THE Duty and Office OF HIGH-CONSTABLES OF HUNDREDS, Petty-Constables, Tythingmen, and such inferior Ministers of the Peace. WITH The several Duties and Offices of Churchwardens, Overseers and Collectors for the Poor, of Surveyors for amending the Highways, and Distributors of the provision for the Destruction of noisome Fowl and Vermin. First collected by William Lambard, in the reign of Queen Elizabeth; AND Now Enlarged with many useful Additions, according to the succeeding Statutes: By R. TURNER, Gent. LONDON: Printed by joh. Streater, Hen. Twyford, and Eliz. Flesher, the Assigns of R. Atkins and E. Atkins Esquires. 1671. Cum gratia & privilegio Regiae Majestatis. To the READERS. THe foundation of this little Structure was first laid by Mr. Lambard a long while since, in the Year 1579. and first made public in 1581. and afterwards revised, and the second Edition published in the year 1587. but in so long time since the succeeding Age growing worse and worse, ut Crescit in orbe dolus, our Lawmakers have been forced to make Additional Laws for prevention of Offences and punishment of Offenders; so that the Duties of these inferior Officers of the Peace have still increased as several Statutes daily enacted do impose new Duties upon them: So that I have revised this Treatise, with such necessary additions and enlargements, as any ways may concern the Offices of Constables, Headboroughs, etc. Churchwardens, Overseers of the Poor, Surveyors of Highways and Bridges; or as they are enjoined by any Laws since Mr. Lambard, to observe & perform in their several offices; and indeed, this small Tract will be as useful to every person, whether Officer or not Officer, as a pocket-Almanack; to him that is in office, it is a Pilot to steer him in his right course, whereby he may avoid those Rocks and Sands of Overdoing or Vnderdoing; some through neglect in not performing their duties are culpable by the superior Magistrate, and others either ignorantly or wilfully running beyond their Authority, are dashed against the Rock of the Law. Those that are in likelihood to bear any of these Offices, may by studying this Book be perfectly instructed in the performance of their Duty when they come to it: And such as are not likely to serve any Office, may herein learn to escape punishment by fearing to offend. I have set down the High-Constables Oath at large, which partly comprehends the whole duty of his Office; and such Articles as he is to present to the Justices of peace at their Sessions and monthly Meetings in their Divisions; and likewise that Statute which institutes the office of the Distributors of the provision for the Destruction of noisome Fowl and Vermin; that is, what Reward shall be given to those that destroy them; which some vulgarly and erroneously talk of, others have affirmed there is no such Law; but they will hereby be convinced of the truth, and instructed in the substance: So that I hope this will prove to your acceptance, which is the desire of R. T. THE TABLE CHAP. I THE original Office and Jurisdiction of High-Constables, Petty-Constables, Headboroughs, Borsholders and Tythingmen, Pag. 1. Chap. idem. The form of the High-Constables Oath, Pag. 5. Idem. The Oath of a Petty-Constable or Tythingman. Pag. 8. CHAP. II. The duty of Constables and Headboroughs, etc. in executing Warrants directed to them from the Justices of Peace. Pag. 14. CHAP. III. Articles which the High-Constables are to return to the Justices at their Sessions or monthly Meetings, etc. Pag. 19 CHAP. IU. The duty of Constables, etc. touching Watching, Warding, Vagabonds, Hue and Cry, carrying Prisoners to the Gaol, Servants and Labourers, Pag. 22. CHAP. V. The form of a Testimonial for conveying a Rogue or Vagabond, Pag. 26. Idem. A Testimonial for a Servant. Pag. 38. CHAP. VI The duty of Constables about Affrays, Riots, Routs, Arms, Militia, Escapes, Forcible Entries, the Peace, Hedge-breakers, Setting-dogs. Pag. 40. CHAP. VII. The Constable's office touching Clothiers, Maultsters, Alehouses, Drunkenness, Weights and Measures, Purveyances, Highways. Pag. 56. CHAP. VIII. The Constable's office about foreign Bonelaces, etc. Chimney-money, Customs, Excise, Fish. Pag. 71. CHAP. IX. Concerning disturbing of Ministers, Swearing, Recusants, Conventicles. Pag. 77. CHAP. X. The Churchwardens office, Pag. 86. Idem. The Subscription of the Vestry-men, Pag. 91. Idem. The form of the Articles given to the Churchwardens to make their Presentments upon. Pag. 101. CHAP. XI. The office of the Overseers of the Poor, Pag. 110. Idem. The form of an Indenture for a poor Child put out by the Parish. Pag. 117. CHAP. XII. The office of the Surveyors of the Highways and Bridges, Pag. 122. Idem. Statutes for repairing particular Highways, Pag. 134. Idem. Statutes for particular Bridges. Pag. 135. CHAP. XIII. The office of the Distributors of the provision for the Destruction of noisome Fowl and Vermin. Pag. 141. THE DUTY OF CONSTABLES, etc. CHAP. I. Of the Original, Office, and Jurisdiction of High-Constables, Petty-Constables, Headboroughs, Borsholders, and Tythingmen. THE Saxon Christian King Alfred, King of England, for the more peaceable Government and ease of his Subjects, divided this whole Realm of England first into Shires; then caused those Shires to be subdivided into Hundreds, Rapes, Ridings, Wapentakes; and divided these also into tithings, Leets or Boroughs, and in all these Divisions were appointed Officers for the better preservation of the Peace, such are High-Constables, Petty-Constables, Headboroughs, Borsholders and Tythingmen; the office of all these latter is one and the same, only different in Title, according to the custom of the Country; in Middlesex, besides the High-Constables of the Hundreds, they have Petty-Constables and Headboroughs in the respective Parishes, and they are in number more or less, according to the greatness or smallness of the Parish; in Kent these petty Officers of the Parishes are called Borsholders; but in Hampshire and all the Western parts Tythingmen, and their divisions of Parishes tithings; in Sussex the Hundreds are called Rapes; and in the North, Ridings and Wapentakes. There was anciently in England a great Officer called the High Constable of England, and he kept an Office (which is supposed to come hither with William the Conqueror out of Normandy) or Court, called the Constable's Court, or the Court of the High-Constable, wherein he had authority to hear and determine Contracts touching deeds of Arms out of the Realm, and to determine all things concerning War within the Realm; as Combats, Blazon, Armoury, etc. but not to deal with Battle in appeals, that belonging to the Common Law of the Land. Amongst the rest of the Conquerors Laws this is one, That if a Frenchman do appeal an Englishman of Perjury or Murder, the Frenchman may defend himself by Battle, which in English was then called Earnest, which word we yet retain; and the Officer to see this performed was the High-Constable: but this Officer, Court and practice is long since dissolved. The Etymology of this word Constable proceeds from the old word Cunning or Cyng, and Staple or Stable; the word Cunning or Cyng, signifies a King, and Stable, a Stay or Prop; which is as much as to say, the stay or prop of the King; that great Officer the Constable of England, having that Title given by reason of the great Authority that he had, was a principal Prop of Stay unto the King's government; from whence is this Title and Office of this Lower Constableship derived and continued, (though with lesser Authority, unto this hour) and is a branch of that Original. By the Statute of Winchester, made in the time of King Edward the First, these Constables of Hundreds were appointed to keep Watching and Warding, for the better keeping of the Peace, and prevention of Thieveries and Robberies, and apprehensions of Felons and Rogues, etc. and that the High-Constables in every Hundred and Franchise, should take the view of Armour, etc. Hereby it appears, that the name of a Constable in an Hundred or Franchise, is an Officer to assist and support the King's Majesty in the maintenance and preservation of his Peace within his Hundred or Franchise, and he is called the High-Constable, in respect of the Constables or Petty-Constables, and Headboroughs or Tythingmen, which be in the respective Towns, Villages, Parishes, or Precincts within his Hundred or Franchise under his Jurisdiction; and it is also the part and duty of these inferior Officers, to execute the High-Constables office in his absence, in maintaining and keeping the peace in their several tithings and Limits, and in the High-Constables presence, to be aiding and assisting unto him. The High-Constables of every Hundred or Rape, or Riding, are chosen by the Justices in each County, most usually at their general Quarter Sessions, or in their several divisions; from the Justices they receive their Authority, and are by them again discharged of their office as they shall see cause. At the entrance into their office they take an Oath, the usual form whereof followeth. The High-Constables Oath. YOu shall swear, That you shall well and truly serve our Sovereign Lord the King in the office of a Constable; you shall see and cause his Majesty's peace to be well and truly kept and preserved according to your power; you shall arrest all such persons as in your sight and presence shall ride or go Armed offensively, or shall commit or make any Riot, Affray, or other breach of his Majesty's peace: you shall do your best eudeavor (upon complaint to you made) to apprehend all Felons, Barrators, and Rioters, or persons Riotously assembled; and if any such Offenders shall make resistance (with force,) you shall levy Hue and Cry, and shall pursue them until they be taken; you shall do your best endeavour, that the Watch in and about your Hundred be duly kept, for the apprehending of Rogues, Vagabonds, Nightwalkers, Eavesdroppers, Scouts, and other suspected persons, and of such as go Armed, and the like; and that Hue and Cry be duly raised and pursued according to the Statute of Winchester, against Murderers, Thiefs, and other Felons; and that the Statutes made for the punishment of Rogues and Vagabonds, and such other idle persons as come within your bounds and limits be duly put in execution: you shall have a watchful eye to such persons as shall maintain or keep any Common house or place, where any unlawful Game is or shall be used; as also to such as shall frequent or use such places, or shall use or exercise any unlawful Games there or elsewhere, contrary to the Statutes. At your Assizes, Sessions of the peace, or Leet, you shall present all and every the offences done contrary to the Statutes made (1 Jacobi, 4 Jacobi, & 21 Jacobi regis,) to restrain the inordinate haunting and tippling in Inns, Alehouses, and other Victualling houses, and for repressing of Drunkenness; you shall there likewise true Presentment make of all Blood sheddings, Affrays, Outcries, Rescous, and other offences committed or done against the King's Majesty's peace within your Limits: you shall once every year during your office Present at the Quarter Sessions all Popish Recusants within your Liberty, and their Children above 9 and their Servants, (sc. their Monthly absence from the Church) 3 Jac. 4. you shall well and duly execute all Precepts and Warrants to you directed, from the Justices of the peace of this County, or higher Officers; you shall be aiding to your Neighbours against unlawful Purveyances: in time of Hay or Cora harvest, upon request, you shall cause all persons meet to Serve by the day for the Mowing, Reaping or getting in of Corn or Hay; you shall in Easter-week cause your Parishioners to choose Surveyors for the mending of the Highways in your Parish or Liberty; and you shall well and duly according to your knowledge, power and ability, do and execute all other things belonging to the office of a Constable, so long as you continue in the said Office. So help you God. In this Oath is briefly comprehended the whole Duty of a Constable, and the principal matters of his Office at large. I shall now set forth every particular branch of the Constable's office, and of the Tythingmen, Headboroughs, Borsholders; their Duties are the same in effect, and their Authority: yet the latter are inferiors to the former. The Form of the Petty-Constable or Tything-mans', etc. Oath is thus. YOu shall Swear, That you shall well and truly Execute the Office of a Tythingman of the Tything of H. (or Headborough, etc.) His Majesty's Peace in your own person you shall keep, and see it kept in all others, as much as in you lieth. In the presence of the High-Constable you shall be aiding and assisting unto him, and in his absence you shall execute his Office, and do all other thing; belonging to your Office, according to your knowledge and power, until another be chosen in your room, or you be legally discharged thereof. So help you God. There are in several Counties of this Realm other Officers; that is, by other Titles, but not much inferior to our Constables, as in Warwickshire a Thirdborough, and in other places a Boroughead, in others a Chief-pledge. The Authority of these (as I said) is much like that of the Constables, but yet the Office of the Constable is distinct, and of greater authority and respect than these. Lambert, pag. 51. etc. Duty of Constables, saith, that these Tythingmen, Borsholders, &c. cannot meddle in a Town or Parish where a Constable is, because (in comparison of them) the Constables be Headoffiers, and that the Tythingmen, etc. are but Assistants, where the Constable is present; but in his absence they are to perform the service, and that there are many things which a Constable may do, wherewith the Tythingman and the rest cannot meddle at all. 1 Jac. cap. 7. Lambert, Off. del Const. 4, 6, 9 In Towns where there be no Constables, and that the only Officers for the Peace there be, Headboroughs, Thirdboroughs, Borsholders, or such other, and in such cases where their power and authority is declared to be equal with the Constable; in all such things their office is all one in a manner, and divers Statutes do appoint Offenders to be punished by the Constable or other inferior officers, which much needs be the Tythingmen, etc. 12 H. 7. f. 8. The High-Constables of Hundreds are Conservators of the Peace within their several Hundreds and Franchises at the Common Law. Brook. Peace, 13. Fitz. 127. All petty Constables by virtue of their office within their several Liberties of their several Towns are Conservators of the Peace at the Common Law. Crompton, 6.222. 12 H. 7. f. 18. These Petty-Constables may do what they can to keep the Peace, and Ex Officio, they may cause such as in their presence are about to make an Affray, to find Sureties to keep the peace, and that as well before the affray as after. 3 H. 4.9, 10. If a man Assault another in the Constable's presence, or in his presence shall threaten to kill or beat another, or shall be ready to break the peace, the Constables or Tythingmen may in such cases commit the offenders to the Stocks, or other safe custody, and after carry them before a Justice of the peace, or to Gaol until they find security for the Peace; which Surety the Constables themselves may take to the use of the King. Term, Trin. 35 El. r. 1458. Karret versus Haumer. The Plaintiff brought an Action of False imprisonment against the Defendant for arresting and imprisoning him, etc. the Defendant pleaded that he was High-Constable of the Hundred of, etc. in the Cowty of S. and that the Plaintiff made an assault in the said Hundred upon one H. W. who presently came to the Defendant and told him thereof, and swore he was in fear of his life of the other; whereupon the Defendant came to the Plaintiff and arrested and imprisoned him, until he had found sufficient security for the peace; to this the Plaintiff demurred, and it was adjudged that the Defendants plea was insufficient, 1. because he was not present at the Assault and Affray made; 2. for that he was High-Constable of the Hundred, and not Constable of the Town. Anderson Chief Justice held (in this case) that Constables were conservators of the peace at the Common Law, and still are so, and that they ought to preserve the peace as much as in them lieth; but that was by parting them who he should see breaking of the peace, and carrying them before a Justice to find sureties to keep the peace, but not to take sureties himself; and if the Constable could take sureties, what surety should it be? for he (being no Officer of Record) cannot take Recognizance nor Bayl. But Walmesley, Owen, and Beaumond, three other Judges, held that a Constable might take Sureties by an obligation, according to the Book of 10 Edw. 4. and that the peace was so preserved by the Constables before Justices of peace were; and that the Statute which ordained Justices, did not take away the authority of the Constables. Bacon, Use of the Law, 5, 6. In ancient time High-Constables of Hundreds, and Petty-Constables in every Town were yearly appointed by the Sheriff in his Turn, and were there sworn. Direct. Judges, 29. Constables lawfully chosen, if they shall refuse to be sworn, the Justices of the peace may bind them over to the Assizes or Sessions of the Peace, and for such his contempt he is there to be Indicted, fined and imprisoned. Coke 8.43. Every person that is chosen to be a Constable, aught to be idoneus homo, a man apt and fit for the Execution of the said Office: And to be idoneus homo the Law requireth in him three qualifications, viz. 1. Honesty; to Execute his Office truly, without malice, affection, or partiality. 2. Knowledge; to understand his Duty, what he ought to do. 3. Ability; as well in Estate as in Body, that so he may attend, and execute his Office diligently, and not neglect the same, through want or impotency. For such as are chosen out of the meaner sort, are either ignorant what to do, or stand in awe of the greater; so that they dare not do what they ought, or else are not able to spare time; Therefore they ought to be chosen out of the better sort of Parishioners, and not either by the House, or other Custom. If a man be chosen Constable, not able and qualified as aforesaid, he may be discharged of his said Office by Law, and another fit man appointed in his place. Co. 8.42. If Leets choose unable or unfit Petty-Constables, it is cause of forfeiture of the Leet, and such choice is void. 14 Car. 2. cap. 12. Two Justices of the peace may appoint, and swear new Constables, Headboroughs, etc. in case of death or removal of such Officers out of the parish; And, if in default of holding Court-Leets they continue above the year, they may be discharged at the Sessions, and others put in. Idem Stat. Constables, Headboroughs and Tythingmen which are out of purse for their charges, they may with the Churchwardens and Overseers of the poor and other officers of the Parish, make Rates upon all occupiers of Lands and inhabitants, and all others chargeable to the Poor, by the Stat. 42 El. which being confirmed under the Hands and Seals of two Justices of the peace, may by their Warrants be levied by distress and sale of the Goods of such as refuse to pay the same. CHAP. II. The duty of Constables and Headberoughs, etc. in Executing of Warrants directed to them from the Justices of the peace, etc. THe Constable or other sworn Officer to whom any Warrant shall be directed and delivered, aught with all speed and secrecy, to seek and find out the party, and then to Execute his said Warrant. Br. Faux, impris. 23. A known sworn Officer (be he Sheriff, Undersheriff, Bailiff, or Constable, etc.) needs not to show his Warrant to a man when he comes to serve it upon him, though he demandeth it; but if the Justice will direct his Warrant to his servant, or to another (who is no sworn Officer) to serve it, they must show their Warrant to the party if he demand it, or otherwise the party may make resistance, and needs not to obey it. Co. 6.54. & 9.68. A sworn and known Officer, if he will not show his Warrant, yet he ought to declare to the party the Contents thereof upon serving it. Co. 9.69. An Officer giveth sufficient notice what he is when he saith to the party, I Arrest you in the King's name, etc. and in such case the party at his peril ought to obey him, though he knoweth him not to be an Officer; and if he have no lawful Warrant the party grieved may have his Action of False imprisonment against him. Dyer, 244. Stat. 43. El. cap. 6. If a Constable or other officer do Arrest a man for the Peace, or the like, before he hath any Warrant, and then afterwards doth procure a Warrant (or a Warrant cometh after to him) to Arrest the party for the same cause, the first arrest was unlawful, and the Officer is liable to an Action of False Imprisonment. 10 E. 4. fol. 12. Br. False Impris. 38. Where a Warrant is granted against I. H. the son of T. H. and the Officer thereupon arresteth I. H. the son of W. H. although in truth he be the same person that offended, and against whom the complaint was made, yet this Arrest is wrongful, and the Officer is subject to an Action of False Imprisonment. Cromp. 214. a. & 148. Crook 144.53. If a Constable, or any other person hath arrested a man by virtue of his Warrant, which he hath from a Justice of the peace, and then taketh his word that he will come to him again, at another time, to go with him to the Justice according to his Warrant, (and so letteth the party go) who comes not again at the time appointed, it seems the Officer cannot afterwards arrest or take him again by force of his former warrant, because this was done by the consent of the Officer; But if the party arrested had escaped (of his own wrong) without the consent of the Officer, the Officer may take him again and again upon fresh suit, so often as he escapeth, although he be out of view, or that he fly into another Town or County. When an Officer hath received a warrant, he is bound to observe and pursue the effect of his Warrant in every behalf and particular; or otherwise his warrant will not excuse him of that which he hath done. 21 H. 7.39. If a Constable or other officer having a lawful warrant to Arrest another, and he shall be resisted or assaulted by the party, or by any other person, then may that Officer justify the beating or hurting of such persons, and others (upon his request) may, and aught to aid him. 14 H. 8.16. Br. Faux Imp. 8. Lamb. 67.94. Co. 10.76. Cromp. 74. If a Justice of peace shall issue out any Warrant for a matter wherein he hath Jurisdiction, although it be beyond his Authority, yet it is not disputable by the Constable or other such officer, but must be obeyed and executed by the Constable or other officer to whom it is brought: As if a Justice of peace shall send forth his Warrant to arrest one for the peace or good behaviour, without cause, the officer that serves this warrant shall not be punished for the executing thereof; but if a Justice of peace shall make his warrant to do a thing out of his jurisdiction, or in a cause wherein the Justice of peace is no Judge, if the Officer shall serve such a Warrant, here he is punishable; for the Officer is not bound to obey him who is not Judge of the Cause, no more than a mere stranger, for the Officer is bound to take notice of the authority and jurisdiction of the Judge. But if any Justice sends his warrant to a Constable or any other officer to bring him to answer all such matters as shall be objected against him, and doth not specify the cause in his Warrant wherefore he issued forth the same, this Warrant is unlawful, and the Officer is liable to an Action of False imprisonment, if he executes it. So, if a Justice of peace send a Warrant to take one for Cozenage, to take and bring to a Justice or to Gaol, one that another doth suspect for Felony, where the matter is small, or the suspicion slight, or to licence a petty Chapman to sell from house to house, to send a poor body to a place otherwise than the Law directs, etc. such kind of Warrants are not warrantable. Cook, justit. part 4. tit. De frangent. Prison '. All Warrants not specifying the Cause, are utterly against Law. Except for Treason, or Warrants from the Council, Secretaries of State, or Lord Chief Justice; these need not set forth the Cause for reasons of State. Cromp. 149. If any man shall contemn or abuse the Justice of peace his Warrant, as by casting it into the dirt, or treading it under his feet, etc. such offendor may be bound to his good behaviour for it, and be Indicted and Fined; it being a contempt against the King's process. CHAP. III. Articles which the High-Constables are to return unto the Justices at their Sessions or monthly meetings of their Divisions, and to cause their Petty-Constables, Headboroughs, and Tythingmen in their several Liberties to make Return thereof unto them. 1. THey are to return the Names, Surnames, additions of names and qualities of all Popish Recusants (as well housekeepers as lodgers) dwelling or residing in any of their said Parishes, Liberties, or Precincts. 2. Such persons as shall continue drinking or tippling in any Inns or Alehouses at any time, and more especially upon the Lord's day, or Holidays, and such persons as they shall find drunk, and all such Innkeepers and Alehouse-keepers as shall entertain them. 3. Item, The names of such as shall profanely Swear or Curse, with the number of their Oaths, immediately after the committing such offence, inform the next Justice thereof. 4. Item, They are to Return such Victuallers or Alehouse-keepers as use victualling or selling of Beer and Ale without Licence. 5. Item, Such persons as suffer any unlawful Games to be suffered in their houses, backsides, or gardens; and also the Names of such as shall play at any of the said Games. 6. Item, Such persons as refuse or neglect to do their duty of Watching and Warding. 7. Item, Such persons as divide their houses into several Tenements, and such as do entertain Inmates who may be an annoyance to their neighbours, or likely to bring charge upon the Parish. 8. Item, The defaults of Petty-Constables and Tythingmen, etc. for not causing rogues, vagabonds and beggars to be duly apprehended, punished, and passed according to the Statute. 9 Item, All Masterless men and women living at their own hands, such as are idle and will not labour, and can give no good Account how they get their living, all Suspicious persons, Whores, Noctivagants or Nightwalkers, and Mothers of Bastards, which may be chargeable to the Parish. 10. Item, The names of such persons as refuse to take Apprentices poor Parish-childrens to Husbandry, and other callings according to Law. 11. Item, All such as neglect to make due Rates and Collections for the relief of the Poor in every parish, and that cannot, or do not give a just Account of the employment of the Rent and Stock of the Poor. 12. Item, Of the defects in the Highways and Bridges, with the names of such as should repair them, and have neglected or refused to do their duty herein. 13. Item, Such Scavengers as neglect to do their office in cleansing the Streets, to be kept clean within their Liberties; and the names of such persons as commit common Annoyances, by laying of dung, soil, dirt, or ashes in the Street. 14. Item, The names of all such persons as refuse to Pave the Streets before their houses, where the said streets have usually been paved formerly. 15. Item, The names of all such persons as keep any Hogs (to the common Annoyance of his Majesty's subjects) in or about such Liberties, places, and precincts where Hogs ought not to be kept. 16. Item, All such Bakers as put light Bread to sale, and the weight thereof; and such Brewers as sell Beer or Ale to unlicensed Alehouse-keepers; all Forestallers, Regrators, and engrossers of any Corn, Grain, Butter, Cheese, Bacon, or any other kind of dead Victuals whatsoever. 17. Lastly, All such persons as can prove or testify any of the said Offences, are to be warned to appear before the said Justices at their Sessions or meetings aforesaid, to testify their knowledge of such Offences of which they can give Information. CHAP. IU. The duty of Constables, etc. touching Watching, Warding, Rogues, Vagabonds, Hue and Cry, carrying Prisoners to the Gaol, Servants and Labourers. 13 EDu. 1. cap. 4. Dalt. ch. 60. f. 140. Paul. Watch. 1. A Watch is to be kept in every Town, Parish, Village, and Tything, every night from Ascension till Michaelmas, from Sunset to Sun-rise, which the Constables, etc. must constantly cause to be set, and that by two or four men, according to the greatness of the place. 1. Dalton, ch. 60. fol. 140. 5 Ed. 3.14. 5 H. 7.5. These Watchmen are to apprehend and examine all strangers that pass by them in the night, and if they find cause of suspicion in them, than they may secure them till the morning; and if the parties refuse to obey the Watchmen, they may levy Hue and Cry to take them, and upon their resistance the Watchmen may justify the beating of them, and set them in the Stocks or Cage till morning; and than if no suspicion be found in the parties, they may let them go. But if there be found suspicion in them, than the Watchmen may deliver them to the Constable, or Tythingman, etc. who is to convey them before a Justice of peace, who after Examination of them, may bind them over, commit or acquit them as he shall see cause. These Watchmen are also to apprehend all such as ride or go armed, and all Rogues, Vagabonds, Noctivagants, Nightwalkers, Eavesdroppers, Scouts, and such like. Dalt. J. P. chap. 60. fol. 141. These three particulars following have been held for Law concerning Watches, viz. 1. The Watchmen must be men of body, well and sufficiently armed, (not with a Prong, as the Country fashion is) and no man is compellable to Watch, unless he be an inhabitant within the same Town or Parish, where he is required to Watch. 2. Such as are Inhabitants within the Town are not compellable to Watch at the will of the Constable, but only when their turn comes, according to the use and custom of the place; which is most commonly by Turn or House. 3. Dalton, Ibid. It hath been held by some, That if a man who is compellable to Watch, shall contemptuously refuse to Watch upon command of the Constable, that in such case the Constable might (ex Officio) set the party in the Stocks for his contempt. But the safest way is, for the Constable to present such person for his default at the Assizes or Sessions of the Peace, or else to complain of him to a Justice of the peace, who may bind the offendor to the good behaviour, and so over to the next Quarter-Sessions, there to answer, etc. 2. 39 Eliz. ch. 4. Wingat's Stat. tit. Vagabonds. Resolu. Judges, sect. 717. Bolstr. 2. part. Rep. f. 258. The Constable, Tythingman, or Headborough, assisted by the Minister and one other of the Parish, is to see (or do it himself) Rogues and Vagabonds, which shall be taken begging, stripped naked, from the middle upwards, and openly whipped till their body be bloody, and then forthwith to be sent away from parish to parish, or tything to tithing, the next strait way to the place of their birth; and if that cannot be known, then to the place where they last dwelled by the space of one whole year, before such punishment; and if that cannot be known, then to the Town through which they last passed unpunished; and when they come there, if it cannot be discovered where they were born, or last dwelled as aforesaid, then are they by that Constable to be conveyed to the House of correction or common Gaol of that County, to be employed in work, or placed in some service, and so to continue by the space of one year; or in case they be not able in body, that Town is to keep them, till they may be placed in some Alms-house within the same County. Dalton, f. 129. After such punishment, the Vagabond is to have a Testimonial under the hand and seal of the Constable, Tythingman, etc. and the Minister of the place, testifying the day and place of his punishment, the place to which he is to be conveyed, and the time limited for his passage thither; which time if by his own default he Exceeds, he shall incur the like punishment from time to time, till he arrive at the place limited. The substance of the Testimonial is to be entered by the Minister in a Register-book, which he is to keep for that purpose, on pain of 5. shillings. The form of a Testimonial for Conveying a Rogue, or Vagabond. W.W. A sturdy vagrant Beggar (aged about 40 years) tall of stature, red haired, and long lean visaged, and squint-eyed, was this 24 day of A. in the 22 year of the Reign of our gracious Sovereign Lord King Charles the Second, etc. openly whipped at T. in the County of G. according to the Law for a wand'ring Rogue, and is assigned to pass forthwith from parish to parish, by the Officers thereof the next strait way to W. in the County of B. where he confesseth he was born; and he is limited to be at W. aforesaid, within twelve days now next ensuing, at his peril. Given under the hands and seals of C. W. Minister of T. aforesaid, and of J. G. Constable there, the day and year aforesaid. A Justice of peace alone may under his hand and seal make such Testimonial. Lambert, 206. 39 Eliz. cap. 4. Dalt. ch. 47. fol. 128. Resolu. Judges, sect. 13, 14. If any Constable, Tythingman, or Headborough be found negligent in the due Execution of the Act of the 39 of Eliz. aforesaid, he forfeits ten Shillings for every default: And such persons as shall hinder the execution of the Law upon Rogues, forfeit five Pounds, and are to be bound to the good behaviour; and if a Constable refuse to receive a Rogue, and to convey him or her to the next, or if he do receive him and not convey him to the next Constable, he forfeits five Pounds, and may be bound to the good behaviour. 1 Jac. ch. 7. Dalt. ch. 47. fol. 128. Resolu. Judg. sect. 13, 14. Every person shall apprehend or cause to be apprehended such Rogues as he shall see or know to resort to his house to beg, or receive any alms, and him or them shall carry, or cause to be carried to the next Constable; or else shall forfeit, for every such default ten Shillings; and the Constable is to whip and convey such Rogues as before is directed on pain of twenty Shillings. 39 Eliz. cap. 4. Dalt. ch. 47. fol. 149. 1 Jac. ch. 7. Two Justices of peace, (one of the Quorum) by Warrant under their hands and seals may cause to be levied, by distress and sale of the Offenders goods, all the Fines and forfeitures aforesaid after conviction of the party; which must be either by Confession of the party, or proof of two Witnesses before the said Justices. 7 Jac. chap. 4. Constables or Tythingmen neglecting to search for Rogues upon the Justice's warrant, or to appear at their meeting to give an account what Rogues have been punished, or sent to the House of Correction; or if they neglect to convey such to the House of Correction as by Warrant are to be sent thither, they are liable to such Fine as the Justices please, not exceeding forty Shillings. 1 Jac. 7.14. Car. 2. ch. 12. Any Justice of the peace may reward any person or persons who shall apprehend, and bring before him any Rogue, Vagabond, or sturdy Beggar, by granting to such person a Warrant under his hand and seal, to the Constable or Tythingman of the place through which the Rogue did pass un-apprehended; ordering the said Constable, etc. to give such person two shillings for every Rogue so taken: And if the Constable, etc. refuse to pay it, the Justices of the peace may proceed against such Officers according to the Stat. 1 Jac. 7. and compel him to pay his Forfeiture by the said Statute, and to allow the said two shillings out of the said Forfeiture to such person, with such further allowance for loss of time, as the Justice shall think fit. 14 Car. 2. ch. 12. If any person shall apprehend any Rogue at the confines of any County, which passed through any Parish of another County un-apprehended, than the person so apprehending such Rogue must carry him to some Justice of peace of the County through which he passed un-apprehended, who (upon a Certificate under the hand of some Justice of peace of the County where such Rogue was apprehended) is to grant his Warrant to the Constable, etc. to pay two shillings as aforesaid; which if he refuse or neglect, than the Justice is to proceed against the Constable, etc. and cause him to pay ten Shillings to the party, or so much thereof for loss of time as the Justice shall think fit. 14 Car. 2. cap. 12. It is Enacted, That whereas Constables, Tythingmen, etc. are at great charges in Relieving, carrying with Passes, and conveying Rogues, etc. all Constables, Tythingmen, etc. so out of purse, with the Churchwardens and Overseers of the Poor, and other inhabitants of the Parish may make a Rate, and tax all the Inhabitants of the Parish which are Chargeable by the 43. of Eliz. which Rate must be confirmed under the hands and seals of two Justices of the peace: And if any person refuse to pay his Rate, than the Constable by warrant from two Justices of peace, may levy the same upon the Goods of the party refusing, rendering them the Overplus, if any remain thereof. 39 Eliz. cap. 4. & 17. 43 Eliz. cap. 2. 1 Jacobi, cap. 7. 21 Jac. cap. 28. 7 Jac. cap. 24. 5 Elizab. cap. 4. Dalt. cap. 47. fol. 123, 124, 125. All these persons hereafter named are accounted and adjudged Rogues, Vagabonds, and sturdy Beggars: That is to say, all such persons above the age of seven years, Man or Woman, sole or covert, that wander from their usual place of abode, abroad, every where begging; or if they do not beg, yet if they wander and loiter about without a lawful Passport, and give no good account for their travel, are accounted Rogues. All Scholars, and Seafaring men which beg, Wand'ring persons that use unlawful Games, subtle craft, or Plays, or pretending themselves to have skill in Physiognomy, Palmistry, or the like; or to be Fortune-tellers, or Figure-casters. All Proctors, Patent-gatherers (except for Fire) Collectors for Gaols, Prisoners, or Hospitals, wand'ring abroad; Fencers, Bearwards, (those are Rogues in grain) common Players of Interludes, and Fiddlers or Minstrels wand'ring abroad. All Jugglers (Hocus pocus, and Slight-of-hand Artists,) Tinkers, Pedlars, and Petry-Chapmen, and Glass men wand'ring abroad, especially if they be not well known, or have not a sufficient Testimonial; all counterfeit Egyptians, not being Felons; all persons delivered out of Gaols, which beg for their fees, or otherwise do travel begging; such as go to or from the Baths and do not pursue their Licence, Soldiers and Mariners that beg, and counterfeit a Certificate of their Commanders. All Labourers which wander abroad out of the Parish, and refuse to work for wages reasonably taxed, having no living otherwise to maintain themselves; and such as go with a General passport which is not directed from parish to parish. All these are accounted Rogues, Vagabonds, and sturdy Beggars. All Servants that depart out of their service, (viz. out of one City, Town, or Parish to another, or out of one Hundred or County to serve in another) without a Testimonial, or with a false one; and such persons as are sick of the Plague, and wilfully go abroad in company against the command of Officers, are to be punished as Vagabonds; but none are to be sent to the place of birth or last habitation, but wand'ring Rogues; those which beg in their own Parish, or in the Highways (without the appointment of the Overseers) are to be sent to the House of Correction. 39 Eliz. cap. 4. Dalt. J. P. ch. 47. fol. 135. Resolu, Judges, sect. 4, 5. A Wife and Children under seven years of age being vagrant, must be placed with the Husband; and if the Husband be dead, then with the Wife where she was born or last dwelled; and vagrant Children above seven years of age must be sent to the place of their birth; and if the vagrant Parents with their Children, under seven years of age, be placed at the place of birth of the Parents, or at the last place of dwelling; if afterwards the Parents or either of them die, or run away, yet the Children once settled, must remain there still, and may not be sent to the place of their birth, though afterwards they attain to the age of seven years. The Wife being but a vagrant Rogue, aught to be sent to her Husband, though he be but a servant in another Town or Parish; and the Rogue, whose place or dwelling cannot be known, having Wife or Children under seven years of age, they must go with the Husband to the place where they were last suffered to pass through unpunished; where the Children must be relieved with the work of their Parents, though their Parents be committed to the House of Correction. 3. Hue and Cry. Dalton J. P. ch. 28. fol. 75. The Constables, or Tythingmen of every Town, Parish, or Village, to whom Hue and Cry shall come, aught to search in all suspected houses and places within their Liberties, and as well be Officers, as all other persons which shall pursue the Hue and Cry, may take and stay all such persons, as in their search and pursuit they shall find to be suspicious, and shall carry them before some Justice of the County where they are taken to be Examined, where they were at the time of the Felony committed; and if any default be in the Officers, they may be fined by the Justices for their neglect. 27 Elizab. cap. 13. Dalt. J. P. ch. 48. fol. 132. Where a Hundred is sued for a Robbery, and damages are recovered against one or some few inhabitants of the Hundred, and the rest refuse to contribute thereunto; in such case two Justices of the peace (one of the Quorum) dwelling within or near the Hundred, may for the levying thereof set a Tax upon every Parish within that Hundred; according to which the Constables, or Tythingmen of every parish must Tax the particular Inhabitants within their Liberties, and then levy the money upon such as refuse by distress and sale of their Goods, restoring the overplus if any be, and after the Money is gathered, they are to restore the same to the Justices, or some of them that made the Rate within ten days. 27 Eliz. cap. 13. That Hundred where fresh Suit shall cease, shall answer half the damages to the Hundred where the Felony was committed, to be recovered in any Court at Westminster, in the name of the Clerk of the Peace of the County where the Felony was committed; in which case the death or change of the Clerk of the Peace shall not abate the Suit: And this Recovery is to be taxed and levied as the former. Bract. lib. 3. f. 121. Dalt. J. P. f. 133. Where any one of the Robbers is apprehended, or where the Action is not prosecuted within one year after the Robbery committed, the Hundred is not chargeable for the Robbery; Observe likewise, that the Hue and Cry shall not be judged legal, unless the pursuit be both by horse and foot. Westm. 1. ch. 9 Co. 2. part Inst. f. 172. He that goeth not at the command of the Sheriff or Constable at the Cry of the County, that is, upon Hue and Cry, to arrest Felons after Attainder, shall be grievously fined and imprisoned. 4. Carrying Prisoners to the Gaol. 3 Jac. ch. 10. Dalt. chap. 43. f. 104. An offendorwhich is to be conveyed to Gaol, must bear all charges both of himself and of those that guard him, if he be able; and if he refuse to pay the charges, or shall not at the time of the commitment discharge the same, then upon a Warrant from a Justice of peace, the Constable of the Liberty or Town where the offendor hath any Goods (being within the same County) may sell so many of the party's Goods, as in the discretion of the Justice shall be thought sufficient to satisfy the said Charges, the Apprizement to be made by four Inhabitants of the parish where such Goods be, and the overplus to be returned to the owner. 1 Jac. ch. 10. And if the offendor have no goods to defray the charges, than the charge must be born by the Town or Parish where the offendor was taken; which must be done by Tax, made by the Constable, Churchwardens, and two or three other Inhabitants; and where there are no such officers, than four of the principal Inhabitants of the parish must make the Rate, which being allowed under the hand of a Justice of peace, every Inhabitant must pay their proportion, according to the said Rate; and if any refuse to pay, the Constable, Tythingman, or other officer by Warrant from a Justice of the peace, may levy the same by distress, (and after appraisement by four of the Inhabitants) may sell the same; rendering to the party refusing the overplus, if any be. And if the Constable or other officer that makes such distress be sued, he may plead Justification, and upon a verdict for the defendant, or Nonsuit of the plaintiff, he shall recover triple damages, besides Costs of suit. 5. Servants and Labourers, 5 Eliz. c. 14. The Constable in the time of Hay and Corn harvest, upon request to him made, by any man that wants Labourers, to get in his Harvest to prevent loss thereof, may cause all such Artificers as he shall see meet to labour, to serve by the day for mowing, reaping, or otherwise, for the getting in of Corn or Hay abroad, according as they seem fit and able to perform. And if such persons shall refuse to work, after they are requested thereunto, the Constable may set them in the Stocks by the space of two days and one night; and if the Constable neglect to perform his office herein, he forfeits Forty shillings. 5 Eliz. chap. 4. No person retained in Husbandry, or in any Arts appointed by that Statute, shall departed after the time of such reteiner expired, out of the City, Town, or Parish where he last served, to serve in another without a Testimonial, (viz. in a Town-corporate under the hands and seals of the Magistrate, and two householders there; and in the Country under the hands and seals of the Constable (or other officers,) and two householders of the Town or Parish where he last served,) which Testimonial is to be registered by the Minister, for which he is to have Two pence, and then to be delivered to the party. The form of a Testimonial for a Servant. MEmorandum, That J.S. servant to J.D. of Bramsil in the County of Southampton yeoman, is licenced to departed from his said Master, and is at liberty to serve elsewhere; according to the Statute in that case made and provided. In witness whereof we have hereunto set our hands and seals this 25 day of August, in the 22 year of the reign of our gracious Sovereign Lord King Charles the Second 1670. Ri. Turner, Constable of Bramsil. R. C. J. D. Householders there. If it be one that lives with a Woman, then say (is licenced to departed from his Mistress or Dame, as she is;) if the Master be not a Yeoman or Husbandman, but an handy-crafts-man, as Tailor, Smith, etc. then name him so in the Testimonial. 5 Eliz. ch. 4. Dalt. J. P. ch. 31. fo. 63. The Master that reteins a Servant without such a Testimonial, forfeits Five pounds, being thereof convicted by Indictment taken in the Sessions of the Peace; and every Servant which showeth not such a Testimonial to the chief Officer in a Corporation, or to the Constable or other officer, Minister or Churchwarden of the place where he is to dwell, may be imprisoned until he procure one, and if he produce not one within one and twenty days next after the first day of his Imprisonment, or if he shall show a false or counterfeit one, than he is to be whipped, and used as a Vagabond. This Statute, as to this particular of Testimonials, is now grown in a manner quite obsolete, so seldom used, that it's scarce known, although the penalty in the same be strict and severe, yet it is of good use; and so are a great many penal Statutes more very beneficial to the Commonwealth, if they were duly put in Execution, especially those enacted to punish the daily offences of Brewers, Bakers, Alehouses; all such as use Weights or Measures, Millers, Forestallers, Engrossers, Regrators, cum multis aliis, etc. these are the Caterpillars of the Kingdom. CHAP. V The duty of Constables, etc. about Affrays, Riots, Routs, Arms, Militia, Escapes, Forcible entries, the Peace, Hedge breakers, Setting-dogs. 1. Affrays, Riots, Routs. 3 H. 4.9, & 10. Bacon's Use of the Law, fol. 5. Dalton, J. P. ch. 1. fol. 4, 5. If one makes an Affray or Assault upon another in a Constable's presence, or in his presence shall threaten to kill, beat, or hurt another, or shall be in a fury, ready to break the peace; In these cases the Constable may commit the offenders to the stocks, or to some other safe custody for the present, until such time as he can carry them before some Justice of the peace, or to the Gaol, until they find Sureties for the peace: The Constable may take security for the peace by Obligation to be sealed and delivered to the King's use, which Bond the Constable was to send to the Exchequer or Chancery, from whence the process should issue to levy the debt to the Kings use if the peace were broken. This was the opinion of three of the Judges of the Common Pleas, in Skirret's Case: Trin. 35 Eliz. come. ban. Rot. 1458. But Anderson Chief Justice said, That the Constable ought to carry the party that he should see breaking of the peace, before a Justice to find sureties for the peace, which is the usual practice at this day. Dalt. J. P. ch. 8. fol. 33. The Constable where he seethe an affray made, or such as are about to make an affray, aught to command the Affrayers in the King's name to surcease and departed on pain of Imprisonment; and if a Constable being present at an affray, doth not his best endeavour to part them, it being presented by the Jury at the Sessions of the Peace, such Constable may be fined for it. 3 H. 7.1. 3 H. 7.20. Lambert, 136. 38 E. 3.8. Dalt. J. P. ch. 8. fol. 33. If any one be dangerously hurt in an Affray, the Constable or any other may stay the offendor, and carry him to a Justice of peace, who is either to bail him till the next Gaol-delivery; or to commit him to the Gaol, until it be known whether the party will live or die thereof. Lambert, 135. 1 H. 7.7. 3 H. 7.10. If Affrayers will not departed, but do draw weapons, or give any blow, the Constable may command assistance of others to cease the Affray; and if they make resistance, may justify the beating and wounding of them: and if the Constable or any of his assistants be killed, it is murder in the Affrayers. Lambert, 135. 7 E. 3.19. Where there is a great and dangerous Affray, the Constable may make proclamation in the King's name, that the Affrayers shall keep the King's peace, and departed: and if the Affray be in a house, the Constable may break into the house (if the doors be shut) to see the Peace kept, though none of the parties have taken any hurt; and if the Affrayers fly into another man's house, the Constable upon fresh pursuit, may break into such house and apprehend them. Dalt. ch. 8. fo. 34. & ch. 118. fol. 340. Crompt. 146. b. & 172. b. Where the Affrayers fly into another County, the Constable seeing it may freshly pursue, or cause them to be pursued and taken there: and then the Constable may carry them before some Justice of the peace of the County where they are taken, to find sureties for the Peace. And if they fly into a Franchise only within the same County where the Affray was, the Constable (seeing this) may freshly pursue them and take them out thence. Dalt. J. P. ch. 8. f. 34. 38 H. 8. After the Affray is over, the Constable cannot arrest the Affrayers without a Warrant. Except some person hath received such hurt there that he is in danger of death; but before the Affray begun, and at the time thereof he may arrest them without a Warrant. Dalton, ibid. It is not properly an Affray unless some blow be given or offered to be given; for hot Words is no Affray, neither can the Constable apprehend them for words, unless they threaten to kill, beat, or hurt one another, in such case the Constable may take such persons and carry them before a Justice, to find sureties for the Peace, and yet such Threatening is no Affray. Dalt. ch. 8. fo. 35. 5 H. 7.6. If an Affray or an Assault be made upon the Constable himself, he may not only defend himself, but may also put the parties offending in the stocks, till such time as he can carry them to a Justice of the peace, or to the Gaol; and if he be not able to Arrest them himself, he may call others to his assistance, who may justify to Arrest the offenders. 27 R. 2. ch. 8. Sheriffs, Constables, and all other the King's officers, shall suppress Riots, and Imprison them, and all other offenders against the Peace. Lambert, 179, 181. Bro. tit. Riot, 4, 5. Co. 3 part Instit. fol. 176. Dalt. J. P. ch. 85. fol. 217. Where three persons or more shall come and Assemble themselves together, to the intent to do any Unlawful act with force or violence against the person of another, his possessions or goods, as to kill, beat, or otherwise to hurt, or to imprison a a man; to pull down a house, wall, pale, hedge, or ditch; wrongfully to enter upon or into another man's possession, house, or lands, etc. or wrongfully to cut or take away corn, grass, wood, or other goods; or to hunt unlawfully in any Park or Warren, or to do any other unlawful act, (with force or violence) against the peace, or to the manifest terror of the people; if they only meet to such a purpose or intent, although they shall after departed of their own accord, without acting any thing, yet this is an unlawful Assembly, because of their intention at first. And if after such meeting they shall ride, move or go forward, towards the execution of such Act, whether they put their intended purpose in execution or not, this is a Rout. And if they do act any such thing indeed, than it is a Riot. 2. Arms, Militia. 2 E. 3. ch. 3.7 R. 2.13. Co. 3 part Institutes, fol. 162. Dalt. J. P. ch. 9 f. 35. & 159. If any person shall ride or go Armed offensively before the King's Justices, or before any other the King's officers or ministers during their office, or in Fairs, or Markets, or elsewhere by night or by day, in Affray of the King's people and breach of the peace; or wear or carry any Guns, Daggers, or Pistols charged, in such case the Constable upon sight hereof may seize and take away their Armour and other Weapons, and cause them to be apprized, and answered to the King as forfeited; and carry the parties before a Justice of peace to find Sureties for the peace. 2 E. 3. ch. 3. But the King's servants in His presence, Sheriffs and their officers, and other the King's ministers, and such as be in their companies assisting them in their office, and all others pursuing Hue and Cry where any Felony or other offences against the peace be committed, may lawfully bear Armour or Weapons. 14 Car. 2. chap. 3. All High-Constables, Petty-Constables and other officers, within their several Parishes, are to be aiding and assisting to such persons as shall have Warrants from the Lord lieutenants or any two of their Deputies, under their hands and seals, to search for and seize all Arms in the custody and possession of any person or persons whom the said Lieutenants or their Deputies shall judge to be dangerous to the peace of the Kingdom, and to secure the same, and give account thereof to the said Officers; but such search is to be made in the day time only, between Sun-rise and Sunset, and not otherwise; unless it be in Cities and their suburbs, Towns-corporate and Market-towns, or Houses within the Bills of mortality; in which places search may be in the night, if the Warrant so direct. No dwellinghouse of any Peer of the Realm is to be searched, unless the Warrant be from the King's Majesty, under his Sign manual; or in the presence of the Lieutenant, or one of the Deputy-lieutenants of the said County or Riding: And in all places and houses aforesaid where search is made, in case of Resistance to enter with Force; and such Arms so seized, where the Lieutenants or their Deputies, or any two of them think fit, may be restored to the owners again. 14 Car. 2. cap. 3. & 15. Car. 2. cap. 4. The Constables by Warrant under the hand and seal of the Lord Lieutenant, or any three or more of the Deputy lieutenants, are to levy such sums, forfeitures, penalties, and payments, as shall be charged upon any person or persons within their several Liberties, for the furnishing of Arms, horse or foot, or payment of Soldiers. Ibid. And where sufficient distress cannot be had, than the Lord-lieutenants and their Deputies by like warrant to the Constable may commit such offendor to prison, until he shall make satisfaction, according to the said forfeiture, payment, or penalty. 3. Escapes. Dalton, J.P. ch. 106. f. 272. Bro. coron. 112.224.316.454. & Bro. Escape, 31. Stamford, fo. 32. If a Constable or any other officer which hath a prisoner in custody for Felony or suspicion thereof, voluntarily letteth or suffereth the prisoner to go where he will at liberty, (though this be breaking of prison) yet it is Felony in the Gaoler, Constable, or him that letteth such prisoner escape, but it is no Felony in the prisoner: but if such a prisoner shall escape by the negligence of his keeper, and against his will and knowledge, than it is Felony in the prisoner, because a breach of Prison, and the Gaoler or Constable, etc. shall be fined by the Judges or Justices for such Escape. Dalt. cap. 106. fol. 272. If a Constable or other officer shall voluntarily suffer a Thief, being in his custody, to go into the water and drown himself, this escape is Felony in the Constable, and the Thief is Felo de se; but if the Thief shall suddenly (without the assent of the Constable) kill, hang, or drown himself, this is then but a negligent escape in the Constable, and fineable as aforesaid. Dalt. ibid. The voluntary letting a Felon escape before he be arrested for the Felony, is no Felony in him that suffereth him to escape; but if the Constable suffer one to escape whom he knows hath committed a Felony, is finable, if it do not make him accessary. Cromp. 40.44. Dalt. J. P. ch. 106. fo. 275. Where a Felony is committed and one is arrested for the same, or suspicion thereof, though the Constable etc. shall after have certain intelligence and knowledge, that the party arrested is not guilty of the offence, yet they may not set the party at liberty; for he must not be delivered but by due course of Law. Dalt. J. P. ch. 118. fo. 340. If a Constable convey a Feion to the Gaol, and the Gaoler will not receive him, than the Constable must bring him back to the Town where he was taken, and that Town shall be charged with the keeping of him until the next Gaol-delivery, and in such case the Gaoler shall be punished by the Justices. Ibid. The Constable or other officer that shall imprison any Felon in the stocks, may lock the stocks, and if need be, may also put Irons on the prisoner; and when he conveyeth him to the Gaol, or to the Justice, he may pinion him, or otherwise make him sure so that he cannot escape. 4. Forcible Entries. 15 R. 2. chap. 2. Dalt. ch. 22. f. 57 If a Constable, or any other private person of the same County do refuse to attend and assist the Justices of the peace, upon request to remove a Force, or to convey the parties to the Gaol, he may be imprisoned for his neglect, and make Fine to the King. 6. The Peace. H. 7. fo. 18. A. Cromp. 6.12. The Constable ought to do what he can to keep the Peace, but he cannot take surety of the Peace at the request of any man. Dalt. ch. 3.9. The Constable or other officer before he arrest the party upon a Warrant for the Peace, ought first to acquaint the party therewith, and charge him in the King's name to go along with him to the Justice to put in sureties, according to the Warrant; and if the party refuse so to do, than the Officer ought forthwith to take and convey him to the Gaol, without carrying him to any Justice at all, there to remain till he doth find Sureties; and then at the next Sessions of the peace the Officer ought to deliver in his Warrant, and certify what he hath done therein. Dalt. 69. f. 166. If the party yield to go, and find Sureties, than the Officer may not absolutely arrest him, yet he is not bound to go up and down with him till he can get Sureties, but he may keep him till he can get Sureties to come unto him; and if the party make resistance, or offer to go away afterwards, the Officer may carry him to the Gaol, or set him in the Stocks till he can get aid to carry him to the Gaol. Lambert, 101. Dalt J. P. ch. 69. f. 168. If an officer having a Warrant from a Justice of peace against a man to find sureties for the Peace, and do afterwards receive a Supersedeas out of the Chancery, or King's Bench, or from another Justice of peace of the same County to discharge the same Surety of the peace; and yet nevertheless the Officer will cause the party to find sureties by virtue of the Warrant, the party may refuse to give it; and if he be arrested or imprisoned for such refusal, he may have his Action of False imprisonment against such Officer; for the Supersedeas is a discharge of the former Warrant. 13 H. 7.10. Dalt. J. P. ch. 75. f. 189. I. a Constable be informed, that a man and woman be in Adultery or Fornication together, or, that a man and woman of evil report are gone to a suspected house together in the night, the Constable may take company with him, and if he find them so, he may carry them before a Justice of the peace to find Sureties for their good behaviour. Fitz. Barr. 207. Cromp. 135. If any shall abuse a Constable in the execution of his office, the Constable may have him bound to his good behaviour for it. Dalt. ch. 3. f. 9 Any injurious force or violence used against the person of another, his goods, lands, or other possessions, whether it be by threatening words, or furious gestures, or force of the body, or any other force used in Terrorem, is said to be a breach of the Peace. 6. Hedge-breakers, Roblers of Orchards, etc. 43 Eliz. ch. 7. Such as are convicted before a Justice of the peace, for cutting and taking away of Corn growing, robbing of Orchards, breaking Hedges, and their procurers and receivers knowing the same, are to give the party grieved such satisfaction as a Justice of peace shall think fit; and if they cannot give such satisfaction, than the Justice may commit the offenders to the Constable to be whipped for the first offence, and the like pain for the second offence; and if the Constable or other officer do not by himself or some other see the same done accordingly, than the Justice may commit such officer to the Gaol, there to remain without Bail until he procure the offendor to be whipped as aforesaid. 15 Car. 2. ch. 2. The Constables, Headboroughs or other person, in every County, City, Town-corporate or other place where they shall be officers and inhabitants, have power to apprehend or cause to be apprehended such persons as they suspect, for having, carrying or conveying any burden, or bundles of any kind of Wood, Underwood, Poles, or young Trees, or Bark of any trees, or Gates, Stiles, Posts, Rayls, Pales, Hedge-wood, Broom, or Furze; and any Constable or Headborough, etc. by warrant under the hand and seal of one Justice, may enter into the houses, outhouses, yards, gardens, or other places belonging to the houses of such persons as they shall suspect, etc. and where they shall find any, to apprehend the parties suspected for cutting the same, and those in whose custody, etc. any such Wood or Underwood shall be found, and carry them before a Justice of the peace, and if the party cannot give a good account to the Justice how he came by the said Wood, etc. by the consent of the Owner, or shall not, within the time the Justice shall appoint, prove who he bought it of, than such person shall be deemed convicted of the cutting and spoiling of Wood, within the Statute of 43 Eliz. and for the first offence shall give such satisfaction to the owner within such time as the Justice shall appoint, and pay over and above presently to the use of the Poor where the offence is committed, so much money as the Justice shall appoint, not exceeding Ten shillings: And for default of performance hereof, the Justice may commit the offendor to the house of Correction so long time as he shall think fit, not exceeding one Month; or otherwise to be whipped by the Constable or other officer: And for the second offence the offendor is to be sent to the house of Correction for one Month, and there held to hard labour; and if he be convicted the third time, then to be punished as an incorrigible Rogue. Stat. ibid. If any person buy any burdens of Wood, Underwood, Sticks, etc. of any who may justly be suspected to have come by the same unlawfully, upon complaint to a Justice, Head-officer, etc. and if upon examination upon Oath it appears, That the same were bought of such person as aforesaid, the Justice may order the buyer to pay the triple value thereof to him from whom they were stolen; and for nonpayment the Justice may grant his Warrant to the Constable, to levy the same by distress and sale of the offenders goods, rendering to the owner the overplus; and for want of such distress, then to commit the party to the Gaol, at his own charge, there to remain one Month without bail. None is to be punished by this Statute, that hath been punished for any former Law for the same offence, and all offenders within this Statute must be prosecuted within six Weeks after the offence committed. Setting-dogs. Stat. 7. Jac. ch. 11. Dalton, J. P. ch. 37. fol. 90. The Constable, Tythingman, or Headborough of any place (upon a Warrant under the hands and seals of two or more Justices of the Peace) hath power to search the Houses of any persons suspected to keep Setting-dogs, or Nets, for the taking of Pheasants or Partridges, and the Dogs and Nets there found, to take, carry away, detain, kill, destroy, and cut in pieces. Stat. idem. Dalt. ibid. But they cannot search the houses of any who have free Warren, or any Lords of any Manor, or such as have 40. Pounds per ann. or more in Freehold, or some Estate of Inheritance, or 80. Pounds per annum for Life, or be worth in personal Estate 400. Pounds; These may keep Nets and Dogs, to take Pheasants or Partridges in their own ground. CHAP. VII. The Constable's office touching Clothiers, Maultslers, Alehouses, Drunkenness, Weights and Measures, Purveyances, Highways. 1. Clothier's. 14 Car. 2. ch. 5. Constables and other officers upon request, are to aid and assist the Wardens and Assistants, for regulating the Trade of Worsteds and other Stuffs called Norwich-Stuffs, made in Norwich and the County of Norwich. They ought to be very vigilant in this business, for there never was such slight and unserviceable Stuffs made as now are; to the great damage of his Majesty's subjects. 14 Car. 2. ch. 5. In the West-riding of the County of York, the Constables are likewise by warrant from the Justices of the peace, Masters and Wardens of the Corporation, or any thirteen of them, to levy such Fines, Penalties and Forfeitures as shall grow due from any Clothier by virtue of the Statute abovesaid, by distress and sale of the offenders goods, rendering the overplus to the owner upon demand. 4 E. 3. ch. 1. Fitz. J. P. 103. Clothier's must pay their Spinners and other work-folks their Wages in ready Money, and not in Wares; and shall deliver their Wool in due weight, on pain to forfeit Six pence for every default. And the Carders, Spinners, Weavers, and other work-folks are to do their work faithfully on pain to forfeit double damages to the party grieved. Stat. idem. The Master, or Head-officer in a Corporation where there is no Master, and out of a Corporation, every Justice of peace, High-Constable, and Stewards of Court-Leets shall hear and determine the complaints, as well for nonpayment of the Work-folks wages, as the damages aforesaid (by examining the parties,) for which damages they have power to commit the offenders to the Gaol until the party grieved be satisfied. 39 Eliz. ch. 20. The Justices of peace and High-Constables may search any house or other place for Tenters, Ropes, Rings, Head-wrinches, or other Engines for stretching of Cloth, and if they find any to deface them; and if the Owners use them again, these Officers may take them away and sell them, and give the money to the Poor. Mault-making. 2 E. 6. ch. 10.21 Jac. ch. 28. 3 Car. 1. ch. 4. The Constables and Bailiffs of any Town ought from time to time to view and search all such Malt as shall be made, or put to sale within any of their Liberties, and if they find any being evil made, or mingled with evil Malt, than the Constable or Bailiff, with advice of one Justice of peace, may fallen the same to such persons at such a rate as the Justice shall think sitting. Stat. 2. E. 6. ch. 10. There are three sorts of evil and deceitful Malt, viz. 1. Where Barley and Malt hath not in the making thereof, in the Fat, Floor, steeping and drying thereof, (three Weeks at the least;) Except it be in June, July and August, and in those Months it must have 17. Days: and under such time it cannot be made wholesome. 2. They ought to take out of every Quarter of Malt half a peck or more of Dust, by treading, rubbing and fanning the same, before they put the same to sale, or else they forfeit 20. Pence for every Quarter otherwise sold, to be divided between the King and the Informer. 3. If any Malt shall be put to sale not well made, according to the limited time, or made of mow-burnt or spired Barley, or mixed good and bad together, they forfeit Two shillings for every Quarter, to be divided as aforesaid. This Act extends not to such as make Malt for their own provision only; and the Forfeitures aforesaid must be prosecuted within one Year. Alehouses. Drunkenness. 3 Car. 1. ch. 3. Dalt. J.P. ch. 7. fol. 31, 32. If any one keepr an Alehouse, or sell Beer or Ale without Licence, he forfeits 20. Shillings to the use of the Poor; to be levied by distress and sale of the offenders goods, by the Constable and Churchwardens by warrant from a Justice of peace before whom the offence is proved; which Goods are to be sold within three days after the Distress taken, and the overplus to be returned, if any be: And in default of Distress, the delinquent is to be openly Whipped by the Constable; If the Constable refuse or neglect to execute his Warrant, he forfeits 40. Shillings to the Poor; and the Justice may commit the Constable to the Gaol, until he causeth the offendor to be whipped, or payeth the 40. Shillings to the use of the Poor. Co. 9 lib. Rep. fol. 87. b. 10 H. 7.8. Dalt. J. P. ch. 7. f. 28. If a common Innkeeper or Alehousekeeper refuseth to lodge a Travelle, he proffering to pay ready money for his victuals, etc. the Constable may cause such an Innkeeper or Alehousekeeper to be indicted at the Sessions or Assizes, where he may be fined and imprisoned; or the party grieved may have his Action of the Case against the Innkeeper or Alehousekeeper. But they are not bound to lodge, or find victuals without ready money first paid, if it be required. In the Condition of the Recognizance, which every Alehousekeeper enters into that is licenced to sell drink, it is one Clause, That he shall keep one or more spare Beds for lodging of strangers. Were this well looked into in and about London, abundance of forfeited Recognizances would be found; and a great many lazy knaves that live at their ease by selling Drink, might be set to work for their live. They are bound likewise not to suffer any Gaming in their houses or backsides, which now is the main prop of most of them; and there they draw in Apprentices and Servants to their ruin: were they punished according to the Statute for this, these Caterpillars would not swarm so thick as they do. 1 Jac. ch. 9 1 Car. 1. ch. 4. If any Innkeeper, Alehousekeeper, or victualler do sell less than a full Ale-Quart of the best Ale or Beer, or two Quarts of the Small for one Penny, he forfeits 20. Shillings for every offence. If he suffers Townsmen or others to sit tippling in his house, he forfeits 10. Shillings; for which the Constables and Churchwardens upon a Warrant from a Justice of peace ought to distrein and levy the Forfeitures, according to the Statute; and if there be no distress to be found, or if the Officers neglect within twenty days to certify the same Default to the Justices, the Officers forfeit 40. Shillings to the use of the Poor, to be levied by distress on their Goods by Warrant made to any indifferent person, from any one or more Justices of the peace under their hand and seal: and for want of distress, the Justice may commit the offenders to the Gaol, there to remain till they have paid the said Forfeitures. In all these cases the Distresses are to be kept six days, and if the parties do not pay the Forfeitures within that time, than the Distress is to be apprized and sold, and the overplus returned to the owners if any be. 21 Jac. ch. 7. Dalt. J. P. ch. 7. f. 28. If the Constable or other officer of the Parish neglect to serve the Justices Warrant against Townsmen, or others for tippling in any Inn, Alehouse, or Victualing-house; or against men for being drunk, viz. for Tippling 3. s. 4d. and for being Drunk 5. s. to be levied by distress on the Offenders goods, and sale thereof after six day's default of payment, rendering the overplus to the Owner; And for want of distress, or not able to pay, the Tipler is to sit in the Stocks four hours, and the Drunkard six hours. And if in any of these cases the Constable neglect to do his duty, he forfeits Ten shillings, to be levied by distress and sale of his goods to the use of the Poor. These Offences are to be enquired after within Six months after they are committed, and the Constables and other officers of the Parish may be charged upon their Oaths to present them. Weights and Measures. 8 H. 6. ch. 5. All Cities, Boroughs, and Market-Towns in England ought to keep common Weights and Measures sealed, at which the Inhabitants may weigh freely; and all Foreiners must pay for every draught under forty Pounds, one Farthing; for a draught between forty and an hundred, an Halspeny; and for a draught between an hundred and a thousand, one Penny; wherewith the Weights are to be maintained: and the Officers which attend that service are to be rewarded at the discretion of the Inhabitants. 8 H. 6. ch. 5. 11 H. 7. ch. 4. Every City which wants such Weights and Measures forfeits ten Pounds to the King, every Borough five Pounds, and every Market-Town forty Shillings: And the chief Officers of such places (upon request to them made) are to Mark and Seal such Weights and Measures to any of the King's subjects; taking for the marking of every Bushel one Penny: and none ought to sell with any other Weights and Measures but such as are marked or sealed. 11 H. 7. ch. 4. The Mayors, and chief officers in Cities, etc. are once every year at least to view all Measures and Weights in their Jurisdictions, and to break or burn such as they find defective; and to punish the offenders for the first offence 6. Shillings eight pence, for the second 13. Shillings four pence, and for the third offence 20. Shillings; and besides may adjudge the offenders to the Pillory. Purveyance. 13 Car. 2. ch. 8. The Clerk or chief officer of the King's Carriages, shall three days before His Majesty's arrival, by warrant from the Green-cloth, give notice in writing to two Justices of the peace adjoining to the place where His Majesty is to come, to provide such a number of Carts and Carriages as the said Offcer shall need for that work; and to express the time and place where the said Carts and Carriages are to attend, and then these Justices are to require the Country to provide the number of Carts and carriages of four able Horses, or four Oxen and two Horses a piece; at six pence a mile for every mile they go laden, to be paid them in hand at the place of Lading; and no Carriage to be enforced to travel above One day's journey from the place where they receive their lading; and if any refuse, or shall not be ready at the time and place, and having not good cause to the contrary, the Justices upon proof thereof by two witnesses, or the oath of the Constable or other officer may (by their warrant) cause to be levied by distress and sale of the offenders goods 40. Shillings. 13 Car. 2. chap. 8. If any Justice of peace or officer take any gist to spare any person from making such Carriage, or shall press more Carriages than is directed from the Green-cloth, the offendor forfeits Ten pounds, to be recovered by any person by Action of Debt in any Court of Record. 12 Car. 2. ch. 24.13 Car. 2. ch. 8. No pre-emption shall be allowed to the King, His heirs or successors, nor to the Queen or any of the Children of the Royal Family, in market or out of market; but all subjects may dispose of their goods as they please: And if any person shall make any Purveyance, or impress any Carriages (otherwise than is appointed by 13 Car. 2. ch. 8. by order from the Green-cloth) or other things by colour of any authority of Purveyance for the King, etc. contrary to the Act 12 Car. 2. ch. 24. then two or one Justice of the peace next adjoining, and the Constable of the place where such offence is committed, upon complaint of the party grieved may send the offendor to the Gaol, until the next Sessions, there to be indicted for the same: And the party grieved may have his Action against the offendor, and therein shall recover triple Damages and triple Costs. 14 Car. 2. ch. 20. Two or more Justices of the peace by Warrant from the Lord High-Admiral of England, or two or more of the principal Officers, or Commissioners of the Navy, or the Master of his Majesty's Ordnance, or the Lieutenant of His Ordnance, are to provide Carriages with horses and oxen out of the Country, not being above twelve miles distant from the place of Lading; the owners of which Carriages or their servants are to receive Twelve pence a Mile for every Load of Timber, and Eight pence a Mile for every Tun of other commodities. And such persons as neglect or refuse to make their appearance, upon oath thereof made before the Justices by the Constable or two witnesses, the person refusing or neglecting forfeits Twenty shillings, to be levied by distress and sale of his Goods by warrant from the said Justices, Mayor or other chief Officer, or from the principal Officers or Commissioners of His Majesty's Navy, or Master or Lieutenant of His Majesty's Ordnance; rendering to the owner the overplus if any be, first deducting the charge of Distreining. Stat. ibid. No Horses, etc. or Land-carriage shall be forced to travel more dayes-journey from the place where they receive their lading, nor be compelled to continue longer in the employment than the said Justices shall appoint; and that ready money be paid to the parties in hand at the place of Lading, according to the Rates aforesaid. The Act of 14 Car. ch. 20. & 13. cap. 8. are to continue until the end of the first Session of the next Parliament. Highways. 14 Car. 2. ch. 6. The Churchwardens, Constables, or Tythingmen of every parish, are upon Monday or Tuesday in Easter-week (after notice given publicly in the Church the Sunday before) after Morning prayer ended, with the advice and consent of the major part of the Parish then present, to choose two or more sufficient Inhabitants of the place to be Surveyors for the Highways for the Year following; and give notice thereof to the parties chosen in writing, under pain of Five pounds. This Act is to continue until the end of the first Session of the next Parliament. 2, 3 P. & M. ch. 8. The Churchwardens and Constables, etc. offending herein, may be punished by Fine or Amerciament at the Quarter-Sessions, by the discretion of the Justices. Stat. ibid. P. & M. & 5 Eliz. ch. 13. The Constables and Churchwardens are then also to appoint six days between that and the four and twentieth day of June, for the Amendment of the Highways, and to give public notice thereof in the Church the next Sunday after. Stat. idem. Stewards in Leets have power to inquire after the breach of this Statute about Highways, and to set Fines upon such as make default at their discretion; and shall within six weeks after Michaelmas deliver indented Estreats thereof under their hands and seals, viz. one part to the Bailiff or High-Constable of the Liberty, and the other to the Constable and Churchwardens where the default was made. Stat. idem. In default of presentment thereof in Leets, the Justices of peace may inquire thereof in their Sessions, and set such Fines as they or any two of them (whereof one must be of the Quorum) shall think fit, whereof the Clerk of the peace shall deliver indented Estreats in manner as is aforesaid. Stat. idem. Dalton, J. P. ch. 76. fol. 71. These Estreats of Stewards of Leets or Clerk of the peace shall be a sufficient Warrant for the Bailiff or chief Constable to levy the said Fines by way of distress; and if no distress can be found, or the party do not pay the Fine within twenty days after demand thereof, he or they shall forfeit double so much; All which Fines and forfeitures shall be bestowed on the Highways in the same Parish, by the Constable and Churchwardens there. Stat. idem. Dalt. J. P. ch. 26. fol. 70. The Bailiff or High-Constable is yearly between the first of March and last of April, to render unto the Constable and Churchwardens, to whom the other part of the Estreat was delivered, a true Account of the Moneys received by them, in pain of forty Shillings. And the said Constables and Churchwardens have power to call the Bailiff or High-Constable before two Justices (one of the Quorum) to pass the Account, who have power to commit such Bailiff or High-Constable, until they have satisfied all the Arrearages by them received. Stat. idem. Upon passing their Account every Bailiff or High-Constable shall be allowed Eight pence for every Pound collected, and Twelve pence for the fee of the Estreat delivered. Stat. idem. Dalt. ch. 26. f. 21. Any two Justices of peace upon complaint to them made by the succeeding Constables and Churchwardens may call before them the precedent Constables and Churchwardens, and compel them to pay in all Arrearages in their hands. 18 Eliz. ch. 10. The Surveyors by warrant from two Justices of the peace, are to levy by distress and sale of goods, the Forfeitures of all such persons as offend in not scouring their Ditches, etc. and if they neglect to levy the Forfeiture for the space of a year after the offence committed, than the Justices may send to the Constable and Churchwardens to levy the same. 14 Car. 2. ch. 2. Constables or other officers by warrant from any of His Majesty's Justices of either Bench, Barons of the Exchequer, or Justices of the peace to them directed, are to levy by distress and sale of the offenders goods, all such penalties as shall be forfeited by the said Act touching repairing the Highways and Sewers, and for paving and keeping clean the Streets in and about the Cities of London and Westminster; and for default of distress, or nonpayment of the said Penalties within six days after demand thereof, or notice in writing left at the house or dwelling place of the offendor by the said Constable or other officer; the said offendor (not being a Peer of the Realm) may be committed to the common Gaol of the said County or City, by warrant of any such Justice under his hand and seal, there to remain without bail or mainprize until payment thereof be made. CHAP. VIII. The Constable's office about Foreign Bonelaces, etc. Chimney-money, Customs, Excise, Fish. 1. Foreign Bonelaces, etc. Constables upon Warrant to them directed from the Justices of peace, or chief officers of Cities and Corporate-Towns, etc. are to search in their several Counties, Cities, Towns and Liberties, in the Shops being open Warehouses, and dwellinghouse of such person or persons who shall be suspected to have any Foreign Bonelaces, Cut-works, Embroideries, Fringes, Bandstrings, Buttons, or Needle-works, made of Thread, Silk; or any or either of them made in the parts beyond the Seas, and where they find any such to seize the same. 2. Chimney-money. 16 Car. 2. ch. 3. All Justices of the peace, chief Magistrates, Treasurers and Under-Treasurers, Constables, and other His Majesty's officers, are within their several Liberties and Jurisdictions to aid and assist His Majesty's officers appointed for the collecting of the Duty of Hearth-money. Stat. idem. The Officers appointed by His Majesty for the Chimney-money, once every year, being accompanied with the Constable or Tythingman, Treasurer or Under-Treasurer, or other public officer of the Peace; and in all Parishes and places where there are no Constables, Tythingmen or other public officers as aforesaid, there without any such assistance may enter in the day time into any dwelling or other House, Edifice, Lodging, and Chambers in any of the Inns of Court or Chancery, Colleges and other Societies, to search and examine whether there be any more Fire-hearths and Stoves in the same than were formerly Returned or certified, and what are increased or decreased since the last Certificate; And if they find any variance in the Number returned, both the Officer and Officers appointed by His Majesty, and the Constable or Tythingman, or other Officer aforesaid are to certify the same under his or their hands to the Clerk of the peace. Stat. idem. If the party after demand made by His Majesty's officers, or their deputies at the house, chamber, or place where the duty shall grow due, make default or refuse to pay, by the space of one hour after such demand, than the officer or his deputy, with the assistance of the Constable or Tythingman, or other Officer, may at any time in the day levy the said duty and all the Arrears thereof, by distress and sale of the goods of the parties making default, rendering the overplus to the owners; deducting necessary charges for taking the distress: which charges are not to exceed one moiety of the Duty and Arrears. 16 Car. 2. cap. 3. No arrears of Hearth-money are to be distreined for, after the space of two years next after such duty becomes due. And if any violence, opposition, or injury be done by any person or persons to any of His Majesty's officers or their deputies, in the due execution of their office, Oath being made there of before any one Justice of the peace or chief Magistrate, etc. such Justice or the Magistrate, if they think fit, may commit the offendor to the common Gaol, for any time not exceeding one Month. Stat. idem. The Constables are to have two pence in the pound, paid them by the Collector to whom they pay the Chimney-money, by them collected; and are to pay nothing to the Collectors for their Acquittances. 3. Customs. 12 Car. 2. ch. 19 Any person having a Warrant from the Lord Treasurer or any of the Barons of the Exchequer, or chief Magistrate of a Port, for the search of Uncustomed goods, may with the assistance of a Sheriff, Justice of the peace, or Constable, (who are to be aiding and assisting upon request) may enter into any House in the day time where such goods are suspected to be concealed; and in case of resistance, may break open such House and seize and secure such goods. Stat. idem. No House is to be entered, unless it be within one Month after the offence supposed to be committed; and if the Information whereupon the House shall come to be searched do prove false, the party injured shall recover full Costs and damages against the Informer by Action of Trespass. 14 Car. 2. ch. 11. Such persons as are authorized by Writ of Assistance out of the Exchequer, are to take a Constable, Headborough or other officer inhabiting near the place, and in the day time to enter into any house, shop, cellar, warehouse, room, or other place; and in case of resistance break open the doors, chests, trunks, and other package there to seize, and from thence to bring any kind of goods or Merchandise whatsoever prohibited and uncustomed, and to put and secure the same in His Majesty's Storehouse in the Port next to such place where the seizure shall be made. Idem. All Officers belonging to the Admiralty, Chaplains and Commanders of Ships, Forts, Castles, and Blockhouses; and all Justices of peace, Mayors, Sheriffs, Constables and Headboroughs, and other the King's officers and subjects whatsoever whom it may concern, are to be aiding and assisting to all and every person and persons which are or shall be appointed by His Majesty to manage his Customs; and if the Officers of the Customs, or any acting in aid of them, shall be sued, indicted, prosecuted or molested; such persons, their Heirs, Executors, and Administrators may plead the general issue, and give the several Acts relating to the Customs, or any of them in evidence. 4. Excise. 12 Car. 2. ch. 23, 24. Gagers' employed by the Commissioners of Excise, are to take the Constable with them when they enter by night into any house, to Gauge their Coppers, Fats or vessels; or to take an account of their Liquors made, brewed, or distilled in their Houses. Idem. Such persons as shall be convicted before the Justices of peace, or Commissioners of Excise, of any offence and forfeiture within the Acts of Excise; the Constables by warrant from the Justices of peace are to levy the Penalties upon the goods of the offenders by distress and sale thereof, (rendering the overplus;) and for want of distress, they are to convey the offenders to the Gaol, there to remain until satisfaction be made. And the Constables upon warrant are to summon Alehouse-keepers, etc. to appear before the Commissioners at such places and times as shall be appointed in the Warrants. CHAP. IX. Concerning disturbing of Ministers, Swearing, Recusants, Conventicles. 1. Disturbing of Ministers. 1 Mar. Sess. 3. ch. 3. Wingate's Stat. tit. Sacraments. Dalt. J. P. ch. 41. fol. 103. If any person purposely without Authority, disturb a Preacher lawfully Licenced, in preaching, praying, or administration of the Sacraments, either by talking, laughing, humming or the like; any Constable or Churchwarden of the place ought presently to apprehend the party, & carry him before a Justice of the peace of the same County, who may commit him to safe custody; and within six days after, with another Justice of the peace they may examine the matter: And if they find it true by two Witnesses, they must commit him to the common Gaol, there to remain for three Months, and from thence to the next Quarter-Sessions; at which upon the party's reconciliation, and entering into security for one whole Year, he may be released; (at the discretion of the Justices) but if he continue still in his obstinacy, he must continue in Prison without bail till he be penitent. Idem. He that Rescues an offendor in this kind, shall suffer like Imprisonment, and forfeit Five pounds; and the Inhabitants that suffer such an offendor to escape, being presented before the Justices at their Sessions of the County or Corporation where the offence was made, do also forfeit Five pounds. 2. Profane Swearing. 21 Jac. ch. 20. 3 Car. 1. ch. 4. If any person shall profanely Curse or Swear, they forfeit Twelve pence for every time so offending; the offence must be presented within Twenty days, and proved by two Witnesses, or confession of the party before a Justice of peace or Head-officer of a City or Town-corporate, who may thereupon issue out their Warrant to the Constables, Churchwardens and Overseers of the poor of the Parish where the offence was committed, to levy the Forfeitures by distress and sale of the offenders Goods, rendering the overplus to the owner, if any be. Idem. Where no Distress can be found, the offendor (if above Twelve years of age) shall by warrant from a Justice, etc. be set in the Stocks three whole Hours. But if the offendor be under Twelve years of age, and do not forthwith pay the forfeiture of Twelve pence per Oath, then must such offendor be whipped by the Constable, or by the Parent or Master in the presence of the Constable. 3. Recusants. 3 Jac. ch. 4. The Constables and Churchwardens of every Parish or one of them, or High-Constable of the Hundred are once a year to present at the Sessions of the Peace, the Monthly absence from the Church of all Recusants and their Children above Nine years old, and their Servants; on pain to forfeit for every such default respectively Twenty shillings: which Presentment the Clerk of the Peace or Town-Clerk is to enrol without fee, on pain of Forty shillings. 7 Jac. 6. If the Minister, Churchwardens or Constable of any parish, or any two of them shall complain to any Justice of the peace, of any person suspected for Recusancy, than any such Justice may tender the Oath of Supremacy to the person suspected; and if he refuse to take it, the Justice may commit the party to the Gaol, there to remain until the next Assizes or Sessions of the Peace: And then if the party refuse again, he is in Praemunire; but if it be a Feme-covert she shall only be imprisoned, there to remain without Bail until she will take the said Oath. 4. Conventicles. 16 Car. 2. ch. 4. If any Constable, Headborough, or Tythingman neglect to execute the Warrants to them directed for Sequestering, distraining, and selling the Estate or goods of any seditious Conventicler to be transported; or neglect to distrain and sell the goods and chattels of such offendor for the levying of such sums of money as shall be imposed upon them for the first and second offence; in such cases the officer so offending for his neglect shall forfeit Five pounds, the one moiety to the King, the other moiety to him that will sue for the same in any of His Majesty's Courts of Record. 16 Car. 2. cap. 4. If any person be at any time sued for putting in execution any of the powers in the Act against seditious Conventicles, such person shall and may plead the general issue, and give the special matter in evidence; and if the Plaintiff be nonsuit, or a verdict pass for the Defendant, or if the Plaintiff discontinue his Action, or if upon demurrer Judgement be given for the Defendant, every such Defendant shall have his or their treble Costs. 22 Car. 2. ch. If any person of the age of Sixteen years and upwards, being a subject of this Realm, after the Tenth of May 1670. shall be present at any Assembly, Conventicle or Meeting, under colour of Religion, in other manner than according to the Liturgy of the Church of England in England, Wales, or Berwick upon Tweed: at which Conventicle there shall be Five persons or more over and besides those of the same Household, if in a house where a Family is residing, or if in a House, Field or place where no Family inhabits, than where Five persons or more are so Assembled, one or more Justices of the peace of the County, limit or division, etc. or the Chief Magistrate of the place where the offence is committed, are required upon proof to him or them made by Confession of the party, or Oath of two Witnesses, or by notorious evidence and circumstance of the fact, to make a Record of every such offence; And thereupon the said Justice, etc. shall impose upon every such offendor so convict, a fine of Five shillings for such offence, which Record to be certified to the next Quarter-Sessions of the peace. 2. And if the said person so convicted shall again commit the like offence, he shall for every such offence incur the penalty of Ten shillings, the said fines to be levied by distress and sale of the offenders goods and chattels, and in case of poverty, on the goods and chattels of any persons then convicted for the same offence at the same Conventicle, at the discretion of the Justices, etc. so as the sum to be levied upon one in case of poverty, of others exceed not Ten pounds upon occasion of one Meeting. And every Constable, Headborough, Tythingman, Churchwardens and Overseers of the poor, are required to levy the same accordingly, having first a Warrant, and forthwith to deliver the said moneys to the Justices, etc. of which one Third to be to the King, another Third to the Poor of the parish where the offence was committed, and the other Third to the Informers and such persons as shall be diligent in the discovery, dispersing and punishing of the said Conventicles. 3. Every person that shall take upon him to Teach or Preach in any such Meeting, etc. and shall be convicted as aforesaid, shall forfeit for the first offence Twenty pounds, to be levied as aforesaid: And if he be a stranger, and his name and habitation not known, or is fled and cannot be found, or in the judgement of the Justices, etc. shall be thought unable to pay the same, the said Justices, etc. are required to levy the same by warrant upon the goods and chattels of any person present at the same Conventicle, the money so levied to be disposed as aforesaid; and for the second offence shall incur the penalty of Forty pounds, to be levied and disposed as aforesaid. 4. Every person that shall suffer any such Conventicle or Meeting, etc. to be held in his or her House, Outhouse, Barn, Yard, or Backside, and convicted thereof, shall forfeit Twenty pounds, to be levied as aforesaid; and in case of his or her Poverty, upon the goods of any convicted of being present at the same Conventicle. 5. Provided no person shall pay above Ten pounds in any one Meeting, in regard of the Poverty of any other. 6. Any offendor aggrieved, may within one week after the penalty paid or levied, appeal in writing to the next Quarter-Sessions, to whom the Justices, etc. that convicted the offendor, are to return the money, and certify the evidence upon which the conviction past, whereupon such offendor may plead and have his Trial by a Jury. And if such Appellant shall not be acquitted, he shall pay triple Costs; and no Court but the Quarter-Sessions shall meddle with Causes of Appeal upon this Act. 7. Upon the delivery of such Appeal, the Appellant shall enter into a Recognizance to prosecute with effect, or else the Appeal to be void. 8. The Justice, Justices of the peace, etc. or the Constables by warrant, may with what aid or force they shall think fit, after refusal, break open and enter into any house or place where such Conventicle shall be held, and take into custody the persons there unlawfully Assembled; and the Lieutenants, Deputy-Lieutenants, or any Commissioned Officer of the Militia or other His Majesty's Forces with horse and foot, and also the Sheriffs and other Magistrates and Ministers of Justice upon Certificate to them made of such unlawful meeting, are required to repair to the place where they are so held, and dissolve or prevent the same, and take into their custody such persons so assembled as they shall think meet. 9 The dwellinghouse of a Peer, where his Wife is resident shall not be searched, but by immediate Warrant from the King, or in the presence of the Lieutenant, Deputy-Lieutenant, or Two Justices, of which one of the Quorum. 10. If any Constable, Headborough, Tythingman, Churchwarden, or Overseer of the Poor shall know or be informed of any such Meetings or Conventicles within his precincts, parish, etc. and shall not inform some Justice of peace or chief Magistrate, but omit the performance of his duty in the execution of this Act, and thereof be convicted, shall forfeit Five pounds; and every Justice of peace or chief Magistrate so offending shall forfeit an Hundred pounds, the one moiety to the Informer. 11. If any person be sued for putting this Act in execution, otherwise than by Appeal as aforesaid, he may plead the general Issue, and upon a Nonsuit or Verdict passed for him, recover triple Costs. 12. This Act and all clauses therein shall be construed most largely and beneficially for the suppressing of Conventicles, and justification of all persons employed in the execution of this Act. 13. Provided every offence against this Act must be prosecuted within three Months, and no person punished by this shall be punished by any other Law. 14. Aldermen of London have the same power as Justices, and liable to the same penalties for neglect of their duties. 15. A Feme-Covert offending, and cohabiting with her Husband, the penalties of Five and Ten shillings shall be levied upon the goods of the Husband. 16. No Peer shall be attached, or imprisoned by virtue or force of this Act. 17. This Act shall not invalidate His Majesty's Supremacy in Ecclesiastical affairs. CHAP. X. The Churchwardens Office. THe antiquity of the Office of a Churchwarden, when first they received that title is very uncertain; but so Ancient it is, that some are of opinion, that 87. years after Britain had received the Christian Faith, which most Historians do agree was planted here in the Reign of King Lucius, in the year of CHRIST 180. who is hitherto styled the first Christian King of this Isle; and that Dionysius in the year 267. did divide both in Rome and other places to Bishops their Dioceses, and Parishes, Churches and Churchyards to Priests, Vicars and Curates; but whether at that time, or how long after Churchwardens were instituted, is not certainly known. But all Authors do agree that they are very ancient Officers, and Mr. Lambert saith in this Duty of Churchwardens, pag. 46. That these Churchwardens of Parishes are at the Common Law taken in the manner of a Corporation, 12 H. 7. ult. that is to say, Churchwardens at the Common Law are persons enabled by that name, to take movable goods or chattels, and to sue or be sued at the Law concerning such goods for the use and profit of their Parish. Lib. Intrat. fol. 576. A man may in his life time give, or in his last Will bequeath, money or other movable things to the Churchwardens or Parishioners, either for the repairing of their Parish-Church, or for the buying of Books, Communion-Cups, or linen Clothes, or other decent Ornaments or Furniture for the Church; and it is not needful in such a Gift for a man to use express words or writing. 11 H. 4.12. 8 H. 7.12. If a man buy a Bell and hang it up in the Steeple, or do make a Pew and set it up in the Church, and do neither make any word or writing thereof, yet by this is the Bell or Pew dedicated or given to the Church. 37 H. 6.30, & 34. 11 H. 4.12. The Churchwardens have no Action at the Common Law to recover a Legacy, nor any thing which they never had; but if any goods or ornaments of the Church be once in their possession and custody, they may maintain an Appeal of Robbery against him that stealeth them, and an Action of Trespass against him that shall wrongfully take them away, although it be the Vicar or Parson himself; and the damages that shall be recovered thereby shall be to the use of the Parish, and not to their own use. Fitz. Nat. Br. 91. K. But if those Churchwardens (from whom the Goods were so taken) shall happen to die before any Action by them brought for the Goods, the succeeding Churchwardens shall have an Action for the same Goods. Canon. Ecclesiastic. 89, 90. In the Book of Constitutions and Canons Ecclesiastical, agreed upon in the Synod begun at London anno Dom. 1603. and in the first year of King James, it is appointed that Churchwardens, Quest-men, Sidemen, or Assistants in every Parish, shall be chosen by the joint-consent of the Minister and the Parishioners if it may be; but if they cannot agree upon such a Choice, than the Minister shall choose one, and the Parishioners another: and without such a joint or several Choice none shall take upon them to be Churchwardens; neither shall they continue any longer than one Year in that Office, except they be chosen again in like manner: and they are to be yearly Chosen in Easter-week. But notwithstanding this Canon, where there is an ancient Custom in any Parish for the choice of Church vardens contrary to the Canon, in such case the Custom is to be observed before the Canon; as shall be instanced in several Cases. viz. The Parishioner Case of Rovenden in Kent. Rolls Cases, part 2. fo. 287. P. 5 Jac. B.R. If the parishioners of a Parish have used time out of mind, etc. to choose one Churchwarden, and the Parson or Vicar another, and afterwards a Canon is made, that the Vicar shall elect two, and he do so accordingly; and the Parishioners elect one, according to their custom, and the Ordinary disallows him, and confirms the other two chosen by the Vicar, in this case a Prohibition shall be granted. Tr. 7 Car. 1. B. R. betw. Shirley and Brown, Rot. 1391. Rolls 2 part, fol. 287. A Prohibition was granted against a Churchwarden chosen by the Parson of St. Magnus by London-Bridge by force of a Canon, upon a surmise that the Parish had a custom to choose two Churchwardens. Warner's Case, B. R. P. 17 Jac. The like was granted against a Churchwarden chosen by the Parson of St. Alhallows, London. P. 5 Jac. Cro. 2. part Rep. The Case of the Parishioners of Walbrook, London. P. 15 Car. 1. B. R. The like against a Churchwarden chosen by the Parson of St. Thomas in London, Cro. 3. part, Evelyn's Case. Pasc. 4. ca 1. B. R. rot. 420. Rolls Cases, 2. part, fo. 287. The like granted between Draper and Stone, for Abchurch in London. An Attorney cannot be made a Churchwarden; but if he be put in, and refuse, and be sued in the Spiritual Court, he may have a Prohibition. Wilson's Case, P. 14 Car. 1. B. R. and Baker's Case, Tr. 15 Car. 1. B.R. Rolls Cases, 2. part, so. 272. 15 Car. 2. cap. 5. All Vestrey-men or members of any Vestrey within any parish in London, Westminster, Borough of Southwark, and Bills of Mortality; and in all other Cities, Boroughs, and Towns-corporate in England, where select Vestries are used, are within one Month after their Election, before the respective Archbishop, Bishop, Ordinary, Vicar-general, or Chancellor of the Diocese, to make and subscribe as followeth, viz. I A. B. do declare, That it is not lawful upon any pretence whatsoever, to take up Arms against His Majesty, and that I do abhor that Traitorous position of taking Arms by His Majesty's authority against His Person, or against those that are Commissionated by him: And that I will Conform to the Liturgy of England, as it is now established: And I do declare, That I hold there lies no obligation on me, or on any other person, from the Oath commonly called, The Solemn League and Covenant, to endeavour any change or alteration of Government either in Church or State: And that the same was in itself an unlawful Oath, and imposed upon the subjects of this Realm against the known Laws and Liberties of this Kingdom. Stat. idem. He that refuses to make this Subscription within the said time, is ipso facto deprived of his place of Vestry-man, and a new one is to be chosen in his stead; and if such new one also refuse to subscribe, or if such person who shall have right of Election, shall not Elect within one Month after the vacancy, the Archbishop, Bishop, or Ordinary of the Diocese, may under his hand and seal Elect a discreet person of the Parish, who after such Subscription is to stand. This Act is to continue till the end of the first Session of the next Parliament. Canon 90.5 Ed. 6. ch. 1. The Churchwardens are diligently to see that all the Parishioners duly resort to their Parish Church on Sundays and Holydays, and there continue the whole time of Divine Service; and none to walk, or stand idle, or talking in the Church, Church-yard, or Church-porch during that time; and all such as shall be found slack or negligent in resorting to the Church, (having no great or urgent cause of absence) they shall earnestly call upon them; and if they amend not after due Admonition, they must present their names to the Ordinary of the place. 1. El. ch. 1. Hobart's Rep. fo. 97. If the Churchwardens find any person absent from the Church upon Sundays or Holidays in the time of Divine Service, Preaching or other Holy exercise, such person is to pay Twelve pence to the use of the poor. And this extends as well to all Women Covert, as to other persons; or the Churchwardens may present such offenders in the Ecclesiastical Court; but they must not pay Twelve pence, and be Presented too. The same Forfeiture is against all such as open their Shops, or work on Holidays; which if it were duly put in execution, the poor might be better provided for, but I doubt too many Officers are guilty thereof themselves. 4 Jac. ch. 5. If the Officers find any tippling in any Inn or Alehouse in the time of Divine Service, than they forfeit 3. s. 4. d. more for Tippling, besides the Twelve pence for being absent from the Church: And the Master of the house that suffers them to drink forfeits Ten shillings, which forfeitures are to the use of the Poor. Can. 88 The Churchwardens or Quest-men & then Assistants shall suffer no Plays, Feasts, Banquets, Suppers, Church Alice, Drink, Temporal Courts or Leets, Lay-Juries, Masters or any other Profane usage to be kept in the Church, Chappel or Church-yard; neither the Bells to be rung superstitiously upon Holidays or Eves abrogated by the Book of Common Prayer, nor at any other times without good cause to be allowed by the Minister of the place and by themselves. Canon 50.85. Neither the Minister, Churchwardens, nor any other Officer of the Church shall suffer any man to Preach within their Churches nor Chapels, but such as by showing their Licence to Preach, shall appear unto them to be sufficiently authorized thereunto. And the Churchwardens and Quest-men are also to see that in every meeting of the Congregation the peace be well kept; and that all persons Excommunicated and so denounced, be kept out of the Church. Finch, lib. 2. ch. 17. pag. 179. Rolls Cases, 1. part, fo. 393. Although, as I have said before, the Law doth make Churchwardens a kind of Corporation, and enables them by that name to take movable Goods and chattels, and to sue and be sued at Law concerning such Goods for the use and benefit of their Parish; yet they cannot take an Estate of Lands to them by name of Churchwardens; for if a Feoffment be made to the use of the Churchwardens of H. this use is void, for they have no capacity to take such purchase. Neither can Churchwardens prescribe to have Lands to them and their successors, for they are no Corporation to have Lands, but for Goods of the Church only. If a Bell be broken, the Churchwardens may have an Action against him that broke it, and shall recover damages, which shall be to the use of the Parish, and not to their own use. The Churchwardens have no such property in the Goods of the Church, as thereby to have power to give, sell, release, hurt or impair them, without the assent of the Sidemen or Vestry. Finch. lib. 2. ch. 17. pag. 179. If the Churchwardens shall give, or impair the goods of the Church in their custody, the Parishioners may choose new ones, who may have an Account against their predecessors. Trin. 21 Jac. Ban. Regis. Rolls Cases, 1. part, fol. 393. If the Organs be taken out of the Church, the Churchwardens may bring an Action of Trespass for the same; for the Organs belong to the Parishioners, and not to the Parson: and therefore the Parson cannot sue the party in the Ecclesiastical Court that took them. 10 H. 4 fol. 9.8 H. 6. fol. 9 If the Walls, Windows or Doors of the Church be broken down, or the Trees in the Churchyard be cut down, or the Grass thereof be eaten up, in this case the Parson or Vicar, and not the Churchwardens, shall have an Action for it. A Parson may bring his Action for breaking and entering into his house and close, when it is the Church and Church-yard. Mich. 16 Jac. Com. B. Rot. 716. Smith and Pannel's Case. If the Churchwardens present in the Ecclesiastical Court, That one A. B. one of their Parishioners is a Railer, and sour of Discord amongst his Neighbours, in such case there lies a Prohibition; for this belongs to the Leet, and not to the Spiritual Court, unless such Railing were in the Church or Church-yard. If the Churchwardens sue in the Ecclesiastical Court for a Churchway which they claim to belong to all the Parishioners by prescription, a Prohibition lies, for this is a Temporal cause. If the Churchwardens of H. sue R. A. in the Ecclesiastical Court, for that he and all those whose Estate he hath in such an House, etc. at the Perambulation or Procession of the Parishioners of the Parish, did use to provide a Refreshing for them, with Bread, Cakes, Cheese, and Ale, etc. and suffer them to rest there; in this case a Prohibition will be grauted, for that they claim it in the nature of a Corrody. A Corrody was a reasonable allowance of meat, drink, bread, money, clothing, lodging, and such like sustenance; which every Founder of Abbeys, Priories, Nunneries and other Houses of Religion had in the same Houses when they were standing; for his Father, Brother, Cousin or other man that he would appoint should take it, if it were a house of Monks; and if he were a Founder of a house of Nuns or Women, than the same for his Mother, Sister, Cousin or other woman that he would direct thither: And always this was provided for, that he that had a Corrody in a house of Monks, might not send a Woman to receive it; nor where a Corrody was due in a Nunnery, there it was not lawful to send a Man to receive it; for in both cases such Presentation was to be rejected. The Churchwardens are to look to the repair of the Seats in the Church, but the disposing of the Seats in the Body of the Church belongs of common right to the Ordinary of the Diocese, so that he may place and displace whom he pleases, except in some cases. For, the Ordinary hath nothing to do with the Seats in the Chapels belonging to the houses of Noble men. And if a man and his Ancestors, and all those whose Estate he hath in a certain Message, have used time out of mind to repair an Isle of the Church, and to sit there, and none else; in such case the Ordinary cannot displace him, because he hath it by Prescription, for a reasonable consideration. If a man prescribe that he and his Ancestors, and all those whose Estate they had in a certain Message, did use to sit in a certain Seat in the body of the Church time out of mind, in consideration that he and they have used time out of mind to repair the said Seat, if the Ordinary remove him from such Seat, a Prohibition may be brought; for the Ordinary hath no power to dispose of it: for it is a good Prescription, and by intendment a good consideration for the same. But if a man prescribe to have a Seat in the body of the Church generally, without consideration to repair the same, in such case the Ordinary may displace him. 37 H. 6.30. 11 H. 7.27. Canon 20, 70, 80, 81, 82, 83, 84, 85. The Churchwardens are to see that the Church and Churchyard be well repaired and kept clean; and they are to provide Books of Common Prayer, Books of Homilies, a Parchment-Book for Registering of Christen, Weddings and Burials in; Fonts, Pulpits, Tables, Chests for Alms, Communion-Cups, Ornaments and other Furniture, and a Chest with three Locks and Keys for putting the same in: And they are to provide Bread and Wine for the Sacrament, according to the number of the Communicants. And they may Rate the Parish for money to defray their Charges. Their Rates are to be done by the Churchwardens with the assent of the greater part of the Parishioners, and upon a general warning given before they meet for that purpose; And the Ecclesiastical Court hath cognizance of the reparation of the Body of the Church. Co. 5. Rep. fo. 67. If a man dwell in one Parish, and have Lands in another Parish which he occupies there, he may be charged for such Lands for the Reparation of the Church of the Parish where the Lands lie. Co. ibid. If an Inhabitant of one Parish lease out his Lands which he hath in another Parish, reserving Rend, than he shall not be charged in the Parish where the Lands lie, because there is a parishioner and inhabitant who may be charged. If a man live in one Parish and occupy Lands in another Parish, he shall not be charged in that Parish where the Lands lie for the Ornaments of the Church according to his Land; for the Inhabitants only ought to be Rated for them. Neither can a man be charged in the Parish where he doth inhabit, for the Lands which he occupieth in another Parish, towards the Reparation of the Church in the Parish where he liveth; because than he might be twice charged, for he may be charged in the Parish where the Land lies. M. 13 Jac. C. B. If there be a Chapel of Ease within a Parish, and one part of the Parish have used time out of mind to repair the Chapel themselves without the rest of the parishioners, and there to hear Service and Marry, and all other things, but only that they Bury at the Mother-Church; notwithstanding they must contribute to the reparation of the Mother-Church. If some parishioners be Rated and others are not, and those who are rated are sued in the Ecclesiastical Court, they must plead this matter in this Court, for they cannot have a Prohibition. Where there are five Bells in a Church, and the major part of the parishioners agree that there shall be made a sixth Bell, which is made accordingly, and they make a Rate for the payment of it, this shall bind the remainder of the parishioners though they did not agree unto it; otherwise any obstinate persons might hinder any thing intended, and what is fit for the Ornament of the Church. Heckfield and Mattingly, etc. Every man ought to be rated according to his personal Estate, and not according to his Lands for the Goods and Ornaments of the Church; and by a Land-rate for Church-reparations, though the occupier of the Lands live in another Parish. These things are accounted Church-reparations, and are to be performed by a Land-rate, viz. The Walls of the Church and Steeple, the Churchyard Walls or Rails; the Windows and Barrs of Iron, and Glass, the Roof of Timber, with Laths, Nails, Prigs, Dogs and Bolts of Iron, the covering of Lead, Tyle, Slates or Shingles, the Floor with Stone or Paving-Tyle, the Doors with Locks, Keys, ridges, Hooks and Nails; the furniture of the Steeple, with Stairs, Floors, Bells, Wheels and Ropes; the Pulpit, and the Pews and Seats not made by private men. These following are to be rated on the Inhabitants of the Parish, and not upon out-dwellers, viz. The Communion-table and cover thereof, the Communion-cups, the Bread and Wine for the Communicants, the Bible and other Books appointed to be in Churches, the Washing of the Communion-clothes, Candles for lecture-days, the Surplice, Pulpit-cloth and Cushion, the Clerk and Sexton's wages, and expenses of the Churchwardens and Sides-men about the Parish-business. The Churchwardens are to join with the Constables in making of Rates for the Relief of the poor maimed Soldiers and Mariners, and for conveying Prisoners to the Gaol, and to execute Warrants for the same. 14 Car. 2. ch. 2. The Churchwardens are to join with the Constables in the choosing of Surveyors for the Highways, and in the setting down of days for the work, and in the oversight of the High-Constables Account for the money they do receive upon any Forfeitures about the Highways; And they may with the aid of two Justices (one of the Quorum) force High-Constables to account for and pay in what money they have received forfeited for default of Highways; And to execute the Justice's warrants for the penalties and forfeitures about cleansing the Street and repairing the Highways. 18 Car. 2. ch. 4. The Churchwardens and Overseers of the poor are to execute the Justices Warrant for levying the penalty of Five pounds upon the party's Goods that is not Buried in Woollen, which penalty is to be employed to the use of the Poor. 14 Cor. 2. ch. 2. the Churchwardens in London, Westminster, and Borough of South-wark, etc. upon every Tuesday or Wednesday in Easter-week, together with the Constable, Overseers of the poor, and Surveyors of Highways in every Parish respectively, or the greater number of them; giving notice, or calling together such other inhabitants of their Parishes as have formerly born the like Offices, they or the greater number of them are to make choice of, and shall nominate and appoint two or more able persons that are Tradesmen of their parish to be Scvengers for the Streets, Lanes, and other open passages of each Ward or division within the said Parish for the Year next following, and until others be chosen and settled in their places. Canon 89. The Churchwardens at the end of their Year, or within one Month after at the most, are before the Minister and Parishioners to give up a just Account of their Receipts and Disbursements; and at their going out of their Office they are to deliver up to the Parishioners what Money or other things of right belonging unto the Church which they have remaining in their hands, that it may be delivered over by them unto the next Churchwardens by Bill indented. If the Churchwardens refuse to do this, they may be presented at the next Visitation-Court for it, or the succeeding Churchwardens may bring their Action of Account against them at the Common Law, and compel them to it; and in this account they shall be allowed their needful Disbursements and Expenses about the Parish business. Canon 116. The Churchwardens, Questmen or Sides-men shall not be bound to exhibit their Presentments about once a Year where it hath been no oftener used, nor above twice a year in any Diocese whatsoever, except it be at the Bishop's Visitation; for the which Presentments of every parish Church or Chappel, the Register of the Court where they are to be exhibited shall not receive above Four pence in one Year, under pain of Suspension from the execution of his Office, the space of one Month for every offence toties quoties; But the Churchwardens may voluntarily present oftener if they please. Canon 117. No Churchwardens, Questmen or Sides-men shall be called or cited but only at the time or times before limited, to appear before any Ecclesiastical Judge whatsoever, for refusing at other times to present any faults committed in their Parishes, and punishable by Ecclesiastical Laws; neither shall they or any of them, after their Presentments exhibited, at any of those times be any farther troubled for the same. Except it evidently appear that they did willingly and wittingly omit to present some public crime or crimes as they knew to have been committed, or could not be ignorant that there was then a public fame of them; or unless there be very just cause to call them to explain their former Presentments: And in case of wilful omission, their Ordinaries shall proceed against them in such sort, as in causes of wilful Perjury in a Court Ecclesiastical, it is already by Law provided. Canon 113, 118. One of the two times of Presentments is always to be about a week or fortnight after Easter, at which time also the old Churchwardens are to leave their office, and new ones are to come in; but the new ones are not to be Sworn till the old ones have given in their Presentments; and every Parson or Vicar, or their Curates in their absence, are to join in the presentment with the Churchwardens, etc. and if the Churchwardens refuse to present, than every such Parson and Vicar, or in their absence their Curates may themselves present to their Ordinaries at all such times, and when else they shall think fit. The sum of the Articles usually given to the Churchwardens to make their Presentments upon are these, viz. 1. Whether their Church and Chancel, Bells and Ropes be in good repair, and the Ten Commandments, Lords Prayer and Creed drawn out in fair Letters, the King's Arms set up, Assessments made for the Repair of the Church, and who refuses to pay? If they have a Font, Communion-Table, Carpet, Tablecloth, Flagons with Cups and Cover for Bread and Wine, a Reading-Desk, a Pulpit with a Cushion and Covering for it, a fit Common-Prayer-Book of the largest volume, the Bible in folio of the last Translation, with a Book of Homilies, and Book of Canons, and a Surplice? If the Tombs, Monuments and Grave-stones be safely kept from removing and breaking? A Book of Parchment for Registering Christen, weddings, and Burials, etc. a Chest with three locks to put the same and the Church-Ornaments in, with a Box for Alms, and a Table of degrees Prohibiting Marriage hung up in the Church? If the Parsonage-house and Outhouses be in good Repair, and the Churchyard well fenced to keep out Swine? etc. 2. Whether the Parson, Vicas, or Curate read the Common Prayer at Morning and Evening Service, wear his Surplice, bid days, Preach every Sunday, or read an Homily, Catechise, observe the Fifth of November, Thirtyeth of January, Twentyty-ninth of May, and Second of September; and observe Perambulations, or going the Bounds in Rogation-week, preach sound Doctrine, and vent no Sedition against the King or Government; celebrate the Lords Supper three times every Year at least, whereof at Easter for one; Baptise Infants with Godfathers and Godmothers, visit the Sick and pray with them, Bury the dead according to the Book of Common Prayer, Mary none clandestinely, Preach in his Gown, be a man of a sober and chaste life, a Peacemaker amongst his Neighbours, and one that takes care to reduce Sectaries. Recusants, Separatists and Refractory Parsons to the obedience and doctrine of the Church, and reads the book of Canons to the people at least once every Year, and the 39 Articles Twice every year? 3. Whether all their Parishioners of due age resort to the Church to Divine Service, behave themselves reverently there, kneel, stand up, and make Answer to the Rubric of the Common Prayer book? whether any work, or sell wares on Sundays or Holydays, or whether Vintners, Victuallers, Innkeepers or others to receive any to drink in their houses in the time of Divine Service? Whether any Mary within the Degrees forbidden, or be Adulterers, Swearers, Blasphemers, Drunkards? If any above Sixteen years of age do not receive the Lords Supper three times a year, whereof Easter to be one? If any keep their Children Unchristned, Women that come not to be Churched, or any bring not their dead to be Buried after the Service of the Church? Or if any be Married without Banes or Licence at unlawful hours? 4. Whether their Parish-Clerk and Sexton (if they have any) be duly chosen, can write and read, be of an honest life, and make the Responses to the Hymns and other Suffrages? And if the Schoolmaster, Physician, Chirurgeon, and Midwife (if they have any) Teach or Preach without Licence? If the Churchwardens be duly chosen according to the Canon and Custom? etc. CHAP. XI. The Office of the Overseers of the Poor. ST at. 43 Eliz. ch. 2. 21 Jac. chap. 28. The Overseers of the Poor are to be chosen yearly and joined with the Churchwardens of the Parish, in the oversight and ordering of the Poor of the Parish; They are to be chosen by two or more Justices of the peace, (one whereof to be of the Quorum) who are yearly under their hands and seals, at Easter or within one Month after, to appoint four, three, or two substantial Householders, according to the greatness of the Parish, to be joined with the Churchwardens to look to the Poor of the Parish. Stat. 43 Eliz. ch. 2. The major part of these Officers without the rest may do any thing belonging to their office, but they are to have the allowance and consent of two Justices of peace (one of the Quorum) to every thing they do about their office. And these Officers, or such of them as are not hindered by just excuse, (to be allowed by two Justices) are to meet monthly in the Church on Sunday after Evening Prayer, to consider of matters concerning their office, and to use all possible diligence in their office, on pain of Twenty shillings for every such default. Dalt. J. P. ch. 40. so. 98. The Parents that are able to work, and may have work, are to find their Children by their labour, and not the Parish; but if they be overcharged with Children, the Overseers are to help them, by putting out some of their Children Apprentices. Stat. 43 Eliz. chap. 3. Resolu. Judges, 16, 17. The Father, Grandfather, and the Children and Grandchilds of every poor impotent person not able to work, (being of sufficient ability) shall relieve such poor persons in such manner as the Justices of the peace of that County where such sufficient person dwelleth, at their general Quarter-Sessions shall Assess. And if such party refuse to abide the Order, they forfeit Twenty shillings for every Month to the Poor of the Parish; which forfeiture is to be levied by the Churchwardens and Overseers, or one of them, by Warrant from two Justices (one of the Quorum) by distress and sale of the offenders goods; and for want of Distress two such Justices may commit the offendor to prison, there to remain till the said Forfeiture be paid. But if a man marry a Grandmother that hath no Estate, the Grandfather-in-Law is not chargeable; but if she have an Estate caused without such Marriage, or that comes after Marriage by descent or otherwise to her, here he may be charged; but he can be charged in no case longer than his Wife lives. Bastard-childrens are not within this Law, neither can the Justices do any thing herein against a man that lives out of their County. Resol. Judges, 15. No Poor may beg but in their own Parish, and there by Licence of the Overseers of the poor; and they may not licence them to beg in the Highways there. 1 Jac. 7. No inhabitants may serve any Poor at their door but those of their own Parish, that have Licence from the Overseers of the poor to Beg, on pain of Ten shillings for every default. Stat. 43 Eliz. 2. The Overseers to make provision for a poor man that wants a house, (but not for a common Herdsman or Shepherd) with consent of the Lord of the Manor by writing under his hand and seal, either by themselves or with a Session's order, may erect a Cottage upon any part of the Waste of the Manor, and lodge inmates therein, notwithstanding the Statute of 31 El. 7. but such Cottage must not be any otherwise employed. Stat. 4.3 El. ch. 2. All such persons married or unmarried, having no means to maintain them, use no ordinary and daily Trade to get their living by, and such persons as can get no work, are to be set on work by the Overseers; and any one Justice of peace may send to the House of Correction or common Gaol such as shall not employ themselves to work, being appointed thereto by the Churchwardens and Overseers of the poor. Stat. 3 Car. 1. ch. 4. The Churchwardens and Overseers of the poor, with the consent of two or more Justices of the peace (one of the Quorum) may set up and use any Trade, Mystery or Occupation, for the setting on Work and better relief of the Poor of the Parish, Town or place where they are Overseers. 14 Car. 2. chap. 12. If a stranger come into a Parish, into any house under the yearly Rent of Ten pounds per annum, the Overseers may require sufficient security of him for the discharge of the Parish; and if he refuse, they may complain to the Justices of the peace within forty days after the parties coming to the Parish, and they may order him to give security, or otherwise remove him. Dalt. J. P. chap. 40. fol. 94, 95. The Overseers are to take and put out Apprentices, such poor men's children as are brought up idly and loosely, or such as are a burden and charge to their Parish: and they must have regad to put them to such Masters as are of ability and honesty, that shall not provoke their Apprentices to run away by hard usage; nor suffer them to consume their time without learning their Trade. And they are to put out their Children Apprentices while they are young and tractable, (so they be above seven years of age) for else by reason of their idle and base bringing up, they will hardly keep their service, or employ themselves to work. 7 Jac. ch. 3. These Apprentices are to be chosen out of the poorest sort of Children whose parents are least able to maintain them, and they must be above Seven, and under Fifteen years of age when they are first bound. 43 Eliz. chap. 2. Dalt. ch. 31. fol. 83. The Overseers are to have the consent of two Justices of the peace in the putting out of such Apprentices, and they may bind the Manchild till 24. years of age, and the Womanchild till 21. or till she be married, which shall first happen: And these Apprentices may be bound to Weavers, Masons, Dyers, Fuller's, or any other Trade as well as to Husbandry or Housewifery. Resol. Judges, 1633. Quest. 1. The Apprentices may be put to any man whom the Overseers and Justices shall think fit within the same Parish, or elsewhere in other Parishes within the same Hundred, either with or without money; But if the Child be young, and the party to whom they place it not very able, than they may give money if they please, as the party and they can agree. Resol. Judges, Q. 4. All men that have or may have use for Servants, as Knights, Clergymen, Gentlemen, and Yeomen, as well as Tradesmen are bound to take Apprentices; yea, though wealthy men Table themselves, or live so privately that they have no use for a Servant, yet they may be compelled to take them; or else to pay a sum of money for putting them Apprenprentices elsewhere; and if they refuse to pay the sum imposed upon them, two Justices of the peace may make their Warrant to levy the same by distress and sale of the offenders goods. Or the refuers to take Apprentices may be presented and indicted for the same, upon the Statute of 43 Eliz. ch. 2. Resol. Judges, Quest. 2. An Apprentice put to a man in respect of his Farm, when his Lease expireth the Apprentice shall go still with the Farm, if the first Master be so pleased; otherwise it is where an Apprentice is put to a man in respect of his abilities, or for other respects. And where any diffeences are between the Officers and the man that is to receive an Apprentice, about money, and what money shall be given, or otherwise; the Justices thereabouts, or in their defaults the Sessions must determine it. Dalt. J. P. ch. 40, & 31. fo. 96, & 78. If the parents of poor Children shall refuse to let their Children be put out Apprentices (without good cause showed) such Parents may be bound over by the Justices, to answer their said default; And if the Children shall refuse, the Justices may send them to the House of Correction, there to remain till they be content to be Bound and serve. Dalt. J. P. ch. 31. fo. 82. These Apprentices must be bound by Indenture, and not by any verbal Agreement; and the Indenture must be either between the Justices, Churchwardens, and Overseers or some of them, and the Apprentice on the one part, and him that takes the Apprentice on the other part. And he must be named by the name of an Apprentice expressly, or else he is no Apprentice, though he be bound. The form of an Indenture for a poor Child put out by the Parish. THis Indenture made the 25th. day of M. etc. Witnesseth, That R. H. and R. W. Overseers for the Poor in the Parish of H. in the County of S. and H.T. Churchwarden of the same parish; by and with the consent of A. H. Knight and Baronet, and F. T. Esq; two of His Majesty's Justices of the peace of the same County, have by these presents placed and bound J. G. (being a poor fatherless child) as an Apprentice with E. B. of H. aforesaid widow, and as an Apprentice with her the said E. B. to dwell from the day of the date of these presents, until she the said J. G. shall come to the age of 21. years, or be married, which shall first happen, according to the Statute in that case made and provided; by and during all such time and term the said J. G. shall the said E. B. her Dame well and faithfully serve in all such lawful business as the said E. B. shall put her the said J. G. unto, according to her power, wit and ability, and honestly and obediently in all things shall be have herself towards her said Dame and children and all the rest of the Family of the said E. B. And the said E. B. for her part, promiseth, covenanteth and agreeth, That she the said E. B. the said J. G. in the Art and skill of Huswifry, the best manner that she can or may shall teach and inform, or cause to be taught and informed as much as thereunto belongeth, and she the said E. B. knoweth; And also during all the said term to find and allow unto her said Apprentice meat, drink, linen, woollen, hose, shoes, washing, lodging, and all other things fitting or meet for an Apprentice. In witness whereof, etc. Stat. 1. Jac. ch. 25. 21 Jac. chap. 28. This Binding is as effectual to all purpoposes as if the Children were of full age, and did bind themselves by Indentures and Covenants; and all such as are bound by the Overseers as abovesaid may safely be received and kept as Apprentices by their Masters. Stat. 7 Jac. chap. 3. Such money as is given to put out poor Children Apprentices, is to be employed in Corporate-Towns by the Corporations and in other places by the Parson & Vicar, with the Constables, Churchwardens or Overseers of the Poor, or the most part of them; who shall employ the same accordingly on pain or forfeit 5. Marks each of th' 'em so making default, to be divided betwixt the Poor of the parish and the Prosecutor. Stat. idem. The party taking any money with such Apprentice shall give good security by Obligation to repay it again at the end of seven years next ensuing the date of the said Obligation, or within three months' next after the end of the said seven Years; and if such Apprentice shall die within 7. years, then within one Year after his or her death; and if the Master, Mistress, or Dame happen to die within 7. Years, then within one Year after their death; so as the money may be employed in placing the Apprentice with some other of the same Trade to serve out his time. Stat. idem. Money so given shall be employed within three Months after the Receipt thereof; And if there shall not be apt persons found in the places where it is given, to be Apprentices, it shall then be employed in the Parishes next adjoining by the parties that are trusted with it in the place where it was so given, and there also Bond shall be taken. Resol. Judges. If a Woman unmarried be hired weekly, monthly, half-yearly or yearly in one Parish, and there be begotten with Child, and then goeth into another Parish, and there is settled in service or otherwise for two or three Months, and then she is discovered to be with Child; in this case she and her Child shall be settled in the Parish where she than is, and must not be sent to the Parish from whence she came. Resol. Judges. If a Woman be delivered of a Bastard child in one Parish, and then go into another Parish with her Child, in this case the Child after it is nursed is to be sent to and settled in the place where it was born, and not to remain with the Mother. Stat. 43 Eliz. ch. 2. These Officers or the greater part of them (for performing their office) may raise weekly or otherwise by Taxation of every Parson, Vicar, and other occupier of Land, House, or Tithes; Coal-mines or saleable Underwoods' within the Parish, Town, etc. such a sum as they shall think fit. And this Rate they must have allowed and confirmed undr the hands of two Justices (one of the Quorum;) and by warrant from them or any two Justices they may levy the said Tax by distress and sale of the goods of the party refusing to pay, rendering the overplus to the owners; and in default of distress, two such Justices may commit the party to prison, there to remain without Bail till he pay it. These Rates ought to be well and truly made according to men's visible Estates, real and personal, within the place only, and not for any Estate elsewhere. These Rates must be set upon the Tenants and occupiers of Lands, and not upon the Landlords, living within or without the Parish; for the Tenant only is chargeable for the Land. Resol. Judges. The Parson having a full Tenth part of the profits of the place, may be rated to a Tenth part. The Rate or stock for Goods is thought reasonable to be set after the proportion of Lands, (viz.) an 100 Pound in stock to be rated after 5 or 6 Pounds a year in Lands. If any persons find themselves aggrieved in any Tax or other act done by the Overseers, or by the Justices of peace, they are to seek for relief at the Quarter-Sessions. CHAP. XII. The office of the Surveyors of Highways and Bridges. 14 CAR. 2. ch. 6. The Churchwardens, Constables or Tythingmen of every Parish, Town or Hamlett for the time being, are upon Monday or Tuesday in Easter-week, with the advice of the major part of the Inhabitants, to choose two or more inhabitants of the Parish, Town or Hamlett to be Surveyors of the Highways for the Year following, and they are to give notice thereof in writing to the persons chosen next Sunday after; and for default of such Choice, the Constables, Churchwardens, and inhabitants of every Parish, Town or Hamlett shall forfeit and lose Five pounds. After choice made of these Surveyors and notice given them, they are forthwith to take the Office upon them, on pain to forfeit Twenty shillings. 14 Car. 2. ch. 6. Highways must be sufficiently amended at the charge of the whole Town; and it is not enough for the Inhabitants to do their full six days work yearly, except their Ways be all well and sufficiently repaired thereby; for if all their said Ways be not sufficiently amened, the whole Town may be indicted for it; and if six day's work in the year will not serve to amend them, the Surveyors must appoint more days. The owner of Lands, if he be not the occupier thereof, ought not to be charged towards the repair of the common Highways; but the Tenant who occupies the Land is to be charged therewith. Dalt. J.P. ch. 26. fol. 68 The Surveyors are to see that the parishioners do their work on the days appointed, and that they observe these Rules, (viz.) every person having in his own occupation a Ploughland in Tillage or in Pasture in the same Parish, or keeping there a Plough or Draught, shall find and send on every day to the place appointed by the Surveyors, one Wain or Cart after the fashion of the Country provided with Horses, etc. fit for the Carriage, and with necessary Tools fit for the work; and with two able men, who are there to do such work with their wains, etc. as they shall be appointed (by the Surveyors) by the space of eight Hours every of the said six days, on pain of Ten shillings every day default is made. Stat. 2 & 3 P. & M. ch. 8. Every other Housholder, Cottager and Labourer of the Parish, Town, etc. (able to labour, and being no hired servant by the year) must by himself or some other able man, be then and there ready to work every of the said six days, by the space of eight hours as aforesaid; where they shall be appointed by the Surveyors, on pain to forfeit Twelve pence for every day they make default. 18 Eliz. ch. 9 All persons being chargeable but as Cottagers by the 2 & 3 P. & M. yet if they be in Subsidy 5 Pounds in Goods, or 40 Shillings in Lands, or above, they must find two able men to work every of the said six days. 2 & 3 P. & M. ch. 8. If any of the Carriages shall not be thought needful by the said Surveyors upon any of the said days, they may appoint in stead of a Team two able men to work as aforesaid, who shall not fail in pain that the party who should send them shall forfeit Twelve pence for every day that either of them makes default. 18 Eliz. ch. 9 He that shall occupy a Ploughland in tillage or in pasture, lying in several Parishes, shall be chargeable only in the Parish where he dwelleth, and he that occupieth several Plough Lands in several Parishes shall be charged in each Town or Parish where such Land lieth, (viz.) to find in each Town or Parish, one Cart furnished as aforesaid, though he be no inhabitant there. Co. on Lit. fo. 69. It is said that a Ploughland is not always of one content, but ordinarily it is so much as one Plough may plough in on eyear; which is on some Countries more, and in some less, according to the heaviness of the soil. Co. 4. Rep. fo. 37. b. & 9 Rep. fo. 124. A Ploughland or Carve-Land may contain House, Meadow, Pasture and Wood; and if one have so much of this as will keep a Plough, and yield Tillage for it, if part of it were eared, in this case it seems he is to send his Plough. Dalt. J. P. chap. 26. fo. 72. He that keepeth a Plough or Draught for carriage, although he occupy little or no Land, but carrieth or plougheth for other men, yet it seems he is to send his Cart to the Highways; and if a may keep only two Horses and a Cart for his own business, he is to come with his Cart and two Horses, with a Man to drive them. 14 Car. 2. ch. 6. If six days will not serve for repairing of the Highways, the Surveyors may appoint more, and charge all persons within their limits who are chargeable by the Law to come to the work; but the Surveyors are to pay them for their work for all the days above six days, according to the Rates of the Country; and if they cannot agree, the next Justice of the peace living out of the Parish is to determine the business between them. 5 Eliz. ch. 13. The Surveyors, if they see cause, for the amendment of the Highways, may take and carry away so much of the rubbish and smallest broken stones of any man's Quarray lying within the same Parish without leave of the owner, as they shall think needful; or gather the loo se stones lying dispersed in any man's grounds: But they may not without licence dig in any man's Quarry for new stones, nor take the great stones already digged; and if there be no such rubbish to be found in any man's Quarry within the said Parish, than they may enter into any man's several ground within the said Parish, lying near the place where the Ways are decayed, and there (if they see any hopes of finding materals fit for the reparation thereof) without leave of the owner they may dig for Sand, Stones, Gravel, etc. so that it be not in the Houses, Orchards, Gardens or Meadows of any man; they are not to come there without licence of the owner. And in such place where they may dig without leave, they are not to make a pit above ten yards in breadth or length; and they are to take care that the place be filled up again at the charge of the Parish within one Month after, upon pain to forfeit five Marks to the owner of the ground, to be recovered by Action of Debt. 14 Car. 2. ch. 6. The same power is granted to Surveyors to dig for Gravel, Chalk, Sand, Stones, etc. in any man's ground in the parish next adjoining to the place where the Ways are in decay, if there be not sufficient in the same parish: Provided it be not in the House, Garden, Orchard, Court, Yard, Park with Deer in it, or in the Meadow of such party, without paying any thing for the same Gravel, etc. only damages to the party for the carrying the same over his grass, etc. filling up the pits as is before mentioned, (5 Eliz.) within the same time, and under the same penalty. Stat. 5 Eliz. chap. 13.8 Eliz. chap. 10. If the owners of the grounds next adjoining to the Highways do not keep their Hedges low, and cut down their Trees and Bushes growing on the same Ways, they forfeit Ten shillings. And he that scowrs not his Ditches in the ground next adjoining to the ground that is next the Highway, that the water may pass the better out of the Highway, shall forfeit 12 d. for every Rod so left unscowred. Stat. 18 Eliz. chap. 10. If any scour his Ditch by the HIghways side, and throw the soil thereof into the highway, and suffer it to lie there six Months, he forfeits for every Load thereof 12 d. And the Surveyors are to make Sluices where such Banks have been heretofore made, for carrying away the water out of the Highway. Dalt. J.P. ch. 26. fo. 70. Every Survey or may cause any Watercourse or Spring of water being in the Highway (within their parish) to be turned into another man's several ditch or ground next adjoining to the said Way, in such manner as by the discretion of the Surveyors shall be thought meet. Stat. 18 Eliz. ch. 10. Wingate Abr. Stat. Tit. Highways. The forfeitures of the Act of 18 Eliz. 10. must be levied by the Surveyors for the time being (by warrant from the Justices before whom the party shall be convict) by distress and sale of goods; which forfeitures are to be employed towards the amendment of the Highways: and if the Surveyors neglect to do it within one year after the offence committed, than the Constables and Churchwardens by like Warrant may do it. Dalt. J.P. ch. 26. fo. 70. Stat. 5 Eliz. ch. 13. The Surveyors or one of them are to preent to the next Justice of peace every default upon the 2d and 3d of P. & M. ch. 8. and 5 Eliz. ch. 13. within one Month after it shall be made, on pain of 40 s. and the Justice is in pain of 5 l. to certify the same at the next Quarter Sessions; where the Justices are to inquire of the default, and set such Fine upon the offenders as they or two of them (one of the Quorum) shall think fit. 5 Eliz. 13. Rastall 199. The presentment of a Justice of peace in Sessions upon his own knowledge shall be a good conviction; upon which the Justices in Sessions or two of them (one of the Quorum) may assess a Fine as well upon a Verdict, but the offendor shall be admitted to his Traverse. Stat. 2 & 3. P. & M. ch. 8.5 Eliz. ch. 13.18 Eliz. ch. 10. The offences upon these Statutes are inquirable by Justices of the peace-in their Sessions, and Stewards in Leets; either of which have power to assess Fines at their discretions upon defaulters, (of which Fines, indented Estreats in the Sessions under the hand and seal of the Clerk of the Peace, in the Leet under the hand and seal of the Steward) shall be delivered within six Weeks after Michaelmas; one part of the Estreats to the Bailiff or High-Constable of the Liberty, and the other part to the Constables and Churchwardens of the Parish where the offenders live. Stat. 2 & 3 P. & M. chap. 8. These Estreats shall be a sufficient Warrant for the Bailiff or chief Constable of the Liberty to levy the said Fines by way of distress; and if no distress can be found, or the party do not pay the fine within Twenty days after the lawful demand thereof, he or they shall forfeit double so much; All which Fines and Forseitures are to be employed towards the mending of the Highways in the Parish where the offences are committed. Stat. 2 & 3 P. & M. ch. 8. The High-Constable or Bailiff shall between the First of March and Last of April yearly give an account to the Constables and Churchwardens, who have the other part of the Estreats of the Fines, of what Money they have received on pain of Forty shillings; and the Constables and Churchwardens have power to call the High-Constable or Bailiff before two or more Justices of the peace (one whereof to be of the Quorum) to give up his Account; who have power to commit him until he have satisfied all the Arrearages by him received, save Eight pence in the Pound for his own Fee, and Twelve pence in the Pound for the Clerk of the Peace, or Steward of the Leet. And the Contables and Churchwardens have the same power successively as their predecessors. 14 Car. 2. ch. 6. Every Survey or of the Highways shall within one Month after his Year is expired, yield up to the INhabitants of the Parish, Town or Hamlett at some public meeting appointed by the inhabitants a perfect Account of all Moneys he hath received and paid within the Year by reason of his said Office, and of whom; what sum to whom he hath paid the same, what Moneys are in Arrear for Fines, Forfeitures, Penalties, etc. and if any overplus be in his hands, he shall render the same to the next Surveyor for the use of the Parish, Town or Hamlett, to be disbursed in and about the Highways the year following. And if the Surveyor shall not make such an Account and payment, than two Justices near the Parish upon complaint may examine the business upon Oath, and upon default found in the Surveyor they may commit him to the Gaol of the County, City, etc. there to remain until he have made a true Account and payment. Stat. idem. All Justices of Assize, Oyer and Terminer, and Justices of peace are empowered to hear and determine all matters concerning charitable Gifts for the amending and ekeping in repair any common Highways, Pavements, Streets, etc. within their Commission; and to make Orders for the due employment of such Gifts, (except the Gift be made to the use of any College, Hall, Free-School or Hospital, who have proper Visitors of their own) and to determine all offences and defects in Surveyors concerning the same; and in ease any person be aggrieved by such Order, he may Appeal to the Court of Chancery as in case of a Decree made upon the Statute of Charitable uses. Stat. idem. No travelling Wain, Wagon, Cart or Carriage, wherein any Goods, Burdens or Wares shall be carried or drawn for hire, (other than such Carts and Carriages as are employed about Husbandry and managing of Lands, and in carrying of Hay, Straw, Corn unthreshed, Coal, Chalk, Timber for shipping, materials for Building, Stones of all sorts, or such Ammunition or Artillery as shall be for His Majesty's service) shall at any one time traule, be drawn or go in any public or common Highway with above seven Beasts, whereof six shall draw in pairs; nor with above eight Oxen, or six Oxen and two Horses: nor shall at any time carry above 2000 weight between the First of October and the First of May, (except such paticulars as abovesaid) nor above 3000. weight between the First of May and the First of October; nor above five Quarters of Wheat, Meal, Mesline, Rye, Pease, Beans, Tares; nor above eight Quarters of Barley, Malt or Oats; nor shall any Wagon, Wain or Carriage be employed for the said uses, the Wheels whereof are less in breadth than four Inches in the Tire, upon pain every owner of such Wagon, Wain or Carriage, Horse, Beasts or Oxen, shall for every of the said offences forfeit 40. Shillings, to be divided into three equal parts; one to the Surveyors of the Highways where any of the offences shall be committed, towards the repairing of the highways of the Parish there; the other part to the Overseers of the Poor of the Parish where the offence is committed, for the relief of the poor there; and one other part to him that shall discover and prosecute for the said offences. These Penalties are to be levied by distress of all or any the Horses, Beasts or Oxen, and to be distributed as aforesaid by the Constables, Surveyors of the Highways, and Overseers of the Poor of the parish where the offence is committed; and in case the Penalties be not paid within three days after distress, than the same to be sold, rendering the overplus, the charges of keeping and selling first deducted. Statutes for repairing particular Highways, viz. Stat. 39 El. ch. 19 For repairing the Highways in the Wild of Sussex, Surrey & Kent. Stat. 37 H. 8. chap. 3. For Huntington-Lane near to Chester. Stat. 14 H. 8. ch. 6. & 26 H. 8. ch. 7. For laying out new Highways in the Wild of Kent and Sussex. Stat. 1 M. par. 2. ch. 5. For the Causeway between Dorchester and Sherborn. Stat. 18 Eliz. ch. 10. For the King's Ferry in Kent. Statutes for particular Bridges. Stat. 18 H. 6. chap. 28. For making of Burford and Culhamford Bridge. Stat. 18 Eliz. ch. 17. & 27 H. 7. ch. 25. For the maintenance of Rochester Bridge. Stat. 18 Eliz. ch. 20. For the repair of the Bridges within a mile of Oxford. Stat. 23 Eliz. chap. 11. For the maintenance of the Bridges over Toss in Wales. Stat. 39 Eliz. chap. 23. For making and repairing of Newport and Carleon Bridges over the River Usek. Stat. 39 Eliz. ch. 24. For building and maintenance of a Bridge at Wilton upon Wye, near Ross in Herefordshire. Stat. 3. Jac. chap. 23. For making and repairing Chepstow Bridge. Stat. 14 Car. 2. ch. 6. For building and repairing Laycock and Rey Bridges in Wiltshire, and Stratford Bridge in Middlesex. By the same Act it is provided, That all Bridges shall have sufficient Walls or Posts, and Rails on each side thereof, four Foot high at the least; adn that the same be from time to time sufficiently kept and repaired. Pasch. 10 E. 3.28, 29. Coke 2 Part of the Institutes, fol. 701. Bridges are to be repaired by the whole County by common. Right, if it be not known who ought to do the same otherwise. Rolls Cases, 1. part, f. 368. If a man erect a Mill for his own particular profit, and cut a new Course for the Water to come to it, and makes a new Bridge over the same, and the King's subjects use to ride over the same as over a common Bridge, such Bridge ought to be repaired by him who hath the Mill, and not by the County; because he erected it for his own profit. Coke 2. part Instit. so. 700. If man which holdeth an 100 Acres of Land ought to repair a Bridge by tenure of the same, do alien 20 Acres thereof to one man, and 10. Acres to another man; in such case every owner or occupier of such Lands must be charged proportionably for their said Lands. 22 H. 8. chap. 5. Coke 2. part Instit. fo. 702, Dalt. J.P. chap. 13. fo. 41. If any. Bridge be wholly in a City or other Town-Corporate, the inhabitants of the same City or Town Corporate must repair it: And where such Bridge lies out of such City or Corporate-Town, the same must be made by the inhabitants of the Shire or Riding within which the same Shire shall be. And if part of a Bridge be in one Shire or Riding, City or Corporate-Town, and one part in another, than every of them shall be charged to make and repair such part as shall lie and be within their own limits. Crompt. 186. b. 43. Ass. Dalt. J. P. ch. 13. fo. 42. Such as are chargeable to repair a Bridge may enter upon any other man's land or soil adjoining, and lay their Stone, Lime, Timber or other things necessary there for the repairing and amending thereof, and the owner of the Lands shall have no Action therefore; for it is for the common profit. And the party that is chargeable to repair a Bridge, must also maintain the way at each end thereof, (although the soil be to another;) and if the ends be broken by the Watercourse, he must follow the Watercourse and mend the way. Stat. 22 H. 8. ch. 5. Dalt. J. P. ch. 13. fo. 4. Where a common Bridge in the King's HIghway is in decay, and that it cannot be proved or known, who, nor what Lands are chargeable to the repairing thereof, four Justices of the peace (one of the Quorum) within the Shire or Riding wherein such decayed Bridges be; and if they be in a City or Town-corporate, then four such Justices of peace there may within the limits of their several Commissions call before them the Constables, or two of the most honest Inhabitants of every Town and Parish within the Shire, Riding, City or Town-corporate wherein such Bridge or any parcel thereof shall happen to be; and the Justices (upon the appearance of the Constables or other inhabitants, and with their assents) may tax every inhabitant in any such City, Town or Parish within their limits, to such reasonable sum of Money as by their discretions they shall think convenient, as well for the repairing of such Bridge as also for the making and repairing of the Highways, by the space of 300. Foot next adjoining to the ends of any such Bridge. Coke 2. part Instit. fo. 704. This Taxation ought not to be made by the Justices without the consent of the Constables or inhabitants, nor by them without the Justices; and this Tax ought to be upon every inhabitant in particular, and not to be set upon the Hundred, Parish, Town, etc. for then one or few might be distrained upon the whole. Stat. 22 H. 8. ch. 5. Dalt. J. P. ch. 13. fo. 40. Coke 2. part Instit. fol. 701, 702. Where a Franchise, City or Borough is a County of itself, and hath not four or more Justices of the peace, (whereof one or more are of the Quorum) in this case no other Justices of the peace of any Shire or County have any power to meddle there by this Act; but such decay must be amended by the Common Law, by such remedies as they were anciently before the Statute of 22 H. 8. supra. Coke 2. part Instit. fo. 704. Dalt. J. P. ch. 18. fo. 40. The Justices of peace after the Taxation is made, shall cause the names and sums of every particular person so Taxed, to be written in a Roll indented in Parchment, for every Hundred, and sealed with their Seals. Coke part idem, fo. 705. Dalt. J.P. ch. & fol. idem. 22 H. 8. ch. 5. The Justices may make two Collectors of every Hundred to gather the Money so taxed; which said Collectors having received one part of the Roll thereof indented, have power to gather all the Money therein mentioned; and if refusal be made upon demand, then to distrain and sell such distress, rendering the overplus to the owner, if any be. Stat. 22 H. 8. ch. idem. Dalt. ch. & fo. ead. The Justices are likewise to appoint two Surveyors, who (from time to time as often as need shall require) shall see such decayed Bridges and Ways repaired and amended, to whose hands the Collectors must pay the money by them received. Stat. idem. Dalt. idem. The Collectors and Surveyors, and their Executors and Administrators and every of them shall from time to time make a true Account to the said Justices of peace, of the Receipts, Payments and Expenses of the said sums of Money; and if any of them refuse so to do, than the said Justices of peace from time to time at their discretions may make out Process against the said Collectors and Surveyors, their Executors and Administrators by Attachment, Precept or Warrant under their hands and seals, returnable at their general Sessions of the Peace; and the said Justices may allow such reasonable Costs and charges to the said Surveyors and Collectors upon their account, as to them shall seem meet. CHAP. XIII. The Office of the Distributors of the Provision for the destruction of noisome Fowl and Vermin. STat. 8 Eliz. ch. 15. & 14 Eliz. ch. 11. In every Parish the Churchwardens with six other parishioners (to be required by the Churchwardens) shall yearly in one of the Holydays in Easter-week, and at every other time when it shall be needful, tax and assess every person having the possession of any Lands or Tithes within that Parish, to pay such sums of money as they shall think meet, according to the quantity of such their Lands or Tithes; and if any person do deny to pay the same, or do not pay the same within fourteen days after request made by the Churchwardens or one of them, than such person shall forfeit for every time Five shillings; which (together with the sum assessed) shall be levied by distress of the goods and chattels of such person, to be taken by the Churchwardens or one of them; the same distress to be ordered and used as distresses taken for Amerciaments in any Leet. And as well the said sums as pepalties (if any of them be so levied) shall be yearly by the said Churchwardens or one of them for the time being, delivered by Bills indented to two honest and substantial persons of the said Parish, which shall be elected and appointed by the Churchwardens, and shall be named, The Distributors of the Provision for the destruction of noisome Fowl and Vermin. And if the said Churchwardens, six persons or Distributors, or any of them shall refuse or make default in the execution of any part of this Act, contrary to the form thereof, than such offendor shall forfeit for every default Five pounds; the one moiety to the King, the other to him or them (using Tillage yearly within the same Shire) that will sue for the same in any Court of Record. The Reward of those who destroy the said noisome Fowl and Vermin, viz. These Distributors being so chosen, and having money, shall give and pay of the same money so to them delivered to every person that shall bring to them any Heads of old Crows, Pies, or Rooks taken within the several Parishes, for the Heads of every three of them, One penny. For the heads of every six young Crows, Choughs, Pies, or Rooks, One penny. For every six Eggs of any of them, One penny. For every 12. Stairs heads, One penny. For every head of Merton, Hawks, Furse-kite, Mold-kite, Buzzard, Schagge, Cormorant, or Ringtayl, Two pence. And for every two Eggs of them, One penny. For every Iron or Osprayes head, Four pence. For the head of every Woodwal, Pie, Jay, Raven or Kite, One penny. For the head of every bird called the Kings-fisher, One penny. For the head of every Bulfinch or other bird that devoureth the Bud of Fruit-trees, One penny. For the head of every Fox or Grey, Twelve pence. For the head of every Fitchow, Polecat, Weasel, Stoat, Fair, Badge or Wildcat, One penny. For the head of every Otter or Hedgehog, Two pence. For the heads of every three Rats, or twelve Mice, One penny. For the heads of every Moldwarp or Want, an Half penny. For the heads of every which Birds and Vermin the said Distributors shall give and pay to the bringer of them as before is limited. And if upon any Account to be made in the end and determination of the office of any such Distributors, any money be remaining in their hands, it shall be by Bill indented delivered to those that shall succeed them in the said Office, to be by them distributed in manner aforesaid. This gives no Authority to use any Engine for the destruction of the Birds or Vermin, which shall disturb or destroy the building or breeding of Hawks, Herons, or Swans; or to the hurt of any Doves, or Deer, or Coney-warren; neither shall any thing be given to any person for the Head of any such Vermin or Fowl taken in any Park or Warren, nor for Stairs taken in Dove-houses, nor to the kill or bringing of the Head of any Kite or Raven killed in any City or Town-corporate, or within two Miles of the same. FINIS.