THE INTRODVCTION.
Of the Conservators of the Peace. CHAP. 1.
1. BEfore I enter into the handling of the particulars wherein the Iustice of Peace is to exercise his Authority, it will not be amisse in a generality by way of Introduction to set forth how the Common Law-hath provided for the preservation of peace, and good government of the Subjects, and how the same hath from time to time beene enlarged by severall Acts of Parliament.Co. 3. &. 9. parti prefa [...]e. It is plaine and apparant that the common Lawes of England receiving principally their grounds from the Lawes of God and nature (which law of nature, as it pertaineth to man, is also called the law of reason) and being for their antiquity those whereby the Realme of England was governed many hundred yeares before the Norman Conquest; the Equity and Excellency whereof is such, as that there is no humane Law, within the circuite of the whole world, by infinite degrees, so apt and profitable, for the honourable, peaceable, and prosperous governement of the Kingdomes of England and Ireland, and so necessarie for all estates, and for all causes, concerning life, lands, or goods, as these Lawes beene; These Lawes, I say, even from their beginning have continued a speciall care for the conservation of the peace, and good governement of the people. And to that purpose at the Common Law (long before Iustices of the peace were made) there were sundry persons to whose charge the maintenance of this peace was recommended, and who with their other offices had (and yet still have) the conservation of the Peace annexed to their charges, as a thing incident to, and unseparable from those offices, And yet neverthelesse, they were and are called by the names of their offices, onely the conservation of the Peace being included therein.
First,20. H. 7. 7. 2. Co. 11. 85. the Kings Majestie (by his Dignitie Royall) is the principall Conservator of the Peace within his Dominions (and is Capitalis [Page 2] Iusticiarius Angliae) in whose hands, at the beginning, the administration of all Iustice first was, and afterwards by and from him only was this authority derived and given to others.
2. The Lord Chancellour (or Lord Keeper of the great Seale) the Lord high Steward of England, the Lord Marshall, and high Constable of England, the Lord Treasurer of England, and every Iustice of the Kings Bench, and also the Master of the Rolls, have inclosed in their said Offices the conservation of the Peace over all the Realme, and every of these may award precepts, and take recognizance for the Peace by vertue of their places; and the like Officers in Ireland may doe the like.
2. H. 7. 1. Br. peace. 12.3. There be others also (who by vertue of their Offices) have the conservation of the Peace, but yet onely within the precinct of their severall Courts, as namely the Iustices of the Court of Common Pleas, the Barons of the Exchequer, and the Iustices of Assise.
4. Also the Steward of the Sheriffes Turne, the Steward of a Leete, and the Steward of a Court of Pypowder, every of these are Conservators of the Peace within their severall Courts; for every of them may commit him to ward, that shall make an Affray in their presence, whilst they be in execution of their Offices; for that these be Courts of Record: and so in all other Courts of Record.
5. And as well the Steward of the Sheriffes Turne, as also the Steward of a Leete (during their Courts) may by recognizance binde him to the peace that shall make an Affray in their presence,Br. Leet. 39. F.N.B. 82. sitting the Court;13. H. 4. 12. And may commit him to Ward, untill hee hath found sureties for the peace. And may also take the examination of Felons at the Common Law,21. Ed. 4. [...]1. and commit them to the Gaole, and may also take the presentment of any Felony at the Common Law, committed within their precinct; or of any other offence against the peace, except the death of a man. See Br. Leet. 1. 2. 14. 18. 22. 26.
Co. 8. 38.6. And so if any other contempt or disturbance to the Court shall be committed in any (of the said Courts, or in any other) Court of Record, the Iudge (or Steward) there may impose upon such Offendors a reasonable Fyne.
F.N.B. 81. d.7. The Sheriffe is a Conservator of the peace within his Countie; And (upon request to him made) he may command another to finde surety of the Peace, and may commit him untill hee finde such suretie.
7. Coroners also by the Common Law, are Conservators of the peace, within the County where they be Coroners: but they have power for the keeping of the peace, only as the Constables have, and no otherwise.
9. The high Constables for hundreds are Conservators of the peace within their severall hundreds and limits.
Br. peace. 13.10. All petty Constables within the limits of their severall [Page 3] Townes be Conservators of the peace by vertue of their Office.
11. If any man shall make an Affray or assault upon another in the presence of the Constable: Or if any man shall threaten to kill, beat, or hurt another, and that complaint shall bee made thereof to the Constable, hee may commit the offendour (to the Stockes, or to some other safe custodie for the present, and after may carry him before some Iustice of peace, or to the Gaole) untill hee shall finde suretie for the peace.
12. These conservators of the peace (by the ancient common Law) are to imploy their owne valour; and may also command the helpe, aide, and force of others, to arrest and pacifie all such, who in their presence, and within their Iurisdiction, and limits, by word, or deed shall goe about to breake the peace.
13. Also these Conservators of the peace, if they have committed or bound over, any such offendours, it seemeth they are then to send to, or to be present at, and attend the next Sessions of the peace, or Gaole-delivery, there to object against such offendours.
The first ordering of Iustices of the Peace, and their authoritie. CHAP. 2.
1. IN Anno Domini 1327. Iustices or Commissioners of the Peace were first created and ordained by the statute of 1. Ed. 3. cap. 16. by which statute it was ordained that in every Shire of the Realme certaine persons should be assigned (sc. by the Kings Commission) to keepe the peace, And their authoritie was after inlarged by the statutes of 4. Ed. 3. cap. 2. 18. Ed. 3. cap. 2: And 34. Ed. cap. 1. And by the said statute of 34. Ed. 3. cap. 1. they were first (generally) enabled to heare and determine (at the Kings suite) all manner of Felonies and Trespasses; And each County had now its proper Commissioners for the peace, whereas before (it seemeth) the Commissions to the Iustices of peace were not alwayes made severally into each shire, but sometimes joyntly to sundry persons over sundry shires.
2. But the statute of 36. Edw. 3. cap. 12. is the first statute that nameth them Iustices of the peace: For the statutes of 2. Ed. 3. cap. 6. and 25. Ed. 3. cap. 6. 7. 8. speaking of Iustices seeme not to bee of our Iustices of peace; but that of 2. E. 3. as also the statute of Winchester, cap. 6. therein mentioned to bee meant of Iustices Itinerants, or Iustices in Eyre; and the other of 25. E. 3. to bee meant of Iustices or Commissioners specially assigned for servants and labourers.
3. They be called Iustices (of the peace) because they be Iudges of Record, and withall to put them in minde (by their names) that they are to doe Iustice (which is to yeeld to every man his owne by [Page 4] even portions, and according to the lawes, customes, and statutes, of this Realme, without respect of persons.)
4. They are named also Commissioners (of the peace) because they have authoritie by the Kings Commission.
5. And here it shall not be amisse to put them in minde how that Iustice may be perverted many wayes (if they shall not arme themselves with the feare of God, the love of Truth and Iustice, and with the authority and knowledge of the Lawes and Statutes of this Realme, As namely
1. First; by feare, when fearing the power or countenance of another, they doe not Iustice, Deut. 1.17. Yee shall not feare the face of man for the judgement is Gods.
2. Favour, when they seeke to please their Friend, neighbour, or others, Deut. ibid. Ye shall have no respect of persons in judgement.
3. Hatred or malice against the partie, or some of his, See Levit. 19.18.
4. Covetousnesse; when they receive or expect gift, or reward, for (as the wise man saith) Rewards and gifts doe blinde the eyes of the wise,Eccles. 10.28. and make them dumbe that they cannot reprove faults.
5. Perturbation of mind, as anger, or such like passion. Iames 1.20. The wrath of man doth not accomplish the Righteousnesse of God.
6. Ignorance, or want of true understanding what is to bee done. Ignorantia mater erroris.
7. Presumption when without law, (or other sufficient rule or warrant) they (presuming of their owne wits) proceede according to their owne wils and affections. There is more hope of a foole, then of him that is wise in his owne conceit. Prov. 26.12.
8. Delay, which in effect is a denying of Iustice; Negligentia semper habet Comitem infortunium, & mora trahit periculum.
9. Precipitation, or too much rashnesse; when they proceede hastily without due examination and consideration of the fact, and of all materiall circumstances, or without hearing both parties, for as another saith (qui aliquid statuerit parte inaudita altera aquum licet sta [...]uerit, haud aquus est) hee that shall judge or determine of a matter, the one party being unheard, although he shall give just judgement, yet is he not a just Iudge.
His Ma. speech in the S [...]archamber Anno. 1616.6. All these his late Majestie King Iames hath shortly, yet fully observed in his charge lately given to the Iudges of England (sc.) charging them, That they doe Iustice uprightly and indifferently without delay, partiality, feare or bribery, with stout and upright hearts, with cleane and uncorrupt hands, and yet not to utter their owne consents, but the true meaning of the law, not making lawes, but interpreting the Law; (and that according to the true sence thereof, and after deliberate consultation) remembring that their Office is Ius dicere, and not Ius dare.
7. According to this last also is the rule given in the booke of [Page 5] Iudges, sc. in all causes doubtfull first to consider of the matter,Iudges 1930. to consult, and then to give sentence.
8. Yea God himselfe hath given us Presidents of such deliberate proceedings, as you may see in Genesis, chap. 3. vers. 8. Gen. 3.8.9.11. &c. and chap. 18. vers. 21.
9. These are worthy Directions for all Iustices of peace, that they may carry themselves in their places uprightly and indifferently, not uttering their owne conceites, nor upon the sudden to over-rule things, but after deliberate consideration and consultation, then to proceede to execute the authority committed to them.
10. Iustices of peace are Iudges of Record,Their description or defin [...]tion. appointed by the King to bee Iustices within certaine limits, for the conservation of the peace, and for the execution of divers things comprehended within their Commission, and within divers statutes committed to their charge.
11. Now first that the Iustices of peace are Iudges of Record,9. E. 3. 4. 14. H. 8. 16. (yea that every Iustice of peace by himselfe is a Iudge of Record, and upon whose sole report and testimony, the law reposeth it selfe very much) appeareth more plainely if you observe these things following:
1. Hee is made under the great Seale, which is a matter of Record.
2. Every Iustice of peace hath judiciall power given unto him by the Commission, sc. in the first assignavimus.
3. Also by some statutes they have judiciall power given them, for they may make a Record of a force by them viewed, and may thereupon fine and imprison the offendors, yea one Iustice of peace may also heare and determine, and punish an offendor (in some cases as convicted upon his owne view or examination) as in cases of forcible Deteyner.
4. His warrant (though it be beyond his authority) is not disputable by the Constable, or other inferior Minister, but must be obeyed and executed by them; But this must bee understood,14. H. 8. 18. Co. 10. 7. 6. when the Iustice of peace hath Iurisdiction of the cause, for, or concerning which he hath granted his warrant; for otherwise the Constable or other Officer executing such warrant is punishable notwithstanding the warrant.
5. Hee may take a Recognizance (for the peace, &c.) which is a matter of Record, and which none can doe, but a Iudge of Record, See Br. Recog. 8. & 14.
6. His record (or testimony) in some cases is of as great force, and in some other cases, of greater force, then an Indictment upon the oath of twelve men, as in cases of Forcible Entry, forcible Deteyner and Riots.
7. Great cause therefore have the Iustices of P. to take heed that they abuse not this their credit and authoritie, either to the oppressing [Page 6] of the subject, by making untrue Records, or defrauding of the King, by suppressing true Records.
12. Now concerning peace, it is the amitie, confidence, and quiet, that is betweene men, and he that breaketh this amitie, or quiet, breaketh the peace.
13. Yet peace (in our law) most commonly is taken for an abstinence from actuall and injurious force, and offer of violence, and so is rather a restraining of hands, then an uniting of mindes; And for the maintenance of this peace, chiefly were the Iustices of Peace first made.
14. The breach of this peace seemeth to be any injurious force, or violence, moved against the person of another, his goods, lands or other possessions, whether it be by threatning words, or by furious gesture, or force of the bodie, or any other force used in terrorem populi.
15. The Office of the Iustice of Peace is principally to be exercised to the suppressing of such injurious and unlawfull force, or violence, and yet the Commission of the P. (being pro conservatione pacis & pro quieto regimine & gubernatione populi,) I see not why the Iustices of Peace should be restrained from preventing and repressing such other offences, misbehaviours and deceits as may breake the amitie, quiet, and good governement of the people; and whereof discords, and so breaches of the peace doe often arise; (though there appeare neither force nor violence in the offence it selfe) as libellings, cosinages, and such other offences.
16. But it is no part of their office to forbid lawfull suits; albeit they shall doe well to be mediators of peace in such suites and controversies as shall arise amongst their neighbours.
17. The Conservation of the peace (and therein the care of the Iustice of peace) consisteth in three things, viz:
1. In preventing the breach of the peace (wisely fore-seeing and repressing the beginnings thereof) by taking surety for the keeping of it, or for the good behaviour of the offendors, as the case shall require.
2. In pacifying such as are in breaking of the peace.
3. In punishing (according to the law) such as have broken the peace.
18. But of the three, the first; viz. the preventing part, is most worthy to be commended to the care of the Iustices of Peace.
19. Iustices of peace (at this day) in Ireland are of two sorts, and are appointed or created by two severall meanes, videlicet: The one by grant made by the King by Charter under the great seale,By Charter. Br. Commiss. 5. as Mayors and chiefe Officers in divers corporate Townes: And such the King cannot discharge againe at his pleasure, but they shall continue and enjoy their Iurisdiction, according as their Charters doe enable them: And therefore if the King grant to a Mayor or other [Page 7] head Officer of a City, or corporate Towne, and to their Successors, to bee Iustices of peace in their City or Towne, and after maketh out a Commission of the peace to others there, yet the authoritie and Iurisdiction of the Mayor, &c. remaineth good, for that it was granted to them and their successors, and is not revocable at the Kings pleasure, as a Commission of the peace is. And such Iustices of peace by Charter have thereby the same power, that the Conservators of the peace had by the Common law; And it seemeth such power also as is given to the Iustices of peace (or to any one Iustice of peace) by expresse words in any statute: but none of them have thereby the whole power which is ordinarily given to the Commissioners of the peace by their Commission.
20. The other sort of Iustices of peace are by CommissionBy Commission. (made of common course) under the great seale, and these are appointed by the discretion of the Lord Chancellour, but the authority of these Commissioners of the peace doth determine by divers meanes; yet more usually by three meanes:
First, by the death of the King, or by his Resignation of the Crowne.
Secondly, at the Kings pleasure, and that in two sorts: Either by the Kings pleasure expressed, as the King in expresse words may discharge them by his writ under the great seale, or by Supersedeas: 5. E. 4. [...]2. Br Commis. 1 [...] 12. Ass. 2 [...]. Br. Commis. 13 Br. Commiss. 20. [...]. but the Supersedeas doth but suspend their authoritie, which may be revived by a procedendo. Or by implication (as by making other Commissioners of the same kinde, and within the same limits, leaving out the ancient Commissioners names) 10. Ed. 4. 7. &. 3. Mar. 1.
21. But here the ancient Commissioners must have knowledge of such new Commission; for this determination of the old Commission,Br. Commiss. 2. groweth not immediately by the making of the new Commission; but either by giving speciall notice of the new Commission unto the old Commissioners; Or else by and after the reading (or proclaiming) of the new Commission, at the Assises, Sessions of the peace, or at the full County; Or else by holding of some open Sessions by vertue of the new Commission, (in which two last cases, the old Commissioners must take notice of the new Commission.) And in all these cases, if the ancient Commissioners doe sit, by vertue of their ancient Commission, after such notice or publishing of the new Commission, whatsoever such ancient Commissioners shall so doe is voide: And contrariwise, untill such notice or publishing of the new Commission, whatsoever meane Acts such ancient Commissioners shall so doe, by vertue of their ancient Commission, the same are good in Law. 34. Ass. p. S. Br. Commiss 14.
22.11. H. 6. ca. [...]. Also in all cases where an ancient Commission of the peace is determined by a new, yet no proce's or suit depending before the old Commissioners shall be discontinued thereby, neither shall any other thing done by the Iustices of the peace, by force of their ancient [Page 8] Commission be made, or become voide thereby.
Br. Com. 19. 21 Br. Offic. 15.23. Note also that although by the death of the King, or by his resignation, the authoritie of all Iustices of peace (yea and of all Iudges,Dyer. 165. Co. 7. 30. Br. Com. 5. Commissioners of (Oyer and Termyner) Commissioners of Gaole-delivery, Sheriffes, Escheators; and other Officers that are by Commission) doth cease, yet Mayors, and chiefe Officers in Citties and corporate Townes, which have the authoritie of Iustice of peace, or of the conservation of the peace by Charter, (to them and their Successors) their authoritie still remaineth notwithstanding the Kings death, or resignation.
24. So also the authoritie of the high Constables and pettie Constables remaineth, notwithstanding the death of the King, &c. for that their authoritie is by the common Law, and to their said Office the conservation of the peace remaineth as a thing incident and unseparable from the same.
4. E. 4. 44. Br Offic. 25. Dyer. 165.25. Coroners also do remaine Conservators of the peace, (within the County where they are Coroners notwithstanding the Kings death, &c. for they are made by the Kings Writ; and not by Commission, and their office and authoritie doth remaine untill they be removed by the Kings Writ; and their office remaining, the conservation of the peace remaineth as incident thereto.
Their oathes.26. Every Iustice of peace (before he shall take upon him to exercise the office of a Iustice of Peace) shall take two corporall oaths; the one concerning the office of a Iustice of peace; the other concerning the Kings supremacie.
27. The oath concerning the office, seemeth to be by force of the statute made 13. R. 2. ca. 7. the forme whereof as it now is followeth in these words, viz:
28. Ye shall sweare, that as Iustice of the peace in the County of Dublin in all Articles of the Kings Commission to you directed, you shall doe equall right to the poore, and to the rich after your running wit and power, and after the lawes and customes of the realme and statutes thereof made: And ye shall not bee of Councell of any quarrell hanging before you: And that yee hold your Sessions after the forme of the Statutes thereof made. And the Issues, Fynes, and Amerciaments that shall happen to be made, and all Forfeitures which shall fall before you, ye shall cause to be entred without any concealement (or imbesilling) and truely send them to the Kings Exchequer; ye shall not let for gift, or other cause, but well and truly you shall doe your office of Iustice of the peace, in that behalfe, and that you take nothing for your office of Iustice of the peace to be done, but of the King, and Fees accustomed, and costs limitted by the statute; and ye shall not direct, nor cause to be directed, any warrant (by you to bee made) to the parties, but ye shall direct them to the Bailiffes of the said County, or other the Kings Officers (or Ministers) or other indifferent persons [Page 9] to doe execution thereof. So help you God, &c.
29. The parts of this Oath are shortly sixe.
1. That they shall doe equall right to rich and poore, and according to the lawes and statutes of the realme.
2. That they shall not be of Counsell with any person, in any matter depending before them.
3. That they shall keepe their Sessions according to the statutes,2. H. 5. 4. which (as it seemeth) ought to be in the weeke after the Feast of S. Michael after the Epiphany, after the clause of Easter, and after the translation of S. Thomas, which is the third of Iuly.
4. That all Issues, Fines, Amerciaments, and Forfeitures which happen before them, be by them truly entred, and sent into the Exchequer.
5. That they take nothing for doing their office, but of the King, and the accustomed Fees appointed by the statutes.
6. That they shall not direct any their warrants to the parties, but to the Bailiffes of the County, or to other the Kings Officers, or other indifferent persons.
26. The other oath concerning the Kings supremacie, is by force of the statute, made secundo Eliz. ca. 1. The forme of which oath also followeth in these words: videlicet.
27. I. R. B. doe utterly testifie and declare in my conscience that the Kings Highnesse is the onely supreme governour of this Realme, and of all other his Highnesse Dominions, and Countries, as well in all spirituall and Ecclesiasticall things (or causes) as temporall: And that no forraigne Prince, person, prelate, State, or potentate, hath or ought to have any Iurisdiction, power, superiority, preheminence, or authority Ecclesiasticall, or spirituall within this Realme: And therefore I doe utterly renounce and forsake all forraigne Iurisdiction, powers, superiorities and authorities, and doe promise that from henceforth I shall beare faith and true allegiance to the Kings Highnesse, his heires, and lawfull Successors, and (to my power) shall assist and defend all Iurisdictions, privileges, preheminences and authorities, granted or belonging to the Kings highnesse, his heires, and Successors, and united, and annexed to the Imperiall Crowne of the Realme. So help me God, &c.
28. Yet it is most usuall that both these oathes are taken by a speciall Commission: viz. by a writ of Dedimus potestatem, directed out of the Chancery to some ancient Iustice of Peace to take the same oathes (which by them is to be certified into the same Court,) at such day as the writ commandeth.
29. If the Iustice of peace (or other person) to whom a Dedimus potestatem shall be directed to take the oathes of a new Iustice of peace, shall returne the Commission and the Oathes to be taken, when they were not taken, this is fineable in the Star-chamber.
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[Page 10]30. So if the new Iustice of peace shall exercise this office before he hath taken both these Oathes, he is likewise fineable in the Star-chamber.
31. Also if a Iustice of peace shall not performe his oath (concerning his office) he is fineable in the Star-chamber, if the neglect be of corruption, or any sinister affection, otherwise, it is if it be by Ignorance onely.
32. Now forasmuch as the authoritie of the Iustices of peace, ariseth partly out of their Commission, and partly out of the statutes, I will set downe the forme of the Commissions now used in Ireland, which are consonant to the Lawes and statutes, and to the politique government of this Kingdome.
A president for the Commissions of the peace for all the [...]ountyes of Ireland except Dublin.CArolu [...] Dei gratia, Angliae, Scotiae, Franciae & Hiberniae Rex, fidei defensor, &c. Predilecto & fideli Consiliario nostro Adamo Vice-comiti Loftus de Ely, Concellario nostro Regni nostri Hiberniae, &c. salutem. Sciatis quod nos de fidelitat. & circumspectionibus vestris plurimum confidentes. Assignavimus & per praesentes assignamus vos conjunctim & divisim & quemlibet vestrum Iusticiarios nostros ad pacem nostram in Comitatu nostro Middie conservand. Ac ad omnes ordinationes & statuta pro bono pacis nostrae, & pro conservatione ejusdem, & pro quieto regimine, & gubernatione populi nostri edita in omnibus & singulis suis articulis in dicto comitatu nostro, tam infra libertates quam extra, juxta Vim, formam & effectum eorundem, custodiendum & custodiri faciendum, & ad omnes contra formam ordinationum vel statutorum illorum, aut eorum alicujus in comitatu predicto delinquentes, castigandum & puniendum, prout secundum formam ordinationum & statutorum illorum fuerit faciendum. Ac ad omnes illos qui alicui vel aliquibus de populo nostro de corporibus suis, vel de incendio domorum suarum minas fecerint, ad sufficientem securitatem de pace, vel de bono gestu suo, erga nos & populum nostrum inveniendum coram vobis, seu aliquo vestrum venire faciendum. Et si hujusmodi securitatem invenire recusaverint, tunc eos in prisonis nostris quousque hujusmodi securitatem invenerint salvo custodiri faciendum. Assignavimus etiam & per praesentes assignamus vos & quoslibet duos vel plures vestrum quorum prefat. Cancellar. nostr. aut A. B. aut C. D. unum esse volumus Iusticiarios nostros in & per totum Comitatum predictum, tam infra libertates quam extra ad inquirendum per sacramentum proborum & legalium hominum Comitatus predicti ac omnibus alijs medijs & modis quibus rei veritas melius sciri poterit de omnibus & singulis proditionibus, murdris, homicidiis, incendiis, illicitis assemblationibus, feloniis, rober [...]s, veneficiis, incantationibus, sortilegiis, arte magica, transgressionibus, forstallariis, regratariis, ingrossariis & extortionibus quibuscunque. Ac de omnibus & singulis aliis malefactis et offensis quibuscunque de quibus Iusticiarii pacis nostrae legitimè inquirere possunt aut debent per quos [...]unque & qualitercunque in Comitatu predicto factis vel quae imposterum ibidem fieri vel attemptari contigerint. Ac etiam de omnibus illis qui in Comitatu [Page 11] predicto in Conventiculis contra pacem nostram in perturbationem populi nostri, seu vi armat. ierunt vel equitaverunt, aut imposterum ire vel equitare presumpserint. Ac de omnibus illis qui ibidem ad gentem nostram maheymandam vel interficiendam in insidiis jacuerunt, aut imposterum jacere presumpserint. Ac etiam de hostellariis, & omnibus & singulis aliis personis qui in abusu ponderum, vel mensurarum, sive in venditione victualium contra pacem & communem legem nostram, ac contra formam ordinationum, vel statutorum, vel eorum alicujus inde pro Communi utilitate dicti Regni nostri, aut populi nostri ejusdem edit. delinquerunt, vel attemptaverunt, aut imposterum delinquere, vel attemptare presumpserint in Comitatu predicto. Ac etiam de quibuscunque vicecomitibus Ballivis, Seneschallis, Constabulariis, Custodibus Gaolarum, & aliis officiariis, qui in executione officiorum suorum circa premissa, seu eorum aliqua indebite se habuerunt, aut imposterum indebite se habere presumpseriut, aut tepidi remissi, vel negligentes fuerunt, aut imposterum fore contigerint in Comitatu predicto. Et de omnibus, & singulis articulis, & circumstanciis, & aliis rebus quibuscunque, per quoscunque & qualitercunque in Comitatu predicto factis sive perpetratis, vel quae imposterum ibidem fieri, vel attemptari contigerint qualitercunque premissorum, vel eorum alicujus concernentibus plenius veritatem, Et ad indictamenta quecunque sic coram vobis seu aliquibus vestrum capta sive capienda, aut coram aliis nuper Iusticiariis pacis in Comitatu predicto facta sive capta, & nondum terminata inspiciendum. Ac ad processus inde versus omnes & singulos indictatos, vel quos coram vobis imposterum indictari contigerint, quousque capiantur reddant se, vel utlagentur faciendum et continuandum (preterquam super indictamentis de proditionibus et fellonijs) Et ad omnia et singula veneficia incantationes, sortilegia, artes magicas, transgressiones, forstallarias, regratarias, ingrossarias, extortiones, conventicula indictamenta, cetera (que) omnia et singula premissa (preterquam proditiones et felonias) secundum leges et statuta Regni nostri Hiberniae prout in hujusmodi casu fieri consuevit aut debuit audiendum et terminandum. Et ad eosdem delinquentes et quemlibet eorum pro delictis suis per fines redemptiones amerciamenta forisfactura [...] ac alio modo prout secundum legem et consuetudinem Regni nostri Hiberniae aut formam ordinationum vel statutorum predictorum fieri consuevit aut debuit castigandum et puniendum. Proviso semper quod si casus difficultatis sive magni momenti super determinationem aliquorum premissorum coram vobis vel aliquibus duobus vel pluribus vestrum evenire contigerit tunc ad justicium inde reddendum nisi in presentia unius Iusticiariorum nostrorum de uno vel de altero Banco vel unius Baronum de Scacario nostro, aut unius Iusticiariorum nostrorum, ad Assisas in Comitatu predicto capiendas assignatorum coram vobis vel aliquibus duobus vel pluribus vestrum minime procedatur. Et ideo vobis et cuilibet vestrum mandamus quod circa Custodiam pacis ordinationum statutorum, et omnium et singulorum ceterorum premissorum diligenter intendatis, et ad certos dies, et loca quae vos, vel ali qui hujusmodi duo vel plures vestrum ad hoc provi-videritis super premissis faciatis inquisitiones. Et premissa omnia et singula [Page 12] (exceptis praeexceptis) audiatis et terminetis, ac ea faciatis et expleatis in forma predicta facturi, inde quod ad justitiam pertinet, secundum legem et consuetudinem Regni nostri Hiberniae. Salvis nobis amerciamentis et aliis ad nos indespectantibus. Mandamus enim tenore presentium vicecomiti nostro Middie quod ad certos dies, et loca quae vos vel aliqui hujusmodi duo vel plures vestrum, ut predictum, est ei, ut predictum est scire feceritis, Venire faciat coram vobis, vel hujusmodi duobus vel pluribus vestrum, ut dictum est, tot et tales probos et legales homines de Balliva sua, tam infra libertates quam extra per quos rei veritas in premissis melius sciri poterit et inquiri. Assignavimus denique te prefatum. A. B. Custodem Rotulorum pacis nostrae in dicto Comitatu nostro, Ac propterea tu ad dies et loca predicta brevia, precepta, processus et indictamenta predicta, coram te et dictis sociis tuis, vel aliquibus duobus vel pluribus eorum, ut predictum est venire facias, ut ea inspiciantur, et debito fine terminentur sicut predictum est, Teste, &c. Dat. &c.
A president for the Commission of the peace for the county of Dublin onely.CArolus Dei gratia, Angliae, Scotiae, Franciae, & Hiberniae Rex, fidei Defensor, &c. Adamo Vicecomiti Loftus de Ely, &c. Salutem. Sciatis quod nos de fidelitatibus circumspectionibus & industrijs vestris plurimum confidentes, Assignavimus vos conjunctim & divisim, & quemlibet vestrum Iusticiarios nostros ad pacem nostram in Comitatu nostro Dublin, tam infra libertates quam extra conservandam, ac ad omnia ordinationes & statuta pro bono pacis nostrae, ac pro conservatione ejusdem, & pro quieto regimine, & gubernatione populi nostri edita in omnibus & singulis suis articulis in dicto Comitatu nostro tam infra libertates quam extra, juxta vim, formam, & effectum eorundem custodiendum, & custodiri faciendum; Et ad omnes contra formam ordinationum vel statutorum illorum aut eorum alicujus in Comitatu predicto delinquentes, castigandum & puniendum prout secundum [...]ormam ordinationum & statutorum illorum fuerit faciendum. Et ad omnes illos qui alicui vel aliquibus de populo nostro, de corporibus suis, vel de incendio domorum suarum, minas fecerint ad sufficientem securitatem de pace vel bono gest [...] suo erga nos & populum nostrum inveniendum, coram vobis seu aliquo vestrum venire faciendum, & si hujusmodi securitatem invenire recusaverint tunc eos in prisonis nostris quous (que) securitatem invenerint salvo custodiri faciendum. Assignavimus etiam vos & quoslibet duos vel plures vestrum quorum aliquem vestrum A. B. C. D. &c. unum esse volumus Iusticiarios nostros ad inquirendum per sacramentum proborum & legalium hominum de Comitatu predicto per quos rei veritas melius sciri poterit de omnibus & omnimodis proditionibus, felonijs, veneficijs, incantationibus, sortilegijs, arte magica, transgressionibus, forstallarijs, regratarijs, ingrossarijs, & extortionibus, ac de omnibus & singulis alijs malefactis & offensis de quibus Iusticiarij pacis nostrae legitimè inquirere possunt aut debent per quoscun (que) et qualitercun (que) in Comitatu praedicto factis sive perpetratis vel quae imposterum ibidem fieri vel attemptari contigerint, Ac etiam de omnibus illis qui in Comitatu predicto in conventiculis contra pacem nostram in perturbationem [Page 13] populi nostri seu vi armata ierunt vel equitaverunt seu imposterum ire vel equitare presumpserint. Ac etiam de omnibus hijs qui ibidem ad gentem nostram mayhemandam vel interficiendam in insidijs jacuerunt vel imposterum jacere presumpserint. Ac etiam de hostellarijs et alijs omnibus et singulis personis qui in abusu ponderum vel mensurarum sive in venditione victualium contra formam ordinationum vel statutorum vel eorum alicujus inde pro communi utilitate regni nostri Hiberniae et populi nostri ejusdem editorum delinquerunt vel attemptaverunt, seu imposterum delinquere vel attemptare presumpserint in Comitatu predicto. Ac etiam de quibuscun (que) vicecomitibus Ballivis, Seneschallis, Constabularijs, custodibus Gaolarum et alijs officiarijs qui in executione officiorum suorum circa premissa seu eorum aliqua indebite se habuerunt, aut imposterum indebite se habere presumpserint, aut tepidi remissi vel negligentes fuerunt aut imposterum fore contigerint in Comitatu predicto et de omnibus et singulis articulis circumstantijs et alijs rebus quibuscun (que) per quoscun (que) et qualitercun (que) in Comitatu predicto factis sive perpetratis vel quae imposterum ibidem fieri vel attemptari contigerint qualitercun (que) premissorum vel eorum alicujus concernentibus plenius veritatem. Et ad indictamenta quacun (que) sic coram vobis seu aliquibus vestrum capta sive capienda aut coram alijs nuper Iusticiarijs pacis in Comitatu praedicto facta sive capta, et nondum terminata inspiciendum. Ac ad processus inde versus omnes et singulos sic indictatos vel quos coram vobis imposterum indictari contigerint (preterquam de proditionibus) quous (que) capiantur reddant se vel utlagentur faciendum et continuandum. Et ad omnia et singula felonias, veneficia, incantationes, sortilegia, artes magicas, transgressiones, forstallarias, ingrossarias, regratarias, extortiones, Conventicula, indictamenta, predicta cetera (que) omnia et singula premissa (preterquam proditiones) secundum leges et statuta regni nostri Hiberniae prout in hujusmodi casu fieri consuevit aut debuit audiendum et terminandum et ad eosdem delinquentes, et quemlibet eorum pro delictis suis per fines, redemptiones, amerciamenta, forisfacturas ac alio modo prout secundum legem et consuetudinem regni nostri Hiberniae ac formam ordinationum vel statutorum praedictorum fieri consuevit aut debuit castigandum et puniendum, ac gaclam nostram ibidem de prisonarijs in eadem pro felonia detent. et incarcerat, debito modo deliberand. Proviso semper quod si casus difficultatis vel magni momenti super determinationem aliquorum premissorum coram vobis vel aliquibus duobus, vel luribus vestrum evenire contigerit, tunc ad judiciuminde reddendum nisi in praesentia unius Iusticiariorum nostrorum de uno vel altero Banco, aut unius Baronum de Scacario nostro, aut unius de Concilio nostro in lege erudito, coram vobis, vel aliquibus duobus vel pluribus vestrum minime procedatur. Et ideo vobis et cuilibet vestrum mandamus quod circa custodiam pacis ordinationum statutorum et omnium et singulorum ceterorum premissorum diligenter intendatis, et ad certos dies et loca, quae vos vel aliqui hujusmodi duo vel plures vestrum ut predictum est ad hoc provideritis super premissis faciatis inquisitiones et promissa omnia et singula audiatis et terminetis ac ea faciatis et expleatis in forma predicta factur. inde quod ad justitiam pertinet secundum [Page 14] legem et consuetudinem Regni nostri Hibernia Salvis, nobis amerciamentis et alijs ad nos inde spectantibus. Mandamus enim tenore presentium vicecomiti nostro Comitatus Dublin quod ad certos dies et loca qua vos vel aliqui hujusmodi duo vel plures vestrum ut predictum est ei ut predictum est scire feceritis venire faciat coram vobis vel hujusmodi duobus vel pluribus vestrum ut dictum est tot et tales probos et legales homines de Balliva sua tam infra libertates quam extra, per quos rei veritas in premissis melius sciri poterit et inquiri. Assignavimus deni (que) te prefat. A. Custodem rotulorum pacis nostrae in dicto Cemitatu nostro ac propterea tu ad dies et loca predicta, brevia precepta, processus et indictamenta predicta coram te et dictis socijs tuis aut aliquibus duobus vel pluribus eorum ut predictum est venire facias ut ea inspiciantur et debito fine terminentur sicut predictum est. In cujus rei testimonium, &c.
These two Commissions do somewhat differ in the second Assignavimus, for by that for the County of Dublin, the Iustices of peace have power to heare and determine felonyes, but in the other they have no power given them thereby to heare and determine of any felonie, and the reason of this difference is twofold. First because, no Iustices of Assise and gaole delivery go into the County of Dublin. Secondly, because at the quarter Sessions of the peace there is alwayes one or more of the Iudges or of the Kings counsell present. Also both these Commissions do differ from the usuall Commission of the peace in England in this particular, videlicet. By these Commissions, the Iustices of peace have power to enquire of Treason which the Iustices of peace in England by their Commission have not. The reason is because many offences which are common here, are by the Lawes of this kingdome Treason which by the Lawes in England are but felonie.
33. These Commissions have two parts containing the power of the Iustices of peace.
Stat. Winch. 13. E. 1. 2. E. 3. 6. 2. E. 3. 3.34. The first Assignavimus, or first part of the Commission doth give power to any one Iustice of peace more, or all, to keepe and cause to be kept the peace, and all ordinances and statutes made for the conservation of the peace and for the quiet governement of the people: As namely the statutes made for Huy and Cry after felons: And the statutes made against Murtherers, Robbers, Felons, Night-walkers, Affrayers, Armour worne in terrorem. Riots, forceible Entries, and all other force and violence, All which be directly against the peace. The particulars thereof you shall finde more fully hereafter and most of them under their proper titles.
35. By this first clause in the Commission, the Iustices of peace have aswell all the ancyent power touching the peace which the Conservators of the peace had by the Common law, as also that whole authoritie which the statutes have since added thereto.
36. The meanes which the Iustices of peace must use for the [Page 15] keeping of the peace, and for the execution of these statutes, is as followeth.
37. For to prevent the breach of the peace the Iu. of P. may send his warrant for the party, and may take sufficient sureties of him by recognizance for the peace, or for the good behaviour, as the case shall require, and may send the partie to the Gaole for not finding such sureties.
38. But for these statutes made for the peace, they are to be executed according to such prescript order as themselves do deliver, wherein if no power at all be expressely given to any one Iustice of peace alone, then can he not otherwise compell the observation thereof (as it seemeth) then by admonition onely. In which behalfe if he shall not be obeyed, he may preferre the cause at the Sessions and to worke it to a presentment upon the statute, and so by the help of his fellow Iustices to heare and determine thereof as law requireth.
39. The second Assignavimus, in the Commission doth give authoritie to any two Iustices of the peace, or more, the one being of the Quorum, in these five things following.
1. To enquire, by a Iurie, of all offences mentioned within the Commission.
2. To take and view all Iudictments and presentments of the Iurie.
3. To grant out proces against the offendors, except in cases of Treason, in the County of Dublin, and cases of Treason and felonie in the other Counties, thereby to cause them to come and answere to the said Iudictments.
4. To trie and heare all such offences (except before excepted) upon any former or future indictments taken before themselves, or before any other Iustices of the peace after the offendors be come in.
5. To determine thereof by giving Iudgement and inflicting punishment upon the offendors, according to the Lawes and statutes.
40. But all the busines included within the second Assignavimus, belongeth to the Sessions of the peace, which is to be declared in the second part of this booke, and therefore I forbeare to speake of it in this place.
41. Note also that there be diverse statutes, which be not specified within the Commission, and yet are committed to the charge and care of the Iustices of peace, and are a sufficient warrant and Commission of themselves, although they be not recited in the Commission: And all such statutes are also to be executed, according as the same statutes themselves do severally prescribe and set downe.
42. And for that most of the busines and practise of the Iustices of peace doth consist and lye in the execution of such statutes, as are [Page 16] committed to their charge (whether they be specified in the Commission, or not specified there) the numbers of which statutes are exceedingly encreased of late yeares to the overburthening of all the Iustices of peace (And the rather) to give some little help to such Iustices of peace who (being destitute of the assistance of such as are learned in the Lawes) are daily to administer Iustice (and to execute their office at home and out of their Sessions) I have for their better case herein endeavored (in this treatise) to set downe more orderly and particularly the severall parts and branches of every such statute by it selfe, under their proper titles, with further referments to the statutes themselves at large or to the Abridgements.
43. The power and authoritie of the Iustices of peace aswell given them by the said Commission, as by the statutes, is in some cases Ministeriall or regular and limited as a Minister onely; And in some other cases judiciall or absolute and as a Iudge.
44. Ministeriall, when he is thereto commaunded by a higher authoritie.
45. As upon A supplicavit out of the Chancery or Kings Bench, for the taking of suretie for the peace, or good behaviour; and a Writ upon the statute of North-hampton, upon a forceible Entrie.
In the execution of which two Writs the Iustice of peace may proceede no further, or otherwise then hee is authorised by such writ, and is also to returne the writ, and to certifie his doings therein, into the Court whence the writ came.
46. But in all other cases the power of the Iustices of peace is absolute (in some manner) so as they, and every of them may of their owne power proceede ex officio, and as a Iudge; yet this their power is also limited, for they may neither hang a man for a trespasse, nor fine him for a felony, but must proceede in all things according as they are prescribed by the Commission, and by the said severall statutes.
47. And yet, for that all Considerable circumstances can neither be comprehended in the Commission,Discretion. nor fore-seene at the time of the making of the statutes. Therefore oftentimes some things are referred to the consideration of the Iustices of peace, and left to be supplyed by them in their discretion.
48. The Commission of the peace (in it selfe) doth leave litle, or nothing to the discretion of the Iustices of peace, but doth limit them to proceede secundum leges, consuetudines, ordinationes, et statuta.
49. But by some late statutes some things are therein by speciall words referred to the discretion of the Iustices of peace, some out of Sessions, and some at their Sessions.
50. I will here onely set downe some particulars of such things [Page 17] as are referred to their discretions out of their Sessions.
1.Labourers. 23. H 6. ca. 13. One Iustice of peace may cause all such persons as be meete to labour (by his discretion) to worke in harvest and hay time.
2. Trespassers in Corne, Orchards, Hedges, or Woods,Trespasse. 10. Carol. ca. 23. in hib. which in the discretion of the Iustice, are not thought able to give satisfaction shalbe whipped.
3.Tyle. 17. E. 4. ca. 4. One Iustice of peace may heare and determine by examination or otherwise, by his discretion, the offences cōmitted in Tile making.
4. Two Iustices may assesse,10. Carol. ca. 13. according to their discretions proprotionably all the parishes within the hundred, towards a contribution for the parties charged upon a Robberie &c.
5. Two,9. H. 5. ca. 8. Iustices may fine (by their discretion) all buyers and sellers with unlawfull weights and measures.
6. There be some other statutes and some other cases wherein the discretion of the Iustices of peace (out of their Sessions) is tollerated. But the Counsell of Cicero herein is to be observed. Sapientis est Iudicis, cogitare tantū sibi esse permissum, quantum sit commissum ac creditum.
7. Also the sayings of the late reverend Iudge and Sage of the Law (in his fifth part in Rooks case,Co. li. 5. fo. 100. & li. 10. fo. 140. and in his tenth part in Keighleys case) are worthy observation, sc. That discretion is a knowledge or understanding to discerne betweene truth and falshood, betweene right and wrong, betweene shaddowes and substance, betweene Equity and colourable glosses and pretences, and not to doe according to our wills and private affections, for talis discretio discretionem confundit. And therefore in both the recited cases it was holden, that though the words in the Commission of Sewers do give authoritie to those Commissioners to do according to their discretions, that yet their discretion and proceedings ought to be limited and bounded with the rules of reason, Law, and Iustice. Againe, discretion (saith he) is scire per legem quid sit justum. And therefore every Iudge, Iustice, or Commissioner ought to have duos sales, viz. Salem sapientiae, ne sit insipidus. Et salem conscientiae, ne sit Diabolus.
8. And (as Master Lambert well said) no way better shall the discretion of a Iustice of peace appeare, then if he (remembring that he is lex loquens) shall containe himselfe within the lists of Law, and shall not use his discretion but only where both the Law permitteth and the present case requireth.
9. In all cases therefore where the statutes do referre the Triall of offendors (or hearing and determining of offences) to the discretion of the Iustice or Iustices of peace (out of Sessions) it is very requisite that upon such tryall or hearing the said Iustices take due examination of the offendors themselves, or of credible witnesses, (aswell concerning the fact it selfe, as the circumstances thereof,) and upon confession or other due proofe of the offence. Then to proceede according to Law and Iustice.
10. Note that in all cases where the statute referreth the trial, &c. to [Page 18] the discretion of the Iustices, the said statutes themselves do also enable the said Iust. of P. to take the examination of witnesses upon oath.
11. Note further that the Iustices of peace out of their Sessions, are now armed with farre more ample authority and power than the ancient Conservators of the peace were. For the Iustices of peace have double power given them. The one of Iurisdiction to convent the offendors before them by their warrant (in diverse cases) to examine, heare, and determine the cause. The other of coertion, (sc. that after the cause hard) to constraine them to the obedience and observance of their order and decree, which notwithstanding must be according to the rules of Law and Iustice as aforesaid. Whereas the ancient conservatours of the peace had no Iurisdiction or authori [...]ie at all either to convent the offendor before them, or to examine, heare or determine the cause, but had onely coertion, prehension or punishment of an offendour, in some few cases.
Plo. 37.And here I must further put the Iustices of peace in minde, that their authoritie and power is limited to be by them exercised, only within the County or Countyes where they be in Commission; And yet in that or those County or Countyes, the Iustices of peace of the County must not intermedle in any City there, which is a County of it selfe. Nor in any City or corporate Towne there (though it be no County of it selfe,) but within the County which have their proper Iustices of peace within themselves by the Kings Charter or Commission,Cromp. 8. 181. especially if in such Charter there be any speciall words of prohibition, that the Iustices of the shire. (Non se intromittant, &c.) except such Country Iustices shall also be in Commission in such City or Towne corporate.
12. But in other corporate Townes, which have not their proper Iustices of peace;Cromp. ib. As also in all liberties and Franchises within the County, which have the returne of writs, but have not their proper Iustices, there the Iustices of peace of the County ought to execute their authoritie, and that by the words of their Commission.
13. Againe, if a parish shall extend into two or more Counties. Or if part thereof shall lye within the liberties of any City, or Towne corporate (which have their proper Iustices) and part without. Then aswell the Iustices of peace of every County as also the Iustices, or officers of such City or Towne corporate shall intermedle only within their owne proper and distinct limits & bounds, sc. within so much of the said parish,Co. 4. 46. &c. as lyeth within their severall liberties and limits, and not to inuade or deale in other jurisdictions, for it shal be against Law & reason where offices and Iurisdictions are severall, that the one should intermedle within the Iurisdiction of the other.
14. Neither shall any Iustice of peace deale in, or punish any trespasse,Vbi quis delinquet ibi puniet. or other like offence, cōmitted in any other County (against any penall statute) though such offendor shalbe brought before him; Except the statute shall specially enable them thereto, or that it be [Page 19] for matters of the peace, or in cases of felonie or Treason; in which cases onely he may take examinations both of the offendour and accusers, and commit the offendours to prison, and security for the peace if it be offred.
15. Neither shall any Iustice of peace for the time that he shall make his abode or be out of the County where he is in Commission, exercise his office: For being out of the County where he is in Commission, he is but a private man.
16. Now my purpose is to set downe more particularly what things Iustices of peace out of their Sessions of the peace may do in the execution of their Commission, or of the statutes wherewith they are charged. And herein you must observe that some things are permitted to be executed by any one, two, or more Iustices, either in regard that such Iustice or Iustices is or are next to the place, or are of the Quorum, or the like.
17. And here note that whatsoever any one Iustice of peace alone may doe (either for the keeping of the peace, or in other execution of the Commission or statutes) the same also may lawfully be done and performed by any two, or more Iustices.
18. But where the Law giveth authority to Two,Co. li. 4. fo. 46. there one alone cannot execute this, for una persona non potest supplere vicem duarum. Et plus vident Oculi quam oculus.
19. Also when things by statute are appropriated to some one certaine Iustice, or to more,Co. li. 11. fo. 92. there such Iustice or Iustices are to pursue such their authoritie accordingly, for where an authoritie is given to foure, or to one of them, if two of them shall execute this, it seemeth they have not pursued their authoritie.
20.Plo. fo. 206. 6. Besides there seemeth a generall rule to be put in Stradlings case (in M. Plo.) that when a thing is appointed by any statute to be done by, or before one person,See. Co. li. 11. fo. 59. & 64. certaine that such thing cannot be done by or before any other. But that it ought to be done as the statute hath appointed, and by such expresse designation of one, or power given to one certaine person, all others are excluded.
21. And in such things appropriate to some one or more Iustices of peace, if without such Iustice or Iustices, all (or any of) the residue of the Iustices of that County shall intermedle therein. Such their doings is no wayes warrantable, and in such their proceedings there is no necessitie to obey them, as being no lawfull Iudges of the cause.
22. Now having made a briefe declaration of the office of Iustices of the peace in generall by way of Introduction I shall proceede to the particulars of their imployment in severall Titles according to the Alphabet.
Affray. CHAP. 1.
1. AFfray, is derived of the French-word Effrayer, which signifieth [Page 20] to terrifie, or bring feare, and which the Law understandeth to be a common wrong, and therefore I will shew you what every man may doe in such cases.
Every private man.2. Every private man being present before, or in and during the time of an Affray, ought to stay the Affrayors, and to part them, and to put them in sunder, but may not hurt them, if they resist him, for that he is but a private man.
3. An Affray being in the street, if any other shall come with harnesse or weapon to joyne with either part, every person present, or that seeth it, may stay them till the Affray be over.
4. Also every private man (being present) may stay the Affrayors, untill their heat be over, and then may deliver them to the Constable to imprison them till they finde surety for the peace.
3. H. 7. cap. 1. Br. Coron. 225.5. If any person be dangerously hurt in any Affray, or otherwise, every person may arrest the offendor, and carrie him to a Iustice of peace (who is either to baile him, untill the next gaole deliverie, or to commit him to the gaole, untill it be knowne whether the party hurt; will live or dye thereon.)
6. The ConstableThe Constable. in such cases is armed with a more large authoritie, for he may and ought in the Kings name to command the Affrayors, or such as are about to make an Affray, to avoide or surcease, and to depart; And if the Constable (being present at an Affray) doth not his best to part them, it being presented at the Sessions of the peace, such Constable shall be deepely fined for it.
3. H. 7. 10.7. If the Affrayors will not depart, but shall draw weapon, or give any blow, the Constable may command of assistance of others for the pacifying of the Affray, and may justifie the hurting of them, if they make resistance.
8. The Constable may in the Kings name command the Affrayors to keepe the Kings peace.
9. The Constables may commit the Affrayors to prison for a small time, till their heat be over; yea they may imprison the Affrayors till they finde sureties for the peace, And if any of the parties hath received any dangerous hurt in the Affray, the Constable ought to arrest and carry the offendor to the gaole (or to a Iustice of peace) to the end he may finde suretie to appeare at the next gaole deliverie, and the Constable may justifie the beating of such an offendor,8. Ed. 3. 8. & 11. if he will not obey the arrest, but make resistance, or flyeth.
10. Note, that it is properly no Affray, unlesse there be some weapons drawne, or some stroke given, or offred to be given, or other attempt to such purpose. For if men shall contend onely in hot words, this is no Affray; neither may the Constable for words only lay hands upon them, unlesse they shall threaten to kill, beat, or hurt one another, and then may the Constable arrest such persons (to goe before some Iustice of peace, to finde sureties for the keeping of the peace) and yet such threatning is no Affray.
[Page 21]11. If the Affray be in an house, and the doores shut, the Constable may breake into the house to see the peace kept, because he by his office is a Conservator of the peace by the common Law.
12. If the Affrayors flie into another mans house,7. Ed. 3. 19. the Constable (in fresh suite) may breake into the house and apprehend the Affrayors. 7. Ed. 3. 19.
13. If the Affrayors flie into another County, the Constable (or Iustice of Peace) seeing this, may in fresh suite pursue,Plo. 37. A. crom. 146. B. & 172. b. or cause them to be pursued, and to be taken there, but they can then medle no further but (as every private person may doe) to carry them before some Iustice of peace of the County where they are taken, to cause them to find suretie for the peace.
14.Cromp. 1. 46. But if the Affrayors flie into a Franchise within the same County, the Constable (or Iustice of peace) seeing this, may in fresh suite pursue and take them out of such Franchise.
15. After the Affray (it seemeth) the Constable without a warrant cannot arrest the Affrayors,F. Imp. 6. except some person be in perill of death by some hurt there receyved.
16. Every Iustice of peace may do that, which every Constable or private man may do by the common Law.
17.9. Ed. 4. 3. Cromp. 195. 196. Besides every Iustice of peace (within his limits) may presently after the Affray, commit the offendors, untill they have found suretie for the peace, if the Affray were in his presence. And if the Affray were not in his presence then upon Complaint or upon his owne discretion, he may after make his warrant to take and commit such offendors, untill they have found suretie for the peace.
18. If an Affray be made in the presence of a Iustice of peace, he may lay hands upon, and arrest the offendors, to finde sureties, &c. and may take away their weapons.
19. Every Iustice of peace (in his owne discretion) and ex officio, The Iustice. may binde all such to the peace as in his presence shall strike another, or shall threaten to hurt another, or shall contend onely in hot words. vide tit. Suretie for the peace.
20. If any person be dangerously hurt,F Iust. P 137. 10. H. 7. 20. Cromp. 154. in an Affray (or otherwise) every Iustice of peace within the yeare and day after such hurt, may commit to the gaole such offendors, there to remaine untill the day and yeare be expired, or that the said offendors shall finde sureties to appeare at the next generall gaole deliverie to answer to the felonie, if the partie hurt happen to die within the yeare after the hurt.
21. If an Affray, or assault shalbe made upon a Iustice of peace,5. H. 7. 6. or Constable, they may not onely defend themselves, but may also apprehend, and commit the offendors, untill they have found sureties for the peace, the Iustice of peace may send them to the gaole, but the Constable must commit them to the Stockes for the present, and after carry them before a Iustice of peace.
Armour. CHAP. 2.
One Iustice.1. IF any person shall ride, or goe armed offensively before the Iustices or any other the Kings officers,2. E. 3. cap. 3. P. 1. 20. R. 2. ca 1. Or in Fayres, Markets, or elsewhere (by night or by day) in Affray of the Kings people (the Sheriffe and other the Kings officers, and every Iustice of peace (upon his owne view or upon complaint thereof) may cause them to be stayed and arrested, and may bind all such to the peace or good behaviour, or for want of sureties, may commit them to the Gaole; And the said Iustice of peace (as also every Constable) may seize and take away their armour, and other weapons, and shall cause them to be praised and answered to the King as forfeited,Lamb. office of a Constable. 13. and this the Iustice of peace may do by the first Assignavimus in the Commission.
2. So of such as shall carry any Guns, Dagges, or Pistols that be charged, or that shall goe apparelled with privy Coates, or doublets, the Iustice may cause them to finde sureties for the peace, and may take away such weapons.
3. And yet the Kings servants in his presence, and Sheriffes and their officers, and other the Kings Ministers, and such as bee in their company assisting them, in executing the Kings processe, or otherwise in executing of their office, and all others in pursuing Huy and Cry where any Treason, Felony, or other like offences against the peace, be done, may lawfully beare armour or weapons.
4. Also any Iustice of peace may command that weapons be taken from such prisoners as at any time shall bee brought before him.
5. Also if any servant to husbandrie, or to any Artificer, or Victualer, or any Labourer, shall beare any Buckler, Sword or Dagger, (except they be travelling with their Master, or in their Masters message.) Every Iustice of peace may imprison them, till they have found sureties for the peace,12. R. 2. 6. P. 2. and may seize and take away their said weapons, or may cause the Constable to seize the same, and to present the said weapons at the next Sessions of the peace.
Arrest and imprisonment by what warrant, and how, and in what manner it may be executed. CHAP. 3.
What.1. AN arrest is the apprehending, and first restrayning of a mans person, depriving it of his owne will and liberty, and may be called the beginning of Imprisonment.
2. Imprisonment is where a man is arrested against his will, and is restrained of his libertie, by putting him into the Gaole, cage, or Stocks, or into some house, or otherwise by keeping him in the high [Page 23] street, or open field, so as he cannot freely goe at libertie, when and whither he would.
3.By Parol. Now concerning the precepts and warrants made by the Iustices of peace.
4. The Iustice of peace (seeing that he is a Iudge of Record) his precept or Commandement by word of mouth, in some cases is as strong as his precept in writing.
5. And therefore the Iustice of peace upon a Riot done in his presence, may command the Riotters to be arrested, and cause them to finde sureties for their good behaviour.
6. So upon an Affray, assault, threatning, or other breach of the peace done in his presence, the Iustice of peace may command by word the Officer being present, or his owne servant to arrest such offendors, to finde sureties for the peace.
7. And where the Iustice of peace commandeth one being present, to arrest another that is also in his presence,14. H. 7. 8, 9. though that commandement be by word only, it is good, and it is reputed as an arrest made by the Iustice himselfe, he being present when the arrest is made.
8. But the Iustice of peace cannot command by word,14. H. 7. 8. to arrest another being out of his presente, neither may one in the absence of the Iustice arrest another upon his command by paroll,Br. peace. 7. but it must be by a precept, or warrant in writing.
9. Next the warrant or precept of a Iustice of peace by writingBy writing. ought to be under his hand and seale, or under his hand at least.
10. And if it be for the peace or good behaviour, or the like, where sureties are to be found or required, There the warrant ought to containe the speciall cause and matter whereupon it is granted, to the intent that the party upon whom it is to be served, may provide his sureties ready and take them with him to the Iu. of peace to be bound for him. But if the warrant be for Treason, murder or felony, or other capitall offence, or for great conspiracies, rebellions, assemblies, or the like, it needs not containe any speciall cause, but there the warrant of the Iu. of peace may be to bring the party before him to make answere to such things or matters generally as shalbe objected against him, on the Kings Majesties behalfe,Cromp. 148. and this is now the common usage.
11.Plo. 37. A Iustice of peace who is dwelling out of the County granteth his warrant to be served within the County, the officer cannot carry the party out of the County to the Iustice of peace who made the warrant, but must carry him before some other Iu. within the County.
12.Br. Peace. [...]. Co. 5. 59. The Iustice of peace may make his warrant of the peace to bring the party before himselfe, and then the officer need not to carry the party before any other Iustice, And yet upon a warrant for the peace granted ex officio, the usuall manner is otherwise.
[Page 24]13. Also the Iustice of peace may in some cases make his warrant to attach the offendor to be at the next Sessions of the peace, there to answere his said offence.
For what cause.14. A Iustice of peace (ex officio) by the the first Assignavimus in the Commission, may grant his warrant to arrest or attach one that hath broken the peace, or committed other misdemeanour against the peace, to find sureties for the peace or good behaviour.
15. Also the Iustices of peace in diverse cases (as the case shall require) do use to grant their warrant against a man for his neglect, or other default, as for refusing to pay Country or Towne Rates and the like, and is warranted by the first Assignavimus of the Commission, for it is pro bono regimine.
16. And such warrant may be either to attach the offendor to be at the next Sessions, there to answer &c. or els to bring the offendor before the said Iu. or any other Iustice, &c. who finding cause, may bind such an offendor to appeare at the next Sessions, to answer the said default.
17. Also wheresoever any statute doth give authority to the Iustices of peace to cause another person to do a thing, there it seemeth, they have power given them (of congruity) to grant their warrant to bring such person before them, that so they may take order therein.
18. Also a Iustice of peace may grant his warrant to attach persons suspected of felony or Treason, and that by the first Assignavimus, in the Commission, and by the true construction of the statute of 5. Ed. 3. 14.
19. Againe, if a felony or Treason be committed, there is no doubt but that every private man without a warrant may arrest whomsoever he suspecteth of it, being a man of evill fame, &c. But if the offendor being pursued shall resist, who shalbe ayding to a private man whose goods are stolne, and who suspecteth another to have stolne them, either to search for his goods or to apprehend the party suspected, if the Iustice of peace by this warrant shall not cōmand the Constable to ayde him therein. If it be objected that the Constable may do all this of his owne authority (upon request to him made by the party robbed) it is true, and yet we find by common experience that the Constables wihout the Iustices warrant therein, are for the most part, both very fearefull and also remisse, as neither knowing their owne authoritie, nor the danger.
20. Besides, his is no new thing, for there is such a president in the old booke of Iustices of peace (impress. 1561. F. 41. a.) and it is the Common practise at this day, and seemeth to be very serviceable.
Crom. 197.21. Next for the Iustices of peace to binde over, or to grant a warrant against offendors upon any penall statute, to appeare at the Sessions, to answere to their offence or fault, though such statute be [Page 25] within the power of the Iustices of peace, yet such warrant or binding over of such offendors is not warranted, unlesse it be specially so appointed in the statute.
22. But such offendors ought first to be indicted, and thereupon the ordinary processe from the Sessions to be issued by the Clerke of the peace, is to be awarded against them, untill they come in.
23.Crom. 238. And yet there bee sundrie presidents of Attachments made from one Iustice of peace against labourers and servants, that shall refuse to serve, or that shall depart out of their service &c. contrary to the statutes, to be before the Iustices at then Sessions, to answere to their said defaults.Rast. 232. D. But these seeme also to be warranted and so appointed by the statutes of Laborers made in anno 23. Ed. 3. Anno. 25. lid. 3. ca. 6. and other statutes to that purpose.
24.To whom directed. 14. H. 8. 16. B. peace. 6. The Iustice of peace may direct his precept or warrant to the Sheriffe, Bailiffe, Constable or other officer, or to any other indifferent person by name, though he be no officer, yea to any person that he shall thinke meet, but yet the safest way is to direct it to the Constables, or to some other sworne officers.
25. A warrant directed by the Iu. of peace to the Constable or other sworne officer, and to a stranger who is no officer,Cromp. 147. and the warrant is made conjunctim et divisim and is delivered to the stranger who executeth it, all this is good.
26. A warrant directed by the Iu. of P. to the Sheriffe, he may by word command his undersheriffe, Bailiffe, or other sworne officer to serve it, without any precept by writing.
27. But if the Sheriffe will command another man (that is no such knowne officer) to serve it, he must deliver him a precept in writing, otherwise a writ of false imprisonment will lye for the arrest.
28. A warrant directed by the Iu. of P. to the Sheriffes, Baliffe, or to the Constable, or to the Iu. servant, or to an estranger, to arrest one &c. such person to whom that warrant is made, must serve it himselfe, for these can command none other to do it neither by word nor writing, nor make any deputy.
29. The officer to whom any warrant shalbe directed and delivered,The officers dutie. ought withall speed and secrecy to seeke and finde out the party, and then to execute his said warrant.
30. A sworne and knowne officer, be he Sheriffe,8. E. 4. 1. 4. 14. H. 7. 9. b. 20. H. 7. 11. 21. H. 7. 24. Co. 9. 69. undersheriffe Bailiffe, or Constable &c. needs not to shew his warrant to a man when he commeth to serve it upon him, although he demandeth it, But if the Iustice will direct his warrant to his servant, or to another (who is no sworne officer) to serve it, they must shew their warrant to the party, if he demand it, or otherwise the party may make resistance, and need not to obey it.
31. But a knowne and sworne officer,Co. 6. 54. & 96. 8. if he will not shew his warrant to the party, yet he ought, upon the arrest, to declare the contents of his warrant &c.
[Page 26] Co. 9. 69.32. And an officer giveth sufficient notice what he, is when he saith to the party, I arrest you in the Kings name, &c. And in such case the party at his perill ought to obey him, though he knoweth him not to be an officer, And if he have no lawfull warrant, the party grieved may have his action of false imprisonment against him.
Dyer 224. F. Bar. 248.33. If an officer do arrest a man for the peace, or the like, before that he hath any warrant, and then afterwards doth procure a warrant (or a warrant commeth after to him) to arrest the party for the same cause, yet the first arrest was wrongfull, and the officer is subject to an action of false imprisonment.
34. Where they be two or three knowne by the name of I. S. of D. yeoman and upon a warrant or other processe granted out against one of them, another of them is arrested, an action of false imprisonment will not lye against the officer for this, for the officer is not bound at his perill, to take notice which of them is the offendour, And perhaps no particular offence is mentioned in the warrant.
35. Where a warrant is granted out against I. N. the sonne of W. N. and the officer thereupon arresteth.10. E. 4. 12. I. N. the sonne of T. N. although in truth he be the same person that offended, and against whom the complaint was made, yet this arrest is tortious, and the Officer subject to an Action of false imprisonment.
36. The officer upon any warrant from a Iustice of peace for the peace, or good behaviour, or in any other case where the King is a party, may by force breake open a mans house, to arrest the offendor.
37. If an officer or other person hath arrested a man by vertue of his warrant, which he hath from a Iu. of peace, and then taketh his promisse that he will come againe to him such a day to go to the Iu. with him according to his warrant (and so letteth the party goe) who comes not againe at the day appointed,co. 1. 44. 52. the officer cannot after arrest or take him againe by force of his former warrant, for that this was by the consent of the officer, But if the party arrested had escaped of his owne wrong without the consent of the officer, now upon fresh suite the officer may take him againe, although he were out of view, or that he shall flie into another Towne or County.
38. Where an officer hath received a warrant, he is bound to pursue the effect of his warrant in every behalfe, or otherwise his warrant will not excuse him of that which he hath done.
21. H. 7. 39.39. If an officer having a lawfull warrant to arrest another shalbe resisted, or assaulted by the party, or by any other person, then may that officer justifie the beating or hurting of such persons, and others, upon his prayer, may and ought to ayde the Officer.
[...]4. H. 8. 16.40. If a Iustice of peace shall make any warrant for a matter wherein he hath jurisdiction, although it be beyond his authority, yet it is not disputable by the Constable, or other such officer, but must be obeyed and executed by the Officer. As if the Iu. of peace [Page 27] shall make his warrant to arrest one for the peace, or good behaviour without cause, the officer shall not bee punished for executing this.Co. 10. 67. But if a Iu. of P. shall make his warrant to do a thing out of his Iurisdiction, or in a cause whereof the Iustice of peace is no Iudge, if the officer shall execute such a warrant, here he is punishable, for the officer is not bound to obey him who is not Iudge of the cause, no more then a meere stranger. And so note that the officer is bound to take notice of the authority and jurisdiction of the Iudge. 22. Ass. 64. Plo. 394. b.
41. If any man shall abuse the Iu. of peace his warrant as by casting of it into the dirt, or treading it under his feete, he may be bound to his good behaviour and may also be indicted and fined, for it is the Kings processe.
42. When any person commeth before the Iu. of peace by force of any warrant for the peace, good behaviour, or for a Riot, or the like, the party must offer sureties, or else the Iu. may commit him.
43. If a Iustice of peace shall grant his warrant, to one to apprehend another for Treason or felony, it shalbe safe for the Iustice upon the delivery of his said warrant, to take (upon oath) the examination of the said party that requireth the warrant, or at least, to bind him over by recognizance to give Evidence at the next gaole delivery against the offendour, least that afterwards when the offendor shalbe brought, by the officer, before the Iu. upon his said warrant, or else happen to yeild himselfe to the said Iustice, then the party that procured the warrant be gone.
44. If the Constable or other officer (upon a warrant received from a Iu. of peace) shall come unto the party, and require, or charge, or command him to goe or come before the Iu. this is no arrest or imprisonment, and upon a warrant for the P. the officer ought first to require the party to goe before the Iu. before he may arrest him.
45. But this arrest (being in execution of the commandement of some Court or some officer of Iustice) is expressed in their writs, precepts, or warrants, by these words, or the like, sc. Capias, Attachias, &c. to attach, arrest, take, bring, or convay, or cause to be attached, arrested, &c. All which words do imply the taking, and laying hold of the person.
46.What persons. To this arrest all lay persons (under the degree of Barons or peeres of the Realme) be subject, and that by warrant from the Iustices of peace, as you may see here, tit. Surety for the peace.
47. But the Iu. of P. are not to grant their warrants for the peace or the like against any noble man: And yet if a capias, or attachment shalbe awarded against a Baron or Peere of the Realme from the K. Iustices at Dublin for a contempt, or in case, of debt or trespasse, the officer without any offence of Law, may execute the same, for that the officer is not to dispute the authority of the Court.
48. Ecclesiasticall persons also may be arrested and that by warrant [Page 28] from the Iustices of peace in some cases, see more hereof in the Title. Suretie for the peace.
A woman covert, may be imprisoned by the Iu. of P. for a force or Riot committed by her.
49. But otherwise of young Infants in such cases, yet if an Infant of yeares of discretion cannot find sureties for the peace, being demanded against him, he shalbe committed untill he hath found sureties.
50. The liberty of a man is a thing specially favoured by the common Law of this land, and therefore if any of the K. subjects shall imprison another without sufficient warrant, the party grieved may have his Action of false imprisonment, and shall recover damages against the other, And the King also shall have a Fine of him: For imprisonment of another without authority of the Law.
51. Also by the statute of Magna Charta made 9. H. 3. ca. 29. No freeman shalbe taken or imprisoned &c. but by the lawfull judgement of his equals (sc. by the verdict of a Iury of 12.P. Accusat. 1. 5. E. 3. ca. 9. good and lawfull men) or by the Law of the realme:Co. 10. 74. & 75. And by this statute of Magna Charta, Every arrest or imprisonment and every oppression against the Law of the land is forbidden, and if any Iudge, Officer, or other person against the Law shal usurpe any jurisdiction, and by colour thereof shall arrest, imprison or oppresse any man, it is punishable by this statute. See Co. 10. 75.
52. Note that all jurisdictions ought to be either by Charter or by prescription, Co. 11. 99.
42. Ass. p. 5.53. Also by the statutes of 25. Ed. 3. cap. 4. & 42. Ed. 3. cap. 3. No person shalbe taken, nor put to answere, unlesse it be by indictment or presentment (of a Iurie) before Iustices, or matter of record, or by due processe made by writ originall at the common Law, 42. Ass. 5.
42. Ass. p. 5.54. A Commission to arrest or take a man (and his goods) was holden to be against Law, for that this ought to be either upon indictment, or suit of the party or other due processe of Law. Br. Commiss. 15. 16. & Faux Impris. 9.
55. Neither shall any man commit another to prison, except he he be a Iudge of Record. Co. 10. 103.
See Co. 3. 12. A.56. And yet for misdemeanors done against the Kings peace the offendors aswell by the common Law, as by diverse statutes, may be arrested and imprisoned, by the officers of justice, and sometimes by private persons (as hereunder followeth) without either presentment or processe &c. And these being by the Law of the realme, are warranted by the aforesaid statute of Magna Charta, 10. E. 4. 17. As every private man may arrest another whom he knoweth to have committed a Treason, robbery, manslaughter, or other felonie, and may deliver him to the Constable of the Towne where such an offendor is apprehended,9. E. 4. 28. Or in the Constables absence may imprison and set him in the stocks, and if there be no stocks there, it seemeth he may carry [Page 29] the offendor to the next Towne and deliver him to the Constable there,Vide 9. E. 4. 28. or bring him before a Iustice of peace to be by him committed and examined.
57. Also when a Treason or felony is committed, every man may arrest suspitious persons that be of evill fame, and if such person shall make resistance, the other may justifie to beat him.
58. But for the arresting of such suspitious persons, note that there must be some Treason or felony committed indeed.
59. Also the party that shall arrest such suspected person must have a suspition of him himselfe, and for the same Treason or felony,9. Ed. 4. 28. or otherwise suspition generally is no cause to arrest another.
60. So that when any Treason or felony is done, every man that shall suspect another to be guilty thereof may arrest him, 5. H. 7. 4. 5. H. 7. 4. B. Br. Faux. Imprisonment 16.
61. Also when a felony is committed, the common voice and fame that I.S. did the felony, is sufficient cause for any man to suspect him,5. H. 7. 4. and to arrest him. Also Huy and Cry after I. S. for felony, seemeth to be sufficient cause to arrest him, though there be no felony committed: Also Huy and Cry is sufficient cause to arrest any suspitious person.
62. So when a felony is done, to be in company of the offendors, is sufficient cause to arrest him.9. Ed. 4. 28. Nedham. So to live idlely and vagrant is good cause of suspition, Also every man may arrest such as apparantly goe about to commit any felony, and may imprison them.
63. Also upon Huy and Cry for goods stolne (sc. for a horse or Bullockes, &c. of such a colour, &c.29. Ed. 3. 39. 5. H. 7. 4.) If A. bee taken driving or leading such a horse, or bullocke, or having such other stolne goods about him, though he be a man of good name and credit, yet every man may apprehend and stay A. hereupon, and may deliver him to the Constables by them to be set in the stocks, or safely kept, untill they can carrie him before a Iustice of peace, that so he may be delivered by course of Law.
64. If any man shall be dangerously hurt in an Affray,10. H. 7. 28. or otherwise, every man may arrest and imprison the offendour.
65. Nightwalkers, being strangers, or suspected persons, watchmen may arrest them, and may stay them till the morning; yea every man may arrest such Nightwalkers, for it is for the good of the Common-wealth, 4. H. 7. 18. Br. Faux Imprisonment 15.
66. The Sheriffe, Bailiffes, Constables, and other the Kings officers may arrest and imprison offendours,By officers. in all cases where a private person may, and without any writ or warrant.
67. A Constable being informed of a lewd man and woman that are together in incontinency,1. H. 7. 7. 13. H. 7. 10. may take with him so many of his neighbours as he will, to arrest the said man and woman, to finde sureties for their good behaviour. 1. H. 7. 7. 13. H. 7. 16.
68. The Iustice of peace may arrest and imprison offendours in [Page 30] all cases, where a private person, or Constable may.
69. The Iu. of P. upon his owne motion and discretion, or upon complaint, may also grant out his warrant, for the arresting or conventing before him, of all such persons as shall breake, or goe about to breake the peace, or as he shall suspect to bee inclined to breake the peace, and may commit them to prison, if they shall refuse to finde, or cannot finde sureties for to keepe the peace.
70. The Iu. of peace, in diverse cases, may in like sort grant out his warrant, for the good behaviour, against offendors, and commi [...] them to prison, for not finding sureties accordingly.
71. And these things the Iu. of peace may doe by force of the Commission and of the statutes 18. E. 3. ca. 2. et 34. Ed. 3. cap. 1.
72. If one commeth before the Iustice of peace upon his warrant for the peace, good behaviour, or for a Riot, or the like, the Iustice needeth not to demaund surety of him, but may commit him, if he doe not offer it Br. peace 7.
73. Also the Iustices of peace upon their owne view of the offences may imprison the offendors against diverse penall Lawes, as namely such as shall make any forceible Entries or holdings of possessions.
74. There be diverse other offences which by the statutes are committed to the Iu. of peace (out of their Sessions) to heare and determine, And of which the offendors shalbe convicted sometimes upon their owne confession, before the Iu. and sometimes upon examination and proofe of witnesses, In all which cases the said Iustices of peace may convent the said offendors before them (by their processe or warrant) and after such examination and conviction they may Imprison or otherwise punish the offendors according as they are limitted by the said statutes.
75. Wheresoever the Iu. of peace hath power or authority given him by any statute to bind over any man or to cause a man to doe any thing, if such person (being in his presence) shall refuse to be bound, or to doe such thing, such Iustice may send such person to the Gaole, there to remaine, till he shall performe the same.
76. All men being required ought to assist the K. officers, to pursue and arrest Traitours, Felons, and all other offendors against the peace.
Resist. 2. E. 4. 6. 21. H. 7. 39.77. If the party against whom any lawfull warrant is granted shall make resistance, or shall make an assault upon the officer, the officer may justifie the beating and hurting of him, and may also imprison him in the Stocks for the same. But if the party resisteth or flyeth before he be arrested, the officer cannot justifie the beating of him. 2. Ed. 4. 7. a. Br. Trespas. 296.
Imprisonment the place. 5. H. 4. 10. P. Prison. 1.78. None shalbe imprisoned by any Iu. of peace, but only in the Common gaole, by the statute of 5. H. 4. And therefore Iustices of peace cannot commit felons to any prisons which be no common [Page 31] gaoles, nor make a gaole of their owne houses. And yet Iustices of peace may commit to the stocks some offendors against certaine penall statutes.
20. Ed. 4. 6. 22. Ed 4. 35. 3. H. 4. 9.79. The Constable or other such officer cannot imprison any man in his house (as it seemeth) but in the Stocks, and that not above such a reasonable time, as he may provide conveniently and safely to convey the prisoner to the Iust. of peace or to the gaole.
80. If a man commit felony or Treason in one County, and be arrested for the same in another County, although he cannot be tryed nor indicted in the County where he was apprehended, yet he shalbe there imprisoned untill by the Iustices of Assise or the Iustices of the Kings Bench, he shalbe sent to the gaole of the County where the fact was committed.
81. The Constable or other officer pursuing a felon into another County takes him there,13. E. 4. 8. the felon shall be brought before a Iustice of peace of that County, and by him committed to the gaole of the County, where he is taken. For the officer being out of his County hath no more authority there, than a private man.
82. Also if the Constable, or other officer, shall see an Affray and he comming to arrest them, the Affrayors doe flie into another County, the officer (as every other private person) may pursue them into the other County and may stay or arrest them there, but the officer cannot bring them out of that County, but must carry the Affrayors before some Iu. of peace of the same County where they were taken &c. But if the Affray be in one Towne, and the Affrayors doe flie into a franchise or liberty within the same County, the officer may pursue them, and take them out of the Franchise by fresh suite.
83.See 2. E. 4. C. Br. Tres. 296. But if the Constable hath arrested one upon a warrant from a Iustice of peace, and after the arrest, the party escapeth (of his owne wrong) and flieth into another County the Constable may pursue and take him in the other County by fresh suite, and bring him before the Iu. of peace, upon whose warrant he was first arrested.
84. If a prisoner that is taken in execution shall make an escape of his owne wrong, and shall flie out of sight, and into another County where the Sheriffe hath no power, yet the Sheriffe, &c. upon fresh suite may take him againe in any other County, and he shalbe still said to be in execution yea without fresh suite the Sheriffe &c. may take him againe and keepe him, untill he hath agreed with him, otherwise if the escape were by the consent of the Sheriffe &c. Co. 3. 58. Br. escape. 4. 12.
85. And if a man be arrested for Treason or felony, and the Constable shall carry him to the Gaole and the Gaoler will not receive him,10. H. 4. 7. the Constable must bring him back to the Town where he was taken, And that Towne shall be charged with the keeping of him, untill the next gaole delivery, by the opinion of the booke 10. H. 4. Or the Constable or other party, that arrested him, may in such case keepe [Page 32] the prisoner in his owne house, as it seemeth. See. 11. Ed. 4. Br. Faux. Impris. 25. But the usuall and best course is to bring him before a Iustice of peace and to have his mittimus, and then the Gaoler may not refuse him.P. Prison. [...]. But the Gaoler denying to receive a felon by the delivery of any Constable or Towneship,4. E. 3. ca. 10. or taking any thing, for receiving such, shalbe punished for the same by the Iustices of gaole delivery.
When a statute doth appoint imprisonment, but limits no time when the offendor shalbe imprisoned,The time. then he is to be imprisoned presently,Co. 8. 119. Plo. 17. b. as in case of a force the Iu. of P. upon view hereof ought to commit the offendors presently.
86. Also when a statute doth appoint imprisonment, but limits no time how long,Cromp. 171. there the prisoner must remaine at the discretion of the Court.
87. Where a statute doth ordaine that an offendour shalbe imprisoned at the K. pleasure, or that a prisoner shall not be delivered without the Kings speciall commandement, and that upon a Fine to be made to the King, the Iustices before whom the record is, may assesse the same Fine and deliver him. 18. H. 8. 1. & Fitz. Na. Br. fol. 190. f.
The manner.88. Now for the manner of imprisonment generally in all cases where a man is committed to prison, be it for Treason, felony, or upon an execution, or but for a Trespasse or other offence, every Gaoler ought to keepe such his prisoner,Co. 8. 100. & 9. 87. In salva & arcta Custodia; Salva. sc. that he ought to be imprisoned so surely as that he cannot escape; Arcta, in respect that he ought to be kept close without conference with others for intelligence of things abroad.
And therefore if the Gaoler shall license his prisoner to goe abroad for a time and then to come againe, Or to goe abroad with a keeper, though he come againe, yet these are escapes, And if the prisoner were in for Treason or felony,1. P. [...]. ca. 12. 7. H. 4. ca. 4. this is fineable in the Gaoler at the least, if it be not felony or Treason, And if the prisoner were in upon an execution, this is so penall to the officer, as that he shalbe charged for the debt, And if the prisoner were in but for a Trespasse, yet the officer is fineable, for imprisonment was ordained for a punishment of offendors, and in terrour of all others, Vt poena ad paucos metus ad omnes perveniat. Also by the Law, those which are in execution ought not to goe at liberty within the prison,Dyer 249. Co. 3. 44. nor abroad with their keeper. 24. H. 8. much lesse in cases of felony or of higher offences.
Co. ib. P. Accomptant. 2.89. Also by the statute of Westminster. 2. ca. 11. Accomptants and such as are in execution, the Sheriffe, or gaoler may put Irons or fetters upon them, And yet if the Gaoler shall imprison a man so straitly, by putting him in the Stocks, or putting more Irons upon him then is needful,Fitz. 93. b. or keepeth his victuall f [...]om him, wherby the prisoner becommeth decrepit, lamed or otherwise diseased, he shall have an Action of the case against the Gaoler, Also the Constable or [Page 33] other such officer that shall imprison in the Stocks any offendor for felony or suspition thereof, may locke the stocks, and if need be may also put Irons upon him as it seemeth. And when he convayeth him to the gaole, or to the Iustice, he may pinyon him or otherwise make him sure so that he cannot escape.
90. It seemeth by Britton fol. 17. that by the common Law (before the statute of Westm. 2.) None should have Irons put on them, but such offendors as were taken for felony or trepassers in parkes, But the words of the statute of Westm. 2. ca. 11. are generall, quod carceri manucipientur in ferris, which word carceri seemeth to signifie any persons imprisoned for any cause (or any persons worthy of the, prison) and is not to be restrained to Accomptants only, See Coke. 3. 44.
91. Where the Iu. of peace, Sheriffe, or other Officer,Posse Comitatus. is enabled to take the power of the County, it seemeth they may command and ought to have the aide and attendance of all Knights, Gentlemen, Yeomen, Husbandmen, Labourers, Tradesmen, Servants and apprentices, and of all other such persons, being above the age of 15. yeares, and that are able to travell.
92. But woemen, Ecclesiasticall persons, and such as be decrepit or diseased of any continuall infirmity shall not be compelled to attend them.
93. And in such cases, it is referred to the discretion of the Iustices of peace (or Sheriffe &c.) what number they will have to attend upon them, and how and after what manner they shalbe armed, weaponed, or otherwise furnished. But it is not justifieable for the Iu. of Peace, Sheriffe, or other officer to assemble Posse Comitatus or raise a power or assembly of people (upon their owne heads) without just cause, and therefore it is to be considered upon what occasion a Iustice of peace or other officer may to his assistance take posse Comitatus.
94. Any Iustice of peace or Sheriffe may take of that County where he is a Iustice, or Sheriffe, any number that they shall thinke meet, to pursue, apprehend, arrest and imprison Traytors, Murderers, Robbers and other felons or such as doe breake or goe about to breake or disturbe the Kings peace in any outragious manner, and every man being required, ought to assist and aide them.
95. The Iust. of P. and the Sheriffe or undersheriffe, may take Posse comitatus, for the suppressing of Riots, and all sorts of persons (being able and required) ought to assist them therein.
96.14. H. 7. 8. Yea any one Iustice of peace may take the power and aide of the County to suppresse Riottets and needs not to tarry for the comming of another Iust. or of the Sheriffe.
97. Also in cases of forceible entry, any Iustices of peace may take Posse comitatus, to remove such persons as by his view, or by Inquisition taken before him, shalbe found to have made any [Page 34] forceible entry (into other mens possessions) or to detaine them with force.
98. The Sheriffe or undersheriffe, or Bailiffe &c. if need be, may by the common Law take the power of the County (what number they shall thinke good) to execute the K. processe or writ,3. H. 7. 1. 10. Co. 5. 115. Br. Fine. p. 37. be it a writ of execution, Replevin, Estreperment, Capias, or other writ, it being the Kings commandement,Br. Riots. 2. 3. See the stat. Westminst. 1. 17. Westminst. 2. 39. And such as shall not assist them therein being required shall pay a Fine to the King.3. H. 7. 1. Br. Trespasse 266. The Sheriffes Bailiffe, to execute a Replevin, tooke with him three hundred men armed (modo guerino) sc. with Brigandines, Iacks, and Guns, and it was holden lawfull, for the Sheriffes officer hath power to take assistance, aswell as the Sheriffe himselfe, for that all is one office, and one Authority.
99. A man demands the P. in Chancery against a great Lord, and hath a Supplicavit directed to the Sheriffe, there if need shall be, the Sheriffe may take his Posse comitatus to aide him to arrest such a Lord. So it seemeth if a Supplicavit bee directed to a Iustice of peace, the Iustice of peace, or the officer to whom the Iustice of peace shall make his warrant in this behalfe (upon resistance made) may, if neede be, take Posse Comitatus to aide him to arrest the party: Quia quando aliquid mandatur, mandatur & omne per quod pervenitur ad illud, Co. 5. 115.
100. But besides this, every Sheriffe is enabled by his writ of assistance, whereby there is commandement under the great seale to all Archbishops, Dukes, Earles, Barons, and all other the Kings subjects within the fame County to be aiding to him in whatsoever belongeth to his office, &c.
101. The Sheriffe, if need require it, or the Constable may take Posse Comitatus to execute the precept of a Iustice of peace.3. H. 7. 10. 13. H. 7. 19. Br. Trespasse 432. The Constable of a Towne upon a felony committed, or upon any Affray, or the like, may take the aide of his neighbours, or other persons being present to apprehend the Felons, or to cause the peace to be kept, and to carry the offendors before the Iu. of peace, and if any refuse to aide the Constable in this case, he is to be punished in the Sessions of the peace by Fyne and imprisonment.
38. Ed. 3. 8.102. One hath hurt another, whereby he is in perill of death, the Constable may take power or aide to arrest him, &c.
103. Every man may assemble his friends and neighbours to defend his person, &c. being in his house, against violence, &c. but not to goe abroad with him in a Faire or market.
Advices to the Iustices of peace.104. I thought it not amisse here shortly to admonish the Iustices of peace of some few things, for their better memory.
1. First, that they exercise not the office of a Iustice of peace, before they have taken the oath of their office, and the oath of Supremacy.
2. That they execute not this their office in their owne case, but [Page 35] to cause the offendour to bee convented before some other Iustice, quia iniquum est aliquem sui rei esse judicem, Co. 8. 18. And some late statutes have taken speciall care to prevent this, as you may see by the statute of 10. Caroli, ca. 23. in hibernia. And yet if the Iustice shall deale in his owne case, it seemeth good and justifiable in divers cases, as when a Iu. of peace shal be assaulted, or (in the doing of his office especially) shall be abused to his face, and no other Iustice of peace present with him, then he may commit such an offendor, untill he shall finde sureties for the peace or good behaviour, (as the case shall require) and the said Iustice in such case may himselfe binde the offendor, and take his suretie; but if any other Iustice of peace shall be present, it were better to desire his aide.
3. That they be carefull for the execution of the statute of Riots, and if upon their enquiry of a Riot, the truth cannot bee found by reason of any maintenance, &c. that they certifie the same within one moneth to the Lord Deputy and Counsell, according to the statute of 13. H. 4. ca. 7.
4. That upon a forceible Entry they make no restitution without Enquiry.
5. That they be circumspect in bayling of prisoners: viz. that they neither deny it to such as are baileable, nor yeeld it, where it is not grantable.
6. That all Recognisances taken by them bee certified at their next quarter Sessions, or Gaole delivery: according as the case shall require.
7. Also that they doe Iustice, and give remedy to every party grieved, in any thing that lyeth within their power, to heare, determine, or execute, and that without respect of persons, and according to the lawes and statutes of this Realme.
8. Note that all these former matters are penall to the Iustices of peace, if they shall offend in any of them, and therefore it is likely they will be the more carefull therein. But there are certaine other things principally tending to the publique good, and fit to be commended to the care of the Iustices of peace, in all which the Iustices of peace are to imploy also their speciall care and diligence, and they are shortly these following:
1. The abuses, disorders in Ale-houses and Innes to bee reformed.
2. High wayes and Bridges to be amended.
3. Huy and Cry, and fresh suit, to be duly made and pursued, after Rebels, Robbers, and other Felons and Traytors.
4. Labourers, (sc. idle persons meet to serve) to be compelled to goe to service, also negligent Recusants, which shall not resort every Sunday to Church, that such bee punished according to the st [...]tute, for the first meanes to bring men to God is to bring them to Church.
[Page 36]4. Rogues and Vagabonds to be duely punished.
5. Houses of correction to be mainetained.
6. Watch to be duly kept.
7. Weights and measures, the abuses therein to be reformed.
8. Further the Iu. of P. are to be carefull that they suffer not the King to be disadvantaged where it lyeth lawfully in their power to prevent.
9. Also that they remember, how that they exercise not the judgements of men only but of God himselfe (whose power they doe participate, and who is alwayes present with them) and therefore must take heed, that in all their actions they set God continually before their Eyes.
10. But forasmuch as most of the businesse of the Iu. of P. out of Sessions consisteth in the execution of diverse statutes committed to their charge, which statutes cannot be so sufficiently abridged, but that they will come short of the substance and body thereof, therefore it shalbe safest for the Iu. of Peace, not to relie overmuch upon these short collections thereof, but to have an Eye to the Abridgement of those Statutes or rather to the booke of Statutes at large, and therby to take their further and better directions for their whole proceedings. For (as Sir Edw. Coke observeth) Abridgements are of good and necessary use to serve as Tables, but not to ground any opinion (much lesse to proceed judicially) upon them, Ideò, saith he, satius est petere fontes, quàm sectari Rivulos. Coke. 10. 117. b.
11. And lastly for the better encouragement of Iu. of P. Constables and other officers who (by causelesse suits commenced by contentious persons against them for executing their offices) have lately been discouraged from doing their offices (with that courage, care & diligence which is required at their hands) Now for their case in pleading they are by the statute of 10. Caroli in Ireland allowed to plead the generall issue of Not guilty, and to give the speciall matter in Evidence, and for their wrongfull vexation double Costs.
Barretor. CHAP. 4.
9. E. 4 3.1. EVery Iustice of peace (upon his discretion) may binde to the peace or good behaviour, such as are common Barretors.
2. Now a common Barretor is he, who is either a common mover or stirrer up (or maintainer) of suits in Law in any Court,Co. 1. 6. or else of quarrels in the Countrie.
In Courts.3. As if in any Court of Record, County Court, hundred, or other inferior Courts, any person by fraud and malice under colour of Law, shall themselves maintaine (or stirre up others unto) multiplicitie of unjust and fained suites or informations (upon penall lawes) or shall malitiously purchase speciall Supplicavits of the peace, [Page 37] to force others to yeeld him composition, all such are Barretors.
4. In the Countrie, and these are of three sorts.
1. Disturbers of the peace,In the Country. viz. such as are either common quarrellers, or fighters in their owne cause, or common movers, or maintainers of quarrels and Affrayes betweene others.
2. Common takers, or detainers by force or subtiltie, of the possession of houses, lands or goods which beene in question.
3. Inventers or sowers of false reports,Co. 8. 361. whereby discord ariseth betweene neighbours, all these are Barretors.
5. But all such persons must be common Barretors,Co. 8. 37. sc. not in one or two, but in many causes.
Bailement and Mainprise. CHAP. 5.
1. BAilement, Mainprise, or Replevin, is the saving or delivery of a man, out of prison, before that he hath satisfied the Law sc. by finding sureties to answere, and be justified by the Law. And to this purpose these three termes (Bailement, Mainprise, and Replevin) be indifferently used in our statutes and bookes.
2. He that is bayled,Stamf. 65. is taken or kept out of prison and delivered (as it were) into the hands of his sureties, who are reputed his guardians, and who may keepe him with them,F. Manip. 12. and may imprison him by some opinions, See 22. H. 6. Br. Surety 8. & Mainp. 89.
3. By the common law the Sheriffe, and every Constable (being conservators of the peace) might have bailed a suspect of felony, but this authoritie is taken from them, and given to the Iustices of peace by these statutes following:
4. First by the statute, 1. R. 3. cap. 3. every Iustice of peace had authority (by his discretion) to let to bayle persons imprisoned for suspition of felony. But forasmuch as after the making of that statute, diverse not being baileable, were notwithstanding let to Bayle,Two Iustices. and so many notable felons escaped, therefore this statute was repealed by the statute of 3. H. 7. 3. H. 7. cap. 38 Fitz. Na. Br. 251. f. And thereby any two Iustices of peace (the one being of the Quorum) were enabled to let any prisoners (mainpernable by the Law) to baile to the next generall Sessions of the peace or gaole delivery, as the case should require. After, for that one Iustice of peace in the name of himselfe, and of one other of his fellow Iustices (not making the other Iustice privie unto the cause, wherefore the prisoner should be bailed) did oftentimes by sinister meanes set at large great and notable offendors, such as were not baileable, and yet to hide their affection therein, did signifie the cause of their apprehension to be but onely for a suspition of felony, whereby the said offendors have escaped unpunished, for reformation whereof by the statute 10. Carol. cap. 18. 10. Carol. 18. in Ireland it was enacted, that if it be for Manslaughter, or felony, or suspition of manslaughter [Page 38] or felony, in which cases the party is baileable, then the same Iustices must be present together at the time of the said bailement, and that they must certifie (in writing subscribed with their owne hands) the said Bailement at the next generall gaole delivery to be holden within the County where the person shall be arrested, or suspected (upon paine to be fined by the Iustices of gaole delivery.) Now by the preamble of both last recited statutes, the mischiefe seemeth to bee the escape of felons, and therefore if it be not in case of felony, it seemeth any one Iustice of peace alone, may baile a prisoner, except where some particular statute shall otherwise prescribe.
Cromp. 1 57.5. If the Mainpernors, or sureties, doe at any time, or in any case doubt that their prisoner, or the party by them bailed, will flie, they may take him and bring him before any Iustice of peace, and upon their prayer the said Iu. of P. may discharge such sureties and commit the party to prison, except he shall finde new sureties such as the Iustices shall conceive to be sufficient; So if a prisoner be bailed by insufficient persons, the Iu. of P. (ex officio) may cause him to finde better sureties, and may commit him till he shall so doe, for the statute of Westm. 1. ca. 15. requireth that such as be bailed, be let out by sufficient sureties. And although the number, of such sureties, their sufficiency, and the summe wherein they shalbe bound, resteth in some sort, in the discretion of the Iu. yet it is safe for them to take two sureties, at the least, and those to be men of good ability, especially if the prisoner be in for felony or suspition thereof; For if the Iustices let out a prisoner upon insufficient sureties that is committed for suspition of felony, and appeareth not, they shalbe fined by the Iustices of Assise and gaole delivery.
Stamf. 77. 21. H 7. 20.6. Now Bailement, by the Iustices of peace (in case of felony or for any other matter) is alwaies upon a certaine summe of mony (as upon 401 &c.) the which summe the sureties, &c. shall forfeit to the K. if it the prisoner appeare not at his day, And in this businesse of bailement (being a matter of much weight) It behooveth the Iustices of peace to be very circumspect aswell for feare of wrong, by denying it to him, that is baileable, as also for feare of danger to the service it selfe, by yeelding it where it is not grantable, and for feare of danger to themselves in both cases.3. E. 1. 15. For whosoever doth detaine prisoners who are baileable after they have offred sufficient sureties,See 23. H. 6. ca. 10. shalbe grievously amerced to the K. and he that doth take any reward for the deliverance of such, shalbe amerced to the K. and pay double to the prisoner.
7. So on the other side, if one who by the Law, is not baileable, shalbe let to mainprise, this shalbe adjudged a negligent escape in him or them that doe let him to main prise, [...] and for such an escape or offence they shalbe fined and punished as followeth, videlicet: If the [...]heriffe, Constable or any Bailiffe of Fee, who hath the keeping of [Page 39] prisoners shall baile any person which is not baileable, and be thereof attainted, they shall loose their Fee and office for ever,3. Ed. 1. ca. 15. and if the undersheriffe, Constable or Bailiffe of such as have Fee for keeping of prisoners, doe it contrary to their masters will, or any other Bailiffe being not of Fee, they shall have three yeares imprisonment and make Fine at the Kings pleasure.
8. Note that the Sheriffes and other officers which doe let to baile any persons forbidden (by the statute, 3. Ed. 1. cap. 15.) to be bayled shall be punished by the Iustices of gaole delivery, according to the forme of the same statute, or else by the said Iustices they may be put to their fine, as for an escape, punishable at the common Law. 25. Ed. 3. 39.
9.By the Iustices If any Iustices of peace doe let to baile or mainprise any person who for any offence by him committed is declared not to be baileable, or forbidden to be bailed by the aforesaid statute of 3.10. Caroli ca. 18. P. Iust. 108. P. Mainp. 4. Edw. 1. the said Iustices of peace so offending shall pay such fines, as shalbe assessed by the Iustices of gaole delivery where the offence shalbe committed, Fitz. 251. 1.
10. Now to shew further the authority of the Iu. of P. in this behalfe; No person arrested for Manslaughter, or felony, or suspition thereof (being baileable by the Law) shall be let to baile or mainprise, by any Iu. of P. but in open Sessions,10. Caroli. ca. 1 [...]. in Ireland. or by two Iu. of P. at the least, whereof one to be of the Quorum, and the same Iustices to be present together, at the time of the said bailement.The manner. And this bailement the said Iustices shall certifie in writing subscribed with their hands at the next generall gaole delivery &c. and in default thereof to be fined by the Iustices of gaole delivery,3. H. 7. ca. 3. 10. Caroli ca. 18 in Ireland. Also before the bailement of such prisoner the same Iustices or one of them shall take the examination of the prisoner, and information of them that bring him, of the fact and circumstances thereof, and so much thereof as shall be materiall to prove the felony, shall put in writing before they make the bailement, which examination, information, and bailement, they shall certifie at the next generall gaole delivery upon the penalty to be fined (as aforesaid) at the discretion of the Iustices.
11. But if any Iu. of P. hath taken the examination of a felon, and information against him, and after hath sent him to the gaole, now upon bailement of him by other Iustices they need not to take any new examination of the prisoner, or information against him, but under their Recog. (or together therewith) to certifie by what Iu. of P. the felon was committed, to the end that at his hands those examinations and Informations may be required, if he have not certified them, neverthelesse it is not amisse if they take new examinations, and informations, for if the prisoner or accusers vary in their examinations, good use may be made thereof for the discovery of the truth.
12.Mittimus, the forme. Also the Iustice of peace which small send any prisoner to the [Page 40] gaole, ought to shew in their Mittimus the cause of the commitment to the end it may appeare whether such prisoner be baileable or no. And if the Iustices of P. shall commit one to the gaole with these words in the Mittimus, sc. without baile or mainprise shewing a certaine cause in their Mittimus, yet if such a prisoner be baileable by Law, other Iustices of peace may baile him, but if the prisoner were committed without bayle or mainprise, and without shewing cause in the Mittimus, then other Iustices of peace cannot, or at least shall not doe well to baile him without making the other Iustice which committed him privy thereto, for he might be committed for such cause, as that he is not baileable (as for Treason &c.)
14. H. 7. 10. 2.13. Note where a man is baileable yet when he commeth before the Iustice he must offer surety to the Iustices, otherwise they may commit him to prison.
14. Next it followeth that I shew what persons be baileable and what not,Persons not baileable. It appeareth by the statute of West. 1. ca. 15. but in these foure cases following a man was not baileable at the Common Law. Br. Manip. 47. Stamf. 71. F. N. B. 66. E. First no person taken for the death of a man sc. for murder,Br. Manip. 11. 47. 57. 60. 63. 78. F. Coro. 361. or any other homicide was baileable by the common Law. And yet the Iustices of the Kings Bench did use to baile them yea although it be for Murder. Br. Mainp. 60. 63. 78. 47.
10. Carol. ca. 18. in Ireland.15. Also the statute of 10. Caroli in Ireland seemeth to admit that for manslaughter and all other homicide (except murder only) the slayer may be bailed by the Iustices of peace, which also is the common practise at this day, but let the Iustices of peace be sparing and well advised herein viz. that the offence be but manslaughter and not murder.
16. Also it seemeth the Iustices of peace cannot baile him that hath committed manslaughter, if either he hath confessed the offence upon his examination, Or that he be taken with the manner, Or that it be apparantly knowne that he killed the other, for then it is more then suspition, but he that hath dangerously hurt another may goe under baile.
17. Likewise no person taken by the Kings commandement was baileable by the common Law, but this must be intended of the Kings commadement by his owne mouth or by his privy counsell which are incorporate to him,Stamf. 73. See Stamf. 72. & Br. Mainp. 37. 47. neither was any person taken by the commandement of the Kings Iustices baileable by the common Law, but this must be intended of their absolute commandement as if the Iustice commands one to prison without shewing cause why he doth so command, or for misdemeanour done in his presence, or for some other cause which lyeth in the discretion of the Iustices more then in his ordinary power.
P. Iust. 107.18. But now for that by the statute 10. Caroli. ca. 18. It is provided that no Iust. or Iustices of P. shall let to baile any person contrary to the aforesaid statute of Westm. 1. (made 3. Ed. 1.) ca. 15. And so the [Page 41] said statute of Westm. 1. is now as a line whereby the Iustice of peace are to guide themselves in cases of Bailement, I will shew here what persons are baileable by that statute of Westm. 1. and what not.
19. By the statute of Westm. 1. no prisoner, shall be let to baile,3. Ed. 1. 15. P. Mainp. 1. F. N. B. 66. c. which is taken in any of these twelve cases following:
1. First, such as have abjured the Realme shall not be bailed.
2.Stamf. 144. b. Nor any approver or appellor (for that he confesseth) the felony and himselfe guilty, before he can burthen or accuse another, as coadjutor or helper with him in doing the same.
3. Nor he which is appealed by an approver,Fitz. 250. D. Br. Mainp. 97. so long as the approver doth live, except he be of good name, or that the Approver doth waive his appeale See Stamf. 74.
4. Nor he which is taken for burning of burning of a house, &c. feloniously.
5. Nor any excommunicate person taken (at the Bishops request) (sc upon his certificate) by the writ of Excom. capiend. F. N. B. 66.
6. Nor any felon taken with the manner, or taken for a manifest offence.
7. Nor a Theefe openly defamed and knowne.
8. Nor he which is outlawed, and yet in some cases such as be outlawed, may be bailed by the Court, &c. See Stamf. 74.
9. Nor he which hath broken the Kings prison.
10. Nor he which is taken for Treason.
11. Nor he which is taken for falsifying the Kings mony.
12. Nor he which counterfeiteth the Kings seale, Br. Mainp. 59.
20. But by the same statute of West. 1.Persons bai [...]eable. West. 1. 15. P. Mainp. 2. Persons suspect. such persons are baileable, which be taken in any of these cases following:
1. First, he that is taken (or indicted) for light suspition of felony, is baileable, F. N. Br. 249. g. 250. c. 251. f.
2. He that is taken upon suspition of burglary, robbery, or theft,Stamf. 74. c. if he be not of evill fame, nor that there be any strong presumption against him, it seemeth he is baileable.
3. A man had stolne certaine hoggs,16. E. 4. 5. Br. Mainp. 75. and (for that he was of evill fame) he was committed without baile, yet if he could have brought proofe or witnesse that he bought them, hee should have beene bailed.
4. A man is arrested for suspition of felony, and brought before the Iustice, if it shall appeare there is no such felony committed,Cromp. 15. the party may be set at liberty without baile; but if there, be a felony committed, and any probability that the prisoner is guilty, although in truth he be not guilty, yet the Iustice must either commit him, or baile him.
5.Pery Larceny, B. Mainp. 2. Fitz. 150. E. He that is taken (or indicted) for pety Larceny that amounteth not above the value of xijd, if he were not guilty of some Larceny before, he is baileable.
6.Persons indicted. P. Mainp. 2. Such as be indicted of Larceny (generally) shall be set at liberty upon sufficient surety.
[Page 42]21. And yet they shall not be bailed, if they be not also of good fame,Stamf. 74. Fitz. 1. 9. & 250. Br. Mainp. 97. but if they be of good fame they may be bayled (although they be indicted) by the Iustices that have authority to heare and determine felony, yet the Iustices of peace out of their Sessions may not safely baile such persons, for being indicted they are then more then vehemently suspected.
22. One that was indicted before the Coroner, that he had killed another Se defendendo, was by the Iustices of gaole delivery bailed till the next Assises to purchase his pardon, 26. Eliz. Cromp. 153.
Fitz. Na. br. fo. 249. g.23. One that was indicted in the Sheriffes Turne for stealing of a horse may be bailed by the Sheriffe (if he be of good fame) as appeareth by the writ de manucaptione F. N. B. 249. g. Also one that was indicted of Burglary, as principall pleaded not guilty and was after bailed 29. lib. Ass. Fitz. Mainp. 9. Another that was indicted of Robbery was bailed 41. lib. Ass. 30. Br. Mainp. 61. but these were bailed by the Court and not by a Iustice of peace in the Country.
Persons attaint or convict. Stamf. 74. D. F. Cor. 297. 354.24. But such as are attainted or convicted of felony are not baileable, for although it doth not appeare by any words of the said statute of Westminst. 1. that it doth prohibit the bailement of such as be convicted by verdict, yet it is to be intended that the statute doth aswell prohibite the bailement of those convicted and attainted by verdict, as it doth of them who be attainted by Outlarie, And therefore if a prisoner after he hath pleaded not guilty be convicted by verdict that be killed a man Se defendendo, 25. E. 3. 42. or by misfortune, yet he shall not be bailed by the opinion of some bookes. Neverthelesse the Iustices of Assise use to baile the prisoners that are found guilty Se defendendo or per infortunium taking security, by recognizance that the prisoner at the next Assizes shall appeare and produce his pardon of grace, And this I conceive to be legall enough for avoyding of charge and circuite, for if the prisoner procure a certificate of the verdict into the Chancery, it appeareth by Stamford. fo. 74. that a writ shall issue to the Sheriffe to baile him.
Dyer. 179. See Br. Mainp. 94.25. And if a man that is arraigned of homicide doth plead not guilty, and is found guilty and doth pray his Clergie, and is reprived without judgement, he is not baileable, for being convicted of the felony, he is more now then vehemently suspected, and the intendment of Law in cases of Bailement is, that it resteth indifferent whether he be guilty or not untill Tryall, &c.
26. The same reason seemeth to hold if a man be indicted of homicide (before the Coroner) yet See 22. Ass. p. 94. Br. Cor. 90. that such are baileable as are indicted before the Coroner but of Manslaughter, and so is the common practise at this day.
27. Also a man convicted of felony remaineth in prison, and after obtaineth the K. pardon, the Iust. of gaole delivery may baile him till the next gaole delivery, that he may then come with his pardon and plead it 2. E. 6. Br. Manip. 94.
[Page 43]28.Stamf. 1. Those that be charged as accessaries in felony be baileable and it seemeth that accessaries to felonies are within the Equity of this statute,Stamf. 71. c. Fitz. 250. c. Br. Main. 11. 58. and are baileable (if they be of good fame) untill the principall be convict or attaint, but after the principall is attainted the accessary shall not be bailed but kept in prison,40 E 3. f. 28. Stamf. 71. c. Br. Main. 58. and yet if (after the attainder of the principall) the accessary shall plead not guilty or other plea, it seemeth he shall be bailed, See more in Br. Mainp. 6. 9. 22. 54. 64. & 97.
29. If a man be accessary to two,Stamf. 71. F. Cor. 200. and the one principall is attainted, though the other be not, yet the accessary shall not be bailed.
30. In felony if the principall dye in prison; or be attainted of another felony the accessary shall be bailed, F. Coro. 378. Br. Mainp. 91.
31. Also the said statute of Westm. 1. cap. 15. doth no more restraine the principals (to be bailed) then the accessaries in those cases where the same statute doth not prohibite to let to Mainprise,Stamf. 74. Br. Main. 53. F. Mainp. 9. and therefore if a man be indicted of Burglary as principall, yet he may be bailed, Stamf. 74. Stamf. 74. Also the principall in appeale of Robbery may be bailed, And so may he be bailed upon an Indictment of Robbery. Br. 61. 75. & 97. Stamf. 71. Br. 56. 58. 97. But the principall for murder is not baileable either by the common Law, or by the stat. of Westminst. 1. by the Iustices of peace or by the Sheriffe, but the Iustices of the Kings Bench doe use to baile them for they are not restrained neither by the common Law nor by the said statute,Trespasse West. 1. 15. P. Mainp. 2. howbeit I doe advise the Iustices of peace to be sparing in the bailement either of Burglars, Robbers or other notorious felons, and to take very good sureties for such as they shall baile.
32. Those that be charged with (or guilty of) any Trespasse that toucheth not losse of life, nor member, be baileable by the statute of Westm. 1. 15. before they be convicted. But yet let the Iustice of peace have a Care that baile be not prohibited by any other latter statute (in such cases of Trespasse.)
33. If any person be committed to prison,Fitz. 250. g. by proces from the Sessions made upon an Indictment upon any penall statute (not prohibiting baile) he maybe bailed (out of the Sessions) by two Iustices of peace the one being of the Quorum. Br. 97. Or he may have a writ out of the Chancery directed to the Iustices of peace, or to the Sheriffe to take surety of him for his apparance, before the Iustices at their Sessions, Or he may have a Cerciorari to remove the record into the Kings Bench, and a habeas corpus to remove the body thither also. Fitz. 250. g. h. i. & 251. c.
34. If proces from the Sessions shall goe forth upon any indictment of Trespasse,Cromp. 197. 134. &c. any one Iustice of peace may take bayle of the party to appeare at the day, &c. to answere to the indictment, and the same Iu. may thereupon make his Supersedeas, for otherwise besides the mischiefe of imprisonment, the party may be outlawed before the Sessions: Note that the Iustices of peace are not to baile [Page 44] any prisoner, except the prisoner be committed for such cause wherof the said Iustices of peace may [...]either enquire, heare, [...]or determine;Cromp. 152. and therefore if a man bee taken upon proces of rebellion, issuing out of the Chancery or Star-chamber, or such like, the Iustices of peace are not to baile him. And Master Crompton reporteth of two Iustices of peace, who were fined for bailing one, in such a case.
35. Also if a man be arrested by force of any proces, writ, bill, or warrant, in any action personall, the Iustices of peace are not to baile him.
36. Persons condemned in any of the Kings Courts, and by vertue thereof committed to prison. And persons being in execution upon any statute or recognisance, &c. at the suit of any person the Iu. of P. are not to baile any such.
Execution. P. Mainp. 2. Fitz. 250. d.37. He that is appealed by an approver, being no common thiefe, nor defamed, after the death of the Approver, is baileable by the statute of West. 1.
38. Note that a man cannot become an Approver, before a Iustice of peace;Stamf. 144. 2. neverthelesse it seemeth both reasonable and serviceable, that if a felon will become an Approver, that is, will confesse his felony, and also accuse others (that were coadjutors with him in doing the same felony, or in other felonies,) before a Iustice of peace, that such Iustice may take his confession, and commit him to the gaole, and may also grant out his warrant for the apprehending of the others, that are so accused.
39. Againe, the statute of 23. H. 6. c. 10. taketh away baile from all such as be in prison by condemnation, execution, Capias utlagatum, excommunication, surety for the peace, or by the speciall commandement of any Iustice prohibiting that such be not bailed, either by the Sheriffe, or other officer or minister.
40. There be divers other statutes which doe take away baile from the offendours thereof, and that not onely upon their solemne conviction after publick hearing, triall, and judgement, but also upon the record of one or two Iustices of peace, or by private examination, and confession of the offendour, or proofe of witnesses, or such other private tryall, had before the Iustices of peace out of their Sessions, most of which I have here set downe, whereof the Iustices of the peace (as I said before) are to be carefull.
1. No person being imprisoned or taken for any of the offences, or causes here-under mentioned,Where Baile is taken away. 13. E. 1. ca. 11. shall be bailed or let to Mainprise, otherwise then as hereafter followeth, sc. Accomptants found in arrearages before Auditors shall be imprisoned, without baile untill they have satisfied their Master all arrearages.
2. Appellors, or approvers, shall not be bailed. West. 1. cap. 15. Nor he which is appealed by an Approver. Ibid.
3. Persons going or riding armed contrary to the statute of Northhampton, [Page 45] and being thereof convict, shall bee imprisoned untill they have paid such Fyne as shall be therefore imposed upon them.
4. Breakers of prison are not baileable. Westm. 1. 15.
5. Surveyors and Collectors,10. Caroli. ca. 20. in Ireland. appointed for the repairing of Bridges, if they refuse to accompt of the money by them received, they shall be imprisoned untill they have truely accompted.
6. Burners of houses, or Ricks of Corne in Towne or fields,13. H. 8. ca. 1. in Ireland. are not baileable, for these offences in Ireland are Treason.
7. Constables neglecting to whip Trespassers in Corne, woods, or Orchards at the commandement of a Iustice of peace shall be imprisoned untill they have caused the offendour to be whipped.10. Caroli ca. 23.
8. Persons condemned in any of the Kings Courts,See 23. H. 6. cap. 10. and by vertue thereof committed to prison, they shall not be bailed, untill they have agreed with the plaintiffe. 1. R. 2. c. 12. 2. H. 5. c. 2. Fitz. N. B. 121. A.
9. Conjurers and Witches shall not be bailed.
10. Counterfeiters of the Kings seale, or money, are not baileable. West. 1. cap. 15.
11. Excommunicate persons,Where baile is taken away. West. 1. 15. See 23. H. 6. ca. 10. taken by a writ de excommunicato capiendo shall not be bailed.
12. Such persons as are in execution upon any statute or recognizance, or upon judgement given in the Kings Courts at the suit of any person, shall not bee bailed untill they have agreed with the plaintiffe. 1. R. 2. ca. 12. 23. H. 6. ca. 10. Fitz. N. Br. fol. 93. c. & 121 a.
13. Felons taken for murder are not baileable, but if it be but for Manslaughter they may be bailed. But felons taken with the manner are not baileable, Westminster, 1. cap. 15. Or if it bee apparantly knowne that they did the felony, they are not baileable.
14. Or if they confesse the felony upon their examination before the Iust. of P. Cromp. 152. B. Or if he be a Thiefe openly knowne, West. 1. 15. Or if he bee of evill fame by credible report. Br. Mainp. 75. in all these cases they are not baileable.
15. Yet in these former cases of felony, if the theft be not above the value of Twelve pence, the Iustices of peace may baile the prisoner, it being no felony of death.
16. Nor hee which is convict, or attaint of felony, is not baileable.
17. Also persons convict of Forceible Entry, or detainer shall not be bailed untill they have paid their Fyne, or have found sureties by recognizance for payment thereof.
18. Forgers of any deed, writing sealed, will, or Court Roll, and the assenters thereto, and the publishers thereof knowing the same,28. Eliz. ca. 4. in Ireland. shall not be bailed if they be convicted thereof, but every of the offendours aforesaid (in all cases of forgery) being thereof convicted, shall suffer perpetuall imprisonment during their lives, where any mans estate of inheritance, Free-hold, or Coppy-hold shall bee [Page 46] defeated, charged, or molested thereby, otherwise the offendours shall suffer one yeares imprisonment without baile.
10. Caroli ca. 3. in Ireland.19. Persons convicted of making fraudulent conveyances their defenders, Iustifyers, or putters thereof in ure knowing the same, and those which shall assigne over any lands, leases or goods so to them convayed, knowing the same, shall suffer imprisonment one halfe yeare without baile.
20. Maintainers of houses, or places for any unlawfull game, and common gamesters, every Iustice of Peace seeing or finding any such may imprison the offendors till they finde sureties by recognisance no more to offend in the premises or for their good behaviour, and this he may doe by the common Law, and by the first Assignavimus of the Commission of the peace, and the offendours shall not be bailed without finding such bonds.
10. Caroli ca. 26.21. Collectors for high-wayes, bridges, Causeys or Toghers which shall refuse to accompt for the mony by them collected shall be imprisoned untill they have accompted for and paid the same, and shall not be bailed.
22. Hunting, if any lay man not having in lands 40. s. per annum, Or if any Priest or Clerke, not having 10.l. living per annum, shall keepe any hound, greyhound, or other dogge for to hunt, or any Ferrets, hayes, nets, or other engines to take or destroy Deare, Hare, Conyes, or other Gentlemens game, and shall be thereof convicted, every such offendour shall be imprisoned for one whole yeare, and not bailed. 13. R. 2. ca. 13.
23. Reporters of false newes which may cause discord betweene the King and his people, and spreaders of false newes or lyes of any of the Peeres or great officers of the Realme if they be thereof convicted shall be imprisoned untill they have brought him into the Court who was first author of the tale, and shall not be bailed, 3. E. 1. ca. 33. 2. R. 2. ca. 5.
23. H. 6. ca. 10.24. No person committed by the King, or Counsels commandement, nor by any of the K. Iust. shall be bailed.
25. So in all cases, where a statute ordaineth that an offendor shall be imprisoned at the Kings will and pleasure there the prisoner cannot be bailed or delivered untill the King hath signified his pleasure of him (as if one be imprisoned for going or riding armed contrary to the statute of North-hampton made Anno 2. E. 3. ca. 3.) 24. E. 3. f. 3. Br. contempts 6.
26. And in such cases the prisoner is to redeeme his liberty with some portion of money as he can best agree with the King or his Iustices for the same, And so it seemeth the Iu. before whom such an offendour shall be convict, may assesse such Fine or ransome, according to their discretions, and upon payment thereof may deliver the prisoner out of prison, for the King signifieth therein his pleasure by the mouths of his Iustices.
[Page 47]27. Servants departing from their masters without good cause, and persons compellable to serve, that upon request made shall refuse to serve for the wages rated and appointed by proclamation and being committed for that cause are not baileable.
28. Such persons as at their proper Costs, shall buy,8. H. 6. 4. or weare any Liveries, cloathes, or hats, to have maintenance and be thereof convicted, shall have one whole yeares imprisonment without baile.
29. Persons taken for falsifying the Kings money shall not be bailed, Westm. 1. ca. 15.
30. Persons committing perjury by his or their deposition in any Court of Record, or Court Baron,28. El. ca. 1. in Ireland. being thereof lawfully convicted, shall have sixe moneths imprisonment without baile. So of procurers of such perjury they being thereof lawfully convicted and not having to pay the penalty of the statute, they shall have one yeares imprisonment without baile.
31. Such as offend against the statute, 2. Eli. ca. [...]. concerning uniformity of common prayer, and service in the Church,2. El. ca. 2. in Ireland. and be thereof lawfully convicted by verdict of 12. men or by their owne confession, or by the notorious evidence of the fact, they shall be committed without baile, See the statute 2. El. 2. for in some cases the offendor shall suffer sixe moneths imprisonment, in other cases one whole yeares imprisonment, and in other cases imprisonment during life.
32. Purveyor (or other officer) of any noble man, &c. taking any thing of any subject against his will, [...]3. H. 6. ca. 14. such offendors shall bee committed to prison without bayle, untill they shall redeliver the goods so taken, or the value thereof, See ibid.
33. Riotters, attainted of great Riots shall have one yeares imprisonment without baile;2: H. 5. ca. 7. and all persons convicted (by the view of the Iu. or upon the enquiry, or otherwise) of any Riot shall bee committed untill they have paid their Fyne, and shall not be bailed.
34. Sheriffes not making their election of Knights for the Parliament in their full County, betweene the houres of 8. and 11. in the forenoone,23. H. 6. ca. 15. or returning knights for the Parliament contrary to the statute, and being of either of the said offences attainted before the Iustices of Assise, they shall be imprisoned for one whole yeare without baile.
35. The defendant in a suit for Tithes,33. H. 8. ca. 12. in Ireland. that disobeyeth the Iudges sentence, shall be committed without baile, untill he shall find sufficient sureties by recognizance, to obey and performe that sentence, vid. tit. Tithes.
36. Persons committed for any Treason touching the King, they are not baileable, Westm. 1. ca. 15.
37. Counterfeiters of money, or of the Kings seale, are not baileable, Westm. 1. ca. 15. Br. Mainp. 59.
[Page 48] 33. H. 8. ca. 15. in Ireland.38. Vagabonds or Rogues committed according to the statute of 33. H. 8. ca. 15. are not to be bailed.
39. Outlawed persons taken for the same are not baileable, Westm. 1. ca, 15. & 23. H. 6. ca. 10.
40. Falsifyers, or counterfeiters of waights or measures (after they be indicted thereof) shall bee taken and imprisoned without baile, untill they be acquitted or attainted, and if they be attainted, [...]hey shall remaine in prison untill they have made Fyne and ransome, according to the Iust. discretion, 9. H. 5. 8. Parl. 2.
41. Witches and Sorcerers being of any of the said offences lawfully convicted are not baileable.
42. Taking of women unmarried, and under the age of 16 yeares, out of the possession of their parents, or other person having lawfully the keeping of them,10. Caroli ca. 17. in Ireland. and against their wils, or contracting marriage with such a maid against the will of, or unknowing of, or to the Father of such a mayd (if he be living) or against the will, &c. of the mother, having the custody and governance of such child; The offendors in these two last cases being thereof lawfully convicted for the first is to have two yeares imprisonment, and for the latter shall have five yeares imprisonment without baile, &c.
Bridges, Causeys, Toghers and High-wayes. CHAP. 6.
Mag Chart. 15. P. tit. Waies. 1.1. NO village, or freemen by the common Law shall be compelled to make any bridge, but such as by right they had wont to make, and that they and their ancestors have used time out of mind to make the same,F. Grants. 94. 44. E. 3. 31. 21. E. 4. 46. or that they hold certaine lands to make the same, for though a man of his owne accord hath made or amended a Bridge, yet shall he not be thereto constrained at another time, and yet if a man and his ancestors, or a corporation, &c. have time out of minde used to doe such things, although they did it of their owne free minde and accord, and not of right, yet such continuance shall conclude them and their heires and successors. And so of highwayes, 21. Ed. 4. 46.
P. Bridges. 1.2. He that hath his land adjoyning to such Bridge, is not chargeable to make or repaire the Bridge, except where they have made it by prescription. 8. H. 7. fol. 5. b.
Cromp. 186. b. & 187. b.3. By common right Bridges shall be amended by the whole County, for that it is for their common good and ease, and yet if any have fishings,37. Aff. pl. 10. per Greene. or other profit in that River, they in reason and Law (as it seemeth) are chargeable, and therefore the Iust. of P. in good discretion may taxe such proportionably to their profit.
4. Where men are charged by their Tenure or lands every owner or occupier of such lands are to be charged proportionably to their said lands.
[Page 49]5. Such as are chargeable to repaire such Bridge may enter upon any other mans land or soyle adjoyning, and may lay there stone,Co. 11. 52. lime, timber, or other things necessary for the repairing and amending thereof, and the owner of the lands shall have no action, therefore, for it is for the common profit, &c. 43. Ass. 7.
6. If a man maketh a Bridge for easement to his Mill and that dee ayeth, the party nor any other shall be charged to repaire this,Cromp. 187. for it is no common passage.
7. But now by a statute made in Anno. 10. Caroli. ca. 26. It is enacted that aswell the Iustices of Assize in their severall circuits; as also the Iustices of peace in every Shire of this Realme, Franchise, Citty, or Burrough, shal have power and authority to enquire, heare, and determine publiquely in the generall Assizes or Sessions of the peace respectively, of all maner of annoynances of Bridges, Causeys, & Toghers, broken or decaied in the high waies, to the damage of the Kings liege people. And also of and concerning the new building, erecting and making of new Bridges, Causeys, and Toghers, broken or decayed in the high-wayes, to the damage of the Kings liege people, and also of and concerning the new building, erecting & making of new Bridges, Causeys, or Toghers, in other places fit & necessary for the fame, and to make such processe and peines upon every presentment afore them respectively, for the reformation of the same against such as ought to be charged for the making or amending of such Bridges, Causeys, and Toghers, as the Kings Iustices of his Bench use commonly to doe, or as it shall seeme by their discretions to be necessary & convenient for the speedy amendment, erecting and making of such Bridges, Causeys, and Toghers, & every or any of them. And where in many parts of this Realme, it cannot be knowne and proved what County, Barony, Citty, Burrough, Towne, or parish, nor what person certaine, or body politique, ought of right to make or repaire such Bridges, Causeys, or Toghers, by reason wherof such Bridges, Causeys, & Toghers, for lacke of knowledge of such as ought to make or repaire them, for the most part lye without making or repairing to the great annoyance of the Kings subjects. It is further enacted that in every such case the said Bridges, Causeys, and Toghers, if they be without Citty, or Towne corporate, shall be made by the Inhabitants of the Shire or Barony within the which the said Bridges, Causeys, and Toghers shal happen to be in decay, or thought fit to be newly erected or made. And if within any City, or Towne corporate which is a County of it selfe, then by the Inhabitants of every such City, or Town corporate wherein such Bridges, Causeys, & Toghers, or any of them happen to be in decay or thought fit to be newly erected & made, and if within a Towne corporate which is no County, then by the County or Barony wherein such Bridges, Causeys, or Toghers shall happen to be or thought fit to be newly erected; and if part of any such Bridges, Causeys, and Toghers, or any of them happen to be in one County and the other part thereof in another County that then in every such case, [Page 50] the Inhabitants of both the said Counties shall be charged, and chargeable to amend, make and repaire such part and portion of such Bridges, Causeys, & Toghers, or any of them as shall lie and be within the limits of the Shire wherein they be inhabiting and dwelling.
8. And it is further enacted that in every such case the said Iustices of Assise in their Circuits, and the said Iustices of the peace in the Quarter Sessions respectively, with the assent of the Grand Iury, shall have power and authority to taxe and set every Inhabitant in any such County, Barony, Citty, Burrough, Towne, or parish, within the limits of their Commissions and authorities, to such reasonable aide and summe of money as they shall thinke by ther discretions convenient and sufficient, for the new building, repairing, re-edifying and amendment of such Bridges, Causeys, and Toghers, and after such taxations made, the Iustices of Assize, and Iustices of peace respectively, shall cause the names and summes of every particular person so by them taxed to be written in a Rolle indented, and shall also have power and authority to make two Collectors of every Barony, Citty, Burrough, Towne, or Parish, for collection of all such summes of money by them set and taxed, with Collectors receiving the one part of the said Rolle indented, under the seales of the said Iustices shall have power and authority to collect and receive all the particular summes of money therein contained, and to distraine every such Inhabitants as shall be taxed and refuse payment thereof in his lands, goods, and Chattells, and to sell such distresse, and of the sale thereof, retaine and perceive all the money taxed and the residue (if the distresse be better) to deliver to the owner thereof: And that the same Iustices of Assize, and Iustices of the peace respectively, within the limits of their Commissions and authorities, shall also have power and authority to name and appoint two Surveyors which shall see every such Bridge, Causey, and Togher builded, repaired, and amended from time to time, as often as need shall require, to whose hands the said Collectors shall pay the said summes of money taxed, and by them received: And that the Collectors, and Surveyors, and every of them and their Executors, and administrators, and the Executors, and administrators of them and every of them from time to time, shall at the publique Sessions of the peace, make a true declaration and accompt to the Iustices of peace of the Shire, Citty, or Towne corporate, wherein they shall be appointed Collectors, or Surveyors, of the receipts, payments and expences of the said summes of money. And if they or any of them, refuse that to doe, that then the Iustices of the peace from time to time by their discretions, shall have power and authority to make processe against the said Collectors, and Surveyors, and every of them their Executors, and administrators, and the Executors, and administrators of every of them by Attachments under their seales, returneable at the generall Sessions of the peace; And if they appeare, then to compell them to accompt as is aforesaid, or else if they or [Page 51] any of them refuse that to doe, then to commit such of them as shall refuse toward, there to remaine without baile or mainprise, till the said declaration and accompt be truely made.
9. And lastly it is enacted by the said statute, that the Iustices of Assize, and Iustices of the peace respectively, shall have full power and authority to allow such reasonable costs and charges to the said Surveyors, and Collectors, as by their discretions shall be thought convenient.
10. Now concerning high-wayes, although by the ancient common Law, every Country ought to maintaine and repaire wayes and passages betweene Market Townes, yet for the better performance thereof, diverse ancient statutes have beene made, viz. the statute of Winchester in the time of E. 1. whereby it is ordained that the wayes should be so inlarged that no bushes should be within 200. foote, and the statute of 11. Iacobi ca. 7. 11. Iacobi ca. 7. in Ireland. whereby it is ordained that Constables and Churchwardens of every Parish within this Realme, shall yearely upon the Tuesday and wednesday in Easter weeke call together a number of the parishioners, and shal then elect and choose two honest persons of the parish to be Surveyors, and orderers of the works for the amendment of the high wayes, Cashes, and paces in their parish, leading to any market Towne, the which persons have authority by vertue of that Act to order and direct the persons and carriages that shall be appointed for those workes by their discretions, and the said persons so named shall take upon them the execucution of their said offices, upon paine every of them making default to forfeit ten pounds.
11. And the said Constables and Churchwardens shall also then name and appoint sixe dayes for the amendment and clearing of the said high-wayes, cashes and paces in the said severall parishes before the feast of Saint Iohn Baptist then next following, and shall openly in the Church the next Sunday after Easter, give notice of the same sixe dayes, and upon the said dayes the parishioners shall endeavor themselves to the amendment and cleering of the said wayes, cashes and paces, and shall be chargeable thereunto as followeth, that is to say all and every person, or persons for every plow land in tillage or pasture that hee, shee, or they, shall occupie in the same parish, and all and every other person or persons keeping therein a draught or plow shall finde and send at every day and place to bee appointed for the amendment of the high-wayes in that parish, as is aforesaid, one Wayne, or Cart, furnished after the custome of the Country with Oxen, horses, or other Cattell, and all other necessaries meete to carrie things convenient for that purpose, and also two able men with the same, upon paine of every draught making default, twenty shillings.
12. And at every day and place to bee appointed for the mending of the Cashes and clearing of the said paces two able persons [Page 52] furnished with necessarie tooles for that purpose, upon paine of every default ten shillings, and every housholder, and every cottier and labourer of that parish able to labour, and being no hired servant by the yeare, shall by themselves or one sufficient labourer, for every of them upon every of the said sixe dayes, worke and travell in the amendment of the said high-wayes, Cashes, or paces, upon paine of every person making default, to lose for every day two shillings.
13. And if the carriages of the parish, or any of them shall not be thought needfull by the supervisors to bee occupyed upon any of the said dayes for the amendment of the said high-wayes, that then every such person that should have sent any such carriage, shall send to the said worke for every carriage so spared, two able men there to labour for that day upon paine to lose for every man, not so sent to the said worke, two shillings.
14. And every person and carriage abovesaid shall bring with them such Shovels, Spades, Pickaxes, Mattocks, Axes and other Tooles and instruments as shall be necessarie for the said worke, and all and every the said persons and carriages shall doe and keep their worke as they shall be appointed by the said supervisors, or one of them, eight houres of every the said dayes, unlesse they shall bee otherwise licenced by the supervisors or one of them.
15. And further, that it shall and may be lawfull to all and singular supervisor, and supervisors, and Orderers of the said worke for the time being, for the amendment of the said high-wayes and Cashes, thereunto elected and appointed as aforesaid, for the better repairing and amendment of the high-wayes, and making of Cashes in their severall parishes and limits, where they shall be so made supervisors, if it shall so to them be thought necessary, to take and carry away of the rubbish or small broken stones of any quarrie or quarries, and to cut and carrie away any underwoods, growing, lying or being within the parish where they shall be supervisors without lycence, controlement or impeachment of the owners or owner, so much as by their discretion shall bee deemed and adjudged necessary to the amendment of the said wayes and Cashes, the owners of the said underwoods notwithstanding to be paid for the same by the parishes, as the same shall be valued by the said supervisors, and that for default of any quarry or quarries, not being within their said parish or limits, or in default of rubbish not to be found in any such quarry or quarries, it shall and may be lawfull to any such supervisors or supervisor for the use aforesaid, in the severall grounds of any person or persons being within the parish and limits where they shall be supervisors, and nigh-adjoyning to the way or wayes wherein such reparations shall be thought necessary to be made, where gravell, sand, or sinders, is likely to be found to digge or cause to be digged for gravel, sand, or sinders, & likewise to gather stones lying upon [Page 53] any lands or grounds within the parish, and meete to be used to such services and purposes, and thereof to take and carry away so much as by the discretion of the said supervisors shall be thought necessary to bee applied in the amendment of the said high-wayes.
16. Provided alwayes that it shall not be lawfull to any such supervisor or supervisors to cause any rubbish to be digged out of any quarry or quarries, but onely shall extend to such rubbish as shall be found there ready digged by the owner or owners of the said quarry or quarries, or otherwise by his or their lycence and commandement, nor to digge or cause to be digged any gravell, sand or sinder in the house, garden, Orchard, or medow, of any person or persons, nor to cause any more pits to be digged for gravell in any severall or inclosed ground then one onely; and that the same pit or hole so digged for gravell, as aforesaid, shall not bee any way in breadth and length above ten yards at the most, and every such supervisor as shall cause any such pit to be made and digged for gravell, sand or sinder, as aforesaid, shall within one moneth next after any such digging, or pit made, cause the same to bee filled and stopped up with earth, at the costs and charges of the parishioners, upon paine to forfeit to the owner, or owners of the soile where any such pit shall be made and digged, for every default five pounds to be recovered by action of debt, as in other like cases of debt have beene accustomed.
17. And forasmuch as the high-wayes in sundry places of this Realme are full of Bogges, continuall springs, of water-courses, by continuall increase and sinking whereof into the ground, the said wayes are not onely deepe and verie dangerous, but also for the most part impossible to be amended and repaired in any good and sufficient manner, it is therefore further enacted that every such supervisor or supervisors shall within the parish or limits where he or they shall be supervisors, have full power, and authoritie, to make Cashes of such Bogges, and to turne any such course or spring of water being in any of the said high-wayes, into any ditch or ditches of the severall ground or soyle of any person or persons whatsoever, next adjoyning to the said wayes, in such manner and forme as by the discretions of the said supervisors shall be thought meetest and most convenient.
18. And further also, that the hayes, fences, ditches or hedges next adjoyning, on either side, to any high or common or Fairing way, shall from time to time be ditched, scoured, repaired, and kept low, and all Trees and Bushes growing in the high-wayes, or paces cut downe by the owner or owners of the ground or soyle, which shall bee enclosed with the said hayes, Fences, ditches or hedges aforesaid, whereby the said wayes may be open, and the people have more ready and easie passage in the same, upon paine that all and every person and persons making default therein shall forfeit and loose Twenty pounds.
[Page 54]19. And it is further enacted that all and every person or persons that shall occupy or plow land in tillage, or pasture, lying or being in severall parishes shall be chargeable to the making of the high wayes and Cashes: and cutting or clearing of Paces within the parishes where he dwelleth, as farre forth and in such manner and forme, as any person having a plow-land in any parish ought to be chargeable by the said Act as aforesaid: and that every person or persons occupying or keeping in his or their hand, or possession, severall or divers plow-lands, as aforesaid, in severall or divers parishes, shall be charged to finde in each parish, where the plow-lands being in his occupying doe lye, one Cart, Waine, Tumbrell, Dungpot, or Courtslad, Carres, or drags furnished, and two men and other things as before, for the amendment and repairing of the high-wayes, making of Cashes, and cleering of Paces within the severall parishes where the said plow-lands doe lye, in such manner and forme as if hee, or they were a parishioner dwelling within the parishes where the same severall plow-lands doe lye. And for the better keeping of the highwayes passable for his Majesties subjects: It is likewise enacted that no person or persons having any ground by lease or otherwise, adjoyning to any high-way or common fairing way leading to any market Towne shall cast or scoure any ditch, and throw and lay the soyle thereof into the high way, and suffer it to lye there by the space of sixe moneths, to the annoyance of the said high way or common fairing way, upon paine of forfeiture for every load of soyle, so cast into the high way or common fairing way, in ditching or scouring, twelve pence: and where any heretofore have beene so cast into the high-wayes, or common fairing way, that there is a banke betweene the said way and ditch, that it shall be lawfull for the supervisors and workemen appointed for the amendment of the said high-wayes to make sluces, or other devices by their discretions to convay the water out of the said way into the ditch, any Law, right, interest, custome, or usage notwithstanding.
20. And it is further enacted that all and every Iustices of Assise, Iustices of Oyer, and Terminer, and Iustices of the peace, in their Sessions and Stewards of Lectes and Law dayes in their Leetes, and Law dayes, shall enquire of, and heare and determine all and every offence, matter and cause that shall grow, come or arise by reason of this Statute, and to assesse such reasonable Fines and amerciaments for the same as by them shall be thought meete, and that all and every penalty, summe or summes of money forfeited, or to be imposed for any cause within this Statute, shall be levied within every parish by the Surveyors of the wayes within that parish for the time being, by distresse and sale of distresses in manner and Forme as Fines and amerciaments in Leets have beene used, and the money so levyed to be imployed upon the high-way or common fairing way where the offence was committed within one yeare, and the said Surveyors [Page 55] shall at least once every yeare at the quarter Sessions to be holden for the said County make a true Accompt before the Iustices of peace there, or any two of them, whereof one to be of the Quorum, and shall make payment of all such summ [...] of mony to the Surveyors to be appointed for the yeare next following as he or they shall have collected upon the Estreares thereof to be made unto them, upon paine to forfeit for every time hee shall not so doe; forty shillings sterl. and to be committed untill they make payment thereof, and the Clerke of the Crowne, or of the peace, and the Steward of every Leete shall make estreate indented, of all the Fines, forfeitures and amerciaments upon the said defaults, and shall deliver the one part thereof to the Surveyors of every parish where the said offence was committed yearely within Six weekes after the Feast of Saint Michael the Archangell, and the said Surveyors upon their accompt shall have allowed for every pound they shall collect and pay Eight pence for his owne paines and 12. d. English for the Fees of the Clerke of the Crowne, Clerke of the Peace, or Steward of the Leete for the estrates indented of every severall parish that they shall deliver, as is aforesaid.
21. Note that the Kings high way, (or Regia vid) loading either to the Market, or from towne to towne, the freehold and soile thereof, and the interest of all the trees and other such profit [...] thereupon growing, doe belong to the Lord of the soile, or Lord of the Mannor, 17. Ed. 3. fol. 9. Br. Chimin. 1 [...]. [...]1. & [...]7. H. 6. fol. 9. Br. Leete [...]. And therefore such Lords are chargeable to cut downe the Trees and bushes growing in such high-wayes, and yet by the opinion of Keble, 8. H. 7. fol. 5. the freehold of the high-way, and the Trees thereupon growing are belonging to him that hath the land next adjoyning, Br. Nusans 18. but it seemeth this must be understood of common field wayes, or other private wayes, and not of the Kings highway. See [...]. Ed. 4. fol. 9. & Britton. fol. 111.
22. Note also that he which hath land adjoyning next to the K. high-way, by the common Law (before these statutes) was and is chargeable and bound of common right, to clense and scoure the ditches adjoyning to the said high-way. 8. H. 7. fol. 1. A. Br. Nasanus 28.
23. And it is called the Kings high-way, for that the King at all times, hath therein passage for himselfe and all his people, and may punish all Nufans therein, though otherwise the interest thereof be in the Lord, to take all the Trees and such other profits there growing and to bring his Action for digging therein, or for any other like Trespasse there done.
24.F.N.B. 113. A. And the King (by the common Law) may award his Commission for the amending of the high-wayes and Bridges throughout his Realme, so as his people may have safe passage thereby.
Cloth. CHAP. 7.
EVery Iustice of peace may examine and punish certaine abuses concerning the making of cloth, as appeareth by a Branch of a statute made in Anno 4. E. 4. ca. 1. which branch followeth in these words, viz.
1. Therefore it is ordeined and established by the authority aforesaid that every man and woman being cloth-makersCloth-makers. from the Feast of Saint Peter, shall pay to the Carders, spinsters, and all such other labourers of any member thereof, lawfull money for all their lawfull wagesWages. and payment of the same. And also to deliver wolles to be wrought according to the faithfull delivery and due weight upon paine of forfaiture to the same labourer the treble of his said wages so not paid, as often as the said cloth-maker doth refuse to pay the same in the said manner and forme to any such labourer, put by him to the occupation in any of the said members of cloth-making. And also to forfeit to the same labourer for every delivery of excessive and unlawfull weight to him delivered to be wrought 6. d. for every default, and that every Carder, Spinster, Weaver, Fuller, Shereman, and Dyer, shall duely doe his labour in his occupation, upon paine to yeeld to the party grieved in this behalfe his double damages.
2. And that every FullerFuller. in his Craft and occupation of fulling, rowing, or tazeyling of cloth, shall exercise tazells and no Cardes, deceiptfully empayring the same cloth, upon paine to yeeld to the party grieved his double damages.
3. And that every Iustice of peace for the time being, of every County of this Realme throughout the same County, out of Cities, Burroughes, and Townes where any Maior, Maister, Warden, bailiffe, or bailiffes is or be, and every Maior, where there is no maister, and every maister where there is no Maior, and every bailiffe or bailiffes, where there is no Maior nor maister, and every Portreve, where no Maior, maister, bailiffe nor bailiffes is or be, of every City Burgh and Towne within every such County aforesaid, and every Constable of hundred where any Constable of hundred is out of every Citty, Burgh, and Towne, where any Maior, Maister, Bailiffe or Bailiffes, or portrives is or be. And every Steward keeping or holding Wapentake or Leete of any person, out of City, Burgh, or Towne, where no Maior, Maister, bailiffe, or bailiffes, or portreves is or be, shall have power and authority by this ordinance to heare and determine the Complaints of every such cloth-maker and labourer, aswell for non payment of the said labourers wages, as of the said forfaiture and damages by due examination of the parties in this behalfe thereupon, for non payment of the said duties and forfaiture, and for the said damages to commit the said offendors in this behalfe to the next gaole within the same County there to remaine till the said duties, [Page 57] forfaitures and damages be duely paid to the said labourer or cloth-maker. And also that every of the said Iustices of P. Maior, Maister, Warden, bailiffe, or bailiffes, portreve, and steward or Wapentake and Leete upon the information or complaint of any other person, which is not grieved in this behalfe, shall have power by the said authoritie within his jurisdiction to cause the party to come before him, against whom such Information or complaint shall be made for offending this ordinance, and to examine them in and upon the matter contained in the same information or complaint. And if the party by examination or other due proofe be found guilty or defective, that then the same party, as often and for every time that he is so found guilty or defective shall forfeite to the King or to such person or persons which is or be intituled, to have fines, or amerciaments for offences done within there Iurisdiction three shillings and foure pence. And that every of the said Iustices of peace and other officers aforesaid within their Iurisdiction upon every of the said Informations or complaints shall have full power to make like proces against the party, upon whom any such Information or complaint, as before is rehearsed, shal be made to cause him personally to appeare before him, thereupon to be examined as Iustices of peace have upon Information or complaint made to them for surety of the peace without any Fee or reward to be taken or had by any of the said Iustices or any other officer in this party for the execution of their offices in this behalfe.
Constables. CHAP. 8.
1. EVery Iustice of peace may cause two Constables to be chosen in each hundred or barony. And this is to be understood of the high Constables of hundreds, and it is implyed of congruence that he sweare them,13. Ed. 1. ca. 6. and this seemeth to bee by vertue and force of the statute of Winchester, made 13. Ed. 1. and of the first Assignavimus of the Commission of the peace.
2.13. Ed. 1. ca. 6. Note that these Constables of hundreds were first ordained by the said statute of Winchester, tempore Ed. 1. And they were to make view of armour twice every yeare, and to present before Iustices assigned, defaults of Armour, of Watches, of high-waies, and of Huy and Cry, and also all such as lodged strangers, for whom they would not answere.
3.See stat. 4. Ed. [...]. ca. 3. & 10. Petie Constables (in Townes and parishes) were after devised for the aide of the Constables of the hundred, viz. about the beginning of the raigne of K. E. 3. as appeareth by Master Lambert, in his booke of the duties of Constables, pag. 9.
4. The chusing and swearing of these petty Constables is reputed properly to belong to the Court Leet:One Iustice. yet we finde it usuall and [Page 58] warranted by common experience that every Iustice of Peace doth also sweare them.
5. And here for the better chusing of these Constables, you shall understand that the law requireth that every Constable be Idoneus homo, Co. 8. 41. that is, apt and fit for the execution of the said office, and he is said in law to bee Idoneus who hath these three things, honestie, knowledge, and abilitie.
1. Honestie, to execute his office truely without malice, affection or partialitie.
2. Knowledge, to understand what he ought to doe.
3. Ability, aswell in substance or estate as in body, that so he may intend and execute his office diligently, and not through impotency of body or want to neglect the place.
6. And if any shall be chosen Constable which is not thus inabled and qualified, he may by Law be discharged of his said office, and another fit man appointed in his place.
7. Also by a statute made in Ireland in the fifth yeare of the Raigne of King Edward the fourth, it is ordained that in every English Towne of this land that hath more then three houses holden by Tenants, where no other president is, be chosen by his neighbours, or by the Lord of the same Towne, one Constable to be president and governour of the same Towne,Co. 8. 42. 5. Ed. 4. ca. 5. in Ireland. in all things that pertaineth to the common rule of the same Towne, as is in ordinance of night watch from Michaelmas to Easter yearely, under paine of three pence every night, and also to ordaine one paire of Buts for shooting within the Towne or well neare, upon the Costs and labour of the said Towne under paine of two shillings from one moneth to other after the publication hereof till the Constable be made and the Buts also, and that every man of the same Towne, in such houre as the Constable or his Deputy of his neighbours will assigne, that is betwixt threescore and sixteene yeares of age muster before the Constable or his deputy at the said Buts and shoot up and downe three times every feast day betwixt the first of March and the last day of Iuly, under paine of one halfe penny for every day, and that all these paines belevied of their goods or wages from moneth to moneth by the Constable to be spent in strengthning of the same Towne, or otherwise in his default to be levyed by the Warden of the peace, and that the paines lost be spent upon the Townes where the said paines riseth.
8. Also by a statute made in Ireland in the tenth yeare of King Henry the seventh it is ordained, That every subject having goods and Chattels to the value of Ten pounds, have an English Bow and a sneafe of Arrowes according, every subject having goods to the value of 20. l. have a Iacke, Sallet, and English Bow, and a sheafe of arrowes, every Freeholder having land to the value yearely of foure pounds, have his horse, Iacke, Sallet, Bow and Sheafe of Arrowes, [Page 59] every Lord, Knight, and Esquire within the said land have for every yeoman daily in their houshold, Iacke, Salet, Bow, and Arrowes, to the intent that all the Commons of the said land may be able to doe the King or his Lievetenant service for their owne defence and suretie, And that if the foresaid persons or any of them doe not observe and performe the premises, as it is before specified, that then they and every of them doe forfeit to the King 6. s. 8. d. as often times as they and every of them shall offend the foresaid ordinance: And likewise that there be in every Barony within every Shire of the said land two Wardens of peace having authority, as it hath been used of old time, and in every parish Constables of able persons, inhabitants within the said parishes, and a paire of Buts to be had within every of the foresaid parishes, at the cost of the said parishioners, that the Commons of the said land may the sooner attaine the practise and experience of Archers, And that the foresaid Constables in every parish upon paine of forfeiture of 12. d. at every default, doe call before them or one of them every holy day all and every of the foresaid persons, having Bowes and Arrowes, as afore is rehearsed,10. H. 7: ca. 9. in Ireland. to shoot, and cause them to shoot at the least two or three games at the said Buts, and if any of the said persons make default at any holy day without a reasonable cause shewed that then the said Constables have full power and authority to record their defaults and amerce them and every of them at every such default in 4.d. and the said Constables to present the said amerciaments in writing to the Barons of the Kings Eschequer in the said land to be levyed and perceived in like manner and forme as the Kings Revenues have beene levyed there.
Felonie. CHAP. 9.
1. EVery Iustice of peace by force of the first Assignavimus of the Commission may cause fresh suite Huy and Cry, and search to be made by the Sheriffe, bailiffes, Constables, and others, upon any Treason, robbery, theft, or other felony, and also may cause the Constables to arrest and to imprison all such as shall be suspected of such Treason or felony, or to be Theeves, Murderers, or Felons.
2. Also every Iustice of peace may and must take the examination of all such felons or persons suspected of treason or felony as shall be brought before him,10. Carolica. 18. and must also take information against them (of those that bring them) sc. of the fact, and of circumstances thereof, and must put in writing such examinations and informations, or so much thereof as shall be materiall to prove the felony, and must certifie them to the next generall gaole delivery, and after such examination and information taken, then must commit such traitors or felons to the gaole, if they be not baileable; but if they be baileable, [Page 60] then there must be two Iustices together, the one of them of the Quorum to bayle them, or else they cannot be bailed.
3. The Iustice of peace that taketh the examinations must by recognisance binde the Informers that doe declare any thing materiall to prove the felony or treason, to appeare and give evidence against the felon at the next generall gaole delivery, to be holden within the County, City, or Towne corporate, where the triall of the said offence shall be.
Stamf. 58. Li. intr. 385. Co. 9. 118.4. The Iustices of peace in the County of Dublin as well by vertue of their Commission, as also by force of the statutes of 18. E. 3. 2. 34. Ed. 3. 1. & 17. R. 2. 10. have authority to heare and determine all felonies; for the words of the Commission to that purpose are, Audiendum & terminandum, & ad delinquentes castigandum & puniendum.
5. Also there be divers statutes which by speciall words did ordaine that the Iustices of peace should have authority at their generall quarter Sessions to inquire of, heare and determine certaine felonies, As the statutes 18. H. 6. 19. and 1. Ed. 4. for felonies presented before Sheriffes in their Turnes or law dayes.
Cromp. 5 [...].6. And yet there be some felonies, which the Iustices of peace cannot heare or try at all, neither can they enquire thereof, nor otherwise deale therewith, as it seemeth, as namely.
[...]. H. 6. [...]2. 12. Co. 11. 34.7. Embeazelling of any record, writ, returne, panel, proces or warrant of Atturney in the Chancery, Eschequer, the one bench, or the other, or in the treasury, whereby any judgement shall be reversed, Every such offence is made felony in such imbezellor, stealer, or taker away, and in their procurors, Counsellors and abettors by the statute of 8. H. 6. But such offences are by the same statute appointed to be tryed by a Iury, whereof the one halfe shall be of the men of the same Courts, and before the Iudges of the said Courts of the one Bench, or of the other.
2. R. 3. fo. 10.8. Razing of any such record is also felony within the said statute of 8. H. 6. and to be tryed as aforesaid, Br. Coro. 174.
9. Forging of any deed or writing sealed, or of any Court Roll, will or acquittance; Or to cause or assent to be made any such forged writing, or to publish or shew forth in Evidence any such forged writing, knowing the same to be forged. If any person being once lawfully convicted of any of the said offences, shall afterwards commit any the said offences againe,2 [...]. El ca. 4. in Ireland. every such second offence is made felony by the statute of 5. El. ca. 24. in England; But by the same statute such offences are to be inquired of, heard and determined by and before Iustices of Oyer and Terminer, and Iustices of Assize, which statute is enacted in Ireland in Anno 28. El. ca. 4.
10. And therefore whereas one R. Smith was indicted at the S [...]ssions of the peace in the County of Oxford upon the said statute of 5. Elizab. for forging of a false deed, it was adjudged by the whole [Page 61] Court in the K. bench Anno 30. Co. 9. 118. Elizab. that the said indictment was not well taken. For although the Iustices of peace by their Commission have power (of Oyer and Terminer) to heare and determine felonies, and trespasses, &c. And have in their said Commission an expresse clause ad audiendum & terminandum, and so are Iustices of Oyer and Terminer, yet it was resolved by the Court, that forasmuch as there is a Commission of Oyer and Terminer knowne distinctly by that name, and the Commission of the peace is knowne distinctly by another name, that the said indictment taken before the Iustices of the peace at their Sessions was not well taken, and therefore it was quashed.
11. The reason of this last case and Iudgement seemeth to hold in the former cases, and in all other like cases where any statute doth specially give authoritie to any other distinct Court, or to other Iustices or Commissioners (leaving out the Iustice of peace) to enquire of, heare and determine, or to trie felons, &c. there the Iustices of the peace at their Sessions cannot enquire thereof, &c.
12. Against servants imbeazelling, or taking away the goods of their deceased maister, the executors of the party deceased may have a writ directed to the Sheriffe to make open proclamation two market dayes, that such offendours shall appeare in the K. Bench at a certaine day, And if such writ bee returned and proclamation is thereupon made accordingly, then if the said persons which should appeare by reason of the said proclamation, do make default,33. H. 6. ca. 1. and do not appeare in the K. Bench at the day specifyed in the said writ they shall be attainted of felony by the statute of 33. Hen. 6. So that such offence of servants embeazelling their said masters goods, beginneth first to be felony upon their default of apparance in the Kings Bench after proclamation; Of which default the Iustices of peace cannot take notice, for that they have not before them the record of such default or not appearing, and therefore the Iu. of P. cannot inquire of such felony.
13. But in the former cases, if any such offendor shall be brought before any Iust. of peace, and charged with any such felony, quare how farre the Iustice of peace is to deale or what he is to doe therein, considering the Iustices of peace are no Iudges of such felonies, neither have they any Iurisdiction given them by the statutes in such cases. Neverthelesse, I conceive it to be both serviceable and safe for the Iustice of peace not onely to examine the offence, and the circumstances thereof, and then to certifie those examinations to such persons as by the statute are made Iudges of the cause, but also to commit such an offendour to prison,10. Caroli ca. 1 [...]. in Ireland. and to binde over the Informers to give Evidence, and this I conceive to bee warranted by the statute of 10. Caroli ca. 18. in Ireland.
14. Againe, if a man had been feloniously stricken, poysoned or bewitched in one County, and after dyed thereof in another County, [Page 62] by the common Law no Indictment could be thereof taken in either of the said two Counties, for that the Iurors of the County where such party dyed could not take knowledge of the said stroke, poysoning or bewitching, (being in a forraigne County.) Nor the Iurors of the County where the stroke, poysoning or bewitching was committed, could not take knowledge of the death in another County:10. Caroli. ca. 1 [...]. in Ireland. But now by the statute of 10. Caroli ca. 19. an Indictment thereof found by Iurors of the County where the death shall happen (whether it shall be found before the Coroner, or before Iustices of peace, or other Iustices, &c. shall bee good and effectuall in Law, and that the Iustices of gaole delivery, and Oyer and Terminer in the same County where such indictment shall bee taken shall and may proceede upon the same, as if such stroke, poysoning or bewitching, and death had beene all in one and the same County.
15. Also where Felons had robbed, or stolne goods in one County, and after conveyed the spoile, or goods so stollen into another County to their adherents there,10. Caroli ca. 19 in Ireland. who knowing of such felony, received the same goods; In which case although the principall were after attainted, the accessary notwithstanding escaped, by reason that he was accessary in another County. And that the Iurors of the said other County by the common law could take no knowledge of the principall felony in the first County. But now by the said statute it is enacted that where any murder or felony shall bee committed and done in one County, and other persons shall be accessary, in any manner, to any such murder, or felony, in any other County, That an Indictment thereof, found or taken against such accessary,Co. 9. 117. before the Iustices of peace, or other Iustices, &c. in the County where such offence of accessarie shall be committed, shall be good and effectuall in law, And that the Iustices of Gaole delivery, or Oyer and Terminer, of or in such County, where the offence of any such accessarie shall be committed, shall write to the Custos Rotulorum, where such principall shall bee attainted, or convict, to certifie them whether such principall bee attainted, convicted, or otherwise discharged of such felony, And thereupon the Custos Rotulorum, shall make certificate in writing under his seale, to the said Iustices accordingly, and then the Iustices of Gaole delivery or Oyer and Terminer, shall proceed upon every such accessary in the County where such accessary became Accessary, as if both the principall offence, and accessary had beene committed and done in the said. County where the offence of accessary was committed.
16. So as by the letter of this last recited statute the jurisdiction over these last recited felonies, and over such Accessaries is not committed to the Iustices of peace to proceed to the tryall of them; But this authority is committed to the Iustices of gaole delivery or of Oyer and Terminer, yet the Iustices of peace may examine these offences, and take information against the offendors and certifie the [Page 63] same to the next generall gaole delivery and may bind over the Informers and commit the offendors, Also the Iustices of peace may inquire thereof, and take indictments against them as in other cases of felony.
17. Lastly the Iustices of peace (at their Sessions) cannot make tryall of such as be indicted of Felonie, before Coroners or before the Iustices of gaole delivery or of Oyer and Terminer, unlesse the same persons (scilicet, the said Coroner, Iustices of Gaole delivery,Lamb. 530. or of Oyer and Terminer) were also Iustices of peace in the same County, so as the indictment may be understood to be taken by them as before Iustices of the peace, For the Commission of the peace, and the authority of Iustices of the peace, extendeth onely to try such as stand indicted before themselves or before former Iustices of the P. or before the Sheriffe in his Tourne of the Steward in a Leete. See the statute 1. Ed. 4. cap. 2. for indictments taken in the Sheriffes Tourne and for Indictments taken in a Leet. See. Br. tit. Leet. 1.
18. But now to returne to the businesse of the Iustices of peace out of their Sessions. If one shall bring a man suspected of Treason or felony before any Iust. of P. but refuseth to be bound to give Evidence against the prisoner either at the generall gaole delivery, or quarter Sessions, as the case shall require, If such bringer hath given Evidence before the said Iu. against the prisoner, or can declare any thing materiall to prove the felony and will not,Cromp. 10 [...]. b. the Iustice of peace (upon his discretion) may commit to prison such person so refusing, or may bind him to his good behaviour, But if the bringer of a person suspected of felony cannot declare any thing materiall to prove the felony nor any other person then present, the Iustice ought not to commit the prisoner, yet the Iustice of peace shall doe well to examine the prisoner, and if he shall confesse the felony then to commit him, Or if upon his examination, there shall appeare any just cause of suspition, Or if the prisoner be a man of evill fame, and that there be a felony committed in these cases, the Iustice shall doe well not to let him goe, but at least to bind him over to the next gaole delivery, and in the meane time to take further information against him. Now forasmuch as it appeareth that a great part of the office of a Iustice of p [...]ace is to be exercised in the apprehending, examining, and committing of felons, it will be necessary to know first what offences are felony by the common Law, And in the next place to set forth what offences are felony by the statute Lawes.
Felonies by the Common Law. CHAP. 10.
1. FElonies by the Common Law are of diverse sorts, as Homicide, Burglarie, Theft, burning of houses, Rescous and escape.
2. HomicideHomicide. most properly is, hominis occisio ab homine facta, for [Page 64] if a man be killed by a beast (as a horse or dogge) or by any other thing or mischance, although that be hominis cedium of which two words Homicide is derived, yet in such cases it is not aptly nor usually said that homicide is committed, but onely a man is said to be slaine.
3. Others doe thus defyne or describe it, Homicide is the felonious killing of one man by another within the Realme and living under the Kings protection.
4. But to kill a man beyond the Seas, or to strike and give one a mortall wound beyond the Seas, or upon the Sea, whereupon he dyeth upon the land (within this Realme) these homicides are not punishable as felony by the common Law, for that they cannot be inquired of nor tryed here,10. Caroli ca. 19. in Ireland. for in criminall causes the rule is ubi quis delinquit ibi punietur. But now by a statute made in 10. Caroli ca. 19. it is otherwise, and by that statute these offences are felony, and shall be tried here.
5. But whether he that is slaine, be an Alien, or a Denizen, an Englishman or stranger, it maketh no difference, if he live under the Kings protection.
Co. 7. 13. 14. Cromp. 24.6. To kill a man attainted (by verdict or by outlawry, or otherwise) of any murder, felony or Treason, is felony: For none may kill, or put to death any of these, but the Officer of Iustice, and that by warrant. See Doct. & Student. f. 133.
7. To kill the Kings enemy is no Felony, And by the statute of 25. E. 3. ca. 22. to kill a man attainted upon a praemunire is not felony, but by a statute made in England in 5. El. ca. 1. it is declared to be Felony to kill one that is attainted in a Praemunire.
8. Also to kill a man that hath abjured the realme, is Felony. See Co. 7. 9. b. and the Doct. and Student, fol. 133.
9. Note that the Kings protection belongeth by the law of nature to all these,Co. 7. 14. and the King may protect and pardon them all.
Homicide is threefold
- Voluntate, & est duplex
- Murder,
- Manslaughter or Chancemedley.
- Casu or misadventure, this also is considerable after two sorts: sc. whether it happen in doing a thing
- Necessitate, this is sometimes
- 1. Commanded, sc. in execution of Iustice.
- 2. Tollerated,
- 3. Prohibited,
- for advancement of Iustice.
- Se defendendo.
Felo de se.10. But first to write something of Felo de se.
Dyer. 262: Plo. 261.11. If a man kill himselfe (either with a premeditate hatred against his owne life, or out of discontent, or other humor) he is called [Page 69] Felo de se, and he shall forfeit to the King his goods and Chattels reall and personall, and his debts due to him by specialty,Stamf. fo. 188. Co. li. 4. fo. 95. and also debts due to him without specialtie, or upon simple contract and yet Dyer 262. 16. Ed. 4. 7. are that debts upon contract shall not be forfeited, but Stamford, fo. 188. and Co. li. 4. fo. 95. resolve that debts upon contracts shall be forfaited.
12. But he shall not forfeite his lands:Fi. Coro. 301. Plo. 261. neither shall his blood be corrupt, See Fitz. Coron. 362. & 426.
13. If a man doe give himselfe a deadly wound, and dyeth thereof within the yeare and a day after,Plo. 262. All his goods &c. which he had the time of the blow given, or at any time after, shall be forfeited to the King.
14. Yet the goods of felo de se, Co. [...]. 110. 21. H. 7. 33. be not forfeited till his death be presented and found of record; neither can these goods be claymed by prescription by Lords of liberties, &c. but by the Kings grant, because the King is intitled by matter of record.
15. If A. doe strike B. to the ground and then draweth his knife to kill B. and B. lying upon the ground,44. Ed. 3. 44. draweth his knife to defend himselfe, and A. is so hasty to kill B. that he falleth upon B. his knife,Fitz, Cor. 94. and so A. is slaine, here A. in a manner is Felo de se, And yet shall not A. forfeite his goods in this case, See 44. Ass. p. 17. Br. Cor. 12. & 14.
16. If one that wanteth discretion, killeth himselfe (as an Infant,Stamf. 19. co. 1. 9 [...]. Plo. 269. F. Cor. 342. Co. 4. 125. or a man non compos mentis) he shall not forfeite his goods, &c.
17. If a lunatique person killeth himselfe he shall forfeite his goods (sc. if he killeth himselfe out of his lunacy) otherwise if he killeth himselfe during his lunacy.
18. The enquiry of such a felony, belongeth to the Coroher; And yet if Felo de se be cast into the Sea,Co. 5. 110. or so secretly buryed that the Coroner cannot have the sight of his body and so cannot enquire thereof, then the Iustices of peace, or any other having authority to enquire of Felonyes, may enquire thereof (For that it is felony) and a presentment thereof found before them entituleth the King to his goods.
Murder. CHAP. 11.
1. OF old time every killing of one man by another was called MurderMurder. (of the effect) because death ensued of it; Afterward murder was restrained to a secret killing onely and therefore Bracton and Britton in their definition of murder call it,Plo. 261. Stamf. 18. Occulta occisio nullo praesente, &c. But since Murder hath beene and is taken in a midle degree neither so largely as it first was,Plo. 261. nor so narrowly as Maister Bract. and Britton speake of it, For murder is now construed to be, when one man upon malice prepensed doth kill another feloniously, viz. with a premeditate and malicious minde whether it be openly or [Page 66] privily done,10. [...]. 7. [...]. [...]1. in Ireland. this by the common Law is felony of death and now by a statute in Ireland made in Anno 10. H. 7. it is high Treason.
2. This malice precedent or prepensed may be either apparant (as where there was a precedent falling out; Or where there is a lying in waite, or a time and place appointed, &c. Or it may be lesse apparant or manifest, and yet shall be implyed presumed, and taken to be out of malice precedent by the manner and circumstances thereof.
Co. 9. 67.3. As where one killeth another without any provocation, the Law implyeth and adjudgeth it to have proceeded of malice prepensed,Cromp. 23. 27. Therefore if one suddenly, and without any shew of quarrell, or offence offred, shall draw his weapon and therewith kill another; Or if one shall be reading of some booke, or otherwise busied, so as he saw not the party that shall stab or strike him (and he dyeth thereof) or shall be going over a stile,10. H. 7. c [...]. 11. in Ireland. &c. and another shall kill him, such offendours shall suffer death as in case of wilfull murder, But the offence of wilfull murder by the said statute made in Ireland in 10. H. 7. is made high Treason: as is before expressed.
Co. 4. 40. & 9. 66. 68.4. To kill the Sheriffe or any of his officers in the execution of the Kings processe, or in doing their office, is murder in him that killeth the officer.
5. But if he be not an officer knowne, he must shew his warrant before he arrest the party,Co. 9. 69. or upon the arrest (if the other shall demand to see it) or else it seemeth the arrest is tortious; And where the arrest is tortious (bee it by an officer knowne, or by another) there, the killing of him that maketh such an unlawfull arrest is no murder, but manslaughter onely.
Co. 9. 65.6. Againe, where an officer hath the Kings writ, or other lawfull warrant, though it be erronious, yet in the executing thereof, if hee be slaine, this is murder. For the officer is not to dispute of the validitie of his warrant,Co. 9. 68. or the authoritie of the Court, or of the Iustice of peace that sent the warrant.
7. To kill any Magistrate, or Minister of Iustice in the execution of their office, or in keeping the peace (according to the dutie of their office,Co. 4. 49. & 9. 68.) is murder, and the law implieth it to be of malice prepensed. And therefore if the Sheriffe, Iustice of peace, high Constable, petty Constable, watchman, or any other minister of the Kings, or any that come in their aide be killed in doing their office, this is murder.
8. If the Sheriffe, or Iustice of peace come to suppresse Riotters, and one of the Sheriffe or Iustices company is slaine by one of the Riotters,22. Eli [...]. Cromp. [...]3. this is murder in all the Riotters that be there present.
Co. 4. 40.9. A Constable with others to aide him, doe come to part an Affray, if the Constable or any of his company shall be slaine in doing this his office, it is murder in him that killed him, although the Affray were on the sudden, and though it were in the night, for when the Constable commands them in the Kings name to keepe the [Page 67] peace, although they cannot know him to be a Constable,Co. 9. 66. yet at their perill they ought to obey him upon such commandement.
10. And in these cases, the killing of such officers or of any of their company, is in law intended to be of malice prepensed, sc. that the murderer had a malicious resolution in him to oppose himselfe against the Law, the officers thereof, and the Iustice of the Realme.
11. Also if a Theefe that offreth to rob a true man,Plo. 474. killeth the true man in resisting him, it is murder, of malice prepensed. Plo. 474. Co. 9. 67.
12. A man carryed his Father (being sick) and against his will (in a frosty and cold time) from one Towne to another,2. Ed. 3. 18. and the Father died thereof, this was adjudged murder in the Sonne.
13. A harlot delivered of a Childe, hid it in an Orchard,2. Eliz. Cromp. 24. it being alive, and covered it with leaves, and a Kite stroke at it, and the childe died thereof, and the mother was arraigned and executed for Murder.
14. And in these two last cases, Voluntas reputabitur profacto, death ensuing thereupon, for it may plainely appeare that they had a will and meaning of that harme which followed, which will in them doth amount to malice, and so maketh their offences to be murder: And in such cases where death ensueth, Nihil interest utrum quis occidat, an causam mortis praebeat.
15. A man dyeth in the hand of a Physitian or Surgeon,F. Cor. 163. this is no felony in the Physitian or Surgeon. But if one which is no Physitian, or Surgeon will take a Cure upon him,43. Ed. 3. 32. and his patient dyeth under his hand, this hath beene holden to be felony; but I cannot conceive it to be felony, for it cannot be discerned whether the patients death commeth by any wilfull default in the party, or by the patients infirmity, againe there appeareth in them no will to do harme, but rather to doe good; and therefore it would be a hard construction to make it Felony. But if a Smith or other person (having skill onely in dressing or curing the diseases of horses or other Cattell) shall take upon him the cutting, or letting blood, or such like cure of a man, who dyeth thereof, this seemeth to be felony, for the rule is, Quod quisque norit in hoc se exerceat.
16. Two playing at Tables fall out in their game,Cromp. 23. and the one killeth the other with a dagger suddenly, this was holden murder in one Emeryes case, before Bromeley at the Assizes in Cheshire about 27. El. as Maister Crompton reporteth.
17. The husband upon words betweene him and his wife, suddenly stroke his wife with a Pestell, whereon she dyed,Cromp. 25. and it was adjudged murder at the Assizes at Stafford before W [...]mesly. 43. Eliz.
18. A. hath wounded B. in fight, and after they meete suddenly a [...]d [...]t againe, and B. killeth A. this seemeth murder, and malice [...] intended in B. upon the former hurt, but now if A. had killed [...] seemeth but Manslaughter in A. for his former malice shall be [Page 68] thought to be appeased by the hurt he first did to B. unlesse A. gave the first assault, but if A. made the first assault without any new provocation that shall be intended to be in pursuit of the former malice, and then it shall be adjudged murder, so if two are in suite and they meete suddenly and quarrell about the suite, and the defendant killeth the plaintiffe, this seemeth to be but Manslaughter and not murder.
19. Also wilfull killing of another, by poison was and is murder, by the common Law, See Stamf. 21. & Br. Indictment. 41.
Plo. 474.20. The husband gave a poysoned Apple to his wife to the intent to kill her, and she not knowing of it gave it to her childe, who dyed thereof, this is murder in the husband, and yet he loved that childe dearely: and so had it beene if a stranger of his owne accord had after eaten thereof and dyed thereof, for the putting of poison into the apple &c. upon an evill and felonious intent,Co. 9. 81. maketh it murder, whosoever be killed thereby.
21. A. bringeth drinke that was poysoned (knowing of it) to B. who advised B. to drinke of it,Co. 4. 16. telling him it would doe him much good, by reason of which perswasion, B. drunke of it (in the absence of A.) and dyed thereof, this was adjudged murder in A.
Cromp. 30.22. If one giveth corrupt victuall to another to the intent to poison him, and he dyeth thereof within the yeare and day, this is murder.Co. [...]. 81. But if a man shall prepare Rats bane, &c. to kill Rats and shall lay this in certaine places to that purpose, without any evill intent, and another man finds and eares this, and dyeth thereof, yet this is no felony; for by the common Law there cannot be a felony without a felonious intent.
23. The master upon malice precedent, goeth to kill another and taketh his fervants with him (but they know nothing of their maisters intent) and the master and his servants doe meet the other,Plo. 100 and doe assault and kill him, this is murder in the maister, and but manslaughter in the fervants.
24. Note that when a man hath malice to one, and intending and endeavouring to kill him,Plo. 47 4. he killeth another man, this is murder whomsoever he killeth, vide Plo. 101. Dyer 128. Fitz. Coron. 262. Stamf. 16. for his intent was to doe murder.
F. Cor. 262. Dyer. 128.25. If two fight upon malice prepensed, and in their fight a stranger (that would part them) is killed, this is murder in them both, if it may not be proved which of them did kill him.
Plo. 474.26. A man upon malice shooteth at one, or lyeth in waite to kill one, and killeth another unwittingly, in both these cases it is murder.
27. Note also that in all cases where a man commeth or goeth about to doe any thing unlawfully, as to kill, beate or disseise another, or to doe any other Trespasse, and in doing this, he killeth any man, this is murder, See Cromp. 24. B.
Cromp. 24.28. One stealing Peares in another mans Orchard, and the owner [Page 69] came and rebuked him, and the other killed him, this was adjudged murder. 4. Maria.
29. Also where a man commandeth another to beate A. and he beateth him, so as A. dyeth thereof,Plo. 475. F. Coro. 314. this is murder in him that gave this commandement to beat him, for that he commanded him to doe an unlawfull Act, by reason whereof, the killing of a man ensued.
30.Br Cor. 272. F. Coro. 350. Co. 11. 5. Note also that if diverse persons come in one company to doe any unlawfull thing, as to kill, robbe, or beate a man, or to commit any Riot, or Affray, or to doe any other Trespasse, and one of them in doing thereof killeth a man, this shall be adjudged murder in them all that are present of that party, although they did but looke on, &c. See Stamf. 40. Fitz. Indictment 22. Nay if they be not present, yet if they be in the same house, or upon the same ground, it is murder in them all. See the Lord Dacres case. Crom. 25.
31. Note also that all that are present, aiding, abbetting,Plow. 100. or comforting to another to doe murder, are principall murderers, although they shall give never a stroke, See, morc 4. H. 7. 18. 13. H. 7. 10. Fitz. Coron. 309. Co. 9. 67. 112. & 115.
32. As if A. and B. fall out and appoint the field, and they meete accordingly each of them bringing company with them, A. killeth B. this is murder in all those that came with A.
33. Note also that in case of murder, it is not materiall who giveth the first blow; for if he that is slaine gave the first blow, yet if there were malice prepensed in the other, it is murder in him that killeth him.
34. Also in case of poysoning,Coron. 303. the party poysoned must dye thereof within a yeare and a day after the poyson received, or else it is not felony, Also if a man doe beat or hurt another, whereof he dyeth, to make it murder or other homicide, the party hurt must dye within a yeare and a day next after the hurt done or stroke given.Co. 4. 4 [...]. But to have an appeale it shall have relation to the death and not to the stroke, so as the appeale must be brought within the yeare after the death and not after the stroke.
35.F Coro 26 [...]8 Stamf [...] c. See Exo. 21.22.23. [...]t was death by the Law of God. Br Coron. 68. 91. Note also in murder or other homicide the party killed must be in esse (sc. in rerum natura) For if a man hurteth a woman with child whereby he killeth the Infant in his mothers wombe by our Law, this is no felony, neither shall he forfeit any thing for such offence, and whether upon a blow or hurt given to a woman with child, the child dye within her body or shortly after her delivery, it maketh no difference, yet Maister Bracton tooke it to be homicide, if the blow were given postquam puerperium animatum fuerit. But if the mother of the child dye within a yeare and a day after such hurt done to her, and upon that hurt, this is felony.
36. In cases of murder or poysoning,28 El. ca. 8. in Ireland. the offendors shall not have the benefit of Clergie, for that these offences are Treason in Ireland, and likewise for witchcraft the offendor shall not have Clergie.
[Page 70]37. Note also that by the Law of God no recompence was to be taken for the life of a murderer. Numb. 35.31.
38. And by diverse old statutes, no Charter of pardon ought to be granted to any person in case of murder,13. R. 2. c. 2. P. Pardon. 3. Plo. 501. or other homicide, save onely where a man killeth another in his owne defence or by misfortune, See P. pardon. 1. See all the statutes of 6. Ed. 1. c. 9. 2. E. 3. ca. 2. 4. E. 3. See the 2. stat. 13. R. 2. 1. c. 13. & 14. E. 3. c. 15. And by our Law at this day a pardon of all felonies will not discharge murder, except the pardon be with a Non obstante or that murder be expressely mentioned in the pardon. Neither will a pardon of all felonies discharge a man that is attainted of felony, except also the attainder and the execution be pardoned. See 9. Ed. 4. 29. Co. 6. 13. b.
39. Note that he which hath a pardon for felony, if he hath not found sureties for the good behaviour, or if afterwards during his life, he shall breake the peace, such pardon shall be holden for none, but that he may be hanged, notwithstanding his pardon, for by the pardon,3. H. 7. f. 7. the offence, tegitur non tollitur, See the statute 10. Ed. 3. ca. 3. P. Pardon. 5. & 3. H. 7. 7. where one was executed upon this statute, for making an Affray after his pardon. Br. Coron. 134.
27. H 8. 25. P. [...]rer. 17.40. None have authority to pardon any Treason, murder, or other felony, or accessary to the same save onely the King, it being one of his royall prerogatives.
Manslaughter. CHAP. 12.
1. MAnslaughter, in the right signification thereof, implyeth all manner of homicide and is the generall, as well to murder as to the rest, Neverthelesse for that in common speech it is restrained to Manslaughter by Chancemedley alone, in that sence I will here write of it.
2. Manslaughter, otherwise called Chancemedley, is when two doe fight together upon the sudden, and by meere chance without any malice precedent, and one of them doth kill the other, this also is felony of death. And yet in case of manslaughter the offendour shall have the benefit of Clergy, and by the Law of God there was a City of refuge appointed for such to flie unto. Exod. 21.13. Deut. 19.3.4.
3. Two fall out upon the sudden and fight, and the one breaketh his weapon,Cromp. 26. and a stranger standing by (yet being none of their company) lendeth him a weapon, and therewith he killeth the other, this is Manslaughter as well in him that killed the other as in the stranger who lent him his weapon.
4. A. and B. fall out upon the sudden, and fight, and A. is so fierce that he runneth upon the others weapon and is slaine,Stamf. 16. a. yet this seemeth manslaughter in B. unlesse he were flying from A. for he should have [Page 71] fled to some wall or strait, or at least, so farre as he might without danger of his life, but if B. had fled to a wall, or so farre as he might, and A. pursueth him, and B. perceiving that he would assault him, holdeth his weapon betweene them, and A. runneth upon the weapon and is slaine, this is homicide in his owne defence, and for which B. shall forfeit onely his goods.
5. Two combate together upon the sudden, and part, and presently after meete and fight againe, and the one killeth the other, or the one presently fetcheth a weapon, and commeth and killeth the other, these seeme but manslaughter, for that it is done all in one continuing fury, which was at the first without malice, and could not in so short a time be appeased, or asswaged, Cromp. 23. b. 24. A. 26. A.B.
6. So if two have borne malice the one to the other and be reconciled, and after meeting againe, they fall out upon new occasion and by agreement immediately they go into the field and fight, and the one killeth the other, this is but manslaughter (causa qua supra) unlesse the respite or distance of time or place had beene such that by reasonable conjecture their heate might be asswaged.
What persons may be charged with homicide, and what not. CHAP. 13.
1. IF one that is Non compos mentis, or an Ideot, kill a man,Non compos mentis. this is no felony; for they have no knowledge of good and evill, nor can have a felonious intent, nor a will or mind to doe harme,Fitz. N. Br. 202. And no felony or murder can be committed without a felonious intent and purpose. For it is called felonia, quia fieri debet felleo animo. Co. 4. 21. H. 7. 33. Plow. 19. Co. 4. 1. 4. 124. b.
2. So it is if a Lunatique person killeth another during his lunacy (Coke 4. 125.) for all Acts done by him in lunacye are as the Acts of an Ideot.
3. Now there be three forts of persons accounted, Non compos mentis, to this purpose, and the like.
1. A foole naturall, who is so, (à nativitate) from his birth,Co. 4. 124. and in such a one there is no hope of recovery.
2. He who was once of sound and good memory, and after (by sicknesse, hurt, or other accident, or visitation of God) loseth his memorie.
3. A lunatique, qui gaudet lucidis intervallis, and sometimes is of good understanding and memorie, and sometimes is Non compos mentis.
4. An Infant of eight yeares of age, or above,Infants. may commit homicide, and shall be hanged for it, viz. If it may appeare (by hiding of the person slaine, by excusing it, or by any other Act) that he had knowledge of good and evill, and of the perill and danger of that [Page 72] offence.Plow. 19. See 3. H. 7. 1. & 12. Stamf. 27. Fitz Coron. 118. 126. & Br. Coron. 133. 136. But an Infant of such tender yeares, as that hee hath no discretion or intelligence, if hee kill a man, this is no felony in him. 3. H. 7. i. b.
26. Ass. p. 27. Br. Coron. 101.5. If one that is onely dumbe killeth a man, it is felony, yet he cannot be arraigned, but shall continue still in prison.
F. Coro. 193. Stamf. 16.6. A man borne deafe and dumbe killeth another, that is no felony, for he cannot know whether he did evill or no, neither can he have a felonious intent.
7. Note in these former cases of homicide committed by persons being Non compos mentis, Plo. 19. Co. 4. 125. or wanting discretion such things happen, by an involuntarie ignorance, and therefore the law accounteth such Act of theirs to be no felony, But if a man that is drunke, killeth another, that is felony, for it is a voluntary ignorance in him, in as much as such ignorance commeth to him by his owne Act and follie.
Homicide by misadventure. CHAP. 14.
1. HOmicide by misadventureMisadventure. or misfortune, is when any person doing any lawfull thing, without any evill intent happeneth to kill a man, by the law of God there was a Citie of refuge appointed for such persons to flye unto, Numb. 35.15. & 22. Iosh. 20.3. And by our law now, this is no felony of death, for he shall have his pardon of course for his life and lands, but yet hee shall forfeit his goods, in regard that a subject is killed by his meanes. See Stamf. 16. a. b. Fitz. Coron. 69. 302. 354. As if a Schoole-master, in reasonable manner beating his scholler for correction only,See Exod. 11. 20. 21. or a man correcting his child, or servant in reasonable manner, and the scholler,Stamf. 12. c. childe or servant happen to dye thereof, this is homicide by misadventure.
[...]1. H. 7. 29. 6. E. 4. 7.2. So if a man shooting at Buts, prickes, or other lawfull marke, and by the shaking of his hand or otherwise against his will hee killeth one that standeth by. Or if a Carpenter, Mason or other person doth throw or let fall a stone,Br. Coron. 59. Tile or peice of Timber from an house, or wood, or other thing from a Cart, &c. (and giveth warning thereof) and another is killed thereby against his will. Or if a labourer that is falling or cropping of a Tree,6. Ed. 4. 7. F. Coron. 398. Plow. 19. and the same or part thereof falleth and killeth a man. Or if the head of his hatchet or other toole falleth from him and hapneth to kill one standing by. Or if a man be (in due and convenient time) doing any other lawfull thing, that may breed danger to such as passe by and shall give warning thereof, so that such as passe by may heare and flie the perill, and yet another passing that way shall be killed therewith.11. H. 7. 23. See Br. Coron. 2: 9. contra. Or if men shall run at Tilt, Iust or fight at Barriers together by the Kings commandement, and [Page 73] one of them doth kill another, In these former cases and the like it is, homicide by misadventure, and no felony of death.
3. And yet in cases of misadventure, as also where one killeth another, Se defendendo by the common Law,21. E. 3. 17. Br. Coro. 40. these offences were felony of death and the offendour should have dyed for the same. But now by statute such offendors are to have pardon for their life and lands, yet their goods remaine forfeit as before (at the common Law) See the stat. 6. E. 1. c. 9. & 2. E. 3. c. 2.
4. Also in these cases of misadventure,Fitzh. 246. c. & 2. 8. [...]. Br. Cor. 1. ce f [...]at. 6. E 9. 4. H. 7. f. 2. a. Regi. fo. 209. and in the former cases of homicide committed by Infants, and other persons being Non compos mentis, And also where one killeth another in defence of his person the ancient course was that they shall be discharged in this manner, sc. if they desire to purchase their pardon, they must upon their tryall plead not guilty (and shall give in Evidence the speciall matter) and then this speciall matter being found by verdict they shall be bailed, and then they must sue forth a Certiorari to have this record certified to the Lord Chancellor who thereupon shall make them a Charter of pardon of course under the great seale, without speaking or sueing to the King for it, See Stamf. 15. t. But now the usuall course is that without any Certiorari the Iustices of gaole delivery make a Certificate to the Lord Chancellor and thereupon the pardon is granted of course and in the case of Infants and Non compos mentis the Iudges receive a verdict of not guilty, in which case there needeth no pardon neither is there any forfeiture of goods.
5. But if a man be doing of an unlawfull Act,Vnlawfull Act. though without any evill intent, and he hapneth by chance to kill a man this is felony viz. Manslaughter at the least,Stamf 6 c. if not murder in regard the thing he was doing was unlawfull. As shooting of Arrowes,Stamf. 12. c. or casting of stones into the high-way, or other place whither men doe usually resort, So of fighting at Barriers, or running at Tilt or Iusts without the Kings commandement, whereby a man is slaine, And although it were by the Kings commandement yet it was holden felony by the Iustices Tempore. H. 8. Br. Cor. 229.
6. Playing at hand-sword, Bucklers, foot-ball,11 H. 7. 2 [...]. Crom. 26. b. & 29. A. wrastling and the like, where by one of them receiveth a hurt and dyeth thereof within the yeare and day, in these cases some are of opinion, that this is felony of death, some others are of opinion that this is no felony of death, but that they shall have their pardon of course, as for misadventure, for that such their play was by consent, and againe there was neither former nor present intent to doe hurt, nor any former malice but done onely for disport and tryall of manhood and this seemeth to be the better opinion.
7. A man casteth a stone at a Bird, or beast,Fitz Coron. 30 [...] & 3 [...]4. and another man passing by is slaine therewith, this is but manslaughter by misadventure; And the opinion of Fineux chiefe Iustice in 11. H. 7. fol. 23. is that if a [Page 74] man cast a stone over a house and killeth a man,See Numb. 35. 23. Br. Cor. 229. this is no felony of death but misadventure, but this is to be understood where there was no intention of hurt to any by casting thereof, likewise some hold that to cast a stone for pleasure, and not in lawfull labour, whereby one is slaine,Stamf. 12. c. 16. c. is felony of death, and so was the opinion of Maister Bracton and Maister Stamford, but I cannot conceive it to be any other then by misadventure when it is not done felleo animo.
Casuall death.8. Also a man may be slaine by other casualty than by the hands or meanes of another man, as by the fall of a house, or tree, &c. upon him, or be killed by a Bull, Beare, or other beast, &c. or be killed by some fall which he himselfe taketh; And in these and the like cases observe these rules.
1. First, if a man be slaine in any such manner, yet if it be by the meanes or procurement, or wilfull default of another man, this shall be felony in the party procuring or causing it.
2. The thing which is the cause of such casuall death shall be forfeit to the King as a Deodand, and distributed in Almes by the Kings Almoner, but the Almoner hath no interest as it seemeth in such goods, but hath onely the disposition of the Kings Almes, durante bene placito, so that the King may grant them to any other, See Co. 1. 50. Dyer. 77.
Flo. 260.3. The forfeiture shall have relation from the stroke given, so as the party or owner selling thereof (sc. of such things as was cause of such death) after the stroke given, taketh not away the Kings right, but that he shall have it as forfeited notwithstanding such sale.
Co. 5. 110.4. Deodands are not forfeited, untill the matter be found of record, and therefore they cannot be claymed by prescription.
Co. 5. 120. F. Cor. 298. Stamf. 21.5. The Iury which finde the death of the man must also finde and appreise the Deodand, and the same shall be levied of the Towne where it happeneth, although it were not committed to the Towne to keepe, and therefore it behoveth the Towne to see it forth comming. See the statute de officio Coronatoris 4. Ed. 1.
F. Cor. 289. Stamf. 21.6. If he that is so slaine be under 14. yeares of age nothing shall be forfeit to the King as Deodand for him by some opinions, but I cannot conceive those opinions to be Law.
7. And if a man that is unknowne be found dead in the field, his apparell and money about him shall be given to the poore,P. indictment 27. Stamf. 21. &c. And if he were knowne, then his goods shall be delivered to his executors or administrators, or to the ordinary but shall not be taken as a Deodand, in either case (for they are not of the nature of a Deodand they being no cause of his death.
Dyer. 77. Co. 5. 110.8. Next what shall be forfeited and taken for a Deodand. The old rule is, Omnia quae movent ad mortem, sunt Deodanda; And yet Deodands may be of some things that a man shall move or fall from, though the thing it selfe moves not,Deodand quid. as to fall from a ship, Cart, Mow [Page 75] of Corne, or Hay, &c. So as Deodands are any goods which doe cause or are occasion of the death of a man by misadventure. See Fitz. Coron. 314. 326. 341. 342. 348. 388. 389. 398. 401. 409.
9. If a man killeth another with my sword (or other weapon of mine) my weapon shall be forfeited as a Deodand. Doct. & Student, fo. 156. B.
10. The inquiry of such casuall death belongeth also to the Coroner, but if the Coroner cannot have the sight of the body and so cannot inquire thereof, it seemeth the King shall be intituled to the goods by a presentment at the quarter Sessions, or at the generall Assizes, or in the Kings Bench, or else the King may be defrauded.
Homicide upon necessitie. CHAP. 15.
1.Commanded. SOmetimes the Iustice of Law commandeth a man to be put to death, As when the Iudge hath pronounced sentence of death against an offendour (attainted by due course of Law) there (in execution of Iustice) an officer, or other person thereto lawfully deputed may orderly execute such judgement or sentence according to his warrant, and such sentence or judgement pronounced by the Iudge, and after lawfully executed by the officer, leaveth the name and nature of murder, or homicide, and is called justice or rather judgement, which is the lawfull execution of Iustice.Stamf See Do [...] Stu [...]ent fo. 133 But if the officer or other person shall proceede therein upon his owne authority without warrant, or ordine juris non observato, as where an offendour hath judgement given upon him to be hanged, if the Sheriffe, or other officer, &c. shall be head him or by other meanes put him to death, it is felony in such officer, &c.
2. Also if a stranger,Stamf. 13. being not thereto lawfully deputed shall (upon his owne authority) put to death an offendor that is condemned to dye, this is felony; Nay if the Iudge himselfe who gave the judgement of death upon an offendor shall after put the same offendor to death, it is not justifiable by him.
3.Tollerated Sometimes also the Iustice of Law tollerateth and suffereth a man to be slaine sc. for the necessary execution and advancement of justice, which otherwise should be left undone. And in such case the Law of the land imputeth it not as any fault to him that shall so kill a man, but freely dischargeth him thereof without the K. pardon.
As a Sheriffe, Bailiffe,F Cor. 261. Stamf. 13. or any other person who hath a lawfull warrant to arreast a man indicted of felony or Treason may well justifie the killing of him, if he will not suffer himselfe to be arrested, and yeild himselfe, and that they cannot otherwise take him.F. Cor. 261. Stamf. 13. And so every person whatsoever without any warrant may apprehend a felon or a Traitor upon huy and cry or otherwise, and if he will not yeild to be arrested, but shall resist or flie, the pursuer may kill him without blame.
[Page 76]4. Herewith also agreeth the Doctor and Student, lib. 2. cap. 41. saying. If any person that is no Officer, would arrest a man that is outlawed, abjured or attainted of Murder, or of any other felony, and such offend or shall disobey the arrest and by reason of that disobedience he is slaine, the other shall not be impeached for his death, For it is lawfull unto every man to arrest and take such persons, and to bring them forth that they may be ordered according to the Law.
5. An offendor in felony or Treason is led towards the Gaole and breaketh away from those that conduct him and maketh resistance or flyeth, his conductors may justifie to kill him,F. Cor. 288. & 328. if they cannot otherwise take him againe.
22. Ass. 55.6. A prisoner in the gaole attempteth to escape, and having broken his Irons, striketh the Gaoler (comming in the night to see his prisoners) and the Gaoler slayeth such a prisoner, this is no felony.
7. Riotters and such as shall make any forceible Entrie or deteyner,Cromp. 23. 30. & 158. against the statutes, if they shall resist the Iustices of peace, or other the Kings officers, or shall not yeild themselves, but shall stand at their defence, when the Iustice of peace or other Officer shall come to arrest or remove them, if any of them happen to be slaine, this is no felony in the Iustice of peace, or officer, or in any of their company that killeth such Riotters, &c.
Cromp. 24. 30.8. The Sheriffe, or his Bailiffe, or other officer commeth (by vertue of the Kings processe) to arrest another for debt, or trespasse who maketh resistance,Doct. & Student. 133. and thereupon is slaine by such officer, or any of his company, this hath been taken to be no felony.
Stamf. 13. c. f. g.9. But in all these former cases, there must be an inevitable necessity, sc. that the offendor could not be taken, &c. without killing of him.
7. H. 6. 21.10. Also in an Appeale of felonie, if the Appellant and Appellee doe joyne to try it by battell, and therein the one doth kill the other, as the law doth allow such tryall, so doth it allow the Event to bee justifiable as depending upon the judgement of God, who giveth victory according to truth.
Se defendendo tollerated.11. Also when one man killeth another in the necessarie defence of himselfe, or his, thereby to deliver himselfe, his possessions, or his goods, or some other persons, which he is bound to defend from perill, and which cannot otherwise escape, this is homicide tollerated upon necessitie.
12. As to kill an offendor, which shall attempt feloniously to murder or rob me in my dwelling house,24. H. 8. 50 P. Forf. 1. Coro. 103. & 305. or in or neere any high way, horse-way, or foot-way, or that shall attempt Burglariously to breake my dwelling house in the night, this is justifiable by my selfe, or by any of my servants or company.Co. 5. 91. & 11. 82. Exod. 22.2. And this being so found by verdict upon triall, we shall be all discharged without losse of life, lands, or goods, or pardon; For to kill a Theefe or murderer in the [Page 77] defence of my person, my house or goods, is no felony,26. Ass 32. F. Coron. 261. 305. & 330. but justifiable by the common Law, Stamf. f. 14. See Co. 5. 91. & 11. 82. Br. Coron. 100. 102.
13. And if one or moe come to burne my house, I or any of my servants, may justifie to shoot forth of my house at them, and to kill them, for such intent of theirs is felonious.Prohibited. But if a man shall forceibly get, and keepe possession of a house, they within cannot justifie to shoot and kill him that was so put out, or any of his Company, for that they in the house were there unlawfully. See Cromp. 26. B.
14. If one commeth (in the day time or in the night) to enter into my house, pretending title thereto, and to put me out of my possession, and I kill him, this seemeth to be manslaughter in me.
15. If one commeth in the day time to my house to beat me,F. Coro. 305. and doth make an assault upon me in my house and fighteth with me, and I kill him in defence of my person,Co. 5. 91. yet in this case I shall forfeite my goods and must have the K. pardon of course, except it be found that the assaylant came with a felonious intent to kill or rob mee.
16. Note if one kill a true man, in defence of his person there ought to be so great a necessity,Stamf. 15. 2. that it must be esteemed to be inevitable, or otherwise it will not excuse, and therefore he that shall be assaulted by a true man, must first flie as far as he can,Co. 5. 91. 4. H. 7. 2. and till he be letted by some wall, hedge, ditch, presse of people, or other impediment so as he can flie no further without danger of his life, or of being wounded, or maimed: and yet in such case if he kill the other, he shall be committed till the time of his tryall, and must then get his pardon for his life and lands (which pardon notwithstanding he shall have of course) yet he shall loose and forfeite his goods, and Chattels; for the great regard which the Law hath of a mans life. Co. 5. 91. b.
17.6. E. 1. c. [...]. P. Pardon 1. A. maketh an Affray upon B. and striketh B. and B. flyeth so farre as he can for saving his life, before any stroke given by B. and A. continueth his assault, whereupon B. doth also strike A. and killeth him, this is homicide in his owne defence: otherwise it seemeth to some if B. had stroken the first blow, or had stroken before he had fled: and yet by other good opinions, the first stroke or who began the Affray is not materiall, but the whole matter will consist upon the inevitable necessitie, sc. whether the said B. who killed A. could not have escaped with his life,Stamf. 15. &c. without killing A. for otherwise it will not excuse B. for cuncta prius tentanda. And as it is a charitable, so it is a safe principle (in these cases) not to trie an extremitie, till thou hast tryed all other meanes. And by Stamf. fo. 15. It is holden in the former case,F. Coro. 184. & 286. 287. Stamf. 15. if B. (before he had fled) had striken A. and given him diverse wounds, that yet if he flie to a straight before hee give A. the mortall wound, and then he giveth his deaths wound, this is homicide in his owne defence.
18. But in the former case if B. upon malice prepensed had first [Page 78] stroken A. and then B. flyeth to a strait or wall,F. Coro. [...] 87. Cromp. 22. 28. b. and A. pursueth him, and striketh him, and B. killeth A. thereupon, this is murder in B. for the malice prepensed was the ground and beginner hereof, yet if there had been former malice betweene A. and B. and they meet suddenly and A. assaulteth B. and B. before any stroke by him given flyeth so farre as he can, and A. pursueth him, and then B. killeth A. this seemeth to be homicide in his owne defence, notwithstanding the former malice.
19. Copstones case, There was malice between Copstone and one S. and they had fought divers times,15. El. Cromp. 27. and after met suddenly in London, and C. told S. that he would fight with him, and S. answered that he had nothing to say unto him, and S. went to the wall and after C. assaulted S. and then S. stroke and killed C. and it was found that C. began the Affray, and S. was thereupon discharged without forfeiting any thing. But that was by force of the statute. 24. H. 8. cap. 5. which is not in force in Ireland, and therefore as the Law is in Ireland Copstone should have forfeited his goods and have had his pardon of course.
20. Also if a Theife assaults mee to rob, or kill mee, I am not bound to flie to a wall,Stamf. 14. &c. as I must in case a true man assaults mee, and so if an officer of Iustice, or Minister of the Law, in the execution of his office,Co. 9. 98. be assaulted, he is not bound to fly to a wall, &c. as other subjects are.
21. Also the servant may justifie the killing of another in defence of his masters person, [...]1. H. 7. 19. or house, if the hurt cannot be otherwise avoided. Br. Coron. 63. Also the servant may justifie the killing of him who robbed and killed his Master, so that it be done presently, and by a statute in Ireland, made in Anno 28. H. 6. ca. 3. It is lawfull to kill Theeves found robbing.
22. In the defence of the possession of my goods I may justifie to beat him that shall wrongfully take them from me, but I cannot justifie to kill him, except he be a Theife.
23. So then to kill a true man in defence of my person, in case where there is an inevitable necessity (sc. that I first shall fly so farr as I can for saving my life, &c.) this is no felony of death, &c. But otherwise it is to kill a true man in defence of my house, lands, or goods, that is manslaughter (at least.)
21. Ed. 1. P. Forrests 4. Stamf. 13. 14.24. If any Forrester, parke-keeper, or warreiner, or any in their company, shall kill an offendor in their Forrest, parke, or warren, which (after Huy, and Cry, levied to keepe the peace and to obey the Law) will not yeild themselves, but will flie, or defend themselves by violence, this is no felony, if there were no former malice in such keeper.Cromp. 30. But if any such keeper by reason of any former malice, will lay to a mans charge, that he came to doe hurt, whereas he did not, neither was found wandring nor offending, and so kill him, this is murder in such keeper.
Burglarie. CHAP. 16.
1. BUrglarie is when one or more in the night time doe breake a dwelling house, or a Church, or the walls or gates of a City,22. E. 3. Dalton 231. or walled Towne, with an intent to doe felony, although he or they carry away nothing, yet it is felony of death.
2. First for the time,Br. Cor. 125. Stamf. 30. Co. 11. 36. Burglary cannot be committed in the day time, but only in the night, for all indictments of Burglary be Quod noctantur fregit. And the night to this purpose, beginneth at the Sun setting, and continueth to the Sun rising; And therefore to breake a house, &c. after the Sun setting, and before it be darke, or after day light in Summer, and before the Sun riseth, is Burglarie.
3. Next,Stamf. 30. Dyer. 99. Br. Cor. 106. for the manner it is holden (by some good opinions) that if a man breake the house to doe felony, and yet entreth not, it is no Burglary, and that the indictment must be fregit & intravit, And yet by the opinion of Shard. 27. Ass. 38. and by the opinions of Sir Anthony Browne, Sir Edward Montague, and Sir Robert Brooke late chiefe Iustice of the common pleas,Cromp. 31. 32. 33. and others (as Maister Crompton reporteth) if a man doe but attempt or enterprise to breake or enter into a dwelling house by night, to the intent to rob, or kill any person there, though he make no actuall entry there, yet it is a full and compleat Burglary, for if he doe but put in his hand or foot, it is an entrie in Law, although his whole body were not in; Also to put backe the leafe of a window with his dagger, to draw the latch of the doore, to turne but the key being on the Inner side of the doore, or to breake the glasse window and to draw out any goods there with a hooke, &c. or to breake a hole in the wall,Dalton pag. 231. & 232. and to shoote in thereby at any in the house, in all these cases it is Burglary.
4. So likewise (the doore being opened by some of the house) if any the attempters shall discharge a dag against any in the house, and in discharging his dag shall hold his hand over the threshold though he set no foot over, this is Burglary: So if upon attempt of Burglary, they within the house shall cast out their money for feare,Dalton ib. and the attempters take it away, in all these cases it is Burglary, and yet there is no actuall entrie made, in any of these cases.
5. But if a Theefe setteth but his foot over the threshold or into any part of the house to commit felony, this much more shall convict him of Burglary.
6.Cromp. 32. Also one being let downe the Chimney in the night to commit felony,Dalton ib. it was adjudged burglary by Sir Roger Manwood chiefe Baron, and yet he broke not the house.
7. So is it to come into a house by the helpe of a key, or suddenly to come into the house by night, the doores being open, and the owner flyeth to his chamber, and the offendor is taken shoving at the chamber doore.
[Page 80]8. So it is likewise if Theeves pretending that they bee robbed, &c. shall come to the Constable, and pray him to make search for the felons, and going with the Constable into a mans house to search they rob the good man of the house, this is Burglary.
21. El.9. In like manner if a servant conspiring with another to rob his master, shall open his masters doore, or window in the night and the other entreth thereat,Dalton ib. this is Burglary in the stranger, by the opinion of Sir Roger Manwood, who was an ingenious and learned Iudge, and yet the house was not broken in any of these cases.
10. But if one commeth into a house in the day and there hideth himselfe till night and then stealeth any thing out of the house, or if any that is lodged in a house in the night goeth out of the house, and stealeth some of the goods yet this is no Burglarie but only felony, for that he broke not the house, the first of these two cases was resolved at Derby, Ass. 32. El. Cromp. 34.
11. Also if diverse come to commit Burglarie, and but one of them entreth and commits it,11. H. 4. 13. the rest standing about the house, or not farre of to watch that no helpe shall come, this is Burglary in all that company.
The place.12. Now concerning the place, it may be either publique or private, publique as the Church, or walls, or gates, of a City or walled Towne, private as a dwelling house, and here commonly it is no Burglarie, unlesse some person be at that time within the house, And yet if a man hath a dwelling house and he and all his family (upon some occasion) are part of the night out of the house,Co. 4. 40. and in the meane time one commeth and breaketh the house to commit felony, this is Burglary.
13. So if a man hath two dwelling houses, and sometimes dwelleth at the one,Co. 4. 40. and sometimes at the other, and hath a family or servants in both, and in the night when his servants are out of the house the house is broken by Theeves; this is Burglary adjudged. 38. Eliz.
Cromp. 33.14. If one breaketh a chamber in any Innes of Court or Chancery or in any Colledge in a university in the night, to the intent to commit felony there, this is Burglary, although there were no person in the same Chamber, For that Colledges and houses of Court and Chancery be entire houses, whereof such chamber is parcell; so that if any person shall be in any other chamber within the same house or Colledge at the same time it is Burglary.
2. Ed. 6. Br. Cor. 180. Lamb. 156.15. Also the breaking (in the night) of a Stable, Barne, or other out house, adjoyning, or neere to the dwelling house, to the intent to steale, is Burglary though he take nothing.
16. At Summer Assizes at Cambridge Anno Domini 1616. two men were arraigned and condemned for Burglary before Sir Iames Altham Knight for robbing a Backhouse of Robert Castle Esquire in the night,Dalton pag. 293. which Backhouse was some eight or nine yards distant from his dwelling house and only a pale reaching betweene them: so that [Page 81] though this offence be not committed in the very body of the dwelling house, but in some other house neere unto it, and being parcell of or belonging to the dwelling house, it is Burglary.
17. But a Booth or Tent in a Faire or market, are not esteemed in Law for dwelling houses,Co. 11. 37. nor the breaking thereof in the night time to be Burglary, although the robbing of them bee made as penall as Burglarie, if the owner, his wife, children or servants were within the same.
18. Lastly,23. Ass. 95. Stamf. 126. Co. 11. 31. to make it Burglary the purpose and intent for which the offend our commeth, must of necessity be to kill or rob some person, or to commit some other felony, otherwise it is neither burglary nor felonie.13. H. 7. 4. F. Coro. 267. And therefore to breake a house in the night to the intent to kill any person therein, it is Burglary, although hee never touch him.
So it is, if the purpose were to rob,F Cor. 185. & 264. although the offendor taketh away nothing.
19.Stamf. 30. co. 11. 31. But if a man breake and enter an house by night of purpose onely to beat a man, that is but trespasse.
20. And if the intent were to commit a Rape, it is Burglary; for Rape by the Common Law was felony,Stamf. 21. c. 22 & 23. although some doubt have beene made thereof, for it appeareth by Maister Bracton, Glanvill and Stamford, that by the ancient Common Law it was felony, the words of Maister Bracton lib. 2. are thus, Olim quidem corruptores virginitatis & castitatis suspendebantur, &c. modernis tamen temporibus aliter observatur, qui pro corruptione virginis amittuntur membra, &c. And a litle after Adelstanus; raptus mulierum nè fiat, defendit tam lex humana, quam divina, Et sic fuit antiquitus observatum, quod si quis obviaverit solam, cum pace dimittat eam, &c. Si autem contra voluntatem suam, &c. jactat eam ad terram, forisfacit gratiam suam, &c. Felony. Quod si concubucrit cum ea, de vita & membris suis incurrat damnum, &c. And with this Maister Glanvill also agreeth, fol. 112. Also amongst the lawes of Saint Edmond sometimes King of England, you shall find this law, Qui cum Nunna, vel sanctimoniali fornicetur, emendetur sicut homicida, à multo fortiori, then saith Maister Stamford, shall he be punished, if he had ravished her; So as Rape at the first saith Stamford, West. 2. 34. P. Rapo. 1. was grievously punished untill the time of King Edward the first, who seemed to mitigate the paine thereof, by the statute of West. 1. ca. 13. which gave two yeares imprisonment and fyne; but spying the mischiefes ensuing upon the said law, at his next Parliament holden at West. called West. 2. ca. 34. he made the offence of Rape to be felony againe. Br. Coron. 204.
21. Note also by Britton, f. 17. Cromp. 33. See Plo. 19. 2. it is not Burglary in an Infant under 14. yeares of age, nor in poore persons that upon hunger shall enter a house for victuall under the value of 12.d. Nor in naturall fooles, or other persons that bee Non compos mentis, but the case of poore entring for victuall at this day, may as I conceive admit this [Page 82] difference, that is, where a poore body that is ready to starve with hunger breaketh into a house, and taketh no more than to satisfie his present hunger, for the safegard of his life, this is neither Burglary nor Felony: for all Lawes, as well the Lawes of God as of men, in many cases are dispenced withall, by unevitable necessity, as appeareth in Maister Plowdens Commentaries, fo. 19. but if he that so entreth taketh away more than might suffice to satisfie his hunger for that time, I conceive that he is guilty of Burglary.
Other Felonies by the Common Law, as Burning houses, &c. CHAP. 17.
21. H. 7. 1. Co. 4. 10.1. BUrning of a Barne (which is adjoyning, or neere to a dwelling house) in the night feloniously, is felony by the Common Law.
2. So is it to burne a Barne in the day time, having Corne in it, though it adjoyne not to the dwelling house.
3. H. 7. 10. 1. Co. [...]1 [...]9. Stamf. 36.3. Burning of any dwelling house, or other house parcell thereof, willingly and feloniously done, is felony by the Common Law, whether it be done by night or by day.
4. Burning of any other house, or of a stack of Corne feloniously,Stamf. 36. seemeth also to be felony by the Common Law, for the words of the statute of West. 1. ca. 15. (which statute seemeth to be but a rehersall of the Common Law, Br. Mainp. 78.) ordaineth that such as bee taken for burning (generally) feloniously done, be not bailed: and of that opinion seemeth Maister Britton, 13. H 8. ca. 1. in Ireland. who wrote presently after the making of the same statute to be; Britton fol. 16. See Stat. Winchester 13. Ed. 1. ca. 1. & 18. Ed. 1. ca. 17. but all these cases by a statute in Ireland are Treason.
5. If an Indictor (or Iuror) in case of Treason or felony shall discover the Kings Councell and his fellowes; it hath been adjudged felony in times past, but as the Law is now taken, it is a misdemeanor onely.
Resco [...]. 1. H 7. 6. Br. Coron. 127 130. Stamf 31. b. E [...]cape. 9 H [...]. Dalton pag. 24 [...]. Breaking of pr [...]son. Stamf. 30. 31. See the stat. 1. Ed. 2. & P. [...]rison. 5.6. Rescuing, or taking away from an officer, any offendour who is attainted, imprisoned, or but arrested for felony, is felony as well in him that made the Rescous as in him that is rescued.
7. Also when a man hath arrested another for felony, and after letteth him goe at liberty, this is a wilfull escape, and shall be adjudged felony in him that did so let him escape; And in case of Treason such escape is Treason. per Stamf. fo. 32. & 1. H. 6. 6.
8. Breaking of prison (before the statute de frangentibus prisonam made 1. Edw. 2.) was felony by the Common Law, for what cause soever he were in prison, yea though he had beene imprisoned but for a Trespasse: But now that stat. hath changed the common Law therein; so that now if a man be arrested or taken for a Trespasse, and [Page 83] doe make an escape, or be rescued by a stranger, this is but fineable at this day.
Robberie. CHAP. 18.
1. THeft is the taking away of another mans goods with an intent to steale them against the will, or without the knowledge of him whose goods they are, and this is of two sorts, videlicet, Robbery and La [...]ceny, we will first speake of Robbery, and then of Larceny, Robbery (in latine called Rapina) is properly the felonious taking of any thing from the person of another against his will,Dyer. 224. Stamf. [...]7 d. and putting him in feare thereby, and here although the thing taken, be but to the value of an halfe penny, yet it is felony, for which the offendor shall suffer death without benefit of Clergy. As if one by the high way assaulteth mee and taketh away my purse, money, or other goods.
2.9 Ed. 4. 28. Stamf. 27. But if a Theefe assaulteth mee to rob mee and bideth mee deliver my purse, but taketh nothing from mee, in regard that I being to good for him, shall apprehend him, or shall levye Huy, and Cry, whereby he is taken, this is taken to be no Robbery, nor felony at this day;Stamf. 7. g. And yet the assault only to rob mee hath beene in former times, holden to be felony, as appeareth by the bookes. 27. Ass. pl. 38. & 13. H. 4. 7. 25. Ed. 3. Fitz. Coron. 106. 215.
3. In this former description of robbery,20. Eliz. Cromp. 34. the word taking is largely to be extended against the offendor, so that although the Theefe taketh nothing from my person, yet if he assaulteth mee, and upon his assault he threatneth to kill mee; If I deliver him not my purse, and thereupon I cast my purse downe upon the ground, and he taketh it away, this is Robbery.
4.Cromp. 34. So if one draweth his sword upon mee and biddeth mee deliver my purse, and I refuse, and after he prayeth mee to give him a penny, and I do so, yet it seemeth this is robbery, for by the assault I was put in feare, and out of that feare I gave him this money to be rid of him.
5. So if a Theefe doe only assault mee to rob mee,Stamf 7. c. and I deliver him my purse with my owne hand; yet this is robbery in regard this fact of mine proceeded from feare, or by his menacing, &c.
6. So if in flying from the Theefe I cast my purse into a Bush to save it, and the Theefe seeth mee and taketh it away, this is robbery;Cromp. 35. for in this case had he not put mee in feare, I should not have cast my money from mee.
7. So if one assaults mee to rob mee, and I flying away from him,Cromp. 35. my hat falleth of, and the Theefe taketh it up, and carrieth it away, this is robbery.
8. So if a Theefe comes and biddeth me deliver my purse (without [Page 84] drawing any weapon,20. El. Cromp. 34. or other force used) and I deliver him my purse, and he finding but two shillings therein delivereth mee all againe, yet this is Robbery.
44. Ed. 3. 14. 4. H. 4. 3. Stamf. 27. f.9. So if Theeves doe take a man, and by threats compell him to sweare to bring them money, at another time, or else that they will kill him, by force whereof, he bringeth them the money accordingly this is Robbery.
10. Also in the former description of Robbery the words from the person, are not so nicely to be construed, that to make up robbery the goods must needs be annexed to the body of the person; For in some cases it may be Robbery notwithstanding the Theefe doth neither take the goods from the person of the owner nor yet assault him;Stamf. 27. As if in my presence, a felon with a felonious intent taketh away my goods openly against my will, this is robbery though he neither taketh them from my person, nor assaulteth mee, for the losse is the same, and the feare alike as though it had beene from my person.
P.R. 131.11. And if one or more doe with a felonious intent take a horse out of my pasture or drive my Cattell out of my ground I standing by and looking on at the same time, this is robbery, if so be that the felon doth either make an assault upon mee, or doe put mee in feare.
12. Note to make it robbery the person must be put in feare, for if a felon doe take money from mee in the high way, and shall not put me in feare, this is felony but not Robbery. Cromp. 35. P.R. 131.
Dyer. 224.13. And you shall finde a case in my Lord Dyer, how a felon did take money to the value of xl.s. or above, from the person of another, in the high-way. And yet for that he did not put his person in feare by assault and violence, this was holden no robbery and the offendor was allowed his Clergie for the same felony. Anno. 5. Eliz.
14. Note also, if two Theeves shall attempt to rob mee, and I flie from them,Cromp. 34. and one of the Theeves follow mee, and the other espying another true man (but our of the sight of his fellow) rides towards him and robbed him, this was adjudged Robbery in both the Theeves, and yet the one was neither in sight, or knowing of this Robbery, but because they both came to rob, and at the same time, this fact committed by the one shall be imputed to the other; Also it was one Pudseys case, 28. El.
Cutpurse.15. If one shall cut my purse, or take or pick my purse out of my pocket secretly or privily and fraudulently, it is felony of death but not without benefit of Clergie in Ireland.Cromp. 34. 35.
16. So if one shall take my money or other goods from my person secretly without my knowledge, or by sleight onely, I neither being made afraide, nor witting of it (if it bee above xij.d. in value) it is felony of death.
16. Elix. Cromp. 35.17. A man cutteth my girdle privily, my purse hanging thereat, and the purse and girdle fall to the ground, but he did not take them [Page 85] up (for that he was espyed) this is no felony, for that the Theefe never had an actuall possession thereof, severed from my person; But if he had holden the purse in his hand and then cut the girdle, although it had fallen to the ground, and that he tooke it up no more, then had it been felony (if there had been above xij.d. in the purse) for he had it once in his possession: But these secret and privy takings from my person are no robbery for he neither assaulted mee nor put mee in any feare.
Larcenie. CHAP. 19.
1. LArcenie (being fetched from the latine word Latrocinium) is properly a fraudulent and felonious taking away of another mans personall goods, in the absence of the owner and without his knowledge.
2. This is of two sorts, Grand Larceny which is felony of death and Pety Larceny which is forfeiture of goods and Chattels, and corporall punishment at the discretion of the Iudges.
3. Grand Larceny,Grand Larceny. is when the goods stollen be above the value of xij.d. and this is felony of death sc. wherein Iudgement of death shall be given upon the offendor, except he be saved by his booke.
4. And yet if the goods stollen be to the value of ten shillings,F. Cor. 451. if the Iury that passeth upon his arraignement shall finde that the goods did not exceed the value of xij.d. then that offence shall be taken but for Pety Larceny.
5.Pety Larceny. West. 1. c. 15. Br. Cor. 84. & 85. Pety Larceny is when the goods stollen doe not exceede the value of xij.d. and for this the offendor shall be imprisoned for some certaine time, and after shall be whipped, or otherwise punished by the discretion of the Iustices before whom he was arraigned, but it is not felony of death.
6. Yet may not the Iustice of peace before whom such an offendor shall be brought (out of the Sessions) punish by his discretion the said offendor for Pety Larceny and so let him goe, but must commit him to prison or baile him, to the intent he may come to his triall as in case of other felonies, and if upon his triall the Iurie shall finde the goods stollen, to exceede xij.d. in value, the offendor shall have Iudgement to dye for the fault.
7. Although Pety Larceny be not punishable by death,29. H. 8. 22. F. Coro. 218. Br Cor. 2. 84. 85. & 2 [...]6. yet it is a felonious taking, for the indictment of Pety Larceny must be felonice cepit, and he shall forfeite all his goods and Chattells for such a felony, and there is no difference either in the nature of the offence or in the minde of the offendor, but only in the value of the thing stollen which maketh the difference of punishment.
8. If one shall steale goods to the value of 4.F. Coro. 415. Stamf 24. Crom. 36. 2.d. at one time and vj.d. at another time, and of iij.d. at another time which together [Page 86] doe exceede the value of xij.d. and that these severall goods be all stollen from one and the same person, then may they be put together in one Indictment, and the offendor, being thereupon arraigned and found guilty, shall have judgement of death.
F. Coro. 440. Stamf. 24. 1.9. Againe, if two or more together doe steale goods above the value of 12. d. this is felony of death in them all, for the felony in them is severall, though the stealing be joyntly done.
10. In Larcenie two things must concurre, scil. to take, and to carry away,The manner. or remove the thing taken, with a purpose to steale the same, for the indictment must be, Cepit & asportavit, or cepit & abduxit, and yet in these words, the letter is not so much to be insisted upon, as the meaning, and that for the better suppressing of offendours in this kinde. For although by the Law in Maister Glanvils time à furto omnimodo excusatur, qui initium habuerit suae detentionis, per dominum illius rei, yet at this day it may be felony, though the offendour take not the thing, but comes first unto it by delivery from the owners owne hand, and so commeth lawfully to the possession. As if a Taverner doe set a peece of plate before his guest to drinke in,13 Ed. 4 9. Stamf. 25. and the guest carrieth it away, this is felony, for the Taverner gave him no possession thereof, but onely the use to drinke in it for the time. Or if I deliver goods to a Carrier, or other person, and bargaine with him to carry them to a certaine place appointed, if he carrieth them to the place, and then convayeth them away fraudulently, this is felony, for the privity of bailement was determined when they came at the place appointed. So if the Carrier shall take out parcell of the goods, this is felony; and likewise if the Carrier shall carry them to another place, and there breaketh them up, and converteth part, or all, to his owne use, this is felony; but if the Carrier shall sell or give away, or otherwise imbezell the whole, as he received them, this is holden to be no felony, because it was delivered him in the same kinde. Stamf. 25. a. Cromp. 36. a.
11. And yet in this last case there is besides the delivery a bargaine and agreement to carry the goods, and the delivery was only to that intent, so that the property of those goods did alwayes remaine in the first owner. But if A. lendeth his horse to B. being a stranger, who rideth quite away with the horse, this is no felony in B. by reason of the delivery. And so did Sir Iohn Dodderidge Knight give direction at Cambridge Assises, 1617. upon an Indictment of Felony preferred in such a case.
12. If a Clothier shall deliver any Wooll or Yarne to his Carder, Spinster, or Weaver, &c. to dresse, and they shall convay away, imbezell or sell any part thereof, this seemeth to be no felony, by reason of the delivery.
13. Ed 4. 9.13. So if I deliver my goods to another to keepe, and he fraudulently consumeth them, or otherwise converteth them to his owne profit, this is no felony, because of the delivery.
[Page 87]14. And so (it seemeth) if I deliver mony or goods to A. to deliver to B. and A. flyeth away with them, consumeth them, or converteth them to his owne use, this is no felony by reason of the delivery.
15. If a man delivers money to his servant to keepe,Servants. or plate to his Butler, or vessell to his Cooke, or horse to his horse keeper,13. E. 4. 10. 3. H. 7. 12. 21. H. 7. 15. or Sheepe to his Shepherd, and such servant doth goe away with them, this is felony by the common Law in that servant (for these goods were alwayes in the master possession, and kept and used by the servant to the masters behoofe) But yet there was much difference of opinions herein,33. H. 8. ca. 5. in Ireland. for the clearing whereof (in some part) a statute was in the time of King H. 8. made, whereby it was provided that all and singular servants of the age of Eighteene yeares,Cromp. 50. other than an Apprentice (which must be understood of such as are bound by Indenture, and by the name of an Apprentice) to whom any money,Apprentices and servants under the age of Eighteene shall be in case as they were before the making of this statute. goods or Chattells, &c. by his or their master or mistresse shall be delivered to keepe of the value of xl.s. or above, if such servant shall goe away with, or shall imbezell, or shall convert to his owne use, any such money goods, or Chattells of the said value, to the intent to steale the same, or to defraud his Master or Mistresse thereof, it shall be felony, but this must be prosecuted within one yeare after the offence.
16. And now upon the construction of this stat. diverse new questions and cases have since beene moved.Dyer. 5. As if a man deliver an obligation to his servant to goe and receive the money thereupon due, and the servant receiveth the money and then goeth away therewith, or doth convert it to his owne use, this is holden to be no felony within the meaning of this statute for the Master did not deliver the money to his servant; So if a man delivers to his servant wares,Ibid. or cattell to sell at Faire or market, and he selleth them there, and receiveth the money, and then goeth away with the money, or converteth it to his owne use, this is no felony within this statute, for hee had not the money by his masters delivery,Dyer. 5. neither went hee away with the goods his master delivered him.
17. But if the servant received of his master 20. l. in gold to keep,28. El. Cromp. 35. which he changed into silver, and then ran away with that, this is felony, for that gold and silver are both of the same nature, sc. money.
18. And if a man delivers to his servant a horse to ride to market, or money to carry to a Faire, to buy cattell, or other things,21. H. 7. 15. or to pay to another man, and the servant goeth away therewith, this was no felony by the common Law, by reason of the delivery thereof to him by his Master, but it seemeth to be felony by this statute, for that he went away with the thing delivered him.
19. And if one of my,Dyer. 5. servants doth deliver to another of my servants goods of mine (to the value of 40. s.) and hee doth goe away therewith, or converteth them to his owne use: this [Page 88] is felony within this statute, for this shall be said, my delivery.
5. H. 7. 16. Br. Property 25.20. If a man delivers to his servant a piece of Cloth to keepe, and the servant maketh himselfe a garment thereof, and after goeth away therewith, this is felony (within this statute) for that the propertie is not altered,Cromp. 50. by the making a garment thereof, because the Cloth may be knowne still, Otherwise it is of Barley turned into Mault, or of money melted or turned into a wedge or peece of mettall, or the like, for that in these cases the Barley, or money cannot be knowne againe but are altered in their kind.
Cromp. 50.21. If any receiver of my rears receiveth x. li. of my Tenants and run away therewith, it is no felony; for the statute is where the master delivereth to keepe.
22. If a man delivers to his servant, the key of the chamber doore, and the servant taketh away his masters goods in the chamber (above the value of xij.d.13. Ed. 4. 9.) this is felony at the common Law, for the goods were not delivered.
23. Another felony there is by the stat. 33. H. 6. c. 1. in the servants that shall take away or spoile the goods of their deceased master,P. Felon. 11. P. Exec. 5. but this felony groweth upon their default of apparance in the K. bench after proclamation, and therefore neither the tryall nor hearing thereof belongeth to the Iustices of peace, because they cannot well take knowledge of such default in the K. Bench.
24. The second thing which must concurre in Larceny to make it felony is the carrying away of the thing so taken, and yet it is not of necessity that it be cleane carryed out of the house, or place where it was, but it sufficeth that it be so farre removed that the evill and felonious intent of the taker may plainely appeare;27. Ass. 39. See Stamf. 26. b. Br. Cor. 107. As if a guest will feloniously take the sheetes or other goods of the In-keepers, out of the chamber where he lodgeth, and then (going to the stable for his horse) is taken with them or they be found in some other Roome of the house, where he had laid them, it is felony in both cases, although the possession of those goods continued in the owner.
25. So is it if one taketh a horse in another mans close with an intent to steale him, and he be apprehended againe before he hath gotten the horse out of the same close, this is felony. Now it is necessary in the next Chapter to declare of what things Larceny may bee committed, and of what not.
Of what things Larceny may be committed, and of what not. CHAP. 20.
1. NOte that the felonious taking of any thing, wherein another hath propertie, is felony. 22. H. 6. Br. Coron. 190.
2. And therefore Larcenie may be committed by taking of any the moveable goods of any person,Moveable goods. as money, plate, apparell, houshold-stuffe, [Page 89] or Corne, hay, Trees or fruit (that are severed from the ground) or the like, the stealing of them is felony.
3. It is also felony to steale my horses, mares, colts, oxen, kyne, sheepe, lambes, swine, pigs, hennes or geese, ducks, turkies, peacocks,Domesticall. and other domesticall beasts or birds of tame nature. 18. H. 8. 2.
4. It is Felony also to take some things that be of wild nature,Stamf. 25. c. 18. E. 4. so. 8. as to take yong pigeons which cannot flie, out of another mans Dovehouse, so to take yong Hawkes or yong herons out of their nests (or ayries) and breeding in a parke or other severall ground, so to take fishes that be kept in a Trunk or severall pond.
5.Br. Cor. 89. 22. Ass. 95. 12. H. 8. 9 b. 16. E. 4. 7. 2. So of old Doves taken in the Dove coat (in the night time especially) And so it seemeth of any other wild beast of fowle (being of value) and taken within a mans house.
6. Also it is Felony to take any Swannes that be lawfully marked, though they be at large; For a man hath propertie in such. See Co. lib. 7. fo. 16. b. 17. a.
7. Also for Swannes unmarked, if they be domesticall or tame, sc. kept in a moat, or in ponds neere to a dwelling house, and so bee domui, or manui assueta, to steale such is felony. See Coke 7. 17. b.
8. So it seemeth of Swannes unmarked, so long as they keepe within a mans Mannor, or within his private Rivers, or if they happen to escape out of a mans Mannor or private rivers, yet if they shall be pursued and taken, and brought in againe, to steale them is felony. Co. li. 7. fo. 16. & 18.
9. But if Swannes that be unmarked, shall be abroad, and shall attaine to their naturall libertie, then the propertie of them is lost, And so long Felony cannot be committed by taking of them.
10. And yet such unmarked and wilde Swans, the Kings officer may seize them (being abroad) for and to the use of the King by his prerogative, they being volatilia regalia. Also the King by grant them; And by consequence another man may prescribe to have them within a certaine precinct or place. For it may bee intended to have a lawfull beginning by the Kings grant, Cok. lib. 7. fol. 16. a. b. & 18. a. b.
11. Also it is felony to take a tame Deere,10. E. 4. 15. Stamf. 25. c. which is marked and domesticall (especially if the taker knowes it to be tame, or that it weareth a Bell.
12. But by the common law Larceny cannot be committed by taking of savage or wilde beasts, fowles, or fish, found in their wildnesse and abroad, or at large, as Deere, Conies, Hawkes, Doves, Phesants, Partridges, Herons, Swans unmarked, or fish that are at liberty, &c. for no person can claime property in them.
13.P. Felon. 24. Howbeit by stat. it is made felony to hunt Deere or Conies (after some sort) in a Forrest, parke or warren, or to take a tame beast, or other thing, in a parke, by manner of robbery. See 3. Ed. 1. 20. & 1. H. 7. ca. 7.
[Page 90] P. Felon. 26.14. Also by statute it is felony to steale, take away or conceale, a Hawke that is reclaimed.
Co. 7. 17. b.15. But for the better understanding what the Law is, in things that be fera natura, observe these differences.
Properry.16. In some things that be fera natura, a man hath a right of property, and in some of them a right of priviledge.
17. There be three manner of rights of property, scil.
- 1. Absolute. This propertie a man cannot have in any thing which is ferae natura, but only in such things as are Domitae natura.
- 2. Qualified, These properties a man may have in things ferae natura, and to such properties a man may attaine by two meanes, scil.
- 3. Possessary, These properties a man may have in things ferae natura, and to such properties a man may attaine by two meanes, scil.
1. By industrie, and this may be, either by taking them only or making them tame, scil. mansueta, id est, manui assueta, or domestica, id est, domus assueta; but in these last a man hath but a qualified property, scil. so long as they remaine tame, and so long felony may be commited by stealing of them away, but if they attaine to their naturall liberty, and have not animum revertendi, then the property of them is lost.
2. Ratione impotentiae & loci, As where a man hath yong Goshawkes, or Herons, or the like, which are fera natura, and doe breed (or ayrie) in his ground, he hath a possessorie property in them. So as if one takes them when they cannot flie, the owner of the soyle may have an Action of trespasse, Quare boscum suum fregit, & tres pullos esperuorum suorum, or ardearum suarum, pretii tantum nuper in eodem bosco nidificant, cepit & asportavit. And to take these away is felony, as is aforesaid. 18. E. 4. fol. 8. Stamf. 25. c.
18. But when a man hath beasts or fowles (that be savage and in their wildenesse) ratione privilegii, scil. by reason of a parke or warren,See Doct. & Student. fo. 10. &c. as Deere, Hares, Conies, Phesants, or Partridges, or the like, (which be things of warren) he hath no property in them. And therefore in an action quare parcum or warrennam, &c. fregit & intravit, & 3. damas, lepores, cuniculos, phesiones, perdices, &c. cepit & asportavit, he shall not say suos, for that he hath no property in them, but they belong unto him Ratione privilegii, (for his game and pleasure) so long as they remaine in the place priviledged; And if the owner of the Parke dye his heire shall have them, and not his executor or administrator, for that without them, the Parke (which is an inheritance) is not compleat, neither can felony be committed by taking of them.
19. Neither can Larceny be committed by taking of dogges of any kinde, Apes, Parrats, Squirrils, singing Birds, or such like thing [Page 91] (kept only for pleasure and not for any profit) though they be in the house, and made tame.
20. No not by taking of a blood-hound or mastiffe,Co. 7. 18. 12 H. 8. 3. Br. Trespass. 407. although that there is good use of them, and that a man can be said to have a propertie in them, so as an action of Trespasse lyeth fortaking them; yet in regard they are things of so base a nature, no felony can bee committed by taking them.
21. Also it is felony to steale the flesh of any tame or wilde fowle,Stamf. 25. c. or beast, that is dead, out of the possession of another man.
22. So is it to pull the wooll from the sheepes backe,Cromp. 36. or to kill them, and to take the skin; and leave the body behind.
23. But note that in all these cases of felony aforesaid, the thing so taken, or stollen, must exceed the value of 12. d.
24. Also the taking of any reall chartell or thing, is no felony,Things reall. as if one cuts downe my Tree, or my corne, and carrieth it away,Stamf. 25. c. or pulleth and stealeth my Apples hanging on the Tree, and carrieth them away, these are no Felony; for these things be part of my Freehold till they be severed.
25. But if I gather mine Apples, or cut downe a Tree,Stamf. 25. or Corne of mine owne, then it is felony if another shall carry them away feloniously.
26. And if a stranger cuts downe my Tree,Cromp. 36. or Corne without Title, and another time after fetcheth it away, that will prove no Felony by 12. Ass. P. 32. Br. Coron. 76.
27. Also to take lead from of a house, or Church,Cromp. 37. will not amount to felony, for it is parcell of the house or freehold.
28. Also to take away the Evidences of a mans land,Stamf. 25. 10. Ed. 4. 14. Br. Cor. 155. or an Indenture of lease, or other writings (be they within or without a Boxe,) it is no felony, because they cannot be valued, and againe, because they concerne inheritance, chattels, reals or things in action.
29. So to take away an Infant in Ward is no Felony.Stamf. 25.
30. Also the taking and carrying away of such things whereof the owner is unknowne, in some cases is no felony;Stamf. 25. Br. Cor. 187. 265. As the taking away of treasure that was hidden, wreck of the Sea or goods that shall be wayved, or strayed, (before they be lawfully seised, &c.) But the takers away of such treasure that was hidden, wrecke and waife, shall be punished by fine and imprisonment. 22. Ass. p. 99. Br. Coron. 96.
31. And yet where the goods be, bona cujusdam hominis ignoti, Dyer. 99. & 476. 478. 7. E. 4. 14. 15. Br. inditement 33. or bona cujusdam mortui, & ignoti, or bona parochianorum, or the goods of a Church, or Chappell, or the goods of any corporation in the time of vacation, in these cases there be owners of them to some purpose and therefore it is felony to steale such goods.
32. One Nottingham digged a dead body out of his grave, and tooke away his winding-sheete,Dalton pag. 244. this was holden to be no felony (but punishable as a misdemeanor,) and the offendor was adjudged to be whipped for it, this was at Cambridge Summer Assises, Anno 1617.
[Page 92] 7. H 6. 43. 5. H. 7. 18. Stamf. 16. 2.33. Note also that a man may commit felony by taking his owne goods, as if A. doe lend, or deliver goods to B. to keepe, and after A. doth take them away feloniously, or privily and fraudulently (to the intent to charge B. or to recover damages for the same against B. by an action of detinue) this is felony in A. and yet the property of the goods were in him.
Mar. lect. 12. Cromp. 27.34. So it is if I lend my plate, or deliver my goods to another to keepe, and he melteth my plate, or changeth the fashion of my goods, now if I should take that mettall, or those goods feloniously it were felony in mee, because the property is altered by altering of the fashion.
Cromp. 37. P. R. 129.35. A man findeth my purse in the high-way, and being asked thereof, denyeth it, this seemeth to be no felony; for he came not thereby at the first feloniously, but the denyall is a strong evidence that he came by it feloniously, if he cannot clearely prove how he came by it.
36. A man commeth to my wife, or to my servant with a false message, token, or letter made in my name, and thereby getteth my goods, yet this is no felony, but it shall be punished as a falsity and misdemeanor, and the offend or besides a Fine and imprisonment may be bound to the good behaviour by the Common Law.
What persons are chargeable in Larcenie. CHAP. 21.
27. Ass 40. Stamf. 26.1. A Feme covert doth steale goods by the compulsion of her husband, this is no felony in her. F. Coron. 160.
Mar. lect. 12.2. But if by the compulsion of her husband, shee committeth murder, this is felony in them both.
27. Ass. 40. See Stamf. 142. c. & 26. 27.3. If a Feme covert doth steale good by the commandement of her husband (without other constraint) this hath beene holden to be felony in her, Master Bracton also saith it is felony; For licet uxor obedire debeat viro, in atrocioribus tamen non est ei obediendum, but Master Stamf. and others seeme to be of another opinion, Stamf. 26. P. R. 130. Br. Coron. 108.
F. Cor. 1 [...]0.4. If the husband and the wife together doe steale goods, this shall be taken to be the only Act of the husband, and not to be felony in the wife, Stamf. 26.
5. But a woman covert, alone by her selfe (the husband not knowing thereof) may commit Larceny and may be either principall,Stamf. 26. or accessary, as if shee steale another mans goods, or receive the Theefe that stealeth them, or shall receive stolne goods into her house knowing them so to be,F. Coro. [...]83. See Stamf. 26. or shall locke them up in her Chest, or Chamber, her husband not knowing thereof, and in such case if her husband so soone as he knoweth thereof doe forthwith forsake his house and her company, and maketh his aboade elsewhere, he shall [Page 93] not be charged for her offence, whereas otherwise the Law will impute the fault to him and not to her. P. R. 130.
6. Goods are delivered to the husband to keepe, and his wife stealeth them, it is no felony; Otherwise is it if the husband had delivered them to a stranger and then the wife had taken them feloniously out of the possession of the stranger, this had beene felony in the wife, Mar. lect. 12.
7.F. Cor. 455. Br. Cor. 141. Stamf. 27. Also the wife shall not be accounted a Felon for taking or stealing the goods of her husband. And if the wife doe take her husbands goods secretly, and delivers them to a stranger knowing thereof, yet this is no felony in the stranger.
8.Br. Cor. 77. 1 [...]. Ass. p. 6. Stamf. fo. 34. 1 [...]. E. 32. Cromp. 35. P. R. 130. But if a man doe take away another mans wife with her husbands goods, against the wives will, this is felony by the statute. Westminster. 2. cap. 34. as it seemeth, and so if a man takes away another mans wife, with her husbands goods against the husbands will, this is also felony.
9. And if the husband commits Larceny, and the wife knowing thereof, doe receive or reteine him, &c. shee is not thereby accessary to the felony.
10. If a servant by the compulsion of his Master,Servant. stealeth another mans goods, this is felony in them both.
11. An Ideot, Lunaticke, dumbe and deafe person and an Infant are chargeable in Larceny after the same sort,Ideot. Infant. as they are chargeable in homicide, which see here before in manslaughter. And yet if an Infant shall commit Larceny and shall be found guilty thereof before the Iu. of P. it shal not be amisse for them to respit the judgement, and so hath it often beene done by the Iudges, See Stamf. 27. & 3. H. 7. fo. 1. b. & 12. b. & 35. H. 6. 11. Br. Coverture. 80.
Felonies by escape. CHAP. 22.
1. BReaking of prison by one being therein for felony,1. Ed. 2. P. Felon. 15. or by one being a prisoner for felony, is felony by the statute de frangentibus prisonum, and so it was by the common Law: Now every one who is under arrest for felony is a prisoner, and that aswell without the prison, as within or in the stocks, in the high street, or in the possession of any that hath arrested him,1. Ed. 3. 17. P. R. 147. or that hath the keeping of him being arrested for felony; And therefore if any person who is under arrest for felony or suspition thereof, whether he be in the gaole, or out, or but in the stocks, or but in the possession of any that hath arrested him, if he shall make an escape, this is a breaking of prison in such prisoner, and is felony.
2. Note that there is no difference,2. Ed. 3. 1. whose prison the offendor doth breake, whether it be the Kings prison, the Lords of a Franchise or any other persons:1. H. 7. 6. And if a stranger doth breake the prison or [Page 94] open the Stocks,1. Ed. 3. 17. Dyer. 99. or make a rescous, whereby one imprisoned or arrested for felony escapeth, this is felony both in the prisoner, and in the stranger, although the prisoner was never indicted of the felony.
9. H 4. 1. F. Cor. 333. Stamf. 3 [...]. a.3. By some opinions if a stranger shall disturbe the arresting of a felon, it is no felony, except the felon were taken and arrested, and after rescued, yet Fitz. Iust. P. fo. 114. saith that such disturbance before arrest, is felony, which I conceive cannot be, for where there is no arrest, there cannot be any escape or rescous, yet neverthelesse this disturbance is a misdemeanor punishable by fine and imprisonment.
1. H. 6. 7.4. If a prisoner be rescued at the gallowes, or as he is in going to execution, this is a breaking of prison, and felony.
5. If a Gaoler, a Constable, or any other, which hath a prisoner under arrest for felony,P R. 147. 149. 44. Ass. 12. Br. E [...]. 31. Stamf. 31. or suspition thereof, voluntarily letteth or suffreth him to goe at liberty, this is felony in the gaoler or him that letteh such prisoner escape, but it is no felony in the prisoner, but if such a prisoner shall escape by the negligence of his keeper, then the felony resteth in the prisoner only and not in the Gaoler, &c.
P. R. 149. 150. 9. H 4. 1. Stamf. fo. 32. & 26.6. The voluntary letting of a felon escape, which is not arrested for felony, though he knoweth of the felony, yet it is not felony, neither can it be an escape without an arrest, and yet such an offendor (being an officer) may for such his negligence or default be indicted and fined, as it seemeth by the words of the Commission, but by 9. H. 4. fo. 1. Br. Escape 43. & F. Coron. p. 76. he is accessary to the felony.
Dyer. 44. a.7. Note that a man is alwayes said to be in prison, so long as he is within the sight of the gaoler, or of him that hath him in custodie, though he doth breake away or escape.
8. And if a prisoner shall make an escape (of his owne wrong, and without the consent of the Gaoler, [...]tamf 33. b. Br. Esc. 4 [...]5. or other person that hath him in custodie) though he escape out of their sight, and into another County, yet if he be taken againe upon fresh suite, before the gaoler, &c. be sued or fined for the escape (though it be seven yeares after) yet this is no escape, as it seemeth, for which the officer shall be charged, for there is no prejudice to the King by the escape, though it be felony in the prisoner, as aforesaid, and a breaking of prison in him. Co. 3. 44. & 52. accordeth in case of a prisoner taken in execution that shall make an escape of his owne wrong.
9. If a Gaoler or other officer, &c. shall licence his prisoner to goe abroad,Co. 3. 44. Stamf. 33. c. for a time, and to come againe, this is an escape, because the prisoner is found out of the bounds of his prison, though the prisoner returne againe according as he shall be prescribed, and so is it, if the officer shall suffer his prisoner to goe abroad for a time, by baile or baston,Fitz. Cor. 243. & 431. this is an escape, yet they are holden in both cases to be but negligent escapes in the officer, and so but fineable, and yet the gaoler and other officers ought to keepe their prisoners in salva & arcta custodia.
10. Note that the Sheriffe of every County shall have the keeping [Page 95] of and shall be chargeable and charged with the common gaole and prison of the same County, and of all the prisoners therein; And must put in such Gaolers or keepers for whom he will answer as appeareth by the statute 14. E. 3. c. 10. which also seemeth to have beene the common Law before, as you may see by the preamble of the statute of 14. E. 3. & Co. 4. 34. And therefore the high Sheriffe himselfe shall be answerable for an escape of a felon, suffred by his gaoler, and may be indicted for the same. And so the high Sheriffe as he hath an office of great antiquity, and of great trust and authority,Co. 4. 331 for the time: So withall it is a place of great perill and charge; And if the rigour of Law should be laid upon him,Co. 9. 98. then should he have a bad office. But in such cases I have observed the favorable exposition and dealing of the learned and reverend Iudges. First you shall finde in Sir Ed. Cooke Reports, lib. 9. fol. 98. that the gaolers who have the actuall possession shall be answerable for escapes if they have wherewith. Also Popham chiefe Iustice, did cause one Staner (a gaoler at Cambridge) to be indicted,Temp. Eliz. arraigned and hanged for an escape of a felon suffred by him.
11. Now an escape is of two sorts, voluntary and negligent.
12. Voluntary escape is where one doth arrest, or hath imprisoned another for felony (or other offence) and after letteth him goe at liberty whither he will.Stamf. 32.
13. Negligent escape is when the party arrested or imprisoned doth escape against the will of him that arrested or imprisoned him,Stamf. 33. and is not freshly pursued and taken againe before he hath lost the sight of him, the penalty thereof seemeth to be only a fine at the discretion of the Iudges or Iustices, yet see Stamf. 35. K. a difference of the fine where the prisoner is attainted, where but indicted, and where only taken upon suspition.
14. But for voluntary escape, if the arrest or imprisonment were for felony it shall be adjudged felony in him which did voluntarily suffer the prisoner to escape; And if the arrest, &c. were for Treason,Stamf. 32. 1. it shall be adjudged Treason: And if the arrest or imprisonment were for Trespasse it shall be adjudged Trespasse;F. Cor. 248. And yet see Fitz. Coron. 248. Escape non adjudicabitur pro transgressione, And in case of felony there is no difference, whether the felon be arrested by an Officer or by another, See Br. Coron. 112.
15. One Nichols assaulted Cholmelcy to rob him and killed him, after Qu. Eliz. granted Nichols his pardon, But Cholmeley his wife having commenced her appeale against Nichols he was still detained in prison at the womans suite, after the gaoler suffred Nich. voluntarily to goe at large, and so to escape, by the opinion of Master Plowden this was felony in the gaoler, although N. the prisoner were no felon as to the Qu. in regard hee had obtained his pardon. Plo. 476. b.
16. A prisoner found guilty of pety Larceny is adjudged to be [Page 96] imprisoned by the space of a moneth,F. Cor. 430. & 431. for his punishment, and after the moneth he breaketh prison and escapeth, It is holden that the Gaoler shall bee charged with this escape,P. R. 150. But if a prisoner shall be discharged (by judgement) paying his fees, if he escape, here the Gaoler is not chargeable, the difference is, the prisoner in the first case was by judgement committed to prison, and in the last case he is adjudged to be acquit of his imprisonment paying, &c. 21. H. 7. 17. a. Br. Escape 16.
17. Note that a voluntary escape is no felony, if the Act done were not felony at the time of the escape made;11. H. 7. 12. Plo. 258. 263. & 401. As if A. doe strike B. and hurt him mortally, whereupon the Constables doe arrest A. and after willingly suffer him to escape, and after B. dyeth of that stroke, this escape is no felony either in the Constables, or in the prisoner, yet the Constables shall make a great Fine, yea they shall be fined to the value of there goods (as it seemeth by 11. H. 4. 12. and Stamf. 35. h. because this escape was voluntary.
Cromp. 39.18. The voluntary suffering him to escape, who hath killed another Se defendendo, or by misadventure, or of him that hath committed pety Larceny seemeth not to be felony, for that these offences are no felony of death, but he that suffreth such an escape, shall be fined only. Cromp. 39. but if the prisoner be committed for manslaughter or for felony generally, it seemeth the escape wil be felony, for the Gaoler is not to judge what manner of felony it is.
Stamf 35. k.19. A man was taken for suspition of felony, and was delivered to the Constable of C. and after escaped for want of good keeping, and the Constable was therefore taken and arraigned, and pleaded that for asmuch as the felon was not taken with the manner, nor at the suite of the party, nor indicted of felony, therefore it was no escape, &c. And so was the opinion of the Court then in 42. Ass. p. 5. Br. Escape 29. But the contrary was after holden although the prisoner were taken onely upon suspition. 44. Ass. p. 12. Br. Escape 31. but there it was holden to be but fineable.
3. Ed. 1. c. 4. P. Escape 2. Stamf. 35. c.20. Note also where one is a prisoner by arrest only, and he doth escape there the escape shall be presented before the Iust. of peace or other Iustices having authority to enquire of the escape, before he that suffered the escape shall answere it.
21. Note also if a man be arrested for felony by the Constable or other person,1 [...]. H. 7. 7. Cromp. 40. P. R. 151. 152. and after they shall have intelligence that there is no such felony committed, here they may set the party arrested at liberty againe, and they shall not be charged with the escape, for there can be no felon where there is no felony committed.
44. Ass 12. Cromp. 40.22. But if a man be slaine, or that there be any other felony committed, and one is arrested for the same felony, or for suspition thereof, though he that made the arrest, shall after have intelligence and certaine knowledge that the party arrested is not guilty of that offence, yet he or any other may not set the party so arrested at liberty, [Page 97] for now he must not be delivered by any mans discretion, but by course of Law, otherwise it will prove a voluntary escape, and so felony, or at least fineable.
23.25. Ed. 3. 39. If a Iustice of peace shall send for a felon out of the Gaole and shall deliver him without baile, this seemeth to be a voluntary escape, and so felony in the Iustice: Otherwise where the Iustice erreth, pro defectu scientiae, as to baile one that is not baileable, this is but a negligent escape.
Felonies by statute. CHAP. 23.
1. BUggery committed with mankinde,Exod. 12.19. Levit. 18.23. or beast is felony (without benefit of Clergie) it being a sinne against God, nature, and the Law.
2. Congregations and confederacies holden by Masons,10. Caroli in Ireland ca. 20. P. Fel. 22. P. Felon. 19. 5. H. 4. ca. 5. is felony in the causers thereof, and fineable in the Masons. 3. H. 6. ca. 1.
3. Cutting out of any the Kings subjects tongues, or putting out their Eyes of malice is felony. 5. H. 4. ca. 5.
4. Conjuration, or Invocation of any evill spirrit, for any intent,28. El. ca. 3. in Ireland. &c. or to be counselling or ayding thereto, is felony without benefit of Clergie. See Exod. 22.18.
5. Also to use or practise Witch-craft, Inchantment, Charme, or Sorcery, whereby any person shall be killed, or to be counselling, or ayding thereto is felony without benefit of Clergy.
6. Also the second time to practise Witch-craft, &c. whereby any chattell, or goods shall be destroyed or impaired, or whereby any person shall be hurt or pined in his body, is felony without benefit of Clergy.
7. Now against these Witches the Iustices of peace may not alwayes expect direct evidence, seeing all their workes are the workes of darkenesse and no witnesses present with them to accuse them; And therefore for their better discoverie, I thought good here to insert certain observations out of the book of discovery of the witches that were arraigned at Lancaster. Anno Dom. 1612. before Sir Iames Altham, and Sir Edward Bromeley, Iudges of Assise there, which are these following, viz.
1. These witches have ordinarily a familiar or spirit which appeareth to them.
2. Their familiar hath some bigg, or place, upon their body where he sucketh them.
3. They have often pictures of Clay, or waxe (like a man, &c.) found in their house.
4. If the dead body bleed upon the witches touching it.
5. The testimony of the person hurt, upon his death.
6. The examination and confession of the children or servants of the Witch.
[Page 98]7. Their owne voluntary confession, which exceeds all other Evidence.
8. H. 6. 12. P. Fel. 18.8. Also the Embezeling of any Record or parcell thereof, writ, Returne, Panell, Processe or warrant of Atturney in the Chancery, Exchequer, Kings Bench, Common place, or Treasury (by reason whereof any Iudgement shall be reversed) is felony in the parties, their Counsellers, procurers, or abettors.
2. R. 3. fo. 10. Co. 11. 34. See 8. R. 2. ca. 4.9. So the rasing of such record is felony (within the said statute of 8. Hen. 6.) yet if a Iudge doe imbezell, or rase a Record, this is but misprision in the Iudge. 2. R. 3. Br. Coron. 174. & Treason. 31.
10. But it seemeth the Iu. of P. cannot enquire of, nor heare and determine these two last sorts of felonies (sc. imbezeling or rasing of records) for that these felonies are committed to other Iudges to deale with by the same stat. of 8. H. 6. P. Records 4. but what is fit for the Iustice of peace to doe herein; I have before in the chapter of felony declared.
11. Forestalling, or buying any forraigne Marchandises before they come to the Staple, &c. was made felony by the statute 27. Ed. 3. cap. 11. but by 2. R. 2. ca. 2. it was repealed and made punishable againe according to the statute of 25. E. 3. ca. 3. which is by 2. yeares imprisonment, or forfeiture of the value of the thing forestalled.
12. Forging of evidences, sc. of any deed, Charter, obligation, Bill,P. Fel. 26. 28. El. ca. 4. in Ireland. release, or other writing sealed, or of any Court Roll, or will, or of any acquittance, or to cause or assent to be made any such forged writing, or publishing any such writing knowing the same to be false: The second offence is felony, without benefit of Clergy. But it seemeth also, that the Iu. of P. have not to deale with this, for that they cannot well take notice of the former conviction, See Cok. 9. 118. b.
P. Felon. 17. 14. E. 3. c. 9. 10.13. If a Gaoler (by duresse of imprisonment and paine) inforce his prisoner to become an approver (that is an accuser of others as coadjutors with him in felony) this is felony in such gaoler. 14. E. 3. 10.
34. Ed. 3. 22. 3 Ed. [...] 9. P Felon. 20.14. Whosoever findeth any hawke that is lost, if he shall not immediately bring the same to the Sheriffe of the same County to be proclaimed, &c. but doth imbezell the Hawke, it is felony.
P. hawkes 2. vide.15. So is it in him whosoever that taketh up any Hawke and concealeth the same from the owner, or his Faulconer, or that taketh away any Hawke from the owner, or stealeth any Hawke and carrieth it away not observing the foresaid ordinance.
1. H 7. ca 7. P Felon. 24.16. H [...]nting of D [...]ere, or Conyes in any parke, Forrest, or warren unlawfully in the night time, or with Visors, or other disguisings, if upon examination by a Iu. of P. &c. the offendor conceale the offence,Dyer. 50. or any other offendor therein, is felony in such concealor; But if such offendor upon his examination, shall confesse the truth then he is but fineable. And if any person, to be arrested for such offence [Page 99] shall disobey the arrest: Or if any person shall make rescous, so that the warrant (of the Iu. of P. &c.) for arresting them be not executed it is felony. But such hunting and concealement, or resistance where the offendors killed no Deere, &c. seemeth to be no felony, for all the presidents doe runne, occiderunt & asportaverunt, &c. See Lambert. Cromp. & West.
17. Also it seemeth by the statute of 1. H. 7. ca. 7. that all such hunting disguised, or any other unlawfull hunting in the night time is felony, if the offendor be not examined thereof, and confesse the same as abovesaid, See the stat. 1. H. 7. c. 7. in fine.
18. If any person shall take a tame beast,3. Ed. 1. 20. P. Fel. 24. or other things in any parke by manner of robbery, it is felony.
19. If any person being marryed,10. Carol. ca. 21. in Ireland. shall marry a second husband or wife, the first being alive, &c. it is felony, except where the husband, or wife have beene absent 7. yeares, and the one not knowing the other to be living within that time, except also persons divorced, &c. by sentence in the Ecclesiasticall Court: And except persons marrying within the age of consent.
20. Multiplication of gold, or silver,P. Fel. 21. or to practise that Art is felony. 5. H. 4. ca. 4.
21.10. Caroli ca. 19. in Ireland. Poysoning sc. wilfull killing of any person by poyson is wilfull murder in the offendors, their Ayders, abetters, procurers, and Counsellors. Co. 11. 31. But the party poysoned must dye thereof within a yeare and a day after the poyson received.
22. Purveyors, sc. if any Purveyor, Taker,P. Fel. 25. P. Puru. 3 [...]. Cromp. 48. P. Puru. 3. 4. 28. E. 1. ca. 2. 4. E. 3. ca 4. 36. Ed. 3. 2. 23. H. 6. 2. P. Felon. 25. P. Puru. 19. 36. Ed. 3. 5. Rast. 351. Cromp. 48. or other person their Deputies, or servants, shall make any purveiance, takings (or prises) for the Kings Majesties house, of any thing above the value of xij. d. without warrant or Commission under the great seale which warrant they shall shew to the parties, before they doe take any thing from them: Or if they shall buy or take any thing in other manner then is contained in their warrant; Or shall take any carriage in other manner then is comprised in their Commission. Or shall carry away any thing above the value of xij.d. and under the value of 40.s. against the owners will without paying for the same presently and according as they can agree with the seller in all these cases it is felony, See the statutes 28. E. 3. ca. 12. 34. E. 3. ca. 3. 36. E. 3. ca. 5. 2. H. 4. ca. 14. & 20. H. 6. ca. 8.
23. Or if such Purveyors shall take any thing being above the value of 40.5. Ed. 3. 2. 25. Ed. 3. 1. 36. Ed. 3. 1. P. Felon. 25. P. Puru. 17. 10. E. 3. ca. 1.s. and shall not doe it by the testimony and appraisement o [...] the Constables and foure neighbours sworne (if the purveyor and o [...]ner cannot well agree.) And shall not deliver Tales, or Indentures, s [...]led with his seale, testifying the same. Or shall take more victualls o [...] carriages for the Kings house than he shall deliver to the same h [...]use: Or shall take any sheepe with there woolls,P. Felon. 25. P Puru. 18. P. Felon. 25. P. Puru. 9. 25. E. 3. 15. betweene Easter and Midsomer at small prises, or more than be sufficient for the Kings ho [...], and to carry them to his owne house and sheare them. In [Page 100] every of these cases it seemeth to be felony in such Purveyor their Deputies and servants: And yet a purveyor, or taker, &c. may take victuall, or other thing according to his Commission at reasonable prices to the use of the Kings Majesty, and according to the statutes, although it be against the will of the owner. Br. Puru. 1.
Co. 8. 146.24. But if a purveyor shall take any provision for the Kings house, by force of his Commission; And shall after fell away the same, now his first taking is become tortious, and he punishable as a Trespasser, if nor as a felon ab initio.
24 Ed. 3. 2. 36. E. 3. 6. 7. R. 2. 8.25. If any subjects Chator, or other officer, shall take any victualls, Come, Hay, carriage, or other thing against the owners consent, or doe not pay for it presently, it is felony. P. Puru. 1. See the stat. 23. H. 6. ca. 14.
26. Robbing in the day time of any dwelling house, or of any out house,Co. 11. 36. belonging and used to and with any dwelling house (as a Barne or stable, &c.) if it be to the value of 5. s. or above (although no person be therein) or to rob any house by day or by night, any person being therein, and thereby put in feare, or to rob any person in any part of his dwelling place or house,11. Ia. ca. 3. in Ireland. the owner or dweller, his wife, children, or servants therein, or in any other place within the precinct of the same house or dwelling place (sleeping or waking) or to rob any Booth, or Tent, in a faire, or Market, the owner his wife children, or any servant being then within the same (sleeping or waking) every of these offences are now by stat. made felony and as penall as burglary by the losse of the benefit of Clergy.See Co. 11. 31. 32. & 36. Stamf. 125. But to breake a house in the day time, although hee hath a felonious intent, yet if he carrieth away nothing, this is no felony, for there must be an actuall felony done besides the breaking of the house in the day. And by the report of Master Dallison, these statutes shall be straightly construed in favour of life, and according to the bare letter, so that if the Robbery be done by day, and there be in the house but one servant onely, or there be in the house, Booth, or Tent, but a stranger, or sojourner onely, the fact shall not be adjudged an offence against these statutes to take away the benefit of Clergy.
27. If servants imbezell the goods of their deceased master or goe away with their masters goods, See antea in the chapter of Larceny, ca. 19. Sect. 15. & 23. where this shall be felony.
18. H. 6. 10. P. Fel 23. P. Capt. 3.28. Souldiers entred of record, and having taken prest mony, or parcell of their wages of their Captaine, if they shall not passe the sea or goe with their Captaine, or being in the Kings service shall depart without licence,Co. 6. 27. it is felony. See Co. 6. 27. that this statute of 18. H. 6. 19 is now of litle force; but yet the departure of a souldier without licence is felony by the statute 7. H. 7. 1. which statute is yet in force and perpetuall. Co. ibid.
1 Ed. 1. 35. [...]d [...]4.29. To ravish a woman, where she doth neither consent before nor after, or to ravish any woman with force, though she doe consent [Page 101] after, it is felony, and the offendour shall have no benefit of Clergy.11. Ia. ca. 3. in Ireland. Stamf. 22. Cromp. 100. But a woman that is ravished ought presently to levy Huy and Cry, or to complaine thereof presently to some credible persons, as it seemeth. Glanvill 115. See the Stat. de officio Coronatoris. 4. E. 1.
30.Britton. 45. Stamf. 25. If a woman at the time of the supposed Rape doe conceive with childe by the ravisher, this is no Rape; for a woman cannot conceive with childe, except she doe consent;4. E. 4. 6. Br. Parliament 55. But if a man ravish a woman, who consenteth for feare of death or dures, yet this is ravishment against her will; for that consent ought to bee voluntarie and free.
31. All such as are present, abetting, ayding,11. H. 4. Stamf. 44. or procuring another to commit rape, are principall felons.
32. It is a good plea, in an appeale of rape,Stamf. 24. to say that before the ravishment supposed she was his concubine, as Maister Bracton saith. And yet to ravish an harlot against her will, is felony,Cromp. 47. for licet meretrix suerit ante, certè tunc temporis non fuit cum nequitiae ejus reclamando consentire noluit. Bract. lib. 2.
33. Also to take away any Maide,3. H. 7. 2. P. Fel. 16. widdow or wife (having lands or goods, or being heire apparant to her Ancestor) against her will unlawfully, is felony, and to receive any so taken knowing thereof, or to procure and abet the same, is felony. And shall be all reputed as principals.
34. The taking away of a mayde under 16 yeares of age without the consent of her parents or governours,10. Caroli ca. 17. in Ireland. or contracting marriage with her, or deflowring her, is no felony, but yet shall be punished with long imprisonment without bayle or with grievous fyne.
35.13. Ass. 6. Br. Cor. 77. Stamf. 94. Cromp. 35. Also to take away a mans wife with the goods of her husband, whether it be against her will, or against her husbands will, seemeth to be felony, by the stat. of West. 2. cap. 34. the words thereof are de mulieribus abductis cum bonis virorum suorum, habeat rex sectam de bonis sic asportatis.
36. But if the wife take her husbands goods,F. Cor. 455. Stamf. 27. and so goeth away voluntarily with another man, and with those goods, or delivereth those goods to another man, these two last cases seeme not to bee felony.
37. By a statute made in Ireland in the third yeare of the Raigne of King Edward the second, cap. 1. & 2. 3. Ed. 3. ca. 1. & 2. Taking of meat or drinke against the will of the owner is felony.
38. Also by a statute made in Ireland in the fifteenth yeare of the raigne of King Edward the fourth, Rot. Parliament. cap. 8. the taking of a distresse contrary to the common law, that is to say, where no distresse lyeth in the case, as to distrayne for debt, breach of Covenant or such like is felony; but to distrayne where a distresse lyeth in the case as for rent, service, or such like, although the taking of the distresse be unlawfull, because no rent is arreare, yet that is no felony; for that distresse is not contrary to the common law.
[Page 102]39. Also by a statute made in Ireland in the Eleventh yeare of the raigne of Queene Elizabeth. cap. 10. It is felonie in a Searcher to conceale the transporting of wooll and other prohibited merchandises.
13. El. ca. 4. in Ireland.40. By another statute made in Ireland in the thirteenth yeare of Queene Elizabeth. ca. 4. it is ordained that the shipping, loading, imbarquing, and putting into any ship, barque, Pickard, Boat, or any other vessell whatsoever of any prohibited merchandises, as Wooll, woolfels, &c. in any port, haven, harbrow or Creeke within this Realme before entrie made of the same, and the customes well and truely paid according the tenor and effect of another statute made in 11.11. El. ca. 10. in Ireland. Eliz. ca. 10. shall be adjudged and deemed felonie in all and every such person and persons, their ayders, consorts, and assistants, that will so ship, loade, imbarque, and put the said goods into any Ship, Barque, Pickard, Boate, or other vessell before entrie made, and the said customes paid as aforesaid, and that the same persons their ayders, consentours and assistants so to doe shall have the same order of processe, inquiry, triall, judgement, forfeiture and execution as in cases of felony is used by the common Law in this Realme, and that the Iustices of peace at their Sessions, and all and every officer and officers within Cities and incorporated Townes, having authoritie to be Iustices of peace, or of gaole deliverie, within the said Citties and incorporated Townes shall and may lawfully inquire, heare and determine all and singular the premisses made felony by the said Act.
41. By a statute made in Ireland in Anno 10. H. 7. ca. 11. It is enacted that if any person take any money or other amends for the death or murder of his kinsman or friend other then the lawes of the kingdome will permit the same,10. H. 7. ca. 11. shall be felony.
42. By a statute made in 33. H. 8. ca. 5. It is felony for a servant of the age of 18.33. H. 8. ca. 5. in Ireland. yeares or upwards to goe away with the goods of his master or mistresse, committed to his charge, if the goods be of the value of 40. s. but there is a proviso, that this shall not extend to an Apprentice.
43. By a statute made in 10. Caroli ca. 20. in Ireland it is enacted that the levying of any Fine,10 Caroli c. 20. in Ireland. suffering of any Recovery, acknowledging a Recognizance, baile, or Iudgement in the name of any other p [...]rson or persons not being privy or consenting thereunto shall be felony.
Accessaries. CHAP. 24.
3. H 7 fo 10. St [...]f. [...]0. Br. Treas. 19.1. IN high treason, there be no Accessaries for all the advisers, counsellers, perswaders, and assistants therein, be principalls and asmuch as if they were Actors or doers, yea all that shall advise, counsell, [Page 103] perswade, command, procure, or hire another to doe any treason, or felony, they being indeed the very cause of the fact, may seeme as culpable if not more, then the principall Actor and the rule is, plus peccat author, quam actor, Examples also we have hereof in the booke of God. Gen. 3. The serpent the procurer of the first sinne, by Gods owne Iudgement had a greater punishment then the woman, or man; Againe, 2. Sam. 12.9. David is told (from God) that he had killed Vrias, whereas he only commanded Ioab to kill him, &c. yet in case of felony our Law is otherwise, for in felonies they are but accessaries and not principals.
2. Note whatsoever offence doth make a man accessary in felony,Stamf. 40. the like offence maketh him principall in high treason.
3. But yet it seemeth this is to be understood of accessaries before the Treason, for receiving, aiding, and comforting a Traitor after the offence (knowing the same) was holden to be but misprision of treason. 12. & 13. Eliz. Dyer 296. And yet by some other authorities, and by the common experience and practise the relieving of Traitors after the offence, knowing thereof, is holden to be treason, See 3. Dyer. 296. H. 7. 10. Br. Treas. 19. per Hussey chiefe Iustice and Cromp. 42. b.
4. In cases of Premunire, there may be principall and accessary by some opinions. 44. E. 3. & 8. H. 4. 6. b. Br. Premunire 4. 6. Tamen quaere, 27. E. 3. ca. 1. for these offences seeme more like a Trespasse then a felony, &c. And upon the statute of 27. E. 3. the offendors shall forfeite nothing, if they appeare at the first day, but if they appeare not at the first day, then for their contumacy they shall be out of the K. protection, and shall forfeite their lands, and goods, to the K. which are as a paine given by the statute, but is no attainder, also if the principall appeare not, or happen to be dead, yet the other shall answere, and therefore it seemeth that they be all principals. Br. 4.
5. In petty treason there is a principall, and there be accessaries, as there is in felonies.
6. In felonies, there be two sorts of accessaries. The one is accessary before the felony committed, the other is accessary after the offence done.
7. But he that is present at the time of the felony committed (be it in case of murder, robbery, burglary, or Larceny) is principall, if he were either a procurer, or mover, or be aider, comforter, or consenter thereto, although at that present he doe nothing. Plo. 100. a. 11. H. 4. Br. Coron 188.
8. If one being present at the killing,Stamf. 40. b. or robbing of a man doth nothing, yet would have aided his companion if there had been need, he shall be adjudged a principall.F. Coro 395. Stamf. 37. 40. b. But if one be present by chance and seeth when another is slaine, or robbed, or when any other felony is committed, and doth not come in company with the felons, nor is of there confederacy, although he doth not make any resistance,Cromp. 44. 14. H. 7. 31. or disturbe the felon, or levy Huy, and Cry, nor discovereth the same, [Page 104] but concealeth it, yet it is no felony in him, but it is a great neglect of his duty, for which he shall be punished by fine and Imprisonment.
9. Also in some cases a man may be a principall, although he be not present at the time of the felony committed; As if A. knowing drinke to be poisoned, perswades B. to drinke it, and after B. (in the absence of A.) doth drinke it, and dyeth thereof. A. is here a principall murderer. Co. 4. 44.
Dalton pag. 259.10. Note that the Accessary in felony, whether before, or after, though it be another offence, and distinct from the principall fact, yet it is also felony.
Praecipiendo. Persuadendo. Consulendo. Consentiendo.11. Accessaries, before the felony are such as shall will, command, hire, procure, move, conspire, counsell, abet, or consent to commit any pety Treason, murder, robbery, rape, burglary, or Larceny, but are not present thereat, yet all such are thereby felons, when the felony is committed.
12. But here note, some differences are to be observed when the principall and chiefe offendor or Actor doth not accomplish the fact altogether in the selfe same sort, as it was before hand agreed and plotted betweene him and the accessary, and therefore if A. command B. to lay hold upon C. and B. goeth and robbeth C. this is no felony in A. (if he be absent when the robbery is done) for this commandement might have beene performed without any robbery. But if the commandement had beene to beate C. and the party commanded doth kill C. or beateth him so that he dyeth thereof.F. Coro. 314. A. shall be accessary to this felony and murder, for it is hazard in beating a man that he may dye thereof.
13. A. commandeth B. to rob one and in attempting this another is killed,Plo. 475. A. shall be accessary to this murder, for he that commandeth an evill or unlawfull act to be done shall be adjudged accessary to all that shall ensue upon the same evill Act, but not to any other distinct thing: As if A. commandeth B. to steale a horse, and he stealeth an Oxe,Plo. 475. or to steale a white horse, and he stealeth a blacke, or to rob a man by the high way of his money, and he robs him in his house of his place, or to burne the house of B. and he burneth the house of C. these be other Acts and felonies than A. commanded to be done, and therefore A. shall not be adjudged accessary to them.
14. But if B. shall commit the same felony which A. did command or counsell to be done, though he doth it at another time, or in another sort than A. did command,Plo. 475. or Counsell, yet here A. shall be accessary thereto; As if A. doth counsell B. to kill C. by poison, and he killeth him with his dagger, or to kill C. by the high way and he killeth him in his hous [...], or to kill him one day and he killeth him upon another day, in these and the like cases, A. shall be accessary to the murder.
Dalton pag. 259.15. A. counselleth B. to poison C. and to that end A. buyeth poison, and delivereth it to B. who tempereth it in an Apple, and [Page 105] delivereth it to C. with intent to poison him and C. knowing nothing, giveth the Apple to E. who eateth it, and dyeth thereof, here A. is not accessary to the murder of E. yet it is murder in B.
16. A. counselleth B. to kill C. and before he hath killed him,Dalton pag. 26. A. doth repent [...]im, and countermands it, charging B. not to kill C. and yet after B. [...]oth kill C. here A. shall not be adjudged accessary to the death of C. for the Law adjudgeth no man accessary to a felony before the fact, but such as continue that minde at the time that the same felony is done and executed; But if A. counselleth a woman to murder the child in her body, and after the child is borne,Dyer. 180. and then is murdred by the commandement of the woman, in the absence of A. yet he is accessary by his counselling it before the birth, and not countermanding it. Dyer. 186.
17. A man foreknoweth of a felony intended to be done, and doth conceale it, and so suffereth it to be effected, this maketh him no accessary to the felony, except he consenteth thereto,14. H. 7. 31. but such concealement seemeth to be only misprision of felony and fineable: And yet the rule is, Qui non prohibet, quod prohibere potest, consentit.
18. Note that in manslaughter,Co. 4. 44. there can be no accessary before the fact, for manslaughter is upon a sudden falling out.
19. Accessaries after the offence,After the fact. are they who knowing that another hath committed a felony, doe feloniously receive or harbour him, or relieve, assist, comfort, or aid him,Stamf. 41. whether it be before the attainder of the felon, or after his attainder: As to comfort or relieve a felon (before he is attainted) with money, meate, drinke, or lodging, knowing of the felony, maketh one accessary,Stamf. 41. So to lend him a horse to go his way withall: Or otherwise to be a meanes of his escape.
20. But to relieve him being in prison maketh not a man accessary. Also to ayde him by his good word, or suit, for his deliverance, or to send a letter for his inlargement by baile,Br. Cor. 103. or any other lawfull way, this maketh not a man accessary to the felony, but to worke his enlargement by escape or any other unlawfull meanes, will make him accessary.
21. To receive, harbour,Cromp. 42. or relieve a felon which is upon baile with money or victuall, breedeth no danger of being an accessary, because the felony in this case cannot be concealed, nor the tryall hindred by it.
22. If a felon getteth his pardon such as shall receive or relieve him after, shall not be accounted accessary. But to receive or relieve him before his pardon obtained, is felony, See Plo. 476. yet upon this pardon such accessary shall be discharged, if the pardon be pleaded before the felon be attainted.
23. If a felon be attainted, by verdict, confession, or by Vtlary, some boo [...]es hold that to receive, harbour, or relieve such a one,F. Coro. 377. Stamf. 96. Dyer. 355. by any pe [...]son dwelling in the same County where the felon is attainted, it maketh such receiver, or ayder an accessary to the felony although [Page 106] such receiver, &c. did not know of the felony, because by the attainder of the felon, he is a felon of record, whereof every person dwelling in the same County, is to take notice, yet Master Bract. requireth a more direct knowledge in the parties to make them accessary, for albeit a record (and especially the pronouncing of an utlary) be so notorious, that every man may easily come to know the same, yet were it an over-great extremity that every man should (upon the perill of his owne life) take certaine knowledge thereof, which opinion of Master Bracton Master Lambert also holdeth to be very reasonable, and for my part I am of Master Bractons opinion. But a felon at [...]ain [...]ed (by verdict,F. Cor. 377. Vide Stamf. 4 [...]. confession, or utlary) in one Cou [...]ty, and another doth receive, or ayde him in another County, this maketh such receiver, or ayder no accessary to the felony, unlesse he did also know of the felony.
24. If a feme covert shall relieve, or receive and keepe company with her husband,F. Cor. [...]83. Stamf. 26. knowing him to be a felon, shee is no accessary thereby, for a woman covert cannot be accessary in felony to her husband, for shee ought to relieve him, and not to discover his Counsell, but if shee relieveth another felon, shee is an a accessary.
25. A felon who fled to the house of his naturall brother, and the brother shut the foredoore against the pursuers,See. Stamf. 43. c. Dalton pag. 261. and convayed the felon out of his house, at a backe doore, whereby he got to the Church, this brother was adjudged an Accessary for it, for he was a meanes of the escape.
Stamf. fo. 43. c. Coro [...]. Fitz. 427.26. If a felon flyeth, and commeth to his friends house, and his friend doth shut the doore against him, and yet maketh the pursuers believe that he is in the house, whereupon he escapeth, this maketh the friend to be an Accessary.
27. A man hath a felon in his house, and (knowing of the felony) suffreth him to goe his way,9. [...] 4. 1. Br Cor. 26. See Br. escape 43. and so to escape, yet this is no felony, for that he had not arrested him of the felony before, neither can such an escape make him an accessary, except he were a meanes of the escape, but for his neglect hee may be punished by fyne and imprisonment.
28. If one doe rescue him that is arrested for felony, he is a principall felon,1. H. 7. 6. Stamf. 43. c. and not an accessary, for this rescous is a new felony of it selfe, although it depend upon the former.
Buyi [...]g stolne goods. 35. E. [...]. 39.29. Receiving or buying stolne goods, knowing they were stolne, maketh not a man accessary to the felony, unlesse hee receiveth also (or aydeth) the felon himselfe, as it is holden in some bookes, yet Maister Crompton and Iustice Stamford make a quaere thereof,9. H. 4. 41. Stamf. 43. b. See Cromp. fol. 41. 42. 43. But herein there is a difference between a buyer being a stranger to the felon, and who for valuable consideration shall buy such goods, and a receiver or buyer, who is an adherent or companion to the felon, or that by Covin shall receive or buy such goods, for clerely such receiver as is last mentioned is an accessary, [Page 107] as appeareth by the preamble of the statute of 10. Caroli ca. 19. in Ireland, and I doe not see in reason but that the former should also be accessary, for by the money which is given for the stolne goods the felon is as much relieved in the one case, as in the other, and the cases as I conceive in 27. ass. p. 69. & 25. E. 3. fo. 39. remembred by Maister Stamford, fo. 43. & 69. are not contrary, if they be duely considered, for the reason of those bookes is, because the indictment or appeale was but only for receiving the stolne goods without speaking of relieving the felon, but if the Indictment had beene for relieving the felon, the buying of the goods, knowing them to be stolne, would have beene good Evidence to maintaine the indictment.Cromp. 4 [...].
30. A man buyeth stolne goods for 5. s. which are worth 20. s. this maketh the buyer an accessary by the opinion of Maister Crompton, fo. 43. for it may well appeare by the price, that the seller came not truely by them, and therefore it is safe to lay hold of such sellers, as shall sell any thing at any great under value.
31.Taking ag [...]ine stol [...]e goods. Br. Cor. 2 [...]. A man pursueth and taketh a felon that hath stolne his goods and then taketh his goods againe, and suffereth the Theife to escape, he is no accessary thereby by some opinions; for hee may in initio agere civiliter, or criminaliter, at his pleasure, as Maister Bract. writeth,Cromp. 37. 41. 42. but Maister Stamf. fo. 40. saith, If he takes his goods againe from the felon to favour him, this is theft boot, (the punishment whereof in ancient time was of life and member, but at this day by Maister Stamford fol. 40. It is but ransome and imprisonment.Cromp. 41. P.R. 131. Br. Cor 121. 42. Ass p. [...]. Dalton pag. 262.) The like seemeth to be, if he takes his goods againe from the felon, and then favoureth him, and letteth him goe, but if the party robbed take money, &c. of the thiefe to the end he shall favour him, or shall not give Evidence against him, whereby the thiefe escapeth, now he is an accessary to the felony of his owne goods, by good opinion, though some other seeme to take this for theft boot, and so to be punishable at this day only by ransome and imprisonment.
32. If the party robbed, or if he that shall have any goods stolne from him, after complaint by him made of the felony (to a Iustice of Peace, or to the Constable) shall then take his goods againe, and will not prosecute this matter against the felon any further, but will suffer him to escape, after he was once so charged, and perhaps arrested for the same, this maketh him an accessary, for that he did once agere criminaliter, by complaint made to the officer against the felon, and in such case, the Iustice of Peace shall doe well either to commit, or at least to binde over both the one and other to the next Goale delivery.
33. But if upon Huy and Cry a man doe arrest a thiefe that hath stolne another mans goods,22. Ass. 62. and doe then take the goods from the felon, and so let him goe, this maketh him an accessary to the felony and also a principall felon for the voluntary escape.
34. Note, in all cases of an accessary after the fact, it is requisite [Page 108] that the fact,Stamf. 287. to which he is an accessary, be a felony at the very time in which he becommeth an accessary to it, For if A. giveth a mortall wound to B. upon the first of March, and C. knowing thereof receiveth, &c. A. 2. or 3. dayes together, and letteth him goe, and after B. dyeth of the wound within the yeare, yet this receipt, &c. maketh C. no accessary, because the principall fact was no felony at the time either of the receipt, or of the letting him goe.
P. Trial. 2.35. By the statute of 10. Caroli ca. 19. in Ireland, accessaries may be to a felony done in another County,Stamf. 41. fo. 63. li. whereas before that statute the common law laid no hold of such accessaries, for that these in another County, upon the triall could not have conusance of the principall offence, &c. But now by the said statute there shall be a Certificate from the Custos Rotulorum of the County where the principall shall be attainted or convicted.
Stamf. 44 [...]36. Note that if an offence bee made felony by statute, although the same stat. doth not expressely make mention of procurors, counsellors, abettors, receivers, consentors, and aiders, &c. yet they shall be taken as accessaries (within the compasse of the same statute) even in the same manner, as if it were felony at the common Law.
37. A man may be an accessary to an accessary, as if hee shall receive,26. Ass. 52. F. Cor. 196. releive, or comfort him who is accessary to a felon knowing the same.
P. Appeal. [...]. Co 4. 43. & 9. 117. 119. Plo. 98. 99.38. Although the accessary shall bee punished, and shall have judgement of life and member, as well as the principall, which did the felony, yet the principall ought first to be attainted (after verdict or after confession, or by Utlary) before any judgement can be given against the accessary, and the acquittall of the principall is the acquittall of the accessary, for ubi non est principalis, non potest esse accessarius, but yet the accessary shall bee attached, and surely kept (and shall be committed by the Iust. of Peace, &c.) untill the principall be attainted.
39. And if the principall be attainted, though erroniously, that shall not availe the accessary, but he must answer, &c. Co. 9. 68. b. & 119
Co. 4. 43. 44. F. Cor. 166. & 378. Vide Br. Coro 70. 71. 80. 83. 86. 132.40. If the principall dye before he be attainted, or if the principall be found not guilty by verdict, or be found by verdict that hee slew the other in his owne defence, or if after conviction, and before judgement, he hath his Clergie, or getteth his pardon, the Accessarie in all these cases shall be discharged, but it is not safe for the Iustice of Peace to dischardge such an accessary out of Sessions.
Cromp 34. b41. A man killeth another se defendendo, or by misadventure, and it is so found upon his triall, the accessary shall be discharged; for that in these cases the principall shall not have judgement of death. Et omne accessar. sequitur suum principale. See Br. Forf. 13.
Certaine rules concerning felonies. CHAP. 25.
1. IF a man committeth felony in the time of one King,Rules concerning felony. 1. E 6. Br. Cor. 178, he may be charged and arraigned for it after, in the time of another King.
2. If a man doe commit murder, steale goods, or doe any other felony in one County, and then flyeth into another County,13. Ed. 4. 9. and is taken there, and brought before a Iustice of Peace, there he shall be (by the Iustice) imprisoned in the gaole of the County, where he is taken, and after shall be removed by the Kings writ into the gaole of the County where he committed the felony; but for those that do informe against such felons the said Iustice shall binde such Informers over to appeare and to give Evidence against such felons, at the next generall gaole delivery to be holden in that County, where the tryall of such murder, or felony shall be, whither also the said Iustice must certifie such information taken by him.
3. If a man committeth a robbery, or stealeth a horse,4 H. 7. 5. [...]4 H 8. Br. Cor. 171. Co. 7. 2. beast or other goods in one County, and doth carry leade, or drive the goods into another County, it is felony in every County whither he doth carry, or drive those goods, and the offendor may be indicted, or appealed of felony, or theft, and be arraigned and have his judgement in any of those Counties, but the offendor cannot be appealed, or indicted of robbery, but only in the County where the robbery was done, for it is not robbery in any other County, for Robbery must be done to the person of a man.
4. If a felon doe steale another mans goods,11. E. 4. 3. 4. H. 7. 5. and after another stealeth the same from him, the owner of the goods may charge the first, or second felon, at his choice.
5.P.R. 130. Also if a man shall deliver cloth to a Taylor to make a garment, if the cloth be stolne from the Taylor, the offendor may be charged, and indicted for stealing the same, either at the owners suite, or at the Taylors.
6. Also an indictment may be,Dyer. 99. Quod bona & Catalla cujusdam hominis ignoti felonice cepit, and in such case any man may both informe the Court and by their direction may preferre an indictment against the felon and give Evidence to the Enquest therein. And so if the owner be knowne, and will not charge the felon therewith, any other person (especially after proclamation made in the Court, that if any will enforme for the King,Stamf. 163. he shall be heard) may safely informe the Court, preferre an indictment, and give in Evidence for the King against the felon, because it is for the K. advantage to have the forfeiture of the felons goods, and in the two former cases if the Iu. of P. shall heare of any person that can informe any materiall thing against such a felon, or against any felon, the Iu. in his discretion may send for him, take his information, and may bind him to give evidence against such felon.
[Page 110] Dalton pag. 265.7. Also if any robbery or Theft be committed, and the party robbed, or other owner of the goods, will not charge the felon therewith, yet every Iust. of P. may cause such felon (or any person suspected for such felony) to be apprehended and may examine them thereof, and also may send aswell for the party robbed, &c. as for all such other persons as can informe any thing materiall concerning the said felony, and may take their informations upon oath, and if upon such examination he shall finde cause, the said Iustice may commit the offendors, and binde over the informers.
8. Note also (for the better prevention and apprehending of felons) that upon all homicides,Huy, & Cry. 3. E 1. c. 9. burglaries, robberies, and other felonies, and when men are put in great danger, Huy and Cry shall be levyed,P. Fel. 38. & Huy, & Cry, 1. and every man shal I follow the Huy, and Cry, and whosoever doth not, shall be attached to appeare before the Iu. of gaole delivery, and any Iu. of P. may bind them over by the Commission of the peace,3. Ed. 1. c. 9. yea upon any felony committed, all men generally shall be ready (at the commandement of the Sheriffe, or Constable and at the cry of the countrey) to pursue and arrest felons, upon paine to bee grievously fined.
13. Ed. 1. c. 1. 2. 28 E. 3. c. 11.9. And such Huy, and Cry, and pursuit shall bee made from towne to Towne, and from Countrey to Countrey, and shall be made by horsemen, and footmen, and in case of robbery, if none of the felons be taken within Forty dayes after the felony committed,11. Caroli c. 13. in Ireland. then the whole hundred, where the robbery was done, shall answere for the robbery done,See Br. de [...]. 104. and the damages but yet the inhabitants of any other hundred wherein negligence, fault, or defect of pursuit and fresh suite, shall happen to be, shall answere and satisfie the one moitie and halfe of all and every such summes of money and damages.
3. H. 7. c. 1. Co. 7. 6. b.10. And if a man be slaine in the day time, in a Towne not walled, and the murderer, or manslayer escape, the whole Towne shall be amerced for this escape; But if it be in a City, or Towne walled, then if the murder, or manslaughter were by day, or by night, they shall be amerced for the escape, Fitz. Coron. 238. 293. & 302. Stamf. 33. l. 3. H. 7. 1. P. Coroners 13.
11. And if a man be slaine in the day time, out of any Towne; then the hundred shall be charged therewith, and for the insufficiency of the hundred all the County shall be charged, &c. Stamford 34. f. yet see Dyer. 210. b. that the towneship shall be amerced for the escape, although the murder were committed in the fields of the Towne, or in a lane, &c. and the Iust. of P. are to inquire of such escapes, and to certifie the same into the K. Bench. P. Iustices 19.
12. Also every man is a sufficient Bailiffe and officer to apprehend him that is pursued by Huy and Cry,P.R. 156. and if he be taken with the thing supposed to be stolne, though he neither be of evill fame nor a stranger, yet every man may commit aswell such suspected [Page 111] person, as also such goods to the Towne where they be apprehended to answere to the King according to the Law: And the Constables of the Towne are to carry before some Iustice of peace, aswell such prisoners, as also the bringers, that the Iustice may take there Information against such prisoner, and may examine and commit such offendor or person so suspected.
13.Dalton pag. 266. But if a man doe levy Huy and Cry upon another without cause, both the one and the other shall be attached, and carryed before a Iu. of P. to answere it, as disturbers of the peace, and to be bound to their good behaviour.
14. Note also that the Kings officer may breake open any mans house, to apprehend any felon,9. Ed. 4. 9. Co. 5. 92. or any person that is suspected of felony being in the said house.
15.Watch. And for the better detecting and apprehending of such offendors in great Townes being walled, the gates are to be shut from the Sun setting untill the Sun rising;13. [...]. 1. 4. P. watch. 1. 2. And no man shall be lodged in the Suburbes from nine of the Clock, untill day, unlesse his Host will answere for him: And in all other Townes watch shall be kept from the Feast of the Ascension, untill Michaelmas,5. H. 7. 5. a. from the Sun setting untill the Sun rising; And if any stranger doe passe by them he shall be arrested untill the morning, &c.Lamb. offic. of a Constable. And for such arrests none shall be punished: And the Constables ought to see these watches duely set, and kept, and to make presentment to the Iu. of P. at their Sessions, of the defaults of watches, and of such as lodge strangers for whom they will not answere, and the Iu. of P. at their Sessions shall punish such as be found in default. P. Watch. 2. And every Iu. of P. may cause these watches to be duely kept.
The forfeiture for Felony. CHAP. 26.
THe punishment of felony is fourefold, sc.
1. The offendor shall lose his life, and be hanged betweene heaven, and earth, as unworthy of either.Co. 4. 124.
2. He shall lose his blood, aswell in regard of his Auncestry, as of his posterity, for his blood is corrupted, so as he hath neither Auncestor, heire, nor posterity.
3. He shall forfeite his (fee simple) lands wherein the K. shall have Annum diem & vastum, to the intent that the offendors wife and children shal be cast out thereof, his houses razed, his trees rooted up, his meadowes plowed up, and all his land wasted and destroyed; And after the yeare, day and wast, the lands shall goe by Eschete to the chiefe Lord of the fee. But yet the Lord may fine with the K. for all, and so have the land presently.
4. The offendor shall forfeite and lose all his goods.
5.P. P [...]ero. 16. 17. [...]. 2. The K. shall have all the goods of felons which be condemned [Page 112] and which be fugitive, wheresoever the said goods be found, sc. all their goods moveable and unmoveable,Co. li 4. 95. Co. 3. 3. 2. Br Cor. 317. 334. Dalton p. 267. 10. H 6 47. Stamford. fo. 188. Dyer. 30. their Corne growing, and the profits of their Fee simple lands, during their lives, and all their debts done to them by stat. recog. obligation, or simple contract, and money due upon accompts, and the King, or he to whom the King shall give such debt, shall have an action therefore in his owne name, and yet the King shall not pay such debts as the said felons did owe.
6. By the common Law, after a felon be found guilty before the Coroner, or that it be found before the Coroner that he did fly for the felony, there the Coroner, Sheriffe, undersheriffe, or Escheator, &c. may (for the King) seise the goods of the felon, and preise them by an Enquest, &c. befo [...]e his attainder, for by such thing found before the Coroner, the goods of the felon are forfeited without further inquiry or tryall of the felon, and yet the officer may not in such case carry the felons goods away, but (after prisement as aforesaid) must leave them in the custody of the felons neigbours,22. Ass. 96. Br forf. 53. 43. E. 3. [...]4. where he dwelt, or in the custody of the Towne where the goods were, to be answered to the K. and if he were indicted of felony, yet his goods should not be removed out of his house, untill he were convicted, but the officer was to seise, and preise them, and to take surety of the party that they should not be imbezeled, and if the party would not find surety, than the officer was to deliver them to the neighbors, and the said goods should be kept by his neighbors all the time of his imprisonment, and the felon must have had reasonable maintenance of his goods for him and his family untill he were convicted and found guilty of the felony, and then that which did remaine was the Kings, See 25. E. 3. c. 14. P. indict. 5.
P. Sherif. 24.7. And now by the statute made 1. R. 3. c. 3. it is ordained, that if any Sheriffe, &c. or other person, doe take or seise the goods of any person arrested and imprisoned before the same person be convicted or attainted of felony, or that the same goods be otherwise lawfully forfeited,25. Ed. 3. he shall pay to the party grieved the double value of the goods so taken or seised, &c. which statute seemeth to be but a confirmation of the common Law,P. indict. 5. saith Maister Stamf. fo. 193. save that, it giveth the party grieved a more ample recompence, and more speedy remedy than the common Law before did, so that before attainder or conviction the goods of a felon that is in prison ought not to be seised,Stamf. 193. nor committed to the Towne, nor taken out of the felons house, or possession, for a man attainted of felony shall forfeit such goods as he hath at the time of the attainder, and not at the time of the felony committed, and a felon or traytor after the felony or Treason committed,Br forf. 58. Co [...] 1 [...]1 Stamf. 192. a. and before attainder or conviction may sell (bona fide) for his sustenance, &c. his goods or chattells, be they reall or p [...]rs [...]nall (but they may not disorderly sell, or waist their goods) therefore it seemeth that the officer may still take surety that the [Page 113] goods be not imbezeled, and for want of surety may deliver them to the Towne. See Br. Forf. 44.
8. Nay after attainder if they shall grant their goods or lands, it shall binde all persons, except the King and Lord by escheat, but against them such grant is voide. And besides as to the King or Lord by escheate, a man attainted of treason or felony is absolutely and perpetually disabled by the corruption of his blood, so as none of his posteritie can claime any inheritance in Fee-simple as heire to him, or to any other Ancestor paramount him. Co. 11. 1. b.
9. After the conviction of a felon (if the goods were in the felons possession at the time of his conviction) the Towne presently stands charged therewith and shall answere for them, though the goods were never seised by the officer, nor delivered to the Towne (except they can shew what other person hath detained those goods, and that they could never have possession of them, which exception is by the statute of 31. E. 3. 3. P. Estreates 3. Stamf. 193. 194.) So that it shall be safe for the Towne to seise such goods (in whose hands soever they be found) presently after the conviction of any felon, yet by the opinion of Prisot, none may seise any goods for the King, but an officer who is accomptable to the King. 9. H. 6. 1. but in this case the towneship is accomptable, and therefore by Prisots reason they may seise such goods.
10.Co. 11. 30. 38. Conviction in felony is where a man (being indicted of felony) upon his arraignement submitteth himselfe to be tryed by the Countrey,P.R. 179. and then is found guilty by the verdict of twelve other Iurors; Or shall confesse the offence upon his triall, or is outlawed for the same.Co. 1 [...]. 30. Also conviction in all other offences (by the common Law) is where the offendor is indicted, or the offence presented by a Iury whereto the offendor pleadeth Not guilty; and is found guilty, by the verdict of twelve other Iurors.
11. And yet by diverse statutes you shall finde that an offendor may be convicted (out of Court) either upon the view and record of the Iustice of peace; Or by the confession of the offendor, or upon examination of witnesses before one or two Iustices of peace, and that out of the Sessions.
12. And sometimes by confession or examination of witnesses in Court without any verdict taken, See Crom. 130. 131. Br. Confes. 32. And in some cases conviction shall be taken for attaineder, see Co. 11. 59. 60.
13. The difference betweene attainder, and conviction,Co. 11. 58. Stamf. 138. & 185. b. in case of felony is, the person attainted hath judgement of death given upon him; The person convict, before judgement, prayeth his Clergy and hath it, &c. Or after verdict, confession, or outlary, the felon is said to be convicted till judgement be given.
14. And so a man is properly said to be indicted, when the offence is first found by the great Enquest, or other Iury of Enquiry.
15. Convicted, when the offendor is found guilty by a second Iury.
[Page 114]16. Attainted when (after such conviction) judgement is given against the offendor.
Examination of felons and Evidence against them. CHAP. 27.
1. VVHen any person shall be brought before a Iu. of P. for Treason,10. Caroli c. 18. in Ireland. murder, manslaughter, or any other felony (wherewith the Iu. of P. may deale) or for suspition thereof, before the Iustice shall commit or send such offendor to prison he shall take
1. The examination of such offendor in writing, but not upon oath.
2. The information of such as bring him viz. he shall take their examination and information of the fact, and circumstances thereof upon oath; And so much thereof as shall be materiall to prove the felony, he shall put in writing within two dayes after the said examination.
3. Also the same Iu. of P. shall binde all such by recognisance as doe declare any thing materiall to prove the treason or felony, to appeare at the next generall gaole delivery (to be holden where the triall of the said felony shall be) to give in evidence against such offendors.
4. And then the same Iustice shall make his Mittimus to carry the offendor to the Gaole.
10. Caroli c. 18. in Ireland.5. Or if such offendor be baileable (and that there be two Iustices of P. present together, the one of them being of the Quorum) after such examination, and information taken, and put in writing, the said Iu. of peace may baile such prisoner.
6. And the said Iu. or Iustices of P. shall certifie at the next generall gaole delivery, such examination, information, recognisance, and bailement.
7. And if any Iu. of P. shall offend in any thing contrary to the true intent and meaning of this statute the Iustices of gaole delivery in their discretions shall fine every such Iustice of peace.
8. And yet for petty Larcenies, and felonies, the offendors in the County of Dublin may be tryed at the quarter Sessions, and the examinations and informations may be certified thither, and the Informers bound thither.
9. For the forme of the recognisance, the forme of the Mittimus, and the forme of the bailement. See postea in the title of warrants and presidents.
10. It the offendor upon his examination before the Iustices of P. shall confesse the matter, it shall not be amisse that the offendor subscribes his name, or marke, under such confession made by him.
11. If the offendor confesseth the felony before the Iustice of [Page 115] peace and notwithstanding he letteth him goe, without committing or bailing of him, this seemeth to be a voluntary escape and so felony in the Iustice, Cromp. 39. 44.
12. Also if any person shall be brought before a Iustice of Peace, and charged with any manner of homicide (other than that which shall be done in the orderly execution of Iudgement, as if it were done se defendendo, or by casualty (which are not felonies of death, or done by an infant, a lunaticke, or the like, yet it is the Iustices part, and safest for him to commit the offendour to prison, or at least to joyne with some other in the bailement of him (if the cause will suffer it) to the end the party may be discharged by a lawfull tryall.
13. Children may be examined to prove a felony against their parents, and bound to give Evidence; for the sonne, and daughter, of Elizab. Device a witch, were not onely examined by the Iustice of Peace against their said mother, and the said examinations certified, and openly read upon the arraignement and triall; but the daughter also was commanded, and did give open Evidence against her mother then prisoner at the Barre; And by the statute of 10. 10. Carol. ca. 19. in Ireland. Caroli in Ireland, the Iustices of peace are to binde by recognisance to give Evidence, all such as doe declare any thing materiall to prove the felonie.
14. It appeareth in the booke of the discovery of witches,By an Infant. that two children, the one about 9. yeares of age, the other of 14. did upon their oathes give Evidence against the prisoners upon their arraignement: And likewise at an Assise at Downe a murder was discovered, and the murderer condemned upon the sole evidence of a child of about 10. yeares old, and the murderer after she had received her judgement confessed the fact, with all the circumstances according as the child had declared the same.
15. Two informe against another in matter of felonie,By persons discredited. and they varie in their tales (viz. in the day and place, when and where the felony was committed,) such information is not much to bee credited. See the storie of Susanna.
16. He that is examined,Cromp. 100. if part of that he speaketh be proved to be false,Dalton pag. 271. he is not much to be credited in the residue of his information, and therefore we shall find in 16. Ed. 4. that, a man who was produced as a witnesse in the Chancery, in his deposition was found to sweare falsely in part, and thereupon his testimony was utterly rejected.
17. A man attainted of perjurie, and after pardoned and restored, such a persons information is not much to be credited against a prisoner, for the old saying is, Once forsworne ever forlorne.
18. A man attainted of conspiracie or forgerie, shall not be received to give Evidence, or to be a witnesse. See Cromp. 127. b.
19. But if one be brought before a Iustice of Peace upon suspition of felony, although the information against the prisoner shall be [Page 116] by such witnesses, yet it seemeth safest for the Iustices of peace to take their information for the King, and to binde them over to give Evidence, &c. and to commit the party suspected: And upon the Tryall to informe the Iustice of Goale delivery concerning the credit of those witnesses.
P. Restitut. 1.20. And for that, men should be the readier and more willing to give evidence against felons,2 [...]. H. 8. c. 10. in Ireland. there is a statute made in Ireland wherby it is enacted that if any man hath any goods stollen from him, if the felon be thereof indicted, and after in any sort attainted, or found guiltie, by reason of evidence given by the party robbed or owner of the said goods, or by any other by his procurement, then the party robbed or owner of the goods shall bee restored to the said goods,Stamf. 165. 169. though he never made any fresh suit. Before which statute the party robbed could have no restitution without suing of an Appeale against the felon and fresh suit made.Restitution.
Co. 9. 80.21. Also the executors of the party robbed shall have restitution, by force of this statute, viz. upon evidence given by them, or by their procurement against the felon, whereby the felon is attainted or found guiltie.
22. If a theefe doe rob or steale goods from three men severally, and he be indicted of the robbing or stealing from one of them, and arraigned thereupon, in this case though the other two would give Evidence against the offendor, yet shall they not have restitution of their goods by the meaning of that statute, for the felon is not attainted of any other felony,P.R. 162. saving of that whereof he was indicted, but if he be indicted of all the three Robberies, or felonies, severally, and arraigned upon one of them, and found guilty by the evidence given by one of the parties robbed, &c. yet shall he be after arraigned upon the other two Indictments, to the intent he may also be found guilty by the Evidence of the other two persons robbed and that so they may have restitution of their goods stollen, according to the meaning of the said statute.
23. And if a man doe steale goods at diverse times from severall men,44. Ed. 3. 44. and he is after attainted at the suite of one of them onely for the goods stolne from him, but is not attainted at the suite of the others, by this attainder the felon shall forfeite to the King, not only his owne goods, but also the goods stolne from those other at whose suite be was not attainted, though the felon had no property but only a possession of those goods; And the property of the goods which remaineth in the right owner in this case is forfeited (by the owner) to the King for default of the owners pursuing the felon.
See Stamf. 66.24. Also if there be diverse of the Theeves, and but one of the principals attainted (as before) yet the party robbed shall have restitution: But in these and the like cases of restitution if the felon hath sold the goods in a faire, or market Overt, and after be attainted of the felony (upon evidence given by the party robbed) here the [Page 117] owner shall not have restitution, for by alienation in Faire, or market overt, the property of the goods stolne are altered, yet if he that bought the goods in market ouert, were privy to the felony such sale shall not alter the property, quia particeps criminis. See 33. H. 6. 7. Co. 3. 78. 3. & 4. Ph. & Ma. ca. 6. in Ireland. But by a statute made in Ireland the party robbed shall have restitution out of the felons goods if the property be altered or the goods stolne esloyned so as they cannot be found.
25. A man shall have restitution of money stollen, though it cannot be knowne. Br. Restit. 22.
26. But if a man hath a horse or goods stollen from him and knoweth not by whom, or if he knoweth the felon, yet if the felon waiveth the goods flyeth and escapeth, and the Lord of the Mannor, &c. seiseth them, the party robbed shall have no restitution, for that he cannot indite and attaint the felon, and yet if the felon had not the goods in his possession, and with him at the time when he fled (but had left them elsewhere) then are they not waived goods nor forfeite, but that the owner may take them againe wheresoever he findeth them, without any restitution awarded. Co. 5. 109.
27. Examinations taken by Iu. of P. in one County may be,Examinatio [...] certified. by them certified into another County, and there read and given in Evidence against the prisoner.
28. The offendor himselfe shall not be examined upon oath, for by the common Law, Nullus tenetur seipsum pr [...]dere.
29. But it seemeth convenient, in cases of felony and treason especially that the Information (of the bringers and others) which the Iu. of P. doe take against the prisoner be upon oath;Vpon oath. Otherwise upon the triall of the prisoner such Information, or examination taken by the I [...]stice of peace, shall not be read or delivered to the Iury, nor given in Evidence against the prisoner upon his triall, and so was the direction of Sir Edward Coke late Lord chiefe Iustice (5. Iacobi, at Cambridge, Summer Assizes) upon the triall of a felon: For said he, in case of Trespasse to the value of two pence, no Evidence shall be given to the Iury but upon oath, much lesse where the life of a man is in question.
30. Also if the Informers be examined upon oath, then though it happen they should dye before the prisoner have his Triall, yet may their Information be given in Evidence, as a matter of good credit, And likewise it is found by experience, that without oath many Informers will speake coldly against a felon before the face of the Iustice of peace, yea and will also speake very sparingly and coldly upon their Evidence given before the Iudges of Assise, as I have observed in some, had they not been urged with their former Information taken upon oath, for the labouring (by the offendour and his friends) to such as are to informe and give Evidence (both before the matter commeth before the Iustice of Peace and after) is now growne over-common and usuall in Ireland, especially, in cases [Page 118] of greatest moment, or where it concerneth most notorious malefactors.
31. Also Maister Brooke, (tit. Examination 32.) is of opinion that every examination ought to be upon oath,Examination 32. Br. and so also is the practise of the Iustices of the higher Courts at Westm. in all their Examinations of Summoners, Viewers, Sheriffes, Clerkes, and other officers, &c.
32. And here let me admonish all such as are to informe or beare witnesse against a prisoner, or any offendour, before a Iustice of peace or other Magistrate, that they bee well advised, what they testifie upon their oathes, knowing that in such cases, if either they should not speake the truth, or should conceale any part of the truth, they should offend against God, the Magistrate, the innocent, the common wealth and their owne soules, sc. against
God in despising of him, and belying the truth.
Against the Magistrate, in deceiving of him, and causing him to doe Injustice.
Against the Innocent, in spoiling him of his Name, goods, or life.
Against the Common wealth, if the party be nocent or guilty, and he cleares him by false witnesse.
And against his owne soule, for it is perjury in him, (at least, in the presence of God and good men.)
Whether Information, Evidence, or proofe of witnesses shall bee taken against the King. CHAP. 28.
1. IT seemeth just and right that the Iustice of Peace, who taketh information against a felon, or person suspected of felony should take and certifie as well such information, proofe and evidence, as goeth to the acquittall or clearing of the prisoner, as such as makes for the King, and against the prisoner, for such information, evidence, or proofe taken, and the certifying thereof by the Iustice of peace is only to informe the King and his Iu. of gaole delivery of the truth of the matter, and such was the opinion of Sir Edward Coke, at Lent Assises at Bury.Dalton pag. 274. 5. Iac. as Master Dalton reporteth, but the Iustices of peace, or Coroner may not take such information, evidence, or proofe, as maketh against the King upon oath for that is not warranted by the statute of 10. Caroli ca. 18.
2. Upon triall of felons before the Iustice of gaole delivery the said Iu. will often heare witnesses and evidence, which goeth to the clearing and acquittall of the prisoner, yet they will not take it upon oath, but do leave such testimony and evidence to the Iury to give credit, or to thinke thereof as they shall see and finde cause.
3. Popham chiefe Iustice (at Cambridge Assises tempore Eli.) committed [Page 119] one to prison who upon the triall of a felon called out, that he could give Evidence for the Queene, and when he was sworne he gave Evidence to acquit the offendor.
4. In 7. H. 4. we shall finde that one of the Serjeants,Stamf. 141. b. as amicus Curiae, Co. 4. 19. and to informe the Court (that they should not erre) did shew his opinion to the benefit of a prisoner upon the insufficiency of the Indictment.
5. Now upon the examination of felons,Causes of suspition. and other like offendors these circumstances following are to be considered:
- 1. His name,
- scil. if he be not called by divers names.
- 2. Quality,
- 1. His parents, if they were wicked and given to the same kind of fault.
- 2. His ability of body, sc. if strong and swift, or weake or sickly, not likely to doe the Act.
- 3. His nature, of civill or hastie, witty and subtill, a quarreller, pilferer, or bloody minded, &c.
- 4. His meanes, if he hath whereon to live, or not.
- 5. His trade, for if a man liveth idlely or vagrant (nullam exercens artem nec laborem) it is a good cause to arrest him upon suspition, if there have beene any felony committed. 7. Ed. 4. 20.
- 6. His Company, if Ruffians, suspected persons, or his being in company with any the offendors.
- 7. His course of life, sc. if a common Alchouse-hanter, or riotous in dyet, play or apparell.
- 8. Whether he be of evill fame, or report.
- 9. Whether he hath committed the like offence before, or if he hath had a pardon, or beene acquitted for felony before, Nam qui semel est malus semper presumitur esse malus in eodem genere mali.
- 3. Markes or Signes.
- 1. If he hath any blood about him.
- 2. If any of the goods stollen be in his possession.
- 3. The change of his countenance, his blushing, looking downe-wards, silence, trembling.
- 4. His answers, doubtfull, or repugnant.
- 5. If he offred agreement or composition.
- 6. The measure of his foot, or horse foot.
- 7. The bleeding of the dead body in his presence.
- 8. If being charged with the felony or called theefe, he saith nothing. F. Cor. 24.
- 9. If he fled, Fatetur facinus, qui judicium fugit.
- [Page 120]4. The fact
- 1. Place, sc. if convenient for such Act, as in a house in a wood, Dale, &c.
- 2. Time, the yeare, day, and houre, early or late.
- 3. Where the offendour was at the time of the fact, and where the day or night before, his businesse, and company there, and witnesse to prove all these.
- 4. Manner: if willingly by chance, or necessitie.
- 5. The cause
- 1. If former malice.
- 2. If to his benefit, or what hope of gaine.
- 3. If for the eschewing of any hurt or danger.
- 6. The persons,
- Agens, if principall, or Accessary, Enfant, Lunatique, &c.
- Patiens, if against the King, common wealth, Magistrate, maister, &c.
F. Cor. 211.6. A felon brought before a Iustice of Peace, accuseth others, it is sufficient cause for the Iustice to grant out his warrant for the rest.
7. A man going to execution, accuseth another of felony, it is sufficient cause to arrest him.
8. Communis vox & fama, that he did the offence, is sufficient cause of suspition,Fama. Br. Faux. Impris 16. sc. where such a felony is done, otherwise not.
9. But yet for the better conceiving what may breed, or give just cause of suspition, marke some of Master Bractons rules:
Stamf. 97.1. For saith he, Oritur suspitio ex fama, fama vero quae suspitionem inducit oriri debet apud bonos & graves (non quidem malevolos & maledicos, sed providas & fide dignas personas idque non semel, sed saepius: vanae autem voces populi non sunt audiendae. And therefore where the common proverbe is, Vox populi est vox Dei, it should be, Vox populi Dei, est vox Dei.
2. Si furtum in manu alicujus inveniatur, vel sub potestate alicujus, tunc ille in cujus domo vel potestate res furtiva inventa fuerit tenebitur, Stamf. 29. (nisi warrantum invenerit, qui cum inde defendere possit) for as another saith, Cum adsunt testimonia rerum, quid opus est verbis?
Stamf. 179.3. Si quis noctu cubaverit, in domo solus cum aliquo qui interfectus sit, vel si duo aut plures ibi fuere & hutesium non levaverit, nec plagam a latronibus vel interfectoribus in defensione facienda accipere, nec ostendunt quis de se vel de aliis hominem interfecerit, his casibus mortem dedicere non possunt.
4. Si quis in domum suam notum vel ignotum acceperit, qui unius ingredit visus est, Ibid. vero postea nunquam nisi mortuus, dominus domus si tunc domisit, vel alii de familia qui tunc interfuerunt, poenam capitalem subibunt nisi forte per patriam fuerint liberati.
Stamf. 97. & 179.5. Sunt etiam quaedam presumptiones ita violentae, ut probationem non admittunt in contrarium, ut si quis cum cultello cruentato captus sit super [Page 121] mortuum vel fugiendo à mortuo, vel mortem confitetur quibus casibus non admittitur mortem dedicere, nec alia opus est probatione.
10. And yet in cases of felony,Co. 11. 30. 2. Vide. &c. the confession of the offendor upon his examination before the Iustice of peace shall be no conviction of the offendor, except he shall after confesse the same againe upon his triall, or arraignement, or be found guilty by verdict of 12. men, &c.
11. Also in cases of secret murders, and in cases of poysoning, witchcraft, and the like secret offences, where open and evident proofes are seldome to be had, there it seemeth halfe proofes are to be allowed, and are good causes of suspition.
12. Note by the common Law,8 E. 4. 4. 5. H. 7. 4. Br. Faux. imp. 4. 16. that in an action of false imprisonment brought against the Constable, or other person that shall a [...]rest another upon suspition of felony, it is no plea for them to say that the plainetiffe was suspected of felony, but he must alledge that there was such a felony committed, and that the plainetiffe was suspected for the same, for suspition onely without a felony committed, is no cause to arrest another.
13. Also the defendant must alledge some speciall matter in fact,17. E. 4. 5. 21. H. 7. 29. to prove that he who is arrested, was suspected of felony (as to say) that the parry arrested, is a man of evill fame, &c. otherwise every man may arrest one another without cause.
14. Also by the opinions of Keble, Vavisor, and Townsend, 7. E. 4. 10. Br. Faux. imp. 16. 25. aswell the Constable as others in his ayde, may arrest one that is suspected of felony upon the suspition and complaint (made to the Constable) of the party robbed. 2. H. 7. 15. 16. Br. Faux. Impris. 14. 2. H. 7. 15. & 16. And although others there be of opinion that the suspition can extend to none other, but only to him that hath the suspition, yet I conceive the opinion of Keble, Vavisor, and Townsend, to be good Law, for if felons may not be arrested, or stayed, but only by those that shall suspect them, and that others may not ayde and assist the party, that shall suspect another to have robbed him, many felons shall escape and goe unpunished to the exceeding great prejudice of the common wealth.
15. But now by the statute of 10. Caroli in Ireland. The constable, &c. in the former cases,10. Caroli c. 16. in Ireland. may plead the generall issue (not guilty) and give the said speciall matters in Evidence.
16. Also if the Constable, or other person shall arrest another upon suspition of felony by vertue of a warrant from a Iust. of P. such warrant shall excuse him, it being given in Evidence.
Forceible Entrie and Forceible Detainer. CHAP. 29.
1.Cromp. 67. THe common Law (being the preserver of the common peace of the land) hath alwayes abhorred force as the capitall enemy [Page 122] thereto. Co. 3. 12. And yet, before the Raigne of King Richard the second, the common Law seemed to permit any man to have entred into lands and tenements with force and armes, and also to have kept and detained them with force, where his Entry was lawfull.
2. And at this day, if a man doth enter with force (or multitude of people) where his entrie is lawfull, he is not punishable by action either at the common Law, nor (by action) upon any statute, for where the title of the plainetiffe is not good, there he hath no cause of action,15 H. 7. 15. Br. Force 11. although the defendant doth enter with force, but in such case he that entreth with force must be indicted upon the statute of 8. H. 6. or otherwise complaint may be made thereof to the Iustices of peace, and aswell upon such indictment, as upon such complaint, the offendor shall be punished, but the party (ousted) shall not be restored without indictment.
5. R. 1. ca. 7. Regist. 182.3. And for the better restraining of such force, and forceible Entries, and to inflict condigne punishment upon the offendors therein, it was first ordained by the statute. 5. R. 2. that no man should enter into any lands, or Tenements, with force, or multitude (though he had good right, or title to enter) but only in peaceable and lawfull manner.
4. But this statute provided no speedy remedy, nor extended to holding with force,15. R. 2. ca. 2. nor gave any speciall power therein to the Iustices of peace, and therefore by a statute made 15. R. 2. it was further provided, that if any man should detaine, or hold with force after such forceible Entrie made, upon complaint thereof he should be imprisoned by the Iustices of peace.
5. Yet neither of the former statutes extended to those that entred peaceably, [...]. H. 6. ca. 9. and then held with force, and therefore by the statute. 8. H. 6. it was and is provided that no man shall enter with force, nor detaine (or hold) with force (generally.)
6. Now these two last statutes. 15. R. 2. and 8. H. 6. doe enable any one Iustice of peace, to give present remedy, viz. to remove the force, and commit the offendors in cases of forceible Entrie, or holding against the aforesaid statutes.
7. Also the statute of 8. H. 6. extendeth further, reaching the offendors, if they were removed before the comming of the Iustices, giving the Enquiry and restitution, and also punishing the Sheriffe that shall not obey the precepts of the Iust. in this behalfe.
One Iustice.8. Every Iustice of peace, upon complaint to him made, or upon other notice to him given,15. R. 2. ca. 2. of any forceible Entrie into, or holding, or detainer of possession of any lands, tenements, or other possessions, or of any benefices, [...] H. 6. ca. 9. P. 1. or offices of the church contrary to these statutes, without any examining, questioning, or standing upon the right, or title of either party, ought in convenient time, at the costs of the party grieved to doe execution of these statutes in manner and forme following.
[Page 123]9.15. R. 2. ca. 2.First he ought to goe to the place where such force shall be and he may take with him sufficient power of the County, or Town, by his discretion, and the Sheriffe also, if need be, to aide him, for the better execution of this businesse, sc. aswell for the arresting of such offendors, as also for the removing of the force, and for the convaying of them to the next gaole.
10. He ought to arrest, and remove all such offendors as at his comming he shall see, or finde, touching the force.Arrest. And may take away their weapons, harnesse, and Armour, and presently cause them to be preised, and afterwards to be answered to the King, as forfeited, or the value thereof.
11. If the doores be shut, and they within the house shall deny the Iustice to enter, he may breake open the house to remove the force.
12. But if such offendors being in the house, at the comming of the Iustice, shall make no resistance, nor make shew of any force, then the Iustice cannot arrest, or remove them, except upon the enquiry, a force be found, See Cromp. 37.
13. Also if the house or land which is holden with force shall extend into two Counties,Cromp. 71. and the offendors remove their force into that part of the house or land, which is in the other County when the Iustices doe come, they cannot then remove the force.
14. And if the Iustice at his comming shall see or finde a force, and shall remove the offendors, yet he may not upon his owne view, restore the party ousted, to his possession againe without enquiry first made of the force by a Iury.
15.Record. 14. H. 7. 8. Co. 8. 121. Also the Iustice ought to make a Record of such force by him viewed, which Record shall be a sufficient conviction of the offendors, and the parties shall not be allowed to travers it.
16.163. & 375. And this record (being made out of the Sessions by a particular Iustice) the said Iustice may keepe it by him, or he may make it indented, and certifie the one part into the Kings Bench, or leave it with the Clerke of the peace, and the other part he may keepe himselfe.
17. The forme of the record you shall finde hereafter in the Title of warrants and presidents.
18.Imprison. 21. H. 6. 5. Br. Peace 4. Also he ought to commit (immediately) to the next gaole all such persons as he shall finde and see, continuing the force at his comming to the place, there to remaine convict by his owne view, testimony, and record, untill they have paid a Fine to the King;Co. 8. 12 [...]. P. 2. For this sight and view of the force by the Iustice (being a Iudge of Record) maketh his record thereof (in the Iudgement of Law) as strong and effectuall, as if the offendors had confessed the force before him, and touching the restraining of a traverse more effectuall then if the force had beene found by a Iury upon the Evidence of others.
19. A [...]d yet the words of the statute seeme more large, sc. And if he doe finde any that made any such forceible Entrie or that hold [Page 124] the place with force,Cromp. 1 [...]5. &c. he shall commit the offendors to the gaole, &c. But such force must be in the presence, or view of the Iustice of peace, or else he can neither record it, nor yet commit the offendors. 13. H. 7. Crooke 41.
20. The forme of the Mittimus you may see afterwards in the Title of warrants and presidents.
21. Also the same Iustice of peace, or some of them that shall see the force (as having best knowledge of the matter and of the quality of the offence,Fine. Co. 8. 41. a. 557. and having the custodie of this record (are the proper Iudges over this offence; And therefore may assesse the fine upon every such offendor, and commit him untill he make payment thereof: But the fine must be imposed upon every offendor severally and not upon them jointly.Co. 11. 43. 3. And the Iustice ought to estreate the same Fine, and committall, and to send the estreate immediately into the Eschequer, that there the Sheriffe may be charged with the said Fine upon his account.
22. Also upon payment of the said Fine the said Iustice may deliver the offendors out of prison againe by some opinions,Br. Imp. 100. but the safest way for the Iustice of peace is to estreate the Fine and committall into the Eschequer and leave the further proceeding therein to that Court.
23. Or the Iustice of peace, by some opinions, may record such force and commit the offendors, and after certifie the record to the Iustices of Assise,Cromp. 161. and gaole delivery (as it was done at Stafford Assises, Anno 26. Eliz. by the report of Master Crompton) or else to certifie it to the generall Sessions of the peace, (as it seemeth to Master Crompton) and there the offendors may be fined: For saith he, the statute doth not say, that the Fine shall be assessed by them that record the force, more than by other Iustices.
24. Or rather the Iustice of peace may certifie, or deliver the record by him made, and referre the fine, and further proceedings therein to the K. Bench, in regard of their supreame authority in such cases. And this Master Lambert thinketh to be the safest course.
Enquirie.25. Also the Iustice of peace notwithstanding his owne view of the force, may and ought in some good towne and place neere where the force was, to enquire by a sufficient Iury of the same County to be returned by the Sheriffe, aswell of those which made such forceible Entrie, as of those which made such forceible deteyner.
26. And here note that any one Iustice of peace alone out of the Sessions may make an Enquiry (being so appointed by the statute) whereas otherwise there must be two Iustices at the least, to make an inquiry, or to hold a Sessions, and one of them of the Quorum.
27. And this enquiry ought to be made whether the offendors be present, or gone, at the comming of the Iustice of peace, yea this enquiry the Iustice must make, though he goe not to see the place, where the force is, for without this enquiry, there can be no restitution.
[Page 125]28. The forme of a precept to the Sheriffe, to returne a Iury, and the forme of the Enquiry, Presentment, or verdict, you shall finde in the Title of warrants and presidents.
29. And if upon such Enquiry,Restitution. such forceible Entrie (or forceible holding, or deteiner) shall be found by the Oathes of the Enquirors, then the said Iustice of peace shall reseise the lands and tenements so entred upon, or holden, and thereof put the party in possession againe, which in such sort was put, or holden out.
30. But aswell the putting out as also the holding out must of necessity be found and that by expresse words in the Indictment.
31. And this restitution, the Iustice of peace may make himselfe; Or he may make his warrant to the Sheriffe to doe it: Or else he may certifie such presentment, or indictment taken before him, into the Kings Bench, and so leave the restitution to be awarded, out of that Court.
32. But the Iustices of Assise and gaole delivery, nor Iustices of peace at their generall Sessions, cannot, as it seemeth, make or award restitution, except the Indictment were found before them, but the Iustices of peace only or some of them that were present at the enquiry,Co. 9. 11 [...]. and when the indictment was found (they only) have power to make restitution, except the Iustices of the Kings Bench who have a supreame authority in all cases of the Crowne.
33. And therefore if the record, sc. the presentment of such force shall be certified by the Iustice of peace into the Kings Bench; Or that the same prefentment or indictment shall be removed thither by Certiorari there the Iustice of the Kings Bench may award a writ of Restitution to the Sheriffe of the same County to restore possession to the party so expelled.
34. After it shall be found by such Enquiry,P.R. 14. b. that such forceible entrie, or deteiner is made, the Iustice of peace may breake open the house by force, to reseise the same, and to put the party so put out in possession againe: And so may the Sheriffe doe, having the Iustice warrant.
35. The forme of such warrant from the Iustice of peace to the Sheriffe to make restitution you may see in the Title of warrants and presidents.
36. But the Iustice of peace may not, in any wise make restitution without such inquiry first had, and such force thereby found; And if the Iustice shall make restitution without inquiry, it seemeth to be punishable in the Starchamber.
37. Also this restitution ought to be made to none but to him only that was put out, so that if the Father be put out by force and dyeth (after inquiry and before restitution) his heire shall not have restitution.
38. Also such restitution must be made, only where a man is put out, or holden out, &c. of house, or land, and is not to be understood [Page 126] of a Rent Common, Advowson, or such like.
39. Also the Iustice may make restitution, notwithstanding any offer of Traverse, but yet upon Traverse tendred the safest way (for the Iustice of peace) seemeth to be, for him to deliver, or certifie the presentment into the Kings Bench, and so to referre the further proceedings therein to them.
40. And although these statutes doe inflict no penaltie upon the Iustice of peace if they shall not execute these statutes, yet (if upon complaint or other notice to them given of such force) they shall not at least remove the force, record it, and commit the offendors, they are punishable in the Starchamber.
41. Although the Iustice of peace ought to commit to the gaole and may fine all such as he shall see continuing the force at his comming to the place, yet upon a force found by the inquiry only, and not viewed and seene by the Iustice, he may neither fine, nor send to the gaole the said offendors (by the statute of 8. H. 6. which appointeth the inquiry) for the Iustice hath power by the said statute to make restitution only as saith Master Lambert, Cromp. 161. b. yet Master Crompton holdeth the contrary; But howsoever the Iust. of P. is to remove, the offendors that be present, that so he may restore the other, and may bind the offendors to their good behaviour, and if the offendors be gone, yet the Iustice may make his warrant to take the offendors, and may after send them to the Gaole, untill they have found sureties for their good behaviour.
13. H. 4. ca. 7.42. Note that if such forceible Entrie, or detainer, shall be made by three persons,Cromp. 68. b. or moe, then is it also a Riot, and then (if there be no former enquiry thereof made) the two next Iustices of peace upon notice ought to inquire thereof (as of a Riot) by a Iury within one moneth, upon paine to either of them making default to forfeite 100. l.
Defaults of Sheriffes.43. Also one Iustice of peace may, as it semmeth heare and determine the defaults of Sheriffes and Bailiffes, in not returning sufficient Iurors (whereof every one shall have lands,8. H. 6. 9. P. Iust 89. Rast. 174. c. &c. to the value of Forty shillings by the yeare at the least) before him, to inquire of such forceible Entrie, or deteiner, and the said Iustice of peace may proceede therein aswell by bill, at the suite of the party grieved for himselfe, as also by indictment only for the King: And the same processe shall be made against such persons indicted or sued by Bill in this behalfe, as should be made against persons indicted, or sued by writ of Trespasse with force and Armes against the Kings peace.
44. And though any one Iustice of peace may proceede in every of these former cases of forceible Entrie, or deteiner, as aforesaid, yet if two or more Iustices shall joine therein together, it is the better, fo [...] plus vident oculi, quam oculus, & securius expediuntur negotia pluribus [...]missa. Co. 4. 46.
[...]45. Also the Mayors, and Iustices of Peace, and the Sheriffes, [Page 127] and Bailiffes of Cities and Burroughes having Franchise,8. H. 8. 9. Rast. 174. d. have in the said Cities, townes and Burroughes like authoritie to inquire of such Entries, or putting out, and in other the Articles aforesaid, rising within the same, as the Iust. of Peace and Sheriffes in Counties and Shires have.
46.The stat. of Northampt. Also every Iustice of Peace to whom a writ upon the statute of North-hampton (concerning the removing of a force) shall bee delivered, ought to execute the same writ, sc. hee ought to remove the force, and to certifie his doings therein into the Chancerie.1. Ed. 3. 3.
47. And for that the Iustices of peace, to whom this writ shall be delivered, is herein but a minister, and is to certifie that which he shall doe therein, I will here set downe the manner how hee shall proceede to execute this writ:
1. When the Iustice of Peace shall come to the place where the force is supposed by this writ, he may cause three Oyes for silence to be made, and then he may make Proclamation in the Kings name to this effect. The Kings Majesties Iustice of Peace straightly chargeth and in his Majesties name commandeth all and every person to keepe silence, whilst his Majesties writ, &c. be read, and proclamation be thereupon made accordingly.
2. Then may he read, or cause to be read, the writ, or may declare the effect thereof.
3. Then let three other Oyes be made, And thereupon make proclamation againe as followeth:
His Majesties said Iustice doth in his Highnesse name and by vertue of his Majesties writ, straightly charge and command that no manner of person of what estate, degree, or condition soever, now being within the house of B. &c. (named in the said writ) shall goe armed or keepe force of armour, or weapon, nor doe any thing there, or elsewhere, in disturbance of his Majesties peace, or in offence of the stat. made at North-hampton, in the 2. yeare of King E. 3. upon paine of loosing his said armour and weapons, and of imprisoning his bodie at his Majesties pleasure.
God save the King.
4. Then the Iust. of P. may enter, and search whether there be any force of Armour, or weapon worne or borne, against this proclamation, or otherwise, he may inquire thereof by a Iury, for so the writ it selfe doth warrant him; And if after proclamation any such be found, he ought to imprison the offendors, and to seise to the K. use and preise (by the oathes of some present) the armour and weapons so found with them, and the offendors so imprisoned are to remaine in prison untill that some other commandement bee given concerning them from his Majestie, viz. by writ out of the Chancerie.
5. But if upon the Proclamation made they doe depart in peaceable manner, then hath the Iust. no warrant by the writ to commit [Page 128] them to prison, nor to take away their Armour.
6. But when the Iustice hath removed the force (upon his writ) he may not put the party that was put out,Cromp. 74. 162. in possession againe, for if he doe, it seemeth both the Iustice, and the party also are punishable in the Starchamber, for the writ doth authorish the Iustice onely to remove the force, and not to make restitution.
48. The forme of this writ upon the statute of North-hampton you may see in Fitz. N.B. 249.
Without writ.49. The forme of the certificate, or returne into the Chancery of this writ, you may see after in the Title of warrants and presidents.
2. Ed. 3. 3. P. Armor. 1.50. Also every Iustice of peace (ex officio) and without any writ may doe execution of this statute of North-hampton, and that aswell by force of the commission, as also of the said statute.
51. The manner to execute this statute, by the Iustice of peace (ex officio) seemeth to be all one, as before, where he hath a writ delivered him, saving that when he doth this ex officio and without writ, he needeth not to make any proclamation, nor to send any certificate into the Chancery. But the Iustice may goe to the place where the force is, and if it be in a house may enter, and search if any force of Armour, or weapon be worne and borne against this statute. And if any such offendors be found, he may commit them to prison and may seise and preise the Armour and weapon so found with them, and he ought to record all that which he shall doe in this behalfe and the same to Estreate into the Exchequer that the King may be answered of the Armour, or of the value thereof.
52. But here againe the Iustice must not make any restitution of the possession to the party ousted but must only remove the force.
53. And concerning the offendors so found, and committed by the said Iustice of peace,Cromp. 160. it seemeth the Iustice at his discretion may fine them, and upon payment thereof, may deliver the offendors, even as in the former statutes of 15. R. 2. & 8. H. 6. Or else the said Iustice may record such force, and commit the offendors and after certifie the record into the Kings Bench or to the Iustices of gaole delivery, or to the generall Sessions of the peace, but if he commit and fine the offendors he must Estreate the same into the Exchequer.
54. So that these statutes doe now give full remedy, and doe prohibit, and are made against these three degrees or sorts of force, viz. against
Fitz. 248. c.1. Such as enter peaceably, and then hold forceibly.
2. Such as enter with force, and then hold peaceably.
3. Such as doe both enter forceibly, and hold forceibly.
55. Now it is requisit to show how the Iustice of peace shall demeane himselfe in the execution of these statutes; I will therefore proceede to give him some further light in these seven particulars following:
[Page 129]1. First what is a forceible Entrie, and what is a forceible holding within the meaning of these statutes.
2. Who may commit a forceible Entrie, &c. and upon whom.
3. Where a force or forceible holding is justifieable or lawfull.
4. What, and how many severall remedies the party hath that is so put, or kept out of his possessions.
5. The manner of proceeding of the Iustice of peace by Enquiry.
6. Of restitution to be made to the party so put out, by whom and to whom.
7. What causes there may be for staying the Iustice of peace from making restitution.
What is a forceible Entrie or holding within these statutes. CHAP. 30.
1. OUr Law taketh knowledge of two manners of force, the one may be termed a force in judgemēt of Law, which accompteth every private Trespasse to be a force, so as if I doe but passe over another mans ground without licence, he may have his action of Trespasse against me, Quare vi & armis, &c.
2. The other manner of force is more apparant, and alwayes carryeth some fearefull shew, and matter of terror with it.
3. This last sort of force is, that which is prohibited by these statutes, and therefore note that every force, punishable by these statutes must have one of these two badges, sc. it must be either Manuforti, or multitudine.
4. Manuforti, sc. either with apparent violence (in deed,Dalton p. 177. or word) offered to the person of another: as threatning speeches, turbulent behaviour, or actuall violence; or else that they be furnished with offensive weapons, by them not usually borne; and this may be done by one person onely.
5. Multitudine, 10. H. 7. 12. sc. with company more than usually they have attending on them, 10. H. 7. 12. The law properly calleth it a multitude, when there be three or moe in one company.
6. If therefore one,Forceible Entrie. or moe persons shall come weaponed (especially with weapons not usually borne) to a house or land, and shall violently enter thereinto, this is a forceible Entrie within the meaning of these statutes.
7. Much more if (being so entred) hee or they shall there offer violence, or feare of harme,Dalton p. 177. to the person of any that is in possession thereof; most of all, if he or they shall forceibly and furiously expell and drive another out of such his possession.
8. So is it if one shall enter peaceably (the doore being open,Dalton ibid. or onely latched,) and after he is in the house, he shall forceibly put another out of his possession.
[Page 130] Dalton ibid.9. So is it if he or they that shall enter peaceably, shall after their Entrie offer apparant violence, threatnings, or feare of harme to the person of any that is in possession, to the intent to get him out, and to make him leave the possession, though they doe not put him out of possession, much more if they get the possession thereby.
10. If he or they that have entred peaceably, shall after use words to any in possession to this effect,Dalton pa. 178. as to say they will hold or keepe it, though they die for it, or in spight of the other, or such like, or other threatning words, this maketh it a forceible Entrie.
11. So it is if diverse persons shall come with weapons (not usually borne by them) to a house that is open,Cromp. 69. or to ground, and shall there enter peaceably without any disturbance, yet this is a forceible Entry, for it shall bee intended that they would have used force, if they had been resisted.
10. H. 7. 12. Br. force 30.12. So it is when the Master entreth into an house or land, being attended with a greater number of servants than usually doe wait on him.
13. Note that though a man doe actually use no force in his Entry, yet if he doe come so appointed, either with weapon, or company that other men may be reasonably afraid that he mindeth to make his way by force,Dalton ibid. rather then he will faile of his purpose, it seemeth to be a forceible Entrie.
14. Also it seemeth that every Entrie into another mans house, or ground which is made with force (sc. manuforti, A trespasse. Dalton ibid. or cum multitud.) either with apparant violence offered to the person of any other, or furnished with weapons, or company which may cause feare) though it be but to cut, or to take away another mans Corne, grasse, or other goods, or to fell or crop wood, or to doe any other like trespasse, though he doe not put the partie out of his possession, yet it seemeth to be a Forceible Entrie, punishable by these statutes.
15. But if the Entrie were peaceable, and after such Entry made, they cut or take away any other mans Corne,Dalton ibid. grasse, wood or other goods without apparant violence, or force, though such Acts are accounted a Disseisin with force, yet they seeme not to be punishable by these statutes: sc. the Iustices of peace are not to remove, imprison, or fine such offendors.
Cromp. 70. 11. H. 4. 16.16. Also if one or more shall enter into another mans house, or land peaceably, and after his or their Entry, shall by force or violence, cut or take away any Corne, Grasse, or wood, &c. or shall forcibly and wrongfully carry away any other goods there being, this seemeth to be a forceible Entry punishable by these statutes.
20. H. 6. 11.17. So is it if a man shall distraine with force for a Rent (be it due or not due) this doth countervaile an Entry with force. Br. Forc. 1.
Dalton ibid.18. And in these cases of Trespasse onely, the Iustice of peace (upon complaint to him made) may, as it seemeth, remove such force and upon view thereof, may imprison and fine such offendors.
[Page 131]19. If a Disseisor hath entred peaceably,By words. Dalton pa. 179. and being entred shall presently threaten to kill the Disseisee, if he reenter, this seemeth a Forceible Entry in the Disseisor.
20. But note,2. H 7. 16. Br. force 25. that a Forceible Entry cannot be without an actuall Entry, for the words of the statutes be, whosoever doth enter, &c.
21. Note also, if one that hath right to enter upon land,Cromp. 70. shall goe with divers in his company, and with weapons over the land whereto he hath right, to the Church, Market, or some other place; this is no Entry with force, except hee shall expresse his intent, that hee doth enter there, claiming the land.
22. Note also, that if a man shall enter with force (into house or land) although he obtaineth not,5. R. 2. ca. [...]. 15. R. 2. ca. 2. 8. H. 6. ca. 9. nor getteth the actuall possession thereby, yet shall he be imprisoned and fined, for the onely entring with force, as it seemeth, see the statutes in the margent, but Restitution is not to be made, but onely where there is a putting out, and a holding out of another out of his possession.
23. If by faire meanes,Lawfull. Dalton pa. 175. a man (whose Entry is lawfull) shall perswade or intice them which are within the house, to come out, and then (the doore being open, or shut by the latch onely) he shall enter peaceably, without multitude, offensive weapons, or other violence; this Entry seemeth to be justifiable.
24. So is it, if he shall enter peaceably,Dalton ibid. and then by gentle perswasions can send them out that are within the house, and after shut the doore, and keepeth them out, this seemeth justifiable, so that afterwards he holdeth it not forceibly, nor useth violence or threatning speeches.
25. So it is, if I shall take a man being out of his house, and then I doe put or send into the house my servant, or some other,Dalton ibid. in peaceable manner, and doe hold away the other by imprisonment of his person; this is no forceible Entry, nor deteyner within these statutes, but a false imprisonment punishable by action only.
26. So it is, if he whose Entry is lawfull,Dalton ibid. shall enter peaceably into his house (the doores being open, or shut by the latch onely) and being so entred, shall continue and abide there peaceably; this is justifiable: And if they which were before in possession shall put or thrust him out forceibly: this is a forceible deteyner of their parts.
27. Forceible Deteiner,Forceible deteiner. Dalton ibid. must be understood of a forceible deteining of the possession of lands or tenements, and not of the person of a man as before.
28. Note also, though the Entrie were at the first peaceable,8. H. 6. ca. 9. P. force 4. Dalton pa. 180. and lawfull, yet if there be after a holding by force, it is punishable by the statute, except where there was at the first a lawfull and peaceable entry, and thereupon a lawfull possession, peaceably continued by the space of three yeares together without interruption, for there [Page 132] a man may hold and keepe such possession with force against all others, saving against the Kings officers.
29. If the Iustice of peace shall come to the place or house, that is supposed to be holden with force,P.R. 41. Cromp. 70. and there shall finde the doores or gates shut, and he or they within shall deny him to enter, or will not suffer him to enter, this is a forceible holding or deteiner, though there be no weapons shewed or used, and though there bee but one person in the house or upon the ground.
30. So it is, if when the Iustice of Peace entreth the house or ground,Ibid. he shall finde there any persons in harnesse, or otherwise armed, or having harnesse, armour, or other weapons, not usually borne by them, lying ready, this is a forceible Deteiner.
Ibid.31. So it is if the Iustice of Peace shall find in the house any great number of people, other than the ordinary family, or companie.
P.R. 41.32. Also, if a man shall enter peaceably into a house, and after shall bring into the same more weapons than he and his ordinary family doe usually weare, or shall make any use of such weapons as he doth find in the house, to defend his possession therewith, these are forceible Deteiners within these statutes.
33. If a man that hath peaceably entred into an house, will bestow men with force (scil. with harnesse,Ibid. guns, or other weapons, in some other house or place, not farre distant) to the intent that they may be ready to assault such as shall enter upon him, this is a deteiner with force.
Cromp. 69.34. So is it if the disseisor of a house or land, shall forestall the way of the dissesee, with force and Armes, so that the disseisee dareth not enter nor come neere thereto for feare of death, &c.
Dalton pag.35. So is it if a man shall keepe his cattell in another mans ground by force,P.R. 39. claming Common there, when he hath no Common, in this case, the Iustice of peace upon complaint to him made may remove this force; And upon view thereof may record it, and may commit such offendors to prison, and may fine them, but cannot award restitution.
By words.36. Also there may be a forceible deteining of possession by word only without any forceible Act.
Cromp. 70. P.R. 39.37. As if A. hath wrongfully (though peaceably) entred into the house or upon the land of B. and hath put out B. and shall presently threaten, or say to B. that if he doe come thither againe to enter he will kill him. This seemeth a forceible Entrie by A. and if B. shall afterwards come againe to make his Entrie, and then A. shall threaten to kill him, if he entreth there, this is a forceible deteiner in A.
38. And it seemeth that to threaten to maime, beate, or to doe other bodily hurt to B. in the case aforesaid amounteth to a forceible Entrie, or deteiner, for that death may ensue upon such beating, or hurt, See 39. H. 6. 50. 7. E. 4. 21.
39. H. 6. 50.39. But to threaten to burne the house, or to spoile his goods [Page 133] therein (if B. shall come thither to enter againe) this seemeth not to amount to any such matter,Br. Dures. 9. 12. 16. for that B. may afterwards have his action for the burning of his house, or spoyling of his goods, and shall thereby recover damages to the value thereof, &c.
40. Also when B. shall come to make his Entrie as aforesaid,Cromp. 70. if A. shall say to him that he will not open the doore, this is no forceible deteiner.
41. So it is if A. be in possession of a house,Cromp. 73. or hath a lease thereof at the will of B. and after B. entreth into the house and commandeth A. to goe out, and to leave him the possession, and A. will not goe out, this is no force, for refusing, or denying only to goe out, is no force, unlesse there be withall some forceible Act or threatning speeches, ubi factum nullum ibi fortia nulla, where there is no fact, there is no force. Co. 4. 43.
42. A morgageth his house to B. upon condition, that if A. shall pay to B. such a day 40.Dalton pa. 181. l. then the said morgage (and feoffment to be voide) and by agreement of them both A. the morgager continueth the possession untill the day of redemption, at which day A. payeth not the 40. l. and after B. commeth to reenter, and A. keepeth the possession by force, this is a deteiner by force in A. by the opinion of Master Richard Godfrey in a case betweene Willowes and Thurger, which opinion I conceive to be good Law, for the possession of the morgager, after the morgage by agreement was in Law the possession of the morgagee.
43.Cromp. 69. The disseisor maketh a gift in Taile to B. who keepeth the land with force at the time when the disseisee maketh his claime, which claime is made within the view, so neare as he dareth,Litt. 429. for feare of death, battery, or other bodily hurt, if B. after such claime shall continue the possess. with force, he may be thereof indicted, for this amounteth to a new Entrie and a deteiner with force by B.
44. And note that wheresoever mine Entrie is lawfull,Dalton. pag. 181. if the possess. be deteined or holden from me by force, I may pray the aide of the Iustices of peace to remove such force as it seemeth.
45.Rent. Cromp. 70. P.R. 63. Dalton pa. 181. If a man hath a Rent or common of pasture out of another mans land, and comming to distraine for his rent or to use his common, he is so forceibly resisted by the Tenant of the land, that he cannot, or dareth not, either distraine for his rent or take the benefit of his common. This is a holding with force in the Tenant, and punishable by these statutes.
46.Cromp. 69. So it is if the Tenant of the land shall forestall the way with force and Armes, or shall threaten him (that hath the rent or Common) so that he dareth not to come to distraine for his rent, nor to take his Common.
47. So it is if a man shall distraine for his rent,Ibid. Dalton 181. & 182. and the Tenant of the land shall make rescous with force and Armes.
48. And in these cases (of a rent or common) the Iustice of peace [Page 134] upon complaint to him made, may remove such force, and upon view of such force may record it, and may therefore imprison and fine such offendors, but cannot award restitution, sc. cannot restore the party to his rent or Common (which are to be taken and used in another mans land) for restitution is not to be made, but only of the house or land as you may see hereafter in its proper place.
Who may commit a forceible Entrie, &c. CHAP. 31.
1. ONe person alone may commit or make a forceible Entrie or deteiner,The persons. if so be he doe it with offensive weapons, or doe use turbulent behaviour to the terror or Affray of others.Dalton 182.
Cromp. 69.2. An infant of the age of Eighteene yeares, by his owne Act may commit a forceible Entrie, or deteiner, and so he may though he be under Eighteene,Dalton 18 [...]. yet it shall be good discretion in the Iustices of P. to forbeare the imprisonment of such Infants. See Br. Impris. 43. 45. 75. 101.
3. But if an infant commandeth another to enter or hold with force to his use,Dalton ibid. which is done accordingly, yet the Infant shall not be punished for such offence, for his commandement therein was voide.
Cromp. 69. 16. Ass. 7. Br. Impris. 45. 53. See more after in the title riot.4. Also a feme Covert, by her owne Act, may commit a forceible entry, or deteiner, and upon the Iustices view of the force, she shall be imprisoned (and it seemeth also she may bee fined in such case) But such fine set upon the wife shall not be levied upon the husband, for the husband shall never be charged for the Act or default of his wife, but when he is made a party to the action, and judgement given against him and his wife. Co. 9. 72. & Co. 11. 61.
2. H. 7. 16.5. Diverse doe enter with force to the use of A. who is not then present with them, but doth after agree thereto, this agreement after maketh A. to be a disseisor,Br. force 25. but not to be punished for the force, and if A. had counselled, consented, or agreed thereto before the Entrie, yet it seemeth that a commandement, consent, or agreement before or after, though it may make one a disseisor, yet it is not to be punished by the Iustice of peace upon these statutes,Consent. for that a forceible Entrie cannot be adjudged against a man, without an actuall Entrie be also made by him, or that at least he be present.
6. But if A. that shall command or counsell others thereto, shall also be present at the time of the Entrie,Dalton. 182. although he doth then nothing, yet he is now become a principall and punishable by these statutes.
7. If diverse doe come in one company, to enter into lands, &c. where their entry is not lawfull,Dalton 183. and all of them saving one did enter, and demeane themselves in peaceable manner, and one only doth enter with force or (after entry made) doth use force and violence, this shall be adjudged a forceible Entrie in them all, although the force [Page 135] were against their wils,Co. 9. 67. 112. & 11. 5. for where diverse doe come in one company to any place, to the intent to doe any unlawfull thing, be it robbery, homicide, ryot, affray, or any trespasse, here every one of them shal be adjudged a principall doer, although they stand but by and doe nothing: So it seemeth though some of them come without any intent of evill, if they came together in company with the other offendors, or if they came after, yet if they be either ayding, or countenancing to the offendors, they shall be also adjudged principall doers aswell as the other.
8. An Indictment upon the statute of 8. H. 6. for the King,The person [...] put out. Co. 1. 46. & 10. 112. is not good, for the King cannot be disseised, nor put out of his freehold, neither can the King bring any action upon the statute of 8. H. 6. nor any other action which might prove him out of possession of the land.
9. And if the K. termor be put out by force,The Kings Tenant. Dalton 183. Cromp. 69. he cannot preferre a bill of indictment upon the statute of 8. H. 6. that he was put out and the King disseised. But he must have an Information of Intrusion in the Exchequer.
10.Dalton 183. Yet it seemeth that upon complaint made to a Iust. of peace by the K. termor of any such force, the Iustice of peace ought to remove the force, and upon his view thereof, to record it, and to commit the offendors to prison, and may fine them, and after such force removed, the Kings termor may presently reenter (if he can) in peaceable manner.
11. If a forceible entry,Lesse [...] for yeares Coppihold [...]. or deteiner shall be made upon any Lessee for yeares, Tenant at will, or upon a Coppiholder whether it be by an estranger, or by the lessor, or by the Lord, the Iustices of peace upon their view thereof are to remove such force,Dalton 183. and may commit to prison the parties which made such entry, or which shall hold it with force, and may fine them, but whether the Iustice of peace may make such restitution and set them, sc. the Lessee for yeares, Tenant at will, or Coppiholder into their possessions againe hath beene much questioned: But now by a statute made in Ireland in 10. Caroli ca. 13. restitution shall be made to Tenant for yeares, Tenant at will, Coppiholder, Tenant by Elegit or statute merchant or of the staple.
12. Some held opinion that before this statute the Iustice of peace may put them in possession againe, and of this opinion was Maister Marrow, and Maister Lamb. and to maintaine this opinion these reasons may be given.
1. First, for that the words of the statutes seeme to warrant it, for the statute 15. R. 2. in the Preamble thereof, as also the stat. 8. H. 6. in the body thereof hath this word (possessions) which word most properly doth extend to a lease for yeares, &c.
2. Again, that clause of the stat. 8. H. 6. which provideth for the restitution is thus, if it be found that any doth contrary to this statute, then the said Iustice, &c. shall put the party so put out in full possession, &c.
[Page 136]13. Now it cannot be denied, but that he which by force expulseth Lessee for yeares, tenant at will, or a coppiholder doth contrary to this statute, also they bee the parties put out, and the same mischiefe and inconvenience which these lawes do labour to remove, is to Lessee for yeares, tenant at will, and to the coppiholder;Co. 11. 33. 34. Plo. 178. And we may finde it usuall, that where statutes are made for to remedy any common mischiefe there (to help things in the same degree) one action, thing, place, and person, hath in construction beene taken for another, and a good expounder (saith Sir Ed. Co. 11. 34) maketh every sentence to have his operation to suppresse all the mischiefes before the said Act, and principally those that are specified in these acts.
Co. 3. 7. & 12. & 73.14. And againe saith he, it is the office of the Iudges alwaies to make such construction of statutes as may represse the mischiefe, and advance the remedie, and to suppresse all evasions which may continue the mischiefe, and to adde force and life to the cure, and remedy, according to the true intent of the makers of the statute. Co. 11. 73. b. & Co. 3. 7.
15. Others held the contrary, sc. that Lessee for yeares, nor a coppiholder, or tenant at will cannot have restitution by the hands of the Iustice of Peace, and this was the common opinion, their reason is, for that the words in the statute of 8. H. 6. (in that clause which specially provideth for the restitution) are thus, The said Iustices, &c. shall reseise the said lands or tenements, and thereof shall put the party so put out in full possession, &c. which words (lands or tenements) are only to be understood of them that have inheritance,Rast. 174. or a freehold at the least, but to this it may be answered, that the said statute of 8. H. 6. in the body thereof hath these words, where any doe make any Forceible Entry into lands, tenements, or other possessions, or them hold forceibly, &c. which words, possessions extendeth to a lease for yeares, &c. And then the words (possessions) being in the same statute, we shall find that a statute is to bee expounded upon all the parts thereof together,Co. 3. 59. b. & 8. 117. and not upon one part alone by it selfe, to which purpose, see Lincolne Colledge case, and Doctor Donhams case, in Sir Edw. Cokes Reports.
16. But it seemeth to those which hold this last opinion, that if a Lessee for yeares, Tenant at will, or a Coppiholder, be forceibly put out, or held out by an estranger, if they will have restitution, their indictment must be made and preferred in the lessor or Lords name,Cromp. 161. and the Iury must find that the Lessor or Lord was disseised, &c. and then the Lessor or Lord shall have restitution, And so by their restitution, their Lessee or Coppiholder is restored also. But such Lessee or Coppiholder cannot (say they) preferre an indictment in their owne name upon the statute 8. Hen. 6. for that they have no Freehold.
Cromp. 249. 2.17. And to that purpose I find some presidents of indictments in [Page 137] this forme, viz. in unum messuag. apud &c. adtunc existent. liberum tenementum. M.D. armiger vi & armis, &c. Manuforti & illicitè tunc inde expulerunt & ejecerunt & pref. M.D. inde injuste dissesiverunt.
18. And by this opinion if a Lessee for yeares, tenant at will, or a Coppiholder be forceibly put out by their Lessor or Lord, such Lessee or Coppiholder hath no remedy at all by indictment upon this statute, for they have no Freehold, and therefore can have no restitution upon this statute.
19.Cromp. 71. Also by this opinion if the Lessee for yeares be put out by his Lessor, and after the Lessee putteth out the Lessor againe forceibly, the Lessee shall not be indicted, neither shall the Lessor have restitution upon this statute, for that the Lessor is not ousted nor disseised of his Free-hold, for the possession of the Lessee is such a seisin of the Lessor of his Freehold, that he may have an Assise, if his Lessee be put out; And so of a Coppiholder, not having forfeited his estate, if his Lord notwithstanding shall enter upon him, and put him out, and the coppiholder shall reenter upon his Lord with force, the Coppiholder shall not be indicted, nor yet the Lord restored, causa qua supra.
20. And so by this last opinion, the very mischiefe specified and intended to be helped by these statutes, should seeme still to remaine in all cases betweene such Lessees, and Coppiholders, and their Lessors or Lords, so as there can be no inquiry, nor restitution, in cases of Forceible Entry or detainer betweene them.
21. But howsoever the law be taken for the indictment or restitution thereupon, yet in case that Lessee for yeares, tenant at will, or a Coppiholder be forceibly put out, or held out, either by a stranger, or by their Lessor, or Lord, the Iustices of Peace,Cromp. 71. or any one of them by the statute 15. R. 2. ca. 2. may safely remove the force upon view thereof, and may commit the offendors to prison, and then the Lessee for yeares, or Coppiholder may presently reenter, if peaceably they can so doe, and so may have his possession againe without any restitution made him by the Iustices.
22. But these statutes are now by a statute made in 10. 10. Caroli c. 1 [...] in Ireland. Caroli clearely explained, which statute ensues in these words, viz:
Whereas there is one good Act made and established in England in the eight yeare of the raigne of King Henry the sixt, against such persons as should make forceible Entries into lands, tenements, and other possessions, or them should forceibly hold, and one very good proviso; or clause in the said Act contained, as ensueth, viz. Provided alwayes that they which keepe their possessions with force in any lands and tenements, whereof they or their ancestors have continued their possession in the same by three yeares or more, be not endamaged by force of the said statute. And whereas diverse of the Kings Majesties good and loving Subjects and their Ancestors, or those whose estate they have for many yeares together above the space of [Page 138] three yeares, or more, have beene in quiet possession of their dwelling houses, and other their lands and possessions, and now of late divers of his Majesties said Subjects having Entries made upon their possessions, having had such quiet and long possession, for disturbing of such Entries, and for keeping of their possession against such enterers, by colour of Indictments of forceible Entrie or forceible keeping possession found against them, by meanes of the oathes of such enterers, have beene removed and put out of their dwelling houses and other their possessions, which they have quietly held by the space of three yeares together, or longer time, next before such indictments found against them, against the true meaning and intent of the said proviso, or clause contained in the said Act, for remedy of which inconvenience and for true declaration and explanation of the Law therein, be it ordained, declared and enacted by the authority of this present parliament that no restitution upon any indictment of forceible Entrie, or holding with force, be made unto any person, or persons, if the person or persons so indicted hath or have had the occupation, or hath or have beene in the quiet possession by the space of three whole yeares together next before the day of such indictment so found, and his, her or their estate or estates therein not ended, nor determined which the party indicted, shall and may alledge for stay of restitution, and restitution to stay, untill that be tryed if the other will deny or traverse the same. And if the same allegations be tryed against the same person or persons so indicted, then the same person or persons so indicted to pay such Costs and damages to the other party, as shall be assessed by the Iudges or Iustices, before whom the same shall be tryed, the same Costs and damages to be recovered and levyed as is usuall for Costs and damages contained in Iudgement upon other Actions. And be it further enacted by the authority aforesaid, that such Iudges, Iustices, or Iustice of peace as by reason of any Act, or Acts of Parliament, now in force, are authorized and enabled upon enquiry to give restitution of possession unto the Tenants of any estate of Freehold, of their lands, or tenements, which shall be entred upon with force, or from them withholden by force, shall by reason of this present Act, have the like, and the same authority and ability from henceforth (upon indictment of such forceible Entries, or forceible withholding before them duely found) to give like restitution of possession unto Tenants for Terme of yeares, Tenants by Coppy of Court Roll, Guardians by Knights service, Tenants by Elegit, Statute Merchants, and Staple, of lands or tenements by them so holden, which shall be entred upon by force, or holden from them by force. And be it further enacted by the authority aforesaid, that all and every Iustice and Iustices of Assize, shall for ever hereafter in their severall circuits respectively have the like power and authority, to all intents and purposes to inquire, heare and determine of all forceible Entries, and forceible holding, and all other offences aswell [Page 139] against the said statute of Octavo of King Henry the sixt, as against this present statute, and to award restitution of possession in all cases, as any other Iudge, or Iustice, or Iustices of the peace could, or may doe by this Act, or by any other Statute of force within this Realme.
23. Now to shew something more what the Law accompteth to be force, and what weaponsWeapons. be offensive in these and the like cases Master Bracton saith, Omnes illos dicimus armatos, Dalton 186. qui habent cum quo nocere possunt, and therfore to have harnesse, guns, Bowes and arrowes, Crosbowes, halberts, Iavelins, bils, clubs, pikes, pitchforkes, or swords, not usually borne, by the parties, shall be said to be vis armata.
24. Againe, Si quis venerit cum armis, & dejecerit, vis tamen armata dicitur, sufficit enim terror armorum, Si quis venerit sine armis, & in ipsa concertatione, ligna sumpserit fustes, aut lapides, vis dicitur armata.
25. And so to use casting of stones, hot coales, scalding water, or lead, or any other thing wherewith one may hurt the person of another, shall be said to be vis armata.
26. Next where a force,Lawfull force. or forceible defence is justifieable and where not.
27. Force being opposed against the Law, is utterly forbidden but being used in the maintenance of the Law, and with the warrant of Law, it is allowed, for that it mainetaineth the peace of the realme.P.R. 41. Dalton 186 And therefore force may lawfully be used by all the Kings officers, ministers, and subjects thereunto deputed, for the execution, or advancement of Iustice, or of the judgements of the Law.
28. And so first it is a lawfull force,Ibid. whereby all offendors in Treason, felony, and other great crimes, be pursued, apprehended, carryed to prison, and receive their condigne punishments.
29.Ibid. It is also a lawfull force whereby the Sheriffe and his officers doe apprehend any person by vertue of the Kings writ.
30.3. H. 7. And so it is a lawfull force whereby Iustices of peace doe remove unlawfull entries, or holdings of possessions,Br. Riots 73. and represse Riotters, and doe arrest and send to prison such offendors: And in these and the like cases, the Kings officer, (scil. the Sheriffe, Iustice of peace and Constable) may take the helpe of others, what number they shall thinke meete to assist them, when need shall require.
31. Also it is a lawfull force which Iustices of peace, Sheriffes,Dalton 186. Coroners, and Constables, shall use in apprehending, or committing to prison such as within their severall jurisdictions and in their presence, shall in any sort breake, or attempt to disturbe, or breake the peace, and they may therein take the assistance of others as aforesaid.
32. Also in these cases following, it is lawfull for the K. officers,P.R. 41. by force to breake open a mans house, to arrest offendors being therein, if the doores be all shut, so as the officer cannot otherwise enter the house, viz.
33. For the apprehending of any person for treason, felony,Co. 5. 92. or suspition of felony or Treason. 13. E. 4. 9. Br. Coron. 159.
[Page 140] Dalton 187.34. Where one hath dangerously wounded another, and then flying into an house, the Constable or other officer upon fresh suite may breake open the doore, and apprehend the offendor, and so may any other person besides the officer, as it seemeth. 7. E. 3. 19. Crom. 171.
Ibid.35. Where there shall be an affray made in a house, and the doores shut, the Constable, &c. may breake into the house to see the peace kept.
Ibid.36. So upon a forceible Entrie, or detainer found by Inquisition before any Iustice of peace, or viewed by the Iustice himselfe, or the Sheriffe by his warrant may breake into the house to apprehend the offendors.
Ibid.37. Upon a Capias utlagatum, in any personall action, as also upon a Capias pro fine directed to the Sheriffe, the Sheriffe may breake open the doores, &c.
Ibid.38. Upon a warrant for the peace or good behaviour, the Constables may breake open the house, by the opinions of Popham and Clerke, Iustices of Assise at Cambridge Assises. 3. Iac. Reg.
39. Lastly, in all cases where the K. is a party, or hath Interest in the businesse,Co. 5. 91. 13. Ed. 4. 9. the officers may breake open the doores as aforesaid; For no mans house shall be a Castle against the King. Co. 5. 91. And yet the Sheriffe nor his officers may not breake open any mans house to execute the Kings proces, upon the body or goods of any person at the suite of any subject. Co. 5. 92. 95.
40. But when a house is recovered by any reall action, or by ejectione firmae, there the Sheriffe may breake the house and deliver seisin or possession to the demandant or plaint, for after judgement it is no more (in the right or judgement of Law) the house of the tenant or defendant. Co. 5. 91.
41. But note that the officer, before he breake open the house or doores of any person,Co. 5. 91. he must first signifie the cause of his comming, and desire that the doores may be opened unto him.
Co. 5. 91. & 11. 82. 21. H. 7. 39. 42. Note also though no man may forceibly keepe his house against the Kings officers in the cases aforesaid, yet every mans house is to himselfe,Forceible de fence lawfull. his familie, and his goods as his Castle, aswell for his d [...]fence against injury and violence, as also for his repose and rest. And therefore the Law doth give to dwelling houses diverse priviledges.
1. First, that it is a mans Castle for his defence as aforesaid.
2. Also a mans house hath the priviledges to protect him against any arrest by force of any processe at the suite of any subject as aforesaid.
Co. 11. 8.3. A mans house in some cases hath a priviledge against the Kings prerogative, for it hath beene adjudged that Saltpetermen cannot dig in the mansion house of any subject without his assent, in regard of the danger that may happen thereby in the night time to the owner, his familie and goods, by theeves and other malefactors. Co. 11. 82.
[Page 141]4. If Theeves shall come to a mans house to rob, or murder him,Co. 5. 91. & 11. 82. he may lawfully assemble company to defend his house by force, and if he or any of his company shall kill any of them in defence of himselfe, his familie, his goods or house, this is no felony, neither shall they forfeite any thing therefore.
5.Cromp. 70 Also a man that is in possession of a house peaceably and doubteth that another (who indeed hath more right to the possession, and who may enter) will enter upon him, here he which is in possession may defend and keepe his possession of the house with his ordinary company, and may justifie to beate the other which shall attempt to enter upon him. But if he kill him, it is felony, nay he in possession (in this former case) may not hire any strangers to aid him, neither may he have his owne ordinary company in armour, nor otherwise be provided with Bowes, or guns to shoot at the other as it seemeth. Cromp. 70. a.
6. Also if a man being in his house,In defence of his person. 21. H. 7. 39. Br. Riots 1. Co. 11. 82. doe heare that another will come thither to beat him, he may lawfully assemble his neighbours and friends, &c. to assist and ayde him there, in the defence of his person.
7. And yet if he or any of his company shall kill the other, or any of the other company in such defence of himselfe or his,Dalton 188. this seemeth to be such a felony in all of them which be in the house, and in that action, that they shall forfeit their goods thereby.
43. But if a man be threatned that if he come to such a place,21. H 7. 3 [...]. Co. 11. 82. that then he shall be beaten, in this case hee may not assemble any company to goe thither to safegard his person: for there is no necessitie of his going thither: Besides, he may have surety of the peace against such as threatned him.
44. If there be an attempt made to beat a man, his wife, father,In defence of others. Dalton 188. mother, or any of his children (within age) he may lawfully use force to resist it, and may justifie the beating of the other in such case.
45. Also the servant may justifie to beat another in defence of his master. Br. Trespas. 217. 21. H. 7. 39. 2.
46.In defence of his goods. Cromp. 65. 69. Also a man may justifie to beat another in the defence of the possession of his goods, and if another hath taken away my goods, may take them againe from him with force.
47. Also if there be an attempt made to disseise me of my land,Dalton 188. or to disturbe me of my high way, or to turne an ancient water course from my Mill, I may lawfully use force to resist it.
48. A Keeper doth enter and chase upon my land, pretending this to be within his purliew, where it is not,Dyer. 327. Cromp. 68. if I command my servants to beat him of my ground, this seemeth justifiable in the defence of my possession against such unlawfull claime.
Where Forceible Detainer of possession is lawfull. CHAP. 32.
8. H. 6. c. 9. Br. force 4. 10. carol. ca. 13. in Ireland.1. THe statute of 8. H. 6. concludeth thus, Provided that such as keepe their possession by force after that they, or their ancestors, &c. have continued their possession in the same 3. yeares, or more, shall not be indamaged by force of that statute.
22. H. 6. f. 18 b.2. This proviso must (as it seemeth) be thus construed, sc. that where a man is seised (of a lawfull estate or posses.) of an house or lands, or he and his ancestors, or they whose estate hee hath therein have continued the posses. of the same peaceably by the space of 3. whole yeares together without interruption (and his estate not ended) there he may hold and keepe such possession with force,See the stat. against all others, yea it seemeth if hee shall hire strangers to aide him, to keepe such possession, or shall have his company in armour, hee is not punishable by these statutes: but he may not resist the Iustices of Peace that shall come to view this.
10. Caroli c. 13. [...]n Ireland.3. And if he shall be indicted for such his forceible holding (after three yeares) such quiet possession, he may plead such his lawfull and peaceable possession by the space of three yeares next before such indictment, and thereby he shall avoide both the imprisonment and fine, and also shall debarre the other party of his restitution; Neither may the Iustices of peace remove him from his possession, though it be found by the Inquisition taken before them, that he held that house or land by force, after three yeares lawfull and peaceable possession, as aforesaid.
4. But here it seemeth these foure diversities are to bee observed:
6. & 7. Ed. 6. 22. H. [...] 8.1. First, where the party in possession did enter peaceably and where forceibly, for if a man enter forceibly and after continueth his possession peaceably by the space of three yeares without interruption,Br. Rest [...]. 12. yet it seemeth he shall not be aided by the proviso in the statute of 8. H. 6. ca. 9.
2. Secondly, where the party in possession hath continued his three yeares possession peaceably,Br. force 22. & 19. and where by force, for if after a lawfull and peaceable entrie a man shall continue or hold his possession by force, this is a Forceible holding or deteyner, and punishable by the statute of S. H. 6. And three yeares of such possession shall not aide him.
22. H. 6. 18. b. Fi Entre 20. Br. force 6. Vide 23. H 8. pag seq. 14. H. 7. 18. Br. force 10.3. Thirdly, where the party in possession is in by right, and of a lawfull estate, or by wrong as a disseisor, and yet without force, and hath continued such his possession peaceably by the space of three yeares, without interruption, he shall be aided by the Proviso of the said statute of S. H. 6. and by the statute of 10. Caroli ca. 13. and not removed from the possession upon an Indictment, but if a disseisor hath continued his possession forceibly by the space of 20. yeares [Page 143] together, yet he may be indicted upon the said statute of 8. H. 6. before a Iustice of peace, of the forceible detayning of the same, and the same being found the said Iustice of Peace is to reseise the same, and to award restitution to the party disseised, or so put out.
4. Fourthly, where the party hath continued such his possession three yeares without interruption, and where his possession hath been interrupted or discontinued, for if a man hath been in peaceable possession of land, &c. by the space of three yeares and above, by a good title, and then is disseised and expelled by force, and the disseisee reentreth peaceably, or the disseisor is therefore indicted upon the statute of 8. H. 6. and the disseisee is thereupon restored,Dyer. 142. Br. force 32. & 29. and is in possession accordingly, yet in these cases the disseisee cannot justifie the Detainer of the possession of those lands by force, because his possession was once interrupted, but after such interruption and reentry, or restitution, if hee shall continue a peaceable posses. againe for three yeares together, then it seemeth he may justifie the Deteiner of the posses. thereof by force, by vertue of the Proviso in the stat. of 8. H. 6.
5. If a Disseisor hath continued his possession peaceably three yeares, and after the disseisee doth reenter,23. H. 8. Br. force 22. or doth make his claime so neere as he dareth, and then the disseisor reentreth againe, or continueth his possession after such claime, here the disseisor cannot justifie to hold the same with force,Lit. 429. for by the reentry or claime of the disseisee, the first disseisin and possession of the disseisor was determined, and the disseisor is in of a new disseisin.
6. Also if he that hath been a lawfull possessor of lands by the space of Twenty yeares together, be once clearely and wholly removed from the possession of the same land, hee cannot come with force, or multitude, to put himselfe in possession thereof againe, and to detayne the same with force, because his possession was once interrupted, and if he be indicted (upon the statute of 8. H. 6.) for such Forceible Entry, he shall not be relieved (touching the restitution) by the stat. of 10. Carol. for that hee had not the occupation of the said lands, nor had been in quiet possession thereof by the space of three yeares together, next before the day of such indictment found.
How many severall remedies the party hath which forceibly is either put out, or kept out of the possession of his houses or lands. CHAP. 33.
1. FIrst, the party so grieved (having an estate for life,Action upon the statute of 8. H. 6. 1. R. 2. ca. 9. 8. H. 6. ca. 9. F. N. B. 348. c. c. & 249. 2. co. 10. 115. in Taile or Fee,) may have his Assise, or action of trespasse of Forceible Entry upon the statute of 8. H. 6. against such disseisor, and therein if the defendant be attainted of force, he shall fyne to the King, and also answere to the plaintiffe his treble damages, and treble Costs of [Page 144] suit, and also the plaintiffe shall thereupon have a writ of restitution to restore him to his former estate.
2. But this action being the suit of the party, and onely for the right,9 H. 6. 16. this remedy (by action) is only where the Entry of the defendant was not lawfull,Fitz. 248. h. for if a man entreth with force, where his Entry is lawfull, as if the disseisee shall enter upon the disseisor with force, he shall not bee punished by action: But yet he may be indicted upon the statute,Br. force 29. and upon such indictment found, the party put out shall be restored, for the indictment is for the force, and for the King, and here the offendor shall make fyne to the King, although his right be never so good. Br. Force 11.
3. Also the party so grieved if hee will loose the benefit of his treble damages and costs,Writ upon the statute of Northampton. he may be aided, and have the assistance of the Iustices of peace and that after diverse sorts, first he may purchase a writ out of the Chancery directed to the Sheriffe only, or the Sheriffe and Iustices of peace, and to every of them, for to remove the force, and this is upon the statute of Northhampton. 2. E. 3. cap. 3. the forme of which writ you may see F. N. B. 249. f.
Cromp: 74. 162.4. But upon this writ the Iustice of peace is to proceed only as a minister, and is to certifie his doings herein, and that Iustice of peace to whom the writ shall be delivered, ought for to execute it, scil. he may remove the force, but here he may not put the party in possession againe, who was put out.
Indictment in Sessions.5. Also the party grieved, may at the generall Sessions of the peace within the same County, preferre his bill of indictment, upon the statute of 8. H. 6. for such forceible entry or deteiner, which being found there,Dyer. 187. Cromp. 165. the complaynant shall be restored to his possession by a writ of restitution granted out of the said Court to the Sheriffe.
6. Also the party so grieved, for a more speedy remedy, may complaine to any one or more Iustices of peace of the same County of the said force,By the In out of Sessions. and thereupon the said Iustice of peace may ex officio, Dalton 191. & 192. and without any writ, either doe execution of the statute of Northhampton as aforesaid; Or else the said Iustice of peace upon such complaint may goe to the place where such force is, to see it, and may remove the force, and arrest and commit the offendors, which he shall find committing the force, and shall also keep a speciall Sessions to inquire of the said force, and if upon such inquiry such force shall be found, then the said Iustice shall restore the party grieved to his possession againe, and here no other Iustice of peace can grant a Supersedeas to stay the same restitution.
Dalton 192.7. Also the party grieved may remove such indictment found either at such generall or speciall Sessions, by a Certiorari into the Kings Bench, and the Iudges of that Court may award a writ of restitution to the Sheriffe of the County to restore possession to the party.
E [...]quirie.8. Now when the Iustice of peace shall make such inquiry he shall direct his precept or warrant to the Sheriffe commanding him [Page 145] to cause to come before the said Iustice of peace,Dalton ibid. at some good Towne neere to the place, 24. sufficient and indifferent persons dwelling neere to the said lands or tenements, whereof every one shall have in lands or tenements 40.s. by the yeare at the least, to inquire upon their oathes of such force.
9. Upon default of apparance of those Iurors, the Iust. of peace may award an alias and after that Pluries in finite, till they come,8. H. 6. c. 9. but so that at the day of the second precept, or writ, the Sheriffe must returne 40.s. in issues upon every one of them, and at the third writ 5. li. and at every day after the double.
10. And although any of such Iurors shall not have 40.s. land per annum, yet their presentment of such force is good for the King, so as the offendors shall be fined to the King. But the party shall have no restitution upon such a presentment if it be pleaded at or before the time of the awarding of the restitution, for the statute of 8. H. 6. ca. 9. requireth that such Iuror shall have 40.s. freehold per annum at the least.
11. If the Sheriffe shall returne smaller issues upon the Enquirors then the statute doth appoint, yet the party indicted shall not impeach the enquiry therefore, neither is it cause to impeach the enquiry, though the Iustice of peace doe not goe to see the place where the force is.
12. And it is convenient upon such enquiry that the Evidence be given openly to the Iury, to the intent it may appeare to the Iustices of peace or Court, whether there shall be reasonable cause to stay restitution or no, after the indictment found, See Dyer. 122.
Of restitution to be made to the party put out. CHAP. 34.
1. I Will here shortly recite the words of the statute,Restitution. which for this businesse of restitution will give the better light, which are as followeth, videlicet: 8. H 6. ca. 9. And if upon such enquiry it be found before the said Iustices that any have done contrary to this statute (viz. have entred or held with force) the said Iustice of peace, &c. shall reseise the said lands or tenements so entred upon or holden, and put the party so put out, in full possession of the same lands and tenements so entred or holden as before.
2. Here we see that after such forceible Entrie,P.R. 35. or holding so found by enquiry, the said Iustice of peace, &c. shall remove the force sc. all such offendors as shall be found in the house or upon the lands, that either entred or held with force, and upon the prayer of the party so put out, the said Iustice of peace shall restore him to his possession againe.
3. And herein the Iustice of peace needeth not to stay, or stand upon the right and title of either of the parties, as is said before.
[Page 146]4. But no restitution shall be made, but where the forceible entry or detainer is first found by Inquisition. Br. force 27.
5. Concerning this Inquisition or Indictment, the Iustices of peace shall doe well to peruse and regard the same,Cromp. 166. to see if it be sufficient,Indictment the forme. for the Iustice of peace ought not to award restitution, where the indictment shall appeare to them to be any way insufficient in the Law either in matter or forme.
Dalton 193.6. First therefore to have restitution, the putting out (by expresse words) must be in the indictment and found by the Inquisition, for another man may enter upon me, and yet not put me out, and then there needs no restitution to be made by the Iustices.
7. And this putting out, is to be understood only of the house, or land,Ibid. and not of a rent common, advowson, and such like, into which an actuall Entry cannot be made, and therefore none shall have restitution but such only as are put out of the house, or land, as is formerly, ca. 29. herein declared.
Ibid.8. Also the indictment ought to expresse the quality of the thing entred upon, &c. sc. whether it be a messuage, cottage, meadow, pasture, wood, or land, errable; for if the indictment be, quod manuforti intraverunt in tenement. &c. it is void for the incertainty, because the word tenementum may extend to either of them.
9. Also the indictment must have these words, sc. adhuc extra tenent, 14. H. 6 16. Br. force 13. otherwise the party shall have no restitution, and yet these words be not in the statute, but without these words in the Indictment it may be supposed and thought that he which put me out hath left the possession againe, or that I have gotten it againe, and then the restitution is needlesse.
Dalton 193.10. So as in every such indictment, these words are materiall, sc. expulerunt, & adhuc extra tenent. And for lack of either of these words, no restitution shall be made, or awarded.
11. Also one of these two words Manuforti or cum multitudine seeme to be materiall in the indictment,Dalton 194. unlesse they be implyed by reciting the statute of 8. H. 6. and concluding contra formam statut. predict. or by some other words in the Indictment: See the presidents herein in the title of warrants and presidents.
Cromp. 162.12. If a man shall be restored upon an insufficient indictment taken before the Iustice of peace, and this be removed into the Kings Bench, the Court there will cause the party to be restored that before was put out by the Iustice of peace by a writ of restitution.
Cromp. 165. & 166. b.13. Also if error or insufficiency be in the indictment taken before Iustices of peace, & yet restitution is awarded by them, any two of those Iustices of peace which were present at the taking of the said indictment upon the prayer of the party, may (at another Sessions) grant and award a Supersedeas to the Sheriffe to stay the same restitution,Dyer. 187. if the Sheriffe hath not made restitution before the Supersedeas come to his hands, but no other Iustice of peace besides those which [Page 147] were present at the taking and finding of the said indictment) can grant a Supersedeas, if the indictment were found at a speciall Sessions.
14. A man is indicted that he entred with force, and held with force, and upon the traverse, it is found that he entred with force,Cromp. 165. but not that he held with force, yet this indictment seemeth good enough, and the party shall be restored.
15. So if two be indicted of a forceible Entrie, or deteiner,Severall indictments. and upon the traverse it is found that the one entred with force and the other held or detained with force, yet the party shall be restored.Ibid.
16. If it be found by one Enquest, that A. put me out by force,Dalton 194. Cromp. 166. Br. force 6. and by another Enquest, that I did put out A. by force, either of us may pray to have restitution against the other, but he that is first restored is in the worst case, for the other may have restitution afterwards, and then he that had restitution first is without remedy by the hands of the Iustice of peace, saving that he may reenter if he can peaceably, or have his action.
17. If it be found by one Enquest that A. did put mee out by force, and by another Enquest taken at the same Sessions that B. did put me out by force, I may chuse upon whether of these indictments I will be restored,Cromp. 166. and if I have restitution against A. and this be returned, I cannot have restitution upon the other:Dalton 194. But if (upon the writ of restitution) it be not returned that I have restitution, then I may afterwards have restitutiō against B. upon the other Indictment, if B. hath reentred upon the first restitution made to me.
18.Dalton 194. & 195. A. is disseised or put out with force by B. and after B. is put out with force by C. and all this is found by one and the same Inquisition, here B. may have restitution against C. for B. hath more right to the possession than C. and then may A. have restitution against B. but upon this Inquisition, if A. have restitution first, then B. shall not have any restitution otherwise if these had been found by severall Inquisitions.
Who shall award and make this restitution. CHAP. 35.
1. AFter the force is found by the Enquest, the Iustice of peace (before whom the said force shall be so found) may himselfe put the party in possession againe,Dalton 195. or he may make his precept under his owne teste alone to the Sheriffe to doe it.
2. The forme of the precept to the Sheriffe to make restitution you may see postea tit. of Warrants and presidents.
3.3. Eliz. Dalis. Co. 11. 59. 65. Dyer. 187. But no other Iust. of peace hath any authority by the statute to grant or award restitution, but only he or they before whom the force was found by Inquisition, nay the Iust. of Oyer and Terminer, nor the Iust. of goale deliverie cannot grant restitution, nor the Iustices of peace at their generall Sessions of the peace, cannot grant this [Page 148] restitution, except the indictment were found before them.
4. And yet the Iustices of the Kings Bench (in regard of their supreme authoritie in all cases of the Crowne) either upon certificate (to them made by the Iustice of peace,Co. 9. 118. Co. 11. 65. 4. H. 7. 18. before whom such force was found) of the presentment of such force, or if the said presentment or indictment shall be removed before them by Certiorari, in both these cases the Iustices of the Kings Bench may award restitution.
Dalton p. 195.5. But neither the Iu. of the K. Bench, nor any other (besides him or them that made the inquiry) can personally restore the party, but only by way of Precept to the Sheriffe.
6. The Sheriffe, if need be may take the power of the County to execute the precept of the Iu. of peace herein.
7. And if the Sheriffe upon such a precept, or upon a writ of restitution from the Sessions, &c. shall returne that he cannot make restitution for resistance,Dalton p. 195. &c. he shall be amerced for making such a returne, because in such case he might have taken the power of the County to assist him therein, see the like case Fitz. Execution 147.
To whom restitution shall be made. CHAP. 36.
1. THis restitution ought to be made to him that was put out, and to none other, for so are the words of the statute.
P. R. [...]8.2. Therefore if a father be put out by force, and dyeth, his heire shall not have restitution,Dalton p. 195. yet here the Iustices may imprison and fine the offendors, for by such forceible Entry they have broken the peace.
3. Also if after the death of the Father, a stranger abateth or entreth into his land by force,Dalton p. 196. before the heire hath gotten actuall possession indeed, the heire shall not have restitution, because he had but a possession in law descended upon him.
4. The disseisee doth put the disseisor out with force, the disseisor shall be restored,Fitz Na Br. 248. h. for upon an indictment of force the right or title is not disputable or materiall, but by the words of the statute of 8. H. 6. ca. 9. hee that is in such sort, sc. forceibly put out shall bee restored.
Dyer. 12 [...].5. Yet it seemeth in this case, that upon traverse tendred by the disseisee, and his right appearing, the Iust. of peace may stay restitution.
Br. force 6.6. Also if the disseisor be restored againe, yet the disseisee may after reenter peaceably or have his Assise.
7. But if the disseisee shall enter peaceably upon the disseisor, and so they both shall abide and continue there together,Cromp. 163. for divers daies, and after the disseisee doth put out the disseisor with force, and is thereof indicted, here it seemeth the disseisor shall not be restored, for the disseisors possession was avoided in quiet manner at the first [Page 149] entry of the disseisee, and so the disseisor had no possession in the eye of Law, when he was put out.
8. If the disseisee shall enter peaceably,Cromp. 162. & 164. Dalton 196. the disseisor and his family being abroad, and after the disseisee shall keepe his possession with force, the disseisor shall not be restored, by reason of the eigne title of the disseisee, and for that he entred peaceably.
9. But here the disseisee shall bee imprisoned and fined for keeping his possession with force, for Forceible keeping or detaining, is aswell prohibited as Forceible Entrie.
10. And here note that the being of a mans wife, children,Cromp. 164. Fitzh. Assise 418. of servants, in the house or upon the land doe preserve his possession, but his cattell being upon the ground, doe not preserve his possession.
11. Also when two are in possession of an house, &c. and the one claimeth by one title, and the other by another title,Litt. 140. Park. 45. here the law shall adjudge him to be in possession who hath the best right to the possession; So that if A. shall wrongfully enter upon B. and they both shall continue in the house, and after B. shall put out A. with force, A. shall not be restored, for A. never gained any possession by his Entry.
12. Two Iointenants, or Tenants in Common,Fitz. 249. d. and one of them doth forceibly put out the other out of his possession, he that is so expelled may have an action of Trespasse of Forceible Entry against his Companion upon the statute of 8. H. 6. and thereupon he shall have a writ of restitution to restore him to his former estate;P. R. 39. but it seemeth the Iustice of peace can doe nothing herein: for that his entry and possession is lawfull through the whole land in respect of his owne moity and estate.
13. Two Iointenants be put out with force,Dalton p. 197. and one of them only sueth to have restitution, restitution shall be made unto him.
14. Coppiholder, lessee for yeares, or tenant at will,10. Carol. c. 13. tenant by Elegit, statute merchant, or of the Staple shall have restitution by the statute of 10. Caroli in Ireland.
15. If Lessee for yeares be put out of his Terme by force and die,P. R. 38. though after his death this force be found by Inquisition taken by a Iustice of peace,Dalton pa. 197. yet his executors shall not be restored to that land (by the Iustice) for that they are not the same person which was put out.
What causes there may bee for staying the Iustices of peace from granting Restitution. CHAP. 37.
1. ALthough the partie, thus to be indicted for a force,Cromp. 162. Br. force 11. shall not be heard nor suffred to give his Title in evidence, to excuse himselfe of his Forceible Entrie or detayner,Dalton p. 197. to save his fyne due to the King for such force, which fyne he shall make though his right bee [Page 150] never so good,Lambert. pa. 147. 148. Dyer. 122. 9. H. 6. fo. 19. 22. H. 6. fo. 18. and also the Iustice may proceed to the restitution (which the Complaynant shall demand, if the force be found) without examining the title, and yet by Dyer. fo. 122. the Iustice may if he please examine the title, and thereupon stay the awarding of restitution, but if the force be apparant I conceive the safest way and most agreeable to the statute is to award restitution without examining the title.
2. Now the defendant or party indicted for the stay of restitution may at the time of the restitution to be made, pleade, or alledge any of these things following:
1. His quiet possession by three yeares together.
2. He may deliver to the Iustice of peace or Court, a Certiorari, and this is a supersedeas to them.
3. He may shew the insufficiency of the indictment if there be any.
Dalton p. 197.4. He may pleade the insufficiency of any of the Iurors, sc. for not having Forty shillings land per annum. And in this case Master Marrow is of opinion that the party shall have no restitution.
Three yeares possession.5. For the first there shall be no restitution awarded, where the party indicted hath beene in quiet possession by the space of three whole yeares together next before the day of such indictment found, if his estate be not ended,Dalton pag. 197. & 198. and this the party indicted may alledge to stay the restitution, and the restitution upon this shall be stayed by the Iustice of peace, untill it be tryed, if the other party will deny or traverse the same.
Certiorari.6. Also if a man who hath made a forceible Entrie or deteiner be in doubt that he shall be indicted thereof before the Iustice of peace upon the statute of 8.Cromp. 164. H. 6. and that thereupon restitution will be awarded against him,P. R. 7. he may have a writ of Certiorari out of the Kings Bench ready, and when the bill of indictment is found he may presently deliver it to the Iustice of peace or Court, and this is a Supersedeas to them for to stay the restitution, for that upon this writ the said indictment shall be removed from them into the Kings Bench. And although the indictment be found after the teste of the Certiorari, it is not materiall for they be both in the Kings Courts, &c.
6. H. 7. 16.7. But if a Certiorari commeth to remove an indictment: taken before the Iustice of peace in the Countrey, and the party will not sue to remove it,Cromp. 166. but suffereth it to lye still, the Iustice of peace may proceed to grant restitution, notwithstanding the writ, as Hobert the Kings Atturney said in 6. H. 7. But Keble held opinion against him, and it seemeth the Iustices of peace ought ex officio, to send the indictment away, because they are commanded so by the writ, and this writ is a Supersedeas of it selfe to the Iustice of peace to stay their proceedings, and if they shall proceed after, it is erronious. Br. Iudges 17.
Cromp. 162.8. After restitution made by the Iustices of peace, if the other party doth remove the indictment by a Certiorari of a more eigne date then is in the indictment, the Iustice of the Kings Bench may [Page 151] award restitution back againe, for upon the matter the Iu. of peace had no power to make restitution, for that the Certiorari hath relation from the date thereof.
9.Ibid. After restitution granted from the Sessions and delivered to the Sheriffe, the other party having a Certiorari delivereth it also to the Sheriffe after the Sessions, the Sheriffe shall not surcease thereupon (for he hath no authority to allow thereof) but if the Certiorari were delivered to any Iustice of peace he may thereupon grant a Superdeas to the Sheriffe. And if restitution were made by the Sheriffe before the said Superdeas came to his hands, then the other party shall have restitution back againe, in the Kings Bench upon the indictment removed thither.
10.Traverse. The tender of a traverse (to an Indictment of forceible Entry upon the statute of 8. H. 6.) is no Supersedeas but in discretion,Dyer. 122. so as the Iustices of peace or Court may grant, or may stay the restitution at their discretion according as the truth of the right or title shall appeare to them, and so is the use of the Kings Bench.
11. Or else the Iustices of peace before whom the indictment was found, may after Traverse tendred, certifie or deliver the indictment into the Kings Bench, and so referre the further proceedings therein to them.
12. But if the party indicted shall tender a Traverse presently,Cromp. 66 [...]. whereupon restitution is stayed, and after he shall not pursue his Traverse with effect (but discontinueth it) and after doth tender another traverse upon restitution prayed at another time, the Iustices of peace, or Court, shall doe well to proceed to grant restitution, notwithstanding such traverse tendred.
13.Cromp. 166. And it is the course of the Kings Bench that he that tendreth the traverse there upon such an Indictment, shall beare all the charges of the triall, and not the King nor he at whose suite the Indictment was found, and the same reason seemeth upon an indictment traversed before Iustices of peace.
Games unlawfull and Idlers. CHAP. 38.
1.Vide 12. R. 2. ca. 6. 11. H. 4. ca. 4. 17. E. 4. ca. 3. A Iustice of peace by the first Assignavimus of the Commission pro pace conservanda & bono regimine populi, and by the common Law may arrest and imprison all common gamesters, Idlers, and all such as be of ill fame, and the keepers of such common gaming houses, untill they shall finde shall finde sureties to leave of their gaming and keeping of gaming houses, and to betake themselves to some honest labour, or else to be of good behaviour at the discretion of the Iustice.
2. Note that playing at Cards, Dice, and the like, are not prohibited by the common lawes of this Realme, except that one be deceived by false Dice, or false Cards, and then he that is deceived may have [Page 152] his action of the case for such deceipt, neither are they malum in se, or of their owne natures, for then none might be tolerated or licensed to use them. And yet good Divines doe hold diverse of these recreations to be altogether unlawfull, as being Actions wherein we neither blesse God, nor looke to receive a blessing from God, nay such as we dare not pray to God for a blessing on them nor on our selves in the use thereof, but especially on the Sabboth day all such recreations and Games are holden unlawfull: for if lawfull works be forbidden on that day, much more unlawfull sports, yea such sports and games, which otherwise and at other times are lawfull, See Esay. 58.13.
Huy and Cry. CHAP. 39.
1. EVery Iustice of peace may cause Huy and Cry, fresh suit and search to be made upon any Treason, Murder, Robbery, Theft, or other felony committed, and this he may doe by force of the first Assignavimus of the Commission and the Statute of Winchester. 13. Ed. 1. ca. 1.
13. Ed. 1. 12.2. Note that Huy and Cry ought to be made from Towne to towne, and from countrey to countrey and by horsemen and footmen, otherwise it is no lawfull pursuite, 28. Ed. 3. ca. 11.
11. Caroli c. 13. in Ireland.3. Note also when Huy and Cry is levyed upon any Robbery or other felony, the officer of the Towne where the felony was done, or Huy and Cry first levyed, ought to send to every other towne round about him, and not to the next Towne onely, and in such cases it is needfull to give notice in writing to the pursuers, of the things stollen, and of the colour and markes thereof, as also of the person of the Felon, his apparell and horse, &c. if it may be.
Hunting, hawking and hawkes. CHAP. 40.
1. VPon information given to any Iustice of peace of the County where any unlawfull hunting of Deere, or Conies, by night or with painted faces, or other disguising, in any Forrest, parke, or warren, shall be had of any person to be suspected thereof, that Iustice may make a warrant to the Sheriffe,1. H. 7. ca. 7. P. Iust. 16. Constable, Bailiffe, or other officers to take the party and to bring him before him, or before any other Iustice of peace of the same County who may examine him of that hunting,Dalton 60. and of the doers thereof. And if he conceale that hunting or any offendor with him therein, then the said concealement shall be felony in such concealer, but if he then confesse the truth of all that he shall be examined of, and knoweth in that behalfe, then his offence of hunting shall be but Trespasse, and fineable, the fine to bee assessed at the next general Sessions of the peace by the Iustices there.
[Page 153]2. Also to disobey such a warrant, or to make rescous thereupon,1. H. 7. ca. 7. so that the execution of the same warrant thereby bee not had, is felonie.
3. The Iu. of P. that shall take the examination of an offendor for unlawfull hunting in Parks, &c. as aforesaid,Dalton 66. may after such examination, bind the offendor to his good behaviour, as it seemeth, to the end he may be forth-comming, till the offence and residue of the offendors be fully examined, otherwise if it shall after appeare, that the offendor hath-concealed any thing whereby the offence becommeth felony, then the offendor perhaps will not be found.
4. Also such unlawfull hunting, if it bee by three or moe,Ibid. will prove a Riot.
5. And yet hunting and hawking and such other pastimes,Co. 11. 86. 87. every man may use upon his owne lands at his pleasure, so farre as they be not restrained by Act of Parliament, but no man may make a parke or warren within his owne ground without the Kings grant or licence, and therefore such parke or warren made without licence seeme not to be within the statute of 1. H. 7. 7.
6. Whosoever findeth any Hawke that is lost, and doth not immediately bring the same to the Sheriffe to be proclaimed, but doth imbezell the same, it is felony. See more of Hawkes before in the chapter of Felony by statute, & 34. E. 3. ca. 21. & 37. E. 3. ca. 19.
Inrolements. CHAP. 41.
1.10. Carol. ca. 1. in Ireland. ANy one Iustice of Peace may joyne with the Clerke of the Peace in taking the inrolement of any Indenture of bargaine and sale of land, &c. lying in that County where he is Iustice of peace according to the statute of 10. Caroli.
2.Co. 5. 92. b. P. 1. Co. 5. 1. b. Daliso 4. El. Dyer. 218. But such deed (and all other deeds to be inrolled according to this statute) must be indented re vera, and must be inrolled within six moneths after the date of the same Indenture, and if it have no date then within six moneths after the delivery of the deed, or if it be inrolled, the very day of the date of the deed, or the very last day of the six moneths, it is sufficient.
3. Note herein you must accompt 28. dayes to every moneth and not above, sc. foure weeks to the moneth.
4. Note also the difference,Co. 6. 62. when a statute accompteth by the yeare, halfe yeare, or quarter, and when by the moneth for a yeare, halfe a yeare, or a quarter of a yeare shall be accompted according to the Kalender, and by the dayes in the Kalender, and not after 28. dayes to the moneth. And a yeare or a twelve moneth (in the singular number) includes the whole yeare according to the Kalender, but twelve moneths (in the plurall number) or eight moneths,Except in a quare imped. See Co. ibid. or six moneths, &c. shall be accompted after eight and Twenty dayes to [Page 154] every moneth, for the moneth by the common law of England is but eight and twenty dayes: and so,
Whereas
- three moneths
- six moneths
- twelve months
hath but
dayes.
The
- quarter of a yeare
- halfe of a yeare
- yeare
hath
dayes.
Dyer. 345.
Ter centum, ter viginti, cum quinque diebus,
Sex horas, neque plus integer Annus habet.
5. And as to these six houres, the Law giveth no regard to them, and yet these six houres, every fourth yeare doe make a day, and so make the leape yeare, and this leape yeare containeth in it 366. dayes.
6. Note also for the yeare when in an indictment or other writing or deed it shall be set downe (or the writing shall be dated) Anno Domini 1617. it must be accompted according to the computation of the Church of England, which beginneth the yeare upon the 25. day of March.
Labourers, Artificers and Servants. CHAP. 42.
1. LAbour and Industrie is the life of a common wealth: It produceth peace and plenty, but Idlenesse produceth rebellions, murders, thefts, breach of the peace, Rapine, spoyle, poverty, and all manner of miserie, so as Idlenesse as it is a great sinne before God, and a breach of the royall law, so it is an offence against the common law, and against the good governement of the people, and therefore the Iustice of peace by the first Assignavimus of the Commission ought to imprison such Idlers, untill they finde sureties to labour or for their good behaviour, and yet for the rooting out of Idlenesse and inforcing of labour and industry divers statutes have been made in England which are of force in this kingdome of Ireland, which statutes I shall here expresse in order of time, and first in 23. Ed. 3. c. 1. It was enacted that
Men, Women. xl. yeares old. 13. Ed. 3. ca. 1.1. Every man or woman of what condition he be, free or bound, able in body, and within the age of Forty yeares, not living in Merchandise, nor exercising any Craft, nor having of his owne whereof he may live,Requ [...]ed to serve, wages. nor any lands about tillage, whereof hee may imploy himselfe, and not serving any others, if he inconvenient service (his estate considered) be required to serve,33. H. 1. ca. 9. shall be bounden to serve him which so shall require him, (the wages are to be rated by the Iustices [Page 155] of peace according to a statute made in Ireland in 33. H. 8. ca. 9.) Provided alwaies that the Lords be preferred before other in their bondmen or their land tenants, so in their services to be retained. So that neverthelesse the said Lords shall retaine no more then be necessarie for them, and if any such man or woman, being so required to serve will not the same doe, and that proved by two true men before the Sheriffe, or Bailiffes of our Soveraigne Lord the King, or the Constable of the Towne where the same shall happen to be done, he shall anone be taken by them, or any of them,Imprison. and committed to the next goale there to remaine under strait keeping, till he finde suretieSurety. to serve in the forme aforesaid, 23. E. 3. de servient. cap. 1.
2. If any reaper, mower, or other workman,Depart without license. or servant of what estate or condition that he be, retained in any mans service, do depart from the said service without reasonable cause or licence, before the Terme agreed, he shall have paine of imprisonment, and that none under the same paine presume to receive or to retaine any such in his service, Anno 23. E. 3. cap. 2. Receive to service.
3. That no man pay or promise to pay to any servant any more wages,Wages. liveries, meede or salarie then was wont, nor that any in other manner shall demand or receive the same upon painePaine. of doubling of that, that so shall be paid, promised, required, or received to him which thereof shall feele himselfe grieved,23. Ed. 3. ca. 3. pursuing for the same. Ann. 23. Ed. 3. ca. 3. Cap. 2. Stat. de servient.
4. If the LordsLords. of the Townes or Mannors presume in any point to come against this present ordinance, either by them, or by their servants, then pursuit shall be made against them in the counties, Wapentakes, Tithings, or such other Courts,Damages. for the treble paine payed or promised by them or their servants in the forme aforesaid, and if any hath covenanted with any to serve for more wages,Covenant. he shall not be bound, by reason of the same covenant, to pay more then at another time was wont to be paid to such person, nor upon the said paine shall presume any more to pay, An. 23. Ed. 3. ca. 4. But now the wages must be such as shall be rated by the Iustices of peace according to the said statute of 33. H. 8. ca. 9. 33. H. 8. ca. 9. in Ireland.
5. That Sadlers, Skinners, Whitetawers, Cordwaynees, Taylors,Artificers. Smiths, Carpenters, Masons, Tylers, Shipwrights, Carters, and all other Artificers and workemen shall not take for their labour and workemanshipWorkemanship. above the same that was wont to be such paid to such persons, and if any man take more, he shall be committed to the next gaole in manner as is aforesaid. Ann. 23. Ed. 3. cap. 5. 33. H. 8. ca. 9. in Ireland. But this statute also as to the wages only is altered by the said statute of 33. H. 8. ca. 9.
6. Anno 23. Ed. 3. de servi. ca. 7. It was enacted that all the forfeitures given by this statute de servientibus against Labourers should be levyed of every of them,23. Ed. 3. ca. 7. and should be imployed to the payment of the tenth and fifteene then granted, and after to the Kings use, to be [Page 156] levied by certaine appointed in the statute, neverthelesse he that will may sue for these forfeitures to have them to his owne use.
Threshers.7. That none take for the threshing of a quarter of wheate, or rye, over two pence halfe penny, and the quarter of Barley, Beanes, Pease, and Oates, one peny halfe peny, if so much were wont to be given, and in the Countrey where it is used to reape by certaine sheaves, and to thresh by certaine bushels they shall take no more nor in other manner then was wont, and that the same servant be sworne two times in the yeare before Lords,Oath. Stewards. Bailiffes. Constables. Stewards, Bailiffes, and Constables, of every Towne to hold and doe these ordinances, and that none of them goe out of the Towne where he dwelleth in the winter to serve in the Summer, if he may have service in the same Towne, taking as before is said,Refuse. Stocks. Imprison. Stocks. and that those which refuse to make such Oath, or to performe that, that they be sworne to, or have taken upon them, shall be put in the Stocks, by the said Lords, Stewards, Bailiffes, and Constables of the Townes by three dayes or more, or sent to the next gaole, thereto remaine till they will justifie themselves, and that Stocks be made in every Towne by such occasion. Anno 25. Ed. 3. de servien. cap. 2. But the wages in this also are to be regulated by the said statute of 33. H. 8.
Artificers.8. That Carpenters, Masons, and Tylers, and other workemen of houses,33. H. 8. ca. 9. in Ireland. shall not take by the day for their worke but in manner as they were wont Anno 25. E. 3. cap. 3. but wages in this case also is to be regulated by the said statute of 33. H. 8. ca. 9.
Plaisterers, &c. Wages.9. Plaisterers and other workers of Mudwals, and their knaves, by the same manner without meate or drinke (S. from Easter to Saint Michael) and from that time lesse,33. H. 8. ca. 9. in Ireland. according to the rate and discretion of the Iustices which shall be thereto assigned, Ann. 25. E. 3. cap. 3. & 33. H. 8. ca. 9. in Ireland.
10. Goldsmiths, Sadlers, Horsesmiths, Spurriers, Tanners, Curriers,Artificers. Tawers of Leather, Taylors, and all other workemen, Artificers, and labourers, and all other servants here not specifyed shall be sworne before the Iustices,Oath. to doe and use their crafts, and offices in the manner as they were wont to doe without refusing the same because of this ordinance. And if any of the said servants, Labourers, workemen, or Artificers, after such oath made, come against this ordinance he shall be punished by Fine and ransome,Iustice. and imprisonment after the discretion of the Iustices,Imprison. Anno 25. Ed. 3. cap. 4. the wages also in this case are to be regulated by the said statute of 33. H. 8. ca. 9. by the Iustices of peace in the Quarter Sessions next after Easter and Michaelmas halfe yearely.
Stewards. Constables. Oath. Inquitie. Iustices.11. The said Stewards, Bailiffes, and Constables of the said Townes shall be sworne before the same Iustices, to inquire diligently by all the good wayes they may of all them that come against this ordinance, and to certifie the same Iustices of their names at all times [Page 157] when they shall come into the Countrey to make their Sessions, so that the same Iustices in certification of the same, Stewards, Bailiffes, and Constables of the names of the Rebels, shall doe them to be attached by their bodies to be before the said Iustices to answer of such contempts,Arrest. Fine. so that they make fine and ransome to the King in case they be attainted. And moreover to be commanded to prison, there to remaine till they have found surety to serve and doe their worke, and in case that any of them come against his oath, and be thereof attainted, he shall have imprisonment of a quarter of a yeare,Attaint. so that at every time that he offendeth and is convict he shall have double paine, and that the same Iustices,Imprison. at every time they come into the Countrey shall inquire of the said Stewards, Bailiffes,Inquitie. and Constables, if they have made a good and lawfull certificate or any concealement for gift, procurement, or affinity,Inkeepers. and punish them by fine and ransome if they be found guilty, and that the same Iustices have power to enquire and make due punishment of the said ministers,Vitailers. labourers, workemen, and other servants, aswell at the suite of the party as by presentment, and to heare and determine, and put the things in execution by the Exigend, after the first Capias, if need be, and to depute other under them as many and such as they shall see best for keeping of the same ordinance.Oier. & Ter. And that they which will sue against such servants, workemen, labourers, and Artificers,Exigent. for excesse taking of them, and they be thereof attainted at their suit,25. E. 3. ca. 6. they shall have againe such excesse, and in case that none will sue to have againe such excesse, then it shall be levied of the said servants, labourers,excesse taking. workemen, and Artificers,Quinzime. and delivered to the Collectors of the Quinzime in allevation of the Townes where such excesses were taken, Anno 25. Ed. 3. ca. 6.
12. No Sheriffes, Constables, Bailiffes, Gaolers,Sheriffes. Constables. Bailiffes. Gaolers. the Clerkes of the Iustices, or of the Sheriffes, nor other Ministers, whatsoever they be shall take any thing for the cause of their office of the same servants, for fees, suit of prison, nor in other manner, and if they have any thing taken in such manner,Fee. Quinzime. Dismes. they shall deliver the same to the Collectors of the Disme and Quinzimes, in ayd of the commons, for the time that the Disme and Quinzime doth runne, aswell for the time past as for the time to come,Inquests. Iunices. and that the said Iustices enquire in their Sessions if the said Ministers have any thing received of the same servants, and that they shall finde by such inquest that the said Ministers have received, the same Iustices shall levy of every of the said ministers, and deliver to the said collectors,Fine [...], amerciaments. together with the excesse and fines and ransomes made, and also the amerciaments of all them which shall be amerced before the said Iustices in allevation of the said Townes as afore is said,Collectors. and in case the excesse found in one Towne,Indentures. doth exceed the quantity of the Quinzime of the said Towne the remnant of such excesse shall be levyed and payed by the said Collectors, to the next poore Townes, in ayd of their Quinzime, by [Page 158] advice of the said Iustices, and that the fines and ransomes, excesses and amerciaments of the said servants, labourers, and Artificers for the time to come running of the said Quinzime, be delivered to the said Collectors in the forme aforesaid, by Indentures to be made betwixt them and the Iustices, so that the Collectors may be charged by their account by the said Indentures, in case that the said fines, ransomes, amerciaments, and excesses, be not payed in aid of the said Quinzime, and ceasing the said Quinzime, it shall be levied to the Kings use,Account. and answered by the Sheriffes of the Counties, Anno 25. Ed. 3. cap. 7. Stat. 2.
13. Those that speake in the presence of the said Iustices, or other things doe in their absence or presence in incouraging or maintenance of the said servants,Encourage. labourers, or Artificers, against this ordinance shall be grievously punished by the discretion of the same Iustices,Punish. and if any of the said servants, Labourers, or Artificers, doe fly from one County to another because of this ordinance, that the Sheriffes of the Counties where such fugitive persons shall be found shall doe them,Flie. Sheriffes. to be taken at the commandement of the Iustices of the Counties from whence they shall fly, and bring them to the chiefe Gaole of the same County there to abide till the next Sessions of the same Iustices, and that the Sheriffe returne the same commandement, before the same Iustices at their next Sessions, and that this Ordinance be holden and kept in all Cities and Burroughes and in other places throughout the land aswell within Franchises as without, Anno 25. Ed. 3. cap. 8. Statut. 2.
14. The statute of Labourers of old time made, shall stand in all points except the pecuniary paine, which from henceforth is accorded, that the labourers shall not be punished by fine and ransome, and it is assented that the said statute shall be inforced in punishment of labourers in the forme following that is to say, that the Lords of Townes may take and imprison them by fifteene dayes, if they will not justifie themselves, and then to send them to the next goale, there to abide till they will justifie themselves by the forme of the statute, And that the Sheriffe, Gaoler, nor other minister shall not let them to no mainprise nor bayle, and if he do, he shall pay to the King ten pounds, and to the partie 100. s. Nor that the Sheriffe, Gaoler, nor other minister shall take no Fee, nor porterage of prison, neither at his entring nor at his comming out upon the same paine, And that aswell Carpenters and Masons take from henceforth wages by the day, and that all Alliances and Covins of Masons and Carpenters and congregations, Chapiters, ordinances and oathes betwixt them made, or to be made, shall from henceforth be voide, and wholly adnulled, so that every Mason and Carpenter of what condition that he be, shall be compelled by his master to whom he serveth, to doe every work that to him pertaineth, to doe either of freestone or roughstone, and also every Carpenter in his degree: But it shall be lawfully to every [Page 159] Lord or other to make bargaine and covenant of their worke in grosse with such labourers, and Artificers, when please them, so that they performe such workes well and lawfully according to the bargaine or Covenant with them thereof made, Anno 34. Ed. 3. cap. 9.
15. Of Labourers and Artificers that absent them out of their services in other Townes or another County, the party shall have the suit before the Iustices, and that the Sheriffe take him at the first day, as is contained in the statute, if he be found, and doe of him execution, as afore is said, and if he returne that he is not found, he shall have an Exigent at the first day and the same pursue till he be outlawed, and after the Outlarie a writ of the same Iustices shall be sent to every Sheriffe of Ireland, that the party will sue to take him, and to send him to the Sheriffe of the County where he is outlawed, and when he shall be there brought, he shall have there imprisonment till he will justifie himselfe and have made gree to the party, and neverthelesse for the falsitie he shall be burnt in the forehead, with an Iron made and formed to this letter F. in token of falsitie, if the party grieved the same will sue, but this burning is not to be executed, unlesse it be by the advice of the Iustices, and the Iron shall abide in the custody of the Sheriffe. And that the Sheriffe and some Bailiffe of the Franchise be attending to the plaintiffe to put this ordinance in execution upon paine aforesaid, and that no labourer, servant, nor Artificer, shall take no manner of wages the festivall dayes, Anno 34. Ed. 3. ca. 10.
16. If any labourer, servant, or Artificer, absent himselfe in any City, or Burrough, and the party plainetiffe come to the Mayor, and Bailiffes, and require delivery of his servant, they shall make him delivery without delay, and if they refuse to doe the same, the party shall have his suit against the Mayors, and Bailiffes, before the Iustices of Labourers, (which the Iustices of peace by their Commission now are) and if they be thereof attainted they shall pay to the King 10. l. and to the party 100. s. Anno 34. Ed. 3. cap. 11.
17. The statutes and ordinances made of labourers and Artificers be holden and kept and duely executed, and thereupon Commission shall be made to the Iustices of peace in every County, to heare and determine the points of the said statutes, and to award damages at the suit of the party according to the quantitie of his Trespasse, Anno 42. Ed. 3. cap. 6.
18. All the statutes of Artificers, Labourers, Servants, and Victualers, made aswell in the time of our Soveraigne Lord the King that now is, as in the time of his noble grandfather (whom God assoile) not repealed shall be firmely holden and kept and duely executed, and that the said Artificers, Labourers, Servants, and Victualers, be duely justified by the Iustices of peace, aswell at the suit of the King, as of the party, according as the said Statutes require, and that the Mayors, Bailiffes, and Stewards of Lords and Constables of Townes [Page 160] doe duely their offices, touching such Artificers, Servants, Labourers, and Victualers, and that a paire of Stocks be in every Towne to justifie the same Servants, and Labourers, as is ordained in the said statutes; And moreover it is ordained and assented that no Servant, nor Labourer, be he man or woman, shall depart at the end of his Terme out of the hundred, Rape, or Weapontake, where he is dwelling to serve or dwell elsewhere, or by colour to goe from thence in pilgrimage, unlesse he bring a letter patent, containing the cause of his going and the time of his Terme, if he ought to returne, under the Kings Seale which for this intent shall be assigned and delivered to the keeping of some good man of the hundred, Rape, Wapentake, City, or Borrough, after the discretion of the Iustices of peace to be kept and lawfully to make such letters when it needeth, and not in any other manner by his owne Oath, and that about the same Seale shall be written the name of the County, and overtwhart the said Seale the name of the hundred, Rape, or Wapentake, City, or Borrough, and also if any Servant, or Labourer, be found in any City, or Borrough, or elsewhere comming from any place, wandring without such letter he shall be forthwith taken by the said Mayors, Bailiffes, Stewards, or Constables, and put in the Stocks, and kept till he hath found surety to returne to his service, or to serve or labour in the Towne from whence he came, till he have such letter to depart for a reasonable cause, and it is to be remembred that a Servant or Labourer may freely depart out of his service, at the end of his Terme, and to serve in another place, so that he be in a certainty with whom, and shall have such a letter as before, but the meaning of this ordinance is not, that any Servants which shall ride or goe in the businesse of their Lords or Masters, shall be comprised within the same ordinance for the time of the same businesse, and if any beare such letter, which may be found forged or false, he shall have imprisonment of Forty dayes for the falsity; and further till he hath found surety to returne or serve to labour as is aforesaid, and that none receive Servant or Labourer, going out of their hundred, Rape, or Wapentake, City, or Borrough, without letter Testimoniall nor with letter Testimoniall above one night, except it be for cause of sicknesse, or other cause reasonable, or which will and may serve and labour thereby the fame Testimoniall upon a paine to be limitted by the Iustice of peace, & that aswell Artificers, and people of mistery, as servants and apprentices, which be of no great avoyer, and of which craft or mistery a man hath no great need in harvest time, shall be compelled to serve in harvest to cut, gather and bring in Corne, and that these statutes be duly executed by Mayors, Bailiffes, Stewards, and Constables of Townes upon paine limitted and judged by the said Iustices of peace in their Sessions, and that no man take above a peny for the making, Sealing and delivering of such letter, Anno 12. Ric. 2. cap. 2.
19. That the ordinances aforesaid of Servants and Labourers, [Page 161] Beggers, and Vagabonds, shall hold place, and be executed aswell in Cities and Borroughes, as in other Counties and places within the Realme aswell within the Franchises as without, and that the Sheriffes, Mayors, Bailiffes, and keepers of the Gaoles shall be holden and charged to receive the said Servants, Labourers, Beggers, Vagabonds, and to keepe them in prison in the forme aforesaid, without letting to mainprise, or to baile, and without Fee or any other thing taking of them, by themselfe or by any other as long as they be so imprisoned or at their going forth upon paine to pay an hundred shillings to our soveraigne Lord the King, Anno 12. R. 2. ca. 9.
20. That the Iustices of peace in every County, in two of their Sessions to be holden betwixt the Feast of Easter and Saint Michael shall make proclamation by their discretion, after the dearth of victuals, how much every Mason, Carpenter, Tyler, and other Craftesmen, workemen, and labourers, by the day aswell in harvest as in other times of the yeare, after their degree shall take by the day with meate and drinke, or without meate and drinke, betweene the two Sessions aforesaid notwithstanding the statute thereof heretofore made, and that every man obey to such proclamations from time to time as a thing done by statute, Anno 13. Ri. 2. cap. 8. vide 33. H. 8. cap. 9. in Ireland. that these proclamations must be in the next Sessions after Easter and Michaelmas.
21. That no Labourer be retained to worke by the weeke, not that no Labourers, Carpenters, Masons, Tilets, Plaisterers, Daubers, Coverers of houses, nor none other Labourers, shall take any hire for the holy dayes, nor for the Evens of Feasts where they doe not labour, but till the houre of Noone, but only for the halfe day; upon the paine that such Labourer, Carpenter, Mason, Tiler, Plaisterer, Dauber, Coverer of houses, or any other Labourer that taketh contrary to this statute shall pay to the King for every time that he doth so contrary 20. s. Anno 4. H. 4. ca. 14.
22. The statute of Labourers made at Canterbury, and all other good statutes of Labourers, made and not repealed, be firmely holden and kept, and put in due execution, and moreover that the Iustices of peace have power to send their writs for such fugitive Laborers to every Sheriffe of the Realme of England, and to make such processes as the statute of Anno 34. Ed. 3. cap. 10. requireth to bring them before them, to answere to our soveraigne Lord the King, and to the parties of the contempts, and Trespasses made or done against the ordinances and statutes aforesaid, in like manner as the Iustices have power to send to every Sheriffe for the Theeves before them indicted; And also that all the statutes and ordinances of Labourers, servants, and artificers, before this time made, and not repealed be exemplified under the great Seale, and sent to every Sheriffe of the Realme, thereof to make Proclamation in full County, and after this Proclamation so made, that every Sheriffe shall cause the same Ex-emplification [Page 162] to him directed to be delivered to the Iustices of the peace in his County, named in the Quorum, or to one of them, to remaine with such Iustices which be or shall be for the better putting of the aforesaid statutes and ordinances in due execution; And also that the Iustices of peace from henceforth have power to examine aswell all manner of Labourers and servants and their masters, as Artificers, by their oathes of all things by them done contrary to the said ordinances and statutes, and upon that to punish them upon their confession, after the effect of the statutes and ordinances aforesaid, as though they were convict by Inquest, and that the Sheriffe in every Shire of the Realme shall doe well and duely in his office in this behalfe upon paine to lose and to forfeit to our Soveraigne Lord the King Twenty pounds, Anno 2. H. 5. cap. 4.
23. If any servant of husbandrie, purposing to depart from his Master at the end of his Terme, at the midest of his Terme or otherwise, make a Covenant before with another man to serve him for the next yeare, if he be in such case as the law will compell him to serve that the said servant, and he which so shall make covenant with him at the middest of the said Terme or before, shall give warning to the master of the said servant of the said Covenant so newly made, so that the same master may provide another servant against the end of his Terme, and if any covenant with any such servant be otherwise made, or such warning in manner and forme aforesaid not had, that the same Covenant shall be voide, and that the same servant be compelled to serve his first master for the next yeare, except that a lawfull cause being of a latter time require the contrary, and if any person refuse to serve or labour for the wages assessed by the Iustices of peace, then every Iustice of peace in their Counties shall have power at every time, to call them to examination of the same, and such as they shall finde defective to commit to the gaole, there to remaine till they have found sufficient surety to serve, and labour in forme by the law required; And if any servant, Artificer, workman or labourer doe contrary to the premisses or deny his service, occupation of labour, by reason of not giving of salarie or wages contrary to these statutes, that hee shall lose to the partie that will sue in this behalfe 20. s. and that the said Iustices of peace shall have power to heare and determine all manner of offences done contrary to the forme of this statute, aswell at the Kings suit as at the parties, And that every of the Kings leige people may have the suit against every person that shall offend in any point against this statute, and the processe shall be by Attachment, Capias and Exigent, and that the Iustices of peace shall assesse no fyne upon any which shall be convict before them, of any thing done to the contrary to any statute of Labourers or Artificers, or for this cause to put him in the good grace of out Soveraigne Lord the King under three shillings foure pence: And also that the Iustices of peace thorow the Realme two times every [Page 163] yeare shall doe openly to be proclaimed in their Sessions, all the statutes of Labourers, Artificers, Hostlers, Victualers; servants and Vagabonds before this time made, and not revoked with this statute; Also that by colour of the Tenure of lesse lands, then the husbandry of the same shall suffice to the continuall occupation of one man, no man shall be excused to serve by they yeare, upon the paine to be justified as a Vagabond, also that Iustices of peace shall have power to take all servants retained with any person by colour of Husbandrie, and not duely occupied about the same, which servants ought by the law to be servants of Husbandrie, to such as shall require their service, and to justifie them in every point as the same Iustices have power to justifie Vagabonds. 23. H. 6. ca. 13.
24. And now because the rating and assessing of the wages of Labourers, Artificers and Servants by force of an Act of Parliament made in Ireland in Anno 33. H. 8. cap. 9. 33. H. 8. ca. 9. in Ireland. is to be done by the Iustices of peace, so as by this statute all the former statutes are altered in that particular point of wages only: It will not be amisse to recite the statute verbatim which is as followeth.
25. Forasmuch as prices of victuals, cloth, and other necessaries for Labourers, Servants at Husbandry, and Artificers yearely change aswell sometime by reason of death and scarcenesse of corne and victuall as otherwise, so that hard it is to limit in certaine what wages Servants at Husbandry should take by the yeare, and other Artificers and Labourers by the day, by reason whereof they now aske and take unreasonable wages within the land of Ireland. For reformation whereof, be it enacted by authority of this present Parliament, that the Iustice of peace, in every County within this land of Ireland, yearely in their Sessions to be holden within one moneth next after the Feast of Easter, and one moneth next after the Feast of Saint Michael the Archangell, shall make Proclamations by their discretion having respect to such prices, as victuals, cloth, and other necessaries then shall be at, how much every Mason, Carpenter, Sclauter, and every other Artificer, and Labourer, shall take by the day aswell in harvest season as any other time of the yeare, with meate and drinke, and how much without meate and drinke, betwixt both the said Sessions. And also at the Sessions to be holden next after the Feast of Easter how much every servant at Husbandry shall take by the yeare following with meate and drinke, and that every of them shall obey such Proclamations from time to time, as a thing made and established by Act of Parliament for a law in that behalfe upon paine of forfeiture every one of the said Carpenters, Sclauters, Artificers, Labourers, and Servants, that shall take any thing contrary to the said Proclamation or Proclamations, the thing so taken, and imprisonment of their bodyes, by the discretion of the said Iustices, and that Iustices of peace at any Sessions, shall enquire, heare, and determine the same offences, and thalffendell of the said forfeiture to be to the [Page 164] Kings highnesse, and the other halfe to him or them that shall give information of the same forfeiture, and that all and every Act before this time made concerning the limitation of wages for the said Servants, Artificers, and Labourers, be in that point only voide and of none effect within this land, and this Act to endure till the next Parliament within this land to be holden.
11. Eliz. ca. 5. in Ireland.26. Which statute by another Act of Parliament made in Ireland in Anno 11. Eliz. cap. 5. is made perpetuall.
27. And having now set forth the statutes concerning Labourers, Artificers, and Servants, it will be necessary for the better information of the Iustices of peace to make some exposition of the said statute of 23. Ed. 3. which is the ground of all the rest, which I shall briefely doe in these eight particulars following:
1. First, what the common Law was concerning Labourers, Artificers, and Servants, before the said statute.
2. Secondly, who are compellable to labour by the said statute of 23. Ed. 3.
3. What is a good retainer, within that statute, and what not.
4. What be good causes for a servant to depart from his service within his Terme, and what not.
5. How and in what manner the master may discharge the servant, apprentice, or other Artificer of his service.
6. Sixtly, who may lawfully take a servant out of the service of his master with whom he is retained, without the danger of the said statute.
7. Seventhly, In what cases a man may receive or retaine a servant that is formerly retained by another.
8. And lastly, who shall in Law be taken to be a servant within the meaning of the said statute of 23. Ed. 3.
The common Law before the statutes.28. For the First, by the common Law before the said statutes, a Iustice of peace by the first Assignavimus of the Commission pro bono regimine, might commit to prison all Idle wanderers which were able to worke and would not (which had no meanes or livelyhood of their owne) to remaine in prison untill they should finde surety either to betake themselves to some honest labour, or else to be bound to their good behaviour, and this is agreeable to the Law of God as appeares in the second Epistle of Saint Paul to the Thessalonians the third Chapter, where Saint Paul giveth a commandement and a precept, that if any would not worke he should not eate, (that is) he should not eate the fruite of other mens labours, but should worke and eate his owne bread and it is plaine and manifest in the kingdome of Ireland, that Idlenesse hath beene the chiefe occasion of many rebellions, and yet is a great occasion of the poverty of that kingdome, and for the better suppressing of all such Idle living diverse good Lawes and statutes have beene enacted and made in that kingdome as namely in Anno. 25. H. 6. ca. 7. It was enacted that the Sonnes of Husbandmen [Page 165] and Labourers should be Labourers and travellers upon the ground, as they were in old time, and in all other workes and labours lawfull and honest, according to their state, and if it fortune that any such sonne of an Husbandman or of a Labourer doe the contrary, and thereof be lawfully convicted before any Iudge of the King, or Iudge of Franchise, that he shall have the imprisonment of one yeare, and over that he shall make fyne to the King, or to the Lord of the Franchise, according to the discretion of the Iudge before whom he is convicted.
29.11. Caroli c. 16. And by another sta [...]ute lately made in Ireland in the eleventh yeare of the Kings Majestie that now is. It is enacted that if any person or persons that hath no meanes of ability of his owne, or sufficient meanes of support from his parents and kindred, that shall walke up and downe the Countrey with their Fosterers or kindred and retinue with one or more Greyhound or Greyhounds or otherwise, or that shall casher, lodge or sesse themselves, their followers, their horses, or their Greyhounds upon the Inhabitants of the Countrey, or shall directly or indirectly exact meat, drinke, or money from them, or shall crave any helpes in such sort as the poore people dare not deny the same for feare of some scandalous Rime or song to be made upon them, or some worse inconvenience to be done them, that it shall bee lawfull for every Iustice of peace of each County within the Realme of Ireland, and for the Iustices of Assise in their severall Circuits, to apprehend or cause to be apprehended all such person or persons, and him or them to bind to their loyaltie and allegeance or allegeances, or to the good behaviour, as in the discretion of such Iustices shall seeme meete, and to commit the said persons to the common gaole of the said County, untill he or they shall finde bonds by recognisance as aforesaid, with very good sureties, which the Iustice of peace shall returne all and every such Bonds or Recognisances, so by him to be taken, at the next generall Sessions of the peace for the said County, where the same shall be taken, and all Sheriffes, Bailiffes, Constables, Provost Marshals, and other his Majesties loyall subjects are required to be ayding, assisting and helpfull to every Iustice of peace and Iustices of Assize in the apprehending of the said Cosherers, and wandring Idlers, when they shall be thereunto required upon paine of such fine or fines to be set upon them, for their neglect, as upon conviction before the Iustices of peace or before the Iustices of Assise at their discretion shall be set upon them for their said default.
30. Both which last mentioned statutes are in a manner but a declaration of the common Law, for the constant course in Ireland hath ever beene at the generall Sessions of the peace and at the Assises to enquire of such Idlers, and to fine and imprison them, untill they shall finde surety to betake themselves to some honest labour, or else to be bound to their good behaviour at the discretion of the Iudge.
[Page 166]31. So likewise at the common Law, if a man had taken my servant from me, I might have had an action of Trespasse, Quare vi & armis, &c. but if he had procured the servant to depart, who did depart accordingly and he retained him, or if he had departed of his owne head, and another had retained him knowing of the first retainer, an Action did not lye at the common Law, Quare vi & armis, &c. but an action upon the case did lye upon the departure by such procurement, and in case where the servant did depart without any such procurement and was retained by another,11. H. 4. 21. & 22. there no action at all did lye by the common Law, and therefore the said statute of 23. Ed. 3. was made, which gives an action in these cases. 11. H. 4. 21. & 22.
Co. lib. 11. fo. 86.32. Likewise by the common Law no man may be prohibited to worke in any lawfull trade, for the Law abhorreth Idlenesse, Coke lib. 11. fo. 86.
33. Also by the common Law no man is prohibited to use diverse misteries or Trades at his pleasure, and although this was prohibited by the statute of 37. Ed. 3. cap. 6. yet shortly after at the next Parliament (that restraint of free Trade being found prejudiciall to the common wealth) it was enacted againe that all persons should be as free to use severall Trades as they were at anytime before,Co. lib. 11. fo. 54. as appeares by the statute of 38. Ed. 3. ca. 2. and therefore without an Act of Parliament no man may be restrained either to worke in any lawfull Trade or to use diverse mysteries or Trades, by any ordinances or by-lawes made to restraine the same, but such by-lawes and ordinances are meerely voide and against the law.
34. Also it is lawfull for any person to use privately any Trade, as of a Cooke, Brewer, Baker, Taylor, or such like, in his owne house, or in the house of any other, for the private use of the family, although such person were never Apprentice to the Trade.
Who are compellable to serve by the statute.35. By the statute of 23. Ed. 3. and the rest of the statutes above mentioned, a Iustice of peace may command vagrant persons to prison if they will not serve and labour, and they may command the Gaoler to let them at large without other writ,Fitz Na. Br. fo. 168. b. and if a man be retained in service and goe vagrant out of his service another man may compell him to serve or labour, because he is out of service, Fitz. Na. Br. fo. 168 b.
Fitz. Na. Br. fo. 168. 1.36. He which hath not lands sufficient of his owne to manure or hath not some mistery or occupation to live upon, shall be compelled to serve and labour by the said statute of 23. Ed. 3. Fitz. Na. Br. fol. 168. i.
37. In an action upon the statute of Labourers the defendant saith that he holdeth land, for which he ought to doe certaine dayes works yearly to the Bishop of D. at his Mannor of S. and demands Iudgement if he shall be compelled to serve, and the plaintiffe saith that he had but six acres for which he shall pay but six dayes worke, upon which the defendant demurred in law, and it was awarded by the [Page 167] Court that the plaintiffe shall be barred of his action, the reason is,40. Ed. 3. 39. that if he shall bee retained with another, it will not be lawfull for him to depart from him to doe the six dayes worke,Brooke Lab. 5. nor to doe any worke, 40. Ed. 3. 39. Brooke Labourers 5.
38. An Infant of the age of five yeares is not compellable to serve by the said statute by reason of his disability of body,41. Ed. 3. 17. Brooke Lab. 6. for the statute requireth that he should be potens in corpore. 41. Ed. 3. 17. Brooke Labourers 6.
39. In an action of false imprisonment the defendant justifieth (being Lord of the tenant) because the plaintife was vagrant, and I.N. complained for lacke of a servant, and required him to serve, and he would not, wherefore he put him in the Stocks, and the plaintiffe said that he had two Acres of land, five sheepe and ten Cowes to the value of 20. l. to be occupied, and the defendant said that hee had but a cottage and no land, and so not sufficient to be occupied, and the other said and maintained that he had sufficient Chattels to bee occupied, and thereupon the issue was joyned,47. Ed. 3. 18. Br. Lab. 14. which proves that if his Chattels were sufficient to imploy him in labour, he is not compellable to serve as a servant. 47. Ed. 3. 18. Br. Lab. 14.
40. An action was brought upon the statute of Labourers against a litle Damosell of the age of ten yeares upon retainer and departure, and the plaintiffe declared against her, and the defendant said that she is but of the age of Ten yeares, and demanded Iudgement of action, and because it appeared to the Court by inspection that shee was not of age to make a Covenant, therefore the writ was abated,2. H. 4. 5. Br. Lab. 19. and there Rickhill said that she is not of age to bind herselfe by Covenant, ante annos nubiles, that is to say before the age of 12. yeares, 2. H. 4. 5. Br. Lab. 19.
41. In an action upon the statute of Labourers,7. H 4. 5. Br. Lab. 20. it was said that the statute of Anno. 23. Ed. 3. cap. 1. is, that quilibet potens in corpore ought to serve, and by Hankford an Infant of 12. yeares retained ought to serve 7. H. 4. 5. Br. Lab. 20.
42. A man brought an Action upon the statute of Labourers for taking his servant out of his possession,38. Ed. 3. 5. Br. Lab. 24. the defendant said that the servant is an Infant under the age of Ten yeares, and because the plaintiffe could not gainsay it, he was barred of his action, 38. Ed. 3. 5. Br. Lab. 24.
43. An Artificer as a Carpenter, Taylor, Shooemaker, and such like shall not be compelled to serve by the statute of husbandrie, contrarie of servants of husbandrie, and therefore in an action of debt brought by the Carpenter, Taylor, or such like for his wages, the master may wage his law, but not in an action brought by a servant in husbandrie, and yet if a Carpenter, Taylor, Shooemaker,33. H. 6. 14. Br. Lab. 36. or other Artificer will be retained in service and depart, an action lies of the departure, although that they shall not be constrayned to serve; for the first Article of the statute of Labourers 23. Ed. 3. compels servants [Page 168] of husbandrie to serve, and the second Article ordaines that if any retained in service depart from his master, an Action shall lie of the Departure, 33. H. 6. 14. Brooke, Labourers 36.
44. In an action upon the statute of Labourers, if the defendant were vagrant, and was required to serve, and refused; by Martin, if he be retained with one to serve by the day, and is required by another to serve by the yeare, there he shall serve the first the day which he was hired, and after that day ended he shall serve the other by the yeare; but if he be retained for twenty or forty dayes, and be required by another to serve by the yeare, he ought to serve the latter, for a retainer by twenty or forty daies is no usuall retainer, but otherwise it is of a retainer by the day,11. H. 6. 1. Br. Lab. 49. and by him if a man be retained for a yeare, and after is vagrant, and doe not serve accordingly, there; if another him require to serve he ought to obey that request. 11. H. 6. 1. Brooke, Labourers 49.
45. A servant shall be compelled to serve in Summer in the place where hee served in Winter before, and the Lords of the Towne and Iustices of peace may command vagrants to prison which will not serve,Fitz. Na. Br. fo 168 f. Br. Lab. 51. and if a man retaine a servant for forty daies, and another retaine him for a yeare within the forty dayes, the first retainer is thereby discharged, because the first retayner was not according to the statute,What is a good retainer within the statute and what not. 3. H. 6. 23. Br. Lab. 1. Fitz. Na. Br. fo. 168. f. Br. Lab. 51.
46. If a man retaine a Labourer to serve him in husbandrie according to the forme of the statute, this is a good retainer, although no wages be mentioned, but it is otherwise if a man retaine a Carpenter to make a Mill, or such like, for in the one case the wages is certaine by the statute and not in the other. 3. H. 6. 23. Br. Lab. 1.
47. An Action upon the statute of Labourers was brought against one which was retained in the office of an Imbroiderer who departed within the Terme,47. Ed. 8. [...]. Br. Lab. 15. the defendant demands Iudgement of writ, because the statute doth extend only to servants and labourers and not to Artificers, but this exception was not allowed, whereby it appeares that this was a good retainer according to the statute 47. E. 3. 22. Br. Lab. 15.
48. An Action upon the statute of Labourers was brought against a Chaplaine who had covenanted to be Seneschall to the plainetiffe, and Chaplaine of such a parish Church, for that he departed within the Terme, and as to the office of Seneschall it was adjudged that the Action is well brought,50. Ed. 3. 13. Br. Lab. 16. but as to the Chaplaine the Action doth not lie, for that he is neither common Labourer, nor Artificer, but is the servant of God, and therefore as to that he was discharged. 50. E. 3. 13. Br. Lab. 16. 11. H. 4. 42. Br. Lab. 23.
49. A retainer upon condition is a good retainer within the said statute. [...]8. Ed. [...]. 12. Br. Lab. 25. Fitz Na. Br. fo. 138. h. 11. H. 4. 42. Br. Lab. 23.
50. If a man that is insufficient and not able to keepe a servant retaine a servant to serve him by the yeare, this is no good retainer. 38. Ed. 3. 12. Br. Lab. 25.
[Page 169]51. An Action upon the statute of Labourers was brought, and the defendant said that he was retained to collect the rents of the plaintiffe without that, that he was retained in the office of a labourer, and this was adjudged a good plea; for the statute is only of those which may be required to serve as Labourers,19. H. 6. 53. Br. Lab. 28. and that is not a Collector of rents, for it is not reasonable that a man should be compelled to be accomptable. 19. H. 6. 53. Br. Lab. 28.
52. If a man retaine a servant to serve in his house,21. H. 6. 9. Br. Lab. 29. that is a good retainer, although he doe not expresse in what office he shall serve, that is to say a fervant in Husbandry, Cooke, Butler, horsekeeper, or such like. 21. H. 6. 9. Br. Lab. 29.
53. By Markham and Ascue Iustices, an Infant may bind himselfe a Prentice, but Newton and Paston Iustices say, that is by custome and not by the common Law, and it is there agreed that one may be constrained by the statute to serve but not to be an Apprentice, and by Paston, if an Infant be retained to serve, & an Action upon the statute of Labourers is brought against him, it is a good plea for him to say that he is an Infant, but by Markham that is;21. H. 6. 33. Br. Lab. 30. where he is under the age of 14. yeares; for at the age of 14. yeares he is potens in corpore according to the statute, and therefore such retainer is good. 21. H. 6. 33. Br. Lab. 30.
54. If I retaine a servant for a yeare, and so from yeare to yeare, taking for his wages according to the statute, and if he serve Eight yeares he shall have an Action for his wages, and he may not depart without reasonable warning, but where he is retained for one yeare and continueth for Eight or Ten yeares, now the first retainer shall serve for all, and is but one retainer within the statute for all the yeares. 38. H. 6. 14. Br. Lab. 36. 38. H. 6. 14. Br. Lab. 36.
55. If I retaine a servant to serve me by the yeare at any time that I shall require him; this is no good retainer within the statute. 22. H. 6. 30. Br. Lab. 31. 22. H. 6. 30. Br. Lab. 31.
56. An Action upon the statute of Labourers for taking of the plainetiffes retained servant, the defendant said that the servant made the Covenant by dures and was within age, and the defendant had 20. l. land, and the servant is his Sonne and heire apparant, and by Babington if such a sonne make a Covenant to serve, this is a good retainer, although he were heire apparant to 100. l. land. And if he were of the age of discretion and made such a Covenant to serve in Husbandry, that shall bind him, and so it was agreed by the Court, and there it was said by Martin that a man may lawfully be imprisoned if he will not serve according to his Covenant, but this shall be by the officers of the King and not by the party himselfe. 9. H. 6. 10. Br. Lab. 43. 9. H. 6. 10. Br. Lab. 43.
57. If a labourer be retained to serve for Terme of his life, this is no good retainer within the statute. 2. H. 4. 15. Br. Lab. 44. 2. H. 4. 15. Br. Lab. 44.
58. Note that he which is non potens in corpore and he which hath [Page 170] lands and a Gentleman, Cooke, Butler, Chaplaine, Yeoman, and such like shall not be constrained by the statute to be retained in Husbandry, yet if they will be retained in Husbandry; this retainer is good. 38. H. 6. 22. Br. Lab. 46. 38. H. 6. 22. Br. Lab. 46.
59. The retainer of a Chaplaine to serve as a Chaplaine is no good retainer within the said statute, nor no Action will lye for his departure upon the said statute, for it is intended that he hath whereof to live, although he be not alwayes disposed to celebrate divine service. 10. H. 6. 8. Br. Lab. 47. 10. H 6. 8. Br. Lab. 47.
60. If a man retaine an Infant of the age of 12. yeares or upward be it man or woman to serve in Husbandry; this is a good retainer by the said statute, Fitz. Na. Br. fol. 168. d. F tz Na. Br. fo. 168. d.
61. If a Gentleman which by the statute is not compellable to serve in Husbandry, or a Chaplaine, or a Carpenter shall put themselves by Covenant to serve in Husbandry, they shall be bound thereby, and this is a good retainer by this statute, and upon their departure out of such service an Action lyes against them upon this statute, Fitz. Na. Br. fo. 168. e. Fitz. Na Br. fo. 168. e.
62. If a man retaine one for forty dayes to serve him and another after retaine him for a yeare, the first retainer is defeated, because it was not according to the statute; and so if one be retained to serve at every time that he shall be required, that is no retainer according to the statute, but if it be by deed, it is a good Covenant upon the deed, and without deed it is voide, Fitz. Na. Br. fo. 168. f. Fitz. Na. Br. fo. 168. f.
63. If a man retaine another to serve him and doe not expresse how long he shall serve; this is a good retainer according to the statute, and he shall serve a yeare, Fitz. Na. Br. fo. 168. h. Fitz Na. Br. fo. 168. h.
Fitz. Na. Br. fo. 168. o.64. If the husband and wife be retained during the marriage, this is a good retainer, and if they depart an Action shall be maintained against them upon the said statute.
What be causes for a servant to depart from his service.65. The detaining of competent meate, drinke, lodging, or wages from a servant are good causes to depart from his service, Fitz. Na. Br. 168. l.
F [...]tz Na. Br. fo. 168 l. & q. 29. Ed. 3. 22. Br. Lab. 35.66. Also if the master or his wife without cause beate the servant or otherwayes for cause beate him outragiously, these are good causes for the servant to depart, and yet the master by Law is allowed with moderation to chastise his servant or apprentice, Fitz. Na. Br. fo. 168. l. & q.
67. Also the servant may depart by the license of his master, Fitz. Na. Br. fo. 168. l.
68. But if a woman which is a servant take a husband, this is no cause to depart from her service, but shee ought to serve out the residue of her Terme, Fitz. Na. Br. fo. 168. n. Fitz. Na Br. fo. 168. n.
69. If the master will discharge his servant by word and say unto him that he shall serve him no longer, this is a good cause for the servant to depart,6. Ed. 4. 2. Br. Lab. 38. for he cannot serve him against his will, but upon such [Page 171] discharge the servant shal have his wages for the time he hath served, 6. Ed. 4. 2. Br. Lab. 38.
70.How a master may discharge his servant. In an Action upon the statute of Labourers for departing from his service the defendant said that he was retained with the plainetiffe in the office of Carpenter to make a house, and that he came unto him to doe his service, and the master him discharged, and this was holden to be a good barre of the Action. 11. H. 4. 32. Br. Lab. 22. 11. H. 4. 32. Br. Lab. 22.
71. In an Action of maintenance the defendant justifieth to ayd the plaintiffe, because he was his retained servant, and the plaintiffe said that after the retainer and before the maintenance, that is to say, at D. in the County of M. the master him discharged of his service whereunto the servant agreed, whereby it appeareth that the master may not discharge his servant within the Terme, except that the servant agree thereunto no more, then the servant may depart from his Master without the masters license or agreement. 19. H. 6. 30. Br. Lab. 27. 19. H. 6. 30. Br. Lab. 27.
72. If a man retaine a servant for a yeare and he discharge him at Easter in the same yeare, to which the servant agreeth, he shall not have an Action for any part of his wages for the service done before nor after, for nothing is due untill the end of the yeare, for the contract is entire and may not be severed. 10. H. 6. 23. Br. Lab. 48. 10. H. 6. 23. Br. Lab. 48. otherwise it is if the servant be within age, for then his agreement to the discharge is voide, and he shall not be bound by it.
73. If a servant that is retained for a yeare happen within the time of his service to fall sicke, or to be hurt or lamed, or otherwise to become non potens in corpore, the master must not put such servant away nor abate any part of his wages for such time, Dalton pag. 74. Dalton pa. 74.
74.Who may take a servant from his master that retained him.74. The Lord may take his villaine out of the service of another if he have need of servants, otherwayes not, Fitzh. Na. Br. 168. m.
75. In an Action upon the statute of Labourers for taking a servant out of his masters service, the defendant said that he is seised of the Mannor of B. to which the servant was a villaine reguardant, wherefore he tooke him, &c. and this was holden no good plea, for where a villaine is retained in anothers service, it is not lawfull for the Lord to take him from his master, unlesse the Lord have need of such a servant, whereupon the defendant said that the servant was a Shepheard, and that hee having need of a Shepheard tooke him, and this was holden to be a good plea, for the statute will that the Lords should be preferred in their villaines before others. 27. H. 6. 2. Br. Lab. 3. 27. H. 6. 2. Br. Lab. 3.
76. In an Action upon the statute of Labourers for taking his servant retained out of his service, the defendant said that he is Lord of the Mannor of W. to which this servant was and is a villaine reguardant, and is a Carter, and he hath need of a Carter,47. Ed. 3. 16. Br. Lab. 13. by reason whereof he tooke him, and this was held to be a good justification, for the [Page 172] Statute of Labourers, viz. the statute of 23. Ed. 3. ca. 1. & 2. is quod domini preferantur in nativis suis, 47. Ed. 3. 16. Br. Lab. 13.
50. Ed. 3. 22. Br. L [...]b. 17.77. If a man retaine a servant which is the villaine or retained servant of another, the Lord or the master that first retained him may take him out of the possession of him that last retained him,9. H. 4. 32. Br. Lab. 33. but before he take him he ought to give notice of his former retainer, or of the villenage. 50. Ed. 3. 22. Br. Lab. 17.
2. H. 4. 13. Br. Lab. 18.78. If a man have a feme sole in his service, and another man takes her to wife, he may do that lawfully, but it is not lawfull for him to take her out of her service during the terme that she is bound to serve, 2. H. 4. 13. Br. Lab 18.
Fitz. Na. Br. fo. 168. d.79. If a man taketh an Infant or other servant out of another mans service, this is punishable, though the Infant or servant was not retained, but if an Infant being retained as an Apprentice, or servant happen to be a Ward, the Lord may take him from his master; for the Lords title is more ancient then the retainer, yet the Lord ought first to give notice thereof to his master, or else the master may lawfully detaine him, 50. Ed. 3. 22. Fitz. Na. Br. fo. 143. i. 50. Ed. 3. 22. Fitz. Na. Br. fo. 143. i.
80. If a servant be retained by one, and depart from his master, and then is retained by another, it is lawfull for the first master to take him out of the possession of the second master, so as he give notice to the second master of the former retainer, 28. H. 6. 11. Br. Lab. 4. 28. H. 6. 11. Br. Lab. 4.
81. If a man retaine the servant of another, not knowing of the former retainer,Who may receive or retaine a servant that is retained with another. he shall not be punished for this, if he do not detaine him after notice of it, Fitz. Na. Br. fol. 168. b.
82. A servant departeth from his master, and one that had married his mother found him vagrant, and the servant came with him to his house and continued there a day, the father in law for this is not punishable by the statute: And likewise in this case, if the father had brought the servant to a schoolemaster to bee taught, and the schoolemaster receive him into his schoole, this is no offence in the schoolemaster, for he is not bound to take notice that he was in service: And also if a servant have broken his legge or Arme, or received any other hurt that he cannot goe, and a Surgeon comes to him to cure his wound, this is no offence in the Surgeon, or if a servant come unto me and pray me to receive him into my service, which I doe, this is no offence in me, for I am not bound to take notice of the former retainer; And likewise if a servant come to mee, and intreat me for Gods sake to give him lodging, which I doe accordingly, this is justifiable, and no offence against this statute, for it is an Act of Charitie. And likewise if the servant of another man commeth to labour with me, his master shall have no action against me for this cause, but if I procure him to come and labour with me knowing him to be the servant of another man,Who shall be said in Law a servant within the statute of 23. Ed. 3. I shall bee punished by this statute. 9. H. 4. 32. Br. Lab. 33. 9. H 4. 32. Br. Lab. 33.
83. He which is retained to serve, although hee never come to [Page 173] his master, nor be actually in his service, hee is a servant within the intention of this statute, and if he be retained and refuse to doe his labour, this is a departure in law, and punishable by this statute, 41. Ed. 3. 20. Br. Lab. 7. 46. Ed. 3. 4. 47. Ed. 3. 14. 3. H. 6. 37. 41. Ed. 3. 20 [...] Br. Lab. 7. 46. Ed. 3. 4. 47. Ed. 3. 14. 3. H. 6. 37. 45. Ed. 3. 13. Br. Lab. 8. 21. H. 6. 33. Br. Lab. 30. 46. Ed. 3. 14. Br. Lab. 10.
84. An Apprentice is no servant within the intention and meaning of the statute, 45. Ed. 3. 13. Br. Lab. 8. 21. H. 6. 33. Br. Lab. 30. 39. Ed. 3. 22. Br. Lab. 35. & Fitz. Na. Br. fol. 168. g.
85. A Chaplaine retained to say divine service is no servant within the meaning of the statute 46. Ed. 3. 14. Br. Lab. 10.
86. I have the more enlarged my selfe upon this title of Labourers, because I see by continuall experience that not onely the Idlenesse of those that will not labour, but also the excessive wages of such as doe labour, and of all manner of artificers is the most great and generall grievance that is in Ireland, and thereupon all these inconveniences doe ensue: videlicet, first, of Idlenesse ensueth Thefts and Rebellions, for Idlenesse is the nurse of both. Secondly, of the excesse of wages in servants and labourers in husbandrie ensueth poverty in the farmors and freehoulders that live by husbandrie only, for the excesse of servants and labourers wages eateth up the greatest part of the profit that may be raised by manuring the land, whereby the farmor is so impoverished that he is not able to pay his rent, and to beare other countrey charges, nor to inclose his land, or to live and breed his children in any decent fashion, by meanes wherof the land is not improved to the one halfe of the value it might be at, and so the Landlords loose a great part of their revenue, besides the preventing of many stealthes which could not be so frequently committed as now they are, if the lands were inclosed. Thirdly, by the excesse of wages in Masons, Carpenters, and other artificers, the farmors and inferior freeholders are constrained for the most part to live in base cottages more fit for hogstyes then for men to dwell in, and no marvell for by the negligence of the Iustices of peace in not rating of wages and putting these statutes in execution it is come to this passe that a Ioyner will take Two shillings sterling per diem with meat and drinke for his Iourneyman, and 12. d. sterling with meat and drinke, for a boy that can scarce bore a hole as it should be; and this I speake of mine owne knowledge, and therefore I wish that the Iustices of peace would henceforth better remember their oaths, the duty of their places, and the good of the common wealth then hitherto they have done, but if the Iustices of peace shall wilfully continue still their neglect herein, I cannot but let them know, that for this their neglect they are (and that worthily) for their neglect to be punished in the Starchamber.
Misprision. CHAP. 43.
1. THere be also certaine offences which by the common Law are misprision of treason or felonies, or at least punishable in the same degree and more,22. Ed. 3. 13. Stamf. 38. as to draw a sword to stricke a Iustice, sitting in place of Iudgement; to strike a Iuror in the presence of the Iust. sitting in place of judgement,Stam. 37. & 38. Br. contempts 9. 0. or to stricke another in the house where the Courts of Iustice are kept, sitting any of the Kings Courts there, or to draw any weapons (therewithall to strike any person) in the presence of the Iustices,P. Paine 16. or to make any Affray in their presence they sitting in Iudgement, or to rescous any such offendor, these are such misprisions for which the offendour shall have more grievous punishment then for misprisions of Treason or felony, for in these cases the offendor shall not only forfeit all his goods and chattels, and the profits of his lands during his life, and be imprisoned during his life, but also shall have his hand cut of.
28. El. ca. 7. in Ireland.2. The counterfeiting of the coine of gold or silver of other Countreyes, which is not currant in this Kingdome, is by a statute made in 28. Eliz. ca. 7. enacted to be misprision of high treason in the Actors, their procurers, ayders, and abettors.
Stamf. 37. d. Cromp. 44.3. Note that every treason or felony, doe include misprision, so that where any person hath committed treason or felony, the King may cause the offendor to be indicted and arraigned but of misprision.
Stamf. fo. 37.4. Misprision of Treason or felony is properly when one knoweth that another hath committed, or is about to commit any treason or felony, but was not, or is not consenting thereto, and yet will not discover the offendor to the King or his Councell, or to some Magistrate, but conceales both the offence and the offendors.
Br. Treason. 19. Stamf. fo. 38.5. For misprision of treason, the offend or shall forfeite to the King all his goods and chattels for ever, and the profits of his lands during his life, and also shall be imprisoned during his life, but for misprision of felony the offendor shall be only fined and ransomed as it seemes,3. H. 7. 10. Br. Treason 25. and shall be committed to prison untill he hath paid his fine. 3. H. 7. fol. 10.
6. Note for the offendors in high treason, misprision of treason and praemunire, that although the Iu. of Peace by their Commission nor by statute cannot medle with them in the very point of their offences, saving in some particulars, and that by way of inquiry only, which you may see hic antea tit. felony, yet for that all treasons and such other offences are against the peace of the King and of the Realme, therefore upon complaint made to the Iustice of peace, or other knowledge had by him of any such offendors, it shall be his part to cause such offendors to be apprehended, and to take their examinations, and the information upon oath of such as bring them or of [Page 175] others that can prove any thing materiall against them, and to put the same in writing (under the hands of the Informers) and then to commit the offendors to the Gaole,Dalton p. 212. and also to bind over by recognisance all such as doe declare any thing materiall, to appeare and give evidence against such offendors, before the Lords of the Kings Majesties privy Councell, or elsewhere, when they shall be called upon reasonable warning, or before the Iustices of Assises at the next generall gaole delivery, and after to certifie their doing therein to some of the Lords of his Majesties said Councell.
Nightwalkers. CHAP. 44.
1. EVery Iustice of peace (ex officio) and by the first Assignavimus of the Commission may cause to be arrested all Nightwalkers,13. H. 7. 1 [...]. Dalton pa. 76. be they strangers or other persons that be suspected, or that be of evill behaviour, or of evill fame, and more particularly all such suspected persons as shall sleepe in the day time, and goe abroad in the night season, haunt any house that is suspected for bawdery, or shall in the night time use other suspitious company, or shall commit any other outrages or misdemeanors, and may force them to finde surety for their good behaviour, see the title, surety for the good behaviour.
Peace. CHAP. 45.
1. EVery Iustice of peace hath authority and power given him, by the first Assignavimus, or clause in the Commission,Dalton pa. 79. to keepe and cause to be kept the Kings majesties peace, by force of which words they have aswell the ancient power touching the keeping of the peace which the ancient conservators of the peace had by the common Law, as also all authority which the statutes since have added thereto, and so they may cause to be kept all the statutes and Lawes now in force, which beene made for the peace or keeping thereof, and more especially they may arrest or cause to be arrested and sent to the Gaole all Traitors, Murtherers, Robbers, and Felons, and persons suspected of such things, and all such are guilty of any misprision, or praemunire.
2. They may also suppresse and bind to the peace or good behaviour all Affrayors,Dalton p. 80. and all persons unlawfully and riotously assembled or unlawfully wearing armour or any weapons, by night or by day, or otherwayes putting the people in feare and all unlawfull nightwalkers and barrettors, and the like, all which may well be said to be disturbances or breaches of the peace, see more fully of these under their particular Titles.
Posse Comitatus. CHAP. 46.
1. VVHere the Iustice of peace, Sheriffe, or other officer is enabled to take the power of the County, it seemeth they may command, and ought to have the helpe and attendance of all Knights, Gentlemen, Yeomen, Husbandmen, Labourers, Tradesmen, Servants, and Apprentices, and of all other such persons, being above the age of fifteene yeares, and that are able to travell.
2. But women, Ecclesiasticall persons, and such as be decrepit or diseased of any continuall infirmity, shall not be compelled to attend them.
3. And in such cases, it is referred to the discretion of the Iustices of peace, or Sheriffe, &c. what number they will have to attend upon them, and how and after what manner they shall be armed, weaponed, and otherwise furnished.
4. But it is not justifiable for the Iustices of peace, Sheriffe, or other officer, to assemble posse comitatus or raise a power or assembly of people (upon their owne heads) without just cause.
What persons may take posse comitatus and in what [...]ases. CHAP. 47.
Dalton 314.1. ANy Iustice of peace or Sheriffe, may take of that County where he is a Iustice or Sheriffe, any number that they shall thinke meete, to pursue, apprehend, arrest and imprison Traitors, Murderers, Robbers, and other felons, or such as doe breake, or goe about to breake, or disturbe the Kings peace, and every man being required, ought to assist and aide them.
2. The Iustice of peace and Sheriffe, or undersheriffe may take posse comitatus, Dalton ibid. for the suppressing of riots, and all sorts of persons (being able and required) ought to assist them therein.
14. H. 7. 8.3. Yea any one Iustice of peace may take the power and aide of the whole Countrey to suppresse Rioters, and needs not to tarry for the comming of another Iustice, or of the Sheriffe.
Dalton 314.4. Also in cases of forceible entry any Iustice of peace may take posse comitatus to remove such persons as by his view, or by inquisition taken before him, shall be found to have made any forceible entry (into other mens possessions) or to detaine them with force.
3. H. 1. 7. 10. Co. 5. 1. 15. p. Distr. 4. pretor. 5. Br. fine p. 27. Br. Riots 23.5. The Sheriffe, Undersheriffe, or Bailiffe, &c. if need be, may by the common Law, take the power of the County (what number they shall thinke good) to execute the Kings processe or writ, be it a writ of execution, replevin, estreperment, capias or other writ, it being the Kings commandement (see also the statute Westm. 1. 17. Westm. 2. 39.) [Page 177] and such as shall not assist them therein, being required, shall pay a fine to the King.
6.3. H. 7. 1. Br. Trespasse 266. The Sheriffes Bailiffe to execute a Replevin tooke with him three hundred men armed (modo guerino) with brigandines, jacks, and guns, and it was holden lawfull, for the Sheriffes officer hath power to take assistance aswell as the Sheriffe himselfe, for that all is one office and one authority.
7.Dalton 324. A man demands the peace in the Chancery against a great Lord, and hath a supplicavit directed to the Sheriffe, there if need shall be, the Sheriffe may take his posse comitatus to aid him to arrest such a Lord, &c.
8. So it seemeth, if a supplicavit be directed to a Iustice of peace,Dalton ibid. the Iustice of peace or the officer to whom the Iustice of peace shall make his warrant in this behalfe (upon resistance made) may if need be take posse comitatus to aid him to arrest the party, quia quando, Co. li. 5. fo. 115. aliquid mandatur, mandatur & omne per quod pervenitur ad illud. Co. 5. 115.
9. The Sheriffe may take Posse comitatus to apprehend felons, &c. or disturbers of the Peace.
10. So he may take Posse comitatus to execute the precept of the Iustice of Peace.
11.3. H 7. 10. 1 [...]. H. 7 19. B [...]. Trespass [...] 432. The Constable of the Towne upon a treason or felony committed, or upon any affray or the like, may take the aide of his neighbours, or other persons being present, to apprehend the Traytor or felons, or to cause the peace to be kept, and to carry the offendors before the Iust. of peace.
12. One hath hurt another, whereby he is in perill of death,38. Ed [...] the Constable may take power or aide to arrest him that did the hurt.
Praemunire. CHAP. 48.
1. EVery Iustice of peace may cause all such as are suspected to have fallen into the danger of a Praemunire to be arrested and to commit the offendor upon probable proofe thereof, and this he may doe by the first assignavimus of the Commission, for nothing can be more against the peace and good governement then bringing in and extolling of forraigne Iurisdictions and authority, and therefore it will be needfull to informe the Iustices of peace what offences by the lawes and statutes of force in Ireland will bring a man into the danger of a Praemunire.
2. At the common law before the statute of 25. Ed. 3. de proditionibus, the extolling of forraigne Iurisdiction was Treason, but by that statute the law is altered, and as well in that Parliament as in many other parliaments severall provisions have beene made against offendors of this kinde, the substance and effect of which statutes are here expressed as followeth, videlicet:
[Page 178] Rome. Abbies. Priories.3. In anno 25. E. 3. c. 22. It is ordained that because that some doe purchase in the Court of Rome provisions to have Abbies, and Priories in the Kings Dominions in destruction of the Realme, and holy Religion, every man that purchaseth such provisions of Abbies or Priories, that he and his ExecutorsExecutors. and Procurators which doe sue and make execution of such provisions, shall be out of the Kings Protection,Protection. and that a man may doe with them, as with enemies of our Soveraigne Lord the King and the realme, and he that shall commit any thing against such provisors in body or in goods, or in other possessions, shall be excusedExcused. against all people, and shall never be impeached or grieved for the same at any mans suit.
4. Afterwards in anno 27. E. 3. ca. 1. another statute was made to this effect, that is to say, because that it is shewed to the King by the grievous and clamorous complaints of great men and commons, how that diverse of the people be and have beene drawne out of the realme, to answer of things, whereof the cognisance pertaineth to the Kings Court, and also that the Iudgements given in the same Courts be impeached in another Court, in prejudice and disherison of the King and of his Crowne, and of all the people of his said realme, and in the undoing and destruction of the common Law of the same Realme at all times heretofore used, whereupon good deliberation being had with the great men, and other of his said councell, it is assented and accorded by our soveraigne Lord the Kings, and the great men and commons aforesaid, that all the people of the Kings liegeance, of what condition that they be, which draw any out of the Realme in plea, whereof the cognisance pertaineth to the Kings Court,Court. or of things whereof Iudgements be given in the Kings Court, or which doe sueSue. in any other Court to defeat or impeach the judgements given in the Kings Court, shall have day containing the space of two months by warning made to them in the place where the possessions be which bee in debate, or where they have lands or other possessions, by the Sheriffes, or other the Kings ministers, to be before the King and his councell, or in his Chancerie, or before the Kings Iustices in his places of the one bench or other, or before other the Kings Iustices, which to the same shall be deputed to answerAnswere. in their proper persons to the King of the contempt done in this behalfe, and if they come not at the said day in their proper persons to stand to the Law, then they, their procurators, atturnies,Atturnies. executors,Executors. notaries, and maintainers shall from that day forth be put out of the Kings protection,Protection. and their lands, goods, and cattels forfeitForfeite. to the King, and their bodies wheresoever they may be found shall bee taken and imprisoned,Impris. and ransomed at the Kings will, and upon the same a writ shall be made to take them by their bodies, and to seise their lands, goods and possessions into the Kings hands, and if it be returned that they be not found, they shall be put in exigentExigent. and outlawed, provided alwayes, that at what time [Page 179] they come before that they be outlawed, and will yeeld them to the Kings prison to bee justified by the Law, and to receive that the Court shall award in this behalfe, that they shall be thereto received the forfeiture of the lands, goods, and cattels abiding in their force, if they doe not yeeld them within the said two months, as afore is said.
5. After this in Anno 38. E. 3. ca. 1. another statute was made to this effect following, videli [...]et: It is provided and ordained, that all they which have obtained, purchased & pursued personall citations,Citations. or other proces in times past, or hereafter shall obtaine, purchase or pursue such like against the King or any of his Subjects in the Court of Rome, and also all they that have obtained, or shall obtaine in the said Court, Deaneries, Archdeaconries, Provostries, and other Dignities,Dignities. offices, chappels, or benefices of holy Church pertaining to the collation, gift, presentation, or disposition of the King, or of other lay Patron of his said Realme, and also all like persons obtainers of Churches, Chappels, offices, or benefices of holy church, pensions or rents amortised and appropriated to Churches Cathedrall, or collegiate Abbies, Priories, Chanteries, Hospitals, or other poore houses, before that such appropriations and amortisments be avoided and adnulled by due processe, and also all they which have obtained in the same Court Dignities, Offices, Hospitals or any benefices of Churches which be occupied at this present season by reasonable title, by any persons of the said realme, if such impetrations bee not fully executed, or shall obtaine hereafter like benefice, whereby prejudice, damage, or let hath beene or may be done hereafter to him, or to his said Subjects or persons, heritages, possessions, rights, or any goods, or to the lawes, usages, customes, franchises, and liberties of this realme, and of his Crowne, and also all their maintainers,Mainteiners. councellors, abbetters, and other ayders and fautours wittingly, aswell at the suite of the King as of the partie or other whatsoever he be of the realme, finding pledges and suretiesSuretie. for to pursue against them, in this case all the said persons defamed and violently suspected of such impetrations, pursuits or grievances by suspition, shall be arrested and taken by the SheriffesArrest. Sheriffe. of the places, and the Iustices in their Sessions, Deputies, Bailiffes, and other of the Kings ministers, and by good and sufficient mainprise,Mainprise. put in baile or other suretie (the shortest that may be) and shall be presented to the King and his Councell, there to remaine and stand to right, to receive what the law shall give them, and if they be attainted or convict of any of the said things, they shall have the paine comprised in the statute made in the 25. yeare of the raigne of the said King, E. 3. de prisonibus, and if any person defamedDefamed. or suspect of the said Impetrations, prosecutions, or grievances, or interprises, be they out of the realme or within cannot be attached nor arrested in their proper persons, and doe not present them before the King and his Councell, within two monethsTwo moneths. next after that [Page 180] they be thereupon warned in their places (if they have any) in any of the Kings Courts, or in the Counties, or before the Kings IusticesIustices. in their Sessions, or otherwise sufficient to answereAnswer. to the King and to the partie, to stand, and be at the Law in this case, before the King and his Councell, shall be punished by the forme and manner comprised in the said statute made in the seven and twentieth yeare of the said Kings raigne (which is a praemunire) and otherwise as to the King and his Councell, shall seeme to be done, without any grace, pardonPardon. or remission, to be made by the King, without the will and assent of the partie that shall prove him to be grieved, and without making to him due satisfaction in this case.
31. E. 3. ca. 4.6. And after in the same yeare ca. 4. It is ordeined that if any person of what estate or condition that he be, by any manner attempt, or doe any thing against the said ordinances, or any thing comprised in them, the same person shall be brought to answere in the manner as afore is said, and if he be thereof attainted or convict, he shall be put out of the Kings protection, and punished after the forme of the said statute made the said 27. yeare of Ed. 3.
7. Afterwards in anno 2. R. 2. ca. 3. another statute was made to this effect, videlicet: that none of the Kings liege people, nor other person, of what estate or condition soever he be, shall take nor receive within this Realme procuracy letter of atturney nor farme,Farmer. nor other administration by Indenture, nor in any other manner of any person in the world, of any beneficeBenefice. within the said realme, but onely of the Kings liege people of the same realme, without the speciall grace and expresse licenceLycence. of the King by the advice of his Councell, and if any before this time have accepted of any Aliens,Aliens. such procuracies, termes, or administration; that they shall utterly leave them within forty dayes after publication of this ordinance, and that none of the said liege people nor other that may be found in the said realme shall send by vertue of such procuracy, ferme, or administration, gold, silverGold, Silver. nor other Treasure nor commoditie out of the said Realme, by letter of exchange by merchandise, nor in other manner, to the profit of the said Aliens, without like licenseLicense. of the King, by the advice of his said Councell, and if any doe the contrary in any point conteined in this ordinance, he shall incurre the paine and punishment conteined in the statute of provisors made in 27. Ed. 3. by the same processe comprised in the said statute, and by warning to be made to them in their benefices or other their possessions within the Realme.
8. After this in anno 12. R. 2. ca. 15. another statute was made to this [...]ff [...], that is to say that no liege man of the King of what estate or conditi [...]n that he be, [...] over sea. great or litle, shall passe over the sea, nor send out of the Realme of England by license, nor without license, without speciall license of the King himselfe to provide or purchase for himse [...]fe a benefice of holy Church, with cure or without cure in the [Page 181] said Realme, and if any doe and by vertue of such provision accept by himselfe, or by any other, any benefice of the same Realme, that from that time the same provisor shall be out of the Kings protectionProtection. and the same benefice voide,Voide. so that it shall be lawfull to the patronPatron. of the same benefice aswell spirituall as temporall to presentPresent. to the same an able Clarke at his pleasure.
9. Moreover in anno 16. R. 2. ca. 5. it is ordeined by Parliament at the prayer of the commons,Sue. that if any purchase or pursue or cause to be purchased and pursued in the Court of RomeCourt of rome. or elsewhere, any such translations, processes, and sentences of excommunication, bulles,Bulles. instruments, or any other thing, which touch the King against him, his Crowne and regalitie, or his Realme, and they which bring within the Realme, or them receive, or make thereof notification, or any other execution within the same Realme, or without, that they, their notaries, procurators,Procurators. mainteinors,Mainteinors. abettors, fautors, and Counsellors shall be put out of the Kings protection,Protection. and their lands and tenements, goods and chattels forfeite to the King,Forf. and that they be attached by their bodyes, if they may be found, and brought before the King and his Councell, there to answere to the cases aforesaid, or that proces be made against them by praemunire facias, Praemunire facias. in manner as it is ordeined in other statutes of provisors and others, which doe sue in any other Court in derogation of the regalitie of our soveraigne Lord the King.
10. In anno 2. H. 4. ca. 4. it is ordeined that aswell they of the order (of Cisteaux) as all other religious or Seculars of what estate soever that they be, which doe put any of the popes bullesBulles. in execution, or from thenceforth doe purchase other such bulles of new, or by colour of the same buls purchased, doe take advantage in any manner, proces shall be made against them, and every of them by garnishment of two moneths by writ of praemunire facias, Praemunire facias. and if they make default or be attainted,Forf. then they shall incurre the paines and forfeitures conteined in the statute of provisors made in anno 16. R. 2.
11. In anno 7. H. 4. ca. 6. it is ordeined that no person religious nor secular, of what estate or condition that he be, by colour of any buls conteining priviledges to be discharged of dismes pertaining to parish Churches, prebends, hospitals, or vicariges, purchased before the first yeare of King Richard the second, or after not executed shall put in execution any such buls so purchased, or any such buls to be purchased in time to come, and if any such religiousReligious. or secular person from thenceforth by colour of such buls,Disturbe. doe trouble any persons of holy Church, prebendaries, keepers of hospitals, or vicars, so that they cannot take nor enjoy the dismes due or appertaining to them of their said benefices, that then such disturber shall incurre like proc [...]s [...] and paine,Paine. as is ordained by the statute made against them of the [...] of Cisteaux in the second yeare of the Raigne of King Henry the [...].
[Page 182] 32. H 6. ca. 1. in Ireland.12. Anno 32. H. 6. in Ireland it is ordained and established that all the acts, ordinances and statutes made against provisors aswell in England as in Ireland, be had and kept in force within this land of Ireland, and also if any provisor or provisors doe henceforward sue any provision upon any man beneficed in this land of Ireland, and because of the provision, do enter into any benefice or benefices of the Church, and doe take any goods or chattels from any beneficer of the church against whom any such provisions are sued, that then the party grieved may recover treble damages, and hee that taketh such goods, and thereof is convicted shall pay 20. l. the halfe to the King and halfe to him that will sue.
13. Anno 7. Ed. 4. it is ordeyned and enacted that whatsoever manner man of holy church purchase any manner of dignity,7. Ed. 4. ca. 1. in Ireland. parsonage or vicarage, by Buls of the pope to hold in commendum, and the said Buls, dignities, parsonages, or vicarages accept, that they shall be out of the protection of the King and forfeit the value of the said benefices during his life naturall, notwithstanding whatsoever his benefice be, dignity, or personage; or vicarage, and shall incurre in all penalties of the estatutes or ordinances made against provisors of benefices, and that no pardon or license of the King made or to be made be availeable but voide, if it be not by Act of Parliament, and if any manner man of the Church occupy now, or hereafter doe occupy any personage, or vicarage by way of commendum by the Buls Apostolique, if it be of his owne collation, that he shall make collation thereof within six moneths, and if he doe not that then the deane and chapter of the diocesse, in which diocesse the benefice is, shall make collation of the said benefice within six moneths then next ensueing, and if the said Deane and Chapter be negligent and make no collation of the said benefice within six moneths as before is said, that then it shall be lawfull to the King to present to the said benefice for that time, and as often as the cases require, as is aforesaid.
14. Anno 10. H. 7. it is enacted and established that all manner of estatutes aswell made within the Realme of England as within this land of Ireland against provisors by the authority of this present Parliament be authorished,10. H 7. ca. 5. in Ireland. approved and confirmed, and be deemed good and effectuall in the Law, and also by the authority aforesaid, that all and every of the statutes made against provisors be from henceforth duely and straightly executed in all points within the said land, according to the effect of the same, and the Kings Iustices, and Commissioners of the said land diligently enquire at their Sessions, and all other times requisite and behovefull, of all and every manner of person or persons that hereafter offend the said statutes, or any of them, and every of the said persons so found defective or trespassing in any of the said statutes, from henceforth be duely corrected and punished in example of all other in time to come, according to the tenor and purport of the statutes made against provisors.
[Page 183]15. Anno 28. H. 8. ca. 5. 28. H. 6. ca. 5. in Ireland. amongst other things it is ordeined and enacted by authority of Parliament, that no person or persons, subjects or resiants of this land shall pursue, commence, use, or execute any manner of provocations, appeales, or other processes to or from the Bishop of Rome, or from the See of Rome, or to or from any other that claime authority by reason of the same for any manner of case, griefe, or cause of what nature soever it be, upon the pain that the offendors their ayders, counsellors, and abettors, contrary to this Act, shall incurre and runne into such paines, forfeitures, and penalties as be specifyed and contained in the Act of provision and praemunire, made in the Realme of England in the sixteenth yeare of the Raigne of King Richard the second, sometime King of England and Lord of Ireland, against such as procure to the Court of Rome, or elsewhere to the derogation, or contrary to the prerogative or jurisdiction of the said Crowne of England, and that no manner of person, subject or resiant within this land shall attempt, procure, or obtaine, any manner of proces of what kinde or nature soever it be, to or from the same Bishop of Rome, or Court of Rome, or See Apostolique, or from any other, having authority by the same, to the let or interruption of this Act, or any thing therein contained, nor in any wise obey or execute within this land such manner of processe, upon like paines and forfeitures as beene above rehearsed.
16. Anno 2. Eliz ca. 1. 2. El. ca. 1. in Ireland. It is amongst other things ordeined and enacted that if any person or persons dwelling or inhabiting within this Realme, of what estate, dignitie or degree soever he or they be, shall by writing, printing, teaching, preaching, expresse words, deeds or Act, advisedly, malitiously, and directly affirme, hold, stand with, set forth, maintaine and defend the authority, preheminence, power or jurisdiction, spirituall or ecclesiasticall of any forraigne prince, prelate, person, state or potentate whatsoever, heretofore claimed, used or usurped within this Realme, or shall advisedly, malitiously & directly put in ure or execute any thing for the extolling & advancement, setting forth, maintenance or defence of any such pretended or usurped Iurisdiction, power, preheminence or authority, or any part thereof, that then every such person and persons so doing and offending, their abettors, aiders, procurors, and Counsellors, being thereof lawfully convicted and attainted according to the due order and course of the common Lawes of this Realme, for his or their first offence shall forfeite and loose all his and their goods and chattels aswell reall as personall, and if any such person so convicted or attainted shall not have or be worth of his owne proper goods and chattels to the value of twenty pounds at the time of such his conviction or attainder, that then every such person so convicted and attainted over and besides the forfeiture of all his said goods and chattels shall have and suffer imprisonment by the space of one whole yeare without baile or mainprise, and that also all and every the [Page 184] benefices, prebends, and other Ecclesiasticall promotions and dignities whatsoever of every spirituall person so offending and being attainted, shall immediately after such attainder be utterly voide to all intents and purposes, as though the incumbent thereof were dead, and that the patron and donor of every such benefice, prebend, spirituall promotion and dignity, shall and may lawfully present to the same or give the same in such manner and forme, as if the said incumbent were dead; and if any such offendor or offendors after such conviction or attainder doe eftsoons commit or doe the said offences, or any of them in manner and forme aforesaid, and be thereof duely convicted and attainted, as is aforesaid, and then every such offendor or offendors shall for the same second offence incurre into the dangers, penalties, and forfeitures, ordeined and provided by the statute of provision and praemunire made within the Realme of England in the sixteenth yeare of the Raigne of King Richard the second, provided alwayes that no manner of person or persons shall be molested or impeached for any of the offences aforesaid, committed or perpetrated only by preaching, teaching or words, unlesse he or they be thereof lawfully indicted within the space of one halfe yeare next after his or their offences so committed, and in case any person or persons shall fortune to be imprisoned for any of the said offences committed, by preaching, teaching or words onely, and be not thereof indicted within the space of one halfe yeare next after his or their such offence so committed and done, that then the said person so imprisoned, shall be set at liberty and be no longer detained prisoner for any such cause or offence, provided alwayes and be it enacted by the authority aforesaid, that this Act or any thing therein contained, shall not in any wise extend to repeale any clause, matter or sentence contained or specifyed in an Act of repeale made in the third and fourth yeares of the Raignes of King Philip and Queene Mary, as doth in any wise touch or concerne any matter in case of praemunire, or doth make or ordeine any matter or cause to be within the case of praemunire, but that the same for so much onely as toucheth and concerneth any case or matter of praemunire, shall stand and remaine in full force and effect as the fame was before the making of this Act contained to the contrary in any wise notwithstanding. And if it shall happen that any peere of this Realme shall fortune to be indicted of and for any offence that is revived or made praemunire or Treason by this Act, that then the same peere or peares so being indicted, shall be put to answere to every such indictment before such peere of this Realme, of English blood, as by the Lord Deputy or governours of this Realme shall be by Commission appointed under the great seale, and to have his and their triall by this and their peeres, and to receive and have such like judgement upon the same triall of his or their peeres, or making open confession of the same offence or offences, as in other cases of Treason and praemunire hath beene used. And it is [Page 185] further enacted that no person or persons shall be indicted or arraigned for any the offences made, ordeined, revived and adjudged by the said Act, unlesse there be two sufficient witnesses or more, to testifie and declare the said offences, whereof he should be indicted and arraigned, and that the said witnesses or so many of them as shall be living and within this Realme at the time of arraignement of such person so indicted, shall be brought forth face to face before the party so arraigned, and there shall testifie and declare what they can say against the party so arraigned, if he require the same, provided that if any person or persons shall hereafter happen to give any reliefe, aide or comfort or in any wise be aiding, helping or comforting to the person or persons of any that shall happen to be an offendor in any matter of case of praemunire, or Treason, revived or made by this Act, that then such reliefe, aide, or comfort, given shall not be judged or taken to be any offence unlesse there be two sufficient witnesses at the least that can and will openly testifie and declare that the person or persons that so gave such reliefe, aide, or comfort, had notice and knowledge of such offence committed and done by the said offendor at the time of such reliefe, aide, or comfort, so to be given or ministred.
17. And now I have set forth the statutes of praemunire: I will here also set forth some few booke cases and resolutions, for the better explanation of those concurrent statutes.
18. In 44. E. 3. a praemunire was brought against diverse,44. E. 3. fo. 7. Br. praemunire 4. 8. H. 4. fo. 6. Br. praemunire 6. some as principals, and some as accessaries, the principals made default and the accessaries appeared and demanded judgement, if they should be put to answer before the principals were attainted, and it was adjudged that they should answer, for in a Praemunire all are principals, and there be no Accessaries.
19. If a man lease his vicarige for yeares or life paying rent,44. E. 3. fo. 36. Br. praemunirc 5. and sue in the Ecclesiasticall Court for the recovery of this rent, he is in case of a Praemunire: for the rent reserved is a lay thing, and not Ecclesiasticall.
20.9. E. 4. fo. 3. Br. praemunire 9. In a Praemunire in the Kings Bench the opinion was that if a Clarke sue another man in curia Romana, for a thing spirituall, where he may have remedie within this Realme in the Court of the Ordinary, that he is in case of a Praemunire, quia trahit in placitum extra regnum.
21.5. E. 4. fo. f. Note that the words of the statute are in curia Romana vel alibi, which is intended in Curia Episcopi, and therefore if a man be excommunicate or prosecuted in the spirituall Court for a thing which appertaines to the common Law, hee that prosecuteth such sui [...] is in case of a Praemunire.
22. A prohibition lieth often where a Praemunire lyeth not,Br. praemunire 16. as of T [...]th [...]s of great Trees, or for Tithes of the seventh part a prohi [...]ion lieth, and not a Praemunire, for the nature of the action belongeth [Page 186] to the spirituall Court, but not the cause in this forme, but where it is of a lay thing or of a thing which never appertained to the spirituall Court, of that a Praemunire lieth as of debt, against Executors upon a simple contract, or pro lesione fidei, upon a promise to pay Ten pounds by such a day, Doct. & Student. lib. 2. ca. 24.
2. R. 3. fo. 17. Br. praemunire 19.23. If Executors sue for the goods of their Testator in the spirituall Court, they are in case of a Praemunire, for in 34. H. 8. Richard Farmer was attainted in a Praemunire, and forfeited his Fee simple land for ever, for suing for the goods of his Testator in the spirituall Court.
24. There be some opinions in 8. ass, that a benefice donative by the patron onely is a lay thing,8. Ass pl 29. and the Bishop shall not visit nor deprive, and therefore if he medle with it in that kinde, he is in the case of a Praemunire, and in that case was Barloe Bishop of Bath in the time of King Edward the sixth, and was constrained to obtaine a pardon, because he had deprived the Deane of Wels which was a Donative by the Kings letters pattents.
25. I have beene more large in this Title, because many men of great quality and good understanding in Ireland are very confident that the papall Iurisdiction never received any check or opposition in England or Ireland before the time of King Henry the Eight, and therefore to make it to appeare to all men that will but open their Eyes to see the truth, I have set downe the said ancient statutes, and booke cases, whereby it plainly appeareth that in the very height of poperie, when prince and people, Laitie and Clergy were of the popes religion, yet in all ages of those very times the papall Iurisdiction was mainely opposed and utterly rejected, and great and grievous penalties, videlicet: losse of lands and goods and perpetuall imprisonment was inflicted upon all such as should uphold or any wise maintaine that papall Iurisdiction within these Kingdomes of England and Ireland.
Purveyors. CHAP. 49.
1. FOr the reformation of abuses & oppressions committed by Purveyors, diverse good Lawes and statutes have beene made in England, which are of force in Ireland, and because that the Iustices of peace are enabled to put many of those statutes in execution in part or in the whole, I shall here expresse the effect of so many of them as I conceive the Iu. of P. have to doe withall, which are these following,28. E. 1. articuli super cart c. 2. Without warrant. vide the statute of 28. Ed. 1. articul. super cart. cap. 2. It is enacted amongst other things, that if any make takings without warrant, and carry them away against the will of the owner, he shall be immediately arrested by the Towne where the taking was made, and shall be sent to the next gaole, and if he be attainted thereupon, [Page 187] it shall be done of him as of a Theife,Felony. if the quantitie of the goods will warrant it.
2. Also it is enacted in anno 5. E. 3. ca. 2. 5. E 3. ca. 2. that the takings and purveyances for the houses of the King, the Queene, and their children be made by praisements to bee made by the ConstablesConstable. and other discreet men of the Townes, where there shall be such takings and purveyances, thereto sworne, and without menace,Oath. as in the statutes of 28. E. 1. aforesaid, and 4. E. 3. ca. 3. is contained, and that betwixt the purveyors, and them whose goods shall be taken, there be in the presence of the Constables and praisers, TallesTalles. made and sealed with the purveyors seales, by which talles, satisfaction shall bee made to them, from whom such goods shall be taken, and if any taker or purveyor for the said houses, doe take in any other maner, he shall be incontinently arrestedArrest. by the Towne where such taking was made, and brought to the next gaole,Impris. Felony. and if he be thereof attainted it shall be done of him as of a Theefe, if the quantitie of the goods the fame require. 5. E. 3. cap. 2.
3.14. E. 3. ca. 19. The purveyances which shall be made for the Kings houses and the Queenes, where they doe abide and passe through the countrey, shall be made by warrant,Warrant. and power given to them, which shall make the purveyances, in which shall be expressely contained, that they shall take nor buy nothing, unlesse it be by promise made betwixt the buyer and the seller, and by the agreement of the sellers, and if any will any thing take by colour of his Commission against this ordinance, none shall be bound to obey him no more then if he had no commission, and of that which shall bee so bought and purveyed, paymentPayment. shall be made to the seller before that the King passe out of the vierge,Vierge. and of great purveyances to be made, as of flesh, fish and other victuals, for the Kings warres,Warres. and for to vittaile Castles, and townes of Scotland and England,Marchants. and other places, certaine Merchants and other good people shall be deputed by the TreasurerTreasurer. to make the said purveyances without Commissions,Commission. and without the Kings or others power, so that the people nor none of them be put to sell any thing against their will, and that no Commission be made to the keepers of the Kings horses, but be it onely commanded to the Sheriffe,Sheriffe. that he make purveyance by him and by his of the issues of his bailiwicke, and the number of the horses,Horses. for which he shall make such purveyance, shall be contained in the said commandement, and that no purveyance bee made over this number, saving that the chiefe keeper have an Hackney, and that he take good heed,Overcharge. that the countrey be not charged of more then shall keepe the horses, but for every horse a boy, without bringing women, pages, or dogs with them, and if more be found abiding in charge of the countrey, they shall be brought to the prison,Imprision. there to remaine till the King hath sent his will; and in the same manner be it commanded to the SheriffesSheriffe. that they make their purveyances forDogges. [Page 188] the Kings dogs of the issues of their Bailiwickes where they dwell, and that such purveyances be made by none other, but by the Sheriffes, and be it conteined in his commandements the number of the dogs, for which he shall make purveyance over which number no purveyance shall be made, so that they live of their certaine, without charging the countrey, and if any finde himselfe grieved against this ordinance, he shall have his recovery against the Sheriffe of such grievances done to him. Anno 14. E. 3. cap. 19.
25. E. 3. ca. 1.4. Also by another statute made in anno 25. E. 3. ca. 1. it is ordained that forasmuch as outragious damage hath beene done to the people by the Purveyors of victuals for the houses of the King, the Queene, and their Children, it is, &c. that the takers of CorneCorne. for the said houses, shall take the same by measureMeasure. striked, according as is used throughout the land, and that such Corne, hay,Hay. litture, bestaile and other victualsVictuals. and things which shall be taken for the said houses, shall be praised by the very value, by the ConstableConstable. and other good people of the Towne where such taking shall bee made, without that the praisers by menaces or dures shall be driven to set any other price then their oathOath. will, and as it commonly runneth in the next markets, and that betwixt the Purveyors and them whose goods shall be taken, in the presence of the Constables and praisers, TallesTalles. bee made incontinently, without that the people whose the goods shall be, be drawne or travailed elsewhere, and the same talles bee sealed with the seales of the takers of the things so taken, by which talles satisfaction shall be made to them, whose goods shall be so taken, and if any Purveyor or taker for the said houses doe in any other manner, he shall be immediately arrested by the Towne where the taking shall be made,Impris. and brought to the next gaole, and if he be thereof attainted,Felony. it shall be done of him as of a Theefe if the quantity of the goods the same require, according as in a statute made in the time of the said King in the fifth yeare of his raigne, and in another made in the time of the said Kings Grandfather upon such takings is contained at the full, and from thenceforth in the CommissionsCommissions of such takers and Purveyors the intent and paine limitted in this statute shall be contained, and that no Commission be made but only under the Kings great seale,Great seale. or privy seale,Privy seale. nor no man be bound to obey any such Commissions, in other manner then is aforesaid, and that the same statutes take place in all points against every taker and Purveyor of every manner of victuall in every part of the realme of what condition soever he bee. Anno 25. Ed. 3. cap. 1.
25. E. 3. ca. 15.5. And likewise by another statute made in anno 25. E. 3. ca. 15. it is ordeyned that forasmuch as the takers and buyers of the Kings takings doe take sheepe,Sheepe. betweene Easter and Saint Iohn Baptist with their woolls, and praise the same at a small price, and after send them to their owne houses,Shorne sheepe. and cause them to be shorne to their owne profits, [Page 189] no such Taker, Purveyor, nor buyer shall take any sheepe before the time of shearing, but only so many as may reasonably suffice till the time of shearing, and after that time they shall take as many sheepe shorne, (and none other) as may reasonably suffice them for the time to come, and if any Taker, Purveyor or buyer of the realme doe against the same, and be thereof attainted at the suit of the King,Felony. or of the party, it shall be done of him as of a Theife or a robber, and the paine shall be contained in every Commission of such purveyors. 25. E. 3. cap. 15.
6. By another statute made in 34. E. 3. ca. 3. 34. E. 3. ca. 3. it is enacted that of purveyances made to the use of the Queene, and the Prince, of PoultriePoultrie. and of other small things, paymentPayment. shall be made in hand upon the taking, and of other great purveyances, within the moneth or six weekesSix weekes. in the Countries where they shall be taken, and that the number of such Purveyors bee abridged in as much as conveniently may be, for the aide and quietnesse of the common people. Anno 34. Ed. 3. ca. 3.
7. Likewise in Anno 36. E. 3. 36. E. 3. ca. 2. upon grievous complaint against purveyors, the King of his owne will, without motion hath ordeined that from thenceforth no man of his realme shall have any taking, but only himselfe and the Queene his companion, and moreover it is ordained and established that upon such purveyances from thenceforth to be made for the houses of the King and of the Queene, ready paymentReady payment. shall be made in hand, that is to say at the price as such victuals bee sold commonly in the markets thereabout, and that the heynous name of purveyor be changed and named buyer, and if the buyer cannot well agree with the seller for that that he shall need, then the takings which shall be made for the said houses, shall be made by the view, testimony,Victuals. View. and apprisement of the Lords or their Bailiffes,Bailiffes. Constables,Constables. and foure good men of every Towne,Foure townesmen. and that by IndentureIndenture. to be made betwixt the buyers and the said Lords,Lords. or Bailiffes, Constables, and foure men conteining the quantity of their taking, and of the price, and of what persons, and that the praisements be made in conveneable and easie maner without dures, compulsion, manace, or other villanie, and that the takings and buyings be made in such places where greatest plenty is, & that in a conveneable time, and that no more be taken then shall be needfull in the season for the said two houses, and that the number of the buyers be minished in as much as well may, and that such be buyers, which be sufficientSufficient. to answere to the King and his people, and that none of them have Deputy, and that the CommissionsCommissions. be sealed with the great sealeGreat seale. and every halfe yeare returned in the Chancery,Chancery. and other newly made, and that in the said Commissions be comprised all the matter and manner of their takings and buyings, and then all the former Commissions of purveyors be wholly repealed, and that no man be bound to obey the buyers of other Lords against their agreement and will, [Page 190] nor to the buyers of the said houses, unlesse they make ready paymentReady payment. in hand, as before is said, and that no man be put in contempt because of disobedience made in this behalfe, and that the takings of all manner of Corne,Corne. and mault,Mault. for the said two houses be measured by measure,Measure. according to the standerd stricken, and not by heape, and for the carriages of the said Corne and mault, and for all manner of takings and buyings to be made for the said two houses ready paymentReady payment. to be made in hand in the same manner, as for the takings and buyings aforesaid, and that there be no more carriage taken then needeth and shall be necessary in this behalfe, and if any buyer after the new Commissions made, make any takings or buyings, or taking of carriage in other manner then is comprised in his said Commission he shall have punishment of life and of member,Life and member. as in other statute is ordeined of purveyors, Anno 36. Ed. 3. cap. 2.
Extortion. Reward.8. No buyers of victuals, nor takers of carriages, take nor receive of any one or other any gift or other good turne, for sparings to be made, nor shall not charge, nor grieve any man by occasion of such takings,Malice. buying and such carriages, for hatred, envy, evill will, or procurement, and if he doe and be thereof attainted at the suite of the party,Damages. he shall yeild to the party his treble damage, and shall have imprisonment of two yeares,Impris. and also be ransomed at the Kings will, and after foresweare the Court, and if the party will not sue, he that will sue for the King, shall have the third penny of that that shall be recovered for his labour, and neverthelesse the buyer and taker shall have the paine as before is said in the same article super cart. and that every buyer upon his account shall declare and divide severally all the takings and buyings of every County,Accompt. Towne, village, and person, Anno 36. Ed. 3. cap. 3.
9. No man of the said two houses (videlicet, the Kings house and the Queenes house) hold more horses in the livery,36. E. 3. ca. 5. Horses. where these houses shall be, then is ordeined by the statute of the Kings house, and if any doe otherwise, then of the horses found over the number limitted to him by the statute it shall be done as the said statute will, and that no man of the said two houses of what estate or condition, that he be, have purveyor or foregoer, to make any purveyance or takings, but that they or their people buy that, that them needeth, of them that will sell the same of their good agreement, and pay readily in hand, according as they may agree with the fellers, and if they doe otherwise, such punishment shall be made upon them as afore is said of buyers, and that hunters,Hunters. faulconers,Faulconers. sergeants at armes,Sergeants of armes. and all other which be at wages or pertaining to the said two houses, shall have the same penance if they doe against the same, Anno 36. E. 3. cap. 5.
Lord. [...]6. E. 3. ca. 6.10. Item, that no Lord not none other of the said Realme of what estate or condition soever he be, except the King and the Queene shall make any taking by him or any of his servants in any manner of his [Page 191] victuals,Victuals. but shall buy that which they shall need, of such as will sell the same of their good will, and for the same shall make ready paymentReady payment. in hand, according as they may agree with the seller, and if the people of Lords, or of other doe in other manner, and thereof be attainted, there shall be done of them such punishment of life and member,Life and member. as is ordeined of buyers, Anno 36. Ed. 3. cap. 6.
11.7. R. 2. ca. 8. The statutes of purveyors made before this time be firmely holden and kept and put in due execution joyning to the same, that if the servants of other Lords and Ladies,Servants. which be not comprised in the said statutes, doe from thenceforth take within any part of this Realme victuals or carriages,Victuals. Carriage. to the use of their Lords and Ladies, otherwise then they therefore may agree with the owners and sellers of the same, by payment thereof to be made readily in hand, that the same servants shall incurre the paine comprised in the said statutes of Purveyors, and neverthelesse the party indamaged by such servants, if he will may have his suite at the common Law, Anno. 7. R. 2. cap. 8.
12. In the 20. yeare of H. 6. 20. H. 6. ca. 8. it is ordained that the statutes before time made of Purveyors and buyers, shall be holden and kept, and put in due execution, and in case that any Purveyor, buyer, or taker, will take and make purveyance, or buy any thing to the value of 40. s. or under, of any person, and make not ready payment in hand,40. s. ready payment. that then it shall be lawfull to every of the Kings liege people, to retaine their goods and chattels, and to resist such Purveyors and buyers,Resist. and in no manner wise suffer them to make any such Purveyances, buyings, or takings, and for the peace better to be kept, that every Constable,Constable. Tithingman,Tithingman. or chiefe pledge of every Towne or hamlet, where such purveyances or takings shall be made, shall be aiding or assisting to the owner or seller of such things to be against the forme of this ordinance, to make resistance in the forme aforesaid, in case that such Constables, Tithingman, or chiefe pledge bee required that to doe, upon paine to yeeld to the partie so grieved the value of the things so taken with his double damages, and that none of the Kings liege pleople be put to losse or damage by the King or any officer for such resistance, and that none of the Kings officers shall doe to be arrested, vexed or impleaded in the Court of the Marshalsey or elsewhere, any of the Kings liege people for such with-holding or not suffering to be done upon paine to lose twenty pounds,Forf. Moitie. the one moity of that to the King, and the other moitie to him which will in such case sue, and that the Iustices of peaceIustice of peace. in every County shall have power by authority of this ordinance to enquire, heare, and determine,Oyer and Ter. aswell at the suite of the King as of him that will sue, of any thing done against this ordinance and thereof to make due punishment and execution, and to award damagesDamages. to the party plaintiffe, when any defendant is thereof duely convict, and that in every Action to be taken upon this ordinance every party defendant shall be put to answere to that without aide of the King, and in such Actions to be taken,No aide Proces. proces [Page 192] shall be made, as in a writ of Trespasse done against the peace, and that in every CommissionCommission. of Purveyors, takers, or buyers, to be made this ordinance shall be contained and expressed, and moreover that this ordinance among other statutes of Purveyors, buyers, or takers, before this time made, shall be sent to the SheriffesSheriffe. of every County to proclaime and deliver the said statutes and ordinances in the manner and forme contained in the statute of purveyors and buyers, made in the first yeare of the Raigne of the said King. H. 6. And moreover the King will and commandeth that the statute made the six and thirtieth of King Edward late King of England after the cōquest touching Purveyors of other persons then of the King, shall be put in due execution, Anno 20. H. 6. cap. 8.
13. In anno 23. H. 6. ca. 2. 23. H. 6. ca. 2. it is ordained that the said statutes of an. 36. E. 3. from thenceforth should be duely kept and put in due execution, and moreover that every purveyor and buyer, before that he shall have any Commission shall be sworneSworne. in the Chancery,Chancerie. that he shall take nothing of the people contrary to the said ordinances, and moreover forasmuch as the poore people be not of power, nor dare make resistance against the purveyors and buyers, nor sue them by the law, though that they doe contrary to the said statutes, It is ordained by the same authority that the praisers, and also all the Towne and townesTownes. adjoyning, if need be, shall be bound to doe their devour and power to resistResist. the buyers and purveyors doing contrary to the said statutes, and as much as in them is to execute the said statutes upon the said Purveyors, if they be required, and that he which is grieved of his goods taken contrary to the said statutes and ordinances, may chuse to have either an Action of debtAction of debt. against the said preisers, Towne, or Townes, and every of them which doe not their devour in resistance of the said Purveyors, or buyers, in the forme aforesaid, when they shall be required or else against the said Purveyors,3. Value. 3. Damages. or buyers, and every of them, to recover the treble value of his goods so taken, and moreover his treble costs and damages, and if any purveyor and other the Kings officer doe trouble or vexe any of the Kings liege people in the marshalsey or elsewhere, by any evill suggestion or cause fayned, imagined, or coloured upon them, because of the execution of the said ordinances, he shall incurre the paine of Twenty pound,Forf. to be paid to the party grieved over his damages and costs in that behalfe sustained, and that he thereupon shall have a writ of debt,Writ of debt. and that every issueIssue. triable in this action shall be tried in the countyCounty. where the taking of the said goods was made, and that the defendants in the said causes shall not be admitted to wage their law, and shall be put to answere without forcing, and no e [...]oyne [...]ide of the King nor protection shall be to them allowed, and that the Sergeant of the CaterieS [...]eant of C [...]terie. shall satisfie all the damages, debts and executions which shall be recovered against every Purveyor and buyer, underneath him in all the cases aforesaid, in [Page 193] case that the Purveyor or buyer be not sufficient to satisfie, and the party complainant shall have a scire facias Scire facias. to have execution against the said Sergeants in the case, and that these statutes and ordinances shall be sent to the Iustices of the peace in every County to proclaime them every yeare, and thereof to informe the people.Iust. of P. Proclamation. Anno 23. Hen. 6. cap. 2.
14. If any buyer or other officer of any LordLord. or person,23. H. 6. ca. 14. of what estate, degree, or condition that he be, presume upon him to take, or otherwise doe take any victuals,Victuals. Corne,Corne. or hay,Hay. carriages,Carriage. or any other thing whatsoever, of any of the Kings liege people, in any wise against their will without lawfull bargaine betwixt the said buyers, or officers, and the said liege people thereof to be made, to the use of the said Lords for their houses, but all onely for the King and the Queene and their houses, that then if notice or request be made to the Mayor,Maior. Sheriffe,Sheriffe. Bailiffe,Bailiffe. Constable,Constable. Officers, or other of the Kings ministers, of Cities and Borroughes or other Counties or places, where such taking shall happen to be, that the said Maior, Sheriffe, Constable, Officer, and Minister, to whom such notice or request shall be made, by and by shall take and arrest all such buyers and officers so doing or offending,Arrests. Impris. Mainprise. and them shall send to the Kings next prison there to remaine and not to be let to baile nor maineprise till the time that they have restored all the said victuals, carriages, and other things so taken, or the very value of the fame, and if the said Maior,Maior. Sheriffes,Sheriffe. Bailiffes,Bailiffe. Constables,Constable. and Officers aforesaid doe contrary to this, that then they shall forfeite twenty pound, whereof the King shall have the halfe,Forf. Moitie. and the party from whom such things be taken the other halfe, if he will sue, by an Action of debt,Action of debt. in the which the defendant shall not doe his Law, and if he will not sue, whosoever will sue for the King and himselfe, shall have the suite to recover to himselfe the one halfe thereof and the King the other halfe, and if any of the said buyers other then of the King and the Queene, be duely convictConvict. of such unlawfull taking (as afore is recited) at the suite of such parties as shall be against them in this behalfe, that then they shall yeild to the party which so sueth the treble value of the victuals or other thing so taken, and the double costs of their suits,3. Value. 2. Costs. and for the said trespasses to make fineFine. and ransome to the King, and that in all such Actions or suits aforesaid the Kings protection shall not be allowed nor availeable for the defendant, provided alwayes, that by this Act the punishment ordained against the Kings Purveyors in no wise shall be restrained, Anno 23. H. 6. cap. 14.
15. And lastly by a statute made in Ireland in anno 18. H. 6. It is enacted that from thenceforth no Purveyor, Harbinger, nor Aveyner, be within the said land, but that the Iust. of the said land of Ireland that then was, and the Leivetenants, Iustices, or Governours that for the time should be, should pay or agree with them from whom any goods should be taken by their Achators, and if the said Lievetenants, [Page 194] Iustices, or Governours by their Achators doe not in the order aforesaid, it should be lawfull to him whose the goods are to make resistance to such Achators or officers without offence or impeachment of the King. And it was also agreed and established that all the statutes in this behalfe made within the Realme of England be holden and kept in all points and put in execution in this land.
16. These statutes I have rehearsed the more at large to the end that it may thereby appeare what grieveous oppressions have beene committed in times past by Purveyors, and that every man may understand the ease and benefit which the subjects of Ireland enjoy by the royall composition heretofore made and established and now continued in this kingdome.
Riots, Routs and unlawfull assemblies. CHAP. 50.
1. ANy one Iustice of peace alone may use all good meanes to prevent a Riot or Rout before it be done,Lamb. 184. 34. Ed. 3. 1. P. Iust. 18. Dalton pa. 97. and for to stay it whilst it is in doing, and in the doing may take and imprison the Riotters, and bind them to their good behaviour, but being once done and committed, one Iustice of peace can neither record the Riot, nor make enquiry thereof,14. H. 7. 8. 9. nor assesse any fine, nor award any proces, nor otherwise medle to punish it,Dalton pa. 97. (in the nature of a Riot, or Rout) but only as a Trespasse against the peace, or upon the statutes of Northhampton, or of forceible entries.
2. And yet if one Iustice of peace sitting in a judiciall place (as in the Sessions) shall see a Riot,Cromp. 65. he may command them to be arrested, and may make a record thereof, and the offendors shall be concluded thereby, but if one Iustice of peace shall see a Riot in another place and shall command them to be arrested, and shall make a record thereof, the offendors shall not be concluded thereby, but may traverse it.
3. If a Iustice of peace will commit a man to ward, pretending untruely that he did a Riot,Br. Iudges 2. & 10. 9. H 6. [...]0. 9. Ed. 4. 3. where he did none, the party may not have an action of trespasse upon the case against him, for an action will not lie against a Iustice or Iudge of Record in a thing that hee doth as Iudge by the opinions in 9. H. 6. 60. & 9. E. 4. 3. but if this bee done of malice or corruption he shall be punished for it in the Starchamber.
4. Every Iustice of peace (being of, and in the County, and having notice of any Riot,Dyer. 210. Rout, or unlawfull assembly) ought to have a care of the execution of the statute made 13. H. 4. cap. 7. 13. H. 4. 7. viz. that the Riotters, &c. be arrested and removed, for if the statute be not executed by some of the Iustices, the two next Iustices of peace shall forfeit each of them 100. l. and every other Iustice of peace within that County in whom there shall be any default, shall be fined in the Starchamber.
[Page 195]5. And therefore every Iu. of P. of the County,14. H. 7. 9. hearing of any Riot, or of any Intention of a Riot, (without making any precept or tarrying for his fellow Iustice) shall doe well to goe himselfe, (if he be able) with his servants or other power of the County, if neede be, to the place where such persons be so assembled, and to suppresse them, and all such as he shall finde riotously assembled (and armed) to arrest them, and to force them to put in suretie for the peace, or for their good behaviour, and for refusing to give such suretie, or in default of suretie to imprison them; Also he may take away their weapons and armour, and seize and prise them for the King.
6.14. H. 7. 10. Br. peace 7. And if the Iu. of P. (being come to the place) shall not finde the Riotters, yet come thither, he may leave his servants there, to restraine them in their said enterprise, or else to arrest such offendors when they shall come, if they shall offer to commit any Riot, or to breake the peace.
7. So if the Iu. be sicke, and shall heare of a Riot, he may send his servants (or other power of the County, if need be, as it seemeth) to the place to represse it, or to arrest such offendors, and to bring them before him, to finde sureties for the peace, and all this he may doe,14. H. 7. 10. Br. peace 17. and command by word of mouth, without any warrant in writing, and without expecting the comming of any his fellow Iustices, or of the Sheriffe or undersheriffe.
8. Also any one Iustice of peace (by the first Assignavimus in the Commission) may cause to be kept and put in execution all other statutes made for the repressing of Riots, force and violence,Dalton pa. 9 [...]. but therein he must deale onely according to the forme and order in such statutes prescribed.
9.13. H. 4. ca. 7. P. 1. 5. Two Iustices. But the ordinary power of punishing of Riots belongeth unto two Iu. of P. at the least, and therefore the two next Iustices of peace which dwell nearest in the County where any Riot, assembly or Rout of people shall be against the law (together with the Sheriffe or undersheriffe of the County upon complaint or other notice of the Riot,) shall doe execution of the statute 13. H. 4. 7. videlicet, Dyer. 210. of all and every part thereof respectively, as to them is appointed; Every one of them upon paine of 100.l. and in default of the two next Iustices, the other Iustices of peace of and within the County (upon notice of such riot) ought to doe execution thereof,Cromp. 63. every one upon danger to be fined in the Starchamber, but the penalty of 100. l. is only to be levied upon the two next Iustices.
10. And if the Riot,Dalton 9 [...]. &c. bee great and notorious whereof by common Intendment every person may take knowledge, it is not safe for the Iustice or Sheriffe, &c. to expect and stay till complaint thereof shall be made to them, or that they shall have information or notice given them thereof, least they incurre thereby the said penalty of 100.l. a peece.
11. If any other of the Iustices of peace of the County,P. R. [...]0. besides [Page 196] those two which are next shall execute this statute,Dalton 98. that shall excuse the two next Iustices, for that the statute giveth power herein to all Iustices.
Dalton 98.12. If one, or the two next Iustices shall come, and not the Sheriffe or undersheriffe, such Iustices as doe come shall be excused of the forfeiture of 100.l. but though the said Iustices shall be excused of the said forfeiture, yet if there commeth but one Iustice of peace, he ought to arrest the Riotters, and to remove the force, and commit the riotters, otherwise he is fineable, &c.
13. And if there shall bee two Iustices present, and neither the Sheriffe nor undersheriffe,Dalton pag. 98. & 99. yet those two Iustices are fineable, if they shall not doe all that, which (without the Sheriffe or undersheriffe) they are authorised to doe by the said statute.
Dalton pa. 99.14. But no Iustice of peace that dwelleth in another County is bound (upon the said penalty of 100.l.) to execute the said statute of 13. H. 4. although he dwelleth next to the place where the Riot is, and although he be in the Commission of the peace for the County where the riot is, as it seemeth, for the words of the statute are, the Iustices which dwell nearest in every County where such Riot shall be, and not which dwell neare to the place where the riot shall be, and yet it seemeth safe that such Iustice dwelling out of the County upon notice of such riot, doe come into the County, and doe his endevour to suppresse the same riot, and to execute the statute, for that he is one of the Iustices of the County.
15. If the Sheriffe or undersheriffe doe not come, the Iustices ought to send for them, as Master Marrow thinketh.
16. And some seeme to be of opinion, that if the Sheriffe or undersheriffe shall not come to the Iustices,P. R. 30. being sent for to assist them, that then all the Iustices of peace dwelling neere or remote shall be excused of the same penalty of 100.l. or of any other penalty or fine, for that the said statute doth give the Sheriffe or undersheriffe equall authority, and as it were joine him in Commission in the copulative with the Iustices of peace,Cromp. 63. Dalton pa. 99. but others seeme to be of another opinion, videlicet. that if the Sheriffe or undersheriffe shall not come, yet the Iustices of peace shall be fined if they come not and arrest the riotters, and doe not moreover proceed to doe therein all that which (without the Sheriffe or undersheriffe) they are any wayes authorised to performe.
17. Now what the Iustices of peace may or ought to doe therein, by force of this statute 13. H. 4. 7. without, or in the absence of the Sheriffe and undersheriffe is worthy consideration, as being needfull for the Iustices of peace to know, and safe for them to performe, aswell for the speedy preventing of such present mischiefes as may happen to the common wealth by such dangerous assemblies, as also for their saving of the penalty of the Law, otherwise like to lye upon them.
[Page 197]18.Dalton pa. 99. But herein others (of good judgement and experience) that have written thereof, have both seemed to doubt, and written sparingly thereof, notwithstanding I shall not spare to deliver mine opinion and leave it to the further consideration of others of better Iudgement.
19. As I conceive there is no doubt, but that the Iustices of peace (without the Sheriffe or undersheriffe) upon all riots, may and ought first to goe to the place, and such riotters as they shall see or finde riotously assembled, they may and ought to arrest and to take away their armour and weapons, and to remove the riotters, and may cause them to finde sureties for the peace, or good behaviour, and for want of such sureties may commit them to the gaole, all which any one Iustice of peace may doe.
20. Also two Iustices of peace, after the riot committed,P. Riots 4. Cromp. 6. 7. b. without the Sheriffe or undersheriffe, as I conceive, may and ought to inquire of the riot, and if upon such inquiry the riot be found, the Iustices may fine and imprison the offendors.
21. But two Iustices of peace, as I conceive, seeing a riot, may not record the same upon their owne view, without the Sheriffe or undersheriffe, and thereupon, without any inquirie, fyne them for the same, and commit them to prison till they have paid their said fyne, for by the statute the Sheriffe or undersheriffe are associated to the Iustices of peace, and have equall and joynt authoritie with them therein, and then consequently the Iustices of peace alone upon their owne view, without inquirie, can neither fyne them, nor imprison them for their fyne.14. H. 7. 9. b. See Co. 10. 103. b. such a matter. M. Lamb. thinketh it to be the stat. 34. Ed. 3. 1. that Fineux meant, rather then the statute of 13. H. 4. 21. H. 6. fo. 5 [...]
22. Yet Fineux chiefe Iustice, saith that this statute of 13. H. 4. was made for the common profit of the Realme, and for a hastie remedie, and to avoide a present mischiefe like to happen, and therefore shall be construed largely for the common good, and in furtherance and advancement of expedition of Iustice.
23. Also we see that any one Iustice of peace may doe all these things in case of a forceible Entrie, for any one Iu. of peace may come with the power of the County, if need be, and may arrest the offendors, and may record the force by him viewed, and this record shall be a sufficient conviction, so that he may commit the offendors to the gaole, and may fyne them.
24. Also by some good authorities,Fitz. Iust. 9. 14. H. 7. 8. Cromp. 65. 196. if two Iustices of peace (without the Sheriffe) shall fee a Riot they may arrest them, and make a record thereof, and the offendors shall be concluded by such record, for that the view of the riot is not to be traversed.
25. Also the statute 34. E. 3. ca. 1. Rast. Iust. 3. seemeth to enable two Iustices of P. to imprison Riotters, and that without inquirie, and then consequently, it seemeth they are to make a record of the Riot.
26. But as I conceive none of those authorities will warrant two Iu. of P. upon the statute of 13. H. 4. ca. 7. 13. H. 4. ca. 7 [...] upon their view alone without [Page 198] the Sheriffe to impose a fyne upon the Riotters, and to record the same.
27. And now to the particulars of that which the two next Iustices of peace with the Sheriffe or undersheriffe must doe in execution of this statute of 13. H. 4. 7. Every one upon paine of 100.l.
13. H. 4. 7. P. 1. 2.28. First, they shall goe to the place in person, if they bee able, where the Riot, &c. shall be.
29. And they shall take the power of the County (if need be) sc. they shall have the aide of the Knights and other temporall persons under that degree, that be above the age of fifteene yeares, and bee able to travell,2. H. 5. 8. P. 12. for all the Kings subjects that are in the County where a Riot, &c. shall be, being able to travell must bee aiding and assistant to the Iust. of peace, Sheriffe, or undersheriffe (or other Commissioners when they shall be reasonably warned,) to ride or goe, with the said Iustices, &c. Sheriffe, &c. in aide to resist such Riots, &c. upon paine of Imprisonment, and to make fyne and ransome to the King, which ransome shall be treble so much at the least as the fyne, Dyer 232.
30. But it is referred to the discretion of these two Iustices, how many or few they will have to attend them in this businesse,Cromp. 64. and in what sort they shall bee armed, weaponed or otherwise furnished for it.
31. Neverthelesse, it is not good for the Iustices to assemble the power of the County,Cromp. 64. Posse Comitatus. without certaine Information or knowledge of such riotous assembly, yet if upon false information of a Riot, to be at such a place, the Iustices shall cause the power of the County to be assembled, the Iustices shall be excused by reason of the information; and if without information, the Iustices shall thinke that such a riotous assembly is made in such a place, and shall assemble the power of the County to goe thither to arrest the Rioters, and when they come to the place they finde a Riot there indeed, they must arrest and imprison the offendors, and shall bee excused of the assembly made by them, but if they shall find no Riot there, then shall they be punished for making such an assembly of their owne heads without an information and without any cause.
Arrest. Dalton 101.32. All such offendors as they shall finde there present, they shall arrest or cause to be arrested, and shall remove the force, sc. shall commit to prison all the Rioters, and take away their weapons.
33. Also it seemeth, that all such as came in the company with such rioters, or in the company of any of them, if that the Iustices shall finde them there present (though they doe nothing,Dalton 101. and though they came without any intent of their parts to commit any Riot, yet they shall be arrested, imprisoned, and fined, fee to this purpose in the title forceible entry.
Mar. Lect. 8. Cromp. [...]3.34. Also all such rioters, as the Iustices shall meete in their way (riotously arrayed, and comming from the place) they may arrest [Page 199] and imprison them, for that they found them unlawfully assembled,Dalton 102. but they cannot record any riot by them done, for that they saw it not, yet they must afterward (as it seemeth) inquire thereof by a Iury, that so the offendors may be fined, &c.
35. But if the Iustices doe come and see the riot committed and after the said riotters shall escape from the Iustices at that time, yet the said Iustices shall record it, but they cannot arrest them, at any other time, except it be presenly after and in fresh suite, neither can they fine the offendors nor award any proces against them upon the record which they shall make, and yet for that they saw the riot (and those riotters that be escaped, committing the riot) they shall record it, but that record shall not be kept amongst the rest of the records of the peace, but the said Iustices shall send the said record into the Kings Bench, that processe may from thence be made upon it against those riotters that be escaped, where also the said offendors shall not be admitted to any traverse, but must of necessity make fine for their said offence.
36. If after the Iustices and Sheriffe shall see the riot,Dalton 102. the said riotters shall escape, and the Iustices and the Sheriffe shall record the same riot, and then one of the Iustices be put out of the Commission, or the Sheriffe or one of the Iustices shall happen to dye, yet shall that record be sent or certified into the Kings Bench by the other Iustice.
37. Also such offendors as the Iustices saw committing the riot, though they shall escape from the Iustices,13. H. 7. Cromp. 196. Dalton 102. yet the said Iustices may after grant out their warrants for them, and send them to the gaole, till they shall finde surety for the good behaviour.
38. If such offendors shall depart before the comming of the Iustices, yet upon certaine information of their being there,Dalton ibid. the said Iustices may also grant out their warrants for them,34. Ed. 3. ca. 1. P. Iust. 18. and may commit them till they have found sureties for their good behaviour, and yet rather the Iustices shall doe well to proceed against them, by inquiry, and so to fine the offendors for the King, &c.
39. Also in the execution of this arrest of the riotters,Cromp. 62. 158. Dalton 102. the said Iustices, &c. may justifie the beating, wounding, or killing of any the riotters that shall resist them, or that will not yeild themselves to them.
40.Dalton ibid. Also the said Iustices may take from such riotters their Armour, harnesse, and weapons, and shall cause the same to be prised, and to be answered to the King as forfeited.
41. After the arrest made,Record. 13. H. 4. ca. 7. P. 1. the said Iustices (and Sheriffe or undersheriffe) shall make a record in writing of the said riot, scil. of all that which they shall see and finde done in their presence against the Law without any other inquiry.
42. But if the Iustices of peace doe not themselves see the Riot,Dalton 103. then they cannot make a record thereof, but then they must inquire thereof.
[Page 200] Ibid.43. If the Iustices of peace, &c. going to see a Riot, another riot shall happen in their presence, they may record this, and arrest and imprison the offendors.
Ibid.44. So if the Riotters shall make a Riot upon the Iustices and Sheriffe that doe come to arrest them for their former riot, they may record that also.
Ibid.45. So if two Iustices of peace and the Sheriffe or undersheriffe shall meet for any other occasion of service, or for any private businesse (as upon an arbitrement or other like matter) and a riot shall happen to be done upon themselves, or in their sight, they may record it, and may arrest and imprison the offendors.
9. H. 6. fo. 60. Cromp. 63. 65.46. And if the Iustices of peace shall record a riot, and upon examination of the matter after, it shall appeare to be no riot, or that they saw it not, or that there was no riot at all, yet the parties shall be concluded thereby, and have no remedy by course of common Law; but if it be done of malice or partiality, they shall be punished for it in the Starchamber, and therefore the Iustices shall doe well to be advised what they record. See 9. H. 6. fo. 60. Br. Iudges 2.
Dalton pa. 103.47. And againe, for that this record of the Iustices and Sheriffe is a sufficient conviction in it selfe against the offendors, therefore it ought to be formall and certaine, as well for the time and place as also for the number of weapons, manner, and other circumstances, because the parties be concluded thereby, and shall not bee received to traverse, or deny it in any point.
48. For the forme of the record, vide tit. Warrants and presidents.
49. The record ought to remaine with one of the said Iustices of peace,Dalton pa. 103. and shall not be left amongst the records of the Sessions of the peace, it being made out of the Sessions and not appointed to be certified thither.
50. Also the said Iustices of peace (and none other Iustices of peace) shall commit such offendors to the gaole,Dalton pa. 103. there to remaine convict by their view, testimony and record (as in case of forceible Entrie) untill they have paid a fyne to the King.
51. Also such commitment of the offendors to the gaole ought to be done presently.Co. [...]. 120.
52. And the power of the County ought to bee ayding to the Sheriffe and undersheriffe for the convaying of them to the gaole,Dalton pa. 103. if there be occasion.
53. If the Iustices of peace, and Sheriffe or undersheriffe shall record the riot,Cromp. 61. and shall not presently commit the riotters to prison, or if they shall commit them to prison, and shall not record the riot, they shall forfeite every of them 100.l. by the statute 13. H. 4. F [...]o [...] [...]. P [...]t [...]. 1 [...] H. 4. [...]a. 7. for that [...] [...]ha [...]e no [...] done execution of the same stat. for by the statute they shall record fine and commit the offendors, or else the statute is not fully executed.
54. Also the said Iustices of peace, and none other, shall assesse [Page 201] the fines upon the offendors,Cromp. 161. 2. H. 5. ca. 8. for they have best knowledge of the matter, &c. Co. 8. 4. 1. a. which fines by the statute 2. H. 5. 8. ought to be of good value that out thereof the charges of the said Iustices and other officers may be borne, sc. their charges in going, tarrying,Dalton pa. 104. and returning, &c. about the suppressing and inquiry of such riots, of which charges payment shall be made by the Sheriffe, by Indenture thereof made betweene him and the said Iustices.
55. And yet such fines must be reasonable and just and secundum quantitatem & qualitatem delicti, and not unreasonable or excessive, (for excessus in re qualibet jure reprobatur communi, Co. 11. 44. and so it is commanded by the statutes 18. E. 3. 2. & 34. Edw. 3. 1. P. Iust. 1. & 18.
56. Note also that the fine assessed in this and such like cases must not be imposed upon all the offendors jointly, but must be assessed upon every offendor severally. Co. 11. 43. 44.
57. And the said Iustices shall cause the said fines to be estreated into the Exchequer,Dalton 104. that so the said fines may be levyed to the Kings use, and then they are to deliver the offendors againe, as it seemeth, or else the said Iustices may record such riot by them viewed, and commit the offendors, and after certifie the record to the Assizes or Sessions, or into the Kings Bench, as in case of a forceible Entry.
58.13. H. 4. 7. But it the riot was not committed in the presence of the Iustices of peace, or that the offendors be departed before the comming of the said Iustices and Sheriffe or undersheriffe, then the said Iustices, or two of them at the least, within one moneth after such riot, assembly, or rout, shall inquire thereof,Enquiry. by the oathes of a sufficient Iury (to be returned by the Sheriffe, and the same riot, &c. being found by such Inquisition, the said Iustices must make a record in writing of such their inquiry, and presentment found before them, which record also is to remaine with one of the said Iustices. P. R. 29.
59. The forme of such enquiry or presentment you may fee in the title of warrants and presidents.
60. This enquiry shall not be,Cromp. 62. but where the rioters are gone before the comming of the Iustices.
61.Dalton pa. 104. It is not necessary that one of the Iustices of peace which shall make enquiry of a riot, be of the Quorum.
62. Although the words of the statute are, the same Iustices,Dalton pa. 104. scil. which came to see the riot, shall enquire, yet if any other two Iustices of peace of that County shall doe it, that will suffice.
63.Ibid. Also the Iustices of peace although they goe not to see the riot, yet they may enquire thereof within the moneth after.
64.Dalton pa. 10 [...]. Neither is it of such necessity to have the enquiry within the moneth, that for default thereof the presentment shall be voide, for the Iustice of peace may enquire thereof at any time by force of their Commission, but if it be not within the moneth then the two next Iustices are in danger to loose each of them 100. l. for their neglect, and yet if these Iustices doe charge the Iury within the moneth, and [Page 202] doe give day unto them for to yeild their verdict and presentment after the moneth, the statute is not offended.
65. At this enquiry the Sheriffe or undersheriffe ought to be present with the Iustices of peace,Ibid. but the Sheriffe or undersheriffe be now as ministers (only for the returning of the Iury) for the enquiry, and be not herein associated with the Iustices as they were before in arresting the rioters, and recording their disorder, and therefore they are now to be spared from being Iudges therein, howbeit by this their presence they may helpe to espy the evill, and besides, it addeth force and credit to the certificate.
66. If the Iustices doe assemble themselves, the Sheriffe and the Iury,Cromp. 62. P. R. 29. to make enquiry of a riot within the moneth and the parties been agreed amongst themselves, so as none will sollicite the inquiry, nor give in Evidence for the King upon the riot, yet ought the Iustices to proceed (ex officio) to make inquiry of that riot, seeing it may be that some of the Iury may have knowledge of the riot.
67. And also the Iustices ought to make Proclamation, that if any man will give Evidence for the King concerning that riot, or (generally) will informe the Kings Iustices of any Riots, Routs, &c. and thereupon some other persons may perhaps come forth to informe them therein.
P. R. 29. Cromp. 62.68. But if at the parties request, the Iustices shall dismisse the Iury without inquiry, they are fineable in the Starchamber to the King for the same.
Dalton 105.69. And if the Iustices shall not proceede herein (ex officio) without some will give in Evidence for the King, they shall be in danger to lose 100. l. a peece upon this statute, for the reasons abovesaid.
Ibid.70. And it seemeth that the Iustices may justly binde to their good behaviour the parties that first complained to them of this riot, and have caused them to meet, and now will not prosecute the same for the King, but have agreed it.
13. H. 4. 7. P 2. Heare and determine.71. After such enquirie made, and riot found, the said Iustices have authoritie, by the said statute to heare and determine the same according to the law, viz. they may make out proces against the offendors under their owne test. (thereby to cause the offendors to come in and answere) and may assesse their fynes,Dalton 105. and may commit them to prison till they have paid the same, and may deliver them after payment of the said fyne,Br. Impris. 100. or upon sureties taken for it (which sureties ought to be bound by recognisance) or otherwise they may receive their traverse, and thereupon (if the matter will so serve) to discharge and dismisse them, but then the said Iustices shall doe well to send such indictment or inquisition found (and such traverse) to the next Quarter Sessions, or into the Kings Bench, and there the traverse shall be tryed and determined according to Law. P. R. 30.
72. But when men are indicted of Riots, or the like they will usually yeild themselves, and pray to be admitted to their fine, in which [Page 203] case the Iustices of peace, commonly doe assesse but some small fyne, and upon the payment thereof doe discharge the offendor, and hereby the offendors are not imprisoned, which would worke more feare in such offendors then such fyne, and therefore it is behoovefull for the Iustices of peace to use good care and discretion herein, for by the statute the offendors are aswell to be imprisoned as fyned, and it seemeth much more serviceable and more agreeing with the intent of the Law, besides this fine called by diverse old statutes ransome,Mar. ca. 1. 2. 3. 4. (or redemptio) in Latine seemeth by the propriety of the word to imply that the offendor ought first to be imprisoned and then to be ransomed and delivered in consideration of this fyne,Dalton p. 105. or otherwise the statute is not fully executed in all points as it ought to be.
73.Ibid. And these fynes the Iustices of peace are now willed by the statute 2. H. 5. ca. 8. to put in greater summes then they were wont to be put in such cases, for the bearing of the charges of the Iustices and other officers, &c.
74. At the common Law a Riot was punishable as a Trespasse, and aswell the fyne as the imprisonment were at the discretion of the Iudges, and in the same manner the statute of 13. H. 4. enableth the Iustices of peace to punish such offendors, but now aswel the imprisonment as the fine of such offendors are to be encreased by the said statute 2. H. 5.
75. And therefore where the Iustices of peace are remisse herein,Cromp. 63. P. R. 24. scil. in not sufficiently punishing such offendors by due fyne and imprisonment, the Lords in the Starchamber, may, and doe often assesse upon Riotters, for the same Riot, (for which the Iustices of peace have formerly assessed a fine in the Countrey) a greater penalty, if they see cause, and yet in this case the offendors be not twice punished for one offence, but part of the due punishment is inflicted at one time, and part at another.
76. Lastly, if the truth,Certificate. 13. H. 4. 7. 19. H. 7. 13. P. 3. 15. or Riot cannot be found by the Iustice of peace upon such enquiry (being hindred by the perversenesse of the Iurors, or by the unlawfull maintenance, or imbracery of others) then within one moneth next after the enquiry the same Iustices and Sheriffe or undersheriffe shall certifie before the King and his Councell, scil. into the Starchamber,Dalton pa. 107. or to the body and board of the privy Councell, or into the Kings Bench the whole fact and circumstances thereof, with the certainty of the names of the principall offendors,P. 15. and also the names of such mainteiners and embracers, with their misdemeanors, and of the time, place, and other circumstances, and impediments, yet the not certifying of the maintenance or embracery is but forfeiture of twenty pound a peece to every of the Iustices and Sheriffe the not certifying the rest,P. 13. But such traverse and certificate shall be sent into the Kings Bench and there be tryed. P. 1 [...]. is a forfeiture of 100. l. Cromp. 63. b. & 199. b.
77. The end of this certificate is but onely to put and force the offendors to answer thereto, before the King and his Councell, and though the words of the statute doe make this certificate to bee of [Page 204] the force of a presentment of twelve men against the offendors, yet such certificate is no Conviction, but that the offendors may traverse it by the words of the same statute: and so this certificate is only of the nature of a declaration or indictment at the common law, and therefo [...]e it ought to comprehend the certainty of the time, place, persons and other materiall circumstances.
Dalton p. 107.78. If this certificate be not made within one moneth after the enquirie, then it is not according to the statute, and so not good to force the offendors to answere.
Ibid.79. If two Iustices of peace and the Sheriffe shall goe to see a Riot, yet any two other Iustices of the County, may make the enquiry, and then they altogether, or the first two, or the last two with the Sheriffe or undersh [...]riffe may make certificate thereof within the moneth after that inquisition taken.
Cromp. 63.80. Where there be severall certificates made, or that the certificate and enquiry doe disagree, then that shall be proferred which is best for the King.
81. If there shall be twenty parties to a Riot, and the Iury shall finde but ten of them guilty,Dalton 107. yet the Iustices may certifie that twenty committed the Riot, and this certificate of the Iustices shall stand good.
Dalton 107.82. Also it seemeth, if any thing materiall happen to be omitted or left out in the inquisition, yet it may be supplied by this certificate, and it shall stand good.
83. If after the inquiry and before the certificate, the Sheriffe shall dye,Ibid. or one of the Iustices be put out of the Commission, no certificate can be made by the opinion of Master Marrow.
84. For the forme of such certificate see the Title of warrants and presidents.
2. H 5. 8. P. 6.85. Upon the default of the two next Iustices, and Sheriffe or undersheriffe, for not excuting the said statute of 13. H. 4. ca. 7. the party grieved may have a CommissionCommission. to inquire, aswell of the Riot, as of the defaults of the said Iustices and Sheriffe.
2. H 5. [...]. P. 6.86. Also the Lord Chancellor of Ireland (if he shall have notice of such a Riot) shall send the Kings writ to the Iustices and Sheriffe, commanding them to execute the said statute of 13. H. 4.
87. And although that such writ come not to the said Iustices, Sheriffe, or undersheriffe, yet they shall not be excused of the penalty of 100.l. aforesaid, if they make not execution of the said statute.
2. H. 5 ca. 9.88. Also if any assemblies of people in great number in manner of insurrection,8. H. 6. ca. 14. or other rebellious Riots, shall be done or committed,Rast. 374. and that such off [...]ndors shall withdraw themselves, to the intent to avoide the execution of the Law, thereupon certificate by two Iustices of peace,Dalton p. 108. and the Sheriffe of that County by letters under their seales, to the Lord Chancellor of England of the same Riot, and that the common voice and fame thereof runneth in the said [Page 205] County, the Lord Chancellor may make a Capias to the said Sheriffe for the apprehending of such offendors, and after, if need be, a writ of Proclamation that the said offendors yeild themselves in the Kings Bench at a certaine day upon paine to be convicted thereof.
89. The statute of 13. H. 4. 13. H. 4. ca. 7. authorising and enjoyning the Iustices of peace (together with the Sheriffe) to arrest, remove, and punish the offendors, as is before declared, gave no remedie to the partie grieved, if the Iustices of peace or Sheriffe should make default therein, and therefore the said statute of 2. H. 5. was made authorising the Lord Chancellor at the instance of the partie grieved to grant a Commission to inquire of the defaults of the two next Iustices of peace and Sheriffe in not executing the aforesaid statute of 13. H. 4. and withall providing how the charges of the Iust. spent about the suppressing and inquirie of such Riots should be borne, and also limitting what punishment aswell the offendors of such riots, as also all such as should not be ready to assist and aide the said Iustices to represse such Riotters, should suffer.
90. So as now it appeareth by that which hath been said that the Iustices of peace are to be severely punished if they shall be remisse or negligent in the due execution of the said statute of 13. H. 4. and therefore it will be requisite in this place to set forth for the instruction of the Iustices of peace these particulars following, videlicet:
1. First, what shall be said to be a Riot, Rout or unlawfull assembly and what not.
2. What persons may commit a Riot, Rout or unlawfull assembly.
What shall be said to be a Riot, Rout or unlawfull assembly within the meaning of these statutes. CHAP. 51.
1. VVHen three persons or more shall come or assemble themselves together,Br. Riot 5. Cromp. 68. P.R. 25. to the intent to doe any unlawfull Act with force or violence against the person of another, his possessions, or goods, as to kill, beate, or otherwise to hurt or to imprison a man, to pull downe a house, wall, pale, hedge or ditch wrongfully, to enter upon another mans possession, or to cut or take away Corne, grasse,Br. Riots 4. Ʋnlawfull Assembly. wood, or other goods wrongfully, to hunt unlawfully in any parke, or warren, or to doe any other unlawfull act with force or violence against the peace, or to the manifest terror of the people, if they only meet to such a purpose or intent (although they shall after depart of their owne accord,Rout. without doing any thing) yet this is an unlawfull assembly.
2. If after their first meeting they shall ride, goe,Dalton 20 [...]. or move forward [Page 206] toward the execution of any such Act (whether they put their intended purpose in execution or not) this is a Rout.
3. And if they doe execute any such thing indeed, then it is a riot;Riot. and yet by the opinion of some a Rout is only, where such a company (of three or more) are so assembled for their owne common quarrell,Ibid. as where the Inhabitants of a Towne doe assemble together to pull downe a house, wall, pale, ditch or other inclosure, pretending to have title of common, or a way there, or to beat a man that hath done them some publick offence, but yet the word Rout, seemeth to have a more large and ample meaning, as appeareth by the statute of 18. Ed. 3. st. 1. speaking of Routs that are brought in the presence of the Iustices, and the statute of 7. R. 2. ca. 6. treating of riding in great Routs.
4. Now in Riots, Routs or unlawfull assemblies, these foure circumstances are to be considered:
1. First, the number of the persons assembled.
2. Secondly, the intent or purpose of their meeting.
3. Thirdly, the lawfulnesse or unlawfulnesse of the Act.
4. Fourthly, the manner and circumstances of the Act.
5. For the number,The number. there must be necessarily three persons at the least so gathered together, or else it can be no Riot, Rout or unlawfull assembly within the meaning of these statutes.
6. But an assembly of an hundred persons or more (yea though they be in armour) yet if it be not in terrorem populi, and were assembled without any intent to breake the peace, it is not prohibited by any of these statutes.
Cromp. 6 [...]. P. R. 2 [...]. The intent. Cromp. 61. Dalton 201.7. For it seemeth it can be no Riot, &c. except there be an intent precedent to doe some unlawfull Act, and with violence or force.
8. And therefore if diverse be assembled, a [...]d none of them doe know to what end or purpose they are met, this can make no riot, or Rout, till the intent be knowne.
9. If the master (intending to make a Riot) taketh with him his ordinary servants, and maketh an affray or other outrage with them, this is no Riot in the servants,Ibid. except their master had made them privie to his intent before, but the master only shall be punished for the riot, and the servants as trespassers.
10. And in this former case, it is not materiall, though the number of his servants which goe with him be above his degree, so long as they be his houshold servants. P. R. 25.
Cromp. [...]11. If diverse, being lawfully assembled, shall quarrell or fall out upon the sudden without any such former intent, this is no riot, but a sudden Affray.
Dalton p. [...].12. If divers bee at an Alehouse, and without any intention of an Affray, they suddenly fall together by the Eares, this is no riot but a sudden affray, because they had no such intention before.
[Page 207]13. If a Iury being together shall fall out and fight,Ibid. this is no riot, because they were lawfully assembled, but it is a great misdemeanor, for which they shall be fyned and imprisoned.
14. Also where there be three or more gathered together, [...] 201. either to execute the Iustice of the Law, or for the exercise of valou [...] and triall of activity,3. H. 7. 1. Br. Riots 2. or for the increase of amitie and neighbourly friendship (and being met without any intent to breake or disturbe the peace or to offer violence or hurt to the person of any) such assemblies be not prohibited by any statute, nor unlawfull, as if the Sheriffe, undersheriffe, bailiffe or other officer shall take power what number he shall thinke good to execute the Kings processe, this is no unlawfull assembly.
15. So it is a lawfull assembly which is gathered together to run at Tilt, &c. by the Kings commandement.
16. So the assembly of people, and their use of harnesse upon usuall dayes in Dublin,Dalton 202. and other Citties and Townes being onely for disport or exercise of Armes is lawfull, and though it be with a great assembly of people, and in armour, yet it being neither in terrorem populi, nor to doe any act with force or violence against the peace, it is lawfull.
17. Also, if divers doe assemble and gather together,Ibid. to drinke at an Alehouse, or to play at foot-ball, bucklers, beare or bullbaitings, dancings, Bowles, Cards or Dice, or such like disports, that is no Riot, nor prohibited, for these meetings usually are not with any intent to offer or doe violence or hurt to the person, possessions, or goods of any other, neither are they malum in se, but if these be done upon the Sabboth day they are misdemeanors, and sufficient cause to bind the offendors to the good behaviour, and so it is of keeping faires and markets upon the Sabboth day.
18.Ibid. But if any of the persons assembled together for any the disports above mentioned (or for the like) came with an intent or purpose to breake or disturbe the peace, or to offer violence or hurt to the person of any, and shall make an affray, or doe any other outrage, this seemeth to be a riot in so many as came with any such unlawfull intent or purpose.
19.P. R. 25. And if any of the persons assembled together to drinke or play at an Alehouse, or for any the disports above mentioned, or the like, shall fall out suddenly, (without any former intention of an affray) and in that their falling out they shall betake themselves to sundry parts, and shall make an affray, this seemeth to be no Riot;Dalton p. [...]02 [...] for that it was without any such intent before their said assembly, and done only upon the sudden, and upon a sudden occasion happening after their said meeting; and againe their said assembly was at the first lawfull, or at least not prohibited by any of these statutes, nor yet by the common Law.
20. But otherwise, if by agreement they shall meet againe and [Page 208] fight afterwards,Ibid. that maketh it a Riot, as being a new assembly upon the former quarrell, and so their second meeting was upon an intent precedent to doe an evill Act.
21. Now concerning the lawfulnesse or unlawfulnesse of the Act,Lawfulnesse of the Act. it is to be observed that lawfulnesse or unlawfulnesse of the thing done or intended, doth not alwayes excuse or accuse the parties to a Riot, &c. but so that the manner and circumstances of the fact, must also be considered.
Br. Riots 1.22. For every man may assemble company to aide him in his house, against injury or violence, but if a man be threatned, that if he come to such a place, he shall be beaten, in this case, if he shall assemble any company to goe thither with him (though it be to the safegard of his person) it seemeth to be within the compasse of these statutes and unlawfull. Br. Riots 1.
Cromp. 66.23. Every man in peaceable manner, may assemble meete company (and may come) to doe any lawfull thing, or to remove or cast downe any common nusance done to them.
Co. 5. 101. & 9. 55.24. Every private man, to whose house or land any nusans shall be erected, made or done, may in peaceable manner assemble a meete company with necessary tooles, and may remove, pull, or cast down, such nusans, (and that before any prejudice received thereby) and for that purpose if need be, may also enter into the other mans ground.
36. Eliz. Cromp. 66.25. A man erects a weare crosse a common Ryver (where people have a common passage with their boats) and diverse did assemble with spades, Crowes of Iron, and other things necessary to remove the said Weare, and made a Trench in his land that did erect the weare, to turne the water, so as they might the better take up the said weare, and they did remove the said nusans, this was holden neither any forceible Entry nor yet any Riot.
Dalton 203.26. But in the cases aforesaid, if in removing any such nusans, &c. the persons so assembled shall use any threatning words (as to say, they will doe it in despight of the other, or they will doe it though they dye for it, or such like words) or shall use any other behaviour, in apparant disturbance of the peace, then it seemeth to be a Riot, and therefore where there is cause to remove any such nusans (or to doe any like Act) it is the safest not to assemble any multitude of people, but only to send one or two persons, or (if a greater number) yet no more then are needfull, and only with meete tooles, to remove, cast, or pull downe the same, and that such persons tend their businesse only without disturbance of the peace, for the manner of doing a lawfull thing may make it unlawfull.
Ibid.27. Also the manner of doing an unlawfull Act, by an assembly of people may be such and so handled, as that it shall not be punished as a Riot, as if I should assemble a meete company to carry away a peece of Timber, or other thing (whereto I pretend a right) that cannot be [Page 209] carryed without a great number, if the number be not more then are needfull for such purpose, although another man have better right to the thing so carryed away, and that this Act be a wrong and unlawfull, yet is it of it selfe no Riot, except there be withall threatning words used, or other disturbance of the peace.
28.The manner. As there must necessarily be three persons at the least assembled together to make a Riot,Dalton 204. &c. so they being together and their demeanor must be such, as shall or may breed some apparant disturbance of the peace, either by threatning speeches, turbulent gesture, shew of armour or actuall force or violence, to the terror of the peaceable sort of people, or to the emboldening and stirring up of such as are busie headed, and of evill disposition, by such fact, or else it can be no Riot, &c. for, as I said before, the manner of doing a lawfull thing may make it unlawfull. & sic è converso.
29. And therefore if diverse in one company going to the church,Ibid. faire, or market, shall goe armed, or one going to the Sessions, or other like assembly shall goe in harnesse (to the terror of the people) though he or they have no intent to fight or to commit any Riot, yet this is a Rout by the manner of his or their going, being needlesse, disordered and against the Law, see the statute. 2. Ed. 3. ca. 3.
30.Cromp. 64. But in the former cases if they had gone in privie Coats of plate, shirts of maile or the like, to the intent to defend themselves from some adversarie, this seemeth not punishable within these statutes, for that there is nothing openly done, in terrorem populi.
31. One N. W. together with fourescore persons,31. El. came with spades, mattocks, pistols, swords, and daggers, in the night to a peece of ground (where Sir Thomas St. had made a great weare crosse over the river of Trent in the County of Notting. to the great nusans of passengers there,Cromp. 64. &c.) and there they made one or two litle Trenches to let the water passe, &c. and though it were lawfull to make the Trenches, and to debruse the nusans, yet for that they came with such number and weapons, they were deeply fyned in the Starchamber.
32. Also a Lord of a Coppihold, did enter with twenty persons,31 and 32. El. Cromp. 64. Dalton 204. and cut his Coppiholders corne with force, for that his Coppiholder would not compound with him for his fyne, and although the entry of the Lord was holden lawfull, yet punishable as a Riot, in regard of his number and force.
33. In all cases where three, or more shall enter into lands,Cromp. 64. Dalton 205. &c. with force (upon the possession of another) where their entry is lawfull, yet it is a Riot, by reason of the number and force, for the statute of 5. R. 2. prohibiteth the entry with force, or with multitude of people, although the entry be (otherwise) lawfull.
What persons may commit a Riot. CHAP. 52.
1. IF a number of women, (or children under the age of discretion) doe flocke together for their owne cause, this is no assemblie punishable by these statutes, unlesse a man of discretion moved them to assemble for the doing of some unlawfull Act as Master Marrow held,Cromp. 62. but yet certaine women that had apparelled themselves in mens apparell,Dalton 205. and had pulled downe riotously a lawfull inclosure, were worthily punished for the same in the Starchamber contrary to Master Marrowes opinion.
2. Also women covert are holden to be within the statute of Mert. ca. 6. Co. 3. 72. & 11. 161. for ravishment of wards, and within the statute of Westm. 1. ca. 20. de malefactoribus in parcis, and within the statute of 2. Eliz. ca. 2. for recusancy, although they be not particularly named within any of this statute.
Co ibid f. bre. 670. 4. E 4. 16.3. Also if a woman covert shall commit any riot, or doe any Trespasse or other wrong she is punishable for it, and for a trespasse done by the wife, or for a scandall published by her; the action lieth both against the husband and wife, sc. an action of trespasse, or of the case, shall be brought against the husband and the wife, and there the husband is chargeable to the damages, or fyne, because he is a partie to the action and Iudgement, but if a woman covert without her husband be indicted of a Trespasse,Co. 21. 61. b. riot, or other wrong, there the wife shall answere, and be party to the Iudgement only, and in such case the fyne set upon the wife shall not be levied upon the husband,22. Ass. [...]7. 43. E. 3. 18. yet after the husbands death it seemeth such damages or fyne shall then be levied upon the wife her selfe, and as for imprisonment, or other corporall paine, it shall be inflicted upon the wife only, and not upon the husband for his wives Act or default.
Dal [...]n 205.4. If a Mayor and Alderman or Bailiffe and Burgesses, or the fellowes of any other society doe assemble in their common quarrell, and make a riot or rout, this shall be punished in their owne private naturall persons, and not in the body politique.
Recognisance. CHAP. 53.
1. A Recognisance is a bond of record, testifying the Recognisor to owe a certaine summe of money to some other, and the acknowledging of the same is to remaine of record, and none can take it but only a Iudge or Officer of record.
2. And these recog. in some cases the Iu. of peace are enabled to take by the expresse words of certaine statutes, but in other cases (as for the peace, and good behaviour, or the like,) they may doe it of [Page 211] congruity, without any expresse authority given them either by their Commission, or by statute.
3. Note wheresoever any statute giveth them power to take a bond of any man, or to binde over any man,Cromp. 197. or to take sureties for any matter or cause,See Fitz. 82. it seemeth they may take a Recog. yea wheresoever they have authority given them to cause a man to doe any thing, there it seemeth they have of congruity power given them to binde the partie by recog. to performe or doe it,Dalton 298. and if the partie shall refuse so to be bound, that then the Iudge may send him to the Gaole.
4. I will here set downe only some particulars,Ibid. where the Iustices of peace out of their Sessions may take a recognisance.
5. One Iustice of peace may take a recognisance for the peace.
6.Ibid. Also the Iustice of peace may take a recognisance for the good behaviour (by the Commission) and these the Iustice of peace may take either upon discretion or upon complaint made to him, or upon a supplicavit delivered to him.
7.Ibid. One Iustice of peace may binde by recognisance such as doe declare any thing against a felon or Traitor to appeare at the Assizes or Sessions, there to give Evidence against the offendor, and so in diverse other offences.
8.Ibid. One Iustice of peace may binde by recognisance the master that shall misuse his apprentice, &c. to appeare at the Sessions, &c.
9. Two Iustices, &c. may baile prisoners, which must be done by recognisance, see here tit. Bailement.
10. Also two Iustices of peace may binde by recognisance the defendant in a suit of Tithes, to obey the sentence of the Iudge, see postea tit. Tithes.
11. A Iustice of peace can take no Recognisance, but onely for such matters as concerne his office, see hereof postea tit. Surety for the Peace.
12. Note also, that a recognisance taken by a Iustice is a matter of record presently, so soone as it is taken and acknowledged, although it be not made up, but only entred into his booke, nay although it be not entred, as it seemeth. See Stamf. 77. &c. Br. record. 58.
13. If a Iustice of peace shall take a recognisance, where he hath no authoritie, it is voide.
14. And these recognisances taken by the Iustices of peace are to be certified by them at their next quarter Sessions, except recog. taken for such as shall informe against felons or Traitors, and upon bailement of felons, which by statute they are appointed to certifie at their next generall gaole deliverie.
15. For the Formes of recognisances, see hereafter tit. Warrants and Presidents.
Robberie. CHAP. 54.
One Iustice. 11. Caroli c. 13. in Ireland. P. Huy and Cry. 8. 10. co. 77.1. AFter a Robberie committed, the party robbed shall not have his action upon the statute against the hundred, except hee shall with all speed convenient, give notice of the said robbery to some of the inhabitants neare to the place where such robbery was committed, and also except he shall commence his suit or action within one yeare next after such Robbery committed, and also except hee shall first bee examined upon oath (within twenty dayes next before such action brought) by some one Iustice of peace of the County where the Robberie was committed, dwelling within or neare to the said hundred, where the robbery was done, whether hee doth know the parties that committed the said robberie, or any of them, and if he knoweth any of them, then also (before such action brought) he shall be bound before the same Iust. by sufficient recognisance to prosecute effectually the said offendors by indictment, or otherwise according to the due course of law.
1 [...]. Caroli. c. 13. [...]n Ireland. P. Huy and Cry. 15.2. After a robbery committed, the whole hundred must answere the losse, if the Robbers be not taken within Forty dayes, and yet for that the party robbed hath his recovery and execution against some one or few persons of that hundred, therefore for a contribution to be yeelded from the residue of the said hundred upon complaint made by the parties against whom such recovery and execution is had, any two Iust. of peace, the one being of the Quorum, being of the same County, and inhabiting in or neare the same hundred where such execution shall be had, may assesse and taxe according to their discretions proportionably all and every the Townes and Parishes, &c. as well of the same hundred where the robbery was committed, as also of the liberties within the said hundred towards an equall contribution to be had for the reliefe of the parties charged, the which money the Constables of every Towne shall levy and deliver over to the same Iustices, or to one of them within Ten dayes after collection, and which the said Iustices shall deliver over (upon request) to the parties charged, to whose use the same was collected.
3. The like taxation, assessement, levying and payment shall be had and made for a contribution within every hundred,11. Caroli. c. 13. in Ireland. P. Huy and Cry. [...]. where there was any negligence, fault, or defect of pursuit, and fresh suit after huy and cry, viz. if upon suit any recoverie and execution of any money or any damages shall be had against some one or few persons of that hundred where such default was, towards the ease of the hundred where the Robberie was done, upon complaint made by the parties so charged, to any two such Iustices of peace, the said Iustices may make the like assessement, &c. towards the reliefe of the parties so charged.
Co. 7. 6.4. Note that if any man be robbed in his house the hundred shall [Page 213] not be charged therewith, whether it were done in the night or in the day.
5. Also a robberie done in the night shall not charge the hundred, but yet if it be in the day time, or by day light,Co. ibid. though it be afore Sun rising or after the Sun setting the hundred shall answere for it.
6. If upon pursuite any one of the offendors be apprehended, the hundred shall not be charged,11. Caroli c. 13. in Ireland. although the residue of the offendors happen to escape, but pursuite, without apprehending some of the Robbers, is no excuse.
7.Cromp. 179. If the party that was robbed shall himselfe take any of the theeves, after Huy and Cry made, this shall excuse the hundred.
8. It is said by my Lord Dyer, obitur in anno. 22. El. that the statute is satisfied, if the names of the offendors be discryed,Dyer. 370. so that they may be indicted and outlawed, but that seemeth to be no Law,P. R. 155. for the words of the statutes of 13. Ed. 1. and 28. Ed 3. Dalton 117. are that the Countrey must answer for the bodies of such offendors, Winch. 13. E. 1. ca. 2. & 28. Ed. 3. ca. 11.
9.Ibid. Note the party robbed must bring his Action within twenty dayes next after his examination taken before the Iustice of peace.
10.Ibid. Also the Iustice of peace must be abiding within the County at the time of such examination taken by him, as it seemeth.
11. If a man be robbed in one County, and maketh Huy and Cry freshly into another County,18. E. 4. 18. if the Townes adjoyning doe not according to the statute of Winchester, the party robbed may have his Action of debt in the one County or in the other by Fincham 15. Ed. 4. Br. Dett. 104.
12. Highwayes, leading from one market Towne to another, shall be inlarged, so that there be neither dike, underwood, nor bush, whereby a man may lurke to doe hurt, within 200. foot of the one side, and of the other, and if by default of the Lord that will not amend the wayes, as aforesaid, any Robberies be done therein, the Lord shall be answerable for the Robbery, and if a parke be neere the high way, the Lord must set his parke 200. foot of each side from the way, as aforesaid, or else must make such a wall, dike, hedge or pale, that such offendors may not passe to and fro, there to doe evill, Winch. 13. Ed. 1. cap. 5.
Rogues, Vagabonds, and Beggers. CHAP. 55.
1. DIverse good Lawes and statutes have beene made which yet are of force in Ireland for the punishing and ordering of Rogues, Vagabonds, and Beggers, the substance whereof I have here expressed, viz In anno 23. E. 3. ca. 3. 23. E. 3. ca. 3. It is ordained, that because many valiant Beggers, as long as they may live of begging, doe refuse to [Page 214] labour,Beggers. giving themselves to Idlenesse and vice, and sometime to theft and other abominations; none upon the paine of imprisonment shall under the colour of piety or almes give any thing to such which may labour, or presume to favour them towards their desires, so that thereby they may be compelled to labour for their necessary living.
2. Also by a statute made anno 34. E. 3. 34. E 3. ca. 1. It is ordeined, first that in every County shall be assigned for the keeping of the peace, one Lord, and with him 3. or 4. of the most valiant men in the County, with some learned in the Lawes, and they shall have power to restraine the offendors, riotters, and all other barretors, and to pursue, arrest,Iustices of peace. take, and chastise them according to their trespasse and offence, and doe to be imprisoned and duely punished according to the Law and customes of the Realme, and according to that, that to them shall seeme best to doe by their discretions and good avisement, and also to enforme them,Pillours, Robbers. and to enquire of all those that have beene pillours and robbers of the parties beyond the Sea, and be now come againe and goe wandring and will not labour as they were wont in times past, and to take and arrest all those, that they may finde by enditement or by suspection, and to put them in prison, and to take of all them that be not of good fame, where they shall be found, sufficient surety and main prise of their good behaviour towards the King and his people, and the other duely to punish, to the intent that the people be not by such riotours, or rebels troubled or endamaged, nor the peace blemished, nor merchants nor other passing by the high wayes of the Realme disturbed, nor put in the perill which may happen of such offendors.
3. Also by a statute made in anno 7. R. 2. it is ordeined that the statutes made in the time of King Edw. 3. 7. R. 2. ca. 5. of RoberdesmenRoberdesmen. and draw-latches,Draw-latches. be firmely holden and kept, and moreover it is ordeined and assented to refraine the malice of diverse people, faitoursFaitours. and wandring from place to place, running in the Countrey more abundantly then they were wont in times past, that from henceforth the Iustices of Assises in their Sessions, the Iustices of peace and Sheriffes in every County shall have power to enquire of all such VagabondsVagabonds. and faitours of their offence, and upon them to doe that the Law demandeth, and that aswell the Iustices and Sheriffes, as the Maiors, Bailiffes, Constables, and other governours of Townes and places where such faitours and Vagabonds shall come, shall from henceforth have power to examine them diligently and to compell them to finde surety for their good bearing by sufficient mainpernors of such as be distraineable, if any default be found in such faitours and Vagabonds, and if they cannot finde such surety they shall be sent to the next gaole, there to abide till the comming of the Iustices assigned for the deliverance of the gaoles, who in such case shall have power to doe upon such faitours & Vagabonds so imprisoned that thereof to them shall seeme best by the Law.
[Page 215]4. Also by a statute made in anno 12. R. 2. 12. R. 2. ca. 7. it is ordeined and assented, that of every person that goeth a begging and is able to serve or labour, it shall be done of him as of him that departeth out of the hundred without letter testimoniall (which is to be imprisoned) and that the beggers impotent to serve, shall abide in the Cities and Townes, where they be dwelling at the time of the Proclamation of this statute, and if the people of Cities, or Townes, will not, or may not suffice to finde them, that then the said beggers shall draw them to other Townes within the hundreds, rape, or weapon take, or to the Townes where they were borne, within forty dayes after Proclamation made, and there shall abide continually during their lives, and that of all them that goe in pilgrimagePilgrimage. as beggars, and be able to travell, it shall be done as of servants and labourers (which is to be committed to prison) and that SchollersSchollers. of the universities that goe so begging, have letters testimoniall, of their Chancellor upon the said paine.
5. Also by another statute made in anno 12. R. 2. 12. R. 2. ca. 8. it is ordeined that they that feine themselves to have travelled out of the Realme, and there beene imprisoned, shall bring letters testimoniall,Letters testimoniall. of the captaines where they were abiding or of the Maiors,Maiors, or Bailiffes,Bailiffes. where they arrived, and the same Maiors and Bailiffes shall enquire of such people, where and with whom they dwelled, and in what place their dwelling is, and that the same Maiors and Bailiffes, make them letters patents under the feale of their office testifying the day of their arrivall, and also witnessing where they have beene, as they have sayed, and that the said Maiors and Bailiffes, cause them to sweare that they should hold their right way towards their Countrey, except that they have letters patents under the Kings great seale to doe otherwise, and if any such trav [...]ed man be found without such letter as afore is said, it shall be done of him as of the said servants and labourers, and also this ordinance shall be intended of men travailedTravailed men. that goe begging through the Countrey, after their arrivall.
6. Also by a statute made in Ireland in Anno 33. H. 8. ca. 14. 33. H 8. ca. 148 in Ireland. It is ordained that where in all places throughout this realme of Ireland Vagabonds and beggers have of long time encreased and daily doe encrease in great and excessive numbers, by the occasion of idlenesse, mother and root of all vices, whereby hath insurged and sprung, and daily insueth and springeth continuall thefts, murders, and sundry other heynous offences, and great enormities, to the high displeasure of God, the inquietation and damage of the Kings people, and to marvellous disturbances of the common wealth of this realme, and whereas many and sundry good lawes, strait statutes and ordinances have beene before this time devised and made, as well by the said King H. 8. as also by divers his most noble progenitors Kings of England for the most necessary and due reformation of the premisses, yet that notwithstanding the said number of Vagabonds and beggars [Page 216] be not seene in any part to be minished, but rather daily augmented and increased into great Routs and companies, the Iustices of peace of all and singular the shires within the limits of their Commissions, and all other Iustices of peace, Mayors, Sheriffes, bailiffes, and other officers of all and every Citty, Borrough, Ridings, or Franchises within the realme of Ireland, within the limits of their authoritie shall from time to time as often as need shall require, by their discretions divide themselves within the said shires, Citties, boroughs, ridings or Franchises, whereof they be Iustices of peace, Mayors, sheriffes, bailiffes, or officers, and so being divided, shall make diligent search and enquirie of all aged, poore and impotent persons which live, or of necessitie are compelled to live by almes of the charitie of the people that be or shall be hereafter abiding within every hundred, rape, wapentake, Cittie, borough, parish, libertie, or Franchises within the limits of their division, and after and upon such search made, the said Iustices of peace, Mayors, Sheriffes, bailiffes, and other Officers (that is to say) every of them in the limits of their authorities whereunto they are divided shall have power and authoritie by their discretions to enable to begge within such hundred, rape or wapentake, Citty, Towne, parish or other limits as they shall appoint, such of the impotent persons, which they shall finde and thinke most convenient within the limits of their division to live of the charitie and almes of the people, and to give in commandement to every such aged and impotent begger (by them enabled) that none of them shall begge without the limits to them so appointed, and shall also register and write the names of every such impotent begger by them appointed in a bill or roll indented, the one part thereof to remaine with themselves, and the other part by them to be certified before the I [...]tices of peace at the next Sessions after such search had, to be holden within the said shires, Cities, Townes, or Franchise, there to remaine under the keeping of the Custos Rotulorum, and that the said Iustices of peace, Mayors, Sheriffes, bailiffes, and other officers, that is to say, as they be divided shall have power and authoritie to make such and so many seales to be engraved with the names of the hundreds, rapes, wapentakes, Cities, Boroughs, townes, or places within the which they shall appoint and limit every such impotent person to begge, and commit the said feales to the custodie of such of them, or to the custodie of such a one as they shall thinke convenient, and shall make and deliver to every such impotent persons, by them enabled to beg, a letter containing the name of such impotent person, and witnessing that he is authorised to begge, and the limits within which he is appointed to begge, the same letter to be sealed with such of the said seales as shall be engraved with the names of the limit wherein such impotent person shall be appointed to begge in, and to be subscribed with the name of one of the said Iustices or officers aforesaid, and if any such [Page 217] impotent person so authorished to begge, doe begge in any other place then within such limits that he shall be assigned unto, that then the Iustices of peace, Maiors, Sheriffes, Bailiffes, Constables, and other the Kings officers and ministers shall by their discretions punish all such persons by imprisonment in the stocks, by the space of two dayes and two nights, giving them onely but bread and water, and after that, cause every impotent person to be sworne to returne againe without delay to the hundred, rape, wapentake, City, Burrough, Towne, Parish, or Franchises, where they be authorised to begge in, and that no such impotent person, as is above said, shal begge within any part of this Realme except he be authorised by writing under seale as is abovesaid, and if any such impotent person be vagrant and going a begging having no such letter under seale, as is above specified, that then the Constables and all other inhabitants within such Towne, or Parish, where such person shall begge, shall cause every such begger to be taken and brought to the next Iustice of peace or high Constable of the hundred, and thereupon the said Iustice of peace or high Constable, shall command the said Constables, and other inhabitants of the Towne or Parish which shall bring before him any such begger, that they shall strip him naked from the middle upward, and cause him to be whipped within the Towne where he was taken, or within some other Towne where the same Iustice or high Constable shall appoint, if it shall seeme, to the discretion of the said Iustice of peace or high Constable, that it be convenient so to punish such begger to him brought; and if not, then to command such beggar to be set in the Stocks in the same Parish where he was taken, by the space of three dayes and nights, there to have only bread and water, and thereupon the said Iustice, or high Constable, before whom such begger shall be brought, shall limit to him a place to begge in, and give to him a letter under seale in forme above remembred, and sweare him to depart and repaire thither immediately after his punishment to him executed, and that if any person or persons being whole and mighty in body, and able to labour, be taken in begging in any part of this Realme, or if any man or woman being whole and mighty in body and able to labour having no land, master, nor using any lawfull merchandize, craft, or mysterie, whereby he might get his living be vagrant and can give no reckoning how he doth lawfully get his living, that then it shall be lawfull to the Constables, and all other the Kings officers, ministers, and subjects of every Towne, Parish and Hamlet, to arrest the said Vagabonds and idle persons, and them bring to any of the Iustices of peace of the same shire or liberty, or else to the high Constable of the hundred, rape, or wapentake, within which such persons shall be taken, and if he be taken within any City or Towne corporate, then to be brought before the Maior, Sheriffes, or Bailiffes, of every Towne corporate, and that every such Iustice of peace, high Constable, [Page 218] Maiors, Sheriffes and Bailiffes, by their discretions shall cause every such idle person to him so brought, to be had to the next market Towne or other place where the said Iustices of peace, high Constable, Maiors, Sheriffes, Bailiffes, o [...] other officers, shall thinke most convenient by his or their discretion, and there to be tyed to the [...]nd of a Cart naked, and be beaten with whippes throughout the [...]ame market Towne or other place till his body be bloudy by reason of such whipping, and after such punishment and whipping had, the person so punished by the discretion of the Iustice of peace, high Constable, Maiors, Sheriffes, Bailiffes, and other officers before whom such person shall be brought, shall be enjoyned by his oath to returne forthwith without delay in the next and straight way to the place, where he was borne, or where he last dwelled before the same punishment by the space of three yeares, and there to put himselfe to labour like as a true man ought to doe, and after that done, every such person so punished and ordered, shall have a letter sealed with the seale of the hundred, rape, wapentake, City, Borough, Towne, liberty, or Franchise, wherein he shall be punished, witnessing that he hath beene punished according to this statute, and containing the day and place of his punishing, and the place whereunto he is limited to come thither, within which time he may lawfully begge by the way, shewing the letter, and otherwise not, and if he doe not accomplish the order to him appointed by the said letter, thereto be eftsoones taken and whipped, and so as often as any default shall be found in him contrary to the statute, in every place to be taken and whipped, till he be repaired where he was borne, or where he last dwelled by the space of three yeares, and there put his body to labour for his living, or otherwise truely to get his living without begging as long as he is able so to doe, and if the person so whipped be an idle person, and no common begger, then after such whipping he shall be kept in the Stocks till he have found surety to goe to service, or else to labour, after the discretion of the said Iustices of peace, Maiors, Sheriffes, Bailiffes, high Constables, or other such officers, before whom any such idle person, being no common begger, shall be brought, if by the discretion of the same Iustice of peace, Maior, Sheriffe, Bailiffe, high Constable, or other such head officer it be so thought convenient, and that the party so punished be able to finde surety, or else to be ordered and sworne to repaire to the place where he was borne, or where he last dwelled by the space of three yeares, and to have like letter, and such further punishment, if he eftsoones offend this statute, as is above appointed to and for the common strong and able beggers, and so from time to time, to be ordred and punished till he put his body in labour, or otherwise get his living truely, according to the statute, and that the Iustices of peace of every shire, riding, City, Towne and liberty shall have power and authority within their limits of their Commissions, to enquire of all Maiors, Sheriffes, [Page 219] Bailiffes, Constables, and other like officers and persons that shall be negligent in executing of this Act, and if the Constables and inhabitants within any Towne or Parish, where any such impotent person or strong begger doth happen to begge contrary to the forme of this statute, be negligent and take not every such impotent and strong begger, that so shall begge against the forme of the statute, and order and punish every such begger, as is above limitted, that then the Towneship or Parish, where such default shall be, shall lose and forfeite for every such impotent begger that shall be suffred to begge within the said Towneship or Parish, not being taken, ordred and punished according to the forme of this statute three shillings and foure pence; and for every strong begger that shall happen to begge within any such Towneship or Parish, not being taken and ordered as is above limitted by this statute six shillings and eight pence, the one halfe of all which forfeitures to be to the King our soveraigne Lord, and the other halfe to him that will sue for the same, by any bill of information before the Kings Iustices of his peace in their Sessions to be holden within the Shire, or within the liberty where such default shall happen, and that all Iustices of peace within any Shire, City, Borough, or liberty, shall have full power and authority aswell to heare and determine every such default by presentment as by such bill of Information, and upon every presentment afore them, and upon every such bill of Information to make processe by distresse against the Inhabitants of every such Towne and Parish where any such default shall be presented or supposd by any such Information, by authority of which distresse the Sheriffe or other officer to whom by the Law such distresse shall be made, shall distreine the goods and Chattels of such one or two of the said Inhabitants, as he may have knowledge, were most negligent and in default in the execution of this Act, and the said distresse retaine till they finde surety to appeare at the next Sessions limitted in their said distresse, and in case they appeare and confesse the default, or else if they traverse the presentment, and it be tryed against them by verdict, or deny the Information, and it be proved against them by sufficient witnesse, then the said Iustices of peace in their Sessions, shall have power and authority to assesse the fines as beene above limitted, after the rates abovesaid, and to make processe for the levying of the fame by distresse of the Inhabitants of such Townes or Parishes where such default shall be tryed or proved, and that every such fyne, if it grow by presentment, to be only to the Kings use, and if it grow by Information, the moity thereof to be to him that pursueth the information for the fame, and the other moity thereof to the Kings use, as is aforesaid, and if any such person or persons distrained appeare not at the day and place contained in such distresse, then upon the returne of the Sheriffe or other officer to whom the distresse was delivered to execute, that such person or persons were distrained, then every such person or [Page 220] persons so distrained, at the first distresse shall loose 40. d. and at the second 5. s. 8. d. and so to be doubled upon every distresse in such cases to be awarded, till apparance may be had by one of the Inhabitants of such Towne or Parish, to deny traverse; or confesse the presentment or information exhibited against any such Towne or Parish, to the intent that upon tryall or proofe thereof the fynes above limitted may be assessed and levyed of the Inhabitants of every such Towne or Parish, as is above rehearsed, and that Schollers of the universities that goe about begging, not being authorised under the seale of the universities by the Commissary, Chancellor, or Vice-chancellor of the same, and all and singular shipmen pretending losses of ther ships and goods of the Sea, going about the Countrey begging without sufficient authority witnessing the same, shall be punished, and ordered in manner and forme as is above rehearsed of strong beggers, and that all proctors and pardoners going about in any Countrey or Countreyes, without sufficient authority, and all other idle persons going about in any Countrey or abiding in any City, Borough, or Towne, some of them using diverse and subtile, crafty and unlawfull gaines and playes, and some of them faining themselves to have knowledge in Physicke, Phisnomy, Palmestry, and other crafty sciences, whereby they beare the people in hand that they can tell their destines, diseases, and fortunes, and such other like fantasticall imaginations, to the great deceit of the Kings subjects shall upon examination had before two Iustices of peace, whereof the one shall be of the Quorum, if he by proveable witnesse be found guilty of any such deceits, be punished by whipping at two dayes together, after the manner before rehearsed, and if he eftsoones offend in the said offence or in the like offence then to be scourged two dayes and the third day to be put upon the pillory from 9. of the clocke till 11. before noone of the same day, and to have one of his Eares cut of, and if he offend the third time, to have like punishment with whipping, standing on the pillory, and to have his other Eare cut of, and that Iustices of peace have like authority in every liberty and franchise within their Shires where they be Iustices of peace for the execution of this Act in every part thereof as they shall have without their liberty or franchise, and that this Act shall every yeare be read in open Sessions, to the intent that the statute shall be the more feared, and the better put in execution, and furthermore be it enacted, that if any person or persons, at any time hereafter give any harbour, money, or lodging, to any beggers being strong and able in their bodies to worke, which order themselves contrary to the forme of this statute, that every such person so doing, being sufficiently proved or presented before any Iustice of peace, shall make such fine to the King as by the discretion of the said Iustices of peace at their generall Sessions shall be assessed; and if any person or persons doe disturbe or let the execution of this Act in any manner wise, or make [Page 221] rescous against any Maior, sheriffe, bailiffe, or other person that shall endeavour himselfe for the due execution thereof, that then every such person and persons, for every such offence doing, shall loose 100. s. and over that to have imprisonment at the Kings will, the one halfe of which forf. if such offence be committed in any Citie or towne corporate, to be to the Maior, Sheriffe, Bailiffe, or other head Officers of such Towne or City corporate, where any such offence shall be done, to the use of the commonaltie of every such Citie of towne corporate, and if it be committed out of the Cittie or Towne corporate, then the said one halfe to be to the Lord of the Leere or Law day where such offence shall be done, and the other halfe of every such forf. to be to the King, for the which forf. of 5. l. recoverie shall be had by action of debt, Bill, or plaint, or information in any of the Kings Courts, in which suits the defendants shall not wage their Law, nor have any essoigne or protection allowed: And it is ordeined and enacted that the seales above rehearsed shall be made at the costs and charges of the Iustices of peace, Maiors, Sheriffes, Bailiffes, and other officers above written (that is to say) that every of them should doe the said seales, to be made within the limits of their divisions, jurisdictions and authorities: And it is also ordeined and enacted, that every letter to be made, by the authoritie of this Act, whereby any impotent begger shall be authorised and assigned to begge, shall be made in this forme ensuing, viz:
Dublin. ss. Memorandum that A. B. of dale for reasonable consideration is licensed to begge within the hundred of P. K. and L. in the said County, given under the seale of that limit, tali die & anno.
And that every such letter that shall be made and delivered to such begger or Vagabond, after he hath beene whipped by authority of this Act shall be made in this wife following.
Dublin. I. S. whipped for a vagrant strong begger, at Dale in the said County according to the Law, the 28. day of Iuly in the 13. yeare of King Charles, &c. was assigned to passe forthwith, and directly from thence to sale in the County of Meath, where he saith he was borne, (or where he last dwelled by the time of three yeares) and he is limitted to be there within 14. dayes next ensuing at his perill (or within such number of dayes as to him shall be limitted by the discretion of him that maketh the said letter) In witnesse wherof the seale of the limit of the said place of his punishment hereunto is set.
7. And it is enacted, that every such letter shall be made at the equall costs of such the said Iustices, mayors, sheriffes, bailiffes, and other officers within whose Iurisdictions, powers and authorities, the said begger or Vagabond shall be whipped or limitted to begge in, by authoritie of this Act, and every such letter shall be subscribed with the hand of one of the Iustices, Maiors, sheriffes, bailiffes, or other officers, in this forme following, Per me A. B. unam [Page 222] Iusticiariorum pacis, or majorem civitatis, or ballivum villae or constabularium talis hundredi, or else in like forme in English.
8. And it is further enacted, that every such person or persons, that have the custodie of any gaoles within any shire, City, borough, or towne corporate shall doe, make a seale engraved with the name of the Castle, prison or gaole which he keepeth, and in case any person or persons that shall be delivered out of any gaole or prison for suspition of felony by proclamation, or be acquit of any felony, and hath no friends to pay his fees, nor was borne within the hundred or place where he shall happen to be so delivered, nor can get him no master there to abide and worke with, shall have libertie to begge for his Fees by the license of his Keeper by the space of six weekes next after such deliverance, and after that to be compelled to goe to the hundred where he was borne, or last dwelled for the space of three yeeres, within such time as shall be limited to him by one of the Iustices of peace, Mayors, sheriffes, bailiffes or other officers where such deliverance shall be had: And it is enacted, that every such person so delivered, shall have a letter made to him by the Clarke of the peace of the shire, within the which he was delivered if he be delivered within the shire, and if he bee delivered within any Towne, Citie, borough, corporate, then he to have a letter of the common Clerke of every such City, borough or towne corporate, where he is delivered, every such letter witnessing the day of his deliverance, and the place where he was delivered, and before whom, and the time appointed when he shall begge for his Fees, and the place to the which he shall be assigned to repaire unto, in case he can get no master to fall to worke where he was delivered, and to every such letter the gaoler or keeper of the prison out of which the person shall be delivered, shall put the seale limitted to be made, as is aforesaid, for the said prison, and that every such letter shall be made in this wise following:
Dublin. ss. the 20. day of Iuly Anno regni regis Caroli I. S. was delivered for felony our of the gaole of D. in the said County at the Sessions holden afore A.B. and his fellowes at Sale, the day and yeare aforesaid, and is allowed to begge for his Fees by the space of six weekes, and in case he can get no master to worke with in the said terme, then he is assigned to goe directly to D. in the county of Meath, wherein he saith he was borne, or last dwelled by the space of three yeares, and he is allowed 14. dayes next after the six weeks for his passage thither (or such number of daies as to him shall bee limited by the discretion of the maker of the said letter) In witnesse whereof the seale of the prison from the which hee was delivered thereunto is set, and in such shires where no gaole is the sheriffe therof for the time being shall cause a seale to be engraved with the name of the shire, and shall order and use the same seale to and for such persons so delivered, as is aforesaid, after like maner and forme [Page 223] as the Gaoler and keeper of the gaole is limitted and appointed to doe by this Act. And it is also enacted that every Clerke of the peace of the Shire within the which such person shall be delivered, and every common Clerke of every Citie, borough, or towne corporate within the which any such person shall bee delivered shall make for every such person as shall be so delivered where they be such officers, the said letter in forme abovesaid, without any Fee taking for the same, and shall deliver every such letter to the Gaoler or keeper of the prison from the which such person shall be delivered, and if there be no Gaole there, then to the Sheriffe of the shire, where such deliverance shall be had within one day next after the end of the Sessions, where any such deliverance is had, upon paine to loose and forfeit for the default of every letter 12. d. to the Kings Majestie, and that the Gaoler or Keeper of the prison from the which the person shall be so delivered, and in case there be no Gaole, then the Sheriffe of the shire where any such deliverance shall be had, shall not suffer any such person to goe abroad to begge for his fees, nor depart out of prison, except it be to service or labour, unlesse the said Gaoler or sheriffe first deliver to the said person the said letter containing his name, sealed with the seale of the prison, from the which he shall be delivered, or else with the seale engraved with the name of the shire, if there be no prison, upon paine for every default to loose 12. d. to the Kings highnesse. And it is enacted that if any person or persons so being delivered out of prison, at any time after the said feast doe begge, not having the letter aforesaid sealed in forme abovesaid, or begge contrary to the tennor of the said letter, that then he shall be taken, ordered and whipped in every behalfe, like as is above appointed for strong beggers, and that to bee done and executed by such as be above limitted to doe the same upon strong beggers, and in such wife, and upon such paine, as is above limitted, for non execution of the punishment of strong beggers, provided alway that it be lawfull to every person and persons, being bounden by reason of any foundation or ordinance to give or distribute any money in Almes, and also to every person and persons at common doles, used at burials or obytes, to give and dispose in Almes any money to every person and persons commīng to such Almes or Doles after like forme and manner as they have beene accustomed to doe in that behalfe, before the making of this Act, without any danger or penaltie of this statute, any thing contained in this present statute to the contrary hereof notwithstanding, provided also that it be lawfull to all masters and Governours of hospitals, to lodge and harbour any person or persons of charitie or Almes, according to the foundation of such hospitals, and to give money in Almes, in as large manner and forme as they are bounden, or owen to doe any thing in this statute to the contrary hereof notwithstanding.
And lastly in anno 11. Caroli ca. 4. in Ireland it is ordeined, for the better suppressing of Rogues, Vagabonds, and other idle and disorderly persons that before the Feast of Saint Michael the Archangell which shall be in the yeare of our Lord God, one thousand six hundred thirty and six, there shall be erected, built, or otherwise provided within every County of this realme of Ireland, one or more fit and convenient house or houses of correction, with convenient backside thereunto adjoyning, together with Mils, working cards, and other necessary implements, to set the said Rogues, and other idle and disordered persons on worke, the same houses to be built, erected or provided in some convenient place or Towne in every County, which houses shall be purchased, conveyed or assured unto such person or persons, as by the Iustices of peace, or the more part of them in their quarter Sessions of the peace, to be holden within every county of this Realme of Ireland shall be thought fit upon trust, to the intent that the same shall be used and imployed for the keeping, correcting, and setting to worke of the said Rogues, Vagabonds, sturdie beggers and other idle persons.
And it is further enacted by the authoritie aforesaid (that if the said house and houses respectively so to be erected, purchased or provided shall not be erected, built or otherwise provided before the said feast of Saint Michael, that then every Iustice of peace, resident and dwelling within any County of this realme, where such house and backside shall not be so erected and provided shall forf. for his neglect Five pounds sterling, and so for every yeare which shall ensue after the Feast of Saint Michael, wherein the said house and backside shall not be erected and provided every such Iustice of peace, as is aforesaid, shall forf. 5.l. sterling, the one moitye of the said forfeitures, to be unto him or them that will sue for the same, by action of debt, Bill, plaint, or information, in which suit no protection, essoine or wager of law shall be admitted, and the other moitie thereof to be imployed and bestowed towards the erection, building, procuring, or providing the same houses and backsides respectively, and such necessary imployments as aforesaid, and by the said Act it is further ordained that the Iustices of peace in every County within this Realme, or the more partie of them shall have power at any their quarter Sessions of the peace within the said County to make such orders, as to them or the more part of them from time to time shall be thought fit, for the raising of money upon the inhabitants of the said County for erecting, or providing the said houses, and for the government and ordering the said houses respectively, or for stocks of money for the setting to worke such persons as shall be committed to the same, or for the yearely payment of such officers, as hereafter by this present Act shall bee appointed for governor or governors of the said house or houses, and for such other as they shall thinke fit to be imployed therein, and that the said Iustices [Page 225] at their said Quarter Sessions, wherein they shall set such order for the raising of money, as aforesaid, shall then and so yearely afterwards nominate and appoint one sufficient man, inhabiting in the said County to be and be called the treasurer of the receiving and paying out of such monies as shall be collected for the said houses, or for the use of them, and the said treasurer so elected to continue for the space of one whole yeare in this office, and then to give up his charge, with a due accompt of his receipts and disbursements at the quarter Sessions to be holden next after the Feast of Saint Michael every yeare in the presence of two Iustices of peace, to such other as shall be from yeare to yeare successively elected treasurer, and if any man chosen, as aforesaid, shall refuse to accept or execute the said office of treasurership, that then it shall be lawfull for the Iustices of peace in their quarter Sessions, or in their defaults for the Iustices of Assise at the Assises to be holden in the same County to fyne the said treasurer by their discretion, the same fyne not to be under three pounds sterling, which shall be levyed by sale of his goods, by vertue of a warrant to be given for that and by the said Iustices, to such person or persons as they shall thinke fit, which fyne so levyed, to be to the use and towards the maintenance of the said house of correction.
And it is further enacted that the Iustices of peace of every County within the realme of Ireland at their quarter Sessions of the peace to be holden for their severall Countyes (next after the erecting, providing, or building of the said house or houses, and so from time to time) or the most part of them, shall elect, nominate and appoint, at their will and pleasure, one or more honest, fit person or persons, to be governor or master of the said house, or houses, so to be purchased, erected, built, or provided, which person or persons so chosen by vertue of this present Act, shall have power and authority to set such Rogues, Vagabonds, idle and disorderly persons as shall be brought and sent unto the said house to worke and labour (being able) from time to time for such time as they shall continue and be remaining in the said house of correction, and to punish the said Rogues, Vagabonds, idle and disorderly persons, by putting fetters or ginnes upon them, and by moderate whipping of them, and that the said Rogues, Vagabonds, and idle persons, during such time as they shall remaine in the said house of correction, shall in no sort be chargeable to the Countrey, for any allowance either at their bringing in or going forth, or during the time of their abode there, but shall have such and so much allowance as they shall deserve by their owne labour and worke; And for that it is convenient that the masters and governors of the said houses of correction, shall have some fit allowance and maintenance for their travaile and care to be had in the said service, as also for the releiving of such as shall happen to be weake and sicke in their custody. It is therefore enacted that the masters or governors of the said houses of correction shall have such summe of money paid [Page 226] him yearely as shall be thought meete by the most part of the Iustices of peace within the said County at their quarter Sessions of the peace, the same to be paid quarterly before hand, by the treasurer aforesaid, during the time that the said masters or governors shall be imployed in the service, the said master or governor giving sufficient securitie for the continuance and performance of the said service, which if the Treasurer shall neglect or refuse to performe, then the said master or governor of the said house of correction, shall by warrant from any two Iustices of the peace of the said County levye such summe or summes of mony as ought to be paid to the said master or governor, by distresse and sale of so much of the said treasurers goods, as the said money which shall be behind doth amount unto, rendring to the said treasurer the overplus, if any shall remaine; and in defect of such distresse, it shall be lawfull for any two Iustices of peace as aforesaid to commit the said treasurer to the County gaole of the County, there to remaine without baile or mainprise, untill payment be had of such summes as is behind to the said master and governor, provided alwayes that before any such warrant be granted for distraining of the said treasurers goods, or committing of his body, that it shall appeare before the said Iustices of peace, either by confession of the party, or by testimony of two sufficient witnesses in the presence of the treasurer, that he hath so much money in his hands appertaining to the said uses as may satisfie the said masters or governor, and because there shall be the more care taken by all such masters of the houses of correction, that when the Countrey hath beene at trouble and charge to bring all such disorderly persons, as aforesaid, to their safe keeping, that then they shall performe their dueties in that behalfe; It is therefore enacted that if they shall not every quarter Sessions yeeld a true and lawfull accompt to the Iustices of peace of all such persons as have beene committed to their custody, or any of them shall be troublesome to the Countrey by going abroad, or otherwise shall escape away from the said house of correction, before they shall be from thence lawfully delivered, that then the said Iustices shall set downe such fynes and penalties upon the said masters and governors, as the most part of them in their quarter Sessions shall thinke fit and convenient, and all fynes and penalties not herein before limitted shall be paid unto the treasurer and accompted for, by the treasurer aforesaid, and further that the said Iustices of peace of every County, or any two or more of them, twice in every yeare at the least, and oftner if there be occasion, shall assemble and meet together, for the better execution of this statute, and that some foure or five dayes before their assembly and meeting, the said Iustices or the more part of them, shall by their warrant, command the Constables of every Barony, Towne, Parish, Village, and hamlet, within the said County, or so many of them, as they in their discretions shall thinke fit, which shall be assisted with sufficient [Page 227] men of the same places, to make a generall privy search in one night, within their said Barronies, Townes, Parishes, villages, and hamlets, for the finding out, and apprehending of the said Rogues, Vagabonds, wandring and idle persons, and that such Rogues, Vagabonds, wandring and idle persons as they shall then finde and apprehend in the said search, shall by them be brought before the said Iustices, at their said assembly and meeting there, to be examined of their idle and wandring life, there to be punished according to a statute in the 33. yeare of King H. 8. in this kingdome, against Vagabonds, or otherwise by their warrant, to be sent or conveyed unto the said house or houses of correction within the said County, appointed and prefixed, there to be delivered to the master or governor of the said house, or to his Deputie or assignee, to be set to labour and worke, at which dayes and times of assembly and meeting, so to be held by the said Iustices of peace, the Constables of the said Barronies, Parishes, Townes, Villages, and hamlets, shall then appeare before the said Iustices of peace, at the said assemblies or meetings, and there shall accompt and reckon upon oath in writing what Rogues, Vagabonds, and wandring disorderly persons they have apprehended both in the same search, and also betweene every such assemblies and meetings, and how many have beene by them punished, or otherwise sent unto the houses of correction, which if the said Constables shall neglect to performe, as also to convey safely all such Rogues, with all other idle or disorderly persons, at the charge of the Constablewicke as by the Iustices of peace warrants, shall be sent unto the houses of correction in the same County, that then they shall forfeite such further fynes, paines and penalties, as by the said Iustices of peace or the most part of them shall be thought fit and convenient, not exceeding the summe of Forty shillings for every offence: And it is further enacted that all persons calling themselves schollers, going about begging, all idle persons going about in any Countrey, either begging or using any subtill craft, or unlawfull games or playes, or feigning themselves to have knowledge in Phisiognomie, Palmestry, or other like crafty science, or pretending that they can tell destinies, fortunes, or other like phantasticall imaginations, all persons that be, or utter themselves to bee proctors, procurers, patentgatherers, or collectors for gaoles, prisons, or hospitals, all Fencers, Bearewards, common players of enterludes and minstrels wandring abroad, all Iuglers, all wandring persons and common labourers, being persons able in body, using loytering, and refusing to worke for such reasonable wages as is taxed and commonly given in such parts, where such persons doe, or shall happen to abide or dwell, not having living otherwise to mainetaine themselves, all persons delivered out of gaoles, that begge for their fees, or otherwise travell begging, all such persons as shall wander abroad, pretending losse by fire, or otherwise, all such as wandring pretend themselves to be Egyptians, [Page 228] or wander in the habite, forme or attire of counterfeit Egyptians, shall be taken, adjudged and deemed Rogues, Vagabonds, and sturdy beggers, and shall sustaine such punishments, as are appointed by the said statute made in the three and thirtieth yeare of King Henry the Eighth, cap. 15. in this kingdome, against Vagabonds, or be otherwise dealt withall, by sending them to the house of correction in the County where they shall be found, as to the Iustices of peace of the said County, or to any one, or more of them shall be thought fit, and for that many wilfull people, finding that they have children, have some hope to have reliefe from the Parish wherein they have dwelled, and being able to labour, and thereby to relieve themselves and their families, doe neverthelesse runne away out of their Parishes; and leave their families upon the Parish, for remedy whereof it is enacted that all such persons so running away shall be taken and deemed to be incorrigible Rogues and endure the paines of incorrigible rogues, and if either such man or woman being able to worke and shall threaten to run away and leave their families, as aforesaid, the same being proved by two sufficient witnesses, upon oath, before two Iustices of peace in the County where they dwell or whither they runne, that then the said person so threatning shall by the Iustices of peace be sent to the houses of correction, unlesse he or shee can put in sufficient sureties for the discharge of the Parish, there to be dealt with as a sturdy and wandring Rogue, and to be delivered by the said Iustices at any of their meetings, or at their quarter Sessions, and not otherwise.
And it is further enacted that if any Action of Trespasse, or other suite, shall happen to be attempted and brought against any person or persons for taking of any distresse, making of any sale, or any other thing doing by authority of this present Act, the defendant or defendants in any such Action or suite, shall and may either plead not guilty, or otherwise make avowry, cognisance, or justification for taking of the said distresse, making of sale, or other thing doing by vertue of this Act, alledging in such avowry, cognisance or justification, that the said distresse, sale, trespasse, or other thing whereof the plainetiffe or plainetiffes complained, was done by authority of this Act, and according to the tenor, purport and effect of this Act without any expressing or rehearsall of any other matter or circumstance contained in this present Act, to which avowry, cognisance, or justification the plainetiffe shall be admitted to reply, that the defendant did take the said distresse, made the said sale, or did any other Act of Trespasse supposed in his declaration of his owne wrong, without any such cause alledged by the defendant, whereupon the issue in every such Action shall be joyned, to be tryed by verdict of twelve men, and upon the tryall of that issue, the whole matter to be given on both parties in Evidence, according to the very truth of the same, and after such issue tryed, for the defendant or nonsuite of the plainetiffe, [Page 229] the sad defendant shall recover treble damages, by reason of his wrongfull vexation in that behalfe, with his costs also in that part sustained, and that to be assessed by the same Iury, or by writ to enquire of damages as the same cause shall require.
And it is further enacted that the Iustices of Assize, in their severall circuits, shall have full power to enquire of all defects, defaults, and negligences of any Iustice of peace, or any other officer, person or persons whatsoever, in the not due execution of this Law, and also of all offences done contrary to the intent and true meaning thereof, and to punish the same by fyne or imprisonment, or otherwise according to their discretions.
Suretie for the peace. CHAP. 56.
1.Dalton 140. SUretie for the peace is the acknowledging of a Recognisance (or bond) to the King taken by a competent Iudge of Record for the keeping of the peace, and it is called surety, of the word securitas, because the party that was in feare is thereby the more secure and safe.
2. This surety for the peace,F. N. B. 7. 9. h. Lamb. 77. every Iustice of peace may take and command in two manners, or by a twofold authority.
3. First, as a Minister, commanded thereto by a higher authority, as when a writ of supplicavit, directed out of the Chancery or Kings Bench, is delivered to his hands, upon this writ, that Iustice of peace, only (to whom such writ was delivered) is to direct his warrant to cause the party to be brought before him alone, to finde sureties for the peace, and therein the said Iustice is to doe in every behalfe, according as the writ doth direct him.
4. Secondly, as a Iudge, (and by vertue of his office) and of his owne power derived from his Commission, he may command this surety of the peace to be found, and that either of his owne motion and discretion, or else at the request or prayer of another.
5. The Iustice of peace upon his owne motion and discretion may (if he see cause) command surety for the peace to be found or may bind a man to the peace (and that against all the Kings subjects,Vpon discreton. Dalton 141. if the Iustice shall so thinke fit) in these cases following.
6. One that maketh an assault, or affray upon the Iustice of peace himselfe, the Iustice of peace may commit him to prison,5. H. 7. 6. till he hath found sureties for the peace or if he please for the good behaviour.
7. So of such as in his presence shall make an affray upon another,P. R. 18. 19. or shall stricke, or assault or offer to stricke another.
8. So he may doe of such as in his presence and hearing shall threaten to kill, beat or hurt another, or to burne his house.
9. So likewise may he doe of such as in his presence, shall contend in hot words,P. R. 1 [...]. for from thence oftentimes doe ensue affrayes and [Page 230] batteries, and sometimes mischiefes, yea manslaughters and murders.
See Cromp. 761. 142. P. R. 4.10. So also may he doe of such as shall in his presence goe or ride armed offensively or with an unusuall number of servants or attendants, for these are accompted to be in affray and feare of the people, and a meanes of the breach of the peace, so of servants and labourers that shall beare any weapons, contrary to the statute of 20. R. 2. ca. 1.
9. Ed. 4. 3. P. R. 18.11. Also he may binde to the peace any other person by him suspected to be inclined to the breach of the peace.
12. If (out of the presence of the Iustice of peace) any man shall threaten to kill,Cromp. 135. & 143. P. R. 22. maime, or beate another, or doe attempt or goe about to doe it, then any Constable (being present, or at the prayer of the other party) may arrest such offendor to come before a Iustice of peace to finde sureties for the peace,Fit. bar. 202. and the Iustice may bind him to the peace.
13. If any Constable shall perceive any other persons, in his presence,14. H. 7. 7. to be about to breake the peace, either by drawing weapons or by stricking or assaulting one another, or by assaulting the Constable himselfe, he may take assistance, and carry them all before the Iustice to finde sureties for the peace, and the Iustice may bind them accordingly, and for default of sufficient sureties the Iustice of peace may commit them to the gaole, untill they finde such security.
14. If the Constable shall learne that certaine persons be fighting or quarrelling in a house,P. R. 22. he may breake open the doores and arrest them, and bring them before a Iustice of peace to finde surety of the peace, and the Iustice may bind them to the peace or in default of such sureties commit them to the gaole.
Dalton 141.15. Yea, the Iustice of peace (either upon his owne discretion or upon any mans complaint) may make his warrant, for any such as have made an affray, though out of his presence, and may bind them to the peace or commit in default of sufficient sureties.
16. If one hath received a wound the Iustice of peace may take surety of the peace of the one,See Br peace 21. and the other (by his discretion) untill the wound be cured, and the malice be over, Popham the Lord chiefe Iustice of England (an honourable and grave Iudge) did accordingly betweene Iames and Benton at Cambridge Assizes, 3. Iacobi.
17. All such as shall goe or ride armed offensively in faires, markets,2. Ed. 3. ca. 3: or elsewhere, or shall weare or carry any guns, daggs or pistols charged,Dalton. 142. in disturbance of the peace or terror of the people, any Constable seeing this may arrest them, and may bring them before any Iustice of peace, and the Iustice may bind them to the peace, yea though those persons were so armed or weaponed for their defence, for they might have had the peace against the other persons whom they feared, and besides, it striketh a feare and terrour in the Kings subjects.
18. Also the Iustice of peace (upon his discretion) may bind to the peace a common Barretor,Ibid. and so he may Riotters.
[Page 231]19. If he that standeth bound to keepe the peace hath broken,21. Ed. 4. 40. or forfeited his recognisance, the Iustice of peace ought, and may of his discretion, to bind him anew, but that must not be done untill the party be convicted of the breach of the peace, upon his recognisance, for before his conviction it resteth indifferent whether the recognisance be forfeited or no, but after that he is thereof convicted,Br. peace 17. the recognisance is utterly determined,Cromp. 42. and then he is to be compelled to finde new surety, or else to be sent to the gaole.
20. So it seemeth if the Iustice of his owne knowledge know that the party which was bound hath sithence his entring into bonds broken the peace, he shall be bound of new, and if he refuse to finde new sufficient sureties he shall be committed to prison, Cromp. 141. & Br. recog. 21.
21. Also he that standeth bound to keepe the peace,Dalton 14 [...]. if his sureties be insufficient, the same Iustice or another Iustice of the peace may compell him to finde better sureties, or else commit him to the gaole.
22. And in many of the former cases, the Iustice of peace ought (of duty, or at least in good discretion) to command the surety for the peace although the same be not required by any other person, and if any such person shall refuse to give such surety, the Iustice of peace ought to send him to prison, there to remaine untill he shall finde such surety.
23.9. Ed. 4. 3. Br. peace 8. If a Iustice of peace (upon his owne discretion) shall cause one to be arrested to finde sureties for the peace, and shall after let him goe without taking surety, or binding him to the peace, yet the party hath no remedy, for an Action will not lye against the Iustice of peace, he being a Iustice of Record, See 9. H. 6. fo. 60. & 9. Ed: 4. fo. 3. Br. Iudges 2. 10.
24. A Iustice of peace may perswade a man to require the surety of peace against another, and he himselfe may grant a warrant for it,P. R. 18. Dalton 143. because it is no more then he might have granted of his owne authority without any demand made, and it shall be presumed that he saw cause to doe all this.
25. Also at the request or prayer of another,Vpon request. the Iustice of peace may command this surety of the peace, and may grant his warrant for it.
26. But here the Iustice of peace must and ought to take an oath of the party that demandeth the peace,F. N. B. 7 [...]. [...]. which oath must be to this effect, scil. that he standeth in feare of his life,Dalton 143. or of some bodily hurt to be done to himselfe, or to have his houses burned (and that he doth not crave the peace, for any private malice, or for vexation, but of very feare, and for the needfull safety of his body, or houses) for the words of the Commission herein are, Et ad omnes illes qui alicui vel aliquibus de populo nostro, de corporibus suis, vel de incendio domorum suarum, minas fecerint ad sufficientem securitatem de pace, &c. inveniendam, &c.
[Page 232]27. So as he that shall be threatned to be hurt in his body, scil. to be beaten,Ibid. wounded, maimed, or killed, the party so threatned may crave and have the surety of peace against the other.
Ibid.28. Also if a man doe feare that another will kill, maime, beat, assault, or hurt him in body; he may crave the peace against such other person.
29. So if a man doe feare that another will burne his house.
30. So if a man doe feare that one will procure or cause any such hurt to be done him by another,Ibid. either in his body, or in his house, for the words of the recognisance be, non faciet neque fieri procurabit.
Ibid.31. So if a man lieth in waite to beate, kill, or hurt another it is good cause to require this surety, Cromp. 135.
Ibid.32. If a man be threatned to have his goods burned, it seemeth by the opinion of Master Fitz. that he may demand surety of the peace for this.
17. Ed. 44. Br. peace 22.33. But where a man shall threaten to imprison another, it is holden that the peace shall not be granted, for this may be intended to be by legall processe, but if one shall threaten another of his owne wrong without any legall processe to Imprison him by force and violence; it seemeth to me that this is good cause not onely to grant security for the peace, but also for the good behaviour, for to threaten such imprisonment is within the words minas de corporibus, and like harme may happen to a man by hard imprisonment, as by cruell beating of him, and to threaten such imprisonment seemeth to be a good cause to avoide a deed, aswell as to threaten to kill or maime one, &c. 39. H. 6. Br. Duress. 9.
Fitz. Na. Br. fo. 80. g. Dalton 144.34. Where a master is in feare that another will hurt his servants, or his Cattell, or other goods, this surety of the peace shall not be granted by the Iustice of peace, but in this case Master Fitzherbert saith, the party may have a speciall writ out of the Chancery directed to the Sheriffe, that he shall cause such person to finde surety that he shall doe no hurt nor damage to the other man in his body, or to his servants or goods, and if he will not finde surety, that then he shall arrest and detaine him in prison, untill he shall finde surety, and that the Sheriffe shall certifie all that he shall doe thereupon into the Chancerie, &c. and it seemeth the Sheriffe ought to take such surety by recognisance, and yet if a man shall threaten to hurt my servant, or my wife, or child, I see no cause but that in their behalfe I may crave the peace at the Iustices hands, by the words of the Commission, and that the Iustice ought to doe it.
35. If a man will require the peace, because he is at variance or in suite with his neighbour, it shall not be granted by the Iustice of peace.
Br. Impris 41. P.R. 14.36. Note also that the surety for the peace shall not be granted but where there is a feare of some present, or future danger, and not meerely for a batterie, or trespasse that is past, or for any breach [Page 233] of the peace that is past, for this surety of the peace is only for the security of such as are in feare; [...]metus, est presentis vel futuri periculi causa mentis trepidatio, so this surety is providere praesentia & futura, & non praeterita.
37. And as for a battery or other like trespasse that is past,Dalton 144. the party wronged may have his Action of trespasse or battery, &c. or may punish the offendor by indictment at the Kings suit, and yet in such case the Iustice may, if the party hurt do pray it, or upon any good circumstance if he see cause, bind the party that made the affray to the peace.
38. If the Iustice of peace shall perceive that this surety for the peace is demanded meerely of malice or for vexation only,Ibid. without any just cause of feare, it seemeth he may safely deny it as in common experience we finde it, that where A. shall upon just cause come and crave the peace against B. and hath it granted to him, when B. shall come before the Iustice, B. likewise will crave the peace against A. and will perhaps surmise some cause, but yet will neverthelesse be content to surcease his suit and demand against A. so as A. will relinquish to have the peace against him, here the Iustice of peace shall doe well, as I thinke, not to be too forward in granting the peace thus required by B. but to perswade with him, and to shew him the danger of his oath which he is to take, but yet if B. will not be perswaded, but will take his oath that he is in feare (where indeed he neither doth feare nor hath cause to feare) the Iustice may if he please upon such oath to grant the peace, and this oath shall discharge the Iustice, and the fault shall remaine upon the party, but in such case I thinke it better discretion in the Iustice to forbeare taking of such oath and the security for the peace then to grant it.
39. The Law hath conceived such an opinion of the peaceable disposition of noble men,Noble men. that it hath beene thought enough to take one of their promisses upon his honour, that he would not breake the peace against a man, Br. contempts 6. 24. Ed. 3. 3. and 17. Ed. 4. 4.
40. And therefore if a man shall have cause to have the surety of the peace against a Lord of the Parliament, or such great and noble personage, he shall not have a warrant from the Iustices of peace to that purpose, nor yet have a supplicavit out of the Chancery directed to the Iustices of peace therefore, but if there be cause he may have a Sub poena out of the Chancery, of common right, as it seemeth, and there such Lord or noble man shall be bound to the peace, and yet if such Lord will not appeare upon the Sub poena served,Fitz. subp. 20. it seemeth an attachment will lye against him upon such his default, Master Cromp. fo. 134. b. saith that it was held in the case of the Lord Cromwell in the Chancery about 18. Eliz. that an attachment lieth not against a Lord where he maketh default upon a Sub poena against him out of the Chancery, Dyer 315. seemeth to accord, but I conceive that this opinion is no Law, but that for a personall contempt in a noble man an attachment lyeth, or he may be fined by the Court for his contempt.
[Page 234] Co. 6. 53. 54. 11. H. 4. 15. Br. Rep. 19.41. But though it be true that the persons of Barons (who are peeres of the Parliament) shall not be arrested (for, or in cases of debt or trespasse) by their bodies, first in respect of their dignity, secondly, that the Law presumeth that they have sufficient lands and tenements wherein they may be distrained, yet in cases of contempt it seemeth they may be arrested by capias, or attachment, &c.
Fitz. subp. 20.42. Or else it seemeth that the party may crave the peace in the Chancery against such Lord or peere, sc. to have a supplicavit directed to the Sheriffe, and that the Sheriffe may and ought to execute the same, and that if the Sheriffe shall not doe his office therein, an alias plur. attachment lieth against him,F.N.B. 79. g. and if the Sheriffe shall returne, that such Lord is puissant, that he cannot arrest him upon such return, the Sheriffe shall be grievously amerced (for he might have posse comitatus, sc. he might have levyed 300. men by his discretion, if there had beene need,Crom p. 134. to have aided him in such case) and if such Lord or peere who is by the Sheriffe so arrested, shall refuse the arrest, and shall make a rescous, whereupon the Sheriffe shall returne a rescous, hereupon an attachment shall be granted out against such Lord, to arrest and take his body for such his contempt.
Co. 6. 52. 53.43. The same Law and remedy seemeth to be, where a man hath cause to have the surety of the peace against a Dutchesse, Countesse, or Baronesse, for they are Peeres of the Realme, and shall be tryed by their peeres, although in respect of their sexe, they cannot sit in parliament, and they are in the same degree (as concerning their nobility and the priviledges incident to their dignities) with Dukes, Earles, and Barons, but here note this diversity, sc. if such a woman being a Countesse, or Baronesse, &c. by marriage only, shall marry againe under the degree of nobility she hath thereby lost her name of dignity, together with the priviledges of her said nobility also, as it seemeth, for in such a case, si mulier nobilis nupserit ignobili, deserit esse nobilis, Co. ibid. and that which was gotten by marriage may also be lost by marriage, for eodem modo quo quid constituitur, dissolvitur, but if shee be noble by birth or discent, whomsoever shee shall marry, yet she remaineth noble, for birthright est character indelebilis.
44. And yet by the curtesie of England, if women get to any degree of estate, they never lose it by marriage, but doe still take place according to the estate of their first husband; but this matter of curtesie hath no place in legall proceedings.
Dalton 146.45. Suretie of the peace may be granted by the Iustice of peace against a Knight, and against all other lay persons, being under the degree of a Baron or peere of the Realme, and they shall be bound with sureties.
26. H. 6. 23. Br. Maigne. 14. & 15.46. Ecclesiasticall persons (if they be not attending upon divine service) may be arrested for the peace, and they shall be bound with sureties, but whilst they are doing any divine service in the Church, Churchyard, or other place dedicated to God, they may not be [Page 235] arrested, 5. Ed. 3. 5. P. Arrests 1. See the stat. 1. R. 2. cap. 15.
47. Surety of the peace may be granted against the Sheriffe,Dalton 146. Coroner, Escheator, and other such officers of Iustice, but Master Marrow adviseth that such persons be not bound, versus cunctum populum, but only against such person, as shall demand it, least otherwise it should argue them unworthy of their offices.
48. One Iustice of peace may grant this surety to any man,Dalton 146. Lambert f. 80. against one of his fellow Iustices, but great discretion is herein to be used, otherwise he shall bring the office into contempt, and himselfe to reproofe by it, saith Master Lambert, but although one Iustice of peace may take a recognisance of the peace of one of his fellow Iustices, yet if his fellow Iustice shall refuse to finde such security, I cannot conceive that the Iustice of peace may commit his fellow Iustice, for inter pares non est potestas.
49. One Iustice of peace may demand this surety of the peace at the hands of his fellow Iustice against another man.
50. The wife may demand this surety against her husband,Wife Fitz. 80. f. Dalton 148. if he shall threaten to kill her, or outragiously beate her, or if the wife hath any notorious cause to feare that he will doe so, and it shall be granted her by the Iustice of peace, or shee may have it by supplicavit in the Chancery, Fitz. Na. Br. fo. 238. fo. Br. peace 23.
51.Ibid. The husband for the like causes may demand surety for the peace against his wife.
52.Dalton 147. Also the Iustice of peace upon his owne discretion may in either of the aforesaid cases betweene the husband and the wife, especially happening in his presence, grant surety of the peace.
53. An Infant under the age of 14. yeares may demand this surety,Dalton 147. and it shall be granted him.
54.Ibid. Also this surety of the peace may be granted at the prayer of any person against a feme covert, or against an Infant, though he be under fourteene yeares of age, for if such an Infant hath discretion to demand the peace, &c. then hath he discretion to breake the peace.
55.Ibid. But an Infant and a feme covert shall be bound by sureties onely, and they themselves shall not be bound, and if they cannot finde sureties, they shall be committed to prison untill they have found sureties, and yet if an Infant shall be bound to the peace, &c. by recognisance taken by a Iustice of peace,Co. 10. 43. Cromp. 237. b. it seemeth he shall be estoped to avoid such a record, if he doth not avoid it during his minority, for it is not voide but voidable, by audita quaerela.
56.Dalton 147. But if a feme covert shall be bound or acknowledge such a Recog. though her husband joine therein with her, yet it is meerely voide, as to the wife, although she over liveth her husband.
57. If a man be of non sanae memeriae, Ibid. this surety shall neither be granted against him, nor to him upon his request, and yet if there shall be cause, the Iustice of peace upon his discretion, ought to provide for his safety.
[Page 236]58. A man that is lunaticke, (scil. who at some seasons hath the use of reason, and at other times not) it seemeth this surety of the peace may be granted against him, and also that he may demand the same against another.
See Co. 4. 124. & 11. 77.59. And if one of non sanae memoriae, or a lunaticke be himselfe bound by recognisance before a Iustice of peace to keepe the peace, it seemeth such recognisance shall bind them and all others for ever.
60. A man that is deafe, dumbe, and blind, shall not have this surety,Dalton 147. for he hath no understanding to aske it, and yet such a person, or any other person not having reason to demand the peace, if there because, the Iustice of peace upon his discretion ought to provide for their safety.
61. A man that is borne dumbe and blind, may have understanding,Ibid. and therefore it seemeth this surety may be granted to him, or against him.
62. But a man that is borne dumbe and deafe can hardly have understanding, for though the sight be the chiefest sence, yet by hearing we come chiefely to knowledge, and therefore it seemeth not grantable to him or against him.
63. And this surety of the peace may be granted against an impotent person, although he be such a one as is not like to breake the peace himselfe, but he may procure another to kill, or beate one, and the common forme of recognisance is to bind a man from procuring hurt, aswell as from doing hurt.
Cromp. 134.64. This surety of the peace may also be granted to or against a man attainted of treason or felony.
65. A man excommunicate may have this surety granted to him or against him.
66. So also of a man that is abjured the Realme, for notwithstanding the abjuration, he oweth the King his legeance and remaineth within the Kings protection, and the King may pardon and restore him againe, qui abjurat regnum, amittit regnum non regem, Co. 7. 9. b.
67. A man attainted in a praemunire may not have this surety granted to him in Ireland, but in England he may have it, for by a statute made in England in anno 5. El. ca. 1. It is ordained that it shall not be lawfull to kill such a one, but this statute is not of force in Ireland.
Cromp. 134: P.R. 19.68. An alien borne, who is made Denizen, may have this surety, and so of an alien borne who liveth in England, under the Kings protection, although he be not made Denizen.
Co. 7 17.69. And so of an alien, whose King is in league with our King, or if there be no warres betweene this Realme and that Realme whereof the alien is, for by the common Law all these may get and have within this Realme any personall goods, and may sue for the same, and so have the benefit of the Kings Lawes and protection, but an [Page 237] Alien who is the Kings enemy,Dyer. 2. (scil. where there is open warre betweene our King and his King) shall not have such surety granted to him, nor any other benefit of the Kings Lawes.
70. Who shall be said to be an Alien, See Co. 7. 16, 17.
71. In Calvins case, 6. Co. 7. 18. Iac. reg. there is a difference taken betweene antenati and postnati, in Scotland, where it is holden that antenati in Scotland, sc. such as were borne there before that Kings happy comming to the crowne of England are here aliens borne, the reason is, for that at the time of their birth they were under the legeance of another King, and he could not be a Subject borne of the Kingdome of England, that was borne under the legeance of a King of another Kingdome, and yet it is manifest that antenati being the Kings Subjects, are herein provided for, by the Commission it selfe, the words whereof are, & ad omnes illos qui alicui vel aliquibus de populo nostro, &c. of which number antenati be, so as they may and ought to have this suretie granted them as well as any other Subjects, See Dyer fo. 304.
72. But it may be questioned, whether an infidell, pagan, or Iew,Co. 7. 17. shall have this securitie granted them, for in law they are perpetui inimici, there is perpetuall enmitie betweene the Christians and them, and there can be no peace, neither can they get any thing within this realme, nor maintaine any action at all, 12. H. 8. 4.
73. A villaine may have this suretie of the peace against his Lord, and the Lord may have it against his villaine, and yet it maketh no manuimission, although it were demanded by the Lord without any protestation, &c.
How this Suretie of the peace may be commanded, and how the same commandement shall be executed. CHAP. 57.
1. THe Iustice of peace may command this suretie of the peace, either by word only or by writing.
2. By word only the party being in his presence, as if in the presence and hearing of the Iust. of peace one man doth threaten another, or shall make an affray, or assault upon another,14. H. 7. 8. or doe some other like thing, tending to the breach of the peace, the Iustice of peace may command him by word to finde sureties for the peace, and for want of such sureties may commit him to prison untill hee shall finde the sa [...]e.
3. Also if one shall demand this surety against another,14. H. 7. [...]. who is then in the presence of the Iustice of peace, and will be sworne that hee is affrayd of him, the Iustice may by word command him to finde sureties for the peace.
4. And the Iustice of peace in such cases,14. H. 7. [...]. [...]. may by word only [Page 238] command the Constable or any knowne officer (or his owne servant) being then present, to arrest such party to finde sureties for the peace, and if the party shall refuse to finde such sureties, then the Iustice of peace may commit him to the gaole.
5. By precept or warrant in writing and under seale, and this must be directed to some officer or other indifferent person,By writing. and must containe the cause, and at whose suit, to the intent the party to be bound may provide his sureties, and take them with him; The forme of which precept, See postea tit. Warrants and Presidents.
Co. 5. 59.6. The Iustice of peace may make his warrant to bring the party before himselfe to finde suretie for the peace, by the opinion of Wray chiefe Iustice,Br. peace 9. for he that maketh the warrant, for the most part, hath the best knowledge of the matter, and therefore is the fittest to doe Iustice in that case, and yet the most usuall manner is, to make such a warrant, to bring the party before the same Iustice or some other of the Iustices of peace of the same County,21. H. 7. 21. &c. and Iudge Fineux his opinion was, that where a Iustice of peace doth make a warrant for the party ex officio, there the party may choose to appeare before him, or any other Iustice in that County, and that the party may have his action of false imprisonment against the officer, if he doe otherwise compell him.
How it shall be executed. 5. Ed. 4. 13.7. The Constable (or other officer) before he arresteth the party upon such a warrant, ought first to acquaint him with the matter, and withall to require the party in the Kings Name to goe (with him) before the Iustices to finde sureties according to the warrant, and if the party shall refuse either to goe before the Iustice,P. R. 20. and Cromp. 235. or to finde sureties, then the officer may arrest him, by vertue of that warrant, and may convey him to the gaole, without carrying him to any Iustice of peace, and there the party shall remaine, untill he shall voluntarily offer and find sureties.
8. But if the partie shall yeeld to goe and finde sureties, then the officer may not absolutely arrest him, but yet the officer is not bound to goe up and downe with him to finde sureties, but may keepe the party untill he can procure sureties to come to him, yet if afterwards the party shall make any resistance, or shall offer to goe his way, then the officer may arrest him, and by vertue of that warrant, may carrie him to the gaole, and may also imprison him in the stockes, untill he can provide aide to convey him to the gaole.
14. H. 7. f. 10. 2. Br. peace.9. When the party commeth before the Iustice of peace by force of this warrant, or by force of any other warrant for the peace, or good behaviour, or for a riot, or the like, the party must offer sureties to the Iustice of peace or else the Iustice may commit him to the prison, for the Iustice needeth not to demand surety of him.
10. Also after that the party shall be brought before the Iustice, if before him he shall refuse to finde sureties, the officer without any new warrant or commandement may carry the party to prison,co. 5. [...]. and [Page 239] that by the words of the first warrant, (and if he shall refuse this to doe, that then, &c.) see the forme of the warrant in the title of warrants and presidents.
11. If the officer doe arrest the party,5. Ed. 4. 6. P. R. 20. and doe not carry him before some Iustice of peace to finde sureties, &c. or upon the refusall of the party, if the officer shall arrest him, and doe not carry him to the gaole, in both these cases, the officer is punishable by the Iustices of peace for this neglect (by fyne at their Sessions) and also the party arrested may have his Action of false imprisonment for the arrest, for where the officer doth not pursue the effect of his warrant, his warrant will not excuse him of that which he hath done, 21. H. 7. 23. a. See 3. H. 7. fo. 3. b. Bryan.
12. And if the party be imprisoned for default of sureties, and after he that demanded the peace against him happen to dye, or shall release the party, it seemeth in these cases the Iustice of peace may make his liberate or warrant for the delivery of such prisoner, for after such death, or release, there seemeth no cause to continue the other in prison, also any Iustice of peace may upon the offer of such prisoner, take surety of him for the peace, &c. and may thereupon deliver him.
13. It seemeth by some opinions,4. Ed. 4. [...]6. 2. H. 7. 24. Br. priviledge 35. & 52. Lambert 96. that if the party imprisoned for not finding sureties, hath a suite depending in the common place, he may by the course of that Court by a writ of priviledge be discharged of his imprisonment, if the other party be not ready in the Court at the day of the returne of the writ, to pray sureties of the peace, but if upon the returne of the habeas corpus the cause be returned as it ought to be the Court will not discharge him without finding such surety, for he that demandeth the peace is not to have notice of the removing of his body, and then how can he be ready in the Court of common place at the day, and therefore it were a hard case that he should be so defeated of his surety.
14. If the party hath gotten sureties, then if the warrant proceed ex officio (and not upon the writ of supplicavit) and be a generall warrant, scil. to come before me, or some other Iustice,Co. 5. 59. Br. ex [...]mp. 11. Br. peace. 9. the party may goe before any other Iustice of peace, to offer his surety, yet he shall not inforce the officer to travell to a Iustice out of the division or limit where they be dwelling without good cause; Nay it is at the election of the officer (who is the minister of Iustice) to carry the party attached, to any other Iustice of peace that he will, for it is more reason to give this election to the officer, who in presumption of Law is a person indifferent, and is sworne to execute his office duely, then to give the election to the delinquent himselfe, who by presumption will seeke shifts, and to weary the Officer.
15. If the other Iustice of peace, before whom the party so attached shall come, shall refuse to accept and take such surety being offered to him, this is punishable in the Starchamber, for such Iustice [Page 240] of peace ought to take of him such sureties, and to binde him by recognisance, but yet that must be done in such sort in all points, as the forme of the former precept doth require,Supersedeas by a Iustice of peace. and thereupon the same other Iustice of peace (having so taken suretie for the peace, may and ought upon request, to make his supersedeas to all officers, and to all other the Iustices of peace of the same County, and thereby the said party shall be discharged from finding other suretie,Cromp. 145. and from any other arrest for the same cause, but by such supersedeas that other Iustice cannot dischardge the first warrant of the first Iustice untill the party be bound indeed, nor can give any other day to the party to appeare at any other Sessions, &c.
Dalton 151.16. Also a Iustice of peace of the County by a Supersedeas cannot discharge a warrant awarded by his fellow Iustice by force of a supplicavit to him directed out of the Chancerie or Kings Bench, to take the suretie of the peace of one resident in that County.
Ibid.17. Also when a man doth feare that surety of the peace will be demanded against him in the Countrey, or doth heare that such a warrant for the peace is granted alreadie out against him, by a Iustice of peace, it seemeth in either of these cases, he may goe and give suretie of the peace before any other Iustice of peace of the same County where he dwelleth, and thereupon may have a supersedeas from that Iustice of peace, &c. but in such case it is fit that such party be urged by such Iustice to put insufficient sureties, and that he be bound towards the King, and all his people, and to appeare at the next Sessions.
Ibids.18. If any officer having a warrant from a Iust. of peace to arrest a man to finde surety of the peace, shall receive a supersedeas (out of the Chancerie, or Kings Bench, or from any Iustice of the Kings Bench,Dalton 152. or from any Iustice of peace of the County) to discharge the same surety of the peace,Lamb. 101. and yet neverthelesse will urge the party (by force of his warrant) to finde (new) suretie for the peace, the party may refuse to give it, and if he be arrested or imprisoned for such refusall, he may have his action of false imprisonment against such officer, for such supersedeas is a discharge of the former precept or warrant.
19. The forme of a Supersedeas granted by a Iustice of peace you may see, postea tit. Warrants and Presidents.
20. And this Supersedeas is sufficient, though it never name the sureties, nor containe the fummes wherein they are bound, but yet it is the better forme to expresse them both.
F. N. B. 81. 2. and 238. Supersedeas from above.21. If the party shall mislike to be (or stand) bound to the peace, by the Iustice of peace in the Countrey, then may he (either before, or after, that he is bound in the Countrie) goe or send up to Dublin, and there give suretie for the peace (either in the Kings Bench, or in the Chancerie) and thereupon the party may have a Supersedeas (our of that Court) where he hath given such suretie, to restraine the [Page 241] Iustice of Peace of the Countrey from taking any surety of the peace of him, and then the Iustices of peace of the Countrey, after the receipt of such Supersedeas, must forbeare to make any warrant for the peace against the party, and if any Iustice of peace have granted out any such warrant against the said party, the said Iustice may make his Supersedeas to the officers, thereby commanding them to surcease to put his former warrant in execution, and so to discharge it and to discharge the party of any arrest, or imprisonment thereupon.
21. The forme of a Supersedeas for the peace out of the Kings Bench, See lib. Intr. 454.
22. For the forme of a Supersedeas for the peace, out of the Chancery, See Fitz. Na. Br. 238. c. and Register 89.
23. Note that this Supersedeas out of the Chancery may be procured at any time in the vacation, and out of the terme, Fitz. Na. Br. 236. a.
24. If the Iustice of peace shall not furcease, after a Supersedeas (out of the Chancery, or Kings Bench) to him delivered, an attachment will lye against him for such contempt, a [...] besides he may be fyned and imprisoned for it.
25. Yea such a Supersedeas, comming out of those high Courts to the Iustices of peace, they ought thereupon to surcease, although such a Superdeas should be awarded against Law.
26. If such Supersedeas shall be directed to the Iustices of peace and Sheriffe, that Iustice to whose hands it shall be delivered, may keepe it and may deliver the labell to the party.
27. And in these and like cases,Dalton 153. the Iustice of peace shall doe well to send to the next generall Sessions of the peace, aswell the said Supersedeas, if it come to his hands, as also the recognisance which he hath formerly taken of the party, if he had taken any, for peradventure the recognisance was forfeited before the Supersedeas was purchased, or if it were not forfeited, yet the conusor is not endamaged thereby.
28.Ibid. If the party shall procure such Supersedeas out of the Chancery, or Kings Bench, after that he is bound by recognisance before the Iustice of peace, to keepe the peace, &c. and to appeare at the next Sessions, he ought to appeare in person and there shew his Supersedeas, Cromp. 139. and pray allowance of it, and thereupon he shall be discharged, but if he faile to appeare his recognisance wil be forfeited notwithstanding his Supersedeas.
29. But if the party were bound (before the Iustice of peace) to keepe the peace against all men during his life, and not to appeare,Dalton 153. and shall after procure such a Supersedeas, testifying that he hath found such surety in the Chancery, &c. against all men for ever, and shall send this to the Sessions, this shall discharge his bonds without his personall apparance at the Sessions.
30.28. H. 8. Dyer. [...]o. 29. A man being arrested by the Sheriffe upon a capias found [Page 242] sureties for his apparance at the day, and after there came a Supersedeas to the Sheriffe, and it was moved whether it were necessary for the defendant to appeare or not, or that this apparance and surety were discharged by the Supersedeas, Lib. Int. 453. and the opinion of that Court was, that he ought to appeare for the saving of his bond, also the presidents of Entries are, that the party bound did shew his Supersedeas in Court and prayed allowance thereof, and was thereupon discharged.
Now concerning the recognisance for the peace. CHAP. 58.
1. THis recognisanceRecognisance. which the Iustice taketh for the keeping of the peace, is rather of congruence then by any expresse authority given them, Fitz. Na. Br. 82. a. 7. H. 7. 34.
2. And this recognisance for the peace, if the Iustice of peace doth take it, by force of the writ of supplicavit, then he ought to execute it, and to doe in all things as the writ directeth him, but where such writ prescribeth [...] the same, &c. or such like, that resteth in his owne discretion.
3. But if he taketh the recog. ex officio, and by force of the Commission (and so is a Iudge, not as a minister) then it resteth in the discretion of the same Iustice of peace wholly to appoint and allow the number of sureties, their sufficiency in lands or goods, the summe of money wherein they shall be bound, and to limit the time how long the party shall be bound, and such other circumstances.
7. H. 4. 34.4. In the booke 7. H. 4. fo. 34. you shall finde the principall to be bound in 1000. l. and foure sureties, every one of them in one thousand marks before Iustices of peace for the keeping of the peace.
5. The Iustice of peace may examine upon their oathes the sureties concerning their sufficiency,Br. imp. 18. and that seemeth to be the usage in the Courts at Westminster, and Master Crompton saith, that the Iustices of peace in their Sessions may doe it. Cromp. 194.
6. The most usuall manner, and safest way for the Iustice of peace is to take two sureties at the least (and those subsidie men) besides the party himselfe, and to bind them by recognisance to the King, viz. domino Regi, and it must alwayes be for the keeping of the peace.
Lamb. 104.7. And yet by the opinion of Master Marrow (who was in the time of King H. 7.) a Iustice of peace might have taken this surety by a gage pawned to him only, but this is not the course at this day, but the security ought to be by recognisance.
8. Also by his opinion a Iustice of peace might have taken this surety by an obligation made to himselfe by the name of a Iustice of peace but this course is not now in use, and the safest way is by recognisance, which is the usuall way, for via trita is via tuta, and to ground his proceeding upon conceits.
9. Yet if a Iustice of peace had enjoyned a man upon paine of 20. l. [Page 243] to keepe the peace, this had beene nothing worth, but in this,F.N.B. 81. d. and the former two cases, and the like, this one general ground or reason may be given for all, sc. that a man cannot be bound to the King, but only by matter of record, and therefore such suretie taken by gage or obligation, or such enjoyning of the peace seemeth nothing worth to binde the party.
10. A Iustice of peace may take a recognisance (and thereby may binde the party) to keepe the peace for one yeare, or for a longer time (by his discretion) yea he may binde the party during his life, upon reasonable cause.
11. If the recognisance be made to keepe the peace (generally) without any day or time limited, it shall be construed to bee during the parties life.
12. A Iustice of peace intending to take a recognisance for the peace, and yet maketh no mention therein,Dalton 155. nor in the condition thereof, that it is for the preservation of the peace, it seemeth to bee voide, as being taken coram non judice, for a Iustice of Peace hath no authoritie to take a recognisance generally, but for matters concerning his office specially.
13. If the Recognisance be, that the party bound shall not beat nor maime A. yet it is not good,Ibid. because it ought to bee for the keeping of the peace, generally, and the peace may bee broken by burning the house of A. or the like.
14. If the Recognisance doe not limit any time of apparance, but be generally to keepe the peace, yet it is good, for the time of apparance is referred to the discretion of the Iustice, and the chiefe scope is, the keeping of the peace by Master Marrow.
15. Also, by his opinion, if the Recognisance doe limit a time of apparance, but therein is no person named, before whom the party so found shall appeare, then may he appeare where he will, before that Iustice of peace which tooke the recognisance, ibidem. but in that case I thinke the Condition is voide by reason of the incertainty.
16. But in the two last cases, if a recognisance should be taken in such maner at this day, I should thinke it safe for the party to appeare at the next Sessions for the peace, and there to record his apparance, but to avoide these doubts, let the Iustice of peace expresse that the party shall appeare before his Majesties Iustices of peace at the next generall Sessions of the peace to be holden in that County, or at the next generall Assise and gaole delivery before his Majesties Iustices of gaole delivery in that County, and in so doing these scruples are avoyded.
17. If the Recognisance be to appeare at any other Sessions after (and not at the next Sessions) yet the Recognisance is good,Crom. 141. P. Iust. 106. and yet by the statute of 3. H. 7. cap. 1. It is enacted that every Recognisance taken for the peace, by the Iustice of peace ex officio shall bee certified (sc. sent or brought in) at the next Sessions of the peace, [Page 244] and there delivered to the Custos Rotulorum, or else the Iustice of peace is fineable, but it doth not therefore follow that every Recognisance taken for the peace ought to be to appeare at the next Sessions, but that it ought to be brought in, and then the party may be called at the time expressed in the Recognisance and not before.
18. If the Recognisance be in Twenty pounds to be levied of his lands only, or of his goods only, yet it is good, and these words (only may seeme voide) for the acknowledgement of the Recognisance (before a competent Iudge) both maketh it a debt,Dalton 1 55. and implieth the ordinary meanes of Law to come to it.
19. If the Recognisance be to keep the peace towards the King, and all his people, but not towards any person certaine, yet it is good.
20. So if the Recognisance be to keepe the peace towards A. only,F.N.B. 80. g. Cromp. 141. it is good, or to keepe the peace towards A. and his servants, without being bound toward the King, and all his Subjects, it is good enough.
21. But the best forme is to bind the party to keepe the peace towards the King and all his people, for first the words of the Commission are to finde suretie, erga nos & populum nostrum, and againe, the common usage is so, and besides it may prove dangerous to the party who hath cause to crave this surety of the peace, for the other party who shall give just cause to crave this surety against him (because he will not be bound to the peace towards him that prayeth it) he will perhaps pray to bind himselfe to the peace to A. who is his Companion, and then if the Iustice of peace shall so bind him, then may he and A. goe to another Iustice of peace (and that peradventure within one weeke) and there A. may release him of the peace, and so the party that first prayed the peace, trusting that hee is still bound, may be after beaten, maimed, or slaine by him or by his procurement.
22. So then though the Recognisance being taken in any maner or sort aforesaid may prove sufficient to bind the party to the King, yet peradventure it will not excuse the Iustice of peace from blame, and therefore it is safest for the Iustice of peace to follow the received forme.
23. The forme of the Recognisance for the Peace you shall see postea tit. Warrants and Presidents.
24. The Recognisance for the peace being thus taken, if it were by a writ of supplicavit, the Iustice ought to returne the writ, and to certifie, under his Seale, his doing therein into the Court from whence the supplicavit proceeded, and he may also send such Recognisance, so taken by him, with this certificate, or else he may keepe the Recognisance in his hands still, untill he shall receive a Certiorari out of the Chancerie directed to him for removing of this Recognisance.
[Page 245]25. But if this recognisance for the peace were taken by the Iustice of peace ex officio, 3. H. 7. ca. 1. P. Iust. 106. then the Iustice of peace ought to certifie (send or bring) the Recognisance to the next Sessions of the peace, so that the party bound may be called thereupon, and that if the party make default of apparance, the same default may be then recorded, and the recog. with the record of such default shall be estreated into the Exchequer,3. H. 7. ca 1. Recog. forf. that from thence processe may goe out against the party, and so ought it to be, if it be presented that the party hath forfeited his recognisance, by breach of the peace.
26. If the Iustice of peace shall not certifie such recog. at the next Sessions by the said stat. 3. H. 7. ca. 1. he is to be fined at the discretion of the Court, and yet see Brooke tit. Peace 11. that the Iustice shall forfeit 10. l. if hee shall not certifie the Recog. of the peace at the next Sessions, but Brooke there mentioneth the stat. 3. H. 7. ca. 3. which stat. of 3. H. 7. ca. 3. was only for bailement of prisoners and certifying the same, and not for Bonds of the peace.
27.Cromp. 169. If he which demanded the peace shall release the peace before the next Sessions, yet the Iustice of peace ought to certifie the Recog. together with the Release, for peradventure it was forfeited before the Release made.
28.2. H. 7. 1. [...]. 11. Fit. N. B. 8. 1. Recognisance removed. Also he that demandeth this suretie may by a Certiorari remove such Recog. into the Chancerie before the Iustice hath certified the same to the Sessions, and then the Iustice shall be excused for not certifying the same to the Sessions.
29. If the Iustice of peace were deceived in the sufficiency of the sureties,Dalton 157. the same Iustice of peace or any other Iustice of peace may afterwards compell the party to finde and put in more sufficient surety, and may take a new Recog. for the same, for that the precept is ad inveniendum sufficientem securitatem, but if the sureties dye, the party principall shall not be compelled to find new sureties.
What thing shall discharge this Recognisance (of the peace) or the party of his apparance at the Sessions. CHAP. 59.
1. A Supersedeas out of the Chancerie, &c. will not discharge the party of his apparance, but he ought to appeare and shew the Supersedeas in Court, and thereupon he shall be discharged, as is before declared in this Title.
2. He that is bound to the peace, and to appeare at a certaine day,30. H. 6. 26. he must appeare at the day, and record his apparance,Br. s [...]rety [...]. although he who craved the peace commeth not in to desire that it may be continued, otherwise the recog. shall be forfeited.
3. And if a man be bound to keepe the peace towards the King, and all his people, but not towards any certaine person, and to appeare [Page 246] at such a Sessions, the Court at that Sessions may make Proclamation, &c. and if no person commeth to demand the peace against him, then the Court may discharge him, but if a man be bound as aforesaid, and especially to keepe the peace towards A. there though A. commeth not in, to desire that the peace may be continued, yet the Court by their discretion shall doe well to bind him over till the next Sessions, and that may be, to keepe the peace against A. onely if they shall thinke good, for it may be that A. who first craved the peace is sicke, or otherwise letted, so as he cannot come to that Sessions, to demand the continuance of the peace.
4. If the Iustice of peace shall not certifie the recog. to the Sessions, yet the party ought to appeare, and to record his apparance, for if a Sheriffe arrest one upon a capias, and take bonds for his apparance, at the day the writ is returneable, and the Sheriffe returnes not his writ, &c. yet the party must appeare to save his bond 18. Ed. 4. 18.
Cromp. 134.5. If the party that is bound to appeare be so sicke as that he cannot appeare, nor by any meanes travell at the day, upon due proofe of such his sickenesse, the Iustices of peace shall forbeare to certifie or record such default, for impotentia in this and such like cases by the hand of God excusat legem.
Cromp. 144.6. If the husband be bound that he and his wife shall appeare at such a Sessions, and that they shall keepe the peace in the meane time, &c. and at the day the husband doth appeare, but not his wife, here Master Cromp. saith the recog. is not forfeited, for if there shall be cause to continue the peace against the husband and wife still, the husband shall be bound and not the wife, and therefore the wives personall apparance seemeth not greatly materiall.
21. Id. 4. 40.7. If a man be bound to the peace during his life, or generally without any time or day limitted, it seemeth that neither the King the Iustice of peace nor the party can discharge this recog. during the life of the party so bound, by release or otherwise. Br. peace 17.
8. The Iustice of peace who upon his owne discretion hath compelled him to finde sureties of the peace untill a certaine day, and hath taken recog. for his appearing, &c. may upon the like discretion release the same before the day, and such a release will discharge the recog. taken by that Iustice if it were not forfeited before, but yet the Iustice of peace ought to certifie the Recognisance together with his release, and this certificate will discharge the apparance of the party.
9. If a Iustice of peace shall grant the peace at the request of another (scil. at the suite of A.) and the recognisance be taken to keepe the peace against B. only, then before the next Sessions may B. only release it, and none other, and that release being certified with the recognisance at the next quarter Sessions, will discharge the party so bound of his apparance, so as he shall not be called upon his recog. for that release being so certified, is now become of record aswell as the recognisance.
[Page 247]10.B [...] p [...] 17. If the Recog. were to keepe the peace versus cunctum populum, & precipuè versus A. yet may the same A. release it, for although this may seeme popular, and that all others should have interest therein aswell as A. yet it appeareth by the word precip [...]è that it was especially taken for his safety, but the contrary was holden by all the Iustices 21. Ed. 4. 40. saith Master Lambert, neverthelesse the usage now is a [...]d long hath beene that A. may release the peace, but having perused the booke in 21. Ed. 4. fo. 40. I find the word precipue is not there, but it is toward A. & cunctum populum; So as that opinion may be Law, and yet not contrary to the common usage, for the word precipuè doth appropriate the recognisance to be chiefly for the safety of him that prayeth the peace.
11. But (in those former cases) although this surety of the peace be released, yet the recog. shall not be cancelled by the Iustice of peace, for peradventure the recog. was forfeited before such release was made, and therefore the Iustice of peace shall doe best to certifie such recog. with the release together to the next quarter Sessions.
12. The forme of the release of the Iustice of peace, and the forme of the release of the party you may see postea in the title of Warrants & Presidents.
13. Note that the party that first demanded the peace, may release the same, either before the same Iustice of peace that tooke the recog. or before any other Iustice of peace.
14. Note also that to release such surety of the peace by deed under his hand and seale is nothing worth, but it must be by acknowledgement before a Iustice of peace.
15. Note also that the King cannot release or pardon the surety of the peace nor such recog. taken in the behalfe of any of his subjects, untill it be forfeited, for the mischiefe that may come to the party thereby, but being forfeited, then the King and none other may release and pardon the forfeiture.
16. But the death or resignation of the King dischargeth this surety of the peace taken by his subject,1. H. 7. 1. Br peace 15. Br. Cor. 21. for the recog. is to keepe the peace of the King then being, and when he is dead, &c. it is not his Peace.
17. Also the death of the Recognisor (scil. the party principall that is bound) dischargeth this surety of the peace, and the recog. if it were not forfeited before his death.
18. Also the death of the party, at whose suit the peace was taken, dischargeth the recog. if it were to keep the peace against him alone, if it were not forfeited before his death.
19. But yet in these three former cases, such death should not discharge the recog. if it were forfeited before, and therefore it shall be best for the Iustice of peace to send to the next Sessions such recog. (notwithstanding such death) else the King may be defrauded of a forfeiture if any were before.
[Page 248]20. The death of the sureties shall not discharge the recog. neither shall the party principall be compelled to finde new sureties after their death,21. Ed. 4. 4 [...]. Br. peace 17. for if the peace be broken after their deaths, their executors shall be charged therewith, and so there is no mischiefe by their deaths, if they were sufficient, but if the sureties were insufficient then the principall shall be compelled to finde new sureties.
21. Ed. 4. 40. 10. H. 7. 11. Br. Recog. 21.21. If the King and the Recognisor be at issue upon the breach of the peace, and the King waives the issue, yet is not this recog. discharged but remaineth in force, and may be sued againe upon a new breach of the peace afterwards.
What Act shall be (or makes) a forfeiture of the Recognisance taken for the peace. CHAP. 60.
1. VVHatsoever Act is an expresse breach of the peace, the same is a forfeiture of this recognisance.
2. And first this breach of the peace may be committed by using any fearefull or threatning speeches to another,18. Ed. 4. 28: Br. peace 16. therefore all menacing or threatning to kill, or beat another, to his face, is a forfeiture of this recog. otherwise if the party so threatned be absent, and yet if the party so bound shall threaten to kill or beat A. who is absent, and after shall lye in wait for him to kill or beat him, this is a forfeiture of his recognisance.
3. So also to strike at, or offer to strike at a man, although he never hurt nor hit him,Dalton 160. is a forfeiture of his Recognisance.
Ibid.4. Much more all affrayes, or violent or malitious batteries, strikings, beatings, woundings, or other misintreating of the person of another are forfeitures of this Recognisance.
5. The difference of these three, viz. menacing, assaulting and beating,Ibid. are these, viz. menacing beginneth the breach of the peace, assaulting encreaseth it, and battery accomplisheth it.
6. If he that is bound doe but command or procure another to breake the peace, and that it be indeed done, this is a forfeiture of this Recog. Br. Peace 20.
7. All imprisonment or arresting of another without warrant, is a forfeiture of this Recognisance.
8. So to thrust another into the water, whereby hee is in danger of drowning.
9. So to ravish a woman against her will.
10. So to commit any Burglary, robbery, murder, or manslaughter, all which are to the person of another, or to procure the same, all, and every of these are forfeitures of this recog.
11. So to commit any Treason against the person of the King.
Marrow lect. 7. 2. H 7. 2. b.12. Note that the Act which must make a forfeiture of a recog. for the peace, must be done or intended to the person of another (by the [Page 249] opinion of Master Marrow.) And the booke 2. H. 7. importeth as much, saying, that this surety of the peace is not broken without an affray, fighting, beating, or the like.
13. Also to be riotously assembled,Marrow. is a breach of the peace and a forfeiture of this recog. nay if two Iustices of peace shall record a riot upon their view (against a man so bound to the peace) although it were no riot, &c. yet hee cannot plead not guilty in a scire facias upon his Recognisance.
14. Also to weare armour, or weapons not usually worne, or to goe with an unusuall number of attendants, seeme also to be a breach or meanes of a breach of the peace, and a forfeiture of this recog. for the peace, for these stricke a feare and terrour in the people, and be in effray del pais, See Br. Suretie 12.
15. He that is bound to the peace ought to carry himselfe well in his behaviour and company, yet the having of weapons or company unusuall are in some cases allowed, and lawfull, and are no breach of the peace, as in executing of any legall authority by magistrates or by any other of the Kings officers or ministers of Iustice.
16.Batterie Iustificable. Also though assaults and batteries be for the most part contrary to the peace of the Realme, and the Lawes of the same, yet some are allowed to have a naturall, and some a civill power (or authority, over others) so that they may (in reasonable and moderate manner onely) correct and chastice them for their offences without any imputation of breach of the peace, yea they may by the Law justifie the same.
17. And therefore the parent, with moderation may chastice the child within age.
18. So may the master his servant, or apprentice.
19. So may the schoolemaster his schollers.
20. So may the Gaoler, or his servant by his commandement, his unruly prisoners.
21. So may any man his kinseman that is madd, &c. and none of these shall be in perill therefore to forfeit any recog. of the peace.
22. And where the servant shall be negligent in his service or shall refuse to doe his worke, &c. there the master may chastice his servant for such negligence or refusall, so as he doth not it outragiously.
23. But if the servant shall depart out of his masters service,38. H. 6. 25. and the master happen after to lay his hands on him, yet the master in this case may not beate,5. El. 4. P. Labourers. or forceibly compell his said servant against his will to returne or tarry with him, or doe his service, but either he must complaine to the Iustices of peace, for his servants departure, or he may have an Action upon the statute of Labourers against his servant if being required to doe his service he shall refuse it, See anteà tit. Labourers.
24. And as the Master without the breach of the peace, cannot [Page 250] by beating or force compell his servant to serve against his will, no more can a Lord,21. Ed. 4. 6. li. Intr. b. 13. or guardian in Chivalry compell his Ward, by beating, or by force to come unto him or to tarry with him against his will.
25. Also the schoolemaster may chastice his scholler with a rod, which is carelesse and negligent of his learning,22. Ed. 4. 45. 22. Ass. p. 5. 6. or that shall abuse his schoolefellowes, or for other the like occasions.
26. Also it is lawfull for the parents, kinsemen, or other friends of a man that is madd or franticke (who being at liberty attempteth to burne a house, or to doe some other mischiefe, or to hurt himselfe or others) to take and put him into an house, to bind or chaine him, and to beate him with rods, and to doe any forceible Act to reclaime him or to keepe him so as he shall doe no hurt.
An officer. Li. intr 612. Stam. 13. 14. 21 H. 7. 39.27. Also if a Constable, Sergeant, Bailiffe, or other officer of Iustice, or any other being of their company, for the better executing of their office, shall be forced to strike any one that will not yeild to their arrest, or that shall resist, or flie from their arrest, they shall not be in danger to forfeit any recog. of the peace by any such assault, or striking, but may well justifie such Act.
Li. intr. 611. 16. Ed. 4. 11. 12. Ed. 4. 6.28. Also it is no breach of the peace, for any private man to beat, strike, or wound another, in defence or safeguard of his owne person from killing, wounding, or beating, but is a thing justifieable, and yet it seemeth if another shall assault me, if I may escape with my life, or without being wounded, maimed, or hurt, it is not lawfull for me to hurt or wound the other, who first made the assault, but I must first flie, or goe from him as farre as I can. 25. Ed. 3. 42. 2. H. 4. 8. 33. H. 6. 18. Br. trans. 28. 71. Cromp. 137.
29. If two or more doe agree together to play at Barriers, Backsword, Bucklers, Football, or the like, and one of them doth wound or hurt the other, the party hurt shall have no Action of Trespasse against the other, for that it was by consent, and to try their valour, and not to breake the peace, Fitz. Barr. 244.
30. Yet if such a man were before bound to the peace, such Act seemeth to be a forfeiture of his recog. See Br. Coron. 229. for although such sports be suffred, yet they are not lawfull.
In defence of others.31. Also it is no breach of the peace for a man to beat him that doth assault, and would beat, wound, or evill intreate his wife, father, mother, master, but is justifieable.
32. So if the wife shall beat him that assaulteth, and would beat or evill intreate her husband, this is justifieable.
33. So if the father, or mother, shall beat him that assaulteth, and would beat or evill intreat their childe being then within age and not able to defend it selfe.
34. But though the servant may lawfully beat him that doth assault, and would beat, or evill intreate his master or mistrisse, yet the servant cannot justifie the beating of another in defence of the father, [Page 251] mother, brother, sister, sonne, or daughter of his master or mistrisse, for he oweth no obedience to any of them.
35. By some opinions the master cannot justifie the beating of him that doth assault, and would beat his servant,Pr. 5. f. Iustifie 3. but the master with a sword, staffe, or other weapon may defend his servant assaulted from being beaten, in respect of the losse of his service, yet Master Lambert and Master Crompton are of opinion, that the master may beat another in defence of his servant,Cromp. 136. which seemeth to be the better opinion, by reason of the losse which the Master shall sustaine by the wounding of his servant.
36.Lamb. 131. But the farmour or tenant cannot justifie such an Act in defence of his landlord, nor a Citizen, &c. in defence of the Maior, (or Bailiffes) of the Citty, or Towne corporate where he dwelleth, unlesse it be in the legall execution of their offices.
37.9. Ed. 4. 28. 19. H. 6. 31. 63. Li. intr. 611. In defence of my goods. Also the Law doth tollerate a man to beate another for the preservation of his goods, and therefore he that shall attempt by force, and violence, to take away my goods wrongfully from me, whether they bee goods whereof I have a lawfull property, or such goods whereof I have only a possession by the bailement of another, I may justifie to defend the same by force, and if I shall beat or hurt such person, it is no breach of my recog. for the peace, but if I kill him, it is felony, and then a breach of the recog.
38. The same Law is in every case,10. Ed. 4. 6. 3. H. 4. 9. 11. H. 6. 33. where another shall attempt by force and violence to take away my land, freehold, copihold, or lease, or to stop and turne my lawfull high way, or my ancient river, or water course leading to my mill, in these and like cases, if I shall disturbe him therein, whereupon he doth assault and attempt to beat me, I may justifie to beat him againe aswell in defence of my person, as of my possessions, but not to kill him.
39. The same Law is also in every case, where any offendour is by order of Law punished by whipping, stocks, pillory, or otherwise for any offence by him committed contrary to the Lawes or statutes of this Realme, there is no peace broken nor any recog. of the peace forfeited, by him or them which shall lawfully execute any such punishments.
40. Note further that there are diverse offences for which an indictment contra pacem, will lye, and yet the committing of such offence shall be no forfeiture of the recog. for the peace, for that the Act that shall breed a forfeiture of such a recog. must be done or intended unto the person, as aforesaid, or in terrorem populi.
41. Therefore to enter into the lands,Dalton 163. & 164. where he ought to bring his Action or to disseise another of his lands, or to enter into lands or tenements with force being without offer of violence to any mans person and without publique terrour. Cromp. 136. or to doe a trespasse in another mans corne or grasse, or to take away another mans Ward, to take away another mans goods wrongfully, so it be not from his [Page 252] person, or to steale another mans horse, or other goods feloniously being not from his person, these will make no breach of this recog.
4 H. 7. 8.42. Note that if a man be bound in such a recog. for himselfe and his servants, if any one of them breake the peace, the whole recog. is forfeited, Et sic in similibus.
43. Note also that the sureties may plead, that the party principall hath not broken the peace, although upon issue the same shall be found against the said principall, for they are estrangers thereto, Fitz. averment 46.
Concerning the writ of supplicavit. CHAP. 61.
1. THe formes of this writ out of the Chancery are of diverse sorts, as you may see, Fitz. Na. Br. 80. d.
2. By which formes of the writ, it appeareth, that it may be directed to the Iustices of peace, or to one of them, or to the Sheriffe, or to every of them, to cause the party that is to be bound, to come before him, or them, to finde surety of the peace, and this writ may be that the principall shall be bound in such a summe, and the sureties in such a summe certaine, (and also it may be in what certaine summes the demandant will) or the summes may by the writ be referred to the Iustice of peace, &c. with this clause therein contained, pro qua respondere volueris, and the said writ is further, that if the party shall refuse, &c. that they shall commit him to the gaole, quousque, &c. and that when they have taken such surety, they doe certifie the recog. (which they have so taken) under their seales, and returne the writ into the Court whence the same was awarded, and that without delay.
3. And for that this writ is of diverse formes, the Iustice of peace must have a care that he doe execute the same in every behalfe as the same writ shall direct him.
4. When the writ doth referre the summe, wherein the principall and his sureties shall be bound, to the Iustice, &c. then it resteth in their discretion, but yet it is then safe for them to take good sureties, and to bind them in good summes, and the rather when that clause is in the writ, pro qua respondere volueris.
21. H. 7. 20. Br. peace 9.5. When this writ is directed to the Sheriffe, and to all the Iustices, and is delivered to any one of them, he onely to whom it is first delivered, ought to execute the same writ (in every behalfe) scil. he only shall make a warrant, &c. returneable before himselfe, and shall take sureties, and make returne thereof (only) without any other.
6. The forme of a warrant for the peace, upon a supplicavit you may see, postea tit. Warrants and Presidents.
7. Also the same Iustice of peace after such surety taken, may make the party a supersedeas to discharge him from any other arrest, [Page 253] or to deliver him being in prison, for the peace, (at any other mans suit as it seemeth) Cromp. 237. b.
8. The forme of the supersedeas you may see after tit. of Warrants and Presidents.
9. The party who is attached upon this writ of supplicavit, 21. H. 7. Br. peace 9. cannot goe to be bound before any other Iustice of peace but only before him, from whom the warrant proceedeth upon this writ, neither can another Iustice of peace by a supersedeas discharge such a warrant made by his fellow Iustice by force of this writ.
10. The Iustice, or Sheriffe, to whom this writ shall be delivered may make a Deputy therein,9. Ed. 4. 35. f. Fx. Imp. 4. scil. may make a warrant to the Constable, or other person indifferent, to apprehend the body or cause the party to come before him (the said Iustice or Sheriffe) to finde sureties, &c. and that if he shall refuse, that then the Constable, &c. shall carry him to prison, thereto remaine untill he shall finde sureties, and yet the writ of supplicavit is to commit the party to the gaole if he shall refuse before the Iustices (si coram vobis, vel te recusaverit) but the Iustice or Sheriffe cannot give their power to another to take this surety, for that is a judiciall power, which cannot be assigned over, neither can they make any Deputy therein, but they must take this surety themselves. Br. office 39.
11. If the party shall make resistance upon the execution of this writ, it seemeth the officer may take posse comitatus to aid him to arrest such party.
12.F.N.B. 80. d. He that is to be bound to the peace by force of this writ of supplicavit out of the Chancery, is to bee bound against him only, that sueth out the writ, as appeareth by the forme of the writ aforesaid.
13. But yet at this day it is used otherwise,Dalton p. 165. and Master Dalton saith that he once received out of the Chancery a speciall writ of supplicavit, directed custodibus pacis, ac vic. & eorum cuilibet, commanding them to take sureties of the peace to be bound, quod ipse damnum vel malum aliquod alicui de populo nostro & precipuè eidem Ioh. &c. (that sued out the writ) non fac. nec fieri procurabit, &c.
14. Also by this writ of supplicavit the party (against whom the writ is sued forth) shall be bound to the peace for ever (if he be taken) for the writ containeth or mentioneth not that he shall be bound to keepe the peace untill any certaine time but generally (ad sufficientem securitatem inveniend. sub poena, &c.) and therefore to prevent this the party (before he be attached) may come into the Chancery, and there finde sureties, and be bound untill a certaine day that he shall doe no hurt unto the party that sued forth the supplicavit, and thereupon he shall have a supersedeas out of the Chancery directed to the Iustices of peace and to the Sheriffe, commanding them to surcease to arrest the said party, or to compell him to finde any sureties, &c. and that if they have arrested him for this cause, and none other, that then they deliver him, &c. Fitz. 81. a.
[Page 254] F.N.B. 81. 2. Cromp. 144.15. And if the party against whom this writ is sued forth cannot travell (or else will not travell) to bind himselfe in the Chancery, then he may cause some of his friends to be bound for him, or to finde sureties in the Chancery for him according to the supplicavit, and thereupon they may purchase for him a supersedeas directed to the Iustices of peace, and to the Sheriffe, and by this supersedeas the Iustice and Sheriffe shall be commanded to take also surety of the party himselfe in the County (according to the writ of supplicavit) that he shall keepe the peace, &c.
16. Also if the party happen to be arrested and imprisoned upon this writ, yet if he can procure a supersedeas out of the Chancery it seemeth (by the words in the end of the supersedeas) that this will discharge him of the arrest, or imprisonment.
17. Note after the party is arrested and imprisoned, (upon this writ) the meanes for him to procure a supersedeas out of the Chancery, must be.
18. Either to get some of his friends to be bound in the Chancery for him and they to get a supersedeas, ut supra.
19. Or else to get a certificate to the Lord Chancellor, from 3. or 4. Iustices of peace in his behalfe.
20. This writ of supplicavit is granted, or to be granted in the Chancery or Kings Bench,F.N.B. 79. h. upon great cause shewed and proved there, and is (or ought) to be granted upon oath, that the party is in feare, &c. of some bodily hurt, &c.
Co. 8. 37.21. And it is to be wished, that in the granting thereof, great care be taken, for oftentimes this writ of supplicavit is procured and gotten out rather of malice and for vexation, then upon any needfull and just cause, and Sir Edward Coke speaking of such as malitiously shall purchase out any such speciall supplicavit or latitat of the peace, (and that by fraud and malice to inforce the other party ad redemendam vexationem, to give them money or to yeild the other composition) brandeth them as Barreters, and notable oppressors of their neighbours, oppressing the poore and innocent, by colour and countenance of Law, which was ordeined to protect the innocent from all oppression and wrong, neither is this a wrong only to the party thus malitiously vexed, but also to all the Iustices of peace resident in that County, taxing them (tacite) as though the demandant could not have Iustice at their hands in such a case, whereas perhaps the demandant never demanded the same at any of their hands, and besides the Iustices of peace having, in all likelihood, knowledge of each party and of their behaviours, or any one of them, might and would no doubt, yea and ought to have yeelded the demandant upon request and just cause shewed to them, as sufficient and good surety in the Countrey every way,See more before in this title. (as I conceive it) for his safety, as namely, as many and able sureties, and better knowne, and to have beene bound in as great summes, and for as long time, if the case should require, so [Page 255] as what should move them to seeke (with more trouble, charge, and delay to themselves) that security above, which they may have (more speedily, and with lesse charge and trouble) at home, I see not but onely, or chiefely the vexing and oppressing of their neighbours aforesaid, and for that this manner of oppressing beginneth to grow over common; therefore I thought it not amisse here to observe what remedy the Iustices of peace in the Countrey by some opinions, may by their discretion yeild to their innocent neighbours, against whom for vexation onely, such a writ shall be malitiously procured, scilicet.
22. Where one hath procured a supplicavit out of the Chancery or Kings Bench against another, if he hath not before demanded this surety of the peace at the hands of some Iustice of peace in the Countrey, or that the party against whom he hath procured the supplicavit, be one of such condition and sort as that in likelihood the Iustices of peace in the Countrey, will not deny to grant such surety against him, then if three or foure of the next Iustices of peace in the Countrry, shall certifie to the Lord Chancellor (if the supplicavit proceeded out of the Chancery) that the party plainetiffe never demanded the peace in the Countrey, and further that the plainetiffe is a contentious man, and the other party of good fame, upon such certificate (as is said) they will discharge the party or grant a supersedeas.
23. Note to conclude this businesse, if the surety of the peace be taken by vertue of a supplicavit, then must the Iustice of peace make returne of the writ, and certificate of his doings under his seale into the Court from whence the supplicavit did proceed, which may be done in this manner.
24. First let him write upon the backe of the supplicavit thus.
25. Executio istius brevis, The returne of the supp. patet in quadam scedula huic brevi annexat.
26. Then may the certificateThe certificate. or scedule be thus, and be filed to the backe of the writ.
27. Ego I. S. Miles unus custodum pacis domini Regis in comitatu Dublin certifico in Cancellarium dicti domini regis me virtute istius brevis (mihi per A. B. in eodem brevi nominatum, primo deliberat) personaliter coram me (tali die & loco) venire fecisse. F. R. in dicto brevi nominatum, ac eundem F. adsufficientem securitatem, & manucaptores pacis inveniendum secundum formam dicti brevis, viz, &c. (as the writ shall appoint) compulisse, In cujus rei testimonium huic praesenti certificationi meae sigillum meum apposui, datum apud D. praedictum, in comitatu praedicto 16. die Ianuarij anno Regni domini nostri Caroli dei gratia regis, &c.
28.The returne of the Certiorari. The Iustice of peace may also therewith send the recog. if he will, or may keepe and stay the recog. untill a Certiorari come to him for it.
29.And of the Recognisance. And if a Certiorari be directed out of the Chancery to the Iustice of peace for removing of this recog. because it was not sent up [Page 256] together with the certificate (as there was no necessity that it should) then that writ may be also answered in this manner, videlicet.
30. Write upon the backe of the Certiorari thus, Virtute istius brevis ego I. S. Miles unus custodum pacis domini regis in Comit. Dublin tenorem securitatis pa [...]is, Lib. intr. 453 [...] unde infra fit mentio dicto domino Regi in Cancellar. suam sub Sigillo meo distincte & aperte mitto, prout patet in scedula huic brevi consuta.
31. And then write the recog. verbatim, in this manner hereunder following,The s [...]hedule or certificate. and thereto set your seale.
32. Memorandum quod 16. die Ianuarij, &c. (reciting the whole recog. to the end) In cujus rei testimonium ego praedictus I. S. sigillum meum apposui datum, &c.
33. And file this scedule, or note of the recog. to the backe of the Certiorari.
34. The forme of the Certiorari you may see, Fitz. Na. Br. 81. c. vide postea tit. Warrants and Presidents.
F.N.B. 81. c.35. Also the like forme of the certificate may serve where a Certiorari is brought to a Iustice of peace to remove a recog. of the peace taken by him ex officio, without any writ of supplicavit.
36. And if the Iustice of peace shall not returne the supplicavit, nor certificate of his doings therein,F.N.B. 81. b. untill a Certiorari come to him for it, it is no danger to him.
37. Also if the supplicavit be against diverse, and the demandant will release his prayer of the peace against one of them, then that release ought to be certified for him, and the writ must be served and executed for the rest, or else non est inventus, may be certified for him, and the writ executed for the rest.
Br. peace 11.38. By the booke in 30. Assisarum placito 14. It appeareth that a man may be compelled to finde sureties both for the good behaviour,2. H. 7. 2. b. and for the peace, and yet it seemeth that the good behaviour includeth the peace and that he that is bound to the good behaviour, is therein also bound to the peace, see the usuall formes of both recog.
Suretie for the good behaviour. CHAP. 62.
1. THis surety for the good behaviour, or good abearing is granted by the Iustice of peace aswell by authority of the Commission of the peace,P. Iustice 18. that is to say, by the first Assign. as also by force of the statute of 34. Ed. 3. ca. 1.
2. And this surety for the good behaviour is of great affinity with that of the peace, and is provided and ordeined chiefely for the preservation of the peace (as that other is) as you may observe out of the usuall formes of the recog. yea by some opinions it differeth in litle or nothing from that of the peace, but that there is more difficulty in the performance thereof, and the party so bound, may sooner [Page 257] fall into the danger of it then of his recog. for the peace,P.R. 18. 2. H. 7. 2. for say they the recognisance for the peace is not broken without an affray committed, battery, assaulting, imprisoning or extremity of menacing, whereas the good abearing may be broken, and the parties recog. forfeited, without any of these, as namely.
3. By the extraordinary number of the people attending upon the party bound.
4. Or by his wearing of harnesse, or other weapons, more then usually he hath done, or more then be meet for his degree.
5.P.R. 22. Or by using words or threatnings tending or inciting to the breach of the peace.
6. Or by doing any other thing which shall tend to the breach of the peace, or to put the people in dread or feare, although there be no actuall breach of the peace.
7. Yet note these foure last matters, as they are breaches of the good abearing, so are they causes also to bind a man to the peace, and a forfeiture of the recog. for the peace.
8. The booke 2. H. 7. fo. 2. concludeth, that the Iust. were not all certainely advised how those words, de se bene gerendo, should be taken, M. Bro. abridging thereof tit. Suretie 12. saith, that it was holden that he who is bound to the peace ought to demeane himselfe well in his part (sc. behaviour) and company, and not doing any thing that may be the cause of the breach of the peace, or to put the people in feare or trouble, yet the booke seemeth to meane this of the good behaviour.
9. But though this extraordinary number of attendants, and wearing of harnesse, &c. are breaches aswell of the peace as of the good behaviour, yet it may seeme that this for the good behaviour, doth include the peace, and besides importeth some greater or other matters of misbehaviour, and for which the surety of the peace is not to be granted (although they also are against the peace, and quiet and good governement of the land) and you shall finde that this surety of the good behaviour is grantable in other diverse cases, in which the surety of the peace is not grantable.
10. This surety of the good behaviour is to be granted at the suit of diverse, and those being men of credit, and to provide for the safety of many, whereas the surety of the peace is usually granted at the request of one, and for the preservation of the peace chiefely towards one.
11. Also this surety of good abearing, is most commonly granted, either in open Sessions of the peace, or out of the Sessions, by two or three Iustices of peace, whereas that of the peace is usually granted by one Iustice of peace, and out of Sessions.
12. And yet by the words of the Commission,14. H. 7. 8. [...]. as also by the opinion of the learned, any one Iustice of peace alone, and out of the Sessions, may grant this surety of the good abearing, and that either [Page 258] by his owne discretion, or upon the complaint of others, as they may that of the peace.
13. But this is not usuall, unlesse it be to prevent some great and sudden danger, especially against a man that is of any good estate, carriage or report.
14. Also this surety may be granted at the suit of one person.
15. But the more difficult and dangerous this surety is to the party bound, the more regard there ought to be taken in the granting of it, and therefore it shall be good discretion in the Iustices of peace, that they doe not command or grant it, but either upon sufficient cause seene to themselves, or upon the suit and complaint of diverse others, as aforesaid, and the same very honest and credible persons.
16. Also this surety of good abearing, is often taken by the Iustice of peace by vertue of a speciall writ in nature of a supplicavit, Supplicavit. directed out of the Chancery or Kings Bench, and then the Iustice of peace upon such a writ, is to proceed as a minister, as in case for the P. mutatis mutandis, vide ante tit. Suretie for the peace and supplicavit.
17. Master Dalton affirmeth that he once received out of the Chancery,Dalton p. 170. such a writ directed custodibus pacis in comit. Cantabrigiae, ac vicecomiti ejusdem comit. & eorum cuilibet (and grounded upon the statute of 34. Ed. 3.) commanding them and every of them to take foure sureties (besides the party) whereof every one of them should have lands of such a yearely value, or goods of such a value, and to bind the sureties every of them in such a summe, quod ipse boni gestus de cetero erit, erga nos & cunctum populum nostrum, & quod nihil in contrarium statuti pradicti attemptabit, &c. and therein he proceeded as a minister onely.
18. The party against whom such a supplicavit for the good behaviour shall be granted out, before he be attached thereupon, may goe, or send up, and give sureties in the Chancery as here before is said for the peace, and thereupon he shall have a supersedeas out of that Court directed to the Iustices of peace, and Sheriffe, and to every of them, commanding every of them to surcease to arrest the said party, or to doe any other execution of the said writ of supplicavit and that if (before the comming of the said supersedeas) they have taken any such security, for the good behaviour of the party, that then they presently release the party of such surety found by him, the former writ of supplicavit notwithstanding.
For what cause this suretie of the good behaviour shall be granted. CHAP. 63.
1. IT is chiefely to be granted (by the Iustices of peace out of their Sessions) in these cases following, viz. against common Barretors, common Quarrellers, and common breakers or perturbers of the peace.
[Page 259]2. Also it is grantable against Rioters, see hereof before tit. Riots.
3. Also against such as shall lye in wait to rob, or shall be suspected to lye in wait to rob, or shall assault,P. Iustice 18. or attempt to rob another, or shall put passengers by the way in feare or perill.
4. Also against such, as be generally feared, or suspected to be Robbers by the high way.
5. Also against such as are like to commit murder, homicide,Cromp. 135. b. or other grievances to any of the Kings subjects in their bodies.
6. Also against such as shall practise to poyson another.
7. One had bought Ratsbane, and mingled the same with corne, and then wilfully did cast the same amongst his neighbours poultry,Dalton p. 171. whereby most of them dyed, and this was holden to be a good cause to bind the offendor to the good behaviour.
8.P. Iustice 18. 34. Ed. 3. ca. 1. It is also grantable against such as be of evill name and fame generally, but more especially against all such as are defamed and detected in any of these partitulars following.
9.13. H. 7. 10. First against all those that are greatly defamed for resorting to houses suspected to maintaine adultery, or incontinence.
10. Also against the maintainers of houses commonly suspected to be houses of common Bawdrie.
11.Cromp. 140. One that had such lewd women found in his house was bound to his good behaviour, by Wray, Anderson, and Manwood. 28. El.
12. Also against common whoremongers, and common whores,1. H. 7. 7. 27. H. 8. 14. for by good opinion Avowtry, or Bawdry, is an offence temporall aswell as spirituall, and is against the peace of the land.
13. Upon information given to a Constable,13. H. 10 Br. Traverse 432. that a man and a woman be in adulterie, or fornication together (or that a man and a woman of an evill report, are gone to a suspected house together in the night) the officer may take company with him, and if he find them so, he may carry them to prison, or he may carry them before a Iustice of peace to find sureties for the good behaviour.
14. Also against night-walkers, that be suspected to be pilferers, or otherwise like to disturbe the peace, or that be persons of evill behaviour, or of evill fame or report generally, or that shall keep company with any such, or with any other suspitious persons in the night. 13. H. 7. 10.
15. Against such as be Evesdroppers, that is to say, that in the night shal harken neare the wals of mens houses to heare what is spoken within, and to make use thereof to breed discord or dissention amongst neighbours.
16. Against Night-walkers that shall cast mens gates or Carts into ponds, &c. or shall commit other misdemeanors or outrages in the night time.
17. Against suspected persons who live idly, and yet fare well, or are well apparelled, having nothing whereon to live, (except upon examination, they shall give accompt of such their living.)
[Page 260]18. Against common Haunters of Alehouses or Tavernes, but more specially if they have not whereon to live, and also against common Drunkards and Prophaners of the Sabbath, and against common Gamesters and Keepers of common gaming houses whereby mens servants and children are drawne to Unthriftinesse, and also against Alehouse-keepers and Inne-keepers that maintaine misorder in their houses, and especially on the Sabboth day.
19. Against such as shall use to goe in the message of Theeves, See stat. 18. Ed. 2. P. Leete 1.
20. All these former offendors, and the like, are evill members in the common wealth, and such their demeanor and living is greatly to be suspected (and besides doe seeme to be more properly said against the peace of the land, then Avowtrey, in the case before. 1. H. 7. 7.) and therefore it seemeth reasonable, just, and expedient that the Iustices of peace upon their discretion should convent such persons before them and their courses of life, and if they cannot yeild a good reason and accompt of such their courses, then to bind them to their good behaviour.
21. Also the good behaviour seemeth grantable against such as shall make false outcries, or shall raise Huy and Cryes without cause, for these are disturbances of the peace. Cromp. 179.
22. If two men doe levie Huy and Cry one upon another without cause, both of them may be attached and bound over, as disturbers of the peace. P. R. 156.
23. Also Cheators and Cozoners may be bound to the good behaviour.
See Co. 5. 125. P. R. 12.24. Libellers, it seemeth, may also be bound to their good behaviour as disturbers of the peace, whether they be the contrivers, the procurers or the publishers of the libell, for such libelling and defamation tendeth to the raising of quarrels, and effusion of blood, and are specially occasions and meanes tending and inciting greatly to the breach of the peace.
25. Also it seemeth grantable against unlawfull hunters in parks, after their examination taken, vide antea tit. Hunting.
26. Also it shall be granted against him that shall abuse a Iustice of peace (Constable or other officer of the peace) in executing of their office.
9. El. 43.27. A Iustice of peace seeth a man breake the peace (sc. to make an assault, or affray upon A.) and he chargeth him to keepe the peace, and the other answereth that he will not, the Iustice of peace may bind him to the good behaviour.
See Exod. 22.2828. For (if as one saith) contempt, or contumelie, used to the person of a mans better, neither policie for example nor religion for peace may tolerate, much lesse to use contempt towards, or to abuse such as are in authority, especially when they are in executing their office.
[Page 261]29. Nay it seemeth that he which shall use words of contempt, or contra bonos mores, against a Iustice of peace, though it be not at such time as he is executing his office, yet hee shall be bound to his good behaviour.
30. If a Citizen or free man of a Citty,Co. 11. 98. or Towne corporate shall use words of contempt, or contra bonos mores, against the chiefe officer of the City, or Towne, or his brethren, they are good causes to commit him to prison untill he shall finde sureties for his good behaviour, for obedience and reverence ought to be yeelded to the magistrate, for that they derive their authority from the King.
31. Also he that shall abuse a Iustice of peace his warrant may be bound to his good behaviour.
32. A man complaineth of a Riot or a forceible Entry, so that the Iustices of peace are assembled to enquire therof, and then the party that complained will not prosecute the matter, it seemeth the said Iustices of peace may bind him to his good behaviour, for his deluding them.
33. And so of such as shall charge another with felonie, before a Iust. of Peace, and yet will not give Evidence, &c.
34. A. is bound to keepe the peace against B. only,Cromp. 134. and getteth a supersedeas, and after B. releaseth him, after A. is arrested for suretie for the peace at another mans suit, and sheweth this first supersedeas, it seemeth he shall be bound to his good behaviour for this deceit.
35. He that hath a pardon for any felony,10. Ed 3. P. pardon 5. shall finde surety for his good behaviour, but he shall bee bound before the Sheriffe and Coroners, who shall returne the same into the Chancerie.
36. Also he that is acquitted of felonie, if he be of evill fame, or of evill behaviour, it seemeth the Iustices of peace upon their discretion may bind him to his good behaviour.
37. The forme of a warrant for the good behaviour, vide postea tit. Warrants.
38. The forme of the Recog. for the good behaviour, vide postea tit. Recognisance.
39. Whether the suretie of the good behaviour (taken upon complaint) may be released by any speciall person, some do doubt it,Release. Lamb. 126. because it seemeth more popular, then the suretie of the peace, yet others doe hold that it may be released either by the Iustice of peace himselfe that tooke it in discretion,P.R. 2 [...]. or by the party upon whose complaint it was granted, even as that for the peace may.
40. It seemeth also a Supersedeas Supersedeas. of the good behaviour may bee granted by the Iustices of peace (as well as for the peace mutatis mutandis) upon good sureties taken by the said Iustices of the party to be of the good behaviour.Cromp. 237.
41.Cromp. 146. If a man be bound to the good behaviour (before Iustices of peace) and to appeare at the next Assises or Sessions, yet the party bound may by a Certiorari Certiorari. remove the Recognisance (into the Chancerie, [Page 262] or Kings Bench) before the day, and then he shall not need to appeare at the Assises, or Sessions, for they have no record; whereupon he may be called there.
Swearing and Cursing. CHAP. 64.
1. FOrasmuch as all prophane swearing and cursing is forbidden by the Word of God,10. Caroli ca. 1. in Ireland. it is enacted by Parliament in anno 10. Caroli ca. 1. that no person or persons shall prophanely sweare or curse, and that every person or persons that shall at any time or times offend herein either in the hearing of a Iustice of peace, bailiffe, or any other head officer of any Citty or Towne corporate, where such offence is or shall be committed, or shall be thereof convicted by the oathes of two witnesses, or by confession of the party, before any Iustice of Peace of the County, or head officer or Iustice of Peace in the Citty or towne corporate, where such offence is or shall be committed, to which end every Iustice of peace, and every such head officer, have power by that Act to minister the same oath, that then every such offendour shall, for every time so offending, forfeit and pay to the use of the poore of that parish, where the same offence is or shall bee committed, the summe of Twelve pence, and it shall also be lawfull for the Constables and Church-wardens, or any one of them, by warrant from such Iustice of peace or head officer, to levie the same summe or summes of money, by distresse and sale of the offendours goods, rendring to the party the overplus, and in defect of such distresse, the offendor, if he or she be above the age of Twelve yeeres, shall, by warrant from such Iustice of Peace, or head officer, be set in the stocks for three whole houres, but if the offendor be under the age of Twelve yeares, and shal not forthwith pay the said summe of 12. d. then he or she by the warrant of such Iustice of P. or head officer, shall be whipped by the Constable, or parents or master in his presence. And be it further enacted that if any such offendor shall commence any suite in Law against any officer or other, for such distraining sale of goods, whipping or setting in the stocks, the defendant or defendants may pleade the generall issue, and give the speciall matter in evidence to the Iury at the triall, and if it be found against the plaintiffe, or that the plaintiffe be non-suite, the defendant or defendants shall be allowed good costs, to be taxed by the Court, provided neverthelesse, that every offence against this law, shall be complained of, and proved as abovesaid, within twenty dayes after the offence committed.
And it is also enacted that the said Act shall be read in every parish Church, by the minister thereof vpon Sunday after the Evening Prayer twice in the yeare.
Treason. CHAP. 65.
BEfore the making of the statute of 25. Ed. 3. ca. 2. de prodicionibus, there was great ambiguity and diuersity of opinions what offence should be adjudged Treason, for clearing whereof the said statute was made, whereby it is declared that these offences following should be adjudged Treason, viz.
1. To compasse or Imagine the death or destruction of the King, the Queene or the Prince.
2. To deflowre the Queene or the eldest daughter of the King not marryed, or the wife of the eldest sonne and heire of the King.
3. To levie warre against the King in his Realme or to be adherent to the Kings enemies in his Realme giving them ayd or comfort in his Realme or elsewhere.
4. To counterfeite the Kings great seale or privy seale, or his money.
5. To bring false money into this kingdome like to the Kings money (knowing the same to be false) to merchandise or make payment in deceit of the King and his people.
6. To kill the Cancellor, Treasurer or Iustices of the King of the one Bench or the other, Iustices in Eire and of the Assises, and all other Iustices of Oyer and Terminer being in their places doing their offices.
2. All these offences are by the said statute declared to be Treasons which extend to the King and his Royall Majestie, for which the King shall have the Escheate aswell of the lands holden of others as of himselfe.
3. Also there be other offences by the said statute declared to be petty Treasons which doe not extend to the Kings Majestie, as where the wife doth murder her husband, the servant his master, or the Clerke his Ordinary, in which cases the chiefe Lords had the Escheates, but now by a statute made in this kingdome of Ireland, in 10. H. 7. ca. 21. aswell these offences of pettie Treason as also those which at the common Law were murder of malice prepensed are made high Treason, both in the Actors and procurers, and by a statute made in 28. H. 8. ca. 7. in Ireland, all escheats for any manner of Treason are given to the King.
4. By another statute made in 3. H. 5. ca. 6. It is declared that washing, fyling or clipping of money shall be high Treason.
5. By another statute made in 4. H. 7. ca. 16. the coyning of forraigne coyne which is permitted to passe in this Realme is Treason.
6. By another statute made in Ireland in anno 13. H. 8. ca. 1. willfull burning of houses or Rickes of Corne in the field or in the Townes is made Treason.
7. By another statute made in Ireland in 11. Eliz. ca. 1. for the attainder [Page 264] of Shane ô Neale the assuming of the name or dignity of O Neale, or taking any thing by colour of that name, is made Treason.
8. By a statute enacted in anno 10. H. 6. ca. 3. in Ireland, for Cessing of horsemen or footmen upon the Kings subjects, without their good wils, the offendor shall be adjudged as a traitour.
9. By another statute made in Ireland in anno 18. H. 6. ca. 2. It is enacted that putting into Comricke, and the granting of such Comricke or safeguard shall be Treason aswell in the giver as in the taker.
10. By another statute made in Ireland in anno 10. H. 7. ca. 13. It is enacted that to cause assembly or insurrection, conspiracies, or in any wise to procure or stirre Irishry or Englishry to make warre against the Kings authority, that is to say, his Lievetenant or Deputy, or Iustices, or else in any manner to procure or stirre the Irishry to make warre upon the Englishry shall be high Treason.
11. By another statute in Ireland made in 28. H. 8. ca. 7. It was enacted amongst other things that if any person shal malitiously wish, will or desire by words or writing, or by craft imagine, invēt, practise or attempt any bodily harme to be done to the King, the Queene or their heires apparant, or to deprive them or any of them of the dignity, title, or name of their Royall estates, or publish or pronounce by expresse writing or words that the Kings Majestie is an Hereticke, Schismaticke, Tyrant, Infidell, or Usurper of the Crowne, or shall rebelliously detaine or withhould from the King, his heires or successors any of his or their ships, ordinances, artillery, and other munition of warre, and shall not deliver up the same within six dayes after they shall be required by Proclamation under the great seale, the offendors, Ayders, Counsellers, Consenters, and Abettors, shall be adjudged Traitours of high Treason.
12. Having now briefely declared the statutes which are of force in this kingdome of Ireland concerning Treasons, I will returne backe to the exposition of the said statute of 25. Ed. 3. de prodicionibus.
13. That statute of 25. Ed. 3. doth not make any offence to be Treason which was not Treason by the common Law before, neither doth it alter any offence of Treason at the common Law into a lesser offence, but onely declareth the common Law in some particular cases, and therefore it will be necessary to set forth what offences have beene adjudged to be Treason at the common Law, both before and sithence the making of that statute.
14. Treasons at the common Law I finde thus defined by Glanvill li. 14. ca. 1. cum quis ita (que) de morte Regis vel seditione Regni vel exercitus infamatur, &c. And afterward in the same chapter are these words, viz. ipsum accusatum machinatum fuisse, vel aliquid fecisse, in mortem Regis vel seditionem Regni vel exercitus, vel consensisse, vel consilium dedisse, vel authoritatem prestitisse, &c.
15. Also I finde in Bracton li. 2. Titulo de crimine lesae majestatis, Treason to be thus defined, videlicet: Si quis ausu temerario machinatus [Page 265] sit, in mortem Regis aut aliquid egerit vel agi procuraverit ad seditionem Dom. Regis vel exercitus sui, vel procurantibus auxilium; & consilium, prestiterit, aut consensum, licet id quod in voluntate habuit non produxerit ad effectum. Tenetur tamen crimine laesae majestatis.
16. Also Britton fo. 16. saith that it is high Treason to compasse the death of the King or to disinherit him of his Realme or to falsifie his seale or to counterfeite or clip his money. And in this Bracton in the said title de crimine laesae majestatis agreeth with Britton, and these writers were all before the statute de 25. Ed. 3. de prodicionibus.
17. If this compassing of the death of the King, &c. may appeare either by words, writing or by any other meanes, it sufficeth to make it Treason as appeares by the booke in 29. H. 6. fo. 47. & Stamford fo. 2.
18. The words of the statute of 25. Ed. 3. de prodicionibus, maketh not any mention of the consenters and ayders to the counterfeiting of the great seale or privy seale or of the Kings money, yet this is high Treason by Stamford fo. 3. & 19. H. 6. fo. 47. and the booke in 3. H. 7. fo. 9. is not to the contrary if it be well observed, for there the Indictment wanteth the word proditoriè, and this is by the rule of the common Law.
19. Also the taking of waxe imprinted with the great seale and fixing of that to a counterfeite or forged writing made in the name of the King is high Treason, and yet it is not within the words of the statute de prodicionibus, and so it is adjudged in 2. H. 4. fo. 32. & Stamford fo. 3. saith it hath beene so adjudged in his time and with him agreeth Britton fo. 10. so as this appeareth to be Treason at the common Law.
20. Likewise if a man counterfeite the Kings money, although he doe not utter it, yet that is high treason by Stamford fo. 3. 6. H. 7. fo. 13. & 1. R. 3. fo. 1. but if false money be made within this kingdome and another knowing it to be false utter it in payment, this is not Treason by Stamford fo 3. but it is misprision.
21. If many conspire to commit Treason as in levying of warre and any one of them doth it, this is treason in all by the common law. Dyer fo. 98. pl. 56.
22. If the servant kill the master by the procurement of the wife, this before the statute of 10. H. 7. whereby all killing of malice prepensed is made high treason was pettit Treason in both, but now in Ireland by the said statute it is high treason in both, and so it is if the husband had beene killed by a stranger by the procurement of the wife. 16. El. Dyer fo. 332. pl. 25.
23. To conspire with the Prince or governor of another Realme to invade any of the Kings dominions is treason, although there be no such Invasion offered or openly attempted. 13. El. Dyer fo. 298. pl. 29.
24. To compasse or imagine the death of the King, although he were an usurper is Treason. 9. Ed. 4. fo. 12.
[Page 266]25. One outlawed for felony was in prison where traitours were, he broke the prison, whereby the traitours escaped, this was adjudged Treason. 1. H. 6. fo. 6.
26. These words to compasse or Imagine the death or destruction of the King are words of large extent, for he that by words or otherwise deviseth or adviseth any meanes how the King may come to his death, that is Treason, although it take no effect, also to intend to deprive the King, by that intention the death of the King is intended, & so the same is Treason by the declaration of the said statute, and also the detaining of a Castle or Fortresse or such like is levying of warre against the King, Br. Treason 24.
27. To runne into Rebellion and stand upon their keeping and to rob and spoile the Kings subjects hath alwayes beene adjudged to be high Treason in Ireland, and to be a levying of warre against the King.
28. Also to kill the Kings messenger or any that is comming to ayd the King against his enemies is Treason.
29. To set at large unlawfully any that is committed for Treason is Treason by the common Law, Dalton fo. 225.
30. It is to be observed that in high Treason, there be no accessaries as in felony, but aswell all procurers or abettors before the Treason committed as releivers of the traitours after the Treason committed, knowing the same, are principall traitours and not accessaries.
Trespasse. CHAP. 66.
10. Caroli c. 23. in hibernia.1. BY a statute made in Ireland in 10. Caroli ca. 23. all and every lewd person which shall unlawfully cut, or take away any corne growing, or rob any Orchards or Gardens, or breake or cut any hedge, pale, rayle, or fence, or digge, pull up, or take away any fruit trees, in any Orchard or garden or elsewhere to the intent to take or carry the same away, or shall barke any trees that are growing or shall cut or spoile any woods or underwoods, pailes or trees standing not being felony, and their procurers or receivers knowing the same being thereof convict, by confession of the party, or by the testimony of one sufficient witnesse upon oath before any one Iustice of peace (where the offence shall be committed, or the offendor apprehended) shall for the first fault give the party wronged such recompence, and within such time as by any one Iustice of peace (of the County where such offence was done) shall be appointed, and if such offendor shall be thought (in the discretion of the said Iustice) not able or doe not make satisfaction accordingly, then the said Iustice shall commit the said offendor to some Constable or other inferiour officer where the offence shall be committed, or the offendour apprehended to be whipped.
[Page 267]2. Also for the second fault, and every other offence whereof such offendour shall be after convicted in forme aforesaid, such offendour shall be whipped as aforesaid, ibid.
3. If any Constable or inferior officer doe refuse, or doe not at the commandement of a Iustice of peace, by himselfe or by some one by him to be appointed, execute upon the offendor the punishment aforesaid, the said Iustice of peace may commit the said Constable, &c. to the common gaole, there to remaine without baile, untill the said offendor be, by the said Constable or by some other, by his procurement, whipped as aforesaid.
4. But no Iustice of peace shall execute this statute for any of the offences aforesaid done unto himselfe, unlesse he be assotiated or assisted with one or moe other Iustices of peace whom the offence doth not concerne.
Tyles. CHAP. 67.
1. BY a statute made in anno 17. Ed. 4. it is enacted that all and every person or persons that shall use the occupation of making of any Roofe tyle, Crest tyle, common tyle or gutter tyle shall make it good, seasonable, sufficient and throughly whited and anealed, and that the ground whereof any such tyle shall be made shall be digged and cast up before the first day of November next before that they shall be made, and that the same earth be stirred and turned before the first day of February then next following, and not wrought before the first of March then next following, and that the same ground before it be put to making of tyle, be truely wrought and tryed of stones, and also that the vaines called malyne or marle and chalke, lying commonly in the ground neere to the earth convenient to make tyle, after the digging of the said ground whereof any such tyle shall be made, shall be well and truely severed and cast from the earth whereof any such tyle shall be made, and that every such plaine tyle so to be made, shall containe in length ten Inches and a halfe,Plaine Tyle. Length. Bredth. and in breadth six Inches and a quarter, and in thicknesse halfe an Inch and halfe a quarter at the least, and that every such Rooofe tyle,Roofe Tyle. or Crest tyle, so to be made, shall containe in length thirteene Inches, and the thicknesse of halfe an Inch and halfe a quarter at the least, with convenient deepenesse accordingly, and that every gutter tyle and corner tyle to be made, shall containe in length ten Inches and a halfe with convenient thicknesse, breadth and deepenesse accordingly, and if any person or persons set to sale to any person or persons any such tyle above specified, made or to be made against the said ordinance, then the seller thereof shall forfeite to the buyer of the same the double value of the same tyle,Forf. double value, fyne. and besides that shall make fyne and ransome to the King, at his will, and that every person that feeleth himselfe [Page 268] grieved, and will sue in this behalfe shall have an action of debt against the offendors, wherein shall be made and had like processe, recovery and execution, as is or may be in any other action of debt pursued at the common Law, and that the plaintiffe in every such action (if it be found with him) shall recover against the defendant in the same action his reasonable costsCosts. and expences of his suit, and that the defendant in any such action shall not be admitted to wage his law, or to have any essoyne or protection allowed, nor no advantage by forcing,Any Iustice of Peace. by Essoyne or distresse; And also that the Iustices for the time being within any County of this Realme, and every of them shall have full power to enquire, heare and determineEnquire, heare and determine. by their discretions, aswell by examination or otherwise the defaults, offences and trespasses which shall happen to bee done against this ordinance, aswell at the Kings suit, as at the parties that shall feele themselves grieved in that behalfe, and if it be found, or may appeare to the Iustices of peace, or any of them by examination or otherwise by their discretion, that any person or persons have offended contrary to this ordinance, that then the same Iustices before whom it shall bee found or appeare, shall assesse upon the offendor in this behalfe no lesse fineFine. then for every thousand of plain Tyle set to sale contrary to this ordinance five shillings, and for every hundred of Roofe Tyle six shillings eight pence, and for every hundred of Corner Tyle or gutter Tyle two shillings sold contrary to this ordinance, and if lesse be put to sale, that lesse fine be made after the rate of the same by the discretion of the said Iustices of peace, or any of them, and that the same Iustices shall have full power to call before them or any of them, at any time and place requisite, such and so many persons as by their discretion have or shall have best experience and knowledge in the occupation of making of Tyle, to search and examineExamine. the digging, casting, turning, parting, making, whiting and anealing aforesaid, and that the same person or persons which so shall be assigned searchers, shall have full power to make such search,Search. and that no person put no such Tyle to sale, before that it be searched by the said Searchers, upon paine of forfeitureForfeiture. of the said Tyle, and if the same Searchers or any of them doe finde that any person or persons exercising the making of Tyles doe offend contrary to this ordinance, that then the same Searchers shall present such defaults before the Iustices of peace at their next Sessions.In. of peace Sessions. And that every such presentment be as strong and effectuall in Law as the presentment of twelve men, and that such Searchers so to be ordained, assigned, and deputed shall have of every such Tylemaker, for his labour of the said search, for every thousand plaine Tyle 2.d. for every thousand Roofe Tyle ob. and every hundred Corner Tyle and gutter Tyle a farthing: And that the same Searchers shall doe and execute their effectuall devoir and diligence in this behalfe, according to this ordinance, upon paine of forfeiture [Page 269] to our Soveraigne Lord the King for every default in this behalfe Ten shillings,Forf. Iu. of peace and that the Iustices of peace shall have power to examine, enquire and determine the default of such Searchers in the premisses in like forme as above is ordained, for the default of Tile-makers. Anno 17. Ed. 4. cap. 4.
Tythes. CHAP. 68.
1. IF sentence definitive be given for Tithes by any Ecclesiasticall Iudge,33. H. 8. ca. 12. and the party against whom such sentence is given shall refuse to performe the same, then upon Certificate thereof made by the same Iudge that gave the sentence, two Iustices of the peace, whereof one to be of the Quorum may cause him to bee attached and committed to Ward, there to remaine without baile or mainprise untill he finde sufficient sureties before the said Iustices by Recognisance or otherwise to the King, to performe the said definitive sentence and Iudgement as appeareth by a statute made in Ireland, in Anno 33. H. 8. ca. 12.
Watch. CHAP. 69.
1. EVery Iustice of peace may cause night watch to be duely kept for the arresting of persons suspected, and night-walkers bee they strangers or others that be of evill fame or behaviour, and this they may doe by force of the first Assignavimus of the Commission, and of the statute of Winchester, and by the said statute this Watch is to be kept yearely from the Feast of the Ascention untill Michaelmas in every Towne, and shall continue all the night (scil.) from the Sun-setting to the Sun-rising, and by another statute made in anno 5. E. 4. ca. 5. in Ireland, the Watch is to bee kept in every Towne from Michaelmas untill Easter: so as by both these statutes watch is to be kept all the yeare saving onely betweene Easter and Ascention day.
2. All such strangers or persons suspected as shall in the night time passe by the watchmen (appointed thereto by the towne Constable or other officer) may bee examined by the said watchmen whence they come, and what they be, and of their businesse,Winch. 13. Ed. 1. ca. 4. 5. Ed. 3. ca. 14. &c. and if they finde cause of suspition, they shall stay them, and if such persons will not obey the arrest of the watchmen, the said watchmen shall levie Huy and Cry, that the offendors may bee taken, or else they may justifie to beat them, for that they resist the peace, and Iustice of the realme, and may also set them in the stockes for the same untill the morning, and then if no suspition be found the said persons shall be let goe and quit, but if they finde cause of suspition, [Page 270] they shall forthwith deliver the said persons to the Sheriffe, who shall keepe them in prison, untill they be duely delivered, or else the watchmen may deliver such persons to the Constable, and so to convey them to the Iustice of peace by him to be examined, and to be bound over or committed untill the offendours be acquitted in due manner.
Waxe. CHAP. 70.
11. H. 6. ca. 12.1. EVery Iustice of peace may examine and search (by his discretion) such as doe sell or set forth to bee sold any Candles or other workes of Waxe at higher price then after the rate of iiij.d. the pound over the common price of plaine waxe, betweene Merchant and Merchant, and may punish them by forfeiture of the worke or value thereof, and by fine to the King.
Weights and Measures. CHAP. 71.
1. BY a statute made in England in anno 9. H. 5. ca. 8. the Iustices of peace have power to take and imprison all falsifiers and Counterfeiters of false weights, and to hold them in prison without mainprise untill they be acquitted or attainted, and if they be attainted their bodies shall abide in prison untill they have made fynes and Ransomes at the discretion of the said Iustices.
2. By another statute made in England in anno 34. E. 3. ca. 6. Iustices of peace have power to enquire of weights and measures, and to punish the offendors, and therefore it is necessary for them to know what weights and measures by the lawes and statutes of force in this Kingdome, ought to be observed.
9. H. 3. 26. Weig [...].3. By the statute of Magna charta, capitulo 26. there shall be but one weight, one measure, and one yard throughout the whole realme, scil. according to the Kings Standard in the Exchequer, and this statute of Magna charta hath since herein been confirmed by many severall Parliaments, viz. by the statutes of 14. Ed. 3. ca. 12. 27. Ed. 3. 10. 13. R. 2. 9. 8. H. 6. 5. and 7. H. 7. ca. 3. as thereby appeareth.
4. And yet notwithstanding all these statutes, there alwayes hath been two kinds of Weights used in England and both warrantable, the one by law and the other by Custome (as it seemeth) but they are for severall sorts of wares or commodities, for there is Troy weights and Averdepois.
Dalton fo. 123.5. Troy weight is by Law, and thereby are weighed gold, silver, pearle, pretious stones, electuaries, bread, wheat, and all manner of graine or Corne is measured by Troy weight, and this hath to the pound 12. ounces or twenty shillings old ster. weight, which is three pound of the money now currant.
[Page 271]6. Averdepois weight is by Custome, yet confirmed also by statute, and thereby are weighed all grossery wares, phisicall drugges,27. Ed. 3. ca. 10. Butter, Cheese, flesh, waxe, pitch, Tallow, Woolls, Hempe, Flaxe, Iron, Steele, Lead, and all other commodities not before named, but especially every thing that beareth the name of Garbell, and whereof issueth a refuse or waste.
7. And this hath to the pound sixteene Ounces or 25. s. old sterling weight. Also in this Averdepois weight unto every hundred is allowed twelve pounds weight.
27. Ed. 3. 10.8. Also all manner of Averdepois shall bee weighed by lawfull weights sealed according to the Standerd of the Eschequer.
Averdepois.
- Averdepois weight.
- 14. ounces and an halfe, and 2. pence weight Troy doe make 16. ounces of Averdepois.
- 7. Averdepois make the Gallon of Wheate, &c.
- 14. Averdepois make the Pecke of Wheate, &c.
- 56. Averdepois make the Bushell of Wheate, &c.
| Pints or pounds. | 5120 | 512 | 256 | 64 | 16 | 8 | 4 | Troy weight. |
| Quarts. | 2560 | 256 | 128 | 32 | 8 | 4 | 2 | |
| Pottles. | 1280 | 128 | 64 | 16 | 4 | 2 | 1 | |
| Gallons. | 640 | 64 | 32 | 8 | 2 | 1 | | Measures of Corne according to Troy weight. |
| Pecks. | 320 | 32 | 16 | 4 | 1 | | |
| Bushels. | 80 | 8 | 4 | 1 | | | |
| Coombes. | 20 | 2 | 1 | | | | | |
| Quarters. | 10 | 1 | Ten Quarters of corne is a Last. | |
| | Beere measures. | Ale measures. | |
| Pints | 288 | 144 | 72 | 8 | 4 | 2 | 256 | 128 | 64 | 8 | Measures of Beere & Ale. |
| Quarts | 144 | 72 | 36 | 4 | 2 | 1 | 128 | 64 | 32 | 4 |
| Pottles | 72 | 36 | 18 | 2 | 1 | | 64 | 32 | 16 | 2 | |
| Gallons | 36 | 18 | 9 | 1 | | | 32 | 16 | 8 | 1 | |
| Firkins | 4 | 2 | 1 | | | | 4 | 2 | 1 | | |
| Kilderkins | 2 | 1 | | | | | 2 | 1 | | | |
| Barrels | 1 | | | | | | 1 | | | | |
See for Corne, Beere, and Ale, more fully in that which followeth.
Troy Weight, 15. H. 3.
- 32. Wheat Cornes taken in the midst of the Eare, weigheth 1.d. sterling.
- Twenty pence old sterling make the ounce Troy.
- 12. Ounces make in
- weight j. li. Troy.
- measure j. pint.
- Two pints or pounds make the quart.
- Two quarts make the Pottle.
- 8. pints make the Gallon.
- 4. quarts make the Gallon.
- 2. Pottles make the Gallon.
- Eight quarts make the Pecke.
- 64. pints
- 32. quarts
- 8. gallons
- 4. peckes
- Sixteene gallons
- Two Firkins
- make the
- Kilderkin.
- halfe Barrell.
- Rondlet.
- 256. pints
- 128. quarts
- 32. gallons
- 4. firkins
- 2. kilderkins
- 4. bushels
- 512. pints
- 256. quarts
- 64. gallons
- 8. firkins
- 4. kilderkins
- 2. barrels
- 8. bushels
So the
- Pint and pound
- Firkin and bushell
- Barrell and coombe
- Hogshead & quarter
are of like content.
Measures of Corne.
Bushell.1. ALl kind of Corne and graine is measured by Troy weight.
2. By statute the bushell must containe eight gallons or sixty foure pounds or pints of wheate. 31. Ed. 1.
3. And yet by the booke of the Assise imprinted Anno Domini 1597. the bushell is to containe 56. pounds or pints of Averdopois weight (which is three pounds or three pints, and eight ounces Troy more then the statute or Troy weight) for 56. pounds or pints Averdepois weight, and 67. pounds 8. ounces Troy weight doe justly agree.
Also every measure of Corne shall be stricken without heape and all purveyance shall be by such measure. 25. Ed. 3. ca. 10. 15 R. 2. ca. [...]. 43. E. 3. ca. 6.
4. Water measure (sould within Shipboard) shall containe five pecks stricken to the bushell.
5. No person shall buy or sell with a Bushell except it be sealed and marked by the officer, and according to the Kings Standerd.
6. All sorts of bread ought to be weighed by Troy weight.
7. Post septem dies panis non ponderetur.
8. The Baker shall not sell to any victualler, &c. to be retayled but onely thirteene peny worth for twelve pence, aswell mans bread as horsebread.
9. The punishment of the Bakers for their unlawfull breads is that that the Iustices of peace or sworne officers in Leets may take away their unlawfull bread, and give it amongst the poore, as officers in corporate Towes are enabled to doe, as it seemeth in the end of the booke of Assise imprinted anno 1597. and all Iustices of peace are there willed and required to be ayding and assisting to the said officers therein, but by the statute 51. H. 3. 51. H. 3. Bakers and Brewers being convict for not observing the Assise the first, second, and third time, they shall be amerced according to the offence (if it be not over grievous) but if the offence be grievous, or often, then shall they suffer punishment of the body without redemption, sc. a Baker to the pillorie, and the Brewer to the Tumbrell (now called the Cockingstoole) (as it seemeth by Master Lambard 62.) or to some other correction.
Measures of Wine, Beere and Ale, &c.
Wine, Oyle and Honey: their measure is all one, sc. the
- Rondlet, 16. & di.
- Barrell, 31.
18. H. 6. ca. 17.
& di. - Hogshed, 63.
- Pipe, 126.
- Tunne, 252.
gallons.
1. Cheese: A weigh of Cheese must containe 32. cloves,9. H. 6. ca. [...]. and every clove seven pounds of Averdepois weight.
2. Beefe, and other flesh are 16. ounces Averdepois to the pound,Dalton fo. 133. and eight of those pounds to make the stone, except where the usage of the Countrey requireth more pounds to the stone.
3. Also sixscore herrings shall goe to the hundred, ten hundred to the thousand, and ten thousand to the last. 31. Ed. 3. ca. 2.
4. Wooll 14. pounds weight goeth to the stone of wooll, and 26.Dalton fo. 133. 13. R. 2. ca. [...]. stone goeth to the sacke, whosoever buyeth wools at greater weight shall pay double the value to the party grieved & a fyne to the King.
5. Of Sugar, Spices, and waxe 8. pounds maketh the stone and 13. stone and a halfe or a hundred and eight pound maketh the hundred, see the statute, de composit. ponder. Rast. weights 8.
6. Of hops fivescore and 12. pounds maketh the hundred.
[Page 274]7. Of lead, the formell containeth six stone wanting two pounds, and 30.Rastall weights [...]. formels make a load of lead, and 12. pounds make a stone.
8. The content of the Dicker of hyds is 10. skins, & 20. dickers make a last.
9. For the contents of Iron, glasse, linnen cloath and diverse other things, see the statute, de composit. ponder. Rast. 8.
10. All other commodities of tale or number, are sould by the hundred whereof Cattell and fish are sould sixscore to the hundred, and yet the hundred of hard fish must containe eightscore. Rast. 8. all headed things, as nayles, pins, &c. are sould sixscore to the hundred, and all other things have but fivescore to the hundred.
11. Timber well hewen and squared perfectly fifty foot thereof maketh the load.
12. Lath shall containe in length five foot, in bredth two Inches, and in thicknesse halfe an Inch.
13. Of Tyle the Assise thereof in the length, breadth, and thicknesse appeareth before in the title of Tyle.
14. A Bale of paper is ten Reame, a Reame 20. quires of paper, a quire is 25. sheetes.
15. A Rowle of parchment is 5. dozen, or 60. skins.
Measures of length.1. Three Barly Cornes measured from end to end make one Inch.
2. Fower InchesInches. make the handfull.Handfull.
3. Twelve Inches make the foot.Foot.
4. Three foot make the yard.Yard.
5. Three foot and 9. Inches make the Ell.Ell.
6. Seven foot make the fadome.Fadome.
7. Five yards and a halfe (which is sixteene foot and a halfe) make the pole,Pole. Rood or peach, ibid.
8. And yet by the usage of many Countreyes the pole doth vary, for in some places it is eighteene foot, and in some places 20. foot and most places in Ireland 21.Co 6. 67. 17. E. 3. fo. 18. foot goeth to the pole, and there if a man should sell a certaine number of Acres of wood, &c. it shall be measured according to the usage of the Countrey there, and not according to this statute for Consuetudo loci est observanda.
9. Forty pole in length make a furlong.Furlong.
10. Eight furlongs (or 320. pole) make an English mile.Mile.
11. Forty pole in length, and foure in breadth, doe make an Acre.Acre. Stat. Composit [...]ulnarum. & Stat. 34. P. weights 4. Ed 1.
Plowland.12. And (by Master Cambden fol. 339. and Hollingshed pag. 13. impress. 1586. Co. li 9. 10. 184.) one hundred acres is an hide of land, but yet it seemeth that an hide of land (or plowland or carue of land which are all one) are not of any certaine content but according to the usage of the Countrey where the land lyeth.
Weight. Meas [...].13. In anno 8. H. 6. ca. 5. It is enacted as followeth, videlicet. whereas by the great Charter of the liberties of the Realme of England and by a statute made the xxvij. yeare of King Edward the third it was [Page 275] ordeined and by a statute made the xiij. yeare of King Richard the second confirmed, that one weight and one measure should be through all the Realme of England aswell out of the staple as within; And in the same statute of the said noble King Edward, it is ordained that the weight called auncell for the great damage & subtill deceits done by the same measure to the common people,Auncell weight. shall be utterly left and set apart, and the wools and all other manner of marchandise, and all other things lying in weight, bought or fold shall bee weighed by the balance, so that the tongue of the balance doe not incline more to the one party than to the other, with weights sealed and according to the standard of the Exchequer. And he that doth contrary to the damage of the Seller shall forfeit to the King the valour of the goods so weighed or measured, and that the party complaynant have the quatreble damages. And by the said statute of the said noble King Richard, it was added, that the offendor shall be imprisoned by two yeares, and make fyne and ransome at the Kings will. And that the Iustices of peace should have power to enquire of the said defaults, aswell at the Kings suit as the parties. Our soveraigne Lord the King by authority of this Parliament, hath ordeined and stablished, that the statutes and ordinances aforesaid, shall be firmely kept and holden, and straitly executed. And moreover for to eschew diverse great mischieves, which have happened within the Realme of England by the said auncell, and specially for to destroy the falsity of the regratours of yarne, called yarne Choppers, it is ordeined by our said soveraigne Lord the King, by authority aforesaid, that in every City, Borough, and Towne, of the Realme of England, common balance shall be, with common weights sealed, and according to the Standerd of the Exchequer, upon the common Costs of the said City, Burgh, or Towne, in the keeping of the Maior, or Constable of the same, to which balance and common weight all the Inhabitants of the same City, Burgh, or Towne, that have not such weights, and other that have, if they will may freely weigh without any thing paying, taking neverthelesse of forreyns for every draught within the weight of xl. li. a farthing, and for every draught betwixt xl. li. and an hundred an halfpeny, and for every draught betwixt a hundred pound and a thousand pound a penny at the most, whereof the weights shall be maintained, and the officers lawfully weighing rewarded by the discretion of the chiefe of the City, Burgh, or Towne, according to his attendance to the said occupation be it more or lesse. And that no man buy yarne of wooll called wollen yarne, unlesse he will make cloth thereof, nor use weight nor measure, nor other thing in the place of weight or measure, that is not sealed according to the said Standerd, nor set any thing to the same by the way of taking or hiding, or in any other manner that may encrease the measure or weight, or let the balance to have his naturall course upon the forfeiture and paine aforesaid, and that the Iustices of peace, Maiors, [Page 276] Bailiffes, and Stewards of Franchises have power by authority aforesaid to examine the Trespassours in this case, and for to enquire in especiall of offendors against this ordinance, and to doe execution against them that be found defective by enquests or by examination, to be made by the said Iudges or officers in this case in the manner as afore is said. And that this ordinance be holden and observed from the Feast of Easter next ensuing for ever. And that every City upon paine of x.li. every Burghe upon paine of C.s. and every Towne where a Constable is upon paine of xl.s. have a common balance with weights according to the said Standerd, within two moneths after Proclamation made of this ordinance, which paine shall be levyed to the use of our soveraigne Lord the King, as often as they shall be defective after the said Proclamation.
14. There is another statute made in Ireland in anno 12. El. ca. 3. concerning measures of Corne, whereby it was enacted that two measures of brasse should be made at the Queenes cost, one for wheat, Rye, Maslen, Beanes, and Peese, and another for Malt, Oates, and Barley, which shall bee the Standerds for the Shires of the City of Dublin, the county of Dublin, Kildare, Catherlagh, Wexford, Meath, the Towne of Drogheda, Westmeath, Louth, Kings County, and Queenes County, within this Realme, and that the same being marked with the Crowne and letters of her majesties name, should remaine and be as her highnesse Standerds for the Shires aforesaid, in her Majesties Exchequer of this Realme, in the custody of the Lord Treasurer of this Realme, or of the under Treasurer for the time being, and that unto the Knights, Citizens and Burgesses of every the Shires, Cities, and Townes, before named, assembled in the same Parliament, and to certaine Burgesses of the Borough Townes in the same Shires should be delivered one measure of every such measures which her Majestie should cause to be made according to the tenor of the said Act for the common wealth of her highnesse subjects within this Realme of Ireland, according to her Majesties Standerd of her Exchequer in this Realme, by Indenture thereof to be made betweene the Lord Treasurer of this Realme, or the under Treasurer for the time being, at the cost and charges of the said Shire, City, Towne, or Borough, and that the said Knights, Citizens, and Burgesses, to whom the said measure shall be delivered, as is aforesaid, shall surely and safely convey, or cause the same to be conveyed by the said Citizens to their Cities, and by the said Knights or Burgesses unto such Borough, or Towne corporate, or market Towne within the Shire, for which they have beene elected as hereafter shall be appointed in this Act, for the good custody of the same measures withall convenient speed and expedition, there to remaine for ever in the keeping of the Maior, Bailiffe, Soveraigne, Portriffe, or other head officer for the time being of the same City, Borough, or Towne, as her Majesties Standerds of measure, and that the Inhabitants of all [Page 277] Cities, Boroughes, or market Townes within every of the said Shires should with all convenient speed after the same Standerds so delivered as is before prescribed, make or cause to be made common measures, according to the measures aforesaid to remaine in the said Cities, Boroughes, and market Townes, and every of them, and the measures to be viewed, examined, printed, signed, and marked, by the Mayor, Bailiffe, Soveraigne, Portriffe, or other head officer, in whose possession the said Standerd shall remaine or by his officer appointed in that behalfe, and that every of the aforesaid Maiors, Bailiffes, Soveraignes, Portriffes, or head officers having the said measures printed, and signed under the signe and print for the same, with the letters of her Majesties name Crowned, should have authority and power to make, signe and print like measures unto every of her Majesties subjects duely requiring the same, taking for marking of every bushell two pence, lawfull money of Ireland, and that no Merchant nor other person or persons within any City, or market Towne in any the Shires before specified, shall buy, sell, or receive any graine, or corne, with any measure, except it be marked, signed, and printed in manner and forme aforesaid, nor any other person or persons in any Shires before specified out of the said Cities, Boroughes, and market Townes, except it be like and equall with the Standerd, ordained and made for the said Shire, precinct or place, where any such person shall so sell, buy, or receive any such graine, or corne, and that every person aswell without Cities, Boroughes, and market Townes, as within in every of the Shires above specified shall buy, sell, and receive, and deliver with a bushell sealed, signed, and marked, after the forme aforesaid, and no otherwise, upon forfeiture of the graine, and corne so sold, bought, received and delivered, halfe to the Queenes Majestie, her heires and successors, and the other halfe to the party grieved and that will sue for the same by Action of debt after the course of the common lawes of this realme, wherein no essoyne protection nor wage of Law to be admitted or allowed, and that all the Maiors, Bailiffes, Soveraignes, Portriffes, and other head officers, of every City, Borough, or market Towne, within every the Shires above said, shall cause twice in the yeare or oftner, as they shall thinke necessary all measures within the said Cities, Boroughes, or market Townes to be brought afore them, and to be duely viewed and examined, and such as they shall upon examination finde defective immediately to be broken and burnt, and the party or parties which in that behalfe hath offended, and be found defective shall forfeite six shillings eight pence, the forfeiture thereof to be unto the said Maior, Bailiffe, Soveraigne, Portriffe, or other having Iurisdiction or correction in that behalfe, and at the second time the said offendors to forfeite thirteene shillings foure pence, and at the third time likewise to forfeite twenty shillings the same forfeitures to be to the head officers, as afore is said, and for [Page 278] further punishment to be set upon the pillory to the example of others, and that the Iustices of peace in every Shire of this Realme of Ireland, have full power and authority to enquire, heare and determine the said defaults, and that the said Iustices of peace above said have authority to make like processe against all persons found as is above said defective, and for such fynes and amerciaments as upon them shall be assessed, as if they were endicted afore them, for breaking of the Queenes peace, provided alwayes that the examination of the defaults abovesaid, and punishments of the offendours of every offence committed hereafter within any City, or Towne corporate of this Realme, that have by grant or Charter the office of Clerke of the Market, or of Iustices of peace and their authorities, or that have by grant or Charter fines, amerciaments, or forfeitures growing within their City or towne shall be had, done and ministred by the head officers, Clerke of the market or Iustices of peace within the same Cities, or Townes incorporate for the time being, and by none other, the premisses notwithstanding, and the same Maiors, Bailiffes, Soveraignes, Portriffes, or other head officers and their successors, shall take, perceive, and retaine, all and singular the fynes, amerciaments, forfeitures, and penalties, to grow by any offence to bee committed against any branch or article of this Act within their severall Iurisdictions and authorities in like manner as they should, mought or ought to have any forfeitures, fynes, amerciaments, and penalties within the severall Iurisdictions and authorities, by reason of any grant or Charter made to them, before the making of this Act any thing therein contained, or any Law, prescription, custome, or usage, to the contrary hereof in any wise notwithstanding. And forasmuch as great inconveniences and intollerable damage have and doth ensue by the occasion of diversity of measures within the Shires above mentioned, & thereby amongst other hatefull evils men are moved to buy in one market, and sell the same graine in another to the great subvertion of good orders in markets, it was enacted and established that the several Standerds to be made by her Majestie for the severall Shires, Cities, and Townes, before named shall keepe and hold the quantities hereafter following, that is to say, the bushell for the Wheat, Rye, Maslen, Beanes, and Peese, shall containe 16. Ale gallons, and the bushell for the Mault, Oates, and Barley, shall containe 20. Ale gallons, and that the same Standerds and measures shall be kept and remaine in the Townes and places hereafter appointed in this Act as her Majesties Standerds for ever, and that every bushell of Wheat Corne, shall be received, stricked, without heape, and the bushell of Mault, Corne, shall be layed and pressed downe just with the brim of the bushell after the accustomed manner of measuring Mault, and not in other manner upon forfeiture of the Corne received contrary to the tenor hereof or of the just value and price thereof.
The Names of the Townes limitted for the Custodie of Measures according to the Queenes Standard appointed by the said Act for the Shires in the same Act mentioned.| 1. County of the Citty of Dublin, and the County of Dublin. | 1. | The Citty of Dublin. |
| 2. The County of the Towne of Drogheda. | 2. | The Towne of Drogheda. |
| 3. The County of Catherlagh. | 3. | The Towne of Catherlagh. |
| 4. The County of Lowth. | 4. | The Towne of Dundalke. |
| 5. The Kings County. | 5. | The Towne of Phillipstowne. |
| 6. The County of Meath. | 6. | The Towne of Tryme. |
| 7. The County of Kildare. | 7. | The Towne of Kildare. |
| 8. The County of Wexford. | 8. | The Towne of Wexford. |
| 9. The County of Westmeath. | 9. | The Towne of Molingare. |
| 10. The Queenes County. | 10. | The Towne of Maryborough. |
These two last statutes I have rehearsed at large because upon them two, the authority of the Iustice of peace out of the Sessions chiefely dependeth.
Warrants and Presidents. CHAP. 72.
1. VVArrants and presidents which concerne the exercise of the office of a Iustice of peace out of the generall Sessions, are of severall sorts, viz. they concerne either Treasons, Felonies, Misprisions, Praemunires, forcible Entries, forceible detainers, Riots, Routs, and unlawfull assemblies, security of the peace, and good behaviour, or other misdemeanors or offences of severall sorts.
2. As concerning Treasons, and felonies, upon information made of any Treason or felon commited, any one Iustice of peace may direct his warrant to the Sheriffe or to the high Constables or petty Constables, or to all or any of them to make search for the traitours or felons, and also for the stolne goods.
A warrant to apprehend a Traitour may be thus.
2.Comitat. Dublin. A.B. Esquire one of his Majesties Iustices of peace within the County of D. To the high Sheriffe of the said County & to all high Constables, petty Constables, and other his Majesties officers greeting, &c. Whereas E. F. and G. H. are vehemently suspected to have committed Treason whereof I have received Information. These are therefore in his Majesties name streightly to charge and command [Page 280] you and every of you upon sight hereof without any delay within your severall Bailiwickes, Hundreds, Baronies, and Constablewicks, to make diligent search for the bodies of the said E. F. and G.H. and them or either of them so found, to attach and arrest, and immediately upon such arrest to bring before me at my house at Dale in the said County, whereof you may not saile at your perill, sealed with my seale and dated the first day of Ianuary in the xiij. yeare of the Raigne of our soveraigne Lord King Charles of England, Scotland, France, and Ireland, defendor of the faith, &c.
3. The like warrant may be made for the apprehension of felons, mutatis mutandis.
A warrant to search for stolne goods may be thus.
Comitat. Dublin.4. A.B. Esquire one of his Majesties Iustices of peace within the County of Dublin. To the Sheriffe of the said County and to all high Constables, petty Constables, and all other his Majesties officers greeting, &c. whereas E. F. hath informed me that diverse goods and cattel, viz. xx. l. in money, &c. (and so name all the goods) have beene lately stolne from him, these are therefore in his Majesties name, straightly to charge and command you, and every of you, upon sight hereof presently without delay in all suspected houses and places within your severall Bailiwickes, Hundreds, Baronies, and Constablewicks, to make diligent search for the said goods, and where you shall finde the same or any part thereof, to arrest the parties in whose houses, or possessions the said goods or any part thereof shall be so found, and so them arrested to bring before me to my house at Dale with all convenient speed, whereof you may not faile at your perill sealed with my seale and dated the [...] day of [...] &c.
5. When any of the said felons, or traitours shall be so arrested and brought before the Iustice of peace, the Iustice must take the examination of the traitours or felons, in writing but not upon oath, and must examine them upon all circumstances, whereof he shall receive information from the accusers, and upon such other circumstances as he in his owne discretion shall thinke fit, for the discovery of the Treason or felony.
The forme of the Examinations may be thus.
6. The Examination of A.B. &c. taken before me R.B. one of his Majesties Iustices of peace in the County of M. the first day of February in the xiij. yeare of the Raigne of our soveraigne Lord Charles by the grace of God King of England, Scotland, France, and Ireland defendor of the faith, &c.
The said examinat. being duely examined saith, &c. and so set [Page 281] downe every particular answer that the prisoner shall make, to the questions that shall be demanded of him.
7. This being done, the Iustice of peace must take the examinations of the accusers, and such other as can give any evidence materiall against the prisoner, and their examinations must be taken in writing severally and that upon oath.
The forme whereof may be thus.
8. The examination of A.B. &c. taken before me C.B. Esquire one of his Majesties Iustices of peace, in the County of Dublin the first day of March in the xiij. yeare of the Raigne of our soveraigne Lord Charles by the grace of God King of England, Scotland, France, and Ireland defendor of the faith, &c.
This examinat. being duely sworne upon the holy Evangelist and examined upon his oath, saith, &c. and so set downe at large all the materiall circumstances that he shall declare to prove the treason or felony.
9. This being done the Iustice of peace must make a Mittimus to convay the prisoner to the County Gaole.
The Mittimus may be in this forme.
10.Comitat. Cavan. A.B. Esquire one of the Iustices of peace in the County of C. to the keeper of his Majesties Gaole in the said County greeting: I send you therewithall the body of E.F. late of G. labourer brought before me this present day and charged with the felonious stealing of one blacke horse of the goods of I.H. and therefore these are in his Majesties name to command you that immediately upon sight hereof you receive the said E.F. into your custody, and him safely keepe in his Majesties Gaole of the said County, untill he shall be thence delivered by due order of his Majesties Lawes, whereof you may not faile, as you will answere for your contempt at your perill, dated at Dale the first day of Ianuary, &c.
11. I doe not like of the Mittimus commonly used in Ireland that is to send the prisoner from Constable to Constable, for I finde by experience that thereby many notable offendors doe escape, and then many times goe into Rebellion to the great prejudice of the common wealth, but I like better that he should be convayed to the Gaole by the Constable of that Constablewicke where he was apprehended, and that by a sufficient guard at the charge of the Constablewicke, for which the Iustices of peace shall doe well to conceive a generall order at their generall Sessions of the peace.
12. This being done the Iustice of peace must take a severall Recognisance of every one of the accusers, and of every one that can give evidence against the prisoner, the forme of which Recognisance may be thus.
[Page 282] Com. Dublin.13. Memorandum quod tertio die Aprilis anno Regni Domini nostri Caroli Dei gratia Angliae, Scotiae, Franciae, & Hiberniae, regis fidei defensoris. A.B. de C. in comitatu praedicto Yeoman personaliter coram me I. H. uno Iusticiariorum dicti Domini Regis in & per totum comitatum praedictum ad pacem dicti Domini Regis conservandum, &c. assignat. apud Dale in Com. praedict. recognovit se debere dicto Domino Regi decem libras bonae & legalis monetae de bonis, & Catallis, terris & tenementis suis fieri & levari ad opus dicti Domini regis, heredum, & successorum suorum, si defecerit in conditione subsequenti.
The condition of the above Recognisance is such that whereas one A.B. late of C. labourer was this present day brought before me, and was charged with the felonious stealing of one blacke horse of the goods of the above named B.E. and thereupon was sent by me the above named Iustice of peace, to the Kings Majesties gaole of the said County of Dublin: If therefore he the said B. E. shall and will at the next generall gaole delivery to be holden in the said County, preferre or cause to be framed and preferred a bill of indictment of the said felony against the said A.B. and shall and will then also give evidence there concerning the same aswell to the Iurors that shall then make enquiry of the said felony as also to them that shall passe upon the tryall of the said A. B. That then the said Recognisance shall be voyd, or else, &c.
14. The like Recognisance must be taken severally of all such as can give any materiall evidence against the prisoner with the like condition.
15. And in cases of Treason the like Recognisance must be taken as in felony mutatis mutandis.
16. Also the Iustice of peace ought to returne the said examinations and Recognisances at the next gaole delivery or else he is to be fyned.
17. Now concerning Misprisions and Praemunires, the Iust. of peace may make out a warrant to apprehend offendours in this forme following, viz.
A.B. Esquire one of his Majesties Iustices of peace within the County of Lowth,Lowth. To the Sheriffe of the said County, and to all and singular the high Constables, petty Constables, and all other his Majesties officers in the said County greeting.
These are in his Majesties name streightly to charge and command you, and every of you, within your severall Bailiwickes, Hundreds, Baronies, and Constablewickes, to make diligent search for the body of O.D. late of E. in the County aforesaid labourer, and him so found to attach and arrest and presently without delay to bring him before me at my house in Dale in the said County to answere to such matters as on his Majesties behalfe shall be objected against him, hereof you may not faile at your perill. Sealed with my seale and dated, &c.
18. And in all cases where the prisoner is baileable which you [Page 283] may finde in the Chapter of Baile and Mainprise the prisoner may be bailed by two Iustices of peace whereof one to be of the Quorum, the forme of which baile may be as followeth, viz.
Memorand. quod vicessimo die mensis Iulij Anno Regni Domini nostri Caroli Dei gratia, Angliae, Scotiae, Franciae, Lovid. & Hiberniae regis fidei defensoris, &c. coram nobis A. B. & C. D. duobus Iusticiariorum dicti Domini Regis ad pacem ejusdem Domini Regis in & per totum Comitat. Lovidiae predict. conservand. apud Dale in Comitatu praedict. venerunt E.F. & G.H. de I. in comitatu predicto Yeomen & ceperunt in ball. us (que) ad proximam gaolae deliberationem in dicto comitatu tenend. quendam L. M. de N. Labourer, captum & detentum in prisona pro suspitione cujusdam feloniae, &c. & assumpserunt super se scil. quilibet predictorum E. F. & G. H. sub poena vigint. librarum, bonae & legalis monetae de bonis & Catallis, terris & Tenementis, eorum quorumlibet, & cujuslibet eorum, ad opus dicti Domini Regis heredum & successorum suorum levandurum si prefatus L.M. ad eandem proximam gaolae deliberationem, personaliter non comparebit coram Iusticiarijs dicti Domini Regii ad dictam gaola deliberationem assignat ad standam rect. de felonia predicta, & ad respondendum dicto Domino Regi, iunc & ibidem de & super omnibus quae illi objicientur. Datum sub sigillis nostris die et anno supradict.
Or thus if the prisoner be indicted.
Memorand. quod secundo die mensis Septembris anno Regni Domini nostri Caroli dei gratia, Angliae, Scotiae, Franciae, & Hiberniae,Lovid. Regis fidei defensor, coram nobis A.B. & C.D. armigeris duobus Iusticiariorum dicti Domini Regis ad pacem in Comitat. predict. conservand. apud E. in Com. predict. venerunt F.G. de H. & I.R. de L in com. predict. & manuceperunt pro R. B. de L. in Com. predict. gener. viz. quilibet eorum corpus pro corpore, quod idem R. B. personaliter comperebit coram Iusticiarijs dicti Domini Regis ad gaolam deliberand. assignatis, ad proximam gaolae deliberationem in Com. predict. tenend. ad standum recte in Curia, si quis versus eum loqui voluerit, de diversis felonijs & transgressionibus unde Idem R.B. indictatus existit ut dicitur, & ad respond. dicto dom. regi de ijsdem prout debet. datum sub sigillis nostris, &c.
19. Note that upon this last president the mainperners shall be fyned at the discretion of the Iustices, if the prisoner make default to appeare.
20. These bailes must be returned by the Iustices of peace at the next gaole delivery, or otherwise they are fyneable.
The forme of the warrant to enlarge the prisoner that is bailed as aforesaid may be thus.
21.Lovid. A. B. and C. D. two of his Majesties Iustices of peace in the County of Lowth, To the keeper of his Majesties gaole of the [Page 284] said County greeting. Forasmuch as R. B. of, &c. labourer hath before us found sufficient mainprise to appeare before the Iustices of the gaole delivery at the next generall gaole delivery, to be holden in the said County, there to answere to such things as shall be then on the behalfe of our said soveraigne Lord objected against him, and namely to the felonious taking of two sheep of the goods of I.S. for the suspition whereof he was taken and committed to the said gaoler: Wee command you on the behalfe of our said soveraigne Lord, that if the said R.B. doe remaine in your custody, for the said cause and for none other, then you forbeare to grieve or retaine him any longer, but that you deliver him thence and suffer him to goe at large, whereof you may not faile at your perill, given under our seales the 20. day of, &c.
Forceible Entries, &c.22. Concerning forceible Entries, and forceible detainers any one Iustice of peace to whom complaint shall be made ought to view the force, and if at his comming he finde the possession held by force, he must remove the force, and to that end he may take to his assistance, the Sheriffe of the County and so many others as he shall in his discretion thinke fit for this service, and he must also send to prison all such as he findes upon his view committing the force, or holding by force and must make a record of the same, which record must remaine amongst the records of the peace, or else be certified into the Kings Bench which may be done without any Certiorari.
The forme of the Record of a force may be thus.
Com. Dublin. 23. Memorandum quod octavo die mensis Ianuarij anno Regni Domini nostri Caroli Dei gratia, Angliae, Scotiae, Franciae, & Hiberniae Regis, &c. questus est mihi Iohanni Stile armigero, uni Iusticiariorum dicti Domini Regis ad pacem in dicto comitatu Dublin conservandam assignatorum quidam A.B. de Killmainham in dicto Com. Yeoman, quod C.D de Killmainham predict. & nonnulli alij pacis dicti Domini Regis preturbatores ignoti in domum mansionalem ipsius A.B. in Killmainham predict. manuforti ingressi sunt, & ipsum A.B. inde disseisiverunt ac eandem manuforti et armata potentia adhuc tenent ac proinde petijt à me sibi in hac parte remedum apponi, quaquidem quaerimonia et petitione audita ego prefatus Iohannes Stile ar. immediatè ad dictam domum mansionalem personaliter accessi, ac in eadem domo adtunc inveni prefatum C.D. et quosdam E.F. et G.H. &c. domum illum vi et armis manuforti et armata potentia, viz. arcubus et sagittis, gladijs pugionibus et alijs armis tam offensivis quam defensivis contra formam statuti in Parliamento Domini Richardi nuper Regis Angliae secundi anno Regni sui xv.to tento provisi, ac contra formam diversorum aliorum statutorum in hujusmodi casu editorum et provisorum, ac proptereà ego prefatus Iohannes Stile predict. C.D.E.F. et G.H. adtunc et ibidem arrestavi proximo (que) gaoli dicti Domini Regis apud Killmainham predict. in dicto Com. duci feci ut de dicta manuforti tentione per visum et Recordum meum convictos, [Page 285] ibidem morituros quos (que) fines dicto Domini Regi pro trangressionibus suis predictis fecerint. datum apud Sale in Com. predicto sub sigillo meo die & Anno supradictis.
The forme of the Mittimus to the Gaoler may be thus.
24.Com. Dublin. Iohn Stile Esquire one of the Iustices of peace of our soveraigne Lord the Kings Majestie within his said County of Dublin, to the keeper of his Majesties gaole in the said County, and to his Deputy and Deputies there and to every of them greeting. Whereas upon complaint made to me this present day by A.B. of Killmainham in the said County Yeoman I went immediately to the dwelling house of the said A.B. in Killmainham aforesaid and there found C.D.E.F. and G.H. of Killmainham aforesaid Labourers forceibly, and with strong hand and armed power, houlding the said house, against the peace of our said soveraigne Lord, and against the forme of the statute of Parliament thereof made in the fifteenth yeare of the Raigne of our late King Richard the second, therefore I send you by the bringers hereof the bodies of the said C.D. E.F. and G.H. convicted of the said forceible houlding, by my owne view, testimony, and record, commanding you in his Majesties name to receive them into your said Gaole, and there safely to keepe them, untill such time as they shall make their fynes to our said soveraigne Lord for the said trespasses and shall be thence delivered by the due and orderly course of Law, whereof faile you not upon the perill that may ensue thereof. Given at Dale under my seale the day of, &c.
Upon this recording of the force, the Iustice of peace may not restore the possession to the party that was put out, without first making enquiry by a Iury, and to that end he must make a precept to the Sheriffe in nature of a venire facias.
The forme of the precept may be thus.
25. Iohannes Stile armiger unus Iusticiariorum Domini Regis,Com. Dublin. ad pacem in Com. Dublin conservandam assignatorum vicecomiti ejusdem Com. salutem, ex parte dicti Domini Regis tibi mando & precipio quod venire facias coram me apud Swords in Com. predict. vicessimo die Septembris proximo futuro, viginti quatuor probos sufficientes & legales homines, & vicineto de Dale in Com. pred. quorum quilibet habeat quadragint. solidos terr. & tenementorum, vel redditum per annum ad minus ultra reprisas, ad inquirendum super sacramentum suum pro dicto Domino Rege de quodam ingressu manuforti facto in unum messuagium cujusdam A.B. apud Dale predictum, contra formam statuti in Parliamento Domini Henrici nuper Regis Angliae, Sexti Anno Regni sui octavo tento, & aliorum statutorum in hujusmodi casu provis. ut dicit & videas quod super quemlibet Iuratorum per te in hac par te impanilandorum vigint. solidos de exitibus ad prefatum diem returnes & [Page 286] hoc nullatenus omittas sub poena vigint. librarum quam noveris te incursum si in executione premissorum tepidus aut remissus fueris, & habeas ibi tunc hoc preceptum. Teste me prefato Iohanni Stile primo die Septembris Anno Regni Domini nostri Caroli Dei gratia, Angliae, Stotiae, Franciae, & Hiberniae, Regis fidei defensor, &c.
If upon the returne of this precept a full Iury doe not appeare an alias may be awarded and after that a pluries infinite till they come but so that at the day of the returne of the second precept there must be returned 40.s. in Issues upon every Iuror that makes default, and at the returne of the pluries 5.l. and at every day after the issues are to be doubled untill a full Iury appeare, and after that a full Iury hath appeared the Iustice of peace must sweare twelve or more of them and give them in charge to enquire of that particular forceible Entrie or detainer.
The Enquiry or verdict of the Iurors may be thus.
Com. Dublin. 26. Inquisitio pro Dom. Rege capta apud Swords in Com. Dublin vicessimo die Septembris Anno Regni Domini nostri Caroli Dei gratia, Angliae, Scotiae, Franciae, & Hiberniae, Regis fidei defensoris, &c. per sacramentum A.B.C.D.E F. &c. (and so name all the Iurors that are sworne) coram me Iohanne Stile Ar. uno Iusticiariorum dicti Domini Regis ad pacem in dicto Comitatu conservandam nec non ad diversa felonias transgressiones et alia malefacta in eodem Comitatu perpetrata audiendum et terminandum assignat. Qui dicunt super sacramentum suum predictum quod C.D. de Swords predict. Yeoman, diu legitime et pacifice sesitus fuit in dominico suo ut de feodo de et in uno messuagio, &c. cum pertinentijs in Swords predict. et possessionem ac seisinam suam predictam sic continuavit, quos (que) A.B. de Swords predict.Yet these words vi & armis here seeme to be needlesse being necessarily implyed in the word manuforti. Yeoman et alij malefactores ignoti primo die Septembris ultimo elapso vi, et armis, viz. baculis, gladijs, arcubus, et alijs armis tam offensivis quam defensivis in messuagium predictum et ceteris premissis intraverunt ac ipsum C.D. inde deseisiverunt et manuforti expulerunt et eundem C.D. sic disseisitum et expulsum ab eodem messuagio, &c. à predicto primo die Septembris us (que) ad diem captionis hujus Inquisitionis cum hujusmodi fortitudine et potentia armata extra tenuerunt et adhuc extra tenent in magnam pacis dicti Domini Regis perturbationem ac contra formam statuti in hujusmodi casu edit. et provis.
Or thus upon the statute of 8. H. 6.
And yet it seemes not best to recite the statute but shew the forc [...]ible Entrie, &c. and to conclude contra formam statuti in hujusmodi casu edit. & provis. short, and not at large, and then [...]t will referre to one or more statutes as the case requireth. 27. Iurator. pro Dom. Rege, presentant quod cum in statuto in Parliamento Domini Henrici nuper Regis, Angliae Sexti, apud Westmonestarium, Anno Regni sui octavo tent. edit. inter cetera continetur, quod si aliqua persona, sive aliquae personae de aliquibus terris aut tenementis manuforti expuls. seu disseisit. vel pacifice expellatur et postea man [...]forti extra teneatur vel aliquod feoffament, vel discontinuac. inde post talem ingressum ad jus [Page 287] possessoris defraudand. et tollendum aliquo modo fiat, habeat in hac parte pars gravat. versus talem disseisitor. assisam nove disseisin. vel breve transgress. et si pars gravat. per assisam, vel per actionem transgressiones recuperet, vel per veredictum, vel aliquo alio modo per debitam legis formam inveniatur quod pars defendens in terris, et tenementis sic ingressus fuit, vel ea per vim post talem ingressum suum tenuit, recuperet quer. damna sua ad triplam versus talem defen. Et ulterius idem defen. finem et redemptionem dicto Domino Regi fecerit, prout in statuto predicto plenius continetur, quidam tamen A.B. nuper de W. in Com. predicto husbandman et C.D. de eadem labourer, statutum predictum, minime ponderant, nec penam in eodem statuto content. aliqualiter verētes, primo die Februarij Anno Regni Regis Caroli, &c. apud C. in Com. predicto in unum messuagium tunc existent liberam tenement. Roberti W. manuforti ac vi et armis, viz. gladijs, &c. intraverunt et ingressum fecerunt, et predict. Robertum à libero tenemento suo manuforti, ac vi et armis predictis inde sine Iudicio expuler. et disseisiver. et L.P. milit. firmar. predicti Robert messuag. predicti, ad tunc et ibidem de predict. mess. expulerunt et ejecerunt et prefatum Robertum sic inde expulsum et disseisit. et pred. L.P. sic eject. à predicto primo die Februarij Anno supradicto us (que) diem captionis hujus Inquisitionis, de predict messuag. vi et armis predict. et manuforti extratenuerunt et adhuc extratenent in contemptum dicti Domini Regis nunc et ad grave damnum ipsius Domini Regis, et contra pacem dicti Domini Regis, contra formam statuti predict, &c.
Or thus upon the statute. 5. R. [...].
28. Inquiratur. pro Domino Rege,For such recitall of the statute see after in the title indictments. &c. quod cum in statuto in Parliamento Domini Richardi nuper Regis Angliae secundi, post conquestum apud Westm. Anno Regni sui quinto, tent. edit. inter cetera ordinat. sit, quod nullus fecerit ingressum in aliquas terras sive tenementa, nisi in casu, ubi ingressus datur. per legem, et illo casu non manuforti nec cum multitudine gentium, sed licito et quieto modo tantum, et si quis in contrarium fecerit et inde debite convictus fuerit per imprisonamentum corporis sui puniatur, et finem ad voluntatem Domini Regis faciat prout in eodem statuto inter alia plenius continetur quia tamen T.H. de I. in Com. predicto Yeoman et alij, &c. stat. predict. minimè ponderant. 2. die Martij Anno Regni Domini Iacobi, &c. vi et armis, viz. baculis, gladijs, falcastris, et bifurcis, in unum clausum I.C. militis jacent. apud Dale in Com. predicto in quodam loco ibidem vocat H. super possessionem ejusdem I.C. militis ubi ingressus eis, aut eorum alicui non datur per legem ingressum fecerunt, et cent porticas sepium vivar. ipsius I. militis, adtunc et ibidem crescent radicaverunt evulserunt, et spoliaverunt in dict. Domini Regis nunc contemptum et ad grave damnum ipsius I.C. militis et contra formam statuti predict. &c.
For a Lessee for yeares that is put out the forme upon the statute of 10. Caroli may be thus.
29. Inquisitio pro Domino Rege capt. apud B. in Com. predict. primo die Iulij Anno Regni Domini nostri Caroli Dei gratia, Angliae, Franciae, et Hiberniae, Regis fidei defensoris decimo tertio per sacramentum A.B.C.D.E.F. &c. coram Iohanne Myles armigero uno Iusticiar. dicti Domini Regis ad pacem in dicto Com. conservandum nec non ad diversa felonias transgressiones, et alia malefacta in eodem Com. perpetrata audiendum et terminandum assignatorum, qui dicunt super sacramentum suum predictum quod A.B. de C. in Com. predicto gener. seisitus fuit in dominico suo ut de feodo, de et in uno messuagio, &c. cum pertinentijs, in Dale in Com. predicto, et sic sesit. existent. primo die August. Anno Regni dicti Domini Regis nunc decimo apud Dale predict. demisit. et ad firmam tradidit predictum messuagium cum pertinentijs cuidem C.D. de Dale predict. Yeoman pro termino vigint. et unius annorum ex tunc proximè sequentium plenare complendorum et quod virtute ejusdem dimisionis idem C.D. postea, sc. secundo die Augustij Anno Regni dicti Domini Regis nunc decimo supradicto, in predictum messuagium, &c. intravit et fuit inde possessionatus, reversione inde predicto A.B. expectante, et predictus C.D. possessionem suam predictam inde quiete et pacifice continuavit, quos (que) E.F. de Dale predict. Yeoman, decimo die Augustij Anno Regni dicti Domini Regis nunc Angliae, Scotiae, Franciae, et Hiberniae, tertio, in predictum messuagium, &c. cum pertinentijs vi et armis intravit et ipsum C.D. à possessione sua inde manuforti et vi armata ejecit et expulsit, et ipsum C.D. sic ejectum et expulsum ab eodem messuagio, &c. cum pertinentijs à predicto secundo die August. anno supradicto us (que) ad diem captionis hujus Inquisitionis cum hujusmodi fortitudine et potentia armata, extratenuit et adhuc extratenet. in magnam pacis dicti Domini Regis perturbationem ac contra formam statut. in tali casu edit. et provis.
The forme of the Inquisition for Tenant by Elegit that is forceibly put out may bee thus.
30. Inquisitio pro Domini Rege, &c. as in the next precedent president, Qui dicunt super sacramentum suum quod cum A.B. de C. in Comitatu predicto Yeoman coram Iusticiarijs Domini Regis nunc de Banco in Termino sancta Trinitatis Anno Regni sui decimo per judicium ejusdem curia recuperavit versus C.D. de Dale in Com. predict. Yeoman quoddam debitum et damna attingentia ad viginti libras ster. et predictus A.B. in curia predicta pro satisfactione ejusdem summae facienda elegit omnia bona et catalla predict. C.D. preter boves et afros de carruca, sua necnon medietatem omnium terrarum, et tenementorum ejusdem C.D. juxta formam statuti inde edit. et provis. sibi liberari cum (que) etiam T.K. miles nuper vicecomes Com. predicti virtute brevis dicti Domini regis de Elegit ex parte dicti A.B. eidem tunc vicecomiti Com. predict. direct. gerent. dat. primo die Iunij [Page 289] anno supradicto secundum exigentiam ejusdem brevis deliberabat predicto A.B. unum messuagium in Dale predict. annui valoris viginti solidorum existent. medietatem omnium tertarum et tenemen. de quibus predict. C.D. tempore judicij predict. redit. aut unquam postea fuit sesitus in Com. predicto Tenendum sibi et assignatis suis ut liberum tenementum suum juxta formam statut. in hujusmodi casu provis. donec idem A.B. predict. viginti libras juxta valorem predict. de messuagio predicto levaverit, virtute cujus predict. A.B. in messuagium predict. cum pertinentijs intravit et fuit inde possessionatus, ut tenens per Elegit, et possessionem suam inde quietè et pacificè continuavit quous (que) R.G. de D. &c. et alij malefactores ignoti primo die Septembris ultimo preterito vi & armis, viz. baculis, gladijs, arcubus, et sagittis in messuagium predictum, &c. intraverunt, et ipsum A.B. manuforti et vi armata à possessione sua predict. inde ejecerunt, et expulerunt, et eundem A.B. sic expulsum et ejectum ab eodem messuagio, &c. a predicto primo die Septembris us (que) ad diem captionis hujus Inquisitionis cum hujusmodi fortitudine et potentia armata, extratenuerunt et adhuc extratenent in magnam pacit dicti Domini regis perturbationem, ac contra formam statut. in hujusmodi casu edit. et provis.
The like president may be made for Tenant by statute merchant or of the staple, or upon a Recognisance mutatis mutandis.
The forme of the Inquisition of forceible Entrie for gardian in Chivalrie may be thus.
31. Inquisitio, &c. ut supra, qui dicunt super sacramentum suum predictum quod A.B. nuper de C. in Com. Dublin predict. Yeoman seisitus fuit in dominico suo ut de feodo de et in uno messuagio, &c. in Dale in Com. predicto, et sic seisit. existent. obijt inde seisit. post cujus mortem predict. messuagium, &c. discendebat E.B. filio et heredi suo, qui quidem E.B. tempore mortis patris sui predicti fuit et adhuc est infra etatem viginti et unius annorum, et quod custodiam terrae et haeredis predicti A.B. pertinet. ad G.H. Armiger. Eo quod predictus A.B. terram suam predict. tenuit. de prefat. G.H. per servitium militare, virtute cujus idem G.H. in messuagium predictum, &c. intravit, et fuit inde possessionatus ut gardianus per servitium militare et possessionem suam predict. inde diu pacificè et quiete continuavit quous (que) I.K. de Dale predict. Yeoman decimo die die Augusti, &c. in mess. pred. &c. vi et armis intravit et ipsum G.H. à possessione sua inde manuforti et vi armata expulit et ejecit, et ipsum G.H. sic expulsum et ejectum ab eodem messuagio, &c. à predicto primo die Augusti anno supradicto us (que) ad diem captionis hujus Inquisitionis cum hujusmodi fortitudine, et potentia, armata extratenuit et adhuc extratenet, in magnam pacis dicti Domini Regis perturbationem ac contra formam statut. in hujusmodi casu edit. et provis.
The forme of the Inquisition for Tenant by Coppy of Court Roll may be thus.
32. Inquisitio capta, &c. vt supra, qui Iurat. super sacramentum suum predict. dicunt. quod A.B. de C. in Com. predict. Yeoman seisitus et possessionatus fuit in dominico suo ut de feodo, ad voluntatem Domini secundum consuetudinem manerij de Dale in Com. predict. de uno mess. &c. in Dale predict. ut tenens per copiam Rotulorum curiae ejusdem manerij et sic seisitus et possessionatus existen. seisinam et possessionem suam predict. diu pacifice et quiete continuavit quous (que) E.F. de Dale predict. in Com. pred. labourer primo die Augusti anno, &c. in mess. pred. &c. vi et armis, &c. intravit et ipsum A.B. à possessione et seisina sua pred. inde manuforti et vi armat. expulit et amovit et ipsum sic expulsum et amotum ab eodem mess. &c. à predicto primo die Augusti anno supradict. usque ad diem captionis hujus Inquisitionis cum hujusmodi fortitudine et potentia armat. extratenuit et adhuc extratenent in magnam pacis dicti Domini Regis perturbationem ac contra formam statuti in hujusmodi casu provis.
The warrant to the Sheriffe for making of restitution of possession may be thus.
33. Iohannes Cotton Miles unus Iusticiar. &c. assignat. vicecom. ejusdem Com. salutem. Cum per quandam Inquisitionem patriae coram me apud B. in Com. predicto 19. die Iulij, &c. super sacramentum A.B.G.D.E.F. &c. ac per formam statut. de ingressibus manuforti factis in tali casu provis. compertum fuit, quod C.D. &c. et alij, &c. primo die Septembris, &c. in quodam messuagio, &c. A.B. &c. in W. predict. vi et armis ingressi sunt ac ipsum A.B. inde tunc manuforti disseisiverunt, et expulerunt, et predictus A.B. sic expul. à pred. messuag. &c. à predict. primo die Septemb. &c. us (que) ad diem captionis Inquisitionis pred. manuforti, et cum potentia, armat. extra tenuerunt, prout per Inquisitionem pred. plenius liquet de Recordo, Ideo ex parte dicti Domini Regis tibi mando et precipio quod (ad hoc debite requisitus) una cum posse comitatus tui (si necesse fuerit) accedas ad mess. et cetera premissa, ac eadem cum pertinentijs reseisire facias, et prefat. A.B. de et in plenam possessionem suam inde, prout ipse ante ingress. pred. fuerat seisitus restitui et mitti, facias, juxta formam dict. statut. Et hoc nullatenus omittas periculo incumbente, Teste me prefat. Io. Cotton, &c.
34. The like warrant may be made for Lessee for yeares, Tenant per Elegit, statute merchant or the statute gardian in Chivalry and Coppiholder mutatis mutandis.
35. A Certificate of the presentment, or verdict of the Iury may be made into the Kings Bench whereof vide antea tit. forceible Entry.
36. The like certificate may be made into the Kings Bench of the Record of a force viewed by the Iustice, whereof vide antea title forceible Entrie.
[Page 291]37. These two former certificates (and the like) may be done and made by the Iustice of peace by way of a letter inclosing therein the said presenment of the Iury, or the said Record of the Iustice, except the same be removed thither by a Certiorari, and then may the Iustice returne them in such manner as appeareth hereafter title Certiorari with some litle alteration.
38. Or the Iustice of peace may himselfe deliver into the Kings Bench such presentment found before him or such Record made by him, and that without Certiorari, for that he is a Iudge of Record.8 E. 4. [...]8. Br Cor 152. Cromp. 133.
The forme of proceeding upon the statute of North-hampton made in Anno secundo Ed. 3. ca. 3. the effect of which statute is as followeth, viz.
39. No man whatsoever (except the Kings servant and Ministers in his presence, or in executing his precepts or their offices, and such as shall assist them, and except it be upon Cry or Proclamation made for Armes, to keepe the peace, and that in places where such Acts doe happen) be so hardy to come before the Kings Iustices, or other his Ministers doing their offices with force and Armes, nor bring any force in Affray of the countrey, nor goe nor ride armed by night, or by day in Faires or Markets, or in presence of the Iustices, or other Ministers, nor in any place elsewhere, upon paine to forfeit his armour to the King, and his bodie to imprison at the Kings pleasure. 2. Ed. 3. cap. 3.
40. Upon this statute, he that is put out, or holden out of his land with force, useth to have at this day a writ directed out of the Chancerie, either to the Sheriffe only (as Master Fitzh. in his Na. Br. fol. 149. rehearseth it, for I finde it not in the Register of writs) or else custodibus pacis ac vicecomiti & eorum cuilibet (as the common manner is) commanding that Proclamation be made upon the statute, and that if any be afterwards found offending against the same, they shall be committed to prison, there to remaine untill some other commandement be given concerning them) and that their armour and weapon shall be prised, and the same answered to the use of the Kings Majestie.
41. But forasmuch as that Iustice of peace, (to whom this writ shall be delivered) is to make execution of the same, as a minister only, and is to certifie his doing therein, I thinke good to lend these few helpes towards it.
42. At his comming to the place, where the force is supposed by this writ, he may cause three O yes for silence to be made with this or such another Proclamation.
43. The Kings Majesties Iustice of his peace straightly chargeth, and in his Maj [...]sties name commandeth all and every person to keepe silence, whilest his Majesties writ upon the statute made at North-hampton, [Page 292] in the second yeare of King Edward the third his noble Progenitor (delivered to the said Iustice) be read and Proclamation be made thereupon accordingly.
44. Then may he read the writ, or declare the effect thereof in English.
45. After that let three other O yes be made, and thereupon may this Proclamation follow.
46. His Majesties said Iustice doth in his Highnesse name, and by vertue of his said writ straightly charge and command that no manner of person, of what estate, degree, or condition soever, now being within the house of B. &c. named in the said writ, shall go armed, nor keepe force of armour or weapon, nor doe any thing there or elsewhere in disturbance of his Majesties peace, or in offence of the said statute upon the paines of loosing his said armour and weapon and of imprisoning his body at his Majesties pleasure.
God save the King.
47. This done the Iustice may enter, and search whether there be any force of armour, or weapon worne or borne against this Proclamation, or otherwise he may enquire thereof by a Iury, for so the writ it selfe doth warrant him to doe, and if any such be found hee ought to imprison the offendors, and to seise and apprise the Armour and weapon so found with them, but if (upon the Proclamation made) they doe depart in peaceable manner, then hath hee no warrant by the writ to commit them to prison.
48. But now let me shew him a forme of Certificate (or returne) of this writ into the Chancery, and then make an end.
49. Upon the back of the writ these words may be endorced, viz.
50. Executio istius brevis patet in quadam scedula eidem brevi consuta.
The scedule may be thus.
51. Ego Iohannes Twysden armiger. unus custodum pacis Domini Regis in Com. Dublin certifico, in Cancellariam dicti Domini Regis, quod virtute istius brevis mihi primo deliberati, decimo die Aprilis, Anno, &c. publicè proclamari ex parte dicti Domini Regis feci, apud B. Cujus in dicto brevi fit mentio prout in dicto brevi precipitur, & quod quidem A. & D.E. de F. in Com. praedict. Labourers. predictam Proclamationem parvi pendentes post Proclamationem predictam ibidem sic factam armati iverunt, as armatam potentiam ibidem duxerunt, scilicet. duas galeas, unum arcum et decem sagittas, duos gladios et totidem pugiones in perturbationem pacis dicti Domini Regis, ac terrorem populi sui necnon in contemp. statut. in dicto brevi specificati manifestum. Ac proinde dict. A.C. et D.E. unacum armaturis suis predict. arrestavi ac seisivi et eorum corpora ad proximam prisonam dicti Domini Regis in Com. pred. duci feci, ibidem moratus, donec aliud à dicto Domino Rege pro ipsorum deliberatione habuero in mandatis, armaturas etiam eorum predictorum appretiari feci per A.B.C.D. et E.F. de B. [Page 293] predict. Yeomen ad hoc juratos. Qui dicunt super sacramentum suum pred. quod predictae duae galea valent decem solid. et quod dict arcus et decem sagitti valent sex sol. et quod gladij predicti valent viginti sol. et quod dicti pugiones valent quinque solid. et sic quod armatura pred. valet. in toto quadraginta et unum solid. de quibus paratus sum respondere secundum tenorem dicti brevis, In cujus rei testimonium huic presenti certificationi mea sigillum meum apposui dat. apud B. pred die et anno supradictis.
52. By this you have seene, what one Iustice of the peace ought to doe in the execution of this statute as a Minister, and by the same you may also see, what he may doe therein of himselfe ex officio as a Iudge, and without any writ brought unto him.
53. For not onely by the plaine words of the statute of Northhampton, the wardens of the peace have power (within their wards) and are commanded to execute this Act upon a paine, but also by good implication in the Commission it selfe, every Warden of the peace hath the statute of Northhampton committed to his charge, so that both in the matter and manner, the doing is all one saving that, if he doe it as a Iudge, he needeth not to make any Proclamation (the statute being a prohibition in it selfe) nor yet to send any certificate into the Chancery but onely to make his owne Record of that which he shall doe in this behalfe, and thereout to send an estreate into the Exchequer, that the King may be answered of the armour, or of the value thereof.
54. And here (perhaps) the redemption of the imprisonment may be at the discretion of the same Iustice, even as in [...] statutes of 15. R. 2. and 8. H. 6. it seemeth to be, but therein my adv [...] shall be the same that I gave them before; Adjoyning this that in [...] execution of this statute of Northhampton, the Iustice of the peace hath to doe with the removing of the force only, and may not medle with any restitution of the possession.
Riots. The forme of the Record of a Riot, viewed by the Iustices and Sheriffe or Undersheriffe may be thus.
55. Memorandum quod vicessimo die Ianuarij anno Regni Domini nostri Iacobi Dei gratia, Com. [...] ▪ &c. Nos Iohannes Cuts miles & Iohannes Cage Miles duo Iusticiar. dicti Domini regis ad pacem in Com. predict. &c. assign. & Gulielmus Wyndie Miles adtunc vicecomes ejusdem Com. ad gravem quarimoniam & humilem petitionem A. B. de C. in dicto Com. Yeoman, in proprijs personis nostris accessimus ad domum mansionalem ipsius A.B. in C. predict. ac adtunc & ibidem invenimus D. E. F. G. & H.I. de C. predict. Labourers ac alios malefactores, ac pacis dicti Domini Regis perturbatores ignotos ad numerum decem personarum modo guerrino armatos, viz. gladiis, pugionibus, galeis, arcubus & sagittis, illicitè & riotosè agrogatos & eandem domum obsidentes, multa mala in ipsum A.B. comminantes, [Page 294] in magnam pacis dicti Domini regis perturbationem ac populi sui terrorem ac contra formam statut. in hujusmodi casu edit. et provis. ac propterea nos prefat. Iohan. Cuts, Iohan. Cage, et Willielmum Wendye predict. D.E.F. G.H.I. &c. tunc et ibidem arrestari ac proximum gaolae dicti Domini Regis in Com. pred. duci fecimus per visum et recordum nostrum de illicita congregatione et riot. pred. convictos, ibidem moraturos quous (que) finem dicto Domino Regi proinde fecerint, In cujus rei testimonium huic presenti Recordo nostro sigilla nostra apposuimus, dat. apud C. pred. die et anno, &c.
Lamb. fo. 320.56. And if a man be slaine, or maimed, or a rescous be done to the officer by the Riotters, then the Record ought to be riotose occiderunt et riotose mahimaverunt ac riotose rescusserunt, because their athority in this case is restrained to the ryot onely, so as notwitstanding that record, the parties may pleade not guilty to the felony or to the rescous, howsoever for the ryot, they are estopped.
57. The Mittimus, Mittimus. for conveying the Riotters to the gaole may with some few words of change, be made out of that, which is here before, for such a hould by force see hereof paulo antea, amongst the presidents of forceible Entrie.
The precept (to the Sheriffe) to returne a Iury for an Inquiry upon a Riot.
Com. Dublin.58. Iohannes Cuts miles, et Iohannes Cage miles duo Iusticiar. &c. assign. viceco [...]. ejusdem com. salutem, Ex parte dicti Domini regis tibi precipimus, quo [...] [...]enire facias coram nobis apud I. in com. pred. xvj. die Ianuarij prox. futuro [...]. probos sufficientes et legales homines, de Com. pred. quorum quilibet ha [...]t terras et tenementa, infra dict. Com. liberi tenementi per chartam ad ann. valorem vigint. solid. aut per copiam rotulorum curiae ad ann. valorem viginti sex solidorum et acto denar. aut per utrunque, ultra omnes reprisas, ad inquirendum pro dicto Domino rege, ac pro indemnitate nostra, in hac parte super sacram. suum de quibusdam illicitis aggregationibus & riotis apud C. in Com. predict. nuper commissus ut dicitur, Et hoc nullatenus omittas sub poena vigint. librarum, quam incursurus es, si in executione premissor. defeceris, & habeas ibi tunc nomina Iuratorum predict. Et hoc preceptum dat. sub sigillis nostris primo die Ianuarij Anno Regni Dom. nostri Caroli 13. &c.
The forme of the Enquirie, Endictment, or Presentment of the Iury may be thus.
Com. Dublin.59. Inquisitio pro Domino Rege, &c. (as before in forceible Entries,) coram Iohanne Cutts Milite & Iohanne Cage Milite duo Iusticiar. &c. qui ad hoc Iurati & onerati dicunt super sacramentum suum predict. quod D.E.F.G. & H.I. simul cum alijs malefactoribus & pacis dicti. domini regis perturbatoribus ignotis ad numerum septem personarum, modo guerrino arraiat, vi & armis, viz. hawberdis, gladiis, arcubus, & sagittis [Page 295] primo die mensis Ianuarij ultimam preterit. apud C. in Com. predict. inter horas octava. et nonam post meridiem ejusdem diei, domum mansionalem A.B. de C. pred. Yeoman, scituat. in C. pred. riotose fregerunt et intraverunt, et in ipsum A.B. tunc et ibidem in sultum fecerunt, ac ipsum tunc et ibidem verberaverunt, vulneraverunt et male tractaverunt ita quod de vita ejus desperabatur, in magnam pacis dicti Domini Regis perturbationem et populi terrorem, ac contra formam statut. de Riotis, Routis, et congregationibus gentium illicitis in hujus. casu edit. et provis.
60. As for the certificateCertificate. which ought to be made to the King and the Councell in case that by this enquiry the truth of the fault and Riot be not found, such certificate may be done in English by way of a letter, comprehending the truth of the whole matter with the certainety of the time, place, and other circumstances of the fact and Riot, together with the certainety of the names of the Riotters, as also of the names of such, who by maintenance, embracery, or otherwise were any impediment to the finding thereof, with their severall misdemeanors, which certificate or letter is to be directed and sent by the said Iustices of peace and Sheriffe, or undersheriffe into the Starchamber or Kings Bench, &c. within one moneth, see antea tit. Riots.
A Traverse to an endictment of a Riot, and the record thereupon.
61. Alias,Com. Dublin▪ scil. ad sessionem pacis tentam apud Killmainham in Com. pred. die Martis proxim. ante festum sancti Mathei Apostoli, anno Regni Domini nostri Caroli Dei gratia, Angliae, Scotiae, Franciae, et Hiberniae Regis fidei defensor. &c. [...] coram A.B.C.D. et alijs socijs suis Iusticiar. dicti Domini Regis ad pacem in Comitatu predicto conservandam, necnon ad diversa felonias, transgressiones, et alia malefacta in eodem Comitatu perpetrata audiend. et terminan. assign. per sacramentum duodecem Iurator. extitit. presentatum, quod I.L. de &c. R.M. de &c. et T.L. de &c. cum diversis alijs ignotis malefact. et pacis dicti Domini Regis perturbatoribus, modo guerrino armat. unit. et assemblat. vicessimo die Iunij in nocte ejusdem diei ann. &c. vi et armis, viz. bacculis, gladijs, clippeis, pugionibus, falcastris, et alijs armis tam invasivis quam defensivis clausum I.S. armigeri apud C. &c. riotose et rouiose, fregerunt, et intraverunt, et octo plaustra foeni, ad valent. &c. ad tunc et ibidem existent. de bonis et Catallis dicti I.S. adtunc et ibidem injustè et illicitè ceperunt et asportaverunt contra pacem dicti Domini Regis, &c. et contra formam statut. inde edit. et provis. per quod praeceptum fuit vicecom. Com. predict. quod non omitteret propter aliquam libertatem quin venire faceret eos ad respondendum, &c. posteáque, scil. predicto die Martis proxim. ante festum sancti Mathei Apostoli anno supradicto coram prefatis Iusticiariis venerunt predicti I.L.R.M. et T.L. in propriis personis suis et habit. auditu indictament. predict. seperatìm dicunt, quod ipsi non sunt inde culpabiles, et de hoc ponunt super patriam, Et A. M. qui pro Dom. rege in hac parte sequitur similiter, &c. [Page 296] Ideò veniat inde Iurata, cora. Iusticiarijs dicti Domini Regis ad pacem in Com. predicto assignat. &c. ad sessionem pacis apud Killmainham in Com. predict. die Martis proxim. post Epiphaniam Domini tunc proxim. futur. tenend. Et qui, &c. ad recognoscend. &c. quia tam, &c. idem dies datus est tam presato A.M. qui sequitur. &c. quam prefatis I.L.R.M. et T.L. &c. ad quam quidem sessionem tent. apud Killmainham predict. in Com. pred. die, &c. coram T.P.G.N. et H.P. Mil. et sotijs Iusticiar. dicti Domini Regis, ad pacem in Com. predicto conservand. necnon ad diversa felonias, transgressiones et alia malefacta, in eodem Com. perpetrata, audiendum et terminandum, assignatis venerunt, tam prefatis A.M. qui sequitur, &c. quam prefati I.L.R.M. et T.L. in proprijs personis suis, Et Iuratores predict. per vicecomitem Com. predict. ad hoc impanellati et exacti, viz. I.F.I.G. &c. similiter vener. Qui ad veritatem de premissis dicendam triati et Iurati dicunt super sacramentum suum quod predict. I.L. R.M. et T.L. culpabiles sunt, et eorum quilibet culpabilis est, de trangressione contemptu, et riot. pred. in indictamento predicto superius specificat. modo et forma prout superius versus eos supponitur, ideo concessum est per curiam quod pred. I.L. R.M. et T.L. capiantur ad satisfaciendum dicto Domino Regi de finibus suis occasione transgressionis contemptus et riotti predict. qui quidem I.L. R.M. et T.L. adtunc et ibidem presentes in Curia petierunt se ad separales fines suas cum dicto Dom. Rege occasione pred. admitti, et inde ponunt se seperatim in misericordia Dom. Regis, et assessatur fines ejusdem I.L. per Iusticiar. pred. ad tres libras sex solid. et octo denar. et finis ejusdem R M. assessatur ad vigint. solid. et assessatur finis ejusdem T.L. ad quin (que) libr. bonae et legalis moneta, ad opus et usum dicti Domini Regis.
Rules and observations concerning aswell Indictments of forceible Entries and Riots as other Inditements and presentments.
For the forme of indictments, in cases of forceible Entrie and Riots I have here before set you downe presidents: Neverthelesse for that these indictments be the chiefe foundation whereupon the whole businesse and triall is after to be grounded and built, I thought it not amisse to observe here these few generall rules, aswell concerning the matter as the forme of these, and all other indictments or presentments to be taken before Iustices of the peace.
1. First in these indictments of forceible Entry, and Riots, (as also in all other endictments of felony or trespasse) it is good to say contra pacem, or other words to that effect.
2. Also these words, vi et armis, viz. gladijs, &c. are of necessity to be used in Ireland, especially if the circumstances of the fact doe require them, for these circumstances doe either aggravate or diminish the offence, Stamf. fo. 94. because the statute of 37. H. 8. ca. 8. 37. H. 8. ca. 8. which maketh them needlesse is not of force in Ireland. But these words vi et armis, &c. are needlesse in an Indictment of forceible Entry, because they are implyed in the word force.
[Page 297]3. Also in indictments founded upon statutes, it is not needfull,Co. 484. nay it is not safe to recite the statute at all, for as the recitall is not necessary, so the misrecitall thereof is fatall to the endictment and maketh it void, but it is safe and sure to draw the endictment with this conclusion, sc. Contra formam statuti in hujusmodi casu provisi ac editi, Dyer 363. if the indictment be founded upon one statute or contra formam diversorum statutorum in hujusmodi casu edit. et provis. without naming any speciall statute where many statutes doe concerne one offence, and where it is ambiguous whether one or more statutes doe concerne the matter in question, the safest way to conclude is contra formam statut. in hujusmodi casu edit. et provis. short, which may referre to one or more statutes, as the case shall require.
4. Yet the offence against the statute must be certainely described in the indictment, and the materiall words in such statute must be fully set downe therein. Plow. 97.
5. Also all indictments and presentments being in the nature of declarations for the King against the offendors, ought to containe certainety, and therefore six principall things be most commonly requisite in all presentments before the Iustices of peace, viz.
1. The names and surnames aswell of the parties indicted, as of the parties offended, with the addition of the degree or mystery and dwelling place of the party endicted.
Yet in some cases, an endictment, quod procuravit personas ignotas, or quod bona cujusdam ignoti cepit, &c. or the like, may be good, See Br. Indictments 6. 10. 11.
2. The time, scil. the day and yeare when the offence was done.
3. The place, scil. the Towne and County where it was done,Br. Indictment 24. 41. 42. as at B. in the County of C.
4. The name er quality of the thing in which the offence is committed, viz. of dead things, it may be bona, et catalla, expressing them certainely, of live things equum, bovem, ovem, &c. but not bona, et catalla, so of entry, &c. into lands, &c. to expresse certainely whether it bee a house, land, medow, pasture, wood, &c.
5. Also the value or price of the thing, is commonly to be set downe, to aggravate the fault.
6. The manner of the fact,Br. endictments 7. et 36. scil. the manner and nature of the felony or trespasse.
Also indictments ought to be framed so neere the truth as may be, and the rather for that they are to be found by the Iury upon their oathes.
7. Yea an endictment being veredictum, id est, Co. 4. 47. dictum veritatis and a matter of record, ought to set forth all the truth that by Law is requisite, for de non apparentibus et non existentibus eadem est ratio, and every part of the endictment materiall ought to be found by the oath of the Iurors, and is not to be supplyed by averment.
Processe.
1. The forme of Processe upon indictments of Trespasse, which also the Iustices of peace out of sessions may in some few cases make out against offendors as it seemeth.
2. As the authority of making processe upon endictments, is given by expresse words in the Commission to the Iustices of peace in their Sessions, so is it given by expresse words in some statutes to the Iustices of peace (yea to one Iustice of peace) out of their sessions to make processe upon endictments found, (before them) against offendors, or upon information against them, as if they were endicted of Trespasse in Sessions, as in cases of forceible Entrie, &c.
3. Also in some other cases, and by some other statutes this authority of making out processe (against offendors) by the Iustice of peace out of their Sessions seemeth to be implyed of congruence, or rather of necessity, as where any statute doth give power and authority to the Iustices, or Iustice, of peace out of their Sessions, to enquire, heare, and determine, (as hic tit. Riots) tit. Tyle, and tit. Weights, in these and in all other such cases where the Iustice may enquire, heare, and determine there, after indictment or presentment of the offence, the said Iustice may make out processe against such offendors, to cause the offendors to come and answere, for unlesse the offendors doe come in, either gratis or by processe, the Iustices cannot proceed to heare, and determine, againe in the former cases of Tyle and Weights, as also in all other cases where any statute doth give power to the Iustices of peace, out of their Sessions, to heare and determine, either upon the confession of the offendors, or upon examination of witnesses, in all such cases it seemeth, the Iustices of peace may grant out their warrant against such offendors to appeare before them, to answere to their said offences, and thereupon may proceed to examine, heare, and determine the offence, as being convict thereof, upon such confession, or examination without any indictment or processe.
Now these processe may be as followeth.
First if the offendor be absent, a venire facias A Venire facias. shall be awarded by the Iustice or Iustices of peace under his or their owne teste, and if thereupon the offendor be returned sufficient (and maketh default) then a distringas Distringas or capias. shall be awarded, which distringas shall goe forth infinite, till the offendor come in, but if a nihil habet, &c. be at the first returned, then after the venire facias, first a capias, then an alias and after a pluries shall goe forth, and after that an exigent till the party be taken or yeild himselfe, or else be outlawed. And these are the ordinary processe upon all indictments of trespasse against the peace, or of other offences against penall statutes, not being felonies, or a [Page 299] greater offence, but this processe is commonly grounded upon an endictment and is onely to cause the offendor to come in, and to make his answere, and therefore if the offendor be present and confesse such indictment, information or offence, then needeth there no processe at all, for he shall be committed forthwith to prison there to remaine till he hath payed his fyne, or given sureties for it. 1. H. 7. 20. Br. Imprisonment 100.
Also these processe shall be alwayes directed to the Sheriffe who is the immediate minister and officer of the King, to execute all processe, except the Sheriffe himselfe, or his officers be parties, but if the Iustice of peace be to grant out processe against the Sheriffe, under-sheriffe, or other officers, offending contrary to the statute 8. H. 6. ca. 9. It seemeth such processe shall be directed to the Coroners of the County and shall be served by them, and so are diverse bookes, as 2. H. 6. fo. 12. 8. H. 6. fo. 30. 9. H. 6. 11. and 18. Ed. 4. fo. 7. and others, and so also the oath of the Iustice of peace seemeth to bind them.
Note also that this Processe ought alwaies to be made in the name of the King, and for that the King is a party,Br. franchise 18. it must also be with a non omittas propter aliquam libertatem, &c. but the Teste thereof may be under the name of the Iustice of peace.
If the offendour be within any liberty or Franchise, yet the Sheriffe is to enter the Franchise, and to execute the Processe himselfe, and not to write to the Bailiffe of the Franchise, because the King is a party, see 41. Assise p. 17. Br. Franch. 18. 31.
The formes of these Processe to be made by the Iustice of Peace out of the Sessions seeme to be as followeth.
The Venire facias thus.
Iacobus Dei gratia Angliae, Scotiae, Franciae & Hiberniae Rex Fidei Defensor. &c.
vicecom. Com. Dublin salut.
precipimus tibi, quod non omittas propter aliquam libertatem in balliva tua, quin venire facias A.B. de C. in dicto Com. tuo Yeoman coram R. M. Milite & M. D. armigero duobus Iusticiar. nostr. ad pacem conservand. nec non ad diversa felonias, transgressiones, & alia malefacta in dicto Com. perpetrat. audiend. & terminand. assignat. apud Killmainham in Com. tuo [...] die Maij proxim. futurum ad respondend. nobis super quibusdam articulis super ipsum A.B. presentat. & habeas ibi tunc hoc praeceptum.
Teste R.M. apud Killmainham die, &c.
The Distringas thus.
Iacobus Dei gratia Angliae, Scotiae, Franciae & Hiberniae Rex fidei Defensor. &c.
vicecom. Civitatis Dublin salut.
praecipimus tibi quod non omittas propter aliquam libertatem in balliva tua, quin eam ingrediaris & distringas A.B. de C. in Com. tuo Yeoman per omnia terras & tenementa [Page 300] &c. et quod de exitibus eorum respondeas, &c. et quod habeas corpus ejus coram, &c. Iustic. &c. ad respondend. &c.
Teste. &c.
The writ of Capias thus.
Iacobus Dei gratia Angliae, &c.
vicecom. Com. Dublin salutem,
praecipimus quod non omittas propter aliquam libertatem in balliva tua, quin cam ingrediaris & capias I. D. de A. in Com. tuo Yeoman, &c. si inventus fuerit in balliva tua, & eum solvo custod. facias. Ita quod habeas corpus ejus coram R.M. Milite & M. D. Armigero duobus Iusticiar. nostr. ad pacem conservandam, necnon ad diversa felonias, transgressiones, & alia malefacta in eodem Com. tuo perpetrata, audiend. et terminand. assign. apud L. in Com. tuo die Martis proxim. futur. ad respondend. nobis de diversis transgressionibus contempt. & offens. de quibus ipse indictatus existit & habeas ibi tunc hoc breve, Teste R.M. apud Lynton sexto die Ian. &c. Anno regni nostri, &c. Ad quem diem Willielmus Wendy Miles vicecom. predict. retorn, quod ipse non est inventus in balliva sua, et ipse non venit ideo praeceptum est sicut alias, &c.
The Capias alias.
praecipimus tibi sicut alias tibi praecipimus quod non omittas, &c. verbatim ut supra.
Ad quem diem, &c. ut supra, & ipse non venit ideò preceptam est vicecom. sicut pluries, &c.
The party may appeare gratis, and so avoide the Attachment, or arresting of his body, and that is the cause that the Entry is made, & ipse non venit.
The Pluries capias.
Iacobus, &c.
vicecom. &c. salut.
precipimus tibi sicut pluries preciperimus, quod non omittas, &c. ut supra.
Ad quem diem Willielmus Wendy Mil. vicecom. predict. retur. quod predict. C.D. non est inventus, &c. & ipse non venit, Ideò preceptum est quod exigi facias, &c.
The Exigent.
Iacobus, &c.
vicecom. &c. salut.
praecipimus tibi quod exigi fac. C.D. de A. in Com. tuo Yeoman, quousque secundum legem & consuetudinem regni nostri Angliae, utlagatur si non comparuit, & si compar. tunc cum capias & salvo custodiri fac. Ita quod habeas corpus ejus coram R.M. Mil. et M.D. ar. duobus Iusticiar. ad pacem nostram conservand. nec non ad diversa felonias, transgress. et alia malefacta in Com. tuo perpetrat. audiend. et terminand. [Page 301] assig. apud L. in Com. tuo [...] die Septembris prox. futur. ad respondendum nobis de diversis transgr. contempt. et offensis de quibus ipse indictatus existit, et habeas ibi tunc hoc breve, Teste R. M. apud L. octavo die Septembris, Anno Regni nostri, &c.
Ad quem diem Willielmus Wendey miles vicecom. predict. retorn. quod ad Com. tentum apud Killmainham die [...] Anno regni Domini regis nunc, &c. et sic ad quatuor alios Com. tunc prox. sequent. ibid. tent. predict. C. D. exactus fuit, et non comparuit. Ideò utlagatus fuit.
These Processe are sent forth to the end that either the party shall come, or be brought in to make his answere,Dalton 369. and to bee justiced by the Law, or else that (for his contumacy) he shall be outlawed, and so to be deprived of the benefit of law, but the power of the Iustice of peace endeth with the Outlawry, for they can make no capias utlagatum, but must certifie the Outlawry into the Kings bench.
Also all such Processe (aswell of capias, &c. as of Outlawry) may be stayed by a supersedeas, Dalton 369. issuing from other Iustices of peace (out of Sessions) testifying that the party hath come before them, and hath found sureties for his appearance to answer to the endictment or to pay his fyne, &c.
Note that this authority of the Iustice of Peace in sending out these Processe, being out of their sessions is beyond the bounds of their Commission, and againe by the CommissionThe Commission. 14. H. 7 8. Br. peace 6. 7. one Iust. of Peace alone cannot grant a capias, nor other Processe, but two Iustices of Peace at the least must doe it, and that sitting in the Court, and in their Sessions, and yet neverthelesse in these former cases, the statutes (expressely, or by necessary implication) giving such authority to the Iustices of Peace, or to any Iustice alone, and that out of Sessions are a sufficient warrant and Commission to the Iustice of peace, as it seemeth.
Traverse.
After that such Processe,Dalton 369. or any other Processe ad respondend. be awarded against the party, it seemeth he may come and yeeld himselfe to pay his fyne, or else he may offer his Traverse to the indictment found against him before the Iustice of Peace, and the Iustice ought to allow him his Traverse against it, which traverse is to take issue upon the chiefe matter of the indictment, or to deny the point of the indictment.
But although the Iustices of Peace have power in some cases as aforesaid (out of their generall Sessions) to take indictments, and after such indictment found to award processe ad respon. against offendors, and to heare, and determine thereof, and the offendors also have liberty to come in and to speake, and answere for themselves, and may offer their Traverse, and that the Iustices of peace are to allow of and to receive the same, yet quaere whether the Iustices of peace [Page 302] out of their generall Sessions may try such traverse being tendred to them, without which tryall all the rest may seeme idle, or that upon the traverse tendred they must certifie or send the Inquisition or indictment so found before them into the Kings Bench, or unto their quarter or generall Sessions of the peace, there to be tryed and determined, howsoever it is safest (after such traverse tendred) to certifie or deliver such Inquisition or indictment into the Kings Bench or to their next quarter Sessions, and so to referre the tryall of the traverse and further proceedings therein to them.
Certiorari.
The returne of a Certiorari, sent to remove an endictment may be thus.
First upon the backside of the writ of Certiorari endorse these or the like words.
Executio istius brevis patet in quadam scedula eidem brevi annexa.
And that schedule may be thus.
Ego Mich. Dalton unus Custod. pacis, ac Iusticiar. Dom. Regis ad pacem in dict. Com. Dublin conservand. necnon ad diversa felonias, transgr. et alia malefacta in eodem Com. perpetrata, audiend. et terminan. assig. virtute istius brevis mihi deliberati indictam. illud (unde in dicto brevi fit mentio) una cum omnibus idem indictamentum tangent. in Cancellar. dicti Domini Regis distincte et apertè sub sigillo meo certifico, In cujus rei testimonium, ego prefatus M.D. his presentibus sigillum meum apposui. Datum [...] die mensis [...] Anno Regni, &c.
Then take the record of the indictment and close it within the schedule and seale, and send them up both together.
Now to shew what is further meet for the Iustices of peace to know concerning this writ of Certiorari, and their certifying or returne thereof.
After an endictment found before Iust. of peace, a Certiorari is procured by the meanes of some party indicted or grieved, thereby to remove such indictment from the said Iust. and to convey it to Iust. of a higher authority, to the end the party may either traverse such endictment above, or may there avoyd it for insufficiency of forme or matter.
F [...]tz. Na. Br. [...]0. 245.And this Certiorari is the Kings writ issuing sometimes out of the Chancery, and sometimes out of the Kings Bench, and may be directed to any Court of Record, or officer of Record (as to a Iustice of peace, Sheriffe, Coroner, or Escheator) to be certified of any Record which is before any of them: and first an alias then a pluries, and lastly an attachment lyeth against them that should send it, if the Record be not certified accordingly or it seemeth a sub poena is used at this day.
If it be returneable into the Chancery then are the words in Cancellaria nostra, and if into the Kings Bench, then the words are coram nobis ubicun (que) &c. mittatis.
The Certiorari may be sometimes to remove,Fitz. Na. Br. fo. 245. and send up the Record it selfe, and sometimes but onely the Tenor of the Record (as the words therein be) and it must be obeyed accordingly.
If there be variance betweene the Certiorari, Plo. 393. and the Record which is to be removed, the Iustices need not to certifie such Record.
A Iustice of peace may deliver,Crompton fo. 132. a. and 133. b. or send into the Kings Bench an endictment found before him, or a Recognisance of the peace taken by him, or a force recorded by him without any Certiorari, but if a Iustice of peace having a Record with him, be discharged of his office, now he cannot certifie it without a Certiorari, although he be made a Iustice of the peace againe, See 8. H. 4. fo. 5. Br. Record 64.
If a Certiorari be to send up the indictment of A. in which endictment some others be endicted together with the same A. yet need not the Iustices of peace to make certificate concerning any but A. for although they be named joyntly, yet be they indicted severally, and the King may pardon A. without forgiving the other. 6. E. 4. 5. 6. Ed. 4. fo. 5.
If a Certiorari shall come to the Iustices to remove an endictment and the party sueth not to have it removed, but suffereth it to lye still,9. H. 7. 16. Br. Iudgement 17. yet it seemeth the Iust. of peace ought (ex officio) to send it away, because the writ containeth in it selfe a commandement to them so to doe, and so is a supersedeas, of it selfe to the Iust. of peace to stay their other proceedings.
And albeit the Certiorari be a supersedeas of it selfe,Fitz. Na. Br. 237. yet may the party upon the Certiorari purchased have a supersedeas also directed to the Sheriffe, commanding him that he arrest him not, Fitzh. fo. 237. in which place also he doubteth whether the Iustices of peace themselves ought not of duty to award their owne supersedeas to the same effect, after that the writ of Certiorari is brought to their hands.
If a Certiorari come to the Iustice of peace to remove an endictment and in truth the indictment was not taken till after the date of the Certiorari, yet if the endictment be removed thereby,Dalton 371. it is good enough, for that they both be the Kings Courts (1. R. 3. 4.) and in such case it is now usuall to remove it.
All the higher Courts at Dublin may write to the Iustices of peace to certifie their Records, that doe make for the tryall of causes in them depending, as you may reade 19. H. 6. 19. where they of the common place did send to the Iustices of peace for an endictment, because in a writ of conspiracy brought before them, it was materiall to have it.
In some cases the Iustice of peace may certifie a Record by him made,Dalton fo. 372. or found before him out of Sessions without any writ of Certiorari therefore to him directed, vide antea tit. forceible Entrie.
In other cases he must of duty certifie the proceedings, but may [Page 304] spare to certifie the Record untill a Certiorari come to him for it, see hereof antea title Suretie for the peace.
For the manner of the writ of Certiorari, to remove Records from one Court to another, or from the Iust. of peace or other officers of Record, to any the higher Courts of Dublin, &c. there are diverse formes and sorts thereof, as you may see in Fitz. Na. Br. fo. 242. &c.
I will onely set you downe one forme for all.
The forme of a Certiorari out of the Chancery, to certifie a Recog. taken by a Iustice of peace in the Country, for the keeping of the peace.
Iacobus Dei gratia, Angliae, Scotiae, Franciae, et Hiberniae, Rex fidei defensor,
custodibus pacis nostrae in Com. Dublin. et eorum cuilibet salutem,
volentes certis de causis Certiorari, super tenorem cujusdam securitatis pacis, vel boni gestus qua. A.H. ar. invenit coram vobis vel aliquo vestrum, de eo quod ipse damnum vel malum aliquod R.S. vel alicui alij de populo nostro, de corpore suo nec faceret, nec fieri procuraret quovismodi vobis mandamus quod tenorem securitatis pacis sive boni gestus predict. nobis in Cancellar. nostr. in octabis purificat. beatae Mariae virginis prox. futur. ubicun (que) tunc fuerit, sub sigill. vestr. vel unus vestrum distincte et apertè sine dilatione mittatis et hoc sub poena centum librarum nullatenus omittatis nec aliqu. vestr. omittat.
Teste meipso apud Dublin [...] die Novembris Anno Regni nostri, &c.
The returne hereof, See antea titulo Surety for the peace.
Concerning the surety of the peace.When a writ of supplicavit which in old time was called breve de minis as appeareth by the Register directed out of the Chancery, is delivered to a Iustice of peace, he is to direct his precept or warrant to compell the party upon that writ, to finde surety for the peace as appeareth by Fineux chiefe Iustice in 21. H. 7. fol. 20. the forme of which precept or warrant may be thus in English.
George Multon one of the Iustices of peace of our soveraigne Lord the Kings Majestie, within the County of Dublin,Com. Dublin. to the Sheriffe of the said County, and to all the high Constables of the severall baronies within the said County, and to all petty Constables and all and singular other the Kings Majesties Bailiffes and other ministers, aswell within liberties as without in the said County, and to every of them greeting. Know yee that I have received the commandement of our said soveraigne Lord the King by his Majesties writ of supplicavit in these words, reciting the whole writ of supplicavit, which is not alwayes of one forme, because it is sometimes directed to all the Iustices of the peace, sometime to them and the Sheriffe, and sometimes to one Iustice alone, or reciting only the effect of the supplicavit thus.
Know yee that I have received the commandement of our said soveraigne Lord the King by his Majesties writ of supplicavit, to compell A. B. of D. in the said County Yeoman to finde sufficient sureties for his Majesties peace by him to be kept toward C.D. of [Page 305] the same Towne of Dale in the said County Taylor, and therefore on the behalfe of our said soveraigne Lord I command and charge you joyntly and severally that immediately upon the receipt hereof you cause the said A.B. to come before me at my house in Dale in the County aforesaid, to finde sufficient surety and mainprise for the peace to be kept towards our said soveraigne Lord, and all his liege people and especially towards the said C.D. and if the said A.B. shall refuse thus to doe, that then you him safely convey, or cause to be safely conveyed, to his Majesties gaole in the said County, there to remaine untill he shall willingly doe the same, so that he may be before the Iustices of the peace of our soveraigne Lord within the said County at the next generall Sessions of the peace to be holden for the said County, there to answere to our said soveraigne Lord, for his contempt in this behalfe, and see that you certifie your doings in the premisses, to the said Iustices at the said Sessions bringing then thither this precept with you, Given at dale under my seale the fourth day of, &c:
The forme of the Recog. of the peace to be taken upon the said writ of Supplicavit.
Memorandum quod quarto die Iulij anno Regni Domini nostri Caroli Dei gratia, Angliae, Scotiae, Franciae, et Hiberniae, Regis fidei defensoris, &c.Com. Dublin. A.B. de E. in Com. Dublin predict. Yeoman, in propriae persona sua, virtute brevis dicti Domini Regis de Supplicavit apud S. in Com. pred. venit coram me I.L. Milite, uno Iusticiar. dicti Domini Regis, ad pacem in dicto Com. Dublin conservandam, assignatorum et assumpsit pro seipso sub poena viginti librarum et H.I. de L. in Com. predicto Yeoman et I.F. de M. in eodem Com. husbandman tunc et ibidem in proprijs personis suis similitèr vener. coram me, et manuceperunt pro predicto A.B. viz. quilibet eorum separatim sub poena decem librarum quod idem A.B. custodiet pacem dicti Domini Regis erga ipsum Dom. Regem et cunctum populum suum, et precipuè versus C.D. de E. Yeoman, et quod damnum vel malum aliquod corporale aut gravamen prefato C.D. aut alicui de populo dicti Domini Regis quod in laesionem aut perturbationem pacis ipsius Domini Regis cedere valeat, quovismodo non faciet nec fieri procurabit (or otherwise as the writ of supplicavit shall require) quam quidem summam viginti librarum pred. A.B. et quilibet manucaptorum predictorum pred. seperales summas decem librarum separatìm recognover. se debere dicto Dom. Regi de terris et tenementis bonis & catallis quorumlibet et cujuslibet eorum ad opus dicti Domini Regis haeredum et successorum suorum fieri et levari, ad quorumcun (que) manus devenerint si contigerit ipsum A.B. premissa vel eorum aliquod in aliquo infringere et inde legitimo modo convinci. In cujus rei testimonium ego pred. I.L. sigill. meum apposui datum, &c.
And this may be done also by a single Recognisance in latine with a Condition added or endorsed in english in manner following.
Memorandum quod [...] die, &c. Anno Regni, &c. virtute brevis Domini Regis huic Recognitioni annexat. apud T. in Com. DublinCom. Dublin. predict. venerunt coram me Henrico Martin Ar. uno Iusticiar. dicti Dom. Regis ad pacem in Com. predicto conservandam assignat. T.H. de K. in Com. predict. Yeoman et I.S. de Lan eodem Com. husbandman, et manuceperunt et uter (que) eorum separatim manucepit sub poena decem librarum legalis monetae Angliae pro W.S. de H. in Com. pred Taylor, et pred. W.S. assumpsit pro seipso sub poena vigint. librarum consimilis monetae Angliae quas quidem seperales summas recognoverunt, et quilibet eorum ut predicitur recognovit se debere dicto Domino Regi, de terris et tenementis bonis et Catallis suis, fieri et levari, ad opus dicti Domini Regis haeredum et successorum suorum, si pred. W.S. deficerit in performatione conditionis infrascripti.
The Condition of this Recognisance is such that if the above bounden I.S. shall keepe the peace of our soveraigne Lord the King, towards the Kings Majestie and to all his liege people, and especially towards A.B. of C. aforesaid Yeoman, that then the said Recognisance to be voyd or else, &c.
This Recognisance of the peace being thus taken by vertue of a supplicavit, the Iustice of peace being in this case but a Minister, and not a Iudge, must make returne of the writ and a certificate of his doing therein into the Court from whence the supplicavit did issue in this forme following, viz. upon the backe of the writ of supplicavit, he must write thus.
Executio istius brevis patet in quadam scedula eidem brevi annexa, and then subscribe his name to it.
The schedule may be thus, which must be fixt to the writ of supplicavit.
Ego T.F. miles unus custodu. pacis Dom. Regis in Com. Dublin certifico in Cancellariam dicti Domini Regis, me virtute istius brevis mihi per A.B. in eodem brevi nominat, primo deliberat. personaliter coram me [...] die, &c. apud Dale in Com. pred. venire fecisse T.R. in dicto brevi nominat. ac eundem T. ad sufficientem securitatem et manucaptores pacis inveniendam secundùm formam dicti brevis, viz. ad pacem Domini Regis erga ipsum Dom. Regem et cunctum populum suum et precipuè, &c. (as the writ shall appoint) compulisse, In cujus rei testimonium huic presenti certificationi sigillum meum apposui, datum apud D. in Com. pred. [...] die, &c. Anno Regni dicti Dom. Regis, &c.
The like certificate may be made into the Kings Bench if the writ of supplicavit issue out of that Court mutatis mutandis.
And if a Certiorari be directed out of the Chancery to the Iustice of peace, for removing this Recog. because it was not sent up together [Page 307] with the certificate as there is no necessity it should be, then that writ must be returned in this manner, viz:
Upon the backe of the writ the Iustice of peace must write thus.
Virtute istius brevis, Ego P.H. unus custodum pacis Domini Regis, in Com. Dublin, tenorem securitatis pacis unde infra fit mentio, dicto Domino Regi in Cancellariam suam sub sigillo meo distinctè et apertè mitto, prout patet in schedula huic brevi consuta: And the Iustice must hereunto subscribe his name.
The schedule must be thus.
Memorandum quod vicessimo die Iulij, &c. reciting the whole Recog. de verbo in verbum, and then conclude, in cujus rei testimonium ego predictus P.H. sigillum meum apposui dat. &c.
The like may be made into the Kings Bench mutatis mutandis, if the writ issue out of that Court.
If the supplicavit be against diverse, and the party that prosecuteth the same, will release his prayer of the peace against one of them, then the release ought to be certified for him, and the writ must be served for the rest, or else non est inventus may be certified for him that is released, and the writ served for the rest.
The forme of the Release may be thus.
Memorandum quod primo die Augusti, Com. Dublin. &c. C.D. de E. in brevi de supplicavit huic Relaxationi annex. nominat, venit coram me P. H. un. Iusticiar. ad pacem in Com. predict. conservand. &c. et gratis remisit et relaxavit quantum in se est securitat. per ipsum coram me versus supra nominatum C.D. petitam. In cujus rei testimonium ego prefatus P.H. sigillum meum apposui datum, &c.
The forme of a supersedeas (by a Iustice of peace) upon a writ of supplicavit against an Infant.
A.B. armiger, unus Iusticiar. Dom. Regis Caroli Dei gratia, &c. ad pacem in Com. Dublin Com. Dublin. predict. conservandam assignatorum vicecom. ejusdem Com. ac omnibus et singulis Ballivis, Constabularijs, ceteris (que) dicti Domini Regis Ministris, tam infra libertat. quam extra, in Com. predict. salut. Sciatis quod breve dicti Domini Regis recepi, in haec verba, Iacobus, &c. (reciting here all the writ verbatim) et quia I.B. de, &c. I.S. de, &c. et prefat. C.A. coram me prefato A.B. personaliter comparuer. et predictus I.B. et I.S. manuceperunt pro predicto C.A. qui infra aetatem 21. annorum existit, viz. quilibet manucaptor. predictor. in 20. l. quas recognover. se deber. dicto Domino Regi, ac concess. de terris et tenementis, bonis, et catallis suis, ad opus dicti [Page 308] Domini regis levand. viz. quod predict. C.A. damnum vel malum aliquod, alicui de populo dicti Domini Regis de corpor. suis, vel de incendio domor, suarum non faciet nec fieri procurabit quevismodo ideo ex parte dicti Domini regis vobis et cuilibet vestrum mando, quod de coarctan. aut attachand. dictum C.A. ad inveniendam aliquam securitatem pacis per ipsum observand. erga dict. Dom. Regem, et cunctum populum suum, seu alicui de eodem populo suo, coram vobis seu aliquo vestrum inveniend. supersed. seu supersed. fac. omninò & si ipsum C.A. occasione predict, & non alia ceperitis seu capi mandaveritis, & in prisona ipsius Dom. regis sub custodia vestra detineritis, tunc ipsum à prisona in qua detinetur sine dilatione deliber. fac. Teste me praefat. A.B. 20. die Novembris, Anno regni dicti Dom. regis, &c.
A Iustice of Peace may also by vertue of his office, and as he is a Iudge command this surety to be found, and this hee may doe either of his owne motion and discretion, or else at the request and prayer of another.
When it is at the Prayer of another he may make out his precept or warrant in this forme following.
Charles by the grace of God King of England, Scotland, France and Ireland Defendor of the Faith, &c.
To our Sheriffe of the County of Dublin,
Com. Dublin.
the Constable of the Barony of Castleknock, and to all and singular our Bailiffes and other our ministers in the said County aswell within liberties as without, greeting.
Forasmuch as A. B. of Kilmainham, yeoman, hath personally come before George Bring of the said Towne Esquire, one of our Iustices of the peace within the said County, and hath taken a corporall oath that hee is afraid that one C.D. of Killmainham in the said County yeoman, will beat, maime, wound or kill him, or burne his houses, and hath therewithall prayed surety of the peace against the said C. D. Therfore we command and charge you joyntly and severally that immediately upon the receipt hereof you cause the said C.D. to come before the said G.B. or some other of our Iustices of the said County to finde sufficient sureties and mainprise aswell for his appearance at the next quarter Sessions of our peace to be holden in the said County, as also for our peace to be kept towards us, and all our liege people and chiefly towards the said A.B. that is to say, that he the said C.D. shall not doe, nor by any meanes procure or cause to be done any of the said evils to any of our said people, and especially to the said A. B. And if the said C.D. shall refuse thus doe, that then immediately without expecting any further warrant, you him safely convey or cause to be conveyed to our common gaole in the said County, there to remaine untill he shall willingly doe the same, so that he may bee before our said Iustices at the said next generall Sessions of the peace [Page 309] to be holden in the County aforesaid, then and there to answere unto us for his contempt in this behalfe; And see that you certifie your doing in the premisses to our said Iustices at the said Sessions, bringing then thither this precept with you: witnesse the said G.B. at Killmainham aforesaid the fourth day of August. &c.
The like warrant may be in the name of the Iustice of peace himselfe in this forme following, viz.
A. B. Knight,Com. Dublin. one of the Iustices of the peace of our Soveraigne Lord the King within the County of Dublin,
To the Sheriffe of the said County, To the Constable of the Barony of C. and all other Constables, Bailiffes, and other his Majesties officers in the said County aswell within liberties as without, greeting.
Forasmuch as B.A. the wife of W.A. of D. in the said County Labourer hath required suretie of the peace against T.B. of the said Towne of D. Butcher, and withall hath taken her corporall oath before me, that shee requireth the same not for any private malice, hatred, or evill will, but simply that she is afraid of her life, or the hurting or mayming of her body or the burning of her houses; These are therefore to will and require you, and in his Majesties name to charge and command you, that immediately upon the sight hereof, you or one of you require the said T.B. to come before me, or some other of the Kings Majesties Iustices within the said County to finde sufficient sureties, aswell for the appearance at the next generall quarter Sessions of the peace to be holden for the said County, as also that the said T.B. shall in the meanetime keepe the Kings Majesties peace, aswell towards his said Majestie, as towards all his liege people, and especially towards the said B.A. and if he shall refuse so to doe, that then immediately you doe arrest and convey the said T.B. or cause him to be conveyed to his Majesties gaole of the said County, there to remaine untill he shall willingly doe the same, and see that you certifie your doings in the premisses to the Iustices at the said Sessions, and have you there this warrant
dated at, &c.
The forme of the Recognisance of the peace may be thus.
Memorand. quod die Anno regni Domini nostri Caroli Dei gratiâ, &c. R. P. de E. in Com. Dublin. praedict. Yeoman, Com. Dublin. in propria persona sua apud F. in Com. praedict. venit coram me Rogero Thorneton Armigero uno Iusticiar. dicti Domini Regis ad pacem in dicto Comitat. conservandam assignat. & assumpsit pro scipso sub poena viginti librarum. Et H.I. de L. in Com. praedicto Yeoman & M.N. de &c. Husbandmen tunc & ibidem in propriis personis suis similiter venerunt, & manuceperunt pro predicto R.P. viz. quilibet corum separatìm sub poena decem librarum, quod idem R.P. personaliter comperebit coram Iusticiariis dicti Domini Regis [Page 310] ad pacem ad proximam generalem Sessionem pacis in Com. predict. tenend. ad faciend. & recipiendum quod ei per Curiam tunc & ibidem injungetur, & quod ipse interim pacem dicti Domini regis custodiet, erga ipsum Dominum regem & cunctum populum suum & praecipuè versus M.N. de D. praedict. Yeoman, & quod damnum vel malum aliquod corporale aut gravamen praesato M.N. aut alicui de populo dicti Domini Regis, quod in laesionem aut perturbationem pacis ipsius Domini regis seu praefati M. cedere valeat, quovismodi non faciet nec fieri procurabit, quam quidem summam viginti librarum praedictus R.P. & quilibet manucaptorum praedictorum predictas seperales summas decem librarum recognoverunt se debere dicto Domino Regi de terris & tenementis, bonis & Catallis suis, quorumlibet & cujuslibet eorum ad opus dicti Domini Regis haeredum & successorum suorum fieri & levari, ad quorumcunque manus devenerint, si contigerit ipsum R.P. praemissa vel eorum aliquod in aliquo infringere, & in de legitimo modo convinci. Datum apud, &c.
Or the like may be upon a single Recognisance with a Condition in forme following.
Memorand. quod die Anno Regni Domini nostri Caroli Dei gratia, &c. venerunt coram me M.D. uno Iusticiar. &c. assignat. T.H. de W. in praedicto Com. DublinCom. Dublin. Yeoman, & I.S. de ijsdem villa & Comitatu Husbandman & manuceperunt & uterque eorum separatìm manucepit sub poena quinque librarum legalis monetae Angliae pro W.S. de W. praedict. Taylor, Et praedictus W.S. assumpsit pro seipso sub poena decem librarum consimilis monetae Angliae, quas quidem seperales summas recognoverunt & quilibet eorum ut predicitur recognovit se debere dicto Domino Regi de terris & tenementis, bonis & Catallis suis fieri & levari, si predictus W.S. deficerit in performatione conditionis subsequentis.
The Condition of this Recognisance is such, that if the above bounden W.S. shall personally appeare before the Iustices of our said Soveraigne Lord the King at the next generall Sessions of the peace to be holden in the said County of Dublin, to doe and receive that which by the Court shall be then and there enjoyned him, and in the meanetime doe keepe the peace of our said Soveraigne Lord the King towards the Kings Majestie and all his liege people, and especially towards A. B. of C. in the County aforesaid Yeoman, That then the said Recognisance to be voide, or else, &c.
The forme of a Supersedeas for the peace may be thus.Com. Dublin.
A. B. Esquire, one of the Iustices of peace of our Soveraigne Lord the Kings Majestie within the County of Dublin,
To the Sheriffe, Bailiffes, Constables, and other the faithfull ministers, and subjects of our said Soveraigne Lord within the said County, and to every of them sendeth greeting.
Forasmuch as A.B. of &c. Yeoman hath personally come before me at, &c. and hath found sufficient surety (that is to say, C.D. and E.F. &c. Yeomen,The supersedeas is good though it name neither the sureties nor the summes. either of which hath undertaken for the said A.B. under the paine of Twenty pounds, and the said A.B. hath undertaken for himselfe under the paine of forty pounds) that he the said A.B. shall well and truely keepe the peace, towards our said Soveraigne Lord, and all his liege people, and especially towards G.H. of &c. Yeoman. And also that he shall personally appeare before the Iustices of the peace of our said Soveraigne Lord, at the next generall Sessions of the peace to be holden for the said County of Dublin, Therefore on the behalfe of our said Soveraigne Lord, I command you, and every of you that you utterly forbeare and surcease to arrest, take, imprison, or otherwise by any meanes for the said occasion, to molest the said A.B. and if you have, for the said occasion, and for none other taken or imprisoned him, that then you do cause him to be delivered, and set at liberty without further delay. Given at D. under my seale this last of Iuly, &c.
The forme of the precept or warrant for the good behaviour may be thus.Concerning the good behaviour.
I. S. Knight, one of the Iustices of peace of our Soveraigne Lord the Kings Majestie, within the County of Dublin,
To the Sheriffe of the said County, and to all high Constables, petty Constables, and to all and singular Bailiffes, and other his Majesties Officers, and Ministers aswell within liberties as without, in the [...] County and to every of them greeting.
Forasmuch as A.B. [...] in the said County labourer is not of good name or fame, nor of honest conversation but an evill doer, a Riotter, Barretor, and perturber of the peace of our said soveraigne Lord, I command you and every of you, that immediately upon sight hereof, you cause the said A.B. to come before me, or some other of my fellow Iustices to finde sufficient surety and mainprise aswell for his good abearing towards our said soveraigne Lord, and all his liege people untill the next generall Sessions of the peace to be holden in the said County, as also for his apparance then and there, and if he shall refuse so to doe, that then immediately, without expecting any further warrant, you him safely convey or cause to be safely conveyed to his Majesties gaole in the said County, thereto remaine untill he shall willingly doe the same, so that he may be before his Majesties Iustices at the said next generall Sessions of the peace to be holden in the said County, then and there to answere for his contempt in this behalfe, and see that you certifie your doings in the premisses to the said Iustices, at the said Sessions, bringing then thither this precept with you
dated at, &c.
Or it may be thus.
I. S. Esquire, one of his Majesties Iustices, &c. (as in the next precedent president) Forasmuch as I have beene credibly informed that A.B. of C. in the said County labourer, is a man of evill behaviour, one that dayly moveth discord, strife, and dissention amongst his neighbours, and a common perturber of his Majesties peace: These are therefore in the Kings Majesties name to command you, &c. as in the former president.
This warrant for the good behaviour, although it may be granted by one Iustice of peace alone, yet it is usually granted by two and may be also in Latine in this forme following.
Iohannes Payton Miles et Willielmus Woodhouse Miles Iusticiarij Dom. Regis nunc ad pacem in Com. Dublin conservandam assignat. vicecom. Com. predict. nec non omnibus et singulis Ballivis, Constabularijs ceteris (que) dicti Domini regis ministris, tam infra libertat. quam extra, in eodem Comitat. salutem. Quia datum est nobis intelligi per relationem et testimonium multorum fide dignorum Com. predict. quod A.B. de C. in Com. pred. generosus, et C.A. de eadem Yeoman non sunt bonorum nominis, et famae nec conversationis honestae sed malae famae et mali gestus, ac malae dispositionis, Barratores, et pacis dicti Domini Regis perturbatores, Ita quod veresimilis sit murderum, homicidium, lites, discordias et alia gravamina et damna, interligeos dicti Domini Regis, de corporibus suis pretextu, premissorum in dies oriri, Ideo ex parte dicti Domini Regis, vobis et cuilibet vestrum precipimus, quod non omittat. propter aliquam libertatem in Com. pred. quin attachatis, seu unus vestrum attachiat, prefat. A.B. et R.A. Ita quod habeat, eos coram nobis seu alijs sociorum nostrorum Iusticiariorum dicti Domini Regis ad pacem in Com. predict. conservandam, ad proximam generalem sessionem pacis in eodem Com. tenend. ad inveniend. tunc coram nobis (vel dictis Iusticiarijs) sufficientem securitatem de se bene gerend. erga dict. Dom. Regem et cunctum populum suum, juxta formam statut. inde edit. et provis. sub certa poena eis per nos vel per prefat. Iusticiar. tunc imponend. Et hoc nullatenus omittatis periculo incumbente. Et habeat, coram nobis vel dictis Iusticiarijs apud sessiones predict. hoc preceptum. Testibus nobis pred. I.P.W.W. ultimo die Iulij anno regni dicti domini nostri Caroli Dei gratia Angliae, &c.
Upon good sureties taken for the good behaviour, a Supersedeas may be granted for the good behaviour aswell as for the peace, and the same may be in the same forme, as the supersedeas for the peace is mutatis mutandis.
Libro intra. fo. 61. Cromp. 232. Many other Supersedeasses may be granted by the Iustice of peace out of Sessions for otherwise it were mischievous for the party, aswell [Page 313] by reason of his imprisonment as also for that otherwise he may be outlawed before the Sessions, if the Iustice of peace, Dalton 333. might not take sureties of him for his appearance.
And Master Crompton is of opinion that these may be granted by any one Iustice of peace, with whom agreeth the booke of Entries, Cromp. 234. but Master Lamberd thinketh it not in the power of any one Iustice of peace, to grant such supersedeas at this day, li. intr. 601 but that it must be done by two Iustices at the least, and the one being of the Quorum, neverthelesse for that I finde the old presidents to run in the name of one Iustice of peace alone, I have drawne these accordingly, notwithstanding I would advise the joyning of two Iustices herein, the one to be of the Quorum, if they may conveniently begotten.
A Supersedeas de capias indictatum de transgressione.
Iohannes Richardson sacrae Theologiae doctor, unus Iusticiar. dom.Com. Dublin. regis nunc ad pacem in Com. predicto conservandam, necnon ad diversa felonias, transgressiones, &c. in eodem Com. audiend. & terminand. assignat. vicecom. Comitat. predict. salutem. Quia C.D. de A. in Com. predict. Yeoman apud Dale in Com. predict. venit coram me & invenit sufficien. manucaptores essendi coram Iusticiar. dicti Domini regis ad pacem in Com. predict. conservandam necnon ad diversa felonias, transgressiones, &c. in dicto Com. audiend. & terminand. assignat. ad proximam generalem sessionem pacis apud C. in Com. predicto tenend. ad respondend. dicto domino regi de quibusdam transgr. contemptibus & offensis, unde indict. existit. Ideo ex parte dicti domini regis tibi praecipio quod de capiend. prefat. C.D. seu ipsum imprisonand. aut eum ea ex causa aliqualit. molestand. omnino supersed. & si eum ea ex causa, & non al. ceperis, tunc ipsum sine dilatione deliber. facias. Teste me prefato Iohanne Richardson tal. die & Anno, &c.
Alias quia invenit plegios pro fine.
Samuel Collins sacrae Theologiae doctor unus Iusticiar. dicti dom.Com. Dublin. regis ad pacem in Com. predicto conservandam necnon ad diversa felonias, transgress. & alia malefacta in eodem Com. audiend. & terminand. assignat. vicecom. Com. predicti, ac omnibus & singulis Ballivis, Constabulariis,Cromp. 234. ceterisque dicti Domini regis ministris, tam infra libertates quam extra in Com. predicto salutem, licet nuper per breve dicti Dom. regis vobis seu uni vestrum preceptum fuit, quod caperetis seu unus vestrum caperet A. B. de S. in Com. predicto Yeoman, si inventus fuerit in eodem Comitatu & ipsum salva custod. Ita quod haberetis seu unus vestrum haberet corpus ejus coram custodibus pacis, ac Iust. dicti Domini regis ad pacem in Com. predicto (necnon ad diversa felonias, transgress [...]ones, & alia malefacta in eodem Com. audiend. & Terminand. assignat.) apud Killmainham tali die ad respondend. dicto domino regi de contemptibus & transgressionibus unde, coram dictis Iusticiariis indictatus existit, quia modo predictus A. B. apud [Page 314] Dale in Com. predict. venit coram me & invenit sufficientem plegios pro fine suo, cum dicto domino Rege pro premissis faciend. Ideo ex parte dicti domini regis vobis conjunctim & divisim mando, quod ad executionem brevis predicti ulterius fac. supersedeas omninò, & si ipsum A.B. ea occasione & non alia ceperitis, & in prisona dicti Domini regis detineritis tunc ipsum sine dilatione ab eadem deliber. fac. seu unus vestrum deliber. faciat. & habeatis seu unus vestrum habeat hoc preceptum ad sessionem predictam. Dat. &c. die August. Anno regni Domini nostri Caroli dei gratiâ, &c.
Another Supersedeas de capias pro fine.
Com. Dublin.Henricus Vernon ar. unus Iusticiariorum dom. regis nunc ad pacem in Com. Dublin conservand. assignat. vicecom. Com. predict. salutem, quia C.D. de A. in Com. predict. Yeoman, Cromp. 234. apud Dale in Com. predict. venit coram me, & invenit sufficien. manucaptores essendi ad pr [...]mam generalem sess. pacis in Com. predict. tenend. ad faciend. finem cum dicto Domino rege, pro quibusdam transgressionibus, contemptibus, & offencis, unde indictatus existit, Ideo tibi precipio quod de capiend. prefat. C.D. imprison. seu ipsam ea occasione aliqualit. molestand. omninò supersed. & habeas ibi tunc hoc preceptum. Teste me, &c.
A Supersedeas de Capias indictat, de felonia.
Com. Dublin.Franciscus Brakin armiger, unus Iusticiar. Domini Regis, nunc ad pacem in Comitat. pradicto conservand. assign. vic. comitat. pradict. Necnon omnibus & singulis ballivis,Crom. 234. Constab. ceterisque dicti Domini regis ministris tam infra libertates quam extra in dicto comitatu salutem: Quia A.B. de C. in Com. praedict. Husbandman, venit coram me, & inven. sufficient. securit. essendi coram Iustic. dicti domini regis ad pacem in Com. predict. conservand. Necnon ad diversa felonias, transgr. & alia malefacta in eodem Com. audiend. & terminand. assign. ad prox. general. sess. pacis in Com. pred. tenend. ad respond. dicto Domino regi, de divers. felon. & transgr. unde coram eis indict. existit, Ideo ex parte dicti Dom. regis vobis & cuilibet vestrum mando, quod de capiend. praed. A. B. ea ex causa supersed. omnino. dat. &c.
Cromp. 233.Supersedeas de exigi facias de felonia.
Carolus, &c. vic. Com. Dublin, salutem. Quia C. D. de A. in com. tuo Yeoman, venit coram E. F. &c. invenit sufficien. manucaption. essendi coram custod. pacis nostrae apud C. tali die tenend. ad respond. nobis de quibusdam felonijs unde indictatus est, Ideò tibi praecipimus quod de ulterius exig [...]nd. praefat. C. D. ad aliquod Comitat. tuum, vel imprisonand. five ipsum ea occasione aliqualiter molestand. omninò supersed. & habeas ibi tunc hoc breve. Teste Roberto Castle apud H. tali die & anno.
Severall other Presidents.
A generall warrant for misdemeanor.
To the Constables of, &c.
These are to will and require you,Com. Dublin. and in his Majesties name straightly to charge and command you, and either of you, that immediately upon the sight hereof (or upon Monday next by eight of the clocke in the forenoone) you bring I. H. of your said Towne Butcher, before me to answere unto such matters of misdemeanor, as on his Majesties behalfe shall be objected against him. And hereof faile ye not at your perill. Dated at, &c.
Another for Misdemeanor.
These are to w [...] and require you, &c.Com. Dublin. That immediately upon the sight hereof, you attach the bodies of A.B. and C.D. &c. or of all and every the persons hereunder named, And to bring them forthwith before me, to answere unto such matters of misdemeanor as on his Majesties behalfe shall bee objected against them. And hereof faile ye not at your perils. Dated &c.
A warrant for one who hath dangerously hurt another.
Forasmuch as I am credibly informed, that I. B. Com. Dublin. of your Towne Blacksmith, hath now lately dangerously hurt one T.G. of your said Towne husbandman, by a blow which he hath given the said T. on the face, and another on the backe, so as the said T. is in danger of death thereby; These are therefore in the Kings Majesties name straightly to charge and command you, that immediately upon the sight hereof you or one of you doe bring the said I. B. before me, or some other his Majesties Iustices of the Peace of this County, to finde sufficient sureties aswell for his appearance before the Kings Majesties Iustices, at the next generall Gaole delivery to bee holden for this County, then and there to answere unto the premisses; As also that he the said I.B. shall in the meane time keepe the Kings Majesties peace towards his said Majestie, and all his liege people, and especially towards the said T.G. And hereof faile you not at your perils. Dated &c.
A warrant for a generall search for Rogues.
To the high Constables of the Barony of, &c.
These are in the Ki [...]gs Majesties name to charge and command you,Com. Dublin that you [...] [...]ith the petty Constables of the severall Townes, Parishes, and Hamlets, within your Barony (taking sufficient assistance out of the said Townes) doe make a generall privy search [Page 316] within every of the said severall Townes, Parishes, and Hamlets, upon [...] at night next comming, for the finding out and apprehending of all Rogues, Vagabonds, and wandring and idle persons, in or about the said severall Townes, Parishes, or Hamlets, and that such as shall be found and apprehended, you doe cause them to be brought before us the next day unto K. by 9. of the clocke, there to be by us dealt withall according to the statutes in that behalfe provided. At which time and place we further require you, together with the said petty Constables to appeare before us, and there to give an account and reckoning upon oath, in writing, and under the hands of the Minister of every severall Parish within your Barony what Rogues,What the Iu. shall doe with them, see infra the title Rogues. Vagabonds, wandring and disordered persons have bin there apprehended, aswell in the same search as also since the last assembly and meeting that was made for this purpose being upon or about the [...] day of [...] last past. And hereof faile you not, &c.
Note, that all RoguesSee the title of Rogues. which shall be brought before the Iustices upon such search (after examination of their idle life, taken by the Iustices) are either to be whipped by the Constables of the Towne where the Iu. sit.11. Caroli ca. 4. in Ireland. Or else from thence are to be sent to the house of correction, and to be conveyed thither by the Constables that brought them, which services imposed upon the Constables, are some cause of their neglect of this service, and therefore I have set downe another course and president perhaps no lesse serviceable, which also may be performed and done every moneth, or every meeting of the Iustices, if need shall so require: or if the Iustices cannot, or shall not meete, yet it seemeth, such warrant may be granted out by any one Iustice of peace as followeth.
These are in the K. Majesties name, to charge and command you, that you together with the petty Constables of the severall Townes, Parishes, and Hamlets, within your Barony (taking sufficient assistance out of the said Townes) doe make a generall privy search within every of the said severall Townes, Parishes, and Hamlets, upon [...] at night next comming, for the finding out, and apprehending of all Rogues, Vagabonds, and wandring idle persons in or about their said severall Townes, and that such as shall be found and apprehended, you doe cause them to be punished in every severall Towne or Parish where they shal be so apprehended, by the petty Constables of every severall Parish respectively, and by them also further to be conveyed according to the statute. And if any of the said Rogues shall appeare to be dangerous or incorrigible, that then you cause such to be brought before me, or any other of his Majesties Iustices of peace, to be further dealt withall according to the statute in such cases provided, dated, &c.
Afterwards any one of these Iustices may take the examination of, or proofe against such dangerous Rogues, & finding cause, may then [Page 317] commit such Rogues to the gaole, and from thence he may by two Iustices of peace be sent to the house of correction.
A warrant for a fugitive servant.
Iohn Cuts Knight one of the Iustices of the peace of our soveraigne Lord the King, &c. To the Baliffes of the Barony of C. and to T.H. Constable of M. in the County of DublinDublin. greeting. Whereas E. L. hath beene retained to serve I. T. of M. aforesaid, according to the forme and effect of a statute made for servants, without just cause or licence of the said I.T. hath departed from his service, Therefore on the behalfe of our soveraigne Lord the King I charge and command you and every of you that immediately after sight hereof you cause the said E.L. to be delivered to his said master to serve him, and if he shall refuse so to doe, that then you cause him to be convayed to his Majesties gaole of the said County of Dublin there to remaine untill he shall doe the same: So that you may have him before me and the rest of my fellow Iustices at the next Sessions of the peace to be holden for the said County to receive such punishment as shall be then and there inflicted upon him, sealed with my seale [...] dated, &c.
Or thus in Latine.
Iohannes Cutts Miles, unus Iusticiar. Domini Regis, &c.Com. Dublin. Ballivis Baroniae de C. et T.H. Constabular. de M. in comitatu praed. salut. Quia E.L. retentus in servic. I.T. de M. predict. sibi serviend. (secundum formam et effectum statuti de servientibus edit.) à servitio pred. I.T. sine causa rationabili, et licentia ipsius I. T. recessit (ut dicitur) ideo ex parte Domini Regis vobis et cuilibet vestrum praecipio, quod praef. E.L. ad praefat. I.T. magistrum suum deserviend. deliberar. faciat.West. [...]78. Et si hoc recusaver. tunc eum gaolae Com. praedict. duci faciatis, quous (que) &c. Ita quod eum habeatis coram me et socijs meis Iustic. dicti Dom. Regis in Com. praed. ad prox. sess. pacis ibid. tenend. ad faciend. et recipiend. ea quae ei tunc et ibid. in hac parte objicientur. Sigill. meo. sigillat. dat. apud.
Another for the same.
Simon Steward Knight one of the Iustices of the peace of our soveraigne Lord the King, &c. To the Sheriffe of the County of DublinDublin. and also to I.B. Constable of the Towne of B. and to R.N. Bailiffe Itinerant in the same County, and to every of them greeting. On the behalfe of our soveraigne Lord the King I command you and every of you that you or one of you attach the bodie of W.R. of B. aforesaid Labourer, so that you or one of you have him before me and the rest of my fellow Iustices of our soveraigne Lord the King in the County aforesaid at the next generall Sessions of the peace to be holden [Page 318] in the aforesaid County to answer aswell to our said soveraigne Lord the King, as to R.C. of, &c. Yeoman, wherefore he being lately retained in the service of the said R. at T. in the County aforesaid from the said service before the end of the terme betwixt them agreed upon, without just cause or licence of him the said R. hath departed in contempt of our soveraigne Lord the King, and to the great damage of him the said R. and contrary to the forme of the statute in that case provided. And that you or one of you have then there this precept, witnesse, &c.
Or thus in Latine.
Com. Dublin.Simeon Steward Miles, unus Iustic. &c. vic. Com. pred. Necnon I. B. Constabular. vill. de B. et R. N. ballivo itineranti in eodem Com. et eorum cuilibet salutem. Ex parte dicti Domini Regis vobis et cuilibet vestrum mando,Cromp. 238. quod attach. seu unus vestrum attach. W.R. de B. pred. Labourer, ita quod eum habeatis, seu unus vestrum habeat, coram me et socijs meis Iustic. dict. Dom. Regis ad pacem in Com. pred. conservand. Necnon et assign. ad prox. general. sessionem pacis in Com. pred. tenend. ad respondend. tam dicto Dom. Regi, quam R.C. de, &c. Yeoman, quare in servitio ipsius R. apud T. in Com. pred. nuper retentus, ab eodem servitio ante finem termini inter eos concordat. sine causa rationabili et licenc. ipsius R. recessit, in Dict. Dom. Regis nunc contemptum et ipsius R. grave damnum et contra form. statut. inde edit. et provis. Et habeatis seu unus vestrum habeat, ibi tunc hoc preceptum, Teste, &c.
A warrant for one refusing to serve.
Roger Millisent Knight one of the Iustices of the peace of our soveraigne Lord the King, &c. To R.L. Bailiffe of S. in the County of DublinDublin. greeting. On the behalfe of our soveraigne Lord the King I command you that you attach the body of R.A. of S. aforesaid Labourer, so that you have him before me or my fellow Iustices of the peace in the County aforesaid, at the next generall Sessions of the peace to be holden in the said County, to answere aswell to our said soveraigne Lord the King as to B.C. of A. &c. Yeoman, wherefore he the said R.A. although he were often required to serve the said B.C. in a competent service for his estate, yet notwithstanding he the said R.A. hath altogether refused to serve the said B.C. in contempt of our soveraigne Lord the King, and to the great damage of him the said B.C. and contrary to the forme of the statute for servants in that case lately made and provided. And see that you have this warrant there, witnesse, &c.
Or thus in Latine.
Rogerus Millisent miles,Co. Dublin. unus Iustic. &c. R.L. ballivo de S. in Comit. pred. salut. Ex parte dicti Dom. Regis tibi mando quod attach. R.A. de S. pred. Labourer, Ita quod eum habeas coram me vel socijs meis Iustic. dicti Dom. Regis ad pacem in Com. pred. conservand.Cromp. 238. (Necnon ad diversa felonias transgr. et alia malefacta in eodem Com. audiend. et terminand. assig.) ad prox. general. sess. pacis in Com. pred. tenend. ad respondend. tam dicto Domino Regi quam B.C. de A. &c. Yeoman quare ipse pred. R.A. licet in servitio congruo pro statu suo, per pref. B.C. fuit saepius requisitus ei servire ipsum tamen B.C. servire penitus recusavit, in contempt. dicti Domini regis, et ipsius B.C. grave damnum, et contra formam statuti de servientibus edit. et provis. Et habeas ibi tunc hoc mandat. Teste, &c.
A warrant for the suppressing of an Alehouse.
Iohn Cage Knight, and Edward Hinde Knight two of the Kings Majesties Iustices of the peace within the said County of Dublin,Co. Dublin. to the Constables of B. and to either of them greeting. Whereas we are credibly informed that R.D. of your Towne victualler, is himselfe a man of evill behaviour, and besides doth suffer evill rule and disorder to be kept in his house, contrary to the Lawes and statutes of this Realme: These are therefore in his Majesties name to will and command you forthwith to repaire to the house of the said R.D. and to charge him to surcease from keeping any longer any Alehouse or Tipling house, and from common selling of Ale or Beere at his perill, and withall that you cause his Signe to be pulled downe, hereof faile you not as you and either of you will answere to the contrary at your perill, Given under our hands and seales at B. the [...] day of [...] And in the yeare of the Raigne of our most gratious soveraigne Lord Charles, &c.
A warrant for the removing of a petty Constable and for the swearing of another.
Carolus Dei grat. &c. vic. Com. Dublin. Co. Dublin. Necnon Capitali Constab. Baroniae de C. et eorum cuilibet salut. Quia W. P. et R.S. subconstabular. villae de C. et K. (certis de causis nos moventibus) ab officio suo amoveri et exonerari fecimus, Ideo vobis et cuilibet vestrum conjunctim et divisim praecipimus et mandamus quod I.F. et R.M. ad omnia et singula eidem officio incumbentia bene et fidelitèr exercenda et exequenda, prout ipsi nobis inde respondere voluerint coram aliquo Iusticiar. nostr. ad pacem in Com. pred. conservand. jurare faciatis. dictis (que) W.P. et R.S. similiter injungentes quod ipsi de dicto offic. ulterius exercendo et exequendo nullatenus se intr [...]mittant, quous (que) aliud de nobis habuerint in mandatum, et quicquid inde feceritis, Iustic. nostris ad pacem nostram in dicto Com. conservand. assign. ad prox. general. sess. pacis apud C. in dicto Com. tenend. certificetis, hoc precept. nostrum tunc et ibid. remittentes. Test. I.R. Milite, uno Iustic. nostrorum praed. tali die, &c.
This authority of removing petty Constables and of chusing and [Page 320] swearing new, is reputed properly to belong to the Leete (it being one of the most ancient Courts in the Realme Br. Leet. 14.) and if the new elect be not present at the Leet to take his oath accordingly, then upon certificate or notice thereof to any Iu. of P. of that County, the Iust. doth use to send his warrant for the party so chosen and to give them their oath.
Also in default of the Leet, or otherwise, where there shall be just cause, every Iust. of peace (ex officio as it seemeth) may remove the old Constables, and may chuse and sweare new, which also we see to be warranted by common experience. And I have seene some presidents to such purpose as followeth.
To our loving friend A. B. of W. Yeoman.
These are in his Majesties name to charge and command you, to make your repaire unto us, or to some other Iust. of P. of this County, to take the oath of a Constable to serve his Majesty within the Towne of W. according to the choice made of you by the Iury at the last Leet holden in your Towne. And hereof faile you not, dated &c.
The forme of the oath concerning the office of a Constable.
You shall sweare that you shall well and truely serve our soveraigne Lord the King in the office of a Constable: you shall see and cause his Majesties peace to be well and duely kept and preserved according to your power, you shall arrest all such persons, as in your sight and presence shall ride or goe armed offensively, or shall commit or make any Riot, Affray, or other breach of his Majesties peace you shall doe your best endeavor (upon complaint to you made) to apprehend all Traitours, Felons, Barretors, and Riotters, or persons riotously assembled, and if any such offendour shall make resistance (with force) you shall levy Huy and Cry, and shall pursue them untill they be taken, you shall doe your best endeavor that the watch in your Towne be duely kept and that Huy and Cryes be duely pursued according to the statute of Winchester. And that the statutes made for the punishment of Rogues and Vagabonds, and night walkers, and such other idle persons comming within your bounds or limits, be duely put in execution, you shall have a watchfull eye to such persons as shall maintaine or keepe any common house or place where any unlawfull game is or shall be used. As also to such as shall frequent or use such places or shall use or exercise any unlawfull games there or elsewhere, contrary to the Lawes and statutes of this Kingdome, you shall well and duely execute all precepts and warrants to you directed from the Iustices of P. of this County, and you shall well and duely according to your knowledge power and ability doe and execute all other things belonging to the office of a Constable so long as you shall continue in this office. So helpe you God.
This oath I have set downe the more largely, thereby to shew the principall matters whereof the Constables are chiefely to have care.
Libri primi Finis.