Iustice of the Peace to occupie himselfe also in pacifying the suites and coÌ„trouersies that do arise amongst his neighbours Yea rather I with him to be as well 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Compounder as a Commissioner of the Peace and I thinke him so much the méeter to stepps in betwirt those that be at variaÌ„ce as by reason of his learning wisedome authoritie wealth he is like to preuaile more by his mediation and intreaty than another man Iustices of the Peace be méete to pacific suites But as it is not al one speake of his proper office in Law of his common duetie in Charitie so I thought good to seuer and distinguish them Of such as had the Conseruation of the Peace at the common Lawe CHAP. III. As the common lawe hath euen froÌ„ the beginning continued a speciall care for the peace So did it not want méete Officers béefore that these Wardeins or Iustices of the Peace were made to whose charge it did committe the maintainance of the same And for as much as it will giue no small light to the vnderstanding of the office of the present Iustices of Peace to haue that auntient authoritie vnfolded vppon the which this latter power is as it were vpon a Stocke set and engraffed I will speake some what thereof before I beginne wyth the other At the Commune law therefore and before the time of King Edward the third there were sundrie persons that had interest in the kéeping of the Peace Conseruators Of these some had that charge as incident to other Offices that they did beare and so included within the the same that they were neuerthelesse called by the names of their other Offices on lie Some others had it simply as of it selfe were therfore named Custodes pacis Wardeins or Conseruators of the Peace By other ofâ—ces Againe of there that had charge ouer the Peace by the dignitie of their Offices some had that power ouer all the Kealme some others had it within certaine limits only both these sorts after a diuers maner of dispensatioÌ„ as in particularitie it that appéere The Queenes Maiesâ—e then is by hir Office dignitie royall the principall Conseruator of the Peace within hir Dominions and may giue authoritie to others to sée the Peace kept and to punish such as shal break the same But a Duke Earle or Baron bée no Conseruators of the Peace because those be no titles of Office but of dignitie onelie saith Mar. The Lord Chauncelour or Lord Keeper of the great Seale the L. Steward of England the L. Marshall and Conestable of Englande and euerie Iustice of the Kings Bench haue closed in their offices a credite for conseruation of the peace ouer al the Realme and may awarde Precepts and take Recognisances for the Peace Mar. Fitz. And by good opinion The L. Treasorer of England maye well be added to the number of these The M of the Rolles also by the opinion of M. Mar is a generall Conseruatour of the Peace by his office But he maketh Processe taketh Recognisances thervpon not as incident to his office but by prescription The Iustices of the Common place and Barrons of the Escheaquer bée Conseruatours within speciall places onlie that is to say within the precinates of their seuerall Courtes So also the Iustices of Assises may awarde a man to prison that breaketh the peace in their presence and they may come maunde the kéeping of the peace vnder a peine and that weapons be taken from the Iurors or Witnesses that appeare before theÌ„ if anie complainte bée thereupon made But as they bee méerlie Iustices of Assise they caÌ„ neither take Suertie of the peace nor award anie Processe for it Mar. The Iustices of Gaole deliuerie may take suertie for the Peace of a prisoner before them that was committed for not finding suertie of the Peace Mar. The Coroners siath Britton Fo. 3. ' bée principal Conseruatours of the peace within their Counties And euerie Shirife is a Conseruatour of the Peace within his CouÌ„tie as Iudge Fineux affirmed 12. H. 7.17 and after him M. Fitzh in Nat. bren Fo. 81. where he saith that the Shirife may vpon request made without any Writte sent vnto him commaunde a man to finde suche Suertie of the Peace by Recognisance The Stewarde of the Marshalsey maye take Suertie of the Peace by Recognisance also within the Vierge by prescription and the Conestable Marshall of the Quéenes house may sée to the Conseruation of the peace within the same house Mar. The Steward of the Shirifes Turne the Steward in a Lecte or the Stewarde in a Court of Pipowders can not graunt Suertie of the peace vnlesse it be by Prescription But euery of them may committe him to ward that shal make an affraie in their presence whilest they be in execution of their offices and that is more than the Steward and Suitors in a Court Baron can do Mar. and the first two of them may also take presentments of offences against the Peace To bée short euerie Constable Peticonstable Tithingman and Borowhead be CoÌ„seruatours of the Peace by their offices within the limits of their Hundreds Townes Tithings and Boroughes 12. H. 7. 17. Fineux And by the same reason our Borsholder in Kent and their Thirdborow in Warwickeshire be Conseruatours also within theyâ— Boroughes For Borowhead Borsholder Tithingman bée thrée seuerall names of one selfesame thing and doe signifie The chiefe man of the free pledges within that Borow or Tithing And where each third Borowe onlie hath a Constable there the officers of the other two Borowes be called Thirdeborowes These Conestables were ordayned as it appeareth 3. H. 4.9 10. E. 4. Fitzh Fo. 172. to kéepe the peace and to represse forlons and might take suertie of the Peace by obligation if they found any man making an affraie or otherwise to committe him to prison till he shoulde finde suche Suertie I haue reade also that a Constable mighte at the common lawe haue bayled a suspecte of felonie by Obligation bicause he was a CoÌ„seruator of the Peace and that both he and the Shirife lost this authoritie by the Statutes 3. H 7. ca. 3. 1. 2. Phill. Mar. ca. 13 Which in giuing that power to Iustices of the Peace do in the opinion of some men take it from the Shirife and Constable reported by Dalison Iustice Hitherto then Simple Conseruatours of such as had and yet haue the charge of the Peace conueied vnder their other Offices Now as touching those that had the simple Office of Wardeins or Conseruatours of the Peace it is to be vnderstoode that they also were of two diuerse sortes that is to saye eyther Ordinarie or Extraordinarie and the Ordinarie Conseruators were eyther by Prescription Election or Tenure Ordinarie Conseruators Ordinarie A man maye prescribe saith M. Marowe that he and his auncestours or
seale in the name and by the auctoritie of the King and his heires Kings of the Realme in all Shires Counties Palatine and other places within his dominions So that now againe al Iustices of the Peace at this day except the Archbishop of Yoke and the Bishops of Durham and Elâ—e their temporall Chauncelours for the time being whiche are seuerallie by that verie Parliament auctorised to be Iustices of the Peace within the libertie of Hexam the Byshopricke of Durham and the I le of Elte and except the Iustices of Peace within the Countie Palatine of Lancaster which also are by prouision in the same Statute to be made vuder the Kings vsual seale of the same Ducâ—â—e be ordained by the meane of the greate Seale and ministerie of the L. Chauncelour that hath the charge of the same but yet so that some of them be made by Letters Patents vpon speciall sute to the Queene and by hir bill assigned and other some by Commission of CoÌ„mune Cource that resteth in the dispensation of the L. Chauncelour Two sortes of Iustices of the peace They of the firste sorte be of some called Indiciall Iustices and Iustices of themselues for that the Queene can not discharge them at hir will and pleasure but they are to continue and to enioy Inrisdiction so far foorth as their Patent of graunt doth enable them Mar. By graunt And therefore if the Queene do graunt vnto aÌ„maÌ„ to be a Iustice of the Peace during his life within a certaine precinct without any further wordes he shall continue such a Iustice during his life and shall haue al that power that a Wardein or Conseruatour of the Peace had and perhaps such power also as is gyuen so a Iustice of the Peace by expresse wordes in any Statute but the shal not haue all that power which is ordinarily giuen so the Commissioners of the Peace by their Commission Mar The Maiors and other heade officers of manie Cities corporate Townes be Iustices of this kinde at thys daye by grauntes of the Queene hyr progenitors Those other Iustices of the Peace which deriue their power from the Commission be called Commissioners of the Peace and doe differ from the other in this point speciallie that they be Iustices during onely the Queenes life and in hir life during only hir owne will and pleasure as you shall hereafter see at large By Commission These as I said bée now at thys day appointed by discretion of the Lord ChauÌ„celour but whether the King himselfe did at the firste nominate them as he did those whiche were made by Graunt or else did leaue the choice of them to the Lord Chauncelour alone or to him and others it hath some shew of question CoÌ„missioners of the Peace appointed by the Lord Chauncelor It is true that in the Parliament holde at Canterburte 12. R. 2. ca. 2. which happened shortlie after that Michael de la pole had bene remoued from that place and after the troublesome Parliamente of the eleauenth yeare of that kings raigne It was enacted that the Chauncelour Treasorer and keeper of the priuie Scale the Steward of the kings house the kings Chamberlaine the Clerke of the Rolles now called Master of the Rolles the Iustices of both Benches the Barons of the Escheaquer and others that shoulde be called to the naming of the Iustices of the Peace Shirifes Eschactors Customers Controllers and other officers should be sworn to doe the same faithfullie and without affection But whether the meaning of that Statute were that they all should be continually present togither at the nomination of all suche officers and whether that Statute were made but for that busy time only it may well be doubted For againe vppon fault founde as it shoulde séeme that the Commissioners of the Peace were made of persons insufficient and dwelling in forraine CouÌ„ties it was enacted 2. H. 5. Parl. 2. ca. 1. that from thencefoorth they should be assigned by the aduise of the Chauncelor of the kings Counsel which wordes may be taken to sounde as though they hadde bene named before by the Lord Chauncelor alone yet may they indifferentlye be extended either so adioine the aduise of the kings counsell to the Chauncelour or the aduise of them both vnto the king him selfe This is out of al dout that 18. H. 6. ca. II. did take order that vpon knowledge giuen to the Chauncelour of England by any appointed to be a Iustice of Peace that he had not lands to the value of twentie pound by years the Chauncelor himselfe should put an other sufficiente in his place And for want of sfficient men hauing lands of that value learned in the Law and good gouernaunce that the Chauncelour of England for the time being shold haue power by his discreation to put into the Commission other discrete persons learned in the Lawe thoughe they had not landes to that value And albeit this credite were here giuen vnto him in these particular cases onlie yet it may wel be thought that he had bene before and shoulde be afterwarde trusted with the choice of all the Commissioners of the Peace generallie where of there is greate presumption also euen vpon the Statute 3. E. 6. ca. 1. that mentioneth that the nomination of the Custos Rotulorum being a verie speciall Iustice of the Peace hadde of long time before belonged to the Office of the Chauncelour till vpon some occasion it was take from him by the Statute of 37. H. 8 ca. 1. and therefore was then restored to him againe VVhat manner of men the Commissoners of the Peace ought to bee CHAP. VI. IN the choice of the Wardeins and Iustices of the Peace the Statute lawes haue respecte to the manners and abilitie or liuelihoode of them all and to the skil and learning of such as are speciallie selected and therefore named of the Quorum For Gardeins of the Peace ought to bee good men and lawfull no maintainers of euill nor Barretours in the Countrey or as some Bookes haue it no mainetainers of euill Barretours in the Countrey 1. E. 3. ca. 15. Men of the beste reputation Meultz vailantz most substantiall or of moste valour shall be assigned keepers of of the Peace 18. E. 3. ca. 2. 17. R. 2. ca. 9. In euerie Countie for safegarde of the Peace shal be assigned one Lord and with him three or foure of the Mieultes vanees most valiant men of the Countie togither with some Sages of the lawes 34. E. 3. ca. 1. And after some troubles in the time of K. Richard 2. it was enacted that none shal be made Iustice of the Peace for any gift brocage fauour or affection nor any which sueth by himselfe or any other priuilie or openly to be a Iustice of the Peace shall bee admitted to that office 12. R. 2. ca. 2. And of some special policie the also enacted ca. 10 of the same parliamet that no Steward of any
Lord should be assigned in the Commission of the Peace 12. R. 2. ca. 10. Yet in the Parliament of the next year ca. 7. it was ordered that notwithstanding that clause of the former Statute Iustices of the Peace should then bee made of newe in all places of the most sufficient Knightes Esquires and men of law Againe Iustices of the Peace especiallye those of the Quorum from hencefoorthe shall be made of the most sufficient persons dwelling in the Countie without taking any others dwelling in forraine Counties except the Lords Iustices of both Benches Iustices of Assise the chiefe Baron the chiefe Stewards of the duchie of Lancaster the Seriants and the kings Attorney 2. H. 5. Parl. 2. ca. 1. Lastly for that contrarie to these former Statutes men of smal substaunce had crept into the Commission whose pouertie made them both couetous contemptible a newe law was published to this effect following None shal be assigned Iustice of the Peace if he haue not landes or tenementes to the value of twentie pounds by the yeare And if any be otherwise appointed he shal within a moneth after notice of the Commission and vnder the paine of twentie pounds and to be put out of the Commission giue knowledge of his not hauing such lands or tenements to the Lord Chauncelour who shall put an other person sufficiente in his place And the like paine is if he sit or make warrant or anye precepte by force of the Commission But this extendeth not to Cities Boroughes or Townes that be CouÌ„ties of themselues or that haue Iustices of Peace dwelling in them by Commission or graunt of the king Nor to such Counties where there be not men sufficient hauing landes or tenements to the value aforesaid learned in the lawe and of good gouernaunce naunce for then other discrete persons learned in the Lawe maye by the Lorde Chauncelour bee putte in the Commission 18. H. 6. ca. 11. Now although this portion of twentie pounds a yeare be not at this day in account aunswerable to the charge and countenance fitte for a Iustice of the Peace yet who knoweth not that at the making of this Lawe it was farre otherwise And I do not doubt but as the rate of all things is greatlye risen since that time so is there also good care taken that none he nowe placed in the Commission whose liuinges be not increased according to the same proportion And thus our Parliaments entending to make the Iustice of peace an able Iudge doe require that he come furnished with thrée of the principall ornamentes of a Iudge that is to saye with Iustice Wisedome and Fortitude for to that summe the words Good Learned Valiant do wel amounte And aboue all that he loue feare God aright without whiche he can not bée â—â—ounted Good at all How manie Commisioners of the Peace there ought to be in each Countie CAP. VII THE number of the Wardeins of the peace was not limitted untill that the Statute 18. E. 3. ca. 2. ordenined that there shuld be two or thrée in each Countie And bycause it was founde within a few years experience that this number suffised not for the gouernaunce of the Countrie therefore by an Acte made 34. E. 3. ca. 1. it was further prouided that in euerie Shire one Lorde and with him thrée or foure of the Best in the Countie and some learned in the Lawes shoulde be assigned for kéeping of the Peace and to restraine offendors In execution of whiche Statute there was amongst many other one Commission for Kent awared 35. E. 3. to Robert Herle Iohn Cobham Roger Northwood Ralph Ireningham Thomas Lodelowe Robert bert Vintar Iohn Barry and Thomas Hartrege But as it falleth out many times that euill examples doe followe of good lawes So here it came to passe that whilest the Parliament prouided an increase of Officers to restraine offendors ambition so multiplied the number of those Iustices that it was after warde high time to make a contrarie lawe to diminish them And therefore by the Statutes 12. R. 2. ca. 10. and 14. R. 2. ca. II. it was prohibited that there should not bée any moe than sire Iustices of the Peace in any Commission besides the two Iustices of Assise and certaine Lordes that were assigned in the Parliament itselfe And for the better restrainte of the increase of them in time to come it was also then further enacted that no Assotiation shoulde bée made to the Iustices of Peace after their firste Commission 12. R. 2. Ca. 10. Which lawe although it bée not abrogated till this day yet it was loÌ„g since cluded by making of newe Commissions that had more new Iustices thrust in to them And truelie it séemeth to me that togither with the like ambitious desire of bearing rule in some the growing number of the Statute lawes committed from time to time to the charge of the Iustices of the Peace hath bene the cause that they also are nowe againe increased to the ouerflowing of each Shire at this day Verie many Iustices of Peace at this day For if Hussey the chiefe Iustice 1. H. 7. 3 thought that it was ynough to loade all the Iustices of the Peace of those dayes wyth the execution onelie of the Statutes of Winchester Westminster for Robberies and Felonies the Statute of Forcible entries the Statutes of Labourers Vagaboundes Liueries Maintenaunce Embracerie and Shirifes Then how many Iustices thinke you many now suffise without breaking theyr backes to beare so manie not loades but Stacks of Statutes that haue since that time bene laide vppon them To dispute whether it be better to haue manye or few Iustices of the Peace in each Shire if all putte in were able for the place is a noble question worthie of a higher consideration and therefore it becommeth not mée to enter into it Iustices of Peace be ouerladen with Statutes The forme of the Commission of the Peace CHAP. VIII For as much as al the auctoritie and power of the Commissioners of the Peace floweth out of theyr Commission and the Statutes as it were out of two Principall springs or fountaines it is nowe time to vnfolde the Commission it selfe and to sée what is contained in it Two fountaines of the power of Iustices of the Peace ELizabetha Deigratia Angliae Franciae Hiberniae Reginae fidei defensor c. Praedilecto fideli Edmundo Cantuar. The saluâ—â—tion Archiepiscopo c. Necnon praedilectis Thomae Bromley militi domino CaÌ„cellario Willihelmo domino Burghley Thesauriario c. saluté SCIATIS quòd assignauim'vos coniuÌ„ctim et diuisim adpacem nostraÌ„ ac ad Statuta ordinationes apud Winton Northampton Westmonasterium pro oonseruatioâ—e pacis ciusdem Necnon ad ordinationes ibidâ— apud Cantabrigiam de venatoribuu operarys artificibus seruitoribus hostellarys mendicantiê° vegabundis alys hominiê° mendicaÌ„tiê° qui se nominant Trauailing men Et similiter ad Statuta ordinationes
H. 8. c. 6. Greate cause hathe the Iustice of Peace therefore to take â—iligente héede that he abuse not this credite either to the oppressing of any subiect by making an untrue Recorde or to the defrauding of the Prince by suppressing anye true Record Much more reason is there to holde that two Iustices of peace or more sirting in the execution of their authoritie in open Sessions must néeds be taken to be Iudges of Recorde Howe long time the auctoritie of the Commissioners of the Peace is to indure and by what meanes it may be suspended or determined CHAP. XIIII WE haue alreadie touched that the power of the Commissioners of the Peace is not perpetuall but nowe the place serueth to handel it at full The Commissioners of the Peace are to continue during only the pleasure of the Prince by whose pleasure they were at the first appointed and therefore by the determination of that pleasure their auctoritie ceasseth also Besids the which there are other means to determine their Actoritie as namely the Accession of an other office the Presence of a higher power and in some speciall case the wante of Adiournement of their Commission The pleasure of the Prince may bée determined either by expresse word or by implication or by death By expresse word The Queenes Maiestie therefore maye discharge the Commissioners of the Peace by hir expresse Writte vnder the gret Seale L. 5. E. 4.32 If she sende a Super sedeas to al the Commissioners of the Peace that will suspende all their auctoritie But yet so as it may be reuiued by a Procedendo and therefore it doth not vtterlie determine their auctoritie as may be gathered by 12. lib. Ass Pl. 21. Againe when the Queenes Maiestie maketh other Commissioners of the same kind within the same Limites it is implied thereby that the former Commissioners shall have no longer power although there be neuer a worde spoken of the discharge of the for the repugnaÌ„cie By implycation of a new Commission 3. Mar. Regi Brooke Tit. Commssion 24. But yet if there be Iustice of the Peace by Commission in a whole Countie and afterward the Queene maketh another man Iustice of the Peace in one Towne of the saide Countie onelie Chocke was of opinion General and proper Iustices 10. E. 4.7 that the power of the first Commissioners continued still in that Towne bycause that is not altogither contrariant And Iudge Fineux helde so also 20. H. 7.8 that if the Queene make a proper Iustice of the Peace within a speciall Libertie yet maye the generall Iustices of the Peace of the Shire medle there also vnlesse there be wordes of Prohibition in the Patent as ê™ nulli alij Iusticiarij nostri se intromittaÌ„t c. If the antient CoÌ„mission of the Peace were to foure persoÌ„s afterward the Queene should make one man a full Iustice of the peace through that same limit during his life then shoulde the handes of the fours Commissioners be closed saith Marrow And a newe Commission pro hac vice taÌ„tum will determine the olde So also a new CoÌ„missioÌ„ to heare and determine Felonies determineth the olde Commission of the Peace concerning Felonies but not concerning the Peace And a new Commission of the Peace ad inquirendum tantum is a determination of the old Commission ad audiendum terminandum by Mar. But it is plain by the preamble of the statute 2. 3. Phil. Mar. ca. 18 that the law was take that if a CoÌ„mission of the Peace was first graÌ„ted to certain wtin a towne after another CoÌ„mission had bin granted to other within the whole shire that this had bene a Supersedeas to the CoÌ„missioners within the said towne Nowbeit this determination of the olde Commission that we speake of groweth not immediately by the making of a newe CoÌ„mission but either after the reading or proclayming of the new CoÌ„mission at the Session of the Peace or at the full Countie or else by holding of some Session by vertue of the new Commission in al which cases the old Commissioners must take notice of the new Commission or els after the giuing of notice of the new Commission vnto the old Commissioners for otherwise al the meane actes of the olde Commissioners be good in Law Mar. 21. H. 6. 29. 34 lib. Assi Pl. 28. And for as much as some Cities Corporate townes found theÌ„ selues gréeued with the Law staÌ„ding as hath bin remebred it was specially ordained by the said Statute 2. 3. Phi. Mar. ca. 18. that a Commission of the Peace and Gaole deliuerie made to a Citie or corporate towne not being a Countie by it selfe should not be determined by the making of such an other Commission after to any of the Shire Lath Rape or Wapentake in the which that Citie or towne standeth Finally it is to be noted that in al cases wher an auntient Commission of the peace is determined by a new yet no Processe or Suite hanging before the old Commissioners shall be discontinued therby by the Statute 11. H. 6. ca. 6 I. E. 6. ca. 7. By the death or demise of the Prince also dieth the power of all the Commissioners of the Peace made by him for he maketh the Iusticiarios suos so that he being once deade or hauing giuen ouer his Crowne they are no more his Iustices and the Iustices of the next Prince they shal not be vnlesse he wil make them his 4. E. 4.44 1. E. 5.1 By death If sseacute emeth that some toke the Lawe to bée that if a Iustice of the Peace were created a Duke Marquesse Earle Vicount or Baron or elected an Archbishop or Bishop or made a Knight or Iustice of any of the two Benches or Serieant at the lawe that then his Office of the Peace was determined therby bycause it could not be thought that his name being changed he should remaine the same person Accession of a new office or calling And so if he were made Shirife that his Iusticeship ceased also bicause as Marrow faith he could not be both a Iustice an Officer to direct serue his owne Precepts and so likewise was it thought of him if he were made a Coroner but not so if he were made an Vndershirife And therefore for the declaration of the Law in the most of these cases it was enaded 1. E. 6. ca. 7. that if a Iustice of the Peace were made Duke Marquesse Erle Vicount Baron Archbishop Bishop Iustice of the one Benche or other Knight Serieant at the Law or Shirife the yet he shuld be Iustice of the Peace still But that acte was afterwarde upon good reason controlled in parte and a newe law made I. Mar. Parl. I. ca. 8. by whiche it was ordered that no man shoulde exercise the office of a Iustice of the Peace during only the time that he is Shirife of the same Countie wherein he is also
Iustice of the peace Furthermore if the Iustices in Eire being of a higher power than Iustices of the Peace doe after proclamation ther of firste made come into any Countie and sit there by vertue of their auctorities then ceaseth the auctoritie of the Commissioners of the Peace by Mar. By the presence of a higher power And he thinketh so likewise if the kings bench bpoÌ„ proclamation therof made shoulde remoue into any Countie But aske of this for if it should be so then it may be some question also what is wrought by the comming of the Iustices of the Nisâ—prius into the Countrie who doe ordinarily bring Commission of Oyer Determiner and of Gaole deliuerie with them Lastly it Iustices of the Peace that haue a Commission has vice tantum do sit by vertue of their Commission do not Adiourne the same it séemeth that their Commission is determined therby Brokke Tit. Commission 11. By want of adjournement That al the autctoritie of the Iustices of the Peace is exercised eiy ther out of the Sessons or at or by reason of the Sessions of the Peace c. CAP. XV. HItherto I haue dilated that which lyeth in the first part of the Definition of the Iustices of peace I haue withal giuen you a Theoricque or Insight it s it were of their whole Office in the wing what it is when it began how it is endowed by what meanes it is maintained and after what fort it may be determined A summe of that which in saide But now for as much as all the power of the Iustices of the Peace is directed to that end whiche is disclosed in the latter parte of the same Definition namelye For the conseruation of the Peace for the execution of their Commission and of the Statutes committed to their charge it is méete that I enter into the Practicque of their Ofsice dutie shew you from pointe to point how the fame is to be done administred And for the more lightsome procéeding herein I will set swrth the power of the Iustices of the Peace by a Distribution thoughe not Essential yet such as may suffice to conueigh my whole meaning Whether therefore the Iustices of the Peace doe by vertue of the Commission or Statutes enquire or Heare and Determine by the may of Iâ—â—sdietion or else doc keep or cause to be kepte the Peace or doc punishe and execute by waye of Coertion And whether the same also be done by their Regular power or Absolute auctoritie It is always pradised and done either out of the Sessions of the Peace or else at or by reason of the Sessions of the Peace A partition of that which foloweth in both these bookes And that which is done out of the Sessions is either such as one Iustice alone maye doc or else it requireth the helpe I presence of other Iustices with him And therefore first of that whiche one Iustice alone maye doe out of the Sessions The summe of that whiche is hereafter conteinedin this fâ—â—st booke Of Suertie of the Peace and the Good Abearing and ofsundrie things incident vnto the lame And what one Iustice of Peace out of the Ses sions may do therin CHAP. XVI FDr as much as the Conseruation of the Peace standeth partlye in prouiding that it be not broken and partlye in punishing such as haue alreadie biolated and broke it and for that any one Iustice of the Peace is susticiently armed with audoritie out of the Sessopms to preuent the breache of the Peare both by taking Suertie for the kéeping of it and for the good behauiour also of offenders I thinke good first to shem what Suertie of the Peace is then to open howe it maye bée commaunded after that to declare how the same commaundement shall be executed I brought to effect fourthly to disclose what shal become of the Suerty when it is taken and lastly to describe the Suerty of the good behauiour or good Abearing I to conferre the handling therof with that of the Peace The partes of this Chapter The auntient Normans had a manner of Suertie of the Peare whiche they named Treues the same that we cal Truce I which they bsed to giue after this order He of whom it was demanded did in ope Court take hun by the hande that demaunded it I did withall solemnely sweare that neither he nor anye of his shoulde doe him harme But or Bouernours knowing that euill men be more restrayned by los se of goods than by conscience of an oath haue dsed to take sure bonds and that to the Prince for the securitie of such as be in feare And therefore I wil at this day cal Suertie of y peace An acknowledging of a bond tothe Prince taken by a Iudge of Recorde for the keeping of the Peace What suerty of the Peace is And it is called Suertie of is the word Securitas bicause the partie that was in seare is thereby the more quiet and secure This Suertie may a Iustice of the Peace commaunde either as a Minister when hée is willed to do it by a higher auctoritie or as a Iudge when he doth it of his owne power deriued from his Commission He doth it as a minister when the writte of Supplicauit which in old time was called breue de minis as appeareth by the Register directed out of the Chauncerie is deliuered into his hands for then he only is to direct his Precept to come pel the partie vpon that writ to find Suertie for the Peace Suertie of Peace taken vpon a Sutplicauit by a Iustice of the Peace Minister 21. H. 7.20 Fineux The forme of which Precept or warrant may be thus in English GEORGE MVLTON one of the Iustices of the Peace of out Soueraigne Lady the Queenes Maiestie within the Countie of Kent To the Shirife of the saide Shire the Conestables of the hundred of Wroteham the Borsholder of the Towne of Ightham and to al and singular the Queenes Maiesties Bailies and other ministers as wel within liberties as without in the said CouÌ„tie and to euery of them greeting Know ye that I haue receyued the commaundement of our sayde Soueraigne Ladye in these wordes reciting the whole Writte of Supplicauit which is not always of one forme bycause it is sometimes directed to all the Iustices of the Peace sometimes to them and the Shirife and sometimes to one Iustice alone or reciting onely the effecte of the Supplicautt thus Knowe yee that I haue receyued the commaundemente of oure sayde Soueraigne Ladie to compel A. B. of Ightham in the sayde Countie yeoman to finde sufficiente suerty for hir Maiesties Peace by hym to be kepte towards C. D. of the ssayde Towne of Ightham Taylor And therfore on the behalfe of our sayde soueraigne Ladye I commaunde and charge you ioyntly seuerally that immediately vpon the receipte here of you cause the saide A. B. to come before mee at Ightham
countie had no more authoritie than a priuate man But I thinke tha Baylife may not dispute the sufficiencie or insufficiencie of such a Warrant bicause he that awardeth it is a Iudge of Recorde 14. H. 8.18 That whych hath béene hitherto saide is of the execution of the foriner parte of the Warrant for the Peace that is so saye to warne and cause the partie to come and finde Surety for the Peace But if it falout that he refuse to come and put in such Surety then may the Officer by vertue of hys Warrant conuey him to prison For if you remember the â—â—â—rdes are And if he shall refuse then c. And now for our better instruction let vs sée what an Arrest is Budee in his Greeke Commetaries is of the opinion that the Freeh word Arrest whych wyth them signifieth a Decree or Iudgement of Court tooke beginning of the Greeke 〈◊〉 that is placitum and as we might say the Pleasure or wil of a Court. What â—â— Arrest iâ— And albeit that it were not out of ourâ— way to thinke that it is called Arrest because it stayeth or resteth the partie yet I beléeue rather that we receiued the name from the Normane lawes because wée vse it in the same sense wyth them For commonly wyth vs an Arrest is taken for the execution of the commaundement of some Courte or of some Officer in Iustice But howsoeuer the name beganne An Arrest is a certaine restraint of a mans person depriuing it of his own wil and libertie and binding it to become obedient to the will of the Lawe and it may bée called the beginning of Imprisonment The Precepts and Writs of the higher Courts of Lawe do vse to expresse it by two sundry wordes as Capias and Attachias which signifie to take or catch holde of a man But this our Precept noteth it by the wordes Duci facias cause him to be conueyed c. for that the Officer hath after a sorte taken him before in that he commeth vnto him and requireth him to goe to some Iustice of the Peace To this Arrest al persons vnder the degrée of Lords or Péeres of the Realme be subiect And Ecclesiasticall persons if they bée not attendant vpon diuine seruice may bée arrested for the Peace also Mar. The ende therefore is that if the partie wil not come to finde Suertie of the Peace the Officer may vpon that Warrant arrest and carry him to the Gaole where hée shall remaine vntill that hée will fréely offer finde it Deliuerie of him that is imprisoned for refusing to finde Suertie But it is good to be enquired whether the Release or Death of him that prayed the Peace will not bée sufficient cause to deliuer such a prisoner and if it shall bée then by what order hée shall bée deliuered For as it séemeth to some that any Iustice of the Peace may vppon his offer take the Suertie and deliuer him so it may bée some doubt whether hée may bée deliuered vpon the death or release of the partie wythout the helpe of a Sessions or Gaole deliuerie It appeareth 4. E 4.16 and by the opinion of Bryan 2 H. 7.2 4. that if such an imprisoned person had a sute hanging in the Common place aforehand he might by a Writ of Priuilege be discharged of the same if they partie at whose sute he was arrested for the Peace were not ready in Court at the day of the returne of the Writ when hée should be called to pray the Suertie of the peace there again against him saith that it had bin alwaies their coÌ„mon course so to do but diuers other there were of a coÌ„trary opinio it séemeth a hard case that without any sufficient notice of such a remouing of the partie a maÌ„ shold be defeated of his Suertie so But now if the partie shal yéelde to finde Suertie of the Peace then may he at his libertie if the Precept procéede Ex officiâ— and without the Writ of Supplicauit go to any Iustice of the Peace to offer this Suertie To what Iustice bee that is arrested may goe Herevppon it happeneth often that such persoÌ„s choosing rather to be bound by any other thaÌ„ him that maketh the WarraÌ„t hauing any suspitioÌ„ of such a precept awarded or likely to be awarded do offer themselues become bounde before some other Iustice And therevpon do procure a Supersedeas from him to be discharged of any other Arrest to be made Yea many times hearing of such Precepts and misâ—iking to be bouÌ„d in the Countrie they go vp to West minister and giue Suretie of the Peace there either in the Kings Bench for a time only as the maner of that Court is or in the ChauÌ„ceâ—ie for euer as they vse it there and doe wythall procure a super sedeas from the Court where they are bounde to close the handes of the Countrie Iustices And therefore it is not amisse to say somewhat of this matter of supersedeas also If a Iustice of the Peace then will by a Supersedeas discharge a Precept of the Peace that was made by his felow Iustice he shal do wel to take the Recognusance according to the day of apparance if ther be any after the forme of the former Precept if there be any Supersedeas by a Iustice of the Peace For as it is good reason that hauing taken Suertie for the Peace he may by this Supersedeas saue the partie from finding other Suertie for the same cause So is it againste reason that he shoulde giue the partie anye other daye of apparaunce than the Precept had and thereby discharge a matter of Recorde that was made by one of equall aucthoritie with hym Fitzh Fol. 9. Much lesse may the Supersedeas of a Iustice of the Peace discharge a Precept of his fellow Iustice procéeding by vertue of a Supplicauit for that it is of an higher auctoritie Mar. This Supersedeas sente by a Iustice of the Peace is sufficieÌ„t although it neither name the Suerties nor contain the suÌ„mes in which they are bouÌ„d But yet it is the better form to expresse the both as well bycause the higher Courts vse so to doe as also if the Bailife Constable or other Officer to whom it is deliuered in discharge of his Warrant bée called at the nexte Sessions by the suite of him that sought to haue the Peace to shewe how he hath executed his Warrant and hée come in and shew foorth the Supersedeas the partie that is bounde may be called therevpon at the day that appeareth to be limited vnto him by the Supersedeas for it is vnder the seale of a Iustice and doth testifye that the partie is bound and hath founde suertie to appeare at a certaine day and if he make default that being Recorded shall bée sufficient to cause him to forfaite the penaltie of the Recognisance although the Iustice that made it out shal happen not to bring in the
Recognusance it selfe according as he now ought to doe by the Statute 3. H. 7. ca. 1. And this may be gathered vpon the opinion 2. H. 7.1 and maye bée séene by this form of it here vnder written GEORGE MVLTON one of the Iustices of the Peace of our Soueraigne Lady the Queenes Majestie within the Countie of Kent To the Shirife Bailifes Conestables Borsholders Ministers and other the Faithfull subiectes of our said Soueraigne Ladie within the saide Countie and to euerie of them sendeth greeting For as much as A. B. of c. The forme of a Supersedeas by a Iustice of the Peace Yeoman hath personally come before me at Ightham c. and hath found sufficient suertie that is to say C. D. E. F. c. Yeomen either of the which hath vndertaken for the said A. B vnder the paine of xx lb and he the said A. B. hath vndertaken for himselfe vnder the peine of xl lb that he the saide A. B. shall well and truely keepe the Peace towards our said soueraigne Ladie all hir liege people and specially towardes G. H. c. Yeoman also that he shal personally apeare before the Iustices of the Peace of our said soueraign Ladie within the said Countie at the next general Sessions of the Peace to be holden at M. there Therefore on the behalfe of our said soueraigne Ladie I commaund you euerie of you that yee vtterly forbeare and surcease to arrest take imprison or otherwise by any meanes for the said occasion to molest the saide A. B. And that if you haue for the said occasion for none other take or imprisoned him that then you do cause him to bee deliuered and set at libertie without further delaye Yeouen at Ighthā aforesaid vnder my seale this last day of Iuly in the xxiij yeare c. Which also may bée in the name of the Prince and vnder the Teste of the Iustice of the Peace thus ELIZABETH by the grace of God c. To the Shirife c. greeting For as much as A. B. hath come before G. Multon one of our Iustices of peace within our said Coūtie and hath found c. We therefore commaunde you and euerie of you that ye forbeare c. Witnesse the said G. M. at Ighthā aforesaid c. Thus muche of the Supersedeas issuing from a Iustice of the Peace the which ought to with-holde and stay the procéeding of his fellowe Iustices in the saide cause in so muche that if anye Officer by any of their Warrants hauing this Supersedea deliuered to him wil neuerthelesse vrge the partie to finde new Suerty for the peace he may refuse to giue it and if he be committed to prison for suche his refusall he maye as I thinke haue his action of False Imprisonmente againste the Officer vppon the same Much more then will a Supersedeas that commeth out of the Chauncerie or Kings Benche or from anye Iustice of the Kings Bench discharge such a Precept for the Peace awarded from any Iustice of the Peace Supersedeas out of an higher court And therefore if the Iustice of the Peace to whō such a Supersedeas shal be deliuered wil not thervpon surcease an Attachment may be awarded against him for his comtempt and he may be imprisoned and fined for it It is good counsell therefore that M. Fitz in hys Nat. Br. Fo. 238 giueth where he willeth the Iustices of the Peace after such a Supersedeas receiued to forbeare to make anye Warrant to arrest the partie it they haue awarded it then to make their owne Supersedeas to the Shirife and other Officers therby commaunding them to surcease to execute it This impediment of Supersedeas lying after this sort as you haue séene in the waye to the Iustice of the Peace thus passed ouer let vs nowe suppose the partie serued with the precepte to come before some Iustice of the Peace and let vs enter into the taking of the Recognusance of him for that is one part of the execution of the Warrant for the Peace and may doe seruice whether the partie come to him that made the Precept or to any other The taking of the Recognusance for the Peace If the Iustice of the Peace deale in thys matter as a Iudge and by vertue of the Commission then the number of the Suerties the summe of their bonde their sufficientie in goods or landes the time how long he shall be bounde and some other such circumstances are referred wholie to his own consideration and if he be deceiued in the abilitie of the Suerties hée maye compell the parties to put in others Marrow The Commune manner is to take two Suerties desides the partie himselfe and good reason it is that those shuld be such as haue their names registred in the Booke of Subsidie for albeit that here and there some maye be sufficient that were not assessed to the Queene yet it standeth not well togither that hée shoulde become bounde to the Prince in tenne or twentie poundes that was not in the Subsidie found worth any thing at all But if he commmaunde the Peace as a Minister in execution of the Writts of Supplicauit then he must behaue himselfe as the Writte it selfe directeth him and that hath not bene alwayes after one manner for some forme commaundeth him to take sufficiente Manucaptors in any peine or sum to bée reasonably set by himselfe so that hée will bée aunswerable for it at his owne perill and some willeth him to take sufficient Suertie in a summe certainelye prescribed vnto him as a hundred poundes in all or euerie of them in twentie pounds as it may bée séene at large in the Register of Writtes Fo. 89. A Iustice of the Peace saith Maister Marrow maye take this Suertie by a Gage or Pledge which shall not be forfaited therby but paunded onely that the partie shall vnder a certaine peine kéepe the Peace whiche peine he shall forfaite it he breake the Peace And by his opinion a Iustice of the Peace may also take this Suertie by an obligation made to himselfe by the name of Iustice of the Peace For so shall it bée saith hée advsum Domini Regis But if it were made vnto him without his name of Iustice of the Peace that then it coulde not bée to the vse of the King vnlesse it had the words advsum Domini Regis Maister Fitzharbert on the other side in his Nat. Bre. Fo. 81. holdeth that suche an Obligation taken to the King by a Iustice of the Peace is nothing worth for a man can not bée bounde to the Prince sayeth he but onelye by matter of Recorde vnlesse he will afterwarde come into a Courte of Recorde and cònfesse it to bée his déede pray that it may bée Enrolled there But the new Statute 33. H. 8. ca. 39 hathe made a plaine law in these cases willeth that all Obligations and Specialities made for any cause touching the
of them at the firste Precept retournable and at the seconde fourtie shillings and at the thirde fiue pounde and at euerie daie after the double And euerie Shirife of Countie and Bayly of Fraunchise that shall not duely make execution of the saide Precepts shall forfaite to the King twentie poundes for euerie defaulte and shall moreouer make fine and raunsome to the King And aswell the Iustices or Iustice aforesaid as the Iustices of Assises may heare and determine such defaultes of Shirifes or Baylies aswell by Bill at the suite of the partie grieued for him selfe as for the King onely by way of Enditement and vpon suche due attaynder he whiche sueth for himselfe and for the King shall haue the one moietie of the saide twentie poundes togeather with his costes and expenses and suche Processe shal be agaynst suche so attaynted as lieth against anie person endited or sued by writte of Treapasse with force and Armes against the Peace And the Maiors Iustices of the Peace Sherifes and Baylifes that are in Cities or Bourowes hauing fraunchise shall haue like power in the articles aforesayde as the Iustices of Peace and Shirits in the Counties haue But they which kepe by force their poffessions in any lands or tenements whereof they or their auncesters or they whose estate they haue therein haue continued their possession in the same by three yeares or more shall not be endamaged by this Statute This last Statute I have the rather exemplified at large because it contayneth a full direction in this businesse yet because I have séene some other things that â—ende to some little explanation of some of the pointes of the same which be good to be considered of I thinke that they also may be well bestowed here This Statute therefore enableth any one Iustice of the Peace to deale in this matter upon occasion geuen and is made as well against such as enter with force as against those that enter Peaceablie and then holde in with force But whether the Iustice be bounde to ermine the goodnesse of his title that entreth and accordind to the same to make or deny restitution it hath bene oft times made a question which surely in mine opinion shoulde carrie no great doubt with it For séeing that the Statute 5. R. 2. cap. 7. prohibited all entries with force although they were otherwise lawfull and the Statute 15. R. 2. ca. 2. rehearsing the same geueth authoritie to euerie Iustice of Peace vpon any suche forcible entries presently to committe the offendors there found to the Caole and this Statute meaning to supplie some other defectes in the former geueth speciall remedie to the partie gréeued by the aide of the same Iustice by restoring of him to his possession againe I see not why the Iustice of Peace who perhappes shall haue but little skill in Lawe to discerne and iudge of the Litle and yet be a fitte man to suppresse all force and able enough to restore a possession shoulde be tyed to the discussing of the right or title of either of the parties And therefore 22. H. 6. 18. admitteth this case That if A. shoulde disseyse B. and B. shoulde enter agayne and put out A. by force and strong hande yet shoulde A. be restored to his possession at the handes of the Iustice of Peace although his first entire were very vnlawfull And that thereupon notwithstanding the restitution made B. may have an Assise or else may enter vpon him againe so as he doe it in peaceable manner And I doe little doubte but that a Lessée for years or a Copieholder beyng put out with force and the Lessor or Lorde disseised thereby the Lessée or Copieholder ought to haue restitution by the helpe of a Iustice of Peace upon this Statute Now whereas the wordes bée After complaint c. that dothe not alwaies inâ—orce a necessitie of Complaint by the partie grieued For if a forcible entrie bée committed the Iustice may inquire of it and also make restitution vpon any informacion or other knowledge thereof though no complaint be made vnto him by the partie gréeued as it is holden 7. E. 4. 18. Complaint It seemeth further that it should not bée altogither requisite to the punishing of the offenders by imprisonment and fine that the partie gréeued shoulde be actually put out of possession For all the saide Statutes doe specially prohibite the forcible cntrie it selfe yet to haue restitution vpon this Statute the putting out must néedes be founde also And therefore if the case be that after the death of A. a stranger entreth into his landes and holdeth the same by force against his heire before be had gotten any possession in déede the heire of A. in this case sayth Marr. shall neuer haue restitution because he neuer had any other possession than a possession in law but no actuall possession And by his opinion also If a man claimed a rent or common in lande that is so holden with such force that he can not distraine for the one nor vse the other this a force remoueable by this statute but the partie can haue no restitution here made vnto him One person alone may commit this forcible entrie so also may he be punishable for deteining of the possession by force Entring or holding with force And it séemeth that this entrie or deteyning must be with some offensâ—ue weapoÌ„s as with bowes billes swordes stones harnesse or such like yet Marr. is of opinion that if the Iustice of Peace come and finde the doores shut and they within denying him to enter this is a deteyning with force and he may thereupon commit them If it be founde that diuers persons haue made a forcible entrie to the vse and behouse of a stranger that is absent although he doth after agrée vnto it but entreth not him selfe this is no force in him for sayth 2. H. 7. 16. A forcible entrie can not be without an entring actually Enquirie The enquirie is to be of Iurours that must have landes or tenements of the yearly value of xl s by yeare at the least aboue all reprises And Marr. is of opinion that if it be not so the partie grieued may stay the restitution for that cause But how he can hinder the restitution that the Iustice of Peace is to make vpon such a verdit otherwise than by causing the record thereof to be remoued into the Kinges Benche I doe not well perceiue After the forcible entrie or the deteyning with force or both be founde by the enquest the Iustice of Peace ought either by himselfe to put the partie grieued in possession againe or els he may direct his precept to the Shirife to restore him Restitution But if that Iustice of the Peace which made the enquirie doe happen to dye before he make restitution whether the other Iustices of the Peace may at their Quarter Seassions hauing the recorde of that Enquirie deliuered vnto them award a writ of
bounde to some parte of hys body Assises of Fewel 7. E. 6. ca. 7. but consider whether a Iustice of Peace maye conuicte him of the saide forfeiture or no for it seemeth by the wordes of the Statute that hée is to be rather a Minister than a Iudge in that case If any person aboue firetéene yéeres of age doe by the space of twelue Moneths forbeare to repaire to some Church Chappell or vsuall place of common Prayer contrarie to the tenor of the Statute 1. Eli. ca. 2. then any one Iustice of Peace of the Countie where such offendor shall dwell or be may make Certificat thereof in writing into the Kings Bench to the ende that the offendor maye there vppon bée bounde in 200 lb at the leaft with sufficient suerties to the good behauiour for that this so loÌ„g obstinacie besides the other penalties 23. Repayre to the Church Eliz. cap. 1. Euerie Iustice of Peace maye eramine offences against the Statute made for preseruation of Phesants and Patriches against hauking in Corne if the same offences bée not before lawsully hearde or determined otherwise and may take bond of the offendor with good suerties for his apparaÌ„ce af the nerf general Seisions of the Peace to aumswere to the saide offence and to pay the penaltie or receiue the punishmet due therfore and may also after conuiction and punisment of suche offender in taking or killing PhesaÌ„ts or Patriches take like bosd of him suerties that for the space of two yeares he shall not offende against the saide Statute Phesants Patriches 23. El. ca. 10. If séemeth that one Iustice of the Peace may vpon complaint of the partie gréeued eramine the Shirife Vndershirife and Plaintife concerning the taking or entering of plaintes in their Conntie Courtes bookes against the Statute And if he finde therby any fault or offence committed that shall stande for a sufficiente conuiction and attainder without any further enquirie or examina mination So may be also eramine the Bailic of the Hundred for not warning of the Defendant in such a plaint according to his precept from the shirife or Vndershinte and if thereby he finde a default and offence that also shall stand for a sufficient condemnation Plaints in the Countie Courts And the saide Iustice must Certific those eraminations within a quarter of a yeare into the Eschequer And further the Custos Rotulorum or the Elbeft of the Quorum in his absece ought at the General Sessrions after S. Michael appoint two Iuslices of the Peace the one being of the Quorun to haue the ouer fighte and controlement of the said Shirifes c. and of the amercemets And that one of those Iustices may examine and without further enquirie conuict the gatherers of the same if they gather any more money than is contained in their lawfull Esfreites 11. H. 7. ca. 15. The Cerificate of one Iustice of Peace ioyned with the Customer of the place of the vnlading and felling of Corne Graine or Cattell carried by Water from one place to an other of thys kealme vnto the Customer and Controller of the place where the same was imbarked is sufficiente and ynough vppon the Statute of forestalling Certificar of selling Corne. 5. Edward 6. cap. 14 13. Eliz. cap. 25. One Iustice of peace maye take out of Sanctuarie certayne abiured persons thither and others being indited of some kind of offences mentioned in the Statute done after they become Sanctuarie men maye commit them to the Gaole in the Countis where the inditement is founde til they bée tried Sanctuarie persâ—â— 22. H. 8. ca. 14. Euerie person finding or seacute eing anye to offende the Statutes made againste the shooting in Crossebowes and Handgunnes maye arreste and bring or conuey him to the next Iustice of the Peace of the Countie wherein be was founde offend who vpon due examination and proofe thereof béefore him made may by his difscreation commit him to the Gaole there to remane tpll be shall truely pay the one moitie of the for feyture of this Statute to the Quéene and the other moitie to such 〈◊〉 bringer or coÌ„ueyer Crosfebowes and handguns 33. H. 8. cap. 6. Here therfore thys Iustrce of Peace hauing as it séemeth the whole matter committed to hym selfe in thys case is to bée verye circumspecte therein leaste hée too hastelye conbemne the guiltlesse or negtigentlyâ— suffer the offendor to escape for vpon the offence sufficiently proued it is necessarie that in his Mittimus or precept to the Gaoler there be contained the names of al the parties the offence and how long hée is to bée helde in prison And further he is to make a Record of this matter and send the Estreit thereof into the Eschequer wherby the Barons may haue intelligence of the same to haue the Quéenes dutie leuied to hir vse The forme of this Mittimus may bée easely drawne by some other Precedents in thys Booke Euerie person other than such as are auctorifed by value of 100. th in landes ought if he bée auctorised to shoote and do inhabite in the Countrey present his name to the next Iustice of Peace adioyning And there vpon the Iustice ought to present and recorde the same before the Iustices of the Peace at the next quarter Sessions 2 E. 6. ca. 14 But learn of others whether this matter is to haue cotinuaunce still or else did onely extended to suche persons as had licence at that time The Superuisors for amendement of the highwayes ought within one moneth after any offence done by any againste the Actes 2. 3. Ph. Ma. ca. 8 5. Eli. ca. 13. present that offence to the next Iustice of the Peace And there vpon he ought to certifie the same at the next Generall Sessions within the same Countie Highwaies 5. El. ca. 13. Euerie Iustice of Peace as it séemeth within the Shires next adioyning to the riuer of Thamis within their seuerall iurisdiction hath power vpon complaint made vnto him by the Duerséers and Rulers of the Whirrymen and Waterme or two of the or the maisters of any such seruaunts both to examine heare and determine all offences committed against the Statute and to set at large him that shall bée imprisoned by the ouerséers rulers if there bée iufte cause and also by his discreation to punishe the ouerséers and Rulers that shall vniustlye punishe anye person Thamis 2. 3. Phi. Mar. cap. 16. Euerie Iustice of Pease before whom any person arrested for Manflaughter or Felome or suspition thereof shall bée brought ought before he committe him to prison to take the examination of such prisoner and the information of those that bring him and to put the same or so much thereof as shall bée materiall to proue the Felonie in writing within two dayes after and to take Bonde of all such as doe declare any thyng material to proue the offence to appeare at the
and maner of them Let vs therefore examine the power of the Iustices of Peace in this behalfe It séemety that Iustices of the Peace might after the statute of 34. Ed. 3. cap. 1. that made them complete Iudges haue letten to baile such persons as were indited of Felonie before them in their Sessions as the Iustices of the Kings Bench vse to doe but not such as were arrested for suspition of Felonie and not endited thereof before them because before the enditement they were no Iudges ouer them And for helpe herein it was ordayned 1. R. cap. 3. that euery Iustice of Peace might lette to Baile any suspectes of Felonie But that Law begatte some inconueniences and therefors it was soone after repealed by 3. H. 7. cap. 3. whiche lefte power to twoo Iustices of the Peace the one beeing of the Qorum to lette anye prisoners mainpernable by the Lawe to baile to the nexte generall Sessions or the nexte Gaole deliuerie and willeth that they shall then certifie suche baile taken vpon paine to forféite for euerye defaulte therevppon recorded tenne poundes to the Kyng 3. H. 7. cap. 3. And here againe there sprang vppe an other inconnenience for then Iustices of Peace woulde not sticke to borrowe one an others name as manye yet still doe and by that meanes defraude the good meanyng of the Statute Wherevppon it was lastly further prouided by 1. 2. Phil. Mar as followeth That no Iustice nor Iustices of Peace Bailement of prisoners and examination before they bee bailed shoulde lette to baile anye person contrarie to the sayde Statute of West 1. cap. 15. And that no person beeing arrested for Manslaughter or Felonie or for suspition of eyther of them beeing baileable by the Lawe shoulde bee bailed by anye Iustice of Peace if it bee not in open Sessions or by twoo Iustices of the Peace at the leaste the one of them beeing of the Quorum and the same Iustices to bee present togither at the tyme of the saide Bailement and that they shall certifie in writing subscribed or signed wyth their owne handes the sayde bailement or Mainprise at the nexte generall Gaole deliuerie to bee holden wythin that Shire where that person shall be arrested or suspected And that the saide Iustices or one of them beeing of the Quorum when suche prisoner is brought bcefore them for Manslaughter or Felonie shall bcefore anye bailement take the examination of that prisoner and the information of them that bring hym of the facte and circumstaunces thereof and the same or so muche thereof as shall bee materiall to prooue the Felonie shall putte in writing beefore they make that Bailement whiche examination and bailement the saide Iustices shall certifie at the nexte Gaole deliuerie within the limittes of their Commission And the saide Iustices shall haue auctoritie by this Acte to binde all such by Recognusaunce or Obligation as doe declare any thing materiall to proue the saide Murder or Manslaughter offences or Felonies or to be Accessorie or Accessories to the same as is aforesaide to appeare at the saide nexte Gaole deliuerie where the triall thereof shall bee then and there to giue euidence against the partie at the time of his triall and shall certifie all and euerie suche bond in like maner as is aboucsaide of the Bailement and examination 1. 2. Phil. Mar. cap. 13. This Statute of Bailement I haue recited the moze at large because it both comprehendeth some such other things as must concurre with the Bailement of the prisoner and giueth me occasion to sette downe the Statute of W. 1. and to shewe what persons be baileable by the Law for to either of these it referreth it selfe as you haue seeacutene and is also restrained by them Nowe by the Statute of W. 1. cap. 15. Prisoners that bee before outlawed or haue abiured prouours felons taken wyth the maner those that haue broken the Kings prison notorious and proclaymed theeues those that are appealed of prouours so long as the prouours bee liuing if they be not of good same those which are taken for felonious burnings or for falsifying the Kings mony or his Seale or which are taken vpon excommunication or for open euill or for treason touching the King himselfe or for the death of a man or by the commandement of the King himselfe or of hys priuie Counsell or by the absolute and not ordinarie commaundement of the Kings Iustices or for the Forest be not repleuisable by the common Writ nor without Writ by Shirifes nor other gardines of prisons But hee that is taken for light suspition or is indited of petite Larcinie not being giltie before of other Larcinie those that be charged with the receit of theeues or felons or of commaunding or force or aide or charged wyth Trespasse that toucheth not losse of life nor member and he that is appealed by a Prouour beeing no common theefe nor defamed after the death of the prouour is baileable by that Statute Againe the Statute 23. H. 6. cap. 10. prohibiteth those that bee in prison by condēnation execution Capias vtlagatum excommunication for Suertie of the Peace or by speciall commaundement of any Iustice to be bailed by Shirife keeper of prison or other ther Officer or Minister But willeth and cōmaundeth that all those that be Arrested by force of any Writ Bill or Warrant in any action Personall or because of any enditement of Trespasse to be let out of prison vpon reasonable suerties of sufficient persons hauing sufficiēt within the Counties where they bee to bee lette to Baile or Mainprise to keepe their dayes in suche places as the saide Writtes Billes or Warrantes shall require Both these last Statutes as appeareth were at the firste ment to giue a rule vnto Shirifes and other meaner Officers in what cases to let their prysoners to Baile and in what not But as the Statute of W. 1. is by the expresse letter of 1. 2. of ph Mar. sette foorth as a line whereby the Iustices of Peace are to guide themselues so it séemeth to mée that they ought to haue an eie vnto the other Statute also for asmuch as certaine other persons bée therein also meneioned not to bée Baileable by lame and so within the reach of these berie wordes that lir in the Statute 1. 2. Phil. Mar. cap. 13. This Statute of 1. 2. Ph. Mar. séemeth as hath bene faide befoze this to distinguish betwéene Murder Manslaughter making this offence Baileable but not the other So as it shoulde restraine as it were the generall woordes death of a man in the Statute of W. 1. to cause them to bée vnderstood of Murder onely Manslaughter baileable and not Murder And besides it maketh mencion of the Bailement of Acceslones whereof the Statute 2 3. Ph. Mar. cap. 18. hath neuer a woorde I will be therefore a little bolde to remember here some fewe cases of these matters to giue as my
carrie sufficient forme and matter with them Iustices of the Peace must looke vpon Enditements And if the billes doe wante forme onely the Iustices may sende for the Presentors and cause the to reforme them at any time before they bée remoued into the Kings Benche Stanf. 97. And therevpon it is sayde 35. H. 6. 14 12. E. 4. 18. that if a bill of Enditement bée deliuered to a Iustice of the Peace at or before the Sessions which he promiseth to reade and to deliuer to the Iury and doth it accordingly yet he shall not bée punished for it in a writte of Conspiracie But it may bée therevpon deubted whether he should bée so charged or no if vpon former communication had and request made he hun selfe did drawe and write the bill and therefore the safest way is to suffer the Clearke of the Peace or some other Ministe of the Court to drawe and frame if But to the matter First this is generall that all Bills Informations and Enditements grounded vpon penall Statuts wherein the Prince onely is to reape the forfaiture ought to bée commenced within foure yeares next after the offece committed and if the suite bée giuen to any other person for him selfe and the Prince or for him selfe onely that ought to commence for the Prince within two yeares and for euery common person within one yeare next after the offence done And otherwise it is méerely voide vnlesse it bée otherwise limited by that speciall Statute vppon which the Information Enditement or Presentment is made and framed 7. H. 8. ca. 3. And if many bée ioynfly endited in one Enditemet yetare they also eache one seuerally endited thereby 5. E. 4. 5. Markam Secondly all Enditements for as much as they bée in the nature of a declaration ought to conteine certaintie and therefore as sayth M. Marrow fiue principall things bée moste commonly requisite in presentments before the Iustices of Peace videlicet 1. The name surname and addition of the partie endited 2. The yeare day and place in which the offence was done 3. The name of the person to whome the offence was done 4. The name and value of the thing in which the offence was committed 5. The manner of the fact and the nature of the offence as the manner of the treason murder felonie or trespasse The name and surname of the partie endited must be certainly expressed if the Enditement bée of an Accessorie in felonie the name of the principall must bée set downe also The name surname For if the Enditement bée quod A mandauit cuidam ignoto occidere B. id quod fecit this is vicious but in treasoÌ„ trespasse or maihem where all bée principals it may bée quoòd procurauit curauit personas ignotas to doe the treason trespasse or mayhem Marr. Besides the name and surname of the partie endited there ought also by the Statute 1. H. 5. ca. 5. in euery presentment wherein processe of vtlawrie lyeth to bée added his estate degree or mysterie and the Countie Towne Hamlet or Place where he is or was conuersant Addition of estate degree c. And euen so ought it to haue bene at the commune Law also as touching names of dignitie made by creation as Duke Marques Earle Vicount Archbishop Bishop Khight or Serieant at the lawe bicause euery of these titles were accompted percell of the name But it was not so for the names of Baron Banneret and Esquier which are but names of dignitie without creation nor for Chauncelor Treasorer Chamberlaine Shirife Coroner Eschetor Baylife Deane Archedeacon Deacon Prebendarie or Person which are names of dignitie by reason of office onely vnlesse the presentment did charge them in respect of their offices for then the name of office also as Bailie or Elchaetor ought to bée vsed in the Enditement Marr. But now BaroÌ„ Knight Esquier GetlemaÌ„ Alderman Widow Singlewoman Deane ArchdeacoÌ„ Person Doctor Clerke are good Additions of estate or degrée as take it within the meaning of this Statute of Additions But Seruant Butler or Chamberlaine are not bicause they bée commune to gentlemen and yeomen and thereby vncertaine Degree or mysterie So Merchant Grocer Mercer Taylor Broker Husbandman Hosteler Labourer Lighterman Waterman c. bée good Additious of misterie But Citizen is not â—cause it is no misterie arte or degrée Neither is Mamtainer Vagabound Hereticke Dicear Carder or such like any good addition bicause they are euery one euil against the lawe Also by the said Statute as I sayd the Addition ought to compprehend the Countie and the Towne Hamlet or place knowne out of any Towne or Hamlet whereof the partie is or was So that if there bée diners Hamlets in one Towne he may be named of the Towne or Hamlet But if he bée with in a Towne then he must bée named of the Towne Place 35. H. 6. 30. And if the Towne and the Parishe beare both one nanfe he may be named of the one or of the other of them But if there bée two Towne in one Parishe then he ought to bée named of the Towne and not of the Parishe 5 E. 4. 129 22. E. 4. 2. As for the Alias dectus whiche is often put in the Addition the vse thereof is chiefly in Writtes grounded uppon especialties and to make the writte and the wryting to agrée Alias dicius For as touching Enditemets if the partie bée not well named both for his name of Baptisme Surname Misterie or degrée and place at the first then can not the Alias dectus make that good which was voide before Marr. And it appeareth 1. E. 4. 2 2. E. 4. 1. 6. that the Addition of the degrée or mysterie must alwayes bée suche as the partie hath at the verie tyme But the Addition of the place may bee of such where be was at any tyme before so that then the worde nuper bée vsed there Furthermore the Enditement must containe the daye yeare and place in which the offence was committed The yeare day and place 8. E. 5. 8 2. H. 7. 7 25. E. 3. 43. And therefore if the Enditement suppose it the tenthe daye of Marche without any more that is not good But if it bée the tenthe daye of Marche laste paste without shewing in what yeare that is good enoughe for the certaintie may be founde out by the Stile of the Sessions So it it bée the tenthe daye from Easter Anno 23. Elizab. that is good Likewise if it bée in the Vtas of the holye Trinitie and it shall bée there vnderstoode to bée the verie daye of the Vtas videlicet the eyght daye after the feast and not quarto die after the Vtas But if it bée in festo Sancti Petri it is not good bicause there bée diuers feastes of Sainct Peter and none without addition sayth 3 H. 7. Fitz. Enditements 22. If it bée Anno Domini millesimo quingentesimo octuagesimo primo the
still the Iustices of Peace may procéede notwithstanding the Writ as Hubbert the Kinges Attourney sayd 6. H. 7. 16. for otherwise the triall of a Felon if the Enditement Were of Felonie might bée delayed and deluded also But yet Keble held opinion against him and was fearfull that in such a case it might proue felonie to make execution after such a writ And if a Certiorari come to the Iustices of Peace to remoue an Enditement and in truth the Enditement was not taken till after the date of that Certiorari yet if the Enditement bée remoued thereby it is good enough for that they both bée the Queenes Courtes 1 R. 3. 4. In the making of a Certificat vppon this Certiorari the Iustices of the Peace ought neither to omitte that which both auctorize them nor to excéede that which belongeth vnto them For on the one side if they certifie an Enditement of Felonie as taken coram Iusticiarys ad pacem it is not enough without saying further Nec non ad diuersas felonias c. and otherwise it is doubtful whether the Endited shall bée quite dismissed or no because the Iustices of Peace haue then no Recorde at all remaining with them for the Clarke of the Peace maketh an entrie accordingly that Record which they sent up is insufficiēt And therfore the Clarke of the Crowne was forbidden to receaue any such Certificat 12. H. 7. 25. On the other side if they certifie one Enditement of felonie not determined into the Kings Benche they ought not Without warrant to certifie an other Recorde of the acquitall of that Enditee for the same matter for nothing ought by them to bée sent thither without warrant but that which is executorie and néedeth the helpe of that Court. 8. E. 4. 18. And if a Certiorari bée to send up the Enditement of A. in which Enditement some others bée endited togither with the same A. yet néede not the Iustice of Peace to make Certificat concerning any but A. 6. E. 4. 5. For although they bée named ioyntly yet bée they endited seuerally as I haue sayd before and the Queene may pardon A. without forgiuing the other 6. E. 4. 5. Markam Finally it is noted 8. H. 5. 5. that Hankforde the chiefe Iustice of the Kings Benche abserued this order that he which brought thither an Enditement taken before Iustices of the Peace should endorce his name vpon the backeside of it which I note not to teache them of the Kinges Benche but to let Iustices of the Peace sée that there is some héede to be taken of him by whom they send up their Enditements Of the Processe vpon Enditements and Informations CAP. VIII THe Court béeing thus made priuie and possessed of causes must of duetie procéede to the handeling or hearing and tryall of them the whiche bicause it can not indifferently doe vnlesse it keepe one eare for the offendour that he also may be heard in his owne discharge as others were heard to lay the charge vppon him the manner is to awarde Processe against him to come in and to aunswere For commonly an Enditement or Information béeing but an accusation or declaration against a man is of none other force but to put him to aunswere And thereof all Processe hath the name bicause it proceedeth or goeth out vpon former matter either Original or Iudicial Processe whereof it is named How be it I make difference whether this processe bée grounded vpon an Enditemet or vpon some other information for they bée not all one vnlesse it bée in a fewe Statutes so specially prouided Although the Statute 33. H. 8. cap. 10. did once conioyne and coople them The power of making processe vpon Enditements is giuen by erpresse wordes in the ende of the second Assignauimus of the Commission and in other cases where it is not namely giuen it is emplyed of congruencs or rather of necessitie in the wordes heare and determine which not bée perfourmed vnlesse the partie doe either come in graiis or bée brought in by processe Auctoritie to make out processe This Processe ought alwaies to bée in the name of the Queene thus Elizabeth Dei gratia c. Vicecomiti Kancia c. And the Teste thereof may bée vnder the names of any two Iustices so that it be made sitting the Court in the Sessions Teste of the Processe Commission del Peace Brooke Tit. Peace 6. 7. But now whereas the Commission giueth to the present Iustices auctoritie to make processe vpon Enditements taken aswell before former Iustices as before them selues al that doing was wont to bée discontinued in Law by the comming out of a newe Commission of the Peace vntill that the Statute 11. H. 6. ca. 6. did establish that no pleas suits or processe to bée taken before Iustices of the Peace shoulde bée discontinued by a newe Commission of the Peace to be made but that they shoulde stande in their strength that the Iustices assigned in the same new Cōmission shoulde haue power to continue the same and to heare and determine all that whiche dependeth vpon them New commissions of Peace doe not discontinue the old processe And of the like effect there is a braunche in the latter ende of the Statute 1. E. 6. ca. 7. Furthermore whereas Shirifes and their Baylifes vsed to arrest men and to procéede vppon Enditementes founde in theyr Turnes or Lawdayes an other Statute made 1. E. 4. ca. 2. wringeth that power out of their handes and deliuereth it ouer to the Iustices of the Peace also appoynting them to procéede vpon them as if they had bene found before themselues Enditement before Shirifes Nowe séeing that this Processe of the Sessions is sent out to this ende that either the partie shall come in to answere and be iusticed by lawe or else that he shall for hys contumacie bée dèpriued of the benefitte of lawe for so muche in effect doe the wordes of the Commission Quensque capiantur reddant se aut vtlagentur importe in them it followeth that in al cases of Enditements if the partie be retourned insufficient the Processe of Vtlawrie lyeth againste the offendor if he bée not taken before or doe not otherwise offer and yéelde himselfe Processe of vtlawrie But a good while after that Commissions of the Peace were first awarded there was not giuen by them any power to make out anye Processe of Vtlawrie for I haue séene a Commission of the Peace 20. Ed. 3. Part. 1. Patent in dorso wherein were wordes auctorizing the Commissioners to arrest all suche as shoulde bée endited before them but by and by this followeth Et ad nomina eorum qui fugerint coram vobis iusticiari noluerint certificandum in Cancellaria c. So that if they mighte not gette them arrested they coulde goe no further but to certifye theyr names The meane to this Vtlawrie is not one in all cases for vpon Enditements of Trespasses
against the Peace or suche other contemptes the Processe is one and vpon Enditements of Treason or Felonie it is another The general Processe vpon Enditements of Trespasse Vpon Enditements of Trespasse against fhe Peace of Conspiracies and of Routes in presence of the Iustices or in affraye of the people if the offendors may not be founde nor brought in by Attachment or Distresse by reasoÌ„ of their insufficiencie the Processe Processe of Vtlawrie is to bée awarded by the Statutes 18. E. 3. Stat. 1 18. Ed. 3. Stat. 2. ca. 5. The like is against suche as bée endited vppon the Statute of Liueries 8. Henrie 6. cap. 4. Abd a Venire facias firste and then if therevpon he bée retourned sufficient a Distringas and so the same Procese infinite til he come in but if a Nihil habet c. bée at the first returned against him then a Capias alias pluries and after an Exigent as it séemeth by Maister Marrow and the olde precedents agréeing with the CoÌ„mon Course as I take it is the ordinarie Processe vpon al enditements not sounding in Felonie or greater offece whether they bée of Trespaslse against the Peace or of contemptes againste penall Laws vnlesse it bée otherwise specially prouided by those same Statutes wherevppon suche Enditements bée altogither grounded Of which sorte these bée some The statute 22. H. 8. c. 5. coÌ„cerning Bridges in Highwayes alloweth suche Processe as the Justices of the Kings Benche doe vse or suche as the Iustices of the Peace them selues shal think méete by their Discretion for the spéedie amendement of those Bridges Speciall Processe VpoÌ„ Enditements of Liueries maintenaÌ„ce Archerie vnlawfull games c. by the Statute 33. Hen. 8. cap. 10. there was giuen one Venire facias one Capias and then the Exigent But it is to bée weighed whether the Statute 37. Hentie 8. cap. 7. whych vtterlye replealeth that Statute 53. Henrie 8. doe transferre the manner of that Processe vnto the auntiente Quarter Sessions as it doeth sundry other partes of the said Statute The Statute of Labourers 23. H. 6. cap. 13 gaue after Enditements grounded therevppon an Attachement Capias and Exigent But I thinke it no great doubt but that that pointe is taken awaye by the new Statute of Labourers 5. Elizabeth cap. 4. as well as all the residue of that Statute is The Statute 5. E. 6. ca. 25. giuth power to the Iustices of Peace to enquire of Alehouse kéepers whether they haue done any acte to the breach of their RecognusaÌ„ce Procrsse vpon Recognusance And if any such matter be presented then to awarde Processe against the offendor to shew why he shoulde not forfeite his Recognusaunce but what this Processe shal be I wil not determine For I doe not finde that in anye other case thoughe it appeare that any man hath forseited any Recognusaunce that the Iustices of the Peace can awarde anye Scire facias or other Processe to cal him in vpoÌ„ it but are rather to certifie the same into higher Courtes that from thence Processe maye issue out to call the partie to answere therevpon Some other Statutes there bée that haue extended the auctoritie of the Iustices of Peace in sending Processe beyonde the boundes of their owne Commission Processe in to other Shires For by the Statute 1. E. 6. ca. 1. thrée Iustices of the Peace the one being of the Quorum maye make Processe against such as be there vpon endited for deprauing the Sacramente by two Writtes of Capias and the Exigent and by Capias vilagatum into any place within the Queenes dominions So if a Seruaunt departe into an other Shire the Iustices of the Peace of that Shire where the departure was maye graunte Writs of Capias to the Shirife of the other Shire where the Seruaunt is returnable before themselues 5. El. ca. 4. The like may they doe by the saide Statute 22. H. 8. ca. 5. where a decayed Bridges lyeth in one Shire and the person or landes chargeable thereto doe lye in an other Shire But if the Enditement bée in one â—oâ—tie and the Enditée bée named to bée then or Nuper dwelling in an other Countie there is a speciall course of Processe in that behalfe for his benefite appointed by the Statute 8. H. 6. cap. 10. both for Treson Felonie and Trespasse for before any Exigent shall bée awarded one Capias must be sente out and retourned and then a second Capiâ—â— shall goe into the Countie where he is supposed in the Enditemente to bée or to haue bene conuersante retourneable before the same Iustices of the Peace before whom the Enditement was taken thrée monethes at the least after the date thereof for al Counties be now holde froÌ„ moneth to moneth by 2. Edwarde 6. ca. 25. by which laste Writte the Shirife shall be commaunded to take the Enditee if he maye bée founde within hys Bay liwike and if not then to make Proclamation in two Counties before the return of that Writte that the Enditee shall appeare before the sayde Iustices of the sayde Countie where the Enditements was taken at the day contayned in the last sayde Capias to aunsweare to his offence at which day if he come not then the Exigent shall bée awarded against hym and otherwise not And by the equitie of this Statute of 8. H. 6. ca. 10 saith M. Marr. if the Enditee be imprisoned in an other Countie the Iustices of Prace may awarde an Habeâ— corpus to remoue him before them At this Processe of Vtlawrie may be staid by a Super sedeas And Fitz. in his Nat Br. â—o 237. hath the case that if an Exigent goe out vpon an Enditement of Trespasle found bedore Iustices of the Peace fhe partie maye finde suerties in the Chauncerie bodie for bodie to appeare at the day of the Writ and may then also haue a Supersedeas from there to the Shirife coÌ„maunding him to forbeare to take him to let him go if he haue then alreadie taken him for the cause Supersedeas to stay Procesle And again you may sée in the new booke of Entrees Fo. 546 the Processe vpon such an Enditement staied by a Supers edeas issuing froÌ„ one Iustice of the Peace alone testifying the the partie came before him found suerties de fine assidendo But as I beléeue the former so wil I not perswade the practize of the latter bicause I thinke it not in the lawful power of anye one Iustice of the Peace to award any such warrant but it must be done by two Iustices at the least I haue yet to speake of Processe vpoÌ„ Enditements of Treason and Felonies wherein I wil bée short that I may passe ouer to other things Processe vpon Enditements of Treason and Felonies c. The Proces vpoÌ„ an enditement of Treason forcountersaying mony is by Capias only so set forth 3. H. 5. ca. 7. neither is there any other Treason wherevpon the Iustices
of the Peace may awarde Processe It seemeth by M. Marrowe that the Processe at the common Lawe vppon Enditements of felonie was but one Capias then the Exigent But the old Precedents grounding the mselues vpon the Statute 25. E. 3. c. 14. doe vse the mention of two Writtes of Capias before the Exigent For that Statute prouideth that after retourne of Non est inuentus vpon the first Capias an other Capias shal be incontinently awarded whereby the Shirife shall be commaunded to seise the cattailes of the Enditee and safely to kéepe the till the day of the Capias retourned and if he then also returne Non est inuentus the Enditee commeth not in the Exigent shal bée awarded and the Cattailes shal be forfeited But if hée come yéelde him or be taken before the returne of the second Capias the goods and Cattels shal be saued vnto him And here the Iustices of peace haue power to send into a Forraine CouÌ„tie for whereas by the coÌ„mon Law no maÌ„ could be Attached vpoÌ„ an Enditement or vtlawrie of Felony but only in the Countie wherein he was Endited or outlawed whereby many euil men were much incouraged the Statute 5. E. ca. 11. did take order that Iustices assigned to heare and determine Felonies might direct their Writtes to any Countie in Englande to take suche Enditees whether soeuer they had remoued themselues Processe into Forâ—â—â—ne shires And on the other side if the Inditement be found in one Countie and the Enditee is therein named to be then dwelling in another Countie I haue tolde you already in this Chapter for the benefit of the Enditee what Processe belongeth to it and therefore I will in hande with Processe vpon Informations The power of making Processe vppon Informations procéedeth from speciall Statutes may not therefore varie from their direction although they varie one from an other Processevpon Informations For vpon an Information giuen for the Queene before Iustices of the Peace vppon the Statute of Liueries made 8. E. 4. cap. 2. the shall awarde suche Processe as is made vpon an Originall Writte of Trespasse done against the Queenes Peace because the Information it selfe is by force of that Statute in steade of an Originall Writte Liueties And vpon Information made vnto them that an Alehouse kéeper hathe done any acte whereby he hath forfaited his Recognusance they may awarde Processe againste him to shew why he should not forfeite hys Rccognusance by the Statute 5. E. 6. ca 25. as hath bene saide But learne if that be meant of a Scire facias or of some other Proceffe Of Hearing vpon Confession CAP. IX THe partie being thus brought in or otherwis yelding him selfe to answeare Iustice requyreth that he be heard to speakâ— and therefore hiâ— may as hys case wil serue eyther ronfessue or deny the offence wherewith he is burdened And this Confession is of two sortes frée or forced and that former is of two kindes also absolutc or after a manner Free confession In the open or absolute Confession hée taketh the faulte vppon him and péeldeth himselfe simply to suche paine as the Court will inflid for it And this frée Consfession is of great force in Lawe for if it be vpon an Enditement of Batteric and after such confession had for the Queen the partie beaten wil also bring his Action of Trefpns for his owne damage then shal the defendant be concluded by his confesession vpon the Enditement so that he shall not bée receiued to say the contrarie 9. H. 4. 8 11. H. 4. 65. But the other which I call Consession after a manner is onely a not denying in which the partie both cunningly and after a sorte take the fault vppon him without confessing hym selfe guiltie thereof as where he putteth hym selfe in Gratiam Reginae wythout anye more or by Proteftation that heacute e is not guiltie pleadeth his pardon And such a Confession if I maye so call it both not so conclude hym but that he maye afterwarde pleade Not guiltie in anye Action brought aqainst him 9. H. 6. 60. Cur. 11. H. 4. 65. The forced Confession whereof I spake is that which the Iustices do wring out Of the partie by the ExaminatioÌ„ of him in such cases wherein it is permitted Forced Confefsion But because I intend to speake of Examination by it selfe I will reserue this till I come to that Of hearing by Discretion CAP. X. WHether the offender shall fréely confes ss the faulte or finely yéelde hym selfe to Grace or pleace hys pardon without confessing it yet then is that matter fullye heard and the Court made readie to determine of it But if he shall deny the fact then muste some other course of Hearing or triall be taken for it And that is in some cases by Dis cretion of the Iustices in some other cases by Examination of the parties or witnesses and in s ome other cases by Ccrtificat of other men but in meste cases by Trauers e or Araignement bothe which laste trialles are perfourmed by the verdite of twelue For Ius tices of the Peace can not vpon an Inditement of Mayheme make the Triall by their own view or inspection as the Iustices of the Kings Bench may faith Marr. The Statute 11. H. 7. cap. 3. pretending that offences committed againste the Statutes Of Riotes Retainers Maintenaunces Embraceries Extortions Vnlawful games and such like mis demeanours were neither accordingly punis hed before Iustices of the Peace by reason of the greate corruption and fauoure of the Enquestes fworne and charged there vppon to enquire before them nor coulde be otherwise conueniently corrected by order of Law wulesse they were founde and presented by twelue men thereto duely sworne did enact that from thenceforth Iuftices of the Peace vpon information made for the King before them should haue ful power by their Diseretion to heare and determine all offences and contempts against many penall lawes then inforce not repealed But as one saide Exbonis legibus mala exempla So the Parliament 1. H. 8. cap. 1. complayned that manye men were deceitfully entrapped and wrongfully condemned thereby and therefore it resumed that power yea and the King withall chopped off the heads of some that had filled hys fathers purse by the execution of that some other penall Statutes So that now againe the Triall of offences ought for the moste parte to procéede eyther after the generall order of the common Lawe or vpon suche speciall examination or other proofe as some Statutes doe giue in speciall cases and this hearing at libertie and discretion hath seldome airye place But whersoeuer it is permitted that couÌ„sell which M. Bracton lib. 1. giueth is to be hearkened vnto In Iudiciall hearing of a fault saith he besides the bodie of the facte it selfe these seauen circumstances are to be weyghed namely the cause the person the time the place the quantitie the qualitie and the euent And
give him day to bring it in Marr. So also if the Iustices thinking an Enditement to be doide haue discharged the prisoner paying his Fées yet vppon chaunge of their opinion they may stay him againe at any time before Iudgement Fitzh Endite 27. But if he pleade a Pardon before them in whych certaine persons be excepted and the Queenes Attourney is not present to ioine issue that he whyche pleadeth it is one of those that be excepted then they themselues maye supply the office of the Attourney in that behalfe 8. E. 4. 7. wherevpon also I gather this generall learning that they ought not to suffer the Queene to be disaduauntaged where it lyeth lawfully in their power to preuent it And if an Inditement be challenged for suche cause as these Iustices will not allow then may they seale a Bill of that exception for the partie if he will write and require it according to the Statute W. 2. ca. 30. as M. Marr. writeth The Trauerse tooke name of the French de Trauers Trauerse which is no more than de transuerso in Latine signifying on the other side because as the Eaditement on the one side chargeth the partie so he on the other side commeth in to discharge him selfe For whereas the Arraignement procéedeth vppon hym that is dnwillinglye brought in by Processe the Trauerse is for the moste parte fréely tendred dy the partie To Trauerse an Enditement then is to take issue vppon the chiefe matter thereof whiche is none other to saye than to make contradiction or to denye the point of the Enditement As in a presentment againste one for beating the seruant of A. the parte may come in and may choose to saye that he did not beate him which is to trauerse the matter or that he is not the seruant of A. which is to trauerse the cause but hée cannot saye that A. loste not hys seruica for thereby the batterie is confessed and then of necessitie it followeth that hée is a Trespasser 31. H. 6. 12 Brooke Til. Trauerfe 182. And the libertie of Trauerse is commonly restrained to Enditements of Trespasses Contemptes Riotes and other inferiour offences wythin the Commission or Statutes auctoriring the Iustices of Peace and is not dsully ertended to Treasons or Felonies as you shall héereafter sée M. Brooke noteth that it is not muche dsed to Trauerse Enditements before Iustices of the Peace but rather to remoue them into the King Bench and to Trauerse them there Trauerse before Instices of the Peace stices of the Peace Howbeit commun experience at this days can shelve manye Trauerses béefore Iustices of the Peace also And there is no doubte but that as Iustices of the Peace haue power to awarde Processe and the parties also haue libetie to speake for them selues So hauing spoken the Iustices may Heare and Determine of their speach whether it touch them in feéeholde or otherwife For although it be holden 2. R. 3. cap. 11 19. H. 8. 11 Fitze Tit. Afs. 442. and in other bookes that a man shall not be receiued to trauerse a Prefentment vnlesse it do charge his fréeholde yet Hussey and Fairetax saide 5. H. 7. 4. that a Presentment not concerning fréeholde which is founde before Iustices of the Peace may be traucrsed and whether they meante it of a Trauerse in the Kings Bench or béefore Iustistices of the Peace it maketh no difference because the reason is all one that is if Processe be awarded the partie maye come in and offer his Trauerse and otherwise the Processe should be in baine Hereunto agréeth Moubray 41. Ed. 3. 26. saying further that in a Leete suche a Presentment is not Trauersable because out of a Leetee no Processe can be awarded vppon it And this peraduenture is the reason of the booke 8. E. 4. ca. 5. and of M. Mar. where they say that a Presentment of bloudshead found in the Shirifes Turne and sent as it otgh to be to the Iustices of Peace cannot be trauersed before them as wherevppon they can neyther make Processe nordischarge the partie by waye of Plea So that this séemeth a generall learning that wheresoeuer any Processe adrespondendum goeth out vpon suche an Enditemente as is trauersable there the partie may offer and ought to haue his Trauerse But Marrowc sayeth that if a man bée of an Enquest that Endited him of Trespasle or suche like so that vppon the matter he emdied hymselfe thys is so strong that hée shall neuer bée receyued to Trauerse it It is not my meaning to pester this latter Booke with Precedents But yet for as musc as in the Recorde of one Trauerse there is at once discouered the Stile of the Sessions the Enditement the Processe to aunsweare the Trauerse it selse the Verdite and Iudgement therevpon the Processe of execution the yéeldng of the parties and the assesmet of their fines so that it alone maye serue in steade of all I trust it shall not bée troublesome to insect it ALias seict cet ad Sessiossem pacis tentam apssd Bridgewater in comitatu pradicto die Martis proxime ante festū Sancti Mathei Apostoli annoregni Dom nestra Elizabethae dei gratia Anglia Frácaea Hibernia Reginae sidei defensoris c. vicesimo Coram Iohanne Stowell milite Humfrido Walron vno magistrorum Curia Cancellariea dscta D. Reginae alijs socijs suis Iusticiarijs dicta Domina Reginae ad pacem in comitatu preadicto conseruandam Necnon ad diuersas felorias trangressioncs alia malefactain code comitatu perpetrata audienda terminanda assignatis per sacramentum xij Inratorum extitit prasentatum guód Iohannes Long de c. R. M. de c Et T. L. de c. cum diuersis alijs ignetis malefactoribus pacis dicta Dom. Reginae perturbatoribus modo gueriino arraiati vnsti assemblati vicesimo die Iulij in nocte eiusdem diei anno c. Vi armis viz Baculis gladijs clipeis pugionibus falcactris alijs armis tam inuasiuis guám defensiuis apud C. c clausum cuiusdam Willi. Willkt vocatum B. illicité riotose routosé fregerunt intrauerūt octoplauctra foeni ad valenciam c. adtunc ibidem existentia de bonis catallis dicti Willi. Willet adtunc ibidem iniucté illicité ceperunt acportauerunt contra pacen dicta Domina Reginae c. Et coatra formam Statuti inde editi Se prouifï Enditcment Per quod praceptum fuit vicecomsti quod non omitteret c. quin venire faceret eos ad recpondendum c. posteag scilicet praedicto die Martis proxime ante feslum Sancti Mathai Āpostoli an vicesimo supradecto coram prafatis Iustictarijs venerunt pradicti I. L. R. M. T. L. in proprijs personis suis habito auditu Indictamenti praedicti seperatime dicunt quod ipsinon sunt inde culpabiles Et de hoc ponunt se super patriar
Et Adam Martin qui pro Domina Reginae in hac parte sequitur similiter c Ideo veniat inde Iurata coram Iucticiarys dicta Domina Reginae ad pacem in comitatu prudicto conseruandam asignatis c. ad Sessione pacis apud Welles c. die Martis proxime post Epipbaniam Domini tunc proxime futuro tenendnm Processc to aynsweare Trauersc Iurie Et qui c. Adrecognit c. Quia tam c. Idem dies datue est tam prasato Adam Martin qui sequitur c. quám preafatis I. L. R. M. T. L. c. Adquas quidem Sessiones pacis tentas eapud W. preadict in comitatu pradico die c. Day giuen Coram DomiHo T. P. G. N. H. P. milit socijs suis Iucticarijs dictea D. Reg. adpacens in comiteatu preadicto conseruandam Necnonad diuersas felonias traÌ„sgressiones alia malefacta in codem comitatu perpetreatea audienda terminanda assignatis venerunt tam prafatus A. Martin qui sequitur c. quádm prtfati I. L. R. M. T. L. in proprijs personis suis Et Iuratores praedicti per vicecomitem Comitatus prtdicti ad hoc impanellati exacti viz Iacobus F. Gen. I. G. c. similicar veneunt qui ad veritatem de premissis dicendam trialti inrati dicunt super Sacramentum suum quod pradicti I. L. R. M. T. L culpabiles sunt eorum quilâ—ber culpabilis est de transgressione contempiu riot to pradict is in Indictamento praedicto superim specificatis modo forma prout superius versus eos supponitur Ià o concessuÌ„ est curtam quod praedicti I. L. R. M. T. L. capiantur ad satistaciendum dicta D. Reg. de finibus suis casione transgressionis contemptus riottipraedictis Verdite Iudgement Capias pro fine Qui quidem I. L. R. M. T L. adtunc ibidem praesentes ibidem in Curia pet ierunt se ad ficum dicta Domina Reginae occasione pradicta admitti Et indeponunt se seperatim inmisericordiam Do. Re Et assatur finis eiusdem I. L. per Iucticiarios praedictos ad 3. â— 6. â— 8. â— Et finis einsdem R. M. Assessatur ad xx â— Ponunt se in miscricordised Reginae Fine assefsed Et assessatur finis einsdem T. L. ad quinque hbras bona legalis moneta Anglia ad opm vsum dictae Dominae Reginae And this is to bée noted that this Recorde was after ward remoued into the Kings BeÌ„ch and that the paetie was dismissed there for want of those worder in the Enditemente that you sée vnderlined in other letters in certaine partes of the same Enditement voide Of Triall vppon Arraigne went and there withall of Felonies CAP. XIIII ARraignemcnte â— Trauerse doe not so much differ in the nature or substaunce of the Triall it selfe as in the fame Difference between Trauerse and arraignment For as there is no Enditement Trauerfable by the partie but that he may also bée arraigned vpon it So like wise is there no Editemet where vpon the partie may be arraigned but that he may also if he will tender his Trauerse vnto it The difference then staÌ„deth in this that commoÌ„ly he which is to be arraigned commeth in by compulson of bonde or Processe and is touched with matter concerning life and death or some suche heynous offence and pleadeth generaliye Not Guiltie to the Enditement Commonly I saye bycause althoaghe hée come in fréeiyc r bée endited of some inferiour offence yet hée maye bée neuerthelesse arraigned neyther is hée of necessitie driuen to pleade Not Guiltie whiche runneth to the facte but maye if the case wyll suffer pleade a Iustification 02 matter in Lawe thoughe it bée in case of Felonie It féemeth to haue horowed the name out of the worde Arraye whych is the pannell or Iurie bycause he that is arraigneo must bée tryed by them béeing first calle sworne and tryed in order for that seruice If I shoulde rippe dand prosecute the whole learning that belongeth to arraignement I shoulde but Acum agere and yet not doe it halfc so well as you maye elsewhere finde it and therefore referring yon wholifor that matter to the learned labour of IusticeStanforde I will onIy offer to consideration a point or twaine whereof it speciallye behoueth the Iustices of Peace to be aduertised and then passs oner to determining Felonies not triable before luctices of the Peace The firste thing ie that there be sunorye Felonies ano sme Cnditementes of Felonies the which as it séemeth to mée Iustices of the Peace can not heare or trie at all the seconde that in the handling of the verie Felomes wherewith they maye deale there be yet certaine considerations peculiar to the Iustices of the Peace only and not common to them with other Iudges ouer Felonies Iustices of the Peace can not heare the triall of the Felonie for vsing Witchcrafte or Sorcerie wherby any man is hurt in bodye or goodes bycause it is made Felonie by the Statute 5. Elizabeth cap. 16. after a former conuiction onely the power whereof is not committed to the Iustices of Peace and so they can take no knowledge of the Recorde therof not being before them selues Of the same sorte is that Felonye for Forgerie by the Statute 5. Elizabeth cap. 14. after conuiction for a former offence and that Felonie after a former conuiction also for slaunderous speache againste the Queenes Maiestie in offence of the Statute made 23. Eliz. cap. 2. Neyther doth the hearing and tryall of that felonie of a seruant taking the goods of his maister after hys death belong to the Iustices of Peacs in the Countrie bycause they can not take notice of his defaulte in the Kings Benche by whych default it firste beginneth to bée felonie by the Statute 33. H. 6. ca. 1. The like thoughe for vnlike reason is to bée sayde of the Felonious embeseling of anye the Recordes of the Courtes at Westminster agaynsre the Statute 8. Henrie 6 cap. 12. And of an Acceslorie in one Countie where the Felonie was done in an other Countie vppon the Statute 2. 3. Edwarde 6. cap. 24. bycause the iurisdiction ouer these Felonies is not comp mitted to the Iustices of Peace but remitted to other Iudges by the verye same Statutes Furthermore they can not make Triall of suche as were endited of Felonie befor the Coroners or before the Iustices of Gaole deliuerie or of Oyer and Terminer if the same persons bée not Iustices of Peace also in the same Shire so as the Enditements bée vnderstoode to be taken before the as before Iustices of the Peace for their CoÌ„mission and auctoritie ertedeth only to such as stande endited before themselues or former Iustices of the Peace or the Shirife in his Turne Thus farre of the first point Touching the second it séemeth by Marr. and
M. Fitzh Fol. 16. that albeit two Iustices of the Peace the one of them being of the Quarum may heare and try Felonies yet no Iustices of the Peace haue auctoritie to deliuer Felons by proclamation or without sufficient acquital nor yet to deliuer such as bée in prison for suspition of Felonie For they must procéede by enquiring hearing betermining as their Commimission appoints them and not ridde the Gaole other Wise as the Iusties of Gaole deliuerie may doe Things feuerall to lustices of the Peace in the triall of Felonies And therfore such persons if they can not bée endited must either remaine the comming of the Iustices of Gaole deliuerie as the commune manner now is or els being remoued into the Kings Bench they may bée deliuered vpon the writ degestu fama as the to olde order was or otherwise as the manner is at this day These Iustices can take no appeale of any appronour nor other before them say all the Iustices of the Common Peace 2. H. 4. 19. and so is it clearly holden 9. H. 4. 1. because their Commission stretcheth not so farre Where vppon hauing had no leysure to make the searche I am induced to suspect that the serme of those Commissions was in the last Assgnauimus other than these of our time bée in that point which as I haue sayd before bée now very large and do giue a great shew to the contrary But howsoeuer that bée yet it seemeth no lesse reasonable than seruiceable that if one Felon will accuse an other before them they may take his confession reprye him and therevpon cause the other to bée enqiured of then proceede against him Further they can not arratgne one vpon his abiuration sayth Mar. It hath also béene thought vnméete that they should try a Felon the same day in which they awarded the venire facias against the lurie 22. E. 4. Fitz. Tit. Coro 44. but that hath no necessitie the law is now otherwise taken Marrow sayth that they can not award the writ venire facias tot matron as to try whether a woman arraigned before them bée with child or no but séeing it standeth with law and reason so staye hir for the tyme that the childe may bée preserued can not but doubt of it They may giue Clcargie to a Felon if the Ordinarie or his Deputie bée present to take him but if they bée absent he must bée repried bicause as Marrow sayth these Iustices can set no fyne vppon the Ordinarie for his absence no more than if he will accept one to reade as a Clarke where in truth he can not But if you reade M.. Stanford lib. 2. ca. 45. he will perswade you that the Ordinarie is not the Iudge but a Minister in the triall of Cleargic and that Cleargic may lawfully bée giuen allowed in his absence Of the Fine for his default at these Sessions I am doubtfull as I haue sayd before but touching the allowance of Clcargie to the offendor I sée no cause at all why it may not belong to the Iustices of Peace as well as to other Iudges séeing that they bée Iudges of the felonie as other Iustices are other wise all men might bée defeated of that priuiledge Marrow sayth also that is Bygamie that vngodly Popish counterplea had bene alleadged against one that prayed his Cleargie the Iustices of Peace could not haue written to the Ordinarie to certifie the same But let that passe as now not worth the debating And if a man outlawed of Felonie by Processe before the Iustices of Peace bée brought before them and do alleadge that he was at the time of the Utlawrie pronounced out of the Realme in the Queenes seruice vnder such a Captaine or that he was then emprisoned in an other Countie they can neyther write to the Captaine nor into the Countie by the opinion of Marrow Which if it bée so it shall bée good to learne further what they ought to doe with the prisoner in such a case Thus much onely of things restrayning the Iustices of Peace in the Trial of felonies where in also they are not now adaies much occupied the rather bicause they deferre it til the comming of the Iustices of Assise by reason that the Statuts 1. 2. Phil. Mar. ca. 13 2. 3. Phil. Mar. ca. 10. doe enioyne them to Certifie at the next generall Gaole deliuerie both the examinations and bonus that they shal take concernirg Felons and suspects brought before them This I may adde not as a restreint but for an enlargement of the auctoritie of Iustices of the Peace that if they sée cause and do write to the Clarke of the Crowne of the Kings Benche for the names of any persons being other where attainted of Felonie by Vtlawrie or being Clarkes conuict or attainted he ought without delay and vnder the paine of rl ye. to certifie the same vnto them togither with the causes of such attainder or conuiction 34. H. 8. ca. 14. Of Iudgement CAP. XV. THe Iustices of Peace hauing thus sifted and tried the causes in heauidence giuen to the Iurie or by the eramination of witnesses or by Certificate allowed or other reasonable and discréete proofe are now come to make an ende and to determine of it For I may wel apply that to hearing and determining which M. Bracton requireth to the making vp of a true Iudgement that is to say an equall and indisferent acceptation of the persons an earnest examination and thorow searche of the cause a true deliuerie of the sentence and a diligent execution of the same Of these the two first belong to Hearing or Triall which we haue already handeted and the latter two bée the very parts of determining wher with we haue now to deale For Iudge ment and Execution doc make an ende of the wbole cause You haue heard before how M. Fitzh collectcth a generall learning out of one speciall case in the Commission I meane that if any difficultie doc arise in determination vppon Tryall the Iustices of Peace are restreyned to procéede to Iudgement and you may reade 6. H. 7 16. that if a Certiorari bée brought to the Iustices of Peace they are stayed by the opinion of Keble from determination although the Recorde bée not there by remoued from them But supposing that there is none impediment let them procéede to Judgement The Judgements of the Iustices of Peace bée in some cases arbitrarie or referred to discretion and in other some cases prescribed or limited Of the first sort take this one or two for all Iudgements by discretion He that is orderly conuicted before them in their generall Sessions of the deceiptfull getting of anye thing into his handes by meanes of any false token or counterfaite letter made in the name of any other may bée adiudged by them to suffer Emprisonment standing on the Pillorie or anye other corporall payne that they shall appoynt except the
brought to a seconde handling either to the ende to reuerse that which they haue done or that their doings may be an euidence and testimonie in the triall of causes before other Iudges And because this can not in any sorte be perfourmed Without the presence of those former Recordes or the transcripts thereof which due remayne with the Iustices of the Peace it is therefore requisite that they we make Certificat of them vnto those other Courtes or officers that shall be interessed to vse the same But as this Certificat ought in some cases to bée made by the Iustices of the Peace or their Clarke without any writ of Certierari therefore directed and in some other cased they may spare to Certifie vntill that Writte or some other commaundement bée brought vnto them So also sometimes they are to certifie and send up onely a Tenor or Transcript of the Recorde before them and sometimes the verie Recorde it selfe must be conueyed from them The Clarke of the Peace must vnder the paine of rl ◠certifie into the Kings Benche a true transcript of euery Attainder Vtlawrie and Conuiction had before Iustices of the Peace in any place except Wales Chester Lancaster and Durham within 40. dayes after if it bée then Terme if not then within 20 dayes after the beginning of the next Terme that the same may there also appeare of Record to be used as that Statute hath appointed if there bée cause and he must also Deliuer to the Ordinarie a Transcript of Clarkes conuicted or attainted before the sayd Iustices 34. H. 8. c. 14. Certifie without the writ of Certiorari But enquire whether this last bée nécdefull at this day by reason that Clarkes bée not now deliuered to the Didinarie by the Statute 18. El. ca. 7. And if a principal bee attainted of murder or felonie in one Countie wher vnto an other is accessorie in an other Countie then vpon writing from the Iustices of Gaole deliueric or Oier and Terminer to the Custos Rotulorum where such principall is attainted he must certifie in writing under his Scale to the said Iustices Whether such principall be attainted or other wise discharged or not that they may procéeds there upon to the trial of the Acceslorie 2. E. 6. ca. 24. But in cases where Iustices of the Peace haue power to receyue Enditements and no power to procéede any further vppon them whereof you haue alreadye the eramples in the seuenth Chapter of thts seconds Booke there they ought to sunde vppe and certifie the Enditements them felues and that of duetie as I thinke without any Certtorari commaunding the same bicause hauing none auctoritie to heare and trye the offences the Recordes thereof shall bée vnprofitable before them and therefore they can haue no iust cause to reteine them and yet for the more suertie it is specially commaunded by 5. El. ca. 1. that they shall certifie the presentmentes of some offences against that Statute And so if a man bound to kéepe the Peace doe make default of apparance at the next Quarter Sessions the Recognulance it selfe togither with the Recorde of that default must be certified into the Chauncerie Kings Benche or Excheaquer that execution 3. Henri 7. cap. 1. and so ought it as I thinke if it bée presented that the partis hath for fayted his Recognusance by breache of the peace And likewise if it bee presented before them that the chattels of a man attainted of felonie bée in the handes of an other For in these and such other cases where they can not of them selues proccede they ought to sande the Recordes to such as haue auctozitie to determine vppon them and otherwise they doc not discharge that duetie which the words Saluis c. alys ad nos inde spectantibus in the Commission doc séeme to expecte at their handes Furthermore the Statute of Purueyours 2. 3. Phil. Mar. cap. 6. doth appoynt the Iustices of the Peace to certifie to the Treasorer of the Queenes housholde the Dockets of Purueiours brought to their Sessions by Constables that the seruing of such Commissions and the true aunswearing of purueyances may bée the better eramined thereby and although it may bée doubted whether these bée Recordes or no yet for that they are to bée certified from the Sessions of the Peace I sticke not to afoard them this place And if you will also repute in this number the Licences and such other ates of that kinde which passe at the Sessions of the Peace I will not bée against it Louching the Certiorari if it be made accordingly the is of force to remoue not only Enditements or other executorie Recordes wherein the Iustices of Peace can goe no further and whereof I haue spoken already but also the Recordes of caused fully and lawfully heard and determined by them to the ende that they may bée reuersed and adnulled in the Kinges Benche if good matter and cause due so require Certiorari For that preheminence hath the Kinges Benche as you may see by Proofe yea all other the higher Courtes may write to the Iustices of Peace to certifie their Recordes that doe make for the Triall of causes hanging in them as you may reade 19. H. 6. 19. where they of the Commune Place did send to the Iustices of Peace for an Enditeiment bicause in a writte of Conspiracie brought before them it was materiall to haue it And yet neither they of the Commune Place nor Kinges Benche do use to write for Enditements or such other Recordes unlesse they bée there vnto enduced by a cause hanging in their owne Courtes before them For otherwise the right way to remoue them is by Certiorari out of the Chauncerie from whence they may bée transferred by Mittimus to any other Court 41. lib. Ass Pl. 22. Knyuet Chiefe Iustice Howbeit a man may gather vpon the Booke 1. R. 3. 4. that if any Recorde bée sent up without warrant to such a higher Court they may there procéede vpon it bicause it is a Recorde in that Court and that Court is the Court of the Quéene aswellas the other Of the genrrall or Quarter Sessions of the Peace CAP. XIX WE haue hitherto laboured and at the lengthe runne ouer sundry thing which in the opinion of some men bée commune to all Sessions of the yeare And yet becuse there bée also certayne thinges as it séemeth to mée appropriated some to any and others to some one of the generall Sessions it remayneth that we nowe distinguishe the Sessions of the Peace and enter into consideration what is a generall and what a speciall Session The generall Sessions of the Peace bée those which are prouided for the generall execution of the auctoritie of the Iustices of Peace whether you respect the limits of the place within their Commission or the boundes sof power procéeding from the Commission and Statutes The generall Sessions For at these Sessions as sayth M. Fitzh generally
himselfe by oath That he did it not of euil minde and that he knewe not how to do better which I speake not to comfort men in carelesse ignoraunce but to shew you that me may erre and that erring by infirmity they are not altogither vnworthie of pardon and withall to let the Iustices of Peace sée that it may be a fault to erre by ignorance and that therfore they ought to stay where they méet with noÌ„ liquet as their owne Commission doth direct them Now on the other side if a Iustice of the Peace will craftilye embesill an Enditemet or wilfully raze any part therof or malitiously enroll or file the for an Enditement which was neuer found by the Iurie Then by the resolution of al the Iustices assembled before the King in the Starre ChaÌ„ber 2. R. 3 a CoÌ„missioÌ„ may go out to enquire by the oathes of 12. men of such his misdemeanor and if he bée conuicted therof he deserueth to loose his office to make fine to the Queene according to the quantitie of his misprision offece ibid. Fo. 10. And euen so may he be punished as this booke leadeth me to thinke if he alter an Enditement of Trespas into an Enditement of felonie howsoeuer the opinioÌ„ 27. lib. Asl P 1. 18 be foound against it A Iustice of the Peace may also be endited of the vnlawful taking of mony for doing his office or of such other falsitie Fitz. Nat. Br. 243. And if he cause a man to be endited at the Sessions by former conspiracie or indirect practise he is punishable for it as a priuate man 21. E. 4. 67. But if in the handling of a cause at the open Sessions it happen him to speake against an offendor somewhat excessiuely yet he shal not be punished for it Iuris enim executio non habet iniuriaÌ„ Neuerthelesse Iudges oughte not to abuse their tongs by inteperance but they must rather take great héede as Cicero pro Font saide Quibus verbis vtantur ne quid minus moder atè prositum ne quid ab aliqua cupidstate prolap sum verbum esse videatur Thus farre of punishmets by the commune Law now to those by Statutes Punishmets by Statutes If the Iustices of Peace hauving taken a Recognusance for an Alehouse do not certifie it at the nexte quarter Sessions of the Peace they shal loose fiue markes Alehouse Fiue Marks 5. E. 6. ca. 25. That next Iustice of the Peace which doth not certifie at the next general Sessions of the Peace such presentmets as the ouerséers of the Highwayes haue before presented vnto him shall loose v. â—â— for euerie default Highwaics Fiue pound 2 3. Phil. Mar. ca. 8 5. El. ca. 13. If any Iustice of Peace not being sicke nor hauing other lawful excuse to be testified vnder the Oach of one assessed in the Subsidie booke at v. â—â— c. do not assemble at the Easter Sessions to rate the wages of seruaÌ„ts c. he shal loose x. â—â— to the Queene 5. El ca. 4. Seruaunts wages Ten pounds And if any Iustice of the peace so assebled shal depart thece before conferece had about the execution of this Acte for setting idle persons on worke he shal fofeit v. â—â— 18. El. ca. 3. Poore on worke Fiue pound The Iustice of the Peace which faileth to recorde at the next quarter Sessions the name of any person auctorized to shoote in a Gun the hath preseted his name vnto him shal loose xx â— 2. E. 6. ca. 14. Gunnes Twentie shillings If that Statute do so far extend wherof the words giue cause of doubt And if the Proclamation annexed to the Statute 4. H. 7. ought now to be read then if it be not read at each quarter Sessions euerie Iustice of the Peace there present shall loose xx â— 4. H. 7. ca. 12 Proclamation reade Twentie shillings If the Iustices of the Peace before whoÌ„ any presentmet shal be made at their quarter Sessions against any person for extolling the auctoritie of the see of Rome do not certifie the same into the Kings Bench within 40. days after if the Tearme be then open and if not then at the first day of the nextful Tearme they shal euerie of them loose E. â—â— for euerie default 5. El. ca. 1. Pope A hundreth poundes And those Iustices of the Peace which do not certifie into the Escheaquer their examinations taken concerning the entring of plaintes by the Shirifes shall loose xl â— 11. H. 7. ca. 15. Examinations Fortie shillings The Epilogve Thus haue I by the fauor of God brought this treatise to an end wherin if many things haue escaped me vnséene I doe not greatlye marueile when I looke backe and behold the varietie multitude of the matter that I haue passed thorough and it shall not be harde for him that méeteth with such Estrayes to take and lodge them in their right Titles here The Epilogue Againe if I shal be thought to haue heaped vp too many conceites borowed out of M. Marrowes reading I make aunsweare that I haue omitted many and haue made the best choice that I could If furthermore I shal séeme to those that be maisters in Arte Methode mot to have throughly obserued their rules and speciallye that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bycause I do manye times mingle aliena things not preciselye pertayning to my matter in hand To them I say that it is the receiued manner of teaching in out law To shew things by their contraâ—ies and disterents and séeing that great lighte commeth to the matter thereby I may neyther condemne it as vnapt nor reiect it as vnseruiceable Moreoure if I haue bene deceiued in laying downe ouerboldely mine own opinion I wil no lesse gladlye be admonished of it than readily reforme my mistakenings Finally whasoeuer other thing is done amisse I protest that it hath escaped of vnskill and not procéeded of wilfulness and therfore I desire that I may be allowed the benefite of the pardon which as I tolde you euen now is in like case grauntable to a Iustice of the Peace Finis A Table conteining verie neare all the imprinted Statutes bothe generall and particular wherewith Iustices of the Peace haue in any sorte to deale King Yeare Chap Content He the 3. 9 25 Of measures and weights  51  Thassise of Bread and Ale  51  The Iudgemet of the pillory  51  The ordinaunce for measuring  51  Of weights and measures Ed. the 1. 3 9 Of fresh suite after Felons   10 Of Coroners   15 Of Bailement of Felons   25 Against maintenaunce   26 That Shirifes and other Ministersshall take no rewardes   27 Of fees for deliuering chapiters   28 Of Maintenance of quarrels  13 34 Of rauishing women   47 Of taking Salmons   49 Against maintenance    The
Sessions pag. 132 18 Of the Breache of the Peace without a Multitude or with a Multitude by forcible entrie into landes or tenementes and what one Iustice of Peace out of the Sessions may doe therein 145 19 Of other breaches of the Peace with a multitude as by Riot Rout or vnlawfull assembly c. And what one Iustice of Peace out of the Sessions may doe therein 172 20 What other things one Iustice of the Peace alone may doe out of the Sessions by vertue of Statutes mentioned in the Commission 184 21 What other things one Iustice of the Peace may doe out of the Sessions by the power of other Statutes not mentioned in the Commission 190 22 What things any two Iustices of the Peace may do out of the Sessions 227 23 What things some two Iustices of the Peace may doe out of the Sessions 246 24 What things three or moe Iustices of the Peace may do out of the Sessions 273 25 Of the Rewarde and punishment of Iustices of the Peace for things done not done or missdone out of the Sessions of the Peace 276  The Epilogue 281 The Contentes of the Chapiters in the second Booke  The Proheme 283 1 The description of the Sessions of the Peace 284 2 Who shall appoint the Sessions of the Peace and howe and where 289 3 What persons ought to appeare at the Sessions And therein of the Gâ—â—stos Roâ—â—lorâ— the Recordes of the Sessions and the Clerke of the Peace and howe the Iuroâ—â—s ought to be qualified and ordered 294 4 Of the Articles that are to be giuen in charge at the Sessions of the Peace 310 5 Of the Enditements and Presentmentes given by the Iuroâ—â—rs and of the matter and forme and receiuing and reiecting and reiecting of them 383 6 Of the Presentments and Informations of Officers and other men 403 7 Of the Impedimentes of proceding vpon Enditements before Iustices of Peace 409 8 Of the Processe vpon Enditements and Informations pag. 415 9 Of hearing vpon Confession 426 10 Of hearing by Diserection 428 11 Of hearing or Triall vpon Examination 431 12 Of Triall or hearing by Cerâ—ifieas 434 13 Of hearing or Triall by Trauerses 436 14 Of Triall vpon Araignment and therewithall of Felotâ—es 449 15 Of Iudgement 453 16 Of the Processe for the Fine of the Queene and of the assessing thereof and of Estreating for the Queene pag. 458 17 Of the Executorie Processe and execution for the parties that sue or for other persons 469 18 Of Certifying Recordes of the Sessions of the Peace to other Courts or Officers 472 19 Of the Generall of Quarter Sessions of the Peace 477 20 Of the Speciall Sessions of the Peace 500 21 Of the Rewardes and Punishments due to Iustices of the Peace in respect of their Sessions 503  The Epilogue 518 The ende of the Table EIRENARCHA Or of the Office of the Iustices of Peace THE PROHEME TO write of the Office and Duetie of Iustices of the Peace after M. Marrowe whose learned Reading in that behalf made the xviii yeare of King Henrie the seauenth is in manie handes to bée séene and after Iustice Fitzherbert who published an excellent treatise thereof which is yet euery where bée had may at the firste séeme no lesse vnaduisedly done than if a man shoulde bring Owles to Athens as the Prouerbe is or stickes into a growing Wood or Copise Howbeit if it be considered that since their time this Office is charged with manie Statutes which were not made when their wrytings were penned and if it bée weighed also that sundry things in them had theÌ„ the the force of law which now at this day they haue lost by alteration of like authoritie It cannot bée thought altogither in vayne to conferre their writings with the Booke cases Statutes that haue arisen of latter tymes and out of them all to collect some discourse that may serue for the present age wherein wée now liue and somewhat further the good endeuour of such as bée not trained up in the studie of the lawes In which doyng as I meane to robbe no man of his right but to yéeld to eche one the due prayse of his owne fearing least as the Poet sayd Moueat Cornicula risum Furtiuis nudata coloribus So if I my selfe shal be found here and there to dissent in opinion from other men I desire heartilie that my good meaning bée not euill interpreted that my allegations and reasons be weighed indifferently and that the respect of my person bring no preiudice to the thyng in question ⧠What Iustices of the Peace bee and why called Iustices CHAP. I. IVSTICES of the Peace A definition or description of Iustices of the Peace bée Iudge of Iudges of Recorde appointed by the Quéene to bée Iustices within certaine limites for the Conseruation of the Peace and for the execution of sundrie thinges comprehended in their Commision and in diuers lawes committed vnto them These and many other Iudiciall officers in our lawe be called Iustices per metonymiam subieti bicause they doe or should doe lawe and Iustices For in many olde Histories Why they be called Iustices the Chiefe Iustices of England is termed Capitalis Iustitia and Prima post Regem in Anglia Iustitia and the Originall Writtes that are in M. Glanuils Booke which was written vnder the raigne of king Henry the second haue this forme quod sit coram me vel Iustitijs meis And this no doubt was done of speciall purpose and to the ende that the mention of their name should put them in minde of their office and should continually as it were sollicite them to administer Iustice for whole sake they were appoynted But in the dayes of King Henry the third M. Bracton who reduced the body of our law into Latine and therein imitated the Methode of the Ciuile Lawyers chaunged the worde Iustitijs into Iustitiarijs how Latine like let them iudge that can skil and setteth downe the Writtes accordingly coram Iustitiarijs nostris Since which tyme not onely all our Writtes that commaund appearance before the Iustices at Westminster do vse the word Iustitiariss but all Commissions of Sewers of the Peace of Oyer Terminer and such like do obserue the same forme also And of this it commeth that M. Fitzherbert in his treatise of the Iustices of Peace calleth them Iusticers contractly for Iusticiars and not Iustices as we commonly and not altogither vnproperly do name them Of the signification of the worde Peace CHAP. II. Peace hath many significations OF the Latine worde Pax the Normans framed their Paix and we out of the that our peace which name hath sundry significations in the holy Scripture For there is an inward and an outward Peace And this inward Peace is either good or euill First then there is pax apud Deum that is to say our reconciliation made with God the father by the death of Christ his sonne who is pax
nostra and hath appeased the wrath of God for our sinnes Our of this procéedeth an other inward Peace named the Peace of CoÌ„science for that our Conscience is by faith in Christ at Peace both with God and it selfe The euill inward Peace is the same where of our Sauiour Christ spake saying pacem do vobis non quemadmodum mundus dat And this Peace the Kingly Prophet Dauid calleth pacem peccatorum bicause it is no better than carnall securitie The outward peace hath respect to other men and that is of two sortes also the one is opposed or set against all maner of striuing and contention whether it be in countenance gesture worde or worke of the which S. Paule spake to the Romans in these wordes Si fieri potest quantum in vobis est cum â—mnibus hominibus pacem habetote And in the same meaning the Latine men say pace tua by your leaue or fauour without your offence or displeasure The other is onely an abstinence from actuall force and offer of violence and is rather contrary to arma pralium and bellum which can not be without force or armes than it is lis pugna or certamen which as Laurence Valla confesseth may be nudus verbis citra arma And hereof also our Sauiour Christ spake wheÌ„ he said Non veni vt mitterem pacem sed gladium The lawe of our Realme Peace in our Lawe likewise vseth the worde Peace diuersly but yet so as it is altogether occupied about these outwarde Peaces For as Cicero said of fraudes aliter leges aliter Philosophi tollunt astutias leges quatenus manutenere res possunt Philosophi quatenus ratione intelligentia euen so may I truely affirme that in the matter of Peace the law of God which onely is the true Philosophy respecteth the mynde conscience although the lawes of men doe looke but to the bodie handes and weapons Sometymes therefore the word Peace is taken for Proctection or defence as where M. Bracton calleth the Writtes of Protection Breuta de pace Sometymes as it seemeth to me it is taken for Rightes Priuiledges and Liberties as in the othe of the Queene at hir Coronation she sweareth Seruare Ecclesiae Dei Cleri Populi pacem ex integro the meaning whereof is as I suppose that she will maintaine eche degrée and estate of hir Subiects as well Ecclesiasticall as Temporall for populus comprehendeth all the Laitie according to their seueral customes Lawes and Priuiledges And sometimes it is taken for a withholding or abstinence from that iniurious force violence whereof I spake before Peace for Iustices of the Peace And this is it that is most commonly understood by the worde Peace in our lawe and for the maintenaunce hereof chiefly were these Wardens and Iustices of the Peace first made and appointed For Iustices of the Peace were not ordained as some haue thought to the ende to reduce the people either to an vniuersall vnanimitie or agréement of mindes which is in déed a thing rather to be wished for than to be hoped after Neither is it any part of their office to forbid lawfull suites and controuersies whiche neuerthelesse be disagréements of mindes But to suppresse iniurious force and violence mooued against the person his goods or possessions And that this may appeare to be the minde or the king which first created these Wardens or Iustices of the Peace I meane King Edward the third let me shew you the Writte that he in the first yeare of his raigne and not many wéekes before the Parliamente in which the Gardeins of the Peace which afterward obtained the name of Iustices of the Peace were first ordeined did sende to the Shirifes of eche Shire in Englande bearing this forme Edwardus Dei gratia Rex Anglia Dominus Hybermae Dux Acquitaniae Vicecomiti Kanciae salutem Tho. Walâ—ugham in â—ist pag. 107 Quia dominus Edwardus nuper Rex Angliae pater noster de communi assensu Praelatorum Comitum Baronum aliorum Magnatum necnon Comunitatum totius regns praedicti spontanea volantate se aneouit à regimine dictiregni volens coÌ„cedens quòd nos tà quam ipsius Primogenitus Haeres ipsious regni gubernationem regimen assumamus Nosqúe ipsius patris beneplacito in hac parte de consilio auisamento Praelatorum Comitum Baronum praedictorum annuentes gubernacula suseepimus dicti regni Magnatum recepimus vt est moris Desiderantes igitur pacem nostram proquiete tranquillitate populi nostri inuiolabiliter obseruavi Tibi praecipimus quòd statim visis praesentibus per totam Balliuam tuam pacem nostram facias publicè proclamari vniuersis singulis ex parte nostra inhibendo sub poena membrorum ne quis dictam paecem nostram infringere seu violare praesumat sed quilibet actiones quaerelas absque violentia quacunque prosequatur secundùm leges consuetudines regni nostri Nos enim parati sumus seÌ„per crimus oÌ„nibus singulis coÌ„queretibus taÌ„ diuitiê° quam pauperiê° in Curijs nostris plenam iustitiaÌ„ exhibere Teste meipso Caledas Februarij die dominica in vigilia purificat c. This Writ I haue the rather set downe at large because it containeth a faire shewe of a foule déede I meane his attaining to the crown by the depriuation of his father But for the present purpose by this Writ it is manifestly declared that the Peace which he meant was not an vniting of mindes but a restraining of hands which is in a manner al one with that which Tullie writeth in his Oration Pro Sestio where he setteth Vis and Ius one against the other and it agreeth well with that description of Vis which M. Bracton maketh lib. 4. ca 4. saying Vis est quotiens quis quod sibideberi putat non per Iudicem reposcit Est autem interdum armata interdum inermis According to which meaning also the olde Statute of Westminister the first ca. 1. saide Let the peace of the laÌ„d be maintained in al points and common right be done to all as well poore as rich Thereuppon likewise saith the Statute 1. R. 2. ca. 2. Let the peace bee well and surely kepte that the Kings subiects may safely goe come and abide according to the lawe of the Realme and that Iustice and right be indifferently ministred to euery Subiect Finally the Statutes of 2. R. 2 ca. 41. H. 4. ca. 1 and 7. H. 4. ca. 1. Doe all in plaine spéech couple the maintenance of the Peace with the pursuing of sutes as things that may right well stand togither And therefore I conclude that this furious gesture and beastly force of bodie or hands and not euerie contention suite and disagréement of mindes is the proper subiect and matter about which the Office of the Iustices of the Peace is to be exercised Nowbeit I write not this as though I would not haue a
he and they whose estate he hath in the Manor of Dale haue bene Conseruatours within the Hundred of Sale either all the yeare or onlie at one certaine time of the yeare And as hée may prescribe in the power it selfe so also may he in the maner of the exercise of the same as that they haue vsed to take the Suertie of Peace by obligation pledge or Caution so also in the maner of the Processe therefore as to Distreigne and to sell the distresse Mar. But all this is to be doubted of because that in the opinion Of Brian and Pigot 21. E. 4. 67. 22. E. 4. 35. the Maior of Dale cannot prescribe to be a Conseruatour or to commaunde Suertie of the Peace to commit to prison for an affraie in his presence vntill such suertie be found Furthermore euen as the shirifes were auntientlie chosen and as the Coroners yet bée So also certaine persons were wont to be elected Conseruatours of the Peace in the full Countie before the Shirife and of this kinde I my selfe haue séene certaine Recordes in Rotul patent de Anno. 5. E. 1. running in this course By ElectioÌ„ First a Writte to the Shirife of Norfolke commaunding him to choose in his ful CouÌ„tie unum homâ—nem de probioribus potentioâ—â—bus Comitatus sâ—â— in custodem pacis Then an other Writte directed Balliuis fidelibus of the same Countie giuing vnto theÌ„ notice of the former Writte to the ende as it séemeth that the Bailies should warne the men of the Countie and that they should appeare at the Countie Court to make the Election And lastlie to the Conseruatour elected this Writte following Edwardus dei gratia Rex Angliae Dominus Hyberniae dux Aquitaniae dilecto fideli suo Iohannt le Bretun Salutem CuÌ„vicecomes noster Norfolc et coÌ„munitas eiusdem comitatus elegerit vos in Custodem pacis nostrae ibidem vobis mandamus quod ad hoc diligenter intendatis prout idem vicecomes vobis scirifaciet exparte nostra donec aliud inde praeceperimus In cuâ—us rei c. Datum per manum venerabilis patris F. Bathon Wellen. Episcopi Cancellarij nostri apud Cest secundo die Septemb. Annoregni nostri quinto Touching the conseruation of the Peace by Tenure of Land M. Marrow putteth this case If the King graunt vnto a man landes to holde of him by Kinghtes seruice and to be a Conseruatour of the Peace in a Countie he is a Conseruatour by Tenure agreably wherevnto saith an Inquisition founde at Chester An. 4. E. 2. after the death of one Vrianus de Sancto Petro inter alia thus By Tenure Touching the ... Quòd idem Vrianus tenuit de Domino Rege in capite in dominico suo vt de feodo die quo obyt Medietatem Seriantiae pacis per seruitium inueniendi decem serutentes pacis ad Custodiam pacis in Cestr pro qua quideÌ„ custodia antecessores sui percipere solebant xxx â— per annum ad scaccarium Cestr pro Mantellis dictorum decem seruientum c. These sortes and some others which M. Marrow reciteth and whiche I wanting Recordes to warrant them do omitte I cal Ordinarie Conseruatours of the Peace bycause thier auctoritie was then Ordinarie alwayes one and the same wel ynough knowen Extraordinarie conseruatours But the Extraordinarie Conseruatour as he was endowed with an higher power so was he not ordinarilie appointed but in the times of greate troubles onlie much like as the Lieutenaunts of shires are now in our dayes And he had the charge to defende the coasts and Countrey both from forraine and inwarde enemies and might commaund the Shirife and all the Shire to aide and assiste him as it may well appeare by this Patent remayning of Record in the Tower Rotul Patent de An. 49. H. 3. made by that king or rather in his name by Simon the Earle of Leicester whose prisoner he then was Rex Iohanni de Plesset salutem Cùm nuper de consilio Magnatum qui sunt de consilio nostro constunerimus vos custodem pacis nostrae in comitatu Northumb. ac vos tam landabiliter circumspecte in officio illo gesseritis quod probitatem ac diligentiam vestram merito duximus recommendandam adhuc necesse sit sicut intelleximus quod ad tuitionem partium illarum conseruationem pacis nostrae èìdem officio intendatis vobis de consilio Magnatum praedictorum mandamies firmiter iniungentes quatenus omnem diligentiam quam poteritis adhibeatis ad pacem nostram conseruandam in partibus praedictis in forma qua vobis aliâs iniuÌ„ximus MaÌ„dauimus enim Vic nostro Northumb. quod quotiens opus fuerit à vobis fuerit requisitus cum toto posse sui comit vobis ad hoc assistat Nolumus autem quod praetextu huius maÌ„dati nostri de aliquibus quae ad officium vic pertinent vos intromittatis quo minus vic de exitibus eiusdem comit nobis plenè respondere valeat ad Scaccarium nostrum Teste Rege apud Westmonast xj die February Anno Regni sui quadragesimo nono And sundrie the like Patents were at the same time also made as to Iobn de la Haye to be Conseruatour of Kent and of the Sea coastes there to Ralph Baslet of Dravâ—on to be Conseruatour of Staffordshire and so to others for other Counties Of the first ordaining of the Wardeins and Iustices of the Peace by Statute Lawe CAP. IIII. After suche time as Queene Isabell contending with hir husband King Edwarde the second was retourned ouer the Seas into England accompanied with hir Son Prince Edward called afterward the thirde King of that name and with Sir Roger Mortymer and such others of the Englishe Nobilitie as had for the indignation of the King fledde ouer the Seas vnto hir She soone after gotte into hir handes the person of the olde King partlie by the assistaunce of the Henâ—lders that the brought with hir and partlie by the aide of such other hir friends as the found readie here and immediatelye caused him by forced patience to surrender his Crowne to the young Prince And then also for as muche as it was not without cause feared that some attempte would be made to rescue the imprisoned King order was taken that he should be canueyed secreatelie and by night watches from house to house and from Castle to Castle to the ende that his fauourers should be ignorant what was become of him Yea and then withall it was ordained by Parliament in the life time of that deposed King and in the varie first entrie of his sonnes raigne 1. E. 3. ca. 15 That in euerie Shire of the Realme good man and lawful which were no maintainers of euill nor Barrettours in the Countrey should bee assigned to keepe the peace which was as much as to say that in euerie Shire the King himselfe should place speciall eyes and watches ouer the common people that
shoulde be both willing wise to forsée and be also enabled with méete auctoritie to represse all intention of vproare and force and that euen in the firste séede thereof and before that it shoulde grow vp to any offer of daunger So that for thys cause as I thinke the election of the simple Conseruatours or Wardeins of the Peace was first taken from the people and traÌ„slated to the assignement of the King And whether their auctoritie and power were then also with this alteration anye thing increased or no I will not affirme But I find 3. E. 3. Titul Coron Fitzh 360. that an Enditement of murder was founde before one Wardein of the Peace onlie and that he therevpon wrote his letter or precept to the Shirife to apprehende the person endited who tooke and brought him before the Iustices in Eire and that they also therevpon procéeded to the arraignemente and triall of him And the Statute 4. E. 3. ca. 2. taketh order that such as should be endited or taken by the Wardeins of the Peace should not be bayled by the Shirife or other Ministers vnlesse they were Mainpernable by the Law Howsoever that were the same King vsed as I thinke for the first 33. yeares of his raigne to make his assignements and commissions to the Wardeins of the Peace not alwayes seuerallie into eache Shire but sometimes iointlie to sundrie persons ouer sundrie Shires for so I find a Comission 2. E. 3. part 2. patent in dorso made to William Roos and thrée others his companions to be Wardeins of the Peace not only in Lincolneshire but also in thrée or foure of the other Counties thervnto next adioining CoÌ„missioÌ„s or assignements for the Peace And this mighte be warranted after 18. E. 3 as I suppose out of the Construction of the worde Countie vsed Plurally in the Statute 18. E. 3. Stat. 2. ca. 2. contrarie to the meaning of the former lawes made 1. E. 3. ca. 15. 4. E. 3. ca. 2. where the same word is read Euerie Countie in the Singular number But the Parliament 34. E. 3. ca. 1 restored the proper sense of those lawes saying In euerâ—e Countie of England there shall bee assigned for the safe keeping of the Peace one Lord and with him three or four of the mightiest men in that Countie And afterwards speaking of Felonies c. it addeth They shall haue power to heare and determine at the Kings suite al manner of the felonies or trespasses done in the same Countie Hereof it commeth to passe that euer sâ—thence eche CouÌ„tie hath her proper CoÌ„missioners for the Peace that Counties haue not bene conioyned in Commission as they were sometimes before Hereunto also may that be referred which M. Fitzh Fol. 171. hath saying That before the Statues whiche ordined Iustices of the Peace the King vsed to make Conseruatours of the Peace by his commission in those Counties and places where he thought best to kéepe his Peace But now at what time these Wardeins of the Peace were first named and mighte truely be tearmed Iustices of the Peace it is not so cuident that I dare determine vpon it for on the one side I knowe that M. Marrow taketh it cleare that they were made Iustices by the Statute 18. E. 3. Stat. 2. ca. 2. and on the other side I sée that they were not named Iustices in anye Statute that I have founde within 17. yeres after and it is true to this verie Day theyr owne Commission giueth them not anye such Title There is a shewe I confesse in that Statute 18. E. 3 that they sshoulde be Iustices because of the power to heare and determine felonies whiche is mentioned there The First name of Iustices of the Peace But if it be well weighed it will appeare by the Statute it selfe that the Wardeins of the peare were to haue one Commission by themseluse for the kéeping of the Peace that they and others onely at times néedefull were to haue an other Commission to heare and determine Felonies So that as they were méerlye Commissioners for the Peace they had none aucthoritie to determine felonies and consequently could not in regarde thereof be then worthilye called Iustices and it is plaine in mine opinion that the generall power of determining felonies was first given unto the Wardeins of the Peace as to themselues by the Statute 34. E. 3. ca. 1. After which time it is uerie true that were were commonlie reputed and called Iustices for within one yere after that time there is a Commission which I have sséene in dor so patentium parte 2 that speaketh thus Assignauimus etiam vos tres vestrum Iustictarios nostros c. and the Statute 36. E. 3. ca. 12. taking order for the Quarter Sessions to be holden as well by them as by the coÌ„missioners for Labourers called both the sortes of them by the name of Iustices I might here disclose home and by what degrées the auctoritie of these Iustices of the Peace was froÌ„ time to time enlarged But I wil reserue that vntill I shall come to the forme of their Commission where I shall finde both fitter occasion and more proper place for it By whose auctoritie and by what means Iustices of the peace be appointed and of what sortes they bee CHAP. V. FRom the king who is the head of Iustice ought to flow all aucoritie to the inferiour and subalterne Iusrices And vpoÌ„ this reason it séemeth that the said Statutes 18. E. 3. ca. 2 and 34. E. 3 ca. 1. did ordaine that the Wardeins of the Peace in each Countie should be assigned by the kings CommissioÌ„ that it might thereby appeare that they receiued their whole authoritie and power as it were by his owne hande and deliuerie Howbeit afterward partly through such as had Iurategalia within their Counties Palatine and did thereby make Iustices of the Peace in their owne names and partly by the meanes of sudrie Abbats and Religious persons who labouring by all policie to increase their iurisdictions and to shoale out themselues from the ordinary gouernement had obtayned graunts from the King of the Realme that they theÌ„ selues might make Iusticiarious suos ad pacem coseruandam within their owne liberties this prerogatiue of making Iusstices was in manye places afterward seuered froÌ„ the Crowne to no small detrimente of the royall estate of the same And therefore although by the opinion of Iudge Fineux in the Abbat of S. Albans case 20. H. 7. 8. such a graunt was of no value in lawe because it was of a Prerogatiue inseparablie annered to the Crowne yet King Henrie the eight thought it fit by a generall resumption in Parliament of all such liberties to restore vnto the Crowne hir antient right in this behalfe And therevppon 27. H. 8. ca. 24. it was decriéed that no person whatsoeuer should haue any power to make Iustices of the Peace but that they should be made by letters patents vnder the Kings great
reddendum nisi in praesentia vnius IusticiarioruÌ„ nostrorum de vno vel de altero Banco aut Iusticiariorum nostrorum ad Assis as in comitatu praedicto capiendas assignatorum coram vobis minimè procedatur The charge to the Iustices Et ideo vobis et cuilibet vestruÌ„ mandamus quod circa custodiam pacis ordinationum Statutorum praedictoruÌ„ diligenter intendatis Et ad certos dies loca quos vos seu aliqui vestrum ad hoc prouideritis diligenter super praemissa faciatis inquisitiones Et praemissa omnia singula audiatis terminetis ac ea faciatis expleatis in forma praedicta facturi inde quod ad iustitiam pertinet secundùm legem consuetudinem regni nostri Angliae Saluis nobis amerciametis alys ad nos inde spectantiê° Mandauimus enim vicecomiti nostro Kanciae quod ad certos dies loca quos vos seu aliqui vestrum ei scire faciatis venire faciat coram vobis seu aliquibus vestrum tot tales probos legales homines de Balliua sua tam infra libertates quà m extra per quos rei veritas in praemissis melius sciri poterit inquiri To the Shirife Et vos prarfati Thom Wotton ad dies locae praedicta breuia praeceptae processus indictamenta praedicta coram vobis dictis socys vestris venire faciatis ea inspiciatis debito fine terminetis sicut praedictum est In cuius rei testimonium c. Datum 6. die Aug. Anno regninostri 21 To the Custos Rotulourn Certaine obseruations concerning the matter forme of the Commission of the Peace CAP. IX MAister Fitzherberte in his treatise of Iustices of te Peace Fo. 11. b. séemeth to bée of the opinioÌ„ that this forme of Commission was deuised when Iustices Of the peace were first ordained But sauing the reuerence due to so learned a Iudge I suspect that the matter is mistaken by him For besides that the Commission it selfe doth rehearse certaine Statutes made in the times of King Henrie the fourth and of King Henrie the fift many yeares after that Iustices of the peace were created It is the agréeing opinioÌ„ of al the Iustices 2 R. 3.9 the Iustices of the peace had no power at the first but only ad ConseruandaÌ„ paceÌ„ Regis and that afterward wheÌ„ they had power giuen theÌ„ ouer Felons it was not ynough for them to say in their Certificate of an Enditemente of Felonie that it was founde Coram Iusticiarijs Domini Regis ad pacem in comitatu praedicto conseruandam but that they must adde withall Necnon ad diuersas felontas c. and that otherwise their Certificat was of no value And as it is euideÌ„t that 34 E. 3 ca. 1. was the firste Statute that gaue to them that power to heare and determine felonies and trespasses So there is a Precedent to be séene 35 E. 3. in dorso patent parte 2. wherby it appeareth that the forme of their Commission was then enlarged accordingly Alterations from time to time of the Commission of the Peace After that time also it is apparaunte that sundrie things were by expresse commaundement of diuerse Statutes put into theyr Commission of whiche sorte bée these the Statute 36. E. 3. ca. 12. by whiche there ought to be mention in the Commission of the times of holding the Sessions of the Peace although the same were afterwardes pretermitted bycause 2. H. 5. ca. 4. did alter those times in apointing of others the Acte 42. E. 3. ca. 6. by whiche auctoritie ouer Labourers was giuen unto them and willed to bée putte into their Commission The Statute 5. H. 4. ca 3. whereby it was commaunded that mention of Winchester concerning watch should be added so their Commission and the Statute 3. H. 5. ca. 7. which tooke order that Iustices of Peace shoulde haue power by the Kings Commission to enquire of the counterfaiting and other falsifying of money Besides all whiche it is verie probable and likelie that the mention of Weightes and Measures of Vagaboundes of Liueries and of some other things was first put into the Commission after the making of these Statutes 34. E. 3. ca. 5. .6 7. R. 2. ca. 5 17. R. 2. ca. 4 2. H. 4. ca. 21. and some others whyche did first giue power to the Wardeins and Iustices of the Peace to deale with those and some other matters So farre of is it that this Commission hath from the beginning retained one constant tenour and forme Yea as I am verelie persuaded that the forme of this Commission hath veried with the time and receiued sundrie accessions so I trust hereafter to make it plaine that it were conuenient to reforme it now also for diuers imperfections that do yet remaine in it euen as in our memorie the Statute of Lollards which was thrust into the Commission by 2. H. 5. ca. 7 and was in Maister Fitz. own dayes vsually read in it is nowe vpon iust reason as a thing sauouring of the pumpe the Pope I woulde say throwen cleane out of the booke But first let me breake it as it is into partes and leaue with you a few notes vpon the same The whole substaunce of this Commission The partes of the Commission is comprehended within these fewe tearmes 1 The Salutation of the Prince 2 The power of the Iustices and 3 The Charge from the Prince to them and others The Salutation of the Prince expresseth the names of the Iustices 1. The Salutation and hath nothing else in it that néedeth light Then followeth the Power of the Iustices 2. The power of the Iustices whiche is comprehended in thrée clauses whereof the first beginneth thus Sciatis quòd assignauimus vos contunctim diuisim ad pacem c. custodienda custodiri facienda The second beginneth in these wordes Assignauimus etiam vos quoscunque vestrum Iusticiarios nostros ad inquirendum c. The last beginneth likewise Assignauimus etiam vos duos vestrum quorum c. vnum essevolumus ad felonias c. audienda terminanda The first Clause or Assignauimus giueth power to all to many or any one of them First clause or Assignauimus for so Maister Fitzherb vnderstandeth the wordes coniunctim diuisim to kéepe and cause to be kepte the Peace and especially to kéepe these Statutes made for the maintenaunce of the same that is to say first the Statute of Winchester 13 E. 1. The the Statute of Northampton 2. E. 3. ca. 3. And the Statute of Westminster 5. E. 3 ca. 14. whyche doeth concerne the Peace and not as Maister Fitzh wil haue it the Statutes of Westminster the first second or thirde whiche as they have almoste nothing concerning the matter of Peace that of W. 1. ca. 9. onely excepted so to go from the Statute of NorthaÌ„pton to them were to ascende contrary to the
Sâ—ockes and that not aboue suche a reasonable tyme as he may prouide to conuey him to the Gaolâ— till he find suertie of the Peace 3. H. 4. 9 22. E. 4. 35. And herein he differeth from a Gaoler or the Shirife who hath the charge of the Gaole for he may make a Gaole of his house and so caÌ„not a Constabe or Iustice of the Peace doe And by the Statute 5. H. 4. ca. 10. the Iustice of Peace must sende his prisoners to the common Gaole If one doe make an Affray vpon the Iustice of Peace Constable or suche other Officer he maye not onely defende him selfe but maye also apprehende the offendour and sende him to the Gaole till he wil finde suertie of the Peace 5. H. 7. 6. And the Iustice or Constable maye if néede bée commauno assistance of the Queenes people for the pacifying of an Affray 3. H. 7. 10. If he that maketh an Affray do flie into a house when the Iustice of Peace or Constable coÌ„meth to arrest him they may in fresh sute breake open the doores and take him Mar. Or if he flie thence they may make fresh sute and arrest him though it be in an other Countie by the opinion of some men 13. E. 4. 9. And it shoulde séeme by the reason of that Booke that in this case also they may breake open the doores to apprehend him because the Prince hath an interest in the matter and then a mans house shall be no refuge for him as it shoulde be in Debt or Trespas where the interest is but onelie to some particular partie Now if the Constable do arrest one that hath hurt an other and do voluntarily suffer him to Escape and then he that was hurte â—ieth thereof within the yeare and day the Constable shal make a great Fine and that to the valewe of his goodes in the opinion of some 11. H. â— 12. Stanford 35. 1. But the offence shall not have suche Relation to the stroke as to make the escape to become Felonie thereby Commentar Plowd 263. Of the breach of the Peace without a multitude or with a multitude by forcible entrie into landes or tenements c. And what one Iustice of the Peace out of the Sessions may doe therein CAP. XVIII BEfore the troublesome reign of King Richard the second it séemeth that the common Law permitted any person which had good right or title to enter into any laÌ„d to winne the possession thereof by force if otherwise he could not haue obtained it And still at this day if in a common Action or enditement of Trespassle for entring into any land the Defendant will make Title therevnto the whole matter of the Force alleadged against him wil rest altogither vpon the validitie of his Title as appeareth 7 H. 6. 13. and 40. And a man maye also at this daye retaine wyth force his owne goodes and cattailes agaynste an other 19 H. 6. 31. 9. E. 4. 18. But after the rebellious insurrecon of the velleins other of the commons whiche happned in the fourth yeare of that Kinges reigne The Parliament in 5 R. 2. cap. 7. thinking it necessarie to prouide against all occasions of any further vproare or newe breach of the Peace did ordaine among other thinges That from thenceforth none shoulde make any entrie into any landes or tenements although his entrie into the same were lawfull but onely in peaceable and easie maner and not with strong hande nor with multitude of people vpon paine of imprisonment and to be raunsommed at the Kings will But because this Statute gaue no quicke remedie in this point nor any special power therein to the Iustices of the Peace of the countrie whereas the experience of that busie time required a great deale more spéede in suppressing such disorder After that they had in 13. of that king c. 7. Stat. 1. taken order that Iustices of Peace shold be made of new in all the Counties of England of the most sufficient Knights Esquiers men of law of the same Countie And that they should be sworne to keepe put in execution all Statuts ordinaunces touching their offices The in 15 R. 2. c. 2 they caused it to be further enacted That when such forcible entrie should be made into landes or tenementes or into Benefices or Offices of the Church and complaint thereof come to any Iustice of the Peace he should take sufficieÌ„t power of the Countie and go to the place where the forcible entrie was made if he found any that held such place forciblie after such entrie made the same should be taken and put in the nexte Gaole there to abide conuicted by the Recorde of the same Iustice till they had made fine and raunsome to the King And that aswell the Shirife as all others of the Countie shoulde attende vpon the saide Iustice to go and arrest such offendours vpon pairâ—e of imprisonment and to make fine to the King Now againe for asmuch as this laste Statute did not extende to those that entred Peaceablie and then helde with Force nor against the offendors if they were remoued before the comming of the Iustices nor yet any paine therein ordained against the Sherife that did not obey the preceptes of the Iustices in this behalfe it was not onelie ordayned by a thribe Acte made 8. Hen. 6. cap. 9. That the sayde former Statutes shoulde be holden and duelye executed But it was adjoyned also thereunto That if anye from thenceforth forth shoulde make suche forcible entrie into lands tenements or other possessions or should them holde forcibly after complainte thereof made wythin the same Countie to any of the Iustices of the Peace thereby the parties greeued that the Iustice so warned should in conuenient time cause the last said Statute duely to bee executed at the costes of the sayde party And whether the perfons making suche entries were present or auoided before the Iustices comming the same Iustices or Iustice in some good towne next to the said tenements or in some other conuenient place at his discretion shoulde haue power to enquire by the people of the same countie as well of them which made suche forcible entries into landes or tenementes as of them whiche held the same with force And if it be found before any of them that any doth contrary to this Statute then the sayd Iustices or Iustice shall doe the saide landes or tenements to be reseised and shal put the partie so put out in full possession of the same And when the saide Iustices or Iustice make suche enquirie they shall directe their Precept to the Shirife commaunding him on the Kings behalfe to cause to come before them and euerie of them sufficient and indifferent persons dwelling nexte aboute the same landes or tenementes whereof â—ucrie man shall haue landes or tenementes of the cleare yerely value offourtie shillings at the least and the Shirife shall returne twentie shillings in issues vpon euerie one
Restitution to the Shirife or no if may be some doubt albeit Marr. be of that opinion bicause it séemeth that they haue no authoritie to deale with that Recorde But this is certain that of that presentment were receiued into the Kings Benche the partie grieued then might well enough haue restitution awarded him out of that Court. 7. E. 4. 18. 4. H. 7. 18. And in some cases there may be double or crosse restitution made sayth Marr. As if it be found that I my selfe was seised vntil A disseysed me with force whome also B. disséised with like force in this case if A. haue restitution against B. the may I also pray myrestitution against A. But if I first haue restitution then sayth he A. hath lost the aduantage of his And if it were found by one Inquirie that I my selfe was saised vntill A. disseised me with force and by any other Iurie found that the sayd A. was saised vntil by me disseised with force then euery of vs sayth he may pray restitution against the other And he shall be in the worst case that hath the first restitution for the other also sayth he shall haue his restitution after If two Iointenants were put out by force and one of them onely would Complaine séeke for restitutiō though this special matter were founde by the Inquest yet shoulde he that sued for it haue restitution And this would not worke any seuerance of the Jointure betwene them Marr. Restitution is not to be made but onely to the partie which was put out And threfore if the father were put out by force and dyeth after enquirie and before restitution his heire shall neuer haue restitution vpon this statute no more than the executors of Lessee for yeres that was put out shall haue any restitution Marr. If a writ of restitution be awarded to the Shirife and he returneth that he is so resisted that he can not bring the partie into his possessiō he is to be amerced for that returne sayth Marr. for he may take the power of the countie to execute the precept The case may be such that the force is not punishable by any Iustice of Peace vpon this statute nor any restitution can be made at all As if the house or lands be in one Coūtie and the men forcibly arrayed for defence thereof be in a house or lands that is in the Countie adioyning no Iustice of Peace can medle with this matter vppon this Statute No more can they if the place it selfe extend into two Counties and the parties remoue their force before the comming of the Iustice out of that Countie wherein he is a Iustice Mar. For Iustices of the Peace haue no power out of their owne Counties but in certeine especiall cases giuen vnto them by Statutes Lastly vpon the prouisoe in the latter end of this Statute concerning their holding with force which haue had possession by the space of three yeares or moe there ariseth some matter of doubt in mine opinion how farre the benefite of that clause ought in good equitie to be extended three yeares possession For I finde a difference taken 14. H. 7.28 betwene an action brought vppon the statute an inditement founded thereupon In the action sayth M. Fineux it will be a good barre for the defendant to pleade that he hath kept possession by thrée yeares space yea though he hath done so all that time by force But vppon an inditement possession by twentye yeares space togither by force shall be no plea at all against the king nor hinder the partie of his restitution out of the kings benche Which opinion hath bene and still is receiued for lawe as I haue learned Yet if we consider well the reason of the inserting of that prouisoe vnto the statute perhaps the diuersitie will not fall out in all respectes to be so reasonable as it séemeth at the first shew to be plausible For when this statute had in generall tearmes brought within the penaltie of 15. R. 2 ca. 2. all such as should deteine any lands or teneme t s with force after that they had entred into the same in peaceable maner yet was it thought conuenient as in truth it was to except out of that punishment met all those who hauing made their entries in peaceable maner especially vpon good title had continued that possession by thrée yeares space before any forcible deteyner of the same And therefore such persons bée not onely to take aduauntage of that clause in actions brought against them vppon the statute in myne opinion but against the King to eschue the punishment of a forcible defence committed and against the partie grieued to kéepe him from any restitution at the handes of the Iustice of the Peace also And therefore M. Marr. speaketh generally that if the thrée yeares possession bée founde by the Inquirie then 〈◊〉 forcible deteyners shall haue the aduantage of it against the King also which séemeth to be a very reasonable opinion especially as I haue sayd in case where the deteynors did enter peaceably and by good Title For so farre extendeth the speache of all the Iustice opinions 22. H. 6. 18 And otherwise I sée not how that may wel stande which M Fineux him selfe afterward 21. H. 7. 39. affirmeth saying that A mans house is his Castle which he may defende with force against any priuate armie that shall inuade him Neuerthelesse in the principll case 14. H. 7. 28. being as it is there put of a wrongfull entrie and that with force and of the continuance of that possession with force also by diuers yeares I sée no great reason why such a disorder person should by any continuing of his wrong take benefite by this prouisoe eyther against the King vpon an Inditement or against the partie grieued to stay his restitution or to conclude him in an action brought vppon this Statute But nowe whether such as bée Indited map bée admitted to their Trauers before the same Iustice of the Peace or no where or before whom this Trauers is to be made or receyued I will not take vppon me here to discusse Tender of Trauers This séemeth vppon both the Statutes to be playne that such persons as the Iustice of the Peace doth finde and see continuing the force at his comming may be immediatly committed by him to the next Gaole without any gainesaying there to remayne conuict of that offence by the onely recorde of the same Iustice till they shall haue made fine and raunsome to the King for the same But vppon the enquirie it séemeth that he hath no further power giuen vnto him by this last statute than to make restitution onely And therefore the surest maye in this case is to deliuer ouer the Inditement either to the Custos Rotulorum or to the Istices of Gaole deliuerie as in other cases they were in olde time by the statute of 4. E. 3. ca. 2 appointed to doe or rather into
vnà cum posse comitatus tui sinecesse fuerit accedas ad mesuagium caetera premissa aceadem cum pertinentijs reseisiri facias prafatum C. D. ad in plenam possessionem suam inde prout ipse ante ingressum praedict fuer at restitui mitti facias iuxtra formam dicti statuti de ingressibê° manu forti factis editi prouisi hoc nullatenus omittas periculo incuÌ„bente Teste me prafato c I will now come to the performance of the promise which I made coÌ„cerning the statute of Northampton for that also is now of late dayes chiefly put in vre for the punishment of Forcible Cntries The execution of a Writ vpon the Statute of Northam That Law in effecte for this purpose is thus No man whatsoeuer except the Kings seruants and Ministers in his presence or in executing his precepts or their Offices and such as shall assistthem and except it be vpon crye or proclamation made for armes to keepe the Peace that in places where such actes do hape be so hardy to come before the kings Iustices or other his Ministers doing theyr offices with force and armes Nor bring any force in affray of the Countrie nor goe nor ride armed by night or by day in faires or Markets or in presence of the Iustices or other ministers nor in my place elsewhere vpon paine to forfeite his Armoure to the King and his bodie to prison at the Kings pleasure 2 E. 3. ca. 3. Vpon this Statute he that is put out or holden out of his land with force vseth to have at this day a Writ directed out of the Chauncerie eyther to the Shirife onely as M. Fitz in his Nat. Br. Fol 249. rehearseth it for I finde if not in the Register of Writs or else Custodibus pacis ac Vicecomiti coruÌ„ cuiliber as the common maner is commanding that Proclamation be made upon this Statute and that if any bée afterward found offending against the same that then they shall be committed to Prison there to remaine vntill that some other commaundement be given concerning them and that their armour and weapon shall be prised and the same aunsweared to the vse of the Ruéene But forasumuch as that Iustice of Peace to whome this Writ shall be delivered is to make execution of the same as a Minister onelie and is to Certifie hys dwing therein I thinke good to lend him these few helps towards it At his comming to the place where the force is supposed by this Writ he may cause the Oyes for silece to be made with this or such an other Proclamation The Queenes Maiesties Iustice of hir Peace straightly chargeth and in hir Maiesties name commaundeth all and euerie person to keepe silence whilest hir Maiesties Writ vpon the Statute made at Northampton in the 2. years of King E. 3. hir noble Progenitour deliuered to the saide Iustice be read and Proclamation be thervpon made accordingly Then may he reade the Writ as declare the effect thereof in English After that let the Oyes bée made againe and therevpon may this Proclamation follow Hir Maiesties said Iustice doth in hyr Highnesse name and by vertue of hir sayde Writte straightlye charge and commaunde that no manner of person of what estate degree or condition soeuen nowe being wythin the house of B. c. named in the said Writ shall goe armed nor keepe force of armour or weapon nor doe any thing there or elsewhere in disturbaÌ„ce of hir Maiesties Peace or in offence of the said Statute vpon the paines of loosing his said armour weapon of imprisoning of his bodie at hir Maiesties pleasure God saue the Qucene This done the Iustice may enter and search whyther there be any force of armor or weapon worne or borne againste this Proclamation or otherwise he may enquire thereof by a Iurie for so the Writ it selfe doth warrant him to do and if any such be sounde he ought to imprison the offendors and to seise and praise the armoure and weapon so fouÌ„d with them But if vpoÌ„ the Proclamation made they do depart in peaceable maner then hath he no warrant by the Writ to commit them to prison And what weapons be offensiue in the case of this Statute he shall the better discerne if he take with him these fewe lines drawen oute of M. Bractons Booke Fol. 162. where he speaketh of the like violent disseisine shus Est euam vis armata non solum si quis venerit cum telis verumetiam omnes illos dicimus armatos qui habent cum quo nocere possunt Telorum autem appellatione amnia in quibus singuli homines nocere possunt accipiuntur Sed si quis venerit sine armis in ipsa concertatione ligna sumpserit fustes aut lapides talis dicetur vis armat a. Si quis autem venerit cuÌ„ armis armis tamen ad deijciendum non vsus fuerit et deiecerit vis armata dicitur esse facta Sufficit enim terror armorum vt videatur armis detecisse But nowe let me shew him a Forme of Certificat or returne of this Writ into the Chauncerie and then make an ende Vpon the Writte it selfe these words may bée Endorsed Executio istius Brcuis patet in quadam Scedula eidem Breui consuta And the Scedule may bée thus EGo Wilhelmus Lambarde vnus IusticiarioruÌ„ pacis Dominae Reginae in comitatu Kanciae certifico in Cancellariam dictae Dominae Reginae quod virtute istius Breuis mihi primo deliberati publicè proclamari ex parte dictae Dominae Reginae feci apud B. cuius in dicto Breut sit mentio tali die c prout in dicto Breui praecipitar Et quod quidam A. C. D. E. de F. in comitatu praedicto Laborers praedictam proclamatioâ—e paruipendentes post proclamationem sic factaÌ„ armatiiuerunt ac armatam potentiam duxeruÌ„t scilicet duas galeas vnum arcum decem sagittas duos gladious totidem pugiones in perturbationem pacis dictae Do. Reginae ac terrorem popule sus necnon in contemptum Statuti in dicto Breui specificats manifestum Ac proinde dict A. C. D. E. vna cum armataris fuis arrestaui ac seisiui corum corpora adproximam prisonaÌ„ dictae Dom. Reginae in comitatu praedict duci feci ibidem moratura donec aliud à dicta Dom. Regiâ—â— Proipsorum deliberatione habouero in maÌ„datis Armatur as etiam corum praedict appretiari feci per A. B. C. D. E. F. de B. praedict Yeomen ad hoc iuratos qui dicunt quod praedictae duae galeae valent x. s Et quod dict arcus 10. sagittae valent vj. s Et quod gladij praedict valent xx s Et quod dictae pugiones vgalent v. s sic quod armaturae praedict valent in tot xlj s de quibus paratus sum respondere secundum tenorem dicti Breuis In cuitus rei
ment within this Statute what other acts though they carie som reseblaÌ„ce of the same yet do not reach so far What Actes be Manslaughter or Felonie And hereby he shall the better know whe to coÌ„mit the partie the shal be brought before him when he shal not néed to meedle with him at all But now I will only deliuer him so shortlye as I can those few helpes the do redily come to my hand for knowledge of sundrie Manslaughters Felonies at the CoÌ„mon Law leauing the Felonies made by Statutes to appeare vnto him in the rehearsal of the charge of the SessioÌ„s of the Peace in the next booke whe I shal come vnto it The Statute 1. 2. Ph. Mar. cap. 13. concerning the Baylemente of prisoners which gaue the occasion of the making of this presente Acte séemeth to distinguishe Murder and other more capital crimes from Manslaughter and Felonie Felonies touching the person And it is certain that in comon spéech Manslaughter is taken to bée a speciall manner of wilfull killing without any malice forethoughte off And Felonie is not commonlye vnderstoode to extende so farre as vnto Murder Yet séeing the principal consideration of this Statute is in mine opinion rather to bée practised in case of Murder than in these other lesse offices I wil adueture though the Statute haue not the words to mingle them togither and make it here as in truth it is a chiefe kinde of Manslaughter and Felonie For as in olde time euerie killing of a man was of the Effect calied Murder bicause death ensued of it for of the Hebrew worde Moth saith Postellus commeth the Latine Mors which the Saxons our Elders called Morþ Morth and Morþor Morthor as we yet sound it so was that wilful manner of sleying with malice prepensed loÌ„g since and most properly called Felonie because it was done Feâ—eo animo in malicious heate displeasure and per FeloniaÌ„ as the Statute at Marlebridge 52. H. 3. ca. 25. doth fearme it Foure sortes of Manslaughter Not euerie Manslaughter deserueth punishment saith M Bracton for inexpressing that Homicidium corporale facto committitur quatuor modis s Iusticia Iusticia necessitate casu velvoluntate there withall he addeth that the firste of these is no sin at all if it bée done sincerely and without delight in shedding of bloud And therefore neither is the Iudge that by Iustice condemneth the guiltie to death and commaundeth the minister to do execution nor the lawful Officer that executeth the iuste coÌ„mandement according to his warraÌ„t guiltie of any offence for which vpoÌ„ examinatioÌ„ either of theÌ„ ought to bée coÌ„mitted to prison But if the Officer wil behead or otherwise execute him that is condemned to bée haÌ„ged or if a priuate man without warrant whyll hang or kill such a condemned or outlawed person this will bée a Felonious acte stretthing to Murder by good opinion 35. H. 6. 58 27. lib. Ass Pl. 41. And though the law hath bene takeÌ„ heretofore the one might iustifie the killing of a man attained vpoÌ„ a Premunire yet now the same being prohibited by 5. El. ca. 1. if one that hath killed such a person were broughte before a Iustice of Peace he might boldly committe him as a Felon In the seconde sorte of Manslaughter according to M. Bracton as there be manny differences so is the law also diuerse in the coÌ„sideration of them For if a Iustice of the Peace within his Countie or Maior Bayliffe or other heade Officer of any Citie or Towne Corporate within the same towne or Citie or any other hauing the Quéenes Commission or letters doe lawfully vpon good cause raise or assemble any number of men for the suppressing of any such persons as shall bée vnlawfully assembled contrarie to the Statute 1. Mar. Parl. 1. ca. 12 And by reson of their still continuing together after proclamation made bée driuen to set vppon them and therby anye of the stubburne persons bée slain This slaughter done vpoÌ„ this Necessitie is so iustifiable both in the Iustice himselfe euery other of his company that they ought not in any maner to be molested for it 1. Mar. Parl. 1. ca. 12. So if the Shirife or any other do by warrant or vpon hue and crie made arrest one indited of Felony which doth resist is slain therby This fact done vpon this Necessitie is Iustifiable 22. Lib. Ass P. 55. Tit. Coron Fitz. 288. 289. 290. For all these former cases tend to the commendable aduauncement of Law and Iustice By the olde Statue 21. E. 1. De Malefactoribus in parcis c. If any Forester Parker or Warrener or such as bée in their coÌ„panye after hue and crie made vpon offenders within their charge to yeelde themselues whiche they refusce to doe but flie and make resistaunce doe not hauing any malice prepensed kill anye of them this is no Felonie nor the partie to bée imprisoned or to forfeit any thing for it So if prisoners doe assaulte their kéeper and in his defence he striketh anye of them to the death 22 lib. Ass P. 55. And so it is if any do attempt to robbe or murder one in his mansion house or dwelling place or nighe any common highway Carteway horsewaye or footewaye or Feloniously to breake into his dwelling house in the night time and in this their attempt the partie or his seruauntes then with hun do kil any of the misdoers though the law was somewhat doubtful before it is now made out of questioÌ„ by the Statute 24. H. 8. C. 5. the hée shall not forfeit anything for that facte but shal go quit For in these cases of Necessitie he defendeth himself and his goods againste Kobbers and other notorious euil doers But he the in an Astray is of necessitie driuen to kill the other in defence of his owne life after that he hath fled as farre as he can Is not so priuileged for although it bee not accounted Felonie yet Statute of Gloue cap. 9 willeth that suche an one be imprisoned til the comming of the Iustices of Gaole deliuerie and there putting himselfe vppon God and the Countrey the whole matter is to bee found by the verdite And then the king shall graunt him a pardon of Course but hee shall forfeite all his goods 43. lib. Ass Pl. 3. for hauing killed the Kings lawful subiect And therefore the Iustice of Peace may wel vnder the name of Manslaughter in this Statute take vpon him as I thinke to coÌ„mitte suche an offender and to take eramination and bonde of the informers according to the Statute The like is to be done as it feemeth to me in case one kill an other by misaduenture against his wil as by casting a stone or shooting an arrow or felling of atree vnaduisedly or such like 11. H. 7. 23. That Manslaughter which is committed with an euill intente or in doing an other vnlawful or euil thing though that whiche is done
some little direction to the Iustice of Peace may at thys tyme suffise VVhat things any twoo Iustices of the Peace may doe out of the Sessions CAP. XXII THe auctoritie and power of one Iustice of the Peace without the Sessions thus perused passed ouer let vs eramine the like power of twoo boshe in generalitie and in particular It is vniuersally true the whatsoeuer thing one Iustice of the Peare alone is permit mitted so doe eyther for the conseruasion of the Peace or in the execution of the Cōmission or Statutes the fame also may bée no lesse lawfully performed by two or mo Iustices except it bee in a very fewe cases where some Statutes do séeme specially to appropriate the execution thereof to some one certaine Iustice eyther in respede that he is Next to the place Eldest of the Quorum or such like But we will proceede by particularities The power of twoo Iusticcs of the Peace in punishing os Riots c. and because the first place of right belongeth to the Peace as where in the office of this Iusticer chiefly consisseth lette us here supply in two Iustices that power in punishing Riots Routs and vnlawsull Aisemblies whyche wée sayde before to bée wanting in one And that shall wée the better doe if wée firste of al lay open the Statute of King Henry the fouth contayning a moste ample auctoritie as well for the repressing as for the Recording of the same and then adioyne somewhat out of some other Statutes IF any Riot Assemblie or Rout of people againste the lawe be made the Iustices of Peace or 3. or 2. at the least of them dwelling most highest to the place the Shirif or Vndershirif of the Countie shal come with the power of the Countie if neede be to arest them and shall arrest them shal haue power to record that which they shall find so done in their prefencc against the law And by that Record such offēdors shall be conuicted in maner and fourme as is cōteined in the Statute of Forcible entries viz. 15. R2 c2 And if such trespassers be de parted before their coming then these Iustices of Peace or thre or two of them shall diligently enquire within a moneth after such Riot Assemblie or Reut made and therof shall heare and determine according to the lawe of the lande and if the trueth may not be found in the maner as aforsaid then with in a month then next following the said Iustices and Shirif or vndershirif shal certifie before the King his Councel all the dedes circumstāces therof which Certificate shall be of like force as the verdit of twelue mē c And if such offendors do trauerse the matter so certified then the Ccrtificat and Trauerfe shall be sent into the Kings Bēch to be tried determined as law requireth And that the same Iustices and Shirife shall doe execution of this Statute euery one vpon paine of one hundred pound to be payed to the King as ofte as they shall bee founde in defaulte 13. H. 4. cap 7. Whereunto the Statute 19. H. 7. addeth that it the saide Riotte Maintenāce embracerie Route or vnlawful assemblie be not founde by the saide Iury by reason of anye maintenaunce or embracerie of the saide Iurours then the same Iustices and Shirife or Vndershirife shall also certife the names of the maintainours and embraceours in that behalfe if anye bee wyth theyr misdemeanours that they knowe vppon payne of euerye of the said Iustices Shirif or vndershirif to forfeit twentie powndes if they haue no reasonable excuse for not certifying the same which Certificate so made shal be of like force as before c. And euery person duely prooued to bee a mainteynor or embracer in the same shall forfeite twentie powndes to the King and shall be committed to warde there to remayne by the discreation of the Iustices 19. H. 7. cap. 13. Hereunto also the Statue 2. H. 5. adioyneth further Assistance that the Kings liege people beeing sufficient to trauaile shall bee assistant to these Iustices Shirife or Vndershirife when they shall bee reasonably warned to ryde wyth them in aide to resiste suche Riots Routs and assemblies vppon payne of imprisonment and to make fine and ransome to the King Prouided alwayes that the saide Iustices Shirife or Vndershirife shall doe their sayde offices at the Kings costes in going tarrying and retourning by payment thereof to bee made by the Shirife by Indenture betweene him and them of the sayde payment At the Kings charges And that suche Rioters attaynted of greate and hainous Riots shall haue one whole yeares imprisonment at the leaste without beeing lette oute of prison by Bayle Maineprise or in anye other manner during the years aforesa I de ◠that the Rioters attainted of petite Riots shall haue imprisonment as beste shall seeme to the King and to his Councell And that the fines of suche Riotours attainted shall bee by the same Iustices encreased and putte in greater summes than they were wonte to bee putte in suche cases before that tyme in ayde and supportation of the costes of the Iustices and other Officers aforesaide in this behalfe 2. H. ◠ca. 8. Nowe if it bee witnessed by twoo Iustices of the Peace and the Shirife by Letters vnder their Scales to the Lord Chauncelour of Englande that any murders manslaughters batteries robberies assemblies of people in great number in maner of Insurrection or other rebellious Riots haue bene done and that suche offendours haue withdrawen themselues to the intent to auoide the execution of the common Law then the Lord Chauncelour may make a Writte of Capias and therevpon if neede be a Proclamation c. 2. H. 5. cap. 9. Capias and Proclamation which Statute was made to endure till the nexte Parliament and so discontinued but it was reuiued by 8. H. 6. and made prepetuall which moreouer ordayneth that beefore thys Writ of Capias shall bee awarded two Iustices of the Peace and the Shirife of the Shire where such Riot is supposed ought to witnesse that the common voice and fame runneth in the said Countie of the same Riots 8. H. 6. ca. 14. The Letter or Text of these Lawes béeing thus laide downe lette vs also sée what exposition and helpe M. Marrow and others doe bring to some partes thereof namely to that of king Henry the fourth Vnder the wordes Power of the Countie the Iustices Shirife or Vndershirife oughte to haue the aide and attendaunce of knightes and of all maner of Gentlement yeomen Labourers Seruauntes Apprentises and Willaines And so likewise of Infants that bée aboue fiftéene yeares of age For all of that age were boude to haue harnesse by the Statute of Winchester But women men entred into the ministerie and such as bée decrepite or doe labour of anye continuall infirmitie shall not bée compelled to affende And it resteth in the discreattion of the Iustices and Shirife
of the Quorum doe ioyne in graunting suerite for the good a bearing but thereof I have already spoken my minde The good Abearing Two Iustices of the Peace the one being of the Quorum may prohibite remove common Aleselling may also allow the same taking bonde with suretie by Recongnusance for good rule to be kept in such Ale house c by their discretion Alchouses And they may also commit imprison for three days those that kéepe common Ale seling of their own heads against prohibition or without allowance thereof and after take recognusance of them with two suerties that they shall kéepe none 5. E. 6. ca. 25. And heare séeÃing that the order of the Conditions of these bondes is partely refer red to discretion I will for the better brideling of thes nurseries of naughtinesse leave with you that forme of the firste of them which I have knowen practised by that Honourable Iusticer the lorde Willliam Cobham nowe Lorde Warden of the Fiue Portes The Condicion of this Recognusance is suche That whereas the withinbounden A. B. is admitted and allowed by the withinnamed Lorde cobbam and William Lambard two of the Queenes Maiesties Iustices of the Peace within the Countie of Kent within written to keepe a common Ale-house or Tippling house and to vse common felling of Ale or Beere onely within the nowe house of him the said A. B. and notelsewhere scituate in the High streate of the Towne of M. within written and called the signe of the Hart If therefore he the sayde A. B. during suche time as he shall keepe suche common Alchouse there shall not suffer any vnlawfull play at the Tables Dice Cardes Tennis Bowles Closh Coytes Loggets or other vnlawfull games to be vsed in his sayde house or in his garden orcharde or other his grounde or place Nor dresse or causc or suffer to bee dressed anye fleshe to bee eaten vpon any daye forbidden by the Lawes or Statutes of this Realme of Englande Nor wittingly and willingly admit orreceiue into his sayd house or any parte thereof any person notoriously defamed of or for theft incontinencie or drunkennesse or that shall be before hande notified to him the said A. B. by the Constable or Borsholder of M. aforesaid for the time being or by the Deputie of either of them to be an vnmeete person to be rcceiued into a common Alehouse Nor keepe or lodge there any straunge person aboue the space of one day and one night togeather without notice thereof first giuen to the Confiable or Borsholder or the Deputie of the one of them there And finally if he the said A. B. during all the time that he shall keepe common felling of Ale or Beere in the said house shall and will there vse and maintaine good order and rule That then this present Recognusance c. or elfe c. For euerls place is not méete Two Iustices of the peace to that the one Be of the Quorum map by examination or Inquirie heare and determine the faultes of heade Dissicers in cities Boroughs and market lowness that doe not twice pearely view and examine Weightes and Measures and brake and burne the defediue as also the defaults of Buyers and sellers by other meightes and measures than they ought to doe and may brake and burne the desectiue weightes and measures and amerce and fine the offendours by their discretion and make processe against them as if they were indisted of Trespasse against the peace 11. H. 7. ca. 4. 12. H. 7. ca. 5. Weightes Measures Two suche Iustices may give licence to Fencers Beareweards Common players in Enterludes Minstrels Iuglers Pedlers Tinkers and Petiechapmen to goe abroade so as they shall not be taken as koges 14. Eli zab. ca. 5. Pedlers Tinkers Fencers Players c. Sute may be commenced against a high Constable in the name of two of the next Iustifices of the Peace to the place if it be out of citie Borough and Lowne corporate for not suing a negligent Collector of the money for the poore within the time limitted by the Statute and they shall euerie halfe years take the account of such Collector and may take order with the Surplusage of such collection and may also commit him to prison for refusing to account or to bring in his surplusage contrarie to the Statute 14. Elizab. cap. 5. Poore Two Iustices of the Peace the one being of the Quorum may imprison such as doe refuse to give towardes the reliefe of the poore or doe discourage other to give poore And the Bishop or his Chauncelour shall call the two Justices of the Peace next inhabiting to any Hospitall to assist them in taking the account of such as have had the collection of the reuenues and profites of such Hospitall and they thrée may charge the accomptant under penaltie to loose such summe of money as they shall thinke méete to account not to delay it and foorth with to employ the Surplusage to the bse of the Hospital 14. Elizab. cap. 5. Hospitall Two Iustices of Peace the one being of the Quorum in or next to the limits where the parish church is in which a Bastard child left to the charge of the Parsh shal be borne ought to take order by their discretion as wel for the reliefe of the Parish and the keping of the childe as also for the punishment of the mother and reputed father therof 18. Eli. ca. 3. Barstard childe Two Iustices of Peace the one being of the Quorum vpon complaint by any competent Iudge of Tithes for any misdemeanour of the defendant in a sute of Lithes may cause him to be attached or committed to warde till he finde suertie unto them by Kecognusance to the Kings use to obey the Processe and Sentence of that Iudge 27. H. 8. ca. 20. Tithes And also vpon complaint in writing by an Ecclesiasticall Iudge that hath given definitive sentence in case of Lithes against one which wilfully refuseth to pay the Lithes or summes of money so adiudged two such Iustifices may cause the partie to be attached and committed to the next Gaole till he finde such suertie as is aforesayd to performe that sentence 32. H. 8. ca. 7. Two Iustices of Peace dwelling next any Citie or Towne where any Ketaylour of wollen cloth shall present unto them any defective cloth against this Statute being coÌ„ferred with the Statute 4. 5. Phil. Mar. ca. 5. shall cause the same to be cut into thrée equall partes whereof the one to be to the Queene the other to the Presentours and the third to the Iustices them selues 5. Ed. 6. cap. 6. Cloth No Fisherman shall be taken to serue as a Mariner by the Queenes Commission but by the choice of two Iustices of the Peace adioyning to the place where he is to be taken 5. Elizab. ca. 5. Fisherman Two Iustices of the Peace not being of kinred
alliance counsell or sée to the Lord or owner of a woode appointed by the more parte of the Iustices of Peace at their Sessions vpon complaint of the Lorde made unto them may divide set out the fourth parte of it if the Lord and Commoners therof being first called before them can not agree vpon it 35. H. 8. ca. 17 13. Eliz. ca. 25. Divide the fourth parts of a wood Two Iustices of the Peace whereof the one to be of the Quorum appointed by the Custos in the CouÌ„Rotulorum or by the Eldest of the Quorum in his absence are to ouversée controle the Shirifes bookes and amercements the estreits of the said amercements are to be made by Indenture betwene them and the Shirife or undershirife to be sealed with their seales And they may vpon suggestion make proces as in an action of Trespasse against the offendors against the Statute to aunswere before them 11. H. 7. ca. 15. Amercernâ—â—â— in tie couÌ„tie Court And here also is place for those private Actes wherein any power is given to two Iustices of the Peace as 5. E. 6. ca. 24. For the making of Couerlets Dernikes in Norwich Norwich 35. H. 8. ca. II. Forwages of the knights of Parle met II. H. 7. ca. 9. For recognusances to be taken of Lessces in Northumberland Wales Northumberland Vniuersities 2. 8. c. 3. Phil. Mar. ca. 15 13. Elizab. Cap. 21. For prohibition of purueiances within fiue miles of either of the vniuersities 14. H. 8. ca. 6. 26. H. ca. 7. For laying out new high waies in Kent and Sussex Kent Sussex Cardiffe 23. Eliz. ca. II. For the repairing of Cardiffe bridge VVhat things three or moe Iustices of the Peace may do out of the Sessions CAP. XXIIII THe Auctoritie as well of any two Iustices of the Peace generally as of some certayne two susfices specially being thus at some length unfolded it remaineth that for an ende we speake somewhat of thréee and the greater number Thrée Iustices of the Peace one of them being of the Quorum may discharge out of prison any person committed thither for his offence in not declaring to a Iustice within 24. houres that he was moved to ioyne in any unlawful Assembly contrary to the statnte 1. Mar. 1. Parl. ca. 12 1. Eliz. ca. 17. Vnlawfull Assemblie It is requisite that the Certisicat that is to be made to the heade Officer of a Citie or Towne corporate where a childe is to be put Apprentice to a Marchaunt Hercer Draper Botosmith Ironmonger Imbrode derer or Clothier that the father or mother of such childe may dispende fortie shillings fréehold by yeare be bunder the handes and seals of thrée Iustices of the Peace where the lands lye 5. Eliz. ca. 4. Certifie for an Apretile Thrée Iustices of the Peace the one of the being of the Quorum may with the Surplusage of the collections and forfaitures by their discretions settle the Koges borne or abyding for the most parte of thrée yeares in that Shire to worke there to be holden to worke by ouerfeers 14. Eliz. ca. 5. Roges The Bishop his Chauncelour and thrée such Iustices of the Peace haue power to eramine how money or other reliefe appointed by King Henrie the eight or any other to the bse of the Poore or of amending of Highwayes or Bridges is bestowed and to cal to account the deteiners thereof c. 14. Elizab. cap. 5. Money giue to the poore high wayes or bridges If séemeth that thrée such Iustices of the Peace may out of the Sessions take information and accusation by the oathes of two honest persons against such as shal depraue the Sacrament of the body and bloud of our Lord and Sauiour lesus christ against the Statute and cramine them what other witnesses were then by and to bynd them al by Kecognusance to give in euidenee at the day of triall 1. E. 6. ca. 1. but enquire of this matter Depraue the Sacrame of the Lords supper Foure Iustices of the Peace where of one to be of the Quorum may where a decayed Bridge is where it can not be proued who or what lands be chargeable to the repairing therof fare the inhabitants make collectors and appoint ouerséers for the amendement of the same c. 22. H. 8. ca. 5. Foure â—â—â—ccs Bridges Sire Iustices of the Peace may in sundrie shires take order for common Gaoles wherof the Shirite shal have the custody and to the which murderers felons c. shal be sent and may be performe diuers incidentes thereto by the Statuts 23. H. 8. ca. 2 13 Eliz. ca. 25. Sixe Iufuo Gaole Sire Iustices of the Peace two of the being of the Quorum may for a whole yeare after the expiration of any Commission of Sewers cxecute the lawes of the Comissioners of Sewers vnlesse that a new Commission of Sewers be published within the yere 13. El. c. 9 Sewers To this Title also do these particuler Statutes belong 13. El. ca. 23 23. El. ca. 12. For pauing the streete by Alegate 34. H. 8. ca. For establishing Iustices of the Peace in Wales c. 27. H. 8. c. 5 For Iustices of the Peace in Cheshire c. 23. H. 8. ca. 2 5. Eliz. ca. 24 13. Eliz. ca. 25. For the appointing building of Gaoles in sundry shires 18. El. ca. 20. For amending of Bridges within fiue milis of Oxford 18. Eliz. ca. 10. For the reparation of the ferry called the Kings ferrie in the Isle of Shepey in Kent Of the reward punishment of Iustices of the Peace for things done not done or misledone out of the Sessions of the Peace CAP. XXV OF Reward and Punishmet as said SoioÌ„ all Common weales doe consist for as the care of equitie and Iustice wareth cold vnlesse there be rewarde readie for vertue So the negligence of euill men must néedes be corrected by seueritic and chastisement of paines And therefore albeit the meaning of our Parliamentes hath alwayes béene that choise should be made of such persons for this Office of the Peace as néeded no rewarde for their trauaile in that behalfe yet to the ends that they shoulde with the more alacritie and chéerefulnesse procéede in their affaires they do nowe and then cast them a trifle rather to let them knowe that they doe beholde their well doing than that they ffande in néede of any recompence Reward Hereupon euerie Iustice of Peace stting in ececution of the Statute of Labourers Seruauntes shall haue fiue shillings the day for thrée daies togither out of the forfeitures that grow by the same Statute 5. Eliz ca. 4. Seruauntes And if any persons commaunded by two Iustices of Peace to appeare to be made an ouerséer to sée Statute of Cloth making kept doe without reasonable excuse refuse to come and to take vpon
him that office he is to forfeit for euery such refusall fortie fhillings and thereof those Iustices are appointed to haue the one halfe by the Statute 3. E. 6. ca. 2. Ouerseers of Cloth Those two Iustices of Peace also hert adjoyning to whome any Cloth faultie against the statutes shall be presented may cut the same into thrée equall peeces and shall haue to them selues the one of the same by the Ad 5. E. 6. ca. 6 4. E. 5 Phil. Mar. ca. 5. Faulty cloth And euery Iustice of the Peace is allowed to retaine to his owne bse the one moitie of all straungers goods calling them selucs Egiptians that he shall lawfully seise by ver fue of the Statute 22 H. 8. ca. 10. Egiptians The Iustice or Iustices of the Peace that doe ioyne with Clerke of the Peace in taking Conusance of an Indenture of bargaine sale of land to be Inrolled shall haue ry â— therfore if the land excéede not in value â—l â— by the yeare and y. â— vj. â— if it do excéd that value by the Statute 27. H. 8. ca. 16. Inrolloment of bargaune and sale The Queenes highnesse shall beare the costes that the Iustices of Peace shall sustain in the cxecution of the Statute of Riots â— made 13. H. 4. ca. 7 by 2. H. 5. cap. 8. Riot And the Iustices of the Peace shal make executioÌ„ of â— Statute of forcible Cntries at the costs charges of the party gréeued 3 H. 6 ca. 9 Forcible lourd And twelue pence is giuen to the two Iustices of Peace for euery Recognusaunce taking of him that is allowed to képe a common Alehouse by Statute 5. E. 6. ca. 25. Alchouse On the other side also the Statutes doe nowe and then correcte the dulnesse of these Iustices with some strokes of the rodde or spurre Punishmét And therefore euen at the â—rst it was ordayned that if the Wardeins of the Peace did not look vnto the execution of the Statute vpon such as should ride or go armed in any place putting the Country in feare then the Iustices assigned by the king should enquire of their defaulte and punishe them Star North. 2. E. 3. cap. 3 Ride armed And the Statute of Riots c. 13. H. 4. c. 7 layeth C. it forfeiture vpon those Justices of Peace that shal dwell nighest to the Riot c. if thay doe not put that Statute in execution Riots And those Iustices of the Peace and Shirife or Vndershirife which in sending their Certificat to the Queen hir counsel concerning such a Riot do not with all certifie the names of the mainteinors embraceors in that behalf with their misdemeanors that they knowe shall euerie of them forfeite twentie pounds bnlesse they haue reasonable excuse for not certifying the same 19. H. 7. ca. 13. Certificat That Iustice of the Peace whyche seiseth the goodes of any Egyptians and doth not incontinently restore such part thereof as shall be proued before hym to haue bene craftily or felonioufly taken shall forfeite the double thereof to such prouer 22 H. 8. cap. 10. Egyptians That Iustice of Peace which doth not vpon request made giue attendance vpon the Queencs Lieutenante of the Shire for the suppreffion of anye Rebellion or vnlawfull assmblie shal suffer a yeres imprisonment vnlesse there be cause of reasonable excuse 1. Mar. Parl. 1. cap. 12 1. Elizab. cap. 17. Rebellious assemblie If any Iustice of Peace shall be proued to be in dcfault about thc execution of the Act of the Poore by two sufficient witreffes béefore the Iustices of Assise at their nexte generall Gaole deliuerie he shal loose o. tt 14. Eli. cap. 5 Poorch That next Iustice of Peace which faileth in presenting the name of him that preseteth it to him according to the Statute of shooting in Crosbowes or Gunncs shall forfaite â— shillings 2. E. 6. ca. 14. Gunnes and Crosbowes But enquire of the continuance of this as before in the 21. Chapter That Iustice of Peace whyche doeth not wythin fouretéene dayes after matter vttâ— red to hym concerning any Agneus Dei c. signifie the same to some one of the Queenes priuie Counsell shall incurre the paines of the Acte 16. R. 2 of Premunire 13. Eli. ca. 2. Agnils Dei. That Iustice of the Peace whyche hauing taken any examination concerning Plaintes in the Shirifes Courte doeth not Certifie the same into the Escheaquer within one quarter of a yeare after shall loose fortie sillings for his default 11. H. 7 qa 15. Certifie in to the Escheaquer Those Iustices of the Peace which do grant any Baile contrarie to the Law or do not cer tifie the Baile examination of the Felonie according to these Statutes shall paye suche Fine as the Iustices of Gaole deliueris shall thinke méete 1. 2. Phil. Mar. cap 13 2. 3. Phil. Mar. ca. 10. Baile and scrisie Euerie Iustice of Peace the dwelling with in 7. miles London doth not vpon request assist the Colledge of Phisitions of London in the execution of the Statute 32. H. 8. ca. 8 shall bée punished as one that runnth in contept of the Queene 1. Mar. ca. 9. Phisition And how that Iustice of the Peace shal be punished that shal take vpon him the office not hauing twentie pounds in lands it hath lands bene shewed alreadie ca. 6. Not. XX. pounds in lands THE EPILOGVE THVS muche so shortly as I coulde I thought fit to say concerning the audoritie of Iustices of the Peace without the Sessions wherin J haue rather sought to admonish them by a sleight view and rehearsall of the most parte what things they haue to handle than laboured to accomplishe them with ful skill how to administer execute them all The Epilogue Neither doeth that knowledge lye in my power but in but in their owne diligence muste therefore bée woonne by a continuall studie and painfull meditation of the Statutes at large towardes their helpe and furtherance wherein J haue entreated a godly and learned Gentleman M. Iohn Tyndall a friende and fellow of mine in Lincolnes Inne to take the paines to cull out all those Statutes by them selues which are now in force and wherewithall Iustices of the Peace haue to deale not altogither beheading the of their preambles For any whit curfailing the the of their words For other wise dismembring them or scattering their partes in sunder But laying foorth bodies of them whole and at large vnder their proper Titles togither with the material parts of al their preambles and not without any of their prouisoes Eherewithal amending the corruptions of the English translation out of yelatine french And finally adding vnto the where néede shall be some notes of helpful directioÌ„ which things no maÌ„ that I know hath hitherto assayed And this shal shortly I trust come to light either in a
processus indictamenta praedicta coram vobis dictis sociâ—s venire faciatis The â— Rotulorum And as his berie name she weth he hath the custodie of the Rolles or Recordes of the Sessions of the Peace and whether the custodie of the Commission of the Peace it selfe doe perteine to him alone it hath bene made some question For M. Marrowe sayth that seeing the other Iustices maye holde a Session without him it is méete they shoulde then haue the Commission with them Who shall Keepe the Commission of the Peace But Chocke in the Booke 9. E. 4. 2. holdeth that a Iustics of the Peace in making any Iustification by vertue of his Dffice nédeth not to the we the Commifsion of the Peace because saith he the kéepyng thereof belongeth to the Custos Rotulorum and for the same cause also the Bailie of a Iustice of the Peace shall not bée driuen to she we the Commission as it séemeth 20. H. 7. 7. And truely since it is suche a thing as can remaine but in the handes of one at once it séemeth moste reasonable that hée which is put in truste with the reste of the Records should be credited with the custodie of the Commission also But vnder the name of the Recordes of Sessions of the Peace I do not comprehende all manner of recordes concerning the Peace but those onely whyche oughte to be at the Sessions of the peace as Billes Plaints Information Inditemets Presentments the Roolles of Processcs Trialles Iudgements and Executions and all other the Actes of the Sessions of the Peace them selues And furthermore the Peace good Abearing Recognusances concerning Felones and Alehouse képers and suche like as ought to be certified or brought to the Selssions of the Peace must bé numbered amongest the Recordes of the Sessions of the Peace For of all these there may be vse at the Sessions and therefore the Custos Rotulorum or some for him ought to bé readie to shew them The Recordes of the peace And although it were before time at the libertie of a Iustice of the Peace to certifie a Recognusaunce of the Peace to the Custos Rotulorum as you may see 2. H. 7. â— Yet now by the Statute 3. H. 7. cap. 1. he ought to certifie send or bring it to the nexte Sessions of the Peace that the partie may be called and to the ende also that his default if he make any may be recorded and by such record of his default he is concluded to say that he appeared there 13. E. 4. As for Precepts for Suertie of the Peace special Records for conuictions of forcible cntries Riots such like as he made out of the Sessions of the Peace by particular Iustices be to remaine with theselues not appointed to be certified thither I can not recken them in the number of the Recordes of the Sessions of the Peace no more than I can well doe the Inrolments of bargains and sales and such other Recordes lying in the charge of the Custos Rotâ—lorum or Clark of the Peace But M. Brooke Tit. Commission 11. addeth that the Records of the Iustices of the Gaole Deliuerie do remaine amongest the Records of the Peace also ho wheit I think he meant notit of all the Recordes of the Gaole deliuerie for as the Iustices of Gaole deliuerie haue their proper Clearke whiche maketh vp kéepeth the Records of things determined by that CoÌ„mission so the same Iustices being withal Iustices of Peare do leaue wyth the Clarke of the Peace Indiremets such causes of the Peace as be not determined but haÌ„g in mocesse to the end offendors may be more spéelig vily Iusticed And it appeareth 13. H. 4. 10. that Hanford Iustice of Gaole deliuerie at his departure called the Clarke of the Peace willed him to take the name of a prisoner that had bene sent thither for Felonie without any sufficient proofe to cause it to be inquired of at the next Sessions of the Peace The Office of the Custos Retulorum was of auntient time giuen by the discretion of the Lord Chauncelour vntil that aboute the latter and of the raigne of king H the 8. sundrie persons no lesse vnworthie to occupie the Office than gréedie to haue the place did by labour and friendship obtaine at that kings handes graunts of the same by his Letters Patents for terme of their liues by meanes whereof so many cuilles did shortly ensue both to the hindraunce of Iustice and to the disherison of the Kings subiects that the last Parliament of his raign viz. 37. H. 8. cap. 1. did somwhat restrain that course and though it did ordain that none should thencefoorth bee appointed custos Rotulorum in any Shire a fewe place of Priuiledge onelie excepted wythout a Bil signed with the Kings hande yet it tooke further order that the same Bill assigned shoulde bee but as a Warrant to the Lorde Chauncelour to assigne in the Commissions of the Peace the same person to be Custos Rotulorum only vntill the King should by an other Bill signed with his hande make appointment of another for the same Office The gifte of the Office of the Custos RotuloruÌ„ But neyther this ordinaunce had any long life for wythin a feme yeares after it was thought so preiudiciall to the power of the Lord Chauncelour and so troublesomea matter to sue to the King for bils so signed that by the Parliament 3. E. 6. ca. 1. the Lord Chauncelor was wholy restored to his auÌ„tient auctoritie in naming the Custos Rotulorum againe excepte in suche priuiledged places without expecting any such Bill and that the Custos appointed by the discreation of the Lord Chauncelour shoulde enioy the same Office to be occupied by himselfe or his sufficient Deputie in as ample maner as if that Statute 37. H. 8. cap. 1. had neuer bene made The Clearke of the Peace oweth his aftendance at these Sessions also for he rest deth the Inditements seâ—ueth the Court he enrolleth the Actes of the Sessions and braweth the Processe Clearke of the Peace He also must deliuer Letters to such as bée acquited of felonie and will begge for their fées 22. H. 8. cap. 12. He must record the burning of Roags thorow the eares 18. Eliz. ca. 3. and muste like wise record the Proclamations of Rates for seruants wages and inroll the discharge of Apprentices 5. Eliza. ca. 4. He is appointed to kéepe the counterpane of the Indenture of Armour 4. 5. Phil. Mar. cap. 2. He kéepeth the Register Booke of licences giuen to Badgers and Laders of corne 5. Eliz. cap. 12. and of those that are licenced to shoote in Gunnes 2. E. 6. cap. 14. And he is bounde vnder the paine of xl shillings to certifie into the Kings Bench transcripts of Inditements Vtlawries Attainders and Conuictions had before the Iustices of the Peace within the time limited by the Statute 34. H. 8. cap. 14. All
Statutes not comprehended within the Commission Or thus All these Lawes doe prohibite thinges contrarie to some of the foure Cardinall or principall vertues Prudence Iustice Fortitude or Temperance They may also be diuided by the barietie of the punishments and by some other Accidentall respects all whiche I leaue to the choice of suche as shall give them in charge and will now for this time set downe the Articles themselues after the order of the first diuision pointing out in the first place the Ecclesiasticall causes and then pursuing the Temporall In whiche doing first I will omitte all such Statutes as doe concerne but onely some one or a few particular places knowing that I write to the most part who haue not to doe with them The manner of this Charge Secondly I will purposely pretermit the rehearsall of the punishments conteyned in the Statutes that I am to run thorow aâ—well bicause those doe rather perteine to the Iustices than to the lurours as also for that I haue an auncient Precedent of the Iustices in Eire to make for me who in their charge did only deliuer the Articles in offence without any mention of the paines due vnto the same As it appeareth in the small volume of the old Statutes vnder the Title Capitula Itineris And thirdly I will neither recite all the other partes of each generall Statute by it selfe nor yet comprehend them wholie and fullie with others bicause the firste of the se waies wonld be very long through the ofteiteration of the same things and the other would bée so crooked I comberous through the barietie and difficultie of the exceptioÌ„s that the hearer would bée many times loste before I should come to the ende I know that M. Fitzh was of the opinion that the Iustices of Peace ought at their Quarter Sessions and may at their priuate Sessions giue in charge to the Enquest all such matters as they haue power to determine and this he vrgeth aswel by the Dath of the Iustices who are sworne to do right in all causes within their Commission or the Statutes as by the ignoraÌ„ce of the Iurours who cannot bée instructed but by the charge which if it bée so I sée not for my part how either these Iustices that are bound to vtter all can bée discharged or the Iurours that ought to heare all can be enfourmed without this 02 some such compendious plaine waie that may bothe shortly for the time lightsomely for the order comprehende the substaunce of that which belongeth to their Enquirie Howbeit as I thinke it the best for the Iustices to rehearse all such pointes whereof the Iurie may make presentment before them so yet I holde them discharged in my slender opinion if they vnfold onely the articles of their Commission and of such other Statutes as doe expressie auctorize them to make enquirie For as there bée sundrie Lawes that doe giue to Iustices of the Peace a certaine speciall 02 particular power in them and doe not yet yéelde vnto them any auctoritie to enquire vpon the same of which sorte be the Statutes 27. H. 8. c. 20 32. H. 8. c. 7. of Tythes The Statute 35. H. 8. ca. 17. of Woodes The Statute 23. El. ca. 9. of Logwood and sundrie others So also there be diuers others that do aforde to the Iustices of Peace the power of hearing and determining and yet doe not exprestie giue them the name of Inquine And for as much as they may heare and determine of these by Information giuen to themselves by them commaunded to the Iurie it séemeth to me that they bée not so necessarily boúd to giue them in charge but that they be well inough discharged if they lie open and be readie to receiue the informations and presentments that shall bée offered vpon them And of this kinde bée the Statutes of Highwaies 5. El. c. 13 18. El. ca. 9. the statute of Fighting in Churche or Churchyarde 5. E. 6. ca. 4 the Statute of Informours 18. El. ca. 5. and sundrie others whereof it shall be superfluous to make rehearsall Neuer the lesse bicause I will not that my fantasie shall either stand against his iudgement or be preiudiciall to other mens profite I haue contended what I may to deliuer the principall most seruiceable partes not only of the Commission and of suche Lawes as doe specially conteyne their Inquirie within them but also of al such other Statutes as may be hearde and determined by Iustices of the peace at any their Sessions and that in so narrowe a roome as if I be not after some proofe deceiued they may be distinuly read ouer in a couple of houres or litle more so that the yeares of the Kings and the other Notes be left vnread and passed ouer Ecclesiastical causes If anye person haue within this halfe yere by writing printing teaching preaching expresse déede or act aduisedly malitiouslye and directly affirmed holden sette foorth or defended the auctoritie preheminence power or iurisdiction spirituall or Ccclesiasticall of anye forreine Prince or perso whatsoeuer heretofore claymed vsed or vsurped in this Kealm or any the Quéenes dominions or haue aduisedlye malitiously and directlye put in ble or executed anye thing for the ertolling setting foorth or defence of anye suche pretended or bsurped iurisdiation preheminence or auctoritie or any part thereof Treason the third offece Extolany forraine power Or if anye person coÌ„pellable to take the oath of Kecognition of the Quéenes Maiestie to bée supreame Gouernour in all causes within hir domonions haue refused to take the saide oathe after lawfull tender thereof to him made 1. Eli. c. 1 5. Eli. c. 1. enquirable by words of 23. El. ca. 1. Refuse the oathe If any person vnder the Quéenes obedience haue at anye time wythin this yere by Writing Ciphering Priting Preaching or Acte aduisedlye holden or stoode with to extoll or defende the power of the Bishoppe of Rome or of his Sée heretofore calymed or vsurped within this realme or by any spéech open déede or acte aduisedlye attributed anye suche manner of auctoritye to the saide Sée of Rome or to the Bishoppe thereof within any the Quéenes dominioÌ„s yée shall presente him his Abettours procurers counsellours aiders and comforters Premunire Pope 5. Eliz. ca. 1 If any person haue by anye meanes practised to absolue perswade or withdrawe anye other within the Quéenes dominions from their naturall obedience or for that intente from the religion now established here to the Komishe religion or to moue them to promise obedience to the Sée of Rome or other estate Or if anye person haue bene willingly so absolude or wdrawn or haue promised such obedience Treason Withdraw any from obedience And if anye person haue willingly ayded or maintayned anye suche offender or knowing such offence haue concealed it and not within twentie dayes disclosed it to some Iustice of peace or other higher Officer Misprision of treason 23 Eliz.
reparation or building of the Queenes houses or shippes Dr haue taken any more than the verie timber of sach trées 5. Elizab. cap. 8 If any suche Purueyour haue taken any thing of any man to the ende to spare him or haue taken corne by any other measure than by the striked Bushell or by any more than eight such Bushels to the Quarter or haue taken carriadge therefore without making readie payment 25. E. 3. ca. 1 36. E. 3. ca. 3 1. H. 5. ca. 10. Of Purueyours within fiue miles of Oxenford or Cambridge fee. z. 3. Phil. Mar. ca. 15 14. Eliz. ca. II. If any common Informour or Promoter as he is commonly called have compounded or agréed with any person for any offence against any penall Lawe without the order or consent of some of the Courtes at Westminister or have willingly delayed or discontinued his sute once commenced Iaformour 18. Elizab. cap. 5. If any man have raisâ—d hue and crie without cause or it being raised have not bene readie at the commaundement of the Shirise or at the hue and crie of the Countrie to pursue and arrest Felons or suche as have daungerously hurte any man And if the Shirife or any Baylises have not followed the hue and crie with horse and armour W. 1. 3. E. 1. ca. 9 3. E. 1. Hue crie Officium Coronatorius Statut. Winchester 13. E. 1. If the Watche of twelus men in euerie Borough haue vene kept from sunne rising to sunne setting betwene Aseension day and Michaelmas day to arrest straungers that passe by Statut. Winton Watch. If any Lorde of the Soyle have not enlarged the high way from market to market so that no dike bushe nor trée except greate trée bée within two hundreth foote of eache â—â—â—e thereof Statur Winton High â—ies If any persons except the Quéenes seruauntes and officers in doing her seruices and their companie aiding them in that behalfe have ridden or gone armed by daye or night or have brought force in affray of the people before the Queenes Iusties or otherwise Statut. Northampion 2. Edw. 3. cap. 3. Ride or goe armed If any person arrested or imprisoned for Felonie have benc negligently suffered to escape Escape by negligence 1. R. 3. ca. 3. If any bée a Barrettour or a common quarrellour or otherwise of euill name and fame 18. Edw. 3. cap. 2 34. Edw. 3. cap. 1. Barrettours Mainteynours Embraceours Or a Maintainour of quarrelles or an Cmbraceour of Iuries 33. H. 8. cap. 10 37. H. 8. cap. 7. The woorde Barrettour may seeme to bee derined eyther of the French Barat and so it seemeth to bee taken in the Statute of Champartie Barretour W. 2. ca. 49. signifying deceipt so that Barrettour should notisie a deceiuer or else of the Latin Baratro or Balatro as some write it whiche berokeneth a vile knaue or vnthrifre and by a Metaphore a spotte in the Common wealth But whatsoeuer the woorde do properly denote common vse Quem penès arbitrium est ius norma loquendi taketh it for a common quarrellour or a mainteinour of Quarrelles and in that sense I thinke it to stande in the olde Statute called Ragman If anie bée a Champartour that is to say one that mooueth pleas or suites or canseth or procureth them to bée moued at their owne costes to the ende to have parte of the Lande or other thing in variance Champartours 33. E. 1. If any Iurour in any Cnquest here have taken any thing of any man to make his presentment fauourable Iurour 5. E. 3. ca. 10. If any person have by him selfe or other for him giuen any liuerie of signe of companie or badge or reteyned any man other than his householde Seruaunt Officer or learned man in the Lawe Liueries of companies baâ—ges 1. H. 4. cap. 7 2. H. 4. ca. 21 8. E. 4. ca. 2. If any companie of menne other then menne of Fraternities and men of Artes in Citties and Boroughes have made any one generall suite of Clothe Boodes or Hattes amongst them to bee knowen by 7. H 4. cap 14. If any person have within these thrée monethes aduisedly and with a maâ—icious â—ntent agaynst the Queenes Maiestie of hys owne imagination spoken any false seditious and flaunderous néwes or sayinges of the Queenes Maiestie or haue within the saide tyme aduisedly and with a malitious entent spoken any suche newes or tales to the flaunder and defamation of our sayde Queene of the reporting or speaking of any other 23. Elâ—z cap. 2. False newes If any person haue by writing or open speache notified that the eating of Fishe or forbearing of Fleshe mentioned in the Statute for the Wednessday 5. Elizab. cap. 5. is of necessitie for saluation of soules or is the seruice of God otherwise than as other politike Lawes be 5. Elizab. ca. 5. If any person haue falselye and deceitefullie gotten into his possession any money or other things of any other mans by colour of false prtuie token or of counterfait letter made in an other mans name False tokens or letters 33. H. 8. cap 1. If any haue vttered them selues to bée Proctours hauing no sufficient auctoritie or haue gone about idle vsing crastie games or pretending skill in Palmestrie telling of vestinies or other abused sciences or that being whole and able in bodie and not hauing land Maister nor meane to get their siuing can give no reckning howe they gette their liuing lawfully If any Fencers Bearwards Common players in Enterludes or Minstrells not belonging to any Baron or personage of greater degrée Iuglers Pedlers Tinkers or Petit chapmen haue wandred about without licence of two Iustices of peace If any common labourers being able in bodie haue vsed loytering or refused to worke for the appointed wages If any haue counterfaited licences or passeported or haue vsed such knowing them to be counterfait If any Scholers of Oxford or Caâ—â—â—â—â—ge haue gone about begging not auctorized vnder the Vniuersitie Seale or shippemen pretending losse by sea or deliuered prisoners begging for their fées or trauailing to their countrie or friendes not being lawfully lycenced If any seruant departing out of seruice bée founde with a counterfait Testimoniall Vagabonds and Roges If any poore bodie haue frauailed from home towards Bathe or Buckston without lawfull licâ—nce or being proâ—ided for in his or hir parishe haue notwithstanding secondly wandred abroad without licence For all these bée Roges and Vagabounos 14. Elizab. cap. 5. If any Constable or Borsholder haue not bone his best endeuour to apprehende suche Roges as have begged or made aboad within their limits or haue wilfully suffered any of them to escape punishment And if any person haue giuen harborow or other reliefe to any such koge If any person haue hindered the execution of the Statute concerning Rogesf or haue made rescous to any person endeuouring the execution thereof Officers not punishiing
1. E. 3. ca. 17 31. E. 3. ca. 14 1. E. 4. ca. 2 1. R. 3. ca. 4 And for this purpose the sayd Statute 1. E. 4. ca. 2. bindeth the Shirife to certifie to the Iustces of Peace at their next Scssions the Enditementes founde in hi Turne or Lawdaye It séemeth also by way of admitting in the Booke 27. H. 8. 2. that the like ought to be done of the Presentments of felonie in any Leete by vertue of the said Statute of 1. E. 4. ca. 2 But that is further to bée enquired of for I find no better Warrant for it This is certaine that Iustices of the Peace ought to receive Enditementes found in any Lectes or Lawdayes vpon the Statute made for the bréeding of horses to which end also the Courtholders of such Leetes are bound to certifie the same vnto them within the spare of forty dayes 32. H. 8. ca. 13. Iustices of the Peace have none auctoritis to receiue an Enditement of the killing of a man se defendendo sayth Stamf. 15. as he had heard say But enquire further thereof for though it be not felonie as appeareth by the Statute of Glo. c. 9. Yet be their other words in their Commission large enough to giue them power to heare and determine such an offence But they are not to receiue an Enditement of the killing of a Hart proclaimed for the Iurisdiction of it belongeth to the Iustices of the Forest 21. H. 7. 30. Fineux And as it séemeth they may reject an Enditement that findeth any matter of Recorde as Vtlawrie or such like unless it be shewed vnto the Iurours sub pede sigilli for Iurours are to finde matters in déede onely and not of Recorde 1. H. 7. 6 3. H. 7. 1. 10 And so if the Shirife will offer Enditementes of Liueries Rauishment of Women or of Felonies by Statutes or of such other causes whereof they haue no power to enquire in their Turnes the Iustices of the Peace ought to relect them 4. E. 4. 31 8. E. 4. 5 22. E. 4. 22 Stanford 87. Thus much for the better remembrance of our Iustice of the Peace I thougt to say of Enditementes the rather because it behoueth him to Iudge of them and for that they be the chiefe grounde worke whereupon the whole Triall is afterward to be built and framed Of the Presentementes and Informations of Officers and other men CAP. VI. HAuing shewed how these Iustices take knowledge by the labour of Iurours in Enquests it followeth to declare also howe they may have understanding by other men And that is to be done either by the presentment of persons publicque or by the information of priuate men In some cases therfore these Iustices may heare one an other for euerie Iustice of the Peace may vppon his proper knowledge make Presentment at the Sessions of any offence done against the Actes 2. 3. Phil. Mar. ca. 8 5. Eliza. ca. 13. concerning the amendment of the High wayes Presentmets of Iustices of peace and constables And in this such like cases his reaport hath the force of a Presentment of twelue men So that he and his fellowes may procée vpon it 21. H. 6. 5. Of like value is a Presentment made at the next Sessions by Searchers appoynted to examine the true making of Tile 17. E. 4. ca. 4. And of like strength also as I thinke is the presentment of the Constables concerning sundrie poinctes contayned in the Statute of Winchester 13. E. 1. This Court may also bée given to vnderstande by the meanes of priuate men and that eyther for the Queene onely or for the Queene and them selues or in some speciall causes for them selues without the Queene InformatioÌ„ by priuate men That which is for the benefite of the Queene or for hir and the partie is sometimes moued by the free offer of him that openeth the matter and sometimes wrought by commaundement of the Court. The frée motion of the partie is sometimes by word only which is properly but a Suggestion and sometimes by writing named a Bill plaint Complaint or Information all which be not alwaies of one force in this businesse Free Voluntarie information For albeit that we reade 1. E. 5. 6. that the Courte of Chauncerie will sometimes both take knowledge and also award Processe vpon an Information by word in the behalfe Of the Prince and that 39. H. 6. 41. also admitteth such a matter Yet I thinks that before Iustices of the Peace these suggestions and Informations both bée they by worde or writing are but of the force to stirre up the Iustices to recommende the cause to the Enquest and not to award any Processe vpon them unlesse it be in certaine causes where that validitie is specially giuen them by the Statutes as you shall hereafter perceiue There was once a time I confesse when Iustices of the Peace might haue awarded Processe vpon an Information for the King only of offences against any penall lawes euen as they may yet vpon Enditementes against the Peace But that lasted not long and therfore that course is holden now in speciall Statutes only Neuerthelesse at cuerie Sessions sayth Iudge Prisot 35. H. 6. 15. the Iustices of the Peace do vse to make Proclamation that if any will informe for the Prince he shall be hearde and thereupon any man may come in and may both informe the Iustices of the Peace and giue euidence to the Enquest without daunger of Conspiracie by the opinion of the Court in the last said booke And as that which ariseth vpon Presentment or Enditement is properly called the sute of the Queene So this Other whether it be by Bill plaint Complaint or Information is most aptly tearmed the sute of the partie at whose sute the Iustices Of the Peace may heare of the abuse of Innekeepers and Victuallers and of Extortions and Regratories and perhappes of higher offences also either for him selfe or for the Queene but of the other Articles in the Commission at the sute of the Queene only by the expresse forme of the words in the last Assignauâ—mus of the Comission of the Peace But therein among other some amendment if I be not deceiueb is to be desired if it be not ment the they shall hold plea of Appeales betwene party party which the Statute 8. H. 6. c. 10. séemeth also to allow unto them In other Statuts at large such rules are to be followed as they them selues do prescribe And in this Information the Statute of Additions 1. H. 5. ca. 5. séemeth vpon the bare words to haue no place for Informations be not mentioned in it and vpon that reason the Court 13. H. 7. 21. did holde it cleare that if Rescous bée retourned by the Shirife against certaine persons wtout their Addititions yet in the case they may well be Vtlawed vpon it The other compulsorie informatioÌ„ groweth by examination Of witnesses called into the Court and is
set foorth in the Statute of Drouers Badgers 5. Eliz. ca. 12. where it appeareth that vpon the examination of two lawfull witnesses the Iustices of Peace may make Processe as if it were vpon an Inquisition of twelue men Forced Information The like may they do vpon the Statute of Armour 4. 5. Phil. Mar. ca. 2. Sute betwene party and party And the berie like also may they doe vppon the Statute made against Forstallers 5. E. 6. ca. 14. which last sayd Statute séemeth for this point to haue bene followed as a Paterne by the other two so right they tread in the steps of the same Herunto also you may adde the examination of the M Marmers of ships wherin corne or victuall shall be transported against the meaning of the Statute 1. 2. Phil. Mar. ca. 5. Thus much of the knowledge of cause exhibited by such as either doe it at large for the Queene onely to haue the offence punished or be special1y allured thereto by regard of benefit growing in common to them with the Queene thereby Now of those that seeke to informe the Court for the profite due to them selues alone The knowledge that commeth this way is by the priuate sute and proper action of the partie and is therefore in the Statute 11. H. 6. ca. 6. tearmed a sute betwene partie and partie whereof that Statute had no lesse consideration than of those other sutes that bée for the Queene her selfe and therefore prouided that they also should not be discontinued by new Commissions of the Peace to be made I know that there be not many Statuts which do giue power to the Justices of Peace to hold Plea betwene partie and partie and I thinke it hath not bene often experimented vpon those very Statutes which do giue it and how the Judges do expound this verie Statute I can not tell Neuer the lesse because I may neither wittingly conceale any such parte of their auctority Iurisdiction although it were but my opinion nor safely reaport it without some proofe I will giue you one example of this kinde as I take it and leaue the rest further search The Iustices of Peace haue power to enquire heare determine of all the defaultes against the Statute made 23. H. 6. ca. 11. concerning the leuying of the wages of the knights of the Parliament as well by enquire at the kings sute as by action at the sute of the party In this and suche like as in Appeales by warrant of the large words of the Commission as hath bene sayd the Iustices of Peace ought to proceede after the vsuall manner of ather Courtes of Recorde at the Common law if I doe not miscall it and therefore I wil goe no further with it but will prosecute that hearing and determining that more properly pertaineth unto them if first I may shew you how they are sometimes preuented in that behalfe Of the Impedimentes of proceading vpon Enditements before the Iustices of Peace CAP. VII IT falleth out not seldome when Iustices of the Peace haus taken an Endâ—ement founde before them that they can not proceede to hearing and determining vpon it either bicause it is grounded vpon some such Statute as giueth vnto them no further power but onely to enquire thereof or els bicause the Enditement is taken out of their handes by Certiorari and conueyed to Iustices of a higher auctoritie at the sollicitation and by the meanes of some parties grieued to the end that either they may trauerse them aboue or there auoide them for insufficiencie of forme or matter And therefore Iustices of the Peace may only enquire of certaine the offences against the Actes 1. El. ca. 2 ca. 3 5. El. ca. 1 13. El. cap. 2. touching the acknowledging of the Queenes supremacie or the seruice of God or comming to the Churche or the stablishment of true religion as you may see 23. El. cap. 1. And they may onely enquire of any the Treasons or Misprisions of treasons made by the same Acte 23. El. ca. 1. Neither can they goe any further than onely to enquire of and to endite the offendours against any the Articles of the Acte made 23. El. ca. 2. concerning seditious rumors against the Queene In the rest so farre as I haue found their power of Enquirie is accompanied with the auctoritie to heare and determine also For this want of Jurisdiction is not found in the Commission of the Peace it selfe but onely in cortaine Statutes that for weightie causes doe restreine this further proceeding By what means such Enditements shall bée remoued to those higher Courtes I will shew you when I come to speake of Certifying the Recordes of the Sessions and will now goe on with those other Enditements that bée remoued by labour of the parties Albert that in the remouing of pleas betwene partie and partie from inferiour to higher Courts by Tolt Ponc Recordare c. there was wont to bée a probable cause alleaged for which the same were remoued yet in this case of the Crowne there néedeth no cause to bée comprised in the writ of Certiorari bicause they all bée the Courtes of the Queene and it breedeth neither iniurie to the offendour nor losse to any other person in what Court soeuer the offence bée tried This Certiorari then may commaunde either the Recorde it selfe or Tenorem Recordi to bée sent vppe and it ought to bée obeyed accordingly Enditements remoued by labour of the parties For vpon fayle thereof first an Aliâ—s then a Pluries vel Causam nobis significes and lastly an Attachment shall goe out against them that should sende it as M. Fitzh noteth in his Nat. Br. Fol. 245. but I haue heard that they vse also Sub poena at this day And albeit the Certiorari be a Supersede as of it selfe yet may the partie vpon the Certiorari purchased have a Supersede as also directed to the Shirife commauÌ„ding him that he arrest him not vpon that Record before the Iustices of Peace Fitzh ibid. Fol. 237. In which place also he doubteth whether the Iustices of Peace them selues ought of dutie to awarde their owne Supersedeas to the same effect after that the writ of Cortiorari is brought to their hands This writ of Certiorari is euer directed to the Iustices of Peace and yet as you haue heard the Custos Rotulorum onely hath the kéeping of these Recordes but the auncient Commission of the Peace had no Custos Rotulorum specially named in them and then this certifying belonged to them all which forme the Writ retaineth to this day And if it fall in question whether such a Certiorari were deliuered to the Iustices of Peace or no that must be tried sayth the Booke 10. H. 7. 24. by the verdit of twelue men Now if a Certiorari come to the Iustices of Peace to remoue an Enditement and the partie sueth not to haue it remoued but suffereth it to lye
for proofe that hearing by discretion is yet in some sorte suffered take thys for example The Iustices of Peace may heare by their discreation as well by Examination as other wise at the suite of the king or of the partie the offences done againste the Statute prouided for the true making of Lile 17. E. 4. cap. 4. But howe farre this discreation and the worde otherwise maye bée extended in thys and suche like cases it can not wel bée foretolde for it is referred to them and they muste take counsell exre extempore for it Of Hearing or Triall vpon Examination CAP. XI THe obstinacie of euil dooers that woulde shewe no conscience in acknowleging of their faultes and the corruption of Iurors that would presente nothing that lay onlie in their owne knowledges hath begotten and brought into our Lawe thys triall by Examination wherewith it was not before acquainted And yet thys manner of Triall is not loosly permitted to Iustices of the Peace but in cases onelie where eyther the Statutes doe generally referre the trial to their Discretions or else doe specially auctorise them to take the Examinations The Examination then is sometimes of the offendours them selues sometimes of Witnesses that can speake to the matter and sometimes both of the parties and witnesses of euerie of which I wil giue you an auctoritie or twaine and leaue the reste to your owne reading and examination Vpon apparance after Procesle against the offendors of these Statutes of Liueries Liueries the Iustices of Peace may examine them and there vpon conuince them so as if they were thereof conuict by Enquest 8. H. 6. cap. 4 8. E. 4. cap. 2. They may also call before them and examine all such as shall be suspected to kéepe Deere hayes Deere hayes c. or Buckstalles or that vse to stalke or to take yong Herons againste this Statute and maye finding them faultie committe them to prison till they find Suerties to pay the forfeiture 19. H. 7. ca. 11. And because it is often séene that those which haue committed an offence will also increase their faulte by denying of the same therefore some Statutes as I saide do appoint that the Iustices of Peace shall take the examination of others besides the offendors themselues And therevpon the vsers of false priuie tokens False tokeÌ„s or of counterfaite Letters may bée tried out by the examination of Witnesses 33. H. 8. cap. 1. And the vnlawfull takers of Dawkes Hawkes egs Hawkes eggâ— or Swans egs may be detected and coÌ„uinced by information and such proofs 11. H. 7. ca. 17. Now whereas some Statutes doe enable the Iustices of Peace to heare and determine by the generall vse of the word Examination without shewing of what persoÌ„s it séemeth to me that they may ther vpon examine as wel the parties as other witnesses Such a one is the Statute prouided for the true making of Tiles Tiles 17. E. 4. cip 4 Such an other is the Statute made for the examination of offences done by Coroners 1. H. 8. ca. 7 Coroners And such an other also is the Statute ordained for the examination of putting into Foreits or Wastes any stoned Horses being vnder the height of fiftéene handfulles Stoned Horses 32. H. 8. cap. 13. Thus farre of Examinations which whether they ought to be takeÌ„ vpon oath or no you maye coniecture by that whiche I haue alreadie sayde thereof in the firste Booke and yet for more aide towardes your resolution I saye nowe that these Examinations ought in my slender iugement to be vpon Dathe because the triall here dependeth vppon them whereas those others are but to enforme the Iurie towardes an â—â—ditement onelie in so muche as the parties are bounde to giue the matter of them innuidence Vina voce when the triall shall bée Of Triall or Hearing by Certificat CAP. XII BEfore som other Iudges the Lawe hath allowed Trial by sundrie sortes of Certificat as from the Quenes Lieuetenaunt in the case of Escuage from the Bishop in the cases of Bastardic Bygamie Excommunication c. and in some other cases from other men But before Iustices of the Peace I haue not hitherto founde anye triall by Certificat appointed by Statute but in this one case following If any man being impeached vpon this Statute of Armour for not hauing his appointed furniture shall alledge that the same furniture so lacking coulde not bée conueniently prouided for waÌ„t of the same wythin the Realme this shall be taken for a good answeare in case it be true but if it be denyed or trauersed issue shall be ioyned vpon it and the Trial shall be onelie by Certificat to be made by the L. Armour Chauncelor L. Treasouror L. President of the Counsell L. Steward of the Queenes house L. Priuie Seale L. Admirall and L. Chamberlaine of the saide housholde or by thrée of them in writing vnder their Seales 4. 5. Phil. Mar. cap. 2. For the Certificat of the offence and of the Recognusance taken by two Iustices of the Peace one being of the Quorum of hym that hath obstinately kepte a common Ale-house againste the Statute 5. E. 6. cap. 25. is made a sufficient conuiction of the same offence wythout further Triall Alehouse keeper Of Hearing or Trill by Trauerfe CAP. XIII THe moste solemne auntient Triall of the fact against an offendor that wil not con fesse it is that which we sée perfourmed by the berdite of twelue good and lawful men of the Countrie and it also doth beste con tent and quiet the guiltie man for that it passeth by hys owne Countrymen Neighbours and Peeres according to the auntient libertie of the Lande wherevato every frée borne man thinketh him selfe inheritable and therevppon it is named Mag. Cart. cap. 29. Legale indicium parium suorum the lamfull iudgement of a mans owne Peeres or Equalles because as the Nobilitie soalso the Comminalty are to be tried intreason felonie or misprision of treason not the one by the other but each by men of their owne estate and calling I meane by the worde Nobilitie as our own Law speaketh which calleth none Noble vnder the degrée of a Baron and not as men of forraine Countries doe dse to Gentile birth is accompted Noble for wée dayly sée that bothe Gentlemen and Kinghts doe serue in the Parliament as members of the Comminaltie Nowbeit in cases of forcible Centrie Riot Rout vnlawful Assemblie or such like they of the Nobilitie shal be tried by twelue men as well as other inferiour subiectes 3. 4. Phil. Mar. reported by Dalizon Thys Triall happeneth before Iustices of the Peace sometimes vppon Trauerse and sometimes vpon Arraignment But yet some things be commune to them both For if the partie charged will Demurre in Lawe vppon the euidance the Iustices ought to recorde his Demurrer So if he wil pleade in Iuttification any matter of Recode that is before other Iustices they ought to
bene the Law of the lande long before that time saying that Misericordia Domini regis est qua quis per inramentu legalium hominum de Viceneto eatenus amerciandus est ne aliquid de suo honorabili coÌ„tenemento amittat But where the offence or Contempt falleth out to be so great that it asketh the imprisonment of the bodie it selfe and that during the Kings will and pleasure then is the partie to redéeme his libertie with some portion of money as he can best agrse with the King or his Iustices for the same which composition is properly called his Fine or his Raunsome in Latine Redeptio as may be plainly séene by the Statue of Marleb 52. H. 3. ca. 1. 2. 3. 4. And by the Statute called Ragman and diuerse other auncient Statuts But of later time the Iustices ahue in sonie cases of Amercements also vsed to assesse and rate them selves without any other helpe As where the Dssicers of their Courts haue offended 33. H. 6. 54 34 H. 6. 20 Lo. 5. E. 4. 5. which séemeth to make an other difference betwene the two wordes But because neither of these be strictly obserued in our common spéeche nor yet in the vndersranding of the Statutes of later time I will no longer stand vpon it Nowe then if the offence be Fineable by generall wordes onely without speaking of any Fine or without shewing by whom it shall be assessed for so it is commonly in the elder Statutes that do prohibite any thing to be done there the assessement thereof belongeth to the Iustices before whome the Conuiction is lawfully had Fine by diseretion of the Iustices Again if it be Finable by these or such like wordes at the Kings will or At the Kings pleasure as you shall find it in many Statuts then also the same Iustices before whom the Conuiction wag shal assesse the Fine at their wills and pleasures for say the Bookes 2. R. 3. 11 18. H. 8. 1. the King in all such cased bttereth his owne will and pleasure by the mouthes of his Iustices And yet some Statutes vsing playner spéech do namely referre the Fine to the discretion of the Iustices of Peace For they may after Conuiction before them Fine by their discretions such as take Salmons or destroy the Fry of Fishe in Kiuers against the Statutes Destroy the Fry of Fish W. 2. cap. 47 13. R. 2. c. 19 17. R 2. c. 9. And as this is sayd of the Fine so sundrie Statutes doe giue the same power to the Iustices of Peace in the execution of the corporal punishment it selset as you haue already heard in the case of counfeiters of false letters or tokens and may reade in oter the Statutes at large For I labour to be short and therefore I giue but an assay of eche thing knowing that these Iustices will not procéede to the execution of any Statute without the sight of the Statute it selfe howsoeuer they should finde it alleaged by me And in these cases as in cases of Amercementes the Iustices ought to take héede that the Fines be reasonable and just hauing regrade to the quantity of the trespase and the causes for which they be made as it is commaunaded by the Statute 34. E. 3. ca. 1. This Fine or peine awarded by the discretion of the Iustices of Peace shall doe the more good both to the Prince in profite to the people in example and to the Iustices themselues in credite if it bée pronounced-at the Benche openly as it ought to bée and not shuffled vppe in a Chamber or Corner secretely as in some places it hath béene bsed to bée Fine to be assessed openly I haue heard that in cases where the Statutes doe appoynt a certayne forfeiture as fiue pounos or fenne poundes c. yet the prartise is to mitigate the same by discretion if so bée that the partie will come in and put himselfe in gratiam Reginae without playne confession of the faulte as I have folde you before Mitigatioa of the forfeiture of a Statute So that the Fine shall bée small where the fault was great and the penaltie of the Law it selfe not small But this maner of doing is in my mind so voide of saunde reason that I can not recoÌ„mende it to the Iustices of Peace but doe rather condemne it as a mockerie of the Law and I finde that sundry Statutes fearing belikw some suche thing haue specially preuented it comnaunding that Iustice of the Peace shall assesse no lesse Fine than is in those Statutes them selues before hande appointed Such is the Statute 17. E. 4. cap. 4 of Tiles the Statute 33. H. 8. ca. 6. of Crossebowes and hand Gunnes and the Statute 5. E. 6. ca. 25. concerning Alcheuses and such others may be found if the Books of Statuts be well perused But hitherto we haue not sufficiently performed that which the Commission of the Peace hath in these wordes Saluis nobis amerciamentis aliâ—s ad nos inde spectantibus and therefore it is not enough to haue assessed the Fine but we must also disclose the meanes by which as well this Fine that is reduced to certainetie by the discretion of the Iustices as all other Amercementes those other penalties and forfeitures that are certainly prefined by wordes of the Statutes may be leuied and brought into the Princes coffers Estreating for the Qucene Order was taken by an auncient Statute intituled de Scaccario and noted to be made 51. H. 3. that all Iustices Commissioners and Enquirers whatsoeuer shoulde deliuer into the Eschequer at the feast of S. Michael yerely the extracts of Fines and Amerciaments taxed and mafe before them that the King might be duely aunswered thereof and the same in effect was after ward confirmed by an other Statute intituled De formamittendi extreta ad Scaccarium which although it be sayd to be made 15. E. 2. Yet forasmuch as it mentioneth that the former Statute was made in the time of the father of that King which made the later it must néedes be that either the one or the other of them was made in the time of King E. 1. No doubt but this ordinance doth extende to the Iustices of Peace as a man may easily gather by words in the Statute of Labourers 5. Elizab. ca. 4 and the act of Sewers 13. Elizab. ca. 9. and other Statutes But because it is verie generall and hath nothing peculiar vnto them from other Iustices I will descende to lower times and looke there for nearcr helpes The Statute 12. R. 2. ca. 1 had allowed to eucrie Iustice of the Peace foure shillings by the daye for the time of their Quarter Sessions to bée payed by the handes of the Shirife of the Fines and Amerciamentes comming of the same Sessions But because it was soone after séene that it was a great delay to the Iustices of Peace in this paymente to expecte the leaying of these Fines
of the Peace giue in charge all suche Statutes as doe giue vnto them a generall power of enquirie without vsing mention of any Session as doth the Statute 25. H. 8. cap. 13. of Shcepe yea I will graunt that they may also at their speciall Sessions of the Peace giue in charge to enquire vpon all suche other Statutes as do vse the worde Sessions indifferently wythout adding Generall or Speciall of which sort there bée a great many as 5. E. 6. cap. 4. of fighting in Churche or Churchyard 14. H. 8. cap 11 19. H. 7. cap. 11. of Hunting Elizab. cap. 13 of linnen cloth 2. 3. Phil. Mar. ca. 7 of Faires and Markets 5. H. 4. cap. 3 of Seawatch and 7. E. 6. cap. 5. of Wines and sundry others But whether they may there also enquire of such other statutes as do only assigne the enquirie to be made at the Quarter S. ssions you haue heard my minde and read my reasons in the laste Chapter Nowsoeuer it bée there might bée great vse of the special Sessions of the Peace if they were nowe and then holden betwéene the Quarter Sessions to deliuer the Gaoles of vntuly seruants sturdie vagabonds ydle poore folks petite théeues and some others The vse of the speciall Sessions For it is dayly prooued that manye being sent thither for correction doe come foorth more corrupted than they went in whiche euill happeneth by long abode there in wicked company whereas if they hadde more spéedie triall both they should be amended and the Countrie lesse charged by it Forraine Realmes and Countries doe reape the fruite of spéedie Iustice and if our Gaoles in Englande were more often swepte emptied I doubt not but that wée also shoulde finde a sensible profite to arise by it Peraduenture some man will say that by this meane we shall drawe vppon vs againe the same inconuenience of troubling the Countrie that happend by the sixe wée Sessions which were therefore abrogated by the Statute 37. H. 8. cap. 7. But that is not to be feared for whereas those Sessions were to bée holden in everie limite of the Shire these may bée kept onelie where the Gaole standeth the whyche since it is commonly scituate in a populas Towne shall bée easily able to furnishe thys seruice wythout calling any other vnto it Of the Rewardes and Punishments due to Iustices of the Peace in respect of their Sessions CAP. XXI WEl and euil doing do from the firste to the laste deserue reward and punishment and therefore as we closed vppe the first parte of this Treatise wyth them So also shall this latter Booke receiue the same ende and conclusion VVhilest it was at the liberty of the Iustices of Peace to holde their Quarter Sessions as shorte time as they woulde the Lawe did not allowe them anye Wages for theyr paines The Wages of the Iustice of the Peace at the Quarter Sessions But when the Statute 12. R. 2. cap. 10. had bounde them vnder paine of punishement to continue their Sessions thrée dayes together if the affaires of their office did so require the the same Statute thought it méet also to allow to euerie of them foure shillings by the daye for the time of theyr Session to be payed by the hands of the Shirife out of the Fines and Amerciaments rising of the same Sessions And that the Lords of Franchies shoulde bée contributories to those Wages after the proportion of their parties of the sayde Fines and Amerciaments But because it was verye Dilatorie for the Iustices of Peace to take those Wages at the handes of the Shirife as I haue alreadie touched vppon the Estreate sente out of the Escheaquer and for that also it grewe in question whether such Lordes as were named in the Commissions of the Peace shoulde bée partakers of the same Wages the Statute 14. Ric. 2. cap. 11. did plainely prouide that the Wages of these Iustices shoulde bée leuied and payed by the Shirife vpon Estreates doubled and indented betwene the Shirife and them And that no Ducke Earle Baron or Baronet albeit they were Iustices of the Peace did holde their Sessions with the other eight Iustices should take anye Wages for their Office in this behalfe And hereof also M. Marr. collecteth the howsoeuer many Commissioners of the Peace there shal be assembled at these Sessions yet only eight of them shall receiue the wages bycause saith he that at such time as these wages were first appointed the law did take knowledge and make allowaÌ„ce of eight Iustices and no more And he also maketh it doubtfull whether it lie not in the power of the Barons of the Escheaquer to appoint which eight when moe be assembled at the Sessions shall haue the wages paide them For the first point it would be some what harde indéed to straine that Statute so far as to giue wages therbyto so many Iustices as be nowe at these dayes in euerie Shire and would be present at the Sessions Yet the Statute of Labourers 5. El. ca. 4. the willeth the Iustices of Peace in euerie shiâ—e to deuide theÌ„ selues and to kéepe two special sittings yerely for the execution of that Law alloweth to as many of them as shall giue their attedance flue shillings a day for thrée dayes togither But concerning the latter it séemeth by the late Statute it self that the Shirife shal first paie the wages and the the Barons shal make the allowance according to the Indenture So that I sée no libertie of such nomination left vnto them I confesse that it might bréede bothe offence against the Shirife iealousie among the Iustices themselues to haue one of them preferred before an other in this payment therefore I thinke it wisely done as it is vsed to bestow the whole allowance vppon the defraying of their Commune diet If the Fines and Amercements of the same Sessions sayeth M. Marr. will not fullie amount to the sum of the wages then due to the Iustices yet shal the wages be ratably paid out of them so farre as they will extende Furthermore those two Iustices of the peace the do in their Sessions cal before the and persoÌ„ suspected to offed the Statute of Deerhayes Buckstals Stalking do examine him thervpoÌ„ finde him faulty therin shal haue the tenth part of the forfeiture growing therby Buckstals 19. H. 7. ca. 11. Nitherto of Reward hencefoorth of punishment Punishmets at the commune law It séemeth by the opinion of some Iustices 2. R. 3. 10. the if a Iustice of the Peace do any thing of Recorde ignorantly for want of knowledge that he shal not be punished for it And this opinion of theirs is not new in this Realm although it be otherwise truely said Imperitta quoque culpae adnumeratur for you amy reade in the old lawes of King Edgar cap. 3. and of King Canute cap. 14. that if a Iudge had erred in his office he mighte then haue excused