CHAP. I. The Antiquity of a Justice of the Peace, his Power, and what he may do, the Execution of his Office in many material Cases.

THE Power of a Justice of the Peace is very great, and is a main Propp and Pillar, of good Go­vernment, in taking Care to pre­vent and Punish Offences, where­by the Peace is Conserved, and Men maintained in their Rights, and the Possessions of their Goods and Chattels, &c. peaceably; whereas, were there not such Over-awing Magistrates, Offenders would be Imboldened to make more [Page 2] frequent Depredations, and Strength and Vio­lence would seize upon what the Weaker could no ways defend against them, were not the Law by this means very much their Aid and Safe­guard. This Office is of great Antiquity, and has all along held up a venerable Esteem, and Good-liking among the People, who find great Advantage, and Benefit by those so Commissioned, being usually Men of Estates, Discreet, and Ju­dicious, capable of discerning Truth from False­hood, and to relieve the Injured, and restrain Oppressors, to punish Criminals, and Discharge the Innocent and Faultless.

Justices of the Peace were Created, 1 Ed. 3. Chap. 15. Dalt. 6. Lamb. 10.

But they were first named so by 36 Edw. 3. Chap. 12.

A Justice of the Peace is a Judge of Record, from whence called Justices, and before 1 Ed. 3. they were called Conservators. 3. Cro. 29, &c. He may take Recognizance of Peace, which none can do but a Judge of Record, Lam. 186. Dalt. 8. Crompt. 196. a Num. 1.

He is called Commissioner of the Peace, by reason he is Authorized by the King's Commissi­on, so Custos Pacis, or Keeper of the Peace, the same with Justiciarius Pacis, or Justice of the Peace. And the Constitution of Justices of Peace is Inherent, and Inseparable from the Crown, Stat. 27. Hen. 8. And this Power cannot be Transferred, 20 H. 7.

His Warrant is not to be disputed by the Con­stable for any thing wherein he hath Jurisdiction of the Cause, Dalt. 8. Cap. 147. 6. &c.

In some Cases the Testimony of a Justice of the Peace is of as great Force, and in some Cases greater than an Indictment of 12 Men upon [Page 3] Oath, viz. In Case of Presentments of Highways, Force, Riot, Dalt. 9. Lamb. 65.

A Justice of the Peace being Assaulted, may Commit the Party so offending to prison, Dalt. 371. Lamb. 134. Crompt. 68. a. If a Justice see one about to make an Affray, and charge him to keep the Peace, and he answers he will not, he may bind him to his good Behaviour, Dalt. 294.

A Justice of the Peace must proceed by Prescript of the Statute and Commission, Dalt. 22.

Where the Statute referre to the Tryal to the Justice's Discretion, it seemeth he may examin upon Oath, Dalt. 20. Every Justice of the Peace is a proper Conservator of Rivers within his County, Lamb. 189. And Justices of the Peace at Sessions are of equal Authority, Lamb. 385, &c. Vide Crompt. 122. a Nu. 33.

If a Felon be brought before a Justice of the Peace upon suspicion, though it appear to the Justice, he be not guilty, nevertheless he may not be set at Liberty, but so that he may come to his Tryal, Lamb. 233. Dalt. 389. Cro. 40. b. Nu. 20. Otherways it will prove a voluntary Escape in the Justice; for he is not to be delivered by any Man's Discretion, Dalt. 8. Lamb. 223.

CHAP. II. What may be done by a Justice of Peace, Ex Of­ficio, &c.

HE may Record a Demurrer upon Evidence, Lamb. 539.

He may give Day to the Party to bring in Re­cords, which is before other Justices, which is Pleaded by way of Justification, Lamb. 539.

[Page 4]In Absence of the King's Attorney, a Justice of the Peace may take Issue with one that Plead­eth a Pardon, that he is one of the Parties Excep­ted, Lamb. 540.

A Justice of the Peace may take Money for the Security of the Peace, in deposito, where Bail cannot be procured, and which, upon the Party so depositing the Money, breaking the Peace shall be forfeited to the King. Just. Berkley, 1 Cro. 446.

If upon supposing an Indictment to be void, the Justices have discharged the Prisoner, paying his Fees, yet upon change of their Opinion, they may stay him any time before Judgment. Lamb. 540.

Justices of the Peace may inquire of all manner of Felonies at the Common Law, or given by any Statute, and of all manner of Trespasses a­gainst the King's Peace, and such Trespasses where­in Actions of the Case will lye for Trespasses or Deceit, and in the end of the Writ grounded upon the Case, It is contained, Contra Pacem nostram. Crompt. 8. a. Num. 25.

Defaults against the Statute of 3 Hen. 6. Chap. 11. For Levying of Wages for Knights of the Shire, are to be heard and determined by Inquiry for the King, or Action for the Party before the Justice of Peace. Lamb. 512.

A Justice of the Peace has no need to shew his Commission, by which he is made Justice of Peace, when he Justifieth the doing of any thing as a Justice, for he is Justice of Record, and the Commission remaineth with the custos Rotu­lorum of the same County, and he is called by Commission in open Assize, or Sessions. Crompt. 120. b. Nu. 13. Lamb. 387.

A Justice of Peace may have his Action of the Case against the Party that calleth him false [Page 5] Justice of the Peace; it also seemeth that he may be Indicted, for they may inquire of all Trespasses, where a Man may have his Action of the Case. Crompt. 121. a Num. 21, and 122. a Num. 29.

A Justice of the Peace, Certifying into the King's-bench, that such a one broke the Peace in his Presence, the Party shall be put to his Fine, without a Traverse to the same. Cromp. 132. a.

A Justice of the Peace, who is of the Quorum, ought to be Resident in the County where he is a Justice of the Quorum. 2 Hen. 5. Chap. 4. Cromp. 122. a. Num. 32.

The Justices at Newgate sit by Virtue of 2 Com­missions, Goal Delivery, and Oyer and Termi­ner, 4 Eliz. Chap. 2. And where the same Per­sons are Justices of Goal Delivery, and Oyer, &c. They may sit the same Day, and Place, and inquire by the same Jury, yet the Entry of the Records must be several as the Indictment is, Dalt. 168.

A Justice of the Peace commandeth one by his Precept, under Penalty of 10 l. to be at the Quar­ter Sessions next ensuing it, and he appeareth not, no Scire Facias shall go forth more than if there had been a Subpoena, however it seemeth he shall be Attached to be at the next Sessions upon Con­tempt. Cromp. 123. a. Num. 9.

CHAP. III. What one Justice of Peace may do by Power and Vir­tue of his Commission, without requiring to be joyn­ed with another, or more in Acting, in what relates to his Office.

HE may cause all such as are fit, to Work in Harvest, or Hay-time, and after Licence them to go unto any other County.

He may Rate the Prizes of deceitful Malt, to be sold by 2 Edw. 6. 10.

He may compel one fit in his Discretion to be bound Apprentice, by 5 Eliz. 4.

He may it seems give Directions to Watch­men, Keepers, and Searchers of infected Persons. Crompt. 126. b.

He may cause to be Whipped Trespassers in Orchards, Corn, Hedges, or Woods, not able to give any Satisfaction. And it seems he may hear and determine by Examination, or other­ways by his Discretion the Offences committed in Tile-making.

One Justice of Peace may command Vagrant Persons to Prison, if they will not serve.

He may upon his View of forceable detainer, Record it by 15 Rich. 2. Chap. 2. Dalt. 81, 82.

He may Punish Deceit in Cloth by Ten­ters, &c.

He may cause High-ways to Markets to be enlarged, and cleansed of Trees and Bushes. 13 Edw. 1. Chap. 5.

He may Punish Keepers of Places for unlawful Games, and the Players at those Games.

He may Punish Prophane Swearing in his Pre­sence, made out by Testimony or Conviction by the Party's own Confession.

[Page 7]He may Punish Offences in Watermen, and Transporters of Corn.

He may Punish Defaults of Collectors of She­riffs, Amercements, and of Bayliffs of the Hun­dreds. Soldiers that Purloin their Horse or Har­ness.

He may prevent a Riot, stay it, and Commit them that are concerned in Acting of it.

One Justice of the Peace, upon Complaint may Commit till the Assizes, or Sessions, any Popish Recusant Convicted, above 18 Years of Age, under the Degree of a Baron; so for refusing the Oath of Allegiance, 7 Jacobi 1. Chap. 6.

He may cause to be set in the Pillory in the next Market-town, Persons Convicted of Breaking the Assize of Fuel, and not able to pay the For­feiture, with a Billet, or Faggot bound to his Body. 7 Edw. 6. C. 7.

Quaere whether one alone can Commit him,

He may cause an Unlicensed Ale-house-man openly to be Whipped after Conviction, where there is no sufficient Distress to pay the Penalties. 3 Caroli 1. 3.

He may upon View, or Proof by two Wit­nesses Warrant the Levying 20 l. Forfeiture for an Unlicensed Ale-house, to be given to the Poor.

One Justice may demand the Peace against an other Man. Lamb. 81. And he may Punish Persons, going, or riding Armed, contrary to the Statute of 2 Edw. 3.

A Justice may inquire of Felo de se, hid, or cast into the Sea, where the Coroner cannot have the View of the Body, 3 Inst. 55. And he may send Writs for Fugitive Labourers, by 2 H. 5. C. 4. St. 1.

He may take an Information out of the County against an Offender in the County. 1 Cro. 213

[Page 8]So a Recognizance to Prosecute by Assent of the Parties out of the County, but cannot use Coercive Power, Ibid.

A Justice of the Peace Inhabiting in the Hun­dred where one was Robbed, may if he be at York, or London, take the Party's Oath, being but an Examination, and no Act of Jurisdiction.

A Justice of Peace in London ought to send Felons to the Common Goal, not to the Coun­ters. 1 Co. 120.

He may take an Indictment of Barretry, with­out a special Commission. 2 Cro. 32.

A Justice in open Court may alter the Panel or a Jury Sworn only for the King, 2 Co. 59.

One Justice of the Peace is sufficient to certify carrying of Corn from one Place to another, to sell against the Statute of Fore-stalling, joyned with the Customer.

He may Bind a Cheater to his good Behaviour, &c. Dalt. 63. 7 Jacobi (1.)

He may Convict of Drunkenness, by 12 Jacobi (1.) C. 7.

He may Seize the Goods of Gipseys, within a Month after their Arrival, &c. By the 22 Hen. 8. C. 10.

He may Record a Riot in his View, and Commit the Rioters, or bind them to their good Behaviour; but single, or alone proceed no fur­ther. Dalt. 195.

He may punish Spoilers of Fish-ponds, and cause their Nets to be cut and burnt. 17 Rich. 2.

He may take the Claim of a Horse Stolen. 31 Eliz. 12.

He may Examine and Bind over unlawful Hun­ters in the Night time, &c. 1 Hen. 7. C. 7. The like of taking or killing Conies in the Night­time. 22, 23 Caroli 1.

[Page 9]He may compel a Vintner to draw a Man Wine, who demands it, and offers Payment, 24 Hen. 8. Dalt. 242.

He may Convict of the Breach of the Lord's day, against Stat. 29 Caroli 2. And may allow of Cause for Travelling in a Boat on the Lord's-day, according to the said Statute.

CHAP. IV. The Power of two Justices of the Peace, Acting joyntly within the Compass of their Jurisdiction, by Virtue of their Commission and Office, &c.

TWO Justices of the Peace upon View of a Riot, or Rout, may Record the same, and with the Sheriff, or under Sheriff. 13 Hen. 4. C. 7. Crompt 16. Num. 9. to inquire by a Jury, and fine the Rioters. Dalt. 195. Quaere.

Two Justices on Complaint that a Servant de­parted before his Term ended, &c. Are to Exa­mine, and Commit if they see Cause. See more of Labourers and Servants, of a Constable, &c.

They may Bind one to the Quarter-Sessions to Answer his Offence against a Penal-law. Lamb. 187. Vide Dalt.

They may Allow and discharge an Ale-house­keeper at Discretion.

There must be two Justices of the Peace for appointing Overseers for Woolen-cloth for a Year, &c. So to convene Persons fit to discover any Of­fence in the making deceitful Cloth.

They may Imprison for a Year, or less at their Discretion, Servants Assaulting their Masters; may compel Women to serve for such Wages, and manner as they think fit. They may Tax a Hundred towards the Relief of the Poor of a [Page 10] Town within it, wherein the Inhabitants are thereby overcharged, and not able to keep their Poor; and they may Tax others of a County for the Relief of places Infected.

They may dispose of at Discretion all Forfei­tures to grow and become due on the Statute of Rogues.

They may Assess all the Parishes within the Hun­dred, proportionably, towards Contribution for the Partys charged upon a Robbery.

They shall take Order to set poor Soldiers on Work, who cannot get Work, for want of Work, Tax the Hundred for Relief. 21 Jacobi C. 28.

Two Justices may Fine the Head-Officers in Burroughs and Market-towns, who are remiss in viewing the Weights and Measures, and break and burn those that are Defective; and Fine all Buyers and Sellers with unlawful Weights, at Discretion.

They may allow Surveyors, and their Servants to make Materials in another Parish for the Mend­ing the High-ways where they are defective.

Two Justices, one being of the Quorum, upon Complaint of the Church-wardens, may Convene before them the Bayliff and High-constables, and take their Accounts of Forfeitures and Defaults Estreated concerning High-ways.

Two Justices of the Peace in London, may de­termin the Matter of Buildings, and Inhabitants there. 35 Eliz. c. 6.

They shall allow Scavengers under their Hands, to Confirm a Tax of Constables, Church-wardens, and Surveyors, &c.

Two Justices of the Peace may take an Oath of the under Sheriff, Bailiffs, &c.

Two Justices of the Peace, one being of the Quorum, may Commit any Person under the De­gree [Page 11] of a Baron, being above 18 Years of Age for refusing to take the Oath of Allegiance, &c.

They may take the Submission of Persons brought up in a Jesuites Colledge.

The may, one being of the Quorum, Bail a Per­son Arrested for Manslaughter, Felony, or on Sus­picion of them.

They may take Order about a Bastard-child lay­ed in the Parish. 18 Eliz. 7 Jacobi, &c.

They may Administer the Oaths of Supremacy, and of the Office, to Bailiffs of Franchises.

They may punish Destroyers of the King's Game, or such as keep Hunting-dogs. 1 Ja [...] 1. 27. 7 Jacobi 1. 11.

They may sign a Testimonial of a Servant turn­ed out of Place; or one whose Master is dead. 27 Eliz. c. 11. Lamb. 331.

Two Justices may Convict any one of Opposing the Execution of the Statute against Planting Tobacco in England. 12 & 13 Caroli 2. Dalt. 237. So to Warrant destroying it, and Convict Refu­sers to Assist. Ibid.

They may License poor People Diseased, to Tra­vel to the Bath for Remedy, &c. 39 Eliz. 4.

They may send to a Work-house. Prisoners brought before them by Habeas Corpus, according to 30 Caroli 2.

Two Justices, one of the [...]uorum, may take an Indictment and Inquisition. Lamb. 48.

Two Justices of the Peace may Warrant Con­stables in Searching Houses for Setting-dogs, and Nets for taking Partridges. 7 Jacobi 1. C. 11.

They may commit for 3 Months Shooters of Par­tridges contrary to 1 Jacobi 1. C. 27. Unless each so Offending pays 20 s. They may proceed upon Offences against the 13 Eliz. of Hedge-breaking, &c. Done to one of them.

[Page 12]Two Justices of the Peace, with the Bishop and Chancellor, may call Collectors of Hospitals to Account, 14 Eliz. Chap. 5.

They may bind over one Suspect of Counter­feiting Tokens and Letters. 33 Hen. 8. 1.

They may search for Popish Books and Relicks. 3 Jacobi 1. C. 5. They may Punish Defaults in the Overseers of the Poor.

They may Punish Offenders in disturbing the Execution of the Statute against Rogues.

They may send to the House of Correction Persons about to leave their Family to the Parish. 7 Jacobi 1. c. 4. They may Examine Offenders in Buck-stalls, against the 19 Hen. 7. At the Sessions, &c.

They may Warrant the Church-wardens and Overseers to Levy Arrears of the Rates for the Poor.

Two Justices of the Peace, one being of the Quorum, may Reform false Measures, or Neglect of Clarks of the Market. Dalt. 251.

Two Justices of the Peace to Convict of not Reading Common-prayer. 14 Caroli 2 chap. 14.

They may Bind over to the Assizes, or Sessions, one suspected of Deceit, by Counterfeit Letters, and proceed in like Nature in some other Mat­ters of lesser Moment; and for many things more fully set down and Explained, vide, the Offices of Constable, Church-warden, Overseer of the Poor, Surveyors, &c.

CHAP. V. What may be done by Three Justices of the Peace, Con­junct in the Execution of their Office, according to several Statutes, &c. Impowering and directing them thereto.

THree Justices of the Peace may call unto Ex­amination before them, the bestowing of Money in Mending the Highways, by the Sta­tute for mending Highways, or Bridges. 14 Eliz. 5. 30 Eliz. 18.

They may, one of them being of the Quorum, License Glass-men, to Travel without Begging in the County. 39 Eliz. C. 4.

They may take the Oaths of two Witnesses of Depraving the Sacrament. 1 Ed. 6. 1.

They may License under their Seals, one of them being of the Quorum, Badgers and Drovers. 5 Eliz. 12.

They may Confirm By-laws in Norfolk for Nor­wich Stuffs with others, &c.

They may Consent to a Petition, by 13 Ca­roli 2. 5.

They with the Bishop and his Chancellor may Examine the Employing the Poor's Money, &c. 14 Eliz. 5. 39 Eliz. 10.

They may, one of them being of the Quorum, take Examination of those that Maim Horses, Cattle, or that destroy Nurseries, or other young Trees, and throw down Inclosures in the Night unlawfully, &c.

They may License Buying of Corn, to carry from one Port to another. 5 Eliz. 12.

CHAP. VI. What may be done by 4 Justices of the Peace, Con­junct in the Execution of their Office, as afore­said, &c.

FOur Justices of the Peace may Discharge under Seal an Apprentice Hardly, and Ill-used. 5 Eliz. Dalt. 120.

They may Tax the Inhabitants, and make Col­lectors and Overseers for the Repairing a Bridge, where it is not known who ought to Repair it. 22 Hen. 8. C. 5.

They may Seize a Recusant's Arms, and Armour, Ammunition, &c. 3 Jacobi 1. c. 5.

They may consent with the Sheriff, or Goaler of a Corporation, for the removing of Sick Persons that are Prisoners, or others. 19 Caroli 2. C. 4.

They may License a Recusant to Travel above 5 Miles with the Assent of the Bishop, or Lieute­nant, &c. 35 Eliz. 3 Jacobi 1. c. 5.

They may Remand by Warrant under Seal, Ma­lefactors flying into England. 7 Jacobi 1. C. 1. Dalt. 541. And indeed thus Conjunct they have great Power in the Execution of the Office of the Peace, where Matters lie within their Jurisdiction, as to what relates to the Conservation of the Peace, and keeping good Order in the Government, and saving the Subject from Wrongs.

CHAP. VII. What Six Justices of the Peace, Conjunct in the Exe­cution of their Office may do, &c.

SIX Justices, one being of the Quorum, may Execute the Laws of Commissioners of the Sewers. Dalt. 219.

They may appoint a Common-goal for the She­riff to have the Custody of it. 13 Hen. 8.

Six Justices in Commission of the Peace, with the Justices of Assize, by 12 Rich. 2. C. 1.

Eight Justices of the Peace, beside the Lords, by 14 Rich. 2. c. 11. So two Lawyers in every County. 18 Edw. 3. c. 2.

The greatest part of the Justices of the Peace, to order the House of Correction in every County.

The greatest part to Tax other Parishes for the Poor, where there is an Insufficiency in the Parish, or Hundred. 43 Eliz. c. 2. So to employ the Overplus of the Maimed Soldiers Stock to the Use of the Poor. 43 Eliz. c. 3. And to Tax for the Relief of Maimed Soldiers. So to Ac­counts of Treasurers for Maimed Soldiers 43 Eliz. c. 3.

CHAP. VIII. What is to be considered and meant by the next Justice in a County, &c.

THE next Justice may License Mariners to Beg, having been Shipwracked. 39 Eliz. c. 4. Lamb. 303. Dalt. 209, 227.

[Page 16]Where the Statute ordereth the Justice most nigh to do Execution, &c. As in 13 Hen. 4. Of Riots under the Penalty of 100 l. for Forfeiture, he is excused, if another Justice, (not next) do the Office.

He may chuse Fishermen to be Mariners by the King's Commission. 5 Eliz. c. 5. Lamb. 359. Dalt. 139.

The next Justice is to send a Prisoner to a Work-house, &c. 30 Caroli 2.

CHAP. IX. Of certain Forfeitures by Statute given to 8 Justices of the Peace.

FOR every Day he sits upon the Statute of La­bourers, not exceeding 3 Days, 5 s. So the Mayor, or Head Officer in Corporatins, &c. Out of the Fines arising on the Stat. &c.

For every Day which Sessions is kept, which may be 3 Days, they shall have out of the Fines coming to the Sheriffs Hands, by reason of the Sessions, 4 s. and their Clerk 2 s.

Two Justices of the Peace shall have a part of defective Cloth Seized and Forfeited, 5 Edw. 6. Lam. 359.

Justices who examine Offences of Deer-Hays, and Buck-stalls shall have the tenth part of For­feiture. 19 Hen. 7. c. 11.

CHAP. X. The Fees of Justices of the Peace, or such as they ought to take in the following Cases, according to Crompt. 176. a. and Dalt. 78.

FOR a Recognizance of the Peace, 2 s.

For a Recognizance to Bail a Prisoner, 2 s.

For a Supersedeas of the Peace, 2 s.

For a Warrant of the Peace Sealed, 2 s.

For a Release of the Peace, 2 s.

For a Warrant not of the Peace, 4 d.

For a Recognizance of an Ale-house-keeper, 12 d. For the Inrolment of a Deed, the Land not ex­ceeding 40 s. per Annum. To the Justice one Shilling, and to his Clerk one Shilling. But if the Land exceed 40 s. then 2 s. 6 d. to the Justice, and the like to his Clerk.

CHAP. XI. Where a Justice of the Peace lies liable to be Fined for Neglecting, or Transgressing in his Office or Duty, &c.

IN the Case of Bailing one not Bailable, and re­fusing to Bail one Bailable, and Detaining him, he lies liable to a Fine, and to pay double to the Prisoner. 3 Edw. 1. C. 15. 23 Hen. 6. C. 10.

In the Statute against Riots, if he does not Ex­ecute it, he is Finable 100 l. 13 Hen. 4. So in that of forcible Entry, 10 l. 8 Hen. 6.

In neglecting to take Order about a House of Correction, 5 l. to go towards the building it. 1 Jacobi (1.) C. 4.

[Page 18]Exercising his Office before the Oath taken. Dalt. 14. For not being present at the Annual Tax of Servants Wages, 10 l. 5 Eliz. c. 4.

If a Justice of the Peace does not in 40 Days certifie unto the King's-bench Presentments of Extolling the Pope's Power, he forfeits 100 l. 5 Eliz. C. 1.

For Imbeseling, wilfully Raising, maliciously Inroling an Indictment not found, changing an Indictment of Trespass into Felony, is Fine and Imprisonment, and loss of Office, Lam. 631.

CHAP. XII. Where a Justice of the Peace lies liable to Punishment.

HE may be Imprisoned for taking Bond in his own Name, and not in Domino Regi, the Mat­ter concerning the King, 33 H. 8. C. 9.

For Conspiring with another to Indict a Stranger at the Sessions, otherwise as a thing done by him as Judge. Crompt. 122. a. Num. 32.

Where a Justice fails to do Justice, he may be put out of Commission, and Punished. 4 Hen. 7. C. 12. Crompt. 120. H. Num. 6. Lam. 370. So for refusing to take Surety for the Peace, when it is Tendred. Vide Crompt. Jurisdiction of Courts. 31 B.

For Embeseling and Rasing Records, he forfeits his Office, and may be Fined, Vide antea.

CHAP. XIII. Some Directions in making out, or granting War­rants by a Justice of the Peace, and how to be Executed.

A Warrant in Writing must be under the Justices Hand and Seal, his Hand at least. Dalt 460. Lamb. 85. 88. However it is better if it be Sealed, as the usual way is. Dalt. 460.

A Warrant of the Peace, or good Behaviour must contain the special Matter. Dalt. 460. Lamb. 87.

A Warrant for Treason, Murder, or such like capital Offence, need not contain the special Mat­ter, or Cause, Dalt. 160. Crompt. 148. a.

If a Justice of the Peace, being out of the County, Grants his Warrant to be served in the County, the Officer making the Arrrest, must car­ry the Party before some Justice of the Peace with­in the County. Lamb. 91. Dalt. 461.

A Justice of the Peace may make his Warrant to come before himself, yet in a Warrant for the Peace, the usual manner is otherways. Co. 5. 59. Dalt. 461.

Upon a General Warrant, an Officer may chuse to go before what Justice he pleases. Dalt. 49. 5. Co. 59. B.

If a Justice of the Peace make a Warrant be­yond his Authority, it is not disputable by a Con­stable, or other Officer, but must be obeyed, unless it be to do a thing out of the Justices Jurisdiction in a Cause where there is no Judge; for if in this latter Case the Officer Execute the Warrant, he is punishable. Dalt. 8. 465. Lamb. 65. Crompt. 147. B. Lamb. 91, 92. Dalt. 865.

[Page 20]A Warrant directed to two joyntly to Arrest a Party, he may be Arrested by either of them.

A Warrant made in the King's Name, ought to be made to all Ministers, as well within Liberties as without. Dalt. 355.

Warrants may be made either (1.) in the Name of the King, or (2.) in the Name of the Justice, and either of them must be testified by the Justice from whom they Issue, or (3.) with­out stile by Superscription of the Justice. Dalt. 385.

See more of Warrants in the Office of Con­stable in this Book, and how they are to be Exe­cuted.

Sessions held by one Justice of the Peace is not good, though it were Summoned by two, and Stiled by their Names, but two sufficient Justices Warrants Sealed (Quorum, &c.) Vide Dalton, &c.

Quarter Sessions are to be held 4 times in the Year, viz. The first Week after St. Michae [...] The Epiphany, the close of Easter, and after the Trans­lation of Thomas the Martyr, which is July 7. 2 Hen 5. Chap. Lamb. 597. Dalt. 531.

Justices of the Peace shall hold their Sessions 4 times in the Year, viz. One within the Octaves of Epiphany, the second in the second Week of Lent, the third between the Feasts of Pentecost, and St. John Baptist, the fourth within the Octaves of St. Michael. 36 Edw. 3. Chap. 12. Dalt. 531. Crompt. 123. B. Nu. 15. &c.

The place where Sessions is to be held is Arbi­trable, and therefore though by Summons they are to be kept in one place, yet they may be kept in another, but then there can be no A­mercement for Default of Appearance. Lamb. 383. 384. But they must be kept within the County. Dalt. 531.

[Page 21]So in a Town Corporate, but not to inter­meddle.

Two Sessions at one time for one County Law­fully Summoned at two Places are good, but Ap­pearance at one shall excuse the default of an Ap­pearance at the other, and Presentment taken be­fore either of them, shall stand good, Lamb. 384, But Punishable without notice.

At a General Sessions, all Matters Enquirable by Justices of the Peace, either by Statute, or their Commission ought to be given in Charge; other­wise at special Sessions. Lamb. 613. And may be held 3 Days. 606. 12 R. 2. Chap. 10.

At the Quarter Sessions, Officers and Ministers of the Court, and Jurors of the County owe their Attendance. Lam. 386.

Jurors not appearing according to Summons, are Punishable for loss of Issues, the usual part of Estreats.

Constables making Default are Fineable.

The Justices of the Peace, if need require, may keep a special Sessions by Virtue of their Commission, or by the Statute. 1 Hen. 5. Chap. 4. Lamb. 623.

All Matters within the Commission, or Statute may at a special Sessions of the Peace be given in Charge, yet they are at liberty to give in Charge, either all, or any of them. Lamb. 623, 624.

If two Justices of the Peace, one being of the Quorum, make a Precept to the Sheriff for the holding a Sessions at such a Place, and Day, and to return a Jury before them, other Justices can­not by their Supersedeas Inhibit it. Crompt. 126. B. But the King by his Writ of Supersedeas may Discharge it. Ibid.

[Page 22]All that come to the Sessions for publick Ser­vice, or upon Compulsion, upon Complaint, and Examination of the Matter upon Oath shall be freed from any Arrest upon Original Process. Lamb. Cro. 190. B. Lamb. 402.

Indictments are many times Tried the same Sessions wherein the Persons were Indicted, yea the same Day before Justices of Goal Delivery, or Justices of Oyer, &c. Dalt. 537. 1 Cro. 315, 438, 448.

But in Case of Felony it seems very reasona­ble to be deferred to the next Sessions, upon Cause shewn; it being so in an Indictment of Nusance generally, and life is more to be valued and favoured, &c. Dalt. 537.

Many things of great Import cannot be done but at the Sessions, and some but at such a par­ticular Sessions. Dalt. 537.

Of the first sort are the Discharge of Appren­tices Ill-used, Badgers, Licensed Officers Sworn (after the Sacrament received proved) and de­claring against Transubstantiation, &c. Dalt. 538.

The second is taking Accounts for Maimed Soldiers of the Treasurers, and for Charitable Uses, &c. 43 Eliz. in Easter Sessions, the Rates of Wages in Easter Sessions, and 6 Weeks after. Dalt. 538.

Making Order in the Chamber after the Ad­journment of the Sessions, as for the Bastard-Children, and Settlements, and some other Things and Matters. But not to be tedious to the Reader, I shall hear close Treating of Mat­ters of this Kind, and proceed to others Exe­cuted.

CHAP. XIV. Of Mittimus's, and their Form, and what is to be considered in them, &c.

A Mittimus must contain the name of the Par­ty, or Parties, his, or their Offences, and the time of Imprisonment, that it may appear whe­ther the Prisoner be Bailable, or not. Lamb. 297. Dalt. 439, 406. Crompt. 153. A. Num. 11.

If one be Committed without Bail, or Main-prise, and the Cause be expressed in the Mitti­mus, and yet is Bailable, other Justices may Bail him; yet Quaere, seeing their Authority is equal. Dalt. 439. But if no Cause be expressed, other Justices shall not do well to Bail him without the Privity of the first Justice, or Justices; be­cause the Cause of Commitment probably may not be Bailable. Dalt. 439.

If the Mittimus be General, the other Justices that Bail must take notice at Peril. Ibid.

There is a Writ called a Mittimus, for removing Records of Outlawry, Judgment in the King's-bench, &c. Unto the common Place, or an Act of Parliament unto the King's-bench, &c. See of this. 1 Cro. 134, 298. Hob. 111, 135.

CHAP. XV. Of Recognizances, what they are, and how, and in what Cases to be taken by a Justice of the Peace, &c.

A Recognizance of a Bond of Record, Testi­fying the Recognizor to owe a certain Summ of Money to some other, and that Acknow­ledgment of the Summ is to remain of Record, and none can lawfully take it, but a Judge or Offi­cer of Record. Dalt. 457.

Every Recognizance taken by a Justice of the Peace must be made by these words (Domino Re­gi) and great Care to be had in so doing; for it is Imprisonment for any Person to take it other­wise. For these Words, Domino Regi import and Imply, the Recognizor is bound to our Lord the King, and not to any other. 33 Hen. 8. Chap. 9. Crompt. 196. B. Num. 11. Lamb. 162. Dalt. 276.

Sureties in Recognizance ought to be Subsidy Men, and they must be two besides the Party himself. Dalt. 276. Lamb. 101.

It is in the Discretion of a Justice of the Peace, if he take a Recognizance, Ex Officio, to appoint the Number of the Sureties, their Suffi­ciency in their Goods and Lands, and the Summ of Money, and how long the Party shall be Bound. Dalt. 275. Lamb. 100.

Recognizance for the Peace, unless the words be expressed, for keeping of the Peace seemeth void. Lamb. 103. Dalt. 204, 276. Coram non Judice.

So it is if a Recognizance be that the Recogni­zor shall not Beat or Maim. B. without the Expres­sing the keeping the Peace in it. Ibid.

[Page 25]A Recognizance expressing no Time of Ap­pearance, but generally to keep the Peace is good. Ibid. And so these few may serve to give a Light into others; for they are many; and in the Main they tend to one and the same thing, though in Circumstances many.

CHAP. XVII. Of Sessions and Matters properly to be done, &c. by Justices therein, &c.

THE Sessions is the Assembly of any two, or more Justices of the Peace, one being of the Quorum, at a certain Day and Place with­in the Limits of their Commission, appointed to Enquire by a Jury, or otherwise to take Know­ledge, and thereupon to hear and determin ac­cording to their Power, of Causes within their Commission and Statutes referred to their Charge. Lamb. 378.

A Sessions held without Summons is good, but in such Case none shall lose any thing for Default of Appearing. Lamb. 380, 381.

Summons of the Sessions is usually by Precept Written to the Sheriff, and by him to be returned at Sessions. Lamb. 381.

Precepts for Summoning the Sessions, may be made by any two Justices of the Peace, one be­ing of the Quorum, but not the Custos Rotulorum alone; and Summons cannot be discharged by Su­persedeas of all other Justices, but by Supersedeas out of Chancery. Lamb. 382, 383.

CHAP. XVIII. The Justice of Peace his Clerk, &c. his Business rela­ting to Warrants, Hue and Cry, Order for Bastard-Children, Recognizances, Mittimus's, Releases, Bailments, Supersedeas, &c. in due Form, Latin and English, and other things, with Observations, or Notes thereon for better Information.

CHAP. XIX. An Order of the Justices of Peace for a Bastard-child.

The Order of L. C. Esq and R.G. Esq two of His Majesties Justices of the Peace for the County of S. made for the Relief of the Parish of C. of the said County, for the keeping of E. a Bastard-child Begot­ten by R. B. of C. &c. On the Body of M. G. &c.

Imprimis. Upon the Examination of the said M. G. duly by us taken, we do find that the said R. B. is charged to have divers times Bodily and carnal Knowledge, between such Times, (Here name the Times) and to be the only Father of the said Bastard-child, &c. And therefore we do Order and Adjudge him the said R. B. to be the Reputed Father of the said Child.

We do further Order as followeth.

First, That the said M. G. shall keep her said Child till it come to 8 Years of Age.

Secondly, That the said R. B. upon notice of this Order, shall after such Notice pay unto the Hands of one of the Overseers of the Poor of C. for the Time being, after the Rate of 2 s. 6 d. every Week, to be paid Monthly every Year, towards the Relief of the said Child, until it come to 8 Years of Age.

Thirdly, That after the said Child shall come to the Age of 8 Years, &c. That the said R. B. pay to the Overseers, &c. Five Pounds to­wards putting out the said Child to be an Ap­prentice, &c.

Fourthly, That the said R. B. presently give good Security to one of the Overseers, &c. To perform this our Order.

☞Note, that by altering the Names, and Sum, as the Order in that Case shall be made. This Order in Form with the Variation of the Town, [Page 34] and County, may generally serve on this Oc­casion.

CHAP. XX. A Warrant for the Overseers of the Poor to give up their Accounts.

Surrey. To the High Constable of the Hundred of B. &c.

These are in His Majesties Name, to Charge and Command you forthwith to give notice to the Church-wardens, and other Overseers of the Poor of every Parish within your Hundred, that they do Personally appear before us at Kingston up­on Thames, at the Sign of the Swan, on Thursday the 29th. of December next coming, by 10 of the Clock in the Morning, or Forenoon of the same Day, to yield up, and make a true and perfect Account in Writing, Subscribed with their Names or Marks of all such Summs of Money, as they have received, or Rated, and Sessed, and not received, for and towards the Relief of the se­veral Poor of their several Parishes, and also of such Stock (to set the Poor on Work,) as is in their Hands, or in the Hands of any of the said Poor and of all other things concerning the said Office, and hereof that they fail not at their, and every of their Perils. And further we require you, that you give warning to the Petty-Consta­bles of every Town, within your said Hundred, that they, or one of them be also then present before us, to Inform and Certifie us of the Names of such other Persons as are meet and fitting to be Overseers of the Poor within their several Towns for this Year next ensuing, and hereof fail not at your Peril.

☞ Note that this Warrant must be under the Hands and Seals of two Justices at the least, the one to be of the Quorum [...].

CHAP. XXI. The Form of a Warrant for suppressing an Ale-house

Surrey. W. L. and C. L. two of his Majesty's Justices of Peace, within the said County of S. To the Constables of G. and either of them Greeting. Whereas we are credibly informed that M. B. of your Town, Victualler, is himself a Man of Evil Behaviour, and besides doth suffer Evil Rule and Disorder to be kept in his House, contrary to the Laws and Statutes of this Realm, These are therefore to will and command you forthwith to repair to the House of the said M. B. and to charge him to sur­cease keeping any longer any Ale-house or Tipling-house, and from common selling of Ale or Beer at his Peril, and withal that [Page 40] you cause his Sign to be pulled down, and hereof fail not as you and either of you will answer the contrary at your Peril. Given un­der our Hands and Seals at T. the — Day of — and in the — Year of the Reign of our most Gracious Sovereign Lord King William the third, &c.

But it is usual with the Justices e'er they grant this last Warrant, or a Warrant to Levy Monies forfeited by Ale-house Haunters, to send for the Offenders and Examin them of the Offence, that the Truth may be known, and that the Information be not upon the Account of Brangling or Malice between the Parties so in­formed against, and the Party informing, but the Truth known upon plain Conviction. For­feitures in the latter Case may be Levyed, upon refusal to pay, by Distresses and Sale of Goods, and for want of such Distress the Offenders set in the Stocks, &c. See more in the Office of a Con­stable in this Book.

CHAP. XXII. Supersedeas Grantable by Justices of the Peace to supercede Warrants, &c. their Forms

CHAP. XXIII. The Forms of Recognizances on several occasions, to be taken by Justices of Peace, and written by them or their Clerks, &c.

CHAP. XXIV. The Forms of Mittimus's to deliver Persons Com­mitted to Goal, &c.

CHAP. XXIV. The Form of Bailment by the Justices of the Peace, &c.

CHAP. XXV. The Form of Releases by Justices of the Peace, &c.

CHAP. XXVI. Somewhat of the Antiquity of Juries. What things they must consider, and how they ought to be Quali­fied to be Jurors.

IN this useful Book promising to say some­what of Grand and Petty Juries, to give those [Page 56] an Insight into what they ought to know, who take so great a Trust upon them when sworn Ju­rors to enquire, &c.

The Tryal by Juries is very ancient in this Kingdom, and it is our Happiness above other Nations, that a Man has so great a Benefit to be Tryed by his Equals: Men unprejudiced and unbyassed to deliberate upon Hearing the Evi­dence, and Weighing in their Consciences, the Merit of the Cause. This way in some de­gree was not unknown to the ancient Britains, as by some of their Books and Monuments of Antiquity appears: and we find it practised by the Saxons, as Mr. Lambert makes Remarks in King Ethelred's Laws, Page 118. and Cook 1 part Institutes Folio 155. and since more amply con­firmed after the Norman Conquest by Magna Charta, Every Day growing more and more in Esteem, because no Man's Life, unless it be in Parliament, which is a Supream Court and is supposed will never do any Man wrong, shall be touched for any Crime whatsoever, but up­on being found Guilty on two several Tryals, for so may that of the Grand and Petty Jury be rightly termed, and the Judgment of twice Twelve Men at least, all of his own Condition, viz. 12. or more to find the Bill against him, and 12 more to find him Guilty or Acquit him on the General Issue: All which Jurors ought to be Substantial, Honest, and Impartial Men, being Neighbours of the Party Accused, or supposed Place where the Fact was committed.

A Jury in this Case upon hearing the E­vidence must be fully satisfied in their Con­sciences, that the Party is guilty, and so unani­mously pronounce him upon their Oaths, or [Page 57] else he may not be condemned; for the Office and Power of these Juries is Judicial, from whose Sentence the Indictment is to be valid or invalid, or to speak plainer, the Party In­dicted to be found Guilty or Acquitted, for from their Verdict there lies no Appeal. As for the Qualifications of such as are to be upon Juries, the Law has provided that they shall be Persons of Honesty, Ability, Integrity, and Indifferency, and Coke in the first part of his Institutes, Sect. 234. Folio 155. says, that a Juror must be Li­ber Homo, not only a Freeman not bound, but one that has such Freedom of Mind, that he stands indifferent Sworn, as he stands unsworn; that he must be Legalis Lawful, and by the Law these Properties are required in a Juror: 1. He ought to have his dwelling most near to the place, where the Question does arise, or is mo­ved; 2. He must be most sufficient both in competency of Estate and understanding, 3. He ought to be least suspicious, viz. be indifferent as he stands unsworn, and then He is ac­counted Liber & Legalis Homo, otherways it is held he may be challenged and not sworn, for the Prisoner may challenge 35 in case of Treason, and 20 in Case of Felony; with­out shewing Cause; and as many more as he can assign just Cause against: In brief, Jurors must be free from all manner of Bondage, Obli­gations, Affections, Relations, and Prejudices; they must be the Peers, or Equals of the Party they are to try, and of the full Age of one and Twenty or upwards.

They were antiently all Knights, as you may find it in Glanvil and Bracton, and still must be Men of Worth and good Repute, and as they are returned by sworn Officers of the [Page 58] Sheriff, so they of the Petty Jury are to be sworn severally on every Tryal, the better to mind them of their Oath, or they to be charged upon their Oath with each Party they are to try.

CHAP. XXVII. Of Indictments, Presentments, and the difference be­tween them; the Oath administred to the Grand Jury, and how they ought to enquire, &c.

THough both of them, as I have said, are Juries, yet there is made a small distinction between them in the Title, as Grand and Petty Juries; The first is so called, as it seems, because it usually consists of a greater Number than the other, as 17, 19, 21. or the like, yet they can make no Verdict, or Presentment, unless Twelve of them at the least agree; and then though the rest consent not, it is held sufficient. And they are further so called, because they general­ly are of the greater quality; and likewise in regard of their Power, because their Office is more great and general, extending to all Of­fences throughout the whole County for which the serve as Jurors.

The Petty Jury, commonly called the Jury of Life and Death, consisting of 12 Men, are all to agree in a Verdict, or the Verdict cannot be ta­ken, and is no Verdict.

The Grand Jury, or Grand In [...]uest, for so they are often called, have Principally two things in their Consideration, viz. Indictments and Presentments; Indictments are those that are usually drawn up in Form at the instance of the Prosecutor, or by the Order of the Courts, [Page 59] and then brought before, and delivered unto the Grand Jury, and the Witnesses Sworn attend them, to be Examined by them upon the Oath they have taken; and according as they Credit, or Discredit the Evidence, or find cause, they Indorse the Indictment, Billa vera, or Ignora­mus, it is a true Bill, or we are ignorant; the latter concluding the Jury does not find the Matter, or there does not upon Evidence ap­pear a sufficient Ground for the Accusation, that the Party's Life or Reputation should be brought into Question or Dispute.

As for a Presentment, it is when of their own Knowledge, or upon Enquiry, the Jury them­selves do take Knowledge of a Nusance, or Of­fence to the Injury of the Publick, which they think fit to have removed, or punished, and of which they Inform the Court to that purpose, briefly in Writing without Form, viz. The Nature of such Offence, or Thing, and the Persons Name and Place, who is the Agriever, or where the Nusance is, being a Ground and Matter whereon to Form an Indictment, the Presentment differing from the Indictment in two Particulars, viz. Its not being drawn up in due Form; and where­as the Indictment is commonly drawn up by the Order of the Court, or the Instance of some Pro­secutor, as is said.

The Presentment on the other Hand is always Originally the Act of the Grand Jury.

And now from what has been said, it appears that this Important Office is Branched twofold; The first is to preserve the Innocent from the Disgrace and Hazards, which by Malice, or any sinister Means they may be brought into; for by the express Words of the Statute of 25 Edward the Third, c. 3. and the 43 Edward 3. c. 3. it is said, That for preventing Mischiefs done by false Accusers, none shall be put to answer, unless it be by Indictment, or Presentment of Good and Law­ful People of the same Neighbourhood, where such Deeds be done, and this no doubt may be ta­ken to Imply a Grand Jury.

The other Branch is to enquire after, and give Notices of all Nusances, Offences, Crimes and the like, in the County for which they serve, that so Offenders may be brought to Trial if they are forth coming, or if fled from from Justice, may be pro­ceeded against upon the Outlawry, and so Crimi­nals Punished according to their Demerit.

A Grand-jury, or Petty-jury, where there is no Witness against the Prisoner for the Crime he stands Indicted for, yet knowing him guilty of their own Knowledge, may find it accordingly, and this es­pecially in the Petty-jury appears pretty plain by the Words spoken to them by the Court; for if no Witness appears, the Court thus speaks to the Jury, or to this Effect. Gentlemen of the Jury, here is L. C. stands Idicted of such a Crime (na­ming [Page 61] it) and there is no Witness come against him. So unless you of your own Knowledge know him Guilty, you must Acquit him. But where there is Evidence, the Grand-jury must Industri­ously Examine the Evidence for the King, and the Petty-jury must have the Prosecutor and his Evidence, if he have any beside, Face to Face with the Prisoner, and patiently hear what can be Alledged in charging the one, and the others de­fending himself, and deliberately weigh the Mat­ter, and may pray the Court to ask such proper Questions of the King's Evidence, and of the Prisoner, and his Evidence, as they think fit for their better Satisfaction, and sifting out the Truth of the Matter, and to Judge of Matter of Fact according to their Evidence, as in their Conscien­ces they shall believe; and where a thing is doubt­ful to them that they cannot well Determin, they may find it Special, and leave it to the Determi­nation of the Judges, and so acquit themselves where such Doubts or Scruples shall arise of falling into an Error in Points of Law, of which the Ju­rors are not held proper Judges, but where it so requires, must leave it Special.

And thus having spoken mostly in Generals, I now come nearer to Particulars, which may brief­ly give a further Light into these weighty Mat­ters, that Men Warned upon a Jury, and Empa­nalled, may be prepared a little to know what is Requisit in so great a Charge and Trust.

CHAP. XXVIII. Several Material Things to be known relating to Ju­rys, as the Law directs, and according to the Opinion of the Learned Lawyers.

JUries both for Enquiry, and Trial, ought to be Probi & Legales Homines, Lamb. 396.

Jurors must be inhabitants, or Free holders within the County, to the value of 4 l. per Annum, by 27 Eliz. 6. But in Cities and Bur­roughs to the value of 40 l. in Goods, Lamb. 396, 397.

Juror 70 Years Old, or Decripid, must serve, if returned by the Sheriff, if the Justices will have him to serve, but he may, if he will Sue the Sheriff upon the Statute of Westminster, 2. Chap. 38. Lamb. 397.

A Jury of Denizens is good, where a Party is Extraneus, unless he pray a Jury, per meditatem Linguae, 3 Cro. 869.

Where a Baron is Sued, a Knight must be re­turned on the Jury, ibid.

Jurors for the Trial of Indictments within the County Palatine of Lancaster, must have five Pounds per Annum, ibid.

Jurors must not be nominated by any but the Bailiffs, as well in Inquisitions before Coroner, as Indictments before the Justices of Peace, 1 Cro. 134.

Jurors Exempted by Charter, with the Words (Licet Tangat nos) are to be Discharged upon Appearance, shewing it to the Sheriff; but when there is want of sufficient Jurors, no Ex­emption can discharge, Stat. West. 2. Chap. 38. Lamb. 197.

[Page 63]If the particular Juries for the Hundred cannot be supplyed by those of the Hundred, it is better to take Tales de Circumstantibus, of another Hundred, than to be renewed with a Tales from one Sessions to another, Lamb. 398.

A Jury of one Hundred may present an Offence done in another Hundred, Lamb. 399.

Justices may Command the Sheriff to alter the Panel, and he upon Refusal forfeits 20 l. ibid. 3 Hen. 8. Chap. 12.

All Jurors ought, and must be Sworn, other­ways their Presentments are void▪ but the Re­cord being that all the Jurors were Sworn, the Presentments are good, though all be not Sworn, Lamb. 399.

Jurors may be Amerced for refusing to Present, being Sworn, 8 Co. 39. a.

A Juror after he is Sworn, upon sufficient Cause appearing, may by the Justices be removed, Lamb. 400.

Jurors of Enquiry must be twelve, as I have al­ready said, but they may be more and usually they are an odd Number, tho' 12 of them Agreeing, the Presentment is good, and an Indictment may be found, Lamb. 400.

Juries of Inquiry ought not to be Commit­ted to a Keeper, nor kept without Victuals, nor carried out of the Town, but may be Ajourn­ed to another Place to give up their Verdict, Lamb. 400.

Jurors wilfully concealing Offences Presenta­ble, and which be complained of by Bill, may be enquired of by Persons, whereof every one may spend Forty Shillings per Annum, and such Concealment being found within a Year after, every Juror shall be Amerced in open Sessions, 3 Hen. 7. Chap 1. Lamb. 410, 401.

[Page 64]No Juror to be returned without an Addition whereby he may be known, 27 Eliz. Chap. 7. Lamb. 432,

Jurors that discover what they have done, are Fineable, Lamb. 402. And in Case of Treason, or Felony it hath been Adjudged Felony, Dal­ton 377.

Jurors taking any thing to make a favourable Presentment, shall be Imprisoned, and Ran­somed, Lamb. 441. Crompt. 84. a. 5 Edw. 3. Chap. 10.

1. Persons Attainted in Conspiracy. 2. Attaint by Verdict. 3. Decies tantum. 4. Concealment. 5. Subornation of Perjury, these on a Jury are not Probi, and their Presentments void, unless there be twelve Men besides on the Jury, whose Reputations are not Blemished, Lamb. 396. Al­so Persons Outlawed, Persons Condemned in Pre­munire, Persons Abjured, Persons Attainted of Treason, or Felony, and Clergy-men are not to be of Juries.

CHAP. XXIX. Challenges to be made of Jurors, and other very use­ful Instructions tending to Evidence, &c.

SO Tender were our Ancestors of the Lives and Fortunes of Men, that in making wholsome Laws, they took great Care that nothing, as near as human Wisdom could foresee, should happen to the Prejudice of the Innocent, the Laws being only intended, and made rather to Deter Men from Crimes, than to punish those who Transgressed the Bounds of them; and because [Page 65] Prejudice, nor no other thing might sway any Party to Injure a Person Indicted, if on his Jury he has, as I have already hinted, the Priviledge of challenging such as he suspects, to a certain number formerly mentioned, peremptorily, and more if he can shew Lawful and just Cause, For the Parties better Instruction.

☞ Note, if a Peer of the Realm be returned on a Jury, he may be challenged by either Party, or he may challenge himself, 1 Inst. 156.

The Array may be challenged where a Peer is Party, and no Knight returned on the Jury. Ibid. But in Case of a Noble-man's being put upon his Trial by his Peers, he cannot challenge any of them, they being to Try the Cause on Honour.

One Indicted of Felony may challenge as ma­ny as he will, shewing Cause: but if he can Assign no Cause for such Challenges, over and above 20, he can challenge no more than that twenty, 22 Hen. 8. Chap. 14. 28 Hen. 8. Chap. 1. Lamb. 554.

CHAP. XXX. Penalties upon Forestallers of Markets, Fairs, &c. Badgers, Drovers, Butchers, Tanners, Inholders▪ what they may do in some Cases, and what they ought not to do, &c.

THere are several good Laws made to hinder A­buses in one Man's Intrenching on another, and Ingrossing Commodities to himselfe, in Hin­derance of the Trade of others, and making the Commodity dear, &c. Of which, and other things nceessary to be known, I shall Treat in this Chapter.

A Forestaller is a Party, either he or she who Buys, or Contracts for any Victuals, or Wares before they come to the Fair, Market, or Port, or moveth any Party to Enhaunce the Price, and not to bring such Victuals, or Wares to any Market, Fair, or Port, Lamb. 450. Of which the Party being Convicted before the Ju­stices of the Peace at the Quarter-Sessions, by the Examination of two Witnesses, or a Pre­sentment of Forestalling within two Years, for the Offence the first time shall lose the Goods, and be Imprisoned two Months, without Bail, or Mainprize; for the second Offence lose double the Value of the Goods, and be Impri­soned [Page 67] for the space of Sx Months; for the third Offence to forfeit all their Goods, stand in the Pillory, and be Imprisoned during the King's Pleasure, 5 Edward 6. Chap. 14. Dalt. 87. Lamb. 570.

The Moiety of these Forfeitures upon Forestal­ling, due unto the Party Informing upon the Statute of Forestallers, is to be Levied by Fieri Facias, or Capias, to be Awarded by the Justices of the Peace, Lamb. 548.

A Man or Woman Buying Corn for Seed, and not bringing so much to the Market, Forfeits dou­ble the Value, 5 Edw. 6. Chap. 14.

No License shall be but in open Sessions for Drovers, Badgers, &c. A Drover is meant here one that Buys Cattle in one Place, and carries them another to Sell. A Badger, one that buys Corn, or Victuals in one Place, and carries it into ano­ther. Either of these so Trading must be a Mar­ried Man, and a Householder, 30 Years Old, or upwards, and Licensed, under the Penalty of Five Pounds, by 5 Edw. 6. Chap. 14. Also he must have dwelt 3 Years in the County, Selling in open Fair, or Market, for Provision of Houses, not Prohibited to Badgers, Licensed by 5 Edw. 6. against Ingrossing; and these must give Bond not to Forestal, &c. Nor to Buy Corn out of Fair, or Market, under the Penalty of five Pounds, unless so Limited by special Words in the Li­cense.

Traders in Butter and Cheese Prohibited in o­pen Sessions from Buying, if they do, are subject to the Penalties, in the 3 and 4 of Edw. 6. Chap. 12. and the 5 and 6 Edw. 6. Chap. 14. Notwithstanding they extend not to such Traders, Free-men of London.

None shall Ingross Oak Bark, under Penalty of Forfeiting it, 1 Jacobi 21.

[Page 68]So of Hides coming to Market; nor Buy, ex­cept of the Owner of the Beast to be Spent in his House, under the Forfeiture of 6 s. 8 d. for every one.

Excepted out of 5 Edw. 6. Barly, or Oats to be made into Oat-meal.

So things belonging to Butchers, Fish-mongers, Poulterers, Sold again at Reasonable Rates.

So Corn, Cattel, &c. Reserved in a Lease taken. Also Wine or Victuals by Inn-keepers▪ dryed Fish, Corn, Butter, and the like by Li­censed Badgers, &c.

So Provision for a City, Shipping, Castles, or Ports.

So Fish brought by persons dwelling within 1 Mile of the Sea; so Wine, Oyls, and Forreign Victuals, (Fish, and Salt-fish excepted.)

Excepted out of 3 and 4 Edw. 6. and 5 Edw. 6.14. Butter and Cheese Bought by Freemen of London, and Sold again in the Liberties of the said City, Burrough of Southwark and Westmin­ster.

Any Butcher that Gasheth, Slaughtereth, or Cutteth the Hide of the Ox, or Steer, or Bull, or Cow, so that it is Impaired, loseth 20 d. or that Wetteth, or Watereth any Hides, unless in June, July or August; or putteth to Sale any putrified, or rotten Hides, for every one of them loseth 3 s. 4 d. 1 Jacobi Chap. 22. Lamb. 462.

A Butcher using the said Craft, and also the Mystery of a Tanner, loseth for every Day 6 s. 8 d. ibid.

A Tanner using also the Mystery of a Shoo­maker, Currier, Butcher, or any other Artificer, Using, Cutting, or Working in Leather, looseth the Hides and Skins Tanned, ibid.

[Page 69]None may Buy or Contract for, or bespeak any rough Hides or Calveskins, but only a Tanner, or Tawer of Leather, except Salt Hides, for the necessary use of Ships, on Penalty of 6 s 8 d. for every Hide so Bought, or Contracted for, 1 Jacobi 22. Lamb. 463.

None shall Forestall any Hides coming to a Fair, or Market, except such as kill for the Pro­visions of their House, on Penalty of 6 s. 8 d. for every Hide.

None may buy Tanned Leather, or Wrought, but such as will convert them into made Wares, except Necks, and Shreads of Sadlers, and Gird­lers, upon Penalty to lose the said Leather, 1 Ja­cobi c. 22. Lamb. 463.

A Tanner putting to Sale any Insufficient Leather, not throughly Wrought and Tanned, or not well and throughly dryed, and the same so found by the Tryers appointed, 1 Jacobi Chap. 22. loseth so much as is Insufficient, Lamb. 464.

See more of this in Statute 1 Jacobi 1. Chap. 22, &c.

All sorts of Spices and Merchandizes Garbla­ble in the City of London, and the Liberties there­of, shall for the usual Fees be Garbled by the Garbler, or his Deputy before they be Sold, up­on Penalty of the Forfeiture thereof, or the Va­lue Sold for, and so if afterwards mixed with Garbles, 1 Jacobi 19. Dalt. 131.

The Garbler of London, his Deputy, or Assign in the Day-time, may enter any House, Shop, or Warehouse, to see if the Wares, &c. be Garbled; if not, to cleanse them, and For­feitures of this kind to go to the King and In­former, ibid.

[Page 70]An Inn-holder in a Corporation, or Market Town, where there is a common Baker that hath been an Apprentice therein Seven Years, may not make Horse-bread within his House, 32 Hen. 8. c. 41. 21 Jacobi c. 12.

An Inn-holder, or Ostler in a Thorow-fare Town, Corporate, or Market-town, being a Baker, and one that hath been an Apprentice thereto seven Years, may make Horse-bread within his House, 21 Jacobi 1. Chap. 21.

This sort of Bread, called Horse-bread, must be of a Lawful and sufficient Size, according to the Price of Corn, as it is at a Rate in the Neighbour­ing Markets at that time, according to the 21 Ja­cobi 1. Chap. 21.

CHAP. XXXI. Rates of Wages for Servants, according to Statute-Law, &c. And how to be Ordered by Justices of the Peace, &c.

RAtes of Wages for Servants and Labourers, are to be made by the Justices of the Peace in their Respective Divisions, or Counties, at Easter Quarter-Sessions, and by them to be Ingrossed in Parchment under their Hands and Seals, and after it is Lawful for the Sheriff of the said County wherein this is done, to cause Proclamation to be made of the several Rates so Rated in so many Pla­ces with in his Jurisdiction, as to him shall seem Meet and Convenient, and as if the same had been set down Printed by the Lord Chancellor, or Lord Keeper, after Declaration thereof to His Majesty, and Certificate thereof in Chancery, 39 Eilz. Chap. 4. 1 Jacobi, c. 6. Lamb. 474.

[Page 71]Any giving Wages contrary to the Rates apoint­ed, Forfeits 5 l. 5 Eliz. Chap. 4. 1 Jacobi Chap. 6. Lamb. 474.

Every Justice (not shewing Lawful Excuse Testified by Oath of one that is in Subsidy, five Pounds, &c.) that shall not Assemble at Easter Sessions, or within 6 Weeks after, to Rate the Wages of Servants, Forfeits 10 l. 5 Eliz. Chap. 4. Lamb. 632.

Any having the Authority to Rate Wages by the 5 Eliz. Chap. 4. may Rate the Wages of La­bourers, Weavers, Spinsters, or of any Working by the Day, Week, Month, or Year, or by the Great, 1 Jacobi Chap. 6.

No Penalty for Certifying the Rates of Wages into Chancery, if they be duly Proclaimed, 1 Ja­cobi Chap. 6.

Rates of Wages Ingrossed in Parchment, are to be kept by the Custos Rotulorum; if in a Corpora­tion, among the Records thereof, ibid.

Any two Justices of the Peace may Impri­son such Master or Mistress for 10 Days with­out Bail, and their Servants, Workmen or Labourers for 20 Days upon their Respective, giving, or taking greater Wages than are As­sessed by the Justices of the Peace, and Procla­mation thereof made in the County, 5 Eliz. Chap. 4. Dalt. 823. Every Retainer, Payment, or Promise of Wages, or any other thing, what­ever contrary to the true Intent and Meaning of 5 Eliz. Chap. 4. and every Writing and Bond to that Intent and Purpose, is utterly null and void, Dalt. 823.

A Justice of the Peace may have his Action of Debt against the Sheriff for his Wages at the Sessions, Crompt. 177. a. Numb. 23. The Justice of the Peace shall be payed his Wages out of the Fines and Amercements of the same Sessions, [Page 72] and they ought to Assess the Fines in the Court, &c. And it shall be allowed the Sheriff upon his Account in the Exchequer, 14 R. 2. c. 11. Lamb. 628. Crompt. 177, &c.

CHAP. XXXII. The Office of a Coroner in the Material Things he is to observe in the Executing of it, His Fees, and upon what Statutes, and other Warrantable Au­thority, he is to proceed.

THE Office of a Coroner is very Ancient, and has been, and yet is held in high E­steem: For the Lord Mayor of London, is held to be Coroner there, 2 Cro. 531. And the Lord Chief Justice of the King's-bench is Sovereign Coroner of all England, 4 [...]o. 57, b. And he upon view of the Body of one killed in open view, as a Coroner may make a Record returnable into the King's-bench, ibid.

But to come nearer to the intended Purpose, amongst other Matters, It is the Coroner's Busi­ness to view the Bodies of such as come to Ca­sual Deaths, make away themselves, or are made away by others, or suspected to be put out of the World by a violent Death, or Dying Languishing in Prison, where there may be any Suspicion the Party Dyed not Naturally, but, by hard Usage, Starving, or that the Imprisonment caused his Death, &c. For he is to know, and certifie how the King came to lose a Subject.

[Page 73]He is, says 3d Institute, fol. 129. to have Visum Corporis of a Prisoner Dying in a Goal, by reason of Duress. And the Jury or Inquest, before the Coroner, is to be of Persons within the four next adjacent Vills, made by the Bayliffs or Consta­bles, and no Challenge lies to any of them so le­gally Summoned on the Inquest, 1 Cro. 135. And upon a View of the Body, and a strict Ex­amination how the Party came by his Death, they must give in their Verdict to the best of their Judgment, according to the Evidence, or other Matters appearing to them, whether it be Felo de se, he Killed or Drowned himself, &c. or Died by the Hand of other Person or Persons, or by the Fall of a House, Wall, Timber, Kick of a Horse, or any other Matter or Thing that brought the Party to an untimely End; and the Coroner being so satisfied, he is to give his Warrant for the Burial of the Party, according as it shall be found upon Verdict, and an Indictment may be grounded thereon against such Party or Par­ties as shall be found concerned. And in this Case he has Power to Commit and Bind over Persons accused before him of Murther, or the like, as he sees Cause. And for doing his Office of one Slain or Murthered, he may lawfully take 13 s. 4 d. of the Slayer or Murtherer; and if he have none, then of the Town where the Mur­ther was committed, or the Murtherer suffered to escape, 3 Hen. 7. Chap. 1. Lamb. 434.

A Coroner refusing to do his Office of one Slain by Misadventure, without Fees, loses 40 s. 1 Hen. 8. Chap. 7. Lamb. 434.

Writs shall be Awarded to the Coroner, where the Sherriff is Party. The Writ of Covenant in a Fine, Venire facias, &c. 1 Cromp. 416.

[Page 74]One Person may be Coroner of the King's House [Hostel] within the Verge, and of the County too, 4. Co. 46. B. But where there are several, one cannot meddle within the others Ju­risdiction, ibid.

Coroners, as Ministers, must all joyn▪ 4 Co. 57. B. A Coroner, to whom a Writ of Estrepement is directed, is to provide against Wast, by taking Posse Comitatus, H. 7. chap. 85.

An Appeal, or an Accusation, by an Appro­ver, is to be entred before the Coroner, 3 Inst. 129.

A Coroner may be removed by being Minus I­doneus, 5 Co. 58. B.

A Coroner concealing, and not doing his Of­fice, through Fear, or for Prayer, or Affinity, &c. shall be Fined and Imprisoned for a Year, or 3 Years, if he cannot pay the Fine, by 3 Eliz. So of other Officers.

Coroners ought to certify their Inquisitions at the general Goal-delivery, and not at the Sessi­ons, 1 and 2 P. and M. 13. Lamb. 365.

Coroners being Parties to the Exigents and Judges of the Outlawry, ought to be present at the Sessions, ibid.

Coroners are Conservators of the Peace, and may in some Cases Commit Men to Prison, i id.

There lies no Traverse to an Indictment before the Coroner super visum corporis, 3 Inst. [...]5.

Coroners may be Convicted of Offences against the Statute, 1 Hen. 8. Chap. 7. by Examination of Witness, and touching Extortions, or not Ex­ecuting their Office before the Justice of Peace, Cro. 130▪ b. Lamb. 435.

[Page 75]Coroner exacting above a Noble for the View, and 2 s. for his Clark, Fine 40 s. See 1 Inst. 149.

CHAP. XXXIII. Some other Matters relating to the Coroners Office and Duty in View of Dead Bodies, out of Rastal, &c.

THE Law, says he, is, if any Man or Wo­man, &c. be Wounded, and thereby, in Peril of Death, the Party that did it, or was helping in doing it, being apprehended, may be Committed and kept in Custody, till it be per­fectly known by the Testimony of Skilful Persons, whether the Wounded Party will Live or Die of those Wounds or Blows given, and if he Die, the Coroner, upon view of the Dead Body, shall en­quire of him, or them that have done the Fact, whether Man or Woman, and take the Names of them that were present as Witnesses, or any o­therways knowing of it. Also he shall take espe­cial notice of the Abettors and Concealors in, or towards the Fact, or any way therein concerned, and so found to Enrole and Certify the same.

The Coroner, according to his Inquest, shall give in their Verdict, if their be Cause; for he is to take care to Prosecute the Offender or Of­fenders, if the Relations of the Deceased or o­thers refuse, or are slack in so doing; so that if any Man, &c. be Slain or Murthered, and there­of the Slayers, Murtherers, Abettors, Main­tainers and Comforters may be Indicted, and brought to Arraignment and Tryal of the Is­sue, whether they are Guilty of the Murther, Manslaughter, &c. or not Guilty, which may be done any time in a Year and a Day after [Page 76] the same Flony and Murther Committed which must be Dated from the Time of the Wounding, or Beating, not from the time of the Dying, if the Party Languish, and live any time after, though somewhat considerable, as a Week, a Month, or more.

And the Wife, or Heir of the Person so Slain, or Murthered, as the Case requires, may Commence his, or her Appeal in proper Person any time within the Year after the said Felony done, before the Sheriff, and Coroner of the County where the said Felony and Murther was done, or before the King in his Bench, or Justi­ces of Goal-delivery. And the Appellant in any Appeals of Murther, or Death of a Man, &c. where Battle by the Course of Common-law seeth not, may make their Attorneys, and Appear by the same.

And the said Appeals after they be Commenced, may be proceeded in to the end of the Suit and Execution.

If a Murtherer, or Man-slayer escape, the Justi­ces of the Peace have Power to enquire of such Escapes, and to certifie 'em in the King's-bench, and that after the Felony found; the Coroners deliver their Inquisitions before the Justices the next Goal-delivery in the Shire, or County where the Inquisition is taken; and they are to proceed against such Murtherers, if they be in Goal, or else certifie the Inquisition in the King's-bench, or as it is worded, put the said Inquisition before the King in his Bench.

All such Coroners as are Remiss in their Of­fice, or Duty of their Place, and make not their Respective Inquisitions upon the view of the dead Body, and certifie not according as afore­said, or Ordained, every Coroner for such Of­fence [Page 77] Forfeits to the King 5 l. by 3 Hen. 7. Chap. 1.

And now that the Coroner may not be igno­rant what is Murther, I shall briefly lay it down in general, and many material Particulars.

CHAP. XXXIV. Murther, how to be ta [...], and what is Observable therein to make it so wilfully, &c.

MUrther is when a Man or Woman upon Ma­lice propense, Precedent, or Fore-thought doth Feloniously Kill another living within the Realm, or under the Protection of the King, whether openly, or privately done, or whether the Party Slain be English, or an Alien, Lamb. 237. Dalt. 342. Cromp. 21. a. Num. 1. Clergy taken away, 1 Edw. 6. And in this Case Killing shall have Relation to the Death, and not to the Stroak, 4 Coke 42, Crompt 21. a. Num. 1.

Malice is either expressed, Crompt. 21. a. Dalt. 241. or Implyed, Lamb. 239.

Malice Expressed, is in a Case where it is known there is Malice between the Parties, Crompt. 21. a. and is apparent, and where there is a preceeding Falling out, or lying in Wait, or Time and Place Appointed, Lamb. 238. Dalt 343.

Malice Implyed is to be taken where a Man or Woman, &c. is killed suddenly without De­fence, Crompt. 21. a. Numb. 2. Dalt. 343. As one busie at Reading, or going over a Stile suddenly Killed by a Party, or where one Killeth another [Page 78] without Provocation, one Stabbed, and not having a Weapon drawn, Dying in six Months, these are Murther, and so noted by Dalton, Lam­bert, Crompton and others, and the Statute of Stabbing, 1 Jac. 1. c. 8. Dalt. 343.

To Kill an Officer known in Executing Pro­cess, Dalt. 343.

So to Kill an Officer unknown, if he shew his Warrant; and if an Officer hath the King's Writ or lawful Warrant, though the Process be Erro­neous in Awarding, or one Process taken for ano­ther, and the Officer be Slain in Executing it, it is Murther, Dalt. 343. 2 Cro. 280. 9 C [...]. 68. Lamb. 240. So tho' the Arrest were made in the Night-time. But where the Arrest is Tortious, or where an Officer not known shews not his Warrant, or the Arrest be made on the Lord's-day, usually called Sunday, (by Stat. Caro­li 2.) it is but Manslaughter, ibid.

It is Murther to Kill a Magistrate or Mini­ster of Justice, in Executing his Office, or in keeping the Peace, Crompt. 25. B. Numb. 51. Dalt. 343.

An Officer Whipping or Branding to Death, is Murther, 344. A Rioter Killing an Officer, or Assistant coming to Suppress a Riot, it is Murther in the Rioters, Dalt. 443. Crompt. 23. B. Numb. 28. Lamb. 241.

A Thief Killing a True Man resisting, it is Mur­ther of Malice Propense, for here Malice is im­plyed by the Law, because the Thief came pur­posely to do an ill Act, tho' not purposely to Kill the Man. See Lamb. 241. Dalt. 344. Crompt. 22. a. Numb. 13. 9 Co. 67.

One Assaulting another, after the Assault fly­eth to the Wall, and then Killeth the other, it is Murther; for he Slew him in the said Malice wherein he did Assault him, Lamb. 239.

[Page 79]One Condemn'd to Die, is Killed by a private Person without Warrant, or by the Judge who Condemneth him, or by the Officer contrary to the Judgment, it is Murther, Dalt. 340. Lamb. 24 [...]. 5 Eliz. 1.

So a Physitian or Surgeon, having Malice, Ap­plies a contrary Medicine, of which the Patient Dies, Dalt. 344.

A Person carrying his Sick Father, &c. and laying him in the cold Frost, &c. so that he Dies, is Malice; for by it the Law presumes he intended his Death. So a Strumpet covering her Child with Leaves in the open Way, &c. to hide it, and a Beast tramples on it, and Kills it, or a Cart goes over it, &c. Lamb. 240 Dalt. 352. and of the former, Dalt. 344. Lamb. 740. And many the like Cases, too long to be here set down, where there is Malice fore-thought, Propense, or that the Law presumes, or implies it to be Malice in the Party who Kills another, or sets on another to do it, by Assassina­ting, &c.

CHAP. XXXV. Homicide and Man-slaughter, Felo de se, &c.

HOmicide is Killing of a Man by Man, Dalt. 339, 349. Exivi Termini comprehends Treason, Murder, &c. It is no difference whe­ther the Party Slain be a Denizen, Alien, or Eng­lish Man, if he lives under the King's Pro­tection, Dalt. 340. Lamb. 237. Crompt. 221. [...]. Numb. 1.

[Page 80]To kill one Attainted for Treason or Felony, or Outlawed for Felony, or Attainted in Premu­nire is Felony, by 4 Eliz. Stamford. 13 Dalt. 342. Crompt. 24. a. Num. 39.

Homicide is either killing himself, Felo de se, or by another, and Felo de se; a Man by killing himself Forfeits to the King his Goods and Chat­tels, Real and Personal, and his Debts due by Speciality, Dalt. 341. But no Lands nor Blood Corrupted, ibid. But his Goods are not forfeit till his Death. ibid.

An Infant, or non Compos mentis, does not forfeit, but a Lunatick killing himself out of his Lunacy, doth forfeit his Goods, Dalt. 340.

Homicide of another, is either Voluntary, or Involuntary; Voluntary is Murther, vide Murther, or Manslaughter.

Manslaughter is when two Men, &c. fight to­gether on a sudden without precedent▪ Malice, and one of them kill the other, Dalt. 349. Lamb. 248. Crompt. 16. a.

Manslaughter is either by Chance-medley, or se defendendo, House and Goods.

By Chance-medley is Felony, but may have Clergy, Dalt. 349.

One Fighting breaks his Weapon, another standing by puts one into his Hand, or otherways lends it him, and with it he kills another, it is Manslaughter in the Lender, Dalt. 134. Crompt. 16. b. Numb. 12 Lamb. 252.

The Servant Fighting in his Master's Defence, though there were Malice in the Master, and not told to the Servant, and one be killed, Lamb. 248.

So a Stranger taking part, Lamb. 238. is Chance-medley, Dalt. 348.

[Page 81]If two that were in Malice are Reconciled, and fall out upon a new Occasion, and is kil­led, it is Manslaughter only, Dalt. 350. Lamb. 250.

Se defendendo, is where one killeth another in the necessary Defence of himself, or his, thereby to save himself, or his Possessions or Goods, or some other Person which he is bound to defend from Peril, and it is either against a Felon, Murtherer, Thief, or Loyal Subject, Dalt. 356. Lamb. 152.

Against a Loyal Subject, if he be Assaulted by another Man, he must fly so much as he may till he be letted by some Wall, or other mate­rial Hindrance, that his Necessity of Defence may seem Inevitable; and he shall be Committed till the time of his Trial, lose his Goods, and Sue out his Pardon, Lamb. 253. Dalt. 35. It is not material if he strikes again before he gave any deadly Wound, if he flies to the Strait, Dalt. 357, 358.

If a Man fly to a Wall, and hold out his Weapon, if the Pursuer run upon it and is killed, it is se defendendo, and forfeiteth his Good, Crompt. 28. a. Numb. 7. Dalt. 349. But if he had fallen on the Ground, and the other fall on it and kill himself, there is no loss of Goods; for he could not fly, and the Slain is in a sort Felo de se, ibid. P. R. 122. b. Stam. 16. a.

If a Man fall to the Ground, there his flying to a Strait is not necessary, because he might be there inevitably killed, if he did not defend him­self, Dalt. 347, 358.

An Officer or Minister of Justice Executing his Office, is not bound to fly. Dalt. 358. Coke 99, 98.

[Page 82]If a Servant Kill one that Robb'd or Kill'd his Master, so it be done presently, or in defence of his Master's Person or Goods, if he could not o­therways have avoided the same, Dalt. 358. Crompt. 28. Numb. 2.

To Shoot at one that comes to Burn a Man's House, is justifiable in him or his Servants, Dalt. 356. &c.

In the Defence of the Possession of a Man's Goods or House, he may justify to Beat him, but may not Kill him, though the Party come wrong­fully to take his Goods, unless he be a Thief, Dalt. 358. &c.

To Kill a True Man in Defence of House, Goods or Land, is Man-slaughter, Dalt. 358. Crompt. 27. b. Numb. 4.

CHAP. XXXVI. Involuntary Homicide.

THis is either by Mis-adventure or Neces­sity.

The first is, when a Man, doing a lawful Act, Killeth a Man: This is not Felony of Death, but he shall have his Pardon of Course for Life, and Lands, but forfeiteth his Goods, Lamb. 254. Dalt. 351.

For Example: A School master, Father, Mo­ther or M ster Correcting a Child, Scholar or Ser­vant: Moderately Shooting at Pricks, Butts or lawful Marks: A Work-man casting Tiles, Tim­ber or Stone from off a House, or any thing from a Cart, and giving warning, or doing other law­ful things, giving warning.

[Page 83]But the Killing of a Man in doing any unlaw­ful Act without evil Intent, is Felony; as shoot­ing Arrows, casting Stones into Highways where People resort, or unto other places of usual Resort, Dalt. 352.

If a Man be Slain by the Fall of a House or Tree, by a Beast, &c. Any Party, by a wilful Default, causing it, it is Felony, Dalt. 251.

The thing that causes the Death, is a Deodand, and forfeited to the King, Dalt. 353. Crompt. 35. a.

Deodands are not Forfeit, till the Matter be found on Record.

If a Man be Slain under 14 Years of Age, no­thing is forfeited as a Deodand, Dalt. 353. Lamb. 21, &c.

These Generals and Particulars among others, are to be taken notice of by the Coroner, on the view of Dead Bodies; hearing of Evidence up­on their Inquisition, and others concerned, as Occasion shall administer, that Justice may be done, and Matters so ordered, as may make things bear a true Face in the Eye of the Law. And so in this Briefness, for want of a larger Scope, I am constrain'd to end what relates to the Office of a Coroner, out of which he may ga­ther many useful Matters and Things, to his great Easement, in performing, the weighty Trust repo­sed in him.

CHAP. XXXVII. Customs, Advantages, &c. peculiar to the City of London. Statutes made in its Favour. Of the Court of Request, commonly called the Court of Conscience, &c.

THE City of London enjoys many Priviledges, by Charter and Customs, which in some Cases bear the Force of a Law, or are Equiva­lent to it, as well as many Statutes made in Favour of that City, the Metropolis of England, and for Trade and Riches Famed throughout the known World; some of which Advantages, for the better Information of those that are Ignorant of them, I shall set down in their Order.

CHAP. XXXVIII. Where an Action will lye before the Day, or Pay­ment, to find better Sureties by the Custom of London.

IT is Ordained that a Merchant may cause his Debtor, to come before the Lord Mayor of London, or of any other Town, and a Clerk by the King appointed to acknowledge his Debt, and the Day of Payment, &c. Vide Stat. Burnel, 11 Edw. 1. Recog. 1. And afterwards it is enlarged by the Statute de Mercatoribus, and a more speedy Re­medy is given, 13. Edw. 1. Recog, 2.

The Custom of London is, if a Man be Fugi­tive, who is Indebted, that the Creditor may Arrest him to find better Sureties, but he shall [Page 86] not Recover before the day of Payment, 5 Edw. 4. Lond. 24.

Where one is Arrested in London, to find better Sureties, if the Suit be here in Trespass, or other­wise, and he comes by Cepi Corpus, although the Plaint be upon the Custom only, for which Reme­dy is at the Common-Law, yet the Prisoner may be Discharged, 9 Edw. 4, 35.

The Custom of London is, that one may be Ar­rested before the day of Payment, to find better Sureties, 11 Hen. 6.3. P. 1.

CHAP. XXXIX. Marking a Cause in the Mayor's Court, after a Verdict given in the Sherriffs Court to be done.

THere is a Practice in London, called, Marking a Cause before the Lord Mayor, which is after a Verdict given in the Sheriffs Court for the Plaintiff; in this Case, the Defendant is to get the Cause mark'd before the Lord Mayor's Court, and is like an Injunction in the Chancery, to stay Judgment and Execution, until the Matter be Examined in Equity, where the Lord Mayor doth oftentimes, if Cause be, Mitigate the Damages, or give the Defendant time to pay it.

CHAP. XL. Some Matters relating to Orphans in London.

By the Custom of the City of London the Lord Mayor and Aldermen of the City, shall have the Custody of all Orphans within the City, and they may commit the Custody of such Or­phans to their Guardians; and if an Orphan be taken away from any other Man; &c. to whose Custody he is committed, he shall have a Writ of Ravishment of Ward, so that in this case the Court doth in some wise resemble the Court of Wards.

Likewise the Lord-mayor and Chamberlain of the City of London for the time being, shall have the keeping of all the Lands▪ and Goods of Or­phans within the City; saving to the King and o­ther Lords, their Right of such as hold of them out of the same Liberty.

Executors and Administrators are to exibit true Inventories before the Lord-mayor and Aldermen, and give Security to the Chamberlain for the time being, by Recognizance; and upon refusal so to do the Court may commit them to Prison till they shall do it.

And all such Recognizances or Bonds made to the Chamberlain concerning Orphans, shall go to him and his Successors, the Chamberlain of the Ci­ty being a sole Corporation for Orphans. If the Ecclesiastical Court doth impugne the Custom of the Court of Orphans, and if any Orphan sue in the Ecclesiastical Court or elsewhere for a Legacy or any Duty due to them, the Court of Orphans may by Custom grant a Prohibition; Coke Institut. 4. Part Folio 249.

Also by the Custom of London, if a Father ad­vance [Page 94] any of his Children with any part of his Goods that shall bar them to demand any fur­ther, unless the said Father, under his Hand, or by his last Will and Testament, doth declare, that it was but in part of Advancement, and then that Child so partly advanced, shall put his part so re­ceived in Hotch-potch with the Executors and Widow, and have a full third part of the whole, accounting that which was formerly given him as a part thereof, and this the Civil Law calls Collatio Bonorum.

CHAP. XXXVI. Of the Court of Common-Council for London, &c.

THis dignified Court is held by the Lord Mayor, Aldermen and Commonalty, re­sembling the High Court of Parliament, and con­sists of two Houses, viz. The Lord Mayor and Aldermen, being of the upper House, and such as are chosen in every Ward out of the Commo­nalty, Constitute the lower House of Commons, and represent the whole Commonalty of the City of London.

Here they make Acts for the better Govern­ment of the City, and for the better Execution of the Laws and Statutes of the Kingdom, for the publick Good, and for the better Advancement of Trade and Traffick, so as these Laws be not Contradictory to Laws and Statutes of the King­dom; and these Acts of Common-Council so made are binding within the City of London and the Li­berty thereof, carrying with them the Force of Laws, &c.

CHAP. XLII. The Antiquity of a Constable, his Oath, and other things concerning his Office, &c.

THE Office and Duty of a High Con­stable, Petty Constable, Head-burrough▪ Tithing Man, &c. in the discharge of them any weighty Affairs that they are obliged to under­take; with safe Directions how to act on the several Occasions.

The Office of Constable is very ancient; for no sooner had King Alfred given the Danes ma­ny fatal Overthrows and forced them to retire to their own Country, but for the better Ordering his Kingdom, he divided it into Shires and o­ther Subdivision, as Tythings, Rapes, Waping-takes, Ridings, Leets, Boroughs, &c. That proper Officers being appointed in each County and Subdivision, the Civil Government might not only be well administred, but the People quickly gathered and brought to the Field, in order to quell any Insurrections and Invaders; and this proved so effectual for the preventing of Robberies, that Historians of good Account tell us the Roads were so well guarded that Gold [Page 97] Bracelets, Saddles, and other things of Value were fastned to Pillars in Cross Ways, and rare­ly any one was so hardy as to take them thence. This King began his Reign Anno Dom. 872. And ended it 898. and is held to appoint the first High and Petty Constables in England, which Offices have ever since continued in good Esteem; nay, the Saxon Word makes the Antiquity of Constables plain in Etymology. The Saxon be­ing Coning or Cyng and Staple or Stable, which signifies a Stay or Prop to the King, that is, to the Government, in laying Hands on Offenders, and bringing them to Justice; and though the High Constable of England's Office, usually a No­ble Man appointed by the King, is ceased, yet the High Constables of Hundreds in a great mea­sure retain and hold up the Power, as to what concerns the Civil Government; and these are chosen most usually in each County by the Justi­ces in their General Quarter Sessions, or their respective Divisions; for they have Power to give them Authority, and to discharge them of their Office, as they shall see cause.

The High Constable is as it were Overseer or Director of the Petty Constables, Headboroughs, or Tything-men, which are chosen under him, in the respective Towns, Villages, or Precincts within his Hundred, or such Franchises as are under his Jurisdiction, by the consent of the Inhabitants, or the Majority of them, and their Duty it is to ex­ecute the High Constables Office in his Absence, in keeping the Peace, and good Order in their respective Limits, and upon the High Constables Order to be aiding and assisting to him so far as concerns his Office. And now since both these are necessarily Sworn upon entring on their re­spective Offices, it will be requisite for the better understanding of what they undertake by entring [Page 98] on so weighty a Trust, to set down the Form of their respective Oaths before the Justices, &c.

By this Tenor of an Oath, a Constable may gain a considerable Light into what he is to do, in the Management and Execution of his Office, being as it were an Epitome of what I shall here­after set down more intelligibly and plainly to be understood: But this Oath is often administred in Abstract to a Petty Constable, Tything-man, &c. So that what I now recite suffices.

But passing over these, I now come to direct the Constable, &c. in the more material Parts of his Office, wherein he may readily order and manage his Affairs, in d scharge of his Duty, without running into Inconveniences, or Ha­zards, that may being Trouble and Charges upon him; for whatever the Fancy of some is, a Constable is no more a Priviledged Man, than any other, where he exceeds the Bounds of his Office, in unaccountable Actions: And the first Particular I shall offer, is his Duty in Ser­ving of Warrants directed to him by Justices in Commission for the Peace, or other Magistrates having Power to grant Warrants▪ and how far he may be safe in this, and where he may err.

CHAP. XLIII. The Office and Duty of a Constable, Headborough, &c. in Serving, or Executing Warrants dire­cted to him by Justices in Commission for the Peace, &c.

IF a Warrant be brought to a Constable, or other Sworn Officer, his safest way is to Charge the Party making the Plaine, to Assist him in the King's Name, and shew him the Par­ty, or Parties mentioned in the Warrant, unless himself be well acquainted with him, or them, lest a Mistake by the Names agreeing, may run him into an Error, in taking the wrong Party; and if he be a Sworn known Officer, he may refuse to shew his Warrant; but must declare to the Party he goes to Arrest what is therein charged against him; but it is otherwise where a Warrant is given to be served by one who is not a known Sworn Officer; as a Justices Ser­vant, &c. For there upon demand he must produce the Warrant, or the Party on whom it is Served, may refuse to Obey, and Lawfully Re­sist.

If a Constable Arrest a Man or Woman in the Kings Name, pretending he has a Warrant, and at that time has none, but presently goes and gets one, the Party may bring an Action of false Imprisonment against him, and recover such Damages with Cost, as shall be Awarded, Coke 6.69.

If a Constable have a Warrant against A. B. the Son of L. B. and he takes into his Custody A. B. the Son of R. B. though he happen to be the Offender against whom the Complaint was [Page 103] made, yet he goes from his Warrant, and do­ing thereby an unjustifiable Action, there lies an Action of false Imprisonment against him, 10 E. 4. Fol. 12.

If a Constable Arrests a Man with a Warrant from a Justice of the Peace, and having him in Custody, takes his Word to come again another time; by his so dismissing him, the Warrant is void, and cannot be Served again. But if a Rescue be made, or the Prisoner Escapes with­out the Officer's Consent, then upon fresh Pur­suit he may take him with the same Warrant, as often as he is Rescued, or Escapes, and may pursue him into another Town, or County, though he be out of sight, C ompt. 214. a. and 184. Cro. 53, 114.

If a Justice send a Warrant for a Matter wherein he hath Jurisdiction, though he goes beyond his Authority, yet the Officer is bound to obey it, and his producing his Warrant saves him harmless, the Justice being then to answer for it: but on the contrary, if a Justice Issues out a Warrant for a Matter out of his Jurisdicti­on, where he is no Judge of the Cause, the Con­stable is not bound to Obey it; for he is bound to take notice of the Jurisdiction and Authority of the Judge; and where the Justice, as is said, can be no Judge of the Matter charged in the Warrant, he is no more bound to Obey him, than if he had no Commission, 14 H. 8. Co. 10. [...]6.

If a Warrant be directed to an Officer to serve on a Person for ordinary Matters, the Warrant not specifying the Cause, but only to answer to all such Matters as shall be objected against him or her; this is held to be an illegal Warrant, and the Officer that Executes it lies liable to an Action [Page 104] of false Imprisonment, Cook's Institutes, part 4. Tit. de Frangent. Prison. However for Reason of State Warrants for Treason, or such as are Granted by the Lords of the Privy Council, Se­cretaries of State, or the Lord Chief Justice of England; these need not set forth the Cause, by reason they are usually granted on Matters of great Importance, where Secrecy is requi­red.

If any Party be taken by a Legal Warrant, and make Resistance, the Constable in the King's Name may command Assistance; and if the Resisting Party be Beaten, or Wounded, the A­mends is in his own Hand, for Opposing the King's Authority; but if the Constable, or any of his Assistants be Beaten or Wounded, the Party is Indictable, as likewise liable to an Action at Common-law; and if any of them Die of the Beating and Wounds within 12 Months, it is Murther.

Persons refusing to assist a known Sworn Offi­cer, charging them in the King's Name, lye liable to be bound over to the Sessions, and Fined at the Discretion of the Justices; and the like for those that shall contemn or abuse a Justices Warrant, by tearing, treading under Foot, or any way defacing it, &c. over and above being bound to the good Behaviour; for it is a Contempt against the King's Process, Crompt. 144.

CHAP. XLIV. The Office of a Constable, &c. How it ought to be ex­ecuted, relating to Affrays, &c.

IF a Constable be present at an Affray, he may command the standers by in the King's Name to assist him in keeping the Peace, and up­on Complaint of the Constable, the Inquest may Indict the Party refusing, and be F ned by the Justices at their Sessions, for refusing to do his Duty.

If a Constable, or other such like Officer be present when one Man or Woman Assaults ano­ther, or with violent Words threatens to beat or kill any one, and be in a fury, ready to break the Peace. In such case the Constable, Head­borough, &c. may commit the Offenders to the Stocks, or some other safe place of Custody, till he can carry them before a Justice, who may upon Complaint compel them to find Sureties for the Peace or good Behaviour; and for want of such Sureties, commit them to Prison, 3 Hen. 4, 9 and 10. Bacon's use of the Law, &c.

Where any Affray is like to be, the Constable in the King's Name may command them to de­part on Pain of Imprisonment; and if they re­fuse, he may take them into Custody, or Indict such as refuse, if any harm be done, at the next Sessions; and if a Constable be present at an Af­fray, and does not his Endeavour to prevent it, and seize the Offenders, he lies liable upon a Pre­sentment of the Jury to be Fined, Dalton's Justice of the Peace, c. 1. Fol. 4. 5.

A Constable may resist the Affrayers after Pro­clamation made to depart, and compel them [Page 106] to it by force, and if he, or any of his Assistance be Wounded, they have their Remedy by Statute and Common-law, and if Killed, or Dying of their Wounds, it is Murther in the Affrayers, Lamb. 135. 1 Hen. 7. 7. 3 H. 7. 10.

If the Affrayers be in a House, the Doors loc­ked or bolted, the Constable may break them o­pen to part the Affray, and keep the Peace, though none have taken hurt; and if they fly into another House, the Constable upon fresh Pursuit may break into that House to apprehend them, and so till they shall be taken, Lamb. 125. 7 Edw. 3. 19.

If any be dangerously hurt in an Affray, though the Constable be not present at the Af­fray, yet may he seize the Offenders, and carry them before a Justice of the Peace, who is to re­quire Sureties of them, or the Wounds being supposed Mortal, to commit them to Prison, till it be certified by Chyrurgeons or Physitians, whe [...]her the Pa ty will live or Die, Dalt. Just. P. c. 8. Fol. 33.

After the Affray is over, the Constable not be­ing present at it, cannot seize them without Warrant, unless some one be dangerously Wound­ed, and much Blood drawn. If Affrayers escape into an other County, or Franchise, a Constable upon fresh Pursuit may seize them there, and carry them before a Justice of the Peace of the same County to find Sureties for the Peace; but then he must see the Affray.

All Contests a [...]e not properly Affrays; for to make it such there must be some Blows given, or offered to be given; for hasty Words will not warrant an Affray, unless they threaten to Beat, Kill, or Wound one another; and in such Case a Constable may Apprehend the Offenders, and carry them before a Justice, to find Surety for the [Page 107] Peace; and yet such threatning Words are not properly taken for an Affray, Dalt. Just. P. c. 8. Fol 34. 38. Hen. 8.

CHAP. XLV. The Constables Office relating to Arrests, or Escapes of Prisoners, Felons, &c.

UPon a Constable, or any Swo n Officer of the Peace, having Arrested a Felon, or ta­ken any Person into Custody on Suspicion there­of, and he is conniving at his Escape, or giveth him leave to go out of his Custody at Liberty, so that he does escape, it is no Felony in the Prisoner, but it lies upon the Constable, and he must Answer for it; but if the Prisoner acciden­tally escape without the Constable's Consent, he is then Guilty of Felony, and the Constable Finable for his Negligence.

If a Constable by his Negligence let a Priso­ner in his Custody have Opportunity to make away with himself, by Stabbing, Drowning, or any violent Death, he is Fineable, Dalt. Just. P. c. 1 6. Fol. 272.

Where a Felony is committed, and one is ta­ken by a Constable on Suspicion of committing it, though afterward the Constable be very well satisfied he is innocent, yet may not he discharge him without carrying him before a Justice of the Peace; for being once taken into Custody, he must be delivered by due course of Law; nor may a Constable suffer the Compounding any Felony; for if it be done after he Arrests the Party, or before, he is to declare his Knowledge of such Compounding before the Justice, or for [Page 108] Conniving to Extenuate the Fact, and set the Pri­soner at Liberty, he is Finable; and some hold he may be brought in as an Accessary.

A Constable may use all lawful Means to secure his Prisoner, as setting him in the Stocks, or putting Irons on him, if he be Unruly, till he can carry him before a Justice; or Pinion his Hands behind him with Cords, to prevent his Escape in carrying him thither, or to Prison.

If the Goaler will not receive a Prisoner of a Constable where he is lawfully committed, he must not however let him go, but bring him back to the Town or Village where he was taken, or where the Constable dwells, and the Town where he was taken shall be at the charge of keeping him until the next Goal Delivery, to be raised by way of Tax amongst the Inhabitants, if the Prisoner has no Mony or Goods to defray it; and in such Case the Goaler shall be Punished by the Justices in their Sessions or Assize, for his Refusal and Contempt. If there be much Charge in carrying a Prisoner to Goal, the Inhabitants where he was taken may be obliged to contribute to it, to be Levyed by such of the principal Inhabitants as shall be thereunto appointed at their Discreti­on.

CHAP. XLVI. The Office of a Constable, &c. In Relation to Hue and Cry, and how he must discharge his Duty therein.

WHen a Hue and Cry is Levyed and Is­sued out, whether for Robbery, Mur­ther, &c. when it comes to the Hands of a Con­stable, Headborough, Tythingman, &c. They [Page 109] must forthwith make diligent Search in all sus­pected Houses, Barns, and Out-houses, and other Houses at their Discretion, and all Places within their Liberty or Precincts, and have Power to stop any Suspected Persons, as in Search or Pur­suit they shall find or suspect to have done the Fact, comparing him or her, or their Horses, with the Description given in the Hue and Cry, and if Cause be found to carry the Party before the next Justice of the Peace in the County where taken, there to be strictly Examined where he or they were at that time of the Fact committed, and for the neglect of this Duty, the Officer lies liable to be Fined by the Justices in Sessions, and search being diligently made, must without delay send it to the next Constable or Officer of the Peace, unless the Party or Parties be taken who are known to have committed the Fact mentioned therein, Dalt. Just. P. c. 28. Fol. 75.

Where a Robbery is committed in a Hundred, and the Hundred is sued for it, though the Dam­mages are recovered against one or two of the said Hundred, yet they are not to bear the Charge, but the rest must proportionably contri­bute according to their Ability; and two Justi­ces of the Peace, one to be of the Quorum, dwel­ling in or near the said Hundred, may set a Tax on every Parish within it, and then it is the Duty of the Constable or Tythingman of each Parish to settle the Gross Tax proportionably on the Inhabitants in particular, and may upon refusal of Payment make Distress and Sale of Goods, delivering the Overplus on due Appraisement to the Owner; and the Money so collected is to be put into the Hands of the Justices, or some of them that made the Rate, within Ten days after, according to 27 Eliz. Cap. 13. &c.

[Page 110]If fresh pursuit on the Hue and Cry shall cease in any Hundred, it is lyable to pay half the Dam­mages to the Hundred wherein the Robbery was committed, to be recovered by Action in any of his Majesty's Courts at Westminster, at the suit of the Clerk of the Peace for the County; and though in the mean time he die or be changed, the Suit shall not fall or abate; and when so re­covered, it is to be levied on the Inhabitants by way of Tax as the former, 27 Eliz. Chap. 13.

If any one of the Robbers be apprehended and brought to Justice and Convicted, it saves the Hundred their Mony, because it is looked on they have regard to watching the Roads for the secure Travelling of Passengers. Also when the Action is not brought within one Year after the Robbery committed.

The Robbery must be committed in the King's High Way, between Sun-rise and Sun-set, and Oath made of it, with the Summ lost, before the next Justice of the Peace, with all convenient speed. The Hue and Cry thereupon issued out, must be made with Horse and Foot, or else it is held illegal, Bracton Book 3. Folio 121. Dalton Just. P. Fol. 133.

Who so goes not Armed and fitly prepared at the Command of the Sheriff, or Constable, when the Hue and Cry is issued out, (to Arrest the Robbers or Felons) after attainder may be severe­ly Fined and Imprisoned Westm. 1. Chap. 9. Cook second part of Institutes, Folio 172.

CHAP. XLVII. The Constables Office, &c In what more particularly Relating to the Conservation of the Peace.

THough a Constable may do his Endeavour to keep the Peace, yet if it be broken, he [Page 111] cannot take Surety for it at the request of any one, H. 7. Fol. 18.

Before a Warrant of the Peace be served, the Constable or other Officer ought to acquaint the Party with it, and charge him in the Kings Name to go along with him, to put in Sureties, if re­quired; and if he refuse so to do, then to com­pel him to do it; and if it be an unseasonable time, that the Justices be in Bed, or not to be found, he may secure him under a Guard, or in Prison, if he will be so Rigorous, till he can convey him before a Justice, and is not bound to run up and down from place to place with him, nor lose his time in staying till the Prisoner can send for Sureties, [...] may immediately carry him be­fore what Justice he pleases, and not submit it to the Prisoners Election, nor to that of the Party that makes the Complaint, unless the Warrant be special, of which particular I shall speak more fully in an other place.

If a Constable have a Warrant of the Peace against a Person to find Sureties, where the mat­ter is palpable, the Party having notice of it, may supersede it, by putting in Surety before another Justice, to answer the Complaint the next Sessions, and then if that Justice, being of the same County, send a Supersedeas to the Officer to discharge further Surety, and he notwithstanding Arrest the Party to find Surety, or Imprison him, he may bring his Action of false Imprisonment against the said Constable, or for the like contempt of the Officer upon a Supersedeas out of Chancery, or the Kings-Bench, for a Supersedeas is a Dis­charge of the former Warrant, Dalt Just. P. Chap. 69 Folio 158.

Upon Notice given to a Constable or other Peace Officer, or if it be upon his or their [Page 112] own Knowledge that a Man or Woman Adul­terously cohabit together, or live in Fornication, being of Evil Report, he may search any suspe­cted House for them wherein he is informed or knows they are in the Night time, and there ap­prehend them and carry them before a Magistrate to find Sureties for their good Behaviour, 13 H. 7. 10. Dalt. Just. P. Chap. 75. Folio 189.

If any one abuse or affront a Constable in the Execution of his Office, either by Word or Acti­on, he may have him bound over to the good Behaviour for such his Offence, and Fined before the Justices in their Sessions as they see fit upon Proof, &c. Fitz. 207. Crompt. 135.

All injurious Force and Violence used against the Person, Lands, Goods, or other Possessions or Chattels, of a Man or Woman is held a breach of the Peace, whether it be by threatning Words, Furious Gestures, or Bodily Force, Dalt. Chap. 3. Fol. 9.

Note, upon any Disputes in an Alehouse or Tavern, &c. about paying the Reckoning, and the Parties offer to make their Escapes without paying, if there be no Swords Drawn, Beating, Wounding, or visible breach of the Peace, the Constable is not bound to go though sent for, nor is it Warrantable for him to Arrest and carry them before a Justice, unless a Warrant be put into his Hand; for this is only a Debt, and the Party ag­grieved must bring his Action, for the Credit he gave for the Victuals or Drink, &c. being freely delivered by his Consent, and those Constables that are over Officious to trouble themselves this way, may bring themselves into Trouble, and only be laughed at by those that set them on work, and counted their Stalking Horses.

No Warrant, Writ or Process shall be served on the Lords Day, commonly called Sunday, ex­cept [Page 113] for Felony, Treason, or the Breach of the Peace; for otherways the Service shall be void, and the Justice may discharge the Warrant without examining the Parties, and the Party serving it shall be obliged to answer Dammages, as if no Warrant had been to the Party who is Arrested and detained by such a Warrant on the Lords Day, 29 [...]aroli. 2. Chap. 7.

CHAP. XLVIII The Office of a Constable, &c. Relating to the strict Observance of the Lords Day

IF any Butcher Kill and Sell any Victuals on the Lords Day, or any one do it for him, the Con­stable by Distress and Sale of his Goods may le­vy 6 Shillings 8 Pence upon Warrant from a Justice, &c: But the Complaint or Information must be made within six Weeks, and the Party thereof Convicted before a Justice of Peace, Mayor or Chief Officer, upon their own view, proof of two Witnesses, or the Parties own Confession; and they may at their Discretion gratify the In­former with the third part of the Penalty, 3. Car. 1. Chap. 1. Daltons Just. P. Chap. 50. Fol. 134.

If any one on the Lords Day be present at, or keep any Shooting, Wrestling, Ringing of Bells for Pleasure, Bowling, Church-Ales, Wakes, Masks, or any Games, Sports or Pastimes what­soever, they shall forfeit Five Shillings, if above the Age of 14, if under that Age 1 Shilling, to be paid by him or her that has the Government of the Party, to be levyed by the Constable on Sale of Goods taken in Distress, by Warrant from a Justice of Peace or Chief Magistrate, and for [Page 114] want of such Distress the Offender to be set in the Stocks for the space of 3 Hours: And any Carrier going by way of Travelling with his Horse on this Day, or any Carrier, Waggoner or Waynman going with any Cart, Waggon, Wayn, or Drover with Cattel, Forfeits 20s. for every such Offence, to be levyed by Distress and Sale of his or their Goods, if charged and duly con­victed within six Weeks after the Offence com­mitted, as in the Case of Butchers, and the Mo­ney shall be had to the use of the Parish where the Distress is first made; for though they pass through several Parishes, yet are they to pay but 20 s. for one Journey, 3 Car. 1. Chap. 1. Dalton Chap. 50. Folio 134.

If any Bull-baiting, Bear-baiting, Enterludes, or other unlawful Games and Pastimes of the like Nature, be held in the Parish or out of the Parish on the Lords Day, upon Warrant to him directed, the Constables, &c. may levy 3s. 8d. by Distress and Sale of the Offenders Goods, ren­dring the Overplus to the Owner, if any b [...] or set the Party for want of such Distress in the Stocks by the space of 3 Hours, but then the Party of­fending must be questioned within the space of a Month after the Offence committed, 1 Caroli 1. Chap. 1 Dalt. Just. P. Chap. 23. Folio 6 [...].

None shall do any work by Labour or Busi­ness on the Lords Day, Works of Necessity and Charity only excepted, but that the Offender if above the Age of 14 Years, or upwards, shall forfeit 5s. None shall cry and expose to sale any Wares that Day, on pain to forfeit them, except Milk, and that before Nine in the Morning, and after Four in the Afternoon. No Drover, Higler, Horsecourser, Butcher, or their Servants shall Travel on the Lords Day, upon pain of for­feiting [Page 115] 20s. No Person shall Travel on this Day on Horseback, or with Boat, or Wherry, un­less on extraordinary Occasions, to be allowed by a Justice of the Peace or Head Officer of the Place, under penalty of forfeiting 5s. No Hack­ny Coaches to Travel that day, unless such as are allowed by the late Act of his present Majesty King William 3. &c. for Licensing Hackney Coach­es, &c. 29 Caroli 2. Chap. 7. And Penalties upon this Act are for the use of the Poor of the Parish where they are levied, or the Offence com­mitted, saving the Justice or other Head Officer may reward the Informer if he think fit, with a Third Part. And further note, that the Prosecu­tion of this Act must be made within 10 Days af­ter the Fact committed.

Dressing Meat in Inns, Cooks Shops, and pri­vate Families are not prohibited on the Lords Day, by the Statute of 29 Caroli 2. And for the better encouragement of the Mackrel Fishery, they are in the Season to be Sold on this Day, but before and after Sermon time only.

CHAP. XLIX. The Office and Duty of a Constable, &c. required about hired Servants, Labourers, &c.

IF Labourers are wanting in Harvest or Hay time, the Party so standing in need, may require the Constable to cause such Persons as he thinks fit to Mow, Reap, or do any Work relating to getting in the Hay and Corn Harvest, and they to be payed by the Day, according as they are a­ble to perform; and if they shall refuse to work after they are requested thereunto by the Con­stable, he has Power to set them in the Stocks [Page 116] by the space of two Days and one Night, and upon the Constables neglect to perform his Duty in this Case, he forfeits 40s. 5 Eliz. Chap 14.

Servants, &c. After the time of their Work be expired, they being employed in Husbandry, or any Arts appointed in that Statute, they shall not depart the Parish, City or Town where they last served, to any other without a Testimo­nial, (that is) in a Town Corporate, under the Hand and Seal of the Chief Magistrate and two Housholders there, and in the Country, under the Hands and Seals of the Constable or other Officers, and two Housholders of the said Town or Parish where he or she last served; and the Minister is to receive Two Pence for Registring the said Testimonial, which is to be delivered by him to the Party whose Name is mentioned therein, according to the Statute of the 5 Eliz. Chap. 5. and the Testimonial is to run in this Form.

If the Party lives with a Widow or any single Person, then instead of Master set down Mistress, or Dame, with the Womans Name, and the Name of the Servant, be it Man or Maid Servant, or what else they term themselves; and if the Parties they live with be Handycrafts, or any o­ther Calling, their Calling, with their Names, and the place of Abode, must be set down and testified in all respects, as aforesaid.

He or She that Entertains any Servant without such a Testimonial, forfeits Five Pounds, being lawfully Convicted upon Indictment before the Justices in Sessions, and every Servant not pro­ducing such a Testimonial to the Mayor, Con­stable, Churchwarden, Minister, or other Officers impowered to inspect it, may be Imprisoned till such a one be procured; and if he or she procure not one in 21 Days ensuing the Day of Imprison­ment, or produce a false and counterfeit one, he or she so doing is to be Whipt, and used as a Va­gabond, 5 Elizabeth Chap. 4. Dalton Just. P. Chap. 31. Folio 63. And this Statute relating to Testi­monials, was punctually observed; tho' of latter days it has not been much regarded, that people taking Servants at they knew not what Hand, have been frequently Robbed by them, not knowing afterwards where to find them or enquire after them, and therefore it would be well if it was yet strictly kept in use; and indeed the penalties are in as much force to be inflicted as ever.

CHAP. L. The Office of a Constable, as to what he is to do re­lating to Popish Recusants and Conventicles.

ANY one exceeding Sixteen Years of Age, be­ing a Popish Recusant, must within 40 Days after Conviction repair to their usual and known Dwellings, and not to remove five Miles thence, under Penalty of forfeiting all their Goods, Lands and Chattels, Anuities, &c. during Life; and if they can assign no certain place of Aboad, then are they to repair to the place of their Birth, or where their Father or Mother dwell, if they are living, and in 20 days after their Arrival give in their Names to the Minister, Constable, and Headborough in Writing, which Minister is to enter them in a Book to be kept for the purpose, and he with the said Officers are to certify the same the next Quarter Sessions, where the Justi­ces of Peace are obliged to cause the same to be inrolled, 35 Eliz. Chap. 2. Wingate's Stat. Title Crown.

Note, that the Church Wardens and Constables of every Parish, or one of them; and where there are none such, the High Constables of the Hun­dreds are every Year once in the Year at the Ge­neral Sessions held for the Peace, to present Po­pish Recusants for their Monthly Absence from Church, and return the Names of their Children above Nine Years of Age, being then with their Parents; also their Servants, together with the Age of their Children, as near as they can com­pute, or to forfeit 20s. for every such Default, which Presentments the Town-Clerks, or Clerks of the Peace are to Record, without taking Fees for them, under a Penalty of 40s. 3 Jacobi 1. [Page 119] Chap 4. Wingates Statutes, Tit. Crown. And if the Minister, Petty Constable and Church Wardens of any Parish shall make a Complaint to the Justice of Peace, that he or they suspect such a one to be a Popish Recusant, but have no Proof of it, then the Justice may tender the Party the Oaths in that case appointed; and upon Refusal, if above the Age of 18, he may commit the Party to Prison till the next Assize, and then if again refused, it is Premunire in a Man, but a Woman Covert shall only suffer Imprisonment, and re­main without Bail till she take the Oath of Al­legiance, &c. 7 Jacobi 1. Chap. 6. Wingate's Stat. Tit. Crown, Dalt. Just. P. Chap. 45. Folio 108.

By a Statute, the first of William and Mary, no Papist, or reputed Papist refusing to make and subscribe the Declaration, they are obliged to by the 30 Caroli 2. and the Oaths enjoyned in an Act for removing and preventing all Questions, &c. about the Assembling and Sitting of this present Parliament, shall at any time after the 15th. Day of May, 1689, have, or keep in his own Possession, or at his Disposal any Horse, or Horses valued above Five Pounds, they are to be sold; and that any two or more Justices of the Peace, by a Warrant under their Hands and Seals, may or shall Authorize any Person, or number of Persons, assisted by a Constable, or his Deputy, Headborough, or Tything-man, who are herein required to be Aiding and Assisting, to search for, and seize to the use of their Majesties and their Successors, all such Horses above Five Pounds value, as aforesaid.

And further note, that upon any time a Pro­clamation being issued out to amove Papists at a distance from the City of London and Westminster, other Cities and Towns Corporate; the Consta­bles [Page 120] by Warrant from the Justices of Peace, are to make diligent search, and give in the Names and places of Abode of such as stay beyond the time limited; that so they may be prosecuted for their Contempt.

And note, that ignorant persons may not be mistaken, by bearing too much upon the Act made in the first Year of K. W. Q. M. for Ex­empting their Majesties Protestant Subjects Dis­senting from the Church of England, from the penalty mentioned in the 35 of Elizabeth, and the 22 Caroli 2. It is thereby Enacted, That all per­sons that take the Oaths, and make and subscribe the Declaration therein mentioned, shall not be liable to the penalty of the two former penal Acts against Conventicles. However if any such Assem­bly of persons Dissenting from the Church of Eng­land, meet for Religious Worship, with the Doors Locked, Barred, or Bolted, during any times of such Meeting together, all and every such person, or persons that shall come to, and be at such Meet­ing, shall not receive any Benefit from the new Law, but be liable to all the Pains and Penalties recited in the Statute of 35 Eliz. and 22 Caroli 2. for such their close and concealed Meeting.

And further, if any person differing from the Church of England, a Protestant Dissenter shall be chosen to the Office of High Constable, Petty Constable, Churchwarden, or Overseer of the Poor, or any Parochial, or Ward-Office, any such person shall scruple to take upon him any of the said Offices, in regard of the said Oaths, or any other Matter or Thing re­quired by the Law to be taken or done, in respect of such Office, may execute the said Of­fice or Offices by a sufficient Deputy by him to be provided, that will comply in taking the [Page 121] Oath, &c. and such a one as shall be well ap­proved.

Note that the People called Quakers, in Cases of Oaths, may tender their Affirmation by Virtue of a late Act of His present Majesty King William the Third, and that in Breach of such Affirmation they incur the Penalties, as in case of Perjury.

CHAP. LI. A Constable's Office relating to such as shall disturb Ministers in time of Divine Service, &c. And what relates to Physicians.

TO keep Peace and Decency in Churches, Chappels, and such like Places of Divine Worship.

Note, That if any one, not having Authority to do it, shall disturb a Preacher Lawfully Li­censed, Preaching, Praying, or at the Admini­stration of the Sacrament, either by entring into Dispute, Humming, Talking, Laughing, or any voluntary Disturbance in Ridiculing, &c. Any Constable or Church-warden of the place is Au­thorized immediately to Apprehend him or her so Offending, and carry the Party before a Ju­stice of the Peace of the same County, who may commit the Offender to safe Custody, and with­in six Days, Conjunct with another Justice of the Peace examine the Matter, and if it be evidently proved by two Witnesses, Commit him or her to the Common-goal, there to remain by the space of 3 Months, and from thence to the next Quar­ter Sessions; where upon the Offendors Reconci­liation, and entring into good Security for his good Abearing by the space of one whole Year [Page 122] he may be Released; but upon standing in Con­tempt, and remaining obstinate, he shall be continued in Prison without Bail till Penitent, 1 Mary 1. Sess. 3. Chap. 3 Wingate's Stat. Tit. Sacraments. &c.

And any one Rescuing such an Offender shall suffer the like Imprisonment; and over and a­bove forfeit 5l. And the Inhabitants suffering such an Offender to escape, upon Presentment be­fore the Justices in their Sessions of the Corpora­tion or County, by the Authority aforesaid, are liable to forfeit five Pounds.

In the City of London, and seven Miles adjacent, the Constables and other Officers are to be Assist­ing to the President of the Physitians Colledge, in order to the due Execution of the Laws and Sta­tutes belonging to the said College, on Pain of a Contempt against the King's Majesty, according to the Statute of 1 Mary 1. Sess. 2. Chap. 9. Win­gate's Stat. Tit. Physitians, &c.

CHAP. LII. The Duty and Office of a Constable in any Calamitous Time of Plague and Pestilence, &c.

IF Persons Infected with the Plague, be by the Constable commanded to keep their Houses, and yet Contemptuously go abroad and Con­verse with other People, then having the Plague Sore upon him or her, it is Felony; and if In­fected, and not having any Plague Sore, yet for such Offence they are liable to be punished as Vagabonds by the Order or Appointment of a single Justice of Peace, and further be bound to the good Behaviour for the space of one whole Year upon Proof the Infection at the time he [Page 123] or she so Offends, 1 Jacobi 1. Chap. 13. Wingate's Stat. Tit. Plague, Dalt. Just. P. Chap. 39. Folio 91.

If a Constable, or such other Officer whom it concerns, shall neglect, or willingly refuse to Levy the Money by Warrant under the Hands and Seals of two Justices of the Peace, upon the Sta­tute for the Relief of any Town or Place Infected with the Plague, by Distress and Sale of the Goods of such persons as neglect or refuse to pay, on such emergency for every such Offence, the said Offi­cers are liable to forfeit Ten Shillings, to be distri­buted among the Sick, as by the Statute is dire­cted, 1 Jacobi 1. Chap. 13. Dalt. Just. P. Chap. 39. Folio 91. Wingate's Stat. Tit. Plague.

The Justices of Peace, one, or more of them are to appoint in their several Limits, Watchmen, Keepers, Searchers and Buryers; as likewise may the Head Officers in Towns and Corpora­tions do the same. And if any Infected per­son, contrary to the Commandment of the Justice, Constable, or other Head Officer, &c. shall wilfully attempt to go abroad and Resist their Keepers, or Watch-men, they may Restrain them by Violence, and Compel them by Force to keep their Houses; and if they be Hurt or Wounded, the Watch-man shall not be Troubled for it, because it was their Duty after such Warn­ing to have kept their Houses, 1 Jacobi 1. Chap. 13. Crompt. 122, &c. Dalt. Just. P. Chap. 39. Folio 91. Wingate's Stat. Tit. Plague.

CHAP. LIII. The Office of a Constable, &c. Relating to Routs and Riots, and what they are.

THE Power of a Constable in Disorders of this Kind is very great, and it is his Business to be diligent in Suppressing them; as also that of the Sheriffs, and others the King's Officers, by reason such Tumults are of dangerous Consequence to the Government, and many times, as it has been known, from small beginnings, broke into open Rebellions, and disturbed the Peace of the whole Kingdom; and therefore,

Note, where three or more Persons shall Meet and Assemble themselves together, to the intent to do any unlawful Act with Violence or Force against the Person of another, his Possessions or Goods; as to beat, kill, or otherwise to hurt, or without Authority to Imprison a Man in his own House, or elsewhere. To pull down a Wall, Pale, House, Hedg, Ditch, or wrongfully to en­ter upon, or into the Possession of another Man's House or Land, &c. Or without Right to cut or take away Wood, Corn, Grass, or other Goods, or Unlawfully to Hunt in any Warren, or Park, or with Force or Violence do any other unlawful Act against the King's Peace, to the manifest Terror of the peo­ple. And if they only meet to such Intent or Purpose, though they afterwards depart of their own accord, without putting their Intentions in Execution; it is nevertheless an unlawful Assem­bly, by reason their first Intention which occasi­oned them so to Assemble, was with an evil Design, Bro. Tit. Riots 4, 5. Co. 3. Part Institutes, [Page 125] Folio 176. Dalt. Just. P. Chap. 85. Folio 217. Stat. 27 Rich. 2. Chap. 8.

CHAP. LIV. The Office of a Constable, in what concerns it re­lating to Rogues, Vagabonds, sturdy Beggars, &c.

TO disencumber the Kingdom of lazy per­sons who loyter about, and decline Work­ing, in expectation to live upon others Labours by Begging or Pilfering, the Law has in the fol­lowing manner provided against such Nusances. Therefore,

The Constable, Headborough, or Tything­man, assisted by the Minister, and one other In­habitant of the Parish, may take any Rogue, or sturdy Beggar, Vagabond, &c. they shall find Loytering up and down in their Parish, or Pre­cinct, and strip him or her naked from the middle upwards, and whip, or cause to be whipped openly, the said Rogue or Vagabond till the Body be bloody, and then forthwith be sent away from Parish to Parish, or Tything to Tything, the next strait way guiding or leading to the place of the Birth of such Vagrant; and if that may not be known, then to the place where he or she last Inhabited, or Resided by the space of one whole Year before such punishment Inflicted; and if that be unknown, then to the Town through which the party last past Unpunished; and being there, if it cannot be discovered where the party was Born, or last dwelt, then the Constable of that Town, or place is to con­vey him or her to the House of Correction, or Common-goal of the County, there to be em­ployed at hard Labour, or put to Service for the [Page 126] space of one Year; and if disabled by Age or Casualty as maiming, &c. and so not fit for La­bour, that Town is to be at the Charge of keep­ing the said Vagrant till such time as he may be placed in some Alms-house within the Coun­ty, by 39 Eliz. Chap. 4. Wingate's Stat. Tit. Va­gabonds, Bulst. 2. part Reports, Folio 257, Resol. Judges, Sect. 417.

It is further provided that after such punish­ment is inflicted, that the Vagrant shall have a Testimonial under the Hand and Seal of the Constable, Tythingman or other Officer, subscri­bed also by the Minister of the Parish, testifying the Place and Day of such Punishment being in­flicted, and the time he is to have in going to the Place to which he is directed; and if he or she loyter by the way till the time is out, such Pu­nishment may again be inflicted, and so as often as the Default is made, till arrived at the limited Place; and such Testimonial Especial in Substance is to be registred by the Minister in a Book kept for that purpose, or in defect he to forfeit 5s. Dalt. Folio 129.

CHAP. LV. A Copy of a Testimonial in Manner and Form as in this Case the Law directs.

This may be granted also by a Justice of the Peace alone under his Hand and Seal.

And if the Act of the Thirty ninth of Elizabeth be neglected in the Execution of it by any Con­stable, Tythingman, Headborough, &c. he so neglecting forfeits 10s. for every Default, and he that hinders any Execution of this Law, upon Rogues, and Vagabonds, incurs the Penal­ty of five Pounds, and may be bound over to the good Behaviour; And if a Constable or Peace Officer who ought to do it, refuses such Rogue, or Vagabond, or if he does receive him and does not carry or send him to the next Constable, in order to his being sent to the place appointed, he forfeits for every such Offence Five Pounds, and the Justice furthermore may bind him over to the good Behaviour, 39 Eliz. Chap. 4. Dalt. Chap. 47. Folio 128, &c.

If any such sturdy Rogue, or Vagabond shall come begging to any House, the owner of it seeing it, is to apprehend him or her, and deli­ver the Offender to the next Constable, or else he forfeits Ten Shillings, and the Constable is to [Page 128] whip and convey such Rogue as before directed, under the Penalty of 20s. 1 Jacobi (1) Chap. 7. Dalt. 147. Folio 128.

Two Justices of the Peace, one to be of the Quorum, may by Warrant under their Hands and Seals cause to be levyed by Distress and Sale of the Offendors Goods all Forfeitures and Fines before mentioned, the party being first convicted either by his own Confession or the proof of two Witnesses before the said Justices, 39 Eliz. Chap. 4. 1 Jacobi (1) Chap. 7. Dalt Chap. 47. Fol. 149.

Constables, Headboroughs, or Tythingmen, neglecting to make search for Rogues or Vaga­bonds upon the Justices Warrant directed to them, or to appear at their Meeting to give up their account what Rogues, &c. they have punished, or sent to the House of Correction, or upon ne­glect to send such to the House of Correction as by order of Warrant are committed, the Justices at their Discretion may fine those so transgres­sing in a Summ not exceeding 40 s. 7 Jacobi (1.) Chap. 4.

If any one not being an Officer shall appre­hend a Rogue, or Vagabond, and carry him be­fore a Justice of the Peace, the Justice has power to reward the said person, by granting to him a Warrant under his Hand and Seal to the Consta­ble or Tythingman of the place through which he passed unapprehended, ordering thereby the said Officer to pay 2 s. for every Rogue so ap­prehended, and upon refusal of payment the Ju­stice may proceed against the Officer, pursuant to the Statute 1 Jacobi (1.) Chap 7. and constrain him to pay his Forfeiture limited by the same Statute, and out of it to allow the said two Shil­lings, with charges for loss of time as to him shall seem meet, 1 Jacobi (1) 7. 14 Caroli 2. Chap. 12. And considering Constables, Tythingmen, &c. [Page 129] are at much charge many times in rebearing and carrying with Passes such as come to their Hands; The Churchwardens, Overseers of the Poor, and other Inhabitants may make a Rate to Tax the Inhabitants of the Parish who are lyably char­geable, by the Statute of the 43 of Elizabeth, to be confirmed under the Hands and Seals of two Justices of the Peace, and upon refusal of any to pay, the Constable may by Warrant levy it by Distress and Sale of Goods, returning the O­verplus to the Owner if any such there be, 4 Ca­roli 2. Chap. 12.

As for Rogues or Vagrants of both Sexes they are under several Circumstances or Denominations; and that an Officer may know who are such, and who not, viz. All Schollars and Seafaring Men that Beg, all wandring persons that use unlawful Games, subtil Crafts or Plays, and such as pretend to have Skill in Phisiognomy, Figure-casters, or Fortune-tellers; all Proctors, Pattent-gatherers, unless such as are impowered to do it by Letters patents under the great Seal upon the account of Losses by Fire, all Collectors for Goals, Priso­ners, or Hospitals, wandring abroad on that Oc­casion, without sufficient Warrant to authorize them: All Fencers and Bearwards, Common play­ers of Interludes, Minstrels, Fidlers, if so they be found wandring abroad.

All Labourers that wander abroad without the Limits of their respective parishes, and refuse to work for such Wages as shall be reasonably taxed, having no other visible way to maintain themselvs, all such as go with general Pasports not directed from parish to parish.

All Juglers and such as use Tricks by slight of Hand, Artists, Tinkers, Pedlers, and Petty-Chapmen; also Glass-men wandring abroad [...], unknown and without a sufficient Testimonial, [Page 130] all those that counterfeit themselves Egyptians, not Felons upon the Statute made in that case all persons delivered out of Goal, that wander, begging for Fees or otherways begging; all such as pass and repass to and from the Bath for the recovery of their Health, not pursuing their Li­cense; all Soldiers and Mariners, that beg, and counterfeit a Certificate of their Commanders, that is to say, either Male or Female, being a­bove seven Years, and so transgressing as afore­said, and those if they do not beg yet if they wan­der and loiter about without any Pasport or suffi­cient Testimonial, are accounted Rogues and Va­gabond [...]; those that beg in their own Parish, or in the High ways without the Appointment or License of the Overseers, are lyable to be sent to the House of Correction.

And to authorise the Constable, Tything-man, and other Officers, to apprehend and order them as aforesaid, See 39 Eliz. Chap. 4. and 17. 43. Eliz. Chap. 2. 21 Jacobi (1) Chap 28. 7 Jacobi (1) Chap. 4 5 Eliz. Chap. 4. Dalton Chap. 47. Folio 123, 125, 134.

CHAP. LVI. The Constables Office in disposing of the Wives and Children, of Rogues, Vagabonds, or Sturdy Beggars.

THE Wife of such Sturdy Rogue or Beg­gar, the Children being under Seven Years of Age, must be placed with the Hus­band, and if he be dead, then the Children to be placed with the Wife in the Parish where she was born or last dwelt, and the Vagrant Chil­dren [Page 131] exceeding Seven Years of Age, must be sent to the place of their Birth; and if with Children under Seven Years of Age, the Vagrant Parents are placed at the place of the Birth of the said Children, or in the place where they last dwelt; if afterwards the Parents or either of them happen to die or run away leaving the said Children, yet they once setled must still remain in that Settlement, and ought not to be sent to the place of their Birth, tho' they have attained to the Age of 7 Years or upwards, according to the 2. Eliz. Chap. 4. Resol. Judges Sect. 45. Dalton Just. P. Chap. 47. Folio 135.

The Vagrant Wife must be sent to her Husband, tho' he be no other than a Servant in any Parish or Town, and a Rogue or Vagrant not able to as­sign any place of Birth, if he have a Wife and Children under Seven Years old, they must be sent with the said Vagrant Rogue to the Parish or Town through which they by Sufferance last past unpu­nished, and the Children relieved with the Work of their Parents, though they be committed to the House of Correction, if it be possible they thereby can relieve them.

CHAP. LVII. The Duty and Office of a Constable, &c. relating to Alehouses, Inns, &c.

HE that without a License shall presume to keep an Alehouse, selling Ale or Beer, forfeits 20s. to be levied by Distress and Sale of Goods, and converted to the use of the Poor of the Parish, and this to be done by the Con­stable and Churchwardens by Warrant from [Page 132] a Justice of the Peace of the same County, and upon Distress and Sale, the Overplus to be re­turned to the Owner of the Goods if any such re­main, and a Constable, &c. refusing or neglect­ing to execute any such Warrant to him directed, forfeits for such his contempt 40s. upon fai­lure of Goods to levy the Distress upon such Alehouse keeper; the Constable being impower­ed by the Warrant aforesaid, may openly whip or cause the Offender to be whipped in his presence; the Goods upon Distress are to be sold in three Days; the Offence to be proved before the Justice of the Peace who grants the Warrant, and the Justice upon Default of the Constable in executing his Office relating to the Premises may commit him to Goal till he causes the Offender to be whipped, or pay the Forty Shillings to the use of the poor, 3 Car. 2. Chap. 3. Dalt. Just. P. Chap. 7. Folio 31, 32.

If a Warrant be directed from a Justice of the Peace to a Constable and Churchwardens a­gainst an Inn-keeper, Alehouse-keeper, or Vi­ctualer, for suffering excessive drinking, or tip­ling in his House, as any Townsman or others so tipling or being Drunk, and he neglects to do his Duty, he forfeits 10s. to be levied by Di­stress and Sale of Goods, to the use of the poor of the parish: Any person for excessive tipling is to pay 3s. 4d. or to sit in the Stocks 4 Hours; for being drunk 5s. or to sit in the Stocks 6 Hours if the Mony be not paid, or there be no Goods belonging to the Offender whereon Distress is to be made, and the Inn-keeper, Alehouse-keeper or Victualer for suffer­ing such Offences in his House, upon due proof forfeits 10s. and the Distress made must be sold in 6 Days, if the Mony of the Distress be not in [Page 133] the mean while payed; and if such Alehouse-keeper, Victualer, &c. refuses to sell a full Ale Quart of the best Ale or Beer for one penny, or two Quarts of small Beer for a penny, or selling less than such Measure, the party so offending forfeits 20s. for every Offence, to be levied as aforesaid: And if in these particulars no Distress be found, or if the Officer neglects within 20 Days to certifie the Default to the Justices, the Of­ficer forfeits 40s. to levied by Distress and Sale of Goods to the use of the poor, by Warrant to be directed to any indifferent person under the Hands and Seals of one or two Justices of the Peace; and for Default of such Distress, the Justice may send send the Offenders to prison, there to remain till the Forfeitures are paid, pur­suant to the Statute, 1 Jacobi Chap. 9. 1 Car. 1. Chap. 4. and some other Statutes relating to these Forfeitures and Penalties in Particulars and Gene­rals; but Offences of this Nature are to be en­quired into, within 6 Months after they are com­mitted, and the Constable and other Parish Offi­cers may be charged upon Oath to make a due presentment of them.

As for Ale-measure, here it is meant Winche­ster Measure, the Statute not being repealed, by reason of Excise and Dearness of Hops and Malt, to what it was in former times, the price of Drink is raised by the Brewers, that a Winchester Quart of strong Beer or Ale stands the Victualler in more than a penny, yet let them beware of raising it to an extorting price, lest this Statute may be made use of to keep their Consciences within Bounds of Moderation.

If any Alehouse-keeper, refuse to lodg a wafaring Person or Traveller, he or she offering Mony for the Victuals and Drink, &c. in present pay, the Constable upon such Refusal may cause such [Page 134] Alehouse-keeper, or Inn-keeper to be indicted at the Sessions or Assizes, where he may be Fined or Imprisoned, or the Party so refused may bring his Action on the case; but then ready Mony must have been offered before-hand, if required, Coke 9. Rep. Folio 87. b. 10. Hen. 7. 8. Dalton Just. P. Chap. 7. Folio 28. They lye liable to Pe­nalties also for keeping any gaming in their Houses or Backsides; and indeed the Laws are very strict in these Cases, to prevent Mischief and Inconveniency.

CHAP. LVIII. The Office of a Constable, &c. relating to Weights and Measures in Cities, Towns Corporate, &c.

IN the Market Towns, Cities, and Borroughs, there ought to be common sealed Weights and Measures, at which the Inhabitants may be freely allowed to weigh, and all Foreigners must pay for every Draught under 40 l. one Farthing, and for a Draught between 40. and 100. a Half-penny, and for a Draught between 100. and 1000. a Penny, which Mony is to go towards the main­taining the Weights and the Person that attends the Service; or the Officers that attend the Service may have his Reward at the Discretion of the In­habitants, 8 Hen. 6. Chap. 5.

And if in a City such common Weights and Measures are wanting, it forfeits to the King 10l. every Borough 5l. and every Town where publick Market is held 40s. and the Chief Of­ficers of such places are upon the Request of the Inhabitants, &c. to them made, to Seal and [Page 135] Mark such Weights and Measures for any of the King's Subjects, taking for Sealing and Marking, as the Statute in that case directs, and none ought to Weigh or Measure with any other than what are Sealed and Marked, 8 Hen. 6. Chap. 5. 11 Hen. 7. Chap. 4.

And for the more regular and due observing of this, that no Frauds in this kind may be, the Mayors and Chief Officers in Cities, Burroughs, &c. once every Year at the least, are to view all Mea­sures and Weights within their Jurisdiction, and to burn or break such as are not Sealed, or less than Measure or Weight, according to the King's Standard; also to Amerce the Offendor, viz. For the first Offence, 6s. 8d. for the second Offence, 13s. 4d. and for the third Offence, 20s. and over and above the Offendor may be Adjudged to to be set in the Pillory, 11 Hen. 7. Chap. 4.

CHAP. LIX. The Office and Duty of a Constable in setting and or­dering the Watches, Forcible Entries, &c.

FOR the better Security, and quiet Repose of the Inhabitants in every Town, Village, Pa­rish, and Tything, a Watch every Night from Ascension day till Michaelmas ought to be kept from Sun-set, to Sun-rising, which the Constables and other Officers there appointed, must cause to be set by two, four, or more able Men, according to the largeness of the Place, 13. Edw. 1 Chap. 4. Poulton Tit. Watch, 1, Dalt. 60. Folio 140.

The Watches thus Lawfully set by Authority, have Power to Examine such Persons as pass by them in the Night, being Strangers on others, and [Page 136] finding a reasonable ground for Cause of Suspi­cion, they may secure them till the Morning; and such as refuse to obey, they may levy Hue and Cry in pursuit of them: And where they re­sist, if the Watchmen beat them it is justifiable; and to secure them, they may put them into the Stocks, or Cage till the Morning; and then if they give a good account of themselves, or that no further Suspicion appear, but that they may be honest people, they may let them go; but if otherwise, then they are to deliver them to the Constable, who is to convey them before a Justice to be examined, who may commit them, bind them over, or utterly discharge them according as he finds Cause.

The Watch in this Case is to Apprehend such as Ride, or go Armed, Scouts, Evesdroppers, Noctivagrants, Night-walkers, and all sorts of Rogues and Vagabonds, &c. 1 Dalt. Chap. 60. Folio 140. 5 Hen. 7. 5. 5 Edw. 3. 14.

The Watch so set by Authority must be Men Healthy, and of able Bodies, and do their Duty, sufficiently Armed; and no person not being an Inhabitant within the Town or Parish where the Watch is kept, can be compelled to Watch.

The Inhabitants are to take their Watching in turns as it comes to them by the Number of Houses, as the Custom of the place has been, and may not by compelled out of order by the Con­stable to do it.

If any Inhabitant be lawfully Warned in his Turn by the Constable to Watch, and refuses it, he may Present him at the next Sessions or Assize, or to make his Complaint to a Justice of Peace, who has Power to bind him over to his good Behaviour, and so continue him to the next As­size, or Sessions to answer the Contempt; and this is the surest way, though Dalton holds the [Page 137] Constable, Ex Officio may set him in the Stocks for such Contempt.

If a Constable, or any private person do make a Refusal to attend on a Justice of the Peace, being so Requested to do, in order to remove a Force, or convey any party to the Goal for such a Neglect of his Duty, he may be Imprisoned, and over and above Fined to the King, 15 Rich. 2. Chap. 2. Dalt. Just. P. Chap. 22. Folio 57.

CHAP. LX. The Office of a Constable relating to Hedge-breakers, Destroyers of Ʋnderwoods, &c.

THE Constables, Headboroughs, Tything-men, &c. are Impowered to Apprehend, or cause to be Apprehended any such persons they suspect to have carried away any Burthens, or Bundles of Poles, Underwood, young Trees, or the Bark of any Trees, Pales, Rails, Gates, Posts, Hedge-wood, Broom, Furzes, or any Bun­dles of Wood, &c. And by Warrant under the Hand and Seal of one Justice, may enter into the House, or any place belonging to the House of such Offender, or person suspected, and where they shall find any such Wood, &c. To Appre­hend the party suspected for cutting the said Wood, and those in whose Custody it is found, and to carry them before a Justice of Peace, in order to be examined; and if no sufficient Ac­count can be given how they Lawfully came by it, or shall not within a Time Limited prove who he bought it of, then shall he stand Convi­cted of cutting and spoiling Wood within the Statute of 43 Eliz. and for the first Offence [Page 138] shall give such Satisfaction to the Owner as the Justice shall appoint, and over and above pay to the Poor where the Offence was committed, such Summ as the Justice shall Amerce him in, not exceeding ten Shillings, and for Non-payment, the Justice has Power to Commit the Offender to the House of Correction for a limited Time, as he shall think fit, not exceeding one Month, or at his Discretion to be Whipped by the Constable, or other Officer.

For the second Offence the Offendor is to be sent for one Month to the House of Correction, and there to be held to hard Labour; and upon a third Offence to be Punished as an incorrigible Rogue, 15 Caroli 2. Chap. 2.

If any Person procure for Mony any Burthen of Sticks, Wood, or Under-wood, &c. of such Per­sons as may reasonably be suspected to have gotten them Unlawfully, and a Complaint be made to a Justice of the Peace, and it appear upon Exami­nation that the Wood so bought was Unlawfully come by, the Justice may compel the Party who bought it, to pay treble the value to the proper Owner; and for want of such Payment upon War­rant granted, the Constable may Levy it by Dis­tress and Sale of Goods, rendring the over plus to the Owner, if any there be, and in defect of where­with to make Distress, to Commit the Party to the Goal at his proper Charge, to continue there for the space of a Month, not liable to Bail, 15 Caroli 2. Chap. 2.

☞ Note, that by Virtue of this Statute, no Person is to be punished, that for the same Offence has ben punished by a former Law, and every Offender to be brought within the force of this Statute, must be Prosecuted within 6 Months after the Offence is committed.

CHAP. LXI. What is required of a Constable in the Performance of his Office, in case of Landlord's Distraining for Rent, &c.

ACcording to the late Act made the 1st Day of June, in the second Year of W. and M. 1690. If a Distress be made on the Premises, and the Tenant or Owner of the Goods or Chattels so Distrained, do not within five Days after the Dis­tress made, and notice thereof given with the cause of such taking, left at the chief Mansion-house, or most noted Place on the Premises charged with the Rent, for which the Distress is made, Replevy, giving sufficient Sureties to the Sheriff according to Law; That then the five Days expired, the Person so distraining, has Power with the Sheriff, Under-Sheriff of the County, or with the Constable of the Hundred, Parish, or Place in which such Distress shall be taken; who by this Statute are required to be Aiding and Assisting, to cause the Goods and Chattels so taken in Distress, to be Appraised by two Sworn Appraisers, whom the Sheriff, Under-Sheriff, or Constable are by this Act Impowered to Swear, to Appraise the same truly according to the best of their Understandings. And such Appraise­ment made, Seisors may lawfully Sell and Dispose of the Goods and Chattels for the best Price that may be gotten for the same, towards Satisfaction of the said Rent for which the Distress is made, and of the Charges of such Distress, Appraise­ment and Sale, leaving the over-plus, if any be in the Hands of the Sheriff, or Under-Sheriff, or Constable, for the Use of the Owner. And the [...]oods being left on the Premisses till Sale can [Page 140] be made, as aforesaid, upon any Pound, Breach of Corn, &c. or Rescues of Goods or Chattels Distrained for Rent, the person or persons there­by Aggrieved, shall upon a special Action of the Case for a Wrong thereby sustained, recover his or their Treble Damages and Costs of Suit a­gainst the Offendor, or Offendors, of such Pound, Breach or Rescues, any, or either of them, or a­gainst the Owner of the Goods, in case any, after the Distress, have been found to come to his Use or Possession by such means.

But note, that in case any such Distress, or Sale as aforesaid, shall be made by Virtue or Co­lour of this Act for Rent, pretended to be Arrear, and due, when in truth there is no Rent in Ar­rear, or due to the person or persons Distraining, or to him, or them in whose Name or Names, or Right, such Distress shall be taken, as aforesaid, his Executors and Administrators, shall and may by Action of Trespass upon the Case to be brought against the person or persons so Distraining, or ei­ther of them, his, or their Executors, or Admi­nistrators recover double the Value of the Goods and Chattels so Distrained and Sold; as likewise full Costs of Suit.

Note, that Hay, Corn, or any Grain are not to be hastily, or wastfully removed from the Premises before due Appraisement and Sale, to the damage of the Owner, in scattering or wasting it, &c.

CHAP. LXII. What relates to the Office of a Constable in providing Carriages for the King, &c.

ACcording to the Statute of 1 Jacobi 2. In this Case the Clerk or chief Officer of His Majesty's Carriages, shall 3 Days before His Majesty's Arrival, give notice to the Neigh­bouring Justices, two, or more of them by Warrant from the Green-cloth, to provide such a number of able Carriages, as shall be requisite for the Service, to be drawn by 4 able Horses, or six Oxen, or four Oxen and two Horses, to meet and be ready at the Time appointed to Load without delay; and for so Loading they are to receive in Hand after the rate of Six-pence a Mile, and not to be compelled to go above a Days Journey from their Habitations, and the Carriages Summoned to give their At­tendance on Default, being Convicted of Neglect or Refusal, by the Oath of the Constable or other Officer, or two other credible Witnesses before the said Justices of Peace of the County, or Mayor or other Chief Officers of the City or Cor­poration where he or they so neglecting inhabit, and who have a Power to tender the said Oath, the party so neglecting or refusing shall forfeit the Summ of Forty Shilling to the King's Use, forthwith to be levied by Distress and Sale of Goods, the Over plus if any be, to be returned to the Owner, and this to be done by War­rant from the said Justice of Peace, Mayor or other Officer, and in Case any Justice, Consta­ble or any other Officer shall take any Gift or Reward to excuse any person from this Ser­vice, or shall injuriously charge or grieve any person through Hatred, Envy, or Evil Will, [Page 142] who ought not to make such Carriage, or Impress more Carriages than shall be directed by Warrant of the Green Cloth, upon Proof and Conviction thereof the Party so offending shall forfeit the Sum of Ten Pound to the Party grieved, or to any other who shall sue for the same, to be recovered by Action of Debt in any of the King's Courts of Record, wherein no Essoign, Protection or Wager of Law shall be allowed; and if any Person or Persons shall Impress any Horses, Oxen, Cart, Wain or Carriages for the King's Service, other than such as are lawfully impowered, he or they so of­fending, upon due Proof and Conviction shall in­cur and suffer the Punishments contained in the Act of 12 Car. 2.

All High Constables, Mayors, Bayliffs, and other Officers who warn the said Carriages, or whose Duty it is so to do, must make a Re­turn in Writing, to the Clerk or other Officer of the Carriages, of the Names and Places of Abode of every such Person who is so warned to bring in his Cart or Carriage, so that the De­faulters may be known, and the said Officers ap­pointed by the Act to warn them may be Dis­charged and Indemnified, and the Defaulters pu­nished as aforesaid.

CHAP. LXIII. The Office and Duty of a Constable relating to the King's Game, Fishery, Excise, and Custom,

UPon a Warrant directed to a Constable, Head­borough, &c. under the Hands and Seals of two or more Justices of the Peace, the Constable, &c. may search suspected Houses for Setting-Dogs, [Page 143] Nets, and other Tackle for taking Phea­sants, Partridges, and other the King's Game, and destroy them so found; but in Case they have Free Warren, or are Lords of the Man­nour, or are Freeholders of Forty Pounds per Annum, or more of Estate of Inheritance, or Eigh­ty Pounds per Annum for Term of Life, or be worth in Goods 400 l. they are exempted from this Seizure.

As to the Constables Office relating to Fishery, he may by Warrant under the Hand and Seal of a Justice of Peace, apprehend such as destroy the Spawn or Fry of Fish along the Sea-shore, or in any Creek or Haven, or within five Miles of the Mouth of either of them, or such as fish with un­lawful Nets to destroy the young Fry, the Meshes of their Nets not being 3 Inches and a half between Knot and Knot, for which Default they are to pay 10 Shillings, to be levied by Distress and Sale of Goods, the Overplus to be returned to the Owner, if any remain, 3 Jacobi 1. Chap. 12. Wingate's A­bridg. Title Fish, Fishers, Fishing.

And for the Encouragement of the English Fishery, if any Herrings, Ling, Cod or Pilchards Fresh or Salt, Dry or Bloated, or any Eels or Con­gers or Salmon he [...]ought in and uttered to Sale by Foreigners, it may be lawful for the Constable Headborough, &c. or any other Person to seize them, the one half to the poor of the Parish, and the other half to the use of him that seizes; and if any one shall refuse to assist a Constable or other Officer hereto impowered on this occasion; being commanded so to assist him in the King's Name, he upon complaint and Proof of such contempt, lies liable to be prisoned and fined at the Discre­tion of the Justice before whom he shall be con­victed, 18 Caroli 2. Chap. 2.

[Page 144]As to the Duty of a Constable relating to the Excise, note that he is to be aiding and as­sisting when required, to the Gaugers, and Un­der-Officers employed therein, and to go with them in the Night time to such Houses where any Liquors are to be gauged. They are moreo-to levy Forfeitures where a Conviction is made before the Justices or Commissioners, of any Concealment, Fraud, or the like thereupon, by Warrant for that purpose directed to make Di­stress and Sale of the Offenders Goods, and to render the Overplus if any be, to the Owner, and for want of such Distress to carry the Par­ty so offending upon commitment to Goal, there to remain till there be Satisfaction made, and upon Warrant directed to a Constable from the Commissioners, he is to summon all Alehouse-keepers within his Division, at such Days and Pla­ces as shall be appointed in the said Warrant from time to time, &c.

As to what concerns the Constables Office relating to Customs by the Act made the 14 Caroli 2. such as have Authority by Writ of Assistance under the Seal of the Court of Ex­chequer, may take to their Assistance the Con­stable, Headborough or other Peace Officer, in­habiting near the place, and in the Day time enter the House, Shop, Cellar, Warehouse, Rooms, or other place, and in case of Refusal or Resistance break open Doors, Packs, Chests, Trunks or such places, and take away such un­customed and prohibited Goods as they shall there find, and convey them to the King's Store­house in such Port as is next to the place where the Merchandise shall be seized, see further, 13 Car. 2. Chap. 11. And if the Officers of the Customs or any acting, being assisting or aiding to them, shall be sued, indicted, prosecuted or [Page 145] molested, such Person or Persons, his or their Heirs, Executors and Administrators may plead the general Issue, and give any of the Acts rela­ting to the Customs, in Evidence in any of the King's Courts of Justice, 14 Car. 2. chap. 11.

CHAP. LVIII. The Office of a Constable relating to Clothiers and Irish Cattel, &c.

IT is the Headborough or Constable's Duty, up­on Request, to be aiding and assisting to the Wardens and Assistants, for regulating the Wor­sted Trade, and other Stuffs made at Norwich in the County of Norfolk, and usually called Norwich Stuffs, 14 Car. 2. chap. 5.

And the Constables in the West Riding of York­shire, by Warrant directed from the Justices of the Peace, the Masters and Wardens of the Corpora­tion, or any 13 of them, are impowred to levy such Fines, Penalties and Forfeitures, as by Vir­tue of the Statute mentioned, shall become due from any Clothier, and this to be done by Distress and Sale of the Offender's Goods, &c. the over­plus to be restored to the Owner (if any remain) upon demand, 14 Car. 2. chap. 5.

The Justices of Peace and High Constable have power to search any House, Ware-house or other place, for Tenters, Ring-ropes, Head-wrenches, or such other things used in the Stretching Cloth, and such as they find, they may deface; and the se­cond time they are used▪ they may take them a­way and sell them, the Money to be to the Use of the Poor, to be distributed as they shall see fit, 33 Eliz. chap. 20.

[Page 146]All the Clothiers must pay their Spinsters and other Workfolks in ready Money, and not in Wares, and their Wool to be delivered to them in due weight, under the Penalty of 6 d. Forfei­ture for every Default; and those Workfolks are to do their Work faithfully, under forfeiting dou­ble Damages to the Party grieved, 4 Edw. 3. Chap. 1. Fitz. Just. P. 103. And the Masters or Head-Officers in a Corporation where no Master is, and out of a Corporation the Justice of Peace, High-Constable, and Stewards of Leets, shall hear and determine such Matters as arise upon Complaint, as Non-payment of Wages or Damages, as before­mentioned; and upon due Examination, if they find cause, they commit the persons offending to Goal, till such time Satisfaction be made to the party aggrieved, Stat. ibid.

Irish Cattel are not to be brought into England, under the Penalty of their being seized by the Constable, Head-officer, or any other person or persons; and to prevent fraudulent Seizures and Compositions, the party or parties so seizing, shall within six days after, cause the said Cattel, Sheep or Swine to be Killed, and the Hides and Tallow to be to the Seizor, and the rest distributed by the Church-wardens and Over­seers among the poor of the Parish, where any large Cattel, Sheep or Swine shall be Imported or found; and such Seizure the Overseer of the poor or Church-warden so neglecting or failing in his Duty, shall for every one of the large Cattel forfeit 40 s. and 10 s. for any of the smaller Cattel, as Sheep, Swine, &c. which should have been Killed and distributed, as aforesaid: To be levyed by Distress, and Sale of Goods, one half to the Poor of the said Parish, and the other to him that does inform; and this to be done by Warrant, and under Hand and [Page 147] Seal of any one Justice of the Peace; and for want of such Distress the Offender to be Imprisoned without Bail for the space of 3 Months.

Mutton or Lamb Imported is subject to the like Seizure and Penalties; as Beef, Pork and Bacon; as also Butter and Cheese Imported from Ireland, and English Cattel purposely intermixed with Irish, to colour a Defraud, shall be reputed Irish, and ly­able as the same in all Respects, 32 Caroli 2. Chap. 2. And indeed all Cattel Imported into England from any Country beyond the Seas, or into the Do­minion of Wales, or Town of Berwick upon Tweed, are seizable, unless from Man Island, and they to be landed in the Port of Chester, or Members there­of, and they not to exceed 600 in one Year, and to be of no other Breed but of that Island.

Note, the Cattel seized as aforesaid, are to be kept in some publick place by the space of 48 Hours; and if in that space the Owner, or Owners, or a­ny for him or them, shall before a Justice of the Peace of the fame County where the Seisure is made, make out by the Oath of two Credible Wit­nesses, that the said Cattel were brought from no part beyond the Seas, the Isle of Man excepted, then upon Warrant from the Justice they are to be Re-delivered to the Owner, as the 18 of Caroli 2 directs, revived with some others on this Subject, and made perpetual by the 32 of Caroli 2.

CHAP. LXIV. Rates for the Relief of poor maimed Soldiers, Mari­ners, Prisoners, &c. How to be gathered and Or­dered, &c.

WHere Money is Rated for Relief of the Poor maimed Soldiers, Mariners, Prisoners, &c. The Constable within his Constabulary, upon re­fusal or neglect of Payment, may, as also the [Page 148] Church-wardens Levy it by Distress and Sale of Goods, rendring the overplus to the Owner, if any there be, 43 Eliz. c. 3. Wingate's Stat. Tit. Captains and Soldiers, &c.

All Money in this manner, and to the use afore­said Collected, must be quarterly delivered to the high Constable ten Days before the Quarter-Sessi­ons, or in Default, the Constables, Church-wardens, their Executors or Administrators are to pay 20 s. by way of Forfeiture, and the high Constable so receiving, is to pay it to the Treasurers appoint­ed by the Justices to receive it, or upon Default he forfeits 40 s▪ the Forfeitures to be Levied, and Employed by the Treasurer for encreasing the Stock for the aforesaid Uses, 43 Eliz. Chap. 3, &c.

The high Constables are under the Penalty of five Pounds, to pay such Mony Quarterly at every Sessions, to such Treasurers or Collectors as is rai­sed in the respective Parishes, and payed to them by the Constables and Church-wardens for the Re­lief of poor Prisoners, 14 Eliz. Chap. 5. &c. And they may make Distress, as in case of maimed Sol­diers aforesaid, upon refusal or neglect of payment, for Mony so Rated for the Relief of poor Priso­ners in the Marshalsea or King's-bench; as like­wise for the Relief of the Poor in Alms-Houses and Hospitals; and for want of Distress, the Party may by the Justices of the County, be Committed to Prison, there without Bail or Mainprize to abide till the Sum be paid. And the Constable or Church-warden neglecting to pay it in ten Days before the Quarter-Sessions as aforesaid, forfeits 10 s. each, and the high Constable 20 s. if he pay it not in at the Quarter-Sessions, as directed, which Forfeitures the Treasurer may Levy by Distress and Sale of Goods, and employ to the Increase of the Stock, 43 Eliz. Chap. 2. &c.

CHAP. LXV. What particular Things and Matters High Constables ought to return before the Justices in Sessions, and to be return'd to them by the Petty Constables in their Respective Jurisdictions.

1. THey are required to return the Christian and Sir Names, Additional Names and Qualities of all Popish Recusants, as well Lodgers as Housholders, Residing or Dwelling in any of their Respective Parishes or Divisions.

2. The Names of such as shall prophanely Curse and Swear, with the Number of their Oaths, im­mediately, or within Ten Days, informing the Ju­stice of Peace of such Offence.

3. The Names of such Persons as shall Drink or Tipple in any Inns, Ale-houses, or Taverns at any time, especially on the Lord's-day; and such persons as they shall find Drunk, with the Names of those that entertain them.

4. Such persons Names as suffer any Unlawful Games to be used in their Houses, Gardens or Back­side, with the Names of such as haunt Gaming.

5. They are to return all such Ale-house-keepers or Victualers as Sell Ale or Beer without License.

6. Such persons as are to Watch and Ward, who neglect or refuse to do their Duty therein.

7. The Names of such persons as divide their Houses into Tenements, and take in Lodgers or Inmates, that Annoy their Neighbours, or are like­ly to be a Charge to the Parish.

8. The high Constable is to return the Defaults of Petty Constables, Tything-men, &c▪ for negle­cting to Apprehend and Punish Beggars, Rogues, Vagabonds, or refusing to Pass them, &c.

9. They are to certifie the Names of such per­sons [Page 150] as refuse to take Apprentice poor Parish Chil­dren according to the Statute.

10. All Masterless Men and Women living at their own Hands, such as are Idle, refusing to La­bour, and can give no Satisfactory Account how they get their Living, and all suspicious Persons; as Mothers of Bastards, Whores, Noctivagrants, Night walkers, or such as are likely to be Chargea­ble to the Parish wherein the Reside.

11. The Names of such as neglect, or wilfully omit to make due Rates and Collections for the Relief of the Poor in every Parish, or that cannot, or do dot give a just account how the Rent and Stock of the poor is employed.

12. They ought to return all defects in the High-ways and Bridges; also Pavements in their Districts where there are no Commissioners, or Defaults are neglected by them, with the Names of such as ought to repair them, and have neglected or re­fused so to do.

13. They ought to Present all such Scavengers as are found negligent in Cleansing the Srreets, or in other parts of their Duty; and all common An­noyances in the Streets, Lanes or Alleys.

14. The Name or Names of every such Person or Persons who keep Swine, to the common Annoy­ance of their Neighbours, or any other in and a­bout the Liberty and Precincts, where Hogs ought not to be kept; more particularly referring to the Cities of London and Westminster and their Liberties.

15. They ought to Present Bakers, putting Bread not due Weight to Sale, with a particular Account thereof. Also Brewers Selling Beer or Ale to Un­licensed Ale-houses, or Victualling-houses; like­wise all Regrators, Forestallers of Markets, In­grossers of any Corn, or Grain, Butter or Cheese, Bacon, or any kind of dead Flesh, or Provisions whatsoever.

[Page 151]And in order to make out these Matters against the Delinquents, they are to return the Names of such persons as can testifie or prove the Offences before the Justices in their Sessions or Meetings; and thereupon they are to be Summoned in order to be Examined, that it may be known how far they can inform them in the Particulars alledged; and such as pave not before their own Doors, or such places as ought to be paved, are liable to be returned by the Petty Constable to the High-con­stables in their several Precincts, or Districts, and by them presented before the Justices in their Sessions, &c.

CHAP. LXVI. The Office of a Constable, &c. Relating to Stoned Horses.

IN this Case there are several Laws provided to prevent Damage, which Owners may sustain by the hurt or unseasonable covering of their Mares, in which Case it is provided by the Statute 32 Hen. 8. Chap. 13. That none shall put to Feed upon any Forrest or Common, except a Common or Forrest where Mares are not usually put, or kept, any Stoned Horse exceeding two Years Old, and not fifteen Hands high from the lower part of the Hoof, to the upper part of the Withers; and if any Stoned Horse of a lower Stature be put to Feed in any such Common or Forrest, unless it be in the Fenny grounds of the Isle of Ely, and in other parts of Cambridge-shire also, Northamp­ton-shire, Huntington shire, Lincoln, Nottingham, Suf­folk and Norfolk, where they are required to be but thirteen Hands high, any person may Seize them to his own Use by the Assistance of the Con­stable, [Page 152] Keeper of the Ground, Headborough, Bai­liff, or other such Officer, conveying the Horse to to the next Pound, there to be measured by the Officer in the presence of three sufficient Witnes­ses, and being found lower than the Statute di­rects, there to be disposed on, 8 Eliz. Chap. 8. Wingate's Abridgment of the Statutes, Title Horses; and so according to the Statute of Hen. 8. before mentioned; and such as are required so to do, re­fusing to Measure, or be present at Measuring, forfeit 40 s. each for every Refusal or Default, one half to the King, and the other half to the Prosecutor; but however the Horse must be wilfully put in the Common or Forrest by the Owner or his Order, for if he escape thither he shall not be questioned in this Kind, unless he remain there above 4 Days after Notice given to the Owner at his House, or in his Parish Church, 32 Hen. 8. Chap.

☞ Note that all Forrests and Commons re­quire to be driven every Year at Michaelmas or within 15 Days after, by the Keepers of the Ground, Constables or other Officers thereto appropriated under the Penalty of 40 s. upon failing so to do. And they have power likewise to drive them at a­ny other time of the Year as they shall see it con­venient in their Discretion; the like priviledge has the Owner of the Ground. But by the 21 Jacobi (1) Chap. 28. this Statute of the 32 Hen. 8. is not to extend to the County of Cornwall, that being a Royal Dutchy.

CHAP. LXVII. The Constables Office and Duty relating to such Persons as Prophanely Swear and Curse.

BY a late Statute made in the 6 and 7 Year of the Reign of William the Third, Chap. 11. [Page 153] it is enacted for the restraining that Dangerous and Unprofitable Sin of Swearing and Cursing, that such as in the Presence or Hearing of a Justice of the Peace of the same County wherein the Of­fence is committed, or Head Officer or Justice of Peace of the City, do Swear or Curse, or are there­of convicted by Witness or Confession of the party before any Magistrate, the Offender if a Common Soldier, Labourer, or Servant shall pay for every Oath, &c. 18. for the use of the poor of the Parish wherein the Offence is committed, and every other person is to pay 2 s. for the like Offence; for the second double, for the third treble, to be levied by Distress, by Warrant from one Justice of the Peace; and where no Distress is found, the Offen­der if above Sixteen Years of Age is to be set in the Stocks by the space of one Hour for one Of­fence, and two Hours for more than two Offences; but if under Age, to be whipt by the Parents or Master in the Presence of the Constable. All Justi­ces of Peace, Constables, &c. who neglect to put this Act in Execution, being knowing of the Of­fence, to forfeit 5 Pounds, and none are to be pro­secuted upon this Act beyond the Expiration of Ten Days; therefore Information must be given within the said Ten Days after the Offence com­mitted. And for the better deterring Offenders to commit Offences of this Kind, it is ordained to mind them of the Danger and Shame they are like to incur thereby, that this Act be publickly read in Churches next Sunday after every Quarter Day, immediately after Morning Prayer under Penalty of 20 s. for each Omission, and Justices, &c. are to keep a Register of all such Convictions before them, and to certifie the same at the Quarter Ses­sions, to be there Recorded, where any one may search for the same, and see it without paying any manner of Fees.

CHAP. LXVIII. The Constables Office and Duty further relating to Va­gabonds and Beggars, and Collecting Monies for Building and Repairing Goals.

BY an Act of the 11 and 12 of W. 3. it is En­acted, that after the 24 of June 1700. That if any Vagabond, Beggar or any person whatsoe­ver, shall be brought to any Constable, Headbo­rough or Tythingman or other Officer, with a Pass, Testimonial, Letter of Request, or other Writing whatever, pretending thereby either to be Relieved or Conveyed: The said person or persons shall by such Constable or other Officer, or by some other sufficient person or persons whom he shall order or depute, be carrryed before some one Justice of the Peace of the County, which Ju­stice is carefully and diligently to Examine him or them, and if he finds they ought by Law to be punished, he is to send them to the House of Corre­ction, and take such further Course as in that Case the Law directs: But if no such Cause appear, then he or they are to be immediately conveyed out of the County to such Town of the next Coun­ty, unto or through which such person or persons are to pass or be conveyed, as the said Justice shall think most proper; and every Constable or other Officer is to convey them to the House of Correc­tion, or to such Town as aforesaid, without de­lay; and further, the Justice is by this Act obli­ged to give the Constable or other Officer a Certi­ficate without Fee, of the Number of such per­sons as he shall so order to be punished or con­veyed, as also the manner how, when, and from whence such persons are to be conveyed: And further, the Justice ought to Tax the Charge on [Page 155] the back of the Certificate, which the Constable, &c. delivering to the High Constable of that Division, he is to pay him his Charges out of the Monies of the Goal and Marshalsea Mony, and take a Receipt for the same, which Receipt shall be Accepted by the Chief Treasurer of the County, and allowed in his Accounts as so much Mony, and if the Goal and Marshalsea Mony fail to be sufficient, then the Justices in their Quarter-Ses­sions may raise a Tax in their Counties, Ridings and Divisions, in such manner as they raise it for the County Goals and Bridges, the Mony to be paid to the Chief Constable of each Division, so as they shall have a quarterly Payment in their Hands before hand, and as often as the said Petty Constables or Deputies shall produce the said Cer­tificates, they shall be paid their Charges accord­ing thereto, and the High Constable must Account for so much at the next Quarter-Sessions, and the Petty Constable is not to Charge the Inhabitants of his Constabulary wirh any Sum or Sums of Mo­ny, or any Provisions, to the Relief or Conveyance of such Rogues or Vagabonds.

And if any Constable or other Officer to whom it belongs, shall neglect to Apprehend such Vaga­bonds or Beggars, or be remiss and negligent in doing his Duty by this Act required, then for such Offence he shall pay 20 s. one fourth part to go to the Informer, and the other 3 parts to the poor of the Parish, and he may be Convicted before a Justice by the Oath of one Witness, and upon refusal to pay, Distress may be made by Warrant as in other Cases: But this Act is to continue but 3 Years, and from thence to the End of the next Session of Parliament.

By another Act of Parliament 11 and 12 W. 3. Intiuled, An Act to Enable Justices of the Peace to Build and Repair Goals in their respective Counties. [Page 156] The Justices of the Peace at their General Quarter-Sessions are to direct their Warrants or Precepts to the High Constable, Petty Constable, Bailiffs or other Officer or Officers as they shall think fit for the Collecting and Levying the Mony in order thereto; and upon denial of any Assessed after 4 Days demand to pay the same, they are Impower­ed to make Distress and Sale of Goods, and after 4 Days keeping, if the Mony be not paid, to sell the same, and deducting Charges, immediately to render the Overplus to the Owner, the Distress being first Appraised by two or more of the Inha­bitants, and the Constable, &c. to pay the Monies so Collected to the Treasurer or Treasurers Ap­pointed by the Justices to receive it; and for refusing to Account after four days demand, the Justices of the Peace, or the greater number of them are Impowered to Commit him or them so neglecting or refusing, to Prison, there to re­main without Bail or Mainprize, till he or they shall have made a true Account.

CHAP. LXIX. The Constables Office relating to such as make or put bad Mault to Sale, &c.

THE Constable's Office relating to Malt, is to see such Malt as comes to be sold within his Division, or there made for Sale, that it be well conditioned, and no evil Malt mixed with the good: And if upon View it prove bad, the Con­stable and Bailiff of the Liberty with the Allow­ance of one Justice of the Peace may sell it for such price as can be got, or at such rate as the Justice shall set upon it, 2 Edw. 6. Chap. 10. 21 Jacobi (1) Chap. 28. 3 Caroli (1) Chap. 4.

The Office and Duty of a Churchwarden, Questman, Sidesman, &c. In all respects relating to what concerns them in the due and safe discharge of their respective Trusts. CHAP. LXX. Of the Office of a Churchwarden, &c. Its Antiquity and Dignity. How to be chosen. What they are to do in keeping the Lord's Day, and what relates to them as to Goods of the Church, and well ordering Matters, &c.

THE Office of a Churchwarden appears in Ef­fect to be much Antienter than in name, tho' the latter is of conderable Antiquity, the Office it self being as Antient as the tolerating Christian Churches in the due Exercise of Religion, by the Civil Power, but often interrupted and laid aside by the Persecutions and Turns of Government; however the Office is exceeding Necessary and Be­neficial to the Churches, and Inhabitants of the respective Parishes; for they are in the manner of a Corporation as they are taken at Common-law, properly termed Chu chwardens at the Common-law, because by that Name they are enabled to take the Chattels and moveable Goods, and to implead or be impleaded, sue or be sued, relating to such Goods and Chattels as belong, or are to the use and behoof of the Parish, of which they are such Officers, and the Preservation of the Goods of the Church are more immediately and particularly under their Care, as the Communion Plate, Books, and other Ornaments and Furniture, their Care being not to suffer any thing to be wasted or diminished, they find, at the time of their entring on their said Office [...] at what time they ought to be put in their Custody and Charge to take notice of. [Page 158] As for the Choice or Electing these Officers, it is to be annually in the Easter, unless the Custom in a Parish alter the time; and in the Book of the Constitution of Canons Ecclesiastical, in the first Year of the Reign of King James the First, The Churchwardens, Questmen, Sidemen or Assistants in the respective Parishes, are to be chosen or ele­cted by joynt Consent of the Minister and Parishi­oners, if so it may be; but upon disagreement, the Minister to choose one, and the Parishioners the other, and without such a Joynt or several Election, no person ought to take upon him the Office of a Churchwarden, nor when chose, to continue any longer than the space of one whole Year in the said Office, unless in the same man­ner again chosen. However, there are several Ca­ses that have set aside this Canon, where the Cu­stom in any Parish has been contrary to it, for in such Cases the Custom has been allowed and ob­served before the Canon; And the Church, the Churchwardens, &c. being chosen are to be dili­gent in observing that the Parishioners make due resort to the Parish Church on the Lord's Day, and upon Holy Days, and there to continue De­voutly and Reverently during the Time of Divine Service, and such as neglect without lawful Ex­cuse or urgent Occasion for Absence, after Admo­nition, if they further neglect, their Names must be presented by the Churchwardens to the Ordinary of the place, See Canon 89, 90. 5 Edw. 6. Chap. 1.

They are strictly to see the Lord's Day kept in, and out of the Church, and to visit Inns, Taverns and Ale-houses; and if in the time of Divine Ser­vice they find any persons Tipling there, they may carry them before a Justice of Peace, who may cause them to pay 3 s. 4 d. for Tipling, over and above the 12 d. due for being absent from the [Page 159] Church; and he that keeps the House, for so suf­fering them to Tipple, forfeits 10 s. and these Sums to go to the use of the poor of the Parish, 4 Jacobi Chap. 5.

The Minister and Churchwardens are not to suffer any person to preach within the Church nor Chappel, not producing a License to authorize him so legally to preach, and such a one as shall to them appear sufficient, Can. 50. 85. No Sports are to be suffered in the Church, Chappel, Church, or Chappel-Yard, on a Sunday or other Days, or a­ny thing unseasonable or tending to the propha­ning those places, nor the Bells to be rung for Sport or Pastime, but to be rung only upon Su­table and Solemn Occasions.

The Churchwardens, as I hinted, being in the Nature of a Corporation, have power to take Gifts for the purchasing Furniture to the Church, or for other Advantages to the Behoof of the Pa­rish; but they may not take an Estate of Land by the name of Churchwardens only; for if there be a Feoffment made to the Churchwardens of the Parish, the Use is void in it self; for they are not in a Capacity to take such a Purchase, nor may they subscribe to have Lands to themselves or their Successors; for as to Lands they are no Corpora­tion, but to Goods only.

If a Bell be broke, or any ways spoiled, so that it is not Tunable, the Churchwardens by the Agreement of the Parishioners, or the greater part of them, may cause it to be new cast, leaving it in the Founder's Hands till he is paid, and by that means the Churchwardens may bar their Suc­cessors of that Account.

If any indifferent person, or other in place, buy a Bell, set up a Pew, or any Ornament to the Church, it cannot be taken away by him or his Heirs, &c. Because it is a Dedication, and the [Page 160] Churchwardens may sue those that attempt it; but the Action must be commenced for Goods for the use of the Parish, and not in the Church­wardens own name; nor can any Churchwardens sell, impair, or release any of the Goods of the Church, without the free Consent of the Sidesmen or Vestry, under pain of being brought to Account for it, by the Succeeding Churchwardens, and forced to make sufficient Satisfaction.

If the Church-windows or Walls be broke, the Trees cut down in the Churchyard, or the Grass eaten up there, this lies in the Parson's Care to redress, and not the Churchwardens, for he is Conservator of the Body of the Church and Churchyard, as the Churchwardens are of the Moveable Goods only.

CHAP. LXXI. What relates to the Office of a Churchwarden in re­pairing the Pews, about Seating persons in the Church, and keeping good order: What Rates they may make for the repair of the Church, and what not, with o­ther things of the like Nature.

THE Churchwardens have the Care of repair­ing the Pews in the Body of the Church, &c. and other seats; but it is held in most cases they have not the disposing of them in the Body of the Church, the Disposal belonging to the Ordinary of the place, to place and displace whom he plea­ses, tho' in this there are excepted or exempted Cases; for suppose a Man and his Ancestors, and all those whose Estates he hath in his possession in certain Messuages, have time out of Mind conti­nued to repair an Isle or Pew, or fit there, this alters the Case, and the Ordinary cannot meddle nor displace; for if he do, a prohibition lies; [Page 161] for by prescription he hath and enjoys it for a reasonable Consideration: But if there be no Care taken to repair such a Pew by the party claim­ing by prescription, and it run to ruin; the Ordi­nary may take it into his hands; yet he hath no­thing to do in this Case in exempted Chappels be­longing to Noble-men.

The Churchwardens beside the looking after the Books and other Necessaries and Ornaments of the Church to see them kept in good Order, are to provide Bread and Wine for the Sacrament, pro­portionable to the number of the Communicants, and a parish Rate may be made for supplying this and other Necessaries. The Churchwardens and Questmen are likewise to see that in every meeting of the Congregation, the Peace, and a due Decorum be kept. Also to put out of the Church such as are Excommunicated.

In case of making a Rate for the defraying of Charges, it must be done by the Churchwardens, with the Consent and Assent of the major part of the Parishioners, House-keepers, of which they are to have convenient Notice before such time ap­pointed, for the said Meeting, to fix and settle such Rates: Now if upon the setting upon these Rates, a Man dwell in one Parish, and have Land in ano­ther which he occupies there, he lies chargeable for his Lands so occupied in the Parish where his Land lies, but if he Lease out the Land he hath in another Parish, reserving Rent, then is he not to be charged for his Lands there, because there is a Parishioner and Inhabitant liable to be charged else­where, Co. 5. Report, Folio 57.

No person keeping a Stall in a Market, and not being an Inhabitant of the parish where that Mar­ket is kept, can be rated toward the Reparation of the Church; but if a Citizen build a House in an Out-parish, and partly live there, and partly [Page 162] in the City, not having any Land to lease out or occupy in the Parish where his Country House stands, he is however as an Inhabitant liable to the Church Rate, and no prohibition lies in this Case in the Court Christian, because the Jurisdiction of the thing is not in their power, tho' he be ra­ted more than they that have 50 or 100 Acres of Land in that parish.

If there be in a Parish a Chappel of Ease, and one part of the parish time out of Mind is wont to repair it, hear Service, and have a Custom to Marry in it, and all other other Rites, except bu­rying their Dead at the parish Church, they are however liable to be rated for repairing the Mother Church, Mich. 13 Jacobi (1) C. B.

Where only part of the Parishioners are rated, and for defect of payment sued in the Ecclesiasti­cal Court, the matter must be pleaded in this Court, for in this Case a Prohibition will not lie; and if the Majority of the Parishioners agree to encrease the number of Bells or Ornaments of the Church, it is binding to the rest, and they are lia­ble to the Rates that shall be made, tho' not con­senting to it; and for any Ornaments for the Church, they ought to be rated only for their per­sonal Estates, and not for Land, &c.

And among other things it is enacted relating to the City of London, that where any Church-yard or Church be fronting or adjoyning to any of the Streets, Lanes, or Passages mentioned in the said Act, the persons thereby appointed and authorized may for the paving the said Streets, &c. so far as the Church or Church-yard extends, assess the In­habitants of the parish a reasonable Rate, to be paid by the Churchwardens of every such parish for the time being, who in the behalf of the parish are re­quired by that Act to pay the said Rate, 22 & 23 Caroli 2. Chap. 17.

CHAP. LXXI. Their Choice of Surveyers, giving up their Accounts, making Distress. Of Forfeitures, Presentments; and where, and where not they may give them in; with other things.

THE Business of the Churchwardens is to be conjunct with the Constables, in choosing the Surveyors for the High Ways, and appointing pro­per Days for their Work; also in the Oversight of the High Constable, to account for Monies levied by way of Forfeitures relating to the High-ways; and with the Assistance of two Justices of the Peace, one to be of the Quorum, oblige the High Constable to account for, and pay the Mony so coming to his Hands; and to execute the Justices Warrant for Forfeitures and Penalties for not cleansing the Streets or repairing the High-ways, 14 Caroli 2. Chap. 2.

The Churchwardens taking to them the Assist­ance of the Overseers of poor, have power to exe­cute the Warrants directed in the Woolen Burying Act, and levy the Five Pounds Penalty by Distress and Sale of Goods for Non-payment, to be em­ployed to the poor of the parish where such Of­fence is committed, 18 Caroli 2. Chap. 4.

In London, Westminster, the Burrough of South­wark, &c. The Churchwardens together with the Constables, Overseers of the poor and Surveyors of the High-way in every parish respectively, or a greater number of them are on Munday, or Tuesday in Easter Week yearly, upon giving publick Notice to call together such other Inhabitants as have born the like Offices, to nominate and make choice of two fit persons being Tradesmen of their Parish to be Scavengers for the Lanes, and [Page 164] Streets, other open passages of each Ward or Di­vision within the said parish, to continue for the space of a Year, or till others are chosen and set­led in their place, 2 W. &. M.

At the end of the Year, or within one Month after at furthest, the Churchwardens are to give up the Account of their Receits and Disbursements before the Minister and Parishioners, and upon quitting their Offices, to deliver up to the Parishi­oners such Mony and things as are remaining in their Hands, that it may by them be delivered over to the succeeding Churchwardens by Bill Indented, Cannon 89.

Upon Refusal of this they may at the next Vi­sitation-court be presented for it, or an Action of Account may be brought against them at Common-law by the Succeeding Churchwardens, to compel them to it, and their needful Expences and Dis­bursements upon the Account and Business of the parish, upon making up their Accounts, shall be allowed them.

As for Presentments, they are not obliged to make them above once in the Year, where by Custom it has been no oftner a use, nor in any Diocess whatever above twice a Year, unless it be at the Bishop's Visitation; and for such pre­sentments of every Parish-church or Chappel, the Register of the Court where they are Exhibited, is to receive no more than 4 s. a year his so Re­gistring them. But the Churchwardens of their own accord may oftner make their presentments, Canon 116.

One of the Times of presentments is ever to be about a Fortnight after Easter, and at that time they are to resign their Office to the Succeeding Church-wardens, and the new ones cannot be Sworn be; fore the old ones have given in their presentments and every Parson, Vicar, or in their Absence their [Page 165] Curates, in the said presentments, are to joyn with the Churchwardens, &c. And upon the Re­fusal of the Churchwardens, to make present­ments, the Parson, Vicar, or their Curates in their Absence, may make their presentments to their Or­dinaries at all such Times, and when else they shall think fit, Cannon 113, 118.

It is provided that no Churchwardens, Sidesmen, or Questmen shall be cited or called, but only at the Times limited to appear in the Ecclesiastical Court, or before any Ecclesiastical Judge what­soever, for refusing to present any Faults commit­ted in their Parishes at other times, and by the Ecclesiastical Law punishable; nor be further trou­bled after their Presentments delivered at the usu­al Times, unless it manifestly appear they have wilfully neglected, and wittingly omitted for Fa­vour, Affection, or otherwise, to present some one or more notorious Crime, or Crimes; or upon just Cause arising, to call them in order to Explain their former Presentments; and the Ordinary in case of such wilful Omission may proceed against them, as in the Ecclesiastical Courts, in case of wilful Pejury the Law has provided, Can. 117.

CHAP. LXXIII. The Grounds of Presentments, or usual Articles given whereon to Found their Presentments, that the Churchwardens may know what to do in this Case.

1. WHether the Church, Chancel, Bells and Ropes be in good Repair. The Lord's Prayer, Ten Commandments, and Creed be drawn in fair Letters; what Assessments are made for the Repair of the Church, and the Names of such as [Page 166] make Default in paying them; whether there be a Communion Table, Carpet, and Font in the Church, and all other necessary and useful Ornaments in Church and Churchyard; whether the Parsonage-house, and Out-houses are in good Repair.

2. Whether the Parson, Vicar, or Curate Read the Common-prayer at Morning and Evening Service, with his Surplice, or Preach every Lord's Day, Read Homilies, Catechise, keep Perambu­lation, Preach sound Doctrin, and use no Sedi­tious Expressions against the Government; whe­ther he Celebrate the Lord's-Supper at least three times every Year, once to be at Easter; whether he Baptize Infants with Godfathers and Godmothers, Bury the Dead according to the Form prescribed in the Book of Common-prayer, Preach in his Gown,, Visit the Sick, and Pray with them; whether he Marry Clande­stinely; that be a Sober-Man, live Chastly, and be a Peace-maker in his Parish; whether once every Year at least he Read the Canons to the Parishioners, and twice every Year the 39 Articles.

3. Whether the Parishioners at due Age re­sort to the Parish-church to hear Divine Service, and there Reverently and Decently behave them­selves; whether any Work, or Sell Wares on the Lord's-day, &c. Whether Vintners, Inn-keepers, or Ale-house-keepers, keep Tipling in their Hou­ses on the Lord's-day.

4. Whether any be Married within the pro­hibited Degrees, or be Adulterers, Fornicators, Swearers, Drunkards, Blasphemers, Sorcerers, &c. whether all the Parishioners above 16 Years re­ceive the Communion, at least thrice in the Year, Easter to be one time; whether any unsea­sonably keep their Children from being Baptized, [Page 167] or Women decline the usual Time of being [...]hurched after their Delivery; whether any [...]ing not their Dead to be decently Buried after [...] Service of the Church; whether any have [...]en Married without the Publishment of Banns, [...] License, or at unlawful Hours; whether their [...]spitals, Alms-houses, Schools, or Spittles, if [...] belong to them, be well and Godly used, [...] any thing detained from them; what Le­ [...]cies are given to Pious Uses, and if the Pa­ [...]shioners are orderly placed in their Seats without [...]ntention.

5. Whether the Parish-clark or Sexton be [...]ly chosen, can Write, Read, make the Re­ [...]ses, and be an honest Man. If the School- [...]aster, Usher, Physician, Chyrurgeon, or Mid- [...]ife, if any be in the Parish, Teach or Practise [...]ithout License; whether the Churchwardens [...] duly chosen in the Week after Easter, by the [...]ister and Parishoners, according to the Ca­ [...] or Custom; whether the old Churchwar­ [...]ns have been careful to keep the Church in [...]epair, to keep, and carefully secure all Furni­ [...]re belonging to the Church, &c. And whether [...] the middle of Divine Service, they walk out [...] the Church to visit Taverns, Inns, Ale-hou­ [...]s, &c. where Tipling may be used, and to see [...]ho are Loytering, or Exercising any Sports on [...]he Lord's-day.

These are the chief things to be presented; that other Matters may occur, are rather Ac­ [...]dental than Certain; and therefore these may [...]ell suffice for the Churchwardens Instructi­ [...]n.

CHAP. LXXIV. Several Nice Matters laid down for the Instruction of Church-wardens in their Office and Duty, &c.

IF a Bell be broke, the Church-wardens may have an Action against him that so broke it, or caused it to be broken, and recover Damages to the Use of the Parish.

If any one take the Organs out of the Church, the Church-wardens may bring an Action of Tres­pass; for the Organs appertain to the Parishio­ners, and not to the Parson; so no Action will lye in the Parson's Name, nor can he Sue the Par­ty that took them in the Ecclesiastical Court.

The Church-wardens have no Action at Com­mon-law to recover a Legacy never in their Pos­session: But for any Goods and Ornaments of the Church, being once in their Possession or Custo­dy, they may maintain an Appeal of Robbery a­gainst any one or more persons that Steals them, and an Action of Trespass against him that does, without Right, take them away, even against the Parson or Vicar so offending; and the Damages so to be recovered against such Offenders, shall be converted to the Use of the Parish. But if it so fall out, that those Church-wardens, from under whose Custody the Goods were taken, chance to Die before they have brought any such Action, the succeeding Church-wardens, have no Right by Law to bring an Action for the same Goods.

If a Church-warden presents that any Parishio­ner, certifying his Name, is a Railer, common D [...]turber, or sower of Discord among the Neigh­bo [...]s, unless it be done in the Church or Church-yard, a Prohibition lies, if the Presentment be made in the Ecclesiastical Court; because it is the [Page 169] Leet, and not in the Church-warden, if the Of­fence be committed elsewhere, that is to present it.

If a Suit be commenc'd by the Church-wardens in the Court Ecclesiastical, for a Church-way claimed as a Right belonging to all the Parishio­ners by Prescription; here a Prohibition lies, it is a Temporal Case, and not in the Jurisdiction of the Spiritual Court.

If any one be Sued in the Ecclesiastical Court, for refusing to Feast and Entertain the Church-wardens and those that go with them in their Pe­rambulation or Procession, with Bread, Cakes, Cheese and Ale, though his Ancestors living in the same House had done it on the like occasions, time out of mind, a Prohibition will lie against it; for that in such Cases the Church-wardens claim it in the nature of a Corody.

☞ And now for Brevity sake I pass over some other little Matters, not mainly significant, be­longing to this Office, directing the Church-war­den for his better Information, of many things that concerns his Office, to peruse the Office and Duty of a Constable, where he is jointly impowered to act with him in many particulars, not here so ex­presly set down, and in which he may see more copiously what in Criminal Matters he is to do.

The Duty and Office of the Overseers of the Poor. CHAP. LXXV. The Office of the Overseers of the Poor; how to be Qualified and Chosen, where they may Act, and what degrees of Poor they are to have regard to, in order to Relieve them.

THis is an Office very commendable, and of great Trust, chiefly requiring Diligence, and [Page 170] a good Conscience in the performance of it. It is of great Antiquity, and the Roman Senators gloried more in this than in all their honourable Trusts and Promotions; they were prouder to be stiled Patrons of the Poor, than of any Dignity whatsoever; and well administred, it gains not only a good Name here, but has God's Blessing a­long with it, to make those that well discharge their Duty, eternally Happy hereafter.

These Officers ought to be credible, honest, sub­stantial Men. They are to be yearly chosen, and joined with the Church-wardens of the Parish, in the Over-sight, due Regard, and Care of the Poor; they are to be made choice of by two or more of the Justices of the Peace, one to be of the Quorum, who are enjoined yearly, at Easter, or within a Month after, under their Hands and Seals, to ap­point 4, 3 or 2 Substantial House-keepers, accord­ing as the Parish requires to be joined with the Church-wardens, to oversee and look to the Poor in their Parish, according to the Statute of 43 Eliz. Chap. 2. 21 Jacobi 1. Chap. 28.

In this Case the major part of the Officers, with­out the remainder, may do any thing belonging to their Office, with the Allowance and Consent of them, either in particular or general, with two Justices of the Peace, one to be of the Quorum, and when they are not hindred by just Occasion, the Excuse to be allowed by two Justices of the Peace; they are to meet on the Lord s-day in the Church monthly, after Evening-prayer, to consult of such Matters relating to their Office, as may turn to their best Advantage; and upon neglect, without such reasonable Excuse, are liable to forfeit 20 s. for every Default, 43 Eliz. Wingate's Stat. Tit. poor People.

And if according to the 43 of Eliz. they be not regularly and duly appointed, then every justice [Page 171] of the Peace, or Head Officer of that Division forfeits 5 l. which may be levyed by a Warrant of Sessions, and employed to the Use of the Poor where such Default is made.

Of the Poor, there are reckoned 3 sorts or de­grees; and first, those by Defect and Impoten­cy, as the Aged and Decrepid, being past their Labour.

The Infant, Fatherless and Motherless, not ca­pable of being set on Work.

Those naturally Disabled, either in Wit or Members, as the Lunatick, Ideot, Lame, Blind, and the like, not being able or capable to Work; and Persons being visited with grievous Sickness and Diseases, though Casually; however, being for a time, thereby rendred Impotent.

These in their degrees are to be provided for, and the Overseers are to take care they have ne­cessary Relief, and such proportionable Allow­ances as shall appear convenient, according to the measure and continuance of their Needs and Maladies.

Secondly, Such Poor by Casualty, such as are casually Disabled or Maimed in Body, as Labou­rers, Soldiers, Mariners, &c. Maimed, or so Dis­abled in their proper or lawful Calling. Also the decayed Housholder, by Casualty of Fire, Los­ses at Sea, Suretyship, Robbery, or Decay and Loss in Trade, &c. A poor Man or Woman o­ver charged or burthened with Children, and not able to keep them by their Labour. All these, and the like, having Strength and Ability of Bo­dy, but no means whereby to Sustain themselves or Children, are to be set to work; but if the Profit thereby arising, procure not a sufficient ne­cessary Maintenance, so that they cannot live thereby, they are Objects of Charity, and to be relieved at the Charge of the Parish, in some rea­sonable [Page 172] proportion and measure, as their respe­ctive Wants and Necessities shall render them de­serving in the just Opinion of the Overseers, un­der whose Care they are.

Thirdly, Such as are Thriftless, who have wa­sted what they had by Prodigality and Riotous­ness, Playing, Drinking, Debauchery, and the like, or such as are Dissolute, Strumpets, Pilfe­rers, idle Persons refusing to work, Vagabonds that will settle in no place, nor be content with Service; and for these the House of Correction is appointed, where they are to be sent; and if of able Bodies put to hard Labour, to maintain themselves by it, without being chargeable to the Parish, Town or County for any Allowance; however, they are not to be suffered to perish for Want; but in case any of these last sort prove Impotent, by Sickness, want of Ability of Body, or that their Work will not supply what is need­ful for the Necessaries of Nature, then in their extream Necessity there must be an Allowance by the Town, &c. Dalt. Just. P. Chap. 73. Folio 170. And where the Parents are able to Work for their Children, so that it will maintain them, they may be compelled to do it; but if over­burthened, the Overseers, at their Discretion, may take what Children they think fit off their hands, and put them Apprentice, or otherways dispose of them to Nurses, or else allow the Pa­rents something to enable them to keep them.

The Father, Grand-father, Mother, Grand-mother, Children and Grand-children are ob­liged to relieve those so allied to them, that are poor and impotent, if themselves are of Ability, in such manner as the Justices shall order it at their Quarter Sessions, by assisting the Party or Parties, and upon obstinate Refusal or neglect to obey their Order, a Penalty of 20 s. every Month [Page 173] is forfei ed to the Poor of the Parish, to be levy­ed by the Church-wardens, Overseers, o [...] one of them, by Distress and Sale of the Offender's Goods, having first, to that end, received a War­rant under the Hands and Seals of two ustices of the Peace, one to be of the Quorum; and in de­fect of such Distress, the Justices may commit the Offender to Prison without Bail or Mainprize, to remain there till the Forfeiture be paid, 4 [...] Eliz. 2 Dalt. Just. P. Chap. 73. Fol. 156. Resol. Judges 16, 17. But a Grand-father-in-Law, if he has no Estate with the Grand-mother in Marriage, or that after comes to her, is not held liable to this, though he brings her considerable of his own, or is afterward enabled by his Industry, or at least if the latter, which is held doubtful, he is [...]bliged to it no longer than his Wife lives, Second Part of Bulst. Reports, Fol. 245, 246, 247.

If any Poor Beg in the Parish, a License must be granted for it by the Overseers; and if in the High-ways, by those Overseers. And by an Or­der of Sessions, a Cottage may be erected on the waste of a Mannor, and poor Inmates may be lodged therein; but it is afterward to be em­ployed to no other Use. And such Poor as can­not get Work, and are able, are to be set on Work by the Overseers; and a Justice of Peace may send such to the House of Correction, that be­ing employed by them and the Church-wardens, will not Work, being not otherways able to main­tain themselves, and they, with the consent of two Justices of Peace, or more, one being of the Quorum, may set up, occupy, and use any Myste­ry, Trade or Occupation, for the better Relief of the Poor in the Parish, Town or Place within their Districts, to set them on Work, which is very commendable, and may be wished it were more put in Practice.

CHAP. LXXVI. What relates to the Office of the Overseers, in taking care to put poor Children Apprentice, and what In­denture is required to find them, &c.

IN this, Care must be taken, that they must be so placed, as not again to be chargeable to the Parish, and that they may learn such s [...]l [...]able Crafts and Mysteries, as when their Time expires, with Labour and Diligence, they may be enabled to keep themselves and Children, their Age to be above 7, and under 15, when they are so pla­ced; and in doing this, the Overseers must have the Consent of two Justices of the Peace, and they may Bind Men-children to the Age of 24, and the Female to the Age of 21, or till she be Mar­ried, which first shall happen; but it must be within the Parish or Hundred, and they may give Money, if they cannot put them off without, and the Master's refusing to take them; when so offer­ed, may be presented and indicted for the same upon the Statute of 43 Eliz. at the Assizes or Sessions of the Peace; and Parents refusing to let them be so put Apprentice, without good Cause shewed for it, may, by the Justice, be bound o­ver to answer the Default, and the Children re­fusing, may be sent to the House of Correction, till they will comply. He or she must be Bound by Indenture, and the word Apprentice specified in it, or else it is not Binding. The Form of which, for the better Transcript on occasion, by those that are ignorant of it, I shall here set down.

CHAP. LXXVII. How far the Overseer is concerned about settling the Po [...]r, and what otherways relates; with some nice Points relating to Bastards, &c.

BY Settlement of the Poor, it is here meant such as are likely to be troublesome and chargeable to the Parish or Place where they re­side. And by the 13 and 14 of Charles 2. Chap. 1 [...]. The Overseers and Church-wardens making their Complaint to any Justices of Peace within 4 days, after any Person that is poor and likely to trouble the Parish, cometh to settle in a Te­nement under 10 l. by the Year, 2 of the Justice [...], one being of the Quorum, by Warrant under their Hands and Seals, may remove such a Person to the Parish where they last had a legal Settlement by the space of 40 days or more, unless Surety can be by them given, that the Justices shall ap­prove of, to secure the Parish, &c. from Damages [Page 177] or Charges that may ensue, and all Persons agrie­ved have free Liberty to appeal to the Quarter-Sessions.

In Harvest or Work-time, poor Persons setled in a Parish, having a Certificate under the Hands of the Minister of the Parish, one Church-warden and one Overseer of the Poor, declaring them In­habitants there, may go into any of the adjacent or distant Parishes to Work, and if they do not return, by reason of Sickness or any other Impe­diment, it shall not be accounted an Impediment, though they stay after their Work is done; and if any return from the Parish from whence they are removed, it is in the Power of the Justice of the Peace to send them to the House of Correcti­on, where they may be punished as Vagabonds, or, at his Discretion, he may send them to a com­mon Work house, there to be employed at hard Labour, and upon the Refusal of the Church-wardens or Overseers of the Poor to receive them, and provide them Work, &c▪ they may, by the Justice, be bound over to answer it at the Sessions or Assize.

In Case of a Bastard Child Born in any Parish, the Churchwardens and Overseers for the Poor may, in saving the Parish harmless, seize so much Goods, Profits or Lands to its use, belonging to the Lewd Mother or Reputed Father, as will dis­charge the said Parish, or toward the discharging of it, from such Charges as may thereby in [...]ur, which is to be awarded and settled by two Justi­ces of the Peace, and confirmed at the Sessions; and there an Order may be made to the Church-wardens and Overseers, by Sale, or otherways, to dispose of the Goods, as to them shall seem meet, and the Profits, or so much of the Profits of their Lands as by Sessions shall be ordered▪ Vide if the Act of 13 and 14 Car. 2. c. 2. be revived.

[Page 178]No Man is to be put out of his Dwelling in a Town where he is lawfully settled, or to be sent to the place of his Birth, but a Vagrant Rogue, nor to his last Habitation, nor is he to be main­tained by the Town, unless he be impotent, but they ought to settle themselves to Labour if they are able, and can get Work, and if Work can­not be gotten by them, the Overseers are to set them on Work, and if after they wander beg­ging in other Parishes, they may be charged as Vagabonds, and sent to the place of Birth, Dalt. J. P. C. 84. Fol. 209.

If a Scholar in a Grammar School or University, be suspect to be an Incumbrance, if he doth be­come impotent and is like to be a charge to the Parish where he is, he may be sent to his Pa­rents if he have any, otherways to the place where he was last Legally settled before he came to School, Resol. Judges 1633. Sect. 32.

If a Woman be sent to the House of Correction and there delivered, the Child must be sent to the Parish whence the Mother came, and there relieved.

If a Woman be Travelling and hath her Child with her, and is for any Fault or Breach of Sta­tute apprehended and sent to Goal, although she be executed for her Crime, the Child is not to be charged on the Parish where the Goal is, but must be sent to the place where it was Born, if it can be known, otherways to the place where the Mother was apprehended, according to the Opi­nion of Sir Nicholas Hide, 3 Caroli 1.

If a Woman unmarried be hired Weekly or Monthly, or by the half Year or Year, in a Parish, and there be gotten with Child, and so goeth into another Parish, and there for 2 or 3 Months is set­tled in Service, and being then discovered to be with Child, in this case she must be settled in the [Page 179] Parish where she is, and must not be sent to the Parish where she before was, Resol. Judges 1633. Sect. 12. If a Woman be delivered of a Bastard Child in one Parish, and so departeth into ano­ther Parish with her Child, in this Case the Child after being Nursed, is to be sent to, and settled in the place where it was Born, and not to re­main with the Mother, Resol. Judges 1633. Sect. 23.

CHAP. LXXVIII. The Office of the Overseers of the Poor in making Rates, and how they must behave themselves there­in; and of making and delivering up their Accounts upon going out of their Offices, &c.

THE Overseers for the Poor, with the Church-wardens, or the major part of them, for enabling them to perform the things they have in charge, may raise weekly, or otherways, by Taxation of every Parson, Vicar, and the Occu­pier of Land, House or Tithes, Colemines, or Underwoods salable within their Parish or Divi­sions, such a Sum as in moderation they shall think fit; but the Rate must be allowed and confirmed under the Hands of two Justices, one being of the Quorum, and then may be levied by Distress and Sale of Goods upon refusal of Payment or neglect, by Virtue of a Warrant from any other two Justices, one being of the Qu rum, rendring the overplus to the Owner▪ and for default of Distress, two Justices may commit the Party to remain in Prison, without Bail or Mainprize, till Payment be made, or the Justices think fit to dis­charge him, 43 Eliz. Chap. 2. Dalton [...]ust. P. Chap. 73. Folio 148. Wingates Stat. Tit. Poor Peo­ple. And these Rates ought to be made accord­ing to Mens real and visible Estates within the [Page 180] pla e only, and not according to Estates elsewhere and further.

Observe, that a Parish in Reputation is deem­ed good within this Law: For granting G. a Pa­rish [...]ery Antient, having Officers in it, never [...]he­less here is a Town within the Parish, that for time out of Mind, at least a long time hath been used and reputed as a Parish, and hath all paro­chial Rights, as Churchwardens, &c. in such a Case it may be Rated as a Parish towards the Poor, Hutton's Report Folio 93, and others.

And there must be care taken in Rating and Levying this Tax, for it must lye on the Tenants occupying Land, &c. and not on the Landlord, in nor out of the Parish, for the first is only char­geable for the Land, Bulstrod, 1 part Rep. 354.

Any Parson having a full Tenth in a Parish may be Ra [...]ed a Tenth part, Resol. Judges 1633. Sect. 33.

If any Person occupy Land lying in several Pa ishes, he must in this Rate be accountable for them proportionably in the Parishes where they lye; but it seems reasonable that for his Personal Estate he should be chargeable in the Parish where he is an Inhabitant

In Rating Stock or Goods it is to be Rated ac­cording to the proportion of Land Rent, as five or six Pounds a Year in Land to be held equal with 100 l. in Goods or Stock.

In a Parish where the Inhabitants by reason of their own Poverty or f [...]wness, are not able to re­lieve their Poor, two Justices, one being of the Quorum, may by Rate Tax other places and Parish­es within the Hundred, or all the Hundred if ne­cessity requires it; and th [...]s not proving sufficient, the Justices in their Sessions may Tax the County in part, or wholly if they think fit, 43 Eliz. Win­gates Abridg. Stat. Tit. Poor People. And if any [Page 181] Person find himself agrieved by any Act done by the Justices of the Peace or Overseers, they may for Redress apply themselves to the Justices in the Quarter Sessions, Dalt. Just. P. Chap. 73. Folio 160. &c.

If a Parish shall reach to and lye in two Coun­ties, or one part thereof to lye in any City or Cor­poration Town where there are proper Justices, in that case the Justices of each County are to meddle so much as appertains to the Party lying in the County of which they are Justices, and so of the other parts, and yet the Overseers shall without dividing themselves, execute their Office in all places within the said Parish, but shall give up their Account to the Justices or Head Officers of both places, Wingates Abridg. Stat. Tit. Poor People, 43 Eliz. Ch [...]p. 2. Dalton Just. P. Chap. 73▪ Folio 156.

The Overseers of the Poor are within 4 Days after their Year is expired and other Officers no­minated their Successors, to give up their Ac­count in Truth before two Justices of the Peace, one to be of the Quorum, chiefly to this purpose.

1st. What Stock of Money they have received or Rated, and not come to their Hands. 2d. What Stock of Stuff or Ware is in their own, or in the Hands of any of the Poor. 3d. What Ap­prentices they have put out, and bound according to the Statute. 4th. What Poor they have set to Work or relieved. 5th. What Poor they have suffered to beg or wander out of the Town in the High Ways, or in their Town without their Dire­c ions. 6th. Whether they met Monthly to con­si [...]er of such Matters as are properly belonging to their Office. [...]th. Whether they have made their Rates indifferent upon the Parishoners, ac­cording to their Ability. 8th. Whether they have truly endeavoured to gather and levy all As­sessme [...] [Page 182] 9th. Whether in them there has been any neglect of the Justices Warrants directed to them on any Account, especially those for collect­ing any Forfeitures, according to the Statute, 43 Eliz. Chap. 2. Dalton Just. P. Chap. 73 Folio 153.

☞ Note, by the Statute made for the Bury­ing in Woollen, 30 Caroli 2. the Justices may nor allow the Accounts of the Overseers of the Poor, till such time as they have given them an Account of the Burial [...] and Certificates, and of their levying the penalty by that Statute directed.

If they refuse to give in their Accounts, or make and yield a true and perfect Account to the said Justices, of such Money and Stock in their Hands, as has been mentioned, two Justices of the Peace, one being of the Quorum, may commit them to the Common Goal, not to be dismissed till they shall render a true Account, and payed or satisfied the succeeding Overseers, so much of the Sum and Stock as shall any ways appear to be remaining in their Hands, and upon making a false Account, lye liable to be bound over to the Sessions or Assizes, where an Indictment may be preferred against them, Dalt. Just. P. Chap. 73. Folio [...]5 [...]. Or the Justices, or any two of them may grant a Warrant to the succeeding Overseers to levy the Sum upon the Goods and Chattels of the Offenders, by Distress and Sale, and for want of such Distress, may commit them to Goal till Satisfaction be. But note, upon Sale the Over­plus is to be returned to the Owner, 42 Eliz. Chap. 2.

If it so happen that any part of such Stock shall be found or known to be in the Hand of any Poor, upon refusal of delivery, two Justices may by Warrant cause the value to be levied, or for want of wherewith on which to make Distress, commit the Party to Prison, as in the former Cases, Dalt. Just. P. Chap. 72. Ibid.

[Page 183]And for these all other Faults and Negli­gences of Churchwardens and Overseers, [...]lating to the Execution of their Office, as to the Poor, &c. for every such Default made by any of them, he is to forfeit 20 s. upon Proof, by Confession, or Examination of Witnesses, to be levied by Warrant of two Justices of the Peace, by Distress and Sale of Goods, or for want of it the Offender to be Imprisoned, and the Money so levied to be Employed to the use of the Poor of the Parish, Dalt. Just. P. Chap. 73. Folio 155. 43. Eliz. Chap. 2. So that by the Law great care is taken that these Officers shall not be wronged in their [...]ust R [...]ghts, nor the Parish or Poor be wronged by them.

CHAP. LXXIX. The Office of the Overseers of the Poor in receiving Fines to the use of the Poor in some Respect; of Destroyers of Game, unlawfully Fishing, also relating to Measures and Burying in Woollen.

IT is the Business of the Overseers of the Poor, to receive such Fines or Forfeitures as accrue from Offences in such, as in the Night time Kill, or take any Coneys upon the Borders of Warrens, or such Grounds where the Owner may lawfully keep Coneys, the Parties so Killing or Destroying, not being Proprietors, nor allowed by the Owner.

Also of such as use Hare-Pipes, Snares, or such like Implements, or take Fish by any Nets, Ang­ling, or other Device, in any Water or River not lawful, or shall be assisting thereunto, without the consent of the Lord of the Mannour or Owner of the Water; and the Sum for these Offences is to be amerced by the Justice of Peace before whom the Party offending shall be convicted, the Sum not exceeding Ten Shillings, over and above what the Owner may have or recover his Da­mage [Page 184] sustained for; and the party for Default of payment may be sent by the Justice to the House of Correction, for any time not exceed­ing a Month, unless he enter into Bond with one or more Sureties to the party aggrieved, the Sum not exceeding Ten pounds, never in the like man­ner to offend any more; and for these Offences the Offenders Goods are liable to Distress and Sale, but then the Imprisonment must be re­mitted upon Satisfaction that way made, 22 &c. 23 Caroli 2. Chap. 24.

As to Weights and Measures the Overseers for the poor as well as other Officers, ought to have a special Regard to them, and in this case there ought to be one Weight, one Measure, and one Yard, according to the Exchequer Standard in every part of the Realm, as well within as with­out places priviledged; and every Measure of Corn is to be striked, and those that keep different Weights and Measures not agrreeing in all respects with the Standard to buy and sell by, being con­victed thereof by the Oath of two Witnesses, be­fore any Justice of Peace, or Head Officer of the Town or place where the Offence is done, shall forfeit Five Shillings, to be levied by the Church­wardens or Overseers of the poor in the parish where the Offence is committed, by Distress and Sale of Goods upon Warrant, and for want of such Distress the Offender to be committed to prison without Bail till payment be made; and if any person be troubled for any Matter concern­ing his Office, in this case he may plead the Ge­neral Issue and give in Evidence, the Act of 17 Caroli 2. And to have treble Costs if the Suit so brought prove vexatious, Dalt. Just. P. 112. Folio 246. &c.

The penalty of 5 l. is to the use of the poor where any persons shall be buried in any Garment, [Page 185] Winding-sheet, Shroud or other Materials not made of Sheeps Wooll only; or if the Coffin the Dead Body is put into, be lined or faced with any thing made of any Material but Sheeps Wooll; and the Churchwardens and Overseers of the poor are to take care of this in all Respects that the Forfeitures be duly Levied. See more, 30 Caroli 2. Chap. 3. &c.

And thus much briefly for the Office of the Overseers of the poor. See more in the Office of a Constable and Churchwarden, where many things belonging to their Office are intermin­gled, and therefore here omitted, or but slightly touched on.

CHAP. LXXX. Of Fairs and Markets, Toll and Toll-keepers, Clerks of Markets, their Office and Duty in some Parti­culars, &c. Measures, and Measuring, Sealing, &c.

A Fair must be kept no longer than the Grant or Use by Custom will Warrant for what is Warrantable; and Goods so Sold after the Expiration of the Time, as Merchandize, &c. The Seller shall forfeit to the King double the Value of what is Sold, and the prosecutor shall have the fourth part; the Fair must be duly Pro­claimed by the Sheriff, or Lord of the Fair, and the Time it is to continue mentioned, the place or ground appointed, set out, and care taken that there be no Riots or Disturbance, but an Orderly keeping of it during the Time it lasts.

Where there is a Beast Fair for Horses, Mares, Geldings, and other Cattle, they must have their appointed places, that those that resort thither may have a Certainty where to find them. And one sufficient person, or more must be appointed to take Toll, and keep the same place from Ten [Page 186] in the Forenoon, every Day till Sun Set, during the Time of the Fair or Market, upon pain to for­feit for every Default 40 s. And in Tolling, the party thereto appointed must have before him the paries Bargaining, upon his Tolling any Horse, Mare, &c. And must Write in his Book the Christian Names, and Sir Names of all the Parties; also their Dwelling places, with the Colours and some particular Marks of the Horse or Mare, &c. so Sold or Bargained for, on Penalty to forfeit for every Default 40 s. and he is to have one Credible Person known to him to Vouch the Horse or Mare, &c. and testifie his Knowledge of the Seller, and his Name and place of Aboad must be entred with the others in the Book, with the Colour, Mark, or Price of the Horse or Mare, Sold or Exchanged, and the Buyer requiring it, may have a Note in Writing out of the Book, Reciting the Contract and Toll­man's Hand thereto, for which he may take Two-pence.

If any Toll keeper suffer a Sale to pass without a Voucher, unless he well know the party, and every Party making a false Testimony, or Avouch­ment, or every Seller unknown, not bringing a Voucher, and causing the same to be entred, for­feits Five Pounds, one Moiety to King, and the other to the Prosecutor, and the Sale of the said Horse, &c. to be void. Yet notwithstanding such Vouching, the Owner of a Stollen Horse, &c. so Sold, his Executors or Adminstrators, claiming him within six Months after the Stealing, may Redeem at the price he was Sold for, making proof that it is his, and that it was Stollen by two suffi­cient Witnesses before a Justice of the County where he is found, or the Head Officer or Magi­strate of a Corporation, and the price to be such, as the Buyer upon Oath shall testifie before the Justice, he paid for him; and if the Stollen Horse [Page 187] be not Sold in open Fair or Market, and lawfully Toll'd, the Right is in the Owner from whom he was Stole, and he may Seize or Replevy him in a­ny place where he finds him.

If any person Buy Oxen, Goats, Sheep, Calves, Heifers, Lambs, &c. alive, he shall not Sell them again alive till he has kept them in his pasture by the space of five Weeks.

As for Measure, there shall be only the Winchester Bushel, and no other Bushel, and that to contain 8 Gallons; and whoso Sells by any other, according to the 22d. Caroli 2. Chap. 8. forfeits 40 s. And upon the Clerk of the Market's refusing to Seal such Measure as shall be full Gauged, he forfeits for the first Offence 5 l. for the second 10. l. Or if the King's Clerk of his Market of his House ex­act, or take more Fees than his due, that is, above one penny for Sealing a Bushel, a Half penny for half a Bushel, and one Farthing for Measures of less proportion, he incurs, and shall undergo the penalty in the Statute, Caroli 1.

A Brass Bushel is to be chained to a post, or publick place in the Market-place, at the Charge of the person taking Toll for the publick Use of Measuring, upon penalty of forfeiting of five Pounds, 22 Caroli 2. Chap. 8.

Whosoever shall Sell or Buy Corn without Mea­suring, being thoreunto required, so Selling or Buying it in Sacks, or Bags, or in any other thing, shall forfeit the said Corn, or the value thereof to the party making his Complaint of this Offence a­gainst the Statute, 22 & 23 Caroli 2. Chap. 12. And upon Complaint the Defendant by the Oath of one or more Witnesses before a Justice of the Pcace, must prove that he or they did Buy or Sell according to the Statute of 22 Caroli 2. and 23 Caroli 2. or else pay the Forfeitures by the latter directed, which upon Warrant may be [Page 188] Levied by Distress and Sale of Goods; the War­rant to be given under the Hand and Seal of one or more Justices, before whom such Conviction shall be, one half to the poor of the parish where the Offence is committed, and the other to the Informer, Ibid.

The Duty and Office of the Surveyors of the High-ways and Bridges, Scavengers in London, Westminster, Borough of Southwork, &c. With more particu­lar Directions what they are to do and observe there­in, and how to behave themselves, and order Mat­ters for the due Discharge of the said Office. CHAP. LXXXI. Surveyors of the High-ways, their Office and Duty in mending the Ways, and Rating.

THough Ways are generally called the King's High-way, yet of Ways there are three sorts: 1. A Way where Men have a just Right to walk in, Pass and Repass. 2. A common Foot way and Horse way. 3. A Way for Carts and Wains, and all sorts of Carriages; and this latter is most properly called the King's High-way, free for himself and Subjects to pass and Re-pass at all times; whereas some in the other Sense, are Ways only to Grounds, Houses, &c. And Ways by Cu­stom, and some again upon Sufferances in the publick Ways. All Nusances or Stoppages are In­dictable, especially if not timely removed on No­tice given, or the Lord of the Soil for any dig­ging or spoiling the High-ways, may bring his Action against the Offenders.

The Surveyors duly chose by the other Offi­cers, with the Advice of the Inhabitants, or the [Page 189] major part of them upon publick Notice before given, are diligently to oversee those that Work on the days appointed, for the digging and car­rying Gravel and other Materials, for mending such Ways where they shall find them defective, giving them Directions in order thereto; and up­on publick Notice or Wa ning, the Persons so qualified are to send their Carts and Labourers.

Every Person having in his own Occupation a Plough-Land, in Tillage or Pasture, or keeping a Plough or Draught in the same Parish, is liable to send, according to the Fashion and Custom of the County wherein he resideth, or is so legally Charged, a Wain or Cart with Oxen or Horses, fit for Carriage and Work of this nature, attend­ed by two able Men, who shall do such Work as shall be, by the Surveyors, appointed them, for the space of days, Working 8 hours every such day, under the Penalty of forfeiting for every days Default 10 s. and every other Housholder, Cotter or Labourer, not being a hired Servant, shall in Person attend the Service to Work, or send an able Man in his stead, under Penalty for every days Default to pay 12 d. and all other Per­sons, being no otherways chargeable; but Cot­tages being Subsidy 5 l. in Goods, or 40 s. by the Year in Lands, or above, they must find two able Men to Work in the Service.

It is in the Discretion of the Surveyors▪ if there be more Carts, Wains, &c. than are necessary, to appoint two able Men instead of a Team, on forfeiture of 12 d. each, in case of Defect. And if in 6 days the Ways cannot be conveniently mended, as is the usual time, they may set a far­ther time; but then they must make Payment for it according to the Rate of the County; and if hereupon there be no Agreement, the Justice may settle the Rate.

[Page 190]If Materials be wanting, the Surveyors may take the small loose Stones from any Man's Quar­ry, and such Rubbish as he finds there, it being near the Road, without paying for it, but must not dig not take away the great Stones. They may dig Gravel and Sand for the like Use, near any Highway, in other Mens Ground, not being their House, Yard, Orchard or Garden, without paying for it, the Pit not exceeding 10 Foot in breadth, and the like in width; which, as soon as the Work is over, must be covered up and made good at their Charge who caused it to be digg'd; or if it be so filled up within the space of one Month, they forfeit 5 Marks, to be recovered by the Owner, by Action of Debt.

All Owners of Ground adjoining to the High­ways are to keep their Hedges low and upright, that the Boughs or Brambles standing out may not hinder or offend Travellers, and that so the Sun may shine on the Ways, to dry them; and such as are negligent in this, may be Presented and Indicted, and thereupon forfeit 10 s. besides their Charges.

And in case Ditches are stopped up with Mud or Ouse that should be Drains to the Highway, so that the Water lies in it, and cannot have a current Passage, the Owner of such a Ditch or Water-drain shall forfeit 12 d. for every Rod so neglected to be Scowred, by 18 Eliz. Chap. 10. And the Surveyor hath power to make Conveni­encies for draining the Highways, as Sluces, Out­lets of Water, &c. into any Man's Ditch or Ground, for the better and more speedy Conve­niency of passing the Road. If any Man, upon Cleansing a Ditch, cast the Soil into the Road, and suffer it to lie there above the space of six Months, he is liable to pay 12 d. per Load for as many as shall be adjudged to be there.

[Page 191]If a Justice of the Peace shall, upon his own Knowledge of any Nusance on the Road, make a Presentment, it stands good, and two Justices, one being of the Quorum, may make the Amerce­ment or Fine to be levyed on the Offender.

These Officers, viz. Surveyors, have in their Care all Bridges witnin their several Parishes or Liberties, to see they are kept in good Repair, from time to time, at the Charge of the Parish, Hundred, or as the Custom has been, and is con­tinued; and if a Custom has therein ceased for a time, it may be revived; for in some Cases par­ticular Persons are bound, by Tenure of Land, &c. to repair part or the whole of a Bridge, &c. without a Parish Charge. But to instance these Particulars, would be too tedious for my intend­ed Brevity; and many times a whole County Iles chargeable to be Rated for the Repair of a Bridge, &c.

CHAP. LXXXII. The Office of a Surveyor, in draining the Roads, ma­king Presentments; and in what Case a Justice of Peace may Present; how the Surveyor shall be Reim­bursed for Moneys laid out for Materials, &c.

A Surveyor may Cause a Water-course or Spring in the Highway, within his Parish, to be turned into another Man's Ground, or his Ditch next adjoining to the said way, for the Conveniency of keeping the Road dry, as in his Discretion shall seem fitting, Dalt. Chap. 50. Fol. 103.

The Surveyors, o any one of them, have power to present to the next Justice of the Peace every Default, upon the 2 and 3 of Philip and Mary, [Page 192] Chap. 8. and 5 Eliz. Chap. 14. within one Month after the Default made, on the Penalty of 40 s. and the Justice under Penalty of 5 l. must certi­fy the same at the next Quarter-Sessions, where the Bench of Justices have power to enquire of the Default, and to set such Fine on the Offender as any two of them, one being of the Quorum, shall think fit, 5 Eliz. Chap. 1 [...].

If any Justice of the Peace present in Sessions upon his own Knowledge, it shall be a good Con­viction, whereupon any two of the Justices, the one being of the Quorum, may assess a Fine as well as if the Matter had been found on the Verdict of 12 Men: But in this Case the Offendor shall be, as in other Cases, admitted to his Traverse, 5 Eliz. Chap. 13. Rast. 199. and all such Fines and Forfeitures are to be bestowed and employed to­wards the mending and bettering of the Highways in the Parish where the Offences are committed, Wing. Abridg. Stat. Tit. Highways, 2 & 3 P. & M. Chap. 8.

Where Surveyors have laid out their Money for Materials to mend the Ways, where without there were none fitting to be had, it is enacted 2 and 3 of William and Mary, That upon notice gi­ven by the Surveyors of Highways, to the Justices of the Peace, at their Grand Sessions, and Oath made of what Sum or Sums of Money are expend­ed to that Use and Behoof; the Justices there­upon, or any two of them, under their Hands and Seals, may cause an equal Rate to be made, for the reimbursing the Surveyor or Surveyors, the Moneys by them to the Use aforesaid laid out, upon all the Inhabitants of such Parish or Town­ship where it was expended, in Rates according to the Rules and Methods prescribed in 43 Eliz. Chap. 2 for the Relief of the Poor; which Act directs the Tax to be laid on each individual In­habitant, [Page 193] as Parson, Vicar and others; and eve­ry Occupier of House or Land, Tyths Impropri­ate, Impropria ions of Tyths, Colomnies or Sala­ble under Woods in the said Parish, so to be R [...] ­ted; and the Rate so allowed and setled by the Justices, in their said Sessions, shall be gathered and collected by the Surveyor or Surveyors of the Highways; and if any one refuses to pay the Mo­ney according to the Rate assessed, it is lawful for the Surveyors to levy it by Distress and Sale of Goods and Chattels of the Person's so refusing, reserving reasonable Charges, for making the said Distress, and rendring the Overplus to the Owner, if any there be.

By the 3 and 4 of William and Mary is farther provided, That whereas the Fines imposed and set on the Presentment of a Justice of the Peace, and other Fines and Issues, for not repairing the Highways, being oftentimes returned into the Court of Exchequer, and other Courts, and so le­vyed upon some particular Inhabitants, and no Provision made to reimburse them; now on the contrary, Fine, Issue, Penalty or Forfeiture shall not for the future be returned into any of the said Courts, but be levyed and put into the hands of the Surveyors, to be applyed towards the Repair of the said Highways; and if it be hereafter levy­ed on one or more of the Inhabitants, his or their Complaint, for Redress lies to the Justices of the Peace, at their special Sessions; and they, or a­ny two of them, by Warrant under their Hands and Seals, may cause a Rate to be made, accord­ing as before set down, for the reimbursing the Surveyors of their Money laid out for the Repair of the Highways, or of such Inhabitant or Inha­bitants, as the Money shall be levyed upon; which Rate so made and confirmed, shall be col­lected by the Surveyor or Surveyors; and he or [Page 194] they, within a Month next after the making and confirming the Rate, must pay unto the Inhabi­tant or Inhabitants such Money so levyed on him or them, as before recited.

CHAP. LXXXIII. Several Matters relating to Justices of Assize, and Justices in their Sessions of Peace, concerning Sur­veyors; with Law Matters relating to them.

JUstices of the Assize, and Oyer and Terminer, Justices of the Peace in their Sessions, and Stewards of Leets on Law-days may hear and determine Offences against the Statute of the 18 Eliz. and the Surveyors who are to Levy the Pe­nalties and Forfeitures of that Statute, and the Constables and Churchwardens who are in de­fault of the Surveyors, to Levy the same, are to yield up their Accounts to them, as appointed in 2 and 3 Phil. and Mary Chap. 8. and 5 Eliz. Chap. 13.

All defects of Repairs of Causeways, Highways, Pavements or Bridges, shall be presented in the County where they lye, and not elsewhere; and that no such Presentment or Indictment shall be removed by Certiorari into the Kings-Bench, or otherwise, out of the said County, till such Presentment or Indictment be first traversed, and Judgment thereupon given, 22 Caroli 2. Chap. 12.

And no Indictment, or Presentment, or Or­der, by Virtue of the Statute of 3 and 4 W. and M. is to be removed out of the County unto any other Court relating to Highways, &c. but are to be determined in the County where the same doth lye, and not elsewhere.

[Page 195]All Actions against any Person or Persons for any thing done by means of the Act of 22 Caroli 2. for Repairing the Highways, shall be laid in the proper County where the Fact was done, and not elsewhere, and to it the Defendant may plead the General Issue; and if there be a Verdict for the Defendant or the Plaintiff be Non-suited, or dis­continue his Action, the Defendant shall recover treble Cost, sustained by reason of such Action or Suit, and by the 3 and 4 of W. and M. in such Cases the Defendant may plead the General Issue, and give the Special Matter in Evidence; and if the Plaintiff be Non-suited, or forbear prosecuti­on, or a Verdict pass against him or her, the Defendant or Defendants shall recover double Costs.

Trustees of Lands given to the use of maintain­ing Pavements, Causways, Highways and Bridges, are obliged to Let them to Farm at the m [...]st im­proved Rent, without any Fine, and the Justices of the Peace in their open Sessions may order the improvement and imployment of such Lands, or the profits arising thereby, other than such Lands as have been given to the uses aforesaid, to any Colledge or Hall in either of the Universities, that have Visitors of their own, according to the Will of the Donor; if it appear to them the per­sons have been faulty or negligent in the perform­ance of their Trust, 22 Caroli 2. Chap. 12. Kebles Statutes, Folio 1394 Sect. 2. Wingates Highways, Section 32.

CHAP. LXXXIV. Directions to Surveyors in case of Rescues upon Sei­zure, and what relates as to Penalties concerning Wains or Carriages on the Road.

IF any person or persons shall resist or make for­cible Opposition against any of the persons em­ployed [Page 196] in the due Execution of the Acts of Parlia­ment 2 and 3 P. and M. 5 and 18 Eliz. 22 Caroli 2. made for the more effectual Amendment of the Highways, or shall Rescue any Goods or Cattel ta­ken in Distress, by virtue thereof, being convicted by the Oath of one credible Witness before any one Justice of the Peace, or by the view of the Justice himself; for every such Offence the Of­fender shall forfeit 40 s. and if not paid in seven days, the Party to be committed to the County Goal, where the Offence was committed, to re­main till paid; and this is to be delivered to the Surveyor or Surveyors of the Highways in the Pa­rish where the Offence was committed, and im­ployed for the amending the said Ways, 22 Car. 2. Chap. 12.

All Travelling Wains, Carts or Carriages, by way of common Carriage, are not to go with a Team on the publick Highways with above Five Beasts at length, and if they shall Drive with a greater number of Horses or Oxen, they shall all Draw in Pairs, that is, two a Breast, for such number as they shall use, except one Horse: And in defect of this, the Offender or Owner of the Waggon, Carriage, &c. forfeits 40 s. one third part to the Surveyors of the Highway of the Town, Village or Hamlet where the Offence shall be com­mitted, another third to the Overseers of the Poor, and another to the Informer; and this to be imposed on the Offender by any one Justice of the Peace of the place or Division where the Of­fence is committed, upon the Oath of one credi­ble Witness, or upon the Justices own view, and to be levyed by the High Constable or other Offi­cer of such place or Division, by Warrant. And a Surveyor seeing and suffering Waggons or Carts to pass with more Horses, &c. than menti­oned, or in any other Order, may upon Convicti­on [Page 197] for such his neglect, be Amerced by the Justice in any Sum under Forty Shillings, to be levied on his Goods and Chattels.

CHAP. LXXXV. Directions to the Scavengers and Managers of Sewers in the Cities of London and Westminster, the Borough of Southwark, relating to their Duty and Office.

AS for the Cities of London and Westminster, their Scavengers are in the Nature of Coun­try Surveyors, where Commissioners are over them appointed, to take care they do their Duty, and to take Cognizance of Vaults, common Drains, or Common-shoars, to amove Nusances, and to s [...]e after the Pavements, Payment of Raker, and what else shall be amiss, also in the Burrough of Southwark, and places adjacent, the aforesaid Cities, in them the House-keepers are to sweep and cleanse the Streets, Lanes and Alleys, and publick places before their Houses, and bring out their Dirt or Soil fit for the Raker to take up and car­ry away, and the Mayor, Aldermen, and Common-council of the City of London, may set out and purchase Grounds for Laystalls, to receive the Dirt and Rubbish carried out of the City, and for other Materials and Commodities. And any person up­on Complaint of Nusances in Defect of Pavement, Dirt or Rubbish lying beyond the usual Time, neg­lect in Rakers in not duly coming and giving No­tice to bring out Dust or Dirt by Ring of Bell or such like Warning, may by the Commissio­ners be redressed, and the parties offending puni­shed as the Statutes in those cases provide and direct.

[Page 198]No person under the Penalty of Five Shillings, is to throw any Dirt, or Rubbish, or Noisom thing into the Streets that may be a hinderance or give Offence, nor into any Lanes or places of publick passage, &c. or against a Wall of any Church, Churchyard, or any House; and if they throw it into any common Vault, or Sink, to hin­der the Current of the Drains, they forfeit 40 s. 14 Car. 2. Chap. 2. And those that sweep not up their Dirt for the Scavenger to take away before their Houses in Streets, Alleys, and other publick places, forfeit 13 s. 4 d. for every Neglect, 13 Ca­roli 2. Chap. 2.

If any Hoop, wash or cleanse any Barrels or other Cask, or set out empty Cask to mend, or hew rough Timber, saw Stone, for each of these Offences they are to pay 20 s. and every House­holder is to keep the Streets, Lanes, and other publick passages, so far us belongs to him paved, well paved unto the Channel or middle of the Street or Lane, under the Penalty of 20 s. for every Rod that shall be defective, and 20 s. a week till it shall be paved or mended. To enquire after Offenders, and make such Redresses as are found Agrievances, by applying themselves to the Com­missioners, &c. and by the Statute of the 2 William and Mary, among other things it is enacted, that the Rakers, Scavengers and other Officers thereto appointed, shall every Day in the Week, Sundays excepted and other Holy Days, bring their Carts and other Carriages unto their several Char­ges and Divisions where they can pass, and give Notice at or before by the ringing of a Bell there, and in Alleys and other places where they cannot pass, that the People may sweep up and bring out their Soil, which the Rakers are every day obliged to carry away uuder Penalty of 40 s. for every Offence.

[Page 199]In the Place and Division where any new Street shall be made, the Justices of the Peace of that Division may take a View, and if they think it convenient to be paved, or otherways amended, they are to certify the same under their Hands to the Justices of the Peace at the next General Quarter Sessions for the Place where the Street or Streets are, who are to take order for the paving or amending as they shall think fit, and all Peo­ple concerned therein, by a limited time ordered by the Justices, are to be complying under the Penalty of 40 s. for every Perch, upon such Offence or Default, and accordingly for a greater or lesser Quantity, and the like Sum for every Week it shall remain so unpaved or amended; and any Scavengers duly chosen, refusing to take upon them the Office forfeits Ten Pounds for such Refusal, then other two to be chosen within seven Days af­ter such refusal, and to forfeit as the Former up­on refusal, and the Penalties to be payd to the Surveyors of the High Ways of the place, to be employed towards the amending the High Ways and Streets of the same Parish, Ward or Division, to be levied by Distress and Sale of Goods and Chattels of the Offenders, by Virtue of Warrant from a Justice of the Peace in any of the Places where the Offence is committed, to be directed for that purpose to the Constables or other Offi­cers of the said Parish, to any two or more of them, and reasonable Charge for the Distress being de­ducted, the Overplus is to be returned to the Owner if any there be, and for want of Distress or Non-payment within six Days, upon Demand or Notice left at the House of the Offender in Writing, he or they so offending may be committed to the common Goal of the County, City or Place respe­ctively, by Warrant from any of the said Justices of the Peace under Hand and Seal, and there to [Page 200] remain without Bail or Mainprize till payment be made as aforesaid, and so for every person elected and refusing the Office, &c.

CHAP. LXXXVI. Within what time Rates are to be made, and by whom. How the Scavengers are to account for them, and the Penalties upon Refusal. Assessment how to be made and levied, &c.

WIthin Twenty Days after the Scavengers are elected, the Constable, other Officers and Parishioners, or the greater number of them pre­sent, are to make a Rate or Assessment, according to Pound Rate upon the Inhabitants of their Parish, to be allowed and confirmed by two Justices of the Peace of the place, &c. to be collected Quaterly; and if upon Demand of the Scavenger or other Officer appointed to collect the same, Payment be refused, Distress may be made by Warrant under the Hands and Seals of two Justices of the Peace, to be levied by Distress and Sale of Goods, or for want of such Distress and Non-payment, the Of­fender to be Imprisoned till payment be made, unless a Peer of the Realm.

The Mony so collected is yearly to be accounted for by the Scavengers, for the time being, to two or more of the Justices of the Peace residing in or near the Places, for which Scavengers are ap­pointed, within 28 Days after the new Scavengers are chosen for the Year ensuing, and to be paid into the Hands of the new Scavengers, if any remain un­disbursed in their Hands; and two such Justices of the Peace upon refusal to make Account, may com­mit the Refuser or Refusers to Prison without Bail or Mainprize, till he or they account and pay the Remainder.

[Page 201]Where in a Parish there are such High ways as cannot be amended without the Help of Assessment, then one or more Assessments from Time to Time may be made upon all the Inhabitants, Occupiers, and Owners of Lands, Houses, Tenements, or any personal Estate there, usually ratable to the Poor, to be allowed, levied, and colleted by such Persons as the said Justices of the Peace at their General Quarter Sessions shall appoint and direct, and the Mony so raised to be ac­counted for, and employed towards repairing such High-ways from Time to Time as the Justices shall appoint or order to be levied, by the Distress and Sale of the Goods of the Persons so assessed, upon Non-payment of the same within 14 Days after Demand.

CHAP. LXXXVII. Several things very useful to be known to Surveyors, Scavengers, as Commission of Sewers, Weights of Hay. Hay or Straw-carts standing in the Streets, Wheels of Carts, their Size; keeping of Swine, and putting out Lights, Lamp-lights, &c.

ALL the Sinks, Sewers and Vaults made since the Twelfth of King Charles the Second, in the City and Liberties of Westminster, &c. are un­der the Care of the Commissioners of Sewers, who have power to cleanse, alter, or so order them as to them shall seem best for Conveniency, or to make new ones, and to take away all Nu­sances, and to take away any cross Gutters or [Page 202] Channels in all or any of the Streets or Lanes within their Division.

Every Truss of old Hay brought or offered to be sold within the Cities of London and Westminster, and other places within the Weekly Bills of Mortality, is according to Statute to weigh 56 Pound at the least, from the last Day of August to the first Day of June, and from the first Day of June, to the last Day of August, being new Hay of the Years growth to weigh Sixty Pounds; but if old Hay of the last Years growth, 36 as aforesaid, and none to suffer their Waggons or Carts to stand in the places aforesaid, [...]oaden with Hay or Straw, to sell the same after two of the Clock in the Afternoon, from Michaelmas to Lady-day, nor after Three from Lady-day to Michaelmas, on Penalty of Five Shillings for e­very Offence or Neglect, one half to the poor, and the other to the Informer, upon Commission of the Offence; but if the Justice of Peace see it on vsew, then upon Conviction one half to the poor, and the other half to the Scavenger, upon Default of Payment for the paving and clean­sing the place, or otherways to the relief of the poor as aforesaid,. This to be levied by War­rant, by Distress and Sale of the Offenders Goods, and Chattels, by the Constable, Headborough, &c. of the Parish where the Offence is commit­ted, and in Default of Distress or Non-payment within Six Days upon Notice or Writing left at the Offenders House by the Constable, or Head­borough, where it is not by the Act of 2 W. and M. otherway provided, unless the Party be a Peer of the Realm, he is to be committed to the common Goal of the City or County respective­ly by Warrant; and to remain without Bail or [Page 103] Mainprize till payment. And by the same Statute the Wheels of every Cart or Dray to be used for any Carriage whatsoever, from any place with­in the said Cities and Places within the same, where the Streets are paved, are to be made to contain in full Breadth 6 Inches in the Felly, and must not be shod or wrought about with I­ron Work, nor drawn with above two Horses after they are up Hill from the Water side, upon Forfeiture of 40 s. for every Offence, to be levi­ed by Warrant on Goods and Chattels, in Di­stress, as other the like Cases, though this extends not to Country Carts or Waggons that shall bring Goods to the Cities or Places aforesaid, or shall carry any Goods half a Mile beyond the paved Places of the Cities, Streets, &c. However by an Act of 3. and 4 W. and M. Chap. 12. this last Clause seems to be altered; for any Inhabitant of any of the Parishes within the weekly Bills of Mortality, who dwells off and from the Pave­ment, and uses his Cart as well off as upon the Pavement, or any Brewer or Scavenger or other Person imployed in carrying away the Dirt and Soil in Lanes, Streets and Alleys, may use shod Wheels for Dray or Cart, and narrower than Six Inches in the Fellies, notwithstanding the former Act or any Law or usage to the contrary. But this seems not to affect Cars, and such as carry Mer­chants or Shop-keepers Goods.

By the Act 2 W. and M. no person or persons are to keep, breed, or feed Swine in any part of the House, Backsides of the paved Streets of the said Cities, Boroughs, or Parishes, where such Streets, are contiguous, on penalty of forfeiting them to the use of the poor of the Parish where such Swine shall be kept.

[Page 104]All Housholders in the Cities and Liberties of Westminster, and Counties of Surry, and Middl [...]sex, comprized within the Bills of Mortality, are by a new Act, where their Houses adjoyn to, and are near the Street, to hang on the outside of their Houses next the Street, every Night from Mi­chaelmas-day to Lady-day, Candles, or Lights in Lanthorns, from time to time as it shall grow Dark, to continue burning till Twelve of the Clock in the Night, on pain of forfeiting 2 s. for every Default, unless such as shall agree to pay and make use of the Convex Lights or Lamps, to be placed at such Distance in convenient places of the Streets, as two or more Justices of the Peace shall approve of.

As for the several Acts for mending particu­lar Ways, Bridges, &c. they are very many, and not concerning a Surveyor, in general. What is written may suffice, not doubting but considering what is set down, which is the most material, it will in a great measure inform him well to dis­charge his Office, to the Content and Satisfaction, not only of the Parishioners, but of the Laws, requiring him in all respects to perform his Duty, as a Trusty and knowing Surveyor or Scavenger.