THE OFFICE OF A JUSTICE of PEACE, Together with INSTRUCTIONS, How and in what manner STATUTES Shall be Expounded. Written by W. Fleetwood, Esq; sometime Recorder of London. Since continued, with the late Acts and Ordinances abridged, relating to that Office. LONDON, Printed by Ralph Wood, for W. Lee, D. Pakeman, and G. Bedell, and are to be sold at their Shops in Fleetstreet, 1658. The Preface. PLutarch, the most noble and excellent Philosopher reporteth, that of Bulls flesh corrupted and rotten, be engendered Bees; and of Horse flesh, Hornets; and of Mans flesh, Serpents. Whereby, not onely appeareth the great diversity of Natures in the diversity of kinds, but also( which is no small wonder) how of that which is most made of and esteemed, is bread the most and vilest corruption; of that which in our eyes is the most beautiful work of Nature, springeth forth the foulest fruit that is or can be found in nature; no creature in this world is accounted more excellent then Man, and no monster in fight more ugly, and in nature more hurtful, then a Serpent. So that we see of the fairest, cometh the most foul; and of the best beloved, the most hated; of the most wholesome, the most venomous; and to be short, of the most fair in our eye, the filthiest in our judgement: whereby God giveth us to understand, that mischievous matter oft lieth hide in fair vessels; and no little ill, where we think to find great good. If this poisoned venom be in the body of Man, of which Serpents are engendered, shall we think that the mind is pure? No certainly. For although it bringeth not forth( being corrupted and rotten with Errors) Serpents, Adders, and Snakes; yet by the buds of the three, either it is as evil, or else much worse. One horrible Serpent we see daily engendered in the mind of mankind, through the poison whereof, I have known many Kingdoms, Countreys, Commonwealths, Cities, good Towns, Families and Housholds, brought to utter desolation. The Greek Poet Euripides in his Tragedies oftentimes calleth this Diaphonia, which is in latin Discordia, that is to say, unnatural agreeing of loving hearts; which being ruled by the square of Reason, ought not to be by any venom of the Mind, disservered or set at variance. The contrary whereof the Grecians call Omónoia, that is, Pax vel Concordia; which words, as Gesuerus, Egedius, and Calepine do define, come, and are derived of this word Pactio, which signifieth, idem placitum, idemque concessum; the effect whereof is none other, then that which men call Concordia, that is to say, the mutual, sure, and firm knitting together of every mans heart in one loving unity of mind. The ancient Sages of this Realm in many and sundry Arguments have often affirmed, that the Commonwealth of this Realm of England, doth consist in the due execution of the Laws; and therefore one great learned man in the proem of a certain Book of the Law, called The Assizes, useth this Philosophical sentence: Quod res nostra publica non consistit in divitiis, nec in honoribus, nec in potestatibus, sea praesertim in bonis Legibus. And that the true, just, and due execution of the Law, doth principally beget peace and concord; Ex quibus parvae res crescunt in majora, è contra vero maxima in nihilum dilabuntur. We red it written,( being daily subject to our eyes) that the Queens Highness most noble progenitors, Kings of this Realm, according to this first Article of their sacred Oath, received at their several Coronation, which is, Servabis Ecclesiae Dei, clero & populo pacem ex integro, & concordiam in Deo secundum vires tuas. Quibus Rex respondebat, Servabo. We have in very many of their Establishments and Laws, made in their general Parliaments, recorded and put in remembrance their fervent and great desire, to have both a perfect Peace and quiet Concord, to be kept and maintained within their Kingdoms, Dominions, and Shires: this doth appear by a Statute made by King Hen. 3. H. 3. called Ragman. Or, as by another Statute made by his most noble Son King E. 1. E. 1. in his Law, called West. 1. whose words be these: First of all the King willeth, that the Peace of the holy Church, and of the whole Realm, should be kept well, and maintained in all points; and that Justice should be done to all men, as well to the Poor as to the Rich, without regard of persons. And in the conclusion or end of the same Statute, the said King useth these words: And for because it is a great Charity to do Justice to all men, when time and place shall serve, &c. By which saying, it may well appear what zeal this good King had to maintain Peace, Unity, and Concord, within these Dominions. See also what King Edw. 3. E. 3. established in the second year of his Government, whose words be these: As touching the keeping of the Peace in time to come, it is enacted, accorded, and established, That the Statutes made in times past, with the Statutes of Winchester, concerning Robberies, be firmly holden and kept in all points. Likewise King R. 2. R. 2. the first year of his reign, ordained as ensueth; id est, That the Peace within this Realm of England should be firmly holden and kept in all points, and in such sort, that his obedient Subiects might from thenceforth, safely and peaceably, go, come, and abide, according to the Laws and Usages of this Realm; and that good Justice and Equal Right should be done to every man. After this King H. 4. H. 4. in the first Year of his Reign established as ensueth: The Peace within this our Realm shall be holden, maintained, and kept in such condition, as that all our Loyal Lieges, and good Subjects, may in time to come, safely and peaceably, go, come, and abide, according to the Laws and Usages of this our Realm; and that good Justice and equal Right shall be done to every man, Saving Saving. unto us our Regalities and Prerogatives. It were an infinite work to recite all such Examples as do appertain to this Common Place; but being all rehearsed and advisedly considered, they do all in all tend to this end, that there should be maintained, nourished, and kept, Unity, mutual Consent, Peace and Concord, without which, neither Kingdoms, Countreys, Commonwealths, Cities, good Towns, Families, nor yet householders can endure, or have any permanent continuance. And for that it is expedient to such as to whom the Prince hath committed the charge and custody of the Peace and Concord of this Realm, to understand some short Notes touching their Office, I have presumed, as no Instructor, but as a Rememberer, to cloth these things in English Livery, that have been hidden and obscured in scattered torn Pamphlets, written and noted by our Elders in the French tongue; which of very few being understood, yet of the most and greatest well-willers to do good in the maintenance of Peace and Concord, either never, or hardly red before. It is enough for a Justice of Peace to say, Let me alone, I will do, as near as I can, the best. If any Offender come into my hands, he shall walk to the Gaol, and there he shall be forth coming, until the Justices of Gaol-delivery come down; and if I perceive he pretend any Quarrel either to any Man, his Goods, or Chattels, whether he have right or not, I shall bind him to the Peace; yea, if need be, to the Good Abearing: I am sure in this my doing, I shall not incur any danger. Is this in any wise mans understanding, nourishing of Concord and Unity amongst the Queen her Subjects? No truly. And yet this is, speaking of my own knowledge, from the River of Tweed unto Dover Cliffs. And the onely cause is, that such, as be many in the Commission of Peace, have not been Students in the Laws of this Realm, neither do substantially go about to learn what their Office and Duty is concerning the same. Some will say we be too old to learn; No truly, the elder a man waxeth, the more discretion he hath; and the more discretion, the more apt to learn the Laws of this Realm. For the Law is founded upon the the grave and deep Reason of learned Fathers, sought out by long Experience, which is not easily perceived by young wits. I know myself an old Servant of the most famous Prince King Henry the Eighth, who being in his latter dayes made Justice in the County of Buckingham, through his diligent travel grew in very short time to be of very great understanding; so that in the exercise of that Office he might be well compared to those that were very well learned in the Laws; and in very many Points touching his Office, at a pinch, yea, much more ready then they were. Mark well what Mr. Bracton, an Author of our laws, saith, Cum autem Leges & Consuetudines Angliae Regni istius per incipientes, & minus doctos qui Cathedram judicandi ascendent, antequam Leges dediscerunt, saepius trahuntur ad abusum, & qui stant in dubiis & opinionibus multoties pervertantur à majoribus, qui potius proprio arbitrio quam Legum authoritate causas desidunt, &c. For which cause, I say, Erudimini vos qui juditis terram. But now to my purpose: You shall understand, that like as the King or the Queen bearing the regal Authority of a King, is a Body politic and Corporate; and as Bracton saith, In Centena prima, Cap. 51. Quod Rex Angliae Vicarius Dei est, &c. Even so is the King of England, as Bryan affirmeth in the tenth year of the Reign of King Henry the Seventh, 10. H. 7. Bryan. the Ruler within his Realm, as well of Causes Spiritual, as also of Causes temporal: his words are these, Rex Angliae est persona mixta, nempe est persona unita cum Sacerdotibus sanctae Ecclesiae: In which Case, the King may maintain his Jurisdiction by Prescription. And like as our King, our Queen be mixed persons, even so is the Peace and Concord of this Realm of England a mixed Peace; that is to say, there is the Spiritual Peace of the Church, and the Temporal Peace of the Land; and that appeareth by the words of the same Statute, Ed. 1. Westminster, ca. 1. made by King Edward the First: The King commandeth that the Peace of the holy Church and of the Land shall be kept and maintained in all points; which Peace of the holy Church is, and always hath been protected and conserved by the Kings, their Archbishops, and Bishops of this Realm. And the Peace of the Land is, and always hath been guarded and defended by the same King, and his temporal Justices, lawfully appointed for the same. But although the knowledge of some things touching the Peace of the Church were very necessary, yet, for that afore this time I have written at large thereof in a Treatise, that I gave to a Reverend Father of this Realm, and also for that my leisure serveth not presently to discourse upon the same; and likewise for that this my Treatise may not be over tedious to the Reader, therefore I think good at this present time to let it pass; and if time serve in the end thereof,( God willing) I shall make some few Notes touching the same. I will therefore begin with the Peace of this Land. CHAP. I. Chap. 1. The difference between a Justice of the Peace, and a Conservator of the Peace. BY the ancient Common Law of this Land, there were certain persons that were Conservators of the Peace, which were not Justices of the Peace; for every Conservator of the Peace is not a Justice, but every Justice is a Conservator, but not the contrary: for the beginning of the essence of a Justice of Peace was by the Statute made in the first year of King Edward the Third, Edw. 3. the words whereof are these; For the better keeping and maintaining of the Peace, the King willeth and commandeth, That in every County the good and loyal men, which are no maintainers of evil and wicked Barrators in the County, shall be assigned to keep the Peace. Which Authority of a Justice of Peace, is somewhat enlarged by the Statute made Anno 18. cap. 2. of the same King; and sithence that Statute, by divers other Statutes, as to the diligent Reader may appear. But first, as touching the Conservator of the Peace; By the Law, a man may be a Conservator of the Peace five manner of ways, viz. By Dignity of Office. By Prescription. By Letters Patents. By Writ. By tenor of his Lands. For the first, he may by reason of his Office, as the Queens Majesty is the principal Conservator of the Peace within this Realm, and may command all others and award process against them to conserve the Peace; but the Queen her self cannot take a recognisance for the Peace, Agent. because the recognisance is made to her self, &c. But a Duke or an Earl by reason of their Dignities, or the chancellor of England by his Office, may take recognisance for the Peace, and also award process for the same; process. and may do all other incidents unto their Dignity or Office. The like Law is of the Master of the Rolls, but he may not make process nor take recognisance as incident to his Office, but by Prescription, Prescription. that he hath used to make such process. And the Chief Justice of the Kings Bench, and all the Justices of the same, may award process, and accept recognisance, as Conservators of the Peace, as incident to their Offices. And also the Chief Justice of the Common Bench, and the Chief Baron of the Exchequer, may be Conservators of the Peace in their presence, within the precinct of their several Courts: But the Justices of the Assizes may not award process for the Peace, as a Warrant for the Peace, or such like; Jurisdiction. but if the Peace be broken in their presence, they may command the Offenders to the Goal: but if complaint to them be made that J. S. is intended to break the Peace, or else they do perceive the same in their presence, they may command the parties upon a certain pain to keep the Peace, but they may not take Sureties as Justices may do. The Justices of Goal-Delivery of the Prisoners being in the Goal; the Steward in a Court of Pypowder in a Fair; the Sheriff and Coroner which hold Plea by Justicies; the Steward in a Law-day, and of the Sheriffs-turn, let. none of these may grant Surety of the Peace: But if a Fray be made in their presence, whilst they be executing their Office, they may commit the Offender to Ward; but the Steward and suitors of a Court Baron Court Baron. may not commit one to prison that maketh a Fray before them in their presence, except they had used so to do the like before by Prescription. A Constable Constable may not take Surety of Peace, at the request of any man; but he may do what he can to keep the Peace; and if he be present when the Fray is made, he may imprison the Offenders, and also he may take Surety of Peace by Obligation, Obligation. or by Fide jussoris, by the ancient Laws. The Sheriff of the Shire may let mainprize by recognisance, such as be in prison for the Peace. Also the Commons House of Parliament Parliament. may grant Surety of Peace, by Petition made unto them by any person, without the assent of the Lords, and may award process upon them. Also it is to be noted, that they which be Conservators of the Peace by Prescription, must make their Prescription Prescription. in this wife; That they and their Ancestors, whose Heirs they be, whose Estate they have, &c. And this is a good manner of Prescription also, they may prescribe to the Peace but onely for one certain time Time. in the year, &c. Also the Constable-Marshall Marshall. of the Queens House is by Prescription a Conservator of the Peace, of frays made within the said House. Item, The Steward of the Marshalseas may take recognisance for the Peace by Prescription. And also the King may by his Letters Patents Patent. grant unto a man to be a Conservator of the Peace of a County, or of a Hundred, and this is a good Grant; although it be to a man and to his Heirs, Fee simplo but it is not good to him and to his Assigns: assign. for a Justice cannot make an assign, but he may have an Inheritance in his Blood, &c. And if the King make such a Grant unto two men, and to their Heirs, Jointenant. this shall be taken for several Grants to them and to their Heirs. And if the King make such a Grant to any man and to his Heirs, to be Conservators of the Peace, he may take Surety by Obligation Obligation. at the request of the parties, as a thing incident unto his Office, but he cannot take Surety of the party by recognisance, except that be so specially granted by the King. But he that is a Conservator of the Peace may not take any Inquisition Inquisition. by Twelve men for the Peace broken, or for a riot, as a Justice of Peace may do; but he may Release Release. him after he hath taken mainprize, or otherwise by Obligation. Also, every Conservator of the Peace may cause any man to find Surety unto him of Peace, as well before a Fray as after, by virtue of his Authority, &c. Also, if a Conservator of the Peace be required to see the Peace kept, amongst other men, and is negligent therein, he shall make his Fine Fine. if it be certified into the Kings Bench. And likewise, if a Conservator of the Peace do break the Peace himself with any other person, he shall make a Fine to the King, and shall also lose his Office of a Conservatorship. And where there be two Conservators of the Peace in one County, and the one maketh a Warrant of the Peace, the other may not grant a Supersedeas Supersedeas. to surcess the said process; but otherwise it is if a Justice of Peace do award a Warrant, another Justice of Peace of the same County may grant a Supersedeas. Also a Conservator of the Peace may not meddle with Forcible Entries, Forcible Entry. or riots, but onely with Affrayes, Assaults and Batteries; for so far goeth his Office, and no further. The Queens Highness also may by her Writ command any man to come unto her Court of Chancery, Bref. and there to take his Oath to be a Conservator of the Peace within a certain County. And in the Ancient time, if a man would have Surety of Peace, he might come into the Chancery, and there be sworn, and have a Writ to the Sheriff, or to any other Officer, to take such Surety; and this Surety was by Obligation, Obligation. and not by recognisance. Also, a man may be a Conservator of the Peace in another manner, and that is by Writ also; as if a Writ be directed to the Sheriff to choose a Conservator of the Peace, Election. in the full County, as the use is of a Coroner, Coroner. who is made by election of the commonalty of the County, and he shall elect one, and by this choice, he is a Conservator of the Peace: like as Knights and Coroners be choose, and as Sheriffs Sheriff. were wont to be chosen, in the full County, until the Statute of 9. E. 2. was made, which appointeth the nomination of them unto the Prince. A man also may be a Conservator of the Peace by the tenor tenor. of his Lands; as, if the Queen grant unto a man an Acre of Land to hold of her by Knights Service, to be a Conservator of the Peace in such a County, this is a good tenor, and by this Grant he may take surety of Peace by Obligation, Obligation. and may do all things belonging to the Office of a Conservator; and this tenor is Knights Service, and draweth Wardship, Marriage, and Relief, and no other person then the King or the Queen may create this kind of tenor. But if the Queen do grant unto me an Acre of Ground to hold the same of her to be a Justice of Peace within a certain County, this is a voided tenor; Chap. 2. for none may be a Justice of Peace Justice of Peace. but by special Commission commission under the Great Seal of England. And so this suffice●h at this time concerning Conservators of the Peace. CHAP. II. How, and in what maner Justices of Peace have their Authority. THere are two things to be considered, whereupon the Authority of a Justice of Peace doth principally consist. The first is the Statute made 1. E. 3. Stat. 2. cap. 26. the words whereof may be seen in the Book of the Statutes. The second is the Princes Commission of the Peace, which begins thus; Sciatis quod assignavimus vos conjunctim ac divisim ad Pacem nostram, & ad Statuta nostra, & Ordinationes apud Winton. Northampton. & Westmorlan. pro conservatione Pacis ejusdem, &c. For before the making of the same Statutes, there was no Justice of Peace within this Realm, but onely Conservators, as I have before declared. And whereas the Commission of Peace maketh mention of certain Statutes that were made before there were any Justices of Peace, and that by the same there is Authority given unto them by the said Commission to execute the same: by this it doth appear, that the Prince by his Commission, may commit the execution of the Statutes to whom he shall see good cause. And by this Reason be they answered, who think in their own conceit, that a Justice of Peace may not execute any Statutes, unless express power be given him so to do by the Letter of the said Statute, which conceit is but an error. To such peradventure as will demand how the people of the Realm were demeaned before there was any Justice of Peace within the Land; to them answer is made, That at that time Justices of Peace were not so requisite, as they be at this time: for at that time there were in every County Justices of Oyer Justices d' Oyer. and Terminer, and also there were Justices Itinerantes, Justices Itinerand. the which determined all▪ Causes of Quarrels, as well real as personal, as in our Books of Reports, Chap. 1. in the Law called, the Eyers or Iters, it doth plainly appear. It is now to be noted, that Justices of Peace be made Justices in two sorts, or by two means; that is to say, the one by special Letters Patents of the King granted to one man onely, And the other by general Commission, made unto him and unto others. And the first Justices made by Letters Patents, Letters patents. be called Justices within themselves; as the Abbot of St. Albons, the Abbot of St. Edmonds-bury, and the Abbot of battle ', which names of Grant the King cannot call back, nor discharge at his pleasure, because the words of the Commission be referred to no certain time. Time. And such as be especial Justices within themselves, as is aforesaid, may make claim to their Liberties in the Eyer, Claim Liberties. if there be any: but the general Justices need not so to do. Justices that be by special Patent can or may be made in this form, as if the Queen grant unto a man to be a Justice of Peace, within a certain County, for term of his life, this is a good Grant. But if the King grant unto me and mine Heirs to be Justice of Peace, &c. this is a ●●id Grant; for that the ability and discretion of mine Heir cannot be known at the time of my Grant. Fee simplo But if the Grant be for term of life, although I myself am not learned in the Laws of this Realm, Ignorance this is a good Grant, if the Patent be ad audiendum tantùm: But if that be granted unto me ad audiendum & terminandum, there it is meet I should be learned in the Laws, or otherwise the Patent is voided. voided. And if the Queen grant unto a man to be a Justice of Peace for term of his life, and to hold Sessions of the Peace by himself, or by his sufficient Deputy, Deputy. this Grant is good. And it is to be considered, that a general Commission of the Peace hath two several properties in it, that the special Patent hath not: the one is, it may be made to persons disabled in the Law to take the special Letters Patents, as to Monks professed, Ability. and to other men of Religion, that be persons disabled in Law. The other property is, that the Justices which have their Authority by the general Commission, be determinable at the pleasure of the Prince; During pleasure. but not so especial Justices, &c. Also, Infant, or Woman. an Infant above the age of Fourteen years, and a Feme covert, or a Feme sole, may be Justices of Peace. Also, if a Commission be made to the mayor of Wigorn. to be Justice of Peace within his Precinct, and he is incorporated by that name of mayor, by this Grant also, as well the mayor then being, as all other that shall ensue him, shall be Justices of Peace by this especial Grant. But if the Grant be made to John the mayor of Wigorn, Especial. otherwise it is. And if the Grant be made to the mayor, and Burgesses, or Commonalty of Wigorn. by their right Names of their Corporation, this is a voided Grant, both to the mayor, voided. Corporation. and to the Burgesses and Commonalty; for the mayor and Commonalty cannot sit at Sessions, and the Commission is in the Copulative degree. Also, if a Justice of Peace be made a Knight, Knight. yet shall the Commission of Peace stand in force, and he shall still remain a Justice of Peace as he was before, by his ancient Name. But if a Justice of Peace be made a Sheriff, Vicont. then is his Office or Authority of a Justice of Peace determined by the course of the Common Law. For he cannot be a Justice and also an Officer to serve his own precepts. Agent. patient. But if in any Commission one who is Sheriff is name, that hath been a great question, Whether he be a Justice of Peace or not, and for that cause was the Statute made Anno primo Mariae, Parliament 1. Cap. 8. which hath there enjoined an absolute Law, That the Sheriff during his Office shall be no Justice. Also, if a Justice of Peace be made Coroner Coroner. of the County, this is a discharge of the Justice-ship of Peace; But he may be Undersheriff, or bailiff, or such like, and that is no discharge of his Authority of his Justice-ship. But I take the Law notwithstanding the Statute made Anno primo of Queen Mary, Feme. that if a Women be Sheriff by inheritance, as it once chanced in Westmerland, and by possibility may do again * It is so at this present, 1657. hereafter, if she mary with a Justice of Peace, yet doth his Authority remain, because he is Sheriff in jure Uxoris; and there is to be noted, That the granting forth of a new Commission of the Peace with an alteration, Baron & Fee. as in leaving some out that were in before, and in putting some in that were out before, determine. is a plain determination of the ancient Commission. And some have thought by the delivery of the new Commission to a Justice of the County, that all the Justices of the same County are bound to take notice of the same: but I am not of that opinion, for I think it is no reason that the old Commission shall be determined, before a notice Notice. indeed be given thereof unto the ancient Justices, as by reading the Commission in the open Court of Sessions, whereby all the people in the Court may take perfect notice thereof. And if a new Commission come to the ancient Justices, pro hac 'vice tantùm, Hac 'vice Renocation. yet may they not hold their Sessions after, by force of the ancient Commission of the Peace: but the Justices of the Peace may sit by force thereof, without any maner of renocation thereof. Also, if the Queen make a special Grant to the mayor of Wigorn. for the time being, to be a Justice of Peace within the Precinct of the same Town, the mayor shall not sit with them. And if the Queen do grant in the same case by her said Letters Patents, Grant. That the mayor shall sit with the general Justice of Peace, by express words, this yet is voided: for the Statute made in Anno duodecimo R. 2. R. 2. Cap. 10. doth prohibit, Association. That no association shall be made to the Justices of Peace after their first Commission. And then if at the first granting of the said Association unto the said mayor the Grant were voided, voided. then is it voided altogether for ever after that; and therefore may not the mayor of Wigorn. sit with the general Justice of the County, by virtue of any maner of Grant, non obstante Non obstante. aliquo statuto, &c. For the said Statute hath restrained the Queens power therein. Also, if the Queens Highness grant unto the mayor of Wigorn. to be a Justice of Peace within his Liberty, yet may the general Justices of the County deal with Causes concerning their Office within the said Liberty, unless there be Words expressed in the said Grant made unto the said mayor, Chap. 3. Quae nulli alii justiciar ' nostri intromittant, &c. or some such like words of prohibition, Negative Pohibition. tending to that effect. Item, if a grant be made to the mayor of Wigorn. for the time being, to be a Justice of Peace within his Liberties, ad inquirendum tantùm, this is a good Grant: But if the Grant be made ad audiendum & determinandum, this is a voided Grant, Ignorance voided. unless some one man learned in the Laws be joined with the mayor in Commission, and then such a Commission made ad audiendum & determinandum, is in the Law very good. CHAP. III. What Persons ought to be put in the Commission of the Peace. AS I have divers times before rehearsed, so do I once again say, That the first authorizing of a Justice of Peace within this Realm, was as well by the Statute made Anno 1 Ed. 3. cap. 16. as by the Statute of Anno 4. ejusdem Regis, cap. 2. where it is ordained, E. 3. That good Folks and true shall be assigned in every Shire to keep the Peace, and mention shall be made in the said assignment, &c. Likewise also by divers other Statutes made thereof, one whereof is in an. 18. E. 3. Ed. 3. c. 2. Stat. 2. The words whereof be, That two or three most worthy persons in every County shal be chosen to be Justices of Peace, and they with others learned in the Laws, shall determine felons, and Trespasses done against the Peace, notwithstanding which Statute, through the sinister suit of such as were desirous, rather to rule then to be ruled; The Lord Chancellor for the time being, to whom the assignment of such Justices belongeth, of favour born, did nominate in the said Commission more then were warranted by the said statute made. 12 R. 2. R. 2. cap. 10. that there should not be above six Justices of Peace in one Commission besides the Justices of Assize; and that no Association Association. should be after the Commission, which last statute was affirmed by another Statute, Anno 14 ejusdem Regis, Cap. 11 where it is further provided, that there shall be but 8 Justices of Peace in a Commission besides the Lords; Number. but notwithstanding the foresaid Statute, there is no especial commandement given to the Lord chancellor, to nominate in the said Commission any that were learned in the Laws of this Realm, Ignorance whereby many times the said Justices although being affencted to do well, yet for lack of knowledge, following their own discretions, did omit many things meet to be done; and sometime did other things either against the Law, or else in such form as pertaineth not unto a Justice; wherefore it was ordained by the Statute made, Anno 17. R. 2. cap. 10. That two learned men in the Law, should be in every Commission of the Peace which should have power to deliver felons, and provided to the delivery of them at every time they thought good. And yet notwithstanding all these Statutes, the Lord Chancellor for the time being, would through favour and friendship, name in the said Commission as well persons insufficient, as such as were resiciant in other Counties; County. for which cause it was by the Statute made, Anno 2. H. 5. cap. 1. Stat. 2. established, That the Justices should be made dwelling within the same County, and of the most sufficient persons, except Lords, Justices of Assize, and the chief Steward of the duchy of Lancaster; and these Justices shall be chosen by the Chancellor and by the Kings council: by which Statute it appeareth, That the absolute nomination of Justices belonging to the Lord Chancellor, is in some part restrained in this point, that the choice of the said Justices shall be in the Lord Chancellor and in the Kings council, Exposition of council. whereas it was onely done by the Lord Chancellor; whereupon some men intend by these words( the Kings council) is meant the Justices of Assize in that County where the nomination is to be made: yet notwithstanding all these good provisions, there grew great questions by these words( most sufficient) for some men thought themselves most sufficient, when many times they neither had Land nor yet learning in the Laws to counterpoise their Countenance, for which cause there was a Statute in Anno 18 H. 6. cap. 11. whereby it was ordained, that every Justice of Peace should have Lands or Tenenements to the value of of xx. l. by the year, Sufficiency. and if any be made in any other manner, if he sit in the Sessions, or make any precept, or if he certify not the Chancellor thereof within one month after that he hath notice of the Commission, he shall lose xx. l. whereof he that will sue shall have the one half, & shal have therfore a Writ of Debt Debt. with proviso, that the same extend not to Cities or Burroughs, which have Justices of Peace of the Inhabitants; and proviso also, That if there were men sufficient in the Law, having Lands as aforesaid, that other learned in the Law shall be made Justices of Peace by the discretion of the Chancellor, though they have no Land to such value. And yet again upon this last Statute there have many ambiguities and doubts risen; as concerning these words( shall have Lands or Tenements to the value of xx l. by the year,) for some men think that these words shall be expounded larger then the Letter thereof, for he he may be a Justice of Peace without the offence of this Law, that hath, and yearly receiveth hereditaments to the value of xx l. by year de claro, which by common intendment may have a perpetual continuance; But yet he who hath no other inheritance then Avousous of Churches, and Commons of Pasture in Gross, though they be of the value of xx l. by the year, Incorporeal. yet be they no such sufficiency, as that thereby the owner may be a Justice of Peace without danger of this Law. He who may dispend xx l. by year in Rent issuing, out of ancient Demesne Ancient Demesne. may not be a Justice of Peace, But he that hath xx l. Rent by year that is issuing out of Lands, that are aswell ancient Demesne as gildable, he may be a Justice of Peace without offending the Law. He that may spend xx l. a year in Copy-hold, Copy-hold. may not be a Justice of Peace without offending, &c. He who hath Lands to the value of xx l. within the City of London, or within any such City, or within the Cinque Ports, or within the Counties Palatines of Lancaster, Chester, Durham, Norham, Creak Bedlington, or Etil, or in the Holy iceland, &c. he may he a Justice of Peace without offending of this Law, within any County of this Realm of England. No Welch-men born, having Land to the value of xx l. by year, lying in England and not in Wales, Wales. may be a Justice of Peace in any County within this Realm, and out of Wales, without offending. If a man have Land to the yearly value of x l. by year in his own right, and likewise Lands to the value of x l. by the year in the right of his Wife, he may be a Justice of Peace without offending. If a man have Land to the yearly value of xx l. and let the same to another for term of years, reserving no Rent; Baron fee. in this case, neither the Lessor nor the Lessee, may be a Justice of Peace without offending. If a man have Lands to the yearly value of xuj. and a Common Common. appendent to the same to the yearly value of iiij l. he may be a Justice of Peace without offending. If a man have a Free Warren Warren. of Conies, the which is communibus annis worth xx l. he may be a Justice of Peace without offending. And he that maketh xx l. yearly of his Wood-sale, Woods. may be a Iustice of Peace without offending. And such like Cases as these, a good wit without any great study, as they casually chance, may easily decern of. And where the words of the Statute run, that he who may not dispend xx l. Land by year, shall within one month next, after notice had, &c, certify the Chancellor, &c. Hereupon it is to be noted what dayes and times are to be intended, to make this month in computation, according to the true meaning of this Law; Moneths how accounted. And as it is intended, this month shall be accounted precise upon xxviij dayes, and not according to the month contained in the calendar, for this month in this place is for the Kings advantage. But the computation of Lapse accounted in a Quare impedit, Quare impedit. brought against a Bishop, hath been founded in the Ancient Law to be ranted according to the calendar, and not otherwise, quod nota been. And this Notice before rehearsed, must be given to the Chancellor, either by the mouth of the party, or by writing under his seal sent to the Chancellor, or by certificate Certificat. sent to the Chancellor by any other person by his commandement, or by his Servant, or by any other Stranger by his appointment: But if any other do it without his commandement, that is voided. I have red that Cardinal Wolsey, being Chancellor, with the great Seal of England passed the Seas into Flanders, Beyond the Seas. in this case, if certificate were not given by such a Iustice within one month to the Chancellor, the Offendor was not touched by this Law; For it was never the mind of the maker of that Law, that such a Iustice should travail to search forth the Chancellor elsewhere, then within the compass of the four Seas. If a man have Land for Term of life in the Right of his Wife, of the value aforesaid, viz. xx l. he may be a Iustice of Peace without offence; But if his Wife die, within one month next after her decease, he must make certificate to the Chancellor, &c. the like Law is, Ablata causa. if he alien away his Land or forfeiteth the same, or suffereth it to be recovered from him, or else otherwise evicted from his possession. And where the Statute is, that men sufficiently learned in the Law, &c. many times it hath been a question who should be sufficiently learned in the Law by the entendment of this statute; for some have said, That none shall be sufficiently learned by the entendment of this Estatut, but such as have been Serjeants, or Apprentices in the Law, and these be such as have been Readers of the Law in one of the four Houses of Court, or else be allowed for Pleaders at the Queens Bars, &c. These ambiguities moved here, are more curious in mine opinion then necessary; for as I have said before, a diligent man may in short time come by his travail to that understanding, which for the exercise of a Justice of Peace shall be both necessary and sufficient; but yet I say again, let the Justices of Peace in cases of weight be circumspectly in their dealings, lest all there doings otherwise be voided, & coram non Judice, Coram non Judice. where there wanteth in their Commissions and Sittings such as be learned in the Law. CHAP. IV. Chap. 4. In what manner and form the Peace shall be, and when, and for what cause surety of Peace may be had and granted. THE Authority of a Justice of Peace lawfully divided, consisteth of three things, which three things spring and grow of five Branches contained in the Commission of Peace. The first Branch is, Sciatis quod assignavimus vos conjunctim ac devisim ad Pacem nostram custodiendam, and custodiri faciendam. The second Branch is, Assignavimus vos & quoscunque vestrum Justiciar ' nostros ad inquirendum per Sacramentum probor ' &c. de homicidiis, felloniis, transgressionibus, &c. The third Branch is, Assignavimus vos, 10. 9. 8. 7. 6. 5. 4. 3. vel duos vestrum quorum aliquem vestrum vos praefac ' I. D. & W. M. unum esse volumus Justiciar ' nostros, ad fellonias praedictas, &c. tam ad sectam nostram, quam aliorum quorumcunque coram nobis, pro nobis aut seipsis conqueritur, aut prosequi volentium audiendum & determinandum; so by these words it appeareth, that the effect of the whole Commission consisteth onely upon these words, viz. To keep, to inquire, to determine, which words he drawn forth of the said statute, made by King Rich. the second at Westminster Anno regni sui 13. the words whereof be, That the Peace may be well kept and maintained in all points, and that Common Right be done to all. That is, that Peace shall be well kept in all points, viz. by all manner of circumstances, and ceremonies of the Law be had and used by inquisitions, or otherwise, and also Justice shall be done to all men indifferently, without respect of persons; that is, by hearing their causes and ending the same; for of hearing onely without determination, there can be no Justice. And it is to be noted that there are four principal things belonging to a Justice of Peace, which he may do by his own absolute Authority, without any Inquisition taken in any Sessions, or any such like place. The first is, How and in what manner Surety Surety. may be taken for the preservation of the Peace. The second, What shall be said a Breach of the Peace, and what not; and how the Peace being broken, the same may be pacified. The third is, Where the Peace is broken cum multitudine gentium, then what farther punishment shall be added to the transgressors. The fourth is, Through any such breach of the Peace cum multitudine gentium, &c. so that there is any man which is put out from the Possession of his Lands and Tenements, then how and in what maner shall a Justice of Peace demean himself in the avoiding of the Force, and in the restoring of the party agrievd to his former Possession. And as to the first of the said four things, that is, How a man may be put under Surety of the preservation of the Peace, there be five things to be considerered. The first is, How Surety of Peace shall be by any man demanded or required. The second is, In what maner Surety of Peace shall be granted. The third is, How, and in what maner process of this Surety of Peace shall be granted, against whom, and at whose svit. The fourth is, What maner of Surety shall be found. The fifth is, How, and in what maner this Surety of Peace being once taken, may be afterwards discharged. And it is to be understood, That the Justices of Peace may cause the party offending, to find Surety of Peace for ever, or until a certain day; and this may be done by his own absolute Authority, without any complaint Complaint. thereof made, if they see good cause: as if the Offender be a common Barretor, a Riotous person, Discretion. or in the Justices conscience, a suspicious, or suspected person; and if such Surety be taken, the Justices may never release that after; and therefore it is good for the Iustices to be well adadvised, both in granting such Surety, and in being granted, to beware how they release it; for commonly I see Surety of Peace released, and quo jure penitus ignorant ', and this I mean, where the recognisance is taken, and entred, to keep the Peace for ever: But where the recognisance is made to keep the Peace until a certain day, the Iustices may release Release. that Peace upon matter apparent. But if Surety of Peace be granted at the especial request of any man, to be kept until a certain day, there the party that requireth the same, may release the same before the day: But if the recognisance be to keep the Peace in perpetuum, then it cannot be released. Time. And if the case do so require, that an Infant Infant. under the age of Fourteen years shall be compelled to find Sureties to keep the Peace, he himself shall not be bound, but shall otherwise procure his Friend to be bound for him. And although a man may chasten his Wife with discretion, like as an Abbot of an House his Commoignes, yet if this chastisement Chastisement. be outrageous, then may as well the Wife as the Commoigne have Surety of Peace, the Wife against her Husband, and the Commoigne against the Abbot. And as the Wife may have Surety of Peace against her Husband, Baron fee. so may the Husband have Surety of Peace against his Wife, &c. Nota haec. Item, A Bond-man may have Surety of Peace against his Lord, Villain. and it shall be no enfranchisement, for that no recognisance for the Peace can be made other then to the Prince onely. Ability. Item, He that standeth attainted of felony or Treason, may demand Surety of Peace against any man whom he feareth. The like Law is of him that is convict of heresy. Mutes. Item, One that is dumb may demand Surety of Peace by signs and tokens. Item, He that hath received Judgement of abjuration Abjuration. to depart the Land, may demand surety of Peace. Surety of Peace may also be granted at the suit of any man against a Justice of Peace, although both the Grantor and Offendor be in joint Commission. And if Surety of Peace be demanded against a Juror at the Sessions, it is not good Policy to grant the same before the Sessions be done, Discretion. for otherwise the Juror thereof should cause such to absent himself, without whose service the Sessions cannot be holden. And if a man demand Surety of Peace against the Wife of a Justice of Peace, the Justice ought to commit his Wife to prison, Baron fee. until she have found surety to keep the Peace, and this is good to conttoll a shrew. And if any require Surety of Peace against an Officer, as a Sheriff, or against the under Sheriff, or a Bayliff-arrant, or against the Coroner, or against an Exchetor, discretion ought to be used in causing him to find Sureties against him that requireth the same, and versus cunctum populum; for then is he no meet man to exercise any such office within the Commonwealth. Item, Neither Alien Alien. born, being no free Denizen, ne yet any lunatics, ne yet any condemned in a praemurure, ne idiots, idiots. may require the Peace of any man. Item, If any man be present before the Justices where Surety of Peace is demanded against him, the Justices may command the Sheriff, or his bailiff there present, or any other sworn Officer, and known, that they shall take the party into their custody, and this commandement by word of mouth is good without Process in writing; but if the party against whom the Surety of Peace is demanded, be absent, although the Sheriff and his Officers be present, yet may they not by the commandment of the Justice, Precept. by word of mouth attach the party, without process to be thereof to them directed. And if a Warrant be directed to the Sheriff, to attach any man to keep the Peace, the Sheriff may command the bailiff sworn and known, without any writing, to execute his precept; but if the Sheriff command any other Stranger, then is not his commandment good without writ: If a Precept come down unto a bailiff or any other Officer, he ought to serve the same in his own proper person, and not to make his precept over unto another, Deputy. as the Sheriff may do. Item, If any precept be made to two men, if the one of them without the other serve the Process, Joint. yet this is good enough; and if the Sheriff, or any other Officer sworn and known, serve such a precept, he is not compellable to show the same precept to the party. show the Precept. But if the precept be awarped to any other, then the party may make resconse if the precept be not shewed to him at the time of the arrest, if he demand the sight thereof, or else he may have an Action of faux imprisonment. Faux imprisonment. And if a Justice of Peace do award a Precept, if the party will come before any Justice of Peace, and find surety, the bailiff who hath such Precept, may not arrest him nor put him in prison; Refusal. But if he refuse to find surety, he may then put his body in prison. And if a Supplicavit Supplicavit. be directed to a Sheriff to arrest any to find surety to keep the Peace, and if the Sheriff make a Precept unto a bailiff, to cause the party to come before him to find surety, in this case, though the party obey not the same, he shall not be carried to prison. But the bailiff must return the same matter, and upon his return there shall go forth a Capias. Capias. And it is to be noted, that the sufficiency of such as shall be sureties, and the number of them, and the sum wherein they shall be bound, doth consist altogether in the discretion Discretion. of the Justices; and and if a Justice be deceived in the sufficiency of a surety, he may compel the party to find better Sureties; and if the the party once after he be bound do break the Peace, then be their Sureties voided, and the Justice may compel him to find new Sureties. Et sic totiens quotiens. And a Justice may take Sureties by Pledges, Pledges. or by gauges, or by Obligations Obligations. made to himself, ad usum Domine Reginae, as well as by recognisance; and if a Justice take recognisance, not reciting therein the Peace to be kept and observed, such a recognisance is voided; voided. But if he take recognisance of Peace, and omit in the same the day Day. in which the Recognizor should appear, yet this is good enough; But if there be a day of appearance put in the recognisance, and yet maketh no mention before whom he should appear, in this case, he may appear before the same Justice in any place out of the Sessions; Election. But if these words be in the recognisance, that he ought to appear before the same Justice & sociis suis, at such a place, then must he appear in the Sessions there holden: But admit that the Commission of the Peace be altered, Action moritur. and the same Justice of Peace left out or dead, then therein a wise man would make a question Whether the recognisance be voided or no; and if it be voided, another question will be, Whether the Justices by their discretion may make that good which is voided; a third question may also arise upon this, Whether the Fees that the Clerk of the Peace receiveth for recording the appearance of the party, upon such a voided recognisance, be Extortion, yea, or no; and being apparent Extortion Extortion of Record done in the face of the Sessions, then why is not the same openly punished; and how can the Justices excuse themselves of the first branch of their Oath, which is, That they shall do equal Right in all matters touching their Commission to them directed, according to the Laws and Customs of this Land: for in the Commission amongst other, be these words; Assignamus vos ad inquirendum de omnibus extortionibus in commit. Praedicto, per quoscunque vel qualitercunque factis seu perpetratis; so ye may see by these words quoscunque & qualitercunque, that there is neither exception of person, time, nor place, neither within Liberties nor without, but all are to be measured with one Rule in such cases. quod nota. I mean hereafter in this Treatise, to speak more of Extortions and Briberies. Item, If a Justice of Peace( as many times they do) will enjoin any man upon pain of xx l.( as commonly they do) to keep the Peace, General. Versus cunctum populum Domini Regis; this is a voided Injunction. Exposition. If a recognisance be taken in such sort, that the party shall keep the Peace against T. Fleetwood & omnes homines suos, this extendeth but onely to his Free Tenants, which be his Homagers, and not to his menial servants. If a recognisance be taken in such sort, that the party shall keep the Peace against W.N. and his Heirs, this is very good. But if a recognisance were made to keep the Peace against Sir Thomas Benger Knight & omnes servientes suos, this shall be expounded by the Law, to extend aswell to such Servants Servants. attendant unto his person in his dwelling-house, as all his other Servants that be lawfully retaining unto him, and not contrary to the Statute Law; Future. But the recognisance shall not extend to any other servants that shall hap to be retained after the knowledge thereof, nor such persons as shall happen after to depart out of his service, no, Interruption. although he should be retained again into his service. And if a recognisance be taken to keep the Peace against the L.W. & omnes tenentes suos, Tenants. this shall be intended to stretch to those that be his immediate Tenants without menalties; but all his Tenants in Frankalmoigne shall be within the compass of this recognisance. Item, If a recognisance be taken, that the party shall keep the Peace against A. & omnes adherents suos, Adherents this shall be taken for such personages as shall be most conversant with him. And thus as touching the several forms of recognisances taken for the keeping of the Peace, this shall suffice. Now we are to treat how this surety being thus taken, may be discharged. One way to discharge such a surety is, where the party which demanded it will Release Release. the same before a Justice of Peace, either at the day of appearance, or before; and after such release made, the party needeth not appear; Certificate. But yet the Justice who took the recognisance ought to certify the same recognisance so discharged at the next Sessions, and the Release of the party, Certificat. or otherwise he may incur the penalty of the Statute, Anno 3. H. 7. cap. 1. the penalty whereof is a great misprision of the said Statute of H. 7. rather then a confirmation of the Common Law in that point. Item, There is another way to discharge such a Surety of Peace, and that is, when the Peace is broken, the Queen may by her Letters Patents pardon the same; but before the Peace broken she cannot pardon Pardon. the same. Item, Such a Surety may be discharged by a Supersedeas, Supersedeas. and by another Justice within the same County, or by a Supersedeas from a Justice of the Bench, or out of the Chancery. And if a Surety be taken before a Justice by virtue of a Supplicavit Supplicavit. out of the Chancery, this Surety cannot be discharged by a Supersedeas from any Justice of Peace within the same County; and if the Supersedeas bear date before the Precept, yet it is good. And if a man forfeit a recognisance either for not appearance, or for breaking of the Peace, the Justices may not award any process Process. for the forfeiture thereof, into the Chancery or into the Kings Bench. And as concerning what thing should be said a Breach of the Peace, and what not; and how, and in what manner after the Breach thereof, the same may be pacified, somewhat thereof is to be said. And it is to be known that divers things may be done against the Peace, and yet in the doing of them is no such Breach of the Peace as is meant by the same Commission. And yet do some Justices more regarding friendship, or some other private cause, then the words and true meaning of their Commission, meddle with such Breaches further then good Equity would they should. The Breach of the Peace that I mean is, where one man disseiseth another of his Land, where one man taketh another mans Goods or Chattels wrongfully, where one man trespasseth another mans Corn or Grass, where one man having title to Land, maketh his Entry where he ought to use his Action. All these and such like be Breaches of the Peace, Breach of the Peace. and yet not within the meaning of the said Commission; for the breach of the Peace which is meant in the said Commission is, where any act is done against the Peace, to the corporal person of any man. But if one man menace Menaces. or threaten another to lie in the way to beat the other, by these Facts the Peace is not broken; But if a man make an assault, Assault. or affay upon another, this is a breach of the Peace. If a man be bound by recognisance to keep the Peace until a certain day, if the Recognizor do shave the head of another man against his will, this is not a Breach of the Peace; but if one do imprison another without a cause, or thrust him into a River, or a Pond, so that he is in jeopardy of his life, this is a breach of the Peace. But if a man ravish a Ward Ward. from the possession of another, this is no breach of the Peace. Rape. But if a Man ravish a Woman against her will, this is a breach of the Peace. if a man make a Riotous assembly with a multitude of people, Multitude Riot. this is a Breach of the Peace; But if a man make a Forcible entry Forcible entry. by himself, without the assistance of others, this is no Breach of the Peace. Item, If a man steal a Horse feloniously, Felony. this is no Breach of the Peace; But otherwise it is, if a man commit Burglary, or Robbery to a mans person, or Manslaughter; these be Breaches of the Peace, because they be done to the person. If one commit Treason Treason. against the Kings person, this is a Breach of the Peace, and forfeiture of recognisance; and yet the words of the recognisance be: Quod geret pacem erga cunctum populum Domini Regis, Exposition. & praecipuè erga F.T. and speaketh never a word of the King; but because the fact is done against the Head of the body of the whole Realm, it is to be adjudged a prejudice to all the whole Subjects, and therefore a Breach of the Peace: and it is to be noted, that in divers cases, the Battery of another man, is no Breach of the Peace, but the manner of the Battery doth break the Peace: Chastisement. But he that doth chastise his Servant, his Wife, or his Bond-man in the Kings presence, this is a Breach of the Peace, as I do gather by the Judgement, 27 Libro Ass. Item, If a Servant depart without licence, his Master may take him again with force and keep him, Servant. but may not chastise him, but may punish him for evil service, but not for not doing of his service. Item, A School-master School-master. of a Grammer-School may chastise his Schollers, the like Law is of a gaoler Goalor. of his unruly Prisoners, and this is no Breach of the Peace; but a Servant of a gaoler or School-master may not do so, without the especial commandment Commandment. of his Master. Item, In divers cases one may make an Affray Affray upon another, and yet no Breach of the Peace; as if a man in the defence Defence. of himself with his weapons unawares do strike another standing behind him, this is no Breach of the Peace; And in some case a man may strike another willingly, and yet no Breach of the Peace, as if the Queen command a Royal Justing Justing. to be used in her presence for her pleasure, if any man be hurt in such Justing, it is no Breach of the Peace, and yet it was done voluntarily; nor yet in waging of a battle in a Writ of Right, is no breach; nor yet the waging of a battle battle. in any Appeal, &c. Causa patet. Commandment. If one will command an Estranger in sport to shoot at him, who doth so, and hurteth the party, this is a breach of the Peace. Item, The Servant may defend his Master, Master & Servant. and this is no breach of the Peace, & è converso, the Master his Servant. But the Landlord Landlord. may not defend his Farmor, &c. Item, Corporation. A Common in a Corporate Town may not defend the mayor of the same Town; But every Subject Subject. may and are bound to defend their Prince, with Battery, and this is no breach of the Peace. Item, To commit Battery in defence Defence. of my goods is no breach of the Peace. All these Cases are to be intended where one is bound in a recognisance to keep the Peace, where any the acts aforesaid done, is a breach of the Peace, and where not. And note that a Constable Constable or bailiff, if they see any persons likely to make an Affray within their Jurisdiction, they may command the parties to avoid upon pain of imprisoment; and if the Fray wax great and dangerous, then may the Constables or bailiffs imprison the Offenders for a short time. Imprisonment. Item, If two men be in fighting, every man standing by may by the Law part them; if any of the Offenders hurt any of the standards by, in parting of the Affray, the party hurt shall have his Action of Trespass, &c. The same Law is, if a Constable or other Officer be hurt in parting of the Affray, Remedy. they shall have their Action, &c. But if they or any of them do hurt the Offenders in resisting, in such case the Offenders shall not have any Action against them. And if two persons use the one against the other hot and quarrelous Words within the presence of the Hearers, which are like to grow to a Fray, in such case, neither the Hearers nor the Constables may not lay hands upon their Bodies to part them, Brawling. until such time as they draw their weapons; and they may part them, and put them in safe keeping until their heat be past. The Law is, that if two be making an Affray in the presence of the Constable, and the Constable Constable doth not endeavour himself to part them, if this be found by Inquest before the Justices of Peace in the Sessions, the Justices may assess upon the Constable such Fine as shall stand with their good discretions. And it hath been said, That the Law is even so, where the Fray is made out of the sight of the Constable, and one cometh to the Constable and telleth him of it, Negligence. and adviseth him to see the Peace kept, and this Constable doth nothing but contemn his duty, he shall in like maner make Fine according to the discretion of the Justices. And if a Fray be made, as it is lawful for any slander by to part the same, and to stay the Bodies of the Offenders; so may not the slander by imprison the same Offenders, but they may deliver their Bodies to the Constable, and he may imprison them: But if in the same Affray the one party be so sore hurt, that thereby he is in danger of his life, Peril. then may the slander by arrest the Body of the other, and carry him to the Goal. Item, If two be making of a Fray, and when they see the Constable come, they flee, and run away into a House and shut up the doors, the Constable may not, though it be upon fresh svit, Entry. break open the doors and take the Offenders; but if any in the same Affray be so dangerously hurt, that thereby he is in peril Peril. of death, then may the Constables, or any other man, break the house, and apprehended the Offenders, and commit him to the Goal; Goal. and the Law appeareth so to be taken, Termino Paschae, 7. R. 2. And if a Constable do arrest any man for any Affray, he may not imprison him in his own house above a reasonable time; but the Sheriff or the common Jaylor may imprison him in their own houses as long as shall please them; But so may not a Justice of Peace, Place. for he is otherwise directed by a Statute thereof made Anno 5. H. 4. cap. 10. the words of which Statute be these; That none shall be imprisoned by any Justice of Peace, but in the common Goals within their Liberties, in such cases. CHAP. V. Chap. 5. Of the breach of the Peace with a Multitude of people. I Think it not much amiss something to speak of the breach of the Peace committed or done, with, or by a multitude of People, which is entitled in the Law, Fractione Pacis cum multitudine gentium, &c. As concerning the breach of the Peace cum multitudine, it consisteth in these parts, that is, in Riots, Routs, and unlawful Assemblies; which Facts committed or done, by the Common Law, Riot. were of no other quality in their natures, then other common Trespasses: But now, Routs, Riots, and Assemblies be changed in their natures, by a Statute made Anno 17. R. 2. cap. 8. where it is defended, That neither Lord, nor any other, shall make any unlawful Assembly, Riot, or Rout, which in the same Statute is called rumour against the Peace, in no manner of wise: The punishment, of which several Offences is, that the Sheriff or other Minister of the King, shall take the power of the County, Power of the County. which in the Law is called Posse Commitatus, & thereby suppress such manners of Offenders, and commit them to the Kings Prison, there to abide until due execution be done upon them, according to the Law. And some peradventure may object a double, and make a question, what is meant, either by the Common Law, or by the said Statute, by this words, Routs, Riots, or Assemblies; to that I answer in this sort, that a Riot Riot. is properly a number of People which be assembled against the Law, and to execute the same after assembly made, to the intent to do some act against the Law, as to beat, or main any of the Queens Subjects, or to do any other such unlawful thing. A Rout Rout. is properly where a great number of people is assembled to do any thing against the Law in their own proper quarrel, and in the quarrel of any other private person; as if a man have made an enclosure in a Town, and all the Commons in the same Town assembled together, break down the same, or do any other notorious fact, this is properly a Rout. An Assembly Assembly. is properly where a number be assembled together, to do a thing against the Law, and they do not execute the act by them intended, but after their assembly do depart. Item, Two things are requisite to every one of the three offences, the one is, Number. that there be three persons, at the least, which make such an Assembly; the other is, that it be against the Law. But if divers be assembled in one company for a lawful intent, as to make a Church-Ale, or to drink or eat at an Alehouse, or at a Christmas Dinner, or at a Wake, or at a Match in shooting, or at a Cock-pit, or at any such like, these shall not be said neither Riots, Routs, nor unlawful Assemblies. And if a number of people be assembled at a match at Foot-ball, Bowling, Cards or Dice, or any such unlawful games, this is neither Riot, Rout, nor unlawful Assembly, because these unlawful acts are prohibited by the Statute Law, and not by the Common Law; and so the reason is apparent, that the unlawful fact must be malum in se, Malum prohibitum. and not malum prohibitum. The Law is, if a man with his household servants, which have been wont to wait upon him, although it be above his degree to have so many attendant upon him, if such a man make a Fray by the way, his Servants being with him present, this is no riot; but if the Master had made his Servants privy before the Affray, Notice. then it had been a riot. Infant. Item, If a number of Infants under the age of discretion, or Women, assemble themselves for their own proper causes, this is no riot. But if a man of the age of discretion procure such an assembly, then it is a riot. And if the mayor and Commonalty of a Town do make any riot in the quarrel of the whole Commonalty, Corporation, Capacity. this shal be adjudged in the particular persons who made it, and not in the politic Body of the whole Town. Item, The manner of making an assembly may make a riot, where the assembly is lawful; as where a number of people riding to the Sessions, or to a Market, or to a Sermon go all in Harness, Harness. &c. But if divers men be assembled, and none of them know to what intent they are assembled, this is no Riot before the intent to them is known. Item, An assembly to do wrong, Notice. sometime shall not be said a riot, as where a number are assembled to take away a piece of Timber, this is no riot; but if the number be excessive more then needs, then shall it be said a riot. And for the strait punishing of riots, routs, and unlawful assemblies, it is very necessary for every Justice of Peace, Sheriff and Under-sheriff, to learn, remember, and bear away the Statutes made Anno 13. H. 4. cap. 7. and 19. H. 7. cap. 13. as also sundry of other Statutes made for that purpose; in which Statutes aswell the Order of punishment thereof is set forth, as the Dangers that hang over the Justices in neglecting their duties. CHAP. VI. Of Forcible Entries into Lands or Tenements, and of restoring the party aggrieved into his possession again. AS touching forcible Entries, because they be more used at this day then it were meet and convenient in a peaceable and well-ordered Commonwealth, I mean some little thing thereof to speak. It is by experience subject to every mans eye, that by the Common Laws of this Realm and the general customs of the same, every man may take into possession, and detain with Force his own proper goods and chattels; and in an Issue in an Action of Trespass brought for the same, it is, whether the party have interest or title to the same goods or not? and not whether he used any Force Force. in taking of the same: Accessorium. And if it be found with the Defendant, the Force is excused, and even so was the Common Law before the making of Forcible Entries, until the Statute was made, Anno 5. R. 2. cap. 17. which statute doth in a manner prohibit, that it shall not be lawful for any person to enter into any Lands or Tenements with Force, Chap. 6. although his Entry were lawful; and so by this Statute, the Force used is made a thing material in an Action used upon the said Statute: But yet by this Statute there was not given any manner of power to the Justices of Peace to intromit or meddle with such force, but upon general Enquiry in a general Sessions of the Peace, and not otherwise; for which cause in Anno 15. R. 2. by Parliament it was ordained, That if any man entred into any Lands or Tenements, and the same after detaineth with force, that then the Justices, or any of them, within the same County, shall come with the power of the County, & shall view the same place where the Force was done; and if the same Justice of Peace do find any man holding the place with Force, that then they may take them, and commit them to the Goal, as persons convicted of a Forcible Entry, Conviction. by the Record of the same Justices, there to tarry till they have made Fine by the discretion of the same Justices; But yet this Statute doth not give any remedy against them that enter peaceably, and after hold the same with force; nor yet doth give any remedy, if the parties who made the Entries with force be removed before the coming of the Justices of the Peace; nor yet any pain by this Statute was given against the Sheriff, if he refuse to attend upon the Justices of Peace, when they, or any of them, would inquire of this matter, for which cause of Anno 8. H. 6. cap. 9. was made, which giveth them such remedy as appeareth by the Letter of the same Statute. And further doth give remedy, to remove such as enter peaceably, and after keep possession by force; And by the same Statute, it is provided, that the same Removement shall be at the costs Costs. of the party grieved; and therefore the Justices of Peace must have their costs to them tendered Tender. before they travail. or else they be not bound to remove the said Force. And also one Justice of Peace, without the Sheriff or Under-sheriff being with him, may go to the place where the Force is made, and may the same Record by virtue of the same Statute. But so may not one Justice of Peace do upon a riot committed, for there must be at the least two Justices, Riot. and the Sheriff or his Deputy, to remove or certify such a riot: And in the Case to remove a forcible Entry, a Justice of Peace may take unto him the power of the Town, but not the Sheriff; But in the Case of a riot, the power of the country may be taken by the Sheriff. Posse Commitatus. And if a Justice of Peace come unto a house where force hath been made, and find the doors close, and within the house but one person onely, if the same person will not suffer the Justice of Peace to enter, this is a detainer with Force, and the Justice may commit the person, &c. And likewise, if a Justice of Peace doth find within such a house a number of people harnessed or unharnessed, but that there is harness, and their weapons lye by them, this is in the Law a detaining with force; and if the harnessed men lye not in the principal house, but in an outhouse, minding the forestall, Forestall. the right owner of his Entry, this is also a Force. And where the words of the Statute be Maintenant deient inquire, that is to say, Immediately after the force committed, the Justices of Peace shall and ought to make enquiry of the same; but if they do make Enquiry at any convenient time Time. after, it sufficeth. And the Statute also doth give power to the same Justices of Peace, to remit the party expulsed again into his possession. But yet may not one Justice, recording onely the Force by his view, remit the party put forth to his possession again; but he must first make Enquiry of the same by the Verdict of the Country at a Sessions, and then the Force being found, Restitution. the same Justice may remit the party to his former possession, &c. And if it fortune, that after the Inquisition and Force found, before the Restitution executed, the Record be removed into the Kings Bench, then may the Justices of the Bench by Equity of the Statute grant a Writ of Restitution; but the Justices of the Bench themselves may not put the party in possession. And if it fortune the said Justices of Peace, before whom such an Inditement is found, before Restitution executed, do die, yet may the Residue of the Justices at their Sessions grant a Writ of Restitution; but the other Justices of Peace may not themselves, without Writ, put the party to possession again, as that Justice might have done who is deceased; and when such Justices of Peace in manner and form aforesaid, shall at a Sessions holden make an Enquiry, every Juror in the same inquest must spend in free-hold Forty shillings by the year, Sufficiency. which is neither Ancient Demesne, nor Copy-hold Lands, but Charter Lands, as the use is, upon other such like troubles. And every Juror making default at the first time shall lose in Issues Issues. Twenty shillings; at the second day of his default Forty shillings; and at the third day of his default Five pounds; and if upon Inquisition made and found it be objected, that any of the Jurors had not sufficient Free-hold, the party shall never have Restitution; and in this Case the Sheriffs shall be punished for their negligence. And thus you may see that many cunning Questions may arise in and upon the said Statute of Anno 8. H. 6. which may easily be decerned by such as be learned, in the Laws of this Realm, if he will take pains to study well the said Statutes of Forcible Entries, and thereupon to confer the Books of the Common Laws of this Realm with the same. Finis Primi Libri, W. FLEETWOOD. SIthence now I have disclosed the Authority of Justices of Peace in such things as he or they may do, as well by Inquisition as without, therefore I think it good now somewhat to treat of the foresaid Statute of Westminster 1. Cap. 1. the words whereof be these; That the Peace must be well kept and maintained in all points: Within, and by these words of the Statute, is comprised the Authority that the Justices have to inquire of what Points they may enqure; and these Points do appear by the second clause of the Commission of the Justices of Peace, where it is said, Assignamus vos Justiciarios nostros, &c. ad inquirendum, &c. Wherefore it is first to be seen, how and in what manner the Sessions of the Peace shall be holden. The second, What things are to be inquired of by force of the said Commission. The third, How, and in what manner the Presentments ought to be made. The fourth point is, What process shall be made upon such Presentment; all these Points do appear in the second clause of the first Commission. And as to the first Point, the Statute of 36. E. 3. cap. 12. ordaineth, That in every Commission of the Peace there shall be mention made, that the Sessions Sessions. shall be holden four times in the Year, that is to say; Within the Utas of the Epiphany. The second within Fourteen dayes after Easter. The third between the Feast of Pentecost and St. John Baptist. The fourth is within the Utas of Saint Michael, &c. And after, by another Statute made in the twelfth Year of R. 2. it is provided, That the Justices of Peace shall hold their Sessions every Quarter of the Year, Time. upon the pain of punishment by the advice of the Kings council; in the which be excepted the Kings Justices and Serjeants at the Law. And after, by another Statute made Anno 2. H. 5. cap. 4. it is ordained, That the Justices shall hold their Sessions four times of the Year, viz. The first Week after Michaelmas; the first Week after Epiphany; the first Week after Easter; the first Week after Midsummer. And according to this Statute all the Sessions of this Realm hold at this Day, except in the County of Middlesex, which varieth something, by reason of the Statute of 14. H. 6. and by the Statute of Anno 12. R. 2. it is ordained, That every Justice of Peace shall receive for his Costs iiij. s. for every day of the Sessions, and ij. s. for their Clerks; and to be levied of the Fines and Amercements of the same Sessions, by the hands of the Sheriff; and that Lord of Franchises shall be contributaries to the Wages Wages. of the Justices, according to the quantity of their part of their Fines. And after, in Anno 14. R. 2. cap. 11. it is provided, That the Estreets of their Sessions shall be doubled, and that part thereof shall remain with the Sheriff, and the other part thereof with the Justices of Peace; and the names of the said Justices of Peace, and the number of dayes of their sitting at their Sessions, shall be written in the said Indenture, Indenture. and to the intent that the Sheriff may know to what Justice he ought to pay the Wages of the Sessions, and to whom not. And by the Statute it is further ordained, That neither Dukes, Earls, Barons, nor Baronets, shall receive any Wages for the time of their Sessions. But if it fortune that there be some man which forfeiteth a recognisance of the Peace to the King, because he kept not a day of appeareance at the next Sessions, or if the recognisance be forfeit for breach of the Peace; this forfeit is not liable to the payment of the said Wages, nor yet the Issues returned upon Jurors, are liable to the said Wages: But if the Jurors which should have been upon the Great inquest, do make default, for which cause they be amerced; of these Amercements the said Justices Wages may be levied, although there were not Inquisition made within the same Sessions. Item, The said Wages of the said Justices ought to be levied of the Fines and Amercements of the same Sessions, Exposition. and not of any other Sessions holden before or after; or and if a man be indicted at one Sessions, and the next Sessions he maketh his Fine, this Fine shall be liable to the wages of those Justices, before whom the said Inditement was taken. And the Justices of Peace may have their Action of Debt Debt. against the Sheriff, for the wages of their Sessions being unpaid; and the Statute saith further that the Lords of the Franchises shall be contributory, &c. Contribution. and that shall be intended, that if any Lords of the Franchises shall have the Fines and Amercements of all the Inhabitants of such a Town, in this Case the Rate of the Lord shall be ranted according to the portion of the Fines. It is also to be noted, that such manner of persons as shall be of the great inquest in any Sessions ought to be sworn, or otherwise their Inquisition were voided; But in case the Record make mention that they be sworn, where indeed they be not, there shall their Inquisitions be adjudged good, Estopel. the number also of the Jurors at the great inquest be at the least xij. and the Justices if they think meet, may charge fifteen or eighteen in one inquest of Enquiry. Yea, and after such charge, by their discretion at their pleasure, they may discharge part of them again, so that the number remaining consist at the least upon welve. But the Justice of Peace may not commit the said inquest so sworn under a Keeper, ne that they shall be kept without meat and drink; ne the Justices of Peace may not carry them out of the Town to give their Verdict, as may the Justices of Nisi prius. But the Justices of Peace may adjorn the great inquest after the day to another place to give their Verdict, and their Verdict ought to be taken upon such an Adjornment Adjornment. by two Justices of Peace at the feast; and it is not material whether there be any of the said Justices of the Quorum. And this inquest ought to be compounded, and made of such men as be in the Law adjudged probi, Ability. & legales homines, &c. which be such as be not disabled in their credits in an attaint; or such as be convicted for receiving of bribes in a Decies tantùm; or such as be convicted upon an Indictment of conspiracy; or such as be convicted of Perjury; or such as be convicted to be ambidexters by reason of the new Statute made in the Parliament in an. 5. Reg. Eliz. In all these cases if a man be grieved by presentment made by such a Verdict, this may afterwards be shewed, and thereby the presentment shall be made voided: But in this case, if there be twelve Jurors in the said inquest, over and besides any such persons, then shall the presentment stand in force and not to be avoided for any such cause. There be in every Shire commonly some persons, although not by extremity of Law, convicted of any such discredit, yet not meet to be allowed of in any inquest of Enquiry, for that through the tract of long experience they have been noted to have saleble Oaths, much more respecting the man than the matter; of which sort within the County of Bucks, I know two, the one in the Chiltern, the other in the Vale, who at every Meeting, Sessions, Commissions, and Eschetors inquest, will give their attendance; and when they see such as may either please them, or displease them, they will say, Sir, if there be any thing that I may do your Worship pleasure in, I am your assured man, make your account thereof. These be jolly varlots to live in a Commonwealth: although by reason of their great years, I much doubt they will never become honest, having been so long rooted in the horrible 'vice of such perjury: I will not name them, but you shall know them by these two marks, the first is, the Justices of Peace will not permit them to be of any Enquiry, wherein the same Justices are much to be commended: The other, note that the High Sheriffs of the said County have not returned them of any inquest de hoc Anno, &c. viz. &c. The rest of this familiar example I have willing omitted, &c. Now must we descend to the form and order, how, and in what manner the Justices of Peace ought to warn their Sessions, which is in this sort; viz. first before the Sessions shall be kept, the Justices of Peace one or two at the least, ought to direct a Precept to the Sheriff of the same County, to summon the Country, viz. 24. Probos & legales homines, of every Hundred, Hundred. Rape or Wapentake of the same. And by the same Precept he must command all Constables, bailiffs, or other Officers of the Kings, as Coroners and others, to make there attendance upon the said Justices, at such a day and place, at the Sessions, and there to present all such things as every Officer hath done sithence the last Sessions, by reason of their office; and note that such a Precept which shall be directed to the Sheriff to summon the Sessions in the form aforesaid, ought to have teste Teste. under the hands of two Justices of the Peace at the least, and not under the Custos Rotulorum onely, although the contrary be used. Usage. And if at the Sessions the Sheriff, the bailiffs, the Coroners, &c. make default, the Justices may amerce them; Amercement. But if the Clerk Clerk. of the Peace make default, he shall not be amerced, for that he is no Officer of the Court, but onely the Clerk of the Custos Rotulorum, and therefore the Justices may assign another to execute the same place. Item, If any Justice of Peace do make default at the Sessions, he shall not be amerced by his Fellows; But if any Justice of Peace make default at the Goal-delivery, he shal be amerced; and if the Ordinary Ordinary. or his Deputy, make default at the Sessions, he shall not be amerced, nor yet his temporalities seized. And it is to be noted, that two Justices of Peace may hold Sessions, although that neither of them be of the Quorum; but the same two Justices may not arain any man of Felony, Jurisdiction. nor of Trespass, nor let any man to bail, that is in prison, as suspicious of felony, except one of them be of the Quorum: & likewise it is to be considered, that if one Justice of Peace onely keep a Sessions, and maketh his style in the name of two Justices, and taketh Presentments before him; he who is aggrieved by such presentment, may voided voided. the same in saying, that the Sessions onely was holden by one Justice of Peace; and if the Sessions be appointed by the Precept to be holden at one Town, and the Justices do hold the same at another, yet is this Sessions good: But if either the Sheriff, the bailiffs, or Coroners do make default, Default. Place. they shall not in such case he amerced for their attendance. And note also, that the Justices of Peace may at the Sessions, by the Law, compel the Sheriff, if they see cause, to change, add, or diminish the panels; Panel. and if the Sheriff refuse to do the same, they may set a Fine upon his head, and if the Jurors returned by the Sheriff do not appear, yet may the Justices make enquiry by circumstances, Chap. 7. and this Inquisition is good. And note, that if the Jurors of the great inquest be returned, which be vexed with a perpetual infirmity, or above the age of seventy years, or be decrepit, such Jurors shall not be discharged by the Justices at the Sessions; but such Jurors shall have their Action against the Sheriff upon the Statute of Westminster the second; and if any of the Jurors returned have a Charter of exemption, Exemptition. the Justices of Peace may well allow of that Charter, if these words be in the same Charter, Licet tangat nos; But if there be none other to serve but such, Necessity. then is not the Charter to be allowed. CHAP. VII. Of things inquireable before the Justices of Peace, by virtue of their Commission. THE words of the Commission of the Peace give power ad inquirendum, &c. by which words, it is to be intended, that the Justices of Peace ought to inquire of all such Articles as be usually given in charge. Chap. 8. Wherefore here in this place, I will note rather a Brief of such Articles, as are by the Law to be put in Execution this seventh year of the Queens Highness Reign, then accloy the Reader with any long discourse. CHAP. VIII. A Brief of the Charge. FIrst, you shall inquire of such as maintain any foreign power in Ecclesiacal Causes. Item, Of such as do not repair to their Churches, at the time of Divine Service. Item, Of such as make Affrayes in Churches or Church-yards. Item, Of such as commit Buggery. Item, Of such as use Witchcraft to the hurt and danger of others. Item, Of such as keep Markets on the Sabbath-day, against the Statute of Winchester. Note all these above recited do onely extend to Spiritual Causes. Note that these Articles be High Treason. IMprimis, If any commit any such Treason, as is expressed in the Statute of 25. of E. 3. Item, Of Counterfeiters of Coining currant money within this Realm. Item, Of them that kill or murder the Kings Justices. Item, Of Washers or Clippers of the Kings Coin. To raise Warlike Forces without warrant, and lawful Authority so to do. English-men, Jesuits, or Seminary Priests, coming or abiding within this Common-wealth. Maintenance within this Commonwealth, the usurped Authority of the Pope, or any other Forregin Prince. Putting enure, or bringing over the Sea any Bull of Absolution, to discharge the People of this Nation from their Obedience, to the See of Rome. See two late Acts of Parliament, The one for Renouncing, and Disannulling the pretended Title of charles Stuart, &c. The other for the security of his Highness the Lord Protector his Person, and continuance of the Nation in Peace and Safety: The Offenders against either of them are thereby adjudged guilty of High Treason. This later Act to continue to the end of the last Session of the next Parliament. Petty Treasons be these. Killing, Master, Mistress, or Husband, Father, or Mother. Praemunire. Maintenance of any Jesuit, Priest, or foreign college; defendending the Popes Authority here, bringing over any Agnus Dei, Crosses, Pictures, Beads, &c. or know thereof, and conceal it three dayes; and giving aid to any who put in ure the Popes Bulls, or Instruments of Absolution; Imprisonment during life, loss of Lands and Goods, and to be out of the Protection of the Law. Misprisions of Treason. Concealing high Treason, counterfeiting foreign Coin, uttering Counterfeit Coin knowing thereof; striking, or drawing to strike a Justice sitting in his Place. Note that these Articles tend to felony. Imprimis, Of all felonies done, as, of Homicides, murders, Chancemedleyes, which be Man-slaughters. Item, Of Man-slaughters by misadventer, which is pardonable of course; but yet shall the offender lose his Goods. Item, Of felons that kill themselves; note that lunatics are not meant to be within this Enquiry. Item, Of Robberies committed, although it ammount but to a penny. Item, Of Burglaries done, or committed, though nothing be carried away. Item, Of Corn-stallers. Item, Of House-burners. Item, Of Purveyors, that purvey the things taken to their own use, or to the use of others. Item, Of Servants that imbezil their Masters Goods; note that this is felony by the Statute. Item, Of such as take up long-winged Hawks, &c. v. Statut. 34. E. 3. cap. 22. Item, Of Soldiers or mariners that depart without Licence. Item, Of them that Convey out of this Realm, or intend to carry any Hides or Tallow, this is felony. See a new Act for Exportation of this. Item, Of those that receive felons. Item, Of such as break Prisons. Item, Of such as be accessary to any felons, either before or after. Item, Of those that conceal Treason or felony. Item, Of Prophesiers which tend to the disturbance of the Realm. So Poisoning, Stabbing, or Witching to death, are Homicides. Rapes, and Aiders therein, Marrying a second Husband or Wife, the first being alive; Buggery, a Gipsey; Cutting out Tongues, or Eyes; Relieving a Jesuit or Priest, knowing him to be so; Persons infected with the Plague going abroad; Robbing of Churches; the second forgery of a dead, and publishing it to be good; acknowledging of a Fine, Judgement, &c. in the name of another not being the the true Person; Embezzilling, or razing of a Record, or using the Art of Multiplication; persons above Twelve in number raising any Tumults, rescues of a fellow, or breach of Prison by a fellow. These Offences above-mentioned are Felony, some of them by the Common Law, and some by Statute, and some against the Person, and some against the possession of others; and perchance you may find some others of this nature, in a small book called the complete Justice, and in others Treatises upon that Subject. See an Act made 10. May, 1650. whereby Incest, and Adultery are felony without Clergy; and Fornication, and keeping a Bawdy-house, the second offence Felony. A Late Act for the better suppressing of Theft upon the Borders of England, and Scotland, and for discovery of Highway-men, and other felons; whereby two or more of the Justices of the Peace( one to be of the Quorum) are empowered to hold a Private Sessions once a year at least; and of idle Persons, and of bad famed, & not having a visible Estate to the value of a Hundred pound; to bind such person, or persons with two sufficient sureties to appear at the Sessions, and to answer to all Treasons, murders, Robberies, Felonies, or other misdemeanours whatsoever: And a Reward of Ten pound upon discovery, and conviction of any Thief or herdman; and so of Mosse-Troopers, and Tories in Ireland, and for discovery of them in like manner. An Act against Vagrants, and wandring, idle, dissolute Persons; That all such persons vagrant from their abodes, and not having such sufficient cause for their traveling, as the Justice of Peace, Majors, &c. shall appprove of; shall be adjudged to be Rogues, Vagabonds, and sturdy Beggars, within the Statute of 39. Eliz. cap. 4. although they shall not be taken begging: And so of fiddlers, or Minstrels playing in any Inn, Alehouse, or Tavern, or proffering themselves, or desiring any person to hear them play. Misprision of felony. Concealing of one whom he knoweth hath committed Felony. Note that the Offences contained in these Articles be finable. Imprimis, Of Extortions committed by the Ordinary, or other his Officers, for proving of Wills, or such like. Item, Of Conspiracies and Confederacies. Item, Of Hunters. Item, Of Forcible Entries. Item, Of Riots, Routs, and unlawful Assemblies. Item, Of unlawful Games. Item, Of such as convey Virgins from their Parents. Item, Of the Excess of Apparel. Item, Of such as commit Perjuries. Item, Of Fore-stallers, Regraters, and Retailers. Item, Touching Maintenance of Tillage. Item, Of such as have two Husband Farms within one Town. Quaere de hoc. Item, Of Behaviour of Servants, and of their Wages. Item, touching Victuals and their excessive Prices. Item, Whether the Princes Watches be kept or no. Item, Of such as use to harbour Vagabonds. Item, Touching Ale-houses. Item, As touching armor. Item, As touching Trespasses in Free Warrants. Beating, Menacing, or Wounding another. Keeping a Fair or Market in a Church or Church-yard; Distrubance of a Preacher in his Sermon; framing or publishing scandalous or libellous Writings, or Pictures, to the disgrace of others. And so of Barreters, Champerters, Imbracers, Maintainers; Getting other Mens Goods by false Tokens or Messages; and Informers compounding before Answer or after Answer without Licence. misdemeanours and Extortion in public Officers, whether Judicial or Ministerial, as, Sheriffs, Coroners, Constables, Clerk of the Market, Clerk of the Peace, Toll-gatherers, Overseers of the Poor and highways, &c. And so of particular persons, Artificers; as Butchers, Brewers, Bakers, Tanners, Curriers, Shoemakers, Cloth-makers, Ale-sellers, Maltsters, Fishermen and Millers: Abuses by any of these are Inquireable and finable. And so are Common nuisances, as, Cottages, Bridges not repaired, highways, Bowling-alleys, &c. A late Act for punishing persons living at high Rates, having no visible Estate, Profession, or Calling, they are to find Sureties to appear at the Sessions, and for the good a bearing; or in default thereof, to be sent to the common Goal until he shall so do; and to be indicted for living so; and if convicted thereupon, to be sent to the House of Correction for three Moneths: And upon a second Conviction therefore, to be sent to the House of Correction until he be discharged in open Sessions. And by the same Act, winning at Cards, Dice, Tables, Tennis, Bowls, Shovelboard, Cock-fighting, or Horse-race, or any Game or Games, or by Betting; forfeiture of double the sum so won; one moiety to the Protector, the other to the Loser, if he sue for the same within three Moneths: or in default, to any one who will prosecute within six Moneths after the expiration of the said three Moneths; and double Costs given to the Plaintiff or Informer. And all Securities whatsoever made or given since the 24. of June, 1647. for such Moneys, or hereafter, shall be utterly voided and null. A new Additional Act, For the better Observation of the Lords Day; which doth extend to all persons of the Age of Fourteen years or upwards, who being convicted by confession, view, or testimony of one or more witnesses upon oath, forfeit. Ten shillings: yet works of Piety, Necessity or Mercy, may be allowed by a Justice of Peace. And the Constables, Churchwardens, and Overseers of the Poor, are authorised to demand entrance into any dwelling House, or other place suspected; and upon wilful delay, or refusal, the forfeiture of Twenty shillings. But the Officer is to have a special Warrant from a Justice of Peace, which needeth not to search Taverns, Alehouses, &c. And Children or Servants under Fourteen years offending, the Parents or Master to forfeit Twelve pence, unless the Parent or Master correct such child or Servant before the Churchwardens. Every person to repair to some Church, chapel, or Meeting-place, upon pain of Two shillings six pence. Conviction must be within one month after the offence done. In Action against an Officer, upon Non-suit or Verdict for the Defendant, triple Costs given. No Certiorari allowed to remove any Indictment, &c. See a new Act for discovering, convicting, and repressing of Popish Recusants; whereby the Justices of Peace are commanded to give in Charge to the Grand Jury, to inquire and present the Names of all such persons of the Age of Sixteen years, as are suspected or reputed to be Papists, or Popishly affencted; and upon Proclamation, to appear at the next Sessions, there to take the Oath of Abjuration; and upon default, such person is adjudged a Recusant Convict. And four times in the Year, two or more of the Justices, Eight and twenty dayes before the Sessions, shall issue their Warrants to the Constables and Churchwardens, to present, Fourteen dayes before the Sessions, upon their oaths, the Names of such persons: And upon every such Presentment, Warrants to issue to the Constables, to summon such persons to appear at the Sessions; and in default thereof, Proclamation to be made, that they shall appear at the next Sessions; and upon default, then such person is adjudged a Popish Recusant Convict. And if any two or more Justices suspect any person of Sixteen years to be a Papist, or Popishly affencted, to cause him to en●er into a recognisance in an Hundred pounds, to appear at the next Sessions to take the Oath; and upon refusal, to commit him to safe custody; and upon denial at the Sessions to take the Oath, he becometh thereby convicted. And if he be not apprehended, the Justice may present his name; and upon Proclamation for his appearance to take the Oath; and if at the next Sessions he appear not, he becometh thereby a Popish Recusant. Notwithstanding seizure upon Conviction, there is a Saving to his Highness and his Successors, and to other Persons, and their Heires,( other then such Persons so convicted, and their Heires, and others to their use) all Leases, Rents, Conditions, Right and Titles made bona fide without Fraud before Conviction. If any person not convicted nor sequestered for Recusancy, knowingly mary a Recusant convict, upon proof thereof, he is adjudged a Popish Recusant convict, until conformity. No Certiorari to be allowed, nor any Presentment or Conviction to be reversed for Error. A Trustee for any Recusant sequestered, not discovering the same within three Moneths after notice, doth forfeit for his Concealment the value of the third part so concealed. The Mansion House to be left to the Recusant Convict. No person sequestered or convict, capable to comform, unless he make it appear by two Witnesses upon Oath, that he hath for six Months ordinarily repaired to some Church, or chapel, or other congregational meeting, and heard the word Preached. No man to go to Mass upon pain of an Hundred pounds, and six Moneths Imprisonment. Ordinance 31. March, 1654. For more effectual remedy in matters touching highways, an Ordinance was made by his Highness with the advice of his Council. Ordinance 29. June, 1654. Sending, accepting, or knowingly carrying any Challenge, is imprisonment for six Moneths, and a recognisance with two or more sureties for the Behaviour. Receiving, and not discovering a Challenge to a Justice of Peace, is an acceptance. Fighting, or Seconding a Duel, is Banishment, and returning is felony. Provocation by words, jesture, or otherwise, Indictable, finable, good Behaviour, and Reparation to the party; and upon refusal to be sent to the House of Correction. Act against Swearing, 28. June, 1650. No Certiorari allowable. An Act against Swearing and Cursing. A Nobleman, Thirty shillings. A Knight, Twenty shillings. Esquire, Ten shillings. Gentleman, Six shillings eight pence. All others, Three shillings. Second offence doubled. &c. For the punishment of Detestable, Act 9. August, 1650. Blasphemous, and Atheistical Opinions, imprisonment for six Moneths, and Behaviour for a Year; and the second offence Abjuration. Presentable within six Moneths after the offence. For reforming Abuses in Weights and Measures. Act 17. Caroli. Against Killing, Hurting, Act 24. july, 1654 or taking away dear, upon Conviction thereof within three Moneths, is forfeiture of Fifteen pounds, divisible between the Informer and the Poor: And for want of distress, Imprisonment for twelve Moneths without Bail. All these foresaid Articles of Inquisition, be at this day commonly put in Execution through the whole Realm, by the Justices of Goal-delivery. And for that cause, I have omitted many things that are to be given in Charge in times and places most convenient for the purpose; as, to inquire at the Sessions at Alesbury, of such as break the Dike called Pow-dike, which is situate within the Franchises of Ely. Or at the Sessions holden at Northam ' or Heram ' touching the excess of Apparel. At the Sessions holden at Lancaster, to inquire of Tile-makers. And in Surrey, to inquire of the Payment. Of Southwark, to inquire who kept above two Thousand sheep. All which Articles I have omitted in this Charge, not of negligence but of purpose; rather weighing the necessity of the place where I wrote this Treatise, then to accumulate a heap of matters, which being recited, doth rather discredit those things that be most necessary, not onely in the judgement of the wise, but in the understanding even of the simplo. In this Charge also I have omitted many other things, which in time being meet to be considered of, and now reduced into the Case of non usu, Dissuetudo. and so not meet to be given in charge; as when the Statute of King H. 5. 3. H. 5. Statute 1. maketh it felony to bring into this Realm galley halfpence and Dodkins, and to use the same in payment, &c. It would be thought much if such offence were inquired of at this day: even so would it be if the Stat. of 2. H. 6. cap. 9. were put in execution, touching the payment, or receipt of Blanks, for the payment of money; which is felony likewise. The like would be thought, if contrary to the Statute of 27. H 8. the Forresters in the Marches of Wales should take any Coat of any of the Kings Subjects for passage, which is felony. Here I have omitted also to inquire of Greyhounds, of Dogs to hunt Forrests, Hayes-Nets, Pipes, Cords, and other engines to take wild Hares or Coneys; as also Deer-hayes, and Buck-stales, and Tracing of Hares. Procuring of Indictments against spiritual men for Executing their spiritual Jurisdiction. And frays of Salmons. And of trunks to take Fishes. Item of Arrow heads. Common Weights and Measures. Clothiers and Clothes. Cordwainers, Tanners. Curriers, Butchers, Gelders, Goldsmiths, Wax, Wardens of the Marches, Wools, Felts, brass and Pewter, Wild-fowl; with many other things which here at this time I do omit. Wherefore it shall be good for him that desireth a further knowledge in these things to peruse not only the Treatise devised by the late reverend Judge Sir Anthony Fitzherbert, Knight; but also, and especially the Pleas of the Crown, collected by Sir Will. Stamford, Knight, later, one of the Justices of the Common-pleas; with the travail of Sir Robert brook, Knight, the Lord chief Justice of the Common-pleas, that he devised upon the 17. Chapter of Magna Charta, which beginneth thus, Nullus Vicecomes, Constabularius &c, To which several Treatises, the Reader hereof, because the words of the Commission are to inquire de omnibus Feloniis, &c. That is, of all manner of Felons, as well by the Common Law, as by the Statute Law; in which Treatises, through diligent travail, ye shall easily find Presentments, either directly or in Equity, wherewith ye shall fully be satisfied. And where the words of the Commission be, de omnibus transgressionibus, which is, of all kind of Trespasses, what the understanding thereof should be, I can refer you to no better Authority then to the usual Articles of the Coroner, set forth in the 27. Book of Ass. n. 440. And also to the Treatise that is commonly termed Capitula Itineris, collected and set forth by the noble Prince Edw. 1. And forasmuch as the Prince cannot be entitled by the death of any Subject to his Goods or to his Lands, or to Fine or Ransom, or to imprison the Body without good and perfect matter of Record, which is termed by the name of a Presentment or an Indictment, being found before the Justices of Peace. Here would be something said, which be good Presentments and Indictments, and which not; and for because the perfection of Indictments consisteth onely in Form, and many things therein contained are rather Ceremonial then Material, I will not therefore prolong the Treatise with such presidents, but onely commit the Reader thereof to the perusing of the Book, called The Justices of Peace; which Book, for that purpose, is as excellent a Work as can be devised. Upon all such Indictments and Presentments, sufficiently found, the Justices make process against the offenders, quousque capiantur vel utlagentur: which process upon every Indictment, be a Venire facias; Venire facias. or an Exigent. And the Authority to make process, is given to the same Justices by the express Letter of the said Commission, and the said Justices may proceed and make process of all such Indictments and Presentments as were taken before other Justices, by virtue of an ancient Commission, being repealed by the said Commission. But notwithstanding, if the said last recited Authority of the Commission of the Peace had been removed, either after the parties had been at Issue with the Prince, or else in the midst of the process, as upon the second or third Chap. then had both the Pleading and the process been discontinued, until it was provided for by the Statute made in anno 11. H. 6. Cap. 6. which provided, That by a new Commission of the Peace, neither svit, Discontinuance. Plea, nor process, shall be discontinued; and that the new Justices of Peace shall have power upon the same Pleas, process, and Indictments, &c. And although the manner of the same process be not expressed in the Commission, Entendment. yet it is to be supplied, by understanding that such process shall be used as was at the Common Law, in such like Cases, Chap. 9. before the Justices of Peace were. CHAP. IX. How, and in what manner Justices of Peace may hear and determine Causes. THe Law is, that common Right, which is termed Common Droyte, shall be done as well to the Poor as to the Rich: In which Law is implied, the threefold Authority of a Justice of Peace, viz. to inquire, to Hear, and to Determine; and thus much is comprised in the Commission of the Peace, the words whereof are, Assignavimus vos, &c. coram, &c. ad audiendum & determinandum: By this clause of the Commission, the Justices may Hear, Determine and give Judgement upon the same, of all Felons and Treasons, and of all other things whereof they have power to inquire by virtue of their Commission. But yet may not the Justices of Peace deliver suspected persons, for their Commission extendeth not to any other, then such as be indicted before them. Jurisdiction. Nor the Justices of Peace may not receive Appeals of murders. And if it fortune a Woman to be arraigned before the Justices of Peace, and be found guilty, and she saith, she is not with child, the Justices may award a Venire facias Venire fac. tot matrons, &c. And if the fellow demand his Clergy, if the Ordinary or his Deputy be there to receive him, the Justices may get him his Clergy; Clergy. but if the Ordinary make default, the Justices may not set a Fine upon him, but they must reprieve Reprieve. the person until the, &c. For there be no words in the Commission of the Peace, either to fine the Ordinary, or to seize his Temporalities. And where the words of the Commission be, Et vos praefac ' Comes Bedf. ad dies & loca praedicta, coram vobis & dictis sociis vestris ven ' faciat ', & in ea inspiciatis, & debito fine terminetis sicut praedictum est. In cujus, &c. By this clause, power is given unto the same Earl to be Custos Rotulorum: Custos rotulorum. which Custody is contained of Indictments, Presentments, Bills, and such like, being the Records of the Sessions. But by these words it may not be intended, that he shall have the custody of the Commission of Peace, nor yet the custody of any especial Record; as Records of Riots and Routs, Entendment. Precepts of the Peace, or such like; for his Authority is onely to have the custody of the Princes Records, belonging to his general Sessions. And note well, that none can make any Entries in the Rolls, but onely the Custos Rotulorum, or his Clerk; and if any favour or deceit be made by any Entry in the said Rolls by an estranger, the Custos Rotularum shall be fined for his negligent custody of the said Records. And note that by the Statute of Anno 11. H. 7. Cap. 15. the Custos Rotulorum, or in his absence the eldest Quorum, hath power to assign two Justices of Peace at the General Sessions to have Examination and Inspection of the Shreiff and his Clerks, for mis entries of Plaints Plaints. in his Town, and for making of Estreets, & hujusmodi, as more at large it may in the said Statute appear. Note well also, that the process process. of Indictments, as Cap. exigent ' and such like, shall be made in the Princes name, viz. Elizabeth Dei Gratia, &c. viz, vic' Buck. &c. praecipimus tibi &c. Teste. But the rest of the same process shall be in the name of two Justices of Peace at the least. And when Goal-delivery Goal-delivery. is to be made of felons by virtue of the Commission, then must there be in the same Commission of the Peace, two Learned men in the Law; in which case the Justices of Peace may proceed to the Goal-delivery by their discretions, as after they see cause. Et hoc patet per Statutum ind editum & provisum. FINIS. INSTRUCTIONS, How and in what manner STATUTES Shall be Expounded. ACTS of Parliament make Laws Positive, which consist of two parts, the first is the words of the Act, the other is the sense; for the Letter without the Sense is not Law. And every one who will be instructed in the Law Positive, must understand both; and the way to apprehended the sense, is to consider the Common Law, which is ancient to all Positive Law, and which is necessary in the Exposition of the Law Positive. And for that the mischiefs and inconveniences which are in the Letter are to be considered, and by reason avoided; and that is in the matter of the Letter of the Law Positive; such a sense which doth exclude all rigours, and mischiefs, and standeth with Equity and good Reason. And it is said elsewhere that the words of a Statute are but the Verberation of the Air, which words are not the Statute, but only the Image of the Statute; and the Life of the Statute rests in the mindes of the Expositors of the words, who are the makers of the Statutes. And although the makers of the Statutes are dispersed, so that their mindes cannot be known, yet those who approach nearest to their minds ought to construe their words: and those are the Sages of the Law, whose wits are exercised in the study of such matters. The intent of the makers of the Statutes is to be inquired, and the exposition of the ambiguous words in such Statutes, and the Letter shall be aided by the Intent. And it is said also elsewhere that we have a learning in our Law, that if the terms and the Letters of any Statute are obscure and difficult to be perceived, that you ought to understand the sense of the Letter. And Note that elsewhere it is said, Penal Statutes extended by Equity. that the efficacy of a Statute is not onely in the words of the Statute, but in the Intent of the Statute; which intent ought to be applied thereunto: and upon the like reason a penal Statute shall be extended by Equity, if the intent of the makers thereof may be so perceived. And moreover it is said, that the Judges who were our Predecessors, sometimes have expounded words merely contrary to the Text, and sometimes have taken things by Equity of one Text contrary to another, to make them agree with Reason by Equity. And so you may see upon all this learning, The letter ruled by the sense. that the Matter comprised within the Statute ought to rule the Letter, and not the Letter the Matter, as by all these Cases subsequent, shall be declared and expressed. And therefore where the Statute of 4. H. 7. of Fines, 4. H. 7. Of Fines. the words whereof are, That a Fine shall conclude as well Privies as Strangers; although the Letter showeth not who shall be said a Privy, and who a Stranger, but the Common Law showeth it, which is a matter in the exposition; and the Common Law informeth us, that he is a Privy who is no party, and betwixt whom and the party, there is privity of Blood, as the Heir. Properly those who levy the Fine are said parties, and their Heirs are Privies: Quod nota. W. 3. De Quia emptores terrarum, See also the Statute of W. 3. which is, That if the Tenant alien part of his Land, that the Feoffee shall hold of the chief Lord, for that part, according to the quantity of the Land so sold. And in that Case, the Sages of the Common Law have expounded the words ( according to the quantity of the Land) not literally, but have interpnted them ( according to the value of the Land) because that was the intent of the makers of the Act. And so is the Statute of W. 2. Cap. 1. De donis, W. 2. De Donis. made concerning Lands entailed, which saith, Et si finis supper hujusmodi Tenementum inposterum levetur ipso jure sit nullus: There the Sages of the Law take not the words as they are commonly, but have taken these words ipso jure, that as to the right, to be Bound, the Fine shall be null; but as to the Possession, it is a discontinuance: for that was the intent of the Statute, and yet the words are ( quod ipso jure sit nullus) which seems to be in a true Exposition, that in Law it shall be voided. And so the Statute of Gloucester Cap. 3. Gloucester Cap. 3. The Heir of the Mother shall not be barred to demand the Heritage of his Mother aliened by the Father, whereof no Fine is levied in the Kings Court; yet if the Father onely levy the Fine, he shall be received to demand the Land against this Fine: therefore the intent of the Statute hath been expounded to be, whereof no lawful Fine is levied by the Father together with the Mother. And so the Statute which is called Statute Merchant, Statute Merchant binds all the Lands of the Conuzor to Execution, and willeth that they shall be delivered to the Conuzee upon reasonable Extent; and speaketh not a word that they shall be delivered to the Extendors if they Extend them too high: but yet they shall be delivered to the Extendors by the Equity of the Statute of action Burnel, made before, which saith, The Statute is penal. That Goods appraised too high, shall be delivered to the Appraisors at their own price so valued. And if the Plaintiff be Non-suit in a second Deliverance, the Defendant shall recover damages as well as if the Plaintiff had been barred, whereby a Return irreplevishable should be awarded; and so by this means the Plaintiff is barred by the Equity of the Statute of 7. H 8. Cap. 4. And yet the Statute is penal; but because the Expositors thereof took the intent of the makers thereof, to be to give damages in like Cases, that is the cause; and so the intent of the makers of the Act shall direct the Words and Equity thereof. And note that the Statute of W. 2. Cap. 3. W. 2. Ca. 3. Quando vir amiserit, &c. is, In Casu quando vir amiserit per defaltam tenementum, quod fuit jus uxoris suae, durum fuit quod uxor post mortem viri non habuerit aliud recuperare, quam per breve de Recto, &c. Here the Statute speaks where the Baron loses; and if the Baron lose, the Law ever was, that the Feme may enter, and was not enforced to a Writ of Right. But the meaning of the Statute is, where the Baron and Feme lose by default, for so was the intent of the Statute. And the Statute of 25. E. 3. Cap. 16. That for the Exception of Nontenure of Parcel, no Writ shall abate, but for the Quantity of the Nontenure which is alleged: Yet in a Praecipe of a Manor, if the Tenant pled Nontenure of Parcel, all the Writ shall abate, and so adjudged since the Statute; and the reason is, because a Manor is an entire thing; in which Case the demandant ought to have made an Exception in the Writ; and therefore the Judges have conceived, that it is against reason, that a person shall demand an entire Manor against one who is Tenant but of Parcel: And therefore have expounded the Statute to extend to Writs where the things demanded are several, as Acres are; and not to things which are entire. Which Exposition is merely against the Text, which is, That no Writ shall abate, and yet some Writs do abate: And so their Exposition excludeth the general, and makes the Statute particular; and so it hath been expoundded against the Text, to make it agree with Reason. In the same manner they have expounded the Statute of Praerogativa Regis, Cap. 3. which is, That Rex habebit primam scifinam post mortem eorum, qui de eo tenant in Capite, de omnibus terris & tenementis, de quibus ipsi fuerant seisiti in dominico suo ut de feodo, &c. Which Statute is general, yet it hath been expounded, That if a man hold of the King by Soccage in Capite onely, that the King shall not have Primer seisin of all his other Lands. And so the Judges have expounded the Text which is general to be but particular; which Exposition is contrary to the Text, because the Text is contrary to Reason; that for so small a tenor, a man shall pay so great a charge, which they did not conceive to be the intent of the makers of the Act. And the Statute of W. 2. Cap. 23. of Cessavit, is, Fiant brevia de ingressu haeredi petenti supper haeredem tenentem, & supper eos quibus alienatum fuerit hujusmodi tenementum: Yet if the demandant in a Cessavit dies, his Heir shall not have a Cessavit, because he shall not have the Arrearages. And the Statute hath been so expounded, which Exposition is clearly against the Text to all purposes, because the Text is contrary to all Reason; to give an Action to the Heir for a thing, in consideration of another thing, not due to him. And the Statute of Gloucester Cap. 3. giveth, That upon an Alienation of Tenant by the courtesy, if Warranty be pleaded, if there be Assets by descent, it is a bar; but if Assets be not then descended to him from his Father, but do after descend, then the Tenant shall have Recovery of seisin of the Land of the Mother, by Judgement, which shall issue out of the Rolls of the Justices before whom the Plea was pleaded. And by the Equity of the same statute it is taken, that if a Warranty of Tenant in Tail with Assets is pleaded in bar, where no Assets is, but after Assets do descend to the Issue, there the Tenant shall have a Scire facias to have the Assets, and not the Land entailed. For it was considered, that if the Issue aliened the Assets, his Issue might recover the Land tailed in a Formedon; and therefore to make a perpetual bar against the Issues of that the Feoffee with Warranty shall have, it was thought most reasonable to give the Assets of that entail to the Tenant; and upon that reason, he to have a Scire facias for the Assets, and not for the tailed Land. And so the thing by Equity of the Statute is against Order and Degree, which is the principal thing given by the Statute; for the Statute gives, that the Tenant shall have the Land aliened, and the Issue shall retain the Assets; And so Reason guides the Exposition of the words of the Statute, and also the Equity thereof. Statutes taken by Equity in divers manners. It hath been viewed where an Act of Parliament hath been made to remedy some mischief, that it hath been extended to things in like degree; as also one Action for another, and one thing hath been taken for another, and one person for another person, notwithstanding in some Cases the thing be penal: As an Action of Waste is given by the Statute of Gloucester Cap. 5. against one who holds for years; yet by the Equity of the Act, a man shall have an Action against him who holds but for half a year, notwithstanding the Act be penal. So the Statute of W. 2. Cap. 3. giveth an Action of cvi in vita, after the Coverture dissolved by death; yet if the Coverture be dissolved by Divorce, the Feme shall have by the Equity of that Statute a Writ of cvi ante Divortium. A Formedon is given against the Pernors of the Profits by the Statute of 2. H. 7. Cap. 1. yet to execute a Remainder in Tail, a man may have a Scire facias out of a Fine against the Pernor of the Profits by the Equity of that Statute. So the Statute of W. 2. Cap. 12. giveth an Action against the Jaylor, who letteth at large out of Prison, him who is committed unto him for arrearages of accounts; yet if one be committed to him upon a Condemnation, and let at large, the party shall have an Action of Debt, although the Act be penal. So may one thing be taken for another thing, as the Statute of Magna Charta Cap. 12. giveth power to the Justices of Assizes to adjourn the Assizes before themselves in Itinere suo, for difficulty, into the Common-Pleas; yet it is adjudged in 12. H. 4.20. that by the Equity of the said Statute, they may adjourn Assizes before themselves out of their Circuit. So may one person be taken for another, as an Action of Trespass of Goods taken away, is given to the Executors; yet the Administrators shall have the same Writ by Equity. So Administrators who come in by Distress, shall answer by Equity of the Act, which giveth it against Executors. So the Statute of Gloucester Cap. 3. That the Issue of the Feme shall not be barred by the Warranty of the Baron, being Tenant by the courtesy, except with Assets, is extended by Equity to the Issue in Tail. So where the Statute of W. 2. Cap. 40. saith, that it shall be a good Counterplea to a vourcher to say, That his Ancestor, whose Heir he is, was the first who abated: by the Equity of the said Act, it extendeth to a Predecessor, and to a Tenant by resceite. So the statute of Donis ordaineth, Quod non habeant illi, quibus tenementum sic fuit datum sub conditione potestatem alienandi, quo minus ad exitum illorum quibus tenementum sic fuit datum, remaneant post eorum decessum, &c. Yet by the Equity of the said Statute it is taken, that the Issue of the Donees are restrained to alien, &c. To bar their Issues as well as the Donees, to whom the Tenements were first given. So the Statute of 25. E. 3. pro Clero, Cap 7. giveth, That the Incumbent shall answer the Kings Title, and by the Equity of the said Act, he shall pled against all other Patrons. And so to conclude, upon all these Cases it is to be noted, That where Statutes are made to aid the People of their griefs, or to free them from mischiefs, that those Statutes have been amplified by Equity. And sometimes an Action hath been extended further, and sometimes one Action hath been taken for another, and one place for another, and one thing for another. Et sic de consimilibus: which note. We see also that where the Common Law suffers a thing, or gives liberty to one, which by reason naturally engrafted in every man, is adjudged a tort or prejudice to another, and after a statute is made to redress the same; that by the Equity of such a statute, things shall be taken within the like purview. And such Construction of statutes is a great aid and relief to the innocent and guiltless persons and a great discomfort and correction to the nocent persons and their aiders; and so it is beneficial to the public, which the Law chiefly esteemeth. And therefore you shall find many such statutes which are extended by Equity upon the same reason and case: And therefore the statute of Marlebridge, Cap. 6. speaketh, De his qui de terris suis, quas tradere volverint ad terminum annorum, ut per hoc Domini feodorum amittant custodias suas, falsa fingunt feoffamenta, &c. So the statute speaketh onely of Estates for years, and Feoffments; yet a Lease for Life, or a Gift in Tail made to the Issue, is taken within the Equity of that Act; because the statute was made in restraint of a bad Liberty which Tenants had by the Common Law in prejudice of their Lords. So the statute of 4. H. 7. Cap. 17. saith, That if Cestui queen use of Lands holden by Knights Service dieth, and no Will by him declared, &c. that the Lord shall have the Wardship there; if he declares a Will in Tail, the Lord shall have the Wardship by the Equity of the statute, though not by the words; for a Will in Tail is a Will, although the Reversion of the use descend; but Equity extends unto it, for the statute was made to give remedy where tort, injury, and covin were before; for such uses were invented and devised by subtlety, to defraud the Lords of their Wards, and upon other frauds. So the statute of W. 2. Cap. 1. speaketh but of three Gifts in Tail, viz. special Tail, Frankmarriage, and General Tail, and recites the words of the Donor: Yet if Lands be given to one and his Heirs, and if the Donee die without Heir of his body, that it shall remain to another, this is a good entail by the Equity of the statute, although it be out of the words; for before, at the Common Law, the intent of the Donor was infringed and defrauded, which was against common right, and good conscience: and therefore the statute being made against that vicious Liberty, of breaking such intents suffered by the Common Law, shall be extended by Equity. And so the statute of W. 2. Cap. 3. saith, Admittantur haeredes ad quos spectat reversio, &c. yet by the Equity thereof, he in the remainder shall be admitted and received; for the Common Law which did not admit of a resceite, did suffer a tort; and this statute being made for relief thereof, shall be extended by Equity. And so by the Equity of 13. R. 2. Cap. 17. which giveth resceite for feint Pleading, shall be also for feint Defending. And so the statute of W. 2. Cap. 23. which giveth an Action of account to the Executors, extendeth also by Equity to the Administrators: For in all the said Cases the Law would be defective, if it should suffer wrongs to others, being in like or equal mischief, and therefore ought to have an equitable Construction. And so the statute of 1. H. 5. Cap. 3. giveth an Action of Forgery of false Deeds, whereby the Titles and Possessions of others should be molested; and the statute is in the Copulative, yet if the Title onely is disturbed, it shall be taken within the Equity of that statute, for a Disseise; who hath but a Right shall have an Action of Forgery upon that statute, as it is adjudged 1. Hen. 6. Fol. 26. And note that all such statutes which are made in advancement of Justice, and which are beneficial to the Weal-publique, shall be extended by Equity; and although such statutes be Penal to some per ons, yet in regard they are beneficial to the greater number, they shall be taken by Equity. As the statute of W. 2. Cap. 3. giveth a cvi in vita upon a Recovery by Default; before which, such a Recovery was a Tort to the Feme, and a hard thing as the statute saith; and therefore, a cvi ante Divortium is given by the Equity of that statute. And the statute of Marlebridge Cap. 6. maketh an Ordinance, De his qui Primogenitos & Haeredes suos infra aetatem existentes feoffare solent. Yet if the first Son die, and a feoffment is made to the second Son who now is his Heir, that is within the Equity of that statute; or if he levy a Fine to him, which is matter of record, yet that also is within the Equity thereof, although the statute speaks onely of Feoffments: And the cause is, that Covin is abhorred in our Law; and statutes made in oppressing and prohibiting thereof, are good for the evangelic, and therefore shal be extended by Equity. And therefore the statute of 1. H. 7. Cap. 1. which giveth a Formedon against the Pernors of the Profits, was made in suppression of Covin, for a Feoffment to persons unknown, to defraud them who had Right to the Land, was a great Covin and Deceit in Law; and therefore a Scire facias to execute a remainder is maintainable against the Penor of the Profits. And by the statute of Marlebridge above mentioned, if the Heir be a Female, or Male lineal, or Collateral, yet every of them are within the same mischief, and therefore this word ( &) is taken in the disjunctive, for vel heredes, &c. And so also where the statute of 4. H. 7. Cap. 17. giveth, that if Cestui queen use die, no Will by him declared, and his Heir within age, that the Lord shall have the Wardship, as well of the Body as of the Land, as if the Ancestor had dyed in possession. And if two Estates be conjoined together, as if the Kings Tenant die seized, having also an use in Land holden of others, the King shall have Prerogative in that also, because the statute of 4. H. 7. makes the Land in use subject thereunto. And the statute of W. 2. Cap. 3. which giveth Receipt to a Feme Covert, saith, Si uxor ante judicium venerit parata petenti respondere, & jus suum defendere, admittatur, &c. And so the Statute gives no Receipt but where the Wife is parata respondere; and yet it is adjudged, that she being received, shall pray in Aid, or Vouch, and so it hath been expounded. But the Ancient Fathers of the Law considering the said statute, have said, That if the statute should be taken strictly according to the words, great inconvenience would follow, the loss of recompense by the Warranty; and therefore they took the said statute by Equity, although the words do not bear it. So you may see that in all statutes, there are some private Cases exempted out of the general provision, by Equity of Reason, for the avoidance of greater mischief. And so the statute of W. 1. Cap. 1. ordains, Quod non habeant illi quibus tenementum sic fuit datum potestatem alienandi, &c. And so the statute speaks not of the Heirs of the Donees, and yet it hath been adjudged, that the alienation of the Issue, as well as the alienation of the first Donee, shall not bar his Issue. For the ancient Fathers of the Law, seeing that it was in equal Law, expounded the mindes of the makers of mere necessity to avoid an equal mischief. Note that some statutes are made for the Explanation of the Common Law, as the statute of Merton cap. 2. provideth, That omnes viduae de coetero possint tegare blada sua de terra sua, tam de dotidus, quam de aliis terris & tenementis suis. Statutes taken by Equity, and against the Letter. Smith and Stapleton 15. Eliz. ploughed. 433, 434, 435, 436, 437. A Lease for Life, the Remainder in Tail, a stranger levies a Fine sur conusance de droit come ceo to him in the Remainder; and be renders to the Conusor for years, and dyes before any of the Proclamations which are made after; and the Tenant for life( after the time in which the Term is limited to commence) dyes, if the Lease were good, or avoided by any Remitter. Baron and Feme levy a Fine of the Land of the Feme to one who renders to them in Tail the Remainder to the right Heirs of the Feme; Ejectment by Eyston against Studd, 15. Eliz. ploughed. 463, 464. the Baron dies, the wife and a second husband discontinue by Fine; the Question was, If the Heir in Tail may enter by the statute of 11. H. 7. For it was argued, that it was a purchase of the Baron; for by the Fine, all was out of the Feme and in the Conusee; wherefore by the Render it was a Joynt-purchase in the Baron and Feme, according to the words of the said Statute, and not the Purchase onely of the Baron. And the Case of Wimbish and Tailbois, 4. E. 6. ploughed. 42. was put for the Equity of the statute of 11. H. 7. where the Baron made a Feoffment to the use of himself, and his Wife in Tail, and died, and the Feme and a second Baron suffered a Recovery; and by clear opinion the Issue entred: and yet the Jointure of the Feme was not by express words within the Letter of the said Act, for the Feme had not a joint estate Tail with her Husband in any Land which was the Inheritance or Purchase of her Husband; but she had a joint estate Tail with her Husband in Use which rises from the Land which once was the Inheritance of her Husband: and so the Judges extended the words of the said Act, and took the intent of the makers thereof strongly in both Cases against Femes and their Estates, and favourably for the preservation of the Estate of their Barons, &c. But in the principal Case the opinion of the Court was to the contrary; for they took it, that the words of the Act are not onely to be considered, but rather the intent and matter; for many times things within the words are out of the purview; for the purview extends not beyond the intent of the makers: and the intent of the Act was, where Femes had jointures proceeding originally from their Husbands, or their Ancestors, to restrain them from making disherision. But here is not any jointure to the Wife by the Husband, but è converso, to the Husband by the Wife; and so the origine and foundation thereof proceeds from the Wife, therefore not restrained by this Statute. And if a Feme household-stuff the Father of him whom she intends to mary, to the intent that he shall re-give the same, which is done, and the Baron dies, and the Feme levies a Fine; now it is within the words of the Act of 11. H. 7. for it was given by the Ancestor of the Husband, but yet it is out of the intent, and therefore the Issue shall not enter: for here the Estate-tail was made by the feme by Circumstance, and was derived from her; wherefore in the principal Case it was awarded that the Entry was not lawful. In which Case you may see the Exposition of Statutes, ploughed. 465, 466, 467. and how the words of the Law make not the Law, but the internal sense; and how our Law hath two parts, viz. Carnem & Animam, the Letter of the Law, and the Sense of the Law; the Letter of the Law is the Flesh of the Law; and the Sense and Reason of the Law is the Soul of the Law, Ratio enim Legis est Anima Legis. And the Law may be resembled to a Nut which hath a Kernel within it; the Letter represents the Shell, and the Sense the Kernel, and as you shall not be the better for the Nut if you stay upon the shell, no more for the Law if you stay upon the Letter; and as the Fruit and Profit of the Law is in the Sense, rather then in the Letter, so many times when you know the Letter, you know not the Sense, &c. And other good Learning concerning the Construction of Statutes, and of the Equity thereof, &c. Trespass by Ludford against Gretton, 18, & 19. Eliz. 491, 492. ploughed. See a notable Case upon the Statute of 18. H. 6. cap. 1. of Letters Patens. FOr the further Exposition of an statute, there is well to be considered the Words, the Sense, and the Meaning thereof; for sometimes it shall be construed straightly, that is, according to the words and no further; sometimes by Equity stretched to like Cases, sometimes they are expounded against the words, and many times Cases happen upon statutes, for which there is no words in the statute; and then is the Exposition made at the Common Law; of all these it shall be specially spoken of hereafter. But first for the bare words of an statute, it is plain that so much as the word by his proper signification doth signify, unto so much the statute doth extend. As Disparagement is a word properly containing under it all the kindes of Disparagements, and therefore all Disparagements are contained under the same, Magna Charta Cap. 6. So by proper signification, under Ecclesia, all the Members of the Church are contained Mag. Car. Cap. 1▪ So common is this, and every Chapter sheweth an example and reason, that which by property of Grammar speech ought to be taken, unless the meaning of the statute, or some great reason doth import otherwise; as upon Mert. Cap. 1. the word ( does) although it doth comprise all Dowers, yet is it not taken for Dower ad ostium Ecclesiae; the reason is, sheweth for that she may enter into that. And so upon the statute of Marlebridge, Cap. 14. which saith, Allocetur ei Essonum unicum, yet it is taken but for the common Essoin; for although it doth signify properly all manner of Essoins, yet notwithstanding it is most commonly by use of speech taken for the common Essoin; as Fee alone is taken for Fee simplo; or a Lease for Life without more, by common speech is taken for your own life. For use, as it is optimus magister, & omnium doctorum praecepta superat, so it is diligently to be observed of the Statute makers; as this word ( Terra) in Statutes is common not onely for Lands, but for all kind of Tenements, and that by a continual use of the Statute makers, W. 2. cap. 4. Statutum de religiosis, Mag. Car. cap. 36. so is Feoffare commonly taken not onely for a Feoffment, but for a Lease, or Release, Fine, or other manner of Conveyance, and signifieth as much as this word Alienare, Mag. Car. cap. 6. Glouc. cap. 7. W. 2. cap. 9. And so Rapina, though of his proper signification is Robbery, yet by use we see the Statute makers have taken it for him that taketh Goods by Trespass, Marlebridge cap. 30. W. 1. cap. 36. So by very use and custom you shall see these words ( in feodo & hereditate) in statutes, where indeed it was but for life, Glou. cap. 4. W. 2. cap. 5. & cap. 25. So though Boscus doth signify properly nothing but Wood, nay, not Wood onely properly, for it is a word known onely to our Lawyers; yet in Charta de Foresta, it is not onely taken for liberty which he hath in Trees, but also for the Liberty which he hath in the place where the Wood groweth. Some words there be also improperly taken, for the Statute makers would have it; so Facere hath been put for Reficere, Mag. Car. cap. 15. So locus certus hath been put pro specie certi loci, Mag. Car. cap. 11. So defunctus hath been put pro executores defuncti, Mag. Car. cap. 18. Resummoneatur hath been used for reattacheatur, W. 2. cap. 35. Sometimes also words are improper, but there it is by some Figure of speech; as by Metonimia, Ecclesia hath been put pro hominibus Ecclesiasticis, Mag. Car. cap. 1. And sometime Ecclesia hath been put pro Ordinario Ecclesiae, as in Mag. Car. cap. 18. So upon Merton the 5. cap. Usura is taken for a penalty; and unto this ground it appertaineth where one Tense is taken for another, one Number for another, one Gender for another, or such like: as upon Charta de Foresta cap. 4. these words qui habent, in the Present tense, are taken also for the word habuerint. And so upon the statute of 32. H. 8. Those that have any Letters. Patents of our Sovereign Lord the King, were taken also for those that shall have any Grant. So upon the statute, Frangentibus prisonam judicium requiret, was taken for judicium requirebat, in the Preter Tense. And so upon W. 2. cap. 5. Quae sunt de advocatione, was taken for the Future tense, Quae er●ent de advocatione. In like manner, sometime the Singular number is put for the Plural, as upon Mer. cap. 3. Et releviam nobis debeat; and yet, Si releviam nobis debeant, is so taken also. So contrariwise the Plural is oft taken for the Singular, as Merton cap. 3. Assumptis secum custodibus; yet if there be but one Coroner, it is good enough. So upon W. 2. Cap. 6. Implacitatus is taken also if divers be impleaded. And as for the Masculine to be contained under the Feminine, there are that maintain it by property of speech, in so much, that it is a rule among the Civilians, Masculinum sub se continet Foemininum; as upon Merton Cap. 7. Quis containeth Quam; and upon Merton Cap. 6. & W. 2 Cap. 35. Puer is construed formella, & primogenitus pro primogenita. So upon W. 2. Cap. 6. which I have recited, Implacitatus pro implacitata; and so of others in like manner. But those Constuctions that are to be considered of the Sense, is somewhat more to be regarded then that which is of the bare words. And here I call the sense that which riseth of the words being weighed together, wherein it is to be seen, the relation of words, the coupling of the same, what may be gathered of them by implication, and divers such other things. But now first here is a Rule to be remembered, and that is, where there is that form of speech which the Logicians call Indefinitum, that then it is as though it were universal, for the rule is ( Indefinitum aeque peratur universali.) So upon the statute of Mag. Ca. 28. where it is said, Habeat omnes easdem actiones which his Predecessor might have. So upon W. 2. Ca. 2. where it saith coram Justic '; and this Rule proceedeth generally to be true, unless the matter of itself persuade one to a contrary sense. Then you must consider for the relation of the words in a sentence, and therein is the ground approved true, That Relativum semper reflectitur ad proximum antecedents, nisi contrarium ex subjecta materia collegi potest; As upon the Statute of Magna Carta, cap. 3. the words, Antequam homagium ejus acceperit, are not there reserved unto the Land, and yet was it the next antecedent; but that it should not be so construed, may elsewhere be evidently proved. And this Rule is not onely true in Statutes, but also in Writs, Deeds, Pleadings, and such like; as if the Writ be, ad respondendum A. B. & G. Apprenticio suo, suo shall be referred to B. as to the next antecedent: so if it be any Adjective or addition, the Relative is to the next; as if it be, Praecipe Aliciae nuper uxoris Johannis, de Norton Tany, this word Norton Tany hath relation to the Husband John, and not to Alice the Wife of the same John. So if a Writ be brought against Jo. style, the son of John a down, Butcher, he, and not the son, this ground faileth, si empedeatur sententia, for always an Exposition ought to be made, that a sense may be saved. And therefore it is well said, that is an ●●sl gloss that doth confounded the text. But what if there be divers antecedents going before, so that it cannot be known which is the next; as if twice in a Chapter mention is made of Richardi, and one saith in the latter end, Filio et haredi ejusdem Richardi, to whom shall we in such case make relation? you must herein consider the matter, and make relation to whom it aptest may be made: As if for the purpose one of the Richards so name were an Abbot, relation cannot be aptly made unto him, for he by presasumption can have no son. And if the sentence will aptly suffer it, relation may be then made to both, then let it so be made. And sure in those interpretations it is true that is commonly said, as Consilium dabit, which who of himself is not able to discern both, but lose his time and travail in the Law. But yet here again is to be noted, that when one statute doth establish one thing, making relation thereof unto another, although the thing whereof relation so is made, be not as the statute reciteth; yet notwithstanding, the Law shall be taken so in the statute, as the statute speaketh; and the Case whereunto the relation is made, shall be as it were, at the Common Law, and the statute shall not be said to make a Law therein; as the statute of 7. R. 2. cap. 10. that willeth an Assize of Rents shall be taken in consinio Comitatus, as it was at the Common Law, of Pasture in one County belonging unto Land in another County. So Charta de Foresta Cap. 4. saith, That men shall have their liberties in the Forrests, sicut habuerunt tempore Coronationis; and what if they had no liberty then but by Grant afterward? yet they shall have it also. As every thing in time hath found his perfection, so have our statutes also; for at the beginning the manner of the statutes were no more, but to put in writing the purview or body of the statute: but since it is grown to a greater perfectness, and the statutes, for the most part, consisteth of these parts, 1. The Preamble. 2. The Body. 3. The Proviso's of the statute. 1. The duty of the Preamble is no more but to show cause why the statute was made, and what was the mischief at the Common Law; wherein although the Common Law be mis-recited, yet is it not to the purpose; for it is not the words of the Preamble that have the effect of an Act of Parliament, but it is the statute that hath the force. And therefore the statute of W. 2. cap. 4. that beginneth, In casu quando vir implacitatus, doth indeed mis-recite the Common Law, for the mischief was not when he alone lost by Default, then she might have an Assize; but the mischief when he and she together lost by Default, for then was she without remedy: notwithstanding which recital, yet is the purview of the Statute taken as the mischief was indeed. So upon the Statute of Mert. cap. 4. the words are, Feoffament ' liber tenant ' suos de per vis tenementi● in magnis manneriis: and yet if the Feoffment were of great Tenements and small manors, yet the remedy is all one; for the Statute therein did but recite the specialty of the Case, as peradventure the Bill whereof the Statute was made did not exclude the generality of the purview. So in W. 1. cap. 2. it is said, Quant clerk est prise; by which it may be gathered, that the ancient Common Law was, that when a Clerk is taken, immediately he should be delivered unto the Ordinary: howbeit that is not Law, for at this day, he shall be arraigned first. In like manner the Statute of Gloucester in cap. 4. That in Assize of Mortdancestor, if he allege Feoffment, it is not true, for the Feoffment of the Ancestor in Assize of Mortdancer with Warranty, was never any Plea, because it doth rely in traversing the point of the Writ. Infinite other examples may be put, but these shall be sufficient to prove, that the Preamble of an statute hath not the force of an statute, as to make that Law which it writeth, but that indeed the Law shall be taken as it was; and to this purpose it appertaineth also that it is said, that although the Preamble recited be more special or more general then the Statute reciteth, that yet it shall be taken according to the purview and not the Preamble; as in W. 1. cap. 5. was made onely for the mischief of free Elections by King John disturbed; but yet it is taken generally for all other Elections, so that they should be free. So that upon the Statute of Gloucester, cap. 7. although the mischief onely were of Feoffment with Warranty, yet because the words are general, Si feme done ou vend, they are taken generally for all Feoffments, as well with Warranty as without. Contrariwise, upon the Statute of Winchester cap. 1. although the Preamble recite, pure ceo queen de jour in jour Robberies, Homicides, Arsons, yet for the Homicide committed, there is no remedy; because that the remedy given is by Restitution, which cannot be in Homicides; so that the effect of the Statute lieth in the Body and Bowels of the Statute. The Force and Effect, as I have said, being to be considered upon the Body of the Statute, you must therein consider whether it be in the Affirmative or in the Negative, for that maketh differences to divers purposes. One is, that one Statute in the Affirmative doth not take away neither the Common Law, nor other statutes that were made before; and therefore notwithstanding that process of Forejudger be given in a Writ of Mesne, yet is not the process which was at the Common Law taken away thereby, by W. 2. cap. 7. And in like manner was the Case adjudged in the Arches, notwithstanding the statute of 21. H. 8. cap. 5. commanding the Ordinary to give the Administration to the next of the kin, upon pain of Ten pounds; he might commit the Administration to whom he would, for that the statute in the Affirmative took not away the power that he had by the Common Law. But this ground faileth there, where possible the statute in the Affirmative and the Common Law cannot stand together; and then the statute taketh away the Common Law, as the statute of Mag. Char. cap. 19. willeth, That the Constables that take for castle gard, shall have Forty dayes respite. And the statute of W. 1. cap. 31. willeth, That if he be paid in the Exchequer, that then he shall pay it out of hand; here the statute in the Affirmative taketh away the Common Law before, for it cannot stand together, that he that should pay maintenenant, should have Forty days respite: But contrariwise, the statute in the Negative, that denieth and taketh away also the Common Law. The second difference between these is, That upon a statute in the Affirmative, there is no Action grounded; for it is commonly received for a ground amongst the Readers, that Ex nuda prohibitione non oritur Actio. And therefore upon Mag. Char. cap. 6. Haeredes maritentur absque disparagatione, although they had been disparaged; yet was there no Action given till afterward, upon the statute of Merton. And so the same statute of Mag. Char. cap. 7. willeth, That the Wife after the death of her Husband shall have maritagium suum, dotem suam, & haereditatem suam, yet hath she no more remedy then she hath at the Common Law. But where such an statute is in the Negative, there the party shall not onely frame an Action upon the statute, but he that transgresseth the words of the statute shall be amerced; as the statute of Merton cap. 4. Nullus de cetero faciat ducere districtiones; if any man offend the words of the statute, you may have your Action, and he shall be amerced. The third difference, where the statute is in the Affirmative and where not; and it is where the thing prohibitted by the statute doth concern Jurisdiction, or such like, and it be done contrary, then is the thing so done voided, & coram non judice; as the statute of Mag. Char. cap. 12. saith, Assisa non capietur nisi in commitatibus suis, if they be contrary to that prohibition holden elsewhere; then is the holding voided, & coram non judice. So the statute of Articuli supper chartas willeth, That the Steward of the Kings House shall not hold Plea of Trespass done without the verge, cap. 3. if he do contrary to that statute, he is then punishable, and his Plea voided. Neither is this true onely in Jurisdictions, but also in other things forbidden by statutes in the Negative. But this ground faileth even in Jurisdiction, for the statute of Mag. Char cap. 12. Communia placita non sequantur curiam nostram, &c. yet at this day they hold Plea of a Formedon in the Kings Bench. So upon the statute of Gloucester cap. 8. If they of the Common Place do hold Plea of Debt under 40. s. it is not voided; yet is the statute in the Negative, and saith nul, &c. But the cause is this, these by a Mesne may hold Jurisdicton, not otherwise. An statute in the Affirmitive is of no such force, as W. 1. cap. 5. that willeth all Elections to be free; yet if those be by compulsion, they are not voided. There are divers Cases wherein this Rule is broken, but these may be marked by reading. So the statute of W. 1. cap. 40. saith, In briefs de possession ' come Martdanc ' cozenage, ail; yet is not the Stat. extended to Writs of Escheat. In like manner the statute of Glouc. cap. 10. reciteth the statute of W. 1. cap. 42. and saith, Come est contenus queen tenants en common, &c. And yet it is taken for lieutenants, so as it was comprised within the statute of W. 1. The statute of Mag. Char. saith, Consessimus has libertates, and yet many things are granted which are no Liberties, and good. But what if the words of an statute be contrary or repugnant, what is there then to be said? and surely therein we ought to make our Construction,( as near as we can) in such sort that nothing be repugnant; yet if it cannot be avoided but that a repugnancy must needs be, then is the former Saving good, and the thing repugnant voided; as we see in Constructions in Deeds. As the statute of W. 1. cap. 1. saith, Nul prelate receive person gree, which words are construed contrary to that that went before them; for the statute saith, That by licence a man may enter, and therefore is the former words good, and the latter because they make a jar and repugnancy shall be omitted. So the statute of Mag. Char. cap. 8. is taken to be repugnant by the Readers, for that in the former part it saith, That the Pledges shall not be distrained so long as the Principal is sufficient; and afterward it saith, Aut reddere noluerit. But sure I am not of that opinion, as may appear; but if it were repugnant, it is here declared by the Readers, that the latter words should be of effect; which is contrary to the ground that we have laid, and to reason. And sometimes ye may note in statutes the order of the sentence troubled, and the Cart set before the Horse, which must be brought into his right order again, by the judgement of reason, as W. 2. cap. 26. saith, Habentur pro disseisatoribus tam feoffatur quam feoffatus; and yet it should be tam feoffatus quam feoffator; for feoffator was a deseisor at the Common Law, and so was not feoffatus. So likewise the statute that increaseth the Attaint saith, It shall be as well in Plea Real as in Plea Personal; where it should have said, as well in Plea Personal as in Plea Real; for it was in Plea Real at the Common Law, and not in Plea Personal. So upon W. 2. cap. 3. & 4. words that be placed in one part of the statute should have been placed in another, and it is recited by the words of the statute, and the sense in the same. There is yet another thing to be noted, and that is, when a sense my be gathered by Implication, howbeit it is sometimes true, and most times false, as Mag. Char. cap. 3. saith, Quod terra manebit in custodiae ac si diceret pro corpore non. And so upon the same statute cap. 12. it is said, Nos si extra regnum fuerimus, as who would if the King were within his kingdom, then he himself would make his Assignment. So upon the same statute cap. 34. Foemin● non habeant appellum de morto alterius quam viri, as who would say, of her Husbands death she shall have an Appeal. But this Implication is false in many cases, as Mag. Char. cap. 7. saith, That the wife shall have her Quarentine, quousque assignetur ei does sua; and what when it is assigned, shall she be packing? No, she shall remain there for the space of Forty dayes. So upon W. 1. cap. 2. the statute saith, Quam cito attachati fuerint, and yet if he appear before the Attachment, he shall answer as the statute doth appoint. So W. 2. cap. 5. saith, Postquam haeres ad aetatem pervenirit, yet he hath his remedy within age. But as for the statute of Improvement, 2. E. 6. it is said, that those that have improved their Lands, after seven years shall pay Tithes; upon which by Implication it may be gathered, that before he shall pay no Tithes; for in these things the meaning is to be considered. There is also in the sense of an statute the coupling or severance of the same to be considered. Et, quare, atque, ac, are those that knit the Sentence together; but, aut, vel, ve, seu, nec, neque, do sever and divide the Sentence. And sometime the statute runneth loose without any manner of conjunction or disjoining, of which, Construction must be made as sense doth serve: as, W. 2. cap. 41. Statuit Dominus Rex, quod si abbess, Priores, &c. hath no note of joining or coupling, and yet is taken disjunctively, for that the sense doth not bear it; but what if there be but one Conjunction in the latter end of the statute, and then it is that all the words before are coupled by that; as upon York cap. 2. Quant Charter, quit claim, acquittance, &c. So upon Praerog. Regis, cap. 16. Rex habebit catalla felonum damnatorum & fugitivorum. But what if there be several sentences, shall the Copulative couple one sentence together or not? Praerog. Regis cap. 12. saith, That the King shall have Wreck and Sturgeons going before. So upon the statute of devices, the words are, That he shall device two parts, or so much which may amount unto two parts; so that it may be known in severalty, and that hath relation to the whole sentence before; and here the Pointing or Parenthesing is much material: yet in Books it is said, That if I grant quoddam mannerium cum quadam insula, & wreck, & wards reliefs, amerciaments, & fines infra predict ' mannerium emergentibus, this hath relation to all that is before. Conjunctions shall sometime be taken in the disjunctive, and that namely there where two such things so contrariant are coupled together, that they cannot draw under one yoke; as Pax & Tithinga teneantur integro, saith the statute of Mag. Charta cap. 35. yet they shall not be jointly holden, but at several times. So if two words under one signification be joined together, then they are dividedly taken as one expounding the other; as Mar. cap. 6. De hiis qui feoffaverunt primogenitos & haeredes, it is taken aut haeredes. So also where the statute reciteth a multitude for to take advantage of a Law, as, less hiuts liomes & lour Bailees, & des auters, are taken severally upon W. 1. cap. 34. So upon the statute De Religiosis, Liceat nobis & aliis immediatis Dominis ingredi, is taken disjunctively. You may also partly know how words severing shall be taken jointly, since that contrariorum eadem est ratio; as upon the statute of Forcible Entries, though it be in the disjunctive, of Entries or Deteiner with Force; yet if he enter with Force, and detain with Force, all is mainteinable. So the statute of W. 1. cap. 10. that saith, Nul rien soit de due prise ou levy, nothing shall be forfeited unless it be levied. So upon Merton, De haeredibus abduct ' detentis seu maritatis, yet is it taken in the Copulative; and so it is always when a man may gather it to be so, either by force of the words, or by other statutes, or by meaning of the statute makers. It hath hitherto been shewed for Words and Sentences in an statute how they shall be declared, all which matters though they be good to be known, yet they be nothing fruitful as that part which followeth, which concerneth the sense and meaning of an statute. For since that words were invented to declare the meaning of men, we must rather frame the words to the meaning then the meaning to the words. It is therefore to be known that sometimes statutes are taken by Equity more then the words; and sometimes taken strictly according to the words; sometimes contrary to the words; and sometimes where there is no words in the statute. And yet if a Case happeneth upon an statute, the Common Law shall make a construction; for the first it is necessary to be known what was the Common Law, for surely although the opinion of some be, that it forceth not what the Common Law was, since it is certain what the Law now is by statute; yet they are much deceived in their opinion, for without knowledge of the ancient Law, they shall neither know the statute nor expound it well: but shall, as it were, follow their noses, and grope at this in the dark. I conclude then, of necessity the ancient Common Law is to be known, and it is either by the statute itself, as the statute of W. 2. cap. 1. by the Preamble sheweth, that the statute was made for a mischief at Common Law. The statute of W. 2. cap. 16. by these words, Dubitatione hac usque extitit sheweth, That at the Common Law there were diversities of opinions, and the Law uncertain. And to be short, of late time, all the statutes in their Preamble do recite the Law before the statutes. Another way which is much by rule, which is much in use among the Readers; and that is, if it be uncertain what the Law was, then the Common Law is taken by Intendment to be contrary to the statute. As Rape, the which was but Trespass at the Common Law, because the statute of W. 1. cap. 13. doth make it Felony; but this is an uncertain rule, for they were deceived as you may easily see in Stamford upon that statute. And therefore the more sure way is, that if it cannot be gathered by the words of the statute, then to see what ancient Writers, as Bracton, Glanvile, those worshipful Antiquities of our Law have written in their Books; or if they be but latter statutes, then in latter Books, which were yet before the making of the statute. For the other way of guessing at the Common Law, although it be much in use among the Readers, yet it hath caused them much to be deceived, as well may be seen upon Merton and Magna Charta, which both statutes did but affirm and confirm the Common Law, and yet are termed by them to make a Law. The Common Law then known, you shall know that the Statute is either increasing the Common Law, or remedying a mischief at the Common Law, or confirming the Common Law, or making clear a Doubt that was at the Common Law, or abridging the Common Law, or else quiter taking it away. As for the statutes that come in increase of the Common Law, shall be taken by all Equity; for since that the Common Law is grounded upon common Reason, it is good that that which augmented common Reason should be augmented also, where like Reason serveth. As the statute of W. 2. cap. 3. that giveth the cvi in vita, and cap. 4. that giveth the Quod ei desorceat, we see by what Equity they are taken. So upon W. 2. cap. 26. that giveth an Assize in more Cases then it was at the Common Law, you may red how it is taken by Equity in many Branches. And so are those statutes which do confirm the Common Law or decide a doubt at the Common Law, they are, I say, likewise taken by Equity, as the statute of Mag. Chart. cap. 3. the words are, Habeant custodes earum, are taken by Equity. So the statute of Forresta, cap. 12. Equity of Stagnum fossat ', he may make all other Utensils. In like manner, it is, I say, of statutes that take away Doubts at the Common Law; as madge. Car. cap. 2. where relief is put in certain, is taken by Equity. So is W. 1. cap. 35. where aid per filio merrier, is put out of doubt. So Glouc. cap. 11. that putteth in certainty the diversity of opinions, that was where a recovery was had against the Lessor, whether the Lessee should fauxifie; that, I say, is taken by Equity. So is the statute of W. 2. cap. 16. that putteth in certainty Priority of Wardships; that is also taken by Equity, for when these doubts are determined by Parliament, it shall be said that that was the Common Law; for so much as it is to be presumed that which they do, to be upon best reason: and if it be so, who can deny, but that that which is in like reason, is in like law. The statutes also which remedy mischiefs, are to be taken by Equity. I call those statutes to remedy a mischief, which remedies these Abuses, which the Law hath neither commanded nor forbidden, but as yet were suffered: As the statute of Forgery of Faux faits remedieth a mischief, and is taken by Equity; for not onely he which hath Possession, but he which hath Right, is remedied by this statute. So is the statute of Merton cap. 6. a remedy of the mischief at the Common Law; and by Equity of the word Custodia, Relevium is there taken. So is the statute of Mag. Char. cap. 5. And so is the statute of Marlebrigde cap. 28. In these statutes are taken by Equity, which of their own nature for the reasonableness that is in them may be extended, you must not take every thing by Equity, as things far unlike; but such things as are in the like Reason: for the Reason of the Law is the Soul and Pith of the Law; yea, the very Law itself. And this statute of W. 2. cap. 24. giveth us an excellent ground, saying, Quotiescunque evenerit in Cancellaria quod in uno casu reperitur breve, & in consimili casu cadente sub eodem jure, & simili indigenti remedio concordant clerici de breve faciendo; which words though some have onely understood in making of Writs, yet notwithstanding, reason would that Pleas should be taken by Equity. So that hereof hath the ground risen, those things that are in like mischief are in like Law; and those that are out of the mischief of an statute, are likewise out of the compass of the said statute. As upon Charta de Forresta, cap. 7. Those that levied Scottals by the good will of men, were not punished, for such Scottals the statute was not provided for. So upon W. 1. cap. 1. If the Founders had sojourned in abbeys, they had not offended the statute, for the mischief of the statute was onely for those that sojourned there by wrong, and without title. Again, those that affirm this Rule, say, That when the mischief and cause why a statute was made doth fail, there doth the Law itself fail being for a ground, cessant ratione legis, cessat probatio legis. And therefore they say, That the statute of W. 2. cap. 22. is taken away by the statute of 32. H. 8. For since the mischief of that statute was, that the lieutenants could have no Writ of Partition, now since a Writ of Partition is given, the statute faileth; and so is the statute of Mag. Char. cap. 36. taken away by W. 3. cap. 1. Further, it is commonly to be seen, that those things that were in esse at the time of an statute made, shall be taken by Equity before; as the statute that gave Collusion in Wardship was, Marlebridge cap. 6. And the statute that gave Wardship of Cesty queen use was, 4. H. 7. and yet was the statute taken by Equity of the statute of Marlebridge cap. 6. So likewise W. 2. cap. 25. that giveth an Assize of Estovers, is taken by Equity of the statute of Magna Charta cap. 12. and shall not be taken but within his own Counties. So shall Tenant by Elegit, that came not till W. 2. cap. 20. to have an assize, have a Redisseisim upon Merton cap. 3. Which Cases may answer the Doubts which are commonly put, whether a man may have a Quod ei deforceat, upon a Quod ei deforceat; the reason of the Doubt is, because a Quod ei deforceat was in esse at the time of the statute making: howbeit, if those that come after shall be taken by Equity, much more those that were in esse, eo ipso ●●●stante. The second Case whereby the statute shall be taken by Equity, est ex mente Legum-latorum, for it is the chief to be considered; which, although it vary, in so much as in manner of many heads as there were, so many wits; so many Statute makers, so many mindes: yet notwithstanding, certain notes there are by which a man may know what it was. And therefore this helpeth not onely where a statute shall be taken by Equity, but also where it shall be taken straitly, and according to the naked and bare Letter. First, it is known of themselves, and of their living Voices, as Froiwick saith, That upon the statute of W. 2. cap. 1. it was demanded of the statute makers, whether Warranty with Assets should be a Bar, and they answered, that it should. And so in our dayes have those that were the Penners and Devisers of the statutes been the greatest light for expositions of statutes; if they have not given any declaration of their minds, then it is to be seen how the statute hath been put in ure; and the Authority must persuade us that more nearest the statute, and that we see much received and cleaved unto in our Books. But a sure way herein to gather light out of the statute, is out of the words of the same, either going before or following; as of these words ( & similibus) openeth a gap to all Equity, and sheweth that their minds were it should extend to like Cases. So the statute of Mag. Char. cap. 3. Haeres is taken for an Heir male, because that the words are after, Et si miles factus fuerit. So upon Mer. Expellantur is taken for deforceantur; because the statute saith in another place, De injusto deforceamento. So it is taken upon Merton, cap. 13. That the statute is taken in personal Pleas, because the words are inquisit, capit ' per ejus defaltam, which cannot be in Plea Real. And this is as sure a Rule as may be, to know not onely where they shall be taken by Equity, but also to know how this shall be taken straightly; and when the Sense shall be against the Sentence, and how relation shall be made. To be short, it availeth to the understanding of every Rule that is given upon statutes. And here you must note, That when an statute doth make a conference of Law between two cases, saying, That such Law shall be in the one as in the other, that here you must consider the meaning of them, and see what Point they did compare it with, and so construe it to be like in that Point, or else you may very often stray from the Reason; as the statute of Mag. Chart. Et nos eodem modo tenebimus, &c. must be understood in nothing but the Prerogative of the tenor, for in all other things there is variance. So upon the statute de conjunctim feoffatis, that saith, Idem statutum est de conjunctim feoffatis, yet it must not be taken so in all Points. So it is upon the statute of Gloucester cap. 1. &c. upon Merton cap. 3. &c. upon Chart. de Foresta cap. 4. &c. So it is always to be had in mind, that the mind of the statute makers either maketh or marreth the market. Although the nature of an statute is such, as is shewed before, that is, that may both for the Reason, and likewise the Common Law, be taken by Equity; yet shall it be taken straitly, and the ground given before, in Special Cases, shall fail. And first it is there, where the Law is penal; for in those it is true that Paston saith, Poenarum interpretatione augeri non deberi; for the Law always favoureth him that goeth to wrack▪ nor will not put him on his nose, that is on his knees. Pains I do call Amerciaments, Fines; Ransoms, damages, Imprisonment, Pillory, Rellegation, Abjuration, forfeiture of Goods, Lands, or Life: therefore the statute of W. 1. cap. 12. Mitter inquests it taken straitly, and extendeth not to trial by battle. So is Al svit le Roy, they are straitly taken, and doth not extend to an Appeal at the parties svit. So upon W. 1. cap. 20. upon Misfeasors in Parks are not extended to Misfeasors in Forests or chaces. So by the statute of W. 1. cap. 33. the titler of false Tales and Rumors was punished till the statute made in the time of Queen Mary. And here it may evidently appear, that Scroop his opinion cannot be Law, which saith that upon 14. E. 3. 7. That willeth the Jaylor which by grand duresse & pain procure, &c. shall have judgement of life and member; that though the procurement be without great pain, that yet he shall have judgement, &c. Nay further, the penals are not onely taken straitly, but also sometimes they are taken more straitly then the words are, as divers times in the statutes, where the statute speaketh of Ransoms, they are taken for Fines: and upon this reason is that, that where a man doth recover triple damages by Statute, there he shall not recover Costs at the Common Law. But this that I have spoken of Penal statutes differeth in many Cases. And first, where the Penal statute is but a declaration of the common Law, and doth not declare the same fully, that the Cases which are omitted shall be taken by Equity; as what can be a more Penal statute then that of Prodicionibus, 25. E. 3. Yea, and that farther is in the same statute, willeth therein, that no Case shall be taken by Equity unless it be adjudged by Parliament. And yet by the Equity of the words, if the Servant kill the Master, it is taken if the Maid kill her Mistress, that this is Petty Treason. So if it may be expressly gathered to be the meaning of the Statute makers, as W. 1. cap. 15. by Equity, of the Constable, the Justice of Peace is taken by reason of the words, Ou auter Bailie de fee. And sometime if they have been put so in ure, as upon W. 2. cap. 11. by Escapes of those in prison, all other Escapes are taken, and the Garden of the prison chargeable. It faileth also where the pain is just and not put in terrorem, as upon W. 2. cap. 3, 26. It faileth when there is a greater Reason in the Case to be taken, then there is in the case contained within the statute; and that more under it, the less is the pain that is given, in secunda superoneratione by W. 2. cap. 8. in tertiam superonerationem. So is it upon W. 1. cap 25. & 3. for in those is the saying true, Bonis nocet quicunque parcit improbis. What also that hath been said of taking statutes by Equity faileth there, when there is a certain kind of form prescribed within the statute, for therein the ground is true; he that will take advantage of an statute must straitly observe the words of the same; as the statute of W. 2. cap. 12. that giveth Auditors authority to commit the accountant to the next Gaol, if they follow not the words, all they do is without warrant. So upon the statute of Merton, upon Improvements; if he improve more then he should do, all is without warrant. So upon W. 2. cap. 1. Gloucester cap. 1, & 4, & 13. W. 2. cap 3. W. 1. cap. 20. Mert. cap. 7. And unto this ground it appertaineth, that if damages be given me by any statute, that I shall recover no damages in any Writ, except I make mention of the statute: howbeit, it is not taken herein where the statute itself reciteth my Writ, I shall not recite the statute, it faileth. Also if any thing be specially given in favour of the person, for it is said, Quae specialiter collata sunt, personam non transgrediuntur, If so be that the statute do abridge the Common Law, then by the same reason, that an statute increasing the Common Law shall be taken by Equity, by the same reason shall this statute abridgeing Common Reason be taken strictly; and therefore W. 2. cap. 40. because that the statute abridgeth the Common Law, as in taking away his age, it shall be taken all through strictly. So shall it upon W. 1. cap. 46. where it is said, That the parol shall not stay for the Nonnage of the one or other; but if it take away the Common Law that was Penal, then it is otherwise, as may appear upon Magna Charta cap. 14. Si inciderit in misericordia, is also taken, Si inciderit in misericordia alterius. So if it take away a Common Law that was slavish, and could not be defended by Reason; as of Magna Charta cap. 18. that taking away the Common Law which did forbid a man to device his Goods. And as this ground is for statutes abridging the Common Law, so is it for those statutes that do abridge the Kings Prerogative, as Magna Charta cap. 27, & 31. Contra verba Statuti. It hath been spoken before how statutes shall be taken by Equity, and where Straitly, and that partly by the knowledge of the Common Law, and partly by other circumstance composed within the statute; it shall be now shewed where an statute shall be taken contrary to the Words of an statute: And that is first, ex necessitate, when it cannot otherwise happen; and therefore the Rule is true that faith, Necessitas est lex. As the statute of Magna Charta cap. 5. willeth, that the Guardian shall repair the Houses of the Infants out of the issues of the land; if the issues be so small that he cannot both find the Heir and keep Reparations, he is excused though no Reparations be done. So the same statute cap. 7. saith, queen le feme avera son Quarentine, nisi domus illa sit castrum; yet if so be he have no other house but a castle, she shall have her Quarentine of that. So upon Marlebridge cap. 22. that willeth, that Beasts distrained shall be demanded sine impedimento; yet if the Beasts be dead, it is impedimentum. The statute of Merton cap. 22. that the Lord shall not swear his Servants, yet if he have none but Servants they shall be sworn. The second Case in which an statute shall be taken against the Words, is, Ut evitetur iniquum, for Statutes came to establish Laws; and if any iniquity should be gathered of them, they do destroy the names of Laws. And the statute of 1. E. 4. cap. 2. that willeth that the Sheriff shall remove all Presentments had before him to the Justices of Peace; you must take it, that it is meant all such Presentments whereof he might lawfully hold Plea of. So the statute of Gloucester, Dount nul fine est levy en court le Roy, is understood, whereof no Fine is lawfully levied in the Kings Court. So the statute of Mag. Char. cap. 30. that doth confirm all Customs, doth not confirm evil Customs, and such as could not have a reasonable beginning. So the statute of Mag. Char. cap. 7. Nec aliquid debt, is not yet also true; for things due of common right, he shall and ought to charge. So the statute of 4. H. 7. that saith, The King shall have the Wardship of the Land whereof there is no Will declared, is taken for a lawful Will, and not a Will by collusion, 27. H. 8. 22. Pollard. So the Statute of Merton cap. 6. that giveth, the Lord cannot enter upon the Feffees, yet if the villain be Tenant and the Lord Garden, he shall enter upon him, else he should lose his villain by bringing an Action against him. And here also is to be noted, that by general Words in an statute private mens Interests be not taken away, notwithstanding that which is commonly said, That every man is party and privy to an Act of Parliament. As the statutes of W. 2. cap. 1. that giveth the Formedon, doth not take away the Writ of Right here in London. The statute of W. 1. cap. 1. that saith, No man shall enter a House, &c. doth not take away the Custom in London, by the which the Constable doth enter to see Bawdry punished. Neither doth the statute of Marlebridge cap. 20. take away their Jurisdiction that have Conizance of Plea. Neither did the statute that gave the Inheritance of the Crown with all Franchises and Prerogatives, 1. H. 7. 15. give away private mens Interests; neither doth any thing make against, this purpose. The Case that is commonly put, that is to say, that by Grant of tithes by Convocation House, that the Grant should be charged; for in those Books the statute went expressly, 17. H. 6. 64 20. H. 6. 14 2. R. 3. 12. Non obstante aliquo Privilegio; to which when the party said nothing, he seemed to yield, according to the saying of the Lord Chancellor, Qui tacet, consentire videtur. The third Cases is, For although the force of statutes be such that no continuance of time can gain any Prescription against them, as may appear upon Mag. Char. cap. 30. yet notwithstanding, Time as it devoureth all things, so hath it in some points enfeebled the strength of our Estates. For in these it is true that Pliny saith, That Laws be mortal as men be; and a Law that was made in Peace may be unknit in War; and that which was made to restrain and bridle the evil doings of men, shall wax out of season then, when men have reformed their manners: And therefore the statute of Mag. Char. had the force of an statute; yea, and although by 42. E. 3. that no Authority of Parliament hereafter to come, should be of power to take away that statute; yet hath Age, which all men can fret and bite, taken away that in many things. As the same statute cap. 5. that willeth, That the Lord shall not have the Wardship antequam homagium ejus ceperit; yet if at this day he should take homage of him, he should be concluded of his Wardship. So the same statute cap. 7. Ita tamen quod si non maritabit, &c. This was a Law which was made in War, and in time of Peace decayed again; so that at this day nothing is more common, but that Widows do mary without the consent of their Lords. So the statute of Mag. Chart. cap. 12. & W. 2. cap. 26. That willeth an Assize to be taken thrice by the Year, yet at this day are they holden twice. So upon Mag. Chart. cap. 8. the words, Nos non seisemus are voided. And so upon Mag. Charta cap. 14. So Merton cap. It hath not been seen any Action to have been brought upon it. But that notwithstanding though an statute have not been put in use, yet it loseth not the force of an statute. Look for these matters, Merton 2. & Marlebridge 22. W. 1. cap. 1. & 22. Gloucestor 8. Another cause why an statute shall be taken against the Words, is, where the words seem to have escaped idly, and were put in of purpose of them that were the statute makers. So upon the statute of Marlebridge cap. 22. this word injust seemeth to have crept in; for were it justly or injustly all is one. And so seemeth this word Recenter, upon the statute of Marlebridge 30. So upon W. 2. cap. 5. De vicina Parochia, are not of effect. So upon the same statute annuatim is of none effect. The statute shall be also taken contrary to the words, if the Party whose benefit lieth thereby will dispense therewithal, according to the saying, W. 2. cap. Conventio legi derogat; as the statute De Religiosis, if the Party will he may dispense therewith. So may he with the statute of W. 3. cap. 1. and those statutes which gave him a Remedy, he may choose whether he will take them or not; Commodum nemini obtruditur. And here it might aptly be shewed how the King might dispense with his statutes, for he is above his Laws, and may dispense with his Laws. But that is true in such things as are Mala prohibita; as for carrying of Wools, having of Tennis-courts, and for Bowling or such like: But for such statutes as have the force of a Law, and bind all men generally, and every man especially; as the statute of Quod ei deforceat; of Collateral Garranties, that are made, as you would say, for a Common Wealth; with such things he cannot dispense. The last Case where an statute shall be taken against the words, there, where an absurdity or contrariety should follow; for generally in expounding of statutes it is given in Precepts, Ne quid absurdum, ne quid repugnans, ne quid contrarium nugatorium. As upon Merton cap. 7. sieve se volverit maritare sieve non; you must take it Ayllors, for if you should take it at the Lords Tender, it were absurdity. So the statute of W. 1. cap. 9. Darrester & pursuer, it is taken also, & damesner, else the statute were to small purpose. So upon the same statute, ca. 36. Sont dones, Twenty shillings, it is taken for the old Rent; for else were the statute to small purpose; for aid pure file marier, should else be every day more uncertain then other. So upon W. 2. cap. 5. the words are, Jus non habens Presentandi; but if we could turn the words, and say, He that had right to Present should have Possession, it were but a mere absurdity and cavillation. And so it is upon the words Arte vel ingenio, upon the statute De Religiosis. The last Matter to be seen, is, to know whether an statute shall extend to Cases whereof there is no words; and it is said, that the statute is Expounded by the Common Law; as the statute of Gloucester sheweth not what is Waste, and therefore upon madge Char. 13. in the case of the Garden, Twenty Pence is accounted waste, and upon Gloucest. cap. 5. Three shillings four pence is adjudged waste. So Gloucester cap. 4. sheweth not who shall have a Cessavit, nor against whom it lieth, what Pleas or process shall be in it; yet all that is construed by the Common Law. And so it is, pure aid pure file marier, upon W. 1. cap. 35. This Matter is much in use among our Readers at this day, and in a manner their whole reading consist, in showing who shall have the Remedy, against whom, in what Court, and all that gear where they Please themselves much If they can plant their Cases into the squared Differences, that is like a square battle, and to show where one shall be in Ward and pay Relief; where he shall neither pay Relief nor be in Ward; where he shall pay Relief and not be in Ward; and where in Ward and not pay Relief; or where he shall pay two Reliefs or twice be in Ward. The Cases hereon may be multipled, although they be infinite, whereof there is no knowledge; yet for the most part they consist upon these Predicaments, Res. as to show the Nature; Persona, who, and against whom; Tempus, quamtitas, Qualitas, and such, of which I have said, the Readers differences do consist. The Proviso's in statutes are the last part, and make a Law; for in them commonly the words are, By Authority aforesaid of these Statutes; If any man be to take Advantage, he must show that he is not contained within the Proviso, if they be to his Advantage; as if the statute be a Pardon, and by Proviso's certain are excepted, he must show that he is none of them. The end of this Discourse upon Statutes. The Contents. THe difference betwixt a Justice of the Peace, and a Conservator of the Peace. Folio 1 How, and in what manner Justices of Peace have their Authority. Folio 9 What Persons ought to be put in the Commission of the Peace. Folio 17 In what manner and form the Peace shall be, and when; and for what cause Surety of Peace may be had and granted. Folio 27 Of the Breach of the Peace with a multitude of people. Folio 49 Of Forcible Entries into Lands or Tenements, and of restoring the party aggrieved into his Possession again. Folio 54 An Exposition upon the Statute of Westminster 1. Cap. 1. Folio 61 Of things inquireable before the Justices of Peace, by virtue of their Commission. Folio 71 A Brief of the Charge. Folio 72 What is High Treason. Folio 73 Petty Treason. Folio 74 Praemunire. ibid. Misprisions of Treason. Folio 75 felony. ibid. Misprision of felony. Folio 79 Offences finable. ibid. How, and in what manner Justices of Peace may hear and determine Causes. Folio 93 Instructions how and in what manner Statutes shall be expounded. Folio 97 FINIS.