EIRENARCHA: or of The Office of the justices of Peace, in two Books: Gathered. 1579. and now revised, and first published, in the. 24. year of the peaceable reign of our gracious Queen ELIZABETH: By WILLIAM LAMBARD of Lincoln's Inn Gent. Hae tibi artes erunt, pacique imponere morem. AT LONDON: Imprinted by Ra: Newberry, and H. Bynneman, by the ass. of Ri. Tot. & Chr. Bar. ANNO. DOM. 1581. TO THE RIGHT HONOURABLE, SIR Thomas Bromley, Knight, Lord chancellor of England. AFTER such time as it liked you (Right honourable) to command my name to be put into the Commission of the Peace for Kent, I thought it my part, aswell for saving you (my special good L. and favourer) blameless in the Choice, as also for mine own Information and discharge in the Service itself, to look diligently into that portion of our Law which concerneth the office of the Peace, wherewith I had before that time very little or none acquaintance. And therefore, in greedy appetite, I began first with M. Fitzherbertes treatise of the justicers of Peace: then went I to an other ancient book, of the same Argument, but of an Author unknown to me, and thirdly I came to M. Marrows reading. All which when I had perused, I seemed to myself to have taken same such taste of the thing that I sought, as did rather incense than satisfy my thirst and desire. Wherefore, seeking after a full meal, and calling to minds that it was truly said, Gratiùs ex ipso font bibuntur aquae, I betook me to the old and new books of the Common Laws, and to the volumes of the Acts and Statutes and (mistrusting the slipp●rnesse of mine own ms●●e●ie) I did vapon a second reading plot the master with my pen, and made (as it were) a Module thereof in a small book, wherein I brought together stuff of ●●h kind, sorted in beap●● 〈◊〉 l●●ed veadie to be wrought and framed. Howbeit, I did not then purpose, te have waded any deeper in this ford, as fearing that the water was higher than my head, and thinking it sufficient for mine own pri●●●● use, 〈◊〉 have some serviceable furniture ready at hand, though otherwise neither much orderly digested nor painfully penned. But, when as (through daily occasion to use that book abroad) I had emparted it with other men, I was persuaded by sundry godly, wife, and not untegrned gentlemen, my friends, that the more part of the justices of the Peace, at this day had need of some help in writing for their better conduct in that office, & that it might increase the knowledge of many of them, and consequntly do a common good, to have the book made common by Impression. Then again, I took the book into my bands, and ripping (stitch by stitch) my former doing, I enlarged the work gra●●ing unto it more breath & roo●● of speech: I planted Precedentes here and there in it: I gave it some light of Order & Method: and added withal some delight of history and Record: Finally, framing it altogether to commune conceit and practice, I provided (as I might) both for profit and pleasure and fraught and laded it with the bact ware of counsel and advice that I had of mine own, or could borrow of my friends, determining so to send it from the Cape of good Hope, and to adventure it to the Seas and winds of the judgements and reaportes of other men. The same now (my singular good L.) though neither aunswearable to your worthiness, nor to mine own wish, I am bold to present unto you, being there unto carried by these respects. First, trusting that you, which do go before them all (in the perfect knowledge of our Law) that have gone before you in that honourable place which you now hold, will according to the Rule of Law (in your own hands) rectify the Commission of the Peace, and some other crookedness, whereof this book shall bring complaint before you. Secondly, assuring myself, that if you shall not condemn or Cancel it, but shall allow it, and seal (as it were) the writ De pace for it, then both I shall find the better comfort and defence, and the books itself shall have the more courteous entertainment and freer passage with other men. Lastly, wishing that it may remain a perpetual Monument of the Sacrifice of mine own thankfulness for those your rare and long continued favours, from time to time (even undeservedly) bestowed and cast upon me. Vouchsafe therefore I pray you (my very good L.) this slender gift, as the hand and from the heart of him, who (if he had equal mixture of might, to his mind) would give you that which should be proportionable to the setting forth of your Honour, and the acquittal of his own duty and devation towards you. The Lord of Lords, bless (you for his Christ's sake) with the spirit of godly and courageous wisdom, and make you a long and happy counsellor of this Estate, to the furtherence of his holy Gospel, the weal of the English nation, the true service of the Queen's Majesty, and your own Honourable and long lasting memory, Amen. From Lincoln's Inn, this 27. day of janurrie. 1581. Your H. most humble, and ready to be commanded in the Lord, WILLIAM LAMBARD A Table of the Contents. The Contents of the chapters in the first Book. The Proheme. Pag. 1 CAP. 1. What justices of the Peace be: and why called justices. 3 2 Of the signification of the word, Peace. 4 3 Of such as had the Conservation of the Peace at the common law. 11 4 Of the first ordaining of the Wardens and justices of the Peace by Statute law. 20 5 By whose authority, and by what means justices of the Peace be appointed, and of what forts they be. pag. 26 6 What manner of men the Commissioners of the Peace ought to be. 32 7 How many Commissioners of the Peace there ought to be in each County. 36 8 The form of the Commission of the Peace. 39 9 Certain observations, concerning the matter & form of the Commission of the Peace. 46 10 Of the two oaths ministered to the justices of the Peace. 57 11 Of the power absolute and limited, that the justices of the Peace have. 63 12 Of the jurisdiction and coercion, belonging to the justices of Peace. 65 13 That justices of the Peace be judges of Record. 69 14 How long time the authority of the Commissioners of the Peace is to endure, and by what means it may be suspended, or determined. 74 15 That all the authority of the justices of the Peace it exercised either out of the Sessions, or at (or by reason of) the Sessions of the Peace. 80 16 Of Surety of the Peace, and the Good abearing, and of sundry things incident unto the same, & what one justice of Peace out of the Sessions may do therein. 82 17 Of the Breach of the Peace without a Multitude, against the person, and how it may be stayed or punished by one justice of Peace out of the Sessions pag. 132 18 Of the Breach of the Peace without a Multitude, or with a Multitude by forcible entry into lands, or tenements, and what one justice of Peace out of the Sessions may do therein. 145 19 Of other breaches of the Peace with a multitude, as by Riot, Rout, or unlawful assembly etc. And what one justice of Peace out of the Sessions may do therein. 172 20 What other things one justice of the Peace alone, may do out of the Sessions, by virtue of Statutes mentioned in the Commission. 184 21 What other things one justice of the Peace may do, out of the Sessions, by the power of other Statutes not mentioned in the Commission. 190 22 What things any two justices of the Peace may do out of the Sessions. 227 23 What things some two justices of the Peace may do out of the Sessions. 246 24 What things, three, or more, justices of the Peace may do out of the Sessions. 273 25 Of the Reward, and punishment of justices of the Peace for things done, not done, or missdone, out of the Sessions of the Peace. 276 The Epilogue. 281 The Contents of the chapters in the second Book. The Proheme. 283 1 The description of the Sessions of the Peace. 284 2 Who shall appoint the Sessions of the Peace and how, and where. 289 3 What persons ought to appear at the Sessions: And therein of the G●●stos Ro●●lor●, the Records of the Sessions, and the Clerk of the Peace, and how the Iuro●●s aught to be qualified and ordered. 294 4 Of the Articles that are to be given in charge at the Sessions of the Peace. 310 5 Of the indictments and Presentmentes given by the Iuro●●rs: and of the matter and form, and receiving and rejecting and rejecting of them. 383 6 Of the Presentments and Informations of Officers, and other men. 403 7 Of the Impediments of proceeding upon indictments before justices of Peace. 409 8 Of the Process upon indictments and Informations. pag. 415 9 Of hearing upon Confession. 426 10 Of hearing by Diserection. 428 11 Of hearing or Trial upon Examination. 431 12 Of Trial or hearing by Cer●ifieas. 434 13 Of hearing or Trial by Traverses. 436 14 Of Trial upon Arraignment, and therewithal of Felot●es. 449 15 Of judgement. 453 16 Of the Process for the Fine of the Queen, and of the assessing thereof: and of Estreating for the Queen. pag. 458 17 Of the executory Process, and execution for the parties that sue, or for other persons. 469 18 Of Certifying Records of the Sessions of the Peace to other Courts, or Officers. 472 19 Of the General of Quarter Sessions of the Peace. 477 20 Of the Special Sessions of the Peace. 500 21 Of the Rewards and Punishments due to justices of the Peace in respect of their Sessions. 503 The Epilogue. 518 The end of the Table. EIRENARCHA: Or, of the Office of the justices of Peace. THE PROHEME. TO write of the Office and Duty of justices of the Peace, after M. marrow (whose learned Reading in that behalf made the xviii year of King Henry the seventh, is in many hands to be seen) and after justice Fitzherbert (who published an excellent treatise thereof, which is yet every where be had) may at the first seem no less unadvisedly done, than if a man should bring Owls to Athens (as the Proverb is,) or sticks into a growing Wood or Copise. Howbeit, if it be considered, that since their time, this Office is charged with many Statutes, which were not made when their writings were penned: and if it be weighed also, that sundry things in them had then the the force of law, which now at this day they have lost by alteration of like authority: It cannot be thought altogether in vain, to confer their writings with the Book cases, & Statutes that have arisen of latter times, and out of them all to collect some discourse, that may serve for the present age wherein we now live, and somewhat further the good endeavour of such as be not trained up in the study of the laws. In which doing, as I mean to rob no man of his right, but to yield to each one the due praise of his own, fearing, lest (as the Poet said) Moveat Cornicula risum, Furtivis nudata coloribus: So if I myself shall be found here and there to dissent in opinion from other men, I desire heartily that my good meaning be not evil interpreted, that my allegations and reasons be weighed indifferently, and that the respect of my person bring no prejudice to the thing in question. ❧ What justices of the Peace be: and why called justices. CHAP. I. JUSTICES of the Peace, A definition (or description) of justices of the Peace. be judge of judges of Record, appointed by the Queen to be justices within certain limits, for the Conservation of the Peace and for the execution of sundry things comprehended in their Commission, and in divers laws committed unto them. These, and many other judicial officers in our law, be called justices (per metonymiam subieti) because they do (or should do) law and justices. For in many old Histories, Why they be called justices. the Chief justices of England, is termed, Capitalis justitia, and Prima (post Regem) in Anglia, justitia: and the Original writs that are in M. Glanuils' Book (which was written under the reign of king Henry the second) have this form, quod sit coram me, vel justitijs meis: And this (no doubt) was done of special purpose, and to the end, that the mention of their name should put them in mind of their office, and should continually (as it were) solicit them to administer justice, for whole sake they were appointed. But in the days of King Henry the third, M. Bracton (who reduced the body of our law into Latin, and therein imitated the Method of the Civil Lawyers) changed the word justitijs, into justitiarijs, (how Latin like, let them judge that can skill) and setteth down the writs accordingly, coram justitiarijs nostris. Since which time, not only all our writs that command appearance before the justices at Westminster, do use the word justitiariss but all Commissions of Sewers, of the Peace, of Oyer & Terminer, and such like, do observe the same form also. And of this it cometh, that M. Fitzherbert (in his treatise of the justices of Peace) calleth them justicers (contractly, for justiciars) and not justices, as we commonly (and not altogether unproperly) do name them. Of the signification of the word Peace. CHAP. II. Peace, hath many significations. OF the Latin word Pax, the Normans framed their Paix, and we out of the that, our peace: which name hath sundry significations in the holy Scripture: For there is an inward, and an outward Peace. And this inward Peace, is either good, or evil: First then, there is pax apud Deum, that is to say, our reconciliation made with God the father, by the death of Christ his son, who is pax nostra, and hath appeased the wrath of God for our sins, Our of this proceedeth an other inward Peace, named the Peace of Conscience, for that our Conscience is (by faith in Christ) at Peace, both with God, and itself. The evil inward Peace, is the same where of our Saviour Christ spoke, saying, pacem do vobis, non quemadmodum mundus dat: And this Peace, the Kingly Prophet David calleth pacem peccatorum, because it is no better than carnal security. The outward peace, hath respect to other men, and that is of two sorts also: the one is opposed (or set) against all manner of striving and contention, whether it be in countenance, gesture, word, or work: of the which S. Paul spoke to the Romans in these words: Si fieri potest, quantum in vobis est, cum ●mnibus hominibus pacem habetote: And in the same meaning, the Latin men say, pace tua, by your leave, or favour, without your offence, or displeasure. The other is only an abstinence from actual force and offer of violence, and is rather contrary to arma, pralium, and bellum, (which can not be without force, or arms) than it is lis, pugna, or certamen, which (as Laurence Valla confesseth) may be nudus verbis, & citra arma. And hereof also our Saviour Christ spoke, when he said, Non veni ut mitterem pacem, sed gladium. The law of our Realm Peace in our Law likewise, useth the word Peace diversly, but yet so, as it is altogether occupied about these outward pieces. For, as Cicero said of frauds, aliter leges, aliter Philosophi, tollunt astutias: leges quatenus manutenere res possunt, Philosophi quatenus ratione & intelligentia: even so may I truly affirm, that (in the matter of Peace) the law of God (which only is the true Philosophy) respecteth the mind & conscience, although the laws of men do look but to the body, hands, and weapons. Sometimes therefore, the word Peace is taken for Proctection, or defence: as where M. Bracton calleth the writs of Protection, Breuta de pace: Sometimes (as it seemeth to me) it is taken for Rights, Privileges, and Liberties, as in the oath of the Queen at her Coronation, she sweareth, servare Ecclesiae Dei, Cleri, & Populi, pacem ex integro the meaning whereof is, (as I suppose) that she will maintain each degree and estate of her Subjects, as well Ecclesiastical as Temporal, (for populus comprehendeth all the laity) according to their several customs, Laws, and Privileges. And sometimes it is taken for a withholding (or abstinence) from that injurious force & violence, whereof I spoke before. Peace, for justices of the Peace. And this is it that is most commonly understood by the word Peace, in our law: and for the maintenance hereof chief, were these Wardens and justices of the Peace first made and appointed. For justices of the Peace were not ordained (as some have thought) to the end to reduce the people, either to an universal unanimity (or agreement) of minds, which is in deed a thing rather to be wished for, than to be hoped after: Neither is it any part of their office, to forbid lawful suits and controversies (which nevertheless be disagréements of minds:) But to suppress injurious force and violence, moved against the person, his goods, or possessions. And that this may appear to be the mind or the king, which first created these Wardens, or justices of the Peace (I mean King Edward the third) let me show you the writ that he in the first year of his reign, and not many weeks before the parliament in which the Gardens of the Peace, (which afterward obtained the name of justices of the Peace) were first ordained, did send to the Sheriffs of each Shire in England, bearing this form: Edwardus Dei gratia Rex Anglia, Dominus Hybermae, Dux Acquitaniae, Vicecomiti Kanciae salutem. Tho. Wal●ugham in ●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 aneovit à regimine dictiregni, volens & concedens quòd nos (tàquam ipsius Primogenitus, & Haeres ipsious) regni gubernationem & regimen assumamus: Nosqúe ipsius patris beneplacito in hac part de consilio & avisamento Praelatorum, Comitum, & Baronum praedictorum annuentes, gubernacula suseepimus dicti regni, & Magnatum recepimus, ut est moris: Desiderantes igitur pacem nostram proquiete & tranquillitate populi nostri inviolabiliter obseruavi, Tibi praecipimus, quòd statim visis praesentibus per totam Ballivam tuam pacem nostram facias publicè proclamari, universis & singulis ex part 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, & semper crimus, omnibus & singulis conqueretibus, tam diuitius quam pauperius in Curijs nostris plenam justitiam exhibere. Teste meipso, Caledas Februarij, die dominica, in vigilia purificat. etc. This Writ I have the rather set down at large, because it containeth a fair show of a foul deed, I mean, his attaining to the crown, by the deprivation of his father. But (for the present purpose) by this Writ it is manifestly declared, that the Peace which he meant, was not an uniting of minds, but a restraining of hands, which is (in a manner) all one with that which Tully 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 judicem reposcit: Est autem interdum armata, interdum inermis. According to which meaning also, the old Statute of Westminister the first (ca 1.) said: Let the peace of the land be maintained in all points, and common right be done to all, as well poor as rich. Thereupon likewise saith the Statute (1. R. 2. ca 2.) Let the peace be well and surely kept, that the King's subjects may safely go, come, and abide, according to the law of the Realm, and that justice and right be indifferently ministered to every Subject. Finally, the Statutes of 2. R. 2 ca 41. H. 4. ca 1 and 7. H. 4. ca 1. Do all (in plain speech) couple the maintenance of the Peace, with the pursuing of suits, as things that may right well stand together. And therefore, I conclude, that this furious gesture, and beastly force of body, or hands (and not every contention, suit, and disagreement of minds) is the proper subject and matter, about which the Office of the justices of the Peace is to be exercised. Nowbeit I writ not this, as though I would not have a justice of the Peace to occupy himself also in pacifying the suits and controversies, 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 think him so much the meeter to steps in betwirt those that be at variance, as (by reason of his learning, wisdom, authority, & wealth) he is like to prevail more, by his mediation and entreaty, than another man. justices of the Peace, be meet to pacific suits. But, as it is not all one, speak of his proper office in Law, & of his common duty in Charity: so I thought good to sever and distinguish them. Of such as had the Conservation of the Peace, at the common Law. CHAP. III. As the common law hath, even from the beginning, continued a special care for the peace: So did it not want meet Officers (before that these Wardens or justices of the Peace were made) to whose charge it did commit the maintenance of the same: And for as much as it will give no small light to the understanding of the office of the present justices of Peace, to have that ancient authority unfolded, upon the which this latter power is (as it were upon a Stock) set and engrafted, I will speak some what thereof, before I begin with the other. At the Commune law therefore, and before the time of King Edward the third, there were sundry persons, that had interest in the keeping of the Peace. conservators. Of these, some had that charge as incident to other Offices that they did bear, and so included within the the same, that they were nevertheless called by the names of their other Offices on lie: Some others had it simply as of itself, & were therefore named Custodes pacis, Wardens or conservators of the Peace. By other offices. Again of there that had charge over the Peace by the dignity of their Offices, some had that power over all the Kealme, some others had it within certain limits only: & both these sorts after a divers manner of dispensation as in particularity it that appear. The Queen's Majesty than is, by her Office & dignity royal, the principal Conseruator of the Peace within her Dominions, and may give authority to others, to see the Peace kept, and to punish such as shall break the same. But a Duke, Earl, or Baron, be no conservators of the Peace, because those be no titles of Office, but of dignity only, saith Mar. The Lord chancellor or Lord Keeper of the great Seal, the L. Steward of England, the L. Martial and Constable of England, and every justice of the King's Bench, have (closed in their offices) a credit for conservation of the peace over all the Realm, and may award Precepts, and take Recognizances for the Peace. Mar. & Fitz. And by good opinion, The L. Treasurer of England may well be added to the number of these. The M of the Rolls also by the opinion of M. Mar is a general conservator of the Peace by his office. But he maketh Process & taketh Recognizances thereupon, not as incident to his office, but by prescription. The justices of the Common place, and Barons of the Escheaquer, be conservators within special places only, that is to say within the precinates of their several Courts: So also the justices of Assizes may award a man to prison that breaketh the peace, in their presence, and they may come mand the keeping of the peace under a pain, and that weapons be taken from the jurors or Witnesses, that appear before them, if any complaint be thereupon made: But as they be merely justices of Assize, they can neither take Surety of the peace, nor award any Process for it. Mar. The justices of jail delivery, may take surety for the Peace of a prisoner before them, that was committed for not finding surety of the Peace, Mar. The Coroners (siath Britton. Fo. 3.) ' be principal conservators of the peace within their Counties: And every Sheriff is a conservator of the Peace, within his County as judge Fineux affirmed 12. H. 7.17, & and after him M. Fitzh. in Nat. Fo. 81. where he saith that the Sheriff may (upon request made, & without any writ scent unto him) command a man to find such Surety of the Peace by Recognisance. The Steward of the Marshalsey, may take Surety of the Peace, by Recognisance also within the Verge, by prescription: and the Constable Martial of the queens house, may see to the Conservation of the peace within the same house, Mar. The Steward of the Sheriffs Turn, the Steward in a Lecte, or the Steward in a Court of Pipowders, can not grant Surety of the peace, unless it be by Prescription: But every of them, may commit him to ward, that shall make an affray in their presence, whilst 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 be short, every Constable, Peticonstable, tithing-man, and Borowhead, be conservators of the Peace by their offices, within the limits of their Hundreds, towns, Tithings, and boroughs. 12. H. 7. 17. Fineux. And by the same reason, our Borsholder in Kent, and their Thirdborow in Warwickshire, be conservators also within they● boroughs. For Borowhead, Borsholder, & tithing-man, be three several names of lemma self-same thing, and do signify, The chief man of the free pledges within that Borow, or Tithing. And where each third borrow only hath a Constable, there the officers of the other two boroughs, be called Thirdeborowes. These Constable's were ordained (as it appeareth 3. H. 4.9. & 10. E. 4. & Fitzh. Fo. 172.) to keep the peace, and to repress forlons, and might take surety of the Peace (by obligation) if they found any man making an affray, or otherwise to commit him to prison till he should find such Surety. I have read also that a Constable, might at the common law, have bailed a suspect of felony by Obligation, because he was a Conseruator of the Peace: and that both he and the Sheriff lost this authority by the Statutes (3. H 7. ca 3. & 1. & 2. Phill. & Mar. ca 13) Which in giving that power to justices of the Peace, do (in the opinion of some men) take it from the Sheriff and Constable: reported by Dalison justice. Hitherto then, Simple conservators. of such as had, and yet have the charge of the Peace conveyed under their other Offices. Now as touching those that had the simple Office of Wardens (or conservators) of the Peace, it is to be understood, that they also were of two diverse sorts: that is to say, either Ordinary, or Extraordinary: and the Ordinary conservators, were either by Prescription, Election, or Tenure. Ordinary conservators, Ordinary. A man may prescribe (saith M. Marrow) that he and his ancestors, or he and they whose estate he hath in the Manor of Dale, have been conservators within the Hundred of Sale, either all the year, or only at one certain time of the year: And as he may prescribe in the power itself, so also may he in the manner of the exercise of the same, as that they have used to take the Surety of Peace by obligation, pledge, or Caution, & so also in the manner of the Process therefore, as to Distreigne, and to sell the distress, 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 Mayor of Dale cannot prescribe to be a conservator, or to command Surety of the Peace, & to commit to prison for an affray in his presence, until such surety be found. Furthermore, even as the sheriffs, were auntientlie chosen, and as the Coroners yet be: So also certain persons were wont to be elected conservators of the Peace, in the full County before the Sheriff and of this kind I myself have seen certain Records (in Rotul: patent. de Anno. 5. E. 1.) running in this course. By Election. First, a writ to the Sheriff of Norfolk, commanding him to choose in his full County, unum hom●nem de probioribus & potentio●●bus Comitatus s●●, in custodem pacis. Then an other writ directed, Ballivis & fidelibus of the same County, giving unto them notice of the former writ, to the end (as it seemeth) that the Bailies should warn the men of the County and that they should appear at the County Court, to make the Election. And lastly, to the conservator elected, this writ following: Edwardus dei gratia Rex Angliae, Dominus Hyberniae, & dux Aquitaniae, dilecto & fideli suo, johannt le Bretun Salutem Cūvicecomes noster Norfolc et communitas 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 cu●us rei etc. Datum per manum venerabilis patris. F. Bathon & Wellen. Episcopi, Cancellarij nostri, apud Cest. secundo die Septemb. Annoregni nostri quinto. Touching the conservation of the Peace by Tenure of Land: M. Marrow putteth this case: If the King grant unto a man, lands to hold of him by Kinghtes' service, and to be a conservator of the Peace in a County, he is a conservator by Tenure: agreeably whereunto saith an Inquisition, found 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 ut de feodo die quo obyt, Medietatem Seriantiae pacis, per seruitium inveniendi, decem serutentes pacis ad Custodiam pacis in Cestr: pro qua quidem custodia antecessores sui percipere solebant. thirty. ●. per annum ad scaccarium Cestr: pro Mantellis dictorum decem seruientum. etc. These sorts, and some others (which M. Marrow reciteth, and which I, wanting Records to warrant them, do omit) I call Ordinary conservators of the Peace, because their authority was then Ordinary, always one, and the same well enough known: Extraordinary conservators. But the Extraordinary conservator, as he was endowed with an higher power, so was he not ordinarily appointed, but in the times of great troubles only, much like as the lieutenants of shires are now in our days. And he had the charge to defend the coasts and Country, both from foreign and inward enemies, and might command the Sheriff and all the Shire, to aid and assist him, as it may well appear by this Patent (remaining of Record in the Tower, Rotul. Patent. de An. 49. H. 3.) made by that king, or rather in his name, by Simon the Earl of Leicester, whose prisoner he then was. Rex johanni 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 & circumspect 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 iniunximus. Mandavimus enim Vic: nostro Northumb. quod (quotiens opus fuerit) & à vobis fuerit requisitus, cum toto posse sui commit: vobis ad hoc assistat. Nolumus autem, quod praetextu huius mandati nostri, de aliquibus (quae ad officium vic: pertinent) vos intromittatis, quo minus vic: de exitibus eiusdem commit. nobis plenè respondere valeat ad Scaccarium nostrum. Teste Rege, apud Westmonast. xj. die February, Anno Regni sui quadragesimo nono. And sundry the like Patents were at the same time also made: as to jobn de la hay, to be conservator of Kent, and of the Sea coasts there: to Ralph Baslet of Drav●on, to be conservator of Staffordshire, and so to others for other Counties. Of the first ordaining of the Wardens and justices of the Peace, by Statute Law. CAP. four After such time as Queen Isabella, contending with her husband King Edward the second, was returned over the Seas into England, accompanied with her Son Prince Edward (called afterward the third King of that name) and with Sir Roger Mortymer and such others of the English Nobility, as had for the indignation of the King, fled over the Seas unto her. She soon after got into her hands the person of the old King, partly by the assistance of the Hen●lders, that the brought with her, and partly by the aid of such other her friends, as the found ready here, and immediately caused him by forced patience to surrender his Crown to the young Prince. And then also, for as much as it was (not without cause) feared, that some attempt 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 end that his favourers should be ignorant what was become of him. Yea, and then withal, it was ordained by Parliament, in the life time of that deposed King, and in the vary first entry of his sons reign (1. E. 3. ca 15) That in every Shire of the Realm, good man and lawful (which were no maintainers of evil. nor Barrators, in the Country) should be assigned, to keep the peace: which was as much as to say, that in every Shire, the King himself should place special eyes and watches over the common people, that should be both willing & wise to foresee, and be also enabled with meet authority, to repress all intention of uproar and force, and that even in the first seed thereof, and before that it should grow up to any offer of danger. So that, for this cause (as I think) the election of the simple conservators or Wardens of the Peace, was first taken from the people, and translated to the assignment of the King. And whether their authority and power were then also with this alteration any thing increased, or no, I will not affirm: But I find (3. E. 3. Titul. Coron. Fitzh. 360.) that an inditement of murder was found before one warden of the Peace only, and that he thereupon wrote his letter (or precept) to the Sheriff, to apprehend the person indited, who took and brought him before the justices in Eire, and that they also thereupon proceeded to the arraignment and trial of him: And the Statute (4. E. 3. ca 2.) taketh order that such as should be indited, or taken by the Wardens of the Peace, should not be bailed by the Sheriff, or other Ministers, unless they were Mainpernable by the Law. Howsoever that were, the same King used (as I think) for the first 33. years of his reign, to make his assignments and commissions to the Wardens of the Peace, not always severally into each Shire, but sometimes jointly to sundry persons over sundry Shires: for so I find a Commission 2. E. 3. part 2. patent. in dorso, made to William Roos and three others his companions, to be Wardens of the Peace, not only in Lincolnshire, but also in three or four of the other Counties thereunto next adjoining. Commissions, or assignments, for the Peace. And this might be warranted after 18. E. 3 (as I suppose) out of the Construction of the word County used Plurally in the Statute. 18. E. 3. Stat. 2. ca 2. contrary to the meaning of the former laws (made 1. E. 3. ca 15. & 4. E. 3. ca 2.) where the same word is read (Every County) in the Singular number. But the Parliament (34. E. 3. ca 1) restored the proper sense of those laws, saying: In everse County of England, there shall be assigned for the safe keeping of the Peace, one Lord, and with him, three or four of the mightiest men in that County. And afterwards, speaking of Felonies, etc. it addeth, They shall have power to hear and determine (at the King's suit) all manner of the felonies or trespasses, done in the same County. Hereof it cometh to pass, that ever since each County hath her proper Commissioners for the Peace, & that Counties have not been conjoined in Commission, as they were sometimes before. Hereunto also may that be referred, which M. Fitzh. (Fol. 171.) hath, saying, That before the Statues which ordained justices of the Peace, the King used to make conservators of the Peace by his commission, in those Counties and places, where he thought best, to keep his Peace. But now, at what time these Wardens of the Peace, were first named (and might truly be termed) justices of the Peace, it is not so cuident, that I dare determine upon it, for on the one side I know, that M. Marrow, taketh it clear, that they were made justices by the Statute 18. E. 3. Stat. 2. ca 2. and on the other side I see, that they were not named justices in any Statute (that I have found) within 17. years after: and it is true to this very Day their own Commission giveth them not any such Title. There is a show (I confess) in that Statute (18. E. 3) that they sshoulde be justices, because of the power to hear and determine felonies which is mentioned there. The First name of justices of the Peace. But if it be well weighed, it will appear by the Statute itself, that the Wardens of the pear were to have one Commission by themseluse for the keeping of the Peace, & that they and others (only at times needful) were to have an other Commission to hear and determine Felonies: So that, as they were méerlye Commissioners for the Peace, they had none authority to determine felonies, and consequently could not (in regard thereof) be then worthily called justices: and it is plain (in mine opinion) that the general power of determining felonies, was first given unto the Wardens of the Peace (as to themselves) by the Statute 34. E. 3. ca 1. After which time it is very true that were were commonly reputed and called justices: for within one year after that time there is a Commission, which I have sséene (in dor so patentium part 2) that speaketh thus, Assignavimus etiam vos, & tres vestrum, justictarios nostros etc. and the Statute (36. E. 3. ca 12.) taking order for the Quarter Sessions to be holden as well by them, as by the commissioners for Labourers, called both the sorts of them, by the name of justices. I might here disclose, home, and by what degrees, the authority of these justices of the Peace, was from time to time enlarged: But I will reserve that until I shall come to the form of their Commission, where I shall find, both fit occasion, and more proper place for it. By whose authority, and by what means, justices of the peace be appointed: and of what sorts they be. CHAP. V. FRom the king (who is the head of justice) ought to flow all aucoritie to the inferior and subaltern jusrices. And upon this reason, it seemeth that the said Statutes (18. E. 3. ca 2 and 34. E. 3 ca 1.) did ordain, that the Wardens of the Peace in each County should be assigned by the king's Commission, that it might thereby appear that they received their whole authority and power, as it were by his own hand and delivery. Howbeit afterward, partly through such as had jurategalia, within their Counties Palatine, and did thereby make justices of the Peace in their own names, and partly by the means of sudrie abbots and Religious persons, who (labouring by all policy to increase their jurisdictions, and to shoal out themselves from the ordinary government) had obtained grants from the King of the Realm, that they themselves might make justiciarious suos ad pacem coseruandam within their own liberties, this prerogative of making jusstices was in many places afterward severed from the Crown, to no small detriment of the royal estate of the same. And therefore, although by the opinion of judge Fineux in the Abbot of S. Albans case (20. H. 7. 8.) such a grant was of no value in law, because it was of a Prerogative inseparably annered to the Crown, yet King Henry the eight thought it fit (by a general resumption in Parliament of all such liberties) to restore unto the Crown her ancient right in this behalf. And thereupon (27. H. 8. ca 24.) it was decriéed, that no person whatsoever, should have any power to make justices of the Peace, but that they should be made by letters patents under the King's great seal, in the name and by the authority of the King and his heirs, Kings of the Realm, in all Shires, Counties Palatine, and other places within his dominions. So that now again, all justices of the Peace at this day (except the Archbishop of Yoke, and the Bishops of Durham, and El●e, & their temporal chancellors for the time being, which are severally by that very Parliament authorised to be justices of the Peace, within the liberty of Hexam, the Bishopric of Durham, and the isle of Else: and except the justices of Peace, within the County Palatine of Lancaster which also are by provision in the same Statute to be made vuder the King's usual seal of the same Duc●●e) be ordained by the mean of the great Seal, and ministery of the L. chancellor, that hath the charge of the same, but yet so, that some of them be made by Letters Patents upon special suit to the Queen, and by her bill assigned, and other some by Commission of Commune course that resteth in the dispensation of the L. chancellor. Two sorts of justices of the peace. They of the first sort, be of some called Indiciall justices and justices of themselves, for that the Queen can not discharge them at her will and pleasure, but they are to continue, and to enjoy Inrisdiction so far forth as their Patent of grant doth enable them. Mar. By grant. And therefore, if the Queen do grant unto amman to be a justice of the Peace during his life within a certain precinct, without any further words: he shall continue such a justice during his life, and shall have all that power that a warden or conservator of the Peace had, and perhaps such power also as is given so a justice of the Peace by express words in any Statute: but the shall not have all that power which is ordinarily given so the Commissioners of the Peace by their Commission. Mar The Majors, and other head officers of many Cities & corporate Towns, be justices of this kind at this day, by grants of the Queen, & her progenitors. Those other justices of the Peace, which derive their power from the Commission, be called Commissioners of the Peace, and do differ from the other in this point specially, that they be justices during only the Queen's life, and in her life during only her own will and pleasure, as you shall hereafter see at large, By Commission. These (as I said) be now at this day appointed by discretion of the Lord chancellor but whether the King himself did at the first nominate them (as he did those which were made by Grant) or else did leave the choice of them to the Lord chancellor alone, or to him and others, it hath some show of question. Commissioners of the Peace, appointed by the Lord Chancellor. It is true that in the Parliament hold at Canterburte 12. R. 2. ca 2. (which happened shortly after that Michael de la pole had been removed from that place, and after the troublesome Parliament of the eleventh year of that king's reign) It was enacted that the chancellor, Treasurer, and keeper of the privy Scale, the Steward of the king's house, the king's Chamberlain, the Clerk of the Rolls (now called Master of the Rolls) the justices of both Benches, the Barons of the Escheaquer, and others that should be called to the naming of the justices of the Peace, Sheriffs, Eschactors, Customers, Controllers, and other officers, should be sworn to do the same faithfully, and without affection: But, whether the meaning of that Statute were, that they all should be continually present together at the nomination of all such officers, and whether that Statute were made but for that busy time only, it may well be doubted. For again upon fault found (as it should seem) that the Commissioners of the Peace were made of persons insufficient, and dwelling in foreign Counties, it was enacted (2. H. 5. Parl. 2. ca 1.) that from thenceforth they should be assigned by the advise of the Chancellor & of the king's Counsel, which words may be taken to sound as though they had been named before, by the Lord Chancellor alone: yet may they indifferently be extended, either so adjoin the advise of the king's counsel to the chancellor, or the advise of them both unto the king himself. This is out of all doubt, that 18. H. 6. ca II. did take order, that upon knowledge given to the chancellor of England, by any appointed to be a justice of Peace, that he had not lands to the value of twenty pound by years, the Chancellor himself should put an other sufficient in his place. And for want of sfficient men having lands of that value, learned in the Law, and good governance, that the chancellor of England, for the time being, should have power, by his discretion to put into the Commission other discrete persons learned in the Law, though they had not lands to that value. And albeit this credit were here given unto him in these particular cases only, yet it may well be thought, that he had been before, and should be afterward, trusted with the choice of all the Commissioners of the Peace generally, where of there is great presumption also, even upon the Statute. 3. E. 6. ca 1. that mentioneth, that the nomination of the Custos Rotulorum (being a very special justice of the Peace) had of long time before belonged to the Office of the chancellor, till upon some occasion it was take from him by the Statute of 37. H. 8 ca 1. and therefore was then restored to him again. What manner of men the Commissioners of the Peace ought to be. CHAP. VI IN the choice of the Wardens and justices of the Peace, the Statute laws have respect to the manners and ability (or livelihood) of them all, and to the skill and learning of such as are specially selected, and therefore named of the Quorum. For, Gardens of the Peace ought to be good men and lawful, no maintainers of evil, nor Barretours in the Country, or (as some Books have it) no mainetainers of evil Barretours in the Country. 1. E. 3. ca 15. Men of the best reputation (Meultz vailantzes) most substantial (or of most valour) shall be assigned keepers of of the Peace. 18. E. 3. ca 2. &. 17. R. 2. ca 9 In every County for safeguard of the Peace shall be assigned one Lord, and with him three or four of the (Mieultes vanees) most valiant men of the County, together with some Sages of the laws. 34. E. 3. ca 1. And after some troubles in the time of K. Richard. 2. it was enacted that none shallbe made justice of the Peace for any gift, brocage, favour, or affection: nor any which sueth by himself or any other, privily or openly, to be a justice of the Peace, shall be admitted to that office, 12. R. 2. ca 2. And of some special policy the also enacted, ca 10 of the same parliamet, that no Steward of any Lord should be assigned in the Commission of the Peace. 12. R. 2. ca 10. Yet in the Parliament of the next year (ca 7.) it was ordered, that (notwithstanding that clause of the former Statute) justices of the Peace should then be made of new in all places, of the most sufficient Knights, Esquires, and men of law. Again, justices of the Peace (especially those of the Quorum) from henceforth shall be made of the most sufficient persons dwelling in the County (without taking any others dwelling in foreign Counties) except the Lords, justices of both Benches, justices of Assize, the chief Baron, the chief Stewards of the duchy of Lancaster, the Sergeants, and the king's Attorney. 2. H. 5. Parl. 2. ca 1. Lastly, for that contrary to these former Statutes, men of small substance had crept into the Commission, whose poverty made them both covetous & contemptible, a new law was published to this effect following: None shall be assigned justice of the Peace, if he have not lands or tenements to the value of twenty pounds by the year: And if any be otherwise appointed, he shall within a month after notice of the Commission (and under the pain of twenty pounds, and to be put out of the Commission) give knowledge of his not having such lands or tenements, to the Lord chancellor, who shall put an other person sufficient in his place. And the like pain is, if he sit, or make warrant, or any precept, by force of the Commission. But this, extendeth not to Cities, boroughs, or Towns that be Counties of themselves, or that have justices of Peace (dwelling in them) by Commission or grant of the king: Nor to such Counties where there be not men sufficient (having lands or tenements to the value aforesaid) learned in the law, and of good governance: nance: for then other discrete persons learned in the Law, may by the Lord chancellor be put in the Commission 18. H. 6. ca 11. Now although this portion of twenty pounds a year, be not at this day in account answerable to the charge and countenance fit for a justice of the Peace, yet who knoweth not, that at the making of this Law, it was far otherwise: And I do not doubt, but as the rate of all things is greatly risen since that time, so is there also good care taken, that none he now placed in the Commission, whose livings be not increased according to the same proportion. And thus, our Parliaments (intending to make the justice of peace an able judge) do require that he come furnished with three of the principal ornaments of a judge, that is to say, with justice, Wisdom, and Fortitude, for to that sum the words, Good, Learned, Valiant, do well amount. And above all, that he love & fear God aright, without which he can not be ●●ounted Good at all. How many Commisioners of the Peace there ought to be in each County. CAP. VII. THE number of the Wardens of the peace, was not limited, until that the Statute (18. E. 3. ca 2.) ordenined, that there should be two or three in each County: And because it was found, within a few years' experience, that this number sufficed not for the governance of the Country, therefore by an Act (made 34. E. 3. ca 1.) it was further provided, that in every Shire, one Lord, and with him three (or four) of the Best in the County, and some learned in the Laws, should be assigned for keeping of the Peace, and to restrain offenders. In execution of which Statute, there was (amongst many other) one Commission for Kent, awared (35. E. 3.) to Robert Herle, john Cobham, Roger Northwood, Ralph Ireningham, Thomas Lodelowe, Robert Vintar, john Barry, and Thomas Hartrege. But, as it falleth out many times, that evil examples do follow of good laws: So here it came to pass, that whilst the Parliament provided an increase of Officers, to restrain offenders, ambition so multiplied the number of those justices, that it was after ward high time to make a contrary law 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 be any more than sire justices of the Peace in any Commission, besides the two justices of Assize, and certain Lords that were assigned in the Parliament itself. And for the better restraint of the increase of them in time to come, it was also then further enacted, that no Assotiation should be made to the justices of Peace, after their first Commission. 12. R. 2. Ca 10. Which law although it be not abrogated till this day, yet it was long since eluded, by making of new Commissions, that had more new justices thrust in to them. And truly it seemeth to me, that (together with the like ambitious desire of bearing rule in some) the growing number of the Statute laws committed from time to time to the charge of the justices of the Peace, hath been the cause that they also are now again increased to the overflowing of each Shire at this day. Very many justices of Peace at this day. For, if Hussey the chief justice (1. H. 7. 3) thought that it was enough to load all the justices of the Peace of those days, with the execution, only of the Statutes of Winchester, & Westminster, for Robberies and Felonies, the Statute of Forcible entries, the Statutes of Labourers, vagabonds, Liveries, Maintenance, Embracerie, and Sheriffs: Then how many justices (think you) many now suffice (without breaking their backs) to bear so many, not loads, but Stacks of Statutes, that have since that time been laid upon them: To dispute, whether it be better to have many, or few justices of the Peace, in each Shire, (if all put in were able for the place) is a noble question, & worthy of a higher consideration, and therefore it becometh not me to enter into it. justices of Peace be overladen with Statutes. The form of the Commission of the Peace. CHAP. VIII. For as much as all the authority and power of the Commissioners of the Peace, floweth out of their Commission, and the Statutes (as it were out of two Principal springs or fountains) it is now time to unfold the Commission itself, and to see what is contained in it. Two fountains of the power of justices of the Peace. ELizabetha, Deigratia, Angliae, Franciae, & Hiberniae Reginae, fidei defensor etc. Praedilecto & fideli, Edmundo Cantuar. The salutation. Archiepiscopo etc. Necnon praedilectis Thomae Bromley militi, domino Cancellario, Willihelmo domino Burghley, Thesauriario etc. saluté. SCIATIS, quòd assignauim'vos, coniunctim et divisim, adpacem nostram, ac ad Statuta & ordinationes apud Winton. Northampton, & Westmonasterium, pro oonseruatio●e pacis ciusdem, Necnon ad ordinationes ibid. & apud Cantabrigiam de venatoribuu, operarys, artificibus, seruitoribus, hostellarys, mendicantius & vegabundis, & alys hominius mendicantius qui se nominant Travailing men. Et similiter ad Statuta & ordinationes apud Westmonast. anno regni Henrici quarti nuper Regis Angliae defuncti, primo & secundo, de liberatis signorum societatis, militibus, armigeris, seu valectis, & alys liberatis pannorum minimè dandis, nec eis liberatis aliqualiter utendis: Ac ad quoddam aliud Statutum Henrici quinti nuper Regis etc. in Parliamento apud Westmonasterium etc. De controfactura, lotura, tonsura, & al●a falsitura, monetae terrae nostrae similiter editum, juxta vim, formam, & effectum eorumdem, custodiendum, & custodiri faciendum: Ac ad omnia alia ordinationes & Statuta, pro bonopacis nostrae, ac quieto regimine & gubernatione populi nostri edita, in omnibus & singulis suis articulis, in Comitatu nostro Kanciae, tam infra libertates, quàm extra (per quosreiveritas melius sciri potent) juxta vim, formam, & effectum corundem, custodienda, & custodiri facienda: Et ad omnes illos, quos (contraformam ordinationum & Statutorum praedictorum delinquentes inveneritis) castigandos, & puniendos, prout (secundum formam ordinationum & Statutorum praedictorum) fuerit faciendum: Et ad omnes illos, qui aliquibus de populo nostro (de corporibus suis, vel de incendio domorum sua rum) minas fecerint, ad sufficientem securitaetem de pace & bono gestu suo erganoes & populum nostrum inveniendam, coram vobis venire, & si huinsinodi securitatem invenire recusaverint, tunc eos in prisonis nostris, quousque eiusmodi securitate invencrint, saluos custodiri faciendum. Assignavimus etiam vos: & quoscunque vestrum, justiciarios nostros, ad inquirendum per Sacramentum proborum & legalium hominum de comitatu praedicto (per quosrei veritas melius sciri poterit) de omnimodis felonys, transgressionibus, forstallarys, regratays, & extortionibus in comitatu praedicto per quoscunque & qualitercunque. factis sive perpetratis, & quae ex nunc ibidem fieri vel attemptari contigerit: Et etiam de omnibus illis, qui in conventiculis contra pacem nostram, & in perturbationem populi nostri, seu vi armata ierunt, vel equitaverunt, seu ex modo irevel equitare presumpserint: Et etiam de bys qui ad gentem nostram Mayhemandam, velinterficiendam in insidys iacuerunt, seu ex modo iacere presumpserint. Et etiam de omnibus illis, qui capitys, & alys liberatis de unica secta, per confoederatione & pro manutenentiae, contra prohibitionem ac formam ordinationum & Statutorum praedictorum inde ante haec tempora factorum, usifuerint, & alys huiusmodi liberatis imposterum utentibus. Et etiam de hostellarys, & alys, qui in abusu mensurarum & ponderum, ac in venditione victualium, ac etiam de quibuscunque, operarys, mendicantibus, artificibus, seruitoribus, hostellarys, & vagabundis, ac alys qui contra formam ordinationum & Statutorum praedictorum (pro communi utilitate regni nostri Angliae, & populi nostri eiusdem, de huiusmodivenatoribus, operarys, artificibus, seruiteribus, hostellarys, mendicantibus & vagabundis, ac alys inde factorum) deliquerint, vel attemtaverint in comitatu praedicto, seu extunc delinquere, vel attemptare praesumpserint. 2. Clause Ac etiam de quibuscunque vicecomitibus, maioribus, Ballivis, Senescallis, Constakularys, ac custodibus Gaolorum qui (in executione officiorum suorum, erga huiusmodi artifices, seruitores, laboratores, mendicantes, & vagabundos, acalios praedictorum, juxta formam ordinationum & Statutorum pradictorum, faciendorum) indebitè se habuerint, & ex nunc indebitè se habere praesumpserint, aut tepidi, remissi, vel negligentes fuerint, aut ex nunc tepidos, remissos, vel negligentes fore contigerit: Et de omnibus & singulis suis Articulis & circumstantys, ac alys praemissis] (contra formam, ordinationum & Statutorum praedictorum, per quoscunque & qualitercunque factis, sive perpetratis, & qua ex nunc ibidem fier● vel attemptari contigerit) qualitercunque concernentibus plentius veritatem. Et ad indictamenta quaecunque (tam coram vobis, seu aliquibus vestrum, aut alys nuper custodibus pacis & justicearys domini Edwardi quarti, & Edwardi quinti super Reg: Anglia, ac R. 3. nuper (de facto, & non de iure) Regis Anglias, Necnon domini Henrici nuper Regis Angl. 7. Henrici octavi, Edwardi sexti, & Maria etc. ad huiusmodi felonias, transgressions, & malefacta in comit at a praedicto aisdienda & terminanda assignatis, virtute diversarum literarum corundem, Edwardi, Edwardi, Richardi, Henrici, Henrici, Edwardi, Maria, vobis aut alys factarum, facta & nondum terminatae, quam coram vobis & sotys vestris nunc custodibus pacis nostre, & Iusticiarys nostris huiusmodi virtute literarum nostrarum facta & nondum termenata) Inspicienda, ac ad procedendum inde, as processus (versus omnes alios, quos coram vobis seu aliquibus vestrum indictari contigerit, quousque capiantur, reddantur, sew vtlagentur) faciendos & continuandos. Assignavimus etiam vos. 79.78.77. & C. quatuor, tres, & duos vestrum (quorum aliquem vestrum, vos, A. B. C. D. etc. unum esse volumus) justiciarios nostros, ad felonias praedictas, acea omnia & singula quae per huiusmodi Hostellarios & alios, qui in abusu mensurarum & ponderum, ac in venditione victualium, & omnia alia quae per huiusmodi operarios, artifices, seruitores, laboratores, mendicantes, & vagabundos, qui contra formam ordinationum & Statutorum praedictorum, seu in eneruationem coru●dem, in aliquopraesumpta, vel attemptata fuerint, vel attemptari contigerint: 3. Clause Ac extortiones & regratarias praedictas, tam ad sectam nostram, quàm aliorum quorumcunque (coram vobis, pronobis, aut pro seipsis) conqueri, aut persequi volentium, audiendam & terminandum: Necnon transgressiones, & forstallarias praedictas, ac omnia alia (superius non declarata) ad determinanda ad sectam nostram tantum: Et omnia alia (quae virtute ordinationum & Statutorum praedictorum per custodes pacis nostrae & justiciarios nostros huiusmodi discuti & terminari debent) audienda & terminanda: Et ad eosdem operarios, artifices, & seruitores, per fines, redemptiones, & amerciamenta, ac alio modo, pro delictis suis, prout (ante ordinationem de punitione corporali huiusmodi operarys, artificibus, & seruitoribus, pro delictis suis exhibenda) factum fieri consuevit: Nec non eosdem vicecomites, maiores, Ballivos, Seneschallos, constabularios, ac custodes Gaolarum, venatores, vitellarios, Hostellari●s, mendicantes, & vagabundos, super his (quae contra formam ordinationum & Statutorum praedictorum attemptata fuerint, vel attemptari contigerint) castigandos & puniendos, secundùm legem & consuetudinem praedictas, ac formam ordinationum Statutorun praedictorum. proviso semper, quod si casus difficultatis super determinatione extortionum hu●smodi coram vobis venire contigerit, ●●nc ad judicium inde reddendum (nisi in praesentia unius Iusticiariorum nostrorum, de uno vel de altero Banco, aut Iusticiariorum nostrorum ad Assis as in comitatu praedicto capiendas assignatorum) coram vobis minimè procedatur. The charge to the justices. Et ideo vobis, et cuilibet vestrum mandamus, quod circa custodiam pacis ordinationum, & Statutorum praedictorum, diligenter intendatis, Et ad certos dies & loca (quos vos, seu aliqui vestrum, ad hoc provideritis) diligenter super praemissa faciatis inquisitiones. Et praemissa omnia & singula audiatis & terminetis, ac ea faciatis & expleatis in forma praedicta, facturi inde quod ad justitiam pertinet secundùm legem & consuetudinem regni nostri Angliae: Saluis nobis amerciametis, & alys, ad nos inde spectantius. Mandavimus 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 Balliva sua, tam infra libertates, quàm extra, per quos rei veritas in praemissis melius sciri poterit, & inquiri. To the Sheriff. Et vos prarfati Thom Wotton, ad dies & locae praedicta, brevia, praeceptae, processus, & indictamenta praedicta, coram vobis & dictis socys vestris, venire faciatis, & ea inspiciatis, & debito fine terminetis, sicut praedictum est. In cuius rei testimonium etc. Datum. 6. die Aug. Anno regninostri. 21. To the Custos Rotulourn. Certain observations, concerning the matter & form of the Commission of the Peace. CAP. IX. Master Fitzherberte, in his treatise of justices of te Peace, (Fo. 11. b.) seemeth to be of the opinion, that this form of Commission was devised, when justices Of the peace were first ordained: But (saving the reverence due to so learned a judge) I suspect that the matter is mistaken by him. For, besides that the Commission itself doth rehearse certain Statutes made in the times of King Henry the fourth, and of King Henry the fift (many years after that justices of the peace were created) It is the agreeing opinion of all the justices (2 R. 3.9.) the justices of the peace had no power at the first but only add Conseruandan pacem Regis, and that afterward when they had power given them over Felons, it was not enough for them to say (in their Certificate of an Enditement of Felony) that it was found, Coram justiciarijs Domini Regis, ad pacem in comitatu praedicto conseruandam, but that they must add withal, Necnon ad diversas felontas etc. and that otherwise their Certificate was of no value. And as it is evident, that (34 E. 3 ca 1.) was the first Statute that gave to them that power to hear and determine felonies and trespasses: So there is a Precedent to be seen (35 E. 3. in dorso patent. part. 2.) whereby it appeareth that the form of their Commission was then enlarged accordingly. Alterations from time to time, of the Commission of the Peace. After that time also, it is apparent, that sundry things were by express commandment of diverse Statutes put into their Commission, of which sort be these, the Statute (36. E. 3. ca 12.) by which there ought to be mention in the Commission, of the times of holding the Sessions of the Peace, although the same were afterwards pretermitted, because 2. H. 5. ca 4. did alter those times in apointing of others: the Act (42. E. 3. ca 6.) by which, authority over Labourers was given unto them, and willed to be put into their Commission: The Statute (5. H. 4. ca 3.) whereby it was commanded, that mention of Winchester, (concerning watch) should be added so their Commission: and the Statute (3. H. 5. ca 7.) which took order that justices of Peace should have power by the King's Commission to inquire of the counterfeiting and other falsifying of money. Besides all which, it is very probable and likely, that the mention of weights and Measures, of vagabonds of Liveries, 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, which did first give power to the Wardens and justices of the Peace, to deal with those and some other matters. So far of is it, that this Commission hath from the beginning retained one constant tenor and form. Yea, as I am verily persuaded, that the form of this Commission hath veried with the time, and received sundry accessions: so I trust hereafter to make it plain, that it were convenient to reform it now also for divers imperfections that do yet remain in it: even as in our memory, the Statute of Lollards, which was thrust into the Commission by 2. H. 5. ca 7 and was (in Master Fitz. own days) usually read in it, is now upon just reason, as a thing savouring of the pump (the Pope I would say) thrown clean out of the book. But first, let me break it (as it is) into parts, and leave with you a few notes upon the same. The whole substance of this Commission, The parts of the Commission. is comprehended within these few terms: 1 The Salutation of the Prince, 2 The power of the justices: and 3 The Charge from the Prince, to them, and others. The Salutation of the Prince expresseth the names of the justices, 1. The Salutation. and hath nothing else in it that needeth light. Then followeth the Power of the justices, 2. The power of the justices. which is comprehended in three clauses, whereof the first beginneth thus: Sciatis quòd assignavimus vos, contunctim, & divisim, ad pacem etc. custodienda, & custodiri facienda: The second beginneth in these words: Assignavimus etiam vos, & quoscunque vestrum, justiciarios nostros: ad inquirendum etc. The last beginneth likewise: Assignavimus etiam vos, & duos vestrum, quorum etc. unum essevolumus, ad felonias etc. audienda & terminanda. The first Clause (or Assignavimus) giveth power to all, to many, or any one of them, First clause, or Assignavimus. (for so Master Fitzherb. understandeth the words, coniunctim & divisim) to keep, and cause to be kept, the Peace, and especially to keep these Statutes made for the maintenance 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. which doth concern the Peace, and not (as Master Fitzh. will have it) the Statutes of Westminster, the first second, or third, which as they have almost nothing concerning the matter of Peace, (that of W. 1. ca 9 only excepted) so to go from the Statute of Northampton to them, were to ascend, contrary to the course of the Commission, which descendeth by degrees of age and time, from elder to latter laws and Statutes: and for my Warrant herein, I vouch the Record (20. E. 3 in dorso patent. part. 2. membrana. 7.) where in a Commission of the Peace to Adam of Scarborowe, and others, they are charged to put in execution the Statutes, of Winchester, Northampton. and Westminster, made the fift year of that King. After this, the Statute of Cambridge, which word in deed (as Master Fitzh. thinketh) is mistaken for Canterbury, and was made there. 12. R. 2. ca 7.8. & .10 concerning Artuficers, Labourers, Servants, and vagabonds: for of Hunters it hath no word, whatsoever the Commission say of Venatoribus, which should be Viatoribus as I think: the Statute (1. H. 4. ca 7: & 2. H. 4. ca 21) of Liveries and Badges: and the Statute (3. H. 5. ca 6. & .7.) of Counterfeiting, Clipping, and Washing money. The same Clause also giveth them power to keep, and cause to be kept, all other Statutes, made, pro bono pacis, & quieto regimine populi: by which words, the Commission meaneth (as I think) all Statutes for Armour, for that tendeth to the keeping of the Peace, as the Statute of Winchester itself confesseth: All Statutes for arresting of Robbers, Murderers, Felons, Royotters, and Suspected Persons; which are every where said to be against the Peace: All Statutes concerning the duties of Sheriffs, bailiffs, Constable's etc. without which the Peace can not be kept, as the Statute of Northampton (2. E. 3 ca 4.) plainly affirmeth: and all Statutes made for the repressing or punishment of Force, Violence, and Fight. This first Clause (or Assignavimus) is closed up with a declaration of the mean, by which they shall cause the Peace and these Statutes to be kept: that is to say, by chastising the offenders, either according to the orders of the said Statutes, or by taking surety of them for their keeping of the Peace, or for their good abearing, or by imprisonment until they will be so bound. But here, before I conclude this Clause, I must admonith the reader, that these statutes of Labourers, Servants, Artificers, and vagabonds, be repealed by new Acts of our time provided in that behalf, and that therefore they are vainly rehearsed in the Commission at this day. Imperfections in the Commission. It seemeth also that the Statute. (3. H. 5. ca 6.) for the washing, clipping, and fyling of money, aught to have no place in the Commission of the Peace at this day: for, those special Treasons be repealed by the general words of 1. Mariae, & although the same offences be made Treason again by 5. Eliza. ca 11. yet that new Statute giveth no power therein to the justices of the Peace. But yet, as concerning the counterfeiting of false money, the justices of Peace have still in mine opinion power, to inquire by virtue of that Statute (3. H. 5. ca 7.) and by this Commission, because that that Treason was declared by the Statute. 25. E. 3. and therefore it is not now repealed by 1. Mariae, as the others were. And these (as also that mistaking of Cambridge, for Caterburie & the inserting of that words (per quos rei veritas etc.) in this first clause without any sense, & the still calling of the that be the Commissioners, custodes pacis according to the old name, omitting through the whole course of the Commission, to give unto the once the name of justices of the Peace, although in all Statutes since 36. E. 3. they be so called) be some of the imperfections that I meant, when I thought it meet to have the Commission reform. Neither may I well overpass, that by these words (Et ad omnes illos quos contra formam Statutorum proedictorun etc. delinquentes inveneritis, pun iendoes, prout secundùm formam Statutorum proedictorum fueru faciendum. etc.) in this first Assignavimus, greater power seemeth to be given by the letter of the Commission, than is meant by the Author of the Commission: for, by these words, it seemeth that one justice of the Peace may punish the Treason of counterfeiting, which I think is more than is thought meet to be put into his hanus. And in the commissions next following the Statute itself of 3. H. 5. even for that reason was placed in the last Assignavimus of those Commissions. The second Clause (or Assignavimus) first enableth all, or any two, of these justices (for so M. Fitzh. taketh the words, Vos, & quoscunque vestrum) to inquire of all Felonies, and Trespasses, and of all offences done against those Statutes, that are contained within the same clause: and to inquire of all Sheriffs, and other inferior Officers, that be remiss in the execution of the said laws & statutes committed to their charge. 2. Clause or Assignaui●●s. Then it authorizeth them, or any two of them, to proceed, and to make process upon all ancient & present indictments. until the parties shall either be take, or shall yield themselves, or be outlawed for their contumacy. Here also, that form of this Commission desireth help, in that there is reference made to those Statutes of Artificers, Labourers, and vagabonds which be repealed as I told you. And also metion made of Inditemets take to long ago, to make any process out upon them at this day. But for as much as it availed little to the correction of offenders, to have their faults brought to light by inquiry, unless judgement & Execution had been also give & done upon the same with some convenient speed, therefore the third Clause (or Assignavimus) in the Commission was added, which giveth power to the justices of the Peace, or to two of them (whereof the one must be one of the select number of them, now commonly called of the Quorum, because the Commission in making that choice beginneth with that word) to hear & determine all the offences comprehended within the same, & to chastise the offenders according to the laws & customs of the Realm & according to the Statutes in that behalf made & ordained. But yet so, that if any question (or difficulty) do arise concerning Extortions, the they should not proceed to judgement thereupon, without the advise of one of the justices, of the one Bench, or of the other or (who be their Commune Oracle for answer in Law) of the justices of Ass●s●. By the equity of which Proviso, M. Fitzh. (Fo. 7.) thinketh, that they are likewise restrained in all cases of doubt whatsoever: howbeit he granteth, that if they do proceed of the selves, their judgement standeth good, until it be reversed by Error. 3. Clause, or Assignaui●●s. Decision of difficulties, or questions, arising before justices of the peace. These of the Quorum, were wont not without just cause to be chosen, specially for their learning in the laws of the Realm, and therefore there is no separation metioned, till the Commission come to give the power to hear and determine, in which part that kind of learning is most requisite and serviceable. And this was the reason that led the makers of the statutes. 18. E. 3. ca 2.34. E. 3. ca 1. & 13. R. 2. ca 7 to cause it to be expressly enacted, that some learned in the laws should be put into the Commission: and all Statutes, that desire the presence of one of the Quorum, do secretly signify such a learned man. But here again the Commission (chorda quae semper oberrat eadem) doth make much relation to the said Statutes that are not now at all. The power given to these justices hath appeared. 3. The charge to them, the Sheriff, and Custos Rotulorum. Now let us see the charge give to them and others. They therefore and every of them be charged to be diligently intendant about the execution of the premises, by these words, Et ideo vobis etc. but how negligently many of them perform it, I am afraid it is too manifest, whilst ambitiously seeking the name and power to rule, they take small care of doing their dutiful service that belongeth thereunto. In this clause is contained a saving unto the prince of all amercements & other things that shall grow due unto her by reason of their proceedings thereupon: of which I will speak somewhat hereafter in place convement. The Sheriff is said to have been charged aforehand to be attendant in the Return of juries before them, in these words, Mandavimus enim Vicecomiti, etc. And the Custos Rotulorum (for it is meant of him, although he be not so there called) is charged to bring the Records & Process of the Peace, and in due sort to consider and direct the same, by these words: Et vos praefatae Thom. Wootton, etc. Of whose office and authority somewhat shall be said also in particular in the second Book of this treatise. Of the two Oaths ministered to the justices of the Peace. CHAP. X. Such as occupy judicial places, aught to take heed what they do, knowing (as jehosaphat said) that they exercise not the judgements of Men only, but of God himself, whose power, as they do participate: The causes why justices be sworn. So he also is present on the Bench with them. And therefore, it hath been always the policy of Christian laws, to appoint meet forms of Religious attestations (or Oaths) for such Officers to take: meaning thereby, not only to set God continually before their eyes (whom by such Oath, they take to witness of their promise, & call for revege of their falsehood:) but also to threat them (as it were) with temporal pains provided against corrupt dealings, & withal, to strengthen their minds, and arm their courages, against the force of humane affections, which otherwise might allure & draw them out of the way. Upon this ground, the Statute (13. R. 2. Stat. 1. ca 7.) which willed, that justices of the Peace should be made of new in all the Counties of England, did there withal take order, that they should be sworn, to keep and put in execution, all the Statues touching their office: which albeit that it be the first Oath that I find to have been ministered to justices of the Peace, yet I think they were not unsworn before, nor at any time after, as may be collected upon the books 21. E. 4.67. & 12. E. 4.18 and I believe also, that that manner of Oath was devised but for that time only, and continued not long in that form, as being of itself very general, and hard to be observed. And that (happily) was the cause, that it appeareth to be changed to that form, which M. Fitzh. in his Book hath left us, and which (with the alteration of a few words only) is yet at this day put in use. For, upon the renewing of the Commission of the Peace (which now a days happeneth as often as any person is newly brought into the same) there cometh of course a Writ of Dedimus potestatem, directed out of the Chancery to some ancient justice of the Peace, to take the Oath of him whose name is newly inserted, and to certify the same into that Court at such day as the Writ commandeth. This Writ is at this day accompanied with two Schedules, whereof the one containeth the Oath of the Office of a justice of the Peace, in his form: Ye shall swear, that as justice of the peace in the County of Kent, in all Articles in the Queen's Commission to you directed. ye shall do equal right to the poor, and to the rich, after your cunning, wit, and power, and after the laws and customs of the Realm, and Statutes thereof made: And ye shall not be counsel with any quarrel hanging before you: And that ye hold your Sessions after the form of Statutes thereof made: And the issues, fines, & amercements, that shall happen to be made, and all forfeitures which shall fall before you, ye shall cause to be entered without any concealment or embeaseling, and truly send them to the Queens Escheaquer. Surcease, in the printed Book. Ye shall not Let for gift, or other cause, but well and truly ye shall do your office of justice of the Peace in that behalf, and that you take nothing for your Office of justice of the Peace to be done, but of the Queen, and fees accustomed, and costs limited by the Statute: and ye shall not direct nor cause to be direted, any warrant (by you to be made) to the parties, but ye shall direct them to the Bailiffs of the said County, or other the Queen's officers or ministers, or other indifferent persons, to do execution thereof: So help you God, and by the contents of this Book. And his Saints, in the Printed Book. The variance between this and that elder form standeth (as you may see by the Margin) in three points: whereof, twain be of no weight at all, but the third did need amendment. For, right godly and well did those 32. persons (that were put in trust to pen Ecclesiastical laws) purpose to make this law, amongst others: Legitimun autem juramentum, is verbis, & nullis allies, suscipi volumus: Ita me Deus, per Dominum nostrum jesum Christum adiu●et. This Oath of the Office consisteth of sire Articles, which (for memories sake) I have seen expressed in these 6. Verses following: Do equal right to rich & poor, as wit & law extends: Give none advise in any cause, that you before depends: your sessions hold, as statutes bid: The forfeits that befall, See entered well, and then estreate them to the Cheaquer all: Receive no fee, but that is give by Queen, good use, or right: Ne send precept to party self, but to indifferent wight. 1, 2, 3, 4, 5, 6 The other Schedule comprehendeth that form of Oath, which (after the second abolishment of the usurped authority of the Romish Pharaoh, by the joyous entry of our gracious Queen Elizabeth) was in the first Parliament of her reign (ca 1) appointed for justices of Peace (amongst others) to take, before that they should exercise the office: and it hath these words: I William Lambarde, do utterly testify, and decleare in my conscience, that the Queen's Highness is the only superame Governor of this Realm, and of all other her highness Dominions and Countries, as well in all spiritual and ecclesiastical things (or cause) as temporal, and that no foreign Prince, Person, Prelate, State, or Potentate, hath, or aught to have, any iurisdictionm, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this realm: The Oath of Supremacy. And therefore I do utterly renounce and forsake all foreign jurisdiction, powers, superiorities, and authorities, and do promise, that from henceforth I shall bear faith and true allegiance to the Queen's Highness, her heirs and lawful successors, and (to my power) shall assist and defend all jurisdiction, privilege, pre-eminence, and authority granted or belonging to the Queen's Highness, her heirs and successors, and united and annexed to the Imperial Crown of the Realm: So help me God, etc. There hath been care taken, once, or twice (in our memory) to exact this latter Oath of all the justices of Peace throughout the Realm, where of some good hath ensued: But yet many a justice there is, that by indirect practice never took, neither this, nor the former, whereof what harms do, and may grow, I leave to wiser and higher men to be considered. Of the power absolute, and limited, that the justices of the Peace have. CHAP. XI. THe power of the justice of Peace, is in some cases Limited, & (in other some cases) Absolute: Discretion. By which latter word, I do not mean absolute Simply, but after a Manner: For, they may neither hang a man for a grievous Trespass, nor fine him for a Felony: and therefore this absolute authority is to our Law better known by the name of Discretion, because the justice of Peace may exercise sometimes Legis actionem and sometimes judicis officium, or (which is all one) judicium & Decretum, as the case shall offer, and the law suffer him. It is a good Counsel (which Aristotle giveth in his rhetorics ad Theodectem that in the making of laws, Quoad eius fieri possit, quam plurima legibus ipsis definiantur, quàm paucissimaverò judicis arbitrio relinquantur: and the Commission of the Peace (following that advise) doth leave little (or nothing) to the discretion of the justices of the Peace, but bindeth them fast with the chains of the Laws, customs, ordinances, and Statutes. Howbeit, our latter laws of Parliament, although they also endeavour (for the most part) to hold the same course, yet forasmuch as every considerable circumstance can not be foreseen at the time of the making of the Law, they do many times leave to be supplied by the discretion of the Executioner of the Law, that thing which was not conveniently comprehended before hand, by the wisdom of the maker of the Law. And therefore, although Discretion be necessary in the execution of every law (be it never so certainly set forth, and bounded in itself) yet (in the mouth & language of our Law) that only 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 justice that is put in trust with it. And truly it is to be wished, that justices of the Peace would not by colour of this reference to their Discretion in some few cases arrogate unto themselves authority to use their discretion, & to play (as it were) the chancellors, in every cause that cometh before them. For no way better shall the Discretion of a justice of the Peace appear, than if he (remembering that he is Lex loquens) do contain himself within the lists of law, and (being soberly wise) do not use his own Discretion, but only where both the law permitteth, and the present case requireth it. Right well said Cicero: Est sapientis judicis cogttare, tantum sibi esse permissum, quantum sit commissum ac creditum. Of the jurisdiction, and coercion, belonging to the justices of Peace. CHAP. XII. AS justice can not be administered without both a Declaration of the Law, and an Execution of the same: So, to the end that our justices of the Peace may be able to deliver justice, they are accomplished with double power, the one of jurisdiction, and the other of coercion, the which other men do call Vocationem & Praehensionem, that is to say, Authority, not only to convent the persons, but also (after the cause heard and adjudged) to constrain them to obey their order and decree. This jurisdiction of theirs is exercised, for the most part (if not althogither) about those causes which be in a manner the same that the Civil Lawyers do call, judicia publica, partly, because the Prince (who representeth the head of the common wealth) hath interest in the most of them, as well as that private person which is immediately offended, and partly, because they are not commonly tried by such Action as other Civil and Private causes are, but rather by Criminal and Public Accusation, Information, or Presentment. jurisdictió. And herein the justice of the Peace is by the one half superior to the ancient conservator of the Peace, who had only coercion in a few cases, and no jurisdiction in any case that I remember. But if the authority of these justices should cease, when the fault is told, heard, and adjudged, then should they be no better than half justices: and therefore the Law hath also Cohertion, Execution, (or punishment) (as I said) into their hands, lest otherwise their judgements should be deluded for want of power to bring the to effect. This Punishment then, is an orderly execution of a lawful judgement, laid upon an offender, by the minister of the Law: and it is done for four causes: first, for the amendment of the offendor. Cohertior, or punishment, for what causes it is appointed. Secondly, for example's sake, that others may thereby be kept from offeding. Thirdly for the maintenance of the authority and credit of the person that is offended: & these three reasons be common to all such punishments. Seneca rehearseth the fourth final cause, that is to say, that (wicked men being take away) the good may live in better security: and this pertaineth not to all, but to Capital punishments only, as every man may at the first hearing understand. The Romans used specially, eight sorts of chastisements, known to them by these names, Damnum, Vincula, Verbera, Talio, Ignominia, Exilium, servitus, Mors, that is, loss of goods, imprisonment, stripes, retaliation, reproach, banishment, servitude, & death: All which our law (before the Conquest) was wont to inflict, albeit that now, Servitude, Retaliation, and Banishment, be out of use. The punishments that be commonly put in execution at this day, and wherewith the justices of the Peace have to do, may be dinided into Corporal & Pecuniary. The sorts of punishment. Corporal punishment, is either Capital, or not Capital. corporal Capital. (or deadly) punishment, is done sundry ways, as by hanging, burning, boiling, or pressing: not Capital, is of divers sorts also, as cutting off the hand or ear, burning (or marking) the hand or face, boring through the ear, whipping, imprisoning, stocking, setting on the Pillory, or Cucking stool, which in old time was called the Tumbril. Of this kind of punishment, our old law (making precious estimation of the lives of men) had more sorts than we now have, as pulling out the tongue for false rumours, cutting off the nose for adultery, taking away the privy parts for counterfeiting of money, etc. Under the name of Pecuniary punishment, I comprehend all Issues, Fines, a merc●aments. & Forfeitures of offices, goods, or lands. Pecuniary. And if the justices of Peace may by virtue of their Commission deal with such Conspirators, as do confederate together, to cause any person unjustly to be indicted of Felome, where of after ward he is acquitted as some do think they may, the is there a special punishment in that case appointed by law, which in 24. E. 3.73. is termed Villainous, and may be well called Infamous, because the judgement in such case shall he like unto the ancient judgement in Attaint, as it is said 4. H. 5. Fitzh. Infamous. judgement 220. and is in 27. lib. Ass. P. 59 set down to be, that their oaths shall not be of any credit after, nor lawful for them in person to approach the queens courts, & that their lands and goods be seized into the queens hands, their trees rooted up, and they imprisoned, etc. And at this day the punishmet appointed for Perjury (having somewhat more in it than Corporal or Pecuniary pain) stretching to the discrediting of the testimony of the offendor for ever after, may be partaker of this name. That justices of the Peace, be judges of Record. CAP. XIII. IT maketh not a little, both for maintenance of the Peace, and for the credit of the justices thereof, that they are numbered amongst the judges of Record. for, on the one side evil doers will be afraid, when they shall see Memorials of their wickedness before their eyes, and on the other side, the proceedings of those justices shall be so much the more reverenced & set by, as it shall appear that their endeavours are countenanced with the favour of authority. And therefore let us see what is meant by the word Record. The Latin men use Recordor, when they will signify, to keep in mind, or to reméber, in which sense the Poet said, Siritè audita recordor: Record what it is. And after the same sense also doth our Law use it. For, Records be nothing else but memorials, or Monuments of things done before judges that have credit in that behalf. And therefore, where King E. I. doth in the beginning of the Book (called Britton) set forth the judges of his Courts, he saith of some, that they shall have authority of Record, and of others, that they shall bear Record, all which do mean but one thing, namely, that they shall be trusted in the report of causes happening before the: and we yet say in common speech, Such a man shall bear record of a thing, when we intent to say, that he remembreth it, and can bear witness of it. So that in the use of the word there is (in manner) no differece, and therefore let us examine the matter. One man may affirm a thing, and another may deny it, but if a Record once say the word, no man shall be received to aver (or speak) against it. For (saith M. Bracton Fol. 156. writing of a special case where the Sheriff in his County hath Record) If men should be admitted to deny the enroled acts of the Court, than would there never be any end of controversies. And therefore, to avoid all contention that may arise, whilst one saith one thing, and one other saith an other thing, the Law reposeth if self wholly and solely in the report of the judge: and hereof it cometh, that he can not make any Substitute or Deputy in his office (as M. Bracton and Britton both, do affirm) seeing that he may not put over the confidence that is put in him. This Record or Testimony, is first contained within the breast of the judge (as our Law speaketh) & afterward committed to the Rolls, which are therefore figuratively called Records also. For you may see 7. H. 6.28. in Hildebrands' case, 19 H. 6.9. and elsewhere, that during all the time of that Term, in which any thing passeth before the justices at Westminister, the Record thereof is in Scrinio pectoris, in their own hearts, or breasts, so that they may at their own pleasure correct or amend it: But that after the Term ended, it is only in their Rolls, over the which they have no controlment. The Rolls be Records. And this agreeth right well with that which Britton F. 01.3. affirmeth, saying in the King's person thus: And albeit that we have granted to our justices to bear Record of the pleas pleaded before the, yet by this we will not that their record shall be any warrant in their own wrong, nor that they may raze or amed their Roll, nor make Record against their enrolment. Thus much generally of all judges of Record. Now touching our justice of the Peace, it is the opinion of the Court (9 E. 43 and 14. H. 8.16.) and of diverse other Books in our law, that every one of them by himself is a judge of Record. For (as you have heard) he is made by the great Scale a matter of Record, and hath judicial power given unto him, even by the first Assignavimus. of the Commission. He hath also a Scale of his Office, by the opinion of Brudnell. 14. H. 8.16. & if he make any Warrant, although it be beyond his authority, yet it is not disputable by a Constable, or other inferior Minister, but must be obeyed. And he may take a Recognisance for the Peace, as appeareth 7. H. 4.34 & common experience telleth it, which none can do, but a judge of Record, because the acknowledging of the sum, is to remain as a matter of Record. Yea by good opinion 2. H. 7.1. A Supersedeas of the Peace made by one justice of Peace, under his seal, being brought into the Sessions, is a sufficient Record to prove that there is a Recognisance of Peace taken by the same justice, and warrant enough to call the party bound thereupon, and if he make default to Record the same. Moreover his Record or testimony is made in some case of greater force and value than an inditement by the oath of twelve men, for his Record (as shall appear hereafter in place convenient) shall conclude the party so, that he shall not be admitted to Traverse or gainsay it by 21. H. 6.5. F●zh. Fol. 18.6 & upon the statute 15. R. 2. ca 2.11. H. 7. ca 15. & 33. H. 8. c. 6. Great cause hath the justice of Peace therefore, to take ●iligente heed, that he abuse not this credit, either to the oppressing of any subject, by making an untrue Record, or to the defrauding of the Prince, by suppressing any true Record. Much more reason is there to hold, that two justices of peace, or more sirting in the execution of their authority in open Sessions must needs be taken to be judges of Record. How long time the authority of the Commissioners of the Peace is to endure: and by what means it may be suspended, or determined. CHAP. XIIII. WE have already touched, that the power of the Commissioners of the Peace, is not perpetual, but now the place serveth to handle 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 authority ceaseth also. Besides 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 special case the want of adjournment of their Commission. The pleasure of the Prince may be determined either by express word, or by implication, or by death. By express word. The Queen's Majesty therefore, may discharge the Commissioners of the Peace by her express writ, under the great Seal. L. 5. E. 4.32. If she send a Super sedeas to all the Commissioners of the Peace, that will suspend all their authority. But yet so, as it may be revived by a Procedendo, and therefore it doth not utterly determine their authority, as may be gathered by 12. lib. Ass Pl. 21. Again, when the Queen's Majesty maketh other Commissioners of the same kind within the same limits, it is implied thereby, that the former Commissioners shall have no longer power, although there be never a word spoken of the discharge of the for the repugnancy. By implycation of a new Commission. 3. Mar. Regi. Brooke. Tit. Commission. 24. But yet if there be justice of the Peace by Commission in a whole County, and afterward the Queen maketh another man justice of the Peace, in one Town of the said County, only Chocke was of opinion. General and proper justices. 10. E. 4.7. that the power of the first Commissioners continued still in that Town, because that is not altogether contrariant. And judge Fineux held so also (20. H. 7.8.) that if the Queen make a proper justice of the Peace within a special Liberty, yet may the general justices of the Peace of the Shire meddle there also, unless there be words of Prohibition in the Patent as, qd nulli alij justiciarij nostri se intromittant etc. If the ancient Commission of the Peace were to four people, & afterward the Queen should make one man a full justice of the peace through that same limit, during his life, then should the hands of the fours Commissioners be closed, saith Marrow. And a new Commission pro hac vice tantum will determine the old: So also, a new Commission to hear and determine Felonies, determineth the old 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 Commission of the Peace was first granted to certain within a town, & after another Commission had been granted to other within the whole shire, that this had been a Supersedeas to the Commissioners within the said town. Nowbeit this determination of the old Commission (that we speak of) groweth not immediately by the making of a new Commission but either after the reading or proclaiming of the new Commission at the Session of the Peace, or at the full County, or else by holding of some Session by virtue of the new Commission (in all which cases the old Commissioners must take notice of the new Commission) or else after the giving of notice of the new Commission unto the old Commissioners: for otherwise all the mean acts of the old Commissioners be good in Law. Mar. &. 21. H. 6. 29. &. 34 lib. Assi. Pl. 28. And for as much as some Cities & Corporate towns found themselves grieved with the Law standing, as hath been remembered, it was specially ordained by the said Statute (2. & 3. Phi. &. Mar. ca 18.) that a Commission of the Peace and jail delivery made to a City or corporate town (not being a County by itself) 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 City or town standeth. Finally, it is to be noted, that in all cases where an ancient Commission of the peace is determined by a new, yet no Process, or Suit (hanging before the old Commissioners) shall be discontinued thereby 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 justiciarios suos, so that he being once dead, or having given over his Crown, they are no more his justices, and the justices of the next Prince they shall not be, unless he will make them his. 4. E. 4.44. &. 1. E. 5.1. By death. If sseacute; emeth, that some took the Law to be, that if a justice of the Peace were created a Duke, marquess, Earl, Viscount, or Baron, or elected an Archbishop, or Bishop, or made a Knight, or justice of any of the two Benches, or Sergeant at the law, that then his Office of the Peace was determined thereby, because it could not be thought, that (his name being changed) he should remain the same person: Accession of a new office or calling. And so if he were made Sheriff, that his justiceship ceased also, because (as Marrow faith) he could not be both a justice & an Officer to direct & serve, his own Precepts: and so likewise was it thought of him, if he were made a Coroner, but not so if he were made an undersheriff. 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 justice of the Peace were made Duke, marquess, earl. Viscount, Baron, Archbishop, Bishop, justice of the one Bench or other, Knight, Sergeant at the Law, or Sheriff, the yet he should be justice of the Peace still: But that act was afterward upon good reason controlled in part, and a new law made (I. Mar. Parl. I. ca 8.) by which it was ordered, that no man should exercise the office of a justice of the Peace, during only the time that he is Sheriff of the same County, wherein he is also justice of the peace. Furthermore, if the justices in Eire (being of a higher power than justices of the Peace) do (after proclamation there of first made) come into any County and sit there by virtue of their authorities, then ceaseth the authority of the Commissioners of the Peace by Mar. By the presence of a higher power. And he thinketh so likewise if the king's bench bpon proclamation thereof made, should remove into any County. But ask of this, for if it should be so, than it may be some question also what is wrought by the coming of the justices of the Nis●prius into the Country, who do ordinarily bring Commission of Oyer, & Determiner, and of jail delivery with them. Lastly, it justices of the Peace, that have a Commission has vice tantum, do sit by virtue of their Commission, & do not Adjourn the same, it seemeth that their Commission is determined thereby, Brokke. Tit. Commission. 11. By want of adjournement. That all the autctoritie of the justices of the Peace is exercised, eiy there out of the Sessons, or at, (or by reason of) the Sessions, of the Peace. etc. CAP. XV. HItherto I have dilated that which lieth in the first part of the Definition of the justices of peace, I have withal given 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 means it is maintained, and after what fort it may be determined. A sum of that which in said. But now, for as much as all the power of the justices of the Peace is directed to that end which is disclosed in the latter part of the same Definition, namely, For the conservation of the Peace, & for the execution of their Commission and of the Statutes committed to their charge, it is meet, that I enter into the Practicque of their Ofsice & duty, & show you from point to point how the fame is to be done & administered. And for the more lightsome proceeding herein, I will set swrth the power of the justices of the Peace by a Distribution though not Essential yet such as may suffice to convey my whole meaning. Whether therefore, the justices of the Peace, do (by virtue of the Commission, or Statutes) inquire, or Hear and Determine by the may of I●●sdietion or else doc keep (or cause to be kept) the Peace or doc punish and execute, by way of coercion. And whether the same also be done, by their Regular power, or Absolute authority: 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 followeth in both these books. And that which is done out of the Sessions is either such as one justice alone may doc, or else it requireth the help I presence of other justices with him. And therefore first of that which one justice alone may do out of the Sessions. The sum of that which is hereafter conteinedin this f●●st book. Of Surety of the Peace, and the Good Abearing: and ofsundrie things incident unto the lame. And what one justice of Peace out of the Sessions may do therein. CHAP. XVI. FDr as much as the Conservation of the Peace standeth, partly in providing that it be not broken, and partly in punishing such as have already biolated and broke it: and for that any one justice of the Peace is susticiently armed with audoritie (out of the Sessopms) to prevent the breach of the Pear, both by taking Surety for the keeping of it, and for the good behaviour also of offenders, I think good, first to shem what Surety of the Peace is: then to open how it may be commanded: after that to declare, how the same commandment shall be executed I brought to effect: four, to disclose what shall become of the Surety when it is taken: and lastly, to describe the Surety of the good behaviour or good Abearing, I to confer the handling thereof with that of the Peace. The parts of this Chapter. The ancient Normans had a manner of Surety of the Pear, which they named truce (the same that we call Truce) I which they bsed to give after this order. He of whom it was demanded, did (in Court) take him by the hand, that demanded it, I did withal solemnly swear, that neither he, nor any of his, should do him harm. But or Bovernours, knowing that evil men be more restrained by los se of goods, than by conscience of an oath, have dsed to take sure bonds, and that to the Prince, for the security of such as be in fear. And therefore, I will at this day call Surety of the peace, An acknowledging of a bond tooth Prince, taken by a judge of Record, for the keeping of the Peace. What surety of the Peace, is. And it is called Surety of is the word Securitas, because the party that was in sear, is thereby the more quiet and secure. This Surety may a justice of the Peace command, either as a Minister when he is willed to do it by a higher authority: or as a judge when he doth it of his own power derived from his Commission He doth it as a minister, when the writ of Supplicavit, (which in old time was called breve de minis as appeareth by the Register) directed out of the Chancery is delivered into his hands: for than he only is to direct his Precept to come pel the party upon that writ to find Surety for the Peace. Surety of Peace taken upon a Sutplicavit by a justice of the Peace Minister. 21. H. 7.20. Fineux. The form of which Precept (or warrant) may be thus, in English: GEORGE MULTON, one of the justices of the Peace of out Sovereign Lady the Queen's Majesty within the County of Kent, To the Sheriff of the said Shire, the Constable's of the hundred of Wroteham, the Borsholder of the Town of Ightham, and to all and singular the Queen's majesties Bailies, and other ministers, as well within liberties as without, in the said County, and to every of them greeting. Know ye that I have received the commandment of our said Sovereign Lady in these words (reciting the whole writ of Supplicavit, which is not always of one form, because it is sometimes directed to all the justices of the Peace, sometimes to them and the Sheriff, and sometimes to one justice alone) or reciting only the effect of the Supplicautt, thus: Know ye, that I have received the commandment of our said Sovereign Lady, to compel. A. B. of Ightham, in the said County yeoman, to find sufficient surety for her majesties Peace by him to be kept towards C. D. of the ssayde Town of Ightham Taylor. And therefore on the behalf of our said sovereign Lady, I command and charge you jointly & severally, that immediately upon the receit here of you cause the said A. B. to come before me, at Ightham aforesaid, to find sufficient surety and mainprize for the Peace to be kept, towards our said Sovereign Lady, and all her liege people, & specially towards the said C. D. And if he the said AB. shall refuse thus to do, that then you him safely convey, or causc to be safely conveyed, to the next jail of her Majesty in the said County, there to remain until that he shall willingly do the same. So that he may be before the justices of the Peace of our said sovereign Lady within the said Coanty at the next general Sessions of the Peace to be holdon at M. there to answer to our said Sovereign Lady for his contempt in this behalf. And see that you certific your doing in the premises, to the said justices at the said Sessions, bringing this thither this Precept with you Yeove at Ightham aforesaid, under my Seal the fourth day of Augustein the 33. Year. etc. Surety of the Peace, taken by a justice of the Peace 23 A justice of the Peace may also by bertue of his Office and as he is a judge, commands this Surety to be found, and that either of his own motion and disreation, or else at the request and prayer of an other. For he may cause a Commune Barrettour, Ryotter one that maketh an Affray, or other person to him Suspected, to find Sucrtie of the Peace ● E. 4.3. Curia And if he see men contending in hot words, and threatening the one to hurt (or kill) the other, he may of Disereation and ought of Duty (as I think) to command them to find Surety of the Peace, and thereby provide for their mutual safety. By his own discretion. For as he is put in trust with the care of the Peace: so ought he both to employ his wit, and to use his authority, to preunt the Breach of the ssame. And if a man that was bound to keep the Peace, have broken his bound, the justice of Peace ought of discretion to bind him of nelne. 21 E. 4. 40. & Marrow. And his authority is so little to be controlled in this matter, that, Master Marrow is of the opinion, that if a justice of the Peace should procure one man to demand Surety of the Peace against an other, and he hum self should grant a Warrant for it, by which the party is arrested, yet no Action would lie against that justice for so doing: because he might have granted it without any demand made: and then it shall not be said but that he saw cause to provoke the party to ask it and himself to grant it. I doc on on the other fide remember, that a justice of the Peace, was put out of the Commission of the Peace by order in the Star Chamber, for that Peace offered unto him by one that was commanded (by an other justice of the Peace in the same Share) to find Surety of the Peace, to whom (as the ●artie alleged) he durst not go to offer it, for fear that he would execute upon him the malice that he bore against him. In commanding this surety, at the suit of an other, or of his own discretion, sundry things are wisely to be considered, first, for whom, and against whom, then for what cause and how it ought to be required or commanded, and lastly by what means it shall be enjoined. Surety, at the request of an other. The wife, if the be threatened to be killed, or to be outrageously chastised, by her husband, may with g●d reason demand the Peace against him. For whom, and against whom, ●●cr●●e of the Peace lieth. Fitz. Nat. Br. Fo. 80. &. 239. And I do not doubt but a justice map in such a case commander it upon his own discretion. The husband also may demand the Peace against his own wife in such a case: and any man may demand it against the wife of an other. Mar. A man attainted of Treason. Or Felony, or convict of Heresy, or Abjured, a Dumb man, or an Infant, (though within 14 years of age) or a Villain against his Lord, may demand and aught to have, Surety of the Peace, Mar. And I do not find any strong reason why the Lord against his dillaine, or an other man against a dumb man or against an infant above the age of 14 years, ought not upon good cause to have it, though the two last can not well be bound themselves. But a mad man shall not have Surety of the Peace, at his own request (as Master Marrow thought) because he hath no discretion to ask it: and therefore (if there be rause) he ought to be provided for by the discretion of the justice, as I think. A man attainted in a Praemunire, or that is an A●ren borne, and no Denizein, ought not to have this Surety at his desire, as M. Marrow taketh it: But perhaps he would have changed his opinion, in the case of Praemunire, if he had lived at this time, upon the Statute ●. Elrzab ●● for, such a man may not now be killed, as though he were out of the protection of the 〈◊〉: And as touching the A●●e●, some think there ought to be a difference between such an A●ren, as is of the En●●●● of the Qu●●● and him that is of her Amity: for the Statutes (Mag. Cart. ca 30.9. E. 3 ca I 4. E. ● S●●●. ca ●. and sundry others) do all use that difference in Merchant strangers, and do provide, that such of the as be not Enrmies, of the Realm, may both safely come into the Realm, and farry here, and go hence, at their pleasures. But the case may well be doubted of, because the Commission itself seemeth to authorize the justice of Peace, no further than to provide for the Duéenes' people, of which number no A●●en seemeth to be. But may any Ahen may not be bound to the Peace, I do not for. Furthermore, one justice of the Peace, (faith ●●. Mar. owe) may grant this Surety to any man, against one of his fellow justices. But, as M. Marrcw requireth a Discretion in a 〈◊〉 of the Peace, when Surety is craved of him against a Sheriff, Coroner, Escheator, or such other Officer, (whom he witheth not to be bound to keep the Peace versus cunctum populum, but only towards him that prayeth it, lest otherwise it should argue the to be unworthy of such Offices:) so much more he ought to use good discretion, in granting it against his fellow justice, lest otherwise he both bring the Office in contempt, and himself to reproof by it. But I doubt not, but that one justice of Peace (if he will) may pray surety of the Peace at the hands of his fellow justice against an other person, & the recognizance may then be according to the common form, with an & praecipuè versus, etc. Neitherto of those, for whom, and against whom the justice of Peace may grant this Surety when it shall be required, which will suffice to give light what to do in like cases. Surety of the Peace against a Lord But some others there be perhaps with whom he may not well meddle. As if any man have cause to require the peace against a Lord, he for so small a cause is not to be arrested (as I take it) by warrant from a justice, nor yet by a Supplicavit out of the Chancery.) But the Lord Chancellor may in such case grant to the party a Subpoena against that Lord for it, as it seemeth by 35. H 6. Fitz. Tit. Subpoena. 20. For such an opinion the law hath had of the peaceable disposition of Noble men, that it hath been thought enough, to take one of their promises upon Ho no● that he would not break the Peace against a man. If we may believe the report of M. Brooke T●●. Contempts. 6. to be true. The cause for which this Surety of the peace may be required or commanded, appeareth in the first Assig●●●● of the Commission of the Peace, in these words, Et ad omnes ●lios qui aliquibus de populo nostro, (de cor poribus suis vel de incendio domorum svarum) minas fecerint, ad sufficiente securitate de pace etc. inveniendam, etc. which M Fitz. so. 8. construeth thus. For what causes Surety of the Peace may be required. He that is the threatened, that he shall be hurt in his body, or that his house or goods shall be brent, may demand Surety of the peace for his safeguard in that behalf. But (faith the court 17. E. 4. 4) if a man will demand the Peace, because he is in fear that an other man will take & imprison him, it ought not to be granted: & one yieldeth the reason to be, because he may have a writ de homine replegiando, or an Action of false imprisomnent, and may thereby recover the damages of his imprisonment. The same reason might be made against the demand of the Peace, where a man is threatened with Battery, and yet it is clear, that in such a case the Surety of Peace ought not to be denied him: & truly to threaten imprisonment, is within the words Minas de corporibus, no less than Battery itself, and like harm may happen by hard imprisonment, & cruel beating. It shall be good therefore to inquire of this matter. The Peace being thus for good cause required, it is the common manner to cracte an Dathe of the party, whereby the justice may be the better informed and induced to think, that the party doth not ask it for malicious veration of an other, but of very fear, & for the needful safety of himself and his. How Surety of the peace is to be required By Oath. And M. Fitzh. (in his Nat. Bre. Fol. 79) laboureth to show, that the justices of the Peace ought not (without such an Dathe) to grant this Surety of the Peace at any man's suit. Forasmuch as not only the judges of the kings Bench do yet take an oath in such cases, but the ancient course of the Law was such in the Chancery itself also, although it be now adays otherwise used there. And that a justice in this case may the better judges of this Fear, let him hearken what M. Bracton Fol. 16. saith: Me●us est (saith he) praesentis, vel futuripericuli causa mentis trepidatio, talis enim debet esse metus, qui in se contineat mortis periculum, vel corporis cruciatum. And therefore, if a justice of the Peace, do pereceive, that the peace is demanded against such a person, as for his impotency is not like to break the Peace, he may safely deny it, saith M. Marrow: But, Satius est peccare in alteram partem as I suppose, left (if he be stain that demanded it) the justice be worthily blamed, for that he provided not for his life and safety. And besides, the common form of the Recognisance, is to bind a man from procuring hurt, which any impotent man is able to do. It resteth, that I show, by what mean this Surety may be enjoined: and that is, either by Word, or by Writing under Seal. By what means Surety of the Peace, shall be enjoined By Word. For a justice of the Peace, may by word only command a man (being in his presence) to find Surety of the Peace. 9 E. 4. 3. for, seeing that he is a judge of Record (saith M. Fitzh. Fol. 8.) his Precept by mouth is stronger than his Precept in Writing. So if the Peace be demanded against one that is in his presence, he may command the ●wor●fe, or other known Officer, or his own servant (if they be then present also) to arrest the party to find this Surety 14. H. 7. 8. & Mar. But, if ●yther the Officer, Servant or Party be absent, than it is requisite to make a Warrant (or Precept) in writing: The form whereof may be thus in English: for I see no cause yet why it should be directed in Latin to a Constable or Bortholder, that (by all presumption) understandeth no Latin. By writing, or a Precept for the Peace Elizabeth by the grace of God etc. Kane. TO our Sheriff of Kent, the Constable's of the Hundred of Wroteham, the Borsholder of the Town of Ightham, and to all and singular our Bailiffs, and other our Ministers in the said Country, as well within liberties as without, greeting. Forasmuch as A. B. of Ightham aforesaid, Yeoman, hath personally come before G. Multon of the said town Esquire, one of our justices of the Peace within the said County, and hath taken a corporal Oath, that he is afraid, that one C. D. of Shipborne, in the said County Yeoman, will beat, wound, mayheme, or kill him, or burn his houses, and hath therewithal prayed surety of the Peace against the said C. D. All, or any one of these causes may Suffice. Therefore we command and charge you iontly and severally, that immediately upon the receipt hereof, you cause the say de C. D. to come before the said G. M. or some other of our said justices, to find sufficient surety and mainprize for our Peace, to be kept towards us, and all our liege people, and chief towards the said A. B. that is to say, that he the said C. D. shall not do, nor by any means procure or cause to be done, any of the said evils, to any of our said people, and especially to the said A. B. And if he the said C. D. shall refuse thus to do, that then you him safetly convey, or cause to be safel County, there to remain vuntill he sfely conveyed, to our next prison in the shall willingly do the same: So that he may be before our said justices, at the next general Sessions of the Peace to be holden at M. in the said Country, then and there ready to answer unto us, for his contempt in this behalf. And see, that you certify your doing in the premises to our said justices at the said Sessions, bringing then thither this Precept with you. Witness the said G. M. at Ightham aforesaid, the 4. day of August, in the twenty-three. year of our reign. Or thus, in the name of the justice himself, mutatis mutandis. GEORGE MULTON Esquire, one of the justices of the Peace of our Sovereign Lady the Queen, within the said Country, to the Sheriff etc. greeting. Forasmuch as A. B. etc. hath personally come before me, etc. These shall be therefore, on the behalf, and in the name of our said sovereign Lady, to command you jointly, etc. to come before me, or one other of her majesties said justices of the Peace in the said County, etc. Given under my Seal, at Ightham aforesaid, etc. It is meet, that the precept for the peace, do expressly contain the cause of the Peace, within it: for otherwise, how can the Officer or Party, take knowledge, that Surety, must be provided for it: Yea (by the way let me say it) every Precept (made by a justice of the Peace) ought to comprehend the special matter upon which it proceedeth, even as all the Queens writs do bear their proper cause in their mouth with them. And, as for the Form that is now commonly used (To answer to such things as shall be objected) it was not fetched out of the old and learned Precedents, but lately brought in by such as either knew not, or cared not, what they writ. The Warrant of the Peace is the better also, if it bear Date of the place where it was made: for if a man be to plead such a precept for his excuse in an Action of false imprisonment brought against him, he ought (in his Plea) to show the place where the Warrant was made. 14. H. 8.18. And this Precept may also be directed to any indifferent person, by name, though he be no Officer at all: for so it seemeth to be permitted in the Oath of the justices of the Peace, and so is the Book also 14. H. 8. ●8. The commanding of Surety of the Peace hath thus appeared: and now the execution, and bringing of that commandment to effect, must next be disclosed. How the commandment of the Peace shall be executed. The execution of this Precept standeth, partly in serving the Precept itself: and partly in taking the recognisance, if the party do come with Sureties, and that there be no let in the way. And because (for the most part) there is but one and the same manner of doing, whether the Precept come from the justice of the Peace, as he is a Minister or as he is a judge, I also will handle them together, noting, by the may, those few differences that shall arise between them. If such a Precept be made jointly to twain, yet the one alone may serve it: If it be directed to the Sheriff, he may command his Bailiff, undersheriff, or other (sworn and known) Officer, to serve it, without writing any Precept. The serving of the Precept for the peace. But if he will command another man (that is no such Officer) to serve it, he must give him a writ Precept, for other wise a Wnt of false imprisonment will lie for the Arrest But if it be directed to the Bailiff, or to a servant of a justice of the peace, or other stranger, they must serve it themselves, for they can command none other to do it, neither by word nor Precept. Mar. A sworn and known Officer nédeth not to show this Warrant, when he doth serve if upon a man 8. E. 4.14: & 20. H. 7.13. etc. for his Office doth after a sort auctorize him. But if the justice will set his seruam to serve it, the servant must show the Warrant (if the party demand it) and otherwise the party may make resistance, 8. E. 4.14. A justice of the Peace (saith M. Brooke Titulo Peace. 9) may make this Warrant returnable before himself, & the Bailiff needeth not to carry the party before any other justice. But judge Fineux (21. H. 7.20) saith, the if a justice of the Peace do make a Warrant of the Peace Ex officio, (that is, without any Writ of Supplicavit directed unto him) them the party may choose to appear before him, or any other justice in the Shire, and that he shall punish the Bailiff in false imprisonment, if he do otherwise compel him: But that other wise it is in the execution of the Writ of Supplicavit: for he, to whose hands it is first delivered, is authorized to execute & return the Writ alone. And thereupon M. Fitz. (in his Nat. br. Fo. 81.) affirmeth, that if such a Writ of Supplicavit be delivered to the sheriff, the he may both execute it alone, & also take Surety by Recognusance (though otherwise, being but a Conseruator he could not do it) because the Writ doth enable him so to do: yet the opinion of Littleton, 9 E. 4.31. is to the contrary of that. The officer ought also to require the party to come & find Surety of the Peace before that he do arrest him, by the opinion 5. E. 4.13. And in truth, the common form of the Precept is, And if he refuse so to do, that then he shall convey him to the jail: and therefore, if he will willingly come and find Surety, the Officer may neither absolutely arrest him, nor take fee of him. And this may be the cause, that when one upon such Warrant cometh to a justice of the Peace to find such Surety, the justice needeth not again to demand surety of him, but may commit him, if he do not offer Surety as the opinion is. 14. H. 7.9. If a Bailiff do arrest a man for the peace, before that he have any Warrant, & then after ward do procure a Warrant for it, this is valawfully done, and will not excuse him in an Action of false imprisonment, ibide●●. But if the Bailiff do cause one by force of a Warrant, to come and find Surety of the Peace, & when the party cometh, the justice will no bind him, yet the Bailiff is excused. 21. H. 7.22. If Surety of the Peace be required at the hands of a justice of the Peace (that dwelleth out of the County) against a man within the County, the justice may grant a Precept to be served in the County, but when the party shall be thereupon warned and commanded to find Surety the Officer may not have him out of the County to the justice of Peace that made the Warrant, Marr. For, a justice of the Peace hath no autozitie, but in the County where he is justice by 13. E. 4.8. & Comment. Plowd. 37 & therefore it may be doubted also whether such a Warrant be good, or no. The Case was there, that a justice of Peace in one County pursued a Felon, & took him in an other County, whereupon it was holden, that he ought to be committed to the jail of the County wherein he was taken, and not of the County, wherein he which took him was a justice, for that, he (being out of his county had no more authority, than a private man. But I think tha Bailiff may not dispute the sufficiency or insufficiency of such a Warrant, because he that awardeth it is a judge of Record 14. H. 8.18. That which hath been hitherto said is of the execution of the foreigner part of the Warrant for the Peace, that is so say, to warn and cause the party to come and find Surety for the Peace. But if it falout, that he refuse to come and put in such Surety than may the Officer, by virtue of his Warrant convey him to prison. For (if you remember) the ●●●rdes are, And if he shall refuse, then, etc. And now for our better instruction, let us see what an Arrest is. Budee in his Greek Commetaries, is of the opinion, that the Freeh word (Arrest) which with them signifieth a Decree, or judgement of Court, took beginning of the Greek 〈◊〉 that is, placitum and (as we might say) the Pleasure (or will) of a Court. What ●● Arrest i●. And albeit that it were not out of our● way, to think that it is called Arrest, because it stayeth (or resteth) the party, yet I believe rather that we received the name from the Normane laws, because we use it in the same sense with them: For commonly with us an Arrest is taken for the execution of the commandment of some Court, or of some Officer in justice. But howsoever the name began, An Arrest is a certain restraint of a man's person, depriving it of his own will and liberty, and binding it to become obedient to the will of the Law: and it may be called the beginning of Imprisonment. The Precepts and Writs of the higher Courts of Law, do use to express it by two sundry words, as Capias and Attachias, which signify, to take (or catch) hold of a man. But this our Precept noteth it by the words Duci facias (cause him to be conveyed, etc.) for that the Officer hath (after a sort) taken him before, in that he cometh unto him, and requireth him to go to some justice of the Peace. To this Arrest all persons (under the degree of Lords, (or Peers) of the Realm) be subject: And Ecclesiastical persons (if they be not attendant upon divine service) may be arrested for the Peace also: Mar. The end therefore is, that if the party will not come to find Surety of the Peace, the Officer may (upon that Warrant) arrest and carry him to the jail, where he shall remain, until that he will freely offer, & find it. Delivery of him that is imprisoned for refusing to find Surety But it is good to be inquired whether the Release, or Death of him that prayed the Peace will not be sufficient cause to deliver such a prisoner: and if it shall be, then by what order he shall be delivered. For as it seemeth to some, that any justice of the Peace, may (upon his offer) take the Surety and deliver him: so it may be some doubt, whether he may be delivered (upon the death, or release of the party) without the help of a Sessions, or jail delivery. 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 suit hanging in the Common place aforehand, he might by a Writ of Privilege be discharged of the same, if they party, at whose suit he was arrested for the Peace, were not ready in Court at the day of the return of the Writ when he should be called to pray the Surety of the peace there again against him, & saith, that it had been always their common course so to do: but divers other there were of a contrary opinio, & it seemeth a hard case, that without any sufficient notice of such a removing of the party, a man should be defeated of his Surety so. But now, if the party shall yield to find Surety of the Peace, then may he at his liberty, if the Precept proceed Ex offici●, and without the Writ of Supplicavit, go to any justice of the Peace, to offer this Surety. To what justice be that is arrested may go. hereupon it happeneth often, that such people, (choosing rather to be bound by any other, than him that maketh the Warrant) having any suspicion of such a precept awarded or likely to be awarded, do offer themselves, & become bound before some other justice. And thereupon do procure a Supersedeas from him to be discharged of any other Arrest to be made. Yea, & many times (hearing of such Precepts, and misliking to be bound in the Country) they go up to West minister, and give Surety of the Peace there, either in the Kings Bench for a time only (as the manner of that Court is (or in the Chancery for ever (as they use it there) and do withal procure a super sedeas from the Court where they are bound, to close the hands of the Country justices. And therefore it is not amiss to say somewhat of this matter of supersedeas also. If a justice of the Peace then will (by a Supersedeas) discharge a Precept of the Peace, that was made by his fellow justice, he shall do well to take the Recognusance according to the day of appearance (if there be any) & after the form of the former Precept (if there be any). Supersedeas by a justice of the Peace For, as it is good reason, that having taken Surety for the Peace, he may by this Supersedeas save the party from finding other Surety for the same cause: So is it against reason, that he should give the party any other day of appearance than the Precept had, and thereby discharge a matter of Record that was made by one of equal authority with him. Fitzh. Fol. 9 Much less may the Supersedeas of a justice of the Peace, discharge a Precept of his fellow justice proceeding by virtue of a Supplicavit, for that it is of an higher authority. Mar. This Supersedeas sent by a justice of the Peace, is sufficient, although it neither name the Sureties, nor contain the sums in which they are bound: But yet it is the better form to express the both, as well because the higher Courts use so to do: as also if the bailiff, Constable, or other Officer (to whom it is delivered in discharge of his Warrant) be called at the next Sessions by the suit of him that sought to have the Peace, to show how he hath executed his Warrant, and he come in and show forth the Supersedeas, the party that is bound may be called thereupon, at the day that appeareth to be limited unto him by the Supersedeas, for it is under the seal of a justice, and doth testify that the party is bound and hath found surety, to appear at a certain day, and if he make default, that being Recorded shall be sufficient to cause him to forfeit the penalty of the Recognisance, although the justice that made it out, shall happen not to bring in the Recognusance itself, according as he now ought to do by the Statute. 3. H. 7. ca 1. And this may be gathered upon the opinion. 2. H. 7.1 and may be seen by this form of it here under written. GEORGE MULTON, one of the justices of the Peace of our Sovereign Lady the Queen's Majesty within the County of Kent, To the Sheriff, bailiffs, Constable's, Borsholders, Ministers, and other the Faithful subjects of our said Sovereign Lady within the said County, and to every of them, sendeth greeting: For as much as A. B. of etc. The form of a Supersedeas by a justice of the Peace. Yeoman, hath personally come before me at Ightham etc. and hath found sufficient surety, that is to say, C. D. & E. F. etc. Yeomen, either of the which hath undertaken for the said A. B under the pain of xx, lb and he the said A. B. hath undertaken for himself under the pain of xl. lb that he the said A. B. shall well and truly keep the Peace, towards our said sovereign Lady, & all her liege people, and specially towards G. H. etc. Yeoman, & also that he shall personally appear before the justices of the Peace of our said sovereign Lady within the said County, at the next general Sessions of the Peace to be holden at M. there: Therefore, on the behalf of our said sovereign Lady, I command you, & every of you, that ye utterly forbear and surcease, to arrest, take, imprison, or otherwise by any means (for the said occasion) to molest, the said A. B. And that if you have (for the said occasion, & for none other) take, or imprisoned him, that then you do cause him to be delivered and set at liberty without further delay. given at Ighthan aforesaid under my seal, this last day of july in the twenty-three. year. etc. Which also may be in the name of the Prince, and under the Teste of the justice of the Peace, thus: ELIZABETH, by the grace of God etc. To the Sheriff etc. greeting: For as much as A. B. hath come before G. Multon, one of our justices of peace within our said County, and hath found etc. We therefore command you and every of you, that ye forbear etc. Witness the said G. M. at Ighthan aforesaid etc. Thus much of the Supersedeas issuing from a justice of the Peace, the which ought to withhold and stay the proceeding of his fellow justices in the said cause: in so much that if any Officer by any of their Warrants having this Supersedea delivered to him, will nevertheless urge the party to find new Surety for the peace, he may refuse to give it, and (if he be committed to prison for such his refusal) he may (as I think) have his action of False Imprisonment against the Officer upon the same. Much more than will a Supersedeas, that cometh out of the Chancery, or King's Bench, or from any justice of the King's Bench, discharge such a Precept for the Peace awarded from any justice of the Peace. Supersedeas out of an higher court. And therefore, if the justice of the Peace (to whom such a Supersedeas shall be delivered) will not thereupon surcease, an Attachment may be awarded against him, for his comtempt, and he may be imprisoned, and fined, for it. It is good counsel therefore, that M. Fitz (in his Nat. Br. Fo. 238) giveth, where he willeth the justices of the Peace (after such a Supersedeas received) to forbear to make any Warrant to arrest the party. & it they have awarded it, then to make their own Supersedeas to the Sheriff and other Officers, thereby commanding them to surcease to execute it. This impediment of Supersedeas (lying after this sort as you have seen in the way to the justice of the Peace) thus passed over, let us now suppose the party served with the precept, to come before some justice of the Peace, and let us 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 do service whether the party come to him that made the Precept, or to any other. The taking of the Recognusance, for the Peace. If the justice of the Peace deal in this matter, as a judge, and by virtue of the Commission, than the number of the Sureties, the sum of their bond, their sufficienty in goods or lands, the time how long he shall be bound, and some other such circumstances, are referred wholly to his own consideration, and if he be deceived in the ability of the Sureties, he may compel the parties to put in others: Marrow. The Commune manner is, to take two Sureties, desides the party himself: and good reason it is that those should be such as have their names registered in the Book of Subsidy: for albeit that here and there some may be sufficient, that were not assessed to the Queen, yet it standeth not well together that he should become bound to the Prince in ten or twenty pounds, that was not in the Subsidy found worth any thing at all. But if he commmaunde the Peace as a Minister in execution of the writs of Supplicavit, than he must behave himself as the writ itself directeth him: and that hath not been always after one manner: for some form commandeth him to take sufficient Manucaptors in any pain (or sum) to be reasonably set by himself, so that he will be answerable for it at his own peril: and some willeth him to take sufficient Surety in a sum certainly prescribed unto him, as a hundred pounds, in all, or every of them in twenty pounds, as it may be seen at large, in the Register of writs Fo. 89. A justice of the Peace (saith Master Marrow) may take this Surety by a Gage, or Pledge, which shall not be forfeited thereby, but paunded only, that the party shall (under a certain pain) keep the Peace, which pain he shall forfeit, it he break the Peace. And (by his opinion) a justice of the Peace may also take this Surety by an obligation made to himself, by the name of justice of the Peace: For so shall it be (saith he) adusum Domini Regis: But if it were made unto him without his name of justice of the Peace, that then it could not be to the use of the King, unless it had the words, adusum Domini Regis. Master Fitzharbert, on the other side (in his Nat. Bre. Fo. 81.) holdeth, that such an Obligation taken to the King, by a justice of the Peace, is nothing worth: for a man can not be bound to the Prince (sayeth he) but only by matter of Record, unless he will afterward come into a Court of Record and cònfesse it to be his deed, & pray that it may be Enrolled there. But the new Statute (33. H. 8. ca 39) hath made a plain law in these cases, & willeth that all Obligations and Specialties (made for any cause touching the King) shall be made in his own name, by the words Domino Reg●, & to none other person to his use: & it ordaineth further, that such bonds shall be of the nature of a Statue Staple: and that if any person take any obligation otherwise, he shall be imprisoned at the pleasure of the King, or of his honourable Counsel. The safe way therefore, is to take this Surety by Recognusance as is commonly used, & that also by the words Dominae Reginae and then (upon the forfeiture thereof) the Queen shall have execution accordingly. Now, if a Recognusance be meant to be taken for the Peace, by a justice of the Peace, and yet do not contain within it, or in the condition thereof, that it was taken For the keeping of the Peace, it seemeth to be void, as being then taken, coram non judice because a justice of the Peace hath not power to take Recognusances generally, but for matters concerning his Office specially. And therefore Master Marrow addeth further, that if the Recognusance be, That the Recognusor shall not maim, nor beat A. yet it is not good, because it ought to be For the keeping of the Peace, and that may be broken otherwise, as by burning the house of A. or such like misdemeanour. Although this Recognusance do not comprehend any day, in which the Recognusor shall appear, but be generally to keep the Peace, yet it is good enough in Law: for the chief matter is, The keeping of the Peace, & the time referred to the discretion of the justice, and so is it, by Master Marrow, if a day of his appearance be put into the Recognusance, and no person be named in it, before whom the party ought to appear: for he may then (saith he) appear where he will before that justice of the Peace which took the Recognusance of him. And if the recognisance be in xx. ●●. to be levied only of the goods, or only of the lands, of the Recognusor, it seemeth to be good enough: for peradventure the words, Of the goods only or Lands only, shall be taken to be void, séing that the very acknowledgement of the sum of xx. ●●. (before a judge enabled to take it) both maketh it a debt, and implieth the ordinary mean of Law to come by it. If this Recognusance be taken, To Keep the Peace against one special party only, M. Marrow thinketh it good: but advise well of it, for the words in the Commission of the Peace be, to take surety Erganoes, & populum nostrum. But, for the better eschewing of Error & hard dealing in making this Recognusance of the Peace, it is good to use the received form, which is thus: MEmorandum, quod 4. die julij, Annoregni Domino nostrae Elizab: dei gratia, etc. 23. The form of a Recognusance, for the Peace. R. P. de Ightham in comitatu praedicta Yeoman in proprea persona sua venit coram me Georgio Multon, uno Iusticiariorum dictae Dominae Reginae ad pacem in dicto comitatu conseruandam assignatorun, & assumpsit pro seipso sub poena xx. lb Et H. I. de L, in comitatu praedicto Yeoman: Et. I. F. de M. in codem comitatu Husbandman tune & ibidem in proprijs personis suis similiter venerunt, & manuceperunt pro praedicto R. P. (viz.) quilibet corum separatim sub poena 100 the: quod idem R. P. personaliter comparebit coram justiciarijs dictae Dominae Reg: ad pacem ad proximam generalem Sessionem pacis in comitatu praedicto apud Maidstone tenendam, ad faciendum & recipiendum quod ei per curiam tunc & ibide iniungetur: Et quod ipse interim pacem dictae Dominae Reg: custodiet, erga ipsam Dominan Reg: & cuuctum populum suum, & praecipue versus M. N. de Ightham praedicta Yeoman, Et quod dammūvel malum aliquod corporate aut gravamen praefato M. N. (Nec alicui de populo dictae Dominae Reginae, quod in laesione aut perturbationem pacis ipsius Dominae Reg: seu praefati M. N. cedere valeat) quonismode non faciet, nee fieri procurabit: Quam quidem summam xx. lb praedict. R. P. & quilibet manuncaptorum praedictorum praedictas separales summas 100 solid: recognoverunt se debere dictae Dom. Reginae, de terris & tenementis, bonis & catallis suis, & cuiuslibet eorum ad opus dictae Dominae Reginae fieri & levari, ad quoruncunque manus devenerint, si contigerit ipsum R. P. praemissavel corum aliquod in a aliquo infringere, & inde legittimo modo convinci. In cuius rei testimonium, ego praedictus G. M. sigillum meum apposui. Dat apud Ighthan praedict. die & An. supradictis. Or thus, a little different in form. Memorandun qd 4 die etc. A. B. de Ighthan etc. Et C. D. de eade Yeome, venerunt corae me G. M. etc. et. Manuceperuns p 18. nuper de L. etc. qd ipse personaliter comparebit coram me praefat● G. M. vel socijs meis justiciarijs pacis D. Reg: ad proximan generaele Sessione etc. Et qd ipse interim geret pace erga cunctum populum Do. Reginae, & praecipuè erga R. B. etc. (viz.) quilibet manucaptorum praedictorum sub poena 20. lb. Et praedictus 18. manucepit pre seipso sub poena 40. th'. Quam quide summam 40. lb. praedictus 1. 8. & quilibet manucaptorum praedictorum dictam summam 20. lb. recognoverunt etc. And this may be well done also, by a single Recognusance in Latin, with a condition added in English, for the keeping of the Peace, and for the day and place of the party's appearance at the Quarter Sessions. The Surety (or Recognusance) of the Peace, thus commanded, & accaomplished, order draweth me to disclose, how the justice of the peace is to demean himself with it. What shall be done, with the Recognusace. If the Surety were taken, by virtue of a Supplicavit, then must the justice of the Peace (being in this case but a Minister) make return of the Writ, & a Certificate of his doing, into the Court from whence the Supplicavit did proceed, for help wherein, I will set him down that which I have seen put in practice upon ● Writ of that kind. The return ● of a Supplicavit. First, let him note upon the back of the Supplicavit thus: Executio istius Brevis, patet in quadam Scedula eidem Brevi annexa. Then may that Schedule be thus: EGo Wilhelmus Lambard, unus custodum pacis Dominae Reginae in comitatu Kanciae, certifico in Cancellariam dictae Dominae Reg●me virtute istius brevis (mihi per A. E. in eodem brevi nominatum, primo deliberati) personaliter coram me (tali die & loco) venire fecisse Thom: R. in dicto brevi nominatum, ac eundem Tho. ad sufficientem securitatem, & manucaptores in●eniendum, secundum formam dicti brevis, (viz. (as the Writ shall appoint, which is of divers forms, as I told you before) compulisse: In cuius ●ei testimonium huic praesenti Certificationi meae sigillum meum apposui: Dat. apud D praedictam, in comitatu praedicto 5. die julij anno regni dictae Dominae nostrae Elizabet. dei gratia, & c. 23. And if a Certiorari be directed out of the Chancery to the justice of the Peace for this Recognusance, because it was not sent up together with the Certificate, (as there was no necessity that it should) than that Writ also may be thus answered. The return of a Certiorari. Upon the back of the writ, thus: VIrtute istius brevis, ego W. L. unus custodum pacis dominae Reginae in comitatu K. tenorem securitatis pacis (unde infra fit mentio) dictae dominae Reginae in Cancellarian svam sub sigillo meo distinctè & apertè mitto, prout patet in Scedula huie brevi consuta. The which Schedule may be thus: Memorandum, quod 20. die jun. etc. (reciting the whole Recognusance to the end thereof.) Then, In cuius rei testimonium ego praedictus W. L. sigillum meum apposui: Dat. etc. And this may serve also, where a Certiorari is brought to a justice of the Peace, to remove a Recognusance of the Peace taken by him Ex officio, without any such Writ of Supplicavit, as you may read in the Register, Fol. 90. But if the recognisance be not thus removed from the justice of the Peace, then may he keep it till the Certiorari come to him for it. On the other side, if the Recognusance were take by virtue of his Office, than (whether it were by his own discretion, or at the suit and desire of another) he must send, or bring it in at the next Sessions, to the Custos Rotulorum, so that the Recognusor may be there called, and if he make default, than the same default to be recorded, as is appointed by the Statute. 3. H. 7. ca 1. The certifying of the Recognusace and release to the Sessions. And here again, some difficulties do arise, the may make the justice of Peace sometimes doubtful, how to hold, certify, or send in the recognisance. For sundry means there are, by which this Recognusance of the Peace may (before any forfeiture thereof made) be after a sort discharged, and therefore let us consider them apart, and withal give some advise what shall be best to do therein. The justice of Peace, that of his own motion compelleth one to give Surety of the Peace until a certain day, may by like discretion before that day, may by release it Fitzh. Fo. 10. Release of the Peace by a justice of Peace. And if it should fortune to be made to keep the Peace generally, without any day limited, then would it be construed that it was to continue during the life of the party bound, and then could no man release it, by Fitz. & 21. E. 4 40 If (at the suit of A.) that Recognusance should be taken, To keep the Peace against A only and none other, then may A. release it either before the same justice, or any other that will certify the Release, which certificate being of Record, will discharge it, for to release it by his deed, is nothing worth. Mar. And so if it be versus cunctum populum, & praecipue versus A. yet may A. after that sort release it (as I think) notwithstanding the opinion 21. E. 4.40. for albeit the it seem popular, so the others should have equal interest with A in it, yet was it taken specially for his safety, as the word Praecipu● doth argue plain. And M. Brooke saith truly, that it is so used at this day. But whether the Recognusance be at the suit of A. or by the mere motion of the justice in the behalf of A. the Queen can not release or pardon it (before that it be forfeited) both for the mischief that may come to A thereby, by Fineux his opinion 11. H. 7. 12 & for that the Recognusance being taken according to the common form, as is before set down, it is not properly a debt to the Queen until it be forfeited, as appeareth 11. H. 4.43: 1. H 7.10. But being forfeited, she (and none other) may pardon the forfeiture, for than it is become her proper debt. Now in these cases, the Recognusance may not be Canceled, lest peradventure the Peace was broke (& consequetly the Recognusance forfeited) before the time of the Release made, Fitz. Fo. 10. & therefore it shall be best in such cases to send to the Sessions the Recognusance & the Release together: & that may be done in a few Lines under the recognisance itself: First for the release of the justice, thus: Ego prafatus G. M. qui supra nominatum A. B. ad pradictam securitatem pacis inveniendam ex mea discretione compuli, eandem securitatem pacis (quantum in me est) ex mea discretione 1. die August: remisi & relaxavi: In cuius rei testimonium, huic prasentirelaexationi meae sigillum meum apposui. Dat. etc. And for the release of the Party before the same justice that took it, thus: MEmorandum, quod primo die Augusti, etc. praefatus C. D. venit coram me prafato G. M. & gratis remisit & relaxavit (quantum in se est) praedictam securitatem pacis per ipsum versus supra nominatum A B. petitam. Release by the party. In cuius rei testimonium, ego prafat. G. M. etc. Dat. etc. But if the release be made before an other justice which hath not the recognisance, than this later form must be fremed accordingly. Furthermore, if a man be bound before a justice of the Peace, to keep the Peace against all the Queen's people, & to appear at the next Quarter Sessions, and do afterward procure a Supersedeas; out of the Chancery, testifying, that he hath found surety there against all the Queen's people for ever, this will discharge his appearance at the Sessions, because the granting of this Supersedeas is the Act of the Queen, which is the fountain of justice, and controlleth all other authority, Fitz. Fol. 9 Certifying of the Recognusance, & Supersedeas. But if that Supersedeas should testify, that he hath found Surety in the Chancery, but only until a certain day (which day is after those Sessions) then M. Fitzh. thinketh, that his appearance at the Sessions shall not be discharged by the Supersedeas. In both these cases also, I would advise the justice of the Peace, to send in the Recognusance and the Supersedeas also, if it cometh to his hands, for peradventure the recognisance was broken before the Supersedeas purchased: or, if. it were not, yet he shall be excused, and the Recognusor never a whit the more endangered thereby. Lastly, the death of the Prince dischargeth the Recognusance of the peace. 1. H. 7.2. Cur. So doth the death of the Recognusor: & so also doth the death of him at whose suit it was taken, if so be, that it were made to keep the Peace against him alone. But although the Mainpernours or Sureties die, yet the Recognusance liveth: for, if the Peace be broke after their deaths, their executors shall be charged with it. Certifying of the Recognizance, though it be discharged by death. 21. E. 4.40. Neither (in the former cases) is the Recognusance discharged by such death, if it were forfeited before. And therefore, here again my counselled is, to send in the Recognusance to the Custos Rotulorum, for other wise, how shall the justice of Peace be assured, that he doth not defraud the Queen of a forfeiture, that was grown unto her. Thus have I both bound the party to the Peace, & conveyed the Recognusance from the justice of the Peace to the Custos R●●ulorum, ready to be called upon at the Quarter Sessions: So that I might forthwith proceed to treat of the good Abearing: But, beacuse I have told you (out of M. Mar. and by 21. E. 4. 40.) that if the recognisance of the Peace be forfeited, and that forfeiture be levied, so that the Recognusance is utterly determined, yet (of Discrtion) the party is to be compelled to find new Surety or else to be sent to prison, because it appéreth evidently, that he hath broken peace, and is a stubborn offendor against the law, I think it fit to run swiftly over some few things that may inform a justice of the Peace, concerning such forfeitures, to the end, that he may thereupon compel the offendor accordingly. Causes of forfeiture, so that the party shall be compelled to give new Sureties The Condition of this recognisance (of what good form soeur you make it) standeth upon two points: the one, for appearance at a time, the other, for keeping the Peace in the mean while. Of th' first of these I have, said somewhat already in this Chapter: concerning the second point, this is general, that whatsoever Act is a breach of the Peach, the doing thereof doth als beget a forfeiture of the Recognusance that is made for keeping of the Peace: and what acts shall amount to a breach of the Peace, I will hereafter show, in the next Chapter of this Book, where I shall (to an other end) have meet place for it. In the mean space, take thus much here. If a man be bound to keep the Peace against A & do afterward threaten A to his face, that he will beat him, high hath forfeited his Recognusance. And an Action of Trespass lieth at the Common law against him the shall threaten one to beat him, as appeareth in divers Books cases. 3. H. 6 18: 37. H. 6. 20. & shall suppose it to be Contra pacem. But other wise it is, if A be not present at that threatening, by good opinion. 18. E. 4. 28. yet if (in the absence of A.) he doth threaten, that he will beat him, & then do after ward lie in await to beat him, he hath in that case also broken his Recognusance. 22. E. 4. 35. per Cur. Like forfeiture is it, he that is bound do but command or procure an other to break the Peace upon any man, or to do any other unlawful act against the Peace, if that it be done indeed. 7. H. 4. 34. & Brooke Tit. Peace. 20. tempore. H. 8. For closing up of this part (concerning the Prevention of the breach of the Peace) it remaineth, that I entreat of the Surety of good Abearing, which is of great affinity with that of the Peace, as being provided for preservation of the Peace, as that o● there is: for in the Commission of the Peace, they are both conveyed under this one tract of speech, (Ad securitatem de pace & bono gestu suo erga nos & populum nostrum inveniendum) against such as do threaten hurt to men's bodies, or Fire to their houses, which things are now commonly prevented by Surety of the Peace only. Of the surety of the good Abearing, and where it lieth. And by the Book 2. H. 7.2. Surety of the good Abearing is set forth to rest in this point chiefly, That a man demean himself well in his prote and company, doing nothing that may be cause of the breach of the Peace, or of putting the people in fear, or trouble: and that it doth not consist in the observation of things that concern not the Peace. And that it should differ from Surety of the Peace, in this, that where the Peace is not broke without an affray, or battery, or such like, this Surety de bono gestu, may be broke by the number of a man's company or by his or their weapons o harness. Herewithal also do certain Precedentes of the King's Bench agree, which in Surety of the good Abearing (taken at the suit of some one person) do mingle the words Amodo bene se geret erga Dominum Regem, & cunctum populum suum, & praecipuè erga T. B. with those other words that are commonly put in the recognisance for the Peace, as the Peace, as in the new Book of Entrees Fol. 416. any man may plainly see. But all this notwithstanding, me thinketh that a man may reasonably affirm, that the Surety of good Abearing should not be restrained to so narrow bounds. For first, the Statute (34. E. 3. ca 1.) enableth the Wardens of the Peace, to take of all the that be not of good fame (where they shall be found) sufficient surety & mainprize of their good abearing towards the king & his people. So that, if a man be desamed, he may by virtue hereof be bound to his good Behaviour, at the discretion of the Wardens and justices of the Peace. But then the doubt resteth in this, to understand concerning what matters this defamation must be, & that (as I think) may be partly gathered out of the aside Statute also. For, after it hath first given power to the Wardens of the Peace, to arrest and chastise offenders (S. against the Peace, Riotors and Baretors:) than it willeth them, to inquire of such as having been robbers beyond the sea, were come over hither, and would not labour as they were wont: and lastly, it auctorizeth them, to take surety of the good behaviour of such as be desamed, namely (as I think) for any of those former offences for so it standeth well together, the they shall both punish such as have already so offéded, & shall also pro vide, that the others shall not likewise offed. Moreover, it seemeth to me, that these statutes first (1. Mar. Parl 1. ca 3.) which giveth this Surety of good Abearing against such as disturb a Preacher, than (5. Eliza. ca 21.) that provideth the same against the takers of fish in Ponds, or of Dear in Parks, and lastly (23. Eliza. ca 1.) which granteth it against such as wilfully absent themselves from the church by the space of 12. months. have this meaning, that a party (so bound) may afterward forfeit his Recognusance, if he eftsoons offend against the said Statutes. Besides this, you may see (admitted by the opinid of the Court. 13. H. 7.10) that if a man do in the night season, haunt a house that is suspeded for Bawdene, or do use suspicious company, the may the Constable arrest his to find sureties of his good abearing: For, Bawdry is not merely a spiritual offence, but mixed, and but sounding little against the Peace of the land 27. H. 8.14 Fitz. & 1. H. 7.6. And therefore, it shall not be amiss at this day (in my sleder opinion) to grant Surety of the good Abearing against him the is suspected to have begot a Bastard child, to the end the he may be forth coming when it shall be borne: for other wise, there will be no Putative father found, when that the two justices of the Peace, shall (after the birth, & by virtue of the statute 18. Eliza. ca 3.) come to take order for his punishmet. And for some advise by the way in conceiving rightly this suspicion, mark what M. Bracton writeth: Oritur suspitio ex fama, & ex fama & suspitione, oritur gravis praesumptio: Fama verò suspitione induces; oriri debet apud bonos & graves, idque non semel, sed saepius. Oritur etiam suspitio, ex facto praecedente, cui standum est donec probetur contrarium: nam qui semel est malus, semper preasumitu ess malus, in eodem genere mali. But the further that this bond of the good Abearing doth extend, the more regard there ought to be in the awarding of it: and therefore, although the justices of the Peace have power to grant it, either by their own Discretion, or upon the complaint of others, even as they may that of the Peace: pet I wish rather, that they do not command it, but only upon sufficient cause, seen to themselves, or upon the suit & complaint of divers, and the same very honest and credible persons. And here, forasmuch as one justice of the Peace (alone, and out of the Sessions) may (both by the first Clause of the Commission, and also by the opinion of M. Fitz. & 9 E 4. 3.) grant this surety of the good Abearing, (although the common manner be, that two such justices do join in that doing, whereof also M. Fitz hath very good liking) I will not stick to set forth here, the common forms, as well of the Precept, as of the Recognusance, for the same: wherein, if I shaluse the names of two justices, you must take that also to be done according to the common fashion, & not of any necessity in law. For, as I would more gladly use the assistance of a fellow justice in this behalf, if I may conveniently have it: so (if that may not be had) I would not greatly fear (when good cause shall require) to undertake the thing myself alone. The Precept, may have this course. GEORGE MULTON, and William Laembarde, two of the justices of the Peace of our Sovereign Lady the Queen's Majesty in the County of Kent, To the Sheriff of the said County, to the Constables of the Hundred of Wroteham, and to the Borsholder of the Town of shipborne, in the said County, and to every of them, greeting: For as much as A. B. of Shipborne aforesaid is not of good fame, not of honest conversation (but an evil doer, rioter, Barrettour, & perturber of the Peace of our said Sovereign Lady) as we are given to understand by the reaporte of sundry credible persons. The Precept of the good abearing. Any one of these, is sufficient cause. Therefore, on the behalf of our said Sovereign Lady we command you and every of you, that you cause the said A. B. to come before us, or some others of our fellow justices, to find sufficient surety and mainprize for his good abearing towards our said Sovereign Lady, and all her liege people. And if he shall refuse so to do, etc. as in the Precept of the Peace, with a very little change. The usual Recognusance, hath this form, MEmorandum, quòd 5. die mensis july, Anno regni Elizab. etc. 23. venit coram nobis Georgio Multon, & Wilhelmo Lambard, & caetera, ut antea in Recognitione pacis, usque ad hoc: Quod idem R. G. personaliter comparebit coram Iusticiarys dictae Dominae Reginae ac Pacem, etc. ad proximam generalem Sessionem, etc. The Recognusance of the good Abearing. Et quòd ipse interim se bene geret erga Dominam Reginam & cunctum pepulum suum, & praecipué erge I. B. de C. etc. Et quod ipse non inferet, nec inferri procurabit, per se nec per alios damnum aliquod seu gravamen praefato I. B. seu alicuide populo ipsius Dominae Reginae de corporibus suis, per insidias, insultus, seu aliquo alio modo, quod in lasionem seu perturbarionem pacis dictae Dominae Reginae cedere valeat quovismodo, videlicet uterque praedictorum H. C. & I. S. sub poena 100 th. Et praedictus R. G. sub poena 200. th. quas quidem seperales summas 100 th. uterque praedictorum H. C. & I. S. (ut praedicitur) pierce, ac praedictus R. G. dictas, 200. th. recognoverunt se debere dictae Dominae Reginae, de teris, & tenementis, bonis & catallis suis, & cuiuslibet corum, ad opus ipsius dictae Dominae Reginae, fieri & levari, St contingat preaefatum R. G. in alliquo praemissorum deficere, & inde legitimo modo convinci, etc. Or by a simpel Recognusance, with this Condition Endorced, or under written. COnditio Recognitionis praedictae talis est, Quod si praedictus R. G. imposterum se bene geret, & pacem Dominae Reginae conseruet, erga dictam Dominam Reginam, et cunctum populum suum, et nullum damnum corporale etc. Extunc Recognitio praedicta pronullo teneatur, alioquin in suo robore permaneat. Thave known it doubted, whether the Surety of the good Abearing (commanded upon complaint) may be released by any special person, or no, because it seemeth more popular, than the Surety of the Peace. Release, of the good Abearing But if it may (as it seemeth all one to me) then may the form of such a Release be easily made, by that which is before concerning the Peace, using the words, Securitatem de se bene gerendo, in stead of the words, Securitatem pacis. And the like imitation may be used also, for a Supersede as of the good Abearing, if at the least that be grauntable by justices of the Peace. I might here, without breach of Order prosecute the preservation of the Peace, by the preventing of such as be riotouslly assembled, & by handing the Statute of Northampton, which seemeth (by plain speech) to be provided for prevention of the breach of the Peace also: But because the first shall have his proper place, and the latter is commonly put in ure at this day, after the Peace broken by forcible Entry, I will spare to speak of any of them, till I come to treat of those matters by themselves. Of the breach of the Peace without a multitude against the person, and how it may be stayed, or punished by one justice of Peace out of the Sessions. CAP. XVII. The Prevention Of The Breach Of The Peace Hath Appeared, AsWell In The Surety Of The Peace, As Of The Good Abearing: & Therefore Mine Own Order ReQuireth, That I Now Declare What One justice Of The Peace May Do (Out Of The Session's) For PunisHment Of such as do break the Peace. Breach of the Peace without a multitude. For, our law is no less careful this way to conserve the Peace, both by staying them that do any way adventure towards the breach thereof, and by punishing them that do acually enter into the very violation of the same, than it was provident to see it preserved before it came to any near show of disturbance, or greater evil. But because the breach of the Peace (as the law is taken at this day, whether it be by word, or other act, (and that also whether it be to the person, or to his goods, or lands,) may be aswell committed by one only, or by two upon a side (both which we hold to be done without a multitude, though two in precise speech do make a number) as by three or more in one company (which the law properly calleth a multitude.) it shall be good to entreat by itself first of that breach of the Peace which may be committed without a multitude, and then to prosecute the other. If there withal we put the justice of Peace in remembrance, that by what way soever the may prevent or punish the breach of the Peace in one person, the same means may he also bse against any multitude so offending. The breach of the Peace that may be practised against the person, climbeth to the destruction of the person, by sundry degrees: as by Threats, Assray or assault and violent and malicious striking and beating, wounding, mayheming and killing. The matter of menacing and threatening is sufficiently touched in the last Chapter. The words Affray and Assault, be indifferently used of many men, even in our book cases, but yet there wanteth not a just difference between them in mine opinion. Affray and Assault. For, Affray, is derived of the french effrayer which signifieth to terrify, or bring fear: and is the more heinous trespass, for it is in law understood to be a common wrong done, and therefore is inquirable & punishable in the Turn of Sheriff and in a Léet, by 4. H. 5.10. and 8. E. 4.5. Otherwise it is of an assault, as it seemeth by those books. Yet it may be done, without word, or blow, given: as if a man shall show himself furnished with armour or weapon, which is not usually worn and borne, it will strike a fear into others that be not armed as he is: and therefore, both the Statute of Northampton (2. E. 3. ca 3) made against the wearing of armour and weapon, and the writ thereupon grounded, do speak of it, by the words, effray delpays, and interrorem populi. An Assault, as it is fetched from an other fountain, namely from the Latin Assultus which denoteth a leaping (or flying) upon a man: So it can not be performed, without the offer of some hurtful blow, or at the least some fearful speech. And therefore, to rebuke a Collector with fowl words, so that he departed for fear 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 blow) was adjudged an Assault, 22. libr. Assis. pl. 60. For this Assault both not always necessarily emplie a hitting: and therefore, in Trespass of Assault and Battery, a man may be found guilty of the Assault, and get be excused of the Battery: 40. Ed. 3.40. and 45. Ed. 3. 24. Manacing then, Affrays, Assaults injurious and violent handelings, and misentreating of the person, batteries, malicious strikings, etc. be breaches of the Peace, and do draw after them the forfeiture of a Recognusance, knowledged for the keeping of the Peace. What acts be breaches of the Peace and what not. And therefore (for example) if a man do imprison an other without warrant, or do thrust him into a water (or river) whereby he is in danger of drowning, or do raushe a woman against her will, or do commit manslaughter or burglary, or robbery, upon the person of an other, or do commit treason against the person of the Prince, who as he is the head of his people, so are they also wounded in his hurt, he hath broken the Peace. Marr. But concerning the menacing, assault or battery of the person of one, this is to be noted by the way, that it is not in all cases a violation and breach of the Peace: for some are allowed to have privately, a natural, and some a C●●le power (or authority) over 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 fort, the parent is suffered (with moderation) to threaten and chastise the child within age. By reason of the other fort of power, the husband is not punishable (so that it be not outrageously) if he chastise his wife, Master his servant, the Schoolmaster his scholars, & a Gaoler (or his servant, by his commandment) his unruly prisoners and the Lord may beat his villain. But these things must nevertheless be done in convenient place, and therefore not in the presence of the Prince, as it is thought 27. lib. Ass. pl. 49. This power of the husband over the wife, seemeth to be permitted by the words of the Supplicavit that is set down for her in the Register. 89. when she standeth in need of the Peace against him, where it is said, That he shall be bound to do her no corporal harm, but with this exception, Aliter quàm ad virum ex caussaregiminis & Castigationis uxoris suoe, licitè & rationabiliter per●●net: Wherein it agreeth with the Civil Law, which yieldeth to the husband that power, so that he use it Modice, moderately. And saith M. Peter Martyr upon the 1. to the Corinthians. c. 11. ver. 3. The husband may Corripere & castigare uxorem eadem charitate qua Christus Ecclesiam verberat, nimirum ut melior fiat, etc. The power of the Master & Schoolmaster, over the Servant, and Scholar, is affirmed by M. Marrow, and confirmed by some opinion in the book 21. E. 4. 6. & 53. Whereunto I may also add the mind of those that made the Statute (33. H. 8. cap. 12.) concerning malicious striking in the king's house: for they do therein specially exempt the Master that striketh his Servant, with his hand, fist, small staff, or stick, for his correction for any offence. Howbeit in these cases, I do advise both husband and master not to provide so much how they may escape the breach of a Recognusance or punishment of our laws, as to foesee that they keep the law of God, and do nothing against honesty: the one as knowing that the wife is his own flesh, and the other as considering that he also hath a Master in heaven. Every man also may take his kinsman that is mad, and may put him in a house, and bind and beat him with rods, without breach of the Peace. 22. lib. Aff. plac. 56. A Constable or other Officer, or any other, being of their company, that shall be driven to strike any person, for the better executing of their Office or charge (as in many cases they may lawfully do) breaketh not the Peace nor shall be in any peril of forfeiting any Recognusance of the Peace, by reason of any such assault or battery, as may be well inferred upon the book cases 17. E. 4. 5: 2. E. 4. 6. & 8: 4. H. 7. 1: & 14. H. 7. 8. For such Acts be justifiable. And see for this purpose also M. Stamforde. Fo. 13. 14. 15. Besides this, if a man be enforced to repulse violence (done unto his own person, or to the person of his wife, father, mother, child, kinsman, master, servant, or to his goods being in his possession,) either by threatening or striking again: his so doing is also justifiable, as may be seen in Marr. 33. H. 6. 18: 19 H. 6. 3: 9 E. 4. 48: & 35. H. 6. 50. But a Fermer or Tenant cannot justify such an act in defence of his Lanlorde, nor a Commoner in defence of the Mayor, or Bailiffs of a corporate Town. If one man also hurt or kill an other at Fence play, or at the Title, Turneament, or Barriers (in pefence of the Queen, and by her licence) or in a wager of Battle for the trial of a cause according to the ancient Laws of this Realm, it is no breach of the Peace at all, Marr. Thus far of those breaches, that may bring danger to a Recognusance of the Peace: for some others there be, which are in a degree against the Peace, so that an inditement Contrapacem may be found upon them, but yet no forfeiture of such a Recognusance shall ensue of them. Breaches of the Peace, that make no breach of bond for the Peace. As if a man (so bound) do take a man's goods wrongfully, (so that it be not from his person) or do Ravish a Ward from the possession of his Garden: or do a Trespass in an others man's corn, or grass: or do Disseasse an other of his lands: or do enter into lands, where he ought to bring his Action, it will breed no forfeiture of his bond. Therefore let us now come to the pacifying and punishing of the Breach of the Peace upon the person, by one justice of the Peace out of the Sessions. A justice of the Peace, is undoubtedly (for this purpose) endowed with no less power, than every Pr●uate man, or any Constable hath: as it is plain by 14. H. 7. 8 & 9 E. 4. 3. And therefore it may not be thought Heterogeneum (or besides my purpose) if I shall show what both a Private man and Constable may do in this case: yea rather I choose to utter this matter under their names, to the end that I may with the one labour bewray the duties, both of them and of the justice of the Peace himself in this behalf. The Law looketh, that every Private person, whom it shall happen to be present at an Affray, Assault, or Battery (for now I will confound those names) should do his part to depart them that fight together: and it doth (to that end) enable him also with some portion of authority. The duty of a slander by at an Affray. For, if two be fight, every Slander by, may lawfully, and shall do well to put them in sunder, and if he take hurt thereby, he shall have his remedy by Action against him that did the hurt. To part them. But yet he (being but a Private man) may do no hurt, if they resist him, for they also stall then have Action for it against him: wherein his case differeth (as you shall see anon) from the case of an Officer. And if an Affray be in the high street, and one cometh towards it with harness, or weapon, to take with the one party, every man that seeth it may stay him till the Affray be ended. Any man also may stay the Affravours, until the storm of their heat be calmed, and then may he deliver them over to the Constable to imprison them, till they find Surety for the Peace: but he himself may not commit them to prison, unless the one of them be in peril of death by some hurt: for than may any man carry the other to the jail, till it be known, whether he so hurt, will live or die, as appeareth by the Statute 3. H. 7. ca 1. To stay them. But as the keeping of the Peace is more specially recommended to the charge of justices of peace, Constables, petit-Constables, Borsholders, Tithing men, and such like Officers: so be they also therefore armed with a larger measure of authority? And there fore if a Constable, or such other Officer do see a man, endeavouring to make an Affray, he may command him to avoid upon pain of imprisonment: and if the Affray be great, or dangerous, he may make Proclamation, and may command the parties to prison for a small time, till their heat be passed over, & then he must deliver the without any fine taking. The Officers duty in an Affray. But if two do use only hot words, one against the other, the Officer may lay no hands upon them, unless they do also draw weapon, or do otherwise offer to strike: If they once fight together, then may the Officer depart them, and if he hap to be hurt in that doing, he may have an Action of Trespass for it: but if any of them be hurt by him in the resistance, no Action lieth for them: For, the Officer ought to do his best to depart them: in so much as if it be presented at the Sessions of the Peace, that he was present at an Affray, & did not use his endeavour to put them in sunder that fought together, he shall be f●●ed for it: Otherwise it is, if he were not present, but were only told of the Affray. Marr. If any of the parties be in danger, by reason of a hurt received in the Affray than ought the Officer arrest and carry the other to the jail, until he shall find surety to appear at the jail delivery. Fitzh. 72: 38. E. 3. 6. & 22: ●b. Aff. pl. 56. And if two men be fight in a house (the doors shut) then may the Officer break open the doors to see the Peace kept, though neither of them have taken hurt. And yet when the Constable hath taken an Affrayor he may not imprison him in his house, but in the S●ockes, and that not above such a reasonable time as he may provide to convey him to the Gaol till he find surety of the Peace. 3. H. 4. 9: & 22. E. 4. 35. And herein he differeth from a Gaoler, or the Sheriff (who hath the charge of the jail) for he may make a jail of his house: and so cannot a Constabe or justice of the Peace do. And by the Statute (5. H. 4. ca 10.) the justice of Peace must send his prisoners to the common jail. If one do make an Affray upon the justice of Peace, Constable, or such other Officer, he may not only defend himself, but may also apprehend the offender, and send him to the jail, till he will find surety of the Peace. 5. H. 7. 6. And the justice, or Constable may (if need be) commauno assistance of the Queen's people, for the pacifying of an Affray, 3. H. 7. 10. If he that maketh an Affray do fly into a house when the justice of Peace (or Constable cometh to arrest him, they may (in fresh suit) break open the doors, and take him, Mar. Or if he fly thence, they may make fresh suit and arrest him, though it be in an other County, by the opinion of some men. 13. E. 4. 9 And it should seem (by the reason of that Book) that in this case also, they may break open the doors to apprehend him, because the Prince hath an interest in the matter, and then a man's house shall be no refuge for him, as it should be in Debt or Trespass, where the interest is but only to some particular party. Now, if the Constable do arrest one, that hath hurt an other, and do voluntarily suffer him to Escape, and then he that was hurt ●ieth thereof within the year and day, the Constable shall make a great Fine, and that to the value of his goods, in the opinion of some. 11. H. ●. 12. & Stanford. 35. 1. But the offence shall not have such Relation to the stroke, as to make the escape to become Felony thereby. Commentar. Ploughed 263. Of the breach of the Peace without a multitude, or with a multitude, by forcible entry into lands or tenements etc. And what one justice of the Peace out of the Sessions may do therein. CAP. XVIII. BEfore the troublesome reign of King Richard the second, it seemeth that the common Law permitted any person which had good right or title to enter into any land, to win the possession thereof by force, if otherwise he could not have obtained it. And still at this day, if in a common Action or inditement of Trespassle for entering into any land, the Defendant will make Title thereunto, the whole matter of the Force alleged against him will rest altogether upon the validity of his Title, as appeareth 7 H. 6. 13. and 40. And a man may also at this day retain with force his own goods and cattailes against an other, 19 H. 6. 31. & 9 E. 4. 18. But after the rebellious insurrecon of the velleins & other of the commons which happened in the fourth year of that kings reign. The Parliament in 5 R. 2. cap. 7. (thinking it necessary to provide against all occasions of any further uproar or new breach of the Peace) did ordain among other things, That from thenceforth none should make any entry into any lands or tenements, although his entry into the same were lawful, but only in peaceable and easy manner, and not with strong hand, nor with multitude of people, upon pain of imprisonment, and to be raunsommed at the Kings will. But because this Statute gave no quick remedy in this point, nor any special power therein to the justices of the Peace of the country, whereas the experience of that busy time required a great deal more speed in suppressing such disorder: After that they had in 13. of that king c. 7. Stat. 1. taken order that justices of Peace should be made of new in all the Counties of England of the most sufficient Knights, esquires & men of law of the same County. And that they should be sworn to keep & put in execution all Statutes & ordinances touching their offices. The in 15 R. 2. c. 2 they caused it to be further enacted, That when such forcible entry should be made into lands or tenements, or into Benefices, or Offices of the Church, and complaint thereof come to any justice of the Peace, he should take sufficient power of the County, and go to the place where the forcible entry was made: & if he found any that held such place forcibly after such entry made, the same should be taken and put in the next jail, there to abide convicted by the Record of the same justice, till they had made fine, and ransom to the King, And that aswell the Sheriff, as all others of the County, should attend upon the said justice, to go and arrest: such offenders, upon pair●e of imprisonment, and to make fine to the King. Now again, for as much as this last Statute did not extend to those that entered Peaceably, and then held with Force: nor against the offenders if they were removed before the coming of the justices, nor yet any pain therein ordained against the Sheriff that did not obey the precepts of the justices in this behalf: it was not only ordained by a thribe Act (made 8. Hen. 6. cap. 9) That the said former Statutes should be holden and duly executed, But it was adjoined also thereunto, That if any from thenceforth forth should make such forcible entry into lands, tenements, or other possessions, or should them hold forcibly, after complaint thereof made within the same County to any of the justices of the Peace thereby the parties grieved, that the justice so warned should in convenient time cause the last said Statute duly to be executed at the costs of the said party. And whether the perfons (making such entries) were present, or avoided before the justices coming, the same justices (or justice) in some good town next to the said tenements, or in some other convenient place at his discretion, should have power to inquire by the people of the same county, as well of them which made such forcible entries into lands or tenements, as of them which held the same with force: And if it be found before any of them, that any doth contrary to this Statute, than the said justices (or justice) shall do the said lands or tenements to be reseised, and shall put the party (so put out) in full possession of the same. And when the said justices (or justice) make such inquiry, they shall direct their Precept to the Sheriff, commanding him on the King's behalf, to cause to come before them and every of them, sufficient and indifferent persons, dwelling next about the same lands or tenements, whereof ●ucrie man shall have lands or tenements of the clear yearly value offourtie shillings at the least, and the Sheriff shall return twenty shillings in issues upon every one of them at the first Precept retournable, and at the second forty shillings, and at the third five pound, and at every day after, the double. And every Sheriff of County, and Bayly of franchise, that shall not duly make execution of the said Precepts, shall forfeit to the King twenty pounds for every default, and shall moreover make fine and ransom to the King. And aswell the justices or justice aforesaid, as the justices of Assizes, may hear and determine such defaults of Sheriffs or bailies, aswell by Bill at the suit of the party grieved for himself, as for the King only, by way of inditement, and upon such due attainder, he which sueth for himself and for the King, shall have the one moiety of the said twenty pounds together with his costs and expenses: and such Process shallbe against: such so attainted, as lieth against: any person indited, or sued, by writ of Treapasse with force and Arms against the Peace. And the Majors, justices of the Peace, Sheriffs and Bailiffs, that are in Cities, or Bourowes (having franchise) shall have like power in the articles aforesaid, as the justices of Peace, and Shirits in the Counties have. But they which keep by force their poffessions in any lands or tenements, whereof they or their ancestors, or they whose estate they have therein, have continued their possession in the same by three years or more, shall not be endamaged by this Statute. This last Statute I have the rather exemplified at large, because it containeth a full direction in this business, yet because I have seen some other things that ●ende to some little explanation, of some of the points of the same, which be good to be considered of, I think that they also may be well bestowed here. This Statute therefore enableth any one justice of the Peace to deal in this matter upon occasion given, and is made, as well against such as enter with force, as against those that enter Peaceably, and then hold in with force. But whether the justice be bound to ermine the goodness of his title that entereth, and accordind to the same to make or deny restitution, it hath been oft times made a question, which surely in mine opinion should carry no great doubt with it. For seeing that the Statute 5. R. 2. cap. 7. prohibited all entries with force although they were otherwise lawful, and the Statute 15. R. 2. ca 2. rehearsing the same, giveth authority to every justice of Peace upon any such forcible entries, presently to commit the offenders there found to the Caole, and this Statute meaning to supply some other defects in the former, giveth special remedy to the party grieved by the aid of the same justice, by restoring of him to his possession again: I see not why the justice of Peace (who perhaps shall have but little skill in Law to discern and judge of the Little, and yet be a fit man to suppress all force, and able enough to restore a possession) should be tied 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. should disseyse B. and B. should enter again and put out A. by force and strong hand, yet should A. be restored to his possession at the hands of the justice of Peace, although his first entire were very unlawful. And that thereupon notwithstanding the restitution made, B. may have an Assize, or else may enter upon him again, so as he do it in peaceable manner. And I do little doubt, but that a Lessée for years, or a Copieholder being put out with force, and the Lessor or Lord disseised thereby, the Lessée: or Copieholder ought to have restitution by the help of a justice of Peace upon this Statute. Now whereas the words be After complaint etc. that doth not always enforce a necessity of Complaint, by the party grieved. For if a forcible entry be committed, the justice may inquire of it, and also make restitution, upon any information or other knowledge thereof, though no complaint be made unto him by the party grieved, as it is holden 7. E. 4. 18. Complaint. It seemeth further that it should not be altogether requisite to the punishing of the offenders by imprisonment and fine, that the party grieved should be actually put out of possession. For all the said Statutes do specially prohibit the forcible cntrie itself yet to have restitution upon this Statute, the putting out must needs be found also. And therefore if the case be that after the death of A. a stranger entereth into his lands and holdeth the same by force against his heir, before be had gotten any possession in deed, the heir of A. in this case (saith Marr.) shall never have restitution because he never had any other possession than a possession in law, but no actual possession. And by his opinion also, If a man claimed a rent or common in land, that is so holden with such force that he can not distrain for the one, nor use the other, this a force removable by this statute, but the party can have no restitution here made unto him. One person alone may commit this forcible entry, so also may he be punishable for detaining of the possession by force. Entering or holding with force. And it seemeth that this entry or detaining must be with some offens●ue weapons, as with bows, bills, sword, stones, harness or such like, yet Marr. is of opinion, that if the justice of Peace come and find the doors shut, and they within denying him to enter, this is a detaining with force, and he may thereupon commit them. If it be found that divers persons have made a forcible entry to the use and behouse of a stranger that is absent, although he doth after agree unto it, but entereth not himself, this is no force in him, for saith 2. H. 7. 16. A forcible entry can not be without an entering actually. inquiry The inquiry is to be of jurors that must have lands or tenements of the yearly value of xl. s by year at the least above all reprises. And Marr. is of opinion, that if it be not so, the party grieved may stay the restitution for that cause. But how he can hinder the restitution that the justice of Peace is to make upon such a verdict, otherwise than by causing the record thereof to be removed into the kings Bench I do not well perceive. After the forcible entry, or the detaining with force, or both be found by the inquest, the justice of Peace ought either by himself to put the party grieved in possession again, or else he may direct his precept to the Sheriff to restore him. Restitution But if that justice of the Peace which made the inquiry, do happen to die before he make restitution, whether the other justices of the Peace may at their Quarter Seassions, having the record of that inquiry delivered unto them, award a writ of Restitution to the Sheriff or no, if may be some doubt, (albeit Marr. be of that opinion,) because it seemeth that they have no authority to deal with that Record. But this is certain, that of that presentment were received into the King's Bench, the party grieved, then might well enough have restitution awarded him out of that Court. 7. E. 4. 18. & 4. H. 7. 18. And in some cases there may be double or cross restitution made saith Marr. As if it be found that I myself was seized until A disseysed me with force, whom also B. disséised with like force: in this case if A. have restitution against B. the may I also pray myrestitution against A. But if I first have restitution, than (saith he) A. hath lost the advantage of his. And if it were found by one inquiry that I myself was saised until A. disseised me with force, and by any other jury found that the said A. was saised until by me disseised with force, than every of us (saith he) may pray restitution, against the other. And he shall be in the worst case that hath the first restitution, for the other also (saith he) shall have his restitution after. If two jointenants were put out by force and one of them only would Complain & seek for restitution, though this special matter were found by the Inquest, yet should he that sued for it have restitution: And this would not work any severance of the Jointure between them, Marr. Restitution is not to be made but only to the party which was put out. And therefore if the father were put out by force, and dieth after inquiry and before restitution, his heir shall never have restitution upon this statute, no more than the executors of Lessee for years that was put out, shall have any restitution, Marr. If a writ of restitution be awarded to the Sheriff, and he returneth that he is so resisted that he can not bring the party into his possession, he is to be amerced for that return, saith Marr. for he may take the power of the county to execute the precept. The case may be such, that the force is not punishable by any justice of Peace, upon this statute, nor any restitution can be made at all. As if the house or lands be in one County, and the men (forcibly arrayed for defence thereof) be in a house or lands, that is in the County adjoining, no justice of Peace can meddle with this matter upon this Statute. No more can they if the place itself extend into two Counties, and the parties remove their force (before the coming of the justice) out of that County wherein he is a justice, Mar. For justices of the Peace have no power out of their own Counties, but in certain especial cases given unto them by Statutes. Lastly, upon the proviso in the latter end of this Statute concerning their holding with force, which have had possession by the space of three years or more, there ariseth some matter of doubt in mine opinion, how far the benefit of that clause ought in good equity to be extended. three years possession. For I find a difference taken 14. H. 7.28. between an action brought upon the statute, & an indictment founded thereupon. In the action (saith M. Fineux) it will be a good bar for the defendant to plead, that he hath kept possession by three years space, yea though he hath done so all that time by force. But upon an indictment, possession by twenty years space together by force, shall be no plea at all against the king, nor hinder the party of his restitution out of the king's bench. Which opinion hath been and still is received for law, as I have learned. Yet if we consider well the reason of the inserting of that proviso unto the statute, perhaps the diversity will not fall out in all respects to be so reasonable, as it seemeth at the first show to be plausible. For when this statute had in general terms brought within the penalty of 15. R. 2 ca 2. all such as should detain any lands or teneme 'tis with force, after that they had entered into the same in peaceable manner: yet was it thought convenient (as in truth it was) to except out of that punishment met all those, who having made their entries in peaceable manner, especially upon good title, had continued that possession by three years space, before any forcible deteyner of the same, And therefore such persons be not only to take advantage of that clause in actions brought against them upon the statute (in mine opinion,) but against the King, to eschew the punishment of a forcible defence committed, and against the party grieved, to keep him from any restitution at the hands of the justice of the Peace also. And therefore M. Marr. speaketh generally, that if the three years possession be found by the inquiry, than 〈◊〉 forcible deteyners shall have the advantage of it, against the King also, which seemeth to be a very reasonable opinion, especially (as I have said) in case where the deteynors did enter peaceably and by good Title. For so far extendeth the speech of all the justice opinions, 22. H. 6. 18 And otherwise I see not how that may well stand which M Fineux himself afterward 21. H. 7. 39 affirmeth, saying, that A man's house is his Castle, which he may defend with force against any private army that shall invade him. Nevertheless in the principll case 14. H. 7. 28. being as it is there put of a wrongful entry, and that with force, and of the continuance of that possession with force also by divers years, I see no great reason why such a disorder person should by any continuing of his wrong, take benefit by this proviso either against the King upon an Indictment, or against the party grieved to stay his restitution or to conclude him in an action brought upon this Statute. But now, whether such as be Indicted map be admitted to their Travers before the same justice of the Peace or no, & where or before whom this Travers is to be made or received, I will not take upon me here to discuss. Tender of Travers. This seemeth upon both the Statutes to be plain, that such persons as the justice of the Peace doth find and see, continuing the force at his coming, may be immediately committed by him to the next jail without any gainsaying, there to remain convict of that offence by the only record of the same justice, till they shall have made fine and ransom to the King for the same. But upon the inquiry, it seemeth that he hath no further power given unto him by this last statute, than to make restitution only. And therefore the surest may in this case is, to deliver over the Indictment either to the Custos Rotulorum, or to the Istices of jail delivery, as in other cases they were in old time by the statute of 4. E. 3. ca 2 appointed to do, or rather into the king's Bench, referring the further proceeding thereupon unto their power an authority. And again, as touching the Assessment of the fines upon the offenders by him committed to the jail, some do think, that the self same justice that committed them, should have sufficient authority also to put them to their fine, and upon pleuges found for the payment of it, to deliver them out of prison again. Assesing the fine. For (say they) he is the only judge of that offence, and only hath the custody of that Record, and knoweth best how to rate the fine according to the greatness of the trespass. And as he is bound by his oath and duty, (in their opinion) to make out estreites of all Jssues and amercements growing due to the Queen by such an inquiry, so ought he also to estreit this fine & send it up into the Exchequer, that from that Court the Sheriff may be commanded to levy it to the queens behoof. Yet to avoid all doubt, it seemeth here also the better course, to refer that matter to the Quarter Sessions, or rather to the coming of the justices of jail delivery into the Country. These things thus said, I will (for the more complete furniture of the justice of the Peace in this service against forcible Entries) arm him with these feme precedents following. The Mit●imus to the jail testifying the holding with force. RObert B'ing, one of the justices of the Peace of our Sovereign Lady the Queen's Majesty within her County of Kent, to the keeper of her majesties jail at Maidstone in the said County, and to his deputy & deputies there, and to every of them, greeting. Upon complaint made unto me by C. D. of Ightham in the said county Yeoman, that one A. B. etc. and other Malefactors had forcibly, and with strong hand entered into his house, etc. in Ight. aforesaid, & him expulsed, and the same yet hold with force, I went this present day to the said house, and there found the said A. B. etc. forcibly holding the said house, etc. with bows and arrows, coats of plate, and long piked staves, to the great disturbance of her majesties Peace, and against the form of the Statutes in that behalf ordained: And therefore I send you by the bringers hereof, the bodies of the said A. B. etc. convicted of the said forcible holding by my Record, commanding you and every of you, in her majesties name, that ye receive them, and safely keep them in your said jail, until that they shall have made their fine & ransom to the Queen, & be delivered thence by order of the Law: hereof fail ye not upon the petill that will fall thereon. given at Wrotham under my Seal, this 2. day of September in the twenty-three. year of our said sovereign Lady Elizabeth, etc. And for his inquiry, upon such a force, as followeth: The Precept to the Sheriff. RObertus Bing, unus Iusticiariorum Domine Reginae, ad pacem in comitatu Kanciae conseruandam assignatorum, vicecomitt eiusde comitatus salutem: Ex part dictae Dominae Reginea tibi mando & praecipio, quod venire facias coram me apud Ightham in comitatu praedicto, 20. die Septem. proximo futuro. 24. probos sufficientes & legales homines de Viceneto de Ighthan preadicta, quorum quilibet habeat xl. sol. terrarum & tenementorum vel redditunm per annum ad minus ultrareprisas, adinquiredum super sacramentum sunm, si A. B. & alij malefactores et pacis dict. Dominae Reginae perturbatores, in unum mesuagium & decem acras terrae & alia tememeta de C. D. Yeoman, in Ightham praedicta, manu forti, super possessionem praedict. C. D. ingressisunt, aut eadem cum fortitudine adhuc tenent & occupant. Et videas, quod super quolibet Iuratorum in hac part impanellandorū xx sol. de exitibus ad primum diem returns, & hoc nullatenus omittas sub paena xx. t●. quam noveris te incursurum, si in executione praemissorum tepidus ant remissus fu eris: Et habeas ibi tune hoc praeceptum. Teste me praefato R. B. 10. die scptem. Anno regni dictae Dom. nostrae Eliz. dei gatia Angl. Fran. & Hib. Reginae, fidei defensoris, etc. 23 And upon default of appearance of these jurors, an Alias may be awarded, & after the Pluries infinite, till they come, but so that at the day of the second Writ rl. &. must be returned, at the third Writ C. &. and at every day after, the double. The inquiry (or Verdu) of the jurors. INquisitio pro Do. Reginae, capta apud Ighthan, in commit. Kanc. 20. die Sept. An. reg. Do. nostrae Eliz etc. 22. super sacramentum. A. D. E. F. G. I. L. M. etc. coram R. B. uno justiciariorum dict. Do Reginae ad pacem in dicto comitatu conseruandan assignatorun. Qui disunt, quod ubi C. D de Ight. praedict. Yeoman diu legitimé & pacific setsitus fuit in dominico suo ut de feodo de uno mesuagio, etc. cum pertineties in Ight. praedict. & possess. svam sic continuavit, quousque A. B. de. &c.&alijs etc. i. die Sept. vlt. elapso, ut & armis, viz. cum baculis gladija, arcubus sagittis, loricis, galeis, gunnis, in mesuagium praedictum etc. intraverunt, acipsum C. D. inde expulerunt, & idem mesuagium & c. à praedicto die etc. usque ad die etc. cum huiusmodi fortitudine & potentia tenuerunt & occupaverunt, in magnam pacis dict. Dom. Reginae perturbationem, ac contra formam statuti tn tali casu editi & provisi, ubinullus eorum, nec aliguis alius cuins statum ipsi aut aliguis corum habuerunt ant habuit, aliquid in eodern mesnagio etc. aut aliqua inde parcella, habuerunt aut habuit infra tres annos proximos ante ingressum suum praedict. neque alio tempore praecedente, ad notuiam juratorum praedictornm. The Warrant for restitution, to the Sheriff, if the justice himself will not make restitution. ROb. Bing, unus justiciariorum etc. assignatorum, Vicecomiti einsdem comitat us Salatem: Cùem per quandam Inquisitionem patriae coram me captam apud Ightham in co. mitatu praedicto 20. die Sept. &c.super sacrametum ac per formam Statuti in huiusmodi casu provitsi compertum fuerit, quod A. B. & c. & alij etc. die etc. anno etc. in quoddam mesuagium etc. Christopheri D. etc. in Ightham pradicta, vi et armis ingressifuerint, ac ipsum C. D. inde expulerunt, et pradict. mesuagium, etc. à praedicto die, etc. usque ad diem etc. manu forti, & cum potentia tenuerumnt & occupaverunt, prout per Inquisitionem praedictamplenius liquer de Recordo: Ideo ex part dict. Dom. Reginae tibi mando & praecipio, quod ad hoc debite requisitus, unà cum posse comitatus tui (sinecesse fuerit) accedas ad mesuagium & caetera premissa, aceadem cum pertinentijs reseisiri facias, & prafatum C. D. ad, & in, plenam possessionem suam inde, prout ipse ante ingressum praedict. fuerat, restitui, & mitti facias, iuxtra formam dicti statuti de ingressibus manu forti factis editi & provisi: & hoc nullatenus omittas, periculo incumbente. Teste me prafato, etc., I will now come to the performance of the promise which I made, concerning the statute of Northampton: for that also is now of late days chief put in ure for the punishment of Forcible Cntries. The execution of a Writ upon the Statute of Northam. That Law (in effect, & for this purpose) is thus: No man whatsoever (except the King's servants and Ministers, in his presence, or in executing his precepts, or their Offices, and such as shall assistthem: and except it be upon cry, or proclamation made for arms, to keep the Peace, & that in places where such acts do hap) be so hardy to come before the king's justices, or other his Ministers doing their offices, with force and arms: Nor bring any force in affray of the Country: nor go, nor ride armed, by night, or by day in fairs or Markets, or in presence of the justices or other ministers, nor in my place elsewhere, upon pain to forfeit his Armour to the King, and his body to prison at the King's pleasure. 2 E. 3. ca 3. Upon this Statute, he that is put out, or holden out of his land with force, useth to have at this day a Writ directed out of the Chancery, either to the Sheriff only (as M. Fitz in his Nat. Br. Folly 249. rehearseth it, for I find if not in the Register of Writs) or else Custodibus pacis, ac Vicecomiti, & corum cuiliber (as the common manner is) commanding, that Proclamation be made upon this Statute, and that if any be afterward found offending against the same, that then they shall be committed to Prison (there to remain until that some other commandment be given concerning them) and that their armour and weapon shall be prised, and the same answered to the use of the Ruéene. But, forasumuch as that justice of Peace, (to whom this Writ shall be delivered) is to make execution of the same, as a Minister only, and is to Certify his dwing therein, I think good to lend him these few helps towards it. At his coming to the place, where the force is supposed by this Writ. he may cause the Oyes for silece to be made, with this, or such an other Proclamation. The Queen's majesties justice of her Peace straightly chargeth, and in her majesties name commandeth all and every person to keep silence, whilst her majesties Writ upon the Statute made at Northampton in the 2. years of King E. 3. her noble Progenitor, delivered to the said justice, be read, and Proclamation be thereupon made accordingly. Then may he read the Writ, as declare the effect thereof in English. After that let the Oyes be made again, and thereupon may this Proclamation follow. Her majesties said justice, doth in her highness name, and by virtue of her said writ, straightly charge and command, that no manner of person, of what estate, degree, or condition soeven, now being within the house of B. etc. named in the said Writ, shall go armed, nor keep force of armour or weapon, nor do any thing there, or elsewhere, in disturbance of her majesties Peace, or in offence of the said Statute, upon the pains of losing his said armour & weapon, & of imprisoning of his body at her majesties pleasure. God save the Qucene. This done, the justice may enter, and search whither there be any force of armour or weapon worn or borne against this Proclamation: or otherwise he may inquire thereof by a jury (for so the Writ itself doth warrant him to do) and if any such be sound, he ought to imprison the offenders, and to seize and praise the armour and weapon so found with them, But if (upon the Proclamation made) they do departed in peaceable manner, then hath he no warrant by the Writ to commit them to prison. And what weapons be offensive in the case of this Statute, he shall the better discern, if he take with him these few lines drawn out of M. Bractons' Book, Fol. 162. where he speaketh of the like violent disseisin, shus: Est evam vis armata, non solum si quis venerit cum telis, verumetiam omnes illos dicimus armatos, qui habent cum quo nocere possunt. Telorum autem appellatione, amnia in quibus singuli homines nocere possunt, accipiuntur: Sed si quis venerit sine armis, & in ipsa concertatione ligna sumpserit, fustes, aut lapides, talis dicetur vis armat a. Si quis autem venerit cum armis, armis tamen ad deijciendum non usus fuerit, et deiecerit, vis armata dicitur esse facta. Sufficit enim terror armorum, ut videatur armis detecisse. But now let me show him a Form of Certificate (or return) of this Writ into the Chancery and then make an end. Upon the writ itself these words may be Endorsed. Executio istius Brcuis patet, in quadam Scedula eidem Brevi consuta. And the Schedule may be thus: EGo Wilhelmus Lambarde unus Iusticiariorum pacis Dominae Reginae in comitatu Kanciae, certifico in Cancellariam dictae Dominae Reginae, quod virtute istius Brevis mihi primo deliberati, publicè proclamari ex part dictae Dominae Reginae feci, apud B. cuius in dicto Breut sit mentio (tali die etc.) prout in dicto Brevi praecipitar: Et quod quidam. A. C. & D. E. de F. in comitatu praedicto labourers, praedictam proclamatio●e paruipendentes, post proclamationem sic factam armatiiverunt, ac armatam potentiam duxerunt, scilicet duas galeas, unum arcum, & decem sagittas, duos gladious, & totidem pugiones, in perturbationem pacis dictae Do. Reginae, ac terrorem popule sus, necnon in contemptum Statuti in dicto Brevi specificats, manifestum: Ac proinde, dict. A. C. & D. E. una cum armataris fuis arrestavi ac seisivi, & corum corpora adproximam prisonam dictae Dom. Reginae in comitatu praedict. duci feci, ibidem moratura donec aliud à dicta Dom. Regi●● Proipsorum deliberatione habovero in mandatis. Armatur as etiam corum praedict. appretiari feci, per A. B. C. D. & E. F. de B. praedict. Yeomen, ad hoc iuratos: qui dicunt, quod praedictae duae galeae valent x. s Et quod dict. arcus &. 10. sagittae valent, vj. s Et quod gladij praedict. valent xx. s. Et quod dictae pugiones vgalent. v. s. & sic quod armaturae praedict. valent in tot xlj. s. de quibus paratus sum respondere secundum tenorem dicti Brevis. In cuitus rei testimonium, huic praesentas certificationimeae sigillum meum apposm. Dat. apud B. praedict. die & Anno supradictis. By this you have seen, what one justice of the Peace ought to do in execution of this Statute as a Minister: and by the same you may also see, what he may do therein of himself, Ex efficio, as a judge, and without any writ, brought unto him, if one justice may deal therein as a judge. For not only by the plain words of the Statute of Northampton, the Wardens of the Peace, have power (within their Wards) and are commanded to execute this Act upon a prins. But also by express speech in the Commission itself, eucrye warden of the Peace hath the Statute of Northampton committed to his charge. So that both in the matter and manner, the doing is all one, saving that if he do it as a judge he needeth notto make any proclamation, the Statute being a prohibition in itself, nor yet to send any Certificate into the Chancery but only to make his own Record of that which he shall do in this behalf, and thereout to send some estreit into the Exchequer, that the Queen may be answered of the Armour or of the value there of. And here prehappes the redemption of the imprisonment may be at the same justices discretion, as in the former Statutes of 15. R. 2: & 8. H. 6. it seemeth to be. Of other breaches of the Peace, with a multitude, as by Riot, rout, or other unlawful Assembly etc. CHAP. XIX. Our Parliaments seeing well that the assembly of many for breach of the Peace, offereth more danger and hurt, both generally to the Commune wealth wherein it happeneth, and particularly to him against whom it is bend, than the force of any one or two turbulent persons can bring, have no less carefully endeavoured to suppress the one, than wisely foreseen to prevent and punish the other. And therefore, not only the Commission giveth power to inquire of Conventicles against the Peace, but sundry Statutes also have devised many means and pains to meet with, and to punish the same, whereas before they wet punishable only, as other trespasses, though sometimes by a greater, and sometimes by a smaller fine, as the case itself required. Conventicles. Unlawful Connenticles be not all of one fort: for sometimes those are called Conventicles, wherein many do impart with others their meaning to kill a man, or to take one an others part in all things, or such like: Champerties also, Maintenances, Conspiracies, Confederacies, and giving of Liveries to other than to Menial Servants and officers, be contained under the word Conventicles saith Mar. And it appeareth, (27. lib. Assi. Pl. 44.) to be one of the Articles enquirable in the King's bench whether any persons take others to their Auowment and Protection, and receive of them rents (or other gifts) yearly in the name of Chyvage (or rther Cheifage) because they seem to take upon them to be their Cheifes, heads, or leaders. Chyvage. But, for as much as all these covenants may be without any apparent show of Assembly against the Peace (though otherwise they be finable offences under the name & calling of Conventicles as Mar thinketh) I will leave them, and resort to those orther that bring manifest terror to the Subject. Of these some consist of a number of people gathered together disorderly for the cause of some one or of a few persons, and do not breed any general or present danger to the Estate or Covernement, and yet be against law, and be called Riots, Routs, and Unlawful 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 provided: and before that, the penaltic of the Statute of Nort. 2. E. 3. ca 3 ordained to be laid upon them by 2. R. 2. ca 6. But others there be that savour of a more general disobedience, and be (either in regard of the number or quarrel) a very Seed of Rebellion if not the Weed itself, and are therefore also sometimes called Rumours, 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 which (so farrefoorth as the jusices of peace have interest in them) I will entreat, but yet severally, and so, as either one, or more of the justices of Peace have to do with them, and that out of the Sessions. They of the first kind be, as I have said, commonly called riots, Unlawful Assemblies and Routs. But concerning the proper difference that is between each of these three, all men do not thoroughly agree. And therefore (rejecting all diversities of opinions) I will follow the which I take to be most colourable & most commonly received at this day: wherein nevertheless I submit myself unto the experience of the star-chamber as to the best direction The the justices of Peace can have to follow in this case. Riot seemeth to come of the French word riot. Rioter, which signifieth to brawl, or scold, for commonly Riottes in deed do follow of braulling in word. riot. And it is taken to be, Where there is an unlawful assembly of me (gathered together) to commit an unlawful act, & they do excecute it in deed: as to beat a man, or to enter upon a possession forcibly, or such like: the fact is properly called a Riot. An Unlawful Aslebly is, the company of three Unlawful persons (or more) gathered together to do Assembly. such an unlawful act, although they do it not in deed. Vnlzwful Assembly. Our Rout is the very same which the Germans do yet call Rot, meaning a band or great company of me gathered together & going about to execute, or executing in deed, any Kiot or unlawful act. rout. And (saith Mar) it is said properly of the multitude the assemble themselves in such disorderly sort, for their common quarrel. As if the inhabitants of a Towneship do assemble to pull down a hedge or pale, to have their Common, where they ought to have none, or to beat a man, that hath done them some public offence or displeasure. But the Statute of 18. E. 3. Sta. 1. Which giveth process of utlagarie against such as bring Routs into the presece of the justices or in Affray of the people: And the Statute of 2. R. 2. ca 6. that speaketh of riding in great Routs to make entry into lands & to beat others, and to take their wives etc. do seem to understand it more largely. And it is a Rout whether they put their purpose in execution or no, if so be that they do go, ride, or move forward after their meeting. Broo. Tit. riot. 4. & 5. So as it seemeth a Rout should be a special kind of Unlawful Assembly. And a Riot, the disordered fact committed generally by any unlawful Assembly. Howsoever that be, two things are common both to Riot, rout, and Unlawful Assembly: the one, that three persons (at the least) be gathered together, for so is it commonly taken at this day, as I have learned. Things Commune, and considerable, in riots etc. The other, that their being together do breed some disturbance of the Peace, either by signification of Speech, show of Armour, turbulent Gesture, or actual and crpresse Violence so that either the peaceable sort of men be unquieted and feared by the Fact, or the lighter sort and busy bodies emboldened by the Example. And, in these matters, not only the Fact itself, but also the Manner of doing the same, fallcth sometimes justly into consideration: in so much as, the lawfulness, or unlawfulness, of the thing itself that is done or intended, doth not always excuse or accuse the parties to a Riot, rout, or Unlawful Assembly, but so, that the Order and Circumstance of the doing, must also be brought into judgement with it. And therefore (sayeth Maisler Marrow) the manner of the doing of a lawful thing may make it unlawful: As, if many in one company (riding, or going, to the Sessions, Fair, Market, or Church itself) will ride, or go armed, to the terror of the people. And contrariwise, an Assembly to do a wrong (sateth he) may be so handled, that it shall prove none of cheese offences: as, if I gather mécte company together, to carry away a piece of Timber (which will not be moved without a good many) whereto I pretends right, though in law it be an other man's. And so also to do an unlawful thing, as if many do meet to play at bowies, tables, or Cards, & do use no missebehavior agaist the Peace, they are not punishable in this degree. And yet, if he the carrieth the piece of timber away, will use dreadful words, as to say, the he will carry it in spite of him that hath it, or the he will have it, though he die for it, or such like, his doing may their prove a Riot The manner and handling of a thing, may make it either blameworthy or blameless. . Furthermore, the intetion & purpose, of those the be assebled, is worthy the weighing. For, to use harness on Didsomer night in London, or on Day day in the country, for sporteonly, is no such offence, seeing no terror followeth of it, & the words in terrore populs seem to be material in an Inditemet of this kind. So, if the Shirite or his Bailie do levy people to serve the Queen's writs of Capias, or if a Constable do gather assistance of me with weapon to part an Assray, it maketh no Riot. 3. H. 7. 1 & 10. So if amam (hearing the another will fetch him out of his house & beat him) do assemble company with force, it will be no unlawful assembly 21. H. 7. 39 And so also if many be assébled, & none of them knoweth to what end, it can make no Rout nos Riot (as M. Mar. thought) till the intent be known. For if the master intent to make a Riot, & take his usual servants with him, not foretelling the what he intedeth, & the committeth an outrage with the, this is no Riot in the: for although he shall be punished, they shall be excused. But otherwise it is, if he make the privy to his purpose. Mar. & in the report of Daliso. And in the former case, it is not material whether his number of servants be above his degree, or no, so long as they be his Menials or household me. And if a number of women, or infants (under the age of discretion) do assemble themselves for their own cause, this is no unlawful asseblie punishable by these Statutes: But if a man of discretion cause them to assemble to commit an unlawful act, than it is otherwise sayeth Mar. And I remeber, the not many years since wome were punished in the star-chamber, and the worthily, for that (having put off their seemly shamefastness, & appareling themselves in the attire of me) the assebled in great number, & in riotous manner pulled down an enclosure. If many be at an Alehouse, a Christmas dinner, or Churcbale, & (without any intetion of an Affray) they suddenly fall together by the ears, & make it Lapitharun conutnium, yet this is no Riot, unless they betake themselves to parts, for so it will easily become a riotous assembly. And if 12. jurors (being committed to their keeper) do fall out & fight, five as against six, this maketh no Riot saith Mar because they were lawfully assembled, and were compelled to be in company together. Finally, if the Mayor and Commonalty of a town do assemble and make a Rout in their common quarrel, this offence shall be judged and punished in their Natural persons, & not in their body politic Mar. Thus far you see, what these offences be, and in what manner they may be committed: now therefore behold what power one justice of the Peace hath over them. One justice of the Peace, can neither make inquiry of a Rout or Riot when it is done, nor assess any Fine nor yet award any process for it, nor otherwise meddle with it (in the nature of a Rout or riot) but only as a Trespass against the peace, or upon the Statutes of Northampton or of Forcible Entries before treated of. The power of one justice of the Peace, in Riot etc. And therefore if he hear of any Rout or of any intention of a Riot, he alone, or with his servants may go to the place, & such as he findeth riotously assembled & armed, he may arrest to find Surety of their good abearing, and may commit them to ward, if they refuse to give it, and take their weapons from them: And if he come to the place, and do not find the yet come thither, he may leave his Servants there, to make such arrest when they shall come: So also, if he be sick, he may send his servants to the place to arrest them. And this is the judgement of all the Court, in the case of Sir Thomas green 14. H. 7. 8. grounded upon the words both of the Commission of the Peace, and of the Statute. 24. E. 3. ca 1 as I take it. But if one justice of the Peace alone will take upon him to Record a Riot that he seeth, the party shall not be concluded thereby, for he may traverse it: and if the jussice will commit one to ward pretending untruely that he did a Riot, where he did none, an Action of trespass lieth for the party against him. Fitz. Fo. 18. So that (upon the whole matter) one justice of the Peace alone may do somewhat to prevet a Rout or a Riot, before it be done, and for the stay of it whilst it is a doing, but nothing in effect to punish it as a Riot or rout, when it is committed and done: For (as judge Fineux saith) (in that case of Sir Thomas green) the Statute which I take to be that of ●4. of E. 3. ca 1. was giucn as a hasty remedy, & for to prevent a mischief, being imminent and before the eye, & therefore the law shall largely construe the authority of a justice of Peace in that behalf: So that he shall neither need to make any Precept in wrting, nor to expect the coming of his Companions, nor to be present in his own person, but may use all reasonable means for prevention and stay of the evil. And yet the ordinary power of punishing Routs & Riots resteth not in his hand, but rather belongeth to two justices of the Peace, as it shall hereafter appear. In the mean time, I will adjoin somewhat out of the Statutes of our own age, the which seeing further into the perils that ensue of these unlawful conventions, have also provided further, as well in policy to prevent them, as in severity to punish them. The statutes (1. Mar. Parl. 1. ca 12: & 1. El. ca 17.) do make three degrees of riotous & Seditious Assemblies, in certain special cases, the first, consisting of the common number of three petsons, and being under the number of twelve: the second of twelve persons (or more) and the third of forty persons & upward: All which are to be punished diversly, according to the number, intent, act, & obstinacy, of the parties assembled: wherein there is some imitation of an ancient law that King Ina made against thieves, whose degrees in offence the severed & punished by their number also, saying thus: þeofar we hataþ oððe seofan men: fram seofan hloþ oþ fif & þrittig: and syþþan here: that is, thieves we call them until the number of seven man: from seven, a Troop, until 35: and an Army, above that number. Rebellious and unlawful assemblies. But I will proceed. One justice of the Peace therefore, may (by virtue of these Statutes) make proclamation in the Queen's name, that the persons (assebled in offence of these laws) shall sever themselves, and depart to their dwellings peaceably: and withal may (at his difcreation) assemble her majesties subjects to take the: and may also take them indeed if they disobey, & shall be unpunished for the hurting, maiming, or killing of any of them, if they make resistance. Proclamation. He also is to take the declaration of any person, that (being moved to any such assembly) will within 24. hours after reveal the same unto him. Here I must stay and for a time, go no further with these asseblies, because the power of one justice of the Peace faileth me, & ertendeth no further in them: the rest shall be disclosed, when order shall lead us to entreat of the aurtoritie of two justices. What other things one justice of the Peace alone, may do out of the Sessions, by virtue of Statutes mentioned in the Commission. CAP. XX. BEFDKE that I shall descend to show such further parts of power as be given to one justice of the Peace by latter Statutes, it shall not be amiss to take in my way, that remnant of his authority which lieth in the first Assignavimus of the Commission, and hath not been yet fully applied to the practice. The whole consisteth of such members as I have already showed, 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 Canterbury) 12. R. 2. the Statutes 1. H. 4. ca 7: & 2. H. 4. ca 21: of Liveries: and the Statute 3. H. 5. ca 6. & 7. of counterfeiting and other falsifying of money. Of this last Statute, as also of that at Northampton. I have heretofore said what I thought. Concerning Winchester & Westminster, I say shortly, that by the form of the Commission as it is, one justice of the Peace may put the articles of them in execution: First, by commanding fresh suit, hue and cry, and search to be made by the Shirffes and Bailiffs, & others, after thefts and robberies: watches to be kept for arresting of suspected persons and nightwalkers: and highways to be enlarged: Then by seeing, that two Constables be in each Hundred and Franchise: by forbidding Fairs and Markets to be hold in Church yards: by compelling such as be between the age of fifteen years and threescore, to be sworn to the Peace (for that also is in the Articles upon the Statute of Winton) & lastly, by charging the Constables to arrest such as shall be suspected to be Drawlatches, Wastours, or Robertsmen, that is to say, either mitching or mighty thieves, for the meaning must remain, howsoever the word be gone out of use. The Statute of Canterbury (made chief for Artisicers and Labourers, and partly for Victuallers) is repealed for the first, and runneth for the last in a generality. And as for that law, & those of H. the 4. concerning Liveries, I see not what one justice of the Peace may well do towards the execution of them, further than by commanding the to be observed. For, the forfeiture groweth, either by Attainder upon inquiry, or by Record of the justices in their presence, as the Statutes themselves do appoint. And these both do require two justices, as the very words thereof, and of the second Assignammus in their Commission, being in the plural number, do plainly purport. For, I do not think that any other manner of execution of these laws by one justice of the Peace, aught to be gathered by any general words of the first Assignavimus. I know, that M. Fitz. in his Nat. Br. Fol. 82. saith, that albeit a justice of the Peace hath none express authority within his Commission to take a recognisance of the Peace, yet of Congruence it followeth, that he may take it, because he hath authority in plain words, to cause the Peace to be kept, and to compel men to find Surety for the same. And it is a Rule of Law, Concesso uno aliquo, etiam id concedi videtur, sine quo prius concessum habers nequit: But how far these things may be drawn, I will not determine, remembering, that also is an other Kule, In generali concessione non ventunt ca, quoe quis non esset verisimiliter in specie concessurus. But as I have said heretofore, A new reforming of the present form of the Commission would easily remove from us all these doubts. This I do not like at all, that one justice of the Peace, should take upon him to bind an offendor against any Penal Law, (being within the power of justices of the Peace, but yet neither comprehended in their Commission, nor committed to the charge of any one of them) to appear at the Sessions, to aunsmeare to his fault. For, although I have seen sundry old Precedents of Attachments to be made from one justice of the Peace against Labourers, to be before the justices at their Sessions, to answer to their contempts: yet I am not persuaded that the like may be done against the offenders of other Statutes, unless it be specially therein so appointed: no more than it might have been done in that case of Labourers itself, had not the Statute of Labourers (25. E. 3. ca 6.) expressly commanded it. And I doubt not, but they of the last Parliament were also of this mind with me: For, if they had thought it generally lawful so to do, they would not have so specially provided for it, as you shall anon see in the notes of the Statutes, (23. Eliza.) against Slanderous news, and against the taking of Pheasants and Partridges. And surely, much harm followeth of it, for it falleth out most commonly in experience, that those justices which be most busy to take such bonds, be no less ready to release them: and so (playing fast and lose) they keep (as it were) privy Sessions within their own houses, in which, both the Queen looseth her Fine and the common wealth an example: and if the offendor lose also, then that (belike) falleth to the share of him that worketh the deliverance. And therefore, it were better (as I ween) that such offenders were first indited, and then that Process were orderly awarded against them, until that either they yielded themselves, or were taken, or outlawed. There is an other thing also, whereof I thought meet to admonish the justices of Peace, in this place. Many of them do use to give out their Precepts to attach persons suspected of Felony, to have them brought before them, which thing is neither newly devised, nor done without colour: for they have such a Precedent in the old Book of justices of the Peace Fol. 41. and there is no doubt, but that if a Felony be done, every man may arrest whomsoever he suspecteth of it. But for all that, the whole Court (14. H 8. 18.) condemneth such Precepts, because, if the Baih●e which serveth the Warrant, have suspicion in the party, he may of himself without the Warrant arrest him: and if he have not, the Warrant of the justice of Peace is no warrant to arrest him, unless he be indited before. What other things one justice of the Peace may do, out of the Sessions, by the power of other Statutes, not mentioned in the Commission. CHAP. XXI Sing the whole power of one justice of the Peace (as well in the very business of the Peace itself, as in the execution of some Statutes mentioned in the Commission) hath now at length been rehearsed. Any one justice of the Peace. It is convenient to sum up such other parts of power also as other Statutes have put into his hands, which done, we will no longer treat of one justice alone, but will associate some other unto him. Every justice of the Peace is a Conseruatór of Rivers within his County: and (when he may attend it) ought to survey the Wears in Rivers, that they be of reasonable wideness, and shall survey the offences of taking Salmons in any Waters (out of the County of Lancaster) between the Natituitie of the Virgin Marie, and S. Martin's day, and (there) between the feasts of S. Michael, & the Purification of the said Virgin: and taking young Salmons at Mill Pools, or other places, from the midst of April till midsummer: and of casting Nets into any Waters, (by which the fry of any fish may be taken) and punish the same by burning of their Nets and engines. Conseruator of Rivers. Westminst. 2. ca 47: 13 R. 2. ca 19 & 17. R. 2. ca 9 One justice of the Peace may take upon him to hear and order the controversies, between Masters and servants, touching their departure, & may allow of the reason, & sufficience of the cause, for which a Master may put away his retained servant, or the servant may depart before the end of his term: and may (in Day time or Daruest) upon request, and for the saving of Corn, grain, or hay, cause such Artificers, and persons (as be meet to labour) by his discretion to serve by the day, for the getting, cutting, inning, or carrying thereof, according to the skill and quality of the person, & may (upon his refusal) imprison him in the Stocks by the space of two days and one night. Appretices. servants, and labours. And his testimonial under his hand and seal to such as may pass in Day and harvest time, from one Shire to another, is sufficient. And he also upon complaint made, may commit that party to ward, that in his judgement shall be thought meet, and yet shall refuse to be bound as an Apprentice, according to the intent of the Statute, there to remain until he be contented so to be bound. And also may by his discretion upon the complaint of the Apprentice, take order between his Master and him, and for want of conformity in the Master, may bind him to appear at the next Sessions before the justices 5. Eliz. ca 4. If any such person, as is declared to be a Rogue vagabond, or sturdy Beggar, by the Statute (14. Eliz. ca 5.) being above the age of fourteen years, shall be taken begging, or wandering, or missusing himself, contrary to that Act, and be brought before a justice of the Peace, he is presently to commit him to the common jail, or to such other place, as shall be by the justices of the Peace, (or three of them) at their general Sessions appointed therefore: to remain there (without bail, or mainprize) till the next Session of Peace, or general jail delivery, which shall first happen. Rogues and vagabonds. And the Register book of the Poor within each division of the justices of Peace, is to remain with one of the justices of that division. poor people And either of those two justices before whom the Collectors for the poor are appointed to make their account, may commit him (that shall refuse or neglect to make his account, by the space of 14. days after request to him thereof made) to the next jail, there to remain without bail or mainprize, till he hath made it, and paid the surplusage of his receipt 14. Eliza. ca 5. Learn if the Register Book is to have continuance still. Upon information to any justice of Peace of any unlawful hunting by night, or with painted faces, or other disguising (in Forest, park, or Warrein) of any person to be suspected thereof, that justice may make a Warrant to the Sheriff, Constable, Bailiff, or other Officer, to take the party, and to have him before him, or any other justice of the Peace in that County, who may examine him of that hunting, and of the doers in that behalf, and if he do wilfully conceal that hunting, or any person with him defective therein, than the same concealment shall be Felony in such concealour, but if he confess the truth of all that he shall be examined in that behalf, than his offence of Hunting, shall be but Trcspasse and Finable at the next general Sessions of Peace there. 1. H. 7. Hunting. cap. 7. Every justice of the Peace may (as well within Liberties, as without) enter into any common house or place, where any playing at the Bowls, Coites, Cloth, Cayles, halfe-bowles, Lennis, Dice, Cards, Lables, or at any other game prohibited by any former Statute (of which sort be Football, and casting of the stone by 12. R. 2. ca 10.) or playing at any unlawful game (already innented, or hereafter to be invented) shall be suspected to be used against this Statute: and may arrest as well the keepers of such places, as the players there, and imprison them until thosc keepers find Sureties to the Duéeees use (to be bound by a recognisance, or otherwise) no longer to occupy any such play or place, and that the persons found there playing, be in like fort bound by themselves, or with Sureties (at the discretion of the taker) no more to play, or haunt, at, or to, any of the said places, or at any of the said games. Unlawful games. And every justice of the Peace, finding or knowing any person (not exrepted by this Statute) to use any unlawful game, contrary to this Act, may commit him to ward, there to remain without bail or mainprize, until he become bound by Obligation to the queens use (in a sum to be thought reasonable to that justice) that he shall not from thenceforth use such unlawful games. 33. H. 8 cap. 9 Any one justice of Peace (by the large words of the Statute) may inquire, hear, and determine, by his discretion, as well by examination as otherwise, the offences committed in Tilemaking, and assess the Fine therein limited. tile. And may call before him (at any time or place) such as have best knowledge in Tilemaking, and appoint them Searchers of the said defaults, 17. Edward. 4. cap. 4. But learn whether it be so to be taken or no. If any Soldier, serving the Duéene in her Wars, do sell, give away, wilfully purloin, erchaunge, altar, or put away, any Horse, Gelding, Mare, or Harness, wherewith be shall be set forth, or which being taken from any other soldier, shall be appointed unto him, and do escape the punishment, which the Lieutenant, high Admiral, the King's Deputy the Viccadmirall, Wardein, & Captain, & their Deputies, in their absence may lay upon him, by this Staute, then upon complaint and due proof of the offence to be made by the owner, his executors or Administrators, to any justice of Peace, where such offender shall be found, he shall be by him committed to Warde, there to remain (without bail or mainprize) till he shall have satisfied the owner, his executors or Administrators, of such Horse, Gelding, Mare, or Harness so sold, given away, etc. unless he bring with him before the same justice, sufficient testitmonie from the said Lieutenant, or any of the persons above named (in writing under their Seal) testifying, that the said Horse or Harness, was lost in the queens service against the will of that Soldier, or was taken by any of them from him for any reasonable respect, and appointed to some other to serve withal 2. and 3. Edwardi 6. cap. 2. Soldiers selling horse or harness. If any person (to whom any Agnus Dei, Cross, Picture, Bead, or such superstitious thing from the Sea of Rome, or the authority thereof, shall be offered or delivered) do disclose the name and dwelling (or place of resort) of such offerer or deliveredr, to any justice of Peace of that Shire, where he, to whom such offer or delivery is, shall be restant; then that justice must (within fourteen days next after) declare the same to some one of the queens privy Counsel. Agnees Der. 13. Elizab. cap. 3. Every justice of Pear may (within one month after the speaking or reporting) commit to Ward, any person, being vehemently suspected of saying, or reporting of any slanderous news or thles, against the queens Majesty, (unless he do put in Sureties to appear at the next Quarter Sessions, or jail delivery) there to remain, till he shall find Sureties for surhe his appearance. Slanderous news. And may also (within one month after such speaking, or reporting) rereyve the accusation thereof, and put the same, and the names of the Witnesses in writing, and certify it at the next Quarter Sessions, or jail delivery. 23. Elizab. ca 2. If any offendor (confrarie to the Statute provided against the Disturbers of any Preacher) shall be arrested and brought before a justice of the Peace, then be (upon due accusation there upon had by the said arrestor, or other person) shall forthwith commit the party so taken to safe custody, by his discretion. Disturbing of Preachers And within fire days next after the accusation, he and one other justice of Peace shall, etc. 1. Mar. Parlia. 1. ca 3. But inquire, if all this Statute be not repealed by 1. Elizab. cap. 2. in general worbes at the latter enbe thereof Every justice of the Peace may (within one month after the arrival) seize all the gwdes of any outlandish persons (calling themselves Egyptians) that shall come into this Kealme: and may also keep the one moiety thereof to his own bse, making account to the Queen in the Escheaquer for the other moifie. Egyptians. And every person that can prove by two credible witnesses before him that so seizeth, that any of those goods were craftily, or feloniously taken from him, shall be incontinently restored thereto before the party that so seized them, upon pain of the double value thereof to be forseifed to such proover. 22. H. 8. cap. 10. But note, that after the month, the offence is made Felony, and then it seemeth, the Queen is to have the goods wholly. 1. & 2. Phil. &. Mar. ca 4. If any one justice of the Peace do join with the Clerk of the Peace in taking the Inroilment of an Indenture of bargain and sale of lands, fenements, or heredifaments, lying in that County where he is jultice, it is sufficient as it seemeth by the words of the Statute. Inrollmer 27. H. 8. cap. 16. Every justice of Peace may eramine & search (by his discrefion) such as do seel or set forth so be sold any Candles, and other works of Ware, at higher price than after the rate of four pence the pound, over the common price of plain Ware, between Merchant & Merchant: and may also punish them by forfeiture of the work fet forth to sale, and of the balewe of that which is sold, and by Fine to the King. Work of Wax 11. H. 6. ca 12. as it seemeth by the large words of the Statute. Any one justice of Peace, is warranted to fet on the Pillory, in the next Market Town to the place of offence, any person that hath broken the Assize of fuel, and is convicted thereof, and not able to pay the forfeiture, there to be at eleven of the clock upon the Market day, with a Billet or Faggot bound to some part of his body. Assizes of Fuel. 7. E. 6. ca 7. but consider, whether a justice of Peace, may convict him of the said forfeiture or no: for it seemeth by the words of the Statute, that he is to be rather a Minister, than a judge in that case. If any person (above firetéene years of age) do by the space of twelve Months, forbear to repair to some Church, chapel, or usual place of common Prayer, contrary to the tenor of the Statute (1. Eli. ca 2.) then any one justice of Peace of the County where such offendor shall dwell or be, may make Certificate thereof in writing into the King's Bench, to the end, that the offendor may there upon be bound in 200. lb at the left with sufficient sureties to the good behaviour for that this so long obstinacy, besides the other penalties 23. Repair to the Church. Eliz. cap. 1. Every justice of Peace may eramine offences against the Statute made for preservation of Pheasants, and Patriches, & against hawking in Corn (if the same offences be not before lawsully heard, or determined otherwise) and may take bond of the offendor with good sureties for his appearance of the nerf general Seisions of the Peace, to aumswere to the said offence, and to pay the penalty, or receive the punishmet due therefore: and may also after conviction and punisment of such offender, in taking or killing Pheasants or Patriches, take like bond of him & sureties, that for the space of two years, he shall not offend against the said Statute. Pheasants, & Patriches. 23. El. ca 10. If seemeth that one justice of the Peace, may (upon complaint of the party grieved) eramine the Sheriff, undersheriff, and Plaintiff, concerning the taking or entering of plaints in their Conntie Courts & books against the Statute: And if he find thereby any fault or offence committed, that shall stand for a sufficient conviction and attainder, without any further inquiry 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 sheriff or Vndershinte, and if thereby he find a default and offence, that also shall stand for a sufficient condemnation. Plaints in the County Courts. And the said justice must Certific those eraminations within a quarter of a year into the Exchequer. And further the Custos Rotulorum or the Elbeft of the Quorum in his absece, ought (at the General Sessrions after S. Michael) appoint two juslices of the Peace (the one being of the Quorun to have the over fight and controlment of the said Sheriffs etc. and of the amercemets. And that one of those justices may examine and (without further inquiry) convict the gatherers of the same, if they gather any more money than is contained in their lawful Esfreites. 11. H. 7. ca 15. The Cerificate of one justice of Peace (joined with the Customer of the place) of the unlading and felling of Corn, Graine, or cattle, carried by Water from one place to an other of this kealme unto the Customer and Controller of the place where the same was embarked, is sufficient and enough upon the Statute of forestalling. Certificar of selling Corne. 5. Edward. 6. cap. 14: &. 13. Eliz. cap. 25. One justice of peace may take out of Sanctuary certain abjured persons thither and others being indicted of some kind of offences mentioned in the Statute, done after they become Sanctuary men, & may commit them to the jail in the counts where the indictment is found, till they be tried. Sanctuary pers●●. 22. H. 8. ca 14. Every person finding or seacute; eing any to offend the Statutes made against the shooting in Crossbows and Handgunnes, may arrest and bring, or convey him to the next justice of the Peace of the County, wherein be was found offend, who (upon due examination and proof thereof before him made) may by his difscreation commit him to the jail, there to remane tpll be shall truly pay the one moiety of the for feature of this Statute, to the Queen, and the other moiety to such 〈◊〉 bringer or conueyer. Crosfebowes and handguns. 33. H. 8. cap. 6. Here therefore this justrce of Peace having (as it seemeth) the whole matter committed to himself in this case, is to be very circumspect therein, least he too hastily conbemne the guiltless, or negtigently● suffer the offendor to escape, for upon the offence sufficiently proved, it is necessary that in his Mittimus or precept to the Jailer there be contained the names of all the parties, the offence, and how long he is to be held in prison. And further he is to make a Record of this matter, and send the Estreit thereof into the Exchequer, whereby the Barons may have intelligence of the same, to have the queens duty levied to her use. The form of this Mittimus may be easily drawn by some other Precedents in this Book. Every person (other than such as are auctorifed by value of 100 th'. in lands) ought, if he be authorised to shoot, and do inhabit in the Country, present his name to the next justice of Peace adjoining. And there upon the justice ought to present and record the same before the justices of the Peace at the next quarter Sessions 2 E. 6. ca 14 But learn of others, whether this matter is to have cotinuaunce still, or else did only extended to such persons as had licence at that time. The supervisors for amendment of the highways, aught within one month after any offence done by any against the Acts (2. & 3. Ph. & Ma. ca 8: & 5. Eli. ca 13.) present that offence to the next justice of the Peace: And there upon he ought to certify the same at the next General Sessions within the same County. Highways. 5. El. ca 13. Every justice of Peace (as it seemeth) within the Shires next adjoining to the river of Thamis, within their several jurisdiction, hath power upon complaint made unto him by the Duerséers and Rulers of the Whirrymen and Waterme or two of the, or the masters of any such servants, both to examine, hear, and determine all offences committed against the Statute, and to set at large him that shall be imprisoned, by the overseers & rulers, if there be iufte cause, and also by his discretion to punish the overseers and Rulers, that shall unjustly punish any person. Thamis. 2. &. 3. Phi. & Mar. cap. 16. Every justice of Pease (before whom any person, arrested for Manflaughter or Felome, or suspicion thereof) shall be brought, ought (before he commit 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 be material to prove the Felony) in writing within two days after, and to take Bond of all such as do declare any thing material to prove the offence, to appear at the next General jail delivery, & to glu● evidence there against the party. Examination of Felons to be committed. 2. &. 3. Ph. & Mar. ca 10. This bond spoken of in this Statute, and in some such like, seemeth to be met of a recognisance, to be acknowledged to the Queens use with Condition for the person mance of that, for which the Statute appointeth it to be taken, For (as before hath been said) even as in the case of Surety of the Peace & Good Abearing. The form of the bond mentioned in this last Statute. The justice of the Peace taketh usually a Recognusance, and is well warranted so to do, being made a judge of Record as touching matters of the Peace though he hath no full words for him neither in any Statute nor in his Commission. So being auctorified by this Statute to deal in this matter, he may be well said to havetherin enclosed by a very good Congruence, power also to Record the acknowledging of a sum of money to be forfeited to the Queen, upon not performing the Condition of the same. The party therefore 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 etc. 23. D. E. de Brasted in comitatu praedicto Yeoman personaliter coram me Thoma Potter, uno Insticiariorun etc. adpace etc. assignatorum constitutus apud Brasted praedict. recognoust se debere dictae Dominae Reginae decem libras bonae & legalis monetae Angleae, de bonis & catallis, terris & tenementis suis fieri & levari ad opus dictae Dominae Reginae, haeredum & successorum suoris, sidefecerit in conditione subsequenti. Kanc. Th. P. And with such a Condition. THe condition of this Rccognusanceis such that whereas one A. B. late of C. labourer was this present day brought before the said justice by the above bound D. E. and was by him charged with the felonious taking of twenty sheep, of him the said D. and thereupon sent by the said justice to the Qaeenes' majesties jail: If therefore he the said D. shall and will at the next general jail delivery (to be holden in the said county) prefer, or cause to be framed & preferred one bill of Indictment, of the said felony, against the said A. B. and shall and will then also give evidence therein concerning the same, aswell to the jurors that shall then inquire of the said felony, as also to them that shall pass upon the Trial of the said A. D. That then etc. Or else etc. The Mittimus of the Prisoner, after his examination, may serve thus: THomas Potter, one of the justices etc. To the keeper of the Queen's majesties jail at Maydstone, etc. greeting. I send herewithal, the body of A. B. late of C. labourer brought before me this present day, & charged with the felonious taking oftwentie sheep, which also he hath confessed upon his examination before me. And therefore these shall be on the behalf of our said sovereigue Lady to command and charge you, and every of you, that you do immediately receive the said A. B. & him safely keep in your said jail, until that he shall be thece delivered by due order of her majesties laws. Hereof fail you not, as you will answer thereunto at your uttermost peril. Yeoven. etc. There also you may see (if I be not deceived) the time when the examination of the Felon himself, was first warranted by our Law. For at the Common Law, his fault was not to be wrong out of himself but rather to be proved by others. And because that some justices of Peace do upon this Statute use to take the information of the bringers of the suspected persons upon their Oaths, and other some do receive it without any Oath at all: Let us see by the way what is wont to be said for either side, that a man may the better see what way to incline and follow. Whether the examination ought to be upon Oath or no. They that take the information, or examination (for this Statute doth use both the words) without any oath, do say, that if the makers of this Statute had meant that an Oath should be take, then would they have expressed the same, even 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. have done: in all which Statutes, Examination by Oath is given in plain words. But they of the other side seem strongly to defence their exacting of the Oath, by the example of the justices of the higher Courts, and do allege, that whereas the Statute (5. H. 4. ca 8) ordained (without any mention of Oath) that in Actions of Debt upon arrearages of accounts, the justices should have power to examine the Attorneys and others, the justices of the Bench do use in that case to minister an Oath to the examinate, as it may appear. 19 H. 6. 4: & 35. H. 6. 5 The like (say they) hath been done in old time upon the Statute (18. E.) that giveth the examination of a woman covert in levying of a Fine: for (25. E. 3. 44.) a woman covert, party to a Fine, was examined & sworn, whether she were of full age, or no: & the like also (as they say) is done daily, in all the examinations of Summoners, Viewers; Sheriffs, clerk, and of other officers, that do happen in the Courts at Westmin. And M Brooke. Tit. Exami. 32 is of opinion the every examination is upon oath. And the Statute 2. E. 6. cap. 13. that giveth power to the Ordinary to examine a man for his personal tithe, excepteth an Oath, as though else he might have done it by exacting one. Besides this, they add a reason, alleging, the if these informers be examined upon Oath, then although it should hap them to die before the Prisoner have his Trial, yet their information may be give in evidence, as a matter of credit, whereas otherwise it would be of little or no weight at all, & thereby offéders should the easier escape unpunished. And lastly (say they) the precise penning of some particular Statutes, is no sufficient warrant to understand all other Statutes accordingly, unto which opinion myself could be easily brought to subscribe. Thus might (and would) I conclude this part concerning the power of one justice, saving only that this Statute doth give me occasion to extend my spéeth a little further. For, whereas it requireth that the justice of Peace should in taking the examination, make choice of such things as be material to prove the offence, it seemeth necessary that he (being perhaps unskilful in the laws of the land) should be somewhat instructed what acts those be, that do amount to Manslaughter or Felony meant within this Statute, & what other acts (though they carry some reseblance) of the same) yet do not reach so far. What Acts be Manslaughter, or Felony. And hereby he shall the better know, when to commit the party the shall be brought before him, & when he shall not need to meedle with him at all. But now I will only deliver him (so shortly as I can) those few helps the do readily come to my hand for knowledge of sundry Manslaughters & Felonies at the Common Law, leaving the Felonies made by Statutes to appear unto him in the rehearsal of the charge of the Sessions of the Peace in the next book when I shall come unto it. The Statute 1. & 2. Ph. & Mar. cap. 13. concerning the Baylement of prisoners (which gave the occasion of the making of this present Act) seemeth to distinguish Murder and other more capital crimes from Manslaughter and Felony. Felonies touching the person. And it is certain, that in common speech Manslaughter is taken to be a special manner of wilful kill without any malice forethought off. And Felony is not commonly understood to extend so far as unto Murder. Yet seeing the principal consideration of this Statute is (in mine opinion) rather to be practised in case of Murder than in these other less offices, I will adveture (though the Statute have not the words) to mingle them together, and make it here (as in truth it is) a chief kind of Manslaughter and Felony. For as in old time every kill of a man was of the Effect calied Murder because death ensued of it (for of the Hebrew word Moth (saith Postellus) cometh the Latin Mors, which the Saxons (our Elders) called Morþ Morth and Morþor Morthor as we yet sound it: so was that wilful manner of sleying with malice prepensed long since and most properly called Felony, because it was done Fe●eo animo, in malicious heat & displeasure, and per Felonian as the Statute at Marlebridge. 52. H. 3. ca 25. doth fearme it. Four sorts of Manslaughter. Not every Manslaughter deserveth punishment (saith M Bracton) for inexpressing that Homicidium corporale facto committitur quatuor modis s. justicia, justicia. necessitate, casu velvoluntate there withal he addeth that the first of these is no sin at all, if it be done sincerely, and without delight in shedding of blood. And therefore neither is the judge that by justice condemneth the guilty to death, and commandeth the minister to do execution, nor the lawful Officer that executeth the just commandment according to his warrant, guilty of any offence, for which upon examination either of them ought to be committed to prison. But if the Officer will behead or otherwise execute him that is condemned to be hanged, or if a private man without warrant whyll hang or kill such a condemned or outlawed person, this will be a Felonious act stretthing to Murder, by good opinion 35. H. 6. 58: & 27. lib. Ass. Pl. 41. And though the law hath been taken heretofore, the one might justify the killing of a man attained upon a Praemunire, yet now the same being prohibited by 5. El. ca 1. if one that hath killed such a person were brought before a justice of Peace, he might boldly commit him as a Felon. In the second sort of Manslaughter (according to M. Bracton) as there be many differences, so is the law also diverse in the consideration of them. For if a justice of the Peace within his County, or Mayor, Bailiff, or other head Officer of any City or Town Corporate, within the same town or City, or any other, having the queens Commission or letters, do lawfully upon good cause raise or assemble any number of men for the suppressing of any such persons, as shall be unlawfully assembled contrary to the Statute. 1. Mar. Parl. 1. ca 12 And by reason of their still continuing together after proclamation made, be driven to set upon them, and thereby any of the stubborn persons be slain. This slaughter done upon this Necessity is so justifiable both in the justice himself & every other of his company, that they ought not in any manner to be molested for it. 1. Mar. Parl. 1. ca 12. So if the Sheriff or any other do by warrant or upon hue and cry made, arrest one indicted of Felony, which doth resist & is slain thereby. This fact done upon this Necessity is justifiable 22. Lib. Ass. P. 55. & Tit. Coron. Fitz. 288. 289. 290. For all these former cases tend to the commendable advancement of Law and justice. By the old Statue. 21. E. 1. De Malefactoribus in parcis etc. If any Forester, Parker, or Warrener, or such as be in their company (after hue and cry made upon offenders within their charge to yield themselves, which they refusce to do but fly and make resistance) do (not having any malice prepensed) kill any of them, this is no Felony, nor the party to be imprisoned or to forfeit any thing for it. So if prisoners do assault their keeper, and in his defence he striketh any of them to the death. 22 lib. Ass P. 55. And so it is if any do attempt to rob or murder one in his mansion house or dwelling place, or nigh any common highway, Carteway, horsewaye, or footewaye, or Feloniously to break into his dwelling house in the night time, and in this their attempt, the party or his servants then with him do kill any of the misdoers (though the law was somewhat doubtful before) it is now made out of question by the Statute 24. H. 8. C. 5. the he shall not forfeit anything for that fact, but shall go. quit For in these cases of Necessity he defendeth himself and his goods against Kobbers and other notorious evil doers. But he the in an Astray is of necessity driven to kill the other in defence of his own life, after that he hath fled as far as he can, Is not so privileged, for although it be not accounted Felony yet Statute of Glove. cap. 9: willeth that such an one be imprisoned till the coming of the justices of jail delivery, and there (putting himself upon God and the Country) the whole matter is to be found by the verdict. And then the king shall grant him a pardon of Course, but he shall forfeit all his goods 43. lib. Ass. Pl. 3. for having killed the King's lawful subject. And therefore the justice of Peace, may well under the name of Manslaughter in this Statute take upon him (as I think) to commit such an offender and to take eramination and bond of the informers according to the Statute. The like is to be done (as it seemeth to me) in case one kill an other by misadventure against his will, as by casting a stone, or shooting an arrow, or felling of atree unadvisedly, or such like 11. H. 7. 23. That Manslaughter which is committed with an evil intent, or in doing an other unlawful or evil thing, though that which is done was not premeditate, is doubtless within the words and meaning of this Statute. ●oluntate. And so much the more, is that which is done in such a case of malice prepensed as I think. For, if two do suddenly fall out, and thereupon draw their weapons, and one killeth the other, this is Manslaughter apparently within the compass of this Law. So if one be in the company of him that of malice prepensed setteth upon another to murder him, and doth of a fodaine take the murderer's part, so that the other party is slain, this is Manslaughter in him according as the word is commonly understood. And so is it if two play at fence, or run at the Eilte together, and one of them be slain: For their first Act was unlawful, unless it had been by the Queen's licence, saith Fineux. 11. H 7. 23. And if A doth assult B. and striketh him, and whilst B. defendeth himself, C. cometh to part them, and is slain by A. this is Felony in A. But if they both had appointed the place of purpose, to meet there, to fight one with the other, and C. were slain in seeking to appease them, then will it be Felony in both the other. 22. E. 3. Coro. Fitzh. 262 and in Dalizons reports. If the mother destroy her child newly borne, this is Felony of the death of a man, thought the child have no name, nor be bapfized Coron. Fitzh. 418. And the justice of Peace may deal accordingly. But if a child be destroyed in the mother's belly, is no manslayer nor Felon to be imprisoned upon this Statute, Coron. Fitz. 146. & 263. The husband minding to make away his wife, did by the advise of B offer her a poisoned Apple to eat, & the not misfrusting any thing, gave the same to her little daughter that stood by in the presence of her husband, which child he loved well enough: that child died thereof. And this was adjudged Murder in the husband, because he offered the poison, & then had a wicked intet to kill on's therewith, & he was the original occasion of this death: But no offence at all in the wife, for the was btterly ignorant of the evil, & simply gave it her child, taking it to have been very good meat. 18. El. Blow. Com. 474. And if a man lay poison for Kats, & an other taketh it at unwares, and dieth thereof, this is not any ways to be laid to the others charge, ibid. If a mad man or a natural fool, or a lunatic in the time of his lunacy, or a child the apparently hath no knowledge of good nor evil, do kill a man, this is no selonious act, nor any thing forfeited by it. 21. H. 7. 31. & 3. H. 7. 1. for they cannot be said to have any understanding wil But if upon examination it fall out, the they knew what they did, & the it was ill, the seemeth it to be otherwise. If it appear, that the party woanded or poisoned lived a year and a day after the fact, then is it too late for the justice of Peacs to commit the offendor to prison, for than it cannot be though, that he died by the means, as it sémeth Cor. Fitz. 303. But it is plain by 3. H. 7. cap. 1. That if any man be wounded in peril of death, the trespasser ought to be arrested, & put in safe képing till perfect knowledge be had, whether the party wounded will live or dies & upon such matter within the year and day, the justice of Peace shall do well to commit him. But this is a general learning in all cases of Murder or Manslaughter, the the party hurt, must be dead in fruth before it be in judgement of Law faken to be either of those offences: for Voluntas at this day is not construed for the deed itself, as in time past it hath been put in ure. Hitherto of Manslaughter, the dealeth only with the Perso: other Felonies stretch to goods also as Robbery the had the name at the first of rob, because he the with force spoiled a man, took his robes or goods from him. Felonies touching the person and goods. Robbery. And in this kind of Felony, the law hath no cosideration of the balue of the thing take, because it is take from the person so the it is Robbery though it be but worth a penny. And Braeton calleth hiut Fure improbum & pradone qui rapit rem alienan. And if a man without any title take my goods against my will lying in a place where I am present, or do menace to kill me if I give him not my purse, by means whereof I deliver it unto him, it is Robbery. Coron. Fitzh. 178 and 115. So, if Théues assault me in the high way for my purse, and I cast it down into a Bush, (as I fly from them) of purpose to save it, and they take it up. Certain persons took a man, and compelled him (by menace of killing) to swear upon a Book, to bring them certain money, and thereupon he brought it them: this was taken to be Robbery. 44. E. 3. 14 But if a man lie in await to rob me in the high way, and draweth his sword upon me, willing me to deliver my purse, and I defends myself, so as he hath not his will, or I take him either by fight, or by hue & cry, it is not now take to be any Felony saith Stamford, because he hath not taken any thing from me: and so is there an opinion. 9 E. 4. 26. But the Law was holden to be otherwise. 27. Ass. Pl 28. & 13. E. 4. 7. And now seeing the benefit of Clergy is taken away from Pickpurses, and Cutpurses, by 8. Elizab. ca 4. let them also stand in this rank. A Burglour, whom Britton calleth a Burgessor, that by night breaketh into a house (With intent to Rob, kill, or do other Felony) though he carry nothing away, is a Felon, 22. Assi. P. 95: & 27. Assi. P. 38. So if he do but break open the house feloniously by night, though he enter not in, (sayeth Staf. Fo. 30.) But if this be done by day it is not taken to be Felony at this day without some further felonious act done (saith he) yet the Book Tie. Coron. Fitzh. 178. & 185. do not make any difference. Burglary. And the Statute. 1. E. 6. ca 12. taketh away Clergy and Sanctuary, in case where one is convict or attainted of Breaking any house by day or by night, where any person being in the same, shall be thereby put in fear (not speaking king of any other fact.) And Britton defineth a Burgeslour to be he that feloniously in the time of peace breaketh open Churches, or other house or the walls or gates of Cities or burgh's, whereof perhaps they had their first name, or rather may be derived of Bower that is a Chamber, or inner rovine, and Laron a Théfe. Burning of a house maliciously and wilfully, was Felony at the common Law, as appéreth by Bracton, West. 1. ca 15: 10. E. 4. 14: & 3 H. 7. 10. Burning of houses. And Brit. (Fol. 16.) saith, that such as burn houses or corn feloniously, aught to be burned. And one burned a barn fellow: ously by night which was adjoining to a house: and it was holden Felony at the Common Law. 11 H 7. 1. And if a man's wicked intent were only to burn the house of A. and thereby the house of B. is also burned, the burning of this last house is Felony, because it ensueth of the fire that was first kindled, Ploughed. Com. 475. Dther Felonies there be of Goods only, called Larcinie of the Latin word Latrocinium, and it is punishable either by beath or by discretion of the justices, which difference groweth by the value of the thing stolen: for if it ercéde not twelve pence, the fact is but Petit Larcinic, and the offendor is not to die for it, W. 1. ca 15. Britton F. 22. Cor. Fitz. 404 406. although the Indictment shall suppose the fact to be done Felonicè as in the case of Mayheme. 27. H. 8. 22. Felonic of goods. But it sémeth by 8. E. 2. Coron. Fitzh. 415. that if he be convide of one petite Larcinie, and after committeth an other, and is convict thereof, and so a third, when all these valued together, do amount about ru. pence, the for the last he shall suffer death, & Brit maketh the third offence always death. And if divers join in the stealing of goods, any thing amounting above the value of twelve pence, it is Felonic punishable by death in them all Coron. 404 Bracton destneth Furtum to be Contractatio re●al●ens fraudnlents, animo surandi, invito ilbo, cuires illa fuerit. The wife therefore can not the be accounted a Felon, though she steal the goods of her husband 21. H. 6. Coron. Fitz. 456. And if she steal an other man's goods by the compulsion of her busbande, it is no Felonic in her 27. Ass. Pl. 40. But if she do it at his commaunbement only, Bracton saith it shall not ercuse her. And the wife may of herself commit Larcinie, and shall suffer for it Coron. 383. In some case a man may be banged for taking his own goods, as if he first deliver them to one, to keep, and craftily of purpose to charge him, he stealeth them from him, this is Felony, by 7. H. 6. 43. 13. E. 4. 10. & 5. H. 7. 18. If a man steal out of an 〈◊〉 manne● ground, wild beasts which be accounted Nullius in bonis, as Dear, Coneys, Pheasants, or Doves, being abroad at their libertic, or Fish in a river, this is no Felonte, 22. Ass. Pl. 95. But if he take young Pigeons in the house, or young Boshauks the cannot fly out of their airy, or fish out of a pond or trunk, it is Felony. 18. 4. 8. To steal Béese, Foockes, Dens, Peacocks, or Turkeys, is Felome, for they b●● accounted in bonis. So is it of a tame Dear, if the stealer knew it to be tame: and also the flesh of any Dear that is killed by an other, the taking away of such a thing with a felonious imtent, is Felony for they be also then reckoned in bonis and baluable. But so to take away a Boar with Charters of land in it, or a Ward, is no Felony, for they be not personal, but real goods, whereof there can be no Felony committed. 10. E. 4. 15. And therefore also, if with a felonious intent one cut down and steal away a tree, or corn that is standing, or rob an D●chard of the fruit growing there, it is no Felony being at that time in manner parcel of the ground, whereof there can be no Felony committed: but if the tree or corn were cut down, or the fruit gathered before by an other, and left there, and then one stealeth them, it is Felony, for at that time they were very personal Cattles, 18. H 8. 2: & Coron. Fitzh. 119. & 256. If a man clip the wool from my sheep's back, or do kill my sheep, and steal the skins, leaving the bodies behind, this is Felony of goods, Dalizon. For the very sheep themselves were my goods, & might be stolen. But the first finder and concealer of treasure found, although he keep it with a felonious intent, or he that stealeth a wreck of the Sea, or waved goods, whilst they be in that nature, seemeth not to be chargeable in Felony, by 22 Ass. Pl. 99 because the owner thereof is not known as yet. If a man deliver his goods to another to keep, and he do fraudulenfly and wilsully consume them or convert them to his own use, this is no Felony, because prima contractatio, and first possession was not invito domino, but of his own delivery. 13 E. 4. 10. And yet it is holden, if I bargain with one to carry certain bales of woad to Crambrooke, and he carrteth them to Canterbury, and breaketh the Bales, and taketh out the woad, & converteth it to his own use, that is Felony. So if I deliver a ●un of Wine to him to carry, and he taketh the Wine out of the ●unne, it is Felony. For here it may be said, that neither the very Woad, nor the Wine were delivered him in that kind. But if he sell the ●unne of Wine, or the Bails of Woad together, as he received them, than is it no Felony, because he had them in that sort of the delivery of the owner 13. E. 4. 9 & 10. But if an Innkeeper sct a piece of plate before his guest to drink in, and he carrieth it away with him, this is Felony. For here the guest had no possession by the owner, but only the use of the thing 13. E. 4. 9 So is it the guest do steal the shéets in which he lieth, and be taken ere he goeth out of the house, as in the dal, after that he is come out of the Chamber, Coron. Fit. 204. & Dalizon. If a shepherd steal the sheep, or a Butler the Plate, or an other man any other thing that is in his charge and keeping, it seemeth by the justices (3. H 7. 12.) that it should not be Felony, upon the former reason, which seemeth to have been the ancient law of the land also. For Glanuill in his 10. Book cap. 13. saith, Qnod Furtum non est, ubi initium habueru su●detencionis per dominn rei. But because in some of these cases of Servants, there grew much inconvenience unto Masters, therefore 21. H. 8 ca 7. made it Felony, if Servants of the age of eighteen years that had any goods of their masters delivery to keep to their use, should fraudulently convert the same to their own uses, to the intent to steal them, if it amounted above to the value of forty shillings, wherein Apprentices be excepted. And this statute being afterward discontinued, was revived 5. Elizab. cap. 10. whereof more shall be seen when we come to the charge. But thus much for this place and purpose, to give some little direction to the justice of Peace,) may at this time suffice. What things any two justices of the Peace may do out of the Sessions. CAP. XXII. THe authority and power of one justice of the Peace (without the Sessions) thus perused & passed over, let us eramine the like power of two, boshe in generality, and in particular. It is universally true, the whatsoever thing one justice of the Pear alone is permitted so do, either for the conseruasion of the Peace, or in the execution of the Commission or Statutes, the fame also may be no less lawfully performed by two (or more) justices, except it be in a very few cases, where some Statutes do seem specially to appropriate the execution thereof to some one certain justice, either in respede that he is Next to the place, Eldest of the Quorum, or such like. But we will proceed by particularities, The power of two justiccs of the Peace, in punishing os Riots, etc. and because the first place (of right) belongeth to the Peace, (as where in the office of this justicer chief consisseth) let us here supply in two justices that power in punishing Riots, Routs, and unlawsull Aisemblies, which we said before to be wanting in one: And that shall we the better do, if we first of all lay open the Statute of King Henry the fourth, containing a most ample authority, as well for the repressing, as for the Recording of the same, and then adjoin somewhat out of some other Statutes. IF any Riot, Assembly, or Rout of people against the law be made, the justices of Peace or 3. or 2. (at the least) of them, dwelling most highest to the place, & the Shirif (or Vndershirif) of the County, shall come with the power of the County (if need be) to arrest them, and shall arrest them, & shall have power to record that which they shall find so done in their prefencc against the law: And by that Record such offenders shall be convicted in manner and form as is contained in the Statute of Forcible entries, (viz. 15. R2. c2,) And if such trespassers be departed before their coming, than these justices of Peace, or three, or two of them, shall diligently inquire within a month after such Riot, Assembly, or Reut made: and thereof shall hear and determine according to the law of the land: and if the truth may not be found in the manner as aforesaid, then with in a month than next following the said justices and Shirif (or undershirif) shall certify before the King & his Council all the deeds & circumstances thereof, which Certificate shall be of like force as the verdict of twelve men etc., And if such offenders do traverse the matter so certified, than the Ccrtificat and Traverfe shall be sent into the King's Bench to be tried & determined as law requireth. And that the same justices and Sheriff shall do execution of this Statute, every one upon pain of one hundred pound, to be paid to the King, as oft as they shall be found in default. 13. H. 4. cap 7. Whereunto the Statute (19 H. 7.) addeth that it the said Riot, Maintenance & embracerie. rout, or unlawful assembly, be not found by the said jury, by reason of any maintenance or embracerie of the said jurors: then the same justices and Sheriff (or undersheriff) shall also certife the names of the maintainours and embraceours in that behalf (if any be) with their misdemeanours that they know, upon pain of every of the said justices & Shirif (or undershirif) to forfeit twenty pounds (if they have no reasonable excuse) for not certifying the same: which Certificate so made, shall be of like force as before etc. And every person duly proved to be a mainteynor or embracer in the same, shall forfeit twenty pounds to the King, and shall be committed to ward, there to remain by the discretion of the justices. 19 H. 7. cap. 13. Hereunto also the Statue (2. H. 5.) adjoineth further, Assistance. that the King's liege people (being sufficient to travail) shall be assistant to these justices, Sheriff (or undersheriff) when they shall be reasonably warned, to ride with them in aid to resist such Riots, Routs and assemblies, upon pain of imprisonment, and to make fine and ransom to the King. Provided always that the said justices, Sheriff (or undersheriff) shall do their said offices at the King's costs, in going, tarrying, and returning, by payment thereof to be made by the Sheriff by Indenture between him and them, of the said payment. At the King's charges And that such Rioters attainted of great and heinous Riots shall have one whole years imprisonment at the least, without being let out of prison by Bail, mainprize, or in any other manner during the years aforesa; I'd ● & that the Rioters attainted of petite Riots, shall have imprisonment as best shall seem to the King and to his Council. And that the fines of such Riotours attainted, shall be by the same justices increased and put in greater sums than they were wont to be put in such cases before that time in aid and supportation of the costs of the justices and other Officers aforesaid in this behalf. 2. H. ●. ca 8. Now, if it be witnessed by two justices of the Peace, and the Sheriff, by Letters under their Scales, to the Lord chancellor of England, that any murders, manslaughters, batteries, robberies, assemblies of people in great number in manner of Insurrection, or other rebellious Riots, have been done and that such offenders have withdrawn themselves, to the intent to avoid the execution of the common Law, than the Lord chancellor may make a writ of Capias, and thereupon (if need be) a Proclamation, etc. 2. H. 5. cap. 9 Capias and Proclamation. which Statute was made to endure till the next Parliament, and so discontinued: but it was revived by 8. H. 6. and made prepetuall: which moreover ordaineth, that (before this Writ of Capias shall be awarded) two justices of the Peace, and the Sheriff of the Shire, where such Riot is supposed, aught to witness, that the common voice and fame runneth in the said County, of the same Riots. 8. H. 6. ca 14. The Letter (or Text) of these Laws, being thus laid down, let us also see what exposition and help M. Marrow and others do bring to some parts thereof, namely, to that of king Henry the fourth. Under the words, Power of the County, the justices, Sheriff, or undersheriff, ought to have the aid and attendance of knights, and of all manner of Gentlemen, yeomen, Labourers, Servants, Apprentices, and Willaines. And so likewise of Infants, that be above fifteen years of age. For all of that age were boude to have harness by the Statute of Winchester. But women, men entered into the ministery, and such as be decrepit, or do labour of any continual infirmity, shall not be compelled to affende. And it resteth in the discreattion of the justices and Sheriff or undersheriff. Now many, or how few, they will have to assist them, in making the arrest. But yet after such arrest made, the Power of that county, is bound to go with the Sheriff to the jail to aid him thither also: which is otherwise in the case of a Felon taken by Hue and Cry, for there when the Country hath delivered him that Sheriff, they are discharged, Mar. This authority of assembling the power of the county, and of arresting & imprisoning Riotters till due execution of law were done upon them, was once before this time (namely 2. R. 2. 6.) committed to some, & was by & by after resumed in the same year of the same king's reign, as a thing too gréuous to be suffered, that any man should be imprisoned without an Indictment (or Sine leg all indicio parium suoruns as magna Carta speaketh) first had against him. But now, if information be made to two justices of the Peace, that certain persons be riotously assemb;ed at Dale, and they (assisted with the Sheriff or undersheriff) do gather people to suppress it, and when they come to the place, they find no Riot there, yet are they excusable for the assembly of Power made by them, because they did it upon information. And if they do it without information, and find a Riot indeed when they come, then shall they not only be ercused for making such assembly of their own heads, but may also lawfully proceed to punish the offenders. Fitz 17. And that punishment must be grounded either upon their Record of the thing done in their own presence, or else by inquiry upon the oath of other men. And therefore if two justices of the Peace (assisted with the Sheriff or undersheriff do see a Riot, they may command the Riottors to be arrested, & and the parties shall be so concluded thereby the they shall never be received to Traverse (or deny) it: But otherwise it is, if they do not see it themselves 14. H. 7. (as M. Fitz. Tit. justice deal peace 9 reporteth) who saith moreover (in his book of justices of the peace, Fo. 18.) that if they do so record a Riot, as though they had seen it, the parties shall be stopped thereby, although there were never any such Riot by them committed: for (saith he) the view of a Riot, is never to be traversed. Likewise, if the justices of Peace be disturbed by Riotors in coming to their Sessions, they may (without any inquiry) make their record of it Fitz. 17: & 7. E. 4. 18. Recording of the Riot The Record which these justices ought to make, must be by writing, and must remain with the one of them: and the ● and none other justices) ought to imprison the Riotors, and to assess their fine, & cause the same to be estreated into the Escheaquer. If they see 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 Process upon that Record, neither ought it to be kept amongst the Records of the Peace but it must be sent into the King's Bench, that process may be there made upon it. And in the case the parties are not to be admitted to their Traverse there, but must of necessity make fine for it. If these justices come to see one Riot, and another Riot is made in their presere, they may Record that. So if the justices & the Sheriff, or undersheriff be assembled at a place for an Arbitrement, or such other pris vate cause, and a Riot appeareth to be committed in their presenc, they may Record it also. But if the Riottours (seeing them coming) do fly into another County, and do commit a Riot there, these justices can not Record that Riot. If the Riottours make a Riot upon the justices and Sheriff that do come of putpose to arrest them, they may Record 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 Riot be done upon them. If a man be slain in the Riot, or Maimed, or if Rescous be done to an officer, the Record must be, Riotosè occidit, or Riatosè Maybemavit, or Riotosè rescussit, & not Felonicé nor simply Rescussit: for their polver in this case is restrained to the Riot only, & therefore the parties may (not withstandoing their Record) plcade not guilty, to the Felony, or Refcous, though not to the Riot itself. If they make a Record of a Riot, & do imprison the party till he have made Fine, and it do after ward appear by the Record itself, that the Act which they recorded is no Riot, yet be the parties without remedy. and if a man be bound to the Peace, & such a Record of a Riot is after wards made against him, and others, he shall not justify, nor plead, not guilty, in a Scire facias, upon his Recognusance. Mar. But although these justices, Sheriff or undersheriff, do not go to see the Riot, yet may the the justices inquire of it within the month after it: and they all are allo to make Certificate within a month after that, arcording to the form of the Statute. And although this Statute say, that the same justices shall do it, yet if other: justices of the peace there do it, that is sufficient. Mar. inquiry of the riots, and certify. So that if two justices and the sheriff go to see a, Riot, and other two justices make the inquiry, now the one sort or the other of them, with the sheriff or undersheriff may Certify it. If this inquiry be not made within the month, yet it is good, but then no good Certificate can be made thereof: So if the inquiry be within the month, and the Certificate not made Within a month after, that is not good Mar. But if the justices do inquire within the month, and do give day to the lurie to yield their Verdict after the month, that is good enough. If the inquest find, that the Riot was made by ry. persons, where in deed it was made by Cpeople, it may be creatified so, and then the Cretificat (& not the Indictment) shallbe take: but if they barie only in the day, than the Indictment shall be preferred to, if the Certificate. And if the Indictment be of ry. persons, & the Certificate of ry. persons in harness, the Certificate shall be preferred. So, if the Indictment speak only of a Riotous assault, battery, and mayheming. If four justices, the sheriff and undersheriff, go to fee a Riot, and two of those justices and the Shifife join in one Certificate, and the other two join with the undershirif in an other Certificate, that Certificate (whereunto the Sheriff is party) shall be preferred: for in his presence the undersheriff hath non authority. But yet if the Certificate be otherwile equal, than the best shall be taken for the Queen. If (after the Riot seen, and the inquiry made) one of the justices be put out of the Commission, then cannot be Cretifi. But If he Recorded the Riot upon the view thereof, and the Rioters had escaped, yet the might he Certifi Mar. The force of this Certificate is, but only to put the parties to answer: and forasmuch as it is of the nature of a declaration against them, it ought to comprehend the certain year and day, thought peradventure (as M. Mar. holdeth) it needeth not to erpresse the Additions of the parties, being not within the words of the Statute, 1. H. 5. Ca 5. Furthermore, whereas this Statute speaketh of the pain of C. lb to be laid upon the next justices: Yet if other than the next justices do perform the office, that shall ercuse them that be the next justices to the place. And that in the cause why I have taken leave to place there things before, under the audoritie of any two justices generally. Next justices. Yea, all the justices of Peace within the commission, how far off soellre they dwell, dught (if they have notice of such a Riot, Rout, 02 Assembly,) to supply the default of the next justices. For so it was now lately adjudged in the star Chamber. Howbite that pain of an hundred pound was layds upon the next justices only, and theresidue were fined by discertion of that Court. Lastly, every of these justiccs shall be ercosed of this penalty, by the not coming of the shirief: But yet they ought (in this service) to send for the sheriff, and not he for the, Mar. Thus much of the riots after this consideration: now a little for the furtherance of the justices in their execution, and then then other matters. A Precept to the Sheriff, to warn the Country to inquire of a Riot. GEorgius Multon & Wilhelmus Lambard dou jusstiled; ticiariorum etc. assignatorum, Vicecomiti eiusdem comitatus Salutem. Exparte ditae Dominae Reginae tibi praecipimus, quòd ventre facias coram nobis apud I. m comitatu praedictor. die Ostob. proximè futuro. 24. probes, sufficientes, & legales homines de comitatu pradisto, quorum quilibet babent terras & tenementa, infra distuncomitatum liberè per cbartam ad annuum valorem 20. solid. aut per copiam Curiae adannuum valorem 26. solid. & 8. denars. aut per utrumgum ultra omnes reprisas, ad inquir endum pro indenitate nostra in bac parie super sacramentum suum S. t A. B. C. D. E. F. s alis malefastores et pacis dista Dominae Reginae Perturbatores ignoti, domum cuiusdam G. H. apud Ightham praedistan, riotose fregerint & in ipsum insulsum fecerint, & unlneraverint, contrapacem dista Domma Ragina, & contraformam Statuli m ialicasu, 13. H. 4. 0 limb regis Angliae editi & proxist. Et hoc nullatenus omittas sub poena 20th. quam incursurus as fi in executione pramissorum defeceris. Kang Et habeas ibitunc hoc praceptum: Testibus praefatis G. M. & W. L. 20. die Septemb. Annoregni dicta Demine nostrae Eliza. 23. The inquiry. Inquisitio pro Domina Reginae etc. (as before in forcible entries) coram Georgio Multon & Wilhelmo Lambard, etc. Quiad hoc inratiee onerati, dicunt super sacramentum suum, quod A. B. C. D. E. F. simul cum alijs malefactoribus, & pacis dictae Dominae Reginae pertur batoribus, ignotis ad numerum septem personarum, mode guerrino arcaiati, ut & armis, viz. hawberdis, gladijs, arcubus, & sagittis, 19 die mens. Sep. vlt. Praeterito, apud Ightham in comitatn Praedicto inter horas octavam, & nonam, post meridiem eiusdem diei, Domun G. H. de Ightham Praedict. Yeoman, scituatan in Ightham praedicta. riotose fregerunt, & in ipsum G. H. tunc & ibidem insulium fecerunr, ac ipsum tunc & ibidem verberave runt, vulneraverunt, & indignis modis tractaucrant, is a quod de vita eius desperabatur in magnam pacis dict. Domine Reginae perturbationem & popult terrorem ac contra formam Statuti de riotis, routis, & congregationibus Gentium Anno. 13. H. 4. olim regis Anglia progoniter is dicte Domina Reginae, editi & promisi. The Certificate to the Queen & her Count sell aught to be made by the two justices the Sheriff or undersheriff, Which may be done in English, after the order of a Letter, and as the case shall require. But the Record of the justices, and the Sheriff or Vndershirise (if they will procée & that may) may be in this manner. MEmorandum quod 20. die Septem. anneregni Dominea nostra Elizabe. der gratia etc. 23. Questiled; tus est nobis Georgio Multon & Wilhelmo Lambard, duobus juiticiariorum etc. essigmatorun, & Thomae C. sub vicecomiti comitatus ciusdem, quidam G. H. de Ightham in dist. comitatu Yeoman, Quod A. B. C. D. E. F. & c. & alij malefastorcs & pacis dicte Domina Reginae perinrbatores ignoti domurn eiusdem G. H. apud Ig, pradicu. riotosé fregerht, et ibidem in ipsum G. H. insultum fecerunt, ac ipsum vulneraucrunt contra pacem dicta Domina Reginae ac proinde pctyt 4 nobis sibi in hac part remedinm apponi: Quthus guidem quarimonia & petitione anditis, nos dict. G. M. W. L. & T. C. ipso codem dicto die ad domuns pradictans accessimus in propriss persovis noctris, ac tunc & ibidem invenimus prafatos A. B. C. D. etc. ad numerum septem per sonarum modo gucrrino arraiatos, uz. gladijs pugionibus, lorisis galeis, arcubus & sagittis, riotose in simul aggregatos domum proefatam fregisse. multa mala in ipsum G. H. ibidem comminantes in magnam paeis dictoe Dominoe Reginoe perturbationem ac popali sui terrorem, necnon in contemptum Statute de Riotis, Routis, & congregationibus populorum Anno 13. H. 4. olim regis Anglioe, progenitoris dictoe Dominoe Reginoe, & diti ac prossist. Ac proptereanos proefati G. M. W. L. & T. C. corpora dict● rum A. B. C. D. etc. arrestari, Ac proximoe Gaols dictoe Dominoe Reginoe in comitatu praedicto duci ficimus, per Recordum hoc nostrum connict. in praesentia nostra. In cuius reitestimontnssnos Praefati G. M. W. L & T. C. huic dicto records nostro, sigillae nostra apposuimus, Datum apud I. praedict. die & anno supradictis. And now wishing the two justices of Peace in this matter to look back into the which hath been satd before of forcible entries and Kiots in the person of one justice, let us make speed to other statutes. Any two jushces of the Peace, may imprison forx. days, the Naister that giveth: & for x. days, the servant that taketh more wages than after the rates thereof made: & may imprison for a whole year, such servant, as shall be Convicted before them by his own confession, or by the Dathes of two honest men, to have made any assault upon his master, maisiresses, or other person having the charge of him, or of the work: and they may appoint any woman (being unmarried, of the age of twelve years, and under forty) that is out of service, and that they shall think meet to serve to be retained by their disrreation, and may upon her refusal commit her to Ward, till she will be so bound to serve 5. Eh. ca 4. Servants & Labourers. Any two justrces of Peace, may licence such as be delivered out of gaols, to beg for their fees, or to travel to their Country, or friends: and may give licence for forty days to a Rogue that is marked: & may make testimonial to a Servingman, that is turned away from his matster, or whose master is dead: 14 Eliz. ca 5: & 18. Eliz. ca 3. Beg for sees. Roag. Seruingme. Such two justices may certify at the quarter Setsions that a City, or Town Corporate, of the Shire (being no county of itself) is surcharged with poor, together with the names and number of them, that order may be taken there for their relief: they may Licence diseased people (living of alms) to travel to Bathe, or to Bucstone, for ease of their grief. 14. Eliz. ca 5. Surcharged with poor. Licence to go to Bach or Bucstone. By the oversight of two such justices, and twelve discreet men of the Hundred, and Hundreds adjoining, any person (within the Wealde of Kent) may make in his own land a new highway, more commodious than the old, 14. H. 8. ca 6. Chiungea high way. Two such justices may once every year appoint Overseers for that whole year following of cloth to be made or sold, in any town (not being Corporate) and may charge them upon their oaths, to see execution of some parts of the Statute. 3. E. 6. ca 2. yet in force. Appoint Overseers of Cloth. Within sire days after accusation had, that any person hath disturbed a Preacher, and after his committing to safe custody by one justice of the Peace, one other justice of that shire must join with him in the eramination of the Offender, & may proceed to find him guilty by his own confession, or two witnesses, and thereupon commit him to the next jail, for three months. 1. Mar. Parl. 1. ca 3. quoere of the cotntinuance of this Statute, as before. Disturb & Preacher. Any two justices of the Peace of the County, where any Logwood (alias Biockwood) shall be found (in whose hands soever it be) may openly burn the same, as forfeited. 23. El. ca 9 Logwood. What things, some two justices of the Peace may do out of the Sessions. CAP. XXIII. IT falleth out many times that the Statute laws regarding some justices above others, either for the opinion of the abilitises or learning that they should have (being of the Quorum) or for the advantage and facility that they have to dispatch the affair by means of their dearness and dwelling, or for the indifferencis that they are likely to use in the handling of the cause (as being neither of kindred nor alliance to any of the parties) do many times make choice of two justices, and do either altogether close the hands of the rest, or else do chief reposs the trust in these that be so chosen & elected. Among those of this kind, the bailment of prisoners worthily craveth 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 liberty, and the other comprehending great variety. This saving then, or delivery of a person out of prison, before he hath satisfied the Law, is uttered by three terms in our Statute laws, that is to say, bailment, Mainprize (or manucaption) and replevin. Difference between bailment, Mainprize & replevin. And they be indifferently used to erpresse that surety which the prisoner is to find in such a case: For that which Bracton and the statute of W. 1. cap. 15. made 3. E. 1. do speak of setting at liberty of accessaries by the words Replegiari, and of letting out by sufficient Plevin: Britton and the Register do erpresse by finding of Mainprize: the Statute 5. E. 3. cap. 8. by letting to Bail: 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 be directed to the garden of a Forest, declareth the effect thereof to be, that he should Replevy the prisoner by good Mainprize. The Statute 23. H. 6. ca 10. that commandeth the Sheriff to let out of prison (such as he hath arrested upon indictments of trespass) upon reasonable surety of sufficient persons, calleth the same a letting to Bail or Mainprize. And lastly 1. 8 c 2. Ph. & Mar. etc. 13. seemeth to make all the three words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and of the same signification. Yet it seemeth that Replevine had his original of the word Pledges which denoteth them that undertake for the party, that he shall abide to be justified by Law. And is used in diverse other cases, as in Replevine of cattle upon a distress. Replevine of Franchises in a quo Warranto, Replevine of Land upon a grand Cape, in old time, and Replevijng of the person of a man in case of villeinage and this our case. bailment is derived from the French term Bailler. And that also cometh of the Greek (〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉) they both signifying to Dehaer into hand: For he that is Bailed is taken (or kept) out of prison and delivered (as it were) into the hands of his friends as Sureties for him, whereof also the word Manucaptio (or Maineprise which is all one) giveth good evidence, the one mentioning the delivery, the other the receiving. And in this respect, the Book of the Norman Customs calleth bailment a live prison, for that the party is thereby become prisoner to his friends that do undertake for him. But Bailmet & Mainprize have been take to differ in the practse of our common law, for he which is properly Bailed by the justices of any court hath been nevertheless reputed to be a prisover their fril, & his sureties to be (as it were) his special gardens, other wise it hath been thought of him that is let to Mainprize, as may be seen by the Book 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 adjudged to be aprisoner, Erin Custodia Mariscalli Mariscalcioe, & c. that is Bailed in the King's Bench, the custom of the Court it self must rule the matter: for it differeth somewhat (if I be not deceived) from those opinions. Howbeit, forasmuch as in our course (concerning justices of the Peace) it is not so needful to siay upon the difference between them, as to proceed to disrlose the use and manner of them: Let us therefore examine the power of the justices of Peace in this behalf. It séemety, that justices of the Peace might (after the statute of 34. Ed. 3. cap. 1. (that made them complete judges) have let to bail such persons as were indicted of Felony before them in their Sessions, as the justices of the King's Bench use to do, but not such as were arrested for suspicion of Felony, and not indited thereof before them, because before the inditement they were no judges over them: And for help herein, it was ordained (1. R. cap. 3.) that every justice of Peace might let to Bail any suspects of Felony. But that Law begat some inconveniences, and therefors it was soon after repealed (by 3. H. 7. cap. 3.) which left power to two justices of the Peace (the one being of the Qorum) to let any prisoners (mainpernable by the Law) to bail to the next general Sessions, or the next jail delivery, and willeth, that they shall then certify such bail taken, upon pain to forféite for every default (thereupon recorded) ten pounds, to the King 3. H. 7. cap. 3. And here again there sprang up an other inconnenience: for then justices of Peace would not stick to borrow one an others name, (as many yet still do) and by that means defraud the good meaning of the Statute: Whereupon it was lastly further provided (by 1. & 2. Phil. & Mar) as followeth: That no justice nor justices of Peace, bailment of prisoners, and examination before they be bailed. should let to bail any person contrary to the said Statute of West. 1. cap. 15. And that no person, being arrested for Manslaughter, or Felony, or for suspicion of either of them, (being bailable by the Law) should be bailed, by any justice of Peace, if it be not in open Sessions, or by two justices of the Peace at the least (the one of them being of the Quorum,) and the same justices to be present together at the time of the said bailment: and that they shall certify (in writing, subscribed, or signed, with their own hands) the said bailment or Mainprize, at the next general jail delivery, to be holden within that Shire, where that person shall be arrested, or suspected: And that the said justices, or one of them, (being of the Quorum,) when such prisoner is brought bcefore them for Manslaughter or Felony, shall bcefore any bailment) take the examination of that prisoner, and the information of them that bring him, of the fact and circumstances thereof, and the same, or so much thereof, as shall be material to prove the Felony, shall put in writing before they make that bailment: which examination and bailment, the said justices shall certify at the next jail delivery within the limits of their Commission: And the said justices shall have authority by this Act, to bind all such by recognisance (or Obligation) as do declare any thing material to prove the said Murder, or Manslaughter, offences, or Felonies, or to be Accessory or Accessories to the same, as is aforesaid, to appear at the said next jail delivery, where the trial thereof shall be, then and there to give evidence against the party, at the time of his trial, and shall certify all and every such bond, in like manner, as is aboucsaide of the bailment and examination 1. & 2. Phil. & Mar. cap. 13. This Statute of bailment I have recited the moze at large, because it both comprehendeth some such other things as must concur with the bailment of the prisoner, and giveth me occasion to set down the Statute of W. 1. and to show what persons be bailable by the Law: for, to either of these it referreth itself (as you have seeacutene) and is also restrained by them. Now by the Statute of W. 1. cap. 15. Prisoners that be before outlawed or have abjured provers: felons taken with the manner: those that have broken the King's prison: notorious and proclaimed thieves: those that are appealed of provers, so long as the provers be living (if they be not of good same:) those which are taken for felonious burnings, or for falsifying the King's money or his Seal: or which are taken upon excommunication, or for open evil or for treason touching the King himself, or for the death of a man, or by the commandment of the King himself, or of his privy Counsel, or by the (absolute, and not ordinary) commandment of the King's justices, or for the Forest: be not replevisable by the common Writ nor without Writ by Sheriffs, nor other gardens of prisons. But he that is taken for light suspicion: or is indicted of petite Larcinie, (not being guilty before of other Larcinie:) those that be charged with the receipt of thieves, or felons, or of commanding, or force, or aid: or charged with Trespass, that toucheth not loss of life, nor member: and he that is appealed by a prover (being no common thief nor defamed) after the death of the prover, is bailable by that Statute. Again, the Statute 23. H. 6. cap. 10. prohibiteth those that be in prison by condemnation, execution, Capias utlagatum, excommunication: for Surety of the Peace: or by special commandment of any justice, to be bailed, by Sheriff, keeper of prison, or other their Officer or Minister, But willeth and commandeth that all those that be Arrested by force of any Writ, Bill or Warrant, in any action Personal, or because of any inditement of Trespass, to be let out of prison upon reasonable sureties of sufficient persons having sufficient within the Counties where they be to be let to Bail or Mainprize, to keep their days in such places as the said writs, Bills or Warrants shall require. Both these last Statutes (as appeareth) were at the first meant to give a rule unto Sheriffs and other meaner Officers, in what cases to let their prisoners to Bail, and in what not, But as the Statute of W. 1. is by the express letter of 1. & 2. of ph. & Mar. set forth as a line whereby the justices of Peace are to guide themselves: so it seemeth to me that they ought to have an eye unto the other Statute also, for as much as, certain other persons be therein also meneioned not to be Bailable by lame, and so within the reach of these berry words that lir in the Statute 1. & 2. Phil. & Mar. cap. 13. This Statute of 1. & 2. Ph. & Mar. seemeth (as hath been faide befoze this) to distinguish between Murder, & Manslaughter making this offence Bailable, but not the other: So as it should restrain (as it were) the general words (death of a man) in the Statute of W. 1. to cause them to be understood of Murder only. Manslaughter bailable, and not Murder. And besides it maketh mention of the bailment of Acceslones whereof the Statute 2 & 3. Ph. & Mar. cap. 18. hath never a word. I will be therefore a little bold to remember here some few cases of these matters, to give (as my manner hath been) some glimmering of light to the unacquainted justices of Peace with the grounds of our Law, how to difcerne and know them asunber, the better thereby to grant or deny the suit for Bail that shall be made unto them. The sundríe construction of the words Murder and Manslaughter, and how they be commonly understood at this day, hath appeared already. Now if one do suddenly (without any occasion of present quarrel offered) ●rawe his sword, and therewithal killeth an other, that standeth by him, this cannot be thought but to have been done of a pretenced purpose, and therefore hath been taken to be Murder. Dalison in his Keportes. So is it taken if two fall out, and do appoint a place to fight together, and there the one of them killeth fhe other, ibid. If a man assaulteth the Master upon malice prepensed to kill him, and he killeth the sruant, against whom he had no malice at all, yet is this Murder, Ploughed. Com. Fol. 101. But if the Master assaulteth one upon such malice, and the servant (not foreknowing this matter) taketh then his masters part, and Killeth the party, it is but Man slaughter in him, though Murder in the Mailter, ibid. Fol. 100 If one lieth in await to kill one, and an other cometh there by, and so by mistaking him for the party, whole blood was thirsted for, he is slain, this is Murder: for it was grounded upon malice prepensed, as in the case that hath been remembered heretofore of the intent in the husband to poyso his wife, whereby in a manner against his will, his child was poisoned, ibid. Fol. 474. Brooke Chief justice was of opinion, 4. & 5. Phil. & mar. That in all cases, where a man alone, or with other, cometh to do an unlawful act to an other, as to beat him or diseise him of his land, etc. and killeth him in that doing, it is Murder: But if a sfranger be killed there, that then that is but Manslaughter. And Dallison agreeth with the first part of this opinion. And he further reporteth, that if a maiden servant conspire with a man to rob his mistress & so they kill her, this is but Murder in the man, though petit Treason in the maiden. Accessories to all manner of Felonies be bailable by the statute W. 1. in these words, (Those that be charged with the receipt of thieves or Felones, or of commandment, or offorce or aid thereunto.) Accessories. And M. Stamforde. F. 71. affirmeth that those also which be charged with abbetment, consent or procurement, be within the equity of the same words. This statute therefore seemeth to make three sorts of acccessories, some to be before the offence committed, as Commanders, abetters, consenters, and procurers: some at the deed doing, as those that then give force or aid thereunto: and a third sort of those that receive the Felones, and comfort them after the fact done. But for as much as the second sort of these men be at this day accounted as deep offenders as the very doer himself is, therefore (in mine opinion) in all such cass where he is not to be bailed by law, these men also ought to remain in prison still, not withstanding the words of this statute. Now to know sucb an Accessory (as the law is taken at this day) and him also from a principal, let these cases following suffice. If one procure or command an other to kill a man, but is not present when the other killeth him, he is taken to be bat an Access●rie. But if he be present at the very time, he than is taken to be a principal murderer. 7. H. 4. 27. & 4. H. 7. 18. And if hunters that have agreed to kill such as shall resist them, do come into a park, & one of them runneth upon a man that rebuketh them, and killeth him, it is Murder in all the hunters that be in the park, although some of them do not see, & all be principals, as Dalison reporteth. So if divers come to do a Murder, & one of them only striketh and killeth the man, & the other be but present abetting him and ready to aid him if need were, they be all taken to be principal Murderers at this day. For their presence is a terror unto the party slain, and the greater occasion of his present death Ploughed. Com. Fo. 98. If a man command one to poison an other, and he killeth him with a sword, yet the Commander is Accessory to this Murder. Da. So if B procureth one to kill A in the field, and he killeth him in a Church, or to kill him such a day, and he killeth him an other day, B. is Accessory to the kill: but if after such procurement, and before the execution there of, B. groweth penitent, & chargeth him not to commit the fact, and he notwithstanding performeth it, now B is not Accessory at all Blow. Com. 475. And if B command one to beat an other, and he upon that beateth him so as he dieth of it, B is Accessory to this Murder. 3. E. 3 Coro. Fitz. 314. If B commandeth A. to rob a Goldesmith of his plate as he rideth to Sturbridge fair, and he breaketh his house by night in Cheapefide, and robbeth him of his plate, B. is no Accessrie to this Burglary. ibidem. So is it if B command A. to burn the house of C & he burneth the house of D then B is no Accessory to the burning. But if he had burned the house of C. & by that fire the house of D had been burned also, then were B. Accessory to that burning of the house of B. because that burning followed of the fire which was kindled by his commandment. ibidm. To make receeivers conorters & aiders of Fe lonies, after the fact commtted to be offenders and Accessories: It is requsite (saith M. Stamf F. 41.) that they have knowledge of the felony done, and it must be with an evil intent, for if he aid him by his good word and suit for his deliverance, or writeth in his behalf for that purpose, he shall not be accounted an Accessory, 26 AiT. pl. 47. If a man do give a morfall wound to an other upon the first day of Augusft, and a third person (knowing of the wound) receiveth him two days together, and then he departeth, and after he that was hurt, dieth upon the tenth day of August, this Keceipt maketh him no Accessory, for all the time of the Receipt it was no slonie: But other wise it is, if he had received him continually, till the death and after Dalison. If a man pursue and take a Felon which hath stlen his goods, and he taketh his goods from him, and then suffereth him to go at large this maketh him no Acccssorie. But if he agree with him, and take money of him, to the end that he shall not give evidence againtnst him, then is he an Accessory to that Felony, by the opinion of justice Hales (M, 6. E. 6.) because it is a comforting of him. A wife may be Accessrie to a felony with out her husband, by recciving Felons into the house the husband not knowing of it, or wayving the house to soon as he knoweth of it. 15. E. 2. Coron. Fitzh. 383. But the wife shall not be accounted Accessory to the felony of her husband, by comforting him, etc. neither is she bound to discover him, Britton. F. 47. But now to reture to Baylement. He which (within the year) is acquitted of murder or manslaughter at the Queen's suit, must be remitted to prison or let to Mainprize, until the end of the year, and the party grieved may in that mean time commence the Appeal. 3. H. 7-ca. I. Further, me thinketh that I may set down this as a rule (even at the common law) conerning Bailements. That justices of the peace can not meddle with bailment of any prisoner, except he be prisoner for such cause, as whereof the justices of the peace be competent judges, Which also was the cause that one justice of the Peace by force of the Commission only could not that have bailed suspects of Felony, before that they were indicted thereof (as I fold you,) For out of their Sessions, and till indictment, they toere no judges of the master. And on the other side, it sémeth that two justices of the peace (the one of them being of the Quorum) may (out of the Sessions) bail such as come into prison by the process of the Sessions made upon penal laws, not forbidding bail, because they be competent judges of all those matters, insomuch as two such justices may hear & determine them. Sundry doubts (I confess) may be made concerning the busiesse of Bail, which I am not able to dissolve, & therefore am not much willing to move. Dnely this I will say for all, that it becometh justices of the Pear to be berry circumspect in granting Bail, both for fear of wrong by denying it to him that is rcple visable, and for fear of danger to the service itself by giving it where it is not grantable. And therefore I adnise them, to consider strst, whether the power of Bail (when it is required) be not take from them by some of these former pats: & then, whether that particular statute itself against which the prisoner is charged to offend) Do not spesally prohibit the same: fbr you sall mé meet with many statutes, which do not only take bail from the offenders against them, wpon their solemn conviction after judgemcnt, but also upon the Record of some one or justices of the Peace, by exammaion, proof by witnesles, or such other trial had before them. for example, take a few of each kind, seeing it would prove froublesom to rehearse the all. 1. He that is conutcttctc before the justices of the Peace, upon the sfatut of Liverices, thall be committied to prison for one whole year without Bail or Mainprize. 8. H. 6. C. 4. Liverics. 2. He that is convicted before them, for abusing a licence of transporting bictuall, shall like wife be committcd by them, and shall remain there a whole year without Bail, or Mainpnse. 1. & 2. Phil. Mar. ca 5. Licence to transport. 3. He the is convicted before them for offciding the sfatute made against forstalling, etc. shall be committed to the jail for two months without Bail or Mainprize. 5. E. 5. c. 14. Forstalling 4. And be that is convicted before them for offence against the statute of Mustcrs shall be awarded to eu roman in p●ison without Bail or Mainprize, till he have paited the forfeiture, 4. &. 5 phil & Mar. ca 3. Mustens● 1. Again if any one justice of the Peace shall find or know any to have exercised any bnlawful games, he may commit him without Bail or Mainprize, till he will become bound no more to use unlalniful games. 33- H. 8. ca 9 Gamer● 2. ●o, he that is convicted before two justices of the peace to have refused to srue for such wages as is by order appointed, shall remain in prison wout Bail or Mainprize, till he will be bound to serve accordingly. 5. El. ca 4. Seruaune. 3. He that is committed by two justices of the Peace for keeping a common Alehouse, of his own audoritie, shall remain in prison three days, & without bail or mainprize. 6. E. 6. ca 25. Alehouse 4. And the reputed father or mother of a Bastard child, that will not perform the order set down by two justices of the peace thereto authorised, shall be committed, and shall remain in prison without bail or main prize, till he or she will be bound, &. c. 18. El. c. 3. Bastard Nów (for an end of bailment) I will show you one hiforme of a Bail, and an other of a Liberate. Memor andum, qùod decimo die mensis Octobris, Annoregni etc. coram nobis G. M. & W. L. duobus justiciariorum etc. assignatorum, venerunt A. B. & C. D. de E. in dicte comitatu Yeomen, & ceperunt in balliù F. G. etc. labourer, (captum, & detentù in prisona. pro suspicione Cuiusdam felonia, éTC) usque ad proximam generalem Gaolae deliberationem in comittatu praedicto tenendam: Et assump serunt super super se, scilicet quilibet corum sub poena, 20. lib. de bonis et catallis, terries et tenementis corum et curuslibet corums ad opus dictae D. Reginae Levandarums, si pradictus F. G. ad candem proximam Gaols deliberationem personaliter non comparebit coram justiciarijs dicta Dominae Reginae ad dictam Gaolam deliberandam assignatis, adrespondendum dict● Domimae Reginae tunc & ibidem de et super omnibus quaeilli obijcientur. Datum sub sigillis nostris, die et anno supradictis. The Bail GEORGE M. and W. L. two of the justices of etc. The Liberate. To the keeper of her majesties prison in in Maydstone, etc. greeting. Forasmuch as F. G. etc. Labourer, hath before us found sufficient mainerprise to appear before the justices of jail delivery at the next general jail delivery to be holden in the said County, there to answer to such things as shall be then on the behalf of our said Sovereign Lady objected against him, and namely to the felonious talking of to sheep (for the suspicion whereof he was taken & committed; to your said jail) we command you on the behalf of our said Sovereign Lady, that (if the said F. G do remain in your said jail for the said cause, & for none other) than you forbear to grieve or detain him any longer, but that you deliver him thence and suffer him to go at large, and that upon the pain that will fall thereon. given at Ightham aforesaid, under our Seals, this tenth day of October, etc. The authority of some two justices of the Peace goeth yet further: for the common manner is, that two justices of the Peace (the one of them being of the Quorum) do join in granting suerite for the good a bearing: but thereof I have already spoken my mind. The good Abearing Two justices of the Peace (the one being of the Quorum) may prohibit & remove common Aleselling, & may also allow the same, taking bond with surety by Recongnusance for good rule to be kept in such Ale. house etc., by their discretion. Alchouses And they may also commit & imprison for three days those that keep common Ale seling of their own heads, against prohibition, or without allowance thereof, and after take recognusance of them with two sureties that they shall keep none. 5. E. 6. ca 25. And hear, séeíing that the order of the Conditions of these bonds is partly refer red to discretion, I will (for the better bridling) of thes nurseries of naughtiness) leave with you that form of the first of them, which I have known practised by that Honourable justicer, the lord william Cobham, now Lord. Warden of the Five Ports. The Condition of this Recognusance is such, That whereas the withinbounden A. B. is admitted and allowed by the withinnamed Lord cobbam, and William Lambard (two of the Queen's majesties justices of the Peace within the County of Kent within written) to keep a common Alehouse or Tippling house, and to use common felling of Ale or Beer, only within the now house of him the said A. B. (and notelsewhere) situate in the High street of the Town of M. within written, and called the sign of the heart: If therefore, he the said A. B. during such time as he shall keep such common Alchouse there, shall not suffer any unlawful play, at the Tables, Dice, Cards, Tennis, bowls, Closh, Coites, Loggats, or other unlawful games to be used in his said house or in his garden, orchard, or other his, ground, or place: Nor dress, or causc, or suffer, to be dressed, any flesh to be eaten upon any day forbidden by the Laws or Statutes of this Realm of England: Nor wittingly and willingly admit, orreceive, into his said house or any part thereof, any person notoriously defamed of or for theft, incontinency, or drunkenness, or that shall be before hand notified to him the said A. B. by the Constable or Borsholder of M. aforesaid, for the time being, or by the Deputy of either of them, to be an unmeet person to be rcceived into a common Alehouse: Nor keep or lodge there, any strange person (above the space of one day and one night together) without notice thereof first given to the Confiable or Borsholder, or the Deputy of the one of them, there: And finally, if he the said A. B. during all the time that he shall keep common felling of Ale or Beer in the said house, shall and will there use and maintain good order and rule. That then this present Recognusance etc. or elf, etc. For, everls place is not meet: Two justices of the peace (to that the one Be of the Quorum) map (by examination, or inquiry) hear and determine the faults of head Dissicers in cities, Boroughs, and market lowness, that do not twice pearly view and examine weights, and Measures, and broke and burn the defedive: as also the defaults of Buyers and sellers by other meightes and measures than they ought to do, and may brake and burn the desective weights and measures, and amerce and fine the offenders by their discretion, and make process against them, as if they were indisted of Trespass against the peace. 11. H. 7. ca 4. & 12. H. 7. ca 5. weights & Measures Two such justices, may give licence to Fencers, Beareweards, Common players in Interludes, Minstrels, jugglers, peddlers, Tinkers, and Petiechapmen, to go abroad so as they shall not be taken as koges. 14. Eli zab. ca 5. peddlers, Tinkers, Fencers, Players etc. Suit may be commenced against a high Constable in the name of two of the next justifices of the Peace to the place (if it be out of city, Borough and loan corporate,) for not suing a negligent Collector of the money for the poor within the time limited by the Statute: and they shall every half years take the account of such Collector, and may take order with the Surplusage of such collection, and may also commit him to prison for refusing to account, or to bring in his surplusage contrary to the Statute 14. Elizab. cap. 5. poor Two justices of the Peace (the one being of the Quorum) may imprison such as do refuse to give towards the relief of the poor, or do discourage other to give. poor And the Bishop, or his chancellor, shall call the two Justices of the Peace next inhabiting to any Hospital, to assist them in taking the account of such as have had the collection of the revenues and profits of such Hospital, and they three may charge the accountant (under penalty to lose such sum of money as they shall think meet) to account, & not to delay it, and forth with to employ the Surplusage to the bse of the Hospital 14. Elizab. cap. 5. Hospital Two justices of Peace (the one being of the Quorum) in, or next to the limits where the parish church is, in which a Bastard child (left to the charge of the Parsh) shallbe borne, aught to take order by their discretion, as well for the relief of the Parish and the keeping of the child, as also for the punishment of the mother and reputed father thereof 18. Eli. ca 3. Barstard child Two justices of Peace (the one being of the Quorum) upon complaint by any competent judge of Tithes, for any misdemeanour of the defendant in a suit of Lithes', may cause him to be attached, or committed to ward, till he find surety unto them by Kecognusance to the King's use, to obey the Process and Sentence of that judge 27. H. 8. ca 20. Tithes And also upon complaint in writing by an Ecclesiastical judge that hath given definitive sentence in case of Lithes' (against one which wilfully refuseth to pay the Lithes', or sums of money so adjudged) two such justifices may cause the party to be attached, and committed to the next jail, till he find such surety as is aforesaid to perform that sentence 32. H. 8. ca 7. Two justices of Peace, dwelling next any City or Town, where any Ketaylour of cloth shall present unto them any defective cloth against this Statute being conferred with the Statute 4. & 5. Phil. & Mar. ca 5. shall cause the same to be cut into three equal parts, whereof the one to be to the Queen, the other to the Presentours, and the third to the justices themselves 5. Ed. 6. cap. 6. Cloth. No Fisherman shall be taken to serve as a Mariner by the Queen's Commission, but by the choice of two justices of the Peace adjoining to the place where he is to be taken 5. Elizab. ca 5. Fisherman Two justices of the Peace (not being of kindred, alliance, counsel, or see, to the Lord (or owner of a wood) appointed by the more part of the justices of Peace at their Sessions, upon complaint of the Lord made unto them, may divide & set out the fourth part of it, if the Lord and Commoners thereof (being first called before them) can not agree upon it. 35. H. 8. ca 17: & 13. Eliz. ca 25. Divide the fourth parts of a wood. Two justices of the Peace whereof the one to be of the Quorum (appointed by the Custos in the Counrotulorum or by the Eldest of the Quorum in his absence) are to ouversée & control the Sheriffs' books and amercements, & the estreits of the said amercements, are to be made by Indenture between them and the Sheriff or undershirife, & to be sealed with their seals; And they may upon suggestion make process as in an action of Trespass against the offenders & against the Statute to answer before them. 11. H. 7. ca 15. Amercern●●● in tie county Court. And here also, is place for those private Acts, wherein any power is given to two justices of the Peace, as, 5. E. 6. ca 24. For the making of Coverlets & Dernikes, in Norwich. Norwich. 35. H. 8. ca II. Forwages of the knights of Parle met. II. H. 7. ca 9 For recognusances to be taken of Lessces in Northumberland. Wales Northumberland. Universities. 2. 8. c. 3. Phil. & Mar. ca 15: & 13. Elizab. Cap. 21. For prohibition of purueiances, within five miles of either of the universities. 14. H. 8. ca 6. & 26. H. ca 7. For laying out new high ways, in Kent and Sussex. Kent, & Sussex. Cardiff 23. Eliz. ca II. For the repairing of Cardiff bridge. What things, three, or more, justices of the Peace may do out of the Sessions. CAP. XXIIII THe Authority as well of any two justices of the Peace generally, as of some certain two suffices specially, being thus at some length unfolded, it remaineth that (for an end) we speak somewhat of thréee, and the greater number. Three justices of the Peace (one of them being of the Quorum) may discharge out of prison, any person committed thither for his offence in not declaring to a justice (within 24. hours) that he was moved to join in any unlawful Assembly contrary to the statnte. 1. Mar. 1. Parl. ca 12 & 1. Eliz. ca 17. Unlawful Assembly It is requisite that the Certisicat (that is to be made to the head Officer of a City or Town corporate, where a child is to be put Apprentice to a Merchant, Hercer Draper, Botosmith, iron-monger, Imbrode, dearer or Clothier, that the father or mother of such child may dispend forty shillings fréehold by year) be bunder the hands and seals of three justices of the Peace where the lands lie. 5. Eliz. ca 4. Certify for an Apretile. Three justices of the Peace (the one of the being of the Quorum) may with the Surplusage of the collections and forfeitures, by their discretions settle the Koges (borne, or abiding for the most part of three years, in that Shire) to work, there to be holden to work by overfeers, 14. Eliz. ca 5. Rogues. The Bishop & his chancellor, and three such justices of the Peace, have power to eramine, how money or other relief (appointed by King Henry the eight, or any other, to the bse of the poor, or of amending of Highways or Bridges) is bestowed, and to call to account the deteiners thereof, etc. 14. Elizab. cap. 5. Money give to the poor, high ways, or bridges. If seemeth, that three such justices of the Peace may out of the Sessions take information and accusation by the oaths of two honest persons, against such as shall deprave the Sacrament of the body and blood of our Lord and Saviour lesus christ, against the Statute: and cramine them, what other witnesses were then by: and to bind them all by Kecognusance, to give in evidenee at the day of trial. 1. E. 6. ca 1. but inquire of this matter. Deprave the Sacrame of the Lords supper. Four justices of the Peace (where of one to be of the Quorum) may (where a decayed Bridge is, & where it can not be proved who, or what lands, be chargeable to the repairing thereof) far the inhabitants, make collectors, and appoint overseers, for the amendment of the same etc. 22. H. 8. ca 5. Four ●●●ccs. Bridges. Sire justices of the Peace, may in sundry shires take order for common gaols, whereof the Shirite shall have the custody, and to the which murderers & felons etc. shall be sent: and may be & perform divers incidentes thereto by the Statutes. 23. H. 8. ca 2: & 13 Eliz. ca 25. Six jufuo. jail. Sire justices of the Peace (two of the being of the Quorum) may for a whole year after the expiration of any Commission of Sewers, cxecute the laws of the Commissioners of Sewers, unless that a new Commission of Sewers be published within the year. 13. El. etc. 9 Sewers. To this Title also, do these particular Statutes belong. 13. El. ca 23: & 23. El. ca 12. For paving the street by Alegate. 34. H. 8. ca For establishing justices of the Peace in Wales etc. 27. H. 8. c. 5 For justices of the Peace in Cheshire, etc. 23. H. 8. ca 2: & 5. Eliz. ca 24: & 13. Eliz. ca 25. For the appointing & building of gaols, in sundry shires. 18. El. ca 20. For amending of Bridges within five milis of Oxford. 18. Eliz. ca 10. For the reparation of the ferry called the King's ferry in the Isle of Shepey in Kent. Of the reward, & punishment, of justices of the Peace, for things done, not done, or misledone, out of the Sessions of the Peace. CAP. XXV. OF Reward and Punishmet (as said Soion) all Common weals do consist: for as the care of equity and justice waxeth cold, unless there be reward ready for virtue: So the negligence of evil men must needs be corrected by severitic and chastisement of pains. And therefore, albeit the meaning of our parliaments hath always been, that choice should be made of such persons for this Office of the Peace, as needed no reward for their travail in that behalf, yet to the ends that they should with the more alacrity and cheerfulness proceed in their affairs, they do now and then cast them a trifle, rather to let them know that they do behold their well doing, than that they ffande in need of any recompense. Reward Hereupon every justice of Peace, stting in ececution of the Statute of Labourers & Servants, shall have five shillings the day (for three days together) out of the forfeitures that grow by the same Statute 5. Eliz ca 4. Servants. And if any persons (commanded by two justices, of Peace to appear, to be made an overseer to see Statute of Cloth making kept) do (without reasonable excuse) refuse to come and to take upon him that office, he is to forfeit for every such refusal forty fhillings: and thereof those justices are appointed to have the one half by the, Statute, 3. E., 6. ca 2. Overseers of Cloth. Those two justices of Peace also heart adjoining, to whom any Cloth (faulty against the statutes) shall be presented, may cut the same into three equal pieces, and shall have to themselves the one of the same, by the Ad 5. E. 6. ca 6: & 4. E. 5: Phil. & Mar. ca 5. Faulty cloth. And every justice of the Peace, is allowed to retain to his own bse, the one moiety of all strangers goods, calling them selucs Egyptians that he shall lawfully seize, by ver few of the Statute. 22, H. 8. ca 10. Egyptians. The justice, or justices of the Peace, that do join with Clerk of the Peace, in taking & Conusance of an Indenture of bargain & sale of land to be Enrolled, shall have ry. ●. therefore, if the land exceed not in value ●l. ●. by the year, and y. ●. vj. ●. if it do excéd that value, by the Statute 27. H. 8. ca 16. Inrolloment of bargaune and sale. The Queen's highness shall bear the costs that the justices of Peace shall sustain in the cxecution of the Statute of Riots, ●. made 13. H. 4. ca 7: by 2. H. 5. cap. 8. Riot. And the justices of the Peace shall make execution of ● Statute of forcible Cntries, at the costs & charges of the party grieved. 3 H. 6 ca 9 Forcible lourd And twelve pence is given to the two justices of Peace for every recognisance taking, of him that is allowed to képe a common Alehouse, by Statute 5. E. 6. ca 25. Alchouse. On the other side also, the Statutes do now and then correct the dullness of these justices with some strokes of the rod or spur. Punishmét. And therefore even at the ●rst it was ordained, that if the Wardens of the Peace did not look unto the execution of the Statute upon such as should ride or go armed in any place putting the Country in fear, than the justices assigned by the king should inquire of their default, and punish them, Star. North. 2. E. 3. cap. 3 Ride armed . And the Statute of Riots etc. (13. H. 4. c. 7) layeth C. it. forfeiture upon those Justices of Peace that shall dwell nighest to the Riot, etc. if they do not put that Statute in execution. Riots. And those justices of the Peace, and Sheriff, or undersheriff, which (in sending their Certificate to the Queen & her counsel, concerning such a Riot) do not with all certify the names of the mainteinors & embraceors in that behalf, with their misdemeanours that they know, shall every of them forfeit twenty pounds, bnlesse they have reasonable excuse for not certifying the same. 19 H. 7. ca 13. Certificate. That justice of the Peace which seizeth the goods of any Egyptians, and doth not incontinently restore such part thereof as shall be proved before him, to have been craftily or feloniously taken, shall forfeit the double thereof, to such prouer. 22, H. 8. cap. 10. Egyptians. That justice of Peace which doth not (upon request made) give attendance upon the Queencs Lieutenant of the Shire, for the suppreffion of any Rebellion, or unlawful assmblie, shall suffer a years imprisonment, unless there be cause of reasonable excuse. 1. Mar. Parl. 1. cap. 12: & 1. Elizab. cap. 17. Rebellious assembly. If any justice of Peace shall be proved to be in dcfault, about the execution of the Act of the Poor, by two sufficient witreffes before the justices of Assize, at their next general jail delivery, he shall lose o. tt. 14. Eli. cap. 5 Poorch That next justice of Peace which faileth in presenting the name of him that preseteth it to him, according to the Statute of shooting in Crossbows, or Gunncs, shall forfeit ● shillings. 2. E. 6. ca 14. Guns and Crossbows. But inquire of the continuance of this, as before in the 21. Chapter. That justice of Peace, which doth not (within fourteen days, after matter vtt● red to him concerning any Agneus Dei, etc.) signify the same to some one of the Queen's privy Counsel, shall incur the pains of the Act. 16. R. 2 of. Praemunire 13. Eli. ca 2. Agnils Dei. That justice of the Peace, which (having taken any examination concerning Plaints in the Sheriffs' Court) doth not Certify the same into the Escheaquer within one quarter of a year after, shall lose forty sillings for his default, 11. H. 7 qa. 15. Certify in to the Escheaquer. Those justices of the Peace, which do grant any Bail contrary to the Law, or do not certify the Bail & examination of the Felony, according to these Statutes, shall pay such Fine, as the justices of jail deliveris shall think meet 1. & 2. Phil. & Mar. cap:. 13: & 2. & 3. Phil. & Mar. ca 10. Bail and scrisie. Every justice of Peace, the (dwelling with in 7. miles London) doth not (upon request) assist the College of Physicians of London in the execution of the Statute. 32. H. 8. ca 8 shall be punished, as one that runnth in contept of the Queen. 1. Mar. ca 9 Physician. And how that justice of the Peace shall be punished, that shall take upon him the office, not having twenty pounds in lands, it hath lands. been showed already. ca 6. Not. XX. pounds in lands. THE EPILOGUE. THUS much (so shortly as I could) I thought fit to say concerning the audoritie of justices of the Peace, without the Sessions: wherein I have rather sought to admonish them (by a sleight view and rehearsal, of the most part) what things they have to handle, than laboured to accomplish them (with full skill) how to administer & execute them all. The Epilogue. Neither doth that knowledge lie in my power, but in, but in their own diligence & must therefore be won by a continual study and painful meditation of the Statutes at large: towards their help and furtherance wherein, I have entreated a godly and learned Gentleman (M. john Tyndall, a friend and fellow of mine in Lincoln's Inn) to take the pains to cull out all those Statutes by themselves which are now in force, and wherewithal justices of the Peace have to deal: not altogether beheading the of their preambles: For any whit curfailing the: the of their words: For other wise dismembering them, or scattering their parts in sunder: But laying forth bodies of them whole and at large, under their proper Titles, together with the material parts of all their preambles, and not without any of their provisoes: Eherewithal amending the corruptions of the English translation out of yelatine & french: And finally, adding unto the (where need shall be) some notes of helpful direction: which things no man (that I know) hath hitherto assayed. And this shall shortly (I trust) come to light, either in a several Volume by itself, or so marked in M. Rastals' Abridgement, that every man (that will) may easisly find much good by it. THE second BOOK, Entreating of the Sessions of the Peace, and of things incident thereunto. THE PROHEME. IT may peradventure seem, that having already stood long in matters that were of the less importance, and such as might be dispatched at home sine strepitu, I will be now both long and tedious when I begin with those of greater weight and which does require the solemn Bench. But, as at the first I thought it téte to help most, where most néde was, I mean, wherer one or two justices (pressted with the necessity of time, and destitute of the assistance of their learned companions) were to administer office alone: So now, knowing that at the Sessions of the Peace there be commonly many justices in number, and amongst them sundry so well instructed in law, as in being too busic with that which belongeth thereto, I shall (as the saying is) but set a candle in the Sun shine, and rather bewray want in myself than bring help or light unto them. I purpose to run over this residue more swiftly, except it be in a few places, where either the profit, or necessity, (or both) of the matters themselves shall beg licence and pardon for me. The description of the Sessions of the Peace. CAP. I. AS a man that hath reseaed hurt in his body by a stroke where of he bleedeth freshly, will be contented for the present to admit the help of any mean leech or Surgeon (coming next to hand) for the staunching of his blood, & binding up of the wound, and yet would more gladly have used the conference of divers expert Surgeons for doing the same if the danger of the hurt would have granted the time that will be lost in calling them together: So also the common council of this Realm, finding that the bedie of it may be deeply wounded in some one member, and perceiving that some evils must be resisted at the very first, (lest otherwise they grow past help, and ware incurable) hath many times thought it good to commit to one, or to a few justices of the Peace (for that they be ready, and at hand) the sfopping of the blood (as it were) and first dressing of the wound, by repressing of force, and other outrages, that do suddenly arise: and hath yet nevertheless (when as the time and matter will permit) politicly established an assembly, and conference of all the justice at certain timer in full Court, and open Session. And as it is true, thatif the publiqus peace should not be preserved by taking of Surety, before it be broken, If such as do violate the common tranquilitises should not be committed to prison, when they have broken it, If seditious tale-bearers (the sowers of Kebellion) should not be snapped up and restrained, If finally riotous assemblies should not be dispersed, and forcible inunasions withstood and removed, the hurt body would bleed to death, and too late and in bane would it be to summon a session for remedy. So when the bridele is once cast upon the head of the offender, then, and not before is the matter readis for the sitter. And great and many are the profits, that would follow of these Sessions, if they were often kept, and duly ordered. I will for this time call a Session: of the Peace An assembly, of any two (or more) justices of the Peace (one of them being of the Quorum) at a certain day (and place within the limits of their Commission) appointed, to inquire by a juric, or otherwise, to take knowledge, and thereupon to proceedc to hear 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 meetings, that are only for inquiry, in se much as to inquire, and not to hear and determine, is but a half doing, and not worthy the name of a Session of the Peace. It shutteth out also, such assemblics as do consist of two justices of the Peace, meeting only to inquire, hear, and determine of a Riot, by virtue of fhe Statute 13. H. 4. for that may they do (as also the former) though neither of them be of the Quorum. So that it is but a particular service laid upon two justices and the Sheriff, by this Statute, and the Record thereof shall not (as I think) remain amongst the Recorder Of the Sessions Of the Peace, as hath been said already. And therefore the assembly that I mean, is a meeting of such justices for the execution of their general authority: and albeit that happily some one matter be the motive and thief cause of their coming together, yet if they deal with that and others (witthin their Commission and charge) let it on God's name pass for a Session of the Peace according to my meaning. These Sessions of the Peace then, bés grounded, chiefly upon the words of the third Assignavimus in the Commission, the which (being, duos vestrum, quoruus aliqucm, etc.) do very necessarily require the presence of one of the Quorum: for the words of the second Assignavimus, do give no power to hear and to determine, but only to make inquiry. Which three things, namely, to Inquire, Hear, and Determine, do (in effect) comprehends whatatsoever belongeth to these Sessions: So that every thing, whereof I shall hereafter entreat, will concern, either the Information of the justices by inquiry, and other meet mean: Dr the Hearing and trial of the cause: Dr the judgement and execution (which is the determining) given and done dponit. A partition of that which followeth in this book. And therefore, in this path (God willing) will I freade, and by it you shall trars me to the end. Who shall appoint the Sessions of the Peace: and how: and where. CAP. two THe justices of the Peace, do (at their Sessions) take knowledge of causes with in their jurisdiction, either by the Doth Of lnquirours, or by the presentment or declaration of other men: And this inquiry is first prepared, by the appearance of the Officers and Country, & by the Articles given in charge: and then performed, by the presentment (or Jnditement) of them that had the charge to make it. The usual manner of calling the Officers and County together for this service, is by a precept to the Sheriff, wherein both the disposition of the justices is notified for) the holding of a Session, and service and attendance of those others is cornmaunded to be thereat with them, which they be well warranted to direct unto him, by the last Assignavimus of theic commission, and the Mandavimus that followeth thereupon. The Form thereof hath been like this: Thomas Randolphe, & Thomas Wotton, duo justiciarierum Do. Reg. ad pacem in Comitaiu Kancia conseruandam, necnon ad diversa, felonias, transgrossiones, & alia malefacta in dicto Comitatu perpetrata, audienda & terminanda assignatorum, Vicecomiti eiusdem Comitatus, Salutem: Ex part dictae Dominae Reginae tibi praecipimus, quod non omittas propter aliquam libertatem in Balliva tua quin came ingrediaris, & venire facias coram nobis vel socijs mostris justiciarijs pacis &. (tali die etc.) proximè futuro apud Maidstone in Comitatu pradicto, 24. liberos & legales homines de quolibet hundrede in Balliva tua, tam infra libertates quàm extra, ad faciendum & exequendum tunc & ibidem ea qua ex part dictae Deminae Reginae eis iniungentur: Scire facias etiam omnibus Coronatoribus Comitatus tui, Seveschallis Constabularijs, Subconstabularijs, & Ballivis, infra Hundreda praedicta, quod sint tumc ibi ad faciedum & perimplendum ea qua ex part Dicta Dominae Reginae eis tunc & ibidem smiliter pracipientur: Et tu ipse tunc sis ibidem ad faciendum & exercendum ea quao ad officium tuum pertinent, & habeas ibi tunc nomina juratorum, Cosronatorum, Seneschallorum, Constabularierum, & Ballivorum praedictorum, & hoc praceptum. Precept, to summon the Sessions. Dat. fsub sigillis nostris apud Boughton Maleherbe in comitatu pradicto. 16. die Octobris, Annoregni dicta Domina nostre Reginoe Eliz. dei gratia etc. 23. This precept may be made by any two justices of the Peace, so that the one of them be of the Quorum for two such may hold a Session of the Peace, as it doth plainly appear by the Commission: and therefore (as Master marrow saith) it sufficeth not to have it run under the name of the Custos Rotulorum alone, seeing that he hath no more authority in this behalf, than one of his fellows hath: for the worus of the said Mandavimus in the Commission to the Sheriff be, Coram vobis, sen aliquibus vostrum, venire faciat, tot, & tales etc. Ypa, if two such justica make a precept for a Session of the Peace, all their fellow justices, can not discharge it by their Supersedeas, but a Supersdeas out of the Chaunccrie will discharge it, saith Fitzherberf. And if one justice of the Peace alone would take upon him to hold a Session of the Peace that was already summoned by such two Ius; tices, and will make the Style of the Session in the names of him slefe and the other justice, all pray sentmentes so taken before him may be avoided: if the Sessions be in truth holden by two suel sufficient justices only, and the Style (or Title) thereof be made in the names of three, than all the presentments before them shall stand good. For it will not help the party to say, that one of fhe three was not there, when it shall appear that was of them (the one being of the Quorum) were present, which will suffice. Marr. Touching the time of holding the Session of the Peace, I will forbear to speak, till I shall come to divide the Sessions. The time. But the place of howing them is arbi, trable, and at the pleasure of the justices themselves so that it be meet for access: And although the precept do appoint the Session to be holden in some one Eowne by name, yet may the jusces keep it inany other Eowue, and all the presentments shall be good that shall be taken where they hold it: But, no amerciament, can be fet upon any man for his default of apparanee there, because he had no warning of it, faith Marr. The place. So if 〈◊〉 judices make a precept for a Session to be holden in dwne Eowne, and 〈◊〉 other justices should make an other Precept for an other Session to be holden at an other Town (or in an other part of the same Town) the same day: then presentments taken before either of them shall be good. Marr. And then also it seemeth, that he which serveth at the one Session, as a juror, or Officer, shall be excused for his default at the other, because they be both the Queencs Courts and of equal authority. And albeit that these Sessìons be commonly and most orderly, summoned by a Precept in writing, yet is not altogether of necesstie to have it so to make a lawful Session: for if 〈◊〉 such justices of the Peace do get men to serve, and do hold a Session without any precept before directed, all Presentmentes made before them by twelve men shall be of force in Law: But there again, no man shall lose any thing for his default, by cause none had notice of their sitting, Marr. What persons ought to appear at these Sessions, & therein of the Custos Rotulorum the Records of the Sessions, and the Clerk of the Peace, and how the jurors ought to be qualified and ordered. CAP. III. FOr the better preparation towards this inquiry, let us peruse the persons, that are to attend and do service at the Sessions. The justices of the Peace be so necessary, as without theme (though all others should appear) no Session can be kept: and, yet if any of them be absent, their fellow justices cannot amerce the, as the justices of Assize may do for their absence at the Gaoledeliverie: for, Inter paresnon est potestas and the authority of all the justices of the peace at the Sessions is equal, so that like power hath) he which is not of the Quorum, with him that is, except it be in special cases set forth in the Commission and Statutes. And therefore, it was holden (3. H. 7. Fitzh. Tit. justice deal Peace. 3) that, if One which is not of the Quorum, will be so bold as to rebuke one that is of the Quorum he & his companions may not commit him to prison for it. The juftices. The Recognusors' that stand bound to the keeping of the Peace, and to appear at the Sesions and such like, be commonly tied to the Quarter Sessions, whereunto I am not yet come: And those prisoners that are sent by justices of the Peace for felony or manslaughter, or suspicion thereof, or be let to Bail for Mainprize upon any such offence, be reserved till the jail delivery, wherewith I have not to do: The rest of that kind, and the Rogues etc., may be brought forth at every Sessions of the peace. The Recognusors'. The Prisoners. But two sorts of men there are, that own their Drdinarie attendance at these Sessions, that is to say the Officers (or Ministers) of the Court, and the jurors of the Country. Amongst the Officers, the Custos Rotulorun hath worthily the first place, both for that he is always a justice of the Quorum in the commission, and amongst them of the Quorum, a man (for the most part) especially picked out for wisdom, countenance, and credit: And yet in this behalf he beareth the person of an Officer; and aught to attend: for the words in the Commission be to him by name, Quod ad dies & loca predicta brenia, prac●pta, processus, & indictamenta praedicta coram vobis & dictis soci●s venire faciatis. The ● Rotulorum And as his berry name showeth, he hath the custody of the Rolls, (or Records of the Sessions of the Peace: and whether the custody of the Commission of the Peace itself do pertain to him alone, it hath been made some question: For M. marrow saith, that seeing the other justices may hold a Session without him, it is meet they should then have the Commission with them. Who shall Keep the Commission of the Peace But Chocke in the Book (9 E. 4. 2.) holdeth, that a justics of the Peace (in making any justification by virtue of his Dffice) nédeth not to the we the Commifsion of the Peace, because (saith he) the keeping thereof belongeth to the Custos Rotulorum; and for the same cause also, the Bailie of a justice of the Peace shall not be driven to she we the Commission, as it seemeth, 20. H. 7. 7. And truly, since it is such a thing, as can remain but in the hands of one at once, it seemeth most reasonable, that he which is put in trust with the rest of the Records, should be credited with the custody of the Commission also. But under the name of the Records of Sessions of the Peace, I do not comprehend all manner of records concerning the Peace, but those only which ought to be at the Sessions of the peace: as Bills, Plaints, Information, Inditemets, Presentments, the Roolles of Processcs, Trials, judgements, and Executions, and all other the Acts, of the Sessions of the Peace themselves: And furthermore, the Peace & good Abearing, Recognusances concerning Felones, and Alehouse képers, and such like as aught to be certified or brought to the Selssions of the Peace, must be numbered amongst the Records of the Sessions of the Peace: For of all these there may be use at the Sessions, and therefore the Custos Rotulorum, or some for him, aught to be ready to show them. The Records of the peace. And although it were before time at the liberty of a justice of the Peace, to certify a recognisance of the Peace to the Custos Rotulorum, (as you may see 2. H. 7. ●.) Yet now, by the Statute (3. H. 7. cap. 1.) he ought to certify, send, or bring it to the next Sessions of the Peace, that the party may be called, and to the end 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 Surety of the Peace, special Records for convictions of forcible cntries, Riots, & such like, as he made out of the Sessions of the Peace by particular justices; & be to remain with themselves, & not appointed to be certified thither, I can not reckon them in the number of the Records of the Sessions of the Peace: no more than I can well do the Inrolments of bargains and sales, and such other Records lying in the charge of the Custos Rot●lorum; or Clerk of the Peace. But M. Brooke (Tit. Commission. 11.) addeth, that the Records of the justices of the jail Delivery do remain amongst the Records of the Peace also: ho wheit, I think he meant notit of all the Records of the jail delivery: for, as the justices of jail delivery have their proper Clerk, which maketh up, & keepeth the Records of things determined by that Commission: so the same justices (being withal justices of Pear) do leave with the Clerk of the Peace, Indiremets, & such causes of the Peace, as be not determined, but hung in mocesse, to the end offenders may be more spéelig; vilely justiced. And it appeareth 13. H. 4. 10. that Hanford justice of jail delivery at his departure called the Clerk of the Peace, & willed him to take the name of a prisoner that had been sent thither for Felony, without any sufficient proof, & to cause it to be inquired of at the next Sessions of the Peace. The Office of the Custos Retulorum was of ancient time given by the discretion of the Lord chancellor, until that (about the latter and of the reign of king H the 8.) sundry persons (no less unworthy to occupy the Office, than greedy to have the place) did by labour and friendship obtain at that king's hands, grants of the same by his Letters Patents, for term of their lives: by means whereof, so many cuilles did shortly ensue, both to the hindrance of justice, and to the disherison of the King's subjects, that the last Parliament of his reign, viz. 37. H. 8. cap. 1. did somewhat restrain that course: and though it did ordain, that none should thenceforth be appointed custos Rotulorum in any Shire (a few place of Privilege only excepted) without a Bill signed with the King's hand, yet it took further order, that the same Bill assigned, should be but as a Warrant to the Lord chancellor to assign in the Commissions of the Peace, the same person to be Custos Rotulorum, only until the King should (by an other Bill, signed with his hand) make appointment of another for the same Office. The gift of the Office of the Custos Rotulorun. But neither this ordinance had any long life: for within a feme years after, it was thought so prejudicial to the power of the Lord chancellor, and so troublesomea matter to sue to the King for bills so signed, that by the Parliament (3. E. 6. ca 1.) the Lord Chancellor was wholly restored to his ancient authority in naming the Custos Rotulorum again (except in such privileged places) without expecting any such Bill: and, that the Custos appointed by the discretion of the Lord chancellor should enjoy the same Office to be occupied by himself, or his sufficient Deputy, in as ample manner, as if that Statute (37. H. 8. cap. 1.) had never been made. The Clerk of the Peace oweth his aftendance at these Sessions also: for he rest death the Inditements, & se●ueth the Court: he enroleth the Acts of the Sessions, and braweth the Process. Clerk of the Peace. He also must deliver Letters to such as be acquitted of felony, and will beg for their fees 22. H. 8. cap. 12. He must record the burning of Rogues thorough the ears 18. Eliz. ca 3. and must like wise record the Proclamations of Rates for servants wages, and enroll the discharge of Apprentices 5. Eliza. ca 4. He is appointed to keep the counterpane of the Indenture of Armour 4. & 5. Phil. & Mar. cap. 2. He keepeth the Register Book of licences given to Badgers and Laders of corn, 5. Eliz. cap. 12. and of those that are licensed to shoot in Guns 2. E. 6. cap. 14. And he is bound (under the pain of xl. shillings) to certify into the King's Bench, transcripts of Inditements, Vtlawries, Attainders, and Convictions, had before the justices of the Peace within the time limited by the Statute 34. H. 8. cap. 14. All which things he can not do, if he he present: so that he is an Officer to this Court, and the Clerk of the justices, as the Statute 12. R. 2. cap. 10. nameth him, and not (as M. Marrow thought) the Clerk of the Custos Rotulorum only. And you may read (2. H. 7. 1.) that if a Recognusance of the Peace be brought in to the Custos Rotulorun, and the party grieved will not sue forward, than the Clerk of the Peace, who is the Clerk and Attornie of the King (saith that Book) shall call upon it for the King's advantage: and I am sure, that the said Statute (37. H. 8. cap. 1.) ralleth his place an Office also. Howbeit the nomination and appointmet of him hath long time belonged to the Custos Rotulorum, and he is to enjoy his Dffice so long as the Custos Rotulorum keepeth his place, and may exercise it by himself, or by a Deputy sufficiently instructed in the Law, and admitted by the Custos Rotulorum. The nomination of the Clerk of the Peace And this Office was also (for a time) given by the king's Letters Patents for termc of life, as that of the Custos Rotulorum was, until the said Statute 37. H. 8. cap. 1. recontinud the ancient order of giving it to the Custos Rotulorum only. Furthermore, the Coroners, as the common form of the Precept showeth, and the Statute (27. H. 8. cap. 5.) presumeth, aught to be present at the Sessions: But yet that is not, for to certify their Inquisitions, for that ought (by 1. & 2. Phil. & mar. cap. 12.) to be done at the general jail delivery: nor yet to receive any Approvour, for neither that belongeth to the justices of Peace 9 H. 4. 1. but it is only (saith M. Marrow) because the Coroners be parties to the Exigents, and be judges of the Vtlawries: Howbeit, they are (besides that) conservators of the Peace, and may (in cases) commit men to prison, and therefore aught to be at the Sessions, to object against them. The Corosars. The Sheriff also, aught to attend at these Sessions, for the double duty that he beareth: the one, as Sheriff to return the Precept, to take the charge of Prisoners, and to serve the court otherwise: as he hath in charge by the Mandavimus that is métioned in the Commission to have been sent unto him: the other, because he also hath Care of the the Peace. The Sheriff. The bailiffs of Franchises, and the Constables of Hundreds, are to serve also, the one as Ministers, & the other as jurors, & therefore aught to give their attendance. bailiffs and Constables. And every of these (except it be the Custos Rotulorum, for thereof I doubt) may without controversy be amerced, if they make default: But the ordinary oweth not his attendance here at any Sessions of the Peace, as he doth at the general jail Dehuerie, in the opinion of M. Marrow. The Ordinary. Indeed, he is not warned by the common Precept, and therefore cannot so conveniently take knowledge of the Sessions of the Peace. Howbeit, if he come, I think that he ought to serve, when he shall be called. But especially there ought to appears such jurors as be returned by the Shirite, and warned by his Bailiffs, whether it be for Enquiri or trial. jurors for inquiry and tnall. And in this behalf, both the Commission, the common form of the Precept, and the Law itself (11. H. 4. cap. 9) willeth, that they should be, probi & legales homines: for if any of them be discredited in Law, as by Attainder in Conspiracy, Attaint, decies tantum, Subornation of Perjury, or such like, they be not Probi, and their presentment is void by it, unless there be twelve besides them that are not so blemished. Again, if they be outlawed, abjured, condemned in a Praemunire, or attainted of treason, felony, or such like, then be they not Legales and their presentment is merely void also, as it may be gathered upon the case 11. H. 4. 41. And women, infants under fouretéens' years of age, Aliens, and such be within orders of the ministery or Clergy, cannot be empanelled amongst others. And generally these jurors ought also, either to be inhabiting within the Shire, or else to have lands there: for the Commission willeth, that they should be such, Per quos rei veritas melius sciri poterit, which must needs be understood of such as have cause to know the Country, And the precept is usually according to the same form. But specially (in the County Palatine of Lancaster) each of them ought to have to the yearly value of five pound, by the Statute 33. H. 6. cap. 2. If any of the jurors returned be threescore and ten years of age, or have any continual infirmity, or be otherwise decrepit, yet that shall not excuse him for not appearing, if the justices will require his service, but he driven to his Action & gainste the Sheriff for returning of him, upon the Statute of W. 2. cap. 38. Marr. And if he have a Charter of Exemption, he ought to she we it to the Sheriff, against whom (if he will notwithstanding empanel him) he may have his Action upon the Case, and hath none other remedy by 18. H. 8. 5. Cur. which may be truly said, as to the saving of his issues: but by some other books and namely 42. Ass. Pl. 5. & Marr. he is to be discharged upon his appearance, & specially where he hath in his Charter of Cremption these words, Licet tangat nos, unless there want others that he sufficient to serve. Now, though some of the Cnquest of Cnquiry be of affinitic (or consanguinity) with any party grieved, that procureth any indictment, yet that hindereth not their presentment: howheit it is no discretion for the justices to suffer any surhe to be empanelled amongst them. The common manner in Kent (agreeing with the form of the Precept) is to return particular Juries for the Hundreds, and one general jury for the body of the Sh●re: this last is made up with us, (for the most part) of the Constables only: and those others (if they be not filled at the first) are wont to be renewed with the like, from Scssions to Sessions. General and particular juries. But that usage is no small hindrance to the service (as many do think) by reason that (those particular juries being seldom served with full appearance) the whole Cnquirie standeth only upon their labour that are empanelled for the body of the Shire, that is to say, upon one man of each Hundred, (at them moste) who cannot be thought to see so much as a whole jury may and doth. And therefore, they think, that it were good to make up some of the particular juries also, (when they be not full) de circumstanbus, out of other Hundreds, by which mean, either the whole Shire, or (at the least) a great many parts thereof, might be perused. To this opinion M. Marr. seemeth to incline, saying, that in default of those which are returned, the justices may take a jury de circumstantibus: And hereunto also the Statute (3. 0 H. S. ca 12.) showeth some further consent, in that it giveth power to the justices, by their discretion to command the Sheriff, or his Deputy's, to add, altar, or diminish, the names of the panel, which, if he refuse to do it, he shall forfeit xx.l. for the same contempt. Neither is it to be objected, that men being all of one Shire, may not take knowledge of things done in divers Hundreds: Seeing they have divers occasions of meeting together, as at the Country Courts, the Sheriffs furnes, the Assizes, & general Duarter Sessions. And if a jury of one Hundred would make presentment of an offence done within any part of the Shire, out of their own Hundred, this were good in Law. Besides which, if M. Marr. mixture be followed, few of them that do appear, shall lose their labour, whereas now the most of them do come in vain. But these men be not truly Jurours till they be sworn, as their name pretendeth, and otherwise their presentment is betterly void. How they of the jury must be sworn 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 sworn, their presentment is of force enough, for the Record may not be gainsaid. Each jury of inquiry ought to contain 12. in number at the least, and if there be 18. or more, it shall not be amiss: Beaumont the common order with us is, to have them of an odd number, as 17. 19 02 21. to the end (as it seemeth) that if they should dissent in opinion somewhat equally, yet there should be always one to weigh down the side, and cast the balance. The number of jurors. But if 12. of them, do agree, the gainsaying of the residue can not hinder the presentment. The justices ought not to commit these jurors to any keeper: nor to keep them without meat or drink: nor to carry them out of the Town. And yet they may adjourn them to an other place, to give their Verdict, and that may be then taken by any two justices, though neither of th● be of the Quorum, faith Marr. If these jurors do wilfully conceal offences (presentable) & y be complained of by Bill, then may the justices choose an inquest of persons, (whereof every one may dispend forty shillings by year) to inquire of their concealment: and if any such concealment be found within the year, every one of the first inquest shall be amerced in full Sessions, by the discretion of the same justices: 3. H. 7. ca 1. Concealment. And because the lurours of those days were yet wilful in their concealementes, it was provided within eight years after, that the justices of Peace should determine rauses upon information without any such presentment. But, In vitium, ducit culpae fuga, sicaret arte, and therefore that ordinance endured not long, as you shall hereafter perceive. Finally, these jurors ought not to discover their own doings: for it is a part of their oath, that they shall keep the Queen's Counsel, and their fellows. And we read in Fitzh. (Tit. Coron. 207. & 272.) that to indite a man of Felony, and then to show abroad to others, what they have done therein, hath been taken for Felony: Nowbeit that offence is now taken to be finable only. Of the Articles that are to be given in charge at the Scssions of the Peace. CAP. four IT was the ancient manner, that twice in the year at the Sheriffs Turn (which was sometime a Court of great authority, and called the Shirremoote) the Bishop of the Diocese, and the Alderman (or Carl) of the Shire, should be present: the the one to inform the people in the laws of God, and the other to instruct them in the laws of the land, Archaionom in legibus Canuti, Cap. 17. And it were to be wished, that as there is commonly at every Assizes, a Sermon (uttered by some learned man) so also the like might be at each general (or Duarter) Sessions of the Peace. For, seeing that the laws of men must be obeyed for God, it doth of necessity ensuc, that he which will seek to have man obeyed rightly, must first cause God to be preached truly. The justices of the Peace (saith M. Fitz) for therepartes be bound to inform the people: And (no doubt) the charge is given, aswell to instruct those that be ignoreant, lest they offend unwares, as to inquire of those that have already fallen into danger by offence: and thereof it is, that many Statutes do expressly command, that they shall be openly read (or declared) at the Sessions, as you shall see in place for it. But the manner of giving the charge, and receiving the Verdict at this day, differeth from that which the justices in Eire were wont to use: for you may see, in M. Bracton (Fol. 116) that first one of the justices did open before the whole assembly, the benefits of the service in hand, the commodities of keeping the Peace: and the evils of the contrary: and that then the Articles of the charge were read by one and one to the jurors, who receiving the same at the hands of the justices) did also make answer in the yielding up of their Verdict, to each Article severally, and by itself. The ancient order, of giving the charge in Eire. Which custom, as it had many profits: so is it worthy (in mine opinion) to be recontinued, and brought in ure again: neither ought the multitude of the Articles (now inquirable) to discourage any man in this behalf: For, if those Laws which be least serviceable (either for the present time, or for the place, or other just respect) were only touched or run over, by way of thorte Article: then would there be the more time afforded, for speech that might be well spent, as well in discourse of exhortation, or dehortation, as in the larger handling of such other Statutes, whereof there is greater use and necessity. And this liberty, the justices in Eire themselves did use also, as the same M. Bracton in the same place reporteth. The points of the charge that we have in hand, may be reduced to a few heads, and that after sundry sorts of distribution: of which (for examples sake) I will show you some: first thus, The points of the charge divided. All the matters inquirable, be either Eccleasticall or Temporal: and these Temporal, be either high treason, petite treasons, felonies, or otherwise punishable and finable offences: Or thus, All these points, do either concern God, the Prince, or Subject: Or thus, All these Articles be offensive, either against the first, or the second Table of the ten Commandments of God: Or thus, All these matters be inquireable, either by virtue of the Commission of the Peace, and of the Statutes therein contained, or else by power of the Statutes not comprehended within the Commission: Or thus, All these Laws do prohibit things contrary to some of the four Cardinal (or principal) virtues, Prudence, justice, Fortitude, or Temperance. They may also be divided, by the barietie of the punishments, and by some other Accidental respects: all which I leave to the choice of such as shall give them in charge, and will now for this time set down the Articles themselves, after the order of the first division, pointing out in the first place the Ecclesiastical causes, and then pursuing the Temporal. In which doing, first, I will omit all such Statutes, as do concern, but only some one, or a few particular places: knowing that I writ to the most part, who have not to do with them. The manner of this Charge. Secondly I will purposely pretermit the rehearsal of the punishments, contained in the Statutes that I am to run thorough: a●well because those do rather pertain to the justices, than to the lurours, as also for that I have an ancient Precedent of the justices in Eire to make for me, who (in their charge) did only deliver the Articles in offence, without any mention of the pains due unto the same, As it appeareth in the small volume of the old Statutes, under the Title, Capitula Itineris. And thirdly, I will neither recite all the other parts of each general Statute by itself, nor yet comprehend them wholly and fully with others: because the first of these ways would be very long, through the ofteiteration of the same things: and the other would be so crooked I cumbrous (through the barietie and difficulty of the exceptions) that the hearer would be many times lost before I should come to the end. I know that M. Fitzh. was of the opinion, that the justices of Peace, aught at their Quarter Sessions, and may at their private Sessions, give in charge to the inquest, all such matters as they have power to determine: and this he urgeth, aswell by the Doth of the justices (who are sworn to do right in all causes within their Commission, or the Statutes) as by the ignorance of the jurors, who cannot be instructed but by the charge: which if it be so, I see not (for my part) how either these justices (that are bound to utter all) can be discharged, or the jurors (that aught to hear all) can be informed, without this, 02 some such compendious & plain way, that may both shortly for the time, & lightsomely for the order, comprehend the substance of that which belongeth to their inquiry. Howbeit, as I think it the best for the justices, to rehearse all such points, whereof the jury may make presentment before them: so yet, I hold them discharged (in my slender opinion) if they unfold only the articles of their Commission, and of such other Statutes as do expressie auctorize them to make inquiry. For as there be sundry Laws that do give to justices of the Peace a certain special (02 particular) power in them, and do not yet yield unto them any authority to inquire upon the same, of which sort be the Statutes 27. H. 8. c. 20: & 32. H. 8. c. 7. of Tithes: The Statute 35. H. 8. ca 17. of Woods: The Statute 23. El. ca 9 of Logwood, and sundry others: So also there be divers others, that do afford to the justices of Peace the power of hearing and determining and yet do not exprestie give them the name of Inquine. And, for as much as they may hear and determine of these, by Information (given to themselves & by them commanded to the jury) it seemeth to me, that they be not so necessarily boúd to give them in charge, but that they be well enough discharged if they lie open, and be ready to receive the informations and presentments that shall be offered upon them: And of this kind be the Statutes of Highways (5. El. c. 13: & 18. El. ca 9 (the statute of Fight in Church, or churchyard (5. E. 6. ca 4) the Statute of Informours (18. El. ca 5.) and sundry others, whereof it shall be superfluous to make rehearsal. Never the less, because I will not, that my fantasy shall either stand against his judgement, or be prejudicial to other men's profit, I have contended (what I may) to deliver the principal & most serviceable parts, not only of the Commission and of such Laws as do specially contain their inquiry within them, but also of all such other Statutes as may be heard and determined by justices of the peace at any their Sessions, and that in so narrow a room, as (if I be not, after some proof, deceived) they may be distinuly read over in a couple of hours, or little more, so that the years of the Kings and the other Notes, be left unread and passed over. Ecclesiastical causes. If any person have (within this half year) by writing, printing, teaching, preaching, express deed, or act, advisedly, maliciously, and directly affirmed, holden, set forth, or defended, the authority, pre-eminence, power, or jurisdiction spiritual or Ccclesiasticall, of any foreign Prince or person whatsoever heretofore claimed, used, or usurped in this Kealm, or any the queens dominions, or have advisedly, maliciously, and directly, put in ble, or executed any thing for the ertolling, setting forth, or defence of any such pretended or bsurped iurisdiation, pre-eminence, or authority, or any part thereof. Treason the third offece Extolany foreign power. Or if any person (compellable to take the oath of Kecognition of the queens Majesty to be supreme Governor in all causes within her domonions) have refused to take the said oath, after lawful tender thereof to him made 1. Eli. c. 1 5. Eli. c. 1. enquirable by words of 23. El. ca 1. Refuse the oath. If any person, under the queens obedience have at any time (within this year) by Writing, Ciphering, Priting, Preaching, or Act, advisedly holden, or stood with, to extol, or defend the power of the Bishop of Rome, or of his See heretofore calymed, or usurped within this realm: or by any speech, open deed, or act, advisedly attributed any such manner of authority to the said See of Rome, or to the Bishop thereof, within any the queens dominions, ye shall present him, his Abettors, procurers, counsellors, aiders, and comforters. Praemunire Pope. 5. Eliz. ca 1 If any person have by any means practised to absolve, persuade, or withdraw, any other within the queens dominions from their natural obedience, or (for that intent) from the religion now established here, to the Komishe religion, or to move them to promise obedience to the See of Rome, or other estate: Or if any person have been willingly so absolved, or wdrawn, or have promised such obedience. Treason Withdraw any from obedience. And if any person have willingly aided or maintained any such offender, or knowing such offence have concealed it, and not within twenty days disclosed it to some justice of peace, or other higher Officer. Misprision of treason. 23 Eliz. ca 1. Mass. If any person have said or song Hasse, or have willingly heard Hasse, 23. Elizab. cap. 1. If any person have bsed, or put in bre, any Bull, Writing, or Instrument of absolution or reconciliation, or of other sort, gotten from the Bishop of Rome, or See of Rome. or from any person claiming authority from the same: Or have by colour of any such taken upon him to absolve, or reconcile any person: or have published any such Bull or instrument. Bull, Agnus Dei, ●●c. Treason. Or if any person have aided, comforted, or maintained any such offendor, to the intent to uphold such offence. If any person (to inhome such Bull or Instrument hath been offered or persuaded have not Within fire weeks next after signified the same to some of the queens privy Counsel, or to the Lord Presidence of the north, or of Wales. Misprision of Treason. If any person have brought hither from the Bishop, or See of Rome, or from any person authorized, or claiming to be authorized by any of them, any Agnus Dei crosses, pictures, beads, grains, or such like superstitious things, and have the same delivered, or caused, or offered to be delivered, to any the queens subjects to bse or wear in any wise: and if any person hame to such intent received or taken the same, and have not apprehended the offerer thereof, nor within three days after disclosed him to the Ordinary, or to some justice of the Peace, nor within one days delivered the thing to some justice of the Peace. Premurire. 13. Eli. ca 2: 23. Eliz cap 1. If any person have used Invocation, or Conturation of evil spirits for any cause: or have bsed Witchcraft, Enchantment, Charming, or Sorcery, where by any person is killed or destroyed: 5. Elizabeth. ca 16. Folorie Conjuration. If any person have within these fire months advisedly advanced, published and set forth, by writing, printing, open speech, or deed, to any other person, any fantastical, or false prophesy, upon arms, fields, beasts, or hadges, or upon any time, name, bloodshed, or war, to the intent to make thereby rebellion, dissension, loss of life, or other disturbance within the queens dominions. Prophesying. 5. E. ca 15. If person have, by setting of figure, casting of Nativity, or by Calculation, Prophecy, Witchcraft, Conjuration, or other unlawful means whatsoever, sought to know, & have set forth by express words, deed, or writing, how long her Majesty shall live, or who shall reign after her decease: Or else have advisedly, and with a malicious intent against her Majesty, uttered any direct prophecy to such purpose: And if any person have indeed procured, or abetted any such offenders. Felony Sctfoorih how long the Queen shall live. 23. El. ca 2. If any person have unlawfully procured any other person to commit wilful and corrupt perjury in any cause depending in suit in any of the queens Courts of Kccorde, or in any leet, Court Baron, Hundred, or Court of ancient demesne: or have corruptly suborned any witness sworn to testify in perpetuam yet memoriam: Or if any have upon such procurement, or by his own act wiltul lie committed such Perjury. Perjury. 5. El. ca 9: & 14. El. ca 11. If any person have within these these months, by contemptuous, or reviling words, or have abvisedly in any other wise, depraved, despised, or reviled the blessed Sacrament of the body and blood of Christ. Sacrament: 1. E. 6. ca 1: & 1. El. ca 1. If any parson, Vicar, or Minister, have since the last Assizes refused to use the common prayers, or to minister the Sacraments according to the book of common prayers, or wilfully standings in the same, have bsed any other their form in open prayers, or in administration of the Sacrament, or have spoken any thing in derogation of the said book, or any part thereof. Service and Sacraments. Or if any person have since that tyine in any plate, song, or rhyme, or by any open word, or of any thing therein contained: Dr have caused, or maintained any Parson, Hicar, or Minister, to say any Common prayer, or to minister any Sacrament in other manner than after the said book: Or have interrupted any parson, Vicar, or Minister to say open Prayer, or to administer any Sacrament, according to the said Book. 1. Elizab. cap. 2. & 23. Elizab. cap. 1. If any person (being above the age of rvi. years, and not having lawful and reasonable crcuse to be absent) have not repaired and reforted to his or her parish Church, or Chapel accustmed or (upon let thereof) to some usual place where Common prayer shall be used, upon every Sunday, and other holiday, and have not there orderly and soberly abiden, during the time of such Common prayer, preaching, or other service of God: and how long such person hath not so repaired and resorted. Repair to Church. 1. Eliz. ca 2: & 23. Eliz. ca 1. If any person have kept or maintained any Schoolmaster, which resorteth not to the church or is not allowed by the Bishop, or Ordinary of the Diocese. Schoolmaster. 23. Elizab. ca 1. If any person have maliciously stricken any other with any weapon in any Church, or Churchyard, or drawn any weapon there to that intent. Fight in Church or Churchyard. 5. E. 6. ca 4. If any person have kept Fair, or Market in the Churchyard. Fair, or Market, in Church yard. Felony. Rob church or Chapel. Stat. Winton. 12. E. 1. If any person have feloniously taken goods out of any Church, or Chapel. Lay causes. If any person have counterfeited the queens money, or have brought false money into the Hcalme, counterfeit like the money of England knowing the same to be false, to make merchandise or payment there withal. Treason. Money. 3. H. 5. ca 7: & 25. E. 3. ca 2 Felonies, in lay causes. If any Servant have killed his or her Master, or Mistress: or any Wife her Husband: or any Gcclesiasticall person his prelate. Petite Treason Seruát, & Ma. Husband and Wife. Clerk and prelate. 25. E. 3. ca 2. If and person have of pxepensed malice, killed or murbered an other openly, or pxivily whether he that mass killed were an Gnglishman, or a Stranger, living under the protection of the Queen. Murder. If any have wilfully killed any other by poisoning, and into be his aiders, abetters, procurers, and counsellors. Poysoining murder. ●. E.ó. ca 12. If any person have by chance medley feloniously killed an other. Manslaughter If any person of malice prepensed, cut out the tongue, or put out the eyes of any of the queens Subieas. Cut out tongue, or put out etes. 5 H. 4. ca 5. If any Gaoler, keeper, or underkéeper of a prison, have by dursse and pain compelled any his pxisoner, to become an appeacher of others agaianst his will. Jailer handling straightly his prisoner. 14. E. 3. ca 10. If any person have committed the detestable vice of Buggery, with man, or beast. Buggeric. 25. H. 8. ca 6: & 5. El. ca 17. If any man have ravished a maid, window, or wife, above ten years of age, against her will, although she consented after ward. Rape. W. 2. ca 34. If any man have carnally known and carnally abused any woman child under ten years of age, though the consented before. Child. 18. El. ca 7. If any person have taken a maiden, widow, or wife, having lands or goods, or being heir apparent to any, against her will uniawfully, (other than his ward, or bondwoman) and of his pxocurers, abetters and recetuers knowing thereof. Take woman. 3. H. 7. ca 2. If any person have rob an other, going or riding by the way, or other wife, how much, or how little soever it be that be taketh from him: or have privily and fraudulently picked or cut the purse of an other being upon him. Robbiie 8. El. ca 4. Cutpurse. Rob house. Gr have rob any house by day, or by night, any person being in the same, & thereby put in fear: Or hath rob any person in any part of his dwelling, the owner, wife, children, or servants, being therein, or within any other place within the precinct therefore, and then being waking, or fleeing: Gr hath rob any person being in a tent or both in a Stair or Market, the owner, his wife, children, or any servant being then within the same sleeping, or waking. Boothe, or Tent. 5. E. 6 ca 9 If any person, or persons, have feloniously taken the goods of any other, and wheteher the same be above 〈◊〉. r. in value, or under. Laricinie, and petite Larci. nigh. If any purveyor for the Queen's Mate sties house, or his undertaker, Deputy, or servant, have made any puruciance without warrant, and have carried any thing away against the consent of the owner, being above xú. d. in value. purveyors. 28. E. 1. ca 2: 18. E. 2. ca ultim. 5. E. 3: c●. 4.: 2. & 3. Phil. & Mar. ca 6. If any purveyor of the Queen, or his Undertaker, Depurtie, or Servant have taken any carriage in any other manner than is contcined in his Commission. 36. E. 3. 2. Or have made purveyance without the testimony and appraisement of the Constables, and four honest men of the town, and without delivering tales or Inventures under his Seal, testifying his purneyances, the goods being above 〈◊〉. O. in value. 5. E. 3. ca 2: 25. E. 3. ca 1. Or hath taken any sheep with their wools, between Gaster and Hidsomer at small prices, and carried them to his own house, and suorne them. 25. E. 3. ca 15. Quare, if the felovie of purveyors (made 36. E. 3. c2. 6.) be not altered by 23. H. 6. ca 14. If any person have found a Falcon, Lercelet, Lanor, Laneret, or other Falcon that was lost, and hath not forthwith brought it to the Sheriff, that he might proclaim it, but did steal and carry away the same. Hawkeembeselled. 34. E. 3. ca 22: 37. E. 3. ca 10. If any Servant (being ruiú. years of age, and not being an Apprentice) hath gone away with, or hath converted to his own use, any money Jewels, goods, or catfails tails of his masters or maistresses, and of his or her delivery, of the value of foxty shillings, to the intent to steal the same. Servant embeselling goods delilivered. 21. H. 8. ca 7.: 5. El. ca 10 If any person have by night broken any House, Tower, Walls, or Gates, and hath entered in with an intentto do any robberrie, murder, or other fclonious act there: Or if any person have burned any owelling house: or have by night burned any barn near to a dwelling house. Burglair. Burn house or barn. If any person, imprisoned for felony, have broken pxison: 1. E. 2. Break prison. Or if any other person have broken the prison for such a prisoner, by which he escapeth: Or if any Gaoler have willingly suffered such a pxisoner to escape: and if any person being arrested for felony have been rescued and by whom. If any person have devised uniawfully & maliciously to set at liberty and prisoner indited of treason (concerning the Queampeenes' person) and have expressly uttered the same devise. Enlarge a Prisoner. 14. El. ca 2. If any person have devised maliciously to take or keep from the Queen any of her Castles, Towns, Fortresses, or Holos, or to raze, burn, or destroy any of them maliciously and traterously (the same having munition or Soldiers therein of hers) and have uttered the same device. Take, keep, or destroy Castles, etc. 14. El. ca 1. If any person have unlawfully hunted in the night in any Forced Park, or Warrein, or with painted fares, visors, or other dis, guising to the intent to be unknown, and have upon exmination by one of the queens counsel, or by a justice of Peace of the same Shire, wilfully concealed such hunters or hunting, or have disobeyed any arrest for such hunting, or made rescue to any person warrantée to arrest such hunter, so that the warrant was not excuted. Hunting by night. ●. H. 7. ca 7. If any person have practised the art of multiplication of golo or silver. Multiplying 5. H. 4. ca 4. If any have the second time brought, sent or received into any ship or bottom, any rams, sheep or lambs being alive, to be conveyed out of the queens dominions, or have procured the same. Convey sheep. 5. El. ca 3. If any person have solve, erchaunged, or delivered, within Scotland, or the batable ground, to the use of any Scot (without the queens licence, under her great Scale) or solve, exchanged, or delivered to any Scot within England, Wales, Berwick the Marches or batable ground, to the intent to be conveyed into Scotland (without such licence) any horse, gelding, or mare: And if any have so bought any of the same. Convey horses into Scotland. 23. H. 8. ca 16. 1. El. c. 7. If any person have advisedly and with a malicious intent against the Queen's Majesty, deused written, printed, or set forth any book or writing, containing any false, seditious, and slanderous matter, to the defamation of her Majesty, or to the encouraging or mouning any inserraion or rebellion within her Realm or Dominious: or have advisedly or with a malicious intent against her Naiestie procured any such book or writing to be written, printed, or set forth: Or have malitously, by any murders, writing, or printing, withen, or desired her majesties death, or deprivation, or any thing directly to that effect: and if any have aided, procured, or abbetted any such offender. Slanderous news. 23 Elizab. cap. 2. If any perons (of, or above, the number of fwrlue) have been assembled, and have infanded, gone about and practised with force of arms unlawfully to change any Laws of this Realine, or to cut or cast down any enclosure of Park, or enclosed ground, or the banks of any fishpond, or any conduit head or pipe, to the intent they should lie open, or void, or to have any Common or may there: Or to destroy the Dear or Coneys in any Park or, Warrien, or Dovehouses, or Fish in Poole, or pond, or to cut down any houses, Barns, miles, or Eayes, or to burn any stake of corn or grain, or other usual sustacke of men: and (being commanded by the Sheriff, or any justice of Peace of the Shire, or by the mayor, Shirif, justice of Peace, or Bailiffs of the City, Borough, or Corporate town where the assmbly was, by proclamation in the Queen's name to departed to their houses) have notwithstanding continued together one hour after, or have after that forcibly attempted to do any such thing. Rebellious assemble. And if any person have bnlawfully, by ringing of Bel, sounding of Trumpet, Drum, Norne, or other instrument, or by firing of Beacon, or by malicious speech, or Outcry, or by setting up or casting any writing, or by any other act, raised, or caused to be raised twelve person, or above, in such manner, and to anysuche intent as is aforesaid, and they (being commanded by proclamation, as before) have neverthlesse continued together one hour after, or have afterward attempted forcible to do any of the said things: And if any the wife, or servant of any the said assembled persons, or if any other person, have willingly and without compulsion, delinered, or convyed money, harness, weapon, or victual to any of the said person assembled, during their aboave together, as before. And if any person have hindered or hurt any that did proclaim, or meant to proclaim as before: and if any the parties so assembled (knowing of that hindrance, or procuring it, have nevertheless afterward committed or put in dre any the things aforesaid: And if any persons to the number of forty or more) have so assembled, to the intent to do any the said things, or any other Felonious or Rebellious act, and have continued together three hours after such Proclamation made, at or nigh the place of assembly, or in some market Town next aujoining, and notice to them thereof given. 1. Mar. Parl. 1. cap. 12: & 1. Elizab. cap. 17. If any Soldier entered a Soldier of Record, and having taken part of the queens wages, or any Marnier, or Gunner having taken priest wages to serve the Queen on the Sea, have not accordingly gone to his Captain (unless he were letted by notorious sickness, or other impediment from God) or have departed from his Captain without his licence under his scale. Soldier, Mariner. er Gunner, departing. 18. H. 6. ca 19: 2. & 3. E. 6. ca 2: 4. & 5. Phil. & Mar. ca 3: & 5. Eliz. ca 5. If any Strangers, calling themselves, or being commonly called Egyptians, have remained in the Realm one month: And if any person (being 14. years of age) which hath been seen, or found in the fellowship of such Egyptians, or which hath disguisedhim self like to them, have remained here or in Wales, by the ●pace of one month, either at one time, or at several times 1. & 2. Phil. & Mar. ca 4: 5. E: 1 z ca 20. Egyptians. If any bagabond (or Rogue) have after 60. days next atter his marking through the ear, or ●ud●ement to be so marked, fallen again to Rogish life (being then 18. years dlue, or above:) And if any such Rogue, being upon his said second conviction taken into service for two years, have departed within those two yearses against the will of him that by Recognusance took him into service: And if any Rogue being convicted in the second begrée, have at any time after been convicted of Rogish life 14. Elizab. ca 5: 18. Elizab. cap. 3. Rogues. There can be none accessaries to these two last felonies. Note that some felonies be here omitted, either because there is none use of them now, or else for that they before particular places: as, The felony of proovisours. 13. R. 2. Stat. 2. ca 3. The felony of wools & Woolsellers, 18. H. 6. c. 15. and certain felonies in the Statues of the Staple, 27. E. 3. whereof I doubr. The felony of Powdike, 22. H. 8. ca two: & 2. & 3. Phill. & Mar. ca 19 Itseemeth alfo, by the 25. E. 3. c. 2. that there is a felony, for riding armed etc. which (I think) is not contructed now. If any perons have commanded, counseled, waged, or procured to be committed any Petit treason, Murder, Manslaughter, Rape, Robbery, Burglarte, or other the felonies aforesaid. Accessaries before. If any person knowing the said felons, have received, comforted, aided, abetted or favoured them, before their attainuer, or after. Accessaries after. Hitherto offelonies and their Accessaries in lay causes. If any person have mayhemed an other of any member, whereby he is the less able to fight, as by putting out his eye, striking of his hand, finger or foot, beating out his foreteeth, or breaking his skull. Mayheme. And of their Accessories. If any have committed unlawful assult, beating, wounding, or such like trespass, against the body of any man: Or have with force & against the law taken the goods of an other, or have done any trespass in the lands of an other. Trespasses. Commission of the Peace. If any Ordinary, Archdeacon, Official, Sheriff, Eschaetor, Corner, undersheriff, Bailiff, Gaoler, or other officer, have by colour of his office, or for doing his office, taken a greater, or more excessive reward or Fee, than belongeth to him: or have taken any Fee or reward for expedition in doing his office, or have unlawfully exacted any Dathe, or other undue thing: Commission of the Peace. If any Eschaetor (other than of such a City, Eorowe, or Town, as hath authority to make Eschaetors within themselves by letters Patets of the Queen, or her Progenitors) have taken upon him that office in this Shire, or occupied it by himself, or an other, and had not then in this Shire, Lands, Tenements, or Rents, for life at the least of xx. ●●. by year: or have sold, or set to farm that office, or made any deputies for whom he will not answare, and whose names hép hath not certified within 20. days after into the Escheaquer, 12. E. 4. 9 Eschaetor. Or if any Eschaetor hath taken for the execution of any Diem clausit exiremum, or other writ in one County above forty shillings in all: or that xl. shillings where the lands are not found to beholden in Capite: 23. H. 6. ca 17: & Fitzh. 143. Or hath taken for the finding of any Office of lands (not exceeding five pound by year) above fifteen shillings in all, for all, the things thereof, 33. H. 8. ca 22. If any Sheriff have let his County, Sheriffs and their Ministers etc. or any his Bailywikes, hundreds, or Wapentakes, or have returned in any pannelles, any bailiffs, Officers, or their servants, or seruauntsseruaunts, or have refused to let to bail (upon sufficient sureties,) any person being in his custody, because of any action personal, or because of inditement in trespass, and not being in for any condemnation, execution, outlawry, excommunication, surety of the Peace, or commandment of any justice, or for being a vagabond: Or have taken any Obligation by colour of his office, but only to himself, & upon the name of his office, and upon condition only to appear according to the writ, or Warrant: Or have taken for an arrest, above twenty pence. Or if he or any other minister, have taken any thing, for making of any Return or Pannell: or above four pence for the copy of a Pannell: above four pence for the said Obligation, or for any warrant or precept: Or any bailie above four pence for making any arrest: or the Gaoler above four pence, upon the committing to his ward of any person arrested, or attached. 23. H. 6. ca 10. If any Shitife, or other his minister, have arrested, or imprisoned, or caused any fine, or ransom, or amerciament to ' be levied, of any person, by reason of any priditment, or presentment made in the Sheriffs' turn, or lauway, without process from the justices of peace for the same first obtained: Dr have not brought in such enditmets and presentments to the justices of the Peace, at their next Sessions. Sheriffs, arresting, or levying fine for indictments in his turn 1. E. 4. ca 2. If any Sheriff, or any his ministers, have entered into his book, any plaints in any man's name, not being present in the Court, either in his own person, or by sufficient and honest Attorney, or Deputy: Fr have entered any more plaints than the plaintise supposeth that he hath cause of action for: or have leaused the Shire amerciaments without book endensed between them and two justices of the Peace: Dr if the bailie of the Hundred have made default in warning or executing any warrant against any Desendant in the Sheriffs Court. Sheriffs entering of plaints, and levying amercements Bailie serving warrant. 11. H. 7. ca 15. If any Sheriff, or his minister, have levied any the debts of the queen, without showing to the parties the Cstreates of the same under the Seal of the Creates. Sheriffs' must show the Estreats under the Exchequer seal. 42. E. 3 ca 9 If any Sheriff, or Gaoler, have denied to receive felons by the delivery of any Cons tables or towneshippes, or have taken any thing for receiving of such. Sheriff and Gaoler. 4. E. 3. Ca 10. In liberties, the Bailiffs, Stewards, and other ministers there, have like fees and punis hmentes for extortion, as Sheriffs and their minister have out of liberites 27. H. 8. cap. 24. Fees in liberties. If any Corner have refused to do his office upon the views of a bead body by misadventure, without taking any fee therefore. Coroner ●. H. 8. ca 7. or have taken upon the view of the body of a man slain, or murdered, above thirteen shillings four pence, of the goods of the flaier or murderer, if he had goods or (otherwise) of the town where he was slain in the day time and was suffered to escape. 3. H. 7. ca 1. If any Didinary, or his Scribe, or Register, have taken more, or greater fees for the probate of a Testament, or for Letters of administration, than he ought to take, that is to say, fire pence for the Scribe, for writing the probate of a Testament that shall be brought written in parchment, and likewise fire pence for the Administration, where the goods of the Testator, or Intestate be not above five pounds. Ordinary If the goods be avove fius pounds, and not above forty pounds, than two shillings fire pence for the Drbinarie, ● twelve pence for the Scribe. If they exceed forty pouds, than two thillings fire pence for the Drdinarie, and two shillings fix pence to the Scribe, or else one penny for every ten lines at ten inches length, at the Scribes election: the like shall be given for every copy of a Testament, or inventary, or else after the rate of lines as before. 21. H. 8. ca 5. If the Drdinarie have cited any man to bear witness in the Spiritual Court: Dr have exacted any Dth in any cause, other than Testamentary, or Matrimonial. If any Parson, Vicar, or Curate, have taken above ii●, pence for entering in the Church book the licence of a sick peron to eat slayeth upon the Wednesdays: 5. Elizab. ca 5: Dr above two pence for registering of a Testime niall of any servant, departing from one place to an other. Parson, Vicar, Curate. 5. Elizab. ca 4. Quaere. If the taking of Mortuaries (or corpse pres ets) against the Stature 25. H. 8. C. 6. be extortion, or no. If the Clerk of the Peace have taken above twelve pence for the enrolling of the bargain and sale of any land not exceeding forty shillings by the year: or above two shillings fire pence if the land exceed that value by the year 27. H. 8. ca 16. Clerk of the Peace. Dr if the Clerk of the Peace have taken above two shillings in all, for any licence and Recognusance of a Badger, Drover, Kidder, or Lader, and for the registering thereof 5. Eliz. ca 12: Dr have sake above twelve pence for a Recognusance of him that tabath a Rogue into his service for one year. 14. Elizab. ca 5. If the Clerk of any justice of Peace have taken above twelve pence for any recognizance of an Alehouse keeper, or Tippler. 5. E. 6. ca 25 If the Clerk of the market hath taken any comen fine to dispense with 〈◊〉 hath rid with ●●oe than fire horses, or hath tarried longer in the country than the necessity of his business required. Clerk of the market. 13. R. 2. ca 4. If any Officer, have in any To●vne taken Stavage or Shewage (the is to say) any thing for the showing of wares or Merchandise that be truly custonied to the Queen before. 19 H. 7. ca 8. If the Mayor of this Town of Maidstone (and so of other Towns in other Shires) have taken above f. 〈◊〉 for sealing a Bushel measure, or above ob, for any other measure: or above f. D. for sealing C. weight, or above ob. for half C. weight, or above a farthing for a my less weight. 7. H. 7. ca 3: & 11. H. 7. ca 4. Sundry other sees of Officers there be, as of Alnageours, Gaugeors, sergeants at Aims and whereof there is not so common use. & therefore I omit them. If any purveyor of the queens Majesties have taken any thing of the value of forty shillings or under, without ready payment therefore made: If any Constable, or Borsholder have not (upon request made,) assisted the owners to resist the purveyors so taking: And if any of the queens Officers have procured any to be arrested or vexed for such resistance 20. H. 6. ca 8. purveyors. If any purveyor have taken or selled any timber trees (meet to be backed) but only in barking time, except it were for the reparation, or building of the Queen's houses, or ships: Dr have taken any more than the very timber of such trees 5. Elizab. cap. 8 If any such purveyor have taken any thing of any man, to the end to spare him: or have taken corn by any other measure than by the striked Bushel, or by any more than eight such Bushels to the Quarter: or have taken carriage therefore, without making ready payment. 25. E. 3. ca 1: 36. E. 3. ca 3: & 1. H. 5. ca 10. Of purveyors within five miles of Oxenford, or Cambridge fee. z. & 3. Phil. & Mar. ca 15: 14. Eliz. ca II. If any common Informour, or Promoter (as he is commonly called) have compounded or agreed with any person for any offence against any penal Law, without the order or consent of some of the Courts at Westminister, or have willingly delayed, or discontinued his suit once commenced. jaformour. 18. Elizab. cap. 5. If any man have raised hue and cry without cause, or it being raised, have not been ready at the commandment of the Shirise, or at the hue and cry of the Country to pursue and arrest Felons, or such as have dangerously hurt any man: And if the Sheriff or any Baylises have not followed the hue and cry with horse and armour W. 1. 3. E. 1. ca 9: 3. E. 1. Hue & cry. Officium Coronatorius: Statut. Winchester, 13. E. 1. If the Watch of twelus men in every Borough have bene kept from sun rising to sun setting between Aseension day and Michaelmas day, to arrest strangers that pass by: Statut. Winton. Watch. If any Lord of the Soil have not enlarged the high way from market to market, so that no dike, bush nor tree (except great tree) be within two hundredth foot of each ●●●e thereof: Statur. Winton. High ●ies If any persons (except the queens servants and officers in doing her services, and their company aiding them in that behalf) have ridden, or gone armed by day or night: or have brought force in affray of the people, before the Queen's justies, or otherwise Statut. Northampion, 2. Edw. 3. cap. 3. Ride or go armed. If any person arrested, or imprisoned for Felony have benc negligently suffered to escape. Escape by negligence. 1. R. 3. ca 3. If any be a Barrettour, or a common quarrellour, or otherwise of evil name and fame, 18. Edw. 3. cap. 2: 34. Edw. 3. cap. 1. Barrators, Mainteynours, Embraceours. Or a Maintainour of quarrels, or an Cmbraceour of juries, 33. H. 8. cap. 10: & 37. H. 8. cap. 7. The word (Barrettour) may seem to be derined, either of the French Barat, and so it seemeth to be taken in the Statute of Champartie. Barretour. W. 2. ca 49. signifying deceit, so that Barrettour should notisie a deceiver: or else of the Latin Baratro (or Balatro as some writ it) which berokeneth a vile knave, or unthrifre: and by a Metaphor) a spot in the Common wealth. But whatsoever the word do properly denote, common use (Quem penès arbitrium est, & ius & norma loquendi.) taketh it for a common quarrellour, or a maintainer of Quarrels: and in that sense I think it to stand in the old Statute, called Ragman. If any be a Champartour, that is to say, one that moveth pleas or suits, or causeth or procureth them to be moved, at their own costs, to the end to have part of the Land, or other thing in variance. Champartours. 33. E. 1. If any juror in any Cnquest here, have taken any thing of any man to make his presentment favourable. juror. 5. E. 3. ca 10. If any person have by himself, or other for him, given any livery of sign of company, or badge, or retained any man, other than his household Servant, Officer, or learned man in the Law. Liveries of companies & barges. 1. H. 4. cap. 7: 2. H. 4. ca 21: & 8. E. 4. ca 2. If any company of men (other than men of Fraternities, and men of Arts in Cities and boroughs) have made any one general suit of Cloth, Bloods, or Hats amongst them, to be known by. 7. H 4. cap 14. If any person have within these three months advisedly and with a malicious ●ntent against the Queen's Majesty, of his own imagination spoken any false, seditious and slanderous néwes, or sayings of the Queen's Majesty: or have within the said time advisedly and with a malicious intent spoken any such news or tales to the flaunder and defamation of our said Queen, of the reporting or speaking of any other, 23. El●z, cap. 2. False news. If any person have by writing, or open speech notified, that the eating of Fish or forbearing of Flesh mentioned in the Statute for the Wednessday (5. Elizab. cap. 5.) is of necessity for salvation of souls, or is the service of God, otherwise than as other politic Laws be, 5. Elizab. ca 5. If any person have falsely and deceitefullie gotten into his possession any money or other things of any other man's, by colour of false prtuie token, or of counterfeit letter made in an other man's name. False tokens or letters. 33. H. 8. cap 1. If any have uttered themselves to be Proctors, having no sufficient authority, or have gone about idle, using crafty games, or pretending skill in Palmistry, telling of vestinies, or other abused sciences: or (that being whole and able in body, and not having land, Master, nor mean to get their siving) can give no reckoning how they get their living lawfully: If any Fencers, Bearwards, Common players in Interludes, or Minstrels (not belonging to any Baron or parsonage of greater degree) jugglers, peddlers, Tinkers, or Petit chapmen, have wandered about without licence of two justices of peace: If any common labourers (being able in body) have used loitering, or refused to work for the appointed wages: If any have counterfeited licences, or passeported, or have used such, knowing them to be counterfeit: If any Scholars of Oxford or Ca●●●●●ge, have gone about begging not authorized under the University Seal, or shippemen, pretending loss by sea, or delivered prisoners, begging for their fees, or travailing to their country or friends, not being lawfully licensed: If any servant departing out of service, be found with a counterfeit Testimonial. Vagabonds and Rogues. If any poor body have fravailed from home towards Bathe or Buckston, without lawful licence, or being provided for in his or her parish, have notwithstanding secondly wandered abroad without licence: For all these be Rogues and Vagabounos'. 14. Elizab. cap. 5. If any Constable, or Borsholder, have not bone his best endeavour to apprehend such Rogues as have begged or made abode within their limits, or have wilfully suffered any of them to escape punishment: And if any person have given harborough, or other relief to any such koge: If any person have hindered the execution of the Statute concerning Rogesf, or have made rescous to any person endeavouring the execution thereof. Officers not punishiing Rogues. Givingreliefe to Rogues. Disturbing of the execution of the law against Rogues. 14. El. ca 5: & 18. El. cap. 3. If any persons to the number of three, or above, have been riotously assembled to beat any man, to enter upon a possession, or to does any such unlawful act, have done it in deed, or attempted to do it: Dr have been assembled together in routs for any common quarrel: or otherwise unlawfully against the queens majesties Peace. Riots, Kouts unlawful assemblies Commussion vunder the name of Conventicles. If any persons (above the number of two, and under xij.) being assembled, have intended unlawafull with force to murder, or stea any of the queens subjects: Dr to cut or cast vowne any enclosure, or banks of any fish pond, or conduit head, or pipe, or to do any the Deeds (mentioned in unlawful assemblies before) and have not departed upon proclamation, but have attempted to do any of those things. Rebellious assemblies Or if any person (being moved to make any rebellious assembly) have not within 24. hours after disclosed the same to a justice of the Peace, or to the Sheriff: Dr if any person have stirred or procured any other to make such assemblis. 1. Mar. parl. 1. ca 12: 1. El. ca 17. If any have lain in await, to mayheme, or kill any other. Lying in await Commossion. If any have entered in to lands, or possessions with force, or entering peaceably, have bolden the same with force. Forcible entries. If any person have unlawfully broken, or destroyed the head or dam of any pond, mote, stem, or several pit wherein fishes are put by the owner thereof: or have wrongfully slshed in any of the same, to the intent to take away the fish against the owners will: Dr have wrougfully entered into any Park, or other ground, before this Statute enclosed, or after this Statute, (by the iicence of the Prince) to be enclosed and bsed for keeping of Dear, and have wrongfully hunted, oriven out, hurt, or killed, any Daere there: Dr if any person have unlawfully taken away any Hawk, or the eggs of any Hawk out of the woods, or grounds of any other person. Cut pond head, fish: hunt Dear: take Hawks, or their eggs. 5. El. ca 21. If any person have taken, or caused to be taken, upon his own, or other men's ground, the eggs of any Falcon, Goshawk, Lannar, or Swan: or have taken any Cirer Falcon, Goshawk, Tercell, Lanner, or Lanneret: or have purposely 〈◊〉 them out of their Covertes: or have borne any Hawk of the breed of England, called a Niesse Goshawk, Tasset, Lanner, or Lameret. Take hawks eggs: take Hawks, or driuc them away. 11 H. 7. ca 17. If any Artisicer, Labourer, or other Lay man, not having lands, or tenements of forty shillings by year, or any spiritual person not advanced to ten pounds living by the year, have kept greyhound, hound, or other dog to hunt, or used firrets, nets, or other engines, to take or destroy, Dear, Hares, Co●es, or other gentiemans' game. Dogs, actts, firrets 13. R. 2. 13. If any person have traced, killed, and destroyed any Hare in the snowc. Trace hare 14. H. 8. ca 10. If any person whatsoever, have taken, or killed any pheasants, or Partridges, with any manner of net, or other devise whatsoever, upon the fréehold of any other, without special licence, or in the night time, except it were unwillingly, by lowbelling, or tramelling, who also did then & there presently let them go again: Dr if any person have hawked, or with his spaniels hunted in any ground (not being his own) where any corn or grain did then grow, or before it was shocked, or copped, without the consent of the owner of such corn or grain. Take phefants or partridges. Hawking in corn. II. H. 7. ca 17: & 23. El. ca 10. If any person have by himself or an other, sold any merchandises or wares so any other, and have within three months next after that, by himself or by any other bought the same, or any part thereof again, upon a lesser price, knowing them to be the same: Dr if any person have by any corrupt bargain, mortgage, or other means, taken in gain, abouc the rate of ten pounds for the hundred, for one whole years forbearance, and so after that rate, for more, or less. Usury. 37. H. 8. ca 9: 13. El. ca 8. If any have within these two years forstalled, regretted, or engrossed unlawfully: A Forstaller is he, that buyeth or causeth to be bought, or maketh courract or promise for the having or buying of any victual, or wares, coming by land or water towards any fair or market to be sold, or coming from beyond the Se● towards any City, port, Haven, creak, or Road of this Realm to be fold before the same shall be in the Fair or Market, City, Port, or Haven ready to be sold: Or that by any means maketh motion to any person for enhancing the price of the same: Or that doth ' dissuade, move, or stir any person. Forstallers, Regrators, Engrossers, Forstaller. (coming to the Market or Fair) to forbear to bring any of the same to any Fair, Market, City, Port, or Haven to besolde. A Regrator is he, that regrateth or getteth into his possession, in any Fair, or Market, any corn, wine, sishe, butter, cheese, candles, tallow, sheep, lambs, calves, swine, pigs, geese, capons, hens, chickens, pigeons, coneys, or other dead victual whatsoever, brought to any Fair or Market to be sold, and selIeth the same again in any Fair or Market keeps there, or within four miles thereof. Regras●● An Ingrossor is he, that engrosseth or getteth into his hands by buying, contract, or promise, taking (other than by demise, lease, or grant, of land or of tithe) any corn growing in the sieldes, or other corn, or grain, butter, cheese, sishe, or other dead victual, with in England, to the intent to sell the same again. Ingrossor● But such as buy barley or oats (without forstalling) & turn the same into malt or oatmeal, and sell it again: and such victualler of all forts, as buy victual (without forstalling) and sell it by retail again, and Badgers, and Drovers, being lawfully licensed and not abusing their licences are excepted. So be all buyers of wines, oils, spices, and other foreign victuals brought from beyond Sea hither, except fish and salt only 6. Ed. 6. cap. 14: 5. Elizab. cap. 12: 13. Elizab ca 25. If any person have within these two years bought corn in any Fair or Market for change of his seed (having then sufficient for his house, and for sowing his groude for a year) and did not bring this there if he might) so much as he did so buy, and did not the same day sell it after the price then going. Seed corn. 5. E. 6. ca 14. If any person have within these two years bought Dxen, konts, steers, kine, Heyfares, Calves, Sheep, Lambs, Goats, or Bids, living, and solve any of the same again alive, before he hath kept them five weeks. Live cattle. 5. E. 6. ca 14. If any person not having the Huéenes' speriall licence, have bought or engrossed tanned leather, to sell it again vnlesle he be an Artisicer that maketh wares of such tanned leather, and worketh itin the same. Tauned leather. 5. E. 6. ca 15. ti. E1. ca 9 If any person hath bought any yarn, and have not made cloth thereof. Wollcn yorng. 8. H. 6. ca 5 Dr have bought any wool, but of the owner of the Sheep, and of the Lithe. 14. R. 2. ca 4. If any Butcher, or other person have killed any young suckling calf, to be sold whole, or by retail, which was calved between the first of Januarie, and the first of may. Sucking Calves. 24. H. 8. ca 7: 14. E1. ca 11. Or have killed any weinling, bullock, steer, or heifare (under the age of two years) to be sold whole or by retailer ibidem. Weinlings under 2. years Caluesunder five weeks old. Or have killed any calf to sell, being under siue weeks old. 5. E1. ca 8. If any person have willingly (between the first of March & last of June in any year) taken away or destroyed the eggs of any wildswle (used to be eaten) from the place where they did lay the. 25. H. 8. c. 11: 3. E. 6. c. 3. Eggs of wildfowl. If any person (séeding above. 120. share sheep for the most part of the year upon his grounds the be meet for mylchckyen, & wherein no person hath any common) have not kept for every. 60. such sheep reared up one calf, during the time of keeping such sheep. 2. & 3. Phil. & Mar. cap. 3: 13. E1. ca 25. Milche kyen and calves. Or if any person (feeding upon his several passures above 20. orens, ronts, steers, scrubs, held fares, or kine) have not for every ten such beasts kept one myiche cow, and for everin two kine waned and reared up yearly one calf, except it chance to die. ibid. he that séedeth such sheep or beasts, only to be spent in his house, is excepted, ibidem. If any person have taken any Salmons between the feasts of the nativitis of the blessed virgin Marie, and of S. Martin, in any rivers or waters: Dr have taken young salomon's at any will pool, or other place, between the midst of April and Midsummer: or have at any time cast into any waters any net, by which the Fry of any Fish may be taken. Salmons. Frye of Fish. W. 2. ca 47. 13. R. 2. ca 19: 17. R 2. ca 9 If any person have with any net, or mean, taken and killed any fry or spawn of any fish in any wear, fludgate, stream, or river (salt, or fresh) or at the tail of any milk or have taken there any Salmons, or Droufs, out of season, that is, being kippers or shedders: Dr have taken and killed any pickerel under ten inches fish in length, or Salmons under. 16. inches, or Drout under. 8. inches, or Barbell under. 12. inches: or have fished in any the said places with any net, but such whereof every meshe was. 2. inches & a half broad & But Angling is excepted, and so is the taking of Smeltes, Loches, Minemes, Binheades, Budgeons, and Cles, in places only where they have been used to be take. Frye of fish. Salmons. Trouts. Assize of fishes. Ne●●s. causes. Angling. 1. El1. cap. 17: 14. El1. cap. 11. If any Butcher, Fishmonger, Inholder, Lippler, Brewer, Baker, Poulter, or other seller of victual, have not sold the same at reasonable prices, & for moderate gains. Victuallers, prices reasonable. 23. E. 3. ca 6: 13. R. 2. c1. 8. If any Béerebrewer, or Alebrewer have sold their drink at higher prices than have been appointed by the justices of peace, 13. H. 8. cap. 4. Brewers. If any Butchers, Bakers, Brewers, poulters, Cooks, Fruiterers, or any mystery of any of them, have conspired, or taken any dathe, or promise, not to sell but at prices sertaine agreed between them. Victuallers conspiring. 2. E. 6. 15. If any Butcher have sold, or offered to fell, Swine's flesh mezeled, or any flesh that died of the morreine: Dr if any other Victualler have sold, or so offered to sell any corrupt or unwholesome victual: State, Pictorum. cap. 7. Corrupt victual. If any person have, against proclamation thereof made, transported or carried out of this Realm, any Corn, Graine, or Dalte, growing or made here: or any Beer, Butter, Cheese, or Moodin any vessel (except to Barwicks', or the Marshes thereof) without sufficient authority, or any Seafishe, or herring not taken by a natural borne Subject here: or have by any means conveyed, or wittingly consented to convey, any of the said things, to any vessel being on the Sea, or in any place or haven of this keatme to be transported over Sea, or into scotland, without sufficient authority: or if any person having licence to convey any of the said things, have fraughted or laden his vessel, or any part thereof, at any more places than one only: 1. &. 2 Philip & Maric. cap. 6. 13. El1z. ccap. 13: 13. El1z cap. 11. Transport Corn, Beer Butter, Cheese Sea fish, Hearing. Wood. If any person have bought to sell again any Butter or Cheese, unless it be in open Fair or Market by retailing it affect the weigh of Cheese Barrel of But●e● 〈◊〉 a less quantity: or unless it be 〈…〉 for that which that be retailed or ●ponte in their houses 〈…〉 6. ccap. 2R &. 14. E 〈…〉 If any person have packed Fisve in Barrels, and have mired the Countable Fish with the small Fish. 22. Edward. 4. 2: 11. H. 7. 23: Or have bought of a Stranger borne, or out of a Stranger's bottom, any Herring (other than such as cometh hither by reason of Shipwreck) not sufficiently salted, packed, and casked. Fish packed. bought of Strangers. 5. El1. ca 5. If any have brought, sent, or received into any Ship or Bottom, any Kammes, Shapes, or lambs, being alive, to be convyed out of the Duéenes' dominions: or if any person have procured the same. Ram. sheep, lambs trnsported. 8. El. ca 3. If any person have dried in this kealme to be fold any fish taken or brought hither by any stranger borne. Drying of fish brought by Strangers. 13. E1. ca 11 If any Stranger borne, have brought into this kealme, any cods, or ling, packed in Barels, or other Casks. Cods or ling in Cake. 13. El1z. ca 11. If any person have within this year, taken upon him to set price, to take toll, or in demand any fare upon any 〈◊〉 the taken by any Subject of the Nuéene in these 〈◊〉 vessels: or if any purveyor or other person have within that time, by colour of any Comissio take any such Dering, or Seafish (other than the accustained composition Fish for Island) against the will of the bringer in thereof: Dr if any person have within that time caused to be laden and carried in any vessel (whereof any stranger borne, is wholly or partly owner or Master) any fish, victual, or other thing, from one port or creek of this Kealme, to any other of the same: Or if any person have within that time brought into this Kealme, or any part thereof, other than into the isle of Man, or into Wales, any Wine coming out of the Dominions of France, or any Tholouse Woad, but only in such vessel whereof some Subject of the Queen was then owner, or part owner. Set price of 〈◊〉 upon Seafishe. Puruciour. Seafish and Herring. Wine, Woad in a strange bottom. 5. El. ca 5. If any person auctorired to sell Wine by retail, have within this year sold the same above the prices thereof limited by the queens Proclamation 5. Elizabeth. cap. 5. Winesre●ayled. If any person, not being the son of a Peer, or Earron of this Kealme, nor having lands or profttes to the yearly value of one hundred marks, or goods to one thousand marks, have kept in his house any vessel of Gascon, Guion, French, or Rochel Wine, containing above ten Gallons, to the intent to spends the same in his house. 7. E. 6. ca 5. Not above ten Gallons of Wine. If any person (other than by reason of age, sickness, childiug, or licence) have within thy year eat flesh in Lent, or upon any fish day observed by the custom of this Kealme, 2. Ed. 6. ca 19: 5. Elizab. Cap. 5. ●ate flesh. If any person, have upon any Weditesday (not falling in Christmas week, or Caster week) eaten other than of one dish or kind of flesh, for the which also he shall then have eaten at his table three full dishes of Sea fish of three kinds. 5. Elizabeth. cap. 5. If any common Brewer, Baker, or Assize of Tippler, have broken the Assize of Bread, Beer, or Ale: And if any Steward of Leete, or Officer in Market Town, have taken any fine for breach of the Assize of Bread or Ale, in such cases, where corporal punishment is appointed. Assize of Bread and Ale. 13. R. 2. cap. 8. If any person have bought or sold by any unlawful weights or measures: or if any person have bought or sold in any City, or Market, with any weight or measure that is not lawfully marked, or signed: 11. H. 7. 4. Weights & measures. Or have bought Corn by heaped measure in any place (except within shipboard) or have used double measure, the one to buy, the other to sell with, 15. R. 2. ca 4: 11. H. 7. ca 4: 5. E. 3. de Pistor. If they of the Town where the Bings Standard is appointed to remain, have not their common weights and measures signed, or have not thereby signed weights and measures to all that have required the same. Commune weights and measures. And if the head officers of Market Towns have not twice yearly made view and examination of weights and measures there. 11. H. 7. ca 4. If any vessel for Beer or Ale have been sold or put to sale, being made of unseasonable wood, or not having there upon the mark of him that made it: Or if any Barrel for Beer contain not of the queens standard 36 Gallons: the Kilderken 18 Gallons: the ●●rkin nine Gallons: Every Barrel of Ale. 32 Gallons: the kilderkin sixteen Gallons, and every Ferkin. Yessel for Ale, Beer. 8 Gallons. 23. H. 8. ca 4. If any have made or brought into this Kealme any Tun of Wine, not containing 252. Vessels for Wine, H●nny, Oil, Herring. Eels, Saln. ●. Gallons: or Pipe not containing 126 Gallons: or Tertian not contanning 8. Gallons: or Hogsheade not containing ●3. Gallons: or But of Malmsey not containing 126. Gallon: Or Barrel of Herring not containing 32. Gallons of Wine measure: or Barrel of Eels not cotayning two & forty Gallons: or Butte of Salmon not containing 84. Gallons: or any Kilderkins, Lertian, firkins, or Kundlets, but after The same rate. 2. H. 6. 11: 22, E. 4. ca 2: 1. R. 3. ca 13: & 28. H. 8. cap. 14. If any have made any vessel of Soap, that being empty containeth not 32. Vessels of Sope. Gallons for the Barrel: 16 for the half Barrel, and 8. for the Firkin: or weight above 26. th'. the Barrel 13. th'. the half Barrel, or 6. th'. and a half the Ferkin 23. H. 8. ca 4. If any Millers have taken toll by heaped mcasure. Toll Dish 31. E. 1. de Pistor & Bracia. If any Artificers, Workmen, or Labourers, have conspired, or promised together, or made any oaths, that they will not do their works but at a certain price or rate, or but at certain times, or but a certain work in a day, or that one of them shall not take upon him to sinishe that which another hath begone. Artificers conspiring. 2. E. 6. 15. If any Arrowheade smift have not well boiled, brased, & hardened at the point with Steel, and marked with his mark such heads of Arrows and Duarrels, as he hath made. Arrowhead Smiths , 7 H. 4. ca 7. If any person (during such time as he used the mystery of Lanning of any Bide or skin of Dre, Steer, Bul, Cow, Calf, red or fallow Daere, Goat, or Séepe) have used althe mystery of a Shoemaker, Curriour, Butcher, or of any Artificer using the cutting or working of such Leather. Tanners. If any person have gashed or cut the hide of any Bull, Ox, Steer, or Cow, whereby it is impaired: or if any Lanner have put to sale any such Hide. If any person (other than such as at Mithaelmasse. 1559 had fréeholde of forty pounds by the year, or had then any Lanhouse and did occupy tanning of Leather, or hath been an Apprentice or taught as a hired servant seven years to a Lanner, or hath been wise to a Lanner, or the son of a Lanner, and brought up four years in that Art, or the son or daughter of a Lanner, or such as hath married the wife or daughter of a Lanner that lest to the same his Lannehouse and Fats) hath tanned any Leather, or hath taken any profit by the tanning thereof. If any Lanner have suffered any hide to lie in the Limbs longer, than till the hair falleth off, or may be taken off, or have used any other, than Lime, Culuerdug, H●dung, cold water, Whose of cold water, and Okebark, in his tanning, or have overlimed any Hides, in the pits, or put the in vessels before the lime be perfectly wrought out, or have suffered his Leather to be frozen with the frost, or be parched with the Fire, or the Sun: Or have tanned any rotten Hides, or wrought them negligently in the Whose, or have not renewed the Whose so oft as need was: Dr have not suffered the Hides for utter sole and clout leather to lie in the Whose twelve months, and for the upper leathers, nine months: Or hath not sufficiently tanned any Hide: Or hath taned any hide of Ox, Steer, or Cow, other wise than whole, and without cutting any part thereof away, except three or four Bends overthwart for clout leather: Or have tanned any Bull hide, Horse hides, or Sheep skin: Or have put any of them to sale, being tanned. If any person have put to sale any tanned leather (red and unwrought) unless it be sufficiently tanned and dried, and unless it be in the places appointed for it, in open Fairs and Markets, and unlsse it be first searched and sealed: Or have departed with the hide of Ox, Steer, or Cow, but only whole, without any part cut off, except bends for clouting leather, as before. If any person have bought, contracted for, or bespoken any rough hide, or calves skins in the hair (except salt Hides for the use of ships) but such persons only as shall tawe the same: or shall, and may, by this Act tan the same: Or have bought or bespoken any tanned Leather, not wrought into made wares (other than necks or shreds of Sadlers, or gyrdlers, but such persons only, as will convert and work the same into made wares 5. Elizab. cap. 8. If any Currior have curried any leather, but in his own house, and that being in a Corporate or Market town: Or have curried any Leather not well tanned, or not thoroughly dried after his watte season: Or have used in his wet season any deceitful means to corrupt the same: Or have Curried utter sole leather with any other stuff than hard fallow, or inner sole, or over leather with any salt stuff: Or have not liquored them both thoroughly: Or have burned, scalded, or shaven foo thin, or not wrought sufficiently any Leather: Or have gashed or hurt any Leather by any means, 5. Elizab. cap. 8. Curriours. Or have refused to Curry within five days in Summer, and ten days in Winter, well and sufficiently, any Leather, brought to him by any cutter of Leather, or his servant, bringing with him good stuff for the perfect liquering of the same 5. Elizab. 8. If any Curriour have (during the time that he hath occupied Currying) used the feat of a Lanner, Shoemaker, Butcher. or other Artificer, using cutting of Leather. 5. Elizab. ca 8. If any Shoemaker have made any Boots, Buskins, Shoes, Slippers, or Pantofles, or any part of them of English Leather wet curried, (other than Deeres, Goats, or calves skins, dressed like Spanish Leather) but of Leather well tanned and curried, or well tanned only, and well sewed with thread well twisted, warred, and rosoned, and with the stitches hard drawn, with hard Leathers, and without mixing of neats or calves leather in the upper leatheres thereof: Or have put in any Boots, Buskins, Startups, or Slippers between the last of September, and the twentieth of April) meet for any person, above four years old, any dry English Leather (other than Calves or goats skins, dressed like Spanish Leather:) Or have showed for sale, any of his wares upon the sunday morning before divine service be ended 5. Elizab. cap. 8. Shoemaker Or have put into any of his said wares, leather made of Sheep's skins, Bull, or horse hide, or into the upper leather of any Shoes, Startups, Slippers, or Pantofles, or into the nether part of any Boots, (the inner sole and half of the Shoe only excepted) any part of the womb, neck, shank, flank, pole, or rhéeke: Or into any utter sole, any other than the best of the Ox, or steers hide: or into the inner sole other than the wombs, neck, pole, or chéek: or in the treswels of the double soled Shoes, other than the flanks of the said Hides, 5. Elizab. cap. 8. If any Lords of Fair or Market, have not appointed two or three honest and skilful persons, to be searchers and sealer's of Leather there: And if any the searchers and sealer's so appointed, have refused to cut the wombs from the utter sole Leather truly tanned, and before it he Curried: or have refused to seal good Leather: or made befaulte in search: or not registered the bargains for Leather, (taking his due sees) or have concealed any faults, 5. Elizab. cap. 8. If any person have denied any such searcher to enter into any place, to search tanned Leather, and wrought ware, or to seize and carry away that which was insufficient: Or if any have carried out of any Fair or Market, any whole Ox or Steer hide (whereof any sole leather may be cut) before the wombs be cut off: Or have put away any tanned leather (red & unwrought) without registering the same, and the price thereof: or have bought any tanned Leather, before it was seached and sealed, or have carried it out of any Fair or market before it was registered, 5. Eliz. ca 8. If any Goldsmith, or worker of silver, have wrought any silver, that is not so fine in allay as the Sterling, or have not set his mark upon his work before he set it to sale, 2. H. 6. ca 14. Goldsmiths & gild. And if any have gilded any Sheaths, or any metal but silure, saving the Spurs of Knights, and the apparel of a Baron, or such as are above that estate, 8. H. 5. cap. 3. If any Tile maker, have not digged and cast up his earth, for Tile, till after the first of November, or have not stirred and turned it till after the first of February following, or if he have wrought it before the 1. of March following, or if he have not wrought and tried it from stones, veins, and chalk: Or if he have made, or any person have put to sale any plain Tile under ten inches and a half in length, six inches and a quarter in breadth, and half an inch and a quarter in thickness: Or any roof Tile under thirteen inches in length, and half an inch and half a quarter in thickness, with convenient déepenessse: or any Gutter Tile, under ten inches and a half in length, with convenient thickness, breadth, and depth: And if any searchers appointed for the onersight of the true making of Tile, have not done their effectual endeavour and diligence in this behalf 17. E. 4. cap. 4. Tilemakers' If any person have sold or set forth, candles or other works of Ware to sale, at higher price than after the rate of four pence for the pound, over the common price of plain Ware between Merchant and Merchant 11. H. 6. cap. 12. aware wo●kess. If any Clothmaker have not set his Seal of lead to his cloth, thereby declaring the just length thereof, to be tried by the Water. If any person have stretched any Cloth above one yard and a half in length, or one quarter of a yard in breadth, or have put to sale, any cloth that hath shrunk more in the wetting than is aforesaid: Or have stretched any narrow strait or Kersey, above one yard in length, and half a quarter of a yard in breadth, or have put any such to sale that have shrunk more in the wetting 5. E. 6. cap. 2. Clothmaking and Dying. If any Diar of cloth, have Died any brown Blewes, Pewks, Tawneis, or Violets, that were not perfectly boiled, greined, or maddered upon the woad: and shot with good Cork or orchal sufficiently. If any person have Died any Wool for cloth called Kuffets, Marbles, Gray's, Bays, or such like, or for Hats, or Caps, unless it were perfectly woaded, boiled, and madered: Or have Died with Brazell, to the intent to make a false colour, in any such Cloth or Wool: Or have put any Flore, Chalk, Starch, or other deceivable thing upon any Cloth, (except certain Devonshire and Cornwall straits. 7. E. 6. cap. 9) Or have occupied any iron Cards, or Picardes, in rowing of any cloth: Or have sold any cloth by any less measure than after the true content thereof by the yard, and inch: Or have put to sale in this realm, any Cloth (being pressed) to be occupied in England, Wales, or Ireland 3. E. 6. cap. 2. If any Duerséets of Cloth, appointed by the justices of Peace for this year, have refused to be Duerféers, or have not within their charge, made due search thereof once every quarter: And if any person have interrupted them to make such search. 3. E. 6. ca 2. If any Kentish broadcloth (except course cloth only, not exceeding sire pound price) have been made, that contained not in length between 28. and 30. yards, being wet: and in breadth seven quarters within the lists: and in weight 76. pound, being well scoured, thicked, milled, and fully dried 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 wools by Halifaxe men, See 2. & 3. phil. & Mar. cap. 13. If any person have used, or caused to be used any racking, beating, or casting of any deceitful liquor, or other mean, with any kind of linen cloth, whereby the same became deceitful, or the worse for the good use thereof 1. Elizab. cap. 13. Linen cloth. If any owner of any Scite or Precinct, and demesnes of any late diffolued religious house (that was in yearly value under two hundred pound,) do not keep an honest and continual household there upon, and do not occupy so much of the said demesnes in tillage, as was occupied by the space of twenty years, before the seaucn and twentieth year of King Henry the eight, 5. Elizab. ca 2: 14. Elizab. cap. 11. Scites of religious houses. If any person having in his hands firtie acres of arable and pasture together, or of the one sort alone, apt for tillage, have not within this year tilled and sowell seasonably (without fraud) one Acre of land with Flare seed, or Hemp seed, or both. Flax and Hemp. But ground in a Park for Deer, and Wood land, Grove, Meadow, Fell, fen, Saltmarsh, Heath, Common grounds vanpte for ullage, grounds not tilled within fiftiey ears before this Statute, and grounds ploughed only for cleansing of it, shall not be accounted in these sixtic Acres, 24. H. 8. cap. 4: & 5. Elizab. cap. 5. If any person have at one time kept above the number of 2000 sheep of all sorts, against the purport of the Statute 25. H. 8. ca 13. 2000 Sheep If any owner, Officer, or kuler of any Fair or Market, have not appointed one certain open place there, for the sale of horses, geldings, mares, and colts, and one sufficient person to take toll, and keep the said place: And if any such Toll gatherer, or his Deputy have taken any more than one penny toll for one contract, or for entering the names of the parties, and that in the same place only, and between ten of the clock in the morning, and Sun setting, 2. & 3. Phil. & Mar. cap. 7. Fair and Market for horses. If any Inholder (dwelling in any City, Town, Corporate, or Market Town, wherein is any common Baker that hath be apprentice there seven years) have within his own house made any horsebreade: or (dwelling in any other thorow-faire) have made it insufficiently and not of due assize 13. R. 2. cap. 8: & 32. H. 8. cap. 41. Inholder. Horsebread. If any Inholder have taken any thing for litter: or have taken above one halfpenny in a bushel of Dates, over the common price in the market. Hay and Oates. 13. R. 2. cap. 8: & 4. H. 4. ca 25. If any person have been retained into service to work for any less time than a whole year, in any the arts of a Clothier, Weaver, Tucker, Fuiler, Clothe-worker, Sherman, Dier, Hosier, tailor, Shoemaker, Tanner, Pewterer, Baker, Brewer, Glover, Cutler, Smith, Ferrour, Curriour, Sadler, Spu●rier, Turner, Capper, Hattemaker, Feltmaker, Bowyer, Fletcher, Arrowhead maker, Butcher, Cook, or Miller. Seruantsnot retainable for less than one year. And if any person being unmarried or under 30. years of age, and married, and being compellable to serve in any of those Arts, have refused to serve. Refusing to serve. If any person being between the age of twelve years and threescore and being compellable to serve in husbandry, have refused to serve in husbandry after request thereof made by any person keeping husbandry: And if person have given any wages, contrary to the rates of wages of servants, and labourers, appointed and proclaimed. Greater wages. If any person retained in Husbandry, or any the said Arts, have after his reteinour expired, departed out of one limit, town, or parish, into an other, without a Testimonial: And if any person have accepted into his service, any so departing without showing such Testimonial. Testimonial If any person have put away his servant before the end of his term, without reasonable and allowed cause before a justice of the Peace, or at the end of his term, without a quarters warning before given: And if any servant have departed without such cause before the end of the term, or at the end thereof, without such warning given before two lawful witnesses. Put away, or departed away. If any Artificer, or labourer, hired by the day or week, have not continued at his work so many hours in the day as he ought: Or taking any work by the great, have unlawfully departed before the finishing thereof. Undertake work, and not finish it. If any servant, workman or labourer have wilfully and malitiosly made any assault or other person, having the charge of such workers or work. Assault Master or dame If any Constable, or head Officer, have not upon compiaint put into the stocks two days and one night every Artificer or person, néete to labour, that have refused to labour in Day time or Daruest, for the getting or carrying of Corn, Day, or Grain, being thereto appointed by a justice of Peace, or such Constable, or heud Officer. Labour in Hay time & Harust. If any person have taken any Apprentire against the order of the Law: and if any person have therein as an apprentice seven years. Apprentices 5. Elizab. cap. 4. & 5. Touching the abiding places and collections for the poor, there is no general order taken in the Shire of Kent. 14. Elizab. cap. 5. Poor. If the Churchwardens of any Parish have not every Sunday levied the money for relief of the prisoners in the jail, and one in every Quarter paid it to the Constable of the Hundred: Or if that Constable have not at every Quarter Sessions paid over the same to the collector thereto appointed: Or if such collector have not wéekly distributed the same for relief of the said prisoners 14. Elizab. cap. 5. Prisoners relieved. As touching stocks and store of etc. for the working poor, or houses of correction for the idle poor, etc. little is done in this Shire as yet, but for the most part left to the Parishes. Poor setto work. 18. Elizab. ca 3. If any person above sire years of age (except Maidens, Ladies, Gentlewomen, Nobles, Knights, Gentlemen of twetie marks by year in lands, and their heirs, and such as have borne Office of Worship) have not worn upon the Sunday and Holiday (except it be in the time of his fravaile out of the City, Town, or Hamlet where he dwelleth) upon his head, one Cap of wool, knit, thicked, and dressed in England, and only dressed & finished by some of the trade of Cappers 13. Eliz: cap. 20. caps. If any man borne within the queens dominions (except it be the son and heir apparent of a Knight, or the son of one of higher degree, or such as may dispend twenty pounds in lands by yearre, or revenues rr. pounds in lands by year, or revenues for life, or be worth two hundredth pounds in goods, or have been head Officer in any City, Borough, or Tower Corporate, or be the queens servant in ordinary, and wearing her livery, have worn any manner of Silk, in, or upon his Hat, Bonnet, Nightcappe, Girdle, Scabbard, Hose, Shoes, or spur leathers: And if any person knowing any servant of his to offend herein, have not within fourteen days next after such knowledge, put him out of service, if he were no Apprentice, or hired servant, and if he were, then if he have not put him away at the end of his term, or if, having put him away therefore, he have retained him again within one year next after that offence 1. & 2. Phil. & Mar. cap. 2. Silk. The Statute of Apparel (made 24. H. 8. cap. 13) is not thought altogether so meet for this time, as it may appear by some Proclamations Published. If any Bridges in the high ways (being out of the Cinque Portes and members thereof) be broken, or decayed, to the annoyance of Passengers, and if yea, then what Hundred, City, Town, Parish, or person certain, or body politic, ought of right to repair or amend the same 22. H. 8. cap. 5. Bridges. If the Constables and Churchwardens of any Parish, have not in Easter week called their parishioners together, and appointed overseers of the works for amendment of the high ways, leading to any Market, or have not appointed the fire days for that work: and if any such overseers, have refused that charge. Highways. If any person, having a Plough land in tillage or pasture, or keeping a draft or Plough, have not found thereto one Wain or Cart, furnished to work eight hours every of the said days: Or if any other person being assessed in subsidy to five pounds in goods, or forty shillings in lands, have not likewise found two able men: Or if any other householder, or Cottager, have not by himself, or an other so wrought every of the same days. If the Hedges, Ditches, Trees, and Bushes, in and on each side of any such high way be not kept low, scoured, and cut dowene by the owners of the grounds adjoining: If any such overseer, have not within one month after any of the said offences done, presented the same to the next justice of the Peace: And if any person occupying land adjoining to any such high way, have cast the scouring of any ditch thereof into the high may. If any overseers, Constables, or Churchwardens, have not levied the forfeitures for the offences aforesaid, and employed them upon their said high ways, and accoa●●ed thereof. 2. & 3. Phil. & Mar. cap. 8: 5. E●zab. cap. 13: 18. Elizab. ca 9 If any person have, for lucre maintained, or place of bowling, coyting, closhe, ca●les, tennis, dicing, tables, carding, shove-groate, or any other game prohibited by any former Statute (as football, and casting of the stone) or any other unlawful ●●me game now invented: If any Artificer of any occupation, or any husbandman, Apprentice, Labourer, servant at Husbandry, jorneyman, or any servant of Artificer, or any Mariner, Fisherman, Waterman, or Servingman, (other than of a Noble man, or of him that may dispend one hundred pounds by year, playing within the precinct of his masters house have played out of the Christmas at any of the said unlawful games, or in the Christmas out of the house or presence of their Master. 33. H. 8. ca 9: & vide. 12. R. 2. ca 7. 8. 10. Unlawful ga●●● If any person have shot in, used, or kept, any Handgun, but such as is in stock, and Gun one yard long: or any Hagbut, or Demyhake, not being 3. quarters of a yard long. Crossbows and Guns. If any person (not having one hundredth pounds revenue by the year) have carried in his journey any crossbow bend, or Gun charged, unless it be to the Musters: If any person have shot at large (other than at a Butt or Bank of earth in place convenient) at any thing with any Gun, in any City, borough, or Market Town, or within a quarter of a mile of any of the, or have commanded his servant to shoot in Crossbow or Gun, at any thing other than a Butt or Bank of earth: Or if any person (not having a hundredth pounds by pear) or not dwelling within five miles of the Sea coast, or not dwelling in a house two furlongs distant from any City, Borough, or Town, do keep or have in his house any Crossbow. 33. H. 8. c. 6. If any person having a hundredth pounds by year, and having seized any crossbow or Gun by virtue of this Act, have not broken the same in pieces within 20. days next after such seisuret: ibid. If any Merchant Stranger, being of any Country from whence Bowestaves have been sent into this land, have not (for every Tun weight of bird that his vessel containeth) brought hither four Bowstaves. 12. Edward. 4 cap. 2: 33. Henry 8. ca 10: & 37. H. 8. ca 7. and for every Butt of malmsey ten Bowstaves. 1. R. 3. ca 11. If any man being the queens Subject, and not having reasonable cause or impediment, and being within the age of firtie years (except spiritual men, justices of the one Bench, or other justices of Assize, & Barons of the Escheaquer) have not a long Bow and Arrows ready in his house, or have not used shooting therein: or have not for every man child in his house between seven years and seventeen of age a Bow and two Shafts, and for every such being above seventeen years, a Bow and four Shafts, or have not brought them up in Shooting: If any man, under the age of four and twenty years, have shot at standing pricks: or (being above that age) have shot at any mark under eleven score yards with any Prickshaft, or Flight. Archery. If the inhabitants of any town have not made and continued their Butts as they ought to do. Butts. If any Bowyer, have not for every Bow that he made of Ewe, made also four others Bows of apt wood to shoot in: Or have not sold his Bows for all ages, at their due prices: If any stranger borne, not being a Denizein, have used to shoot in a long bow without the queens licence: or have conveyed out of her Maiestries dominions, any long Bow or Shafts without such licence. Bowiers. 33. H. 8. ca 9 If any temporal person, having estate for life in fréeholde, lands, or tenements, to the value of 200. ●. by year or under, and not above 400. ●. Armour. Or (not being other wise charged) and having fees, annuities, or copiehold lands, for life to the value of 30. ●. or above, or having goods to the value of 10. ●. or upware, have not and keep not in a readiness, such Horses, Geldings, Weapon, armour, and other furniture for the wars, as after the proportion of his ability he ought by the Statute thereof made to have and keep: 4. & 5. Phil. & Mar. ca 2. If any temporal person of full age (whose wife not being divorced, nor willingly abseting herself from him, doth wear any Gown or Petticoat of silk, or any Velvet in her kirtle, or in any lining or part of her Gown (other than in Cuffs, or Purfles) or any Frenchhoode or Bonnet or Velvet with any habiliment, past, or edge of gold, pearl, or stone, or any chain of gold about hit neck, or upon any her apparel) have not found and kept a light Horse furnished, except he have been otherwise charged by the Statute to find Horse, or Gelding. 33. H. 8. ca 5: 4. &. 5. Ph. &. Mar. ca 2. Horse for apparel. If the Inhabitants of any Parish, Town, or Borough, have not, or keep not, such common armour and furniture for the wars, as hath been appointed for them by the Commissioners thereto assigned: 4. &. 5. Phi. &. Mar. ca 2. Commune armour. If any person being generally or specially commanded to Muster before any (having authority for the same) have without true and reasonable cause absented himself, or have not brought with him in a readiness, his best furniture of array & armour for his own person. Musters. If any person authorized to Muster, or to levy men, for the queens service in war, have taken any reward for the discharge or sparing of any person from that service: or if any person having charge of meanne for warfare, have not paid to his soldiers their whole wages conduct and cote money, or have for any gain licenced any of them to departed out of the service 4. & 5. Phil. & Mar. ca 3. Captains. If any Soldier serving the Queen in her wars, have given away, wilfully purloined, or pur away any Horse, Gelding, Mare, or harness, wherewith he was set forth. Soldiers. 2. & 3. E. 6. ca 2. 4. &. 5. Phil. & Mar. ca 3. If any person have conveyed, sold, or given into any place beyond the Sea, out of the queens dominions, or to any Scottisheman, to be conveyed into scotland any Horse, Gelding (or Hare above ten shillings price) without the Queen's licence under her great Seal, or privy Signet, unless it were to serve the Queen in her wars. Couney Horses. etc. 1 E. 6. ca 5. If any person have put to feed in any Forest, chase, Moor, Marish, Heath, Common, or waste ground, within this shire, where any Mares are used to be kept, any stoned Horse, being above two years old, and not being fourteen handfuls high, between the lowest part of the hoof, and the top of the wither: If any such Forest, or grounds, have not been yearly driven within 15. days after Michaelmas by the owners, or officers thereto appointed. Horses and Mares for breed. 32. H. 8. ca 13. If watches have not been made upon the Sea Coasts in such places, and with such number of people, and in such manner as it was wont to be. Sea Watch. 5. H. 4. ca 3. The Statutes of levying the wages of the Kinghtes of the Parliament (made. 23. H. 6. cap. 11.) hath no great use. Parliament. Note also, that these Statutes following. are to be openly published at any Sessions of the Peace. viz. The Statutes (36. E. 3. cap. 2. 3. &. 4.) shall be proclaimed by the justices of Peace every year, and thereof informed the people. purveyors. 23. H. 6. cap. 2. Alformer Statutes for victuallers being in force shall be proclaimed two times yearly, in the Sessions of justices of the Peace. Victuallers 23. H. 6. ca 13. The Act for Archery (33. H. 8. ca 9) must be proclaimed at the several Sessions of the Peace. Archery. Of the Enditementes, and Presentments given by the jurors: and of the Matter and forine, and receiving, and rejecting of them. CAP. V. THe preparation to this inquiry thus made, let us also look upon the performance of the same. The understanding (or knowledge) which the justices of the Peace do take by the travel of these Enquirours, is by the mean of their reaport, put in writing, and commonly called, an inditement, or Presentment between the which two words (howsoever they be confounded in common speech) me thinketh that there doth easily appear a certain difference. Presentmet. For I take a Presentment to be, a mere denunciation of the jurors themselves (or of some other Officer, as you shall hereafter hear) without any other information: and an Enditement to be, the Verdict of the jurors, grounded upon the accusation of a third person: So that a Presentment, is but a declaration of the jurors (or Officers) without any bill offered before: & an inditement is their finding of a Bill of accusation to be true. Enditemet. The òne seemeth to come of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I accuse: the other of the French Presenter, to offer unto a man, or to set before him. But (taking them as others do) let us consult with M. marrow and others, that we may learn of them what things be requisite to make a good inditement. For the justices of Peace ought to have an eye upon the Enditementes taken before them, and therefore they use to command, that the inquest shall take no Bills, but such as the justices themselves have first perused: Howbeit, if the inquest do the contrary, it is good enough, so long as their bills do carry sufficient form and matter with them. justices of the Peace must look upon indictments. And if the bills do want form only, the justices may send for the Presenters, and cause the to reform them at any time before they be removed into the King's Bench Stanf. 97. And thereupon it is said 35. H. 6. 14: & 12. E. 4. 18.) that if a bill of inditement be delivered to a justice of the Peace, at (or before) the Sessions, which he promiseth to read, and to deliver to the jury, and doth it accordingly, yet he shall not be punished for it, in a writ of Conspiracy: But it may be thereupon deubted, whether he should be so charged or no, if (upon former communication had, and request made) he him self did draw and write the bill: and therefore the safest way is, to suffer the Clerk of the Peace, or some other Ministe: of the Court, to draw and frame if, But to the matter. First, this is general, that all Bills, Informations, and indictments grounded upon penal Statutes, wherein the Prince only is to reap the forfeiture, aught to be commenced within four years next after the offece committed: and if the suit be given to any other person, for himself and the Prince, or for himself only, that aught to commence (for the Prince) within two years, and (for every common person) within one year, next after the offence done: And otherwise it is merely void: unless it be otherwise limited by that special Statute upon which the Information, inditement (or Presentment) is made and framed. 7. H. 8. ca 3. And if many be joinfly indited in one Enditemet, yetare they also each one severally indited thereby. 5. E. 4. 5. Markam. Secondly, all indictments, for as much as they be in the nature of a declaration, aught to contain certainty, and therefore (as saith M. Marrow) five principal things (be moste commonly) requisite in presentments before the justices of Peace. (videlicet.) 1. The name, surname, and addition of the party indited: 2. The year, day, and place, in which the offence was done: 3. The name of the person, to whom 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, felony, or trespass. The name and surname of the party indited must be certainly expressed: & if the inditement be of an Accessory in felony, the name of the principal must be set down also. The name, & surname. For if the inditement be, quoth A mandavit cuidam ignoto occidere B. id quod fecit, this is vicious: but in treason, trespass, or maihem, where all be principals, it may be, quoòd procuravit curavit personas ignotas, to do the treason, trespass, or mayhem. Marr. Besides the name and surname of the party indited, there ought also (by the Statute) (1. H. 5. ca 5.) in every presentment wherein process of outlawry lieth, to be added, his estate, degree, or mystery, and the County, Town, Hamlet, or Place, where he is, or was conversant. Addition of estate, degree, etc. And even so ought it to have been at the common Law also, as touching names of dignity, made by creation, as Duke, marquis, Earl, Viscount, Archbishop, Bishop, Khight, or Sergeant at the law, because every of these titles were accounted parcel of the name: But it was not so, for the names of Baron, Banneret and Esquire, (which are but names of dignity without creation,) nor for Chancellor, Treasurer, Chamberlain, Sheriff, Coroner, escheator, Bailiff, Deane, archdeacon, Deacon, prebendary, or Person (which are names of dignity by reason of office only) unless the presentment did charge them in respect of their offices, for then the name of office also, as Bailie, or Elchaetor, aught to be used in the inditement. Marr. But now Baron, Knight, Esquire, Gentleman, Alderman, Widow, Singlewoman, Deane, Archdeacon, Person, Doctor, Clerke, are good Additions of estate or degree, (as & take it) within the meaning of this Statute of Additions: But Servant, Butler, or Chamberlain, are not, because they be common to gentlemen, and yeomen, and thereby uncertain. Degree, or mystery. So, Merchant, Grocer, Mercer, Taylor, Broker, Husbandman, Hosteler, Labourer, Lighterman, Waterman, & c. be good Additious of mystery: But Citizen is not, 'cause it is no mystery, art, or degree: Neither is Mamtainer, Vagabound, Heretic, Dicear, Carder or such like, any good addition, because they are every one evil, & against the law. Also by the said Statute, (as I said) the Addition ought to compprehend the County, and the Town, Hamlet, or place (known out of any Town, or Hamlet) whereof the party is, or was: So that if there be divers Hamlets in one Town, he may be named of the Town, or Hamlet: But if he be with in a Town, than he must be named of the Town. Place. 35. H. 6. 30. And if the Town and the Parish, bear both one nanfe, he may be named of the one, or of the other of them: But if there be two Town in one Parish, than he ought to be named of the Town, and not of the Parish. 5 E. 4. 129: & 22. E. 4. 2. As for the Alias dectus, (which is often put in the Addition) the use thereof is chief in writs grounded upon especialties, and to make the writ and the writing to agree. Alias dicius. For (as touching Enditemets) if the party be not well named, both for his name of Baptism, Surname, Mystery, or degree, and place at the first, then can not the Alias dectus make that good which was void before. Marr. And it appeareth (1. E. 4. 2: & 2. E. 4. 1. 6.) that the Addition of the degree or mystery must always be such as the party hath at the very time: But the Addition of the place may be of such where be was at any time before, so that then the word nuper be used there. Furthermore the inditement must contain the day, year, and place, in which the offence was committed. The year, day, and place. 8. E. 5. 8: 2. H. 7. 7: 25. E. 3. 43. And therefore if the inditement suppose it the tenth day of March, without any more, that is not good: But if it be, the tenth day of March last paste, without showing in what year, that is good enough: for the certainty may be found out by the Style of the Sessions. So it it be the tenth day from Easter Anno 23. Elizab. that is good: Likewise if it be in the Vtas of the holy Trinity: and it shall be there understood to be the very day of the Vtas (videlicet) the eight day after the feast, and not quarto die after the Vtas: But if it be in festo Sancti Petri, it is not good, because there be divers feasts of Saint Peter, and none without addition, saith 3 H. 7. Fitz. indictments. 22. If it be Anno Domini millesimo quingentesimo octuagesimo primo, the year shall be accounted after the computation of the Church of England, and not of Rome, or other Countries abroad. If the offence be done in the night before midnight, the Indictment shall suppose it to be done in the day before: and if it happen after midnight, than it must lay it to be done the day after. If it be in festo of any Saint, it shall be construed to be in the very day of the feast, and not in the Eue. But if the presentment be in the Negative, or in the affirmative rising upon a Negative, as that A. hath not scoured such a Sewer, or that by the not scouring thereof such Meadows be drowned, in these cases there needeth no year nor day. Marrow. And not only this certainty of the time, but that of the Place also must be contained in the Enditemént for it was adjudged (25. E. 3. 43.) that a man should not be put to answer to an inditement of killing the kings Dear, because there was no place named, in which the offence was done: So an inditement supposing a felome to be done in such a place of such a County, where in truth there is no such place in that County, is merely doyde by the Statutes. Place. 9 Hen. 5. cap. 1: & 18. Hen. 6. cap. 12. If a man being stricken in Midlesex, had died thereof in Essex, the Books. 3. H. 7. 12: 4. H. 7. 18: 6. H. 7. 10: 7. H. 7. 8: 10. H. 7. 28: & 11. H. 4. etc. did not agree in which of these Counties he should be indited. But the Statute (2. & 3. E. 6. ca 24) taketh order, that if the stroke (or poisoning) happen to be in one County, and the death in an other County, the inditement in the County where the death is shall be good: and likewise, that if a murder, or felony, be done in one county, and a man becometh Accessory thereto in an other County, the inditement against the Accessory shall be good in that County wherein he becometh Accessory. Where (by the way) you may see in plain words of this last Statute, that justices of the Peace may take indictments of Murder, as of Murder, though M. Fitzh. (Fol. 17.) deny it, saying, that they can not inquire of Murder saving only as of Felony, or Manslaughter. And you shall read of an inditement of Murde (before them) received. 3. H. 7. 5. agreeable whereunto was the opinion of Hales, and Portman, justices, as I have séeene in a Reaport of justice. Dalison. The certainty of the name of the person, to whom the offence is done, is also in most cases requisite. The name of the person to whom the offence was done. And therefore, if the presentment be, quod bona & catalla cuiusdam ●gnoti cepit vi & armis, or quendam ignotum deproedavit, it is not good for the uncertainty, yet if Felonicè be added, than it is both the cases a good inditement of Felony, because of the, kings advantage of forfeiture thereby. You may see an inditement (Fitzh. Endit. 9) quoth A. verberavit, & 20. jaccos pretu, etc. was thought sufficient without showing to whom the jacks did belong: whereat Master Stanford (Fol. 95. maruaileths, saying that be saw no cause why it should be good, unless it were for that the matter could not be made more certain. But peradventure adventure certainty in Inditements, was not in those days thought so needful, as now it is holden. If the goods of a Parson of a Church be taken, the inditement must be, bona rectoris, and not Ecelesioe. And if the goods of the Church, then Bona parochianorum and not Ecclesiae: If they be the goods of a Mayor and Commonalty, and the Mayor dieth before the inditement, than it shall be bona communitatis, saith Marr. but inquire of it, because there is no such name of Corporation. If the inditement be, quod A. verberavit B. & unum equum praetu 20. ssolid. felonicè coepit, and doth not say, ●psius B. yet it is good enough 30. H. 6. Fitzh. Endit. 9 But if it be quod unum equum praedicti I. coepit, and there were no mention of I. before, than it is void 9 E. 4. 1. If the goods of a man be taken, and he maketh his Executors, and dieth, the inditement shall be, bona testatoris, but if they were taken after his death, it shall be, bona testatoris in custodia Executorum existentia. If the inditement be, quod A. furatus est tunicam hominis ignoti, quem invenit mortuum, that is not good. 11. R. 2. Fitz. Endit. 15. If a man take away a coat Armour, which hangeth over a Loom in a Church, the inditement shall say, bona executoris of him whose Loom it is: but if a grave Stone be taken away, the inditement shall be, bona Ecclesiae: Mar. If my goods be taken by a trespasser, and an other taketh them from him, the inditement shall be, bona of him which had the last possion. But if I bail goods to one, from whom they be rob than it shall be, bona of me in his keeping Marr. If an inditement be, bona Capallae in custodia, etc. or bona Domus, or Ecclesiae tempore vacationis, it is good 7. E. 4. 14 The name (& value) of the thing in which the offence is committed, ought also to be comprised in the inditement: for an inditement of the taking bona & catalla, whether it be in Trespass or Felony, is not good, for the uncertainty what goods they be: And if it be of dead things, it may be bona & catalla expressing the names thereof in certainty: But if it be of things living, it shall not say bona & catalla but equum, bovem, onem, etc. The ●ame and value of the thing. Again the value (or price) of the thing is commonly to be declared: in Felony, to make it appear from petit Larcenie: and in Trespass, to aggravate the fault and fine: But yet an inditement of the taking of beasts feraenaturae, as dear, hares, partridges, or pheasants, is not good, unless they be taken in a Park, or Warrein, that be liberties. 8. E. 4. 5. So of Charters, because their value can not be esteemed. In all cases (saith M. Marrow) where the number ought to be expressed in the inditement, there also it must be said, praetij, or ad valentiam: as if it be of the taking of doves in a dove-house, or young hawks in a wood: And where it is of a live thing, or things, it must be praetij: and so of a dead thing in the singular number: but if it be of dead things in the plural number, than it must be ad valentiam and not praetij. Praetis & not ad valentiam etc. Again, if it be of a dead thing that goeth by weight, or measure, the form is to say praetij, and not ad valentiam. If the inditement be of taking away Coin, which is not currant, it shall say praetij: otherwise it is of money currant, because that carrieth his value and price with it. If it be quòd proditoriè facit grossos, veldenarios, it shall be, ad valentiam, and it shall not say, 20. libras in denari●s, or in pecunia Domini Regis, but ad instar pecuniae Domini Regis. Marr. Sundry other dainty and nice differences doth M. Marrow make, where a man shall say praetis, & where ad valentiam, binding the inditement to that rule which the Register taketh for original Writs of Trespass: But for as much as Nele (9 E. 4. 26) saith, that indictments be not tied to any such form, and because that rule of the Register is not very constantly observed in Trespasles themselves, as a thing not material in the Opinion Of M. Fitzh. in his Nat. Br. (Fol. 88) I thought it best to make choice of these (that I have) for public use, and to leave the rest for private learning. To the further certainty of the inditement, the manner of the fact itself, and the nature of the offence, aught to be mentioned also, for if the inditement be, quod A. captum profelonia, felanice & voluntaerie ad largum ire permisit, this lacketh the certainty for what felony he was taken, and is thereby void 8. E. 4. 3. So, if it be, that a man made 100, shillings Of Alchemy ad instar pecuniae Domina Reginae, and do not show like to what money, as groats, or shillings, etc. it is void Fitzh. Endit. 10. The manner of the fact, and nature of the offece If the inditement be, that a man is a common theéese, without the wing especially, in what thing, it is noting worth 22. lib. Afs. Pl. 75. And so, if it be of a general extortion against an Ordinary, without showing in what, by 25. E. 3. Stat. 3. cap. 9 And so also, if the inditement stand upon these terms Only, Infidiatores viarum, & depopulatores agrorum, by 4. H. 4. cap. 2. And there upon the Court said, (17. E. 4. 4.) that upon such an inditement, the party shall be dismissed. Howbeit the Commission of the Peace hath the words, in infidies iacuerint, but it goeth further, ad bentem nostraem maybemandam. Neither is it good in an inditement against an Accessory. to say, that he received the goods, without telling, that he received 25. E. 3. 39: nor without telling, that he (knowing it) received him feloniously 7. H. 6. 42. unless he receive one that is attainted of felony in the same County: for then heée must at his peril take knowledge of the Attainder, and so no suehe mention of knowledge needeth to be used, as it is holden 8. E. 4. 3. Sed quere inde. And if such an inditement be, Sciens ipsas quatuor homines feloniam, etc. fecisse, apud D. feloniceè recepit, it is not good, for that it showeth not, which of them he received 30. H. 6. cap. 2. Concerning the nature of the offence, this is to be observed, that in an inditement of treason (presentable before the justices of Peace) the word proditory ought to be used. In the inditement of Murder, murdranit is necessary. 9 E. 4. 26. for if it be, quod A. occidit B, malilia praecogitata it is not enough, because one man may kill an other so, in a Wager of Battle, and yet be no muderer. And for the same reason, if it be of Manslaughter, it must be Felonice. An inditement was, that the son had taken the sick father, and carried him into the cold weather, whereof he died, but it was disallowed because it lacked felonice. Fitzh. Endit. 3. Again, if the inditement be of Burglary, then must be Burglariter: if of Rape, then Felonicè rapuit, for (without rapuit) it sufficeth not to say, Felonicè caepit Aliciam, & eam carnalster cognovit. If it be, Furatus est, it seemeth to Marrow to be good without the word felonicè, but 18. E. 4. 10. is against him. If it be felonicè abduxit unum equnm, it is not of value without saying, caepit, neither is caepit good alone, without abduxit: for it must be felonicè caepit & Abduxit. Fitzh. Endit. 2. And if it be, felonicè succidit arbores, & illas asportavit: or, vi & armis succidit arbores, & felonicè asportavit, neither of theme will make it Felony, because the trees be a part of the fréeholde, whereof no felony can be committed: But if it be, vi & armis sucidit arbores, & eas felonicè (at an other day after) caepit & asportavit, that will make it Felony, by reason that the severance of the trees from the fréeholde, & the taking, were at divers times. Mairr. And albeit the inditement be of a Mayheme, it must say, felonice n●●yhem●mit, and yet mayheme is no Felony, but an heinous, and (as it were) a Felonious Trespass But where in an inditement of felony, the word felonice wanteth, there the inditement may nevertheless stand good to make it a Tiespasse. 2. H. 7. 7: 6. H. 7. 4: & 18. E. 4. 10. And in an inditement of Trespass, it seemeth that the words contra pacem ought to be yet still: But the necessity of the words, vi & armis, (viz.) cum baculis, cultellis etc. be taken away by the Staute. 37. H. 8. ca 8. Nevertheless M. Stamf. (F. 94.) is of the opinion, the it is not amiss to use those words, so long as the circumstances of the fact do require them, for (saith he) The circumstances of an act, do either aggravate, or diminish the offence therein. If the inditement be, of forcible entire, than the words vi & armis be peerless, because they are necessarily employed in the Forcc, Marr. And if the inditement be founded upon a Statut, it ought to say, contra formam Statuti, or (where many statutes do concern one offence, as in the case of Liveries and such like) contra formam disersorum Statutorum. But it is not of necessity, that the Statue be rehearsed, but only that the offence against the Statute be sufficiently desribed. Thus far of these points. But now let us with a few words consider what Enditementes be receivable by the justices of Peace, and what ought to be rejected by them. Generally, they may receive indictments before themselves, of all causes, being either within their Commission, or within The statutes whereof they have to inquire. Enditemeets to be received or rejected. And they may also receive Enditementes taken before the Sheriff in his Turn lawfully, that is to say, so that the Tarne be holden within the month after Easter, or within the month after Michaelmas, and so that those indictments or Presentmentes be indented and sealed between the Sheriff and the jurors, and so that they be made by the Dth of twelve men at the least and that those jurors be of good fame and Legales homines, and may dispend yearly twenty shilliings of Fréehold, or twenty six shillings eight pence of Copiehold W. 2. ca 14: 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 said Statute (1. E. 4. ca 2.) bindeth the Sheriff to certify to the justces of Peace at their next Scssions, the Enditementes found in high Turn or Lawdaye. It seemeth also (by way of admitting) in the Book (27. H. 8. 2.) that the like aught to be done of the Presentments of felony in any Leete, by virtue of the said Statute of 1. E. 4. ca 2: But that is further to be inquired of, for I find no better Warrant for it. This is certain, that justices of the Peace ought to receive Enditementes found in any Lectes or law-days upon the Statute made for the breeding of horses: to which end also, the Courtholders of such Leetes are bound to certify the same unto them within the spare of forty days. 32. H. 8. ca 13. justices of the Peace have none auctoritis to receive an inditement, of the kill of a man se defendendo, saith Stamf. 15. as he had heard say. But inquire further thereof: for though it be not felony, as appeareth by the Statute of Glo. c. 9 Yet be their other words in their Commission large enough to give them power to hear and determine such an offence. But they are not to receive an inditement of the kill of a Hart proclaimed, for the jurisdiction of it belongeth to the justices of the Forest. 21. H. 7. 30. Fineux. And as it seemeth) they may reject an inditement that findeth any matter of Record, as outlawry, or such like, unless it be showed unto the jurors sub pede sigilli: for jurors are to find matters in deed only, and not of Record, 1. H. 7. 6: & 3. H. 7. 1. & 10: And so, if the Sheriff will offer Enditementes of Liveries, Ravishment of Women, or of Felonies by Statutes, or of such other causes, whereof they have no power to inquire in their Turns, the justices 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 justice of the Peace, I thought to say of Enditementes, the rather because it behoveth him to judge of them, and for that they be the chief ground work whereupon the whole Trial is afterward to be built and framed. Of the presentments and Informations of Officers, and other men. CAP. VI Having showed how these justices take knowledge by the labour of jurors in Inquests, it followeth to declare also how they may have understanding by other men: And that is to be done, either by the presentment of persons public, or by the information of private men. In some cases therefore, these justices may hear one an other: for every justice of the Peace, may (upon his proper knowledge) make Presentment at the Sessions of any offence done against the Acts (2. & 3. Phil. & Mar. ca 8: & 5. Eliza. ca 13.) concerning the amendment of the High ways. Presentmets of justices of peace and constables. And in this, & such like cases, his reaport hath the force of a Presentment of twelve men: So that he and his fellows may procée upon it. 21. H. 6. 5. Of like value is a Presentment made at the next Sessions by Searchers appointed to examine the true making of Tile. 17. E. 4. ca 4. And of like strength also (as I think) is the presentment of the Constables concerning sundry points contained in the Statute of Winchester. 13. E. 1. This Court may also be given to understand by the means of private men: and that either for the Queen only, or for the Queen and themselves, or in some special causes for themselves without the Queen. Information by private men. That which is for the benefit of the Queen, or for her and the party, is sometimes moved by the free offer of him that openeth the matter, and sometimes wrought by commandment of the Court. The free motion of the party, 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 always of one force in this business. Free & Voluntary, information. For, albeit that we read (1. E. 5. 6.) that the Court of Chancery will sometimes both take knowledge, and also award Process, upon an Information by word in the behalf Of the Prince, and that 39 H. 6. 41. also admitteth such a matter: Yet I thinks that before justices of the Peace, these suggestions and Informations both (be they by word, or writing) are but of the force to stir up the justices to recommend the cause to the inquest, and not to award any Process upon them: unless it be in certain causes, where that validity is specially given them by the Statutes, as you shall hereafter perceive. There was once a time (I confess) when justices of the Peace might have awarded Process upon an Information for the King only) of offences against any penal laws, even as they may yet upon Enditementes against the Peace: But that lasted not long, and therefore that course is holden now in special Statutes only. Nevertheless, at every Sessions (saith judge Prisot. 35. H. 6. 15.) the justices of the Peace do use to make Proclamation, that if any will inform for the Prince, he shall be heard: and thereupon any man may come in, and may both inform the justices of the Peace, and give evidence to the inquest without danger of Conspiracy, by the opinion of the Court in the last said book. And as that which ariseth upon Presentment or inditement, is properly called the suit of the Queen: So this Other (whether it be by Bill, plaint, Complaint, or Information, is most aptly termed the suit of the party, at whose suit the justices Of the Peace may hear of the abuse of Innkeepers, and Victuallers, and of Extortions, and Regratories and perhaps of higher offences also, either for himself or for the Queen, but of the other Articles in the Commission, at the suit of the Queen only, by the express form of the words in the last Assignau●mus of the Commission of the Peace, But therein among other, some amendment (if I be not deceiveb) is to be desired: if it be not ment the they shall hold plea of Appeals between party & party, which the Statute 8. H. 6. c. 10. seemeth also to allow unto them, In other Statutes at large such rules are to be followed, as they themselves do prescribe. And in this Information, the Statute of Additions (1. H. 5. ca 5.) seemeth upon the bare words to have no place, for Informations be not mentioned in it and upon that reason the Court (13. H. 7. 21.) did hold it clear, that if Rescous be returned by the Sheriff, against certain persons without their Addititions, yet in the case they may well be Vtlawed upon it. The other compulsory information, groweth by examination Of witnesses called into the Court, and is set forth in the Statute of Drovers, & Badgers, (5. Eliz. ca 12.) where it appeareth, that upon the examination of two lawful witnesses, the justices of Peace may make Process, as if it were upon an Inquisition of twelve men. Forced Information. The like may they do, upon the Statute of Armour 4. & 5. Phil. & Mar. ca 2. Suit between party and party. And the berry like also may they do upon the Statute made against Forstallers. 5. E. 6. ca 14. which last said Statute seemeth (for this point) to have been followed, as a Pattern, by the other two: so right they tread in the steps of the same. hereunto also you may add, the examination of the M & Marmers of ships, wherein corn or victual shall be transported against the meaning of the Statute 1. & 2. Phil. & Mar. ca 5. Thus much, of the knowledge of cause exhibited by such as either do it at large for the Queen only to have the offence punished, or be special1y alured thereto by regard of benefit growing in common to them with the Queen thereby. Now of those that seek to inform the Court for the profit due to themselves alone. The knowledge that cometh this way, is by the private suit, and proper action of the party, and is therefore in the Statute (11. H. 6. ca 6.) termed a suit between party and party, whereof that Statute had no less consideration, than of those other suits that be for the Queen herself: and therefore provided, that they also should not be discontinued by new Commissions of the Peace to be made. I know, that there be not many Statutes which do give power to the Justices of Peace, to hold Plea between party and party, and I think it hath not been often experimented upon those very Statutes which do give it: and how the Judges do expound this very Statute I can not tell. Never the less, because I may neither wittingly conceal any such part of their authority & jurisdiction, although it were but my opinion, nor safely reaport it without some proof, I will give you one example, of this kind (as I take it) and leave the rest further search. The justices of Peace have power to inquire, hear & determine, of all the defaults against the Statute (made 23. H. 6. ca 11.) concerning the levying of the wages of the knights of the Parliament) as well by inquire at the king's suit, as by action at the suit of the party. In this and such like (as in Appeals by warrant of the large words of the Commission as hath been said) the justices of Peace ought to proceed after the usual manner of ather Courts of Record at the Common law, (if I do not miscall it) and therefore I will go no further with it, but will prosecute that hearing and determining that more properly pertaineth unto them, if first I may show you, how they are sometimes prevented in that behalf. Of the Impediments of proceeding upon indictments, before the justices of Peace. CAP. VII. IT falleth out not seldom, when justices of the Peace haus taken an Enduement found before them, that they can not proceed to hearing and determining upon it: either because it is grounded upon some such Statute as giveth unto them no further power, but only to inquire thereof: or else because the inditement is taken out of their hands by Certiorari, and conveyed to justices of a higher authority, at the solicitation and by the means of some parties grieved, to the end that either they may traverse, them above, or there avoid them for insufficiency of form or matter. And therefore, justices of the Peace may only inquire, of certain the offences against the Acts. 1. El. ca 2: & ca 3: 5. El. ca 1: 13. El. cap. 2. touching the acknowledging of the Queen's supremacy, or the service of God, or coming to the Church, or the establishment of true religion: as you may see. 23. El. cap. 1. And they may only inquire, of any the Treasons, or Misprisions of treasons, made by the same Act. 23. El. ca 1. Neither can they go any further, than only to inquire of, and to indite the offenders against any the Articles of the Act made (23. El. ca 2.) concerning seditious rumours against the Queen. In the rest (so far as I have found) their power of inquiry is accompanied with the authority to hear and determine also. For this want of Jurisdiction is not found in the Commission of the Peace itself, but only in curtain Statutes that (for weighty causes) do restrain this further proceeding. By what means such indictments shall be removed to those higher Courts, I will show you when I come to speak of Certifying the Records of the Sessions: and will now go on with those other indictments that be removed by labour of the parties. Albert, that in the removing of pleas between party and party, from inferior to higher Courts, by Tolt, Ponc, Recordare; etc. there was wont to be a probable cause alleged, for which the same were removed: yet in this case of the Crown there needeth no cause to be comprised in the writ of Certiorari, because they all be the Courts of the Queen, and it breedeth neither injury to the offender, nor loss to any other person, in what Court soever the offence be tried. This Certiorari then, may command either the Record itself, or Tenorem Recordi, to be sent up: and it ought to be obeyed accordingly. indictments removed by labour of the parties. For, upon fail thereof first an Alias, than a Pluries (vel Causam nobis significes) and lastly an Attachment, shall go out against them that should send it, as M. Fitzh. noteth in his Nat. Br. Fol. 245. but I have heard that they use also Sub poena at this day. And albeit the Certiorari be a Supersede as of itself, yet may the party upon the Certiorari purchased, have a Supersede as also, directed to the Sheriff, & commanding him that he arrest him not upon that Record, before the justices of Peace, Fitzh. ibid. Fol. 237. In which place also he doubteth, whether the justices of Peace themselves ought of duty to award their own Supersedeas to the same effect, after that the writ of Cortiorari is brought to their hands. This writ of Certiorari is ever directed to the justices of Peace, and yet (as you have heard) the Custos Rotulorum only hath the keeping of these Records: but the ancient Commission of the Peace had no Custos Rotulorum specially named in them, and then this certifying belonged to them all, which form the Writ retaineth to this day, And if it fall in question whether such a Certiorari were delivered to the justices of Peace, or no, that must be tried (saith the Book 10. H. 7. 24.) by the verdict of twelve men. Now, if a Certiorari come to the justices of Peace to remove an inditement, and the party sueth not to have it removed, but suffereth it to lie still, the justices of Peace may proceed notwithstanding the Writ, as Hubbert the kings Attorney said, 6. H. 7. 16. for otherwise the trial of a Felon, if the inditement Were of Felony, might be delayed and deluded also: But yet Keble held opinion against him, and was fearful that in such a case it might prove felony to make execution after such a writ. And if a Certiorari come to the justices of Peace to remove an inditement, and in truth the inditement was not taken till after the date of that Certiorari, yet if the inditement be removed thereby, it is good enough, for that they both be the Queen's Courts. 1 R. 3. 4. In the making of a Certificate upon this Certiorari, the justices of the Peace ought neither to omit that which both auctorize them, nor to exceed that which belongeth unto them. For, on the one side, if they certify an inditement of Felony, as taken coram Iusticiarys ad pacem, it is not enough, without saying further, Nec non ad diversas felonias, etc. and otherwise, it is doubtful, whether the indited shall be quite dismissed, or no: because the justices of Peace have then no Record at all remaining with them, for the Clerk of the Peace maketh an entry accordingly, & that Record which they sent up is insufficient. And therefore, the Clerk of the Crown was forbidden to receive any such Certificate. 12. H. 7. 25. On the other side, if they certify one inditement of felony not determined, into the King's Bench, they ought not Without warrant to certify an other Record of the acquittal of that endity for the same matter: for, nothing ought by them to be sent thither without warrant, but that which is executory, and needeth the help of that Court. 8. E. 4. 18. And if a Certiorari be, to send up the inditement of A. in which inditement some others be indited together with the same A. yet need not the justice of Peace to make Certificate concerning any but A. 6. E. 4. 5. For although they be named jointly, yet be they indited severally (as I have said before) and the Queen may pardon A. without forgiving the other, 6. E. 4. 5. Markam. Finally, it is noted (8. H. 5. 5.) that Hankforde the chief justice of the King's Bench, abserued this order, that he which brought thither an inditement taken before justices of the Peace, should endorce his name upon the backside of it: which I note, not to teach them of the kings Bench, but to let justices of the Peace see, that there is some heed to be taken of him by whom they send up their indictments. Of the Process upon indictments, and Informations. CAP. VIII. THe Court being thus made privy and possessed of causes, must of duty proceed to the handling (or hearing) and trial of them: the which because it can not indifferently do, unless it keep one ear for the offender, that he also may be heard in his own discharge, as others were heard to lay the charge upon him, the manner is, to award Process against him to come in and to answer. For commonly, an inditement, or Information (being but an accusation, or declaration against a man) is of none other force but to put him to answer. And thereof all Process hath the name, because it proceedeth or goeth out upon former matter, either Original, or judicial. Process, whereof it is named. How be it I make difference, whether this process be grounded upon an Enditemet, or upon some other information: for they be not all one, unless it be (in a few Statutes) so specially provided: Although the Statute (33. H. 8. cap. 10.) did once conjoin and couple them. The power of making process upon indictments is given by erpresse words in the end of the second Assignavimus of the Commission: and in other cases (where it is not namely given) it is emplyed of congruencs (or rather of necessity) in the words, hear and determine, which not be performed, unless the party do either come in, graiis, or be brought in by process. Authority to make out process. This Process ought always to be in the name of the Queen, thus: Elizabeth Dei gratia, etc. Vicecomiti Kancia, etc. And the Teste thereof may be under the names of any two justices, so that it be made sitting the Court in the Sessions. Teste, of the Process. Commission deal Peace, & Brooke Tit. Peace. 6. & 7. But now, whereas the Commission giveth to the present justices authority to make process upon indictments, taken aswell before former justices, as before themselves, all that doing was wont to be discontinued in Law by the coming out of a new Commission of the Peace, until that the Statute (11. H. 6. ca 6.) did establish, that no pleas, suits, or process, to be taken before justices of the Peace should be discontinued by a new Commission of the Peace to be made, but that they should stand in their strength, & that the justices assigned in the same new Commission, should have power to continue the same, and to hear and determine all that which dependeth upon them. New commissions of Peace, do not discontinue the old process. And of the like effect, there is a branch in the latter end of the Statute, 1. E. 6. ca 7. Furthermore, whereas Sheriffs and their Bailiffs, used to arrest men, and to proceed upon Enditementes found in their Turns or law-days, an other Statute made (1. E. 4. ca 2.) wringeth that power out of their hands, and delivereth it over to the justices of the Peace also, appointing them to proceed upon them, as if they had been found before themselves. inditement before Sheriffs. Now, seeing that this Process of the Sessions is sent out to this end, that either the party shall come in to answer, and be iusticed by law, or else that he shall for his contumacy be dèprived of the benefit of law (for so much in effect do the words of the Commission, Quensque capiantur, reddant se, aut utlagentur, import in them) it followeth, that in all cases of indictments, (if the party be returned insufficient) the Process of outlawry, lieth against the offendor, if he be not taken before, or do not otherwise offer and yield himself. Process of outlawry. But a good while after that Commissions of the Peace were first awarded, there was not given by them any power to make out any Process of outlawry, for I have seen a Commission of the Peace (20. Ed. 3. Part. 1. Patent in dorso.) wherein were words auctorizing the Commissioners to arrest all such as should be indited before them: but by and by this followeth, Et ad nomina eorum qui fugerint, & coram vobis iusticiari noluerint, certificandum in Cancellaria etc. So that if they might not get them arrested, they could go no further but to certify their names. The mean to this outlawry is not one in all cases: for upon indictments of Trespasses against the Peace, or such other contempts, the Process is one: and upon indictments of Treason or Felony, it is another. The general Process, upon indictments of Trespass. Upon indictments of Trespass against fhe Peace, of Conspiracies, and of Routs in presence of the justices, or in affray of the people, if the offenders may not be found, nor brought in by Attachment, or Distress, (by reason of their insufficiency) the Process Process of outlawry is to be awarded, by the Statutes. 18. E. 3. Stat. 1: &. 18. Ed. 3. Stat. 2. ca 5. The like is against such as be indited upon the Statute of Liveries. 8. Henry. 6. cap. 4. Abdella a Venire facias first, and then (if thereupon he be returned sufficient) a Distringas, and so the same Procese infinite till he come in: but if a Nihil habet. etc. be at the first returned against him, than a Capias alias, & pluries, and after an Exigent, (as it seemeth by Master Marrow, and the old precedents agreeing with the Common Course as I take it,) is the ordinary Process upon all inditements (not sounding in Felony or greater offece) whether they be of Trespaslse against the Peace, or of contempts against penal Laws, unless it be otherwise specially provided by those same Statutes whereupon such indictments be altogether grounded: Of which sort these be some. The statute (22. H. 8. c. 5.) concerning Bridges in Highways, alloweth such Process as the Justices of the King's Bench do use, or such as the justices of the Peace them selves shall think meet by their Discretion, for the speedy amendment of those Bridges. Special Process. Upon indictments of Liveries, maintenance Archery, unlawful games etc. by the Statute (33. Hen. 8. cap. 10.) there was given one Venire facias, one Capias, and then the Exigent: But it is to be weighed, whether the Statute (37. Hentie. 8. cap. 7.) which utterly replealeth that Statute (53. Henry. 8.) do transfer the manner of that Process unto the ancient Quarter Sessions, as it doth sundry other parts of the said Statute. The Statute of Labourers (23. H. 6. cap. 13) gave (after indictments grounded thereupon) an attachment, Capias, and Exigent. But I think it no great doubt but that that point is taken away by the new Statute of Labourers (5. Elizabeth. cap. 4.) as well as all the residue of that Statute is. The Statute 5. E. 6. ca 25. giuth power to the justices of Peace to inquire of Alehouse keepers whether they have done any act to the breach of their recognisance. Procrsse upon Recognusance. And if any such matter be presented, then to award Process against the offendor to show why he should not forfeit his recognisance: but what this Process shall be I will not determine. For I do not find that in any other case, though it appear that any man hath forseited any recognisance, that the justices of the Peace can award any Scire facias, or other Process to call him in upon it, but are rather to certify the same into higher Courts, that from thence Process may issue out, to call the party to answer thereupon. Some other Statutes there be, that have extended the authority of the justices of Peace (in sending Process) beyond the bounds of their own Commission. Process, in to other Shires. For, by the Statute (1. E. 6. ca 1.) three justices of the Peace (the one being of the Quorum) may make Process against such as be there upon indited for depraving the Sacrament, by two writs of Capias, and the Exigent, and by Capias vilagatum, into any place within the Queen's dominions. So, if a Servant depart into an other Shire, the justices of the Peace of that Shire, (where the departure was) may grant Writs of Capias, to the Sheriff of the other Shire, (where the Servant is) returnable before themselves. 5. El. ca 4. The like may they do (by the said Statute (22. H. 8. ca 5.) where a decayed Bridges lieth in one Shire, and the person or lands (chargeable thereto) do lie in an other Shire. But if the inditement be in one ●o●tie, and the Enditée be named to be then or Nuper dwelling in an other County, & there is a special course of Process in that behalf for his benefit appointed by the Statute (8. H. 6. cap. 10.) both for Treason, Felony, and Trespass: for (before any Exigent, shall be awarded) one Capias must be sent out, and returned, and then a second Capi●● shall go (into the County where he is supposed in the Enditement to be or to have been conversant) retourneable (before the same justices of the Peace, before whom the inditement was taken) three months at the least after the date thereof (for all Counties be now hold from month to month by 2. Edward. 6. ca 25.) by which last writ, the Sheriff shall be commanded to take the endity, if he may be found within his Bay liwike, and if not, then to make Proclamation in two Counties (before the return of that writ,) that the endity shall appear before the said justices of the said County (where the indictments was taken) at the day contained in the last said Capias, to answer to his offence, at which day if he come not, than the Exigent shall be awarded against him, and otherwise not. And by the equity of this Statute of (8. H. 6. ca 10) (saith M. Marr.) if the endity be imprisoned in an other County, the justices of Prace may award an Habe● corpus to remove him before them. At this Process of outlawry may be stayed by a Super sedeas And Fitz. in his Nat: Br. (●o. 237.) hath the case, that if an Exigent go out upon an inditement of Trespasle found bedore justices of the Peace, fhe party may find sureties in the Chancery (body for body) to appear at the day of the Writ, and may then also have a Supersedeas from there to the Sheriff, commanding him to forbear to take him, & to let him go if he have then already taken him for the cause. Supersedeas, to stay Procesle. And again you may see in the new book of entries (Fo. 546) the Process upon such an inditement stayed by a Supers; edeas issuing from one justice of the Peace alone, & testifying the the party came before him & found sureties de fine assidendo. But, as I believe the former, so will I not persuade the practise of the latter, because I think it not in the lawful power of any one justice of the Peace, to award any such warrant, but it must be done by two justices at the least. I have yet to speak of Process upon indictments of Treason and Felonies, wherein I will be short, that I may pass over to other things. Process upon indictments of Treason, and Felonies, etc. The Process upon an inditement of Treason, forcountersaying money, is by Capias only, & so set forth, 3. H. 5. ca 7. neither is there any other Treason whereupon the justices of the Peace may award Process. It seemeth by M. marrow, that the Process at the common Law upon indictments of felony was but one Capias, & then the Exigent: But the old Precedents (grounding the mselues upon the Statute (25. E. 3. c. 14.) do use the mention of two writs of Capias before the Exigent. For that Statute provideth, that after return of Non est inventus upon the first Capias, an other Capias shall be incontinently awarded, whereby the Sheriff shall be commanded to seize the cattailes of the endity, and safely to keep the till the day of the Capias returned: and if he then also return Non est inventus, & the endity cometh not in, the Exigent shall be awarded, and the Cattailes shall be forfeited: But if he come & yield him, or be taken before the return of the second Capias, the goods and Cattles shall be saved unto him. And here the justices of peace have power to send into a Foreign County: for, whereas by the common Law no man could be Attached, upon an inditement or outlawry of Felony, but only in the County wherein he was indited, or outlawed, whereby many evil men were much encouraged, the Statute (5. E. ca 11.) did take order, that justices assigned to hear and determine Felonies) might direct their writs to any County in England, to take such Enditees, whether soever they had removed themselves. Process into For●●●ne shires. And on the other side, if the Indictment be found in one County, and the endity is therein named to be then dwelling in another County: I have told you already (in this Chapter) for the benefit of the endity, what Process belongeth to it, and therefore I will in hand with Process upon Informations. The power of making Process upon Informations, proceedeth from special Statutes, & may not therefore vary from their direction, although they vary one from an other. Processeupon Informations. For upon an Information, given for the Queen before justices of the Peace, upon the Statute of Liveries (made 8. E. 4. cap. 2.) the shall award such Process, as is made upon an Original writ of Trespass done against the Queen's Peace, because the Information itself is (by force of that Statute) in stead of an Original writ. Liveties. And upon Information made unto them, that an Alehouse keeper hath done any act whereby he hath forfeited his Recognusance, they may award Process against him, to show why he should not forfeit his Rccognusance, by the Statute 5. E. 6. ca 25. as hath been said: But learn if that be meant of a Scire facias, or of some other Proceffe. Of Hearing, upon Confession. CAP. IX. THe party being thus brought in, (or otherwis yielding himself) to answer, justice requireth, that he be heard to speak● and therefore, hi● may (as his case will serve) either ronfessue) or deny the offence wherewith he is burdened. And this Confession is of two sorts, free, or forced: and that former is of two kinds also, absolutc, or after a manner. Free confession. In the open (or absolute) Confession, he taketh the fault upon him, and péeldeth himself simply to such pain as the Court will inflid for it. And this free Consfession is of great force in Law: for if it be upon an inditement of Batteric, and (after such confession had for the Queen) the party beaten will also bring his Action of Trefpns for his own damage, then shall the defendant be concluded by his confesession upon the inditement, so that he shall not be received to say the contrary. 9 H. 4. 8: & 11. H. 4. 65. But the other, (which I call Confession after a manner) is only a not denying, in which the party both cunningly, and (after a sort) take the fault upon him, without confessing himself guilty thereof: as where he putteth himself in Gratiam Reginae without any more, or by Proteftation that heacute; e is not guilty, pleadeth his pardon: And such a Confession (if I may so call it) both not so conclude him, but that he may afterward plead Not guilty in any Action brought aqainst him 9 H. 6. 60. Cur. & 11. H. 4. 65. The forced Confession, whereof I spoke, is that which the justices do wring out Of the party by the Examination of him, in such cases wherein it is permitted. Forced Confefsion. But because I intent to speak of Examination, by itself, I will reserve this till I come to that. Of hearing, by Discretion. CAP. X. WHether the offender, shall freely confess; ss the fault, or finely yield himself to Grace, or please his pardon without confessing it, yet then is that matter fully heard, and the Court made ready to determine of it. But if he shall deny the fact, then must some other course of Hearing (or trial) be taken for it. And that is in some cases, by Dis; cretion of the justices: in some other cases by Examination of the parties or witnesses, and in s some other cases by Ccrtificat of other men, but in meste cases by Travers; e or Arraignment, both which last trials are performed by the verdict of twelve. For Ius; tices of the Peace, can not (upon an Indictment of Mayheme) make the Trial by their own view, or inspection, as the justices of the Kings Bench may, faith Marr. The Statute (11. H. 7. cap. 3.) pretending, that offences committed against the Statutes Of Riotes, Retainers, Maintenaunces, Embraceries, Extortions, Unlawful games, and such like mis; demeanours, were neither accordingly punis; head before justices of the Peace, by reason of the great corruption, and favour of the enquests, fworne and charged there upon to inquire before them, nor could be otherwise conveniently corrected by order of Law, wulesse they were found and presented by twelve men thereto duly sworn, did enact, that from thenceforth juftices of the Peace, upon information made (for the King) before them should have full power by their discretion, to hear and determine all offences and contempts against many penal laws, then enforce, & not repealed. But (as one said) Exbonis legibus, mala exempla: So, the Parliament (1. H. 8. cap. 1.) complained, that many men were deceitfully entrapped, and wrongfully condemned thereby, and therefore it resumed that power: yea, and the King withal chopped off the heads of some that had filled his father's purse by the execution of that & some other penal Statutes. So that now again the Trial of offences ought (for the most part) to proceed either after the general order of the common Law, or upon such special examination or other proof, as some Statutes do give in special cases: and this hearing at liberty and discretion, hath seldom airy place. But wheresoever it is permitted, that counsel which M. Bracton (lib. 1.) giveth, is to be harkened unto: In judicial hearing of a fault (saith he) besides the body of the fact itself, these seven circumstances are to be weighed, namely, the cause, the person, the time, the place, the quantity, the quality, and the event. And for proof, that hearing by discretion, is yet in some sort suffered, take this for example. The justices of Peace may hear by their discretion, as well by Examination, as other wise, at the suit of the king, or of the party, the offences done against the Statute provided for the true making of Lile. 17. E. 4. cap. 4. But how far this discretion, and the word otherwise may be extended in this, and such like cases, it can not well be foretold, for it is referred to them, and they must take counsel exre, & extempore, for it. Of Hearing (or Trial) upon Examination. CAP. XI. THe obstinacy of evil doers that would show no conscience in acknowledging of their faults, and the corruption of jurors that would present nothing, that lay only in their own knowledges, hath begotten and brought into our Law this trial by Examination, wherewith it was not before acquainted. And yet this manner of Trial is not loosely permitted to justices of the Peace, but in cases only, where, either the Statutes do generally refer the trial to their Discretions, or else do specially auctorise them to take the Examinations. The Examination then, is sometimes of the offenders themselves, sometimes of Witnesses that can speak to the matter, and sometimes both of the parties and witnesses: of every of which I will give you an authority, or twain, and leave the rest to your own reading and examination. Upon appearance (after Procesle) against the offenders of these Statutes of Liveries, Liveries. the justices of Peace may examine them, and there upon convince them so, as if they were thereof convict by inquest, 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 keep Dear hays, Dear hays etc. or Buckstalles, or that use to stalk or to take young Herons against this Statute, and may (finding them faulty) commit them to prison, till they find Sureties to pay the forfeiture 19 H. 7. ca 11. And because it is often seen, that those which have committed an offence, will also increase their fault by denying of the same, therefore some Statutes (as I said) do appoint, that the justices of Peace shall take the examination of others, besides the offenders themselves. And thereupon, the users of false privy tokens, False tokens. or of counterfeit Letters, may be tried out by the examination of Witnesses, 33. H. 8. cap. 1. And the unlawful takers of Dawkes hawks eggs, Hawks egg●. or Swans eggs, may be detected and convinced by information, and such proofs, 11. H. 7. ca 17. Now, whereas some Statutes do enable the justices of Peace to hear and determine, by the general use of the word Examination, without showing of what people: it seemeth to me, that they may there upon examine as well the parties, as other witnesses. Such a one is the Statute provided 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 under the height of fifteen handfuls. Stoned Horses. 32. H. 8. cap. 13. Thus far of Examinations: which whether they ought to be taken upon oath, or no, you may conjecture by that which I have already said thereof in the first Book: and yet (for more aid towards your resolution) I say now that these Examinations ought (in my slender judgment) to be upon Dathe, because the trial here dependeth upon them, whereas those others are but to inform the jury towards an indictment only, in so much as the parties are bound to give the matter of them innuidence Vina voce, when the trial shall be. Of Trial (or Hearing) by Certificate. CAP. XII. BEfore some other judges, the Law hath allowed Trial by sundry sorts of Certificate: as from the queens lieutenant, in the case of Escuage: from the Bishop, in the cases of Bastardic, bigamy, Excommunication, etc. and in some other cases from other men: But, before justices of the Peace, I have not hitherto found any trial by Certificate, appointed by Statute, but in this one case following. If any man (being impeached upon this Statute of Armour, for not having his appointed furniture, shall allege, that the same furniture so lacking, could not be conveniently provided, for want of the same within the Realm, this shall be taken for a good answer (in case it be true) but if it be denied or traversed, issue shall be joined upon it, and the Trial shall be only by Certificate to be made by the L. Armour. Chancellor, L. Treasouror, L. Precedent of the Counsel, L. Steward of the Queen's house, L. Privy Seal, L. Admiral, and L. Chamberlain of the said household, or by three of them, in writing under their Seals. 4. & 5. Phil. & Mar. cap. 2. For, the Certificate of the offence, and of the Recognusance taken by two justices of the Peace, one being of the Quorum of him that hath obstinately kept a common Alehouse against the Statute 5. E. 6. cap. 25. is made a sufficient conviction of the same offence, without further Trial. Alehouse keeper. Of Hearing (or Trill) by Traverfe. CAP. XIII THe most solemn, & ancient Trial of the fact, against an offendor that will not con. fesse it, is that which we see performed by the berdite of twelve good and lawful men of the Country: and it also doth best con, tent and quiet the guilty man, for that it passeth by his own Countrymen, Neighbours, and Peers, according to the ancient liberty of the Land, wherevato every free borne man thinketh himself inheritable: and thereupon it is named (Mag. Cart. cap. 29.) legal indicium parium suorum, the lamfull judgement of a man's own Peers, or Equals, because, as the Nobility, soalso the Commonalty. are to be tried, intreason, felony, or misprision of treason, not the one by the other, but each by men of their own estate and calling. I mean by the word Nobility, as our own Law speaketh (which calleth none Noble under the degree of a Baron) and not as men of foreign Countries do dse to Gentile birth is accounted Noble: for we daily see that both Gentlemen and Knights do serve in the Parliament as members of the Commonalty. Nowbeit, in cases of forcible Centrie, Riot, Rout, unlawful Assembly, or such like, they of the Nobility shall be tried by twelve men, as well as other inferior subjects. 3. & 4. Phil. & Mar reported by Dalizon. This Trial happeneth before justices of the Peace, sometimes upon Traverse, and sometimes upon Arraignment. But yet, some things be common to them both: For, if the party charged will Demur in Law upon the evidance, the justices ought to record his Demurrer: So if he will plead in juttification any matter of Recode that is before other justices, they ought to give him day to bring it in. Marr. So also if the justices (thinking an inditement to be doide) have discharged the prisoner (paying his Fees) yet, upon change of their opinion, they may stay him again, at any time before judgement, Fitzh. Indite. 27. But if he plead a Pardon before them, in which certain persons be excepted, and the Queen's Attorney is not present to join issue, that he which pleadeth it is one of those that be excepted, than they themselves may supply the office of the Attorney, in that behalf. 8. E. 4. 7. whereupon also I gather this general learning, that they ought not to suffer the Queen to be disaduauntaged, where it lieth lawfully in their power to prevent it. And if an Indictment be challenged for such cause as these justices will not allow, then may they seal a Bill, of that exception for the party, if he will write and require it according to the Statute W. 2. ca 30. as M. Marr. writeth. The Traverse took name of the French, de Travers. Traverse. which is no more than de transuerso, in Latin, signifying, on the other side: because, as the Eaditement on the one side chargeth the party, so he on the other side cometh in to discharge himself. For, whereas the Arraignment proceedeth upon him that is dnwillinglye brought in by Process, the Traverse is (for the most part) freely tendered die the party. To Traverse an inditement then, is to take issue upon the chief matter thereof, which is none other to say, than to make contradiction, or to deny the point of the inditement. As in a presentment against one for beating the servant of A. the part may come in, and may choose to say, that he did not beat him, (which is to traverse the matter) or that he is not the servant of A. (which is to traverse the cause) but he cannot say, that A. lost not his seruica: for thereby the battery is confessed, and then of necessity it followeth, that he is a Trespasser, 31. H. 6. 12: & Brooke Til. Traverfe 182. And the liberty of Traverse is commonly restrained to indictments of Trespasses, contempts, Riotes, and other inferior offences, within the Commission, or Statutes, auctoriring the justices of Peace: and is not dsully ertended to Treasons, or Felonies, as you shall hereafter see. M. Brooke noteth, that it is not much dsed to Traverse indictments before justices of the Peace, but rather to remove them into the King Bench, and to Traverse them there. Traverse, before Instices of the Peace. stices of the Peace. Howbeit commun experience at this days can shelve many Traverses before justices of the Peace also. And there is no doubt, but that as justices of the Peace have power to award Process, and the parties also have libetie to speak for themselves: So (having spoken) the justices may Hear and Determine of their speech, 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 books) that a man shall not be received to traverse a Prefentment, unless it do charge his fréeholde: yet Hussey and Fairetax said (5. H. 7. 4.) that a Presentment (not concerning fréeholde) which is found before justices of the Peace, may be traucrsed: and whether they meant it of a Traverse in the King's Bench, or before justistices of the Peace, it maketh no difference, because the reason is all one, that is, if Process be awarded, the party may come in, and offer his Traverse, and otherwise the Process should be in bane. Hereunto agreeth Mowbray (41. Ed. 3. 26.) saying further, that in a Leete such a Presentment is not Traversable, because out of a Leetee no Process can be awarded upon it. And this peradventure is the reason of the book (8. E. 4. ca 5.) and of M. Mar. where they say that a Presentment of bloodshed found in the Sheriffs Turn, and sent (as it otgh to be) to the justices of Peace, cannot be traversed before them, as whereupon they can neither make Process, nordischarge the party by way of Plea. So that this seemeth a general learning, that wheresoever any Process adrespondendum goeth out upon such an Enditement as is traversable, there the party may offer, and aught to have his Traverse. But Marrowc sayeth, that if a man be of an inquest that indited him of Trespasle, or such like (so that upon the matter, he emdied himself) this is so strong, that he shall never be received to Traverse it. It is not my meaning to pester this latter Book with Precedents: But yet for as musc as in the Record of one Traverse, there is at once discovered the Style of the Sessions, the inditement. the Process to answer, the Traverse it self, the Verdict, and judgement thereupon, the Process of execution, the yéeldng of the parties, and the assesmet of their fines, so that it alone may serve in stead of all, I trust it shall not be troublesome to insect it. ALias, seict cet ad Sessiossem pacis, tentam apssd Bridgewater in comitatu pradicto, die Martis proxime ante festum: Sancti Mathei Apostoli annoregni Dom, nestra Elizabethae dei gratia Anglia, Frácaea, & Hibernia Reginae, sidei defensoris etc. vicesimo, Coram johann Stowell milite, Humfrido Walron uno magistrorum Curia Cancellariea dscta D. Reginae, & alijs socijs suis justiciarijs dicta Domina Reginae ad pacem in comitatu preadicto conseruandam, Necnon ad diversas felorias, trangressioncs & alia malefactain code comitatu perpetrata audienda & terminanda assignatis, per sacramentum. xij. Inratorum extitit prasentatum, guód johannes Long, de etc. R. M. de etc. Et T. L. de etc. cum diversis alijs ignetis malefactoribus, & pacis dicta Dom. Reginae perturbatoribus, modo gueriino arraiati, unsti, & assemblati, vicesimo die julij in nocte eiusdem diei, anno. etc. Vi & armis (viz) Baculis, gladijs, clipeis, pugionibus, falcactris, & alijs armis, tam invasivis, guám defensivis, apud C. etc., clausum cuiusdam Willi. Willkt (vocatum B.) illicité, riotose, & routosé, fregerunt, & intrauerunt, & octoplauctra foeni ad valenciam etc. adtunc & ibidem existentia, de bonis & catallis dicti Willi. Willet adtunc ibidem iniucté illicité ceperunt & acportaverunt, contra pacen dicta Domina Reginae etc. Et coatra formam Statuti inde editi Se provifï. Enditcment Per quod praceptum fuit vicecomsti quod non omitteret etc. quin venire faceret eos ad recpondendum etc. posteag, scilicet praedicto die Martis proxime ante feslum Sancti Mathai Ampostoli an. vicesimo supradecto, coram prafatis justictarijs venerunt pradicti I. L. R. M. & T. L. in proprijs personis suis, & habito auditu Indictamenti praedicti, seperatime dicunt, quod ipsinon sunt inde culpabiles, Et de hoc ponunt se super patriar: Et Adam Martin qui pro Domina Reginae in hac part sequitur, similiter etc.: Ideo veniat inde jurata coram Iucticiarys dicta Domina Reginae ad pacem in comitatu prudicto conseruandam asignatis etc. ad Sessione pacis apud Welles etc. die Martis proxime post Epipbaniam Domini tunc proxime futuro tenendnm. Processc to aynsweare. Traversc. jury. Et qui etc. Adrecognit etc. Quia tam etc. Idem dies datue est tam prasato Adam Martin qui sequitur etc. quám preafatis I. L. R. M. & T. L. etc. Adquas quidem Sessiones pacis, tentas eapud W. preadict. in comitatu pradico die etc. Day given. Coram" DomiHo T. P. G. N. & H. P. milit. & socijs suis jucticarijs dictea D. Reg. adpacens in comiteatu preadicto conseruandam, Necnonad diversas felonias, transgressiones, & alia malefacta in codem comitatu perpetreatea audienda & terminanda assignatis, venerunt tam prafatus A. Martin qui sequitur etc. quádm prtfati I. L. R. M. & T. L. in proprijs personis suis, Et juratores praedicti, per vicecomitem Comitatus prtdicti ad hoc impanellati, & exacti, (viz,) jacobus F. Gen. I. G. etc. similicar veneunt, qui ad veritatem de premissis dicendam trialti & inrati dicunt super Sacramentum suum, quod pradicti I. L. R. M. & T. L culpabiles sunt, & eorum quil●ber culpabilis est, de transgressione, contempiu, & riot to pradict is in Indictamento praedicto superim specificatis, modo & forma prout superius versus eos supponitur: Iào concessun est curtam, quod praedicti I. L. R. M. & T. L. capiantur ad satistaciendum dicta D. Reg. de finibus suis casione transgressionis, contemptus, & riottipraedictis. Verdict. judgement. Capias pro fine. Qui quidem I. L. R. M. & T L. adtunc & ibidem praesentes ibidem in Curia pet ierunt se ad ficum dicta Domina Reginae occasione pradicta admitti: Et indeponunt se seperatim inmisericordiam Do. Re: Et assatur finis eiusdem I. L. per jucticiarios praedictos, ad 3. ●. 6. ●. 8. ●: Et finis einsdem R. M. Assessatur ad xx. ●. Ponunt se in miscricordised. Reginae Fine assefsed. Et assessatur finis einsdem T. L. ad quinque hbras, bona & legalis moneta Anglia, ad opm & usum dictae Dominae Reginae. And this is to be noted, that this Record was after ward removed into the Kings Bench, and that the paetie was dismissed there, for want of those worder in the Enditement that you see underlined in other letters in certain parts of the same. inditement void. Of Trial upon Arraign. went, and there withal of Felonies. CAP. XIIII. ARraignemcnte ● Traverse, do not so much differ in the nature (or substance) of the Trial itself, as in the fame. Difference, between Traverse, and arraignment. For, as there is no inditement, Traverfable by the party, but that he may also be arraigned upon it: So like wise is there no Editemet, where upon the party may be arraigned, but that he may also (if he will) tender his Traverse unto it. The difference than standeth in this, that commonly he (which is to be arraigned) cometh in by compulson of bond or Process, and is touched with matter concerning life and death, or some such heinous offence, and pleadeth generaliye Not Guilty to the inditement. Commonly I say, because althoaghe he come in fréeiyc, r be indited of some inferior offence, yet he may be nevertheless arraigned: neither is he of necessity driven to plead Not Guilty (which runneth to the fact) but may (if the case will suffer) plead a justification 02: matter in Law, though it be in case of Felony. It féemeth to have horowed the name out of the word Array, which is the panel, or jury, because he that is arraigneo, must be tried by them, being first call, sworn, and tried, in order for that service. If I should rip dand prosecute the whole learning that belongeth to arraignment, I should but Acum agere, and yet not do it halfc so well as you may elsewhere find it: and therefore, referring yond wholifor that matter to the learned labour of justicestanforde I will onIy offer to consideration, a point or twain, whereof it specially behoveth the justices of Peace to be advertised, and then passs over to determining. Felonies not triable before luctices of the Peace The first thing ie, that there be sunorye Felonies, ano sme (Cnditementes of Felonies, the (which as it seemeth to me) justices of the Peace can not hear, or try at all: the second, that in the handling of the very Felomes wherewith they may deal, there be yet certain considerations peculiar to the justices of the Peace only, and not common to them with other judges over Felonies. justices of the Peace, can not hear the trial of the Felony for using Witchcraft, or Sorcery, whereby any man is hurt in body or goods: because it is made Felony by the Statute (5. Elizabeth. cap. 16.) after a former conviction only, the power whereof is not committed to the justices of Peace, and so they can take no knowledge of the Record thereof, not being before themselves. Of the same sort is that felony for Forgery by the Statute (5. Elizabeth. cap. 14.) after conviction for a former offence: and that Felony (after a former conviction also) for slanderous speech against the Queen's Majesty, in offence of the Statute made 23. Eliz. cap. 2. Neither doth, the hearing and trial of that felony of a servant (taking the goods of his master (after his death) belong to the justices of Peacs in the Country, because they can not take notice of his default in the King's Bench, by which default it first beginneth to be felony, by the Statute (33. H. 6. ca 1.) The like, though for unlike reason, is to be said, of the Felonious embeseling of any the Records of the Courts at Westminster, agaynsre the Statute 8. Henry. 6 cap. 12. And of an Acceslorie in one County, where the Felony was done in an other County, upon the Statute 2. &. 3. Edward. 6. cap. 24. because the jurisdiction over these Felonies, is not committed to the justices of Peace, but remitted to other judges, by the very same Statutes. Furthermore, they can not make Trial of such as were indited of Felony before the Coroners. or, before the justices of jail delivery, or of Oyer and Terminer, if the same persons be not justices of Peace also in the same Shire, so as the indictments be understood to be taken before the as before justices of the Peace, for their Commission and authority ertedeth only to such as stand indited, before themselves, or former justices of the Peace, or the Sheriff in his Turn. Thus far of the first point: Touching the second, it seemeth, by Marr. (and M. Fitzh. Fol. 16.) that albeit two justices of the Peace, (the one of them being of the Quarum) may hear and try Felonies, yet no justices of the Peace have authority to deliver Felons, by proclamation, or without sufficient acquittal: nor yet to deliver such as be in prison for suspicion of Felony: For they must proceed by inquiring, hearing, & betermining, as their Commimission appoints them, and not rid the jail other Wise as the justies of jail delivery may do. Things several to lustices of the Peace, in the trial of Felonies. And therefore, such persons if they can not be indited, must either remain the coming of the justices of jail delivery, as the common manner now is, or else (being removed into the King's Bench) they may be delivered upon the writ degestu & fama, as the to old order was, or otherwise as the manner is at this day. These justices can take no appeal of any appronour, nor other before them, say all the justices of the Common Peace. 2. H. 4. 19 and so is it clearly holden. 9 H. 4. 1. because their Commission stretcheth not so far. Where upon (having had no leisure to make the search) I am induced to suspect that the serme of those Commissions was in the last Assgnavimus other than these of our time be in that point: which (as I have said before) be now very large, and do give a great show to the contrary. But howsoever that be, yet it seemeth no less reasonable, than serviceable, that if one Felon will accuse an other before them, they may take his confession & reprye him, and thereupon cause the other to be enqiured of, & then proceed against him. Further, they can not arratgne one upon his abjuration saith Mar. It hath also been thought unmeet, 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 necessity, & the law is now otherwise taken. Marrow saith, that they can not award the writ, venire facias tot matron as, to try whether a woman (arraigned before them) be with child or no: but seeing it standeth with law and reason, so stay her for the time, that the child may be preserved, can not but doubt of it. They may give Clcargie to a Felon, if the Ordinary, or his Deputy, be present to take him: but if they be absent, he must be repried, because (as Marrow saith) these justices can set no fine upon the Ordinary for his absence, no more than if he will accept one to read as a Clerk, where in truth he can not. But if you read M Stanford (lib. 2. ca 45.) he will persuade you, that the ordinary is not the judge, but a Minister in the trial of Cleargic and that Cleargic may lawfully be given & allowed in his absence. Of the Fine for his default at these Sessions I am doubtful, as I have said before: but touching the allowance of Clcargie to the offendor, I see no cause at all, why it may not belong to the justices of Peace, as well as to other judges, seeing that they be judges of the felony, as other justices are, & other wise all men might be defeated of that privilege. Marrow saith also, that is bigamy (that ungodly Popish counterplea) had been alleged against one that prayed his Clergy, the justices of Peace could not have written to the Ordinary to certify the same. But let that pass, as now not worth the debating. And if a man outlawed of Felony by Process before the justices of Peace, be brought before them, and do allege that he was (at the time of the Utlawrie pronounced) out of the Realm in the Queen's service, under such a Captain, or that he was then imprisoned in an other County, they can neither write to the Captain, nor into the County. by the opinion of Marrow. Which if it be so, it shall be good to learn further, what they ought to do with the prisoner in such a case. Thus much only, of things restraining the justices of Peace in the Trial of felonies, where in also they are not now adays much occupied, the rather because they defer it till the coming of the justices of Assize by reason that the Statutes (1. & 2. Phil. & Mar. ca 13: & 2. & 3. Phil. & Mar. ca 10.) do enjoin them, to Certify at the next general jail delivery, both the examinations and bonus that they shall take, concernirg Felons and suspects brought before them. This I may add (not as a restraint, but for an enlargement of the authority of justices of the Peace) that if they see cause, and do write to the Clerk of the Crown of the King's Bench, for the names of any persons being other where attainted of Felony by outlawry, or being Clerks convict or attainted, he ought without delay and under the pain of rl. ye. to certify the same unto them, together with the causes of such attainder or conviction. 34. H. 8. ca 14. Of judgement. CAP. XV. THe justices of Peace, having thus sifted and tried the causes in heavidence given to the jury or by the eramination of witnesses, or by Certificate allowed, or other reasonable and discreet proof, are now come to make an end, and to determine of it, For I may well apply that to hearing, and determining, which M. Bracton requireth to the making up of a true judgement, that is to say, an equal and indisferent acceptation of the persons: an earnest examination and thorough search of the cause: a true delivery of the sentence: and a diligent execution of the same. Of these, the two first belong to Hearing (or Trial) which we have already handeted: and the latter two be the very parts of determining, where with we have now to deal. For judge meant and Execution, doc make an end of the wbole cause, You have heard before, how M. Fitzh. collectcth a general learning out of one special case in the Commission, I mean, that if any difficulty doc arise in determination upon Trial, the justices of Peace are restrained to proceed to judgement: and you may read (6. H. 7 16.) that if a Certiorari be brought to the justices of Peace, they are stayed (by the opinion of Keble) from determination, although the Record be not there by removed from them. But supposing that there is none impediment, let them proceed to Judgement. The Judgements of the justices of Peace, be in some cases arbitrary (or referred to discretion) and in other some cases prescribed or limited Of the first sort take this one or two for all. judgements by discretion. He that is orderly convicted before them in their general Sessions, of the deceitful getting of any thing into his hands by means of any false token or counterfeit letter made in the name of any other, may be adjudged by them to suffer Imprisonment, standing on the Pillory, or any other corporal pain that they shall appoint, except the pains of death. 33. H. 8. cap. 1. And that Servant, Workman, or Labourer that shall so wilfully and maliciously make assault or affray upon his Master or mistress, or other that then shall have charge over him, that he shall deserve further punishment than the imprisonment of one whole year, may be put to such further open punishment (so as it ertende not to life nor limb) as the justices of Peace in open Sessions shall think convenient. 5. Eliz. cap. 4. Their prescribed judgements be of sundry forms, according to the several natures of the offences (whereof they have to iwge) which be divers also. Prescribed judgements For upon Murders, and other Felonies, they must pronounce the usual Judgement of Felony: bpon such as be ccnuicted of Trespailes, Contempts, Riots, and such other offences, whereupon no certain for faiture is laid by Statutes, they must adindge, that they be taken and ransomed, and so to satisfy the Queen for their offences, by making their tynes: and upon offenders against such penal laws, as do inflict any certain pain, they ought to adjudge as the Statutes them solves do direct their course. For, upon conviction of the first offence, against the Statut of for stasling (5. E. 6. ca 14.) they must award imprisonment for two months without Bail or Mainprize, and the forfeiture of the value of the goods so had: upon the second attainder (or conviction) such imprisonment for sir months, & the double value of the goods: and upon contuition of the third offence, they must give sentence that the offender be set on the pillory, and to forfeit all his goods, and further to have imprisonment of his body during the Queen's pleasure. Forstalling. Against him that shall bring, or procure to be brought, into any ship, any hind of she, being alive, to be conveyed out of any the Queen's dominions, they ought (for the first offence) to adjudge, that he shall lose all his goods to the Queen. and suffer imprisonment by the space of one whole year without Bail or Mainprize, & that at the years end he shall (in the full market of some market town) have his left hand stricken off and naylco upon the openest place of such market. Conucy sheep. 8. El. ca 3. Against him, that is convicted for the unlawful taking, or slaying, of any Dear, or for such taking of any Dawke, or eggs of Dawke (contrary to the Statute 5. El. ca 21.) they must adjudge triple damages to the party grieved, three moan the imprisonment of the body of the offender, and (after that expired) to find sureties of his good behaviour for seven years after, or else to remain in prison until he shall find such sureties during those seven years. Taking of Deer. or Hawks, etc. And upon Certificate made at the next quarter Sessions of the Peace, by two justices of the Peace (the one of them being of the Quarum) against him that shall obstinately keep an Alehouse, contrary to the Statute (5. E. 6. ca 25.) the justices of the Peace ought (in the open Sessions) to assess the fine of twenty shillings: the which I do purposely rehearse, because they are there warranted to Aslesse the, fine without process first made against the offender, unlike to the common order of assessing fines, as you shall see when I come to that matter. Alehouse. It were more laboursome, than profitable, to run over the diverse judgements that Statues doc appoint, and it may suffice in this place to have given this razed of these few, and therefore I will in hand with Execution. Of the Process for the Fine of the Queen, and of the assessing thereof: and of Estreating for the Queen. CAP. XVI. SEeing that Execution is but a performance of the judgement, I shall not need to make long enumeration of the sorts of Executions, which are within the power of the justices of Peace. For besides that by the knowledge of the one, the other is known als; o, the Ius; 'tice of the Peace them s; elves have in many cas; es performed their duty in both, when they have in the one pronounced that which is due to the offender. Howbeit, for as much as that which they are to do by way of Execution, offereth profit, either to the Queen, or to her ubiected: and that which pertaineth to the Queen, is brought about, eyhter mediately, first by Process (or Imprisonment) for the Fine, then by Assessing of the Fine, and lastly, by Estreating the same: or else immediately, by Estreating of the penalty and forfeiture: I will first bestow a few words upon the Fine and Estreates for the Queen, and then speak of the benefit that belongeth to the subject. Execution, for the Queen. Where the Conuictian is for Trespasses against the Peace, Riots, and such other Contempts and offences, against the Commission or statutes, for the which no certain Fine is appoynated: there (as you have seen already) the judgement is, That the party shall be taken to satisfy to the Queen her Fine. And thereupon, the capias pro sine, and (if the party can not be found) other judicial Procsle goeth out, till he be Vtlawed: unless it be in a very few cases where by the words of the Statutes themselves they may proceéede to assess the Fine in the presence of the parties, without calling them by any Process: for, so it standeth in the Statute of Alehouses. 5. E. 6. cap. 25.: As I told you even now and in the Statute of High ways. 5. Elizab. ca 13. But if the party be brought in, then is he aprisoner, and then are the justices of Peace (by their discretion) to assess the Fine, and so estreate it, and deliver him. For in no case (as I take it) can they of themselves levy any Fine, or forfeiture, due to the Queen: insomuch as not they, but the Sheriff is the accountant for all such matters. The imprisonment that I speak of, is only to the end that the Prince may have the Fine: and therefore, upon the payment thereof (or upon pledges found by Recognusance to pay it) the offender ought to be delivered. Imprisonment. 2. Mar. Brook imprison. 100 Hereof also the Fine took first his name, of the Latin Finis, because it maketh an and with the Prince, for his imprisonment for the offence committed against his Law. Difference between Fine, & Amercement. And in that respect chief, doth it differre from an Amercement. For when the offedor hath not so deeply trespassed, that thereby he deserveth any bpdly punishment at all, as if he be nonsuit in an action, or do commit any such like fault the is said to fall into the Kings Mercy: because he is therein mercifully to be dealt with: and by the Great charter. ca 14. that Amercement and sum of money which he is to pay for the same, aught to be asseased and afféered by the good and lawful men of the neighbourhood, which also Glanuil lib. 9 cap. 11. affirineth to have been the Law of the land 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 contenemento amittat. But where the offence or Contempt falleth out to be so great, that it asketh the imprisonment of the body itself, and that during the Kings will and pleasure: then is the party to redeem his liberty with some portion of money, as he can best agrse with the King or his justices for the same, which composition, is properly called his Fine, or his Ransom, & in Latin Redeptio, as may be plainly seen by the Statue of Marleb. 52. H. 3. ca 1. 2. 3. & 4. And by the Statute called Ragman, and diverse other ancient Statutes, But of later time the justices ahue in sonie cases of Amercements also used to assess and rate themselves without any other help: As where the Dssicers of their Courts have offended, 33. H. 6. 54: 34 H. 6. 20: & Lo. 5. E. 4. 5. which seemeth to make an other difference between the two words. But because neither of these be strictly observed in our common speech, nor yet in the undersranding of the Statutes of later time, I will no longer stand upon it. Now then, if the offence be finable, by general words only, without speaking of any Fine, or without showing by whom it shall be assessed (for so it is commonly in the elder Statutes that do prohibit any thing to be done) there the assessment thereof belongeth to the justices, before whom the Conviction is lawfully had. Fine, by discretion of the justices. Again, if it be Finable by these (or such like) words, at the Kings will, or At the King's pleasure (as you shall find it in many Statutes) then also the same justices (before whom the Conviction wag) shall assess the Fine at their wills and pleasures: for (say the Books. 2. R. 3. 11: & 18. H. 8. 1.) the King (in all such cased) bttereth his own will and pleasure, by the mouths of his justices. And yet some Statutes (using plainer speech) do namely refer the Fine to the discretion of the justices of Peace. For, they may (after Conviction before them) Fine (by their discretions) such as take Salmons, or destroy the Fry of Fish in Kivers, 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 said of the Fine, so sundry Statutes do give the same power to the justices of Peace, in the execution of the corporal punishment it selset as you have already heard in the case of counfeiters of false letters or tokens, and may read in oter the Statutes at large, For, I labour to be short, and therefore I give but an assay of each thing, knowing that these justices will not proceed to the execution of any Statute without the sight of the Statute itself, howsoever they should find it alleged by me. And in these cases, (as in cases of Amercementes) the justices ought to take heed that the Fines be reasonable and just, having regrade to the quantity of the trespass, and the causes for which they be made, as it is commaunaded by the Statute. 34. E. 3. ca 1. This Fine (or pain) awarded by the discretion of the justices of Peace, shall do the more good, both to the Prince in profit, to the people in example, and to the justices themselves in credit, if it be pronounced-at the Bench openly (as it ought to be) and not shuffled up in a Chamber (or Corner) secretly, as in some places it hath been bsed to be. Fine, to be assessed openly. I have heard, that in cases where the Statutes do appoint a certain forfeiture, as five pounoes or fen pounds etc. yet the prartise is, to mitigate the same by discretion, if so be that the party will come in, and put himself in gratiam Reginae, without plain confession of the fault, as I have fold you before. Mitigatioa of the forfeiture of a Statute. So that the Fine shall be small, where the fault was great, and the penalty of the Law itself not small. But this manner of doing is (in my mind) so void of saunde reason, that I can not recommend it to the justices of Peace, but do rather condemn it as a mockery of the Law, and I find, that sundry Statutes (fearing belikw some such thing) have specially prevented it, comnaunding that justice of the Peace shall assess no less Fine, than is in those Statutes themselves before hand appointed. Such is the Statute (17. E. 4. cap. 4) of Tiles: the Statute (33. H. 8. ca 6.) of Crossbows and hand Guns: and the Statute (5. E. 6. ca 25.) concerning Alcheuses: and such others may be found, if the Books of Statutes be well perused. But hitherto we have not sufficiently performed that, which the Commission of the Peace hath in these words: Saluis nobis amerciamentis, & ali●s ad nos inde spectantibus: and therefore, it is not enough to have assessed the Fine, but we must also disclose the means, by which, as well this Fine that is reduced to certainty by the discretion of the justices, as all other Amercementes & those other penalties and forfeitures that are certainly prefined by words of the Statutes, may be levied and brought into the Prince's coffers. Estreating for the Qucene. Order was taken by an ancient Statute, entitled the Scaccario, and noted to be made 51. H. 3. that all justices, Commissioners, and inquirers whatsoever, should deliver into the Exchequer at the feast of S. Michael yearly, the extracts of Fines and Amerciaments taxed and mafe before them, that the King might be duly answered thereof. and the same (in effect) was after ward confirmed by an other Statute, entitled, De formamittendi extreta ad Scaccarium, which although it be said 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 needs 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 extend to the justices 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 very general, and hath nothing peculiar unto them from other justices, I will descend to lower times, and look there for nearcr helps The Statute (12. R. 2. ca 1) had allowed to every justice of the Peace four shillings by the day, for the time of their Quarter Sessions, to be paid (by the hands of the Sheriff) of the Fines, and Amerciaments coming of the same Sessions. But, because it was soon after seen, that it was a great delay to the justices of Peace in this payment, to expect the leaying of these Fines and Amerciaments by Estreates, first sent up, to the Exchequer, and then delivered thence to the Sheriff (which was at that time the common manner of levying Fines and Amerciaments) therefore it was within two years after (videlicet 14. R. 2. cap. 11.) provided, that the Estreates of the justices of Peace should be indented (or doubled) and the one part thereof delivered by them to the Sheriff, so levy the, money thereof rising, and to pay the justices their wages by Indenture between him and them to be made: and the other part thereof sent into the Eschcquer to charge the Sheriff withal upon the making of his account there. And hereby (as I think) the Estreates of the justices of the Peace be no we an immediate warrant for the Sheriff to levy, not only the Fines and Amerciaments, but also all other ●●●ues, Penalties, Loesses, Forfeitures, and Sums whatsoever, arising before themL for the words of the Statute are general, The money thereof arising and therefore whatsoever sums are to be Escreated into the Exchequer by the one of these doubles, the sme are also to be levied by the Sheriff by the other double. Such order did the Statute (3●. H. 8. cap. 10. of the fire weeks Sessions) take, for the levying as well of Fines and Amerciaments, as of pains, Losses, and Forfextures of money: So doth the Statute of Tillage (2. & 3. phil. & Mar. cap. 2.) by way of admittance rehearse, that justices of the Peace may make out Process for the levying of Fines and Forfcitures before themselves: and so are the Estreates amde. and the Fines and Forfeitures thereby levied, at this present time, if I be not dece●ued. And those are properly called Estreates, of the woord● Extractae, because they be short Notes (or Memorials) extracted (or urawen) out of the Records, by the Clerk of the Peace, and by him indented and delivered sunderly, to the Sheriff, and to the Barous of the Exchequer, bearing this (or the like) Title, Extract, finsium, & amerciamentorum forisfactormum, ad go●ralem Sessionem Pacis, tentam apnd Maidstone, etc. Coram, etc. For the whole form of the making whereof, there is full Direction given to all Clerks of Estreates, by the Statute, 7. H. 4. ca 3. Where unto I refer them Howbeit, I do not think, that in our case, this duty of Estreating is so peculiar to the Clerk of the Peace, but that the justices of the Peace themselves, ought also to have a common and careful eye unto it: For (if you remember) it is both specially provided for in the Commission, and also an Article of their Doth, to see unto the faithful Entry and Certificate of the Issue, Fines, Forfeits, and Amerciaments, that do happen before them: And therefore, it were well done (in mine opinion) if the justices would, by turns (or other wise) both take knowledge of things that have passed before them, and also take order that the same be certified accordingly: least other wise, it lie altogether in the power of the Clerk of the Peace, to Save or Slay (as one said) the Sparrow that he holdeth closed in his hand. justices of the Peace ought to have care of Estreates. Of executory Process, & execution for the parties that sue, or for other persons. CAP. XVII. ALbeit that the justices of Peace have this power, to make warrant for levying the Amerciaments, Fines and other forfeits, that do grow unto the Queen by their service: yet is it commonly thought that they may not, (but in some cases only, and that by special speech of the Statutes) make execution (either for him that will sue, or for any other) of such part of the forfeiture, as the Law doth afford them. For (most commonly) the party that will sue, is put to his Action at the Common law for recovery of that which he is to have: as, for his moiety of a forfeiture against the Status (24. H. 8. ca 13) of apparel, he is perhaps driven to his Action of Dstinue: for his maytie growing upon conviction of any offence, contrary to the Statute (13. Elizab. cap. 14.) concerning bringing over of Bowstaves, 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 each where to be foúd. Apparel. 〈◊〉 Musters. But Where they have power either by their Commission Or by any Statute, to hear and determine any cause at the suit 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 suit, which can not be without execution. Doubtless, by special provision made in the Statute (5. E. 6. ca 14.) against Forestalle is the justices of the Peace may make execration of the one moiety of the forfeiture for ht in that sueth, by fieri facias, or capias, as the Q veenes' justices at Westminster use to dec. Forestallers The like power in like words, have they, for levying the moiety of any forfeiture against the Statute of Armour, made 4. & 5. Phil. & Mar. ca 2 or against the Statute (made 5. Elizab. cap. 12.) concerning Badgers, Drovers etc. and their licences. Armour. For the moiety, growing to the Informour upon the Statute of Liveries (8. E. 4. cap. 2.) they shall make such execution, as aught to be had in Kccourries of Der or Trespaile, at his own pleasure. liveries. They may also award execution for the party that sueth, upon the Statute of Flax and Hemp (24. H. 8. ca 4.) by such Process as to them shall seem by their discretion. Flax and Hemp. And the Estreates (made by the Clerk of the Peace) of forfeits for defaults of amending Highways, area safficient warrant to the Constables to levy the same by Distress to the use of the Churchwardeins of the Parish where the Default was, towards the amendment of the said ways. Highways. 2. & 3. Phi. & Mar. ca 8: & 5. Elizab. ca 13. Ann like wise, the Estreates of the justices of Peace (of any Fines, assessed by them upon Presentmentes in the shnifesTurne) being enrolled, indented, & deltuered to the Shinfe. are a good warrant unto him to levy the same to the use of him that was shirite at the time of such Presentmentes taken. Sheriffs Tisma 1. E. 4. ca 2. Search may afford you some more eramples, but thrse may suffice for my desire, which is not (in this, or any other) to recount all, but to make some proof of that which I offer and propose. Of Certifying Records of the Sessions of the Peace, to other Courts, or Officers, CAP. XVIII. AS we have already manifested, that justices of the Peace have not a sufficient and thorough powur of themselves to hear and determine all causes whereof they have in their Session's authority to inquire: So also be there sundry things determinable before them there, which nevertheless may (in some respects) be brought to a second handling: either to the end to reverse that which they have done, or that their doings may be an evidence and testimony in the trial of causes before other judges. And because this can not in any sort be performed, Without the presence of those former Records (or the transcripts thereof) which due remain with the justices of the Peace, it is therefore requisite, that they we make Certificate of them unto those other Courts, or officers, that shall be interessed to use the same. But as this Certificate ought in some cases to be made by the justices of the Peace, or their Clerk, without any writ of Certierari therefore directed, and in some other cased they may spare to Certify until that writ or some other commandment be brought unto them: So also sometimes they are to certify and send up only a Tenor (or Transcript) of the Record before them, and sometimes the very Record itself must be conveyed from them. The Clerk of the Peace must under the pain of rl. ●. certify into the King's Bench a true transcript of every Attainder, outlawry, and Conviction (had before justices of the Peace in any place, except Wales, Chester, Lancaster, and Durham) within 40. days after, if it be then Term, & if not, then within 20, days after the beginning of the next Term that the same may there also appear of Record to be used as that Statute hath appointed if there be cause: and he must also Deliver to the Ordinary a Transcript of Clerks convicted or attainted before the said justices. 34. H. 8. c. 14. Certify without the writ of Certiorari. But inquire whether this last be nécdefull at this day, by reason that Clerks be not now delivered to the Didinarie, by the Statute, 18. El. ca 7. And if a principal be attainted of murder or felony in one County, where unto an other is accessory in an other County, then upon writing from the justices of jail deliveric, or Oier and Terminer, to the Custos Rotulorum, where such principal is attainted, he must certify in writing under his Scale to the said justices, Whether such principal be attainted, or other wise discharged, or not, that they may proceeds there upon to the trial of the Acceslorie. 2. E. 6. ca 24. But in cases where justices of the Peace have power to receive indictments, and no power to proceed any further upon them, (whereof you have already the eramples, in the seventh Chapter of thts seconds Book) there they ought to sunde up and certify the indictments them selves, and that of duty (as I think) without any Certtorari commanding the same: because, having none authority to hear and try the offences, the Records thereof shall be unprofitable before them, and therefore they can have no just cause to retain them: and yet (for the more surety) it is specially commanded by 5. El. ca 1. that they (shall certify the presentmentes of some offences against that Statute. And so, if a man (bound to keep the Peace do make default of appearance at the next Quarter Sessions, the Recognulance itself (together with the Record of that default) must be certified into the Chancery, King's Bench, or Excheaquer, that execution 3. Henri 7. cap. 1. and so ought it (as I think) if it be presented that the partis hath for fayted his Recognusance by breach of the peace: And likewise, if it be presented before them, that the chattels of a man attainted of felony, be in the hands of an other. For, in these, and such other cases, where they can not of themselves proceed, they ought to sand the Records to such as have auctozitie to determine upon them, and otherwise they doc not discharge that duty, which the words Saluis, etc. & alys ad nos inde spectantibus, in the Commission doc seem to expect at their hands. Furthermore, the Statute of purveyors (2. & 3. Phil. & Mar. cap. 6.) doth appoint the justices of the Peace, to certify to the Treasurer of the Queen's household, the Dockets of purveyors (brought to their Sessions by Constables) that the serving of such Commissions, and the true aunswearing of purueyances, may be the better eramined thereby: and although it may be doubted, whether these be Records, or no, yet for that they are to be certified from the Sessions of the Peace, I stick not to afoard them this place. And if you will also repute in this number, the Licences (and such other ates of that kind) which pass at the Sessions of the Peace, I will not be against it. Louching the Certiorari, if it be made accordingly, the is of force to remove not only indictments or other executory Records, wherein the justices of Peace can go no further, (and whereof I have spoken already) but also the Records of caused, fully and lawfully heard and determined by them, to the end that they may be reversed and annulled in the kings Bench, if good matter and cause due so require. Certiorari. For that pre-eminence hath the kings Bench as you may see by Proof, yea, all other the higher Courts, may write to the justices of Peace, to certify their Records, that do make for the Trial of causes hanging in them, as you may read 19 H. 6. 19 where they of the Commune Place, did send to the justices of Peace for an Enditeiment, because in a writ of Conspiracy, (brought before them) it was material to have it. And yet, neither they of the Commune Place, nor kings Bench, do use to write for indictments, or such other Records, unless they be there unto induced by a cause hanging in their own Courts before them, For, otherwise the right way to remove them, is by Certiorari out of the Chancery, from whence they may be transferred (by Mittimus) to any other Court. 41. lib. Ass. Pl. 22. Knyvet Chief justice. Howbeit, a man may gather upon the Book (1. R. 3. 4.) that if any Record be sent up without warrant to such a higher Court, they may there proceed upon it, because it is a Record in that Court, and that Court is the Court of the Queen, aswellas the other. Of the genrrall, (or Quarter) Sessions, of the Peace. CAP. XIX. WE have hitherto laboured, and at the length run over, sundry thing, which (in the opinion of some men) be common to all Sessions of the year: And yet, becuse there be also certain things (as it seemeth to me) appropriated, some to any, and others to some one, of the general Sessions, it remaineth that we now distinguish the Sessions of the Peace, and enter into consideration what is a general, and what a special Session. The general Sessions of the Peace be those, which are provided for the general execution of the authority of the justices of Peace, whether you respect the limits of the place within their Commission or the bounds sof power proceeding from the Commission and Statutes. The general Sessions. For at these Sessions (as saith M. Fitzh.) generally all things ought to be given in Charge that do lie within the authority of these justices to be determined. These be moreover called the Quarter Sessions, because they be holden Quarterly, or four times in the year: and the statute (4. H. 7. ca 12.) termed them principal Sessions, for that in them chief, the power of justices of the Peace doth shine and show itself: in which respect, some other Statutes do give them the name of open Sessions also. But we shall not not need to dwell upon the names, whereof there can be no great controversy, seeing that they all do aim at one mark: rather, because these general Sessions be at this day diversly summoned, begun, and continued, in divers parts of the Realm, it lieth fitly in my way, to make examination of that diversity in this doing. For (to begin 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, chief upon pretence to ease the Inhabitants of the County, for whom it would other wise be very painful to travail so often from all the parts of the Shire, to any one place of the same. And therefore, such as do maintain 6. or 8. Sessions do use to Summon all the whole Shire to a couple of them, and to the residue they call only such; parts of the Shire, as they do therefore specially appoint: But yet so, that (upon the reckoning) each corner of the Country giveth attendance at four several Sessions: which also falleth out accordingly in those Shires where they have ●2. or 16. Sessions for albeit that they do not at any one time summon the whole Shire to any one place (as the others do) yet, dividing their Shire into 3. or 4. parts, and keeping four several Sessions ineache of those parts, they also (as well as the other) do serve their whole country with four sundry Sittings. And therefore (in mine opinion) although none of these do follow the precise letter of the law, which requireth but only four qnarter Sessions in any Shire, yet every of them draweth near to the true meaning of the law, which looketh for nothing else but that the Court of these Sessions should yearly be four times opened for the whole County. But if there be any, that do (for this purpose) divide their Shire into halves, and do hold only four Sessions in the year, that is to say, two in the one part, and two in the other, calling the one half of their Hundreds to those two Sessions at the one place, and the other half to the other two Sessions holden at the other place. These men (as some have thought,) do neither retain the letter, nor attain the meaning of the law, in this their doing. For, upon the matter, no part of their Shire hath any more than two Sessions, which manner, who seeth not how much it may hinder justice? And although that they will peradventure seek to salve it, in saying, that they do call the Constales of the whole Shire to every of those Sessions: yet they can not so escape: for, both reason itself, and their own experience herein, doth inform them, that it is likely, they shall have more presentmets, where more persons (that can present of their own knowledge) be assembled, and do take the charge upon them. Besides all which, these men do not bring ease, but travel and delay to their countrymen, whom by this mean they compel, either to go far, out of one part into another, to have a fault punished, or else to tarry for help till a Session shall be kept in the part where they dwell. Neither may I well omit, that this doing may breed danger to the justices themselves, whilst any of them (having taken a recognisance of a Tippler) doth not Certify it until the Sessions happen to be in his own part, and in the mean season, the next Session of the Peace within the thire chanceth to be holden in the other part: whereof what may follow, the Statute (5. E. 6. ca 25.) will tell you, and teach them. And like fault is it, though not like forfeit, so to receive a recognisance taken for the Peace, as you may see 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 Now followeth the time in which they ought to be hold at, about the which also all Counties do not agree, and therefore, it shall be good (before other things) to peruse those Statutes, which do (either in deed, or show) concern this point. The Statute 25. E. 3. ca 8 ordained thus: Item that the said justices make their Sessions in all the Counties of England, at the least, four times in the year, viz. At The Annunciation of our Lady: Saint Margaret: Saint Michael: and Saint Nicholas. The Statute 36. E. 3. ca 12. saith, That the Commission of the Peace shall make mention that the Session shall be holden thus: Within the uta of the epiphany: Within the second week of Lent: Between Pentecost and Midsummer: Within the utas of Saint Michael. The Statute 12. R. 2. ca 10. doth after ward set the matter at liberty, saying, They shall hold their Session in every quarter of the year at the least: But they of Midlesex be excepted by 14. H. 6. ca 4. Lastly the Statute 2 H. 5. ca 4. doth reduce the times to certainty again, saying thus: Over all the Realm, the Sessions shall be, In the first week after Saint Michael, The epiphany, The clause of Easter, The translation of Saint Thomas the Martyr. The first of these four Statutes, doth (in show, and in common opinion) concern Sessions of the justices of Peace, but in truth it belongeth not at all unto them, for it was made to direct the justices of Labourers in the times of holding their Sessions and they were not Commissioners of the Peace, but special justices for the causes of Labourers alone, not resiant in the Country, but sent down for the time of that service, as it may expressly appear, not only by the preamble and all the parts of the said Statute itself, but also by the Statutes 28. Edward. 3. cap. 5: 31. Edward. 3. cap. 6: &. 34. Edward. 3. cap. 11. during all which time also, the Wardens of the Peace wese neither called justices by any Statute, nor authorized to deal with Labourers. For in 34. Edward. 3. cap. 1. they are called Wardens, and the first name of justices of the Peace by any Statute (that I have seen) is found 36. Edward. 3. cap. 12. before mentioned, where it is said thus, In the Commissions of justices of the Peace, and of Labourers, express mention shall be made, that they shall hold their Sessions etc. as before. And as for the authority over Labourers, that was first appointed to justices of the Pcace by the Statute 42. Edward. 3. cap. 6 in the fourth Chapter of which said Statute, there were certain Commissions distiked (of which I believe that of the justices of Labourers was one) and order taken, that from thecefoorth some of the justices of the one Bench or other, or justices of Assize, or justices of the Peace with other of the most worthy of the Country should be named in all Commissions of inquiry. So that we have not so do with the Statute 25 Edward. 3. cap. 8. and may therefore proceed to examine the rest. The next is, the Statute 36. Edward. 3. ca 12. But neither that maketh any Laws for holding the Sessions of the Peace at this day, as well because it was fet at large by 12 R. 2. ca 10. as also (if it were not) because the Commissions of our time, use no such mention as it commandeth. Then came we to 2. Henri. 5. cap. 4. which restraineth the liberty of 12. Richard. 2. cap. 10. and reduceth the times of these Scssions to certainty againet: and yet so, that the one of these Statutes doth not fret the other, for the latter is an exosition of the former, so that it is all one as if they both had been but one Law, and should have said, That the justices of Peace thall hold their Sessions in every quarter of the year at the least, namely in the first week after Saint Michael, in the first week after the Epiphanic. etc. Now, to prove that the Quarter Sessions of the Peace were holden after the prescript of this Statute (2. H. 5. cap. 4.) until the time of the Statute, 5. Eli. ca 4. these be my warrants. First, M Marrow saith plainly, that in his days the Quarter Sessions were so holden. Secondly, for as much as there can be no higher authority of exposition then to construe one Statute by an other, I will show you some Statutes also that have accounted of these Sessions to be holden accordingly. At the General Sessions after the feast of Saint Michael, the Custos Rotulorum, or (in his absence) the eldest of the Quor● ought to appoint two justices of the Peace for the oversigt and controlment of the Shintes, and their Clerks etc., by the Statute 11. H 7. cap. 15. And at the general Sessions holden at Michaelmas, the justices of Peace ought to appopynte Searchers for Brass and ●ewter: by the Statutes. 19 Henri. 7. cap. 6: &. 4. Henri. 8. cap. 7. where the word (At) must of necessity beée understood for (After) whether you will take it according to the said Statute 2. Henri. 5. cap. 4. which sayeth plainly (After) or according to 36 Edward 3. cap. 12. which sayeth Within the Vias of Saint Michael, seeing that the Vias (as everic man knoweth) is atwayes after the feast, and not before it. But (to prove two at once) whereas the Statute 27. H. 8. ca 5. had taken order for justices 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 etc. as other justices of the Peace in other the Counties of England were, it fell out, that the Gentlemen and fréeholders of the Country of cheshire were much troubled by attending yearly, both at the said 4. quarter Sessions, and also at 8 or 9 County Courts which they had besides & thereupon it was provided (by another statute 32. H. 8. ca 42.) the the administration of justice (before time used in the said) County Courts) should from thenceforth be done & executed at two times in the year only, the is to say, at the Sessions next after the feast of S. Michael, & at the Sessions next after Easter yearly for ever. I might add, that the quarter Sessions in the week next after the Claute of Easter, was tied to the Twesday of that week, by the Statute 33. H. S. c. 10. And the it was not without some grave consideration, that the Statute 2. H. 5. ca 4 did command the Sessions of the Peace to be holden over all England, in one and the self-same week: But I think it clearly enough proved, that hitherto these Quarter Sessions ought to be directed by that Statute: and therefore I will descend to the Statute 5. El. ca 4. and weigh the time in which they ought to be holden at this very day. The words of that Statute be these: As much of all the Statutes heretofore made, & every branch of them, as touch or concern the hiring, keeping, departing, worKing, wages, or order of Servants, Workmen, Aruficers, Apprentices, or Labourers, or any of them, and the penalties and forfeitures concerning the same, shall be repealed & utterly void & of none effect: And that all the said Statutes, and escry branch thereof, for any matter contained in them, and not repealed by this Statute, shall remain and be in full force and effect, any thing in this Statute to the contrary notwithstanding. Upon this Statute some have thought, the the said Statute, 2. H. 5. ca 4. is repealed concerning the branch of the Sessions: And others do think the contrary: and therefore let us hold the beam, and put in balance their reasons on either side. They of the one side do allege, that this branch of the Sessions lieth in the midst Of that Statute (2. Henry. 5.) which 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 words of repeal. And they say also, that it will fall out unseasonably, to holdte the Sessions (especially that after Michaelmas) according to this Statute, because the same happeneth very near to that term of Saint Michael, whereat the presence of many is no less requisite, than at the Sessioans of the peac●. They, on the other side, do gather upon the said words of 5. El. cap. 4. that some parts of the Statutes of Labourers must needs remain in force, notwithstanding those words of repeal: for otherwise (say they) the maker's of 5. E1. might (with less labour of speech) have repealed them all at once. And threrefore they say, that two Statutes of Labourers, (viz. 12. R. 2. cap. 3: and 23. H. 6. cap. 13.) be yet inforre, for so much of them as both) concern Victuallers: and like wise, that so much of this Statute 2. H. 5. 4. as doth concern the resiancie of those justices of the Peace which be named of the Quorum and the holding of the Quarter Sessions, is vnrepealed also: for that that they concern not the hiring, keeping, etc., or order of servants, etc. (which might be done without the Setsions of the Peace) but the general service of the Commission and Statutes that do authorize the justices of Peacewhereof also these Scssions be called the Sessions of the Peace. And it is not new (in their opinions) to find a general ordinance in a particular Statute: as in the Statute 38. H. 8. ca 39 made specially for the erection of the Court of surveyors, there is a general Laws, that all Dhligations concerning the King's commodity. shall be made to himself by the words Domino regi,, etc. Neither was there ever (say they) any Duarter Sessions holden (only for the causes of Labourers) by the lastices of Peace, although the petite Sessions of Constable's were chief bend to that service. And that the said Statute 2. H. 5. did mean the very Sessions of the Peace, & no other, they offer to prove by the authority of those self same Statutes, which be alleged already for the holding of the Quarter Sessions, until the time of this Act of Queen Elizabeth, for that they have heretofore so construed and taken the Statute. But to make the proof full, they add, that even this same Statute of repeal. 5. El. cap. 4. both in a certain place there of speak of the Quarter Sessions to be holden after Easter, which cannot be unoderffoode of any other of thosse Statutes cocerning the Sessions. but only of 2. H. 5. cap. 4. because the rest (that have certainty) do appoint that Session, either at the Annunciation of the Lent And like wise, that the Statutes 8. Eli. cap. 9 concerning the prices of vessels, of ●ope, Ale and Beer: and 14. Elizab. cap. 5: and 18. Elizab. cap. 3. concerning poor people and vagabonds, have mention of the Quarter Sessions, to be holden next after Easter. Which Statutes, as they make not in this point, any new Law, but be grounded upon former Law, supposed to be in force: So allowing of any one of these sour Sessions, they do therein give allowance of all the other three also. As for answer to the objection of the dearness of the Michaelmas Sessions to the Michaelmas Term, they say, that this was foreseen to the makers of that Statute 2. H. 5. who do therein dispense with, the absence of the justices of the Benches at Westminst. the Barons of the Escheaquer, etc. And yet, to the end, that they also might once in the year be present at a Session of the Peace for the better direction of that service, the Statute 33. H. 8. ca 10. did specially appoint, that the Easter Sessions should be holden yearly upon the Tuesday next after Low Sunday, in every Shire of the Kealme. Now, if it shall seem to any man a strange thing that I move question of the time of holding these Sessions: I let him know, first● that it is one of the Articles of the Oath ministered to the justices of Peace, that they shall hold their Sessions after the form of Statutes thereof made. Secondly, that the articles of many Statutes, are inquirable, as it seemeth to me, only at the Quarter Sessions: because they are not in the Commission at all, and the Statutes themselves do appoint of none other Inquiry, but at the Quarter Sessions: and then if the justices of Peace do not hold their Quarter Sessions according to the times appointed by Law, they be no Quarter, but Special Sessions, and consequently, such Statutes shall either not be inquired of at all, or else inquired of without Warrant, both which be very great inconveniences. So that this matter (if it be not rightly conceived) tendeth both to the hurt of the conscience, and to the hindrance of this service. Touching the continuance of these quarter Sesions, I have shortly but this one thing to say, that almost two hundred years ago, it was ordained by statute (12. R. 2. cap. 10.) that they should be continued three days together (if need were) upon pain of punishment: And yet in these days of ours, wherein the affairs of the Sessions be exceedingly increased (and consequently, more need to continue them now than before) many do scantly afford them three whole hours, besides that time which is spent in giving of the charge. How long the Quarter Sessions shall continue. But it is more than time, that I descend to some of those Statutes, which do specially rely upon the Quarter Sessions, & therefore I will first begin with such as have refeence indifferently to any of them. Things referred to the quarter Sessions. The justices of Peace may in their open Quarter Sessions, inquire of, hear, and determine, all offences (except treason, and misprision of treason) committed against the Act made (23. El. ca 1.) for retaining the Queen's subjects in their due obedience. Pope. They may also in their open Quarter Sessions, inquire of such as do extol the usurped authority of the sea of Rome, against the Statute 5. Eli. ca 1: And the Clerk of the Peace must read that Act at every of the Quarter Sessions. Pope. Act read. And they may in their general (or Quarter) Sessions, inquire of seditious words, and rumours uttered against the Queen's Majesty. 23. E. cap. 2. Seditious words. All the Articles, mentioned in the Statute (33. H. 8. cap. 10.) shall be inquired of, reform by the justices of Peace in their ancient Quarter Sessions. 37. H. 8. cap. 7. Execution of Statutes. They may in their general Sessions determine of the offences of killing and selling weanlings under two years age, 24. H. 8. cap. 6: & 13. Eli. cap. 25: and of the offences of not keeping Mylch Kine and Calves, 2. & 3. weanlings. Philip. & Mar. cap. 3: & 13. Elizab. cap. 25. milk Kine, and Calves. The inquiry, Hearing, and Determination of Forestallings, engrossings, and Regrating, may be at the Quarter Sessions. 5. E. 6. cap. 14. Forstalling. The inquiry, whether Alehouse keepers have forfeited their Recognusances, aught to be at the Quarter Sessions 5. E. 6. cap. 25. Alehouse. The Fine for unlawful Hunting by night, or with painted faces, shall be set at the next general Sessions, 1. H. 7. cap. 7. Hunting. justices of the Peace may in sheyr Quarter Sessions hear and determine offences against the Statute of Armour, 4. & 5. Phil. & Mar. cap. 2. and may there inquire of, hear, and determine the offences of putting to pasture any stoned Horses, etc. under the height appointed by the Statute 32. H. 8. cap. 13: And may there also, inquire of conveying Horses into scotland. 23. H. 8. cap. 16: 1. E. 6. cap. 5: & 1. Elzab. cap. 8. Armour. Horses. They may at their like Sessions, inquire of, and determine te offences of not amending the highways 2. & 3. Phil. & Mar. cap. 8: 5. Elizab. cap. 13: & 18. Elizabeth. cap. 9 Highways. In their Quarter and general Sessions, they ought to inquire of, hear, and determine the offences of not keeping continual households upon the Precinctes of the late Monasteries 27. H. 8. cap. 5: 5. Elizab. ca 2: & 14. Elizab. ca 11. Keep houholdes. And in their Quarter Sessions, they may hear and determine the offences of Informers 18. Elizab. cap. 5: And at the like Sessions they may do the like for offenders in Perjury, 5. Eliz. ca 9 Informers. Perjury. Such as be suspected of using counterfeit Tokens, or Letters, may be called by Process to the next general Sessions, and must be comuicted there. 8. cap. 1. Counterfeit tokens, or Letters. justices of the Peace may in their open Quarter Sessions, call before them the owner of a Wood, and twelve of the Commoners there, for setting out the fourth part thereof. Wood 35. H. 8. cap. 17: & 13. Elizab. cap. 25. The proof of the sufficienty or insufciencie of the cause, for which the Master may put away his servant, or te servant may departed from his Master, before the end of the term, shall be made at the Quarter Sessions, 5. Elizab. cap. 4. Master and Servant. The licences for Badgers, Drovers, etc. areto be granted in the open Quarter Sessions, 5. Eliz. cap. 12. and the prohibition of transporting Corn, is to be made by the more part of the justices of Peace at their Quarter Sessions. 13. Eli. ca 13. badger's. Transport corn. The licences that the poor of surcharged Cities, or Lownes, may beg, are to be given at the general Sessions: and he that is grieved with any taxation made upon him for the poor, may be eased there: and the taxation for the reliese of the prisoners in gaols, aught to be made there also. poor. Prisoners. 14. El. cap. 5. The assigment of such as shall keep any Laverne to utter Wine, aught by the Statute (7. E. 6. cap. 5.) to be made at the general Sessions. Tavern. A beggars child may at the general Sessions, be bound to serve any subject of this Realure, being of honest calling, 14. Eli. ca 5: & 18. El. cap. 3. Beggar's child. The Dockets of purveyors ought to be delivered over to the justices of Peace at the next general Sessions, 2. & 3. Phil. & Ma. cap. 6. Purveyors. The Act of rebellious assemblies (or the effect thereof) ought to be openly read at ewery Quarter Session, 1. Mar. Parl. 1. ca 12: & 1. Elizab. cap. 17. Act read. And inquire, whether the Proclamation (set forth 4. H. 7. cap. 12.) be not yet to be read at every Quarter Session also: for some do think, that it was to endure for the time of that King only. Proclamation read. These, and some others (which I omit) have reference (as you see) to any of the same general Sessions: for so many of the which, as be inquirable (and aught therefore to be given in charge) I may seem, either to have committed a Tautology in reporting the twice, or (which is worse) to have written a Repugnancy, in that I did first deliver them as common to all Sessions of the Peace, and do now here restrain them as proper to the general. The reason why some things be repeated. But this is shortly the cause. Some men be of the opinion, that these Statutes which be enquirable (by express words) at the Quarter Sessions only, may nevertheless be inquired of at the special Sessions also. And I have hitherto doubted, whether that be true in all cases, or no: for, as the justices of Peace have none other warrant to inquire of these matters, but only by those Statutes which do appoint the inquiry to be made at the Quarter Sessions: So (as me thinketh) they ought to pursue that warrant, if they will take upon them to inquire and have any care to have their doings warranted. And I think it be no great doubt, but that as the Statutes do many times give degrees of power, sometimes in great measure, and sometimes in less: So also, the same Statutes may restrain the auctorifie of inquiry to some ceetain Sessions, & especially to the Quarter Sessions, in respect that they be both more open, more commonly known before hand, and better furnished with justices, and consequently, the meeter for administration of justice specially in affairs of the weightier sort. And therefore, I have in this part laboured, both to satisfy their opinion in the one, and to serve mine own fantasy in the other. But now also, let look out some such things, as be left only to the Easter or Michaelmsse Sessions. Easter Sessions. The prices of vessels, for Soap, Ale, and Baere, shall be set, and proclaimed by the justices of Peace at their Quarter Sessions after Easter. 3. Elizab. cap. 9 Prices of Vessels. The wages of Servants and Labourers, are to be rated by the justices of Peace at their Easter Sessions or within six weeks after Easter. 5. Elizab. cap. 4. Wages of Servants. And they mast yearly in the same Sessions examine the performance, or not performance of the Statute, made for the poor. Poor. 14 Elizab. cap. 5. They must also in the same general Sessions yearly take order for the provision of storks and store, for the fetting of youth, and idle persons on work: and ought then also to appoint houses of correction for such as will not work 18. Elizab. cap. 3. Work and correction, for idle persons. At the Quarter Sessions to be holden after Michaelmas the justices of Peace are to appoint Searchers for Brass and Pewter 19 H. 7. cap. 6: & 4 H. 8. cap. 7. Michaelmas Sessions. Brass, and Pewter. Sheriffs' Books. And at general Sessions after Michaelmas two justices of the Peace ought to be appointed by the Custos Rotulorum, or (in his absence) by the eldest of the Quorum, for the overfight and controlment of the Sheriffs' Books, etc. 11. H. 7. cap. 15. Of the special Sessions of the Peace. CAP. XX. The special Sessions of the Peace, vo vary from the general, in this chiefly, that they be holden at other times, when it shall please the justices themselves, or any two of them (the one being of the Quorum to appoint them. And this power they have, not only by the Commission, where it saith, Adcertos dies, & loca, quos vos, seu aliqus vestrum, ad hoc provideritis etc. but also by the Statute 2. H. 5. cap. 4. which alloweth them to do it More often (than the 4. times) if need do so require. They be also (for the most part) summoned for some specill business, and not directd to the general service of the Commission: And yet, there is no doubt, but that all the Articles within the Commission of the Peace, are both inquirable & determinable, at any special Session of the Peace. M. Fitzh. (as I have already noted) useth a third difference between the general and special Sessions of the of the Peace, affirming, the whereas at the general Sessions, the jostices of Peace ought of duty to give in charge, all matters (within the Commission, or Statutes) that are to be determined) before the: yet nevertheless at the special Sessions, they are at liberty to give charge, either all, or any of them, as it shall seem good unto tyemselues. What things ges be inquiuble, at the spcciall Sessions of the Peace: I will not gainsay, but that the justices of Peace, may at any special Session of the Peace, give in charge all such Statutes as do give unto them a general power of inquiry, (without using mention of any Session) as doth the Statute 25. H. 8. cap. 13. of Shcepe: yea, I will grant, that they may also at their special Sessions of the Peace, give in charge to inquire upon all such other Statutes, as do use the word Sessions indifferently without adding General, or Special: of which sort there be a great many as 5. E. 6. cap. 4. of fight in Church, or Churchyard: 14. H. 8. cap 11: & 19 H. 7. cap. 11. of Hunting: Elizab. cap. 13: of linen cloth 2. & 3. Phil. & Mar. ca 7: of Fairs 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 inquire of such other statutes as do only assign the inquiry to be made at the Quarter S. ssions, you have heard my mind, and read my reasons in the last Chapter. Nowsoever it be, there might be great use of the special Sessions of the Peace, if they were now and then holden (between the Quarter Sessions) to deliver the gaols of untuly servants, sturdy vagabonds, idle poor folks, petite thieves, and some others. The use of the special Sessions. For it is daily proved, that many, being sent thither for correction, do come forth more corrupted than they went in: which evil happeneth by long abode there in wicked company: whereas, if they had more speedy trial, both they should be amended, and the Country less charged by it. Foreign Realms and Countries do reap the fruit of speedy justice; and if our gaols in England were more often swept & emptied, I doubt not, but that we also should find a sensible profit to arise by it. Peradventure some man will say, that by this mean we shall draw upon us again, the same inconvenience of troubling the Country that happened by the six we 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 be holden in every limit of the Shire, these may be kept only where the jail standeth: the which, since it is commonly situate in a populas Town, shall be easily able to furnish this service without calling any other unto it. Of the Rewards and Punishments, due to justices of the Peace, in respect of their Sessions. CAP. XXI. Well and evil doing, do from the first to the last deserve reward and punishment: and therefore, as we closed up the first part of this Treatise with them: So also shall this latter Book receive the same end and conclusion. Whilst it was at the liberty of the justices of Peace, to hold their Quarter Sessions as short time as they would, the Law did not allow them any Wages for their pains. The Wages of the justice of the Peace at the Quarter Sessions. But when the Statute (12. R. 2. cap. 10.) had bound them (under pain of punishment) to continue their Sessions three days together, if the affairs of their office did so require: the the same Statute thought it meet also to allow to every of them four shillings by the day for the time of their Session, to be paid by the hands of the Sheriff, out of the Fines and Amerciaments rising of the same Sessions. And that the Lords of Franchies, should be contributories to those Wages, after the proportion of their parties of the said Fines and Amerciaments. But, because it was very Dilatory for the justices of Peace, to take those Wages, at the hands of the Sheriff (as I have already touched) upon the Estreate sent out of the Escheaquer and for that also it grew in question, whether such Lords, as were named in the Commissions of the Peace, should be partakers of the same Wages: the Statute (14. Ric. 2. cap. 11.) did plainly provide, that the Wages of these justices should be levied and paid by the Sheriff, upon Estreates doubled and indented between the Sheriff and them: And that no Duck, Earl, Baron, or Baronet (albeit they were justices of the Peace, & did hold their Sessions with the other eight justices) should take any Wages for their Office in this behalf. And hereof also M. Marr. collecteth, the howsoever many Commissioners of the Peace there shall be assembled at these Sessions, yet only eight of them shall receive the wages, because (saith he) that at such time as these wages were first appointed, the law did take knowledge and make allowance of eight justices, and no more. And he also maketh it doubtful, whether it lie not in the power of the Barons of the Escheaquer, to appoint which eight (when more be assembled at the Sessions) shall have the wages paid them. For the first point, it would be some what hard indeed, to strain that Statute so far, as to give wages therbyto so many justices as be now at these days in every Shire, and would be present at the Sessions. Yet the Statute of Labourers. 5. El. ca 4. the willeth the justices of Peace in every shi●e to divide themselves, and to keep two special sittings yearly for the execution of that Law, alloweth to as many of them as shall give their attedance slew shillings a day for three days together. But concerning the latter, it seemeth by the late Statute itself, that the Sheriff shall first pay the wages, and the the Barons shall make the allowance, according to the Indenture. So that I see no liberty of such nomination left unto them. I confess, that it might breed, both offence against the Sheriff, & jealousy among the justices themselves, to have one of them preferred before an other in this payment: & therefore I think it wisely done (as it is used) to bestow the whole allowance upon the defraying of their Commune diet. If the Fines and Amercements of the same Sessions (sayeth M. Marr.) will not fully amount to the sum of the wages then due to the justices, yet shall the wages be rateably paid out of them, so far as they will extend. Furthermore those two justices of the peace, the do in their Sessions call before the, and person suspected to offed the Statute of Deerhayes, Buckstals, & Stalking & do examine him thereupon & find him faulty therein, shall have the tenth part of the forfeiture growing thereby. Buckstals. 19 H. 7. ca 11. Nitherto of Reward, henceforth of punishment. Punishmets at the common law. It seemeth, by the opinion of some justices (2. R. 3. 10.) the if a justice of the Peace do any thing of Record ignorantly, & for want of knowledge, that he shall not be punished for it. And this opinion of theirs is not new in this Realm, although it be otherwise truly said, Imperitta quoque culpae adnumeratur: for you amy read in the old laws, of King Edgar (cap. 3.) and of King Canute (cap. 14.) that if a judge had erred in his office, he might then have excused himself, by oath, That he did it not of evil mind, and that he knew not how to do better: which I speak not, to comfort men in careless ignorance, but to show you that me may err, and that erring by infirmity they are not altogether unworthy of pardon: and withal to let the justices of Peace see, that it may be a fault to err by ignorance, and that therefore they ought to stay where they meet with non liquet, as their own Commission doth direct them. Now, on the other side, if a justice of the Peace will craftily embesill an Enditemet, or wilfully raze any part thereof, or maliciously enrol (or file) the for an inditement which was never found by the jury. Then by the resolution of all the justices, assembled before the King in the Star Chamber (2. R. 3) a Commission may go out to inquire (by the oaths of 12. men) of such his misdemeanour, and if he be convicted thereof, he deserveth to lose his office, & to make fine to the Queen according to the quantity of his misprision & offece. ibid. Fo. 10. And even so may he be punished (as this book leadeth me to think) if he altar an inditement of Trespass, into an inditement of felony, howsoever the opinion (27. lib. Asl P 1. 18) be foound against it. A justice of the Peace may also be indited of the unlawful taking of money for doing his office, or of such other falsity. Fitz. Nat. Br. 243. And if he cause a man to be indited at the Sessions, by former conspiracy, or indirect practice, he is punishable for it as a private man. 21. E. 4. 67. But if in the handling of a cause at the open Sessions, it happen him to speak against an offendor somewhat excessively, yet he shall not be punished for it: juris enim executio non habet iniuriam: Nevertheless, judges ought not to abuse their tongues by inteperance, but they must rather take great heed (as Cicero, pro Font said, Quibus verbis utantur, ne quid minus moder atè prositum, ne quid ab aliqua cupidstate prolap sum verbum esse videatur. Thus far of punishmets by the common Law, now to those by Statutes. Punishmets by Statutes. If the justices of Peace, hauving taken a Recognusance for an Alehouse, do not certify it at the next quarter Sessions of the Peace, they shall lose five marks. Alehouse Five Marks. 5. E. 6. ca 25. That next justice of the Peace, which doth not certify at the next general Sessions of the Peace such presentmets as the overseers of the Highways have before presented unto him, shall lose v. ●●. for every default. Highwaics. Five pound. 2 &. 3. Phil. & Mar. ca 8: & 5. El. ca 13. If any justice of Peace (not being sick, nor having other lawful excuse, to be testified under the Oach of one assessed in the Subsidy book at v. ●●. etc.) do not assemble at the Easter Sessions to rate the wages of servants, etc. he shall lose x. ●●. to the Queen. 5. El: ca 4. servants wages. Ten pounds. And if any justice of the peace (so assebled) shall departed thece before conferece had about the execution of this Act for setting idle persons on work, he shall fofeit v. ●●. 18. El. ca 3. Poor on work. Five pound. The justice of The Peace which faileth to record at the next quarter Sessions, the name of any person (authorized to shoot in a Gun) the hath preseted his name unto him, shall lose xx. ●. 2. E. 6. ca 14. Guns. Twenty shillings. If that Statute do so far extend, whereof the words give cause of doubt. And if the Proclamation, annexed to the Statute 4. H. 7. ought now to be read, then if it be not read at each quarter Sessions, every justice of the Peace there present shall lose xx. ●. 4. H. 7. ca 12 Proclamation read. Twenty shillings. If the justices of the Peace, before whom any presentmet shall be made at their quarter Sessions against any person for extolling the authority of the see of Rome, do not certify the same into the King's Bench within 40. days after, if the Term be then open, and if not, then at the first day of the nextful Term, they shall every of them lose E. ●● for every default. 5. El. ca 1. Pope. A hundredth pounds. And those justices of the Peace, which do not certify into the Escheaquer, their examinations taken concerning the entering of plaints by the Sheriffs, shall lose xl. ● 11. H. 7. ca 15. Examinations. Forty shillings. The Epilogue. Thus have I (by the favour of God) brought this treatise to an end: wherein if many things have escaped me unseen, I do not greatly marvel, when I look back and behold the variety & multitude of the matter that I have passed through: and it shall not be hard for him that meeteth with such Estrays, to take and lodge them in their right Titles here. The Epilogue. Again, if I shall be thought to have heaped up too many conceits (borrowed out of M. Marrows reading) I make answer, that I have omitted many, and have made the best choice that I could: If furthermore, I shall seem to those that be masters in Art & Method, motto have thoroughly observed their rules, and specially that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because I do many times mingle aliena, things not precisely pertaining to my matter in hand, To them I say, that it is the received manner of teaching in out law, To show things by their contraries and disterents: and seeing that great light cometh to the matter thereby, I may neither condemn it as unapt, nor reject it as unserviceable. Moreoure, if I have been deceived in laying down overboldely mine own opinion, I will no less gladly be admonished of it, than readily reform my mistakening: Finally, whatsoever other thing is done amiss, I protest that it hath escaped of unskill, and not proceeded of wilfulness, and therefore I desire that I may be allowed the benefit of the pardon, which (as I told you even now) is in like case grauntable to a justice of the Peace. Finis. A Table, containing (very near) all the imprinted Statutes, both general and particular, wherewith justices of the Peace have in any sort to deal. King. Year. Chap: Content. He the 3. 9 25 Of measures and weights. 51 Thassise of Bread and Ale. 51 The judgemet of the pillory. 51 The ordinance for measuring. 51 Of weights and measures. Ed. the 1. 3 9 Of fresh suit after Felons. 10 Of Coroners. 15 Of bailment of Felons. 25 Against maintenance. 26 That Sheriffs and other Ministersshall take no rewards. 27 Of fees for delivering chapters. 28 Of Maintenance of quarrels. 13 34 Of ravishing women. 47 Of taking Salmons. 49 Against maintenance. The Statute of Winchester. 28 11 Against maintenance. 34 For measuring of land. Definition of Champartors. Ed. the 2. 1 For breaking Prisons. 18 For purveyors. For Estreats of the Escheaquer. Ed. the 3. 1 14 For maintenance of quarrels. 16 For keeping of the Peace. 17 indictments before Sheriffs to be taken by Indenture. 2 3 For coming before the King's justices with force & arms. 6 A confirmation of the Statute of Winchester. 4 2 Of Wardens of the Peace. 4 That purveyors pay in hand, and have a warrant under the great or small Seal. 10 Against Sheriffs & Gaolers that will not receive thieves, and such other into their gaols. 5 2 Against the King's purveyors. 10 jurors that take money shall no more pass upon juries. 11 That justices assigned to determine felonies have power to write to foreign Countries. 14 Against Robertsmen, and drawlatches. 14 10 gaols of the Counties to be annexed to the Sheriffs. 18. St. 2 2 justices of Peace made. 20 4 & 5 For maintaining of quarrels. 23 6 For Vitailers. 25 1 For purveyors. 25. St 4 3 For forestalling of Wines. 25. St. 5 9 auncel weight taken away. 10 For weight and measuring. 15 For takers of Sheep. 27. St. 2 4 None going to the Staple, be disturbed by the King's takers. 10 For weights of the Staple. 28 11 For safeguard of merchants aliens coming within this Realm. 34 1 For justices of Peace. 2 For purveyors. 5. & 6 justices of Peace to inquire of measures. 22 For Hawks found. 36 2. 3. 4. 5. 6 Against purveyors. 12 For the Sessions of the Peace 37 19 For finding of Hawks. 42 9 For levying of the green wax. Ric. the 2 1 3 All Statutes of purveyors confirmed. 4 For maintenance of quarrels. 7 For giving of Liveries. 2 2 For forestalling of Wines. 5 7 For entering into lands. 7 8 For purveyors. 13 For riding in Harness. 12 3 A confirmation of all Statutes for Vitailers. 6 For bearing weapons. 10 justices of Peace to punish vagabonds, and for holding their Sessions. 13 4 Clerk of the Market. 7 justices of Peace be made a new 8 For price of victual. 9 For weights. 13 For Hunters. 19 For safeguard of Fish. 14 11 For assigning of justices of Peace. 15 2 For forcible entries. 4 For measuring Corne. 16 3 The Clerk of the market to have ready his weights according to the Standard. 4 For liveries of companies. 17 8 For Riots & unlawful asseblies. 9 That justices of the Peace shall be conservators of the Statutes made for Rivers. 10 Two men of Law to be assigned in the Commission of the Peace to deliver gaols. 20 1 For riding armed in the Realm 2 For wearing of Liveries. He. the. 4. 1 7 For giving of Liveries. 11 For extortion by Sheriffs. 2 14 For purveyors. 21 For giving of Liveries. 4 25 For Hostelers and Vitailers. 5 3 For watch upon the Sea coasts. 4 Multiplication made Felony. 5 For cutting tongues, and putting out of eyes. 10 justices of Peace to imprison men in the common jail. 7 3 Of the manner of making out Estreates. 7 For Arrowheads. 14 For giving of Liveries. 13 7 Of Riots and Routs. He. the 5. 1 10 For weights and measures of Corne. 2 4 Of the Sessions of the Peace. 8 For reformation of Riots and Routs. 9 Process against Riotours that flee into woods. Stat. 2. 1 Of justices of Peace. 3 7 For clipping, washing, and filing ling of money. 8 3 For guilting and siluering. 9 St. 2 8 Of false Weights. 2 11 For the measure of Wines. He. the 6. 14 For Goldsmiths selling work of silver. 8 4 For giving of Liveries. 5 For weights. 9 For forcible entries. 10 For process in indictments & Appelles. 14 For Felons and Murderers, that void themselves into woods. 11 6 For Commissions of Peace. 8 For weights and measures. 12 For Waxechaundlors. 14 4 For Sessions in Midlesex. 18 11 A justice of Peace to have twetie pound land. 19 For Soldiers departing with out licence. 20 8 For resistance of purveyors. 23 1. & 2. Against purveyors. 10 For extortion of Sheriffs. 11 For levying Knights wages for the Parliament. 13 Proclaiming the Statutes for vitailers. 31 3 Of attachments in the Courts of the Marches. 33 2 A repeal of an act for Outlagaries in Lancaster. 7 For Attorneys in Norff. & Suff. Ed. the 4. 1 2 For Enditemets & Presentmets in Sheriffs Turns and Leets. 8 2 For Liveries of companies. 12 2 For Bowstaves. 9 For Escheatours. 17 4 For making of Tile. Ric. the 3. 1 3 For inquiry of escapes: for letting of suspects of Felony to Bail. 11 For Bowstaves. 12 For the measure of wine & oil. He. the. 7. 1 7 Against Hunters. 3 1 Giving of Liveries: & certifying of Recognusance. coroners. 2 Taking Maidens, Widows or Wives against their wills, made Felony. 7 4 For Weights and Measures. 11 4 One Weight and Measure to beused thorough the Realm. 9 For the inhabitants of North & South Tindale. 15 Against untrue demeaning of Sheriffs and their Officers in holding their Counties. 17 Against destroying of Pheasants and Partridges with unlawful Engines, and for Hawks. 12 5 For Weights and Measures. 19 6 For Pewterers and Braziers. 11 For keeping of Deerehayes and Buckstalles. 13 For punishment of Riots. He. the 8. 1 7 Concerning the office of Coroners. 3 12 For reformation of Impanels for the King. 4 7 For Pewterers, and true weights and beams. 6 6 For remitting Prisoners to the place where the crime was committed. 14. 15 6 For High ways in the Wealde of Kent. 10 For hunting the Hart. 5 Fees for Testaments, and letters of Administration. 7 Against servants imbeseling their masters goods. 22 5 For repairing of bridges in high ways. 10 Concerning Egyptians. 11 For Powdike in Maishland. 14 How persons committing petty Treason shall abjure. 23 2 Where & after what manner the gaols within England shall be made. 4 That no Brewers make vessels, and the contents of barrels. 16 That no Horses be conucyed into Scotland without licence. 24 4 For sowing of Flax & Hemp. 7 Against killing of Calves. 5 Against killing of Weinlings, 10 For Crow nets. 13 For excess in apparel. 25 6 For punishment of Buggery. 11 To avoid destruct. of wildfowl. 13 What Shecpe a man may keep. 26 5 For not conveying any persons goods or Cattles over the water of Severne, after Sun set, until Sunnc rising. 6 For Wales. 7 For amending high waves in Suffix. 27 5 justices of Peace in Chester. 16 For enrolment of deeds. 20 An order for Tithes. 24 For recontinuing of certain liberties take from the Crown. 32 3 Of Abjuration. 7 For true payment of Tithes and offerings. 9 Against maintenance, etc. unlawful buying of Titles. 13 For breed of Horses of higher stature. 41 For baking of Horse bread. 43 Sessions in Chester. 33 1 Concerning counterfeit letters or tokens. 5 For keeping of great Horses. 6 For Crossbows & Handguns. 9 For maintenance of Artillery, and debarring of unlawful games. 10 For the execution of certain Statutes. 17 For confirmation and continuance of certain Ails. 34-35 For Wales. 14 For certificate of convicts to be made into the King's bench. 35 11 For payment of Knights & Burgesses wages of the Parliament in Wales. 17 For preservation of woods. 37 1 Of the Custos Rotulorum, and Clerks of the Peace. 7 For abrogation of fix weeks Sessions. 8 That Enditemets lacking vi & armis shall be good enough. 9 Against usury. Ed. the 6. 1 1 Against such as speak against the Sacrament of the body and blood of jesus Christ, and for the receipt thereof in both kinds. 5 That no Horses be conveyed out of England without licence. 7 For continuance of process notwithstanding new commission of the Peace. 12 Of poisoning. 2. 3 2 For true service in Captains and Soldiers. 14 Against shooting of haileshot. 15 For vitailers and handicrafts men. 24 For trial of murders in several Counties. 3. 4 1 Of the Custos Rotulorum. 2 For true making of Woollen clothes. 21 Of retailing Butter & Cheese. 5. 6 4 Against fight & quarreling in Churches. 6 For true making of Woollen cloth. 14 Against regrators, forestallers, and engrossers. 15 Against regrators of tanned leather. 24 For making of Hats at Norwich and in Norfolk. 25 That Alehousekeepers be bound by Recognusance. 7 5 To avoid great prices of Wines. 7 For the assize of Fuel. Marie. 1 8 That Sheriffs shall not be justices of Peace during their Office. 9 For the incorporation of Physicians in London. 12 Against unlawful assemblies. ph. & Mar. 1. 2 2 For reformation of excess in apparel. 4 For punishment of Egyptians. 5 For restraint of Corn etc. over the Sea. 13 An order for baylement of prisoners. 2. 3 3 For keeping of milche kine & rearing of Calves. 6 Against execssive taking of purveyors. 7 For buying of stolen Horses. 8 For amending of high ways. 10 For examination of prisoners suspected of manslaughter or Fel. 13 For wools in Halyfaxe. 15 That purveyors shall not take victual within fiuc miles of of cambridge or Oxford. 16 For watermen upon Thames. 18 For commissions of Peace, and jail delivery in Towns corporate not being counties. 19 For Powdike in Marshland. 4. 5 2 For having Horse, Armour and Weapon. 3 For taking of Musters. Elizab. 1 1 For restoaring to the Crownc the ancient jurisdiction. 2 For uniformity of Prayer, and administration of the Sacraments. 7 For conveying horses into Scotland 12 Against deceitful using of linen cloth. 16 Against rebellious assemblies. 17 For preservation of spawn and fry of Fish. 18 For continuance of certain Stat. 5 1 For the assurance of the Queen's power over all estates. 2 For maintenance and increase of tillage. 4 Orders for artificers servants. and labourers. 5 For maintenance of the Navy. 8 For Shoemakers etc. using currying of Leather. 9 For punishment of Perjury. 10 For servants embeseling their masters goods. 12 For Badgers of corn. and Drovers of cattle to be licensed. 13 For amending of high ways. 15 Against sonde and fantastical Prophecies. 16 Against Conjurations. 17 For punishment of Buggery. 19 For repeal of a Stat. for cöueying Horse out of the Realm. 20 For punishment of vagabonds feigning themselves Egyptians. 21 For punishmeut of unlawful taking of fish. 24 For repairing of gaols. 8 3 Against carrying of Sheep over the Sea alive. 8 For repeal of a branch of a Statute for the stature of hotses in the isle of Ely. 9 For repeal of a branch of a Statute for the prices of barrels and kilderkins. 10 For Bowyers and the price of Bowes. 13 2 For bringing in, and putting in execution Bulls from Rome, 8 Against Usury. 9 For Commission for Sewers. 11 For maintenance of Navigation. 13 For increase of Tillage. 14 For bringing Bowstaves into the Realm. 19 For making of caps. 21 That purveyors may take corn and victual within five miles of Cambridge & Oxford, in certain cases. 23 For paving a street without Algate. 25 For continuance of certain Statutes. 14 1 For such as rebelliously detain any of the Queen's Castles. 2 Against such as practise the enlargemet of any prisoner Committed for high Treason. 5 For punishment of Vagabonds and relief of the poor. 11 For continuation, explanation, etc. of divers Statutes. 18 1 Against diminishing of the Queen's coin, and other coins currant within the Realm. 3 For setting poor people on work. 5 To redress disorders in common. Informers upon penal laws. 7 For taking away Clergy from the offenders in Rape & Burglaric, and an ordre for delivering Clerks convict without purgation. 9 For mending High ways. 18 For repairing of Chepstowe bridge. 20 For repairing Bridges & highways near Oxford. 23 1 For due obedience to the Queen. 2 Against seditious words, of rumours. 9 Against logwood, or blocwood 10 For pheasants and Partridges. 11 For Cardiff bridge. 12 For paving without Algate