SECT. 1. About Armour; and Armed Men.

AS to Armour and Armed-men, these things are to be known:

1. That any one Justice of Peace, if he see men go, or ride armed in an unusual way, (with secret Coats of Maile, Daggs, Pistols, or the like) by day, or by night, to the terrour of the people; he may, if he think fit, and ought (if he judge it necessary to be done) to cause them to be disarmed, im­prisoned, and bound to the Peace. But Sheriff's Souldiers. Souldiers, and Officers, in the doing of Justice, may go armed, and are not to be interrupted. Upon Stat. of North­hampton. 2. Ed. 3.

2. Any Justice may (if he see cause) cause to be disarmed any man that is brought before him upon any Suspition of Crime.

[Page 11]3. If any man keep in his house, car­ry in his Journey, or do shoot in any Guns. Gun, Crosse-bow, Stone- [...]ow, or Pistol, contrary to 33 H. 8. 6. And another man shall according to that Act bring him before a Justice of Peace; The Ju­stice of Peace may by that Law, upon examination of the offender himself, and proof of Witnesse, commit the offender to Goal, till he pay the penalty of 10 l. Escheat: And this fine the Justice is to extreat and send into the Exchequer. But if any Caution to Iustices. Justice shall resolve upon the doing of any thing, upon this Branch, our Coun­sel is, that he do it by very good advice; especially in case where the offender doth deny the matter of Fact.

4. For the disarming of Recusants, [...]ee Recusants. Sect. 45. of this Chap­ter.

SECT. 2. About Baile or Bailment.

AS to this, these things are to be known:

1. Any one Justice of Peace may [...]ad or deliver out of prison, any p [...]soner that is a prisoner for any offence within the Connus [...]nce of the Justices of the Peace, and that is baylable by the Law; [Page 12] as, where a man is arrested on a Sessions process for Trespasse, or such like thing. But no one Justice may bayl a man in Felonie. prison on a suspition of Fclony, or grea­ter Crime. 3 Ed. 1. 15.

2. But there must be two or three Justices of the Peace, and one of them of the Quorum, to Bayl such as are in prison upon a suspicion of Felony. And they two must be together when they do it. And before they do it, they must take the Examination of the prisoner in writing. And this Examination, with the Bayl and Recognizances for the appea­rance of the Witnesses, they must cer­tifie to the next Gaol-delivery; or they Certificate. may be fined by the Judges. And so they may be, for bayling a man not caution to Iustices. bailable. 2 Mar. 13. 3 H. 7. 3.

3. No Justices may bayl one in prison for Treason, or for the death of a man, or for any great offence, in case where he doth confesse the offence, and the Mit­timus of the Justice or Justices of Peace by which he is sent to Gaol, doth so ex­presse it.

4. No Justice may bayl a prisoner in any case, where any Law doth expresly forbid the taking of Bayl in that case. 1 & 2 Ph. and M. 13.

5. Where any Statute doth appoint [Page 13] the Bail to be taken by more Justices then one; there no one Justice may bayl the prisoner. 3 H. 7. 3. 2 Mar. 13.

6. Where two Justices may bayl one that hath recanted his blasphemous opi­nions. See Blasph [...]my.

7. How Bayl is to be given, and the Recognizance to be given in such cases, See my Justice of Peace Clerk's Cabi­net. Chap. 24.

SECT. 3. About Bargain and Sale.

ANy one Justice may joyn with the Clerk of the Peace, to take, and inroll a Deed of Bargain and Sale of Land acknowledged before them within six moneths. Upon 27 H. 8. 16.

SECT. 4. About binding to the good Behaviour.

AS to persons of ill Name and Fame, Suspect-Theeves. such as are generally suspected to be Theeves or Robbers, or that keep company with such men. Common Cheaters or Couzeners, that get money Cheaters. by false Tokens, false Dice, counterfeit Letters, or the like. Common-Quar­rellers, Fighters, or Breakers of the Common-Quarrel­lers. Peace. Such as are like to commit Murder, or outrage. Such as are com­mon Libellers and Slanderers. Such as Libellers and Slan­derers. Poysoners. are common hedge-breakers, and wood­stealers. Such as endeavour to poyson men, or do poyson Cattel, or the like. Such as lye in wait to rob, maime, or kill men: Rioters, Common-Drun­kards, Rioters. Drunkards (as some say) yet see for this, 4 Iac. 5. which as to the Drunkard makes it a little doubtfull. Lewd and incontinent persons, that either keep or Inconti­nent per­sons. Eves-droppers. Barretors. Night-walkers. haunt Bawdy-houses. One that hath or is suspected to have a Bastard. Com­mon Evesdroppers, common Night-walkers. Common-Barrettors. Persons that live idly and into dinately, having no Esture nor Calling to live by, and yet spend much. Such as manifest contempt [Page 15] of Magistrates, and such like persons. And any one Justice of Peace may (as it is generally held, and practised) upon his own knowledge, and of his own head, or at the request of others, and upon Information of Witnesses upon Oath, as in his discretion he shall judge it meet, send his Warrant to apprehend them, and bring them before him, or some other Justice of the Peace, to put in Sureties for their good Behaviour, and Surety of the good Behaviour. to appear at the next Sessions. And if the offender be in his presence, require him to put in such Surety as the Justice shall think meet. The which if he will not, or cannot do; the same Justice may by his Mittimus send him to the Com­mon Gaol till he so do. But in all these cases it is most safe for the Justices to go upon generals, and not upon a particular. And it is good for Justices of the Peace to have this work (as much as may be) Caution to the Justi­ces. done upon Articles exhibited, and well proved. And before two Justices of the Peace; and indeed most safe to do it in the publique Sessions. But for this, see the Books at large, and my Books of this Office, Chap 18.

For a Warrant for the good Beha­viour, and Mittimus to send the party refusing to be bound, to the Goal, see Clark's Cabinet for Justices, Chap. 9. Numb. 3. Chap. 25. Numb 3. Chap. 24. Numb. 17.

SECT. 5. About Binding over.

1. IT is said, that in cases where a Justice of Peace hath power given him by an Act of Parliament, to enforce a man to do a thing, and he is in his presence, and doth refuse to do it, That in this case he may send him to the Goal, or bind him over to the Sessions, &c. And that a Justice of Peace may bind over a man that is an offender against a penal Law, and that before he is In­dicted. But it is good to be well advised Caution to Justices. herein, before a man doth it; and to consider what he may do to the party, in case he refuse to be bound.

2. One Justice may bind over to the Challenge. Sessions him that fighteth, or is about to fight a Duell. See Challenge.

3. There must be three or more Ju­stices Depravers of the Sa­crament. of the Peace, and one of them of the Quorum, after examination taken against him that depraveth the Sacra­ment, to bind over the Accuser and Witnesses. Upon 1 Ed. 6. 1. See more of this in other Titles.

SECT. 6. About Blasphemie and Heresie.

AS to him that maintaineth any of the blasphemous opinions first na­med in the Ordinance of May 2. 1648. That there is no God, or he is not present in all places, doth not know all things, is not Almighty, &c. There must be two Justices of the Peace, who upon proof thereof before them by the Oath of two Witnesses, (which the Ju­stices may administer) or the Confession of the party himself, may commit the offender to prison without Bayl, and bind over the Witnesses to appear at the next Gaol-delivery. And so likewise they may take bond, with two Sureties, Subsidie­men, of the offender herein, being con­victed upon his Tryall, and having re­nounced his opinion, that he will never hold it again.

2. And as to the opinions lastly na­med in this Ordinance, (viz.) That all men shall be saved, or that man by na­ture hath Free-will to turn to God, or that God may be worshipped in or by pictures, &c. there must be two Justices of the Peace, and one of them of the Quorum, who upon the like Conviction as in the last, may order him to renounce [Page 18] his opinions in the Congregation whence the complaint came, or where the opi­nion was held; or if he refuse so to do, to send him to Gaol till he give bond never to do so again. But here the Justice must see to it, what it is that he Caution to Justices. is about to punish. For it is provided by a late Act, That such as professe faith in God the Father, and in Jesus Christ his eternal Sonne the true God, and in the holy Spirit God co-equal with the Fa­ther and the Sonne, one God blessed for ever, and do acknowledge the holy Scri­ptures of the Old and New Testament to be the revealed Will and Word of God; and shall in other things differ in doctrine, discipline, or worship of God; they are not (except in case of Popery and Prelacy) to be punished for this, but to be protected therein from wrong or trouble in the exercise of their Religion, while they are peaceable, and do not hold sorth any horrible blasphemy, or teach or practise licenciousnesse or pro­phanoness under the profession of Christ. So 17 Sept. 1656. the Humble Peti­tion. This Clause (it is probable) may reach to many of the things of this Rank; as that about the Directory, and Directory. perhaps that of the Baptizing of In­fants, and some others. It is good for the Justice to be well advised therefore what he doth upon this.

3. And as to him that maintaineth [Page 19] any of the blasphemous opinions named in the Ordinance of Parliament of the 9th of August, 1650. That he is a God, or is Almighty, Infinite, &c. Any one Justice of Peace may upon the proof thereof by the Oath of two Witnesses before him, (which Oath he may give) or upon the confession of it by the party accused, send him to prison, or to the Bridewell. house of Correction for six moneths without Bayl, and untill he put in Sure­ty to be of good Behaviour for a year. Good Be­haviour.

See the cabinet for clarks. Two War­rants prepared for this Case. Chap. 3.

SECT. 7. About challenges and Duells.

AS to any that be fighting, or about to fight a Duell, and be for this brought before a Justice of Peace: this Justice of Peace may for this bind them Surety of the Peace. to the Peace, and to appear at the next Sessions. And he may send for the witnesses, and bind them to appear there Bind over. also. Upon Ord. June 29. 2654. Con­firmed by Act of 17 of Septemb. 1656. See Chap. 3. Sect. 5.

SECT. 8. About Cheaters, or confiners.

AS to him that is a common Chea­ter, by false Letters, Tokens, Dyce, or otherwise, especially if he be idle, and go about and make a Trade of Cozening; these things are to be known:

1. That any one Justice of Peace up­on his own knowledge, or proof thereof before him, by the Oaths of credible witnesss, may (as some say) put him to give Surety for the good Behaviour, and Good Be­haviour. to appear at the next Sessions; or if he refuse, send him to Goal for it.

2. But there must be two Justices (and one of them of the Quorum) to call in, examine, and bind over to the Bind over. Sessions; or if they refuse, send to Goal such as by colour of false Tokens, or Counter­feit To­kens. false Letters in other mens names, shall compasse and get into their hands, the money or goods of other men. Upon 33 H. 8. 1.

3. If a man live at a high Rate, and great expence, having no visible Estate or Calling to answer it, and make it his Trade and Livelihood to cheat, deboist, cozen and deceive the young Gentry and others; Any one Justice of Peace may [Page 21] by Warrant under his hand and seal send for him, and warn him to come before him; and being before him, may require of him sufficient Sureties for his Appearance at the next Quarter-Ses­sions, and for his good Behaviour; and if he refuse, send him to Goal till he do so. Upon the New Act. 17 Sept. 1656. But how the Justice shall take Conu­sance of this offence, except he come be­fore him, by this Law, I know not. Therefore it is best, in this case, for him to proceed upon his general power at the Common Law, and by the Com­mission of the Peace, so to take Infor­mations against him upon Oath. And if he find him to be such a man, to bind him to the good Behaviour, and to ap­pear at Sessions. And this is the same remedy in effect, as that which the Sta­tute doth prescribe.

SECT. 9. Of a Church, Church-Wardens, Isle, &c.

AS to the Repair of Churches, Church-yards, or Chappels, when they are decayed, these things are to be known: Reparati­ons of the Church.

1. Any one or more of the Justices of the Peace near to the place where any [Page 22] Church, or Chappel is in decay, upon any Information thereof, may if he please, view it himself, or appoint the Minister and some of the Parish to cer­tifie to him how it is, and what Repara­tions must be done. And then may he or they, by a Warrant under his or their hands and seales, sent to the Church-Wardens of the place, order and direct what reparations shall be made there, and in, and by what time. And in case it be not be done by that time, may for their neglect bind over the Church-Wardens Bind over. to the next Sessions, where they may be fined 40 s. apiece, and com­mitted to prison till they pay the Fine.

2. But there must be two or more of the Justices near to the place where all or any part of a Chancel, or Isle, or Church, or other place belonging to it, that is to be repaired by the Parson, or other, by Custome or Prescription, is in decay, to order them that are liable to the same Reparations what to do, and to do the same by a certain day. Which not done, they may be indicted, and fined for their neglect, at the Sessions.

3. There must be two or more of the next Justices to the place, yearly to joyn Church-Wardens choyce. with the Parish in their choyce of their Church-Wardens. And these Justices must, within a moneth after their choyce made by the Parish, under their [Page 23] hands and seals, allow and approve of the same Choyce.

4. There must be two such Justices Rates con­firmed. to confirm such Rates duly made by the Church-Wardens and Overseers of the poor, for the Repair of the Church, Church-yard, and for other matters con­cerning the Church. And to give War­rants under their hands and seales to be directed to the present, or subsequent Church-Wardens, to do all or any of these following things, viz. 1. To levy by distress and sale of goods upon every man all the Church-Rates, and the Ar­rears thereof. 2. To levy by distress and sale of goods, all the Forfeitures committed for any offence within the Act. 3. To levy all the money that shall be remaining in the hands of any Church-Warden upon his Accompt. 4. To levy the 2 s. 6 d. Forfeiture, gi­ven to the Church-Wardens that are put to distrain for their Rate on him that will not pay it without a di [...]stess. 5. To send to the Goal the party that doth not pay his Rate. 6. To send to the Goale the Church-warden that doth refuse to account, till he do account and pay over Account. to the succeeding Church-Wardens the money remaining in his hands. 7. And to joyn with the subsequent Church-Wardens in the taking of the Account Caution to the Justices. of the precedent Church-wardens. But it seems not safe here for a Justice of [Page 24] Peace to send his Warrant to levy any Forfeiture upon this Law, or to follow the Presidents we have for this purpose given in our clarks cabinet, because there is no way for the Conviction of the offender set down, and therefore that then it must be in the Sessions, or no where. And there the offender may be punished by way of Indictment or pre­sentment, upon the general power of Oyer and Terminer given by the Act to the Justices of the Peace.

5. There must be two Justices, and Lands gi­ven to the Church. any two Justices may examine by proof of Witnesses the case of Lands or Rents to be had, or paid towards the repair of any Churches within any Parish; And to send their Warrant to the Church-Wardens of the place, to cause the parties who ought to pay the same to be bound over to the next Sessions, where Bind over. the parties are to be ordered. And in this case it seems to me, that the clearest way for the Justice of Peace, is to send his Warrant fi [...]st of all to the Church-Wardens, to warn the party to be bound (if he live within the County) to come before him to be bound over. And if he refuse upon proof by Oath thereof by way of Information, to send for him by his Warrant, and bind him to the Good Be­haviour. good Behaviour, and to appear at Ses­sions. See for all this, Act. 9. February, 1647. And sor Presidents of Warrants [Page 25] in the case. The clarks cabinet. Chap. 8.

6. There must be three Justices of the Peace, who out of Sessions may call Ministers and School-masters before them, that have Houses, Chancels, and Church-yards belonging to them that are in decay, and to order them to re­pair them. And if they do neglect it, to cause to be levied of their goods by way of distress, and sale thereof so much as to do it. Upon Ord. 29 August, 1654.

7. Any two Justices of the Peace may Sexton. order the payment of the due Fees to the Sexton, or Parish-Clerk, that is duly chosen to the place. And where his Fees are denyed, they may order the payment thereof; and in case it be not paid, they may send their Warrant to the Constable, to levy it as they do for the levying of a Church-Rate, what he shall have for his service. Upon the same Act. 9. February, 1647. See a President for this in the cabinet. Ch [...]p. 8. Numb. 9. And that seems to be all that a Justice of Peace may safely do herein, (that is) call the party refusing before him, and examine the matter; and if he find it ve: y clear, order the party to pay him. And if he shew himself obstinate herein, the party grieved he must apply himself to the Justices of the Peace in their Quarter-Sessions, where they may by the general power of Oyer and [Page 26] Te [...]miner given to them by the Act, find a way to bring him to it. Or if the case be so clear, that the party shall consesse before the Justice what is due; there perhaps the Justice might cause a di­stress to be made of his goods, as in case of a distresse for a Church-Rate: But it Caution to the Justices. is good to be well advised: for the Law is very obscure herein. And it is dange­rous for a Justice of Peace so to do, where he hath not a clear authority for it.

SECT. 10. About Cloath and Clothiers.

AS to Cloath and Clothiers, and to the things that relate to their Trade, this is to be known:

1. Any one Justice of Peace may en­ter Tenters, Winches. into any house to search for Tenters, Winches, and such kind of Engines used to make deceitfull Cloath; and finding them, he may deface them: And in case of second offence, he may sell them. And he with another Justice of Peace may joyn together, and distri­bute the money, made thereby to the poor. 39 Eliz. 20. 43 Eliz. 18.

2. There must be two Justices to Speciall Sessions. [Page 27] hear and determine the offences about faulty Cloath. And this (for much of it) must be done in and by a Speciall Sessions kept for the purpose. 39 Eliz 20. 21 Iac. 18.

3. There must be two Justices to sell, divide, and distribute the money made of faulty Broad-Cloth. 39 Eliz. 20. 21 Iac. 18. 4 & 5 Ph. and M. 2. 4 Iac. 2. And so to sell and divide the money made of Kersies, Frizes, or Cottons, 5 and 6 Ed. 6.

4. There must be two Justices to Searches and Over-seers of Cloth. make and appoint Searchers, and Over-seers of Cloth in Towns, not Incorpo­rate, and to bind them by Oath, and Bond, to look to, and punish the de­faults in Cloath-making. Upon 4 [...]d. 4. 1. 39 Eliz 20. 43 Eliz. 10. 2 Ed. 6. 2. 4 Iac. 2. 21 Iac. 28. 5 Ed. 6. 6. 7. Iac. 16. & 3. 1.

5. So there must be two Justices to punish Carders, Weavers, Sorters, Spin­ners, that imbesil or detain any Wooll or Imbesil­ing of Wooll or Yarn. Yarn, and to punish them that receive it; and upon proof made thereof before them, by the oath of one witnesse to or­der them to give satisfaction, or to be whipped. 7 Iac. 7.

6. There must be two Justices, that upon an Officer's Complaint of bad [Page 28] Cloth made, by the mixing of Flocks, Nails, Thrums, Hairs, &c. may call before them the parties accused, and their Witnesses; and if they find it true, punish it, according to 21 Iac. 18.

7. There must be two Justices, and Clothier. one of them of the Quorum, that upon proof of two Witnesses, or confession of the Clothier himself, that doth refuse to pay his Workman the wages set down, Wages. may send their Warrant to levy of him the 10 s. forfeiture, by distress and sale of his goods. 1 Iac. 6.

8. There must be two such Justices also, that may take Information of de­ceitfull Linnen Cloath. Linnen Cloath made, and that may bind the offender over to the Ses­sions, to give Evidence that seized it. 1 Eliz. 12.

9. Any one Justice of Peace upon Dyers. Block­wood. Complaint, That a Dyer doth use Blockwood, or is suspected of it, may call for the Dyer and his Servants be­fore him, and examine them on oath. And if he see cause, bind him and the Witnes­ses over to the next Sessions. And if he refuse to be bound, send him to Goal till he do it. But there must be two Justices when it is found, to give power to burn the stuff. 39 Eliz. 11. See more, Ord. 12. Novemb. 1653, and 17 Septemb. 1656.

SECT. 11. About Constables.

AS to these Officers, these things are to be known in this place:

1. It is said, That any one Ju­stice Election of Him. of Peace, in case of necessity, in a Hundred or Parish, where there is no Constable for the Hundred or Parish for the present, (the Officer being dead, or otherwise gone) and the Sessions is far off, no Leet in the place, or it is far off in the time of keeping of it, much to do for an Officer, and the like; in such Cases, that one Justice alone may make and swear a Constable for the Hundred, or Parish. And we would have this to be Law, if we knew how to make it good, for the necessity thereof in many places where otherwise this Officer will fail, except it may be supplyed by the Country Leet, there being no Leet in the place. But truly we look upon this as a thing somewhat dangerous to be done by a Justice of Peace out of Ses­sions, especially where the Election of the Officer is for a place that hath a Leet, for haply the Election may he void, and the Lord of the Franchise may have his Action of the Case against Caution to Justices, the Justice. So also if an unfit Con­stable [Page 30] be chosen, that he may after this way (as hath been held and used) be removed by the Justices in, or out of Remove of him. Sessions, and another more fit put in his place. So if there be need of more Constables in any Hundred or Parish, that the Justices out of the Sessions may make, and swear them. This we agree to be generally practised, and so seems now to have the Countenance of Cu­stome to warrant it. And yet we much doubt of this. And therefore would advise rather to have what is done here­in, to be done in the Sessions onely. See Steel's Rep. 362. and Chap. 7. Sect. 6.

2. These Officers are the most pro­per Officers under the Justices of the Peace, (as to the matters of the Peace) and to them are their Warrants to be directed, except it be in special Cases, where by Acts of Parliament they are to be directed to some others.

3. If any of these Constables shew Neglect and Con­tempt by them. themselves any way to neglect or con­temn the Authority or Commands of these Justices, or any of them, in the execution of their Warrants or other­wise, such Justice may cause him to be Indicted and sined for it in the Ses­sions.

4. If a Justice be to swear this Offi­cer, he may do it to this effect:

You shall swear, you shall well and truly execute the office of High-Con­stable His Oath. of and within the Hundred of H. [or if it be a Parish] of petit constable for and within the Parish of S.] and liberties thereof, to the best of your pow­er and skill, untill another be chosen in your room, or you be otherwise dischar­ged by order of Law.

The Warrants for this, see in Clark's Cabinet. Chap. 20.

5. How Constables may offend by not doing their duties in the Execution of Warrants sent to them, upon penall Lawes, and otherwise against the Sta­tutes, and what the Justices of Peace may do hereupon, See in other Titles; as Inne-Keepers, Rogues, Lords-day, Trespasses, &c.

6. See more of this in Officers, Numb 4. Oath, Numb. 10. and in Oath, Sect. 37. Numb. 11.

SECT. 12. Of the correction-House or B [...]ide-well.

THis House is appointed for the punishment of Rogues, Vaga­honds, wandring, idle, and disor­derly persons, that by the ex­presse words of 7 Iac. 4. are to be sent thither by the Justices. But they can­not by this send thither who they please, nor such persons for every cause.

How the Blasphemous Heretick is by them to be sent thither, see Blasphemy, Sect. 6. of this Chapter.

And what Rogues and Idle persons may be sent thither by the Justices, of the Peace out of their Sessions, See Rogues, Vagabonds, and Idle persons. Sect. 48. of this Chapter.

And what Lewd persons may be sent thither for Incontinency, see Incontinen­cy, Sect. 27 of this Chapter.

And what Servants or Apprentices may be sent thither, see in Masters and Servants. Sect. 33. of this Chapter.

And what other persons may be sent thither, see in other Titles.

SECT. 13. About crows.

AS to him that refuseth to pay to another that doth take old Crows, Choughs, or Rooks upon his Land, having Land in his occupation worth 5 l. a year, after the Rate of 2. d. a dozen; It is said, Any one Justice of Peace may cause it to be levied by di­stresse upon the Goods and Chattels of the Refusers. But how this may be Caution to Justices. warranted out of Sessions, I understand not, because there is no way of Con­viction of him for his Refusal, set down. Upon 24 H. 8. 10. The words where­of are doubtfull in this point. See Chap. 7. Sect. 6. Quest. 19.

SECT. 14. About the Excise.

AS to the Vintner, Inne-kepper, Victualler, Ale-house-keeper, or one that Retailes Ale or Beer, and that shall brew his own Beer or Ale, before he give security to the Sub-Comms­sioners of Excise, for the due payment [Page 34] of the Excise. That upon due proof thereof made by Oath of two or more Witnesses, or other sufficient Evidence, before any Justice of Peace within any County where the offender doth reside and dwell, the offender shall forfeit for every such offence, 40 s. for the first, and 3 l. for the second time, to be le­vied by distresse and sale of goods, ren­dring, &c. And if he offend after a se­cond Conviction, the Justices are to de­clare him disabled to keep any such Common-house any longer, and to commit him to Goal, till he give secu­rity never so to offend again. And af­ter this, he is to be punished as an un­licensed Ale-house-keeper. And after the Act is penned in these words, All Justices of Peace are required and authorized to put this Clause and Ar­ticle in execution; and the said penalty is to cause to be paid to the laid Com­nissioners of Excise. Act. 14 August, 1649.

We here conceivem that by these ge­neral words thus penned, [they may do execution] that by this, any one Justice may take the Conviction; and haply one may send the Warrant to do the Execution: But it will be more warily Caution to Justices. done by two Justices. And we sup­pose he or they may give the Oath for Conviction, albeit there be no clause to enable it; And that they may make their Warrant to whom they will, that [Page 35] will undertake to do the Execution. But we conceive it most proper to be done by the Constable of the place, and therefore more convenient to make the Warrant to him then to others. See Chap. 7. Sect. 6.

[...] If any Fine be imposed, Impri­sonment, ponality, or Forfeiture inflicted, or seicure of goods be made for, or about the Non-payment of the Excise; by the Sub-Commissioners, or Far­mers thereof, (out of London and the district therens) or by their Agents, Deputies, or Officers, In this case there must be two such Justices as are not interessed or concerned in the thing in Question, or Landlord, or Tenant, or of him or relation to the parties, that must upon complaint made to them, send their Warrant under their hands and Seal, for the execution thereof. And these two Justices, if Complaint be made of either side, may examine the matter upon Oath, and end it. And if they find any errour, and that it is by Mistake onely, they may mitigate the Fine, so it be not lesse then the one half of what is to be paid; and they may also give reasonable Costs to the Officer imployed in the businesse, for his trouble therein. Act. 17. Septemb. 1657.

SECT. 15. About Fasting, and Feast-dayes.

AS to this matter of Fast-dayes, and Feast, Festival, or Holy-dayes, these things are to be known in this place:

1. That for out Religious dayes of Dayes of Humilia­tion and Thanks­giving. Humiliation and Thanksgiving, the ser­ving of piocess, the going with Coaches, Horses, Boats, and Sedans, Tipling and Idling, and the Entertainment of such as Tipple, or are idle in houses, and grinding at a Mill on such a day, is penal, Upon the 10th of April, 165 [...]. But there being no way of Conviction for this upon that Act out of Sessions, there is nothing that the Justice of Peace can do out of Sessions against any man for the same, or for his doing of his or­dinary [...]u [...]inesse now on a [...]day of Humi­liation or Thanksgiving. And as to the Ordinances of August 24. 1642, and of Decemb. 2d. 1646, we take them to be of no use at this day.

2. For the Ancient Festival or Ho­ly-dayes, Holy-da [...]es. called Christmas, Easter, Whitsontide, Midsummer, and the like; we [...]ake these to be all abolished, and [Page 37] done away at this day, by the Ordinance for the Direct [...]ry and by the Direct [...]ry it self; and by the Ordinance of 3d. of June, 1647.

3. That the second Tuesday of every Second Tuesday a Play-day. moneth is to be a play-day, for recrea­tion of Schollers, Appsentices, and Ser­vants, by Ord [...] 3. June, 1647. And that if any difference be between the Mastery Apprentice, or Scholler about this, any one Justice of Peace may end it.

4. That the Law for the Observa­tion Lent. of Lent and Fish-dayes, remains as it was, 5. Eliz. 5. 1 [...]. Eliz. 7. And therefore if any Justice of Peace shall Fish-dayes (as he may, if he will) in the Lent­time search any Victualling-house for Flesh; and if he find any dressed or killed, [...]ill three dayes before Easter, he may, upon his own sight of it, seize it, and give it to the poor, or to the priso­ners. Upon 1 Iac. 29. 3 Car. 4. 5 Eliz. 5. & 35 7. But there is some doubt made upon the Continuance of some of these Statutes.

SECT. 16. About Felons and Felonies.

1. VVHere any Tr [...]a [...], [...] any Felony greaten, or lester is committed, by killing stealing, burn­ing of [...]elling houses, or otherwise, upon the Common-Law, or upon any Statute Law; in all such cases those things are to be done by the Justices of the Peace out of their Sessions. 1. Any one Justice of Peace upon Notice, or Report [...] max [...] forth his Warrant under [...] of [...] Cry, and Search [...] Cry. Search. [...] the [...] Felon; and if they) [...] him, or one they have good cause to suspect that he may be the; man, That they do him apprehend, and bring before [...] Justice of Peace, to be exami­ned theseof. And this he may direct to the Sheriffs, and to all Constables of [...] Town and place within the Coun [...] [...] For which, see the President in the Clarks Cabinet, Chap. 5. Numb. 6.

2. If the Felony be by the taking away of goods, he may send his War­rant to send to search in suspitious pla­ces Warrant to search. for the goods stollen; and if he find the goods to secure them, to the end that the owner may have them; and [Page 39] if the Officer suspect the party in whose hands the goods are, to bring him to a Justice to be examined. But this War­rant must be warily and tenderly made Caution to the Justi­ces. and used. And for this, see in the Clarks Cabinet, Chap. 5. Numb. 1. What Warrant may safely be made in this case, and Chap. 7. Sect. 6. 3. When any man is suspected of Felony by an­other that is willing to inform against the Felon, the Justice may take his In­formation upon oath (if he will so give it). Or he may (if he please) take it (as we conceive) without Oath. And if the party will not give it upon oath, yet the Justice shall do well to take it so. Nor will we advise a Justice to force any thing in this case; but to take such Information as the Informer will give, and bind him over. 4. If a Felony hath been done, and there are some that can discover the Felon, and will not voluntarily come in and inform; the Justice of Peace may send his Warrant to require them to come in to him, and give such Evidence as they can against the person suspect; and if they be ob­stinate, and refuse, he may perhaps bind them to the good Behaviour, and to appear at the Sessions to answer their contempt therein. 5. The Justice of Peace when the Suspect-person is brought before him, is to examine him, which he is not to do upon Oath. But he may examine others against him; and [Page 40] this he may do upon Oath, if they will be so examined. 6. He must put the Examina­tion. Examination, or the Effect thereof in writing, and let the person examined (if he will) put his hand to it. 7. If the Justice see any cause of suspition in the Case, he is to send the person Suspect, by a Mittimus to the Goal, and bind Mittimus. over the Informer, if there be any in the Case, or if not, some other person in­terested Bind over. in it, or one that doth appear to prosecute it, or one of the Witnesses to prosecute the suspected person at the next General Goal-delivery or Sessions (as the case is). And also bind over such of the Witnesses as can give the best evidence, to be then there to give Evidence. 8. All these Examinations and Informations, or the Copies there­of, together with the Recognizances for the appearance of the Prosecutors and the Witnesses he is to certifie, and send Certificate. in to the next Goal-delivery or Quar­ter-Sessions, where the oftender is to be tryed. 9. One Justice alone may not safely in any case baile such a person Baile. accused of Felony. But if he see cause, or desire to Bail him, because the of­fence is small, as perhaps but a Petit Larceny; or if it be greater, and the evidence against him is very little, or none at all; he must call to his assi­stance, another Justice of Peace: For there must be two Justices of the Peace, and one of them of the Quorum, and [Page 41] they must be together to do this work. See Baile, and 1 & 2 Ph. and M. 13. 10 Any one Justice may send his War­rant to arrest any one that stands in­dicted of a Felonie. See the Presidents in the Cabinet for all these things, Chap. 5. throughout. Chap. 25. 1, &c.

2. Any two Justices, before whom Reward for the taking of Felons. any one shall be convict of a Robbery, or Bu [...]glary, may give order to the Sheriff to pay to the party that did ap­prehend and prosecute him, 10 l. for his reward therein. Act. 17th of Sep­temb. 1656.

3. How Felonies done beyond Sea, may be prosecuted here by the Prosecu­tor thereof, and what the Justice of Peace is to do in it, see Act. 20th of September, 1649.

4. How and at whose charge Felons shall he carried to Goal, see Sect. 20th of this Chapter.

SECT. 17. About Fish, and Fishers.

AS to this we are to know, 1. That no Fisherman is to be forced to be a Marriner, under the Lord Pro­ [...]ector's Commission, unlesse he be cho­sen by the two next Justices to the place where he dwells. 5 Eliz. 5.

2. Justices of the Peace are to be Conservators of the Rivers, and shall have power to [...]arch We [...]res, lest by their straitnesse the Fly of Fish be de­stroyed. Upon we [...]. 2. [...]. and 13 [...]. [...] [...]9. And they may appoint under-Offi­cers to look to the Rivers, and to in­form against offenders therein. West. 2. 47. & 13 R. 2. 19.

SECT. 18. About a Forcible Entry.

AS to such as make Forcible Entries into Lands, in this case any one Justice of Peace, upon Complaint hereof made to him, and that the Force doth continue, may go to the place to [Page 43] view it: And if he find it upon his own view to be so, he may remove it, Re­cord the Force, and (as some would have it) Fine the offenders according to his discretion, bind them to the good Behaviour, send them to Goal till they have paid or secured the Fine; And then make a Record of all this, and certifie it into the Upper-Bench, or Quarter-Sessions, which he will. And when the Fine is paid or secured, he may deliver the offender. But if the Force be done and past, Then hath he nothing to do, but to summon a Jury to enquire of it; which he must do by his Warrant to the Sheriff, and do it within a moneth of the Complaint, or it will be very panal to him. And by this Jury, upon a Traverse, he must enquire; And if the Jury find any Forcible Entry, or detainer in the Case; then is the Justice to send his Warrant to the Sheriff to restore the party put out of, into possession again; and may Fine, &c. 15 R. 2. 2. 8 H. 6. 9. 31 Eliz. 11. 21 Iac. 15. See for this, the Books at large; and in my Iu­stice of Peace Book, Chap. 15. and in the Clarks Cabinet. See all the Presidents of Warrants for it in Chap. 7. of that Book. And because there is some difficulty in Caution to Justices. this work, it will be the Justices wise­dome to call in for the help of some, or (at least) of one of his Fellow-Justices of Peace herein.

SECT. 19. About Free-Quarter.

AS to Souldiers that take Free-Quarter in mens houses against the owners consent; In this case any two Justices of the Peace may exa­mine the offence upon Oath. And when they have done this, they are to send this Examination under their hands and seals up to the Committee of Examina­tion. Certificate. the Army. And so satisfaction will be made to him that is wronged, Upon Act. 19. December, 1651. 24 April, 1648. and 24 December, 1647.

SECT. 20. About Goals or Prisons, and Prisoners.

AS to this, take these things, 1. Ju­stices of the Peace regularly, are to send such prisoners as they do com­mit to prison, to none other but the Common-Goal of the County. Upon 5. H. 4. 10. And yet where any Sta­tute directs them to send to another pri­son, as to the Bride-well, Stocks, or the [Page 45] like, there they must pursue the same direction.

2. The Goaler is to receive such a prisoner so sent to him by a Justice of Peace, and that without Fee. And if [...]he Goaler do not so, he may be punish­ed by the Justices of the Peace, by Fine, for his Contempt, &c. But not upon the Statute of 4 Ed. 3. 10. For the Justices of the Peace have not the power of Execution of that Statute.

3. An offender to be conveyed to Charges of Convey of a Prisoner to Goal. Goal, is to bear all the charge of him­self, and of those that guard him thi­ther, if he be able. And in case he re­fuse so to do, Any one Justice of Peace may send his Warrant to the Constable of any Township in the County, where he hath goods, and take them, and prize them by four of the Neighbours, and sell so much thereof as the Justice shall think fit to satisfie the charge. And if the offender have no goods, a Rate for Rate. the raising of the money, may be made by the Constables and Church-wardens, and two or three others; or for lack of such Officers, by four of the more suf­ficient men of the place where he was taken. And any one Justice of Peace may by putting his hand to it, confirm it. And after give his Warrant under his hand, to levy it by distresse of the goods of them that refuse; and after ap­prisal [Page 46] by four of the Inhabitants by sale thereof, to give back the over-plus; And so to pay over the money to them that did bear the charge of his Convey to prison. Upon 3. Iac. 10. See the Presi­dent for this in the Clark's Cabinet, Chap. 17.

SECT. 21. About Habeas-Corpus, Certiorario Supersedeas, Writ of Errour.

AS to these four things, which are Writs that serve to prevent, stop, or undo the power of the Justices of the Peace, these things are to be known,

1. The Habeas-Corpus is to remove Remove of Records and Priso­ners. the prisoner, and his cause from the Justices, into a higher Court, upon sup­posall that they are doing, or have done illegally. The Certiorani, to remove the Cause and Record from before the Ju­stices, before a higher power, upon this pretence. The Supersedeas, is from a Higher Court, to forbid any further or other proceeding before the Justices, The Writ of Errour, to undo what hath been; done before the Justices, where, upon on Indictment or Information, a Judgment is given against Law.

[Page 47]2. Every Habeas-Corpus, and Cer­tiorari to remove a Record, or Prisoner, ought to be signed by one of the Judges of the Court whence it comes. Upon 1 and 2 Ph. and M. 13. And yet if this be omitted, the Justice of Peace must notwithstanding obey it.

3. Writs of Supersedeas out of the Higher Courts are to be void, that are not granted upon Motion in the open Court, and upon good cause also shewed by Oath, and the same set down on the back of the Writ. And if this be not done, it seems the Justices of the Peace may refuse to obey it. Upon 21 Iuc. 8.

4. No Remove shall be of an Indict­ment grounded upon the Ordinance of June, 1654, about Challenges. Nor Challenges upon the Act of the 6th of October, 1650. where the proceeding is upon any penall Law, for the buying, selling, searching, viewing, ordering, or dispo­sing of any Corn, Wint, Beer, Ale, Fish, Flesh, Sale-Butter, Cheese, or any other dead Victuals whatsoever. Nor upon any Indictment grounded upon the last Act made the 17th of September, 1656, about the Sabbath. Nor to remove any Presentment, or Conviction for a Po­pish Recusancy. Nor shall any Writ Recusants. of Errour be granted to reverse any such Conviction. Upon the Act of 17th of September, 1656.

[Page 48]5. The Justices of the Peace may re­fuse to send away an Indictment upon any such W [...]it, if it be for a Ri [...]t, For­cible Entry, Assault and Battery, except the Writ he delivered in [...] the Justices of Peace in their Quarter-Sessions, sit­ting the Court; and except the party indicted, will be bound with good Sure­ties to pay the Prosecutor his Costs. But in case of Indictments for a Foreible Detainer, and for any other offence then that before named, it is otherwise. Upon 21 Iac. 8.

6. The Justices of the Peace when any such Writ is duly [...]ssued [...]orth and sent to them, must obey it: for it is penal to them if they do not so. And if the Writ for bid the Justice to do, that which he hath sent out his Warrant to command to be done, he must recall and countermand his Warrant.

7. If the Writ do not require the sending away of the Recognizance that the Justice hath taken, he [...] to send the Writ and Recognizance to the next Ses­sions, to be siled there.

8. The Judges of the Higher Courts that do send for any such Record, or pri­soner, may, if they please, send it down again, to be determined by the Justices of the Peace. Upon 6 H. 8. 6. See Steel's Rep. 475. 322. 399.

SECT. 22. About High-wayes and Bridges.

AS to High-wayes and Bridges, these things are to be known:

1. Any one Justice of Peace may up­on his own View, make a Presentment to the Sessions (in the nature of an in­dictment) against any place or Parish, for that their wayes are not sufficiently amended. And also against any man, for any offence by him done, against the Statutes of 2 & 3 Ph. and M. 8. and 5. Eliz. 13. (That is to say) The Con­stables and Church-wardens of the place for not choosing the Surveyors, or not setting down the time for the six dayes work, or for not giving publike notice thereof in the Church. Or the Sur­veyors for refusing the Office, or for their neglect in their office, and in par­ticular, for not making Presentment to a Justice of Peace, of such defaults as they find upon these Statutes. Or the Parishioners that do not observe and attend to do the dayes-works appointed them. Or such as suffer any Nusances in their Grounds, hedges or ditches near to the High-wayes. Or the Baylifts or High. Constables for their neglect in [Page 50] the levy of the Amercements sent to them by the Clerk of the Peace against oftenders about the High-wayes, or for the not making of their Account, and the like. And this presentment of the Justice, if he have cause to have it drawn up, he may put the Clerk of the Peace to do it: And being put in, it is of the same sorce as if it were found by Grand-Jury.

2. Any one Justice may and must receive from the Surveyors of the High-wayes, any Presentment that they shall make and tender to him, of any default upon these two before named Statutes about the High-wayes. And this Pre­sentment he is to certifie and send in to Certificate. the next Sessions, under pain of 5 l. upon 5 Eliz. 13.

3. There must be two Justices (one of them of the Quorum) to enforce and take the Account of any Officer, that hath in his hands any of the Forfeitures upon the Statute of 2 & 3 Ph. & M. 8. about High-wayes. And to imprison them who do account and are sound to have money in their hands, till they pay it. But if in this case the Officer be Caution to the Justices. obstinate, they cannot tell what to do to order him. But it must be in the Ses­sions, or no where, See Steel's Rep. 399. Chap. 7. Sect. 6.

[Page 51]4. Any one Justice might have cau­sed High-wayes to be enlarged and clee­red of Trees and Bushes, upon the Sta­tute of Winchester, 1 Ed. 3. But now they do nothing out of Sessions, but ac­cording to the two afore-named Sta­tutes.

5. There must be four Justices of the Peace, (one of them of the Quorum, Bridges. And where so many Justices are not met together, it cannot be done) who with the Constables, and two of the In­habitants of every Parish, (and without their consent also it cannot be done) to tax the Inhabitants of any place or pla­ces, for the repairing of a Bridge, or High-way within 300 foot of the Bridg, when it is unknown who ought to re­pair it. And they may appoint two Collectors to gather the money, and two Surveyors to look to the work, and to give an Account thereof, and of the Account. money. And they may call these Offi­cers their Executors or Administrators, to an Account. Upon 5 Eliz. 13. and 18 Eliz. 9.

6. For the Repair of Chepslow Bridge, see 3. Iac. 23.

7. For the Repair of the High-way [...]s in the Wild of Kent, see 14. 15. H. 8. 6. Of Huntington. Lane near to Chester, see 37 H. 8. 3. In Sussex, see 39 Eliz 19. [Page 52] 26 H. 8. 7. 15 H. 8. 6. Of the Cauce­way between Dorchester and Sherborn, see 1 Mar. Parl. 2. Chap. 5. Of the King's Ferry in Kent, see 18 Eliz. 10.

SECT. 23. About Horses

AS to this; there is this onely as belonging to the Office of the Ju­stice of Peace, out of Sessions, to be known; That if any horse be stolne and sold in an open Market, the true owner thereof, or his Executors, may within six moneths after the stealing thereof, make his claym for him before any one Justice of Peace near to the place where the horse is found. And this Claym the Justice of Peace to whom it is made, must take and hear. And if within fourty dayes after the claym, he can make proof his property by two Witnesses upon oath before the Justice, and will pay down to the buyer so much as he before the Justice will depose that he bond side gave for the horse, he shall have his horse again. This Claym of the pro­perty by the true owner, and Oath of buyer for the price, the Justice of Peace when called upon herein, he must take. Upon 31 Eliz. 12. 2 & 3 P [...]. and M. 3.

SECT. 24. About Hue-and Cry.

AS to this, any Justice of Peace may may do these things:

1. He may b [...]nd, or at the Sessions Good Be­haviour. cause to be bound to the good Beha­viour, such as shall raise false Hue-and Cry without any cause.

2. If any Felony be done, any Ju­stice of Peace may command Hue-and-Cry to be made after the Felon; and if he perceive Neglect in any Officer of his duty herein, he may bind him, or cause him to be bound at the Sessions, to the good Behaviour. And so upon any Hue-and-Cry raised by others, if the Justice have Information upon Oath of any Neglect in the following of it by any Officer, this is cause enough for a Justice to have the Officer bound to his good Behaviour, and to appear at the next Sessions to answer his Neglect. See 27 Eliz. 13.

SECT. 25. Of Hunters, Hawkers, Fowlers, and Hunting, Hawking, Fowling.

AS to these things, the Justice of Peace his power out of Sessions is thus;

1. If any man Hunt or Hawk with Hawking in Corn. Spanniels in the Corn of another mans, before it be shocked, without his con­sent; In this case any one Justice of Peace may examine the matter, if it hath not been before heard and deter­mined in the Sessions; and if he [...] cause, bind over the party offending Bind over. with good Sureties, to appear at the next Sessions, to answer the offence, and to pay the penalty, or receive the punish­ment appointed by the Act of 23 Eliz. 10.

2. If any man Hawk at, or kill, any Pheasant, or Partridge, with any Hawk, or Dogg, between the first day of July, and the last day of August; In this case any two Justices of the Peace of the County wherein the offender dwells, or is apprehended, may within six moneths of the offence done, upon proof thereof by the Oath of two witnesses before him, [Page 55] be committed to the Common-Goal of the place where he is so Convicted for a moneth without bayl, unlesse he forth­with pay to the Church-Wardens or Overseers of the place 40 s. for every time he so hawketh, and 20 s. for every Pheasant and Partridg so killed; But he may not punish it after the six moneths. 7 Iac. 11.

3. As to him that humeth Deer, or Conies in any Parks, Forrests or War­rens, in the night disguised; In this case any one Justice of Peace upon complaint to him made thereof, may send his Warrant to the Sherift, or any Bayliff or other Officer within the County, to arrest and bring the offender before him to be examined, and may examine him. If he deny it, it is Felony, and then the Justice is to prosecute it as a Felony. But if he consesse it, he is onely to bind him over to appear at the Sessions, where he is to be sined for it. 3 H. 7. 7. And if any man purposely destroy or take Partridges or Pheasants in the night; Any one Justice of Peace upon the bare Examination of the party offending, may, if he see cause to suspect him, bind him with good Sureties in a Recognizance, to appear at the next Sessions, to answer the offence, and to pay the penalty of the Statute. Upon 23 Eliz. 20. But there being no way [Page 56] given to the Justice to convict the of­tender, he cannot levy the penality.

4. If any one not qualified, by hav­ing 10 l. a year of his own Inheri­tance, or 30 l. of his own Free-hold, or 200 l. in goods, or is eldest son to a Knight, or to a greater man, &c. shall keep any Gray-hound, Dogg, or Nett, to take Partridges, or Pheasants, Any two Justices in this case, upon suspition hereof, may send their Warrant to search in places they suspect, for them, and give the Searchers power if they find any, to kill the doggs, and tear the Netts. And may also upon the confes­sion of the party, or proof of the thing by two Witnesses, send him to Goal for three moneths, unlesse he will forthwith pay to the Church-Wardens of the place where, &c. the forfeiture of 40 s. Upon 1 Iac. 27. And if any such un­qualified person kill or destroy any Pheasants or Partridges by night or day. by Nets or otherwise, any two Justices upon his confession thereof, or oath of one witnesse, may send him to the Goal for a moneth, unlesse he forthwith pay to the Church-Wardens or Overseers of the Poor, where, &c. 20 s. for every Pheasant and Partridge. upon 7. Iac. 11.

5. If any kill, hunt, or take away any red, or fallow Deer in any Porrest, [Page 57] Chase, Park, or other inclosed ground, without consent of the owner, or shall be ayding or assisting therein; any, one or more Justices of the Peace, upon the confession of the party, or oath of one witnesse, (which the Justice may give) shall forfeit 15 l. half to the Informer, and half to the Poor of the place; which the Justice may by Warrant under his hand levy by way of distresse, and sale of goods. And for want of distresse, the offender to be committed for 12 moneths without Bayl. The offender must be punished within three moneths of the offence done. And he that is punished on this Law, may not be punished upon any other Law. Act. 24. July, 1651.

6. If any man buy or sell any wilde Partridge, Pheasant, Deer, or Hare, Any two Justices of the place where, &c. or where, &c. upon the Confession of the party, or Oath of two Witnesses, may Commit him to Goal for three moneths without bayl, unless he forthwith pay to the the Church-Wardens of the place where, &c. 40 s. for every Deer, 10 s. a Hare or Paritridge, and 20 s. a Pheasant; or untill he enter into a Recognizance of 20 l. with two Sureties, never to do so again.

7. If any shoot at, with Gun or Bow, or doth kill by Nets, or other engines, Guns. a Hare, Paritridge, Pheasant, Pigeon, [Page 58] Hearn, Mallard, Duck, Teal, or any such Fo [...]l; or taken the Eggs of a Eggs of Pheasants, Paritridges, [...]c. Pheasant, Partridge, or Swan, or doth trace a Hare in the Snow; Any two Justices of the Peace where, &c. or where, &c. may commit him to Goal, (as in the last case) till he pay 20 s. for every Pheasant, Partridge, Pigeon, or other Fowl; 20 s. for every egge so taken; and 20 s. for every Hare so tra­ced. Upon 1 Iac. 27. 3 Iac. 13.

SECT. 26. About Imprisonment, Arrest, and Commitment

AS to this, these things are to be known;

1. That the Justice of Peace must Caveat to Justices. take very great care, that he do not give Warrant to arrest or imprison, or to send to the Goal or Bride-well, any man in any cause, but where he hath a clear authority so to do, either by the Common-Law, as in the Cases of Fe­lony, the Peace, and Good Behaviour, or the like; o [...] by the expresse words of some Statute-Law, and therein also with good advice. He must be sure there is a power of Commitment to pri­son in the Case well given to him.

[Page 59]2. He must be sure also, that this power to commit to Prison, &c. is gi­ven to the Justices: For if there be a power of Commitment, as there is by some Statutes. that do say an offender shall be committed, but it doth not say by whom; we conceive it dangerous in this case, for any Justice or Justices, but in a Sessions-way, and by an Act of the Court, to give Warrant to commit him.

3. He must be sure (if it be one Ju­stice that doth it) that the power is gi­ven to one Justice alone to do it. For if power be given to two or more Justices to commit a man to prison, and one Justice alone doth it; this is an unlaw­full Imprisonment: or which an Action may lye against the Justice.

4. He must take care in his Com­mitment, that he do pursue the order and direction that the Law gives there­in: (Viz) Where he is to commit to prison, he may not commit to the the Stocks, or to Bride-well. And so on the other side; for if he so do, the Com­mitment to that place is unlawful. And so for the time, where the Law gives him power to commit for three dayes, and he commit of three weeks, this is an unlaw [...]ll Imprisonment; ye [...] per­hap unla [...]full for the three dayes also. [Page 60] But where a Statute gives power to a Justice or Justices to commit indefinite­ly, and doth not say for what time, Sessions. there they may commit accordingly. And in such cases, the Justices use at the Sessions to discharge such prisoner according to their discretion.

5. Any Justice of Peace may com­mit a man that stands indicted for a Felony, or a man he doth suspect of Felony. But for this, see Felony. Sect. 16. of this Chapter.

6. For Commitments to Prison by the Justice for particular offences, see in the Title it self.

SECT. 27. About Incontinency.

AS to this, these things are to be known of the Justices power out of the Sessions;

1. As to such as keep, or haunt Baw­dy-houses, Good Be­haviour. or are suspected to be lewd and Incontinent; that in this case a Justice of Peace may upon good Infor­mation hereof, upon the oaths. of cre­dible Bawdry. persons by his Warrant send for such persons, and bind them to the good [Page 61] Behaviour; or if they refuse to give Sureties, he may send them to Go [...]l till they do.

2. Any one Justice of Peace may al­so bind to the good Behaviour the Pu­tative Putative Father of a Bastard-Child. father of such a Bastard-Child as is like to be chargeable to any Parish. And this before or after the Birth of the Child. But this is best to be done upon Information upon Oath of some other besides the woman with child, that the man is suspect for Incontinency: for there is no Statute to enable the Ju­stice so to do; nor may he (as we con­cerve) do it, and justifie it upon any other account. See Chap. 7. Sect. 6. Numb. 39.

3. It is also conceived as clear, That any one Justice of Peace may before or Good Be­haviour. after the Birth of a Bastard-child, bind to the good Behaviour any one that shall have any hand in the shifting away of the putative Father or Mother of a Ba­stard-child, whereby it may be left to the cha [...]ge of a Parish. But the bind­ing in both these cases, must be d [...]scre­tional Acts in the Justices by the Com­mon-Law, and not grounded upon the Statutes.

4. There must be two Justices of the Bastard-Child. Peace, (and one of them of the Quo­ [...]um) to take course, and make orders [Page 62] for the relief of the Bastard, ease and safety of the Parish, corporal punish­ment of the Mother and reputed fa­ther, and to commit them to prison, [...]ill they obey the same Order, or ap­peal to the Sessions. Or if they do ap­peal to the Sessions, (as they may) then there must be two such Justices to bind them to appear there, and to stand to the Order of the Sessions, (if it make any) otherwise to the Order that the two Justices of Peace hath made. For one Justice alone may not do either of these things. But that the Justices be not mistaken in the making of this Or­der, and the exercise of their power up­on this Statute, they are to know these things: 1. This Order must be made by two Justices, and one of them must be of the Quorum; and it cannot be done by one, or by two, and neither of them of the Quorum. Also some make question, if it may be done by more then two Justices. See Steel's Report. 114. 2. It is necessary they be the nearest or next Justices to the place where the Parish to be relieved is, but it may be made by any two such Justi­ces of the County. See Steel's Rep. 154. 245. 246. 3. This Order must be made at a private meeting. And therefore such an Order made at the Quarte-Sessions, is not good, but ille­gally made; a [...]d all the p [...]oceeding thereupon will be also illegall. Stile's [Page 63] Rep. 475. 4. It must be made about a Bastard-Child. And therefore an Order made against a man in these words, [That he shall keep his reputed child,] not expressing, [Whether it be a bastard-child, or not] is held to be naught. Stiles Rep. 154. 5. It must be made against the person that is suspect to have the bastard-child, and not an­other person. And for this, An Order made by the two Justices of Peace, that another man should contribute to the half charge of the keeping of the child, because he had suffered a Soul­dier to get it upon his Maid, was held to be void. Steeles Rep. 267. 6. The Order must be pursuing the Act of Parliament to this effect, to save the Parish harmlesse, or to secure it from the charge of the child. Or to keep the child. And therefore it hath been ruled, That an Order to pay money weekly, towards the keeping of the ba­stard-child, is not good, Steel's Rep. 14. 386. 7. This Security must be given to the Parish where the bastard-child is born, and it must a Parish within the County, where the two Justices of Peace have power Steel's Rep. 14. 368. 8. The Order must expresse how long, and a certain time; that the reputed Father is to keep the child, or to secure the Parish. Steel's Rep 154. And the Order is plainly to expresse all these things; Or else it will no: be [Page 64] good: but being removed into the Up­per-Bench, will be quasht for insuffi­ciency. 9. This Order being made, we do not conceive what the Justices of Peace can do more upon this Act, out of their Quarter-Sessions; but what is exprest in the Act of 18. Eliz. 3. 10. It is made a question, Whether the Justi­ces upon this Law, may examine upon oath? And as to this, we do conceive, that they may (if they please) examine without Oath, and thereupon ground their Order; and this will be good enough: Or perhaps they may examine upon Oath; for the matter about which it is, being Incontinency, it is within their Connusance; and that about which they take Informations upon Oath, and for which they bind to the good Behaviour. See Chap. 7. Sect. 6. For the power of sending the woman to the house of Correction, is Bridewell. onely in the Sessions, and was appointed by 7 Iac. 4. And therefore could not be intended by that of 18 Eliz. 3. And we take it, that no punishment can be intended therein, but the binding of them both to the good Behaviour, and to appear at the Sessions: which for Good Be­haviour. Incontinency they might do by the Common-Law.

5. But now by 7 Iac. 4. it is said, That for a lewd woman that hath had a Bastard-Child that may be charge­able [Page 65] to the Paris [...] That two Justices of Peace may out of Sessions send her to the House of Correction. But there Caution to Justices. being no way of Conviction before the Justice, or how they may be assu­red of the matter of fact, we think it not safe for any Justices of the Peace to do this out of the Sessions, see Chap. 7. Sect. 6.

6. We know nothing that the Justi­ces of the Peace can do out of Sessi­ons upon the Act of 10th of May, 1650. against Incest, &c. save onely in the case of Fornication, any one of the Fornica­tion. Justices of the Peace before whom the Conviction shall be had, may take the Recognisance of the offender for the good Behaviour for a year; the which he must give, before he can be delivered after his three moneths Im­prisonment.

SECT. 28. About Innes, Ale-houses, Taverns, Victualling-houses; And Inne-keepers, Ale-house-keepers, &c.

AS to all these things, this first of Inne-kee­per. all is to be known;

1. That any one that will may erect and keep up an Inne, for the Entertain­ment Lycense. of strangers onely, without any Li­cense of the Justices of the Peace. But if an Inne-keeper will sell Ale, Beer, or Cyder by retail, in his house, or will entertain others besides strangers­in any case there to be drinking or eating for money; in this case he must have a License from the Justices. Re­solution of the Iudges, 22 Iac. Hut­ton's Report. 99.

2. The Justices of the Peace cannot in, or out of their Sessions, put down an Inne, or discharge an Inne-keeper from selling of Ale, Beer, &c. although the man be unfit, the place inconve­nient, or he keep disorder. But he and his house must be suppressed by Indict­ment. Common Nusance. way of Indictment against it, as a Com­mon Nusance at the Assizes or Sessions. And if an Indictment be against a man [Page 67] for keeping of all order onely, the Judg­ment must he to disable him onely as to that Inne. But another man may keep and continue it an Inne still. Hut­ton's Rep. 100.

3. The Justices may at their plea­sure stint the number of their Ale-houses. But they may not stint the num­ber of Innes. Nor is there any way to suppresse or restrain the Innes so likely, as to hold them to the strict ob­servance of the Lawes for the Assize, and against Tipling, made 1 Iac. 9. 4 Iac. 4. 1 Car. 4.

4. A disability of an Inne-keeper cannot be for three years, upon the Disability. Statutes of 21 Iac. 1.

5. Vintners that keep Innes and Vi­ctualling-houses, are to be bound by the Statutes of 1 Car. 4. 1 Iac. 9. and 4. Iac. 1. as to Tipling, and the other offences named in those Statutes. But the other Statutes made against Ale-house-keepers, do not bind Vintners or Inne-keepers, unlesse they be named in the Statute. And therefore they are Victuallers not taken to be included within 5 and 6 Ed. 6. 25.

6. The Quarter-Sessions, or any two Justices, one of them of the Quorum, (out of Sessions) may put down Ale-houses at their pleasure. Upon 5. and 6 Ed. 6. 25.

7. Victuallers and Ale-house-keepers, and such like Tradesmen, may buy and [Page 68] sell again in their houses by way of Re­tail, and not be under the penalty of the Lawes made against Forestalling, Forestall­ing, &c. &c. 5 Ed. 6. 14. 13 Eliz. 25.

2. As to him that doth use to sell Selling without Lycense. Ale, Beer, Cyder, or Perry, by Retail, without License, except in Fairs at Fair-time; In this case any one Justice of Peace may upon his own view, the offenders confession thereof, or upon the proof thereof by the oath of two Wit­nesses; for the first offence, send his Warrant to the Constables and Church-Wardens of the place where the offence is done, to levy of the offender's goods 20 s. to the use of the Poor of the place where the offence is done by di­stresse, and after three dayes past, by sale thereof rendring the over-plus. And for lack of distress and payment there­of in six dayes, he may send his War­rant to the Constable; to command him to see the offender to be openly whip­ped. And for the second offence, the Justice of Peace may by his Warrant send him to Bridewell for a moneth. And for the third offence, he may send him to the Bridewell till the Sessions discharge him. And if the Officer Officer. neglect his duty in this; The Statute doth give the Justice of Peace power to send him to the Goal till he pay the 40 s. Forfeiture to the poor, or to cause him to be whipped. 3 Car. 3. But the [Page 69] Statute doth not say how the Officer is to be convicted of this offence; and Caveat to Justices. therefore it is not safe for the Justice of Peace out of the Sessions, to act against the Officer upon this branch of the Statute. But to have him punished in the Sessions upon the Common-Law. See the Warrant for this in the Cabinet, Chap. 12. Sect. 10. and Ch. 7. Sect. 6. But upon 5 and 6 Ed. 6. 25. There must be two Justices to send to prison him that so selleth Ale, Beer, &c. (but in a Town in the Fair-time) against the Justices of Peace order, or without Licenses of the Justices first had either in their Sessions, or (at least) of two of them, and one of them of the Quorum, out of Sessions, there to remain in pri­son for three dayes without bayl; and after, till he enter into Recognisance with two Sureties, never so to do again. And to certifie the offences and Recog­nisance to the Sessions, to make the of­fender liable to the Fine of 20 s. But Caveat to the Justi­ces. we conceive this sending to prison, not warrantable out of Sessions, upon this Statute, and that it is not safe for two Justices out of the Sessions, to send out such a Warrant. For there is no way to convict the offender. Of his offence set down by the Act. See Chap. 7. Sect. 6.

3. As to the Inne-keeper, Ale-house-keeper, Tipling suffered by the Inne-keeper. Taverner, or Victualler, that [Page 70] doth suffer any one of the same, or of another Parish to sit Tipling in his house. In this case any one Justice of Peace may upon his own fight hereof, or the confession of the offender, or the proof thereof by the oath of one wit­nesse, (which he may administer) con­vict him of it. And after this Con­viction, he is to give notice of it to the Constables or Church-wardens of the place where the offence is done, and call upon them to do their office there­in, which is to levy of the offender's goods 10 s. forfeiture for the offence, to the use of the poor of the place where, &c. by way of distresse of goods, and after six dayes by sale thereof rendring, &c. And if it be not paid, or there be no distresse to be had, the Constables or Church-Wardens that had the notice, they are to certifie the same to any one of the Justices of the Peace, And thereupon the same Justice of Peace may send his Warrant to commit the offender to Goal, till he pay the same forfeiture. And also to give him no­tice, That he is disabled for three years to keep any Ale-house again. And if these Officers do not levy the money, Officers. nor certifie the lack of distresse, or non-payment, within 20 dayes to the Justice of Peace; The Statute saith, That the Justice of Peace by Warrant under his hand and seal shall levy 40 s. pe­nalty [...]pon them by way of dist [...]ess [...] [Page 71] of goods. And this distresse to be de­tained six dayes, then prized and sold, rendring, &c. And for lack of such distresse, the same Officers to be sent by the same Justice to the Goal, till they pay their forfeiture. But doth not say how the Constable or Church-Wardens shall be convicted of this of­fence. And therefore the Justice may Caveat to Justices. not send such a Warrant to levy it; but this punishment may be inflicted by the Justices of the Peace in their Quarter-Sessions against the Officers for their neglect, by the general power of Oyer and Terminer given to them by the Act. Also the Justices in this case must take heed of sending their War­rant against the Inne-keeper &c. for the 10 s. For the Constable and Church-Wardens are by their Office to do it without Warrant. 1 Iac. 9. 21 Iac. 7. 1 Car. 4. 3 Car. 3. See Chap. 7. Sect. 6. Quest. 19.

4. As to the Inne-keeper, Ale-house-keeper, Assife. Vintner, &c. that shall sell lesse then one quart of the best, and two quarts of the small Ale or Beer for a penny; In this case any one Justice of the Peace may upon his own sight of it, the confession of it by the party, or proof thereof by the oath of one Wit­nesse, (which he may administer) con­vict him of it, and after his conviction, proceed against him, as he is to do in [Page 72] the last case before against the Ale-house-keeper, for suffering tipling in his house. And so also against the Officers throughout. 1 Iac. 9. 21 Iac. Caveat to Justices. 7. 1 Car. 4. with the same Caveat as in the last. See for the Warrant in the Cabinet, Chap. 12. Sect. 6.

5. As to him that is drunk; In this Drunken­nesse. case any one Justice of Peace may upon his own view, or the offenders confes­sion thereof, or proof by the oath of one witnesse, convict him. And for the first offence, he may within a week after the conviction, send his Warrant to the Constable of the place where, &c. to levy of the offenders goods to the use of the poor, &c. 5 s. if it he not paid in within a week after the Conviction, by way of distresse, and sale of goods, &c. And for lack of distresse, the offender is to be put in the Stocks six hours. And Caveat to Justices. albeit there is no expresse power by the Act given to the Justice, nor to any others to do this. Yet it is conceived, that the Justice may safely do it. And therefore that he may safely follow my Presidents in the clark's Cabinet here­in, to make his Warrant forth in this case to do it. For the words of 4. Iac. 5. are, That if the offender lack a di­stresse, he shall be commited to the Stocks six hours. But it doth not say the Justice shall commit him to the Stocks. Or that he shall send his War­rant [Page 73] to do it. But this must (as it is conceived) be necessarily understood. For the Act of 21 Iac. 7. hath these words; That one Justice may convict him, and the offender shall be punished as in the Statute is appointed. And if it be the. Ale-house-keeper that is drunk, the Justice is to give him no­tice, that he is disabled for three years to keep an Ale-house again. And for the second offence in any Drunkard, the Justice of Peace is to put him to give two Sureties for his good Behaviour in a Recognizance of 10 l. And in this Statute there is the like Clause to punish the Officers neglect, as is in the two last before the third and fourth Num­ber. But no way of Conviction, ex­cept it may be by the parties own con­fession, upon the general words of 21 Iac. 7. in the beginning thereof. But Caveat to Justices. this being doubtfull, it is not safe for the Justice of Peace to grant his War­rant against the Officers for this. But to leave it to the Sessions. 4 Iac. 5. See the Warrant on this part in the Cabinet, Chap. 12. Sect. 3. But no Justice of Peace can punish any man for this of­fence of Drunkennesse after six moneths is past, after the offence is committed. See Chap. 7. Sect. 6. Numb. 24.

6. As to the Townesman or Stran­ger that shall be tipling in an Inne, Tipling. Ale-house, or Victualling-house, and [Page 74] not invited by a Traveller, and during the Traveller's stay there onely, and labourers, that are there for the con­veniency of their work, or one that is there for cause, to be allowed by two Justices of the Peace; In this case any one Justice of Peace may upon his own view thereof, the confession of the party, or proof thereof by the oath of one wit­nesse, send his Warrant to the Con­stables of the place where, &c. to levy of the offenders goods to the use of the poor, &c. 3 s. 4 d. by way of distress and sale, rendring, &c. And for want of distresse, to set him in the Stocks for four hours. And to give the Inne-keeper notice, that he is dis­abled, &c. 4 Iac. 5. 21 Iac. 7. See the Warrants for these things in the Ca­binet, Chap. 12. Sect. 4.

7. No man is to be punished twice for the same offence in any case upon these Statutes. 3 Car. 3.

8. There must be two Justices, and License. one of them of the Quorum, to give license to any man out of Sessions, to sell Ale, Beer, Cyder, or Perry, and to take his Recognisance for the keep­ing of good order; and this they must certifie it into the Sessions, or for­feit five marks. Upon 5 and 6 Ed. 6. 25.

9. There must be two Justices to License. License Labourers and others to be in an Ale-house tipling. Upon 1 Iac. 9.

10. There must be two Justices, and one of them of the Quorum, to dis­charge or put down an Ale-house-kee­per at their own discretion. Upon 5 & 6 Ed. 6. 25.

11. The oath of the party confes­sing he hath been tipling or drunk in an Ale-house, shall be sufficient to convince the Ale-house-keeper of his offence by suffering tipling, &c. 21 Iac. 7.

For Inne-keepers and Victuallers dressing of meat in the Lent, see Lent.

SECT. 29. About a Libeller or Slanderer; and Libell, &c.

AS to this kind of offender, and his offence, which we take now to be clearly within the words of the Act against Challenges, forbidding all provoking Words and Gestures, and so punishable thereupon by way of Indictment in the Sessions. But there is this more in it; As to one that hath his hand in the Contrivance, procuring, or publishing of a Libell, especially if it be against a Magistrate. Or one that doth use commonly libell­ing against others, or is a common Slanderer or Tale-bearer, and his Tales and Slanders are of dangerous consequence, and do much mischief; In such a case as this, any Justice may doubtlesse (out of the Sessions) take Informations hereof by good witnesses against him; and if he find it so, bind him to the good Behaviour, and to ap­pear Good Be­haviour. at the Sessions; and if he refuse to be bound, send him to Goal till he so do. See Chap. 3. Sect. 4,

SECT. 30. About Licenses.

1. ANy one Justice of Peace dwell­ing near the place where any poor Mariner or other person Mariner. having suffered Shipwrack shall land, may give a Testimonial under his hand Testimo­niall. of his case, and thereby license him to passe the next way to his place of birth, or last dwelling, and to ask relief as he goeth, and limit him a convenient time for it. upon 39 Eliz. 4. 17. 1 Iac 25.

2. One Justice may under his hand and Seal license Labourers to go out of Labourers. one into another Country, to work at Harvest-work in the Harvest-time. Up­on 5 Eliz 4.

3. One Justice may license a man upon good cause, to travail, or to do Lords-day. a work of mercy or necessity on the Lords-day. Or to come in later on the Saturday night; or go out earlier on the Munday morning, than the Lawes do prescribe for this; or to grind at a Mill; or be in, go, or send to, a com­mon Ale-house, Wine-Tavern, To­bacco-house; or to have, or use a Coach, Sedan, Horse-Litter, Boat, or Horse [Page 78] on this day. Upon the Act of 6th of April, 1654.

4. There must be two Tustices of the Church-Wardens and Over-seers to set up a Trade for the Poor. Peace, and one of them of the Quo­rum, to give allowance and license to Church-Wardens and Overseers of the Poor of a Parish, to set up a Trade there, for the better Relief of the Poor there. Upon 43 Eliz.

5. So to set up an Ale-house. See To sell Ale. Ale-houses.

6. Any two Justices of Peace may license poor people to travail to Bath or To travail to Bath. Buxton for cure of their diseases, at their own charge. Upon 5 Eiz. 4. But no Justices can license poor people to begg, but in the Case before of a Mar­riner. To begg.

7. There must be two Justices of the Servants. Peace to license Servants to depart out of their Masters Service. Upon 5 Eliz. 4.

8. There must be sour Justices to Recusant. joyn with the Lievtenant, to license a confined Recusant to go about any spe­ciall businesse. upon 3. Iac. 5. and 35 Eliz. 2.

See for Presidents of Licenses in most of these Cases, in the Cabinet, Chip. 2. 8.

SECT. 31. About the Lords Day.

AS to this thing, and the Justices power herein out of the Sessi­ons, these things are to be known.

1. That as to such as use, or meet Sports. for Bear-bayting, Bull-bayting, Enter­ludes, Common-Playes, or other un­lawfull pastimes whatsoever in, or out of their own Parishes on the Lords Day. In this Case, any one Justice of the Peace, may upon his own sight hereof, the Confession of the party, or the Oath of one witnesse (which he may administer) send his warrant under his hand and Seal, to the Constable or Church-Wardens of the place where, &c. to levy of the goods of the Offen­der, by way of distresse and Sale thereof, rendring, &c. the 3 s. 4 d. Forfeiture. The Act goeth further and saith. That in default of Distresse, the Party Offen­ding be set publiquely in the Stocks three hours. And these words, albeit they are so penned that they are ambi­guous, whether they shall be understood to be a part of the warrant to be made under the hand and Seal of the Justice, [Page 80] or of a new power in case of lack of distresse. And it is given to no body in certain, yet that the Justice of Peace hath power to do it, and we conceive the Justice may safely make out his War­rant so to do. And therefore in this (as to this branch) that he may safely fol­low our President in the Clarks Cabinet. chap. 4. Warrant 1. But no man may be punished upon this Law of 1 Car. 1. unlesse he be questioned for his offence within a Moneth after it is done. And the Justice in this case may (if he please) reward the Informer with a third part of the Forfeiture. See chap. 7. Sect. 6. Numb. 24.

2. As to such as use, or be at Wrest­lings, Ringing of Bells for pleasure, Masques, Wakes, Church-Ales Dan­cing in their own, or in other Parishes on this day; In this Case any one Ju­stice of peace may upon his own view thereof, the confession of the party, or proof thereof by the oath of one Wit­nesse send his Warrant under his hand and Seal to the Constables and Church-wardens of the place where, &c. If he be above 14 years old (which the Ju­stice in the taking of his information must inform himself of) to levy of his goods by distresse, &c. to the use of the poor of the place, &c. 5 s. And if he be under 14 years of age, then so to levy of the Governour of the Offender 12 d. [Page 81] And then the Act is penned further, in such like words, that the Offender shall be put in the stocks three hours, as the last Act was penned, and is likewise doubtfull. And therefore we here leave the same advise with the Justice as we did in the former Case, that he may give warrant to put in the Stocks for three hours. Act. 6th. of April, 1644. And to follow our President in the Ca­binet herein. See chap. 7. Sect. 6. Here the Justice may also if he please, re­ward the Informer with a third part of the Forseiture. See in the Cabinet, a Warrant for it, chap. 4. Sect. 3.

3. As to Carriers with Houses, Carriers. Drovers of Cattle. Wains, or Carts, and Drovers of Cattle that Travell on this day; In this Case any one Justice of Peace may upon his own fight of it, the Consession of the party, or proof of it by the Oath of two Witnesses, send his Warrant to the Constables or Church-Wardens, of the place where, &c. to levy of the goods of the Offender 20 s. to the use of the poor of the place where, &c. by way of di­stresse and sale thereof, rendring, &c. upon 3. Car. 1. But no man is to be punished upon this Law, unlesse he be questioned for his offence within six Moneths after it is done. And here the Justice may also, if he please reward the Informer with a third part of the For­seiture. See the President for it, in [Page 82] the Clarks Cabbinet, Chap. 4. Sect. 4.

4. As to Butchers that by themselves Butchers. or others kill, or sell their meat on this Day. In this case any one Justice of Peace, may upon his own sight thereof, the Consession of the patry, or Oath of two Witnesses send his Warrant to the Constables and Churchwardens of the place where, &c. to levy to the use of the poor of the place, of the Offenders goods 6 s. 8 d. by way of distresse and sale thereof, &c. upon 3. Car. 1. But no man is to be punished upon this Law for his offence after the six months. And here also the Justice may if he please reward the Informer with a third part of the Penalty. See the War­rant in the Cabinet, Chap. 4. Sect. 5.

5. As to such as Cry, shew sorth, Crying and shewing of Wares. offer, or put to sale any Goods, Wares, or Commodities, (except it he provi­sion in an Inne, or Ale-house, or milk in London) upon this day; the things are to forfeited; and any Church-wardens, Constables, or Overseers of the poor, may without warrant from a Justice of Peace seize and secure them. Also any one Justice of Peace may give a Warrant to any such Officers so to do. Upon the Act of 6th of Aprill, 1644; and 19th of April, 1650. And now it [Page 83] is added, That any one Justice of Peace upon proof of the offence by his own view, the confession of the party, or oath of witnesse, may give order to sell the goods, and give the money to the poor of the place where the goods were first seized. Or the Justice, if he please, may give the thirds thereof to the In­former, the rest to the poor. But this new thing must be done within a moneth after the offence is done, or it cannot now be done. Upon the new Act. 17th September, 1646. See in the Cabinet, a President for it in the same place.

6. As to such as Travail abroad on horseback, or on foot, without License Travailers. of a Justice of Peace on this day. Any one Justice of Peace may upon his own sight of it, the confession of the offen­der, or proof thereof by oath of one witnesse, send his Warrant under his hand and seal to the Constables or Church-Wardens of the place where, &c. to levy of the goods of the offender 10 s. to the use of the poor of the place where &c. by way of distresse and sale thereof, rendring, &c. And then the Ordinance is further, That for lack of distresse, the offender shall be put in the Stocks three hours. But the words be­ing doubtfully penned, (as we shewed before) and that it may be safe to put this clause, and to follow my President for this in my Cabinet. Upon Ordinance [Page 84] of 6th of April, 1644. And here also the Justice may (if he please) give a third part of the forfeiture to the In­former.

7. As to such as carry any Burdens, Carrying of Bur­dens. or do any worldly work on this day; In this case, any one Justice of Peace. upon sight hereof, the Consession of the offender, or proof thereof by the Oath of one witnesse, may send his Warrant under his hand and Seal to the Con­stables or Church-Wardens of the place where, &c. to levy of the often­ders goods [...] s. to the use of the poor of the place where, &c. by way of di­stresse and sale thereof, rendring, &c. And this is by the same Ordinance of 6th of April, 1644. where the case is the same, as in the last offence. And therefore the Justice (we conceive) may here also use the Clause, of putting in the Stocks three hours. And here also the Justice may (if he please) give a third part of the Forfeiture to the In­former.

8. As to the Travellers, Wagoners, Time of coming in, and going out of the Inne Sa­turday nights. Butchers, Higlers, Drovers, and their Servants, that shall come into their Inne Saturday night after 12 of the Clock, and go out Munday morning before one of the clock, without leave of a Justice of Peace. And as for such as Dance, prosanely sing, drink, or tipple in an [Page 85] Inne, Tavern, Ale-house, or Tobacco­house, or is there, or doth grind at a Corn-Mill on this day, without leave of a Justice of Peace; the travailer and Inne-keeper, and all the rest forfeit 10 s. a piece. And as to them that execute any Writs, Orders, or War­rants (but in case of Treason, Felony, Breach of the Peace, or profanation of Serving process. the Lords-day) upon this day; they forfeit 5 l. And as to them that use Coaches, Boats, Lighters, Horses, or Going wi [...] Coaches, &c. Sedans, but in case of Gods Service, and for cause allowed by one Justice of Peace on this day, they forfeit 10 s. for every offence. And all these Forfeitures in these four cases lastly named, are by Warrant of one Justice of Peace under his hand and seal, to be levied of the goods of the offenders by distresse and sale of their goods, &c. And for lack of distresse, the offender is to be put six hours in the Stocks. But there is no Caution to the Justi­ces. way of Conviction of either of these offenders set down by the Act. of 19th of April, 1650. And therefore we conceive, that no Justice may grant his Warrant in either of these cases to levy the Forfeitures. But that it must be done by the Justices of the Peace in their Quarter-Sessions, if they have any Sessions. power given to them therein by the Law; If not, it cannot be done at all.

[Page 86]9. As to the common Brewers of Beer or Ale, the Soape-boyler, or di­stiller Brewers. of Aqua-vita, or hot-Waters, that shall brew, or Tunne any Beer, or Ale; boyl or make any Soape, or distill or make any Aqua-vita, or hot-waters on this day; In this case any one Justice of Peace may within three moneths after the offence committed, upon the confession of the party, or oath of one witnesse, send his Warrant to the Constable of the place where, &c. to levy of the offenders goods the dou­ble value of what is brewed, &c. to the use of the poor of the place where, &c. and of the Informer, by way of distress and sale thereof, rendring, &c. And for lack of distresse and non-payment thereof, to send him to Bride-well for three moneths, and untill he pay it. See Chap. 7. Sect. 6. Ord. Excise, 17th Septemb. 1656.

10. As to Books written against the Books against the Day. Morality of this day, and to countenance the profanation thereof; In this case any one Justice of Peace may burn them himself, or cause them to be burnt by others. Upon Ord. 6th of April, 1644.

11. All persons must on this day ap­ply How the Day is to be kept. themselves to the Sanctification of it, by exercising themselves thereon in [Page 87] the duties of Piety and Religion, pub­likely and privately. Upon Ord. 6th of April, 1644. And this is added there­unto by the new Act, That if he be not allowed by some one Justice of Peace to absent himself, he is every Lords-day to resort to some Church, Chappel, or other convenient meeting-place of Chri­stians, not distering in matters of Faith from the publike profession of the Na­tion, being the true Protestant Chri­stian Religion, contained in the Holy Scriptures of the New and Old Testa­ment; under pain of 2 s. 6 d. The which any one Justice of Peace, upon his own Sight, the confession of the party, or the Oath of one witnesse, may by his Warrant cause to be levied of the offenders goods by way of distresse and sale thereof, rendring, &c. But nothing can be done upon this new Act of 17. Septemb. 1656, but what is done within a moneth after the offence is done.

12. Any one Justice may license a License. man to be absent from Church, to tra­vail, or do worldly businesse, to be in an Inne, or such like house; to go ear­lier out of his Inne Manday morning, or come later into his Inne Saturday night; or to have a Coach, Horse-Litter, Boat, to travail and pasle in it on this day. Upon the Lawes before-named.

[Page 88]13. By the new Act of 17th of September, 1656, most of all the offen­ces before named, are called a profa­nation of this day; and some others, as playing on Instruments, vain Sing­ing, Dancing, the going of Fulling-Mills, the working in the washing, whi­ting, or drying of Cloaths, threed, or yarn; the setting up, or burning of Turf or Beere, the gathering of Rates, except it be for the poor; the melting of Tallow and Wax by Chandlers, the baking by Bakers, the fitting and car­rying home of Cloaths by Taylors, the Trimming of men by Barbers; the keeping of Fairs and Markets, and vain and idle walking about in any place. And by this new Law, my one Justice of Peace, in case of any of these offences done, may upon his own sight thereof, the Confession of the party, or oath of one witnesse, send his Warrant to the Con­stable of the place where, &c. to levy of the offenders goods 10 s. by way of distresse, sale, &c. to the use of the poor of the place where, &c. But no Conviction can be of any man for any offence within this Law, but what is made within a moneth after the offence done. And by this new Law, any one Justice of Peace may within this moneths time after the offence, send his Warrant to search for, discover, appre­hend and bring before him such per­sons [Page 89] as he is informed, have profaned, or do profane the day in any of the par­ticulars before named. But here we Caution. cannot but tell you, That the offences formerly named, of Travelling, carry­ing burdens, and doing worldly labours or work of their ordinary Calling, the keeping, using, or being present at Wakes, Revells, wrestlings, shootings, leapings, ringing of Bells for pleasure, Bowlings, Feasts, Church-ales, May-poles, Gaming, Bear-bayting, Bull­baiting, Butchers, and others, using of their Trades, which were offences against other lawes, before the making of this Law, seem all tobe comprehended within this time now by the words of this Law, as to this purpose are provided, That no person shall be impeached or molested for any offence within this Act, unlesse he be thereof convicted within one moneth after the offence committed. And then it will follow, That as to all these offences newly named by this Act, they cannot be punished by any of the former Lawes, but it must be done within the moneth. And the Justice of Peace must therefore be wary what he doth herein, and take heed how he useth the Warrants we have advised and drawn in the Clarks Cabinet, as touching the Lords-Day, that do not agree with the Advice now herein laid down, without very good Advice.

SECT. 32. About Mault.

1. ANy one Justice of Peace may direct the Constable to sell such deceitfull Mault, as he upon Search shall find, at the price the Ju­stice shall set down. Upon 2 Ed. 6. 10 27 Eliz. 14. 1 Iac. 25. 3 Car. 4. 21 Iac. 28.

2. There must be two Justices of the Recogni­sance. Peace to convict an offender by his own Confession, or the Testimony of two witnesses of his breach of a Sessions-Order made for the Restraint of Maul­sters, and to commit him to Goal three dayes, and after, till he become bound in a Recognisance of 40 l. to obey the Order. Upon 39 Eliz. 16.

3. Any one Justice of Peace alone may take the Recognisance of 40 l. mentioned in the last head. Upon 39 Eliz. 16.

SECT. 33. About Masters, Servants, and Apprentices.

1. ANy two Justices of the Peace, Speciall Sessions. (one of them being of the Quo­rum) may twice a year, between Mi­cha [...]mas and Christmas, and Lady Day, and Iohn the Baptist, for three dayes at a time, keep a speciall Sessions onely to enquire of the matters, and severely to punish the offences against the Stat. of 5. Eliz. 4. about the Hiring, Keeping, De­parting, working, wages, and order of Servants, Workmen, Artificers, Appren­tices, and Labourers,. And the Justices are to have each of them 5 s. a day out of the Forfeitures, for the time the Ses­sions doth last, for their pains here­in.

2. It is said that any one Justice of Peace may out of Sessions upon this Law, do any one of these things following. 1. By the Agreement of the Master and his Apprentice, and by writing under the Masters hand, discharge the Appren­tice of his Apprentiship. 2. Allow of the cause of putting away of a Servant, but not of an Apprentice within his time 3. Hear and end any difference that [Page 92] shall arise between the Master and his Servant, or Apprentice, about his not Serving being hired, his parting before his tinie be ended, or his misbehaviour in the time of his service, and make an order herein between them. And if the Master will not obey it, bind him to ap­pear at the Sessions; and if the Servant or Apprentice refuse to obey it, bind him to the good behaviour, and to appear there also. 4. Put in the Stocks for two dayes and one night such a one, as he in his discretion shall think fit, and shall command to wo [...]k in the Harvest time for the saving of Corn or Hay. 5. Send to the Goal or house of Correction, common Labourers that will not work for the wages set down by the Justices, and others that have nothing but their work to live by, and will not work for reasonable wages. 6. Hear and end any difference between the Clothiers and their Workmen, Upon 4. Ed. 4. 1. 7. Send for and commit to ward him that refuseth to serve as an Apprentice according to 5 Eliz. 4.

3. There must be two Justices to do any of these following things. 1. To bind to the good behaviour, and to ap­pear at the Sessions, or to send to the Bridewell such as having no ability to live by, but their work, and live out of Service, and have been by the Justices limited to a time to put themselves into [Page 93] Service and have not done it within the time. 2. To punish the Servant by Imprisonment that is retained according to, and in, the Trades named by the Sta­tute, and doth refuse to serve, till he give bond to serve or to punish him so for any miscarriage in his Service, or to pu­nish him for his going away before his time be expired; or to punish him for. his going away without giving warning when his time is ended. 3. To impri­son such Women above 12 years old, and under 40 years old, unmarried, as are compellable to serve by the Statute, and refuse to go to service till they give bond to do it. 4. To lay the 40 s. Fine upon the Master [...] for putting away his Servant within his time, or at the end of his time, without giving of him a quarters warning. 5. To punish the Master by the 5 l. Fine, and Imprison­ment ten dayes, for giving of more wa­ges then is set down by the Justice upon the Statute. And to imprison the Ser­vant 21 dayes for the taking of that wa­ges. 6. To put in Prison for one year, or for lesse time, the Servant that up­on his own Consession or the oath of two witnesses before them is proved to have made an Assray, or assault on his Master, Mistresse, or Governour. 7. To inflict the Fine of Five pound upon the Master that retaineth the Servant without a Testimoniall according to the Statute. 8. To commit him to Prison [Page 94] that doth hire a Servant for lesse time then a year. 9. To imprison a Labou­rer, and Fine him 5 l. for departing from the Work he hath undertaken a­gainst the will of the Master, before he hath ended it.

4. But our Advise to the Justices of Peace herein is. That they be very Caveat to the Justi­ces. cautious what they do out of Sessions, these things upon this Statute, and that they use not some of my Warrants, as to this, I have given in the Clarks Cabinet. See chap. 7. Sect. 6. For there is a Clause in it. That every Retainer, and giving of wages, contrary to the true meaning of the Statute shall be void. And there are few Retainers according to the Statute. Besides there is some doubt ei­ther in the power and way of Convicti­on of the Offender, or levying of the Forseiture for the Offence, upon most of the branches of the Sta­tute. And yet this perhaps, a Justice may adventure to do. If a Labourer be in his presence, and idle, and disenga­ged, and he refuse to work in a time of need in the Harvest, to commit him ac­cording to the Statute. And such as have had time set them by the Justices, wherein to set themselves into a Ser­vice, and they do it not, and the parties be before them and consesse it, and are willfull; there the Justices may Pro­ceed against them according to the Sti­tute. [Page 95] And in case of purloyning by Servants from their Masters, and where the Contumacy, and miscarriage of Ser­vants towards their Masters is very fowl, there they may adventure, and so may one Justice (perhaps by the very Com­mon-Law, and of his own discretion) to bind him to the good behaviour, and to appear at the Sessions. And for diffe­rences that arise between Masters and Servants, and Apprentices, any Justice may of his discretion labour to set them agreed, and by consent of both parties, order any thing between them. And in some Cases where he seeth a stubborn­nesse, bind over the party to appear at Sessions. But other wise the safe way is to refer these matters to, and to have all these offenders punished at the Quarter-Sessions. For we do not perceive that it can well be done any where else.

5. Every Justice not hindered by Sicknesse, or other good cause, is to be present at the Taxing of wages, under pain of 10 l. by 5 Eliz. 4. 1. Iac. 6.

6. As to a Clothier, or other, that Clothiers for wages. refuseth to pay to his Workmen the wages set down by the Justices at the Sessions. In this case, two Justices of the Peace (one of them of the Quorum) may upon the Consession of the offen­der himself, or the proof thereof, [but doth not say, upon oath] of two lawfull [Page 96] and sufficient witnesses, before them, send their Warrant to the Constables of the place where, &c. to levy the 10 s. Forfeiture upon the offender by distresse and sale of his goods. Upon 1 Iac. 6.

7. If any Servant or Apprentice shall imbesill or steal away the goods of his Master, any one Justice of Peace, if by circumstances the case comes to a plain Felony, may deal with him, as he doth with other men in cases of Felony, ac­cording to the nature of the case. But for this, see 21 H. 8 7. & 33 H. 6. 1. and Dalton's Iustice of Peace, page 95. and 320. See the Cabinet for the Presidents to some of these things, in Chap. 13.

8. Poor people that have many chil­dren, Binding poor chil­dren Ap­prentices. The Overseers of the poor, with the consent of two Justices, may bind them Apprentices. And if their Pa­rents hinder their binding, or being bound, entice them away, the Parents may be sent to Bride-well by the Reso­lution of the Judges, 1633. But this we conceive must be by the Justices in, and not out of, their Sessions.

9. If any such person as by the Servants to service. Bridewell. 5 Eliz. 4. are appointed to be in ser­vice, as one brought up in husbandry under 30 years old, or a Maid-Ser­vant brought up in any of the Trades [Page 97] named in the Statute, live out of Ser­vice, not having visible means to main­tain themselves without their labour, and refuse to serve as an hired servant by the year, and he or she hath been warned by two Justices, to put her self into service by such a time, and doth not, such person may be sent to the house of Correction; Resol. of Iudges, 1633. But this we conceive also must be done by the Justices within, and may not be done by any of the Justices out of their Sessions: And that if the Justices will do any thing against such persons out of the Sessions, it is more safe to do it by binding of them to the Good Be­haviour. good Behaviour.

SECT. 34. About Ministers or Preachers.

1. AS to him that shall wilfully di­sturb a Minister in his open Ser­mon, Disturb him in his Sermon. or rescue him that hath so done; In this case any one Justice of Peace upon Complaint hereof onely, may com­mit him to safe keeping for six dayes. But then there must be two Justices; (one of them being the same Justice that did commit him) who within the six dayes must examine the matter. And if they find either by his own Consession, [Page 98] or the proof of two Witnesses, that he is guilty of the offence, then may they commit him to prison for three moneths. Upon 1 Mar. 3. But this Statute doth Caveat to Justices. not say, Whether the proof shall be by oath, nor give power to the Justices to administer the Oath. And therefore it is best to let such an offender be punish­ed by the Sessions.

2. But now by the New Act of 17th of September, 1656, If any do of pur­pose molest a Minister in his Preach­ing, or other publike duty, upon any day, or in his going to, or coming from it. Or do make any publick disturbance upon any part of the Lords-day, And he be thereupon brought (as he may be) Lords-day. to a Justice of Peace, The Justice of Peace may either upon sight of it, the parties own consession, or the proof thereof by the oath of one Witnesse, com­mit the offender to Prison without Bayl, till the next Quarter-Sessions. But this may not be done, neither by this Act, except it be done within the moneth af­ter the offence is committed.

3. As to a Scandalous Minister duly Eeected Ministers disturbed by them that were cast out. put out of any Living by authority of Parliament, that doth enter upon and out the Minister put in his Room, and by himself or others binder him to re­ceive the profits thereof; In this case any two Justices of Peace may upon [Page 99] proof hereof by two witnesses, (but doth not say, upon Oath) give such damages to the party wronged, as they think fit, and settle him that is so put out, in his quiet possession; and in this raise the Trained-Bands to assist him. And if he shall by himself, or other, make any disturbance upon the Minister so put in, in the execution of his Office; the same Justices upon proof thereof, by the Oath of two witnesses, may commit the offen­der to prison for one moneth. Upon Ord. 23 of August, 1647. and 8th of November, 1644. and 4th of April, 1648. and August, 1654. and 17th of Septemb. 1656.

SECT. 35. About a Mittimus.

AS to this Mittimus, which is the Justice of Peace his Warrant by which he sends a Prisoner to the Goal, or to Bride-well, take these things:

1. It must be in Writing, under the Name, Hand and Seal of the Justice.

2. It must expresse his Office, Place, and Authority: as, W. S. Esquire, one of the Justices, &c.

[Page 100]3. It must be directed to the Gaoler, or keeper of the Prison.

4. It must expresse both the Names, the Christian and Sirname of the party committed.

5. It must expresse the cause some­what certainly of his Commitment, as that it is for Treason, Burglary, or Robbery, or for Felony, or the Suspi­tion thereof; and where it is for Felo­ny, to say, for Felony, by stealing a horse, and the like.

6. It must have an apt Conclusion, The prisoner safely to keep, untill he be delivered by due order of Law, and the like.

7. And lastly, it must expresse the time of the making of it. Coo. 2. Part of Instit. 591. And a Mittimus, with this cause, To answer to such matters as shall be objected against him. Or, To keep the prisoner, till he that made it, shall give order for his deliverances, is not good. And so if it be a Com­mitment to Bride-well, it is good to set down the cause, as to say, because he is an idle, or inordinate person, &c. See Presidents for it, in the Clark's Cabinet, Chap. 25. and in Chap. 6.

SECT. 36. About Night-walkers.

AS to Night-walkers, that are idle Fellowes, who use to sleep by day, and walk abroad by night, and are suspected to live by some dishonest courses; In this Case any one Justice of Peace, either of his own head, if he know them to besuch, or by the Infor­mation of others upon Oath thereof by his Warrant may cause them to be ar­rested, and to be brought before some Justice of Peace, to put in Surety for their good Behaviour, or else to be sent to Gaol till they so do. And if any Watchmen of their own heads do ar­rest such (as they may) and bring them to the Justice of Peace to be so dealt with, the Justice may so proceed against them. See Good Behaviour.

SECT. 37. About Oaths.

AS to this, these things are to be known,

2. The Oaths of Allegiance, Obedi­ence, and Supremacy, named in 1. Eliz. Oath of Allegi­ance, &c. 3. 4 Iac. and other Statutes, they are all of them taken away by the Act. 9. Ia­nuary, 1648.

2. Any one Justice of the four that do License a confined Recusant to Tra­vel, To a Re­cusant. may give him the Oath appointed, by the Statute of 3 Iac. 5.

3. Any one Justice of the County where a Robbery is done, and dwelling To him that is rob­bed. in or near to the Hundred wherein it is done, may within 40 dayes of the doing thereof, take his Oath that is robbed, whether he knew any of the Thieves, up­on 27 Eliz. 13.

4. Any one Justice of Peace may To him that de­sires surety of the Peace. give the Oath to him that desires surety of the Peace against another. See Peace.

5. Any one Justice of Peace may give the Oath to these Offices following when they come into their Officers. By common usage they give the Oath to the High-Constable, and the Petty-Consta­ble; To Con­stables and some other Officers. And they may give the Oath to the under Conservators of Rivers: But to swear Over-seers of Cloath, there must be two Justices.

6. There must be two Justices of the Peace, (one of them of the Quorum) without Commission to give the Oaths of the under Sheriffs, their Bayliffs, De­puties, and Clarks at their first entrance To the Undershe­riff and his Officers. into their Offices. Upon 27. Eliz. 12.

7. There must be two such Justices to give the Oath to the Collectors of the Sheriffs Amercements for the Coun­ty Court, that they shall Collect no more then is due. Upon 11. H. 7. 15.

8. Any two Justices of the Peace may give to the Overseers of Cloath their To Over-seers of Cloath. Oath. upon 3. Ed. 6. 2. 39. Eliz. 20. 43. Eliz. 12.

9. Any two Justices may give them To Over-seers of them that are sick of the Plague. their Oath that are to be Overseers of them that are infected with the Plague, upon 1 Iac. 31.

10. There must be three Justices To them that de­prave the Sacrament (one of them of the Quorum) to take the Information of witnesses against such as speak irreverently of the Lords Supper. Upon 1 Ed. 6. 1.

11. And what Justices may take the Informations upon Oath against other Offenders upon penall Lawes, see in the Severall Titles.

12. The Justices must take heed of New oaths. imposing new Oaths (especially out of Sessions) For it is a Rule. That the giving of every Oath must be warranted by Act of Parliament, or by the Com­mon law, time out of Mind. Coo. 2. part. Inst. 479. They must also take heed of imposing the old Ceremony of How an Oath must be taken. laying the right hand on the Bible in the taking of an Oath. For any man may now (if he will) in stead thereof during the time of his taking of it, hold up his right hand (onely.) See the Act of 5 Septemb. 1649. For the Oaths of May­ors, &c.

SECT. 38. About Officers, and Offices.

AS to this, And what the Justices of peace may do about this out of their Sessions, these things are to be known.

1. That the Justices of the Peace of the County have somewhat to do in the making and Government of divers of the Officers of the County, Hundreds, Parishes, and Places within the Coun­ty.

2. The Treasurers of the County­stock, albeit they be chosen and made at Treasurers of the County­stock. Masters of Bride-well and are under the Government, and or­der of the Quarter-Sessions; yet may any two Justices, by order of the Sessi­ons levy by sale of goods, the Fine set by the Sessions, on the Treasures for the neglect of their office, Upon 43 Eliz. 2.

3. Any one Justice may punish the defaults of Sheriffs, by not returning Sher [...]ff [...], good Jurors to enquire in a case of For­cible entrie, before him, upon 8 H. 6. 9. But see more of this in Sheriffs, Sect. 50.

[Page 106]4. What one Justice may do in the making or remove of Constables; See constables Constables, Sect. 11. of this chap.

5. The Justices themselves being all of them Conservators of the Rivers, Conserva­tors of Ri­vers. each of them may choose others under them to over-see the Rivers, upon 27 R. 2. 9.

6. Any two Justices may appoint searchers of Tiles, upon 17 Ed. 4. 4. Searchers of tiles.

7. Two Justices may make and call to account once a year Overseers of Overseers of Cloath. Cloath, and bind them by Oath and bond to do their duty. Upon 3. and 4. Ed. 6. 2.

8. Two Justices of the nearest to the Overseers of the poor. Parish, are within a Moneth of Easter every year, to appoint two or more of every Parish, to be Overseers of the Poor of the Parish. For which See 43. Eliz. 2. and poor. Sect. 43. of this chap.

9. Two Justices of the nearest to the Parish must under their hands and feals Church-Wardens. approve the yearly choice of the Church-wardens of Parishes. For this, see Church, Sect. 9. of this chap.

[Page 107]10. Two Justices may call Treasurers of the County stock, High-Constables, Calling them to Account. Petty-Constables, or others their Exe­cutors or Administrators, who have been formerly trusted with the Receipt of any Money charged on a Parish by the Statute of 43 Eliz and order the pay­ment thereof to the County Treasurers. So they may call them to an account for any money belonging to maimed Soul­diers. And so Officers that have re­ceived any money to the use of the poor, Upon the Ord. of May 1647, and 24. of December 1647. But for the Accounts of Church-wardens, Overseers of the Poor, Surveyors of the High way, See in the Titles themselves.

11. Any one Justice may call Watch-men Watch-men., to an account of the Execution of their Office. And if he find them negli­gent therein, cause them to be bound to the good behaviour, or to be indicted at the Sessions for it.

12. For other things about. Rogues, Drunkards, Sabbath-breakers, Poor, Church, and the like, what Warrants Justices may send to Officers, and what they are to do upon them, See in the proper Titles.

SECT. 39. About the Peace, and Surety of the Peace.

ANy one Justice of Peace may of his own head, without Motion of another, and by his own power, put him to give Sureties for the Peace that he knows to be a common Ryotor, or common Barretor, or that maketh an Affray upon him, or upon another in his presence, or that is about to make an Affray, or that doth threaten ano­ther to beat or kill him, or burn his house; or that doth go or ride armed in a terrible way, or the like, without any information, complaint, or Oath of anyother man; Also he may upon the re­quest of another, and the offer of his Oath, that he standeth in fear of his life, or some bodily hurt, or the firing of his house by another man, whether it be true or false, take his Oath, or perhaps he may do it without Oath, for we conceive it to be in his discretion. And then he may send his Warrant to bring the party before him, or some o­ther Justice of the Peace (if he be not in his presence) to give surety for the Peace, or if he refuse, to carry him to Goal, till he so do. And if he be in [Page 109] his presence, he may require him to put in Sureties to keep the Peace. And the Sureties, and the Sum in which they are to be bound, must be according to his discretion, which is to be guided by reason, and to be greater or lesse, as the case is more or lesse dangerous. And if he refuse so to do, he may send him by a Mittimus to the Goal, till he shall so do. But for, and after an Affray past, and without any such Oath taken, or cause of Suspition of a new Affray, Caution to Justices. to send this Warrant, and take this. Surety, or to send to Goal any man refusing, is not safe for a Justice of Peace. And yet if he have proof, that the Affrayors are newly parted, and like enough to fight again, there per­haps he may put them both to give sure­ty for the Peace.

SECT. 40. About Playes, and Games.

AS to such as keep houses of Dicing Cards, Dice, Ta­bles, &c. Carding, Tables, and of the like unlawfull Games, and such as haunt such houses, and play there, not Licen­sed by the Lord Protectour. Any one Justice of Peace may in this case go into the house he doth suspect, where such Play is, And if he catch them in [Page 110] the manner, and they be not such as are excepted in the Law, he may com­mit the keeper of the house, and those that play in his house, to prison, untill they enter into Recognizance never to offend so again. But he (as we con­ceive) Caution to Justices. may not without good advice send his Warrant to levy the 40 s. on him that keeps the house, and the 6 s. 8 d. on him that playeth, because no such power is given him by the Statute of 33 H. 8. 9. 2 & 3 Ph. and M. 9. 12 R. 2. 6. 11 H. 4. 4. 17 Ed. 3. 4.

2. As to the Artificer, or his Jour­neyman, a Hushandman, an Appren­tice, Labourer, Servant at Husbandry, or other Servant, without his Masters leave; Mary-man, Fisher-man, or Ser­ving-man, that playeth at Tables, Ten­nis, Dice, Cards, Bowls, clash-coyting, Logating, or other unlawful game out of Christmas, or then out of their Ma­sters house and presence. And as to any man whatsoever that shall play at Bowls in any open place out of his Gar­den or Orchard; In this case any one Justice of Peace that doth find him at it, and that he is not excepted out of the Statute, may commit him to pri­son, till he enter into Recognizance never to do so again. Upon 33 H. 8. 9. But he may not give Warrant to levy the Forfeitures of 20 s. and 6 s. 8 d. in these cases.

3. Any one Justice may enquire into Archery. the execution of the Statute of 33 H. 8. 9. about Bowes and Arrowes, and ac­quaint the Sessions with what he find­eth. And may estreat the 10 l. into the Exchequer, against such as are Convict before him for shooting in a Crosse-bow, or Hand-Gun. Upon Guns. 33 H. 8. 6. See Armour.

4. As to Stage-Players, these things Stage-Players, &c. are to be known: 1. That they are after one Conviction, albeit they do not wander up and down, yet to be accounted incorrigible Rogues: and so any one Justice may deal with them, as he may deal with a Rogue. By Ord. Rogue. 11 Febr. 1647. 2. So much as the money there received for to see a Play, shall be forfeit to the poor of the place. 3. Any two Justices of the Peace of the County wherein such a Collection hath been made, upon complaint and proof thereof before him upon Oath, may by Warrant under their hands and seals command the Constables and Church-wardens to levy the same by way of distresse and sale of Goods, ren­dring, &c. 4. As to such as have been at such a Play; In this case any one Justice of Peace, upon the confession of the party, or proof thereof by one witnesse, may send his Warrant to theChurch-wardens or Constables of the [Page 112] place where, &c. to levy 5 s. of him' to the use of the poor of the place where, &c. by way of distresse and sale of goods, rendring, &c. Ord. 11th of Febr. 1647. 5. The Lord Mayor of London, and Justices of Peace of London, Westminster, Middlesex, and Surrey, or any two of them within their limits, may destroy Stage-Play-boxes, Galleries, &c. 6. As to the Actors in such Playes within the last named pla­ces, any two Justices of the Peace of the same Counties within their own li­mits, upon their own view thereof, or Oath of two witnesses, within two moneths after the offence done, may by their Warrants under their hands and seals, cause the offender to be appre­hended, and openly whipt in some Market-Town, and cause him also to enter into a Recognisance with two suf­ficient Sureties, that he will never so offend again; and commit to prison till he shall so do. And if after he offend again, they are to deal with him as an incorrigible Rogue. But this power in Iucorrigi­ble-Rogue. this thing is not given to the Justices of the Peace of any other County. Upon this Ordinance of 11th of February, 1647.

5. If any May-pole be set up in any May-Poles. place, Any one Justice of Peace may upon sight thereof, or Confession of the party, or proof of one witnesse upon [Page 113] Oath, give Warrant under his hand and seal to the present Constables or Church-Wardens of the place where, &c. to levy by way of distresse and sale of the goods of them that were the Constables and Church-Wardens of the Parish at the time of the setting, and continuance of it up, 5 s. a week, for every week it stood aster it was erected, before it was taken down. And for lack of distresse, or where there is an inability to pay the Forfeiture, to put them in the Stocks three hours. Ord. 6th of April, 1644. where the words of the Law, as to this last branch of putting in the Stocks three hours, are a little doubtfull. And yet we think the Justice may safely insert that clause in his Warrant in this case also, and follow our President in that, in the Cabinet, Chap. 23. Sect. 4.

6. The Justices are authorized to Cock-Matches. hinder, disturb. and disperse Meetings for Cock-Matches. Upon Ordinance of 31 March, 1654. and 17 of Septemb. 1656. And by this we conceive, the Justices may entreat or command them to depart. And if they shew themselves disobedient, &c. perhaps bind them to the Peace or Good Behaviour, upon good advice.

SECT. 41. About the Plague.

ANy one Justice of Peace may compell him that hath the Plague to keep in. And if after command, he refuse, albeit he have not the Sore upon him; yet the Justice may punish him as a Vagabond, and also bind to Vagabond. Good Be­haviour. the good Behaviour for one year. And one Justice also may according to his discretion appoint Searchers, Watch-men, and Keepers to look to and go­vern them that are sick of the disease. But there must be two Justices to set, and issue out Warrants to levy the Rate Rate. for the Relief of the persons insected. 1 Iac. 31. 21 Iac. 28.

SECT. 42. About the poor.

AS to this, and what the Justices of Peace may do herein out of the Quarter-Sessions, take these things.

1. It is said that two Justices may send to the Bride-well, or common Goal, such idle poor as will not work, being thereunto appointed by the Overseers, Upon 43 Eliz. 2. But there is no way of Conviction of them by that Statute, Caution to Justices. and therefore we do not conceive it war­rantable for Justices so to do out of the Quarter-Sessions. See Correction-house. See chap. 7. Sect. 6.

2. There must be two Justices of them that are nearest to the place, that must yearly within a Moneth of Easter, under Making Overseers of the poor. their hands and Seals, appoint two, or more Overseers of the Poor, to be joy­ned with the Church-wardens of the Parish, to look to the Poor of the Parish. And if the Justices do not do it, they forfeit 5 l. a piece. So there must be two such Justices to allow of, and sub­scribe the Rates there made for the Rates. poor; to force them that refuse to pay it, and to force the Overseers at the [Page 116] end of their year to Accounts, and to pay over the Money remaining in their Account. hands to their Successours. And these two Justices may if they perceive a Pa­rish overcharged with their Poor, and not able to bear the poor thereof, lay a Rate upon any other Parish within the Hundred to help them. But if they go Sessions. further then the Hundred with the Rate, then it must be done at the Sessions. And there a Rate may be imposed up­on any part of the County for Contri­bution to that Parish. And there also a Rate may be imposed upon the Pa­rents, Grand-Parents, or Children of Parents to relieve Children.such as are poor towards their relief. The which they are to pay, or forfeit 20 s. a Moneth. And these two Justi­ces may give their Warrant to the Church-wardens and Overseers of the Poor, to levy the Rate by distresse and sale of goods, upon such as rated, and for lack of distresse, to send them to pri­son till it be paid. Also these two Ju­stices may send their Warrant to the present, or subsequent Churchwardens, and Overseers, to levy by distresse and sale of goods, all Arrears of Rates re­maining in any mans hands. And for lack of distresse to send them to Goal, till it be paid, Upon 49 Eliz. 2. 39 Eliz. 3.

3. Any two Justices may compell the Overseers and Church-wardens at the [Page 117] end of their year to account, and pay over to their Successours the Money re­maining in their hands at the end of their year, or the 20 s. forfeiture for neglect of it, or of one part of the Duty of their Office, and cause it to be levi­ed by way of distresse and sale of goods, and for lack of distresse to imprison the parties, upon 43 Eliz. 2. And so may two Justices take account of these Offi­cers yearly of their Imployment of all such Money as they have in their hands of any mans gift, for the binding of poor Children Apprentices, Upon 7. Iac. 3.

4. Any two Justices may joyn with the Church-wardens and Over-seers of the Poor, in the placing of the children of Poor people at the Parish-charge, or otherwise, with Husband-men, or o­ther Trades-men, and punish them that will not take them, by putting them to give surety of the good Beha­viour, and to appear at Sessions. And Good Be­haviour. punish also the Parents that refuse to let their Children to go, and the Chil­dren that refuse to go, Upon 43 Eliz. 2. 5. Any two Justices may agree to and License the setting up of a Trade in the Parish to set the Poor on work there, Upon 43 Eliz. 2.

5. Any two Justices may under their hands appoint present Relief to any [Page 118] poor Souldier hurt in the late Wars, and the Wives and Children of such Poor Soul­diers and Mariners, their Wives and Chil­dren. as were slain or dyed in the same Wars, till the Quarter-Sessions. But for this, take these things, 1. There must be two Justices living near to the place where the maimed Souldier or Mariner in the last Wars, before the 22d of May, 1647, settled when he took up Arms, that upon a Certificate of his Service and or his hurt, under the hand of his Captain, or his Comis­sary Officer, or (in case where they be dead) under the hands of other per­sons of credit, who may examine the Truth of the thing by his own Oath, and by Witnesses, and appoint the Treasurer of the publike money to this use, to give him Relief till the next Quarter-Sessions, And then a Pension Pension. may be given to him. 2. And as to the Widows and Orphans of the Soul­diers Widows and Or­phans of Souldiers slain or dead. or Mariners that were slain, or dyed in those Wars; In this case, the two next Justices may by warrant under their hands, appoint the Treasurers what to give them for their Relief, and to acquaint the next Sessions therewith, to the end it may be continued, or de­termined. Ord. May 22. 1647. Au­gust, 1647. December, 1647. Sep­tember, 1651. 3. Every Justice is to take order for the Relief of all the maimed Souldiers belonging to the Ar­ [...]its in England, Scotland, and Ireland, [Page 119] and the Widowes and Orphans of such Souldiers as have been slain there, as soon as they bring into them such a Certificate as is mentioned in the Ord. of 30th Septemb. 1651. or be sent unto them by the Treasurer for maimed Souldiers by a Passe, under their hands and the publike seal of their Office, for that purpose, the same allowance not exceeding 4 s. a week to one such Souldier, or Widow, Or if they be able to work, the same Justice is to pro­vide that they may have such work, as to get 4 s. a week. And the Justices are to help to place their Children Appren­tices. The same Ordinance of 30th Sep­tember, 1651.

6. Any two Justices next to the place where a poor Mariner or Souldier that is become from beyond Sea to his place of Settlement, and can get no work, to take order to set him on work, and to Rate. tax the Hundred for his Relief, till he can have work. 39 Eliz. 17.

7. How the idle poor that will not work, shall be ordered; and disorderly poor punished, see Rogues, Sect. 48. of this Chapter.

For the binding of poor Children Apprentices, see Sect. 33. Numb. 8.

SECT. 43. About Rates and Assessements.

AS to this, what may be done herein out of Sessions, take these things:

1. Four Justices may with the Con­sent of the Constables of a place set a Rate for the repair of a Bridge. Upon For Brid­ges. 12 H. 8. 5.

2. In case where the Parishioners, For Kings-Bench, &c. Maimed Souldiers, &c. Constables, and Church-wardens of a Parish shall all of them neglect to set and distribute upon the Parishioners the Rate set by the Justices of the Peace in the Quarter-Sessions, for the Kings-Bench and Marshalsies; In this case, any one or more Justices of the Peace, may by him or themselves alone set the Rate, and give Warrant to levy it by distresse and sale of goods, &c. and for lack of distresse, to send the party to Goal till payment. Upon 43 Eliz. 2. And so likewise he may do (save onely as to Commitment upon the Rate for Re­lief of maimed Souldiers and Mariners. Upon 43 Eliz. 3.

3. There must be two Justices of the [Page 121] Peace (and one of them of the Quorum) to Rate, and give Warrant to levy the Poor. Rate set upon other Parishes of the Hundred, for the help of another Parish not able to keep the poor thereof. Up­on 43 Eliz. 2. So for a Rate set upon a Hundred for the Relief of a poor Souldier or Mariner that is come from the Sea, and wanteth work or relief. Upon 39 Eliz. 17. See Sect. 38. of this Chapter.

4. The Justices may (and, as it seems, out of Sessions) set down the For Bar­rels and Firkins of Ale. Rates that the Brewers of Ale and Beer within the County shall sell by, their Barrels, Kilderkins or Firkins of Ale or Beer, which they may not exceed. Upon 23 H. 34. But the fittest place to do this, is in the publike Sessions.

5. For the Rate of a Hundred char­ged with the money lost by a Robbery, see Robbery, Sect. 47. of this Chapter.

6. For the Rates of Poor, see Poor. Of Churches, see Churches.

7. For the Rate to carry a Prisoner to Goal, and what the Justices may do therein out of Sessions, see it in Goal, Sect. 20. of this Chapter.

8. For the Plague, see Plague, Sect. 41. of this Chapter.

SECT. 40. About the Posse-Comitatus.

ANy one Justice of Peace, if he have cause; as to keep the Peace, suppresse a Riot, take a Felon, or the like, may raise, command, and use all the power of the County; and every man required by him, is to obey him herein; or may be punished by the Sessions for his neglect or contempt of his authority herein.

SECT. 44. About Recognisances.

1. ANy one Justice of Peace may take a Recognisance for the Peace, or good Behaviour, or for a mans appearing at the Assizes, or at the Sessions, to prosecute or give evidence, to bayl a prisoner where he is baylable, or the like: And this by the Common-Law.

2. Any one Justice may take a Re­cognisance upon divers Statutes; as of such as keep, or use houses of unlawfull [Page 123] games, that they shall do so no more. Of such as are suspect to use Logwood, and of their witnesses: of such as take Partridges, and Hawkers in corn, to ap­pear at Sessions: of such as are con­vict for taking or killing of Pheasants and Partridges, to do so no more: of the Master that shall abuse his Apprentice, that he appear at Sessions: of him that is robbed, that intends to be relieved against the Hundred, Upon 27 Eliz. and some others.

3. There must be 2 Justices of the Peace (one of them of the Quorum) to take Recognisances of Ale house-keepers, to baile a Prisoner baylable for Felo­ny. And so in other cases where the Statute doth say, there must be 2. Ju­stices.

4. Every Justice is to see to it, that the Recognisances taken by himself, or by himself, another, or other Justices; that they be (especially if they be for the bayling of Felons) returned into the next Assizes, or Sessions, (as the case is) before the Judges or Justices there, to be proceeded upon there.

SECT. 45. About Recusants.

AS to this sort of people, these things are to be known:

1. If any Jesuit or Priest be made Jesuit. Priest. known to him, he must acquaint one of the Privy-Council with it within 28 dayes, under pain of 200 Marks. Upon 27 Eliz. 2.

2. If any Agnus Dei be discovered to Agnus Dei. him, he must acquaint one of the Privy-Council with it, within 14 dayes. Upon 13 Eliz. 2.

3. One Justice may require a Popish Recusant within three moneths after his Conviction, to submit and declare his conformity to the Lawes of Recu­sants. And in case he do not so, he may, if it he not a Feme Cevert, require him to abjure the Realm: But the Abjuration must be in the Quarter-Sessions, Abjura­tion. 35 Eliz. 1. 21 Iac. 28. So one Justice may within 3. dayes after Masse said, take Information of it. Upon Masse. 3 Iac. 5. So he may require a Popish Recusant above 16 years old, who shall trava [...]l above five miles from his dwel­ling Travail. [Page 125] without License, if he have lesse then 20 Marks a year, or 40 l. in goods, to conform. Upon 35 Eliz. 2. So to send to Goal without Bail a suspected Jesuit or Priest, that being brought before him upon a suspition, re­fuseth to answer directly, whether he be a Popish Priest or Jesuit. Upon 35 Eliz. 2.

4. There must be two Justices of Peace to give an Oath to a Recusant, Oath. licensed by them two, and two other Justices, to travail [...] Upon 3 Iac. 5. and 35 Eliz. 2. So to search the houses of such men who, or whose Wives, are suspect Papists for Popish Books and Books Po­pish. Reliques, and to burn them; or if they be of value, to deface and restore them. Upon 3 Iac. 4. So to take the submis­sion of one that hath been Reconciled to the Church, who within six dayes af­ter his Return, shall tender it to them. Upon 3 Iac. 4. So to take the Abju­ration of a Popish Recusant. By 35 Eliz. 2. So to require a Popish Re­cusant above 16 years old, which shall travail above five Miles from his dwel­ling, without license, if he have lesse then twenty Marks Free-hold by the year, or fourty pound in goods, to conform in three moneths, or else ab­jure, and to certifie it to the Assizes. Upon 35 Eliz. 2. So if being 16 [Page 126] years, and have not 20 marks a year, &c. and to travail, and required by one Justice of Peace to conform within three moneths, then to require him to abjure, and to certifie the Abjuration Abjure. to the next Assizes. Upon 35 Eliz 2. And there must be two (and one of them of the Quorum) to send to prison a wo­man Covert Recusant, not conforming in three moneths, unlesse her hus­band will pay ten pound a moneth, or the thirds of his Lands. On 7 Iac. 6.

5. Any two Justices of the Peace may send for any person above 16 years old, that they suspect to be a Papist, and cause him to be bound by Recognizance, to appear at the next Sessions, to take the Oath of Ab­juration. And upon his refusall, com­mit him to safe custody without bayl, till the next Quarter-Sessions: And if he come not upon this to the Ses­sions, they are to present him to the Sessions as suspitious, or they sorfeit 20 l. Act. 17 Septemb. 1656.

6. Two or more of them of every Division, must send their Warrant four times in the year, once a Quar­ter, and 28 dayes at least before the Quarter-Sessions, to the Constables and Church-Wardens of the Parishes [Page 127] within their limits, to require them at some time and place, 14 dayes before the Quarter-Sessions, to present upon their Oaths to them the Names, Sir­names, Additions and places of abode, of all such of 16 years old or up­wards, as are suspect to be Papists, or Popishly affected. And then taking their Oath to the Presentment, shall by their Warrant to the Constable, re­quire him to summon such persons presented, either by delivering a Note in writing, or leaving it at his house or usuall place of abode, to appear in person at the next Quarter-Sessions, when and where they. shall deliver in the same Presentment openly in the Court to be Recorded. Act. 17. Sep­temb. 1656.

SECT. 46. About a Riot, Rout, and unlawfull Assembly.

AS to Ryots, Routs, and unlawfull Assemblies; In these Cases any one Justice of Peace, upon complaint to him made, or notice to him given there­of, if it continue, he must if he be a­ble, go to the place and view it; And there he must first of all quiet it, and re­move the Force. For the doing where­of, [Page 128] he may (if he see cause) raise the power of the County to assist him. And if he find the Ryotors at the place, he is to disarm them, send them to Prison, and Good Be­haviour. bind them to the good behaviour. And if the Justice cannot go himself to the place, he may command his servants or others to go to the place to suppresse it, and bring the Riotors before him, to find the Sureties for the good behaviour, or if they refuse so to do, send them to Goal. But if the Riot be past. Then the Justice is to call in to his help, ano­ther Justice, and let one of them be of the Quorum, and by a speciall Sessions called and commanded by the Warrant to the Sherists, to bring a Jewry before them, and to charge this Jewry to en­quire of the Oftence. And if the Jew­ry find the Offenders guilty, the Justices are to record it, fine them, and send them to Goal till they pay their Fine, upon 1 H. 5. 4. 13 H. 4. 7. 19 H. 7. 13. See in chap. 3. sect. 4.

SECT. 47. About a Robbery.

AS to Robberies, where the Hun­dred is chargeable for the Money taken away. And where default is found in the prosecution of the Felon by another hundred, and the one half of the Money is recoverable upon that hun­dred, by the party robbed, in the name of the Clark of the Peace of the Coun­ty; by 13 Ed. 1. 2. and 28 Ed. 3. 11. And for an equall distribution in both these Cases; any two Justices of Peace (one of them of the Quorum) living in or near to the place, may set the Rate upon the Towns of the Hundreds. And after the Constables of the Towns and Parishes have distributed and set it, and Rate. levied it by distresse and sale of goods, which they are to do by their Offices without Warrant from any other, And therefore we would not advise you to use for this, the Warrant in the Clark's Cabbinet, chap. 16. Numb. 1. And then they are to deliver the same money to one of the same Justices of Peace. And this money the Justice that receiveth it, is to see paid to them for whose use it was raised, Upon 27 Eliz. 13.

SECT. 48. About Rogues, Vagabonds, and Idle persons.

AS to all these kind of persons these things are to be known.

1. That as for idle, loose, and disso­lute persons, which wander from their Idle per­sons. usuall place of living and abode, and can give no good reason for their travell to satisfy a Justice of Peace, albeit they do not beg. Fidlers, and Minstrells that shall be playing, or oftering, or desiring Fidlers. to play in any Inne, Ale-house, or Vi­ctualling house, albeit they do not beg. Souldiers and Mariners that have Pensi­ons, and yet beg, or shall counterfeit a Certificate, Counterfeit Egyptians,, Beg­gars, or others described to be Rogues Egyptians. within 43 Eliz. 3. 39 Eliz. 4. 17. 1 Iac. 7. 7. Septemb. 1656. that shall be taken and found begging, wandring and misordring themselves. In this case any one Justice of Peace, upon his [...]wn sight hereof, may cause such per­sons to be whipt and send to their place of birth, &c. with a Testimoniall of their Correction, [...]imitting the place to which, and the time wherein they are to go thither, upon 39 Eliz. 4. 1 Jac. [Page 131] 7. But if this Offender be brought to a Justice, we do not conceive it needfull, the Justice should order this Correction. For the Officers may, and ought to do it of their accord, without the Ju­stice of Peace's Warrant.

2. Any one Justice of Peace may secure an incorrigible Rogue (that is) Incorrigi­ble Rogues one that is dangerous to the inferiour sort of people, and will not be reformed of his Roguish life, one that is able to work, and doth run away from his Fa­mily, and leave it upon the charge of the Parish, Upon 7 Iac. 4. till two Ju­stices can send him to the Goal or Bride-well, upon 39 Eliz. 4.

3. There must be two Justices of the Peace, and one of them of the Quorum, that by the words of 39 of Eliz. 4. are by warrant under their hands and seals upon the Confession of the offence by the party, or proof thereof by two wit­nesses, to give power to levy by distresse, and sale of goods, the forfeirures within the Statute, (viz.) the 5 s. upon the Minister for not keeping a Register­book, the 10 s. upon the Constable for his neglect in the Apprehension, and punishment of Rogues, the 20 s. upon him for his not punishment, and not safe convey of a Rogue brought to him by another, the 10 s. of him that doth not apprehend a Rogue begging at his [Page 132] house, or that doth bring a Rouge out of Ireland hither. So also upon the like Conviction, to levy by distresse and sale of goods, and bind to the good Behavi­our, such as disturb the execution of the Statute, of 39 Eliz. As Officers that shall send a Rogue by a generall Pasport or that shall refuse to receive a Rogue when he is brought to them, or that shall shift him away, or that shall not bring him to the next Parish; Or other persons that are not Officers, that shall shift away, or Rescue a Rogue, or as hinder the settlement of a Rogue, or that when he is duly setled in any place shall remove him without Authority. But herein we must give notice to the Justice of Peace that this Statute is doubtfully penned. (as to the manner of Caution to the Justi­ces. Conviction) For the words are, That if the Offence shall be confessed by the Offender, or that the same shall be pro­ved by two sufficient and lawfull Wit­nesses. And doth not say what proof it shall be, nor give power to the two Ju­stices to take the Conviction by such proof. And therefore it is not, as we conceive, safe for the two Justices out of Sessions to do it. And yet it is more clear that the Justices may do it upon the Confession of the Offender. But truly it is best to do it in the Sessions, and not safe to do it otherwise; Nor safe to follow our Presidents in the 18. chap. of the Clarks Cabinet, See chap. 7. Sect. 6. Numb. 19.

[Page 133]4. There must be two Justices of the Peace, (and one of them of the Quo­rum) to send to the house of Correction. or Goal of the County, till the next Quarter-Sessions, an incorrigible Rogue, Incorrigi­ble Rogues Caution. upon 39 Eliz. 4. And yet here we con­ceive the Justice must see him to be such a one, and he must be before him, for he hath no means to convict him hereof, or otherwise we know not how he shall justify it.

5. There must be two Justices of the Peace, and one of them of the Quorum, to appoint a privy Sessions, and to send their Warrant to the Constables, and to command a privy search, three or four dayes before the meeting, and to ap­prehend, and bring before them all such suspitious persons, as in their search, they shall find out, and to command all the Constables of Hundreds to be then there, and the Constables of Parishes upon Oath, to present under the Mini­sters hand what Rogues they have ta­ken, punished, and sent away. And to set a Fine of 40 s, or under, upon any of the same Constables, for not appear­ing before them, or for not making a Return, or for not making an Execution of their Warrant, or for not Executing the Justices warrant at any time in the Convey of Rogues, to the Bridewell, up­on 7 Iac. 4. 21 I [...]c. 28. But herein is [Page 134] no way of Conviction of Offenders, or of Levy of the penalty set down, and Caution to the Justices. therefore we cannot see any way to pu­nish these Officers herein with safety, out of the Sessions.

6. As to the poor man or Woman, A poor man that doth threa­ten to run away from his Fami­ly. that is able to work, and that shall threaten to run away, and leave his Family upon the charge of the Parish; in this case any two Justices of the Peace, upon proof hereof by the Oath of two witnesses, may send the Offender to the House of Correction, unlesse he or shee can put in sufficient Secu­rity House of Correcti­on. for the discharge of the Parish, up­on 7 Iac. 4.

7. As for such poor as have able bo­dies, Poor that will not work. and nothing but their work to live by, and do not work in any ordinary and daily Trade to get their livings by their work; And the Overseers of the poor do provide them work, and ap­point them to do it, and they will not work; It is said in this case, that the Justices, or any of them, may commit such persons to the Goal, or to the Bride-well: And so are the words of the Statute of 43 Eliz. 20. But we cannot see how this can be done out of the Sessions; For there is no way of Conviction of the offence. And this therefore must be necessarily implyed by the Act, that if they shall punish, [Page 135] they must first Convict the offender.

8. It hath been said, that such poor persons as begg beyond their license. Idle poor to be sent to Bride-well. Such poor as are able to work, and are idle, or will not work, by the appoint­ment of the Overseers of the poor; such common-Labourers, poor men, as refuse to work for the wages appointed, and some others, may be sent to Bride-well by the Justices of the Peace: But we cannot see by what Authority; one­ly this in the 7 Iac. 4. That if Con­stables shall neglect to convey safely all such Rogues, with all other idle and disorderly persons, &c. as by the Justi­ces of Peace his Warrant shall be sent to the houses of Correction, &c. That then they shall forfeit, &c. By which is implyed, that the Justices might and do send such persons thither. But this must refer to the cases in which they are by other Lawes empowred to send them thither. And howsoever it be, it is sure it cannot be safely done by any Justices of the Peace out of the publick Sessions. See 39 Eliz. 4. 7 Iac. 4.

9. As to the Warrants then in the Clerks Cabines, in Chap. 18. and some Caution. of the Mittimus, in Chap. 25. which are contrary to the Cautions we have herein given, we do now (upon better Consideration) utterly dislike them, and advise the Justices of the Peace not to use them.

SECT. 49. About Sewers.

SIx Justices of the Peace (two of them of the Quorum) have some power with the Commissioners of Sewers for a year. For which, see 13 Eliz. 9.

SECT. 50. About Sheriffs.

AS to this head, these things are to be known:

1. Any one Justice may punish the defaults of Sheriffs in not returning good Jurors to enquire of a Forcible Entry. Upon 8 H. 6. 9.

2. He may punish his defaults in the County Court, by entring a plaint in the name of a man not present, him­self, or his Atturney; or by not taking care that the Plaintiff in every Suit do put in his pledges; Or by entring more Plaints then one; or more then the Plaintiff doth desire for one and the same cause. Or where a proceeding [Page 137] is against a Defendant in a Suit, and he hath no warning to appear; In these cases, any one Justice may exa­mine the Sheriff, or any of his Officers. And if he find the thing by their con­fession, or otherwise, he is to certifie it into the Exchequer, the Sheriff doth for­feit 40 s. Upon 11 H. 7. 15. So one Justice may examine the Collectors of the Sheriff's Amercements of the Coun­ty-Court, if they have collected more then is due upon their Estreats. And if he find it so, he may certifie the offence against them into the Exchequer. 11 H. 7. 15.

3. There must be two Justices, and one of them of the Quorum, to over­look the Sheriff's Books and Amerce­ments, and to seal the Indentures of his Estreats, and to swear the Bayliff, that he shall levy no more then is con­tained in those Estreats. Upon 12 H. 7. 15.

4. Any two Justices (one of them be­ing of the Quorum) may give the Under-Sherift, his Bayliffs of Franchi­les, Deputies, and Clerks their Oaths, which they are to take, before they med­dle with their Office. Upon 27 Eliz. 12.

SECT. 51. About a Supplicavit.

1. THis Writ, the Justice to whom it is sent and given, must see that he do execute it.

2. He is thereupon to send his War­rant to the Constable, to bring the par­ty to be bound, before him, to put in Sureties according to the Writ; or if he refuse, to carry him to Goal. And if the sum be left to his discretion, it is fit for him to set down a good Sum.

3. After Sureties given, he is to grant a Supersedeas, to stop all other proceed­ings upon Warrants granted by him­self or other Justices, to the sanie end.

4. He need not certify the Recogni­sance till a Cerciorari come to require it.

SECT. 52. About Superstitious Reliques.

ANy one Justice of Peace where any Altars, Tables of Stone, Cruci­fixes, Crosses, Images, Pictures of any Person of the Trinity, or Saint, or like superstitious Reliques, are yet remain­ing, [Page 139] may upon Information to him gi­ven thereof, cause the same to be taken down. Upon Ord. May, 1644.

SECT. 53. About Swearing and Cursing.

AS to him that doth prosanely Swear or Curse, Any one Ju­stice of Peace, upon his own hearing thereof, the Confession of the patry, or Oath of one Witnesse, may send his Warrant to the Constable, to levy distresse and sale of goods, to the use of the poor, &c. the Forfei­tures appointed by the Act. Which is, if the offender be above 14 years old, and in degree, a Lord, or higher, 30 s. If a Baronet, or Knight, 20 s. If an Esquire, 10 s. If a Gentleman, 6 s. 8 d. If a common person, 3 s 4 d. And this for the first offence. And after one Conviction, for every offence afterwards twice as much. And in case no di­stresse can be had, nor Surety given to pay the money; Then to put the offen­der (for the first offence) in the Stocks three hours. And for every offence after the first Conviction, six hours. And if the offender be under 12 years old, then the Justice may send his War­rant to the Constable to see him whip­ped [Page 140] by the Father, or Master of the offender, in presence of the Constable: Or that the Constable do it himself. And of this Conviction, the Justice of Peace is to keep a Record, and to make Certificates quarterly to the Clerk of the Peace. Upon 22 June, 1650. But he that is by Jury in a Sessions (be­ing Indicted) found guilty of swearing the Tenth Oath (or ten times) once, is to be adjudged a common-Swearer, and to be bound to the good Behaviour, Good Be­haviour. with good Sureties, for three years, over and besides the Forfeitures aforesaid. Or the Justice of Peace may, if he will, after he hath taken the Convicti­on, send his Warrant to the Constable to apprehend the body of the offender, and bring him before him, to be pro­ceeded against as before. And there the Justice may perhaps perswade him to pay to the Constable the Forfeiture imposed. But if he will not do it, the Caution to Justices. Justice must let him go, and can do no more, but send his Warrant as be­fore.

SECT. 54. About a Testimonial, or Certificat.

AS to this, these things are to be known:

1. Any one Justice may give a Labourers. Testimonial under his hand and Seal, to Labourers, to go into another Coun­ty to work in the Harvest-time. Upon 5 Eliz. 4.

2. There must be two Justices to give a Testimonial to a Servant of his de­parting Servant. out of his Masters Service with his good will. Upon 5 Eliz. 4.

3. There must be three Justices to certifie under their hands and seals, the worth of the Parents or Children, to be taken in as Apprentices or Servants Appren­tices to Clothiers, or Merchants. Upon 5 Eliz. 4.

4. There must be two Justices of the Peace, and one of them of the Quorum, to certifie to the Sessions against an Ale-house-keeper, that he doth sell Ale without License. Upon Ale-house-keeper. 5 and 6 Ed. 6. 25.

[Page 142]5. One Justice may certifie deceive. able Deceive­able Cloth. Cloth. Upon 21 Iac. 18.

6. One Justice may joyn with a Customer, to certifie the unlading, and selling of Corn, and Cattle carried from one part of the Land to another. Upon 5 & 6 Ed. 6. 14.

7. One Justice may take and certifie Jesuit. into the Chancery, the submission, and Oath of a Jesuit, or Priest, given within three dayes of his landing in England. Upon 27 Eliz. 2.

8. One Justice near to the place where a Souldier or Mariner shall land, Mariner or Souldier. may give a Testimonial to him, shewing where he landed, whither he is to go, and in what time he is to go it. Upon 39 Eliz. 17.

9. One Justice may take and certifie the Examinations of a Dyer and his Servants about Logwood. Upon Logwood. 39 Eliz. 11.

10. One Justice may under his hand and seal, with the Constable or Mini­ster, give a Testimonial of the whipping of a Rogue, and limit the place whither Rogue. he is to go, and in what time he is to go it. Upon 39 Eliz. 4.

[Page 143]11. Recognisances and Examinations Recogni­sances. Examina­tions. taken before one Justice of Peace, may be certified by him alone unto the Ses­sions, Judges of the Goal-delivery, or Justices of the Sessions. But when they are taken before two or more Justices; there, a Certificate thereof by one of them is not sufficient.

See more, Cerciorari Sect. 21. of this chap. Forcible Entry, Sect. 18. of this chap. Felony. chap. 3. Sect. 16. Numb. 8.

SECT. 55. About Tythes.

AS to the power of the Justices of the Peace, to hear and determine mat­ters of Tythe, these things are to be known.

Any two Justices of the Peace, not be­ing Patron of the place wherein the Sub­straction is, nor parties, nor any way interested in the thing in question, may therein out of any Sessions, do these fol­lowing things.

1. They may send their Warrant of Summons to the Constable of the place where, &c. to call in the person com­plained of before them.

[Page 144]2. They may upon his default send a second Summons.

3. They may upon the parties se­cond default (the same summons being proved upon Oath) in the absence of the defendant, or in his presence, upon his Appearance, proceed by the Oaths of Witnesses, and other proofs on either side to hear and determine the matter in difference between the parties, And by writing under their hands and Seals, ad­judge the Case, and give reasonable costs and damages to either party, as they shall think fit.

4. They may also if they please give treble damages where the Statute doth allow it.

5. If the party do not within 30 dayes after he hath notice given to him of this Judgment given by the Justices of Peace, pay to the complaynant, the Tythes, or Money so adjudged according to the Judgment, then the same two Justices upon complaint made to them, may give and send their warrant to the Plaintiff, the Constable, or such other persons as the Plaintiff shall name, to distrain and sell the goods, and Chattels of the De­fendant to satisfy it, rendring the Over-plus.

[Page 145]6. If no distresse can be had to satisfy the Judgment, the same or any two Justi­ces may by their warrant, send the De­fendant to Goal without Bayl, till he do satisfy the debt upon the Judgment.

7. If the Officer or other person im­ployed about the Execution of this Warrant of the two Justices, they may fine them for it, any sum not exceeding 40 s. to the use of the poor of the place where, &c. And send their warrant to whom they please to levy the Fine, to le­vy it of his goods and Chattels, upon Ord. 8. November 1644, 9th August, 1647. 20th October 1648. But in this work the Justices must take care of these four things. 1. That the Plain­tiff Caution to Justices. have a good Title to the thing in demand. 2. That the Defendant be a Parishioner. 3. That the thing de­manded be a modus Decimandi, or a Tythe paid two years before the wars, 4. That the proceedings be in every particular, according to the directions given by the Ordinance.

SECT. 56. About Titles of Honour Assumed.

IF any by writing or otherwise, do voluntarily, and knowingly give to any person any Title of Honour, or Dignity given to him by the late King, since January 4th, 1641; In this case ony one Justice of Peace, upon the Confession hereof by the party, or Oath of one witnesse, may send his Warrant to the Constable of the place where, &c. to levy by way of distresse and sale of goods, rendring, &c. the 10 s. Forfeiture named in the Act. And if there be no distresse, to put him in the Stocks for three hours. Febr. 4th, 1641.

SECT. 57. About Transportation.

IF any load a ship, or carry away in any Ship or Vessel, with intent to transport any Wool, Yarn, Woollen Flox, Wooll-Fell, Fullers-Earth, Clay, Fullers Earth. Tobacco-pipe-Clay, or any other Earth or Clay, which may be used in the [Page 147] Art of Fulling beyond Sea, and the owner of the ground where it is dig­ged, do by a note under his hand, ofter to discover it to any one Justice of Peace; This Justice must receive it, and within three moneths a [...]ter the dis­covery Certificate. thereof, make it known by his Certificate under his hand and seal to the Batons of the Exchequer. 9. Jan. 1647.

SECT. 58. About a Trespasse in Orchards, Woods, &c.

AS to him that shall cut, or carry away standing corn, rob Orchards or Gardens of Fruit, &c. break hedges, or do any such like thing, that is not Felony; In this case any one Justice of Peace, upon the confession of the offence by the party, or proof thereof by the Oath of one witnesse, may order the offender to give the party wronged such satisfaction as the Justice shall think fit. Or if he judge him unable to make any satisfaction by money; or however, in case of a second offence, the Justice may send his Warrant to the Constable to whip him. And if the Constable [Page 148] neglect to do his duty upon this War­rant, the Justice may send him to Goal till he procure the party to be whipt. according to the Justice of Peace his Warrant, 43 Eliz. 7. But there is no way nor power given to the Justice to convict the Constable of this neglect. And therefore this punishment may not be inflicted but in a Sessions-way. If the Justices have power of it there. Wherefore otherwise they may fine him, or bind him to the good Beha­viour for his contempt, as an offence at the Common-Law. Some say also, that for a common-hedg-breaker, wood­stealer, or robber of Orchards, That he may be sent to the House of Cor­rection, Bridewell. which is more then we dare affirm. But this is certain, That if it be done, it must be done by order of the Justices of the Peace in and not out of the Sessions.

SECT. 59. About warrants made by the Justices.

AS to the Warrants the Justices of Peace are to make, these things are to he heeded:

[Page 149]1. It is safe for the Justice to make all his Warrants in writing.

2. To see they be perfectly done when the Justice doth Subscribe them. And not to leave them with blanks, to be filled up afterwards by others.

3. In all cases his hand must be subscribed; and in some cases his Seal is necessary. And therefore it is best in all cases to put his hand, and affix his seal to it.

4. For the manner of penning it; He may (if he will) put the style of it in the Lord Protector's Name, thus; Glouc. ff. Oliver, Lord, &c. Or he may send it in his own Name, A. B. Esquire, one of the Justices, &c. Or without any style at all (thus); Com­plaint being made to me, &c. These are to require you, &c. And it may be with, or without, a Tesle. But it is Teste, not amisse to say, Witnesse my hand and seal, &c. And a certain Date of the Date, day, moneth, and year, may not be omitted. See in the Clerks Cabinet, and in the 30th Chapter of my first Book of the Justice of Peace his Office, more of this.

5. The Justice is to take care hi Warrant be penned plainly and clear [Page 150] ly, that the Officer that is to execute it, may understand, and to declare am­biguous words in it. Such as this, That you cause to come before me: for by this he may not understand, whether he may fummon him to come, or bring him prisoner. And therefore to say rather, That you warn or summon bin to come, or be, before me, &c.

6. If the Warrant be to be grounded on a Statute-Law, the more care must be had in it, exactly to pu [...]sue the di­rections of the Statute therein. And where the Statute saith, It shall be un­der the hand and seal of the Justice; or to the Constables and Church-War­dens, accordingly to pen it.

7. If a Warrant be made by a Ju­stice, to apprehend a man, and bring him before this, or some other Justice of the Peace, it is safe to set down in the Warrant the cause of it, as that it is to put in Sureties of the Peace, or for the good Behaviour, or because he is charged with a Felony, or the like, And to be sure, the cause will bear such a Warrant. And therefore we cannot approve (at any hand) the usual War­rant to attach or apprehend men, and bring them before a Justice of Peace; and say no more, but for misdemeanor onely; or to answer to such matters as shall be objected against him. See [Page 151] for this, Coo. 2. Part of Inst. 59 [...].

8. Where by a Statute-Law, power is given to a Justice or Justices of the Caution. Peace, to commit to prison, Bride-weil, or the like, in case of lack of distresse, or insufficiency, or the like, whereby to levy the forfeiture, There the best way for the Justices, is to do it by one Warrant thus, and therein pursue the words of the Warrant thus; That you levy of the goods, &c. And in case you can find no distresse, [or for lack of distresse] or that the party be insuffi­cient, &c. That then you carry him to Goal for three dayes; Or that you whip him, &c. [as the case is] accord­ing to the Statute in that case provided. Rather then to take upon him to know his insufficiency, or lack of distresse. And thereupon to send a second War­rant absolutely to do it.

9. Where any of the Presidents in the Clarks Cabinet do differ from the things we have laid down in this Work, our advice is, that you do not follow them.

SECT. 60. About Watch and Ward.

ANy one Justice of Peace may cause Watches to be set from Sun to Sun, between Aseension and Mi­chaelmas-day. But it is handsome to do this by two or more Justices of the Peace, at a Meeting of Justices. And if neglect be found in them that Watch, or look to the Watch, one Justice alone may punish it, perhaps by binding to the good Behaviour; or Good Be­haviour. (which is more safe) he may cause him to be Indicted at the Sessions for it.

SECT. 61. About Weights and Measures.

AS to him that shall buy, or sell by, or keep, any other Weight or Measure, whereby any thing is bought or sold then accord­ing to the Standard of the Exchequer; [Page 153] In this case any one Justice of Peace may upon the proof hereof by the oath of one witnesse, convict him, and then may send his Warrant to the Church-Wardens and Overseers of the place where, &c. or one of them, to give them notice hereof, who by their Offices are to levy of him 5 s. to the use of the Poor of the place where, &c. by distresse and sale of goods, rendring, &c. And if there be no distresse, the Act is, to send the offender to Goal, till he pay the Forseiture. But it doth not give power to the Justice to do it; and yet it is conceived to be good. But see Chap. 7. Sect. 6. 16. and 17. Car. 19.

Two Justices of the Peace (one of them of the Quorum) may by exami­nation and enquiry, hear and deter­mine the desaults of Head-Officers, and Buyers and Sellers in Market-Towns, Cities, and Burroughs, that have not common Ballances and Mea­sures according to the Exchequer, and those sealed; Or that buy and sell with any other. And that have not their Weights and Measures viewed every car. 11 H. 7. 4. But this (we Caveat to Justices. conceive) cannot be done, but by the holding of a Speciall Sessions by two Justices for this purpose.

SECT. 62. About a Wood.

TWo Justices of the Peace, ap­pointed by the Sessions of Ju­stices, may divide a Wood be­tween the Lord and his Com­moners, where they cannot agree, 35 H. 8. 17.

We have done with what we have to say of the Justices of Peace their power out of the Sessions. And now one word to what they may do within their Sessions.

SECT. 1.

THe Order and manner of pro­ceeding against offenders for the punishment of the offences we have spoken of, is either within, or without the Sessions. The Course of the Justices of the Peace in the Ses­sions, is to enquire by Jury, and to take their Presentment, or to receive Indictments, and (in some cases) Infor­mations preferred by others. And thereupon to grant out process against the offenders, to come in and answer the matter whereof they are accused. And upon theie appearance, if they do not consesse the offence, to take and en­ter their Traverse, charge a Jury with the matter of Fact. And if the Jury find them guilty thereof, the Justices do give Judgment (as the case deserves) of Fine, Imprisonment, or Amercement, or otherwise; And Execution is done [Page 175] thereupon accordingly. And so an offender there becomes attaint or con­vict of his offence, either by his con­fession of it, when he is to plead to it upon the Indictment, Presentment, or Information; or when upon his Tra­verse to it, the same is referred to a Jury, to try whether he Be guilty or not, And the Jury doth find him Guilty. And this is the common way of Tryall. But there are in some spe­cial cases, other wayes of Tryall there, by Certificate, Examination of the of­fenders and witnesses; but this is very rarely used. The Statute-Lawes, Acts and Ordinances of Parliament where­with the Justices of the Peace have to do, are many; And those (especially as to the point of Conviction of offen­ders, and the execution thereupon) they are variously penned; Not three of threescore of them do agree therein, but are of severall forms of drawing in that part.

For, 1. As to the persons that are to do the work, Some of them say, That the Justices of the Peace of the County may do it. Some, That all the Justices may do it. Some, That any of the Justices may do it. Some, That any one of the Justices may do it. Some direct, That the thing must be done by one, some by two, some by more Ju­stices. And some, That one of them that do it must be of the Quorum.

2. As to the place where they are to do it. Some of the Lawes say, That it shall be done by the Justices, and do not say where is shall be done. Others say, It shall be done in the Quarter-Ses­sion. Others, in the General Sessions. Others, in the open Sessions, or in the publike Sessions. Others, in the Ge­neral or Quarter-Sessions, Others, in the ordinary Sessions. Others, at the usual and General Sessions. And others say, in the Sessions. Others, in any Sessions of the Peace, &c.

3. As to the words by which the Ju­stices are empowered; Some Statutes, &c. give to the Justices power and au­thority by these expresse words, That they shall have power. Others are, That they shall do it. Others, That they may do it. Others, That it may be done before or by them. Others thus, Such a thing to be done by the Justices of the Peace, and the like.

4. So for the manner of the doing of it: 1. For the Conviction of the offender of his offence; Some Statutes, &c. set down a penalty, and say, That the Justices shall hear and end it; and do not say, how. Others say, That the Conviction shall be by the Oath of witnesses; some, by one; some by more witnesses. Some, by the hearing, view or sight of Justice of Peace. Some, by the Consession of the offen­der. Some, by the proof (not saying, [Page 177] upon Oath) of Witnesse, or Witnesses. Some, by Information. Some, by Exa­mination: And some, by Certificate. Some, by any one; some, by two or three of these wayes. And some give power to administer the Oath; and some give no power to administer the Oath. 2. And so for Execution; Some direct somewhat to be done, and say not who shall do it. Some of them direct the Justice of Peace to make a Warrant, and say not what Warrant; whether in writing, or under hand or seal; or to whom it shall be directed. Some are appointed to be sent to the Constables; some, to the Church-war­dens: some, to Overseers of the Poor; and some, to two sorts of them. Some appoint the Warrant to be in writing, and under the hand and seal of the Ju­stice of the Peace.

5. And so for the matter or thing to be done; Some to hear and determine in the offence; some, to punish the offender: some are to put the Statute in execution. Others, to punish offenders against that Law. Some give a power to commit the offender to the Goal; some, to the Bride-well; some, to di­strain his goods, &c. Some are to con­vict the offender, and then to proceed to execution. Others are, That the Ju­stices shall convict the offender, and then certifie this Conviction to some other Court, &c.

We shall lay down divers examples of these things. And then give our opinion upon them, by way of Question and An­swer.

SECT. 2.

1. Some of the Statutes, &c. we speak of seem to give to the Ju­stices of the Peace a power to do some­thing onely, or cheifly in the Sessions of the Peace. And some again seem to give them a power to do somewhat with out the Sessions of the Peace. And some again seem to give them a power to do something within and without the Sessions, as they please to do it. And some seem to give a Power to do the work, part of it without, and part of it within the Sessions.

2. Some Statutes, Acts, and Ordi­nances of Parliament are penned, as to the Conviction of Offenders, to this To hear and De­termine. Horses. Sheriffs. High waies and Brid­ges. Fish. Victuallers Guns. Perjury. Navy. Lords-day. Forcible Entry. Captains. Prophecies Hunting. Gold and Silver. Blasphe­my. Wandring Souldiers and Mari­ners. purpose. That the Justices of the Peace shall have power to hear and de­termine the offences, So is 2 and 3 Ph. and M. 7. 31 Eliz. 12. 32 H. 8. 13. of Horses, 27 Eliz. 7. 12. Of Sheriffs, 12 March, 1649. of Butter, 18 Eliz. 12. of High-wayes, 22 H. 8. 5. Of Bridges, 1 Eliz. 17. of Fish, 2 and 3 Ed. 6. 15. of Victuallers, 33 H. 8, 6. [Page 179] of Guns, 5 Eliz. 9. of Perjury, 8 Eliz. 5. of the Navy, 17 Septemb. 1656, of the Lords Day, 8 H. 6. 7. of Forci­ble Entry, 2 and 3 Ed 6. 2. of Cap­tains, 5 Eliz. 15. of Prophecies, 5 Eliz. 21. 3 Jac. 13. of Hunting, 23 of Eliz. 10. of Hawking, 8 H. 5. 3. of Gold, 2 H. 6. 14. of Silver, 9 Au­gust, 1650. of Blasphemy, 39 Eliz. 17. of wandring Souldiers, and Mariners. All these and some others do run to this purpose. And yet the greatest part, if not all of these do differ a­mongst themselves the one from the o­ther, some of them give power to the Justices of the Peace, to enquire, hear, and determine. Others to examine, enquire, hear, and determine; others to examine, and determine: And some of them are (onely) to hear and deter­mine. Some of these also are to hear and determine in the Quarter-Sessions, others in the generall Sessions. Others in the Sessions. Others to hear and determine the offences. But doth not say where. And in some of them there are Additions of other things. Some give them power to hear and determine by Bill Plaint. &c. and some by one way and some by another way, and some by no way at all. Some of them do add that the Justices shall grant out process. Others that they shall fine. Others that they shall do execution thereupon, ac­cording to the Law, and the like.

[Page 180]3. Others there are that are penned in other words, but much to the same purpose. As for example.

One is penned to this purpose. That the Justices of the Peace in their Sessi­ons, Adultery. shall have power to give in charge to a Jewry to enquire, and shall enquire by the verdict of twelve men of all the said offences, &c. And upon Endite­ment, or presentment, to hear, and de­termine, as in other cases of Felony, or Trespasse, So 10th May, 1650, of Adultery.

4. Others to this purpose. That a Presentment taken before a Steward of a Leet, shal be sent to the Justices in Horses. their Sessions. And then that they shall proceed to hear and determine it, as if it were taken by themselves. So 32 H. 8. 13. of Horses. 1 Ed. 4. 21. of Sheriffs. Sherifts.

5. Another is to this purpose. That the Justices of the Peace shall examine, hear, and determine the defaults of &c. and punish the offenders by imprison­ment, according to their discretion. So 28 H. 8. 14. of Wines. Wines.

6. Others are with reference to o­ther Statutes, &c. That they shall have like power to punish these offences, as they have to [...]unish the offences against [Page 181] another Statute, or another clause of the same Statute, So 3 H. 7 7. 17 Ed. 4. 4. May 10. 1650.

7. Others are with reference to o­ther offences, to this purpose: That the offender shall suffer [or be punished] in this case, the Justices of the peace as other Felons [or other Felonies] are punished by the Law. So 39 Eliz. 17. 8 Eliz. 3. 2 and 3 Ph. and M. 4. 21 H. 8. 7. 1 Iac. 31.

8. Another is to this purpose. That these Offences shall be diligently enqui­red of, and presented before them in their Ordinary Quarter-Sessions. And that Drunken­nesse. thereupon there shall be such due pro­ceeding, as in such like cases, upon an Indictment, or Presentment, is used by the Laws, &c. So 4 Iac. 5. of Drunk­ennesse.

9. Another to this purpose. That the Justices of the Peace shall enquire thereof, and determine the same as well by examination, as by presentment. So Coroners. 1. H. 8. 7. of Coroners.

10. Others thus. That the Justices of the peace shall enquire thereof at their Quarter-Sessions, and assesse such Fines upon the Offenders, as they shall High-wayes. think meet. So 2 and 3 Ph. and M. 8. and 5 E [...]z. 13. of High-wayes.

[Page 182]11. Another thus; That the Justices of the Peace in their Sessions, shall en­quire as well by their office, as by the Information of others of all Trespasses, Misprisions, and defaults made against Fi [...]. any of the points of this Statute, and cause them that be thereof Indicted to come before them, and if they be there­of convict, they shall have Imprison­ment, and make Fine according to the discretion of the same Justices. So 17 R. 2. of Fish.

12. Another thus. That the Justices of the Peace shall have power to en­quire, hear, and determine of all the defaults, &c. by presentment had be­fore Coroners. them at their Sessions, without any more words. So 12 Ed. 4, 9. of Coro­ners.

13. Another to this purpose. That the Justices of the Peace shall enquire by the Oath of 12 men, as also by in­formation of any of the Kings Subjects, and make such like processe upon every Sheep. presentment, and Information, as they use to do upon every Presentment of Trespasse before them. So 25 H. 8. 13. Of Sheep.

14 Others to this purpose. That the [...]ustices of the Peace shall enquire [or shall enquire by Jewry] of all the [Page 183] offences within the Statute. [without Forcible-Entry. Horses. more words.] So 8 H. 6. 9. of Forci­ble Entry. 1 Ed. 6. 5. Of Horses.

15. Another to this purpose, that the Justices of the Peace in their Sessions shall charge them that appear before them, duly to enqui [...]e, and put in exe­cution the effect of the premises in due time, so that this Act may be fully exe­cuted. Crows. So 24 H. 8. 10. of Crows.

16. Another thus. That the Justices of the Peace shall have power to enquire of the said defaults, as well at the suit of the King, as of the parties. So 8 H. Yarn. 6. 5. of Yarn.

17. Another thus, That the Justices of the Peace in their Sessions, shall en­qui [...]e by the oath of twelve men, of these offences. And that their present­ment shall be of the same force, as Wines. theirs in the Kings Bench are; And the Forfeitures found by the Verdict afore­said, shall be divided, &c. so 7 Ed. 6. 5. of Wines.

18. Another to this purpose. That the Justices of the Peace at their Quar­ter-Sessions shall have power to indict and try the Offenders by the usual course of Indictments, and Tryalls in like cases. And after such Conviction, Log-wood. to adj [...]dge the O [...]ender to be set openly [Page 184] on the Pillory, So 39 Eliz. 11. about Log-wood.

19. Another to this purpose. That the Justices of the peace in their Sessi­ons, shall call before them any suspect­ed persons, and to their discretion exa­mine them in the Premises, and if they find any default in them, then that they be committed to prison till they find Sureties to pay the Forfei­tures set down, &c. So 19. H. 7. 11. of Deer. Deer.

20. Another thus: That he that shall so offend, shall be grievously pu­nished, according to the Justices of the Peace's discretion. And that they shall judge the offender to the same bodily punishment as the Offence re­quireth, Labourers. and shall do execution thereof, So in 13 R. 2. 8. Of Labourers.

21. Another thus: That the Justi­ces of the Peace shall set down such Fines and Penalties upon the Offenders against that Law, as the most part of them in their Quarter-Sessions, shall think fit, &c. So in 7 Iac. 4.

22. Another thus; That for the offence, the offender shall suffer such further penalty, as by the more part of the Justices shall be thought fit, not ex­ceeding [Page 185] 40 s. for every offence. So in 7 Iac. 4.

23. Another to this purpose: Upon Hawks Eggs. pain of 10 l. the one half thereof to the party that will sue for the same by Action of debt, by Examination before the Justices of the Peace, Information or otherwise, and the other half to the King. So in 11 H. 7. 17. of Hawks eggs.

SECT. 3.

THere are another sort of them that seem to give power to the Justices to do something within, or without; or within and without the Sessions incer­tainly. As for Examples:

1. One of them is penned to this purpose; That the Justices shall en­quire, Pheasants. hear, and determine all offences against that Law. And in case it be not so punished, That any one Justice may at his discretion examine all per­sons suspect to offend, and bind them over. So 23 Eliz. 10. of Pheasants.

2. Another thus; That the Justices of the Peace shall enquire of all the Tanners. premisses in their Sessions, and hear, o [...] (in the disjunctive) determine the [Page 186] same. And also by their discretion examine all persons suspected to offend against that Law. So 1 Iac. 22. Of Tanners.

3. Another thus; That the Justices Til [...] of the Peace shall enquire, hear, and determine by their discretion, as well by Examination or otherwise, of the offences, &c. And if it appear to them by Examination or otherwise, by their discretion, that any person hath offended against that Law, that then they shall assesse no lesse Fine, &c. for every offence. So 17 Ed. 4. 4. of Tile. 32 H. 8. 13. of Horses. Horses.

4. Another thus; That the Justices Mault. of the Peace shall enquire, hear, and determine as well by the Presentment of 12 men, as by Accusation or Infor­mation of two honest witnesses of, for, and upon the same offences. So 2 and 3 Ed. 6. 10. of Mault.

5. Another thus; That the Justices Transpor­tation. of the Peace shall enquire as well by the Oath of 12 men; as also to hear and examine the Masters and Mariners of the Ship, and to hear and determine the same offences, as they may and ought to hear and determine other offences. So 1 & 2 Ph. & M. 5. of Transportation.

6. Another is to this purpose; That [...]orestal­ling. the Justices of the Peace shall enquire, [Page 187] hear, and determine at their Quarter-Sessions all offences, &c. by Inquisition, Bill, Presentment, or Information be­fore them, and by examination of two lawfull witnesses, or by any of these wayes or means, according to their dis­cretion. So 5 and 6 Ed. 6. of Fore­stalling, &c.

7. Another thus; That the Justices Weights. of the Peace shall by examination or enquiry, hear and determine the de­saults, &c. and set Fine according to their discretion. So 11 H. 7. 4. of Weights.

8. Another thus; That all the Justi­ces Pheasants. of the Peace in their general Quar­ter-Sessions, and any two of them toge­ther out of any Sessions, shall examin [...], hear, punish, and determine the offences, &c. and to administer Oaths, and to perform every thing requisite for the due execution of that Law. So in 1 Iac. 27. of Pheasants.

9. Another to this purpose; That all the Fors [...]itures that shall grow by the Conviction of any person within the Statute, shall be levied by Warran [...] under the hands and seals of two Justices by distresse and sale of the offenders goods. And that if any of the said offences shall be confessed by the offen­der; or that the same shall be proved. Rogues. [Page 188] by two sufficient witnesses (not saying, upon Oath) before two Justices of the Peace, that then such person shall forth­with stand convicted in Law thereof And that any two Justices of the Peace, &c. shall have power to hear and determine all causes that shall come and grow in question upon this Act. So 39 Eliz. 4. of Such as [...]ve at high Rates. Vagabonds.

10. Another to this purpose; That the Justices shall send for the offender, and require Sureties of him for the good Behaviour, and to appear at the Sessions; or if he refuse to give it, send him to Goal. And that at the Sessions be shall be indicted; upon which In­dictment, if he be legally convict of the offence, that he shall be sent to the House of Correction. So 17 Septemb. 1656. Of them that live at High Rates. Clothes.

11. Another is to this purpose; That every Justice of Peace of the County shall have power to hear and determine the Complaints of them that are wrong­ed, &c. by due examination of the par­ties, &c. And to commit the said offenders to the next Goal, there to re­main till damages be paid, &c. And that every of the said Justices, upon complaint of any other, may cause the party complained of, to come before him, and to examine him upon it. And if thereby, or by other due proof he be [Page 189] found defective, that then he shall for­feit, &c. So 4 Ed. 4. 1. Of clothes.

12. Another to this purpose; That Yarn. the Justices of the Peace shall have pow­er to enquire of the said defaults as well at the Suit of the King, as of the party. And that they shall examine the Tres­passo [...]s, and enquire and do execution upon them that be sound faulty by In­quest or Examination to be made by the Judges, &c. So 8 H. 6. 5. Of Yarn.

13. Another to this purpose; That if the said offence shall be confessed by Clothiers, the offender, or proved by two lawfull witnesses before the Justices of the Peace in their Sessions; Or before any two Justices of the Peace: That then such person of such offence shall be convict, and the Forfeiture shall be levied by distresse and sale of goods, by Warrant from the two Justices of the Peace be­fore whom the Conviction shall be. So 1 Iac. 6. Of clothiers.

14. Another to this purpose; That Tokens. the offender being convict by examina­tion of witnesses, or confession, taken before the Justices of the Peace in their general Sessions, shall suffer any corporal punishment (but death) they shall appoint. And that two Justices of the Peace (one of them being of the Quorum) may to the Sessions call by process, or otherwise, the persons sus­spect, [Page 190] or commit him to Ward, or let him to bayl till the next Assizes or Ge­neral Sessions, there to be examined, and further ordered as aforesaid. So 33 H. 8. 1. Of Tokens.

15. Another is to this purpose; That the Justices of the Peace, upon com­plaint Sheriffs. to them, shall examine the suspect offender, and his Servants: And if upon examination they shall find him faulty, That then he shall be convict and attaint of the same offence, with­out further Inquisition or examination. And he shall forfeit, &c. And that the Justices shall certifie this Forfeiture into the Exchequer. So in 11. H. 7. 15. Of sheriffs.

16. Another to this purpose; That the Justices of the Peace dividing them­selves Servants. into several limits, shall by all such wayes and means [...] to their wis­domes shall be thought must meet, make a speciall and diligent enquiry of the Articles of that Statute, and the exe­cution thereof, and where they shall find defaults, severely punish it. So in [...] Eliz. 4. of Servants. Wherein there is also a general [...]ower of Oyer and Terminer to the Justices of the Peace.

17. That the Justices and every of them may examine, hear, and deter­mine all Complaints and offences that [Page 191] shall be done against that Law; and according to their discretion punish such as shall offend, &c. So 2. and 3 Ph. and M. 16.

18. Another to this purpose; That Captains and Soul­diers. the offender upon due proof of the offence by the Justices of the Peace, shall suffer, &c. So in 2 & 3 Ed. 6. Of Captains and Souldiers.

SECT. 4.

THere are another sort of them, and they seem to give to the Justices of Peace a power to do something onely, or especially, out of the Sessions of the Peace. As for Examples; 1. One of them is p [...]nned to this purpose:

1. If any Justice of Peace of &c. up­on Lords-Day. his or their view, or confession of the party, or proof of any one or more witnesses by Oath, (which the said Ju­stice may administer) shall find any person offending in the premisses, the said Justice shall give Warrant under [...] hand and seal to the Constables or Church-wardens of the place where &c. to levy the said Forfeiture by way of distresse, &c. rendring the overplus. And for lack of distresse, That the party offending shall be set in the [Page 192] stocks three hours. See 6th of April, 1644. and 1 Car. 1. Of the Lords Day. 19th April, 1650. Of the Lords Day.

2. Another to this purpose; That if Swearing. any shall offend, &c. in the presence or hearing of any Justice of Peace where the same offence shall be committed, or shall be thereof convicted by the Con­fession of the party, or by the Oath of one Witnesse, before any Justice of Peace, (which Oath he shall admini­ster) that he shall forfeit, &c. And that all and every the said Forfeitures shall be levied of the Goods and Cat­tle of every person so offending, by War­rant from such Justice of Peace by di­stresse and sale thereof, restoring, &c. and in default of payment thereof, or security given for it, if no distresse be found, the offender if above 12 years, shall by Warrant from such Justices of Peace be set in the stocks for three hours. If above 12 years old, then that the Justice of Peace shall give his Warrant to the Constable to whip him. So Act. 1650. Of Swearing.

3. Another to this purpose, That the offender shall forfeit, &c. being Stage-Players. convicted thereof by his own Confession, or proof of any one witnesse upon oath before any one Justice of Peace, (which he shall administer) to be levied by [Page 193] the Constables or Church-wardens of the Parish where, &c. by Warrant of the Justice of the Peace, by distresse and sale, &c. See Old. 11th Febr. 1647. Of Stage-Players.

4. Another branch of the same Law Stage-Playes. is to this purpose; That all such offen­ders as upon view of two Justices of the Peace, or any of them. Or by the Oath of two witnesses, (which they may administer) shall be proved before any two of them to have offended, &c. that they by their Warrant under their hands and seals, shall cause them to be apprehended, and openly whipt in a Market-Town, 11th Febr. 1647. Of Stage-Playes.

5. Another branch of the same Law is to this purpose; That he that offends Lords-Day. shall forfeit, &c. The said offence be­ing done in view of any Justice of Peace, &c. or being proved upon Oath by two or more witnesses, or by the Confession of the party offending be­fore any such Justice of Peace, (which they may administer). All which penal­ties shall be levied by any Constable or Church warden, by Warrant from any such Justice of Peace by distresse and sale, &c. So 3 Car. 1. Of the Lords Day.

6. Another to this purpose; That Excise, [Page 194] the offender upon due proof thereof made by the Oath of two or more wit­nesses before any Justice of the Peace of, &c. shall forfeit, &c. To be levied by distresse, &c. And that all Justices of the Peace of the, &c. are hereby required and authorized to put this Clause in Execution, and the said pe­nalties and forfeitures to cause to be paid to the Sub-Commissioners of Excise. Act. 14. August, 1649. Of the Ex­cise. Another after the same manner, the offence being proved by the confes­sion of the party, and proof by the oath Titles of Honour. of one or more witnesses, before one or more Justices of the Peace. Which said Justice and Justices are hereby authori­zed and required to cause the same to be paid accordingly; and in case of Refusal, to levy by distresse, &c. And for want of distresse, to cause the said offender to be set in the publike stocks for three hours. So 4th of April, 1651. Of Titles of Honour.

7. Another to this purpose; That the offender shall forfeit 10 5. the same Ale-hou­ses. offence being seen and viewed by a Ju­stice of Peace, &c. or proved by the Oath of two witnesses before any such Justice of Peace (which he may admi­nister). And that all the said penalties be levied by the Constables or Church-wardens of the place by Warrant from one Justice of the Peace of the County, &c. [Page 193] by way of distresse to be taken and de­tained for the Forfeiture; And for de­fault of satisfaction within six dayes af­ter the distresse taken, the same to be presently apprised and sold, and the sur­plusage to be delivered, &c. And for want of such sufficient distresse, the party offending, to be by the said Justice committed to the Common Goal, there to abide till the penalty be paid. So 1 Iac. 9. 21 Iac. 7. Of Ale-houses.

8. Another to this purpose; That Drunken­nesse. the offender shall forfeit, &c. to be le­vied by way of distresse, by any per­son or persons, having Warrant from any Justice of Peace, or Court, where any such Conviction shall be. So 4 Iac. 4. Of Drunkennesse. And af­ter by 21 Iac. it is added, thus; That proof of one witnesse shall be enough-And that any one Justice of Peace shall have power upon his own view, Con­fession of the party, or proof of one witnesse upon Oath, (which he shall have power to administer) to convict any offender.

9. Another to this purpose; That any two Justices of the Peace may Cloth. grant their Warrant to call before them Witnesses, and to examine them upon Oath. And if it be found by the oath of two witnesses, or Confession of the party offending, that he hath done it, [Page 196] that he shall remain convict of it. And the Justices may certifie it under their hands and seals unto the Church-War­dens and Overseers of the Poor of the place where, &c. And that then imme­diately after the said Certificate shall be so delivered to such Church-war­dens; &c. and Warrant by them made to the said Overseers and Church-Wardens for the levying of the said Forfeiture, it shall be lawfull for them to levy the same by distresse, &c. And for lack of such distresse, it shall be lawfull for the said two Justi­ces of Peace to commit the offender to the Common Goal without bayl, till payment be made of the Forfeiture to the Church-Wardens, &c. 21 Iac. 18. Of cloath.

10. Another is to this purpose; Af­ter Ale-hou­ses. a good power given to convict of one offence, and to levy the Forfeiture for the same; That for another offence it being duly proved in manner as is before limited; To be levied in such manner as is before appointed by this Statute. So 1 Jac. 9. 4. Jac. 4 & 5. Of Ale-houses.

11. Another thus; That any Justice Logwood. or Justices of the Peace, &c. may cause the Servants or Workmen of the offender to come before him o [...] them; and them to examine by oath, [Page 197] or otherwise. And if upon Examina­tion, they find the thing to be so, That then they may bind them and the Witnesses over, and certifie the Exa­minations to the next Sessions; or if they refuse to be bound, send them to Goal. So 39 Eliz. 11. Of Log-wood.

12. Another to this purpose; That they that shall offend, and the offence be proved by the Consession of the Pheasants. party, or oath of one witnesse be­fore two Justices of the Peace, That he shall be by the said Justices sent to Goal without bayl, for three moneths, unlesse he forthwith pay the Forfeiture to the Church-Wardens, &c. So 7 Jac. 10. Of Pheasants, &c.

SECT. 5.

THere are other Statutes, Acts, and Ordinances, that as to this point of the giving power to the Justices of the Peace about the Conviction of offenders, and doing of execution upon them, are more doubtfully penned, some appointing a thing to be done, and not giving power to any body to do it, or not saying by whom it shall be done.

1. One of them is to this purpose. That upon complaint, and proof made, &c. before any one or more of the Ju­stices Blasph [...]my of the Peace, by the Oath of two or more Witnesses, (which he or they may administer) or Confession of the Offender, the same confessing, or con­victed party, shall be committed to pri­son, or house of Correction for a Month. [And it doth not say by whom he shall be committed.] So in 9 August. 1650. Of Blasphemy. To the same purpose is another: That the offender shall forfeit; &c. And that it shall be levi­ed, &c. and if he be not able to pay it, [...]le-houses then (saith the Act) he is to be com­mitted to the Stocks; [and saith not by whom] So in 4 Iac. 5. Of Ale-houses. To the same purpose is ano­ther. [Page 199] That the Offender shall forfeit, &c. To be levied, &c. and for lack of Lords day. distresse, or not payment thereof made, the offender to be committed to the house of Correction, for three Months or untill he make payment thereof, So is it in 17 Septemb. 1657. of the Lords Day. To this purpose is also 19 H. 7. Buckstalls. 11. of Buckstalls, and 39 Eliz. 11. a­bout Cloath. And the Acts of 1 Iac. 1. and 6th of Aprill, 1644. of the Cloath. Lords day. Lords Day, are in this part, and as to this point very incertainly penned.

2. Others set forth how the offender shall be punished, and how execution of the penalty shall be made and done. But doth not say how the offender shall High-wayes. be convicted of his offence before the Justices of the Peace. And of this sort we have one to this purpose. That the Surveyors of the High-wayes shall levy the Forfeitures, and if they levy it not by such a time that then the Con­stables shall levy it. So 18. Eliz. 10. of Highwayes. So to the like purpose is it by another. That appointeth For­feitures upon Overseers of the Poor, for neglect of their office: And that their Successours by Warrant of two Ju­stices of the Peace, by distresse and sale of their goods shall levy: But there is no way set down by the Act, how they may be convicted of their offence. So in 43 Eliz 2. And so is the Act of [Page 200] 9th of F [...]r. 1647. For the neglect of the Church-wardens in their Office, and Church-Wardens. of the Parish by not choice of Church-wardens, and of the Parishioners by not payment of their Rates, there are seve­rall Rates not paid. Forteitures appointed for these se­verall offences. And it is said in them. That it shall be lawfull for the present, and subsequent Church-wardens by Warrant under the hands and Seals of two Justices of the Peace, to levy the same by distresse and sale of the Offen­ders goods, &c. and for lack of distresse, to send him to Goal, till payment. And to the same purpose is a part of 19th April, 1650, About the Lords Day. So Lords day. is 3 car. 3. about the Ale-house-kee­pers, as to the Officers penalty. And so was 4 Iac. 5. about drunkennesse, untill it was supplied by 21 Iac. 7.

3. Others they set down how the of­fender shall be convicted of his offence. But they say not how execution shall be done. For this, one of them is to this purpose, That any one Justice of Peace upon complaint, &c. may cause the par­ty acensed to come before him, and ex­amine him therein. And if by the same, and other due proof, he find him guilty, that he shall forfeit so much, &c. Cloath. So in 4 El. 4. 1. of Cloath. Another thus, That upon due proof of such an offence before any Justice of Peace, the offender shall forfeit, &c. [and no words [Page 201] how it shall be levied]. So in two or Captains and Soul­diers. three Ed. 6. Of Captains.

4. Others are so penned, that they do not give a clear power to the Justices either to convict the offender of the of­fence, or to do execution of the penalty, or pain to be inflicted for the offence. So is 14 Eliz. 5. about the Rates for Treasurers Poor. the Goal, there is a Forfeiture of 5 l. set upon an Offender. But no way set down to convict the Offender, or to le­vy the Forfeiture. So in 43 Eliz. 2. and Souldiers. 3. There are in those Statutes, some Forfeitures set upon offenders for their offences, and there is neither power of Conviction, nor of giving warrants for execution given to the Justices of Peace therein. 4. But in some cases, as in 1 Iac. 9. as to the Forfeiture for Tip­ling, Tipling. and selling lesse then measures; the Act it self, upon the Conviction of the Offender, before the Justice of Peace giveth power to the Constables, and Churchwardens, who of their own heads without warrant from any Justice of Peace, may levy the Forfeiture. So in 43 Eliz. 2. and 3.

SECT. VI. Certain Questions, and Answers for the opening of some of the Statutes, Acts, and Ordinances touching the Office of the Iustice of the Peace.

Quest. 1. VVHere a Statute, Act, or Ordinance of Parliament, made for the punish­ment of any offence, shall not in any part thereof give any expresse power to the Justices of the Peace, to do any Justices power. thing upon it. As 1 Iac. 12. 8 H. 6. 12. 21 Iac. 29. and others. Whether in this case, the Justices of the Peace may do any thing upon it at their Sessions of the Peace?

Answ. We Conceive, Nothing at all more then what they might have done therein, before the making of the Sta­tute, &c. See C [...]. 2. Rep. [...]43.

Quest. 2. If the offence mentioned in such a Statute, &c. were an offence at the Common-Law, before the making of that Statute, &c. and within the Co­nusance of the Justices of the Peace, as in the Case of a Riot, Perjury, or the like. Whether in this Case the same [Page 203] offence may not still be punished as an offence at the Common-Law, before the Justices of the Peace?

Answ. We conceive, yea: and yet that the offender shall not be twice pu­nished for the same offence.

Quest. 3. Where the Statutes, Acts, and Ordinances do give power to do things in a way of Conviction of offen­ders to the Justices of Peace diversly. It being in some of them, That all the Justices of the Peace of the County shall do it. In others: That all Justices of the Peace 17 Of Septemb. 1656. of Recusants. 24 H. 8. 10. 21 Iac. 27. 5 and 6 Ed. 6. 4. 1 Iac 27 11 H. 7. 15. 4 Ed. 4. 1. of cloth. Act. 14 August 1649. of Excise. 1 and 2 Ph [...]and M. 5. 5. 17 Sept. 16 [...]6. Of the Lords Day, and of such as live at high Rates. 2 and 3 Ph. and M. 16. of the County may do it. In others, that the Justi­ces of the Peace of the County shall do it. In others, that any Justice of the Peace of the Coun­ty shall do it. In others; th [...] all and every Justice of the Peace in any County, may do it. In Others; that all and eve­ry Justice of the Peace shall do it. In others, that any of the Justices of the County shall do it. In othe [...]s, That a Justice of Peace may do it. In others, That upon proof of the offence before one or two Justices of the Peace, he or th [...]y may punish so and so. In others; [Page 204] That every person so offending, and be­ing thereof convict, &c. How all these shall be taken, as to the persons to do the thing?

Answ. As to this, we Answer; That ordinarily where in this case a power is given to the Justices of the Peace to do any thing, and it is not exprest where, or how the thing shall be done; In this case we conceive, That thing to be done (especially if it be to convict an Offender of an offence) it must be al­wayes done in the Sessions of the Peace, and in and by the ordinary way of In­dictment, or Presentment, and Tra­verse, and Tryall of a Jewry, or Con­session. And then to hold a Sessions of the Peace, there must be two Justices Sessions. of the Peace at the least, and one of them must be of the Quorum. But where the Act doth declare that the thing to be done, may be done without the Sessions, and that any Justices may do it, there it seems there must be two Justices to do it. If it say, all the Ju­stices of the Peace, or every Justice of What one two, or three Ju­stices may do. Peace, or any Justic [...] [...] the Peace, or any one Justice of the Peace of the County may do it; in these cases it may be done by any one Justice of Peace. And where it doth expresse the thing to be done before one, two, or three Justices of the Peace, there it must be done accordingly. But in some cases [Page 205] the Laws may perhaps be otherwise ta­ken.

Quest. 4. Where an Act, &c. doth give power to one or two Justices to do a thing, Whether it may not be done by more Justices?

Answ. Where the Act, &c. is pen­ned, That one or two Justices may do a thing, There we conceive it clear, It may be done by more Justices. But where it is penned, One Justice [or two Justices] shall do it; There it may be a little more doubtful. But in both Cases, we conceive it may be done by more. And yet in this last Case I should rather choose to do it by the very same number.

Quest. 5. Where some of the Sta­tutes, 4 Jac. 5. and the rest named be­fore, and next after. &c. are penned thus, That the Justices shall have authority to do. Others, That they shall do. Others, That they may do. Some, That they may put the Statute in execution. Others, That they may take the Con­viction, and do execution Others, That they shall punish the offences up­on the Statute. Others, That upon Oath taken before the Justices, the For­feiture to be levied by the Justices, &c. Others, That the thing shall be done before them. How these shall be ta­ken?

Answ. We conceive, they, or the most part of them, are much to one purpose in the Law, and do give a suf­ficient power to the Justices of the Peace in the thing spoken of: but how, and in what manner, we cannot set forth.

Quest. 6. Where some of the Sta­tutes, &c. do give power to the Justices of the Peace, of doing, and say not where they Act. 17. Septemb. 1656. of the Lords-Day, and of Recusants. 5 Eliz. 4, 2 & 3 Ed. 6. 15. 25 H. 8. 13. 5 Eliz. 9. 2 & 3 Ph. & M. 3. 4 Iac. 5. 4 H. 7. 12. 21 Iac. 21. 39 Eliz. 17. 24 H. 8. 10. 1 Jac. 27. 3 Jac. 13. 5 & 6 Ed. [...] 4. 14 H. 8. 10. 19 H. 7. 11. shall do it. Others say, They may do it at the Quarter-Sessions. Others, At the open Sessions. Others, at the principal Sessions. Others, At the general Sessions. Others, At the publike Sessions. Others, At the usuall Sessions. Some, At the ordinary Sessions. Others, At the Sessions onely. How all these shall be taken?

Answ. This is partly answered in the Answer to the third Questions. But by all these we conceive thus much; That the thing to be done by the Justi­ces of the Peace, is to be done in, and not out of some Sessions of the Peace. And in all those Cases (but in the last) We conceive, is intended, That the [Page 207] thing must be done at the Quarter-Sessions. And in the last Case, where it is said, It may be done at a Sessions of the Peace, or at any Sessions, &c. there it is most safe also to do it at the Quarter-Sessions, though perhaps it may be done at a special Sessions held for that purpose.

Quest. 7. Where a Statute, &c. doth say, That the Justices of the Peace of the County shall or may hear and de­termine the offence; but doth not say where, as 39 Eliz. 4. of Bride-well; Bride-well. Mariners. and Chap. 17. of Mariners. Whether the Justices may by this do any thing out of the Sessions of the Peace?

Answ. We conceive not. And yet perhaps if it be to make a Rate, or to do some such like thing, and not to punish an offence done, there happily it may be done by the major part of the Justices of the Peace out of, as well as within, the Sessions.

Quest. 8. If a Statute, &c. do give power to Justices of the Peace, to hear and determine an offence, and it doth not say by what way it shall be done; Whether it may be done by any other, but by the ordinary way of Indictment, Traverse; &c?

Answ. We conceive, No [...].

Quest. 9. Where some of the Sta­tutes, &c. touching Crimes, do give power to the Justices to hear and determine them. 5 and 6 Ed. 6. 4. & 14. 27 Eliz. 7. 12. 2 and 3 Ph. and M. 3. 7. 5 Eliz. 4. 5. 9. 21. 10 May, 1650. 4 Jac. 5. 1 Jac. 22. 27. 3 Jac. 13. 2 and 3 Ed. 6. 2. 10. 23 Eliz. 10. 17 Ed. 4. 1. 1 Ed. 4. 21. 12 March. 1648. 18 Eliz. 10. 22 H. 8. 5. 31 Eliz. 12. 1 Eliz. 17. 32 H. 8. 13. 4 Ed. 4. 1. 33 H. 8. 1. 1 Ed. 6. Others, To enquire, hear, and determine them. Others, to examine, en­quire, hear, and deter­mine them. Others, to examine, hear and de­termine them. Others, To examine and deter­mine them. Others, To hear, or [in the dis­junctive] determine them. Others, To determine them. And some of these also have divers Additions of other things to them: As that they may do it by Verdict; or, That they shall do it by Examination, or otherwise. Or, That it shall be by Witnesses, or by two lawfull witnesses, or Confession; or that it shall be upon Presentment, Indictment, or Informa­tion. Or that the Justices shall call the parties before them, send out pro­cess, give Judgment, punish, do Execu­tion, or the like. How all these shall be understood?

Answ. We conceive, That generally all these words shall have one and the same Construction and operation in the Law. And that the Justices of the Peace by either sort of these words in a Statute, &c. have a compleat power of Oyer and Terminer given to them of the offences named by the Statute. And that the same, or such other like Addi­tions as are named in the Question, will not alter the Case. But how, and in what way, we cannot set forth.

Quest. 10. Where some of the Sta­tutes, &c. do give power to the Justices 7 Ed. 6. 5. 8 H 6. 5. 9. 1 Ed. 6. 5. 12 Ed 4. 9. 4 Jac. 5. 1 H. 8. 7. 2 & 3 Ph. and M. 8. 5 Eliz. 13. 7 Ed. 6. 5. 24 H. 8. 10. 25 H. 8. 13. 14. 15 H. 8. 10. of the Peace onely, To enquire of the offence. Others, To enquire as well at the Suit of the King, as of the Party. Others, To charge the Juries before them to enquire. Others, That the offences shall be enquireable before them. Others, That they shall en­quire by Presentment. Others, That they shall enquire and set Fines. How all these shall be taken, And what the Justices of Peace may do upon them?

Answ. We conceive also, That these words, in the most of these Statutes, are of the same nature, and shall have the same Construction as those in the last Question had. And that they do not limit the power of the Justices of [Page 210] the Peace. But that they will have by either sort of these words, a compleat power of Oyer and Terminer given to them of the offences named in the Sta­tute. But how, and in what way, we cannot set forth.

Quest. 11. Where some of the Sta­tutes do give a power to the Justices of the Peace, to punish an offence ac­cording to their discretion. Others, for such an offence, to Fine or to imprison according to their discretion. Others, to Fine and Imprison according to their discretion, as is 7 Jac. 4. 17 R. 2. of Fish. How all these shall be taken, and what the Justices of the Peace may do upon them?

Answ. We do conceive, That by this sort of words also, That there is a good power of Oyer and Terminer of the offences named in the Statute, &c. wherein they are used, given to the Justices of the Peace.

Quest. 12. Where the Statute, &c. is thus penned, That the Justices of the Peace at their Quarter-Sessions shall have power to Indict, and try the offen­ders by the usual course of Indictments and Tryals in the like cases. And af­ter such Conviction, to adjudge the offender to the Pillory; as it 39 Eliz. 11. of Logwood. How this shall be Logwood. [Page 211] taken, and what the Justices may do upon it?

Answ. We conceive, That hereby there is given to the Justices of the Peace, a good power of Oyer and Ter­miner of the offence within that Law. But in what way, we cannot set forth.

Quest. 13. Where the Statute, &c. is, That he that shall offend, shall be grievously punished according to the discretion of the Justices, and that they shall judge him to the same bodily punishment as his offence requireth, and shall do execution thereupon; as is 13 R. 2. 8. of Labourers. How this Labourers. shall be taken, And what the Justices of the Peace may do upon it?

Answ. We conceive, That by this he may be Indicted or presented for the offence; and if he be found guilty, he may be imprisoned what time the Justices of the Peace think fie. But for the way by which it is to be done, we do not set forth.

Quest. 14. Where a Statute, &c. giveth power to the Justices of the Peace, to hear and end an offence by Examination according to their dis­cretion. Or, as others, By examinati­on of parties and witnesses; As it is [Page 212] 32 H. 8. 13. of Horses. 11 H. 7. 15. Horses. Sheriffs. Deer. of Sheriffs. and 19 H. 7. 11. of Deer. How these shall be taken, and what the Justices of the Peace may do upon them. And whether they may examine upon Oath?

Answ. We conceive, (as to this case) The words seem to hold forth a power of Oyer and Terminer, in the or­dinary way. If otherwise, then we doubt whether they may examine by Oath, except it be in such a thing as whereabouts they do examine by Oath, before the making of the Statute. But it should seem to me, They may by these words examine without Oath, Examina­tion. and, upon that examination, order the punishment, as in the case of Provision for a Bastard child, and punishment of the Parents, upon 18 Eliz. The words of which Statute are the same in effect with the words of this Statute. And if the Justices of the Peace shall in this and such like cases, take upon them to hear and end, convict and punish in the ordinary way of Indictment, we can scarce tell how the offender will be re­lieved. But how the law will fall out herein, we cannot certainly set forth.

Quest. 15. Where a Statute is pen­ned thus; under pain of 10 l. the one half to the King, and the other half to him that will sue for it by Action of [Page 213] debt, by examination before the Justices of the Peace, information, or otherwise. As it is in 11 H. 7. 17. Of Phesants. Pheasants. How this shall be taken, and what the Justices may do upon it?

Answ. This Act is very doubtfull. And yet we conceive some use or other may be made of it, in order to the pu­nishment of the Offender.

Quest. 16. Where a Statute, &c. is penned thus. That the person offending being thereof convict by examination of Witnesses, or confession before the Ju­stices of the Peace at their generall Ses­sions, shall suffer, &c. And that two Justices, one of the Quorum, may con­vent him to the Sessions by processe, or otherwise, or to commit him to ward, or let him to bayl, till the next Assizes, or generall Sessions, there to be exami­ned, and further ordered, as aforesaid. As it is in 33 H. 8. 1. How this shall be taken. And what the Justices of the Peace may do upon it?

Answ. This is partly answered before in the Answer to the 14th Question. But in this case we conceive that the of­fender may in the ordinary way be in­dicted, and if he confesse the offence, he may be therein convicted. Or other­wise that the Justices may without oath, examine Witnesses, and order his pu­nishment: [Page 214] as upon the Act of 18 Eliz. about a Bastard. But the words seem to me to contain in them probably a power of Oyer and Terminer, in the or­dinary way of Tryall. But we do not presume to give forth anything for cer­tain herein.

Quest. 17. Where a Statute, &c. in one part thereof giveth power to the Justices of the Peace, to hear and de­termine an offence, and in another part thereof, is this clause. That any two Justices out of the Sessions may exa­mine, hear, enquire, and determine, and to administer Oaths, &c. As it is in 1 Iac. 27. of Phesants. How this Phesants. shall be taken: and what the two Ju­stices of the Peace may do herein out of Sessions?

Answ. We do not understand what the two Justices of the Peace may by these words do out of the Sessions, nor what the words do intend, except it be to give power to convict the offender at the generall Sessions, and also at a speciall Sessions, kept for that purpose onely.

Quest. 18. Where a Statute, &c. giveth a power to one, two, or more Ju­stices of the Peace in a special way, and out of the Sessions, to convict an offen­der of his offence. And the same Sta­tute [Page 215] doth nor give to the Justices of the Peace, a generall power also, to hear and determine the offence. As it is in the Act of 1650 about Swearing, and Swearing. divers others. Whether in this case the Justices of the Peace may by their Or­dinary way of Tryall in the Sessions, hear, and punish this offence?

Answ. As to this case, we do con­ceive, that there can be no conviction of this offender for his offence elsewhere, or otherwise then before the one, two, or three Justices of the Peace, out of a Sessions of the Peace, And that the Ju­stices of the Peace in their Sessions, are not to intermeddle therewith. But that Sessio [...] in cases where there is a generall clause also inserted in the Statute, to give to the Justices a power to hear, and deter­mine the offence, as there is in 23 Eliz. 10. 39 Eliz. 4. 1 Iac. 27. 9 August, 1650. 9 Febr. 1647. There the offen­der may be proceeded against by the one, or by the other way.

Quest. 19. Where a Statute, &c. doth give power to the Justices of the Peace to distrain the goods of an offen­der, or to send him to prison for a For­feiture. But there is no way for the Poor. Marriners and mai­med Soul­diers. Conviction of the offender set down by the Statute. As it is 43 Eliz. 2. of the Poor. and Chap. 3. of Mariners and maimed Souldiers. 13 Eliz. 10. of [Page 216] High-wayes. 5 and 6 of Ed. 6. 25. of Ale-houses. 1 Jac 9. 21 Jac. 7. 4 Jac. High-wayes. Ale-houses Drunken­nesse. Lords-Day. 5. 1 Car. 4. of Ale-houses, and Drunk­ennesse, and 19 April, 1650. of the Lords-Day. 7 Jac. 4. What shall be done in this case, And whether it may not be supplyed by the Sessi­ons?

Answ. We do conceive it will be in this as in the last Case, That where there are no generall words in the Sta­tute, &c. to give power to the Justices of the Peace, to hear, and determine Sessions. the offence. That in this case there is no way to punish the offender. And so also it will be in case where the Sta­tute doth give a power of Conviction, but no power of Execution. As it is in two and three of Ed 6. about Soul­diers. 21 Iac. 18. of Cloath. 17 Sep­temb. Souldiers. Cloth. Lords-day. 1656. of the Lords-Day. And so also it will be, where the Statute, &c. doth not appoint a way of Convi­ction, or of Execution, but both are omitted. As it is in 7 Iac. 4. of Bridge­well. and 21 Iac. 28. And that it is Bride-well. Caution to the Justi­ces. not safe for the Justices of the Peace to give Warrants in these Cases.

Quest. 20. Where a Statute, &c. doth say, a Conviction shall be before the Justices, by the proof [or by the Testimony] of witnesses. And it doth not say, upon Oath. As in 21 Jac. 18. [Page 217] of Cloth. 39 Eliz. 4. of Bride-well. Cloth. Bride-well. Crows. 24 H. 8. 10. of Crowes. What proof this must be, Whether proof upon oath?

Answ. We conceive it to be doubt­full. But that the most sure way for the Justices, is to adventure to do it by the ordinary way of Indictment, and the Tryal of a Jury.

Quest. 21. Where a Statute, &c. doth direct, the Conviction of an offen­der to be by oath before one, or niore Justices of the Peace. But it doth not give power to the Justice to admi­nister the oath: As in Act. 4th Febr. 1641. of Titles of Honour. 14 Au­gust, Titles of Hounour-Excise. Hue-and-Cry. 1649. of the Excise. 27 Eliz. 13. of Hue-and-Cry. Whether in this case the Justice of Peace may administer the oath?

Answ. We conceive, Yea. And yet there are very few of the Statutes and Acts that do omit the inserting of a Clause to give power to the Justice to administer the oath. See for this, the manner of penning of the Act of 27 Eliz. 13. for the oath of him that is robbed, to be taken before a Justice of Peace. Which is admitted to be good, and taken daily.

Quest. 22. Where a Statute, &c. [Page 218] doth give power to a Justice or Justices of the Peace to convict an offender, and levy the Forfeiture by distresse; with this; That in case of lack of distresse, they may proceed further. How this lack of distress [...] shall be understood?

Answ. By this we conceive shall be understood, Lack of distresse in the place into which the Officer by his Warrant is to enter, and execute it.

Quest. 23. Where a Statute, &c. gives a power to a Justice to distrain; and for lack of distresse, to proceed fur­ther, to imprison, &c. How the Justice shall in this case take notice of the lack of distresse, so as to grant his second Warrant upon it.

Answ. In this case, we conceive i [...] safest for the Justice, (if the Statute will bear it out) to put it in his first War­rant, to the officer thus. That he shall distrain, and in case of lack of distresse, that he shall carry the party to prison, [or put him in the stocks] &c. as the Case is.] And so put the work upon the Officer, to take care of it.

Quest. 24. Where a Statute, &c. gives power to a Justice to convict an offender, and levy the Forfeiture for his offence. And then these words are added. That in case of lack of distresse, [Page 219] the offender shall be committed [or the offender to be committed] but it doth not say by whom he shall be commit­ted. As is 39 Eliz. 11 of Log-wood. Log-wood. Blasphe­my. Deer. Drunken­nesse. Excise. Ale-houses Lords day. Such as live at high Rates, &c. 9 August 1650, of Blasphemy, 19 H. 7. 11. of Deer. 4 Jac. 5. 21 Iac. 7 of Drunkennesse, 14 August 1649. of the Exercise, 6 April 1644, and 17 Sept. 1656. of the Exercise, 1 Car. 1. 6 A­pril 1644, of the Lords Day, and 17 Septemb. 1656 of them that live at high Rates. Whether in these cases the Justice of Peace may safely send his Warrant to commit the offender. Or what may be done by him upon such a Law?

Answ. This Case may be a little doubtfull. But we conceive that it will be intended, as that which is necessarily understood, that the Justice of Peace may make such a warrant, and Justify it. And this is the opinion of some Learned men. But otherwise we con­ceive that the Justices of the Peace in their Quarter-Sessions, cannot supply it, but in cases where they have a ge­nerall power of O [...]er and Terminer, of the offence by the same Law. And there it must be also in the ordinary way way of proceeding by Inditement, &c.

Quest. 25. Where a Statute, &c. is that for lack of distresse, the offender [Page 220] by warrant from a Justice of Peace, shall be whipt, &c. [without more words] as it is in 28 June, 1650. about Swea­ring. Whether the Justice may in this case, make his Warrant to do this?

Answ. It seems, Yea. And so Iso, where the Act is penned thus, Upon pain of &c. To be levied by warrant from a Justice of Peace, &c. as it is in the Act of Excise. Septemb. 1656.

Quest. 26. Where a Statute, &c. is penned thus. That upon proof, or Oath, or confession of the offence be­fore a Justice of Peace [without more words] such a punishment shall be in­flicted, or such a thing shall be done. As it is in Act 14 August 1649. of the Excise. Titles of Honour. Stage-Playes. Swearing. Lords day. Excise. 4 Febr. 1651. of Titles of Ho­nour. Act 1656. of Excise. 12 Febr. 1647. of Stage-playe [...]. Act 1650. of Swearing. 3 Car. 1. of the Lords-Day. Whether these words do give power to the Justice to take the Conviction?

Answ. We conceive, Yea. And so al­so, where the Statute, &c. is penned to this purpose, that unlesse such a thing be done before a Justice of Peace, that such a punishment shall not be in­flicted. That by this the Justice hath power in the thing, as it is in 27 Eliz. 13. about the Oath to be taken by him that is robbed. And it seems, [Page 221] in all cases regalarly where a thing is directed to be done before a Justice of Peace in case of Conviction of an offen­der. That by this there is implicitely given to the Justice a power to do that thing. See Ca. 2. Just. 689.

Quest. 27. Where a Statute, &c. is thus penned. That after an offender is convicted before a Justice of Peace, the power is given to some others to levy the penalty, and the Justice of Peace hath no power given to him therein. As it is in 43 Eliz. 2. of Poor, and 3 of Souldiers and Ma [...]iners, Poor. Souldiers and Mari­ners. and 1 Iac. 9 of Ale-house-keepers. Whether in this case the Justice of Peace may safely send any Warrant to do it?

Answ. In this case, we conceive it not safe for the Justice of Peace to give any Warrant in it. And that he hath no more to do, but to give notice of the Conviction onely to the person that is to do the E [...]cution, and mind him of his duty therein. And yet some also are of another opinion in this point.

Quest. 28. Where the words of a Statute, &c. are; That the Justice of the Peace shall cause an ossender to be impri­soned, or the like thing to be done. As [Page 222] it is in 14 August 1649. of Excise. 24 H. 8. 10. of Ctows. What the Ju­stice of Peace may do herein.

Answ. We conceive that by this word [Cause] is given a command and Authority also to do the thing. And that the Justice may thereupon send his Warrant to the officer, o [...] some other that will undertake it, to authorize him to do it.

Quest. 29. Where a Statute, &c. besides a generall power of Oyer and Terminer, of an offence, doth give to the Justices a speciall power, to give such Correction to the offender as they shall think meet. As it is in 5 Eliz. 4. about Masters, and Servants. What the Masters & Servants. the Justices may do upon this?

Answ. We cannot conceive what power is given hereby, except it be that two Justices of the Peace may out of Sessions, where they see cause, bind the Master to the good behaviour, and send the Servant to Bridewell; which is not but with good advice to be done.

Quest. 30. Where a Statute, &c. besides a generall power of Oyer, and Terminer, of an offence given to the Ju­stices, doth add this Clanse. That they may d [...]v [...]de themselves, and by all [Page 223] means according to their discretion, make enquiry upon the Statute, and the execution thereo [...], and punish the defaults. As it is in 5 Eliz. 4 of Ma­sters and Servants. What the Justices Masters & Servants. may do by these Additional words?

Answ. We conceive nothing at all, except it be to keep a speciall Sessions, which (upon the matter) is all one with the generall Sessions, for the Convi­ction and punishment of the offender.

Quest. 31. Where the Statute, &c. as to the Conviction of an offender, is penned thus; That every person offen­ding therein, and confessing the same, or being thereof Convicted by Verdict, upon Indictment or Presentment. As it is in Act 10 May. 1650, of Fornica­tion. Fornica­tion. How this Confession shall be ta­ken?

Answ. By this Confession in this Act, we do conceive is clearly intended a Confession upon an Indictment, or Presentment onely. And not a Confes­sion also before any Justice, o [...] Justices of the Peace in, or out of a Sessions, without an Indictment, or Present­ment.

Quest. 32. Where a Statute, &c. is thus penned; That they that shall so offend, shall sorselt such further pains [Page 224] and penalties, as by the Justices of the Peace, or the more part of them, shall be thought sit, not exceeding 40 s. a piece for every offence. As it is in 7 Iac. 4. of Bridewell, without any fur­ther addition of Words, of power to convict, or punish. How this shall be taken? And what the Justices may do upon it?

Answ. This Statute is herein very doubtfull; and yet haply, some use thereof in order to the punishment of the offender, may be made by the Ju­stices of the Peace.

Quest. 33. Where a Statute, &c. giveth to a Justice of Peace, power in case of an oftence, to examine the mat­ter. And it he suspect the party, to bind him and the Witnesses over to the Sessions, or if he refuse to be bound, to send him to the Goal, as in 39 Eliz. 11. of Log-wood, and 23 Eliz. 10. of High-wayes. Logwood. High­ [...]ayes. How this shall be taken; and what the Justice of Peace may do upon it?

Answ. We conceive in this case, he may safely pursue the words of the Statute. See for this 33 H. 8. 6. and Coo. 5. 72.

Quest. 34 Whether the Clause in the now Law, touching the Lords Day, Lords-Day. [Page 225] 17 Septemb. 1656. that forbids any man to be questioned for any offence within that Law, do not (as to this) reach to all the former Lawes for so many of the offences therein mentioned, that are again named by this Act?

Answ. We conceive that it doth so; For the words are these, That no per­son shall be impeached or molested for any oftence within this Act, unlesse he be thereof convicted, within one Moneth after the offence committed.

Quest. 35. That where in part of Wines. the Statute of 7 Ed. 6 5. of Wines. It is said, That men may sell Wine by Retail in a Market-Town, by License of the Justices of the Peace. And in ano­ther part thereof it is said. That no person shall by retail sell any Wine in his house, to be drunk or spent in his own house, or other place in his occu­pation, &c. How these words shall be understood?

Answ. We take the meaning hereof to be, That none may sell Wine by Retail in his own house, by the Li­cense of the Justices of the Peace. Nor at all may he sell, or utter to others of other houses, in such a Town, but he must be first Licensed by the Justices of the Peace.

Quest. 36. Where the Act of 17 Septemb. 1656. of the Lords Day, doth give power to the Justices of the Peace, to make a Warrant under their hands and Seals, to Constables, Church War­dens, and Overseers of the Poor, to search for, discover, secure, apprehend, and bring before some Justice of the Peace, all such as they shall find propha­ning the Day, or shall know, or be in­formed Lords-Day. to have prophaned the day in any of the particulars in the Act mentioned. Or shall have just cause to suspect for the same. How this Warrant may be Warrant. made?

Answ. We do conceive in this Case. That the Justice of Peace may make such a Warrant, and strictly pursue the words of the Statute, and justify the same. And yet we conceive an unhap­py use may he made thereof by the Officer. And the rather for that the Officer may forth with carry the suppo­sed offender to the Justice, unlesse he will pay the penalty of the Statute. And if so, then must he be punished be­fore he is convicted. Therefore it is good to be well advised in it.

Quest. 37. Where a power is by an Act, &c. given to the Justices of Peace (and it is not said in any Sessions) to examine a matter, and so to make an [Page 227] order in it. As it is in 18 Eliz. 3. about provision for a Bastard child. And Bastard. Oath. it is not said it shall be by Oath. Whether this Examination may be by Oath?

Answ. The common practise is so to do, And we conceive in this case, it may be done with, or without an Oath, and the order will be well grounded by the one, or by the other way. But it is good to be well advised herein.

Quest. 38. Where the Justice of Peace hath power to convict an offen­der out of the Sessions, upon View, Confession, or Oath of Witnesse, and he doth so, and the offender be to go to Goal, upon this Conviction. Whether in this Case it be needfull for the Ju­stice to make a Record of this in Wri­ting?

Answ. We conceive it is the safest way for the Justice of Peace so to do. And yet perhaps it may not be necessa­ry, but in cases where the Laws do especially enjoyn it. As in the Acts of Swearing, a Ryot, and some O­thers.

Quest. 39. Whether it be of necessi­ty, in case where an oftender is to be convicted by Oath of Witnesses, that [Page 228] he be present, and to hear his De­fence?

Answ. We conceive it the safest and best way so to do.

Quest. 40. Whether a Justice of Peace may bind to the Good-Behavi­our Bastard. Good-Be­haviour. the Putative Father of a Bastard-Child, to th end he may be forth­comming, when he shall be brought in question by the Parish to secure it?

Answ. We conceive, Yea. But it must be by the ordinary way of bin­ding to the Good Behaviour for Incon­tinency, and cannot be otherwise. And yet somewhat may be said against this.

Quest. 41. What power the Justi­ces of the Peace have in or out of the Constables Sessions of the Peace to make, or to remove High Constables of Hundreds, or Constables of Parishes?

Answ. Custome seemeth now to Warrant this course. And there is a necessity of it, where Lects are gone, or not duly kept, or where insufficient [Page 229] men are chosen therein. And how this may be otherwise supplyed, except it may be in the Sheriffs Turn, we under­stand not. And yet we conceive, that where the Leets do continue, and they do continue to elect, the Justices of the Peace are not to meddle with it at all, But what they do in the making, or removall of these Offices, it is safe for them to do it in the Quarter-Sessi­ons?

Quest. 42. Whether the Swearer be not to pay for many Oaths sworn Swearing. at one time, so many times the penal­ty of the Statute as he sweareth Oaths?

Answ. We conceive not. And yet perhaps if the Oaths be sworn in the hearing of a Justice of Peace, Hunting. [...]here he must pay for every Oath the penalty of the Statute. Otherwise he is first to be convicted of his Oath once sworn before he pay the increase of the penalty.

Quest. 43. Whether hunting in 2 Coniger that is not a Free War­ren, be within the Statute of 3 H. 7. 7.

Answ. We conceive, Not. For the Statute speaketh onely of Hunting in a Park, Forrest, or Warren.