Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	court_n	judge_n	law_n	3,614	5	4.9602	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A93108	A new survey of the justice of peace his office· Wherein is briefly, yet clearly opened the severall parts thereof: and what one, or more justices of peace may do therein, in, or out of the sessions of the peace, by all the laws made to this day; and now in force. With the names, or times, of the statutes, acts, and ordinances themselves, relating to this office. Alphabetically set down under apt titles. / By W.S. Serjeant at Law.	Sheppard, William, d. 1675?	1659 (1659)	Wing S3194; Thomason E1871_1; ESTC R203711	101,664	254

not safely in any case baile such a person Baile accused of Felony But if he see cause or desire to Bail him because the offence is small as perhaps but a Petit Larceny or if it be greater and the evidence against him is very little or none at all he must call to his assistance another Justice of Peace For there must be two Justices of the Peace and one of them of the Quorum and they must be together to do this work See Baile and 1 2 Ph. and M. 13. 10 Any one Justice may send his Warrant to arrest any one that stands indicted of a Felonie See the Presidents in the Cabinet for all these things Chap. 5. throughout Chap. 25. 1 c. 2. Any two Justices before whom Reward for the taking of Felons any one shall be convict of a Robbery or Bu●glary may give order to the Sheriff to pay to the party that did apprehend and prosecute him 10 l. for his reward therein Act. 17th of Septemb 1656. 3. How Felonies done beyond Sea may be prosecuted here by the Prosecutor thereof and what the Justice of Peace is to do in it see Act. 20th of September 1649. 4. How and at whose charge Felons shall he carried to Goal see Sect. 20th of this Chapter SECT 17. About Fish and Fishers AS to this we are to know 1. That no Fisherman is to be forced to be a Marriner under the Lord Pro●ector's Commission unlesse he be chosen by the two next Justices to the place where he dwells 5 Eliz. 5. 2. Justices of the Peace are to be Conservators of the Rivers and shall have power to ●arch We●res lest by their straitnesse the Fly of Fish be destroyed Upon we●● 2. ●● and 13 ● ●●9 And they may appoint under-Officers to look to the Rivers and to inform against offenders therein West 2. 47. 13 R. 2. 19. SECT 18. About a Forcible Entry AS to such as make Forcible Entries into Lands in this case any one Justice of Peace upon Complaint hereof made to him and that the Force doth continue may go to the place to view it And if he find it upon his own view to be so he may remove it Record the Force and as some would have it Fine the offenders according to his discretion bind them to the good Behaviour send them to Goal till they have paid or secured the Fine And then make a Record of all this and certifie it into the Upper-Bench or Quarter-Sessions which he will And when the Fine is paid or secured he may deliver the offender But if the Force be done and past Then hath he nothing to do but to summon a Jury to enquire of it which he must do by his Warrant to the Sheriff and do it within a moneth of the Complaint or it will be very panal to him And by this Jury upon a Traverse he must enquire And if the Jury find any Forcible Entry or detainer in the Case then is the Justice to send his Warrant to the Sheriff to restore the party put out of into possession again and may Fine c. 15 R. 2. 2. 8 H. 6. 9. 31 Eliz. 11. 21 Iac. 15. See for this the Books at large and in my Iustice of Peace Book Chap. 15. and in the Clarks Cabinet See all the Presidents of Warrants for it in Chap. 7. of that Book And because there is some difficulty in Caution to Justices this work it will be the Justices wisedome to call in for the help of some or at least of one of his Fellow-Justices of Peace herein SECT 19. About Free-Quarter AS to Souldiers that take Free-Quarter in mens houses against the owners consent In this case any two Justices of the Peace may examine the offence upon Oath And when they have done this they are to send this Examination under their hands and seals up to the Committee of Examination Certificate the Army And so satisfaction will be made to him that is wronged Upon Act. 19. December 1651. 24 April 1648. and 24 December 1647. SECT 20. About Goals or Prisons and Prisoners AS to this take these things 1. Justices of the Peace regularly are to send such prisoners as they do commit to prison to none other but the Common-Goal of the County Upon 5. H. 4. 10. And yet where any Statute directs them to send to another prison as to the Bride-well Stocks or the like there they must pursue the same direction 2. The Goaler is to receive such a prisoner so sent to him by a Justice of Peace and that without Fee And if ●he Goaler do not so he may be punished by the Justices of the Peace by Fine for his Contempt c. But not upon the Statute of 4 Ed. 3. 10. For the Justices of the Peace have not the power of Execution of that Statute 3. An offender to be conveyed to Charges of Convey of a Prisoner to Goal Goal is to bear all the charge of himself and of those that guard him thither if he be able And in case he refuse so to do Any one Justice of Peace may send his Warrant to the Constable of any Township in the County where he hath goods and take them and prize them by four of the Neighbours and sell so much thereof as the Justice shall think fit to satisfie the charge And if the offender have no goods a Rate for Rate the raising of the money may be made by the Constables and Church-wardens and two or three others or for lack of such Officers by four of the more sufficient men of the place where he was taken And any one Justice of Peace may by putting his hand to it confirm it And after give his Warrant under his hand to levy it by distresse of the goods of them that refuse and after apprisal by four of the Inhabitants by sale thereof to give back the over-plus And so to pay over the money to them that did bear the charge of his Convey to prison Upon 3. Iac. 10. See the President for this in the Clark's Cabinet Chap. 17. SECT 21. About Habeas-Corpus Certiorario Supersedeas Writ of Errour AS to these four things which are Writs that serve to prevent stop or undo the power of the Justices of the Peace these things are to be known 1. The Habeas-Corpus is to remove Remove of Records and Prisoners the prisoner and his cause from the Justices into a higher Court upon supposall that they are doing or have done illegally The Certiorani to remove the Cause and Record from before the Justices before a higher power upon this pretence The Supersedeas is from a Higher Court to forbid any further or other proceeding before the Justices The Writ of Errour to undo what hath been done before the Justices where upon on Indictment or Information a Judgment is given against Law 2. Every Habeas-Corpus and Certiorari to remove a Record or Prisoner ought to be signed

by one of the Judges of the Court whence it comes Upon 1 and 2 Ph. and M. 13. And yet if this be omitted the Justice of Peace must notwithstanding obey it 3. Writs of Supersedeas out of the Higher Courts are to be void that are not granted upon Motion in the open Court and upon good cause also shewed by Oath and the same set down on the back of the Writ And if this be not done it seems the Justices of the Peace may refuse to obey it Upon 21 Iuc 8. 4. No Remove shall be of an Indictment grounded upon the Ordinance of June 1654 about Challenges Nor Challenges upon the Act of the 6th of October 1650. where the proceeding is upon any penall Law for the buying selling searching viewing ordering or disposing of any Corn Wint Beer Ale Fish Flesh Sale-Butter Cheese or any other dead Victuals whatsoever Nor upon any Indictment grounded upon the last Act made the 17th of September 1656 about the Sabbath Nor to remove any Presentment or Conviction for a Popish Recusancy Nor shall any Writ Recusants of Errour be granted to reverse any such Conviction Upon the Act of 17th of September 1656. 5. The Justices of the Peace may refuse to send away an Indictment upon any such W●it if it be for a Ri●t Forcible Entry Assault and Battery except the Writ he delivered in ●● the Justices of Peace in their Quarter-Sessions sitting the Court and except the party indicted will be bound with good Sureties to pay the Prosecutor his Costs But in case of Indictments for a Foreible Detainer and for any other offence then that before named it is otherwise Upon 21 Iac. 8. 6. The Justices of the Peace when any such Writ is duly ●ssued ●orth and sent to them must obey it for it is penal to them if they do not so And if the Writ for bid the Justice to do that which he hath sent out his Warrant to command to be done he must recall and countermand his Warrant 7. If the Writ do not require the sending away of the Recognizance that the Justice hath taken he ●● to send the Writ and Recognizance to the next Sessions to be siled there 8. The Judges of the Higher Courts that do send for any such Record or prisoner may if they please send it down again to be determined by the Justices of the Peace Upon 6 H. 8. 6. See Steel's Rep. 475. 322. 399. SECT 22. About High-wayes and Bridges AS to High-wayes and Bridges these things are to be known 1. Any one Justice of Peace may upon his own View make a Presentment to the Sessions in the nature of an indictment against any place or Parish for that their wayes are not sufficiently amended And also against any man for any offence by him done against the Statutes of 2 3 Ph. and M. 8. and 5. Eliz. 13. That is to say The Constables and Church-wardens of the place for not choosing the Surveyors or not setting down the time for the six dayes work or for not giving publike notice thereof in the Church Or the Surveyors for refusing the Office or for their neglect in their office and in particular for not making Presentment to a Justice of Peace of such defaults as they find upon these Statutes Or the Parishioners that do not observe and attend to do the dayes-works appointed them Or such as suffer any Nusances in their Grounds hedges or ditches near to the High-wayes Or the Baylifts or High Constables for their neglect in the levy of the Amercements sent to them by the Clerk of the Peace against oftenders about the High-wayes or for the not making of their Account and the like And this presentment of the Justice if he have cause to have it drawn up he may put the Clerk of the Peace to do it And being put in it is of the same sorce as if it were found by Grand-Jury 2. Any one Justice may and must receive from the Surveyors of the High-wayes any Presentment that they shall make and tender to him of any default upon these two before named Statutes about the High-wayes And this Presentment he is to certifie and send in to Certificate the next Sessions under pain of 5 l. upon 5 Eliz. 13. 3. There must be two Justices one of them of the Quorum to enforce and take the Account of any Officer that hath in his hands any of the Forfeitures upon the Statute of 2 3 Ph. M. 8. about High-wayes And to imprison them who do account and are sound to have money in their hands till they pay it But if in this case the Officer be Caution to the Justices obstinate they cannot tell what to do to order him But it must be in the Sessions or no where See Steel's Rep. 399. Chap. 7. Sect. 6. 4. Any one Justice might have caused High-wayes to be enlarged and cleered of Trees and Bushes upon the Statute of Winchester 1 Ed. 3. But now they do nothing out of Sessions but according to the two afore-named Statutes 5. There must be four Justices of the Peace one of them of the Quorum Bridges And where so many Justices are not met together it cannot be done who with the Constables and two of the Inhabitants of every Parish and without their consent also it cannot be done to tax the Inhabitants of any place or places for the repairing of a Bridge or High-way within 300 foot of the Bridg when it is unknown who ought to repair it And they may appoint two Collectors to gather the money and two Surveyors to look to the work and to give an Account thereof and of the Account money And they may call these Officers their Executors or Administrators to an Account Upon 5 Eliz. 13. and 18 Eliz. 9. 6. For the Repair of Chepslow Bridge see 3. Iac. 23. 7. For the Repair of the High-way●s in the Wild of Kent see 14. 15. H. 8. 6. Of Huntington Lane near to Chester see 37 H. 8. 3. In Sussex see 39 Eliz 19. 26 H. 8. 7. 15 H. 8. 6. Of the Cauce-way between Dorchester and Sherborn see 1 Mar. Parl. 2. Chap. 5. Of the King's Ferry in Kent see 18 Eliz. 10. SECT 23. About Horses AS to this there is this onely as belonging to the Office of the Justice of Peace out of Sessions to be known That if any horse be stolne and sold in an open Market the true owner thereof or his Executors may within six moneths after the stealing thereof make his claym for him before any one Justice of Peace near to the place where the horse is found And this Claym the Justice of Peace to whom it is made must take and hear And if within fourty dayes after the claym he can make proof his property by two Witnesses upon oath before the Justice and will pay down to the buyer so much as he before the Justice will depose that he bond side

price or above the prizes set by the Justices 63. So to punish Usury upon 13 Eliz. Usury 8. 1 Ed. 4. 2. 64. The Abuses in the sale of Wines upon 1 Ed. 6. 5. Wines 28 H. 8. 14. 7 Ed. 6. 5. 65. Those that have not or use not just Weights Weights and Measures according to the Standard upon 12th of March 1649. 11 H. 7. 4. 8 H. 6. 5. 11 H. 6. 8. 1 H. 5. 10. 7 H. 7. 4. 66. Order the dividing of a Wood between Lord and Tenants Wood. upon 25 H. 8. 17. And so generally all the offences that the Justices of the Peace or any of them may punish out of Sessions all these the Justices may punish in the Sessions And some others there may perhaps be that we have not named in the one nor in the other that the Justices of the Peace may have Conusance of And their ordinary way of proceeding herein for the tryall of these offences and Conviction of these offenders is The offender is to be Presented or Indicted And thereupon Process go●h out against him to come in to answer it And he comes in and doth either Consesse or Traverse it And upon his Traverse a Jury is charged to try the matter of Fact And if the Jury find him guilty Then Judgment is given If it be an offence at common-Common-Law the same is commonly by Fine and Imprisonment at the discretion of the Court. If upon a Statute-Law he is judged to bear the penalty appointed by the Statute for the offence which they may not mitigate but in case of a speciall Submission before ple●ding And execution followeth And sometimes they use for a part of the punishment to bind to the Peace or to the good Behaviour CHAP. V. Of the things they may do out of a Sessions indifferently THere are many things that the Justices may do within or without their Sessions indifferently as they please So to set down the Prices of Ale and Beer Upon 23 H. 8. 4. Hear Prices of Ale and Beer and end offences about Pheasants c. upon 1 Iac. 27. Force the Clothier to pay his Workmen his wages upon 1 Iac. 6. So in divers other Cases as 1 Iac. 6. 2 3 Ed. 6. 10. 17 R. 2. 9. Ord. 21 May 1647. where it is said The Justices shall do a thing which may be done out of Sessions But all things will be most safely done in the Sessions We have shewed what the Justices of the Peace may do out of and in their Sessions we shall now shew what they may not do at all within or without their Sessions See more in Chap. 7. CHAP. VI. Of the Things the Iustices of Peace have no Conn●sance FOr answer to this take these things 1. The Justices may in their general Treason Sessions enquire of and take Presentment of any High Treason Petit Treason or Misprision of Treason by the Common Law but they may not there further proceed therein Not have they to do with the Statutes of Treason and Premunire about Jesuits Priests and Popery Upon 1 Eliz. 1. 5 Eliz 4. 1 Iac. 4. 5. 3 Iac. 5. 13 Eliz. 1. 2. They may hear and determine all Folonies Felonies that are Felonies by the Common-Law And such Felonies that are made so by the Statutes that give them power to hear and determine them But they seldome or never m●ddle further with any such Felonies then to commit the Felons and bind over the prosecutors and witnesses to be before the Judges of the Goal-delivery to whom they alwayes leave it except in case onely of Petit Larcenies But for Felonies by Imbezilling a Record Felonies by Statute-Law upon 8 H. 6. 12. by forg●ng of deeds upon 5 Eliz. 14. By confederacy of Masons upon 3 H. 6. 1. By carrying away a woman against her will Upon 3 H. 7. 2. By double marriage upon 1 Jac. 11. By Witchcrast upon 1 Jac. 12. By a Goaler in making his Prisoner an Approver upon 14 Ed. 3. 9. By acknowledging a Fine in anothers Name upon 21 Jac. 29. By Servants that imbesil their Masters goods upon 21 H. 8. 7. 5 Eliz. 10. By burning of a house or Frame of a house upon 37 H. 8. 6. And some others the Justices of Peace have nothing more to do with these within or without their Sessions but to examine the offender send him to Goal c. as they do with other Felons 3. The Justices of the Peace have nothing to do about Maintenance and Champertie upon 32 H. 8. 9. Nor Maintenance Sheriffs Clerk of the Market Coopers Wooll and Cloth Servants Bowes about Sheriffs upon 1 Ed. 4 2. 4 Ed. 3. 10. Nor about the Clerk of the Market upon 13 R. 2. 4. Nor about Coopers upon 23 H. 8. 4. 31 Eliz. 8. Nor about woollen Yarn upon 7 Ed. 4. 3. Nor about Cloth upon 43 Eliz. 10. 27 H. 8. 12. Nor about a Servants wasting of the dead Masters goods upon 21 H. 8. 7. Nor about Bowes upon 12 Ed. 4. 2. 1 R. 3. 13. Nor about selling of Cattle upon the 3 4 Ed. 6. 19. Nor about Cattle Importation bringing in of Forreign Wares upon 5 Eliz. 7. Nor about the prices of Bowes upon 8 Eliz. 10. Nor about Usury upon 8th of August 1651. Nor about the Directory upon Act. Directory 23 August 1645. 26 April 1645. And some other Statutes and offences thereby made there are about other things wherewith the Justices of the Peace have not to do at all 4. They cannot here give a Remedy for a debt a Legacy or for Alimony Legacy Alimony But if a Wife be a charge to a Parish they may rate the Husband to help the Parish See more in Chap. 7. CHAP. VII Of the Order of the proceeding by the Iustices of the Peace in the punishment of offenders within and without the Sessions of the Peace SECT 1. THe Order and manner of proceeding against offenders for the punishment of the offences we have spoken of is either within or without the Sessions The Course of the Justices of the Peace in the Sessions is to enquire by Jury and to take their Presentment or to receive Indictments and in some cases Informations preferred by others And thereupon to grant out process against the offenders to come in and answer the matter whereof they are accused And upon theie appearance if they do not consesse the offence to take and enter their Traverse charge a Jury with the matter of Fact And if the Jury find them guilty thereof the Justices do give Judgment as the case deserves of Fine Imprisonment or Amercement or otherwise And Execution is done thereupon accordingly And so an offender there becomes attaint or convict of his offence either by his confession of it when he is to plead to it upon the Indictment Presentment or Information or when upon his Traverse to it the same is referred to a Jury to try whether he

them Others To examine and determine them Others To hear or in the disjunctive determine them Others To determine them And some of these also have divers Additions of other things to them As that they may do it by Verdict or That they shall do it by Examination or otherwise Or That it shall be by Witnesses or by two lawfull witnesses or Confession or that it shall be upon Presentment Indictment or Information Or that the Justices shall call the parties before them send out process give Judgment punish do Execution or the like How all these shall be understood Answ We conceive That generally all these words shall have one and the same Construction and operation in the Law And that the Justices of the Peace by either sort of these words in a Statute c. have a compleat power of Oyer and Terminer given to them of the offences named by the Statute And that the same or such other like Additions as are named in the Question will not alter the Case But how and in what way we cannot set forth Quest 10. Where some of the Statutes c. do give power to the Justices 7 Ed. 6. 5. 8 H 6. 5. 9. 1 Ed. 6. 5. 12 Ed 4. 9. 4 Jac. 5. 1 H. 8. 7. 2 3 Ph. and M. 8. 5 Eliz. 13. 7 Ed. 6. 5. 24 H. 8. 10. 25 H. 8. 13. 14. 15 H. 8. 10. of the Peace onely To enquire of the offence Others To enquire as well at the Suit of the King as of the Party Others To charge the Juries before them to enquire Others That the offences shall be enquireable before them Others That they shall enquire by Presentment Others That they shall enquire and set Fines How all these shall be taken And what the Justices of Peace may do upon them Answ We conceive also That these words in the most of these Statutes are of the same nature and shall have the same Construction as those in the last Question had And that they do not limit the power of the Justices of the Peace But that they will have by either sort of these words a compleat power of Oyer and Terminer given to them of the offences named in the Statute But how and in what way we cannot set forth Quest 11. Where some of the Statutes do give a power to the Justices of the Peace to punish an offence according to their discretion Others for such an offence to Fine or to imprison according to their discretion Others to Fine and Imprison according to their discretion as is 7 Jac. 4. 17 R. 2. of Fish How all these shall be taken and what the Justices of the Peace may do upon them Answ We do conceive That by this sort of words also That there is a good power of Oyer and Terminer of the offences named in the Statute c. wherein they are used given to the Justices of the Peace Quest 12. Where the Statute c. is thus penned That the Justices of the Peace at their Quarter-Sessions shall have power to Indict and try the offenders by the usual course of Indictments and Tryals in the like cases And after such Conviction to adjudge the offender to the Pillory as it 39 Eliz. 11. of Logwood How this shall be Logwood taken and what the Justices may do upon it Answ We conceive That hereby there is given to the Justices of the Peace a good power of Oyer and Terminer of the offence within that Law But in what way we cannot set forth Quest 13. Where the Statute c. is That he that shall offend shall be grievously punished according to the discretion of the Justices and that they shall judge him to the same bodily punishment as his offence requireth and shall do execution thereupon as is 13 R. 2. 8. of Labourers How this Labourers shall be taken And what the Justices of the Peace may do upon it Answ We conceive That by this he may be Indicted or presented for the offence and if he be found guilty he may be imprisoned what time the Justices of the Peace think fie But for the way by which it is to be done we do not set forth Quest 14. Where a Statute c. giveth power to the Justices of the Peace to hear and end an offence by Examination according to their discretion Or as others By examination of parties and witnesses As it is 32 H. 8. 13. of Horses 11 H. 7. 15. Horses Sheriffs Deer of Sheriffs and 19 H. 7. 11. of Deer How these shall be taken and what the Justices of the Peace may do upon them And whether they may examine upon Oath Answ We conceive as to this case The words seem to hold forth a power of Oyer and Terminer in the ordinary way If otherwise then we doubt whether they may examine by Oath except it be in such a thing as whereabouts they do examine by Oath before the making of the Statute But it should seem to me They may by these words examine without Oath Examination and upon that examination order the punishment as in the case of Provision for a Bastard child and punishment of the Parents upon 18 Eliz. The words of which Statute are the same in effect with the words of this Statute And if the Justices of the Peace shall in this and such like cases take upon them to hear and end convict and punish in the ordinary way of Indictment we can scarce tell how the offender will be relieved But how the law will fall out herein we cannot certainly set forth Quest 15. Where a Statute is penned thus under pain of 10 l. the one half to the King and the other half to him that will sue for it by Action of debt by examination before the Justices of the Peace information or otherwise As it is in 11 H. 7. 17. Of Phesants Pheasants How this shall be taken and what the Justices may do upon it Answ This Act is very doubtfull And yet we conceive some use or other may be made of it in order to the punishment of the Offender Quest 16. Where a Statute c. is penned thus That the person offending being thereof convict by examination of Witnesses or confession before the Justices of the Peace at their generall Sessions shall suffer c. And that two Justices one of the Quorum may convent him to the Sessions by processe or otherwise or to commit him to ward or let him to bayl till the next Assizes or generall Sessions there to be examined and further ordered as aforesaid As it is in 33 H. 8. 1. How this shall be taken And what the Justices of the Peace may do upon it Answ This is partly answered before in the Answer to the 14th Question But in this case we conceive that the offender may in the ordinary way be indicted and if he confesse the offence he may be therein convicted Or otherwise that the