Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	constable_n	officer_n	peace_n	4,647	5	6.0431	4	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A39300	A caution to constables and other inferiour officers, concerned in the execution of the Conventicle-Act with some observations thereupon, humbly offered, by way of advice, to such well-meaning and moderate justices of the peace, as would not willingly ruine their peaceable neighbours, but act (in relation to that act) rather by constraint, than by choice / by Thomas Ellwood.	Ellwood, Thomas, 1639-1713.	1683 (1683)	Wing E616; ESTC R19625	15,083	20

A CAUTION TO CONSTABLES And Other INFERIOUR OFFICERS Concerned in the EXECUTION of the Conventicle-Act WITH Some Observations thereupon humbly offered by way of Advice to such Well-meaning and Moderate IUSTICES of the PEACE As would not willingly ruine their peaceable Neighbours but act in relation to that Act rather by Constraint than by Choice By THOMAS ELLWOOD Prov. 21. 21. He that followeth after Righteousness and Mercy findeth Life Righteousness and Honour Cat. de Mor. Lib. 3. Dist. 15. Iudicis auxilium sub iniqua Lege rogato Ipsae etiam Leges cupiunt ut jure regantur LONDON Printed for William Skeate and are to be Sold in George-yard in Lombard-street 1683. A CAUTION TO Constables c. HAving observed of late that divers Constables and other inferiour Officers have either run themselves within the danger of the Law or brought upon themselves trouble of mind by acting too officiously against their honest Neighbours upon the Conventicle-Act at the Instigation of that shame of Christianity and Pest of Mankind Informers and considering with my self that this Mischief for the most part happens through fear occasioned by want of a right understanding what is positively required of them by that Act what not I thought I should do no unacceptable Work in presenting the following Observations upon that Act by way of Cautionary Information to the view and consideration of such of those Officers as are willing to act warily with respect to themselves and yet favourably with respect to their peaceable Neighbours First then be pleas'd to observe That no Constable or other Officer is bound to be an Attendant upon an Informer to be at his Reck and run like a Lacquey after him whensoever or whethersoever he shall think fit to call him The Officer is not obliged to stay at home to wait the Informer's coming but is at liberty to follow his own Affairs and to go whithersoever his own Occasions draw or his Inclinations lead him And if casually the Informer light upon him either at home or abroad and inform him of a Meeting or Conventicle within his Parish or Precinct he is not bound to take notice of it unless he take the Information to be credible For that is the Word used in the Act in this very Case viz. Be it further Enacted c. That is any Constable c. who shall know or be credibly informed of any such Meetings c. So that it is not every idle and groundless Information from sorry Fellows of no repute nor credit the Officer is obliged to take notice of but such Informations only as are credible or his own knowledg upon which he is required to act And by his own knowledg here is to be understood a certain knowledg a personal knowledg not a knowledg by Heresay Report or common Fame only for that may be as little credible as the least credible Information The Officer then it seems must have either a personal and certain knowledg or such an Information as he shall judg credible that there is an unlawful Assembly or Meeting in his Parish before he is obliged to stir 2. And if the Officer should receive a credible Information of such a Meeting yet he is not bound to wait upon the Informer to the place where he informs the Meeting is But the first thing that is required of the Officer by this Act is to give in Information thereof some Justice of the Peace And having done that then in the next place to endeavour the Conviction of the Parties according to his Duty For so are the Words of the Act viz. Be it Enacted c. That if any Constable c. who shall know or be credible informed of any such Meetings or Conventicles held within his Precincts Parish or Limits and shall not give Information thereof to some Iustice of the Peace or the chief Magistrate and endeavour the Conviction of the Parties according to his Duty But c. Instead of which many Constables and other Officers are trickt in by cunning and swaggering Informers to go along with them to Meetings and there take Observations of the persons present yea and sometimes also to inform the Informer who the persons are and where they live and from thence wait on the Informer to the Justice and so are unawares drawn in by the Informer to joyn with him in swearing against their Neighbours thereby unadvisedly bringing their quiet Neighbours into needless trouble and themselves under the foul Brand and hated Name of being themselves Informers also Now all this is more than the Officers are obliged to do 1. They are not bound to go with the Informer to the place where he shall tell them there is a Meeting 2. Neither if they do go with him are they bound to tell him the Names or places of abode of any persons that they shall see there 3. Neither are they bound to go with him to a Justice nor yet without him to the same Justice that he goes to But when they have received the Informer's information leaving him to pursue his own projects they are to repair to some Justice or chief Magistrate and it is in their own choice to what Justice they will go and give him Information thereof if they think it Credible And although they are further required after such Information given to the Justice to endeavour the Conviction of the Parties yet that is to be done but according to their duty And sure it is not the duty of Officers to turn Informers They would be very troublesome and thankless Officers indeed if all Constables Headboroughs Tithingmen Church-wardens and Overseers of the Poor should be bound by the duty of their Offices to turn Informers 3. These Officers would not be so scared by Informers nor terrified with the talk of forfeiting 51. if they did rightly understand and well consider how hard a thing it is for them to be Convicted by this Act. The words of the Act are these viz. But such Constables c. shall wilfully and wittingly omit the performance of his Duty in the execution of this Act and be thereof convicted in manner aforesaid he shall forfeit for every such offence the sum of 5 l. Observe here the Officer doth not forfeit 5 l. unless he be convicted of omitting the performance of his duty wilfully and wittingly And this Conviction must be made either by the Confession of the Party or Oath of two Witnesses or by notorious Evidence and Circumstance of the Fact As to the Confession of the Party that need not be for no man is bound to accuse himself and he has not much Wit sure that will especially in such a case as this The second way of Conviction is by the Oath of two Witnesses But how is it possible for two Witnesses to swear unless they be such as regard not what they swear that the Officer did wilfully and wittingly omit the performance of his duty Such Witnesses put their Ears in the Officers

hands as having a mind one would think to look through the Pillory And indeed scarce any would dare to swear so desperately that had not deserved the Pillory before Then for the notorious Evidence and Circumstance of the Fact the onely remaining way of proof how can it be thereby proved that the Officer did willfully and wittingly omit the performance of his duty when so many just excuses may be alleadged as of Absence Illness Urgency of Business Ignorance Misunderstanding and the like all which if the Officer fined do appeal a Jury of his Neighbours is to try And besides it is a Question among the Lawyers how this sine or forfeiture of 5 l. can be levied upon the Officers there not being in the Act any particular and express direction for the levying of it as there is in the other Cases both of the Meeters and of the Justice for it is not to be supposed that the Officers of a Town or Parish should levy the fine upon themselves and it they do not none else is required or impowered by the Act to do it 4. If a Warrant under the hand and Seal of a Justice of the Peace be delivered to any Constable or other inferiour Officer to levy any fines upon the Goods and Chattels of any person within his Limit such Warrant ought to express for what Offence the Conviction was made and at what time the Offence was committed which if it do not the Warrant is not formal nor good in Law to make a distress by 5. But if the Warrant be formal and sufficient yet the Officer cannot thereby justifie the breaking open any dwelling House or Out-house belonging thereunto to take distress no not although the Warrant should expressly require it as the Opinion of able Lawyers is For a man's House is to him as a Castle of Defence and so is every part or room therein And therefore as the Officer may not break or force open any Door or Lock to get into a man's House so if finding the outward Door open he be got in he may not break or force open any Doors or Locks to get into any other parts or Rooms in the House that are lock't but must content himself with what he finds there Neither may he climb over any Hatch or in at any Window whether it be the Shop-window or other for the entring through or in at any Window though open is held by Lawyers to be a breach of the House Nor is he bound to lie perdue and wait continually at the Door to get an entrance but may take such times and seasons for it as he shall judg most fit and proper for he is not wholly to neglect his own Occasions to attend upon this That were a way to ruine the Officers as well as their Neighbours onely to enrich the Informers But if as often as the Officer comes he shall find the Doors shut and entrance upon demand denied him and no Distress to be taken without Doors he need not fear the penalty of forfeiting 5 l. or that he can possibly be convicted of wilfully and wittingly omitting the performance of his Duty in that respect And besides it is the Opinion of some Lawyers that the penalty of 5 l. is not imposeable upon the Officers for not levying the fines imposed upon others but only for not Informing the Justices and endeavouring the Conviction of the Parties according to their duty And the Reason of such their Opinion is this that in that part of the Act where the said Officers are authorized and required to levy the said fines there is no mention of any forfeiture on their part for not doing it And in this part of the Act where the 5 l. forfeiture is imposed there is no express mention of levying the Fine upon others It is said here indeed If he shall wilfully and wittingly omit the performance of his Duty but the word Duty being mentioned just before with particular relation to his informing the Justice and endeavouring the conviction of the Parties that wilful and witting omission of Duty to which the forfeiture of 5 l. is annexed must say they by intendment be restrained or applied only to the subject matter of that branch of the Act and be extended no further than to the neglect of that Duty therein particularly enjoyned But of this let Lawyers judg 6. If the Constable or other Officer hath opportunity and open way to make Distress yet he is not bound to take more than the Fine comes to but he may and indeed in Justice ought proportion the Distress in its real value as near to the Fine as he can And when he hath so done and taken such Distress into his custody he is not bound to drive or carry the Goods so distrained to any Fair or Market out of the Limits of his Constableship to fell for he is not to act any thing in relation to his Office further than those limits extend save only in some especial cases where he is particularly necessitated or impowered by Act of Parliament to go further which in this Case he is not Nor may he imbezil any of the Goods for he is accomptable for every particular of what he hath so distrained Nor is he bound to sell such Goods at under rates and below the real worth or Market-price of such Commodities but having offered them to publick Sale and tried the Markets Fairs and Chapmen within his Liberty if none will give a reasonable price for them he is not bound forth with to sell them but may keep them in hopes of a better Market And if they remain unsold till he is out of his Office if he then return them again to him from whom he took them I know no danger he can incur thereby I am sure I have known it done without any detriment to him that did it But if he be not willing to return them he will do well to consider how he can justly keep them being out of his Office and then but a private man or safely turn them over to any other without good security to indempnifie him in case he from whom they were taken should hereafter call him to account for them Some Observations upon the Conventicle-Act humbly offered by way of Advice to such well-meaning and moderate Justices of the Peace as would not willingly ruin their Peaceable Neighbours c. WHen I consider the quality and qualifications of Iustices of the Peace how many of them are profest Lawyers and how generally they are or at least should be Men of Learning and Knowledg in those Laws especially by which they are to act I am ready to with-draw my Pen and desist out of a modest fear least it should be thought presumption in me to offer Advice to them who are so much better able to give it But when on the other hand I call to mind that many great and very wise men have not disdained to hear what some as mean

that time it is levied may be more than 100 l. damage to him from whom it is taken However be the suffering greater or less the wrong is the same I entreat the Justices therefore to take this Matter of concealing Informers and receiving the Depositions of Witnesses against men in private and condemning and sentencing Persons unheard into their serious consideration and do herein as they would be done unto It was a true saying though spoken by an Heathen Qui statuit aliquid parte inaudita altera Aequum licet sta●uerit haud aequus fuit Sen. in Medea Act. 2. Which may bear this English He that but one part heard a Fine shall-lay Not hearing what the Accused hath to say Although his Sentence should prove just yet he An unjust Iudg w●ll still reputed be 5. What hath been said of Informers swearing hath been spoken with respect to present practice only for otherwise it is the opinion of able Counsel that no Informer's Oath ought to be taken in this case And therefore since the Act directs that if the Party accused do not confess the Charge he is to be convicted by the Oath of two Witnesses it may not be unworthy the Justices consideration what persons in this Case are fair and legal Witnesses what not In which Inquiry I will not insist on that general qualification of a Witness viz. that he must be Probus legalis Homo for little Probity to be sure whatver of Legality in that large Sense is to be looked for in that sort of men who commonly turn Informers But I will propose the Question whether any man can be a fair and lawful Witness who Swears on his own behalf and for his own advantage If he cannot which I suppose will be granted then is the Informer excluded from being a Witness since if he Swear he Swares clearly no man more for his advantage And he is not put upon Swearing but puts himself upon it meerly for advantage-sake to himself If it be said he Swares for the King the Answer is and for himself too He swears no more for the King than he doth for himself the King is to have but a third part of the Fines and the Informer himself as much If in Trials at Law no man is admitted for a Witness who is interessed in the Cause and is to reap advantage by it there is then great reason sure that the Informers should be set aside in point of Evidence Since he is not only interessed in the Cause and to reap advantage by it but is Spurr'd on to the undertaking merely by the hope and desire he hath of gaining thereby If in a Tryal it should be proved that a Witness was promised to have so much mony given him in case by his Evidence the Cause should be gained Would it not be a fair exception against that Witness and a just ground to set him aside The Informer is the Accuser and is it reasonable that he should be both Accuser and Witness too 'T is he that makes the Complaint and shall he be admitted to prove his own Complaint by his own Evidence only If he hath ought to charge any man with let him in this as in all other Cases make good his Charge by the Evidence of such Witnesses as are uninteressed in the Cause and of unsuspected Credit But this Exception lies not against Informers only but against all others also who are to reap benifit to themselves by the Conviction Such I take to be The Poor of that Parish where the Offence is alleadged to have been committed for if the Party accused be convicted they are to have a third part of the Fine so that they like the Informers Sweat for their own immediate Advantage and therefore by a Parity of Reason are equally to be excluded from giving Evidence in such a Case To these may be added all such as are Rated to the Relief of the Poor in that Parish where such Offence is alleadged to have been committed For though these do not as the former swear for their own immediate advantage yet the Evidence of these doth mediately and in the Consequences of it tend to their own advantage in easing themselves thereby of the Charge of maintaining their Poor in whole or in part I could instance a Parish in which the Overseers of the Poor do at this present forbear making a Rate for the Relief of the Poor upon a Prospect they have and a declared expectation of Monies likely to come in by Fines and Forfeitures upon this Act by which they hope and propose to ease the Parish of that Charge Now is not every Contributer to the Poors Rate in that Parish justly to excepted against as an Evidence in this Case when their Evidence so plainly tends to their own advantage and interest If a man offer to swear for the enlarging his own Parish-Bounds he is not allowed for a good Witness nor will his Evidence be taken in that Case The Reason is because by the enlarging his Parish 〈◊〉 it is supposed some profit or advantage may accrew to him 〈…〉 be so in that Case why should it not rather be so in this the same reason in this Case being no less forcible and more obvious than in that Nor are the Constables and other Officers free from being excepted against as Witnesses in this Case For the Act giving a third part of the Penalties to the Informers and to such Person and Persons as the Iustice shall appoint having regard to their diligence and industry in discovering dispersing and punishing of the said Conventicles it cannot well be understood that this is meant of any other Persons than the Constables and those other Officers mentioned in the Act because none but they are authorized to disperse and punish the Conventicles And therfore since they are by this Clause of the Act put into a capacity of sharing with the Informers at the Justice's direction and consequently may be tempted with hopes of advantage it seems but reasonable that they also should be set aside in point of Evidence and that the proof should be made by Persons of other Parishes to whom no profit can accrew thereby and against whom no colour of exception may lie 6. Although the Act doth require every Justice of the Peace upon Proof made to him to make a Record of the Offence proved and thereupon to impose upon the Offender so convicted for the first Offence 5 s. aud for every after 10 s. yet it doth not injoyn the Iustice to prosecute He is not by the letter of the Act expresly injoynned so much as to issue out a Warrant for the Levying the fine much less is he obliged to drive on the Officers to take distress Nay it is doubtful to some profest Lawyers whether a Justice of the Peace may grant such a Warrant or not in as much as in this particular he is not expressly required or authorized so to do as in other parts

it may be as my self have had to say I am thence again emboldned to go on hoping that what is so well intended will not be ill taken They that have suffered by this Act and are still liable to suffer more may be allowed to have looked more narrowly into it than others who are not under its lash And if upon a thorow search any thing can be found in the Act it self which may fairly be made use of to abate in any measure the force of the blow which we lie under I hope none will blame us for modestly representing it to those by whose hands the stroke is appointed to be given And in this confidence I proceed Observ. 1. Since the Title of the Act which is not unaptly called the Key because it opens the Intention and purpose of the Law-makers therein and the Preamble of the Act also describes the Assemblies and Meetings designed by this Act to be suppressed to be Seditious Conventicles and the persons against whom this Act was made to be Seditious and disloyal Persons who under pretence of tender Cons●t●nces have or may at their Meetings contrive Insurrections it seems but reasonable that a Justice of the Peace when Informers come before him to inform against any person for being at a Conventicle or Meeting may examine them severally and apart what Token of Sedion they saw or heard in that Assembly which they inform against If there were any Sedition there it must appear in word of Action and of that it may be expected the Informers should give Account If there were no Seditious words spoken no Seditious Cestures used why should it be taken for a Seditious Meeting and the persons punisht for what they are not nay for what they most abhor to be Besides it rarely happens but the Justice him self both knows what sort of people they are that are informed against and is more or less acquainted with some of them Now if he be so and upon his own knowledge of the Persons or their Principles be perswaded and satisfied in his own Conscience that they are not Seditious or disloyal Persons that they never have contrived Insurrections at their Meetings nor is it consistent with their Principle so to do hath he not good cause then to reject such Information and let such peaceable Meetings and Meeters alone as not coming within the Intention of the Act 2. Since that which the Act calls an Offence is by the express words of the Act declared to be Any persons of the Age of 16 years and more in number than four besides the Family being present at any Assembly c. under Colour or Pretence of any Exercise of Religion in other manner than according to the Liturgy and Practice of the Church of England and directs that this Offence must be proved to the Justice either by Confession of the Party or Oath of two Witnesses or by notorious Evidence and Circumstance of the Fact It seems reasonable that the Justice may put the Informers to prove every part of this Offence For the Offence consists of many Particulars The Offender must be 16 years old He must be a Subject of this Realm whence quere whether Scottish and Irishmen though living in England are not exempt He must be one above four besides the Family He must be met under Colour or Pretence of some Exercise of Religion and that Exercise of Religion must be in other manner than according to the Liturgy and Practice of the Church of England All these must go to the making up of the Offence and the Offence so made up must be proved and if any of these be wanting or the Proof fail in any of these it is then no Offence within this Statute Now the Onus Probandi the Burden of proving this lies upon the Informers and that with great Reason and Justice according to the known Maxim Affirmanti incumbit Probatio He that affirms must prove And he must prove all that he affirms But the Informers must affirm every one of these Particulars in order to make it an Offence within the Act and therefore they must prove every one of them also 'T is true the Party informed against may be Confession convict himself if he please but it is at his own pleasure whether he will or no And if he do not the next way of Proof is the Oath of two Witnesses And I conceive that if the Party should confess he was at a Meeting and that there were more there present than four besides the Family yet this would not subject him to the Penalties of the Act for this he might be justifiably enough unless he would also confess the others parts essential to an Offence within the Act viz. that he met there under Colour or Pretence of some Exercise of Religion and that it was in other manner than according to the Liturgy c. Now as the Parties Confessing some parts only and not every part of the Offence would not Convict him of the Offence nor Subject him to the Penalties of the Act so neither will the Informers Swearing some parts only and not every part of the Offence convict the Party against whom they so swear or subject him to the Penalties of the Act. As therefore it is but reasonable that the Justice should see due and full Proof made against the Party in every particular Branch of the Offence before he makes Record of it as an Offence in order to convict the Party thereof so it may reasonablely be supposed that if the Justices would hold the Informers closely to their Evidence and examin them strictly and punctually concerning their knowledge in every particular of the Offence they complain of they might ease themselves of a great deal of trouble and their honest Neighbours of a great deal of wrong For how could Informers dare to Swear that the Parties informed against did meet under Colour of Pretence of some Exercise of Religion and not really and sincerely in the Exercise of Religion Or how could Informers take upon them to Swear that that Exercise of Religion was in other manner than according to the Liturgy c. unless they were present the whole time of the Meeting from the very beginning to the very end thereof which they rarely if ever are and heard and saw whatsoever was said or done there And unless they themselves also better understood than they commonly do what is according to the Liturgy what not 3. Since by the Stat. 18. Eliz. 5. it is provided that Informers for certain Offences therein exprest shall not only stand on the Pillory and be for ever disabled from being Informers more but also in some Cases shall pay unto the Defendant his Costs Charges and Damages and in other Cases shall forfeit the Sum of 10 l. It seems reasonable that a Justice may demand an Account of the Habitation and Ability of any Person that offers himself as an Informer that so he may be satisfied