cart provided after the fashion of the Country with Oxen c. fit for the carriage and with necessary Tools fit for the work and with two able men and then and there these men must doe such work with their Plough c. as they shall be appointed to doe by the Surveyors aforesaid by the space of eight hours on every of the said dayes under pain to forfeit for every default ten shillings And every other Housholder Cottager and Laborer of the Parish able to labor and being no hired Servant by the year must by himself or some other able man be then and there ready to work and work every one of the said six dayes by