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
testimonium huic praesentas certificationimeae sigillum meum apposm Dat. apud B. praedict die Anno supradictis By this you have séene what one Iustice of the Peace ought to do in execution of this Statute as a Minister and by the same you maye also sée what he maye doe therein of himselfe Ex efficio as a Iudge and without any Writte brought vnto him if one Iustice maye deale therein as a Iudge For not onely by the plaine wordes of the Statute of Northampton the Wardeins of the Peace haue power within their Wardes and are commaunded to execute this Acte vpon a prins But also by expresse speach in the Commission it selfe eucrye Wardein of the Peace hathe the Statute of Northampton committed to his charge So that both in the matter and manner the doing is all one sauing that if he doe it as a Iudge he nedeth notto make any proclamation the Statute being a prohibition in it selfe nor yet to sende any Certificat into the Chauncerie but only to make his owne Record of that which he shal do in this behalfe and thereout to sende some estreit into the Eschequer that the Queene may bée answered of the Armour or of the value there of And here prehappes the redemption of the imprisonment maye bée at the same Iustices discreation as in the former Statutes of 15. R. 2 8. H. 6. it séemeth to bée Of other breaches of the Peace with a multitude as by Riot Route or other vnlawful Assemblie c. CHAP. XIX OVr Parliaments séeing well that the assemblie of many for breach of the Peace offereth more daunger and hurt both generallye to the Commune wealth wherein it happeneth and perticularly to him against whom it is bent than the force of any one or two turbulent persons can bring haue no lesse carefully endeauoured to suppresse the one than wisely foreséene to preuent and punish the other And therfore not onely the Commission giueth power to enquire of Conuenticles againste the Peace but sundrie Statutes also haue deuised many meanes and paines to méete with and to punish the same wheras before they wet punishable only as other trespasses though sometimes by a greater and sometimes by a smaller fine as the case it selfe required Conuenticles Vnlawfull Connenticles bée not al of one fort for sometimes those are called Conuenticles wherein many do impart with others their meaning to kil a man or to take one an others part in al things or such like Champerties also Maintenances Conspiracies Confederacies and giving of Liueries to other than to Meniall Seruauntes and officers bée contained vnder the worde Conuenticles saith Mar. And it appeareth 27. lib. Assi Pl. 44. to bée one of the Articles enquirable in the Kings bench whether any persons take others to their Auowment and Protection and receiue of them rentes or other giftes yearely in the name of Chyuage or rther Cheifage bycause they séeme to take vpon them to bée their Cheifes heades or leaders Chyuage But for as much as all these couenaunts may bée without any apparant shewe of Assemblie against the Peace thoughe otherwise they bée finable offences vnder the name calling of Conuenticles as Mar. thinketh I will leaue them and resorte to those orther that bring manifest terror to the Subject Of these some consist of a number of people gathered togither disorderly for the cause of some one or of a fewe persons and do not bréede any generall or present danger to the Estate or Couernement and yet bée against law and be called Riots Routs and Vnlawful asseblies against the law against which the Statutes 13. H. 4. ca. 7 2. H. 5. ca 8 19. H. 7. ca. 13 were specially prouided and before that the penaltic of the Statute of Nort. 2. E. 3. ca. 3 ordained to bée laide vpon them by 2. R. 2. ca. 6. But others there bée that sauour of a more generall disobedience and bée either in regarde of the number or quarrell a verie Seede of Rebellion if not the Weede it selfe and are therefore also sometimes called Rumors great Ridings Routs Riots against the Peace 5. R. 2. ca. 6 7. R. 6. 17. R. 2. ca. 2. sometimes Assemblies of people in great number in manner of insurrection◠H. 5. ca. 9. and sometimes Rebellio is Infurrections and Rebellious Assemblies 15. R. 2. c. 2 8. H. 6. ca. 14 and 1. Mar. Parl. 1. ca. 12. Of all whiche so farrefoorth as the Iusices of peace haue interest in them I wil intreat but yet severally and so as either one or moe of the Iustices of Peace have to do with them and that out of the Sessions They of the first kinde bée as I haue said commonly called Riottes Vnlawful Assemblies and Routes But concerning the proper difference that is betwéene each of these thrée all men do not throughly agrée And therefore reiecting al diversities of opiniōs I wil folow the whiche I take to bee most colourable most cōmōly receiued at this day wherin neuerthelesse I submit my self vnto the experience of the Starchamber as to the best direction the the Iustices of Peace can haue to follow in this case Riot seemeth to come of the French word Riotte Rioter which signifieth to braule or scolde for commonly Riottes in deede do follow of braulling in worde Riotte And it is taken to bee Where there is an vnlawful assemblie of me gathered togither to commit an vnlawful act they do excecute it in deed as to beate a man or to enter vpō a possession forcibly or such like the fact is properly called a Riot An Vnlawful Aslebly is the cōpany of thrée Vnlawful persons or more gathered togither to doe Assembly such an vnlawfull acte althoughe they do it not in deede Vnlzwful Assembly Our Rout is the very same which the Germans do yet cal Rot meaning a band or great cōpanie of me gathered togither going about to execute or executing in déed any Kiot or vnlawful act Route And sayth Mar. it is said properly of the multitude the assemble theselues in such disorderly sort for their cōmon quarel As if the inhabitants of a Towneship do assemble to pull downe a hedge or pale to haue their Common where they oughte to haue none or to beate a man that hath done them some publike offence or displeasure But the Statute of 18. E. 3. Sta. 1. Whiche giueth processe of vtlagarie againste suche as bring Routes into the presece of the Iustices or in Affray of the people And the Statute of 2. R. 2. ca. 6. that speaketh of riding in great Routes to make entrie into lands to beate others and to take their wiues c. doe séeme to vnderstande it more largelie And it is a Route whether they put their purpose in execution or no if so bée that they doe go ride or moue forward after their méeting Broo. Tit. Riotte 4. 5. So as it séemeth a Route should bée a speciall
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
nostra and hath appeased the wrath of God for our sinnes Our of this procéedeth an other inward Peace named the Peace of CoÌ„science for that our Conscience is by faith in Christ at Peace both with God and it selfe The euill inward Peace is the same where of our Sauiour Christ spake saying pacem do vobis non quemadmodum mundus dat And this Peace the Kingly Prophet Dauid calleth pacem peccatorum bicause it is no better than carnall securitie The outward peace hath respect to other men and that is of two sortes also the one is opposed or set against all maner of striuing and contention whether it be in countenance gesture worde or worke of the which S. Paule spake to the Romans in these wordes Si fieri potest quantum in vobis est cum â—mnibus hominibus pacem habetote And in the same meaning the Latine men say pace tua by your leaue or fauour without your offence or displeasure The other is onely an abstinence from actuall force and offer of violence and is rather contrary to arma pralium and bellum which can not be without force or armes than it is lis pugna or certamen which as Laurence Valla confesseth may be nudus verbis citra arma And hereof also our Sauiour Christ spake wheÌ„ he said Non veni vt mitterem pacem sed gladium The lawe of our Realme Peace in our Lawe likewise vseth the worde Peace diuersly but yet so as it is altogether occupied about these outwarde Peaces For as Cicero said of fraudes aliter leges aliter Philosophi tollunt astutias leges quatenus manutenere res possunt Philosophi quatenus ratione intelligentia euen so may I truely affirme that in the matter of Peace the law of God which onely is the true Philosophy respecteth the mynde conscience although the lawes of men doe looke but to the bodie handes and weapons Sometymes therefore the word Peace is taken for Proctection or defence as where M. Bracton calleth the Writtes of Protection Breuta de pace Sometymes as it seemeth to me it is taken for Rightes Priuiledges and Liberties as in the othe of the Queene at hir Coronation she sweareth Seruare Ecclesiae Dei Cleri Populi pacem ex integro the meaning whereof is as I suppose that she will maintaine eche degrée and estate of hir Subiects as well Ecclesiasticall as Temporall for populus comprehendeth all the Laitie according to their seueral customes Lawes and Priuiledges And sometimes it is taken for a withholding or abstinence from that iniurious force violence whereof I spake before Peace for Iustices of the Peace And this is it that is most commonly understood by the worde Peace in our lawe and for the maintenaunce hereof chiefly were these Wardens and Iustices of the Peace first made and appointed For Iustices of the Peace were not ordained as some haue thought to the ende to reduce the people either to an vniuersall vnanimitie or agréement of mindes which is in déed a thing rather to be wished for than to be hoped after Neither is it any part of their office to forbid lawfull suites and controuersies whiche neuerthelesse be disagréements of mindes But to suppresse iniurious force and violence mooued against the person his goods or possessions And that this may appeare to be the minde or the king which first created these Wardens or Iustices of the Peace I meane King Edward the third let me shew you the Writte that he in the first yeare of his raigne and not many wéekes before the Parliamente in which the Gardeins of the Peace which afterward obtained the name of Iustices of the Peace were first ordeined did sende to the Shirifes of eche Shire in Englande bearing this forme Edwardus Dei gratia Rex Anglia Dominus Hybermae Dux Acquitaniae Vicecomiti Kanciae salutem Tho. Walâ—ugham in â—ist pag. 107 Quia dominus Edwardus nuper Rex Angliae pater noster de communi assensu Praelatorum Comitum Baronum aliorum Magnatum necnon Comunitatum totius regns praedicti spontanea volantate se aneouit à regimine dictiregni volens coÌ„cedens quòd nos tà quam ipsius Primogenitus Haeres ipsious regni gubernationem regimen assumamus Nosqúe ipsius patris beneplacito in hac parte de consilio auisamento Praelatorum Comitum Baronum praedictorum annuentes gubernacula suseepimus dicti regni Magnatum recepimus vt est moris Desiderantes igitur pacem nostram proquiete tranquillitate populi nostri inuiolabiliter obseruavi Tibi praecipimus quòd statim visis praesentibus per totam Balliuam tuam pacem nostram facias publicè proclamari vniuersis singulis ex parte nostra inhibendo sub poena membrorum ne quis dictam paecem nostram infringere seu violare praesumat sed quilibet actiones quaerelas absque violentia quacunque prosequatur secundùm leges consuetudines regni nostri Nos enim parati sumus seÌ„per crimus oÌ„nibus singulis coÌ„queretibus taÌ„ diuitiê° quam pauperiê° in Curijs nostris plenam iustitiaÌ„ exhibere Teste meipso Caledas Februarij die dominica in vigilia purificat c. This Writ I haue the rather set downe at large because it containeth a faire shewe of a foule déede I meane his attaining to the crown by the depriuation of his father But for the present purpose by this Writ it is manifestly declared that the Peace which he meant was not an vniting of mindes but a restraining of hands which is in a manner al one with that which Tullie writeth in his Oration Pro Sestio where he setteth Vis and Ius one against the other and it agreeth well with that description of Vis which M. Bracton maketh lib. 4. ca 4. saying Vis est quotiens quis quod sibideberi putat non per Iudicem reposcit Est autem interdum armata interdum inermis According to which meaning also the olde Statute of Westminister the first ca. 1. saide Let the peace of the laÌ„d be maintained in al points and common right be done to all as well poore as rich Thereuppon likewise saith the Statute 1. R. 2. ca. 2. Let the peace bee well and surely kepte that the Kings subiects may safely goe come and abide according to the lawe of the Realme and that Iustice and right be indifferently ministred to euery Subiect Finally the Statutes of 2. R. 2 ca. 41. H. 4. ca. 1 and 7. H. 4. ca. 1. Doe all in plaine spéech couple the maintenance of the Peace with the pursuing of sutes as things that may right well stand togither And therefore I conclude that this furious gesture and beastly force of bodie or hands and not euerie contention suite and disagréement of mindes is the proper subiect and matter about which the Office of the Iustices of the Peace is to be exercised Nowbeit I write not this as though I would not haue a
he and they whose estate he hath in the Manor of Dale haue bene Conseruatours within the Hundred of Sale either all the yeare or onlie at one certaine time of the yeare And as hée may prescribe in the power it selfe so also may he in the maner of the exercise of the same as that they haue vsed to take the Suertie of Peace by obligation pledge or Caution so also in the maner of the Processe therefore as to Distreigne and to sell the distresse Mar. But all this is to be doubted of because that in the opinion Of Brian and Pigot 21. E. 4. 67. 22. E. 4. 35. the Maior of Dale cannot prescribe to be a Conseruatour or to commaunde Suertie of the Peace to commit to prison for an affraie in his presence vntill such suertie be found Furthermore euen as the shirifes were auntientlie chosen and as the Coroners yet bée So also certaine persons were wont to be elected Conseruatours of the Peace in the full Countie before the Shirife and of this kinde I my selfe haue séene certaine Recordes in Rotul patent de Anno. 5. E. 1. running in this course By ElectioÌ„ First a Writte to the Shirife of Norfolke commaunding him to choose in his ful CouÌ„tie unum homâ—nem de probioribus potentioâ—â—bus Comitatus sâ—â— in custodem pacis Then an other Writte directed Balliuis fidelibus of the same Countie giuing vnto theÌ„ notice of the former Writte to the ende as it séemeth that the Bailies should warne the men of the Countie and that they should appeare at the Countie Court to make the Election And lastlie to the Conseruatour elected this Writte following Edwardus dei gratia Rex Angliae Dominus Hyberniae dux Aquitaniae dilecto fideli suo Iohannt le Bretun Salutem CuÌ„vicecomes noster Norfolc et coÌ„munitas eiusdem comitatus elegerit vos in Custodem pacis nostrae ibidem vobis mandamus quod ad hoc diligenter intendatis prout idem vicecomes vobis scirifaciet exparte nostra donec aliud inde praeceperimus In cuâ—us rei c. Datum per manum venerabilis patris F. Bathon Wellen. Episcopi Cancellarij nostri apud Cest secundo die Septemb. Annoregni nostri quinto Touching the conseruation of the Peace by Tenure of Land M. Marrow putteth this case If the King graunt vnto a man landes to holde of him by Kinghtes seruice and to be a Conseruatour of the Peace in a Countie he is a Conseruatour by Tenure agreably wherevnto saith an Inquisition founde at Chester An. 4. E. 2. after the death of one Vrianus de Sancto Petro inter alia thus By Tenure Touching the ... Quòd idem Vrianus tenuit de Domino Rege in capite in dominico suo vt de feodo die quo obyt Medietatem Seriantiae pacis per seruitium inueniendi decem serutentes pacis ad Custodiam pacis in Cestr pro qua quideÌ„ custodia antecessores sui percipere solebant xxx â— per annum ad scaccarium Cestr pro Mantellis dictorum decem seruientum c. These sortes and some others which M. Marrow reciteth and whiche I wanting Recordes to warrant them do omitte I cal Ordinarie Conseruatours of the Peace bycause thier auctoritie was then Ordinarie alwayes one and the same wel ynough knowen Extraordinarie conseruatours But the Extraordinarie Conseruatour as he was endowed with an higher power so was he not ordinarilie appointed but in the times of greate troubles onlie much like as the Lieutenaunts of shires are now in our dayes And he had the charge to defende the coasts and Countrey both from forraine and inwarde enemies and might commaund the Shirife and all the Shire to aide and assiste him as it may well appeare by this Patent remayning of Record in the Tower Rotul Patent de An. 49. H. 3. made by that king or rather in his name by Simon the Earle of Leicester whose prisoner he then was Rex Iohanni de Plesset salutem Cùm nuper de consilio Magnatum qui sunt de consilio nostro constunerimus vos custodem pacis nostrae in comitatu Northumb. ac vos tam landabiliter circumspecte in officio illo gesseritis quod probitatem ac diligentiam vestram merito duximus recommendandam adhuc necesse sit sicut intelleximus quod ad tuitionem partium illarum conseruationem pacis nostrae èìdem officio intendatis vobis de consilio Magnatum praedictorum mandamies firmiter iniungentes quatenus omnem diligentiam quam poteritis adhibeatis ad pacem nostram conseruandam in partibus praedictis in forma qua vobis aliâs iniuÌ„ximus MaÌ„dauimus enim Vic nostro Northumb. quod quotiens opus fuerit à vobis fuerit requisitus cum toto posse sui comit vobis ad hoc assistat Nolumus autem quod praetextu huius maÌ„dati nostri de aliquibus quae ad officium vic pertinent vos intromittatis quo minus vic de exitibus eiusdem comit nobis plenè respondere valeat ad Scaccarium nostrum Teste Rege apud Westmonast xj die February Anno Regni sui quadragesimo nono And sundrie the like Patents were at the same time also made as to Iobn de la Haye to be Conseruatour of Kent and of the Sea coastes there to Ralph Baslet of Dravâ—on to be Conseruatour of Staffordshire and so to others for other Counties Of the first ordaining of the Wardeins and Iustices of the Peace by Statute Lawe CAP. IIII. After suche time as Queene Isabell contending with hir husband King Edwarde the second was retourned ouer the Seas into England accompanied with hir Son Prince Edward called afterward the thirde King of that name and with Sir Roger Mortymer and such others of the Englishe Nobilitie as had for the indignation of the King fledde ouer the Seas vnto hir She soone after gotte into hir handes the person of the olde King partlie by the assistaunce of the Henâ—lders that the brought with hir and partlie by the aide of such other hir friends as the found readie here and immediatelye caused him by forced patience to surrender his Crowne to the young Prince And then also for as muche as it was not without cause feared that some attempte would be made to rescue the imprisoned King order was taken that he should be canueyed secreatelie and by night watches from house to house and from Castle to Castle to the ende that his fauourers should be ignorant what was become of him Yea and then withall it was ordained by Parliament in the life time of that deposed King and in the varie first entrie of his sonnes raigne 1. E. 3. ca. 15 That in euerie Shire of the Realme good man and lawful which were no maintainers of euill nor Barrettours in the Countrey should bee assigned to keepe the peace which was as much as to say that in euerie Shire the King himselfe should place speciall eyes and watches ouer the common people that
to speake of any of them till I come to treate of those matters by them selues Of the breach of the Peace without a multitude against the person and how it may be stayed or punished by one Iustice of Peace out of the Sessions CAP. XVII The Preuention Of The Breach Of Y E Peace Hath Appeared AsWell In The Suertie Of The Peace As Of The Good Abearing Therefore Mine Owne Order ReQuireth That I Nowe Declare What One Iustice Of The Peace May Doe Out Of The SesSions For PunisHment Of such as doe breake the Peace Breache of the Peace without a multitude For our law is no lesse carefull this way to conserue the Peace both by staying them that doe any way aduenture towardes the breache thereof and by punishing them that doe acually enter into the verie violation of the same than it was prouident to sée it preserued before it came to any neare shewe of disturbance or greater euill But because the breache of the Peace as the law is taken at this day whether it be by word or other acte and that also whether it be to the person or to his goods or lands may be aswell committed by one onely or by two vpon a side both which we hold to be done without a multitude though two in precise speache doe make a number as by thrée or more in one companie which the lawe properly calleth a multitude it shall be good to intreate by it selfe first of that breache of the Peace which may be committed without a multitude and then to prosecute the other If there withall we put the Iustice of Peace in remembraunce that by what way soeuer the may preuent or punishe the breache of the Peace in one person the same meanes may he also bse against any multitude so offending The breache of the Peace that may be practised against the person climbeth to the destruction of the person by sundry degrées as by Threates Assray or assault and violent and malicious striking and beating wounding mayheming and killing The matter of manacing and threatning is sufficiently touched in the last Chapter The wordes Affray and Assault bée indifferently vsed of many men euen in our booke cases but yet there wanteth not a iust difference betweene them in myne opinion Affray and Assault For Affray is deriued of the french effrayer which signifieth to terrifie or bring feare and is the more heynous trespasse for it is in lawe vnderstood to bée a common wrong done and therfore is inquirable punishable in the Turne of Shirife and in a Léet by 4. H. 5.10 and 8. E. 4.5 Otherwise it is of an assault as it séemeth by those bookes Yet it may be done without word or blowe giuen as if a man shall shewe him selfe furnished with armour or weapon which is not vsually worne and borne it will strike a feare into others that be not armed as he is and therefore both the Statute of Northampton 2. E. 3. ca. 3 made aganist the wearing of armour and weapon and the Writte therevpon grounded doe speake of it by the wordes effray delpays and interrorem populi An Assault as it is fetched from an other fountaine namely from the Latine Assultus which denoteth a leaping or flying vpon a man So it can not bée perfourmed without the offer of some hurtfull blowe or at the least some fearfull speache And therfore to rebuke a Collector with fowle wordes so that he departed for feare without doing his office was taken for an Assault 27. lib. Assis plac 11. And to strike at a man although he were neither hurt nor hit with the blowe was adiudged an Assault 22. libr. Assis pl. 60. For this Assault both not alwayes necessarily emplie a hitting and therefore in Trespasse of Assault and Batterie a man may bée fouunde guiltie of the Assault and get bée excused of the Batterie 40. Ed. 3.40 and 45. Ed. 3. 24. Manacings then Affrayes Assaultes iniurious and violent handelings and misentreatings of the person batteries malicious strikings c. bée breaches of the Peace and doe drawe after them the forfaiture of a Recognusance knowledged for the kéeping of the Peace What actes be breaches of the Peace and what not And therefore for example if a man doe imprison an other without warrant or doe thrust him into a water or river whereby he is in danger of drowning or doe raushe a woman against hir wil or doe commit manslaughter or burglarie or robberie vpon the person of an other or do coÌ„mit treason against the person of the Prince who as he is the head of his people so are they also wounded in his hurte he hath broken the Peace Marr. But concerning the manacing assault or batterie of the person of one this is to be noted by the way that it is not in all cases a violation and breache of the Peace for some are allowed to haue priuately a natural and some a Câ—â—le power or auctoritie ouer others so that they may excuse themselves if but in reasonable manner they correct and chastise them for their offences without imputation of any such breach After the one forte the parent is suffered with moderation to threaten and chastice the childe within age By reason of the other fort of power the husband is not punishable so that it be not outragiously if he chastice his wife Master his seruant the Schoolemaster his scholers a Gaoler or his seruant by his commaundement his vnruly prisoners and the Lord may beate his villaine But these things must neuerthelesse be done in conuenient place and therefore not in the presence of the Prince as it is thought 27. lib. Ass pl. 49. This power of the husbande ouer the wife seemeth to be permitted by the words of the Supplicauit that is sette downe for hir in the Register 89. when she standeth in neede of the Peace against him where it is said That he shall be bounde to doe her no corporall harme but with this exception Aliter quà m ad virum ex caussaregiminis Castigationis vxoris suoe licitè rationabiliter perâ—â—net Wherein it agréeth with the Ciuil Lawe which yeldeth to the husband that power so that he vse it Modice moderately And sayth M. Peter Martyr vpon the 1. to the Corinthians c. 11. ver 3. The husband may Corripere castigare vxorem eadem charitate qua Christus Ecclesiam verberat nimiruÌ„ vt melior fiat c. The power of the Master Schoolemaister ouer the Seruaunt and Scholer is affirmed by M. Marrow and confirmed by some opinion in the booke 21. E. 4. 6. 53. Whereunto I may also adde the minde of those that made the Statute 33. H. 8. cap. 12. concerning malicious striking in the kings house for they do therein specially exempt the Maister that striketh his Seruaunt with his hand fist small staffe or sticke for his correction for any offence Howbeit in these cases I doe aduise both husbande and
default of those which are returned the Iustices may take a Iurie de circumstantibus And herevnto also the Statute 3. 0 H. S. ca. 12. she weth some further consent in that it giueth power to the Iustices by their discretion to commaund the Shirife or his Deputis to adde alter or diminish the names of the pannell which if he refuse to do it he shal forfeit xx.l. for the same contempt Neither is it to be obiected that men being all of one Shire maye not take knowledge of things done in diuers Hundreds Séeing they haue diuers occasions of méeting togither as at the Countre Courts the Shirifs furnes the Assises generall Duarter Sessions And if a Iurie of one Hundred would make presētmēt of an offence done within any parte of the Shire out of theyr own Hundred this were good in Law Besides which if M. Marr. mixture be followed fewe of them that doe appeare shall lose their labour whereas nowe the moste of them doe come in vaine But these men bée not truely Jurours til they bée sworne as their name pretendeth and otherwise their presentment is betterly voide How they of the Iurie muste be sworne and ordered And yet if it should by any oversight happen that they or some one of them were not sworn at all if the Record make mention that they be sworne their presentment is of force ynough for the Record may not bée gainsayed Each Iurie of Enquirie ought to containe 12. in number at the leaste and if there bée 18. or moe it shall not bée amisse Bea the common order wyth us is to have them of an odde number as 17. 19. 02 21. to the end as it séemeth that if they shoulde dissent in opinion somewhat equallye yet there shoulde bée alwayes one to weigh downe the side and caste the ballance The number of Iurours But if 12. of them doe agrée the gaine-saying of the residue can not hinder the presentment The Iustices ought not to commit these Iurours to anye kéeper nor to kéepe them wythout meate or drincke nor to carrye them out of the Town And yet they maye adiourne them to an other place to gyue their Verdite and that may bée then taken by any two Iustices though neyther of th◠be of the Quorum faith Marr. If these Iurours doe wilfully conceale offences presentable y be complayned of by Bill then may the Iustices choose an Enquest of persons whereof euerie one may dispend fortie shillings by yere to enquire of their concealement and if anye suche concealement bée founde within the yeare euerie one of the first Enquest shall bée amerced in full Sessions by the discretion of the same Iustices 3. H. 7. ca. 1. Concealement And because the lurours of those dayes were yet wilfull in their concealementes it was prouided wythin eight yeares after that the Iustices of Peace should determine rauses upon information without any such presentment But In vitium ducit culpae fuga sicaret arte and therefore that ordināce endured not long as you shall hereafter perceiue Finally these Iurours ought not to discover their owne doings for it is a parte of their oath that they shal kéepe the Queenes Counsel and their fellowes And we reade in Fitzh Tit. Coron 207. 272. that to indite a man of Felonie and then to shew abroade to others what they haue done therein hath bene taken for Felonie Nowbeit that offence is nowe taken to be fineable onelie Of the Articles that are to bee given in charge at the Scssions of the Peace CAP. IIII. IT was the auntient maner that twice in the yeare at the Shirifes Turne whyche was sometime a Court of greate authoritie and called the Shirremoote the Bishop of the Diocesse and the Alderman or Carle of the Shire shoulde be present the the one to informe the people in the lawes of God and the other to instructe them in the lawes of the lande Archaionom in legibus Canuti Cap. 17. And it were to be wished that as there is commonly at euerie Assises a Sermon vttered by some learned man so also the like might be at each generall or Duarter Sessions of the Peace For séeing that the lawes of men must be obeyed for God it doth of necessitie ensuc that he which will séeke to haue man obeyed rightly must first cause God to be preached truly The Iustices of the Peace saith M. Fitz for therepartes be bounde to enforme the people And no doubt the charge is giuen aswel to instruct those that be ignoreāt least they offende vnwares as to enquire of those that haue alreadie fallen into daunger by offence and thereof it is that many Statutes do expresly commaund that they shall be openly read or declared at the Sessions as you shall sée in place for it But the manner of giuing the charge and receiuing the Verdite at this day differeth from that whyche the Iustices in Eire were wont to vse for you maye sée in M. Bracton Fol. 116 that first one of the Iustices did open before the whole assemblie the benefites of the seruice in hande the commodities of kéeping the Peace and the euilles of the contrarie and that then the Articles of the charge were read by one and one to the Iurours who receiuing the same at the handes of the Iustices did also make aunsweare in the yéelding vp of their Verdite to each Article seuerally and by it selfe The auntient order of giuing the charge in Eire Which custome as it had many profits so is it worthie in mine opinion to be recontinued and brought in vre againe neyther oughte the multitude of the Articles nowe inquirable to discourage any man in this behalfe For if those Lawes whych be leaste seruiceable either for the presente time or for the place or other iust respect were onelie touched or runne ouer by way of thorte Article then would there bée the more time affoorded for spéeche that mighte bée well spente as well in discourse of exhortation or dehortation as in the larger handling of suche other Statutes whereof there is greater vse and necessitie And this libertie the Iustices in Eire themselues did vse also as the same M. Bracton in the same place reporteth The points of the charge that wée haue in hande may bée reduced to a fewe heads and that after sundrie sorts of distribution of which for examples sake I will shewe you some first thus The pointes of the charge diuided Al the matters inquirable bée either Eccleasticall or Temporall and these Temporall be either high treason petite treasons felonies or otherwise punishable and finable offences Or thus All these pointes doe either cōcerne God the Prince or Subiect Or thus All these Articles bée offensiue either against the first or the seconde Table of the ten Commaundements of God Or thus All these matters bée inquireable eyther by vertue of the Commission of the Peace and of the Statutes therein conteyned or else by power of the