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
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
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
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
part that kinde of learning is most requisite and seruiceable And this was the reason that led the makers of the Statuts 18. E. 3. ca. 2.34 E. 3. ca. 1. 13. R. 2. ca. 7 to cause it to be expresly enacted that some lerned in the laws should be put into the Commission and all Statutes that desire the presence of one of the Quorum do secretly signifie such a learned man But here againe the Commission chorda quae semper oberrat eadem doth make muche relation to the saide Statutes that are not now at all The power giuen to these Iustices hathe appeared 3. The charge to them the Shirife and Custos Rotulorum Now let vs sée the charge giue to them and others They therefore and euery of them be charged to be diligentlye intendant aboute the execution of the premisses by these wordes Et ideo vobis c. but howe negligentlie many of them performe it I am afraide it is too manifeste whylest ambitiouslie séeking the name and power to rule they take smal care of doing their duetiful seruice that beloÌ„geth thervnto In this clause is contained a sauing vnto the prince of all amercements other things that shal growe due vnto hir by reason of their procéedings therevpon of which I will speake somewhat hereafter in place conuement The Shirife is saide to haue bene charged aforehand to be attendant in the Returne of Iuries before them in these words Mandauimus enim Vicecomiti c. And the Custos Rotulorum for it is meant of him althoughe he be not so there called is charged to bring the Records Processe of the Peace and in due sorte to consider and directe the same by these words Et vos praefatae Thom. Wootton c. Of whose office and authoritie somewhat shall be sayd also in particular in the second Booke of this treatise Of the two Othes ministred to the Iustices of the Peace CHAP. X. SVch as occupie Iudicial places ought to take héede what they doe knowing as Iehosaphat saide that they exercise not the iudgements of Men onelie but of God himselfe whose power as they doe participate The causes why Iustices be sworne So he also is present on the Bench with them And therefore it hath béene alwayes the policie of Christian lawes to appoint méete formes of Religious attestations or Othes for such Officers to take meaning thereby not onlie to set God continually before their eyes whome by suche Othe they take to witnesse of their promise call for reuege of their falshood but also to threate them as it were with temporall paines prouided against corrupt dealings withall to strengthen their minds and arme their courages againste the force of humaine affections whiche otherwise might allure draw them out of the way Vpon this ground the Statute 13. R. 2. Stat. 1. ca. 7. which willed that Iustices of the Peace should be made of new in all the Counties of England did there withall take order that they should be sworne to keepe and put in execution all the Statues touching their office whiche albeit that it be the firste Othe that I find to haue béene ministred to Iustices of the Peace yet I think they were not vnsworne before nor at any time after as may be collected vppon the bookes 21. E. 4.67 12. E. 4.18 and I beléeue also that that manner of Othe was deuised but for that time onelie and continued not long in that forme as being of it selfe very generall and hard to be obserued And that happily was the cause that it appeareth to be changed to that forme which M. Fitzh in his Booke hath left vs and which with the alteration of a fewe wordes onelie is yet at this day put in vse For vpon the renuing of the Commission of the Peace which nowe a days hapneth as often as any person is newly broughte into the same there commeth of course a Writ of Dedimus potestatem directed out of the Chauncerie to some auntient Iustice of the Peace to take the Othe of him whose name is newly inserted and to certifie the same into that Courte at suche daye as the Writ commaundeth This Writ is at this daye accompanyed wyth twoo Scedules whereof the one containeth the Othe of the Office of a Iustice of the Peace in his forme Ye shall sweare that as Iustice of the peace in the Countie of Kent in all Articles in the Queenes Commission to you directed yee shal doe egall right to the poore and to the rich after your cunning wit and power and after the lawes and customes of the Realme and Statutes thereof made And yee shall not be counsell wyth anie quarrell hanging before you And that ye hold your Sessions after the forme of Statutes thereof made And the issues fines amercements that shal happen to be made and al forfaitures which shal fal before you ye shal cause to be entred without anie coÌ„cealement or embeaseling and truely sende them to the Queenes Escheaquer Surcease in the printed Booke Yee shal not Let for gift or other cause but wel and truly yee shal do your office of Iustice of the Peace in that behalfe and that you take nothing for your Office of Iustice of the Peace to bee done but of the Queene and fees accustomed and costes limited by the Statute and yee shal not direct nor cause to bee direted anie warrante by you to bee made to the parties but yee shall direct them to the Bayliffes of the said Countie or other the Queenes officers or ministers or other indifferent persons to do execution thereof So help you God and by the contents of this Booke And his Saincts in the Printed Booke The variance betwéene this and that elder forme standeth as you may sée by the Margent in thrée points whereof twaine be of no waight at all but the third did néed amendment For right godlie and wel did those 32. persons that were put in truste to pen Ecclesiasticall lawes purpose to make this lawe amongst others Legitimun autem iuramentum ys verbis nullis alys suscipi volumus Ita me Deus per Dominum nostrum Iesum Christum adiuâ—et This Othe of the Office consisteth of sire Articles which for memories sake I haue séene expressed in these 6. Verses folowing Do equall right to rich poore as wit lawe extends Giue none aduise in anie cause that you before depends your sessions hold as statutes bid The forfeites that befall See entred well and then estreate them to the Cheaquer all Receiue no fee but that is giue by Queene good use or right Ne send precept to partie selfe but to indifferent wight 1 2 3 4 5 6 The other Scedule comprehendeth that forme of Othe which after the seconde abolishment of the vsurped authoritie of the Romish Pharao by the ioyous entrie of our gratious Queene Elizabeth was in the first Parliament of hir raigne ca. 1 appointed for Iustices of
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
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
wollen cloth haue Died any browne Blewes Pewks Tawneis or Violets that were not perfectly boyled greined or maddered vppon the Woade and shot wyth good Corke or Orchall sufficiently If anie person haue Died anie Wooll for cloth called Kuffets Marbles Grayes Bayes or suche like or for Hats or Caps vnlesse it were perfectly woaded boiled and madered Or haue Died with Brazell to the inteÌ„t to make a false colour in any such Cloth or Wooll Or haue put any Flore Chalke Starch or other deceiuable thing vpon anie Cloth except certaine Deuonshire and Cornwall straights 7. E. 6. cap. 9 Or haue occupied any yron Cardes or Picardes in rowing of any wollen cloth Or haue sold any cloth by any lesse measure thaÌ„ after the true content thereof by the yarde and inch Or haue put to sale in this realm any Cloth being pressed to be occupied in England Wales or Ireland 3. E. 6. cap. 2. If anie Duerséets of Cloth appointed by the Iustices of Peace for this yere haue refused to be Duerféers or haue not within their charge made due search thereof once euery quarter And if any person haue interrupted them to make such search 3. E. 6. ca. 2. If any Kentish broadcloth except course cloth onelie not excéeding sire pound price haue been made that conteined not in length betwéene 28. and 30. yardes being wet and in breadth seauen quarters within the lists and in waight 76. pounde being well scoured thicked milled and fully dryed 5. E. 6. cap. 6. 4. 5. Phil. Mar. cap. 5. And so changing it after their Rates for other countries as by those Statutes appeareth For regrating of Woolles by Halifaxe men See 2. 3. phil Mar. cap. 13. If any person haue vsed or caused to bée vsed any racking beating or casting of any deceitfull liquor or other meane with any kind of linnen cloth whereby the same became deceitfull or the worse for the good vse thereof 1. Elizab. cap. 13. Linnen cloth If any owner of anye Scite or Precinct and demeasnes of any late diffolued religious house that was in yearely value vnder two hundred pound doe not kéepe an honest and continuall housholde there vppon and doe not occupie so muche of the saide demeasnes in tillage as was occupied by the space of twentie yeares before the seaucn and twentith yeare of King Henry the eight 5. Elizab. ca. 2 14. Elizab. cap. 11. Scites of religious houses If any person hauing in his handes firtie acres of arable and pasture togither or of the one sort alone apt for tillage haue not wythin thys yeare tilled and sowell seasonably wythout fraude one Acre of lande wyth Flare séede or Hemp séede or bothe Flaxe and Hemp. But ground in a Parke for Deere and Wood lande Groue Meadow Fell Fenne Saltmarsh Heath Common groundes vanpte for â—llage groundes not tilled wythin fiftiey eares before this Statute and groundes plowed onely for clensing of it shall not be accompted in these sixtic Acres 24. H. 8. cap. 4 5. Elizab. cap. 5. If any persoÌ„ haue at one time kept aboue the number of 2000. sheepe of all sortes against the purport of the Statute 25. H. 8. ca. 13. 2000. Sheep If any owner Officer or kuler of any Faire or Market haue not appointed one certaine open place there for the sale of horses geldings mares and coltes and one sufficient person to take toll and kéepe the sayde place And if any such Toll gatherer or hys Deputie haue taken anye more then one peny toll for one contracte or for entring the names of the parties and that in the same place onely and betwéene ten of the clocke in the morning and Sun setting 2. 3. Phil. Mar. cap. 7. Faire and Market for horses If any Inholder dwelling in any Citie Towne Corporate or Market Towne wherein is anye common Baker that hath bée apprentice there seauen years have within his owne house made anye horsebreade or dwelling in any other thorow-faire haue made it insufficiently and not of due assise 13. R. 2. cap. 8 32. H. 8. cap. 41. Inholder Horsebread If any Inholder have taken any thing for litter or haue taken aboue one halfepenie in a bushell of Dates ouer the common price in the market Hay and Oates 13. R. 2. cap. 8 4. H. 4. ca. 25. If any person have béene reteined into seruice to worke for any lesse time than a whole yeare in any the artes of a Clothier wollen Weauer Tucker Fuiler Clothe-worker Sherman Dier Hosier Tayler Shoomaker Tanner Pewterer Baker Brewer Glouer Cutler Smith Ferrour Curriour Sadler Spuâ—rier Turner Capper Hattemaker Feltmaker Bowier Fletcher Arrowhead maker Butcher Cooke or Miller Seruantsnot retainable for lesse thaÌ„ one yeare And if any person being vnmarried or vnder 30. years of age and married and being compellable to serue in any of those Artes haue refused to serue Refusing to serue If any person being betwene the age of twelve yeares and threscore and being compellable to serue in husbandry haue refused to serue in husbandrie after request thereof made by any person kéeping husbandrie And if person haue given any wages contrarie to the rates of wages of seruants and labourers appointed and proclaymed Greater wages If any person retained in Husbandrie or any the saide Artes haue after his reteinour expired departed out of one limitte towne or parishe into an other wythout a Testimonial And if anye person haue accepted into hys seruice anye so departing without shewing suche Testimoniall Testimonial If any person haue put away his seruant before the ende of his terme without reasonable and allowed cause before a Iustice of the Peace or at the ende of his terme without a quarters warning before gyuen And if any seruant haue departed wythout such cause before the ende of the terme or at the ende thereof wythout such warning giuen before two lawfull witnesses Put away or depart away If any Artificer or labourer hyred by the daye or wéeke haue not continued at hys worke so manye houres in the day as he ought Or taking anye worke by the greate haue vnlawfully departed before the finishing thereof Vndertake worke and not finish it If any seruant workeman or labourer haue wilfully and malitiosly made any assault or other person hauing the charge of suche workers or worke Assault Master or dame If any Constable or head Officer haue not upon compiaint put into the stocks two dayes and one night every Artificer or person néete to labour that haue refused to labour in Day tyme or Daruest for the getting or carrying of Corne Day or Graine béeing thereto appointed by a Iustice of Peace or suche Constable or heud Officer Labour in Hay time Harust If any person haue taken any Apprentire against the order of the Law and if any person haue therein as an apprentice seauen yeares Apprentices 5. Elizab. cap. 4. 5.
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
EIRENARCHA or of The Office of the Iustices of Peace in two Bookes Gathered 1579. and now reuised and firste published in the. 24. yeare of the peaceable reigne of our gratious Queene ELIZABETH By WILLIAM LAMBARD of Lincolnes Inne Gent. Hae tibi artes erunt pacique imponere morem AT LONDON Imprinted by Ra Newbery and H. Bynneman by the ass of Ri. Tot. Chr. Bar. ANNO. DOM 1581. TO THE RIGHT HONORABLE SYR Thomas Bromley Knight Lord Chauncelour of England AFTER suche tyme as it liked you Right honorable to commaunde my name to be put into the Commission of the Peace for Kent I thought it my part aswel for sauing you my speciall good L. and fauourer blamelesse in the Choice as also for mine owne Information and discharge in the Seruice it selfe to looke diligently into that portion of our Lawe which concerneth the office of the Peace wherewith I had before that time very litle or none acquaintance And therefore in greedie appetite I beganne first with M. Fitzherbertes treatise of the Iusticers of Peace then went I to an other auncient booke of the same Argument but of an Author unknowen to me and thirdly I came to M. Marrowes reading All which when I had perused I seemed to my selfe to haue taken same such taste of the thing that I sought as did rather incense than satisfie my thirste and desire Wherefore seeking after a full meale and calling to minds that it was truely sayd Gratiùs ex ipso fonte bibuntur aquae I betooke me to the olde and newe bookes of the Common Lawes and to the volumes of the Actes and Statutes and mistrusting the slippâ—rnesse of mine owne msâ—â—eâ—ie I did vapon a seconde reading plot the master with my penne and made as it were a Module thereof in a small booke wherein I brought togeather stuffe of â—â—h kinde sorted in beapâ—◠〈◊〉 lâ—â—ed veadie to be wrought and framed Howbeit I did not then purpose te haue waded any deeper in this foorde as fearing that the water was higher than my head and thinking it sufficient for mine owne priâ—â—â—â— vse 〈◊〉 haue some seruiceable furniture ready at hand though otherwise neither much orderly digested nor painfully penned But when as through dayly occasion to vse that booke abroad I had emparted it with other men I was perswaded by sundrie godly wife and not vntegrned gentlemen my friendes that the more parte of the Iustices of the Peace at this day had neede of some helpe in writing for their better conduict in that office that it might increase the knowledge of many of them and consequntly doe a common good to haue the booke made common by Impression Then againe I tooke the booke into my bandes and ripping stitche by stitche my former doing I enlarged the work graâ—â—ing vnto it more breathe rooâ—â— of speache I planted Precedentes here and there in it I gaue it some light of Order Methode and added withall some delight of historie and Recorde Finally framing it altogether to commune conceipt and practise I prouided as I might both for profite and pleasure and fraught and laded it with the bact ware of counsell and aduice that I had of myne owne or could borrowe of my friendes determining so to send it from the Cape of good Hope and to aduenture it to the Seas and windes of the Iudgements and reaportes of other men The same now my singular good L. though neither aunswearable to your woorthinesse nor to myne owne wish I am bold to present vnto you being there vnto carried by these respectes First trusting that you which doe goe before them all in the perfect knowledge of our Lawe that have gone before you in that honourable place which you now holde will accoding to the Rule of Lawe in your owne handes rectifie the Commission of the Peace and some other crookednesse whereof this booke shall bring complaint before you Secondly assuring my selfe that if you shall not condemne or Cancell it but shall allow it and seale as it were the Writte De pace for it then both I shall finde the better comfort and defence and the books it selfe shall haue the more curâ—â—ous entertainment and freer passage with other men Lastly wishing that it may remaine a perpetuall Monument of the Sacrifice of mine owne thankefulnesse for those your rare and long continued fauours from time to time euen vndeseruedly bestowed and cast vpon me Vouchsafe therefore I pray you my verie good L. this slender gift as the hand and from the heart of him who if he had equall mixture of might to his minde would giue you that which should be proportionable to the setting foorth of your Honour and the acquitall of his owne dutie and deuation towardes you The Lord of Lordes blesse you for his Christes sake with the spirit of godly and couragious wisedom and make you a long and happie Counsailour of this Estate to the furtherence of his holy Gospell the weale of the English nation the true seruice of the Queenes Maiestie and your owne Honourable and long lasting memorie Amen From Lincolnes Inne this 27. day of Ianurrie 1581. Your H. most humble and readie to be commaunded in the Lord WILLIAM LAMBARD A Table of the Contents The Contents of the Chapiters in the first Booke  The Proheme Pag. 1 CAP. 1. What Iustices of the Peace bee and why called Iustices 3 2 Of the signification of the word Peace 4 3 Of such as had the Conseruation of the Peace at the commune lawe 11 4 Of the first ordayning of the Wardens and Iustices of the Peace by Statute law 20 5 By whose auctoritie and by what meanes Iustices of the Peace bee appointed and of what fortes they be pag. 26 6 What manner of men the Commissioners of the Peace ought to bee 32 7 How many Commissioners of the Peace there ought to bee in eache Countie 36 8 The forme of the Commission of the Peace 39 9 Certaine obseruations coÌ„cerning the matter forme of the Commission of the Peace 46 10 Of the two oathes ministred to the Iustices of the Peace 57 11 Of the power absolute and limited that the Iustices of the Peace haue 63 12 Of the Iurisdiction and Coertion belonging to the Iustices of Peace 65 13 That Iustices of the Peace bee Iudges of Record 69 14 How long time the auctoritie of the Commissioners of the Peace is to endure and by what meanes it may bee suspended or determined 74 15 That all the auctoritie of the Iustices of the Peace it exercised either out of the Sessions or at or by reason of the Sessions of the Peace 80 16 Of Suertie of the Peace and the Good abearing and of sundrie things incident vnto the same what one Iustice of Peace out of the Sessions may do therein 82 17 Of the Breache of the Peace without a Multitude against the person and howe it may be stayed or punished by one Iustice of Peace out of the
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
Peace amongest others to take before that they should exercise the office and it hath these words I William Lambarde do vtterly testifie and decleare in my conscience that the Queenes Highnesse is the onely superame Gouernour of this Realme and of all other hir Highnesse Dominions and Countries as well in all spirituall and ecclesiasticall things or cause as temporall and that no forraine Prince Person Prelate State or Potentate hath or ought to haue any iurisdictionm power superioritie preheminence or authoritie ecclesiasticall or spirituall within this realme The Othe of Supremacie And therefore I do vtterly renounce and forsake al forraine iurisdiction powers superiorities and authorities and doe promise that from hencefoorth I shall beare faith and true alleageaunce to the Queenes Highnesse hir heires and lawfull successors and to my power shal assist and defende all iurisdiction priuiledge preheminence and authoritie graunted or belonging to the Queenes Highnesse hir heires and successors and vnited and annexed to the Imperiall Crowne of the Realme So help me God c. There hath bene care taken once or twice in our memorie to exact this latter Othe of all the Iustices of Peace throughout the Realme where of some good hath ensued But yet many a Iustice there is that by indirect practise neuer tooke neyther thys nor the former whereof what harmes doe and may grow I leaue to wiser and higher men to be considered Of the power absolute and limited that the Iustices of the Peace haue CHAP. XI THe power of the Iustice of Peace is in some cases Limited in other some cases Absolute Discretion By which latter word I do not meane absolute Simply but after a Manner For they may neither hang a man for a gréeuous Trespas nor fine him for a Felonie and therefore this absolute authoritie is to our Law better knowen by the name of Discretion because the Iustice of Peace may exercise sometimes Legis actionem and sometimes Iudicis officium or which is all one Iudicium Decretum as the case shall offer and the law suffer him It is a good Counsell which Aristotle giueth in his Rhetorikes ad Theodectem that in the making of lawes Quoad eius fieri possit quam plurima legibus ipsis definiantur quà m paucissimaverò Iudicis arbitrio relinquantur and the Commission of the Peace following that aduise doth leaue little or nothing to the discreation of the Iustices of the Peace but bindeth them faste with the chaines of the Lawes customes ordinances and Statutes Howbeit our latter lawes of Parliament although they also endeuour for the most parte to hold the same course yet forasmuche as euerie considerable circumstance can not be foreséene at the time of the making of the Lawe they doe many times leaue to be supplied by the discretion of the Executioner of the Lawe that thing which was not conueniently comprehended before hand by the wisedom of the maker of the Law And therefore although Discretion be necessary in the execution of euery law be it neuer so certainely set forth and bounded in it selfe yet in the mouth language of our Lawe that onelie and properly is said to be done by Discretion which is not specially limited with all the circumstances but is indifferently referred to the consideration of the Iustice that is putte in trust with it And truely it is to be wished that Iustices of the Peace would not by colour of this reference to their Discretion in some fewe cases arrogate vnto themselues authoritie to vse their discretion to play as it were the Chauncelours in euery cause that commeth before them For no way better shall the Discretion of a Iustice of the Peace appeare thā if he remembring that he is Lex loquens do containe himselfe within the lists of law and being soberly wise do not vse his owne Discretion but onely where both the law permitteth and the present case requireth it Right well saide Cicero Est sapientis Iudicis cogttare tantum sibi esse permissum quantum sit commissum ac creditum Of the Iurisdiction and Coertion belonging to the Iustices of Peace CHAP. XII AS Iustice can not bée administred without both a Declaration of the Law and an Execution of the same So to the ende that our Iustices of the Peace may be able to deliuer Iustice they are accomplished with double power the one of Iurisdiction and the other of Coertion the which other men doe call Vocationem Praehensionem that is to say Authoritie not onelie to conuent the persons but also after the cause heard and adiudged to constraine them to obey their order and decrée This Iurisdiction of theirs is exercised for the most part if not althogither aboute those causes which be in a maner the same that the Ciuil Lawyers do call Iudicia publica partely because the Prince who representeth the head of the common wealth hath interest in the most of them as wel as that priuate perso which is immediatly offended and partely because they are not commonly tryed by suche Action as other Ciuil and Priuate causes are but rather by Criminall and Publique Accusation Information or Presentment Iurisdictió And herein the Iustice of the Peace is by the one halfe superiour to the antient Conseruatour of the Peace who had onlie Coertion in a fewe cases and no Iurisdiction in any case that I remember But if the aucthoritie of these Iustices should cease when the fault is told hearde and adiudged then should they be no better than halfe Iustices and therefore the Law hath also Cohertion Execution or punishment as I said into their hands least otherwise their iudgements should be deluded for want of power to bring the to effect This Punishment then is an orderly execution of a lawfull iudgement layed vpon an offendour by the minister of the Lawe and it is done for foure causes first for the amendment of the offendor Cohertior or punishement for what causes it is appointed Secondly for examples sake that others may thereby bée kept from offeding Thirdly for the maintainance of the authoritie and credite of the person that is offended these thrée reasons be common to all such punishments Seneca rehearseth the fourth finall cause that is to say that wicked men being take away the good may liue in better securitie and this pertaineth not to all but to Capitall punishments onelie as euerie man may at the first hearing vnderstande The Romanes vsed specially eight sortes of chastisements knowen to them by these names Damnum Vincula Verbera Talio Ignominia Exilium Seruitus Mors that is losse of goods imprisonment stripes retaliation reproch banishment seruitude death All which our lawe before the Conquest was wont to inflict albeit that now Seruitude Retaliation and Banishment be out of vse The punishments that be commonly put in execution at this day and wherewith the Iustices of the Peace haue to do may be dinided into Corporal Pecuniarie
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
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
Iudge Fineux saith in that case of Sir Thomas Greene the Statute which I take to bée that of â—4 of E. 3. ca. 1. was giucn as a hastie remedie for to preuent a mischiefe being imminent and before the eye therfore the law shall largelie construe the auctoritie of a Iustice of Peace in that behalfe So that he shall neither néede to make anie Precept in wrting nor to expecte the comming of his Companions nor to bée present in his own person but may vse al reasonable meanes for preuention and staye of the euil And yet the ordinary power of punishing Routes Riots resteth not in his hand but rather belongeth to two Iustices of the Peace as it shal hereafter appeare In the meane time I will adioine somewhat out of the Statutes of our owne age the whiche séeing further into the perilles that ensue of these vnlawful conuentions haue also prouided further as wel in pollicie to preuente them as in seueritie to punish them The statutes 1. Mar. Parl. 1. ca. 12 1. El. ca. 17. do make thrée degrées of Riottous Seditious Assemblies in certaine special cases the first consisting of the commune number of thrée petsons and being vnder the nuÌ„ber of twelue the seconde of twelue persons or more and the thirde of fortie persons vpward Al which are to bée punished diuersly according to the number intent acte obstinacie of the parties assembled wherein there is some imitation of an auntient law that King Ina made against théeues whose degrées in offence the seuered punished by their nuÌ„ber also saying thus þeofar we hataþ oððe seofan menn fram seofan hloþ oþ fif þrittig and syþþan here that is Théeues we call them vntill the number of seauen mem from seuen a Troupe vntil 35 and an Armie aboue that number Rebellious and vnlaweful assemblies But I will procéede One Iustice of the Peace therfore maye by vertue of these Statutes make proclamation in the Queenes name that the persons assebled in offence of these lawes shal seuer themselues and departe to their dwellings peaceably and withal may at his difcreation assemble hir Maiesties subiectes to take the and may also take them indéede if they disobey shal bée vnpunished for the hurting mayming or killing of any of them if they make resistance Proclamation He also is to take the declaratioÌ„ of any person that being moued to any such assembly wil within 24. houres after reueale the same vnto him Here I must stay and for a time goe no further with these asseblies bicause the power of one Iustice of the Peace fayleth mee ertendeth no further in them the rest shal bée disclosed when order shall lead vs to intreate of the aurtoritie of two Iustices VVhat other things one Iustice of the Peace alone may do out of the Sessions by vertue of Statutes mentioned in the Commission CAP. XX. BEFDKE that I shall descende to shewe suche further partes of power as bée giuen to one Iustice of the Peace by latter Statutes it shall not bée amisse to take in my waye that remnaunte of hys aucthoritye whyche lyeth in the firste Assignauimus of the Commission and hath not bene yet fully applyed to the practise The whole consisteth of such members as I haue alredy shewed namely of the Statute made at Winchester 13. E. 1. of the Statute made at Northampton 2. E. 3. ca. 3. the Statute made at Westminster 5. E. 3. ca. 14. the Statute mentioned to be made at Cambridge but mistaken for Canterburie 12. R. 2. the Statutes 1. H. 4. ca. 7 2. H. 4. ca. 21 of Liueries and the Statute 3. H. 5. ca. 6. 7. of counterfeting and other falsifying of money Of this laste Statute as also of that at Northampton I haue heretofore saide what I thought Concerning Winchester Westminster I say shortly that by the forme of the Commission as it is one Iustice of the Peace may put the articles of them in execution First by commaunding fresh sute hue and crie and search to be made by the Shirffes and Baylifes others after thefts and robberies watches to be kept for arresting of suspected persons and night-walkers and highwayes to be enlarged Then by séeing that two Constables be in each Hundred and Franchise by forbidding Fairs and Markets to be holde in Church yards by compelling such as be betwéene the age of fiftéene yeares and thréescore to be sworne to the Peace for that also is in the Articles vppon the Statute of Winton lastly by charging the Constables to arrest such as shal be suspected to be Drawlatches Wastours or Robertsmen that is to say either myching or mightie théeues for the meaning muste remaine howsoeuer the word be gone out of vse The Statute of Canterburie made chiefly for Artisicers and Labourers and partly for Victualers is repealed for the first and runneth for the last in a generalitie And as for that law those of H. the 4. concerning Liueries I sée not what one Iustice of the Peace may well do towardes the execution of them further than by commaunding the to be obserued For the forfeiture groweth either by Attainder vppon enquirie or by Record of the Iustices in their presence as the Statutes themselues do appoint And these bothe doe require two Iustices as the very wordes thereof and of the second Assignammus in their Commission being in the plurall number doe plainely purporte For I do not thinke that any other maner of execution of these lawes by one Iustice of the Peace ought to bée gathered by any general words of the first Assignauimus I know that M. Fitz. in his Nat. Br. Fol. 82. saith that albeit a Iustice of the Peace hath none expresse auctoritie within his Commission to take a Recognusaunce of the Peace yet of Congruence it followeth that he may take it because he hathe auctoritie in plaine wordes to cause the Peace to bee kept and to compell men to finde Suertie for the same And it is a Rule of Lawe Concesso vno aliquo etiam id concedi videtur sine quo prius concessum habers nequit But howe farre these things may bée drawen I will not determine remembring that also is an other Kule In generali concessione non ventunt ca quoe quis non esset verisimiliter in specie concessurus But as I haue saide heretofore A newe reforming of the present forme of the Commission woulde easily remoue from vs all these doubts This I do not like at al that one Iustice of the Peace shoulde take vppon him to binde an offendor agaynste anie Penall Lawe being wythin the power of Iustices of the Peace but yet neyther comprehended in their Commission nor committed to the charge of anye one of them to appeare at the Sessions to aunsmeare to his faulte For although I haue séene sundrye olde Precedents of Attachments to be made from one Iustice of the Peace agaynste Labourers to be before the Iustices at
generall Sessions of Peace there 1. H. 7. Hunting cap. 7. Euerie Iustice of the Peace maye as well wythin Liberties as without enter into any common house or place where anye playing at the Bowles Coytes Cloth Cayles halfe-bowles Lennis Dice Cardes Lables or at anye other game prohibited by anye former Statute of whych sorte be Footeball and casting of the stone by 12. R. 2. ca. 10. or playing at any vnlawfull game alreadie innented or hereafter to be inuented shall be suspected to be vsed against this Statute and may arrest as well the kéepers of suche places as the players there and imprison them vntill thosc kéepers finde Suerties to the Duéeees vse to be bounde by a Recognusaunce or otherwise no longer to occupie anye suche play or place and that the persons founde there playing bée in like forte bounde by themselues or wyth Suerties at the discreation of the taker no more to playe or haunte at or to anie of the sayde places or at any of the saide games Vnlawfull games And euerie Iustice of the Peace finding or knowing anye person not exrepted by this Statute to vse anye vnlawfull game contrarie to thys Acte maye committe hym to warde there to remayne wythout bayle or mainprise vntill he become bounde by Obligation to the Quéenes vse in a summe to be thought reasonable to that Iustice that he shall not from thenceforth vse suche vnlawfull games 33. H. 8 cap. 9. Anye one Iustice of Peace by the large wordes of the Statute maye enquire heare and determine by hys discretion as well by examination as otherwise the offences committed in Tilemaking and assesse the Fine therein limited Tyle And maye call before hym at anye time or place suche as haue beste knowledge in Tilemaking and appoint them Searchers of the sayde defaultes 17. Edward 4. cap. 4. But learne whether it bée so to bée taken or no. If anye Souldiour seruing the Duéene in hir Warres doe sell gyue away wilfully purloine erchaunge alter or put away any Horsse Gelding Mare or Harnesse wherewith be shal be set forth or which being taken from any other souldiour shall be appointed vnto him and doe escape the punishment which the Lieutenant high Admirall the Kings Deputie the Viccadmirall Wardein Captaine their Deputies in their absence may laye vppon him by this Staute then vppon complaint and due proofe of the offence to bée made by the owner hys executors or Administrators to any Iustice of Peace where suche offendour shall bée founde he shall be by him committed to Warde there to remayne wythout baile or mainprise till he shall haue satisfied the owner his executours or Administrators of such Horse Gelding Mare or Harnesse so sold gyuen awaye c. vnlesse hée bring with hym before the same Iustice sufficient testitmonie from the sayde Lieutenaunt or anye of the persons aboue named in writing vnder their Seale testifying that the saide Horsse or Harnesse was loste in the Quéenes seruice againste the wyll of that Souldiour or was taken by anye of them from hym for anye reasonable respecte and appointed to some other to serue wythall 2. and 3. Edwardi 6. cap. 2. Souldiours selling horse or harnesse If anye person to whome anye Agnus Dei Crosse Picture Beade or such superstitious thing from the Sea of Rome or the auctoritie thereof shall bée offered or deliuered doe disclose the name and dwelling or place of resorte of suche offerer or deliueredr to any Iustice of Peace of that Shire where hée to whome suche offer or deliuerie is shall bée restant then that Iustice muste wythin fourtéene dayes next after declare the same to some one of the Quéenes priuie Counsell Agnees Der. 13. Elizab. cap. 3. Euerye Iustice of Peare maye wythin one Moneth after the speaking or reporting committe to Warde anye person beyng vehemently suspected of saying or reporting of any slaunderous news or thles agaynste the Quéenes Maiestie vnlesse he do put in Suerties to appeare at the nexte Quarter Sessions or Gaole deliuerie there to remayne till he shall finde Suerties for surhe hys apparance Slaunderous newes And maye also wythin one Moneth after suche speaking or reporting rereyue the accusation thereof and putte the same and the names of the Witnesses in writing and certifie it at the next Quarter Sessions or Gaole deliuerie 23. Elizab. ca. 2. If anye offendor confrarie to the Statute prouided againste the Disturbers of anye Preacher shall bée arrested and brought before a Iustice of the Peace then be vppon due accusation there vpon hadde by the sayde arrestor or othet person shall foorthwyth committe the partie so taken to safe custodie by his discretion Disturbing of Preachers And wythin fire dayes nexte after the accusation he and one other Iustice of Peace sall c. 1. Mar. Parlia 1. ca. 3. But enquire if all thys Statute bée not repealed by 1. Elizab. cap. 2. in generall worbes at the latter enbe thereof Euerie Iustice of the Peace may within one Moneth after the arriuall seaze all the gwdes of anye outlandishe persons calling themselues Egiptians that shall come into thys Kealme and maye also kéepe the one moitie thereof to hys owne bse makyng accompte to the Quéene in the Escheaquer for the other moifie Egiptians And euerie person that can prooue by two credible witnesses before him that so seazeth that any of those goodes were craftily or feloniously taken from him shall be incontinently restored thereto before the partie that so seazed them vppon paine of the double valewe thereof to be forseifed to such proouer 22. H. 8. cap. 10. But note that after the Moneth the offence is made Felonie and then it séemeth the Quéene is to haue the goodes wholly 1. 2. Phil. Mar. ca. 4. If any one Iustice of the Peace do ioyne with the Clearke of the Peace in taking the Inroilment of an Indenture of bargaine and sale of lands fenements or heredifaments lying in that Countie where he is Iultice it is sufficient as it séemeth by the wordes of the Statute Inrollmer 27. H. 8. cap. 16. Euery Iustice of Peace maye eramine search by his discrefion such as doe seel or set soorth so be solde any Candels and other workes of Ware at higher price than after the rate of foure pence the pounde ouer the common price of plaine Ware betwéen Merchant Merchant and may also punish them by forfeiture of the worke fette foorth to sale and of the balewe of that whiche is solde and by Fine to the King Warke of Waxe 11. H. 6. ca. 12. as it séemeth by the large words of the Statute Anye one Iustice of Peace is warranted to fette on the Pillorie in the nexte Market Towne to the place of offence any person that hath broken the Assise of Fewell and is conuicted thereof and not able to pay the forfeiture there to be at eleauen of the clocke vppon the Market daye wyth a Billet or Fagot
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
nexte General Gaole deliuerie to glu◠euidence there against the partie Examinatiō of Felons to be committed 2. 3. Ph. Mar. ca. 10. This bond spoken of in this Statute and in some such like séemeth to bée met of a Recognusāce to bée acknowleged to the Queenes vse with Condition for the person maunce of that for which the Statute appointeth it to be taken For as before hath bene saide euen as in the case of Suertie of the Peace Good Abearing The forme of the bond mentioned in this last Statute The Iustice of the Peace taketh vsually a Recognusance and is well warranted so to doe being made a Iudge of Recorde as touching matters of the Peace though he hath no ful words for him neither in any Statute nor in his Commission So being auctorified by this Statute to deale in this matter he may be wel said to hauetherin inclosed by a very good Congruence power also to Recorde the acknowledging of a sum of money to bée forfeited to the Queene vpon not performing the Condition of the same The partie therfore that informeth against the Prisoner may be thus bound in a single Recognusance MEmorandum quod 3. die Septemb anno regni Dominae nostrae Elizabe dei gratia c. 23. D. E. de Brasted in comitatu praedicto Yeoman personaliter coram me Thoma Potter vno Insticiariorū c. adpace c. assignatorum constitutus apud Brasted praedict recognoust se debere dictae Dominae Reginae decem libras bonae legalis monetae Angleae de bonis catallis terris tenementis suis fieri leuari ad opus dictae Dominae Reginae haeredum successorum suoris sidefecerit in conditione subsequenti Kanc. Th. P. And with such a Condition THe condiciō of this Rccognusanceis such that wheras one A. B. late of C. labourer was this present day brought before the said Iustice by the aboue bounde D. E. and was by him charged with the felonious taking of twenty sheepe of him the saide D. and therevppon sent by the saide Iustice to the Qaeenes Maiesties Gaole If therefore he the saide D. shall and will at the next generall Gaole deliuerie to bee holden in the saide countie prefer or cause to be framed preferred one bill of Inditemente of the saide fellonie against the said A. B. and shal and will then also giue euidence therin cōcerning the same aswell to the Iurors that shall then enquire of the saide fellonie as also to them that shall passe vppon the Triall of the saide A. D. That then c. Or else c. The Mittimus of the Prisoner after his examination may serue thus THomas Potter one of the Iustices c. To the keeper of the Queenes Maiesties Gaole at Maydstone c. greeting I sende herewithal the body of A. B. late of C. Laborer brought before me this present day charged with the felonious taking oftwentie sheepe which also he hath confessed vpon his examination before me And therefore these shall be on the behalfe of our said souereigue Ladie to commaund and charge you and euerie of you that you doe immediately receiue the saide A. B. him safely kepe in your said Gaole vntill that he shall be thece deliuered by due order of hir Maiesties laws Hereof faile you not as you wil answere thervnto at your vttermost perill Yeouen c. There also you may sée if I bée not deceiued the time when the examination of the Felon himselfe was first warranted by our Law For at the Common Lawe his faulte was not to bée wrong out of himself but rather to be proued by others And bycause that some Iustices of Peace do vpon this Statute vse to take the information of the bringers of the suspected persons vpon their Oathes and other some doe receiue it without any Oath at al Let vs sée by the way what is wont to bée saide for either side that a man may the better sée what way to incline and follow Whether the examination ought to be vpon Oath or no. They that take the information or examination for this Statute doth vse both the wordes without any oath do say that if the makers of this Statute had ment that an Oath shuld bée take then wold they haue expressed the same euen as the Statutes for Bankcrupts 54. H. 8. ca. 4 13. Eliz. ca. 7. the Statute of Accomptantes in the Excheaquer 5. R. 2. ca. 13 The Statute of Labourers 2. H. 5. ca. 4 and the Statute of choosing Knights of the Parliament 8. H. 6. ca. 7. haue done in all which Statutes Examination by Oath is giuen in plaine words But they of the other side seeme strongly to defence their exacting of the Oathe by the example of the Iustices of the higher Courtes and doe alleage that whereas the Statute 5. H. 4. ca. 8 ordained without any mention of Oath that in Actions of Debte vpō arrerages of accōptes the Iustices should haue power to examine the Attorneys and others the Iustices of the Bench do vse in that case to minister an Oath to the examinate as it may appeare 19 H. 6. 4 35. H. 6. 5 The like say they hath bene done in olde time vpon the Statute 18. E. that giueth the examination of a woman couert in leuying of a Fine for 25. E. 3. 44. a woman couert partie to a Fine was examined sworne whether she were of ful age or no the like also as they say is done daily in al the examinations of Sūmoners Viewers Shirifs Clearkes and of other officers that doe happen in the Courtes at Westmin And M Brooke Tit. Exami 32 is of opinion the euery examination is vpon oath And the Statute 2. E. 6. cap. 13. that giueth power to the Ordinary to examine a man for his personall tithe excepteth an Oathe as though else he mighte haue done it by exacting one Besides this they adde a reason alleadging the if these informers bee examined vpō Oath then although it should happe them to die before the Prisoner haue his Triall yet their information may bée giue in euidence as a matter of credite whereas otherwise it wold be of little or no weight at all therby offéders shold the eassier escape vnpunished And lastlye say they the precise penning of some particular Statutes is no sufficient warrante to vnderstande all other Statutes accordinglye vnto whiche opinion my selfe coulde bée easily brought to subscribe Thus mighte and woulde I conclude this parte concerning the power of one Iustice sauing onely that this Statute doeth giue me occasion to extende my spéeth a little further For whereas it requireth that the Iustice of Peace should in taking the examination make choise of suche things as bée material to proue the offence it séemeth necessarie that he being perhappes vnskilfull in the lawes of the lande shoulde bée somewhat instructed what actes those bée that doe amount to Manslaughter or Felony
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
or Vndershirife Now many or how fewe they wil haue to assist them in making the arrest But yet after such arrest made the Power of that countie is bounde to goe with the Shirife to the Gaole to aide him thither also whiche is otherwise in the case of a Felon taken by Hue and Cry for there when the Countrie hath deliuered him that Shirife they are discharged Mar. This auctoritie of assembling the power of the countie and of arresting imprisoning Riotters til due execution of law were done vpon them was once before this time namely 2. R. 2. 6. committed to some was by by after resumed in the same yeare of the same kings raigne as a thing too gréuous to be suffered that any man should be imprisoned without an Inditement or Sine leg ali indicio parium suoruns as magna Carta speaketh first had against him But nowe if information bée made to two Iustices of the Peace that certain persons bée riotously assemb ed at Dale and they assisted wyth the Shirife or Vndershirife doe gather people to suppresse it and when they come to the place they finde no Riote there yet are they excusable for the assemblie of Power made by them because they did it vpon information And if they do it without information and find a Riot indéede when they come then shall they not onelie bée ercused for making suche assemblie of their owne heads but may also lawfully procéed to punish the offeÌ„dors Fitz 17. And that punishment muste be grounded either vpon their Recorde of the thing done in their owne presence or else by enquirie vpon the oath of other men And therefore if two Iustices of the Peace assisted with the Shirife or Vndershirife do sée a Riotte they may command the Riottors to be arrested and the parties shall bée so concluded thereby the they shal neuer be receiued to Trauerse or deny it But otherwise it is if they do not sée it themselues 14. H. 7. as M. Fitz. Tit. Iustice del peace 9. reporteth who saith moreouer in his booke of Iustices of the peace Fo. 18. that if they doe so recorde a Riote as though they had séene it the parties shall bée stopped thereby although there were neuer any such Riot by them committed for saith he the view of a Riot is neuer to be trauersed Likewise if the Iustices of Peace bée disturbed by Riotors in coÌ„ming to their Sessions they may without any Inquirie make their record of it Fitz. 17 7. E. 4. 18. Recording of the Riot The Record which these Iustices ought to make must bée by writting and muste remaine with the one of them and the â— and none other Iustices ought to impriâ—â—n the Riotors and to assesse their fine cause the same to be estreated into the Escheaquer If they sée the Riot the Riotors escape yet they ought to Record it but then they cannot arrest the Riotors at another time neither can they make any Processe upon that Record neither ought it to be kept amongst the Records of the Peace but it must be sent into the Kings Bench that processe may be there made vpon it And in the case the parties are not to be admitted to their Trauerse there but must of necessity make fine for it If these Iustices come to sée one Riotte and another Riotte is made in their presere they may Recorde that So if the Iustices the Shirife or Vndershirife be assembled at a place for an Arbitrement or such other pris uate cause and a Riotte appeareth to bée comitted in their presenc they may Recorde it also But if the Riottours séeing them coÌ„ming do flie into another Countie and doe committe a Riotte there these Iustices can not Recorde that Riotte If the Riottours make a Riotte vpon the Iustices and Shirife that do come of putpose to arrest them they may Recorde that And it séemth that they may like wife do so though M Marrow denyedit if they come for an other cause and such a Riotte bée done vpon them If a maÌ„ be slain in the Riot or Maymed or if Rescous bée done to an officer the Record must be Riotosè occidit or Riatosè Maybemauit or Riotosè rescussit not Felonicé nor simply Rescussit for their polver in this case is restrayned to the Riot only therfore the parties may not withstaÌ„doing their Recorde plcade not guilty to the Felonie or Refcous though not to the Riot it self If they make a Recorde of a Riotte doe imprison the partie till he haue made Fine and it do after ward appeare by the Recorde it selfe that the Acte which they recorded is no Riot yet be the parties without remedy and if a man bée bound to the Peace such a Recorde of a Riotte is after wardes made against him and others hée shall not iustifie nor pleade not guiltie in a Scire facias vpon his Recognusance Mar. But althoughe these Iustices Shirife or Vndershirife doe not goe to sée the Riotte yet maye the the Iustices enquire of it within the moneth after it and they all are allo to make Certificat within a moneth after that arcording to the forme of thc Statute And although this Statute saye that the same Iustices shall doe it yet if other Iustices of the peace there doe it that is sufficient Mar. Enquirie of the Riottes and certify So that if two Iustices and the shirife goe to sée a Riotte and other two Iustices make the Enquirie now the one sorte or the other of them with the shirife or Vndershirife may Certifie it If this enquirie bée not made within the moneth yet it is good but then no good Certificat can bée made thereof So if the Enquirie bée within the moneth and the Certificat not made Within a moneth after that is not good Mar. But if the Iustices doe enquire within the moneth and doe giue daye to the lurie to yéeld their Verdite after the moneth that is good ynough If the Enquest find that the Riot was made by ry persons wher in déed it was made by Cpersons it may be creatified so and then the Cretificat not the Inditement shal be take but if they barie only in the day then the Inditement shall be prefered to if the Certificat And if the Inditement be of ry persons the Certificat of ry persons in harnesse the Certificat shal be preferred So if the Inditement speake only of a Riotous assault batterie and mayheming If foure Iustices the shirife and Vndershirife goe to fée a Riote and two of those Iustices and the Shifife joyne in one Certificat and the other two joyne with the vndershirif in an other Certificat that Certificat wherevnto the Shirife is partie shall bée preferred for in hys presence the Vndershirife hathe non autoritie But yet if the Certificat bée otherwile equall then the best shall be taken for the Queene If after the Riote séene and the Enquirie made one of the
person hauing the charge of him or of the worke and they maye appoint any woman being vnmarried of the age of twelue yeares and vnder fortie that is out of seruice and that they shal thinke méete to serue to bée retained by their disrreatiō and may vpon hir refusall commit hir to Warde till she wil be so bound to serue 5. Eh. ca. 4. Seruanes Labourers Any two Iustrces of Peace may licence such as be deliuered out of Gaoles to begge for their fées or to trauel to their Countrie or friendes and may giue licence for fortie days to a Roge that is marked may make testimoniall to a Seruingman that is turned away from his matster or whose maister is deade 14 Eliz. ca. 5 18. Eliz. ca. 3. Begge for sees Roag Seruingme Such two Iustices may certifie at the quarter Setsions that a Citie or Towne Corporate of the Shire being no countie of it self is surcharged with poore togither with the names and number of them that order may bée taken there for their reliefe they maye Licence diseased persōs liuing of almes to trauell to Bathe or to Bucstone for ease of their griefe 14. Eliz. ca. 5. Surcharged with poore Licence to go to Bach or Bucstone By the ouersight of two such Iustices and twelue discréete men of the Hundred and Hundreds adioyning any persō within the Wealde of Kent may make in his own lād a new highway more commodious thā the olde 14. H. 8. ca. 6. Chiungea high way Two such Iustices may once euery yeare appoint Ouerseers for that whole yeare following of cloath to bée made or solde in any towne not being Corporate and maye charge them vpon their oathes to sée execution of some partes of the Statute 3. E. 6. ca. 2. yet in force Appoint Ouerseers of Cloth Within sire dayes after accusation had that any person hath disturbed a Preacher and after his committing to safe custodie by one Iustice of the Peace one other Iustice of that shire muste ioine with him in the eramination of the Offender maye procéede to finde him guiltie by his owne confession or two witnesses and therevpon commit him to the next Gaole for thrée monethes 1. Mar. Parl. 1. ca. 3. quoere of the cotntinuance of this Statute as before Disturbe Preacher Any two Iustices of the Peace of the Countie where any Logwood alias Biockwood shal be founde in whose handes soeuer it bée maye openly burne the same as forfeited 23. El. ca. 9. Logwood VVhat things some twoo Iustices of the Peace may doe out of the Sessions CAP. XXIII IT falleth out many times that the Statute lawes regarding some Iustices aboue others either for the opiniō of the abilitis or learning that they should haue being of the Quorum or for the aduantage and facilitie that they haue to dispatch the affaire by meanes of their nearenesse and dwelling or for the indifferencis that they are likely to vse in the handling of the cause as being neyther of kindred nor alliance to any of the parties doe many times make choise of two Iustices and doe either altogither close the hands of the rest or else do chiefly reposs the trust in these that bée so chosen elected Among those of this kind the Bailement of prisoners worthily craueth the first place whether you respect the weight of the matter that it concerneth or the length of the discourse that it requireth the one tending to desired libertie and the other comprehending great varietie This sauing then or deliuerie of a person out of prison before he hath satisfied the Law is vttered by thrée termes in our Statute lawes that is to saie Bailement Mainprise or manucaption and Repleuine Difference betweene Bailement Mainprise Repleuine And they bée indifferently vsed to erpresse that suertie whiche the prysoner is to finde in such a case For that which Bracton and the statute of W. 1. cap. 15. made 3. E. 1. doe speake of setting at libertie of accessaries by the woordes Replegiari and of letting out by sufficient Pleuin Britton and the Register doe erpresse by finding of Mainprise the Statute 5. E. 3. cap. 8. by letting to Baile that of Marlebrige cap. 27 made 52. H. 3. by tradi in ballium vel Replegtari And the Statute of 1. E. 3. ca. 9. making mention of the writ De Homine Replegiando to bée directed to the garden of a Forest declareth the effect therof to bée that hée should Repleuy the prysoner by good Mainprise The Statute 23. H. 6. ca. 10. that cōmaundeth the Shirife to let out of prison such as he hath arrested vpon Enditements of trespasse vpō reasonable suertie of sufficient persons calleth the same a letting to Baile or Mainprise And lastly 1. 8 c 2. Ph. Mar. c. 13. séemeth to make al the thrée wordes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and of the same significatiō Yet it séemeth that Replevine had his orginall of the word Pledges which denoteth them that vndertake for the partie that hée shall abide to bée iustifyed by Lawe And is vsed in diuerse other cases as in Replevine of Cattell vpon a distresse Replevine of Franchises in a quo Warranto Replevine of Lande vppon a Grande Cape in olde time and Replevijng of the person of a man in case of Villenage and this our case Bailement is deriued from the French tearme Bailler And that also commeth of the Gréek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they both signifiyng to Dehaer into hand For he that is Bailed is taken or kepte out of prison and deliuered as it were into the handes of his friendes as Suerties for him whereof also the worde Manucaptio or Maineprise which is all one giueth good euidence the one mentioning the deliuery the other the receiuing And in this respecte the Booke of the Norman Customes calleth Bailement a liue prison for that the partie is therby become prisoner to his friends that do vndertake for him But Bailmet Mainprise haue bin take to differ in the practse of our common law for he which is properly Bailed by the Iustices of any court hath bene neuerthelesse reputed to be a prisouer ther fril his suerties to be as it wer his speciall gardeins other wise it hath bin thought of him that is let to Mainprise as may be séene by the Booke cases 33. E. 3 36. E. 3. Coron Fitzh 12. 13 7. H. 6. 42 31. H. 6. 10 38. H. 6. 23 9. E. 4. 2 21. H. 7. 33. But at this day how long he shall he adiudged to be aprisoner Erin Custodia Mariscalli Mariscalcioe c. that is Bailed in the Kings Bench the custome of the Courte it selse must rule the matter for it differeth somewhat if I be not deceiued from those opinons Howbeit forasmuch as in our course concerning Iustices of the Peace it is not so néedefull to siay vppon the difference betwéene them as to procéede to disrlose the vse
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
seuerall Volume by it selfe or so marked in M. Rastals Abridgement that every man that will may easisly finde much good by it THE SECONDE BOOKE INTREAting of the Sessions of the Peace and of things incident therevnto THE PROHEME IT may peraduenture séeme that having alreadye stoode long in matters that were of the lesse importance and such as might be dispatched at home sine strepitu I will be now both long and tedious when I beginne with those of greater weight and which dos require the solemne Benche But as at the first I thought it téte to help most where most néde was I meane wherer one or two Iustices pressted with the necessitie of tyme and destitute of the assistaunce of their learned companions were to administer office alone So nowe knowing that at the Sessions of the Peace there be commonly many Iustices in number and amongest them sundrie so well instructed in lawe as in being too busic with that which belongeth thereto I shall as the saying is but sette a candle in the Sunne shine and rather bewray want in my selfe than bring helpe or light vnto them I purpose to runne ouer this residue more swiftly except it be in a fewe places where either the profite or necessitie or both of the matters them selues shall begge licence and pardon for me The description of the Sessions of the Peace CAP. I. AS a man that hath reseaed hurt in his bodie by a stroke wher of he bléedeth freshely will be contented for the present to admitte the helpe of any meane Leche or Surgeon comming next to hande for the staunâ—hing of his blood binding up of the wound and yet would more gladly have vsed the conference of diuers expert Surgeons for doing the same if the danger of the hurt would have graunted the time that will be lost in calling them together So also the common councell of this Realme finding that the bedie of it may be déepely wounded in some one member and perceiuing that some euills must be resisted at the verie first least otherwise they grow past helpe and ware incurable hath many times thought it good to committe to one or to a fewe Iustices of the Peace for that they be readie and at hande the sfopping of the blood as it were and first dressing of the wounde by repressing of force and other outrages that doe soudainly arise and hath yet neuerthelesse when as the tyme and matter will permit politikely established an assemblie and conference of all the Iustice at certaine tymeâ— in full Court and open Session And as it is true thatif the publiqus peace shoulde not be preserued by taking of Suertie before it be broken If suche as doe violate the commune tranquilitis shoulde not be committed to prison when they have broken it If seditious talebearers the sowers of Kebellion shoulde not bée snapt vppe and restreyned If finally riotous assemblies should not be dispersed and forcible inunasions withstoode and remoued the hurte bodie woulde bléede to deathe and too late and in baine woulde it bée to summone a session for remedie So when the bridele is once cast vpon the heade of the offender then and not before is the matter readis for the sitter And great and many are the profittes that woulde followe of these Sessions if they were often kept and duely ordered I will for this tyme call a Session of the Peace An assemblie of any two or moe Iustices of the Peace one of them being of the Quorum at a certaine daye and place within the limittes of their Commission appointed to enquire by a Iuric or otherwise to take knowledge and therevpon to proceedc to heare and determine according to their power of the matters within their Commission and Statutes referred to their charge The description of 2 Session of the peace And this Description excludeth all méetings that are onely for Enquirie in se much as to enquire and not to heare and determine is but a halfe doing and not worthye the name of a Session of the Peace It shutteth out also such assemblics as doe consist of two Iustices of the Peace méeting onely to enquire heare and determine of a Riotte by vertue of fhe Statute 13. H. 4. for that may they doe as also the former though neyther of them bée of the Quorum So that it is but a particular seruice layde vppon two Iustices and the Shirife by this Statute and the Record thereof shall not as I thinke remayne amongest the Recorder Of the Sessions Of the Peace as hath bene sayd already And therfore the assemblie that I meane is a méeting of such Iustices for the execution of their generall auctoritie and albeit that happily some one matter bée the motiue and thiefe cause of their comming togither yet if they deale with that and others witthin their Commission and charge let it on Gods name passe for a Session of the Peace according to my meaning These Sessions of the Peace then bés grounded chiefely vppon the wordes of the thirde Assignauimus in the Commission the which béeing duos vestrum quoruus aliqucm c. doe very necessarily require the presence of one of the Quorum for the wordes of the seconde Assignauimus doe give no power to heare and to determine but onely to make enquirie Which thrée thinges namely to Enquire Heare and Determine doe in effect comprehends whatatsoeuer belongeth to these Sessions So that euerie thinge whereof I shall hereafter intreate will concern eyther the Information of the Iustices by enquirie and other méete meane Dr the Hearing and tryall of the cause Dr the Iudgement and execution which is the determining given and done dponit A partition of that which followeth in this booke And therefore in this pathe God willing will I freade and by it you shall trars me to the ende VVho shall appoint the Sessions of the Peace and how and where CAP. II THe Iustices of the Peace doe at their Sessions take knowledge of causes with in their Iurisdiction eyther by the Dath Of lnquirours or by the presentment or declaration of other men And this Inquirie is firste prepared by the apparance of the Officers and Countrie by the Articles giuen in charge and then performed by the presentment or Jnditement of them that had the charge to make it The vsuall manner of calling the Officers and Countie togither for this feruice is by a Precepte to the Shirife wherein both the disposition of the Iustices is notified for the holding of a Session and feruice and attendaunce of those others is cornmaunded to bée thereat with them which they be wel warranted to directe vnto hun by the laste Assignauimus of theic Commmission and the Mandauimus that followeth thervpon The Forme thereof hath bene like this Thomas Randolphe Thomas Wotton duo Iusticiarierum Do. Reg. ad pacem in Comitaiu Kancia conseruandam necnon ad diuersa felonias transgrossiones alia malefacta in dicto Comitatu perpetrata audienda
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.
shooting therein or haue not for euerie man childe in his house betwéene seauen yeres and seauentéene of age a Bow and two Shaftes and for euerie such being aboue seuentéene yeares a Bowe and foure Shaftes or haue not brought them vppe in Shooting If any man vnder the age of four and twentie yeares haue shotte at standing prickes or being aboue that age haue shot at any mark vnder eleuen score yards with any Prickeshaft or Flight Archerie If the inhabitants of any town haue not made and continued their Buttes as they ought to doe Buttes If any Bowier haue not for euerie Bow that he made of Ewe made also four others Bowes of apt wood to shoote in Or haue not solde his Bowes for all ages at their due prices If any straunger borne not being a Denizein haue vsed to shoote in a long bow without the Quéenes licence or haue conueyed out of hir Maiestries dominions any long Bow or Shaftes without such licence Bowiers 33. H. 8. ca. 9. If any temporal person hauing estate for life in fréeholde landes or tenements to the value of 200. ◠by yeare or vnder and not aboue 400. ◠Armour Or not being other wise charged and hauing fées annuities or copiehold lands for life to the value of 30. ◠or aboue or hauing goods to the value of 10. ◠or vpware haue not and kéepe not in a readinesse suche Horses Geldings Weapon armour and other furniture for the wars as after the proportion of his abilitie he ought by the Statute thereof made to haue and kéepe 4. 5. Phil. Mar. ca. 2. If any temporall person of full age whose wife not being diuorsed nor willingly abseting hir selfe from him doeth weare anye Gown or Peticoate of silke or any Veluet in hir kirtle or in any lyning or part of hir Gowne other thā in Cuffes or Purfles or any Frenchhoode or Bonet or Veluet with any habiliment past or edge of golde pearle or stone or any chaine of golde about hit neck or upon any hir apparell haue not founde and kepte a light Horsse furnished excepte he haue bene otherwise charged by the Statute to finde Horsse or Gelding 33. H. 8. ca. 5 4. 5. Ph. Mar. ca. 2. Horsse for apparell If the Inhabitauntes of anye Parishe Town or Borough haue not or kéepe not such common armour and furniture for the warres as hath bene appointed for them by the Commissioners thereto assigned 4. 5. Phi. Mar. ca. 2. Commune armour If anye person being generally or speciallie commaunded to Muster before anye hauing auctoritie for the same haue without true and reasonable cause absented him self or haue not brought with him in a readinesse his best furniture of array armour for his own person Musters If anye person auctorized to Muster or to leuie men for the Quéenes seruice in warre haue taken anye rewarde for the discharge or sparing of anye person from that seruice or if anye person hauing charge of meanne for warrefare haue not paide to his souldiours their whole wages conduict and cote money or haue for anye gayne licensed anye of them to depart out of the seruice 4. 5. Phil. Mar. ca. 3. Captaines If anye Souldiour seruing the Quéene in hyr warres haue giuen awaye wilfullye purloyned or pur awaye anye Horse Gelding Mare or harnesse wherewyth he was set foorth Souldiours 2. 3. E. 6. ca. 2. 4. 5. Phil. Mar. ca. 3. If any person haue conueyed solde or giuen into any place beyond the Sea out of the Quéenes dominions or to any Scottisheman to be conueyed into Scotlande any Horsse Gelding or Hare aboue tenne shillings price wythout the Queenes licence vnder hyr greate Seale or priuie Signet vnlesse it were to serue the Quéene in hir warres Couney Horsses c. 1 E. 6. ca. 5. If anye person haue putte to féede in anye Forest Chace Moore Marish Heathe Common or waste grounde within this shire where anye Mares are vsed to be kept anye stoned Horsse being aboue two yeres olde and not being fouretéene handefuls highe betwéene the lowest parte of the hoofe and the toppe of the wyther If anye such Forrest or groūds haue not bene yerelye driuen within 15. dayes after Michaelmas by the owners or officers thereto appointed Horsses and Mares for breede 32. H. 8. ca. 13. If watches haue not bene made uppon the Sea Coastes in suche places and wyth suche number of people and in such maner as it was wont to bée Sea Watch. 5. H. 4. ca. 3. The Statutes of leuying the wages of the Kinghtes of the Parliament made 23. H. 6. cap. 11. hath no gret vse Parliament Note also that these Statutes following are to bee openly published at any Sessions of the Peace viz. The Statutes 36. E. 3. cap. 2. 3. 4. shall bee proclaimed by the Iustices of Peace euerie yeare and thereof enformed the people Purueiours 23. H. 6. cap. 2. Alformer Statutes for victualers being in force shal be proclaymed two times yearely in the Sessions of Iustices of the Peace Victualers 23. H. 6. ca. 13. The Acte for Archerie 33. H. 8. ca. 9. muste bee proclaymed at the seuerall Sessions of the Peace Archerie Of the Enditementes and Presentments giuen by the Iurours and of the Matter and forine and receiuing and reiecting of them CAP. V. THe preparatiō to this Enquirie thus made let vs also looke vpon the performaunce of the same The vnderstanding or knowledge which the Iustices of the Peace do take by the trauel of these Enquirours is by the mean of their reaport put in writing and commonlye called an Enditement or Presentment betwéene the which two wordes howsoeuer they be confounded in common spéeche me thinketh that there doeth easilie appeare a certaine difference Presentmet For I take a Presentmente to bée a méere denuntiation of the Iurours themselues or of some other Officer as you shall hereafter heare wythout anye other information and an Enditemente to bée the Verdite of the Iurours grounded vppon the accusation of a thirde person So that a Presentment is but a declaration of the Iurours or Officers without any bill offered before an Enditement is their finding of a Bill of accusation to bée true Enditemet The òne séemeth to come of the Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I accuse the other of the Frenche Presenter to offer vnto a man or to set beefore him But taking them as others doe lette vs consulte wyth M. Marrowe and others that wée may learne of them what things bée requisite to make a good Enditement For the Iustices of Peace ought to haue an eye vpon the Enditementes taken before them and therefore they vse to command that the Enqueste shall take no Billes but suche as the Iustices themselues hane firste perused Howbeit if the Enquest do the contrarie it is good ynoughe so long as their bils doe
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
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
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
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
and Amerciamentes by Estreates first sent vppe to the Eschequer and then deliuered thence to the Shirife which was at that time the common manner of leuying Fines and Amerciamentes therefore it was within two yeares after videlicet 14. R. 2. cap. 11. prouided that the Estreates of the Iustices of Peace should bée indented or doubled and the one parte thereof deliuered by them to the Shirife so leuie the money thereof rising and to pay the Iustices their wages by Indenture betwene him and them to be made and the other parte thereof sent into the Eschcquer to charge the Shirife withall vpon the making of his account there And hereby as I thinke the Estreates of the Iustices of the Peace be no we an immediat warrant for the Shirife to leuie not only the Fines and Amerciamentes but also all other â—â—â—ues Penalties Lesses Forfeitures and Summes whatsoeuer arising before themL for the wordes of the Statute are generall The money thereof arising and therfore whatsoeuer summes are to be Escreated into the Eschequer by the one of these doubles the sme are also to be leuied by the Shirife by the other double Such order did the Statute 3â— H. 8. cap. 10. of the fire weekes Sessions take for the leuying as well of Fines and Amerciamentes as of peines Losses and Forfextures of money So doth the Statute of Tillage 2. 3. phil Mar. cap. 2. by way of admittance rehearse that Iustices of the Peace may make out Processe for the leuying of Fines and Forfcitures before themselues and so are the Estreates amde and the Fines and Forfeitures thereby leauied at this presente time if I bée not deceâ—ued And those are properly called Estreates of the woordâ— Extractae because they bée shorte Notes or Memorialls extracted or vrawen out of the Recordes by the Clarke of the Peace and by him indented and deliuered sunderly to the Shirife and to the Barous of the Eschequer bearing this or the like Title Extract finsium amerciamentorum forisfactormum ad goâ—ralem Sessionem Pacis tentam apnd Maidstone c. Coram c. For the whole forme of the making wherof there is full Direction giuen to all Clarkes of Estreates by the Statute 7. H. 4. ca. 3. Where vnto I referre them Howbeit I do not thinke that in our case this dutie of Estreating is so peculiar to the Clarke of the Peace but that the Iustices of the Peace them selues ought also to haue a common and carefull eye vnto it For if you remember it is both specially prouided for in the Commission and also an Article of their Dath to see vnto the faithfull Entrie and Certificat of the Issue Fines Forfeits and Amerciamentes that doe happen before them And therefore it were well done in mine opinion if the Iustices would by turns or other wise both take knowledge of things that haue passed before them and also take order that the same be certified accordingly least other wise it lye altogither in the power of the Clarke of the Peace to Saue or Slay as one sayd the Sparrow that he holdeth closed in his hand Iustices of the Peace ought to haue care of Estreates Of Executorie Processe execution for the parties that sue or for other persons CAP. XVII ALbeit that the Iustices of Peace haue this power to make warrant for leuying the Amerciamentes Fines and other forfeits that doe growe vnto the Queene by their seruice yet is it commonly thought that they may not but in some cases onely and that by speciall spéech of the Statutes make execution either for him that will sue or for any other of such parte of the forfeiture as the Law doth aford them For most commonly the partie that will sue is put to his Action at the Common law for recouerie of that which he is to haue as for his moitie of a forfeiture againste the Status 24. H. 8. ca. 13 of apparell he is perhappes driven to his Action of Dstinue for his maytie growing vppon conuiction of any offence centrarie to the Statute 13. Elizab. cap. 14. concerning bringing ouer of Bowstaues or contrary to the statute of Musters 4. 5. Phil. Mar. ca. 3. he is to commence his Action or Bill of Debt and so of sundry others that are ech where to be foúd Apparell 〈◊〉 Musters But Where they haue power either by their Commission Or by any Statute to heare and determine any cause at the sute of aprituate person I do not see how the cause can well be said to be fully determined till the complaint hath had the effect of his sute which can not be without execution Doubtlesse by speciall prouision made in the Statute 5. E. 6. ca. 14. against Forestalle is the Iustices of the Peace may make execration of the one moitie of the forfeiture for ht in that sueth by fieri facias or capias as the Q ueenes Iustices at Westminster vse to dec Forestallers The like power in like words haue they for leuying the moitie of any forfeture against the Statute of Armour made 4. 5. Phil. Mar. ca. 2 or against the Statute made 5. Elizab cap. 12. concerning Badgers Drouers c. and their licences Armour For the moitie growing to the Informour vpon the Statute of Liueries 8. E. 4. cap. 2. they shall make suche execution as ought to be had in Kccourries of Der or Trespaile at his owne pleasure Li ue ries They may also awarde execution for the partie that sueth vpon the Statute of Flaxe and Hemp 24. H. 8. ca. 4. by such Processe as to them shall seeme by their discretion Flaxe and Hempe And the Estreates made by the Clarke of the Peace of forfaits for defaultes of amending Highways area safficient warrant to the Constables to leuie the same by Distresse to the vse of the Churchwardeins of the Parish where the Default was towardes the amendment of the said wayes Highwayes 2. 3. Phi. Mar. ca. 8 5. Elizab. ca. 13. Ann like wise the Estreates of the Iustices of Peace of any Fines assessed by them vpon Presentmentes in the shnifesTurne being inrolled indented deltuered to the Shinfe are a good warraÌ„t vnto him to leuy the same to the vse of him that was shirite at the time of such Presentmentes taken Shirifes Tisma 1. E. 4. ca. 2. Searche may aforde you some moe eramples but thrse may suffise for my desire which is not in this or any other to recount all but to make some proofe of that which I offer and propose Of Certifying Recordes of the Sessions of the Peace to other Courtes or Officers CAP. XVIII AS we haue alreadie manifested that Iustices of the Peace haue not a sufficient and thorowe powur of them selues to heare and determine all causes whereof they haue in their Sessions auctoritie to enquire So also be there sundry things determinable before them there which neuerthelesse may in some respectes be
all things ought to bée giuen in Charge that doe lye within the auctoritie of these Iustices to bée determined These bée moreouer called the Quarter Sessions bicause they bée holden Quarterly or foure times in the yeare and the statute 4. H. 7. ca. 12. tearmed them principall Sessions for that in them chiefly the power of Iustices of the Peace doth shine and shewe it selfe in which respect some other Statuts doe giue them the name of open Sessions also But we shall not not néede to dwell vpon the names whereof there can bée no great controuersie séeing that they all doe ayme at one marke rather bicause these generall Sessions bée at this day diuersly summoned begonne and continued in diuers partes of the Realme it lyeth fitly in my way to make examination of that diuersitie in this doing For to beginne with the Summons the manner is in some Shires to summon yearly fix standing Sessions of the Peace in others 8. in others 12. or 16. in others otherwise How many Sessions All which is done chiefly vppon pretence to ease the Inhabitants of the Countie for whome it would other wise bée verie painfull to trauaile so often from all the partes of the Shire to any one place of the same And therefore such as doe maintaine 6. or 8. Sessions doe vse to Summon all the whole Shire to a couple of them and to the residue they call onely such partes of the Shire as they doe therefore specially appoint But yet so that vpon the reckoning eache corner of the Country giueth attendance at foure feuerall Sessions which also falleth out accordingly in those Shires where they haue â—2 or 16. Sessions for albeit that they do not at any one time summone the whole Shire to any one place as the others do yet diuiding their Shire into 3. or 4. partes and kéeping foure seuerall Sessions ineache of those partes they also as well as the other doe serue their whole countrie with foure sundrye Sittings And therefore in myne opinion although none of these doe followe the precise letter of the lawe which requireth but onely foure qnarter Sessions in any Shire yet euery of them draweth neare to the true meaning of the law which looketh for nothing els but that the Courte of these Sessions shoulde yearely bée foure tymes opened for the whole Countie But if there bée any that doe for this purpose diuide their Shire into halfes and doe holde onely foure Sessions in the yeare that is to say two in the one part and two in the other calling the one halfe of their Hundreds to those two Sessions at the one place and the other halfe to the other two Sessions holden at the other place These men as some haue thought do neither reteine the letter nor attaine the meaning of the lawe in this their doing For vpon the matter no part of their Shire hath any moe than two Sessions which manner who séeth not how much it may hinder Iustice And although that they will peraduenture séeke to salue it in saying that they doe call the Constales of the whole Shire to euerye of those Sessions yet they can not so escape for both reason it selfe and their owne experience herein doeth informe them that it is likelie they shall haue moe presentmets where moe persons that can present of their own knowledge be assembled and do take the charge vpon them Besids all which these men do not bring ease but trauel and delaie to their countriemen whom by this meane they compell either to go far out of one part into another to haue a fault punished or else to tarrie for help til a SessioÌ„ shal be kept in the part where they dwel Neither may I well omitte that this doing may bréede danger to the Iustices themselues whilest any of them hauing taken a Recognusaunce of a Tippler doth not Certifie it vntil the Sessions happen to be in hys owne part and in the meane season the nexte Session of the Peace within the thire chaunceth to be holden in the other part whereof what may follow the Statute 5. E. 6. ca. 25. wil tel you and teach them And like faulte is it though not like forfeite so to receiue a Recognusaunce taken for the Peace as you may sée by the Statute 3. H. 7. ca. 1. Thus much of the summonas or number of these Quarter Sessions The times of holding the Quatter Sessions Nowe followeth the time in which they ought to be holde at aboute the whiche also all Counties doe not agrée and therfore it shal be good before other things to peruse those Statuts which do either in déede or shewe concerne thys pointe The Statute 25. E. 3. ca. 8 ordained thus Item that the saide Iustices make their Sessions in all the Counties of Englande at the least foure times in the yeare viz. At The Annuntiation of our Lady Sainct Margaret Sainct Michael and Sainct Nicholas The Statute 36. E. 3. ca. 12. saith That the Commission of the Peace shall make mention that the Session shal be holden thus Within the vta of the Epiphanie Within the second wéeke of Lent Betwéene Pentecost and Midsomer Within the vtas of Sainct Michael The Statute 12. R. 2. ca. 10. doeth after warde set the matter at libertie saying They shall holde their Session in euerie quarter of the yeare at the least But they of Midlesex bée excepted by 14. H. 6. ca. 4. Lastly the Statute 2 H. 5. ca. 4. doth reduce the times to certaintie againe saying thus Ouer all the Realme the Sessions shall bee In the first wéeke after Sainct Michael The Epiphanie The clause of Easter The translatioÌ„ of Sainct Thomas the Martyre The first of these foure Statutes doeth in shewe and in commune opinion concerne Sessions of the Iustices of Peace but in trueth it belongeth not at all vnto them for it was made to direct the Iustices of Labourers in the times of holding theyr Sessions and they were not Commissioners of the Peace but speciall Iustices for the causes of Labourers alone not resiaunt in the Country but sent downe for the time of that seruice as it may expressely appeare not onelye by the preamble and all the partes of the saide Statute it selfe but also by the Statutes 28. Edward 3. cap. 5 31. Edward 3. cap. 6 34. Edward 3. cap. 11. during all whiche time also the Wardeins of the Peace wese neither called Iustices by anye Statute nor auctorized to deale with Labourers For in 34. Edward 3. cap. 1. they are called Wardeins and the firste name of Iustices of the Peace by anye Statute that I haue séene is founde 36. Edward 3. cap. 12. before mentioned where it is sayde thus In the Commissions of Iustices of the Peace and of Labourers expresse mention shall bee made that they shall holde theyr Sessions c. as before And as for the auctoritie ouer Labourers that was first appointed to Iustices of the Pcace by the Statute 42. Edward
3. cap. 6 in the fourth Chapter of whych sayde Statute there were certaine Commissions distiked of whiche I beléeue that of the Iustices of Labourers was one and order taken that from thecefoorth some of the Iustices of the one Bench or other or Iustices of Assise or Iustices of the Peace with other of the most worthy of the Countrie should be named in all Commissions of Enquirie So that we haue not so doe with the Statute 25 Edward 3. cap. 8. and may therefore procéede to examine the rest The next is the Statute 36. Edward 3. ca. 12. But neythere that maketh anye Laws for holding the Sessions of the Peace at thys day as well bycause it was fet at large by 12 R. 2. ca. 10. as also if it were not bycause the Commissions of our time use no suche mention as it commaundeth Then came wée to 2. Henri 5. cap. 4. which restrayneth the libertie of 12. Richard 2. cap. 10. and reduceth the times of these Scssions to certaintie againet and yet so that the one of these Statutes doeth not frette the other for the latter is an exosition of the former so that it is all one as if they both had bene but one Lawe and shoulde haue said That the Iustices of Peace thall holde their Sessions in euerie quarter of the yeare at the leaste namely in the firste weeke after Sainct Michaell in the firste weeke after the Epiphanic c. Nowe to proue that the Quarter Sessions of the Peace were holden after the prescript of this Statute 2. H. 5. cap. 4. vntyll the time of the Statute 5. Eli. ca. 4. these bée my warrants First M Marrow saith plainly that in his dayes the Quarter Sessions were so holden Secondly for as muche as there can bée no higher auctoritie of exposition then to coÌ„strue one Statute by an other I will shewe you some Statutes also that haue accounted of these Sessions to be holden accordingly At the Generall Sessions after the seast of Sainct Michaell the Custos Rotulorum or in his absence the eldest pf the Quorâ— oughte to appointe two Iustices of the Peace for the oversigt and controlement of the Shintes and their Clarkes c by the Statute 11. H 7. cap. 15. And at the generall Sessions holden at Michaelmas the Iustices of Peace ought to appopynte Searchers for Brasse and â—ewter by the Statutes 19. Henri 7. cap. 6 4. Henri 8. cap. 7. where the worde At muste of necessitie beée vnderstoode for After whether you will take it according to the sayde Statute 2. Henri 5. cap. 4. whyche sayeth plainely After or according to 36 Edward 3. cap. 12. whiche sayeth Within the Vias of Saincte Michaell séeyng that the Vias as eueric man knoweth is atwayes after the feast and not béefore it But to proue two at once whereas the Statute 27. H. 8. ca. 5. had taken order for Iustices of the peace to be made in Cheshire and certain other shires and had willed that they should be sworn to the keeping of their Sessions of the peace c. as other Iustices of the Peace in other the Counties of Englande were it fell out that the Gentlemen and fréeholders of the Countrie of cheshire were much troubled by attending yearely both at the saide 4. quarter Sessions and also at 8 or 9. Countie Courts which they had besides thervpoÌ„ it was prouided by another statute 32. H. 8. ca. 42. the the administration of Iustice before time used in the said CouÌ„tie Courtes should froÌ„ thencefoorth be done executed at two times in the yere only the is to say at the SessioÌ„s next after the feast of S. Michael at the SessioÌ„s next after Easter yerely for euer I might adde that the quarter Sessions in the wéeke next after the Claute of Easter was tyed to the Twesday of that wéeke by the Statute 33. H. S. c. 10. And the it was not without some graue consideration that the Statute 2. H. 5. ca. 4 did commaunde the Sessions of the Peace to be holden ouer all Englande in one and the selfsame weeke But I think it clearely ynoughe proued that hitherto these Quarter Sessions ought to bée directed by that Statute and therfore I will descend to the Statute 5. El. ca. 4. and weigh the time in which they ought to be holden at this verie day The words of that Statute be these As much of all the Statutes heretofore made euerie braunche of them as touche or concerne the hyring keeping departing worKing wages or order of Seruantes Workemen Aruficers Apprentices or Labourers or anye of them and the penalties and forfaitures concerning the same shal be repealed vtterly voide of none effect And that all the saide Statutes and eâ—crie braunche thereof for anie matter contained in them and not repealed by this Statute shall remaine and bee in ful force and effect anye thing in this Statute to the contrarie notwithstanding Vpon this Statute some haue thought the the said Statute 2. H. 5. ca. 4. is repealed concerning the braunche of the Sessions And others do thinke the contrarie and therefore let vs holde the beame and put in balance their resons on either side They of the one side doe alleage that this braunche of the Sessions lyeth in the midst Of that Statute 2. Henrie 5. whiche was made for Labourers and that it was mente only of Sessions to be holden for the order of Labourers and so is within the wordes of repeale And they saye also that it will fall out vnseasonablie to holdte the Sessions especiallye that after Michaelmas according to this Statute bycause the same happeneth verie neare to that tearme of Sainct Michael whereat the presence of manye is no lesse requâ—site than at the Sessioans of the peacâ— They on the other side doe gather vppon the said words of 5. El. cap. 4. that some parts of the Statutes of Labourers must néeds remaine in force notwithstaÌ„ding those words of repeale for otherwise say they the maKers of 5. E1 mighte with lesse laboure of speach have repealed them al at once And threrefore they say that two Statutes of Labourers viz. 12. R. 2. cap. 3 and 23. H. 6. cap. 13. bée yet inforre for so much of them as both concerne Victuallers and like wise that so much of this Statute 2. H. 5. 4. as doth concerne the resiancie of those Iustices of the Peace whiche be named of the QuoruÌ„ and the holding of the Quarter Sessions is vnrepealed also for that that they concerne not the hyring kéeping c or order of seruants c. whych mighte bée done wythout the Setsions of the Peace but the general seruice of the Commission and Statutes that doe aucthorize the Iustices of Peacewhereof also these Scssions be called the Sessions of the Peace And it is not newe in their opinions to finde a generall ordinaunce in a particu lar Statute as in the Statute 38. H. 8. ca. 39. made specially for the erection
of the Courte of Surueyours there is a generall Laws that all Dhligations concerning the Kings commoditie shall be made to himself by the words Domino regi c. Neither was there cuer saye they anye Duarter Sessions holden onely for the causes of Labourers by the lastices of Peace althoughe the petite Sessions of Constaâ—les were chiefly bent to that feruice And that the saide Statute 2. H. 5. didde meane the verie Sessions of the Peace no other they offer to proue by the auctoritie of those selfe same Statutes which bée alleadged already for the holding of the Quarter Sessions vntil the time of this Act of Queene Elizabeth for that they haue heretofore so construed and taken the Statute But to make the proofe full they adde that euen this same Statute of repeale 5. El. cap. 4. both in a certaine place there of speake of the Quarter Sessions to be holden after Easter which cannot be vnoderffoode of any other of thosse Statutes cocerning the Sessions but onelie of 2. H. 5. cap. 4. because the reste that haue certaintie do appoint that Session eyther at the Annuntiation of the Lent And like wise that the Statutes 8. Eli. cap. 9. concerning the prices of vesselles of â—ope Ale and Béere and 14. Elizab. cap. 5 and 18. Elizab. cap. 3. concerning poore people and vagabonds haue mention of the Quarter Sessions to bée holden next after Easter Which Statutes as they make not in this point any new Lawe but bée grounded vpon former Lawe supposed to be in force So allowing of any one of these soure Sessions they doe therein giue allowance of all the other thrée also As for answeare to the obiection of the nearenesse of the Michaelmasse Sessions to the Michaelmasse Terme they say that this was foreséene to the makers of that Statute 2. H. 5. who do therein dispense with the absence of the Iustices of the Benches at Westminst the Barons of the Escheaquer c. And yet to the end that they also might once in the yere be present at a Session of the Peace for the better direction of that seruice the Statute 33. H. 8. ca. 10. did specially appoint that the Easter Sessions shoulde bée holden yerely vpon the Tewsday nexte after Low Sonday in euerie Shire of the Kealme Now if it shal séeme to any maÌ„ a strange thing that I moue question of the tyme of holding these Sessions I lette him knowe firstâ— that it is one of the Articles of the Oath ministred to the Iustices of Peace that they shall holde their Sessions after the forme of Statutes thereof made Secondly that the articles of many Statutes are inquirable as it séemeth to me onely at the Quarter Sessions because they are not in the Commission at all and the Statutes them selves doe appoint of none other Inquiry but at the Quarter Sessions and then if the Iustices of Peace do not hold their Quarter Sessions according to the times appointed by Lawe they be no Quarter but Speciall Sessions and consequently such Statutes shall eyther not be enquired of at all or else enquired of without Warrant both whych be verie greate inconueniences So that this matter if it be not rightly conceiued tendeth both to the hurt of the conscience and to the hindrance of this seruice Touching the continuance of these quarter Sesions I haue shortelye but this one thing to say that almost two hundred yeres agoe it was ordained by statute 12. R. 2. cap. 10. that they shoulde bee continued three dayes togither if neede were vppon paine of punishment And yet in these days of ours wherein the affaires of the Sessions be excéedingly encreased and consequently more néede to continue them now than béefore many doe scantly affoorde them thrée whole houres besides that time whyche is spent in giving of the charge How long the Quarter Sessions shall continue But it is more than time that I descende to some of those Statutes whych do specially relie vppon the Quarter Sessions therefore I will firste beginne with such as haue refeence indifferently to any of them Things referred to the quarter Sessions The Iustices of Peace maye in their open Quarter Sessions enquire of heare and determine all offences excepte treason and misprision of treason committed againste the Acte made 23. El. ca. 1. for reteyning the Queenes subiects in their due obedience Pope They may also in their open Quarter Sessions enquire of such as do extoll the vsurped auctoritie of the sea of Rome againste the Statute 5. Eli. ca. 1 And the Clarke of the Peace must reade that Acte at euerie of the Quarter Sessions Pope Acte read And they may in their generall or Quarter Sessions enquire of seditious wordes and rumours vttered againste the Queenes Maiestie 23. E. cap. 2. Seditious wordes All the Articles mentioned in the Statute 33. H. 8. cap. 10. shall be enquired of reformed by the Iustices of Peace in theyr auntient Quarter Sessions 37. H. 8. cap. 7. Execution of Statutes They may in their generall Sessions determine of the offences of killing and selling Wainlings vnder two yeares age 24. H. 8. cap. 6 13. Eli. cap. 25 and of the offences of not kéeping Mylch Kine and Calues 2. 3. Wainlings Phillip Mar. cap. 3 13. Elizab. cap. 25. Milch Kine and Calues The Enquirie Hearing and Determination of Forestallings ingrossings and Regratings maye bée at the Quarter Sessions 5. E. 6. cap. 14. Forstalling The Enquirie whether Ale-house kéepers haue forfeited theyr Recognusances ought to bée at the Quarter Sessions 5. E. 6. cap. 25. Alehouse The Fine for vnlawfull Huntyng by night or wyth painted faces shall bée sette at the nexte generall Sessions 1. H. 7. cap. 7. Hunting Iustices of the Peace maye in sheyr Quarter Sessions heare and determine offences againste the Statute of Armour 4. 5. Phil. Mar. cap. 2. and may there enquire of heare and determine the offences of putting to pasture anye stoned Horses c. vnder the heighth appointed by the Statute 32. H. 8. cap. 13 And maye there also enquire of conueying Horses into Scotlande 23. H. 8. cap. 16 1. E. 6. cap. 5 1. Elzab cap. 8. Armour Horses They maye at their like Sessions enquire of and determine te offences of not amending the highwayes 2. 3. Phil. Mar. cap. 8 5. Elizab. cap. 13 18. Elizabeth cap. 9. Highwayes In their Quarter and generall Sessions they ought to enquire of heare and determine the offences of not kéeping continuall housholdes vppon the Precinctes of the late Monasteries 27. H. 8. cap. 5 5. Elizab. ca. 2 14. Elizab. ca. 11. Keepe houholdes And in their Quarter Sessions they may heare and determine the offences of Informers 18. Elizab. cap. 5 And at the like Sessions they may doe the like for offendors in Periurie 5. Eliz. ca. 9. Informers Periurie Suche as bée suspected of
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
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