What Iustices of the Peace bee: and why called Iustices.
CHAP. I.

IVSTICES of the Peace, A definiti­on (or de­scription) of Iustices of the Peace. bée Iudge of Iudges of Recorde, appointed by the Quéene to bée Iu­stices within certaine limites, for the Con­seruation of the Peace and for the execution of sundrie thinges comprehended in their Commision, and in diuers lawes commit­ted vnto them.

These, and many other Iudiciall officers in our lawe, be called Iustices (per metonymi­am subieti) bicause they doe (or should doe) lawe and Iustices. For in many olde Histo­ries, Why they be called Iustices. the Chiefe Iustices of England, is termed, Capitalis Iustitia, and Prima (post Regem) in Anglia, Iustitia: and the Originall Writtes that are in M. Glanuils Booke (which was written vnder the raigne of king Henry the second) haue this forme, quod sit coram me, vel Iustitijs meis: And this (no doubt) was done of speciall purpose, and to the ende, that the mention of their name should put them in minde of their office, and should continually [Page 4] (as it were) sollicite them to administer Iu­stice, for whole sake they were appoynted. But in the dayes of King Henry the third, M. Bracton (who reduced the body of our law into Latine, and therein imitated the Me­thode of the Ciuile Lawyers) chaunged the worde Iustitijs, into Iustitiarijs, (how Latine like, let them iudge that can skil) and setteth downe the Writtes accordingly, coram Iu­stitiarijs nostris. Since which tyme, not one­ly all our Writtes that commaund appea­rance before the Iustices at Westminster, do vse the word Iustitiariss but all Commissions of Sewers, of the Peace, of Oyer & Terminer, and such like, do obserue the same forme also.

And of this it commeth, that M. Fitzher­bert (in his treatise of the Iustices of Peace) calleth them Iusticers (contractly, for Iustici­ars) and not Iustices, as we commonly (and not altogither vnproperly) do name them.

Of the signification of the worde Peace.
CHAP. II.

Peace, hath many signi­fications. OF the Latine worde Pax, the Normans framed their Paix, and we out of the that, our peace: which name hath sundry sig­nifications [Page 5] in the holy Scripture: For there is an inward, and an outward Peace. And this inward Peace, is either good, or euill: First then, there is pax apud Deum, that is to say, our reconciliation made with God the father, by the death of Christ his sonne, who is pax nostra, and hath appeased the wrath of God for our sinnes, Our of this procéedeth an other inward Peace, named y ^e Peace of Cōsci­ence, for that our Conscience is (by faith in Christ) at Peace, both with God, and it selfe. The euill inward Peace, is the same where of our Sauiour Christ spake, saying, pacem do vobis, non quemadmodum mundus dat: And this Peace, the Kingly Prophet Dauid cal­leth pacem peccatorum, bicause it is no better than carnall securitie.

The outward peace, hath respect to other men, and that is of two sortes also: the one is opposed (or set) against all maner of stri­uing and contention, whether it be in coun­tenance, gesture, worde, or worke: of the which S. Paule spake to the Romans in these wordes: Si fieri potest, quantum in vobis est, cum [...]mnibus hominibus pacem habetote: And in the same meaning, the Latine men say, pace tua, by your leaue, or fauour, without your of­fence, or displeasure. The other is onely an abstinence from actuall force and offer of [Page 6] violence, and is rather contrary to arma, pra­lium, and bellum, (which can not be without force, or armes) than it is lis, pugna, or cer­tamen, which (as Laurence Valla confesseth) may be nudus verbis, & citra arma. And hereof also our Sauiour Christ spake, whē he said, Non veni vt mitterem pacem, sed gladium.

The lawe of our Realme Peace in our Lawe likewise, vseth the worde Peace diuersly, but yet so, as it is altogether occupied about these outwarde Peaces. For, as Cicero said of fraudes, aliter leges, aliter Philosophi, tollunt astutias: leges qua­tenus manutenere res possunt, Philosophi quatenus ratione & intelligentia: euen so may I truely affirme, that (in the matter of Peace) the law of God (which onely is the true Philosophy) respecteth the mynde & conscience, although the lawes of men doe looke but to the bodie, handes, and weapons.

Sometymes therefore, the word Peace is taken for Proctection, or defence: as where M. Bracton calleth the Writtes of Protecti­on, Breuta de pace: Sometymes (as it seemeth to me) it is taken for Rightes, Priuiledges, and Liberties, as in the othe of the Queene at hir Coronation, she sweareth, Seruare Ec­clesiae Dei, Cleri, & Populi, pacem ex integro the meaning whereof is, (as I suppose) that she will maintaine eche degrée and estate of hir [Page 7] Subiects, as well Ecclesiasticall as Tem­porall, (for populus comprehendeth all the Laitie) according to their seueral customes, Lawes, and Priuiledges. And sometimes it is taken for a withholding (or abstinence) from that iniurious force & violence, where­of I spake before. Peace, for Iustices of the Peace. And this is it that is most commonly understood by the worde Peace, in our lawe: and for the maintenaunce hereof chiefly, were these Wardens and Iustices of the Peace first made and appointed.

For Iustices of the Peace were not ordai­ned (as some haue thought) to the ende to re­duce the people, either to an vniuersall vna­nimitie (or agréement)of mindes, which is in déed a thing rather to be wished for, than to be hoped after: Neither is it any part of their office, to forbid lawfull suites and con­trouersies (whiche neuerthelesse be disa­gréements of mindes:) But to suppresse in­iurious force and violence, mooued against the person, his goods, or possessions.

And y ^t this may appeare to be the minde or y ^e king, which first created these Wardens, or Iustices of the Peace (I meane King Edward the third) let me shew you the Writte that he in the first yeare of his raigne, and not many wéekes before the Parliamente in which the Gardeins of the Peace, (which af­terward [Page 8] obtained the name of Iustices of the Peace) were first ordeined, did sende to the Shirifes of eche Shire in Englande, bearing this forme: Edwardus Dei gratia Rex An­glia, Dominus Hybermae, Dux Acquitaniae, Vi­cecomiti Kanciae salutem. Tho. Wal­ [...]ugham in [...]ist. pag. 107 Quia dominus Edwar­dus, nuper Rex Angliae, pater noster, de communi assensu Praelatorum, Comitum, Baronum, & alio­rum Magnatum, necnon Comunitatum totius re­gns praedicti, spontanea volantate se aneouit à regi­mine dictiregni, volens & cōcedens quòd nos (tà­quam ipsius Primogenitus, & Haeres ipsious) regni gubernationem & regimen assumamus: Nosqúe ipsius patris beneplacito in hac parte de consilio & auisamento Praelatorum, Comitum, & Baronum praedictorum annuentes, gubernacula suseepimus dicti regni, & Magnatum recepimus, vt est moris: Desiderantes igitur pacem nostram proquiete & tranquillitate populi nostri inuiolabiliter obserua­vi, Tibi praecipimus, quòd statim visis praesentibus per totam Balliuam tuam pacem nostram facias publicè proclamari, vniuersis & singulis ex parte nostra inhibendo, sub poena & membrorum, ne quis dictam paecem nostram infringere seu violare prae­sumat, sed quilibet actiones & quaerelas absque violentia quacunque prosequatur, secundùm leges & consuetudines regni nostri: Nos enim parati [Page 9] sumus, & sēper crimus, ōnibus & singulis cōque­retibus, tā diuitiꝰ (quam) pauperiꝰ in Curijs nostris plenam iustitiā exhibere. Teste meipso, Caledas Februarij, die dominica, in vigilia purificat. &c.

This Writ I haue the rather set downe at large, because it containeth a faire shewe of a foule déede, I meane, his attaining to the crown, by the depriuation of his father. But (for the present purpose) by this Writ it is manifestly declared, that the Peace which he meant, was not an vniting of mindes, but a restraining of hands, which is (in a manner) al one with that which Tul­lie writeth in his Oration Pro Sestio, where he setteth Vis and Ius one against the other: and it agreeth well with that description of Vis, which M. Bracton maketh (lib. 4. ca 4.) saying: Vis est, quotiens quis (quod sibideberi putat) non per Iudicem reposcit: Est autem in­terdum armata, interdum inermis. According to which meaning also, the olde Statute of Westminister the first ( ca. 1.) saide: Let the peace of the lād be maintained in al points, and common right be done to all, as well poore as rich. Thereuppon likewise saith the Statute (1. R. 2. ca. 2.) Let the peace bee well and surely kepte, that the Kings sub­iects may safely goe, come, and abide, accor­ding to the lawe of the Realme, and that [Page 10] Iustice and right be indifferently ministred to euery Subiect.

Finally, the Statutes of 2. R. 2 ca. 41. H. 4. ca. 1 and 7. H. 4. ca. 1. Doe all (in plaine spéech) couple the maintenance of the Peace, with the pursuing of sutes, as things that may right well stand togither. And there­fore, I conclude, that this furious gesture, and beastly force of bodie, or hands (and not euerie contention, suite, and disagréement of mindes) is the proper subiect and matter, a­bout which the Office of the Iustices of the Peace is to be exercised.

Nowbeit I write not this, as though I would not haue a Iustice of the Peace to oc­cupie himselfe also in pacifying the suites and cōtrouersies, that do arise amongst his neighbours: Yea rather I with him, to be as well [...], as [...], a Compounder, as a Commissioner of the Peace: and I thinke him so much the méeter to stepps in betwirt those that be at variāce, as (by rea­son of his learning, wisedome, authoritie, & wealth) he is like to preuaile more, by his mediation and intreaty, than another man. Iustices of the Peace, be méete to pa­cific suites. But, as it is not al one, speake of his pro­per office in Law, & of his common duetie in Charitie: so I thought good to seuer and di­stinguish them.

Of such as had the Con­seruation of the Peace, at the common Lawe.
CHAP. III.

As the common lawe hath, euen frō the be­ginning, continued a speciall care for the peace: So did it not want méete Officers (béefore that these Wardeins or Iustices of the Peace were made) to whose charge it did committe the maintainance of the same: And for as much as it will giue no small light to the vnder­standing of the office of the present Iustices of Peace, to haue that auntient authoritie vnfolded, vppon the which this latter po­wer is (as it were vpon a Stocke) set and engraffed, I will speake some what thereof, before I beginne wyth the other.

At the Commune law therefore, and be­fore y ^e time of King Edward the third, there were sundrie persons, that had interest in the kéeping of the Peace. Conserua­tors. Of these, some had that charge as incident to other Offices that they did beare, and so included within the [Page 12] the same, that they were neuerthelesse cal­led by the names of their other Offices on lie: Some others had it simply as of it selfe, & were therfore named Custodes pacis, War­deins or Conseruators of the Peace.

By other of [...]ces.Againe of there that had charge ouer the Peace by the dignitie of their Offices, some had that power ouer all the Kealme, some others had it within certaine limits only:& both these sorts after a diuers maner of dis­pensatiō as in particularitie it that appéere.

The Queenes Maies [...]e then is, by hir Of­fice & dignitie royall, the principall Conser­uator of the Peace within hir Dominions, and may giue authoritie to others, to sée the Peace kept, and to punish such as shal break the same. But a Duke, Earle, or Baron, bée no Conseruators of the Peace, because those be no titles of Office, but of dignitie onelie, saith Mar.

The Lord Chauncelour or Lord Keeper of the great Seale, the L. Steward of England, the L. Marshall and Conestable of Englande, and euerie Iustice of the Kings Bench, haue (closed in their offices) a credite for conser­uation of the peace ouer al the Realme, and may awarde Precepts, and take Recogni­sances for the Peace. Mar. & Fitz. And by good opinion, The L. Treasorer of England maye [Page 13] well be added to the number of these.

The M of the Rolles also by the opinion of M. Mar is a generall Conseruatour of the Peace by his office. But he maketh Pro­cesse & taketh Recognisances thervpon, not as incident to his office, but by prescription.

The Iustices of the Common place, and Barrons of the Escheaquer, bée Conserua­tours within speciall places onlie, that is to say within the precinates of their seuerall Courtes: So also the Iustices of Assises may awarde a man to prison that breaketh the peace, in their presence, and they may come maunde the kéeping of the peace vnder a peine, and that weapons be taken from the Iurors or Witnesses, that appeare before thē, if anie complainte bée thereupon made:But as they bee méerlie Iustices of Assise, they cā neither take Suertie of the peace, nor award anie Processe for it. Mar.

The Iustices of Gaole deliuerie, may take suertie for the Peace of a prisoner before them, that was committed for not finding suertie of the Peace, Mar.

The Coroners (siath Britton. Fo. 3.)' bée principal Conseruatours of the peace with­in their Counties: And euerie Shirife is a Conseruatour of the Peace, within his Coūtie as Iudge Fineux affirmed 12. H. 7.17, & [Page 14] and after him M. Fitzh. in Nat. bren. Fo. 81. where he saith that the Shirife may (vpon request made, & without any Writte sent vnto him) commaunde a man to finde suche Suertie of the Peace by Recognisance.

The Stewarde of the Marshalsey, maye take Suertie of the Peace, by Recogni­sance also within the Vierge, by prescripti­on: and the Conestable Marshall of the Quéenes house, may sée to the Conseruati­on of the peace within the same house, Mar.

The Steward of the Shirifes Turne, the Steward in a Lecte, or the Stewarde in a Court of Pipowders, can not graunt Suertie of y ^e peace, vnlesse it be by Prescription: But euery of them, may committe him to ward, that shal make an affraie in their presence, whilest they be in execution of their offices, and that is more than the Steward and Suitors in a Court Baron can do. Mar. and the first two of them, may also take present­ments of offences against the Peace.

To bée short, euerie Constable, Peticon­stable, Tithingman, and Borowhead, be Cō ­seruatours of the Peace by their offices, within y ^e limits of their Hundreds, Townes, Tithings, and Boroughes. 12. H. 7. 17. Fineux. And by the same reason, our Borsholder in Kent, and their Thirdborow in Warwicke­shire, [Page 15] be Conseruatours also within they [...] Boroughes. For Borowhead, Borsholder, & Tithingman, bée thrée seuerall names of one selfesame thing, and doe signifie, The chiefe man of the free pledges within that Borow, or Tithing. And where each third Borowe onlie hath a Constable, there the officers of the other two Borowes, be called Thirde­borowes.

These Conestables were ordayned (as it appeareth 3. H. 4.9. & 10. E. 4.& Fitzh. Fo. 172.) to kéepe the peace, and to represse for­lons, and might take suertie of y ^e Peace (by obligation) if they found any man making an affraie, or otherwise to committe him to prison till he shoulde finde suche Suertie. I haue reade also that a Constable, mighte at the common lawe, haue bayled a suspecte of felonie by Obligation, bicause he was a Cō ­seruator of the Peace: and that both he and the Shirife lost this authoritie by the Sta­tutes (3. H 7. ca. 3. & 1.&2. Phill. & Mar. ca. 13) Which in giuing that power to Iusti­ces of the Peace, do (in the opinion of some men) take it from the Shirife and Consta­ble: reported by Dalison Iustice.

Hitherto then, Simple Conserua­tours. of such as had, and yet haue the charge of the Peace conueied vnder their other Offices. Now as touching those that [Page 16] had the simple Office of Wardeins (or Con­seruatours) of the Peace, it is to be vnder­stoode, that they also were of two diuerse sortes: that is to saye, eyther Ordinarie, or Extraordinarie: and the Ordinarie Conser­uators, were eyther by Prescription, Electi­on, or Tenure. Ordinarie Conser­uators, Ordinarie.

A man maye prescribe (saith M. Marowe) that he and his auncestours, or he and they whose estate he hath in the Manor of Dale, haue bene Conseruatours within the Hun­dred of Sale, either all the yeare, or onlie at one certaine time of the yeare: And as hée may prescribe in the power it selfe, so also may he in y ^e maner of the exercise of y ^e same, as that they haue vsed to take the Suertie of Peace by obligation, pledge, or Caution, & so also in y ^e maner of the Processe therefore, as to Distreigne, and to sell the distresse, Mar.

But all this is to be doubted of, because that in the opinion Of Brian and Pigot (21. E. 4. 67. & 22. E. 4. 35.) the Maior of Dale can­not prescribe to be a Conseruatour, or to commaunde Suertie of the Peace, & to com­mit to prison for an affraie in his presence, vntill such suertie be found.

Furthermore, euen as the shirifes, were auntientlie chosen, and as the Coroners [Page 17] yet bée: So also certaine persons were wont to be elected Conseruatours of the Peace, in the full Countie before the Shirife and of this kinde I my selfe haue séene certaine Recordes (in Rotul: patent. de Anno. 5. E. 1.) running in this course. By Electiō.

First, a Writte to the Shirife of Norfolke, commaunding him to choose in his ful Coū ­tie, unum hom [...]nem de probioribus & potentio [...] ­bus Comitatus s [...], in custodem pacis.

Then an other Writte directed, Balliuis & fidelibus of the same Countie, giuing vnto thē notice of the former Writte, to the ende (as it séemeth) that the Bailies should warne the men of the Countie and that they should appeare at the Countie Court, to make the Election.

And lastlie, to the Conseruatour elected, this Writte following: Edwardus dei gratia Rex Angliae, Dominus Hyberniae, & dux Aqui­taniae, dilecto & fideli suo, Iohannt le Bretun Sa­lutem Cūvicecomes noster Norfolc et cōmunitas eiusdem comitatus elegerit vos in Custodem pa­cis nostrae, ibidem: vobis mandamus, quod ad hoc diligenter intendatis, prout idem vicecomes vo­bis scirifaciet exparte nostra, donec aliud inde praeceperimus. In cu [...]us rei &c. Datum per ma­num venerabilis patris. F. Bathon & Wellen. E­piscopi, Cancellarij nostri, apud Cest. secundo die [Page 18] Septemb. Annoregni nostri quinto.

Touching the conseruation of y ^e Peace by Tenure of Land: M. Marrow putteth this case: If the King graunt vnto a man, landes to holde of him by Kinghtes seruice, and to be a Conseruatour of the Peace in a Coun­tie, he is a Conseruatour by Tenure: agrea­bly wherevnto saith an Inquisition, founde at Chester (An. 4. E. 2.) after the death of one Vrianus de Sancto Petro (inter alia) thus: By Tenure.Touching the...

Quòd idem Vrianus tenuit de Domino Rege in capite in dominico suo vt de feodo die quo obyt, Medietatem Seriantiae pacis, per seruitium in­ueniendi, decem serutentes pacis ad Custodiam pacis in Cestr: pro qua quidē custodia antecessores sui percipere solebant. xxx. [...]. per annum ad scac­carium Cestr: pro Mantellis dictorum decem seruientum. &c.

These sortes, and some others (which M. Marrow reciteth, and whiche I, wanting Recordes to warrant them, do omitte) I cal Ordinarie Conseruatours of the Peace, by­cause thier auctoritie was then Ordinarie, alwayes one, and the same wel ynough knowen: Extraordi­narie con­seruatours. But the Extraordinarie Conser­uatour, as he was endowed with an higher power, so was he not ordinarilie appointed, but in the times of greate troubles onlie, much like as the Lieutenaunts of shires are [Page 19] now in our dayes.

And he had y ^e charge to defende the coasts and Countrey, both from forraine and in­warde enemies, and might commaund the Shirife and all the Shire, to aide and assiste him, as it may well appeare by this Patent (remayning of Record in the Tower, Rotul. Patent. de An. 49. H. 3.) made by that king, or rather in his name, by Simon the Earle of Leicester, whose prisoner he then was.

Rex Iohanni de Plesset, salutem: Cùm nuper de consilio Magnatum qui sunt de consilio nostro, constunerimus vos custodem pacis nostrae in comi­tatu Northumb. ac vos tam landabiliter & cir­cumspecte in officio illo gesseritis, quod probita­tem ac diligentiam vestram merito duximus recommendandam, & adhuc necesse sit (sicut in­telleximus) quod ad tuitionem partium illa­rum & conseruationem pacis nostrae, èìdem officio intendatis: vobis (de consilio Magnatum praedictorum) mandamies, firmiter iniungentes, quatenus omnem diligentiam (quam poteritis) adhibeatis ad pacem nostram conseruandam in partibus praedictis, in forma qua vobis aliâs iniū ­ximus. Mādauimus enim Vic: nostro Northumb. quod (quotiens opus fuerit) & à vobis fuerit re­quisitus, cum toto posse sui comit: vobis ad hoc as­sistat. Nolumus autem, quod praetextu huius mā ­dati nostri, de aliquibus (quae ad officium vic: per­tinent) [Page 20] vos intromittatis, quo minus vic: de exi­tibus eiusdem comit. nobis plenè respondere va­leat ad Scaccarium nostrum. Teste Rege, apud Westmonast. xj. die February, Anno Regni sui quadragesimo nono.

And sundrie the like Patents were at the same time also made: as to Iobn de la Haye, to be Conseruatour of Kent, and of the Sea coastes there: to Ralph Baslet of Drav [...]on, to be Conseruatour of Staffordshire, and so to others for other Counties.

Of the first ordaining of the Wardeins and Iustices of the Peace, by Statute Lawe.
CAP. IIII.

After suche time as Queene Isabell, con­tending with hir hus­band King Edwarde the second, was re­tourned ouer y ^e Seas into England, accom­panied with hir Son Prince Edward (called afterward the thirde King of that name) and with Sir Roger Mor­tymer [Page 21] and such others of the Englishe No­bilitie, as had for y ^e indignation of the King, fledde ouer the Seas vnto hir. She soone af­ter gotte into hir handes the person of the olde King, partlie by the assistaunce of the Hen [...]lders, that the brought with hir, and partlie by the aide of such other hir friends, as the found readie here, and immediatelye caused him by forced patience to surrender his Crowne to the young Prince. And then also, for as muche as it was (not without cause) feared, that some attempte would be made to rescue the imprisoned King, order was taken, that he should be canueyed (se­createlie, and by night watches) from house to house, and from Castle to Castle, to the ende that his fauourers should be ignorant what was become of him. Yea, and then withall, it was ordained by Parliament, in the life time of that deposed King, and in the varie first entrie of his sonnes raigne (1. E. 3. ca. 15) That in euerie Shire of the Realme, good man and lawful (which were no maintainers of euill. nor Barrettours, in the Countrey) should bee assigned, to keepe the peace: which was as much as to say, that in euerie Shire, the King himselfe should place speciall eyes and watches ouer the common people, that shoulde be both willing & wise [Page 22] to forsée, and be also enabled with méete au­ctoritie, to represse all intention of vproare and force, and that euen in the firste séede thereof, and before that it shoulde grow vp to any offer of daunger. So that, for thys cause (as I thinke) the election of the simple Conseruatours or Wardeins of the Peace, was first taken from the people, and trāsla­ted to the assignement of the King.

And whether their auctoritie and power were then also with this alteration anye thing increased, or no, I will not affirme: But I find (3. E. 3. Titul. Coron. Fitzh. 360.) that an Enditement of murder was founde before one Wardein of the Peace onlie, and that he therevpon wrote his letter (or pre­cept) to the Shirife, to apprehende the per­son endited, who tooke and brought him be­fore the Iustices in Eire, and that they also therevpon procéeded to the arraignemente and triall of him: And the Statute (4. E. 3. ca. 2.) taketh order that such as should be endi­ted, or taken by the Wardeins of the Peace, should not be bayled by the Shirife, or other Ministers, vnlesse they were Mainpernable by the Law.

Howsoever that were, the same King v­sed (as I thinke) for the first 33. yeares of his raigne, to make his assignements and [Page 23] commissions to the Wardeins of the Peace, not alwayes seuerallie into eache Shire, but sometimes iointlie to sundrie persons ouer sundrie Shires: for so I find a Comission 2. E. 3. part 2. patent. in dorso, made to William Roos and thrée others his companions, to be Wardeins of the Peace, not only in Lin­colneshire, but also in thrée or foure of the other Counties thervnto next adioining. Cōmissiōs, or assigne­ments, for the Peace.

And this mighte be warranted after 18. E. 3 (as I suppose) out of the Construction of the worde Countie vsed Plurally in the Statute. 18. E. 3. Stat. 2. ca. 2. contrarie to the meaning of the former lawes (made 1. E. 3. ca. 15. & 4. E. 3. ca. 2.) where the same word is read (Euerie Countie) in the Singular num­ber. But the Parliament (34. E. 3. ca. 1) resto­red the proper sense of those lawes, saying: In euer [...]e Countie of England, there shall bee assigned for the safe keeping of the Peace, one Lord, and with him, three or four of the mightiest men in that Countie. And after­wards, speaking of Felonies, &c. it addeth, They shall haue power to heare and deter­mine (at the Kings suite) al manner of the felo­nies or trespasses, done in the same Coun­tie.

Hereof it commeth to passe, that euer s [...] ­thence eche Coūtie hath her proper Cōmis­sioners [Page 24] for the Peace, & that Counties haue not bene conioyned in Commission, as they were sometimes before. Hereunto also may y ^t be referred, which M. Fitzh. (Fol. 171.) hath, saying, That before the Statues whiche or­dined Iustices of the Peace, the King vsed to make Conseruatours of the Peace by his commission, in those Counties and places, where he thought best, to kéepe his Peace.

But now, at what time these Wardeins of the Peace, were first named (and mighte truely be tearmed) Iustices of the Peace, it is not so cuident, that I dare determine vp­on it, for on the one side I knowe, that M. Marrow, taketh it cleare, that they were made Iustices by the Statute 18. E. 3. Stat. 2. ca. 2. and on the other side I sée, that they were not named Iustices in anye Statute (that I have founde) within 17. yeres after: and it is true to this verie Day theyr owne Commission giueth them not anye such Title. There is a shewe (I confesse) in that Statute (18. E. 3) that they sshoulde be Iustices, because of the power to heare and determine felonies whiche is mentioned there. The First name of Iustices of the Peace. But if it be well weighed, it will ap­peare by the Statute it selfe, that the War­deins of the peare were to haue one Com­mission by themseluse for the kéeping of the [Page 25] Peace, & that they and others (onely at times néedefull) were to haue an other Commis­sion to heare and determine Felonies: So that, as they were méerlye Commissioners for the Peace, they had none aucthoritie to determine felonies, and consequently could not (in regarde thereof) be then worthilye called Iustices: and it is plaine (in mine o­pinion) that the generall power of determi­ning felonies, was first given unto y ^e War­deins of the Peace (as to themselues) by the Statute 34. E. 3. ca. 1. After which time it is uerie true that were were commonlie repu­ted and called Iustices: for within one yere after y ^t time there is a Commission, which I have sséene ( in dor so patentium parte 2) that speaketh thus, Assignauimus etiam vos, & tres vestrum, Iustictarios nostros &c. and the Sta­tute (36. E. 3. ca. 12.) taking order for y ^e Quarter Sessions to be holden as well by them, as by the cōmissioners for Labourers, called both the sortes of them, by the name of Iustices.

I might here disclose, home, and by what degrées, the auctoritie of these Iustices of the Peace, was frō time to time enlarged: But I wil reserue that vntill I shall come to the forme of their Commission, where I shall finde, both fitter occasion, and more proper place for it.

By whose auctoritie, and by what means, Iustices of the peace be appointed: and of what sortes they bee.
CHAP. V.

FRom the king (who is the head of Iustice) ought to flow all au­coritie to the inferi­our and subalterne Iusrices. And vpō this reason, it séemeth that the said Statutes (18. E. 3. ca. 2 and 34. E. 3 ca. 1.) did ordaine, that the Wardeins of the Peace in each Countie should be assigned by the kings Commissiō, that it might thereby appeare that they re­ceiued their whole authoritie and power, as it were by his owne hande and deliuerie. Howbeit afterward, partly through such as had Iurategalia, within their Counties Pa­latine, and did thereby make Iustices of the Peace in their owne names, and part­ly by the meanes of sudrie Abbats and Re­ligious persons, who (labouring by all po­licie [Page 27] to increase their iurisdictions, and to shoale out themselues from the ordinary go­uernement) had obtayned graunts from the King of y ^e Realme, y ^t they thē selues might make Iusticiarious suos ad pacem coseruandam within their owne liberties, this preroga­tiue of making Iusstices was in manye pla­ces afterward seuered frō the Crowne, to no small detrimente of the royall estate of the same. And therefore, although by the opini­on of Iudge Fineux in the Abbat of S. Al­bans case (20. H. 7. 8.) such a graunt was of no value in lawe, because it was of a Preroga­tiue inseparablie annered to the Crowne, yet King Henrie the eight thought it fit (by a generall resumption in Parliament of all such liberties) to restore vnto the Crowne hir antient right in this behalfe. And there­vppon (27. H. 8. ca. 24.) it was decriéed, that no person whatsoeuer, should haue any po­wer to make Iustices of the Peace, but that they should be made by letters patents vn­der the Kings great seale, in the name and by the auctoritie of the King and his heires, Kings of the Realme, in all Shires, Counties Palatine, and other places within his domi­nions. So that now againe, al Iustices of the Peace at this day (except the Archbishop of Yoke, and the Bishops of Durham, and El [...]e, & [Page 28] their temporall Chauncelours for the time being, whiche are seuerallie by that verie Parliament auctorised to be Iustices of the Peace, within the libertie of Hexam, y ^e By­shopricke of Durham, and the Ile of Elte: and except the Iustices of Peace, within the Countie Palatine of Lancaster which also are by prouision in the same Statute to be made vuder the Kings vsual seale of the same Du­c [...]e) be ordained by the meane of the greate Seale, and ministerie of the L. Chauncelour, that hath the charge of the same, but yet so, that some of them be made by Letters Pa­tents vpon speciall sute to the Queene, and by hir bill assigned, and other some by Com­mission of Cōmune Cource that resteth in the dispensation of the L. Chauncelour. Two sortes of Iustices of the peace.

They of the firste sorte, be of some called Indiciall Iustices and Iustices of themselues, for that the Queene can not discharge them at hir will and pleasure, but they are to con­tinue, and to enioy Inrisdiction so far foorth as their Patent of graunt doth enable them. Mar. By graunt. And therefore, if the Queene do graunt vnto āmā to be a Iustice of the Peace during his life within a certaine precinct, without any further wordes: he shall continue such a Iustice during his life, and shall haue al that power that a Wardein or Conseruatour of [Page 29] the Peace had, and perhaps such power al­so as is gyuen so a Iustice of the Peace by expresse wordes in any Statute: but the shal not haue all that power which is ordinarily giuen so the Commissioners of the Peace by their Commission. Mar The Maiors, and other heade officers of manie Cities & cor­porate Townes, be Iustices of this kinde at thys daye, by grauntes of the Queene, & hyr progenitors.

Those other Iustices of the Peace, which deriue their power from the Commission, be called Commissioners of the Peace, and doe differ from the other in this point speci­allie, that they be Iustices during onely the Queenes life, and in hir life during only hir owne will and pleasure, as you shall here­after see at large, By Com­mission.

These (as I said) bée now at thys day ap­pointed by discretion of the Lord Chaū ­celour but whether the King himselfe did at the firste nominate them (as he did those whiche were made by Graunt) or else did leaue the choice of them to the Lord Chaun­celour alone, or to him and others, it hath some shew of question. Cōmissioners of the Peace, appointed by the Lord Chauncelor.

It is true that in the Parliament holde at Canterburte 12. R. 2. ca. 2. (which happened shortlie after that Michael de la pole had [Page 30] bene remoued from that place, and after the troublesome Parliamente of the eleauenth yeare of that kings raigne) It was enacted that the Chauncelour, Treasorer, and keeper of the priuie Scale, the Steward of the kings house, the kings Chamberlaine, the Clerke of the Rolles (now called Master of the Rol­les) the Iustices of both Benches, the Barons of the Escheaquer, and others that shoulde be called to the naming of the Iustices of the Peace, Shirifes, Eschactors, Customers, Con­trollers, and other officers, should be sworn to doe the same faithfullie, and without af­fection: But, whether the meaning of that Statute were, that they all should be con­tinually present togither at the nomination of all suche officers, and whether that Sta­tute were made but for that busy time only, it may well be doubted. For againe vppon fault founde (as it shoulde séeme) that the Commissioners of the Peace were made of persons insufficient, and dwelling in for­raine Coūties, it was enacted (2. H. 5. Parl. 2. ca. 1.) that from thencefoorth they should be assigned by the aduise of the Chauncelor & of the kings Counsel, which wordes may be taken to sounde as though they hadde bene named before, by the Lord Chauncelor a­lone: yet may they indifferentlye be exten­ded, [Page 31] either so adioine the aduise of the kings counsell to the Chauncelour, or the aduise of them both vnto the king him selfe.

This is out of al dout, that 18. H. 6. ca. II. did take order, that vpon knowledge giuen to the Chauncelour of England, by any ap­pointed to be a Iustice of Peace, that he had not lands to the value of twentie pound by years, the Chauncelor himselfe should put an other sufficiente in his place. And for want of sfficient men hauing lands of that value, learned in the Law, and good go­uernaunce, that the Chauncelour of Eng­land, for the time being, shold haue power, by his discreation to put into the Commis­sion other discrete persons learned in the Lawe, thoughe they had not landes to that value. And albeit this credite were here giuen vnto him in these particular cases onlie, yet it may wel be thought, that he had bene before, and shoulde be afterwarde, tru­sted with the choice of all the Commissio­ners of the Peace generallie, where of there is greate presumption also, euen vpon the Statute. 3. E. 6. ca. 1. that mentioneth, that the nomination of the Custos Rotulorum (being a verie speciall Iustice of the Peace) hadde of long time before belonged to the Office of [Page 32] the Chauncelour, till vpon some occasion it was take from him by the Statute of 37. H. 8 ca. 1. and therefore was then restored to him againe.

VVhat manner of men the Commissoners of the Peace ought to bee.
CHAP. VI.

IN the choice of the Wardeins and Iusti­ces of the Peace, the Statute lawes haue respecte to the man­ners and abilitie (or liuelihoode) of them all, and to the skil and learning of such as are speciallie selected, and therefore named of the Quo­rum. For, Gardeins of the Peace ought to bee good men and lawfull, no main­tainers of euill, nor Barretours in the Coun­trey, or (as some Bookes haue it) no maine­tainers of euill Barretours in the Countrey. 1. E. 3. ca. 15. Men of the beste reputation (Meultz vailantz) most substantiall (or of moste valour) shall be assigned keepers of [Page 33] of the Peace. 18. E. 3. ca. 2. &. 17. R. 2. ca. 9. In e­uerie Countie for safegarde of the Peace shal be assigned one Lord, and with him three or foure of the (Mieultes vanees) most valiant men of the Countie, togither with some Sa­ges of the lawes. 34. E. 3. ca. 1.

And after some troubles in the time of K. Richard. 2. it was enacted that none shalbe made Iustice of the Peace for any gift, bro­cage, fauour, or affection: nor any which su­eth by himselfe or any other, priuilie or o­penly, to be a Iustice of the Peace, shall bee admitted to that office, 12. R. 2. ca. 2. And of some special policie the also enacted, ca. 10 of the same parliamet, that no Steward of any Lord should be assigned in the Commissi­on of the Peace. 12. R. 2. ca. 10. Yet in y ^e Par­liament of the next year (ca. 7.) it was orde­red, that (notwithstanding that clause of the former Statute) Iustices of the Peace should then bee made of newe in all places, of the most sufficient Knightes, Esquires, and men of law.

Againe, Iustices of the Peace (especiallye those of the Quorum) from hencefoorthe shall be made of the most sufficient persons dwelling in the Countie (without taking any others dwelling in forraine Counties) except the Lords, Iustices of both Benches, [Page 34] Iustices of Assise, the chiefe Baron, the chiefe Stewards of the duchie of Lancaster, the Ser­iants, and the kings Attorney. 2. H. 5. Parl. 2. ca. 1.

Lastly, for that contrarie to these former Statutes, men of smal substaunce had crept into the Commission, whose pouertie made them both couetous & contemptible, a newe law was published to this effect following:

None shal be assigned Iustice of the Peace, if he haue not landes or tenementes to the value of twentie pounds by the yeare: And if any be otherwise appointed, he shal with­in a moneth after notice of the Commissi­on (and vnder the paine of twentie pounds, and to be put out of the Commission) giue knowledge of his not hauing such lands or tenements, to the Lord Chauncelour, who shall put an other person sufficiente in his place. And the like paine is, if he sit, or make warrant, or anye precepte, by force of the Commission. But this, extendeth not to Cities, Boroughes, or Townes that be Coū ­ties of themselues, or that haue Iustices of Peace (dwelling in them) by Commission or graunt of the king: Nor to such Counties where there be not men sufficient (hauing landes or tenements to the value aforesaid) learned in the lawe, and of good gouer­naunce: [Page 35] naunce: for then other discrete persons lear­ned in the Lawe, maye by the Lorde Chauncelour bee putte in the Commissi­on 18. H. 6. ca. 11.

Now although this portion of twentie pounds a yeare, be not at this day in account aunswerable to the charge and countenance fitte for a Iustice of the Peace, yet who kno­weth not, that at the making of this Lawe, it was farre otherwise: And I do not doubt, but as the rate of all things is greatlye ri­sen since that time, so is there also good care taken, that none he nowe placed in y ^e Com­mission, whose liuinges be not increased ac­cording to the same proportion.

And thus, our Parliaments (entending to make the Iustice of peace an able Iudge) doe require that he come furnished with thrée of the principall ornamentes of a Iudge, that is to saye, with Iustice, Wise­dome, and Fortitude, for to that summe the words, Good, Learned, Valiant, do wel amounte. And aboue all, that he loue & feare God aright, without whiche he can not bée [...]ounted Good at all.

How manie Commisioners of the Peace there ought to be in each Countie.
CAP. VII.

THE number of the Wardeins of y ^e peace, was not limitted, untill that the Sta­tute (18. E. 3. ca. 2.) or­denined, that there shuld be two or thrée in each Countie: And bycause it was founde, within a few years experience, that this number suffised not for the gouernaunce of the Countrie, there­fore by an Acte (made 34. E. 3. ca. 1.) it was further prouided, that in euerie Shire, one Lorde, and with him thrée (or foure) of the Best in the Countie, and some learned in the Lawes, shoulde be assigned for kéeping of the Peace, and to restraine offendors.

In execution of whiche Statute, there was (amongst many other) one Commissi­on for Kent, awared (35. E. 3.) to Robert Herle, Iohn Cobham, Roger Northwood, Ralph Ireningham, Thomas Lodelowe, Ro­bert [Page 37] bert Vintar, Iohn Barry, and Thomas Har­trege.

But, as it falleth out many times, that euill examples doe followe of good lawes: So here it came to passe, that whilest the Parliament prouided an increase of Officers, to restraine offendors, ambition so multi­plied the number of those Iustices, that it was after warde high time to make a con­trarie lawe to diminish them, And therefore, by the Statutes (12. R. 2. ca. 10. and 14. R. 2. ca. II.) it was prohibited, that there should not bée any moe than sire Iustices of the Peace in any Commission, besides the two Iusti­ces of Assise, and certaine Lordes that were assigned in the Parliament itselfe. And for the better restrainte of the increase of them in time to come, it was also then further e­nacted, that no Assotiation shoulde bée made to the Iustices of Peace, after their firste Commission. 12. R. 2. Ca. 10. Which lawe al­though it bée not abrogated till this day, yet it was lōg since cluded, by making of newe Commissions, that had more new Iustices thrust in to them.

And truelie it séemeth to me, that (togi­ther with the like ambitious desire of bea­ring rule in some) the growing number of the Statute lawes committed from time to [Page 38] time to the charge of the Iustices of y ^e Peace, hath bene the cause that they also are nowe againe increased to the ouerflowing of each Shire at this day. Verie many Iustices of Peace at this day.

For, if Hussey the chiefe Iustice (1. H. 7. 3) thought that it was ynough to loade all the Iustices of the Peace of those dayes, wyth the execution, onelie of the Statutes of Winchester, & Westminster, for Robberies and Felonies, the Statute of Forcible entries, the Statutes of Labourers, Vagaboundes, Li­ueries, Maintenaunce, Embracerie, and Shi­rifes: Then how many Iustices(thinke you) many now suffise (without breaking theyr backes)to beare so manie, not loades, but Stacks of Statutes, that haue since that time bene laide vppon them: To dispute, whether it be better to haue manye, or few Iustices of the Peace, in each Shire, (if all putte in were able for the place) is a noble question, & worthie of a higher considerati­on, and therefore it becommeth not mée to enter into it. Iustices of Peace be o­uerladen with Sta­tutes.

The forme of the Commis­sion of the Peace.
CHAP. VIII.

For as much as al the auctoritie and power of the Commissio­ners of the Peace, floweth out of theyr Commission, and the Statutes (as it were out of two Principall springs or fountaines) it is nowe time to vnfolde the Commission it selfe, and to sée what is contained in it. Two foun­taines of the power of Iustices of the Peace.

ELizabetha, Deigratia, Angliae, Franciae, & Hiberniae Reginae, fidei defensor &c. Praedi­lecto & fideli, Edmundo Cantuar. The salu [...] ­tion. Archiepiscopo &c. Necnon praedilectis Thomae Bromley militi, domino Cācellario, Willihelmo domino Burghley, Thesauriario &c. saluté. SCIATIS, quòd assig­nauim'vos, coniūctim et diuisim, adpacem nostrā, ac ad Statuta & ordinationes apud Winton. Nor­thampton, & Westmonasterium, pro oonseruatio­ [...]e pacis ciusdem, Necnon ad ordinationes ibid [...] [Page 40] & apud Cantabrigiam de venatoribuu, operarys, artificibus, seruitoribus, hostellarys, mendicantiꝰ & vegabundis, & alys hominiꝰ mendicātiꝰ qui se nominant Trauailing men. Et similiter ad Statuta & ordinationes apud Westmonast. anno regni Henrici quarti nuper Regis Angliae defun­cti, primo & secundo, de liberatis signorum socie­tatis, militibus, armigeris, seu valectis, & alys li­beratis pannorum minimè dandis, nec eis liberatis aliqualiter vtendis: Ac ad quoddam aliud Statutum Henrici quinti nuper Regis &c. in Parliamento apud Westmonasterium &c. De controfactura, lotura, tonsura, & al [...]a falsitura, monetae terrae nostrae similiter editum, iuxta vim, formam, & effectum eorūdem, custodiendum, & custodiri faciendum: Ac ad omnia alia ordinati­ones & Statuta, pro bonopacis nostrae, ac quieto regimine & gubernatione populi nostri edita, in omnibus & singulis suis articulis, in Comitatu nostro Kanciae, tam infra libertates, quàm extra (per quosreiveritas melius sciri potent) iuxta vim, formam, & effectum corūdem, custodienda, & custodiri facienda: Et ad omnes illos, quos (cō ­traformam ordinationum & Statutorum praedi­ctorum delinquentes inueneritis) castigandos, & puniendos, prout (secundum formam ordinationū & Statutorum praedictorum) fuerit faciendum: Et ad omnes illos, qui aliquibus de populo nostro (de corporibus suis, vel de incendio domorum sua [Page 41] rum) minas fecerint, ad sufficientem securitaetem de pace & bono gestu suo erganos & populū no­strum inueniendam, coram vobis venire, & si hu­insinodi securitatem inuenire recusauerint, tunc eos in prisonis nostris, quous (que) eiusmodi securitate inuencrint, saluos custodiri faciendum.

Assignauimus etiam vos: & quoscun (que) vestrū, Iusticiarios nostros, ad inquirendum per Sacra­mentum proborum & legalium hominum de co­mitatu praedicto (per quosrei veritas melius sciri poterit)de omnimodis felonys, transgressionibus, forstallarys, regratays, & extortionibus in comi­tatu praedicto per quoscun (que) & qualitercun (que). fa­ctis siue perpetratis, & quae ex nunc ibidem fieri vel attemptari contigerit: Et etiam de omnibus illis, qui in conuenticulis contra pacem nostram, & in perturbationem populi nostri, seu vi armata ierunt, vel equitauerūt, seu ex modo irevel equi­tare presumpserint: Et etiam de bys qui ad gen­tem nostram Mayhemandam, velinterficiendam in insidys iacuerunt, seu ex modo iacere presump­serint. Et etiam de omnibus illis, qui capitys, & alys liberatis de vnica secta, per confoederatione & pro manutenentiae, contra prohibitionem ac formam ordinationum & Statutorum praedicto­rum inde ante haec tempora factorum, vsifuerint, & alys huiusmodi liberatis imposterum vtenti­bus. Et etiam de hostellarys, & alys, qui in abusu mensurarum & ponderum, ac in venditione vi­ctualium, [Page 42] ac etiam de quibuscun (que), operarys, men­dicantibus, artificibus, seruitoribus, hostellarys, & vagabundis, ac alys qui contra formam ordi­nationum & Statutorum praedictorum (pro com­muni vtilitate regni nostri Angliae, & populi nostri eiusdem, de huiusmodivenatoribus, opera­rys, artificibus, seruiteribus, hostellarys, mendi­cantibus & vagabundis, ac alys inde factorū)de­liquerint, vel attemtauerint in comitatu praedicto, seu extunc delinquere, vel attemptare prae­sumpserint. 2. Clause Ac etiam de quibuscun (que) vicecomi­tibus, maioribus, Balliuis, Senescallis, Constaku­larys, ac custodibus Gaolorum qui (in executione officiorum suorum, erga huiusmodi artifices, serui­tores, laboratores, mendicantes, & vagabundos, acalios praedictorum, iuxta formam or dinationum & Statutorum pradictorum, faciendorum) inde­bitè se habuerint, & ex nunc indebitè se habere praesumpserint, aut tepidi, remissi, vel negligentes fuerint, aut ex nunc tepidos, remissos, vel negli­gentes fore contigerit: Et de omnibus & singulis suis Articulis & circumstantys, ac alys praemis­sis] (contra formam, ordinationum & Statutorum praedictorum, per quoscun (que) & qualitercun (que) fa­ctis, siue perpetratis, & qua ex nunc ibidem fier [...] vel attemptari contigerit) qualitercun (que) concer­nentibus plentius veritatem. Et ad indictamenta quaecun (que) (tam coram vobis, seu aliquibus ve­strum, aut alys nuper custodibus pacis & Iustice­arys [Page 43] domini Edwardi quarti, & Edwardi quinti super Reg: Anglia, ac R. 3. nuper (de facto, & non de iure) Regis Anglias, Necnon domini Henrici nuper Regis Angl. 7. Henrici octaui, Edwardi sexti, & Maria &c. ad huiusmodi felonias, trans­gressions, & malefacta in comit at a praedicto ais­dienda & terminanda assignatis, virtute diuer­sarum literarum corundem, Edwardi, Edwardi, Richardi, Henrici, Henrici, Edwardi, Maria, vobis aut alys factarum, facta & nondum termi­natae, quā coram vobis & sotys vestris nūc custo­dibus pacis nostre, & Iusticiarys nostris huiusmo­di virtute literarum nostrarum facta & nondum termenata) Inspicienda, ac ad procedendū inde, as processus (versus omnes alios, quos coram vobis seu aliquibus vestrum indictari contigerit, quo­vs (que) capiantur, reddantur, sew vtlagentur)facien­dos & continuandos.

Assignauimus etiam vos.79.78.77.&C. qua­tuor, tres, & duos vestrum (quorum aliquem vestrum, vos, A. B. C. D. &c. vnum esse volumus) Iusticiarios nostros, ad felonias praedictas, acea om­nia & singula quae per huiusmodi Hostellarios & alios, qui in abusu mensurarum & ponderum, ac in venditione victualium, & omnia alia quae per huiusmodi operarios, artifices, seruitores, labora­tores, mendicantes, & vagabundos, qui contra formam ordinationum & Statutorum praedicto­rum, seu in eneruationem coru [...]dem, in aliquoprae­sumpta, [Page 44] vel attemptata fuerint, vel attemptari contigerint: 3. Clause Ac extortiones & regratarias prae­dictas, tam ad sectā nostram, quàm aliorum quo­rumcun (que) (coram vobis, pronobis, aut pro seipsis) conqueri, aut persequi volentium, audiendam & terminandum: Necnon transgressiones, & for­stallarias praedictas, ac omnia alia (superius non declarata) ad determinanda ad sectam nostram tantum: Et omnia alia (quae virtute ordinationum & Statutorum praedictorum per custodes pacis nostrae & Iusticiarios nostros huiusmodi discuti & terminari debent)audienda & terminanda: Et ad eosdem operarios, artifices, & seruitores, per fines, redemptiones, & amerciamenta, ac alio modo, pro delictis suis, prout (ante ordinationem de punitione corporali huiusmodi operarys, arti­ficibus, & seruitoribus, pro delictis suis exhiben­da) factum fieri consueuit: Nec non eosdem vice­comites, maiores, Balliuos, Seneschallos, constabu­larios, ac custodes Gaolarum, venatores, vitella­rios, Hostellari [...]s, mendicantes, & vagabundos, su­per hys (quae contra formam ordinationum & Statutorum praedictorum attemptata fuerint, vel attemptari contigerint) castigandos & punien­dos, secundùm legem & consuetudinem praedictas, ac formam ordinationū Statutorū praedictorum.

Prouiso semper, quod si casus difficultatis super determinatione extortionum hu [...]smodi coram vobis venire contigerit, [...]nc ad Iudicium inde [Page 45] reddendum (nisi in praesentia vnius Iusticiariorū nostrorum, de vno vel de altero Banco, aut Iusti­ciariorum nostrorum ad Assis as in comitatu prae­dicto capiendas assignatorum) coram vobis mi­nimè procedatur. The charge to the Iu­stices. Et ideo vobis, et cuilibet vestrū mandamus, quod circa custodiam pacis ordina­tionum, & Statutorum praedictorū, diligenter in­tendatis, Et ad certos dies & loca (quos vos, seu aliqui vestrum, ad hoc prouideritis) diligenter super praemissa faciatis inquisitiones. Et praemissa omnia & singula audiatis & terminetis, ac ea faciatis & expleatis in forma praedicta, facturi inde quod ad iustitiam pertinet secundùm legem & consuetudinem regni nostri Angliae: Saluis no­bis amerciametis, & alys, ad nos inde spectantiꝰ.

Mandauimus enim vicecomiti nostro Kanciae, quod ad certos dies & loca (quos vos, seu aliqui vestrum, ei scire faciatis) venire faciat coram vobis, seu aliquibus vestrum, tot & tales probos & legales homines de Balliua sua, tam infra li­bertates, quàm extra, per quos rei veritas in prae­missis melius sciri poterit, & inquiri. To the Shirife.

Et vos prarfati Thom Wotton, ad dies & locae praedicta, breuia, praeceptae, processus, & indicta­menta praedicta, coram vobis & dictis socys ve­stris, venire faciatis, & ea inspiciatis, & debito fine terminetis, sicut praedictum est. In cuius rei testimonium &c. Datum. 6. die Aug. Anno reg­ninostri.21. To the Cu­stos Rotu­lourn.

Certaine obseruations, concerning the matter & forme of the Commission of the Peace.
CAP. IX.

MAister Fitzherberte, in his treatise of Iu­stices of te Peace, (Fo. 11. b.) séemeth to bée of the opiniō, that this forme of Com­mission was deuised, when Iustices Of the peace were first ordained: But (sauing the reuerence due to so learned a Iudge) I suspect that the matter is mistaken by him. For, besides that the Commission it selfe doth rehearse certaine Statutes made in the times of King Henrie the fourth, and of King Henrie the fift (many yeares after that Iu­stices of the peace were created) It is the agréeing opiniō of al the Iustices (2 R. 3.9.) y ^e Iustices of the peace had no power at y ^e first but only ad Conseruandā pacē Regis, and that afterward whē they had power giuen thē o­uer Felons, it was not ynough for them to say (in their Certificate of an Enditemente [Page 47] of Felonie) that it was founde, Coram Iusti­ciarijs Domini Regis, ad pacem in comitatu prae­dicto conseruandam, but that they must adde withall, Necnon ad diuersas felontas &c. and that otherwise their Certificat was of no value. And as it is euidēt, that (34 E. 3 ca. 1.) was the firste Statute that gaue to them that power to heare and determine felo­nies and trespasses: So there is a Precedent to be séene (35 E. 3. in dorso patent. parte. 2.) wherby it appeareth that the forme of their Commission was then enlarged according­ly. Alterations from time to time, of the Com­mission of the Peace.

After that time also, it is apparaunte, that sundrie things were by expresse com­maundement of diuerse Statutes put into theyr Commission, of whiche sorte bée these, the Statute (36. E. 3. ca. 12.) by whi­che there ought to be mention in the Com­mission, of the times of holding the Sessions of the Peace, although the same were after­wardes pretermitted, bycause 2. H. 5. ca. 4. did alter those times in apointing of others: the Acte (42. E. 3. ca. 6.) by whiche, auctoritie ouer Labourers was giuen unto them, and willed to bée putte into their Commis­sion: The Statute (5. H. 4. ca 3.) where­by it was commaunded, that mention of Winchester, (concerning watch) should be [Page 48] added so their Commission: and the Sta­tute (3. H. 5. ca. 7.) which tooke order that Iu­stices of Peace shoulde haue power by the Kings Commission to enquire of the coun­terfaiting and other falsifying of money.

Besides all whiche, it is verie probable and likelie, that the mention of Weightes and Measures, of Vagaboundes of Liueries, and of some other things, was first put into the Commission, after the making of these Statutes (34. E. 3. ca. 5. &.6. 7. R. 2. ca. 5:17. R. 2. ca. 4:2. H. 4. ca. 21.) and some others, whyche did first giue power to the Wardeins and Iu­stices of the Peace, to deale with those and some other matters. So farre of is it, that this Commission hath from the beginning retained one constant tenour and forme.

Yea, as I am verelie persuaded, that the forme of this Commission hath veried with the time, and receiued sundrie accessi­ons: so I trust hereafter to make it plaine, that it were conuenient to reforme it now also for diuers imperfections that do yet re­maine in it: euen as in our memorie, the Statute of Lollards, which was thrust into the Commission by 2. H. 5. ca. 7 and was (in Maister Fitz. own dayes) vsually read in it, is nowe vpon iust reason, as a thing sauou­ring of the pumpe (the Pope I woulde say) [Page 49] throwen cleane out of the booke.

But first, let me breake it (as it is) into partes, and leaue with you a few notes vp­on the same.

The whole substaunce of this Commis­sion, The partes of the Com­mission. is comprehended within these fewe tearmes:

• 1 The Salutation of the Prince,
• 2 The power of the Iustices: and
• 3 The Charge from the Prince, to

them, and others.

The Salutation of the Prince expresseth the names of the Iustices, 1. The Salu­tation. and hath nothing else in it that néedeth light.

Then followeth the Power of the Iustices, 2. The po­wer of the Iustices. whiche is comprehended in thrée clauses, whereof the first beginneth thus:

Sciatis quòd assignauimus vos, contunctim, & diuisim, ad pacem &c. custodienda, & custodiri fa­cienda:

The second beginneth in these wordes: Assignauimus etiam vos, & quoscun (que) vestrum, Iusticiarios nostros: ad inquirendum &c.

The last beginneth likewise: Assignaui­mus etiam vos, & duos vestrum, quorum &c. v­num essevolumus, ad felonias &c. audienda & terminanda.

The first Clause (or Assignauimus) giueth power to all, to many, or any one of them, First clause, or Assigna­uimus. [Page 50] (for so Maister Fitzherb. vnderstandeth the wordes, coniunctim & diuisim) to kéepe, and cause to be kepte, the Peace, and especially to kéepe these Statutes made for the main­tenaunce of the same, that is to say, first the Statute of Winchester, 13 E. 1. The the Sta­tute of Northampton. 2. E. 3. ca. 3. And the Statute of Westminster. 5. E. 3 ca. 14. whyche doeth concerne the Peace, and not (as Mai­ster Fitzh. wil haue it) the Statutes of West­minster, the first second, or thirde, whiche as they have almoste nothing concerning the matter of Peace, (that of W. 1. ca. 9. onely ex­cepted) so to go from the Statute of Northāp­ton to them, were to ascende, contrary to the course of the Commission, whiche descen­deth by degrées of age and time, from elder to latter lawes and Statutes: and for my Warrant herein, I vouche the Recorde (20. E. 3 in dorso patent. parte. 2. membrana. 7.) where in a Commission of the Peace to Adam of Scarborowe, and others, they are charged to putte in execution the Statutes, of Winche­ster, Northampton. and Westminster, made the fift yeare of that King. After this, the Sta­tute of Cambridge, whiche worde in déede (as Maister Fitzh. thinketh) is mistaken for Canterburie, and was made there. 12. R. 2. ca. [Page 51] 7.8.&.10 concerning Artuficers, Labourers, Seruauntes, and Ʋagaboundes:for of Hun­ters it hath no worde, whatsoeuer the Com­mission say of Venatoribus, whiche should be Viatoribus as I thinke:the Statute (1. H. 4. ca. 7:& 2. H. 4. ca. 21) of Liueries and Badges: and the Statute (3. H. 5. ca. 6.&.7.) of Coun­terfayting, Clipping, and Washing mo­ney.

The same Clause also giueth them po­wer to kéepe, and cause to be kepte, al other Statutes, made, pro bono pacis, & quieto re­gimine populi: by whiche wordes, the Com­mission meaneth (as I thinke) all Statutes for Armor, for that tendeth to the kéeping of the Peace, as the Statute of Winchester it selfe confesseth: All Statutes for arresting of Robbers, Murderers, Felons, Royotters, and Suspected Persons; whiche are euerie where saide to be againste the Peace: All Statutes concerning the duties of Shirifes, Bailifes, Conestables &c. without whiche the Peace can not be kepte, as the Sta­tute of Northampton (2. E. 3 ca. 4.) plainelie affirmeth:and al Statutes made for the re­pressing or punishment of Force, Violence, and Fighting.

This first Clause (or Assignauimus) is clo­sed vp with a declaration of the meane, by which they shall cause the Peace and these Statutes to be kepte:that is to saye, by cha­stising the offendors, either according to the orders of the saide Statutes, or by ta­king suertie of them for their kéeping of the Peace, or for their good abearing, or by im­prisonment vntil they wil be so bound.

But here, before I conclude this Clause, I must admonith the reader, that these sta­tutes of Laboure [...]s, Seruants, Artificers, and Vagaboundes, be repealed by new Actes of our time prouided in that behalfe, and that therefore they are vainely rehearsed in the Commissiō at this day. Imperfecti­ons in the Commissiō. It séemeth also that the Statute. (3. H. 5. ca. 6.) for the washing, clipping, and fyling of money, ought to haue no place in the Commission of the Peace at this day:for, those special Treasons be repea­led by the generall wordes of 1. Mariae, & al­though the same offences be made Treason againe by 5. Eliza. ca. 11. yet that newe Sta­tute giueth no power therein to the Iustices of the Peace. But yet, as concerning the counterfayting of false money, the Iustices of Peace haue still in mine opinion power, to enquire by vertue of that Statute (3. H. 5. ca. 7.) and by this Commission, bycause that [Page 53] that Treason was declared by the Statute. 25. E. 3. and therefore it is not now repealed by 1. Mariae, as the others were.

And these (as also y ^t mistaking of Cābridge, for Caterburie & the inserting of y ^t words (per quos rei veritas &c.) in thys first clause w ^tout any sense, & the stil calling of the that be the Commissioners, custodes pacis according to the old name, omitting throughe the whole course of the Cōmissiō, to giue vnto the once the name of Iustices of the Peace, althoughe in all Statutes since 36. E. 3. they be so cal­led) bée some of the imperfections that I meant, when I thought it méete to haue the Commission reformed.

Neither may I wel ouerpasse, that by these wordes (Et ad omnes illos quos contra formam Statutorum proedictorū &c. delinquentes inuene­ritis, pun iendos, prout secundùm formam Statu­torum proedictorum fueru faciendū. &c.) in this first Assignauimus, greater power seemeth to be giuen by the letter of the Commissiō, than is ment by the Author of the Commis­sion: for, by these wordes, it séemeth that one Iustice of the Peace may punish the Treason of counterfaiting, whiche I thinke is more thā is thought méete to be put into his hāvs. And in the commissions next folowing the Statute it selfe of 3. H. 5. euen for that rea­son [Page 54] was placed in the last Assignauimus of those Commissions.

The second Clause (or Assignauimus) first enableth all, or anie two, of these Iustices (for so M. Fitzh. taketh the words, Vos, & quoscun (que) vestrum) to enquire of al Felonies, and Trespasses, and of all offences done a­gainste those Statutes, that are contained within the same clause: and to enquire of all Shirifes, and other inferiour Officers, that be remisse in the execution of the saide laws & statutes committed to their charge. 2. Clause or Assignaui­ [...]s.

Then it authorizeth them, or any two of them, to procéede, and to make processe vpō al auntient & present Enditements. vntil the parties shal either be take, or shal yéeld theselues, or be outlawed for their contumacie. Here also, y ^t form of this Comission desireth help, in that there is reference made to those Statutes of Artificers, Labourers, and Vaga­boūds which be repealed as I told you. And also metiō made of Inditemets take to long ago, to make any processe out vpon them at this day.

But for as much as it auailed little to the correction of offendors, to haue their faults brought to light by Enquirie, vnlesse Iudgement & Execution had bene also giue & done vpon the same with some conuenient spéede, therefore the thirde Clause (or Assig­nauimus) [Page 55] in the Commission was added, which giueth power to the Iustices of the Peace, or to two of them (whereof the one muste be one of the select number of them, now commōly called of the Quorum, bicause the Cōmissiō in making y ^t choise beginneth with that word) to heare & determine al the offences cōprehended within the same, & to chastise the offendors according to the laws & customes of the Realme & according to the Statutes in that behalfe made & ordeyned. But yet so, that if any question (or difficul­tie) do arise concerning Extortions, the they should not procéede to Iudgement thereup­on, without the aduise of one of the Iustices, of the one Bench, or of the other or (who be their Commune Oracle for aunswere in Law) of the Iustices of Ass [...]s [...]. By the equitie of whiche Prouisoe, M. Fitzh. (Fo. 7.) thin­keth, that they are likewise restrayned in all cases of doubt whatsoeuer: howbeit he graunteth, that if they do procéede of the sel­ues, their Iudgement standeth good, vntil it be reuersed by Error. 3. Clause, or Assignaui­ [...]s. Decision of difficulties, or questiōs, arising be­fore Iustices of the peace. These of the Quorum, were wont not without iust cause to be cho­sen, specially for their learning in the laws of the Realme, and therefore there is no se­paratiō metioned, til the Commissiō come to giue the power to heare and determine, [Page 56] in which part that kinde of learning is most requisite and seruiceable. And this was the reason y ^t led the makers of y ^e Statuts. 18. E. 3. ca. 2.34. E. 3. ca. 1. &13. R. 2. ca. 7 to cause it to be expresly enacted, y ^t some lerned in y ^e laws should be put into the Commission: and all Statutes, that desire the presence of one of the Quorum, do secretly signifie such a lear­ned man. But here againe the Commission (chorda quae semper oberrat eadem) doth make muche relation to the saide Statutes that are not now at all.

The power giuen to these Iustices hathe appeared. 3. The charge to them, the Shirife, and Custos Rotu­lorum. Now let vs sée the charge giue to them and others. They therefore and euery of them be charged to be diligentlye inten­dant aboute the execution of the premisses, by these wordes, Et ideo vobis &c. but howe negligentlie many of them performe it, I am afraide it is too manifeste, whylest ambitiouslie séeking the name and power to rule, they take smal care of doing their due­tiful seruice that belōgeth thervnto. In this clause is contained a sauing vnto the prince of all amercements & other things that shal growe due vnto hir by reason of their pro­céedings therevpon: of which I will speake somewhat hereafter in place conuement.

The Shirife is saide to haue bene charged [Page 57] aforehand to be attendant in the Returne of Iuries before them, in these words, Manda­uimus enim Vicecomiti, &c. And the Custos Rotulorum (for it is meant of him, althoughe he be not so there called) is charged to bring the Records & Processe of the Peace, and in due sorte to consider and directe the same, by these words: Et vos praefatae Thom. Wootton, &c. Of whose office and authoritie somewhat shall be sayd also in particular in the second Booke of this treatise.

Of the two Othes mini­stred to the Iustices of the Peace.
CHAP. X.

SVch as occupie Iudi­cial places, ought to take héede what they doe, knowing (as Ie­hosaphat saide) that they exercise not the iudgements of Men onelie, but of God himselfe, whose power, as they doe partici­pate: The causes why Iustices be sworne. So he also is present on the Bench [Page 58] with them. And therefore, it hath béene al­wayes the policie of Christian lawes, to appoint méete formes of Religious attesta­tions (or Othes) for such Officers to take: meaning thereby, not onlie to set God con­tinually before their eyes (whome by suche Othe, they take to witnesse of their pro­mise, & call for reuege of their falshood:) but also to threate them (as it were) with tem­porall paines prouided against corrupt dea­lings, & withall, to strengthen their minds, and arme their courages, againste the force of humaine affections, whiche otherwise might allure & draw them out of the way.

Vpon this ground, the Statute (13. R. 2. Stat. 1. ca. 7.) which willed, that Iustices of the Peace should be made of new in all the Counties of England, did there withall take order, that they should be sworne, to keepe and put in execution, all the Statues tou­ching their office: whiche albeit that it be the firste Othe that I find to haue béene mi­nistred to Iustices of the Peace, yet I think they were not vnsworne before, nor at any time after, as may be collected vppon the bookes 21. E. 4.67. & 12. E. 4.18 and I beléeue also, that that manner of Othe was deui­sed but for that time onelie, and continued not long in that forme, as being of it selfe [Page 59] very generall, and hard to be obserued. And that (happily) was the cause, that it appea­reth to be changed to that forme, which M. Fitzh. in his Booke hath left vs, and which (with the alteration of a fewe wordes one­lie) is yet at this day put in vse.

For, vpon the renuing of the Commissi­on of the Peace (which nowe a days hap­neth as often as any person is newly brou­ghte into the same) there commeth of course a Writ of Dedimus potestatem, directed out of the Chauncerie to some auntient Iustice of the Peace, to take the Othe of him whose name is newly inserted, and to certifie the same into that Courte at suche daye as the Writ commaundeth. This Writ is at this daye accompanyed wyth twoo Scedules, whereof the one containeth the Othe of the Office of a Iustice of the Peace, in his forme:

Ye shall sweare, that as Iustice of the peace in the Countie of Kent, in all Articles in the Queenes Commission to you directed. yee shal doe egall right to the poore, and to the rich, after your cunning, wit, and power, and after the lawes and customes of the Realme, and Statutes thereof made: And yee shall not be counsell wyth anie quarrell hanging before you: And that ye [Page 60] hold your Sessions after the forme of Sta­tutes thereof made: And the issues, fines, & amercements, that shal happen to be made, and al forfaitures which shal fal before you, ye shal cause to be entred without anie cō ­cealement or embeaseling, and truely sende them to the Queenes Escheaquer. Surcease, in the printed Booke. Yee shal not Let for gift, or other cause, but wel and truly yee shal do your office of Iustice of the Peace in that behalfe, and that you take nothing for your Office of Iustice of the Peace to bee done, but of the Queene, and fees accustomed, and costes limited by the Statute: and yee shal not direct nor cause to bee direted, anie warrante (by you to bee made) to the parties, but yee shall direct them to the Bayliffes of the said Countie, or other the Queenes officers or ministers, or other indifferent persons, to do execution thereof: So help you God, and by the contents of this Booke. And his Saincts, in the Printed Booke.

The variance betwéene this and that el­der forme standeth (as you may sée by the Margent) in thrée points: whereof, twaine be of no waight at all, but the third did néed amendment. For, right godlie and wel did those 32. persons (that were put in truste to pen Ecclesiasticall lawes) purpose to make this lawe, amongst others:

Legitimun autem iuramentum, ys verbis, & nullis alys, suscipi volumus: Ita me Deus, per Dominum nostrum Iesum Christum adiu [...]et.

This Othe of the Office consisteth of sire Articles, which (for memories sake) I haue séene expressed in these 6. Verses folowing:

The other Scedule comprehendeth that forme of Othe, which (after the seconde a­bolishment of the vsurped authoritie of the Romish Pharao, by the ioyous entrie of our gratious Queene Elizabeth) was in the first Parliament of hir raigne (ca. 1) appoin­ted for Iustices of Peace (amongest others) to take, before that they should exercise the office: and it hath these words:

I William Lambarde, do vtterly testifie, and decleare in my conscience, that the Queenes Highnesse is the onely superame Gouernour of this Realme, and of all other hir Highnesse Dominions and Countries, as well in all spirituall and ecclesiasticall things (or cause) as temporall, and that no forraine Prince, Person, Prelate, State, or Po­tentate, hath, or ought to haue, any iurisdi­ctionm, [Page 62] power, superioritie, preheminence, or authoritie, ecclesiasticall or spirituall, within this realme: The Othe of Supre­macie. And therefore I do vtterly re­nounce and forsake al forraine iurisdiction, powers, superiorities, and authorities, and doe promise, that from hencefoorth I shall beare faith and true alleageaunce to the Queenes Highnesse, hir heires and lawfull successors, and (to my power) shal assist and defende all iurisdiction, priuiledge, prehe­minence, and authoritie graunted or belon­ging to the Queenes Highnesse, hir heires and successors, and vnited and annexed to the Imperiall Crowne of the Realme: So help me God, &c.

There hath bene care taken, once, or twice (in our memorie) to exact this latter Othe of all the Iustices of Peace through­out y ^e Realme, where of some good hath ensu­ed: But yet many a Iustice there is, that by indirect practise neuer tooke, neyther thys, nor the former, whereof what harmes doe, and may grow, I leaue to wiser and high­er men to be considered.

Of the power absolute, and limited, that the Iustices of the Peace haue.
CHAP. XI.

THe power of the Iu­stice of Peace, is in some cases Limited, & (in other some cases) Absolute: Discretion. By which latter word, I do not meane absolute Sim­ply, but after a Man­ner: For, they may neither hang a man for a gréeuous Trespas, nor fine him for a Felo­nie: and therefore this absolute authoritie is to our Law better knowen by the name of Discretion, because the Iustice of Peace may exercise sometimes Legis actionem and sometimes Iudicis officium, or (which is all one) Iudicium & Decretum, as the case shall offer, and the law suffer him.

It is a good Counsell (which Aristotle giueth in his Rhetorikes ad Theodectem that in the making of lawes, Quoad eius fieri pos­sit, quam plurima legibus ipsis definiantur, quàm [Page 64] paucissimaverò Iudicis arbitrio relinquantur: and the Commission of the Peace (follo­wing that aduise) doth leaue little (or no­thing) to the discreation of the Iustices of the Peace, but bindeth them faste with the chaines of the Lawes, customes, ordinances, and Statutes. Howbeit, our latter lawes of Parliament, although they also endeuour (for the most parte) to hold the same course, yet forasmuche as euerie considerable cir­cumstance can not be foreséene at the time of the making of the Lawe, they doe many times leaue to be supplied by the discretion of the Executioner of the Lawe, that thing which was not conueniently comprehen­ded before hand, by the wisedom of the ma­ker of y ^e Law. And therefore, although Dis­cretion be necessary in y ^e execution of euery law (be it neuer so certainely set forth, and bounded in it selfe) yet (in the mouth & lan­guage of our Lawe) that onelie and proper­ly is said to be done by Discretion, which is not specially limited with all the circum­stances, but is indifferently referred to the consideration of the Iustice that is putte in trust with it.

And truely it is to be wished, that Iusti­ces of the Peace would not by colour of this reference to their Discretion in some fewe [Page 65] cases arrogate vnto themselues authoritie to vse their discretion, & to play (as it were) the Chauncelours, in euery cause that com­meth before them. For no way better shall the Discretion of a Iustice of the Peace ap­peare, thā if he (remembring that he is Lex loquens) do containe himselfe within the lists of law, and (being soberly wise) do not vse his owne Discretion, but onely where both the law permitteth, and the present case requireth it. Right well saide Cicero: Est sapientis Iudicis cogttare, tantum sibi esse permissum, quantum sit commissum ac creditum.

Of the Iurisdiction, and Co­ertion, belonging to the Iusti­ces of Peace.
CHAP. XII.

AS Iustice can not bée administred without both a Declaration of the Law, and an Ex­ecution of the same: So, to the ende that our Iustices of the Peace may be able to deliuer Iustice, they are accomplished [Page 66] with double power, the one of Iurisdiction, and the other of Coertion, the which other men doe call Vocationem & Praehensionem, that is to say, Authoritie, not onelie to con­uent the persons, but also (after the cause heard and adiudged) to constraine them to obey their order and decrée.

This Iurisdiction of theirs is exercised, for the most part (if not althogither) aboute those causes which be in a maner the same that the Ciuil Lawyers do call, Iudicia pub­lica, partely, because the Prince (who repre­senteth the head of the common wealth) hath interest in the most of them, as wel as that priuate perso which is immediatly of­fended, and partely, because they are not commonly tryed by suche Action as other Ciuil and Priuate causes are, but rather by Criminall and Publique Accusation, Infor­mation, or Presentment. Iurisdictió.

And herein the Iustice of the Peace is by the one halfe superiour to the antient Con­seruatour of the Peace, who had onlie Co­ertion in a fewe cases, and no Iurisdiction in any case that I remember.

But if the aucthoritie of these Iustices should cease, when the fault is told, hearde, and adiudged, then should they be no better than halfe Iustices: and therefore the Law [Page 67] hath also Cohertion, Execution, (or pu­nishment) (as I said) into their hands, least otherwise their iudgements should be delu­ded for want of power to bring the to effect.

This Punishment then, is an orderly ex­ecution of a lawfull iudgement, layed vpon an offendour, by the minister of the Lawe: and it is done for foure causes: first, for the amendment of the offendor. Cohertior, or punishe­ment, for what causes it is appoin­ted. Secondly, for examples sake, that others may thereby bée kept from offeding. Thirdly for the main­tainance of the authoritie and credite of the person that is offended: & these thrée reasons be common to all such punishments. Sene­ca rehearseth the fourth finall cause, that is to say, that (wicked men being take away) the good may liue in better securitie: and this pertaineth not to all, but to Capitall punishments onelie, as euerie man may at the first hearing vnderstande.

The Romanes vsed specially, eight sortes of chastisements, knowen to them by these names, Damnum, Vincula, Verbera, Talio, Ig­nominia, Exilium, Seruitus, Mors, that is, losse of goods, imprisonment, stripes, retaliation, reproch, banishment, seruitude, & death: All which our lawe (before the Conquest) was wont to inflict, albeit that now, Seruitude, Retaliation, and Banishment, be out of vse.

The punishments that be commonly put in execution at this day, and wherewith the Iustices of the Peace haue to do, may be di­nided into Corporal & Pecuniarie. The sorts of punishment.

Corporal punishment, is eyther Capitall, or not Capitall. Corporall. Capitall (or deadly) punish­ment, is done sundrie wayes, as by hang­ing, burning, boyling, or pressing: not Ca­pitall, is of diuers sortes also, as cutting off the hand or eare, burning (or marking) the hand or face, boaring through the eare, whipping, imprisoning, stocking, setting on the Pillory, or Cucking stoole, which in olde time was called the Tumbrell. Of this kinde of punishment, our olde lawe (making pretious estimatiō of the liues of men) had moe sortes than we now haue, as pulling out the tongue for false rumours, cutting off the nose for adulterie, taking a­way the priuie partes for counterfaiting of money, &c.

Vnder the name of Pecuniarie punishe­ment, I cōprehend al Issues, Fines, a merc [...]a­ments. & Forfetures of offices, goods, or lāds. Pecuniarie.

And if the Iustices of Peace may by ver­tue of their Commission deale with suche Conspiratours, as do confederate togither, to cause any person vniustly to be indited of Felome, where of after ward he is acquited [Page 69] as some do think they may, thé is ther a spe­ciall punishment in that case appointed by lawe, which in 24. E. 3.73. is tearmed Vila­nous, and may be well called Infamous, because the iudgement in suche case shall he like vnto the auntient iudgement in At­taint, as it is saide 4. H. 5. Fitzh. I [...]famous. Iudgement 220. and is in 27. lib. Ass. P. 59. set downe to be, that their othes shall not be of any cre­dite after, nor lawfull for them in person to approch the Quéenes courts, & that their lands and goods be seazed into the Quéenes hands, their trées rooted vp, and they impri­soned, &c. And at this day y ^e punishmet ap­pointed for Periury (hauing somwhat more in it than Corporall or Pecuniarie paine) stretching to the discrediting of the testimo­nie of the offendor for euer after, may bée partaker of this name.

That Iustices of the Peace, bee Iudges of Recorde.
CAP. XIII.

IT maketh not a little, both for maintenance of the Peace, and for the credite of the Iustices thereof, that they are numbred amongst the Iudges of Recorde. [Page 70] for, on the one side euil doers wil be afraid, when they shall sée Memorialles of their wickednesse before their eies, and on the o­ther side, the procéedings of those Iustices shall be so much the more reuerenced & set by, as it shall appeare that their endeuours are countenaunced with the fauour of au­thoritie. And therefore let us sée what is meant by the word Recorde.

The Latine men vse Recordor, when they will signifie, to kéepe in minde, or to remé­ber, in which sense the Poet saide,

Recorde what it is.

And after the same sense also doeth oure Lawe use it. For, Records be nothing else but Memorialles, or Monuments of things done before Iudges that haue credite in that behalfe. And therefore, where King E. I. doth in the beginning of the Booke (called Britton) set foorth the Iudges of his Courtes, he saith of some, that they shall have autho­ritie of Record, and of others, that they shall beare Record, all which do meane but one thing, namely, that they shall be trusted in the reporte of causes happening before the: and we yet say in common speeche, Suche a man shall beare record of a thing, when we intend to say, that he remembreth it, and can beare witnesse of it. So that in the vse [Page 71] of the word there is (in maner) no differece, and therefore let us examine the matter.

One man may affyrme a thing, and an­other may deny it, but if a Record once saye the worde, no man shall be receiued to A­uerre (or speake) against it. For (saith M. Bracton Fol. 156. writing of a speciall case where the Shirife in his Countie hath Re­cord) If men shoulde bee admitted to deny the enrolled actes of the Court, then would there neuer bee any ende of controuersies. And therefore, to auoide all contention that may arise, whilest one saith one thing, and one other saith an other thing, the Lawe re­poseth if self wholy and solely in the report of the Iudge: and hereof it commeth, that he can not make any Substitute or Deputie in his office (as M. Bracton and Britton bothe, do affyrme) séeing that he may not put ouer the confidence that is put in him.

This Record or Testimonie, is first con­tained within the brest of the Iudge (as our Law speaketh) & afterward committed to y ^e Rolles, which are therefore figuratiuely cal­led Records also. For you may sée 7. H. 6.28. in Hildebrands case, 19. H. 6.9. and else­where, that during all the time of that Terme, in which any thing passeth before the Iustices at Westminister, the Record ther­of [Page 72] is in Scrinio pectoris, in their owne harts, or breasts, so y ^t they may at their own plea­sure correct or amend it: But that after the Terme ended, it is only in their Rolles, ouer y ^e which they haue no cōtrolment. The Rolles be Recordes. And this agréeth right well with that which Britton F. 01.3. affirmeth, saying in the Kings person thus: And albeit that we haue grāted to our Iustices to beare Record of the pleas pleded before the, yet by this we will not that their record shall be any warāt in their own wrōg, nor that they may raze or amed their Roll, nor make Record against their enrolment.

Thus much generally of al Iudges of Re­cord. Now touching our Iustice of y ^e Peace, it is y ^e opinion of the Court (9 E. 43 and 14. H. 8.16.) and of diuerse other Books in our lawe, that euerie one of them by himselfe is a Iudge of Recorde. For (as you haue heard) he is made by the great Scale a mat­ter of Recorde, and hath Iudiciall power giuen unto him, euen by the first Assignaui­mus. of y ^e Commission. He hath also a Scale of his Office, by the opinion of Brudnell. 14. H. 8.16. & if he make any Warrāt, although it be beyonde his auctoritie, yet it is not dis­putable by a Conestable, or other inferiour Minister, but must be obeyed. And he maye take a Recognisance for the Peace, as ap­peareth [Page 73] 7. H. 4.34 & common experience tel­leth it, which none cā do, but a Iudge of Re­corde, bicause the acknowledging of y ^e sum, is to remaine as a matter of Recorde. Yea by good opinion 2. H. 7.1. A Supersedeas of the Peace made by one Iustice of Peace, under his seale, being brought into the Sessions, is a sufficient Recorde to proue that there is a Recognisance of Peace taken by the same Iustice, and warrant ynoughe to call the partie bounde thereuppon, and if he make default to Recorde the same. Moreouer his Recorde or testimonie is made in some case of greater force and value than an Endite­ment by the oath of twelue men, for his Record (as shall appeare hereafter in place conuenient) shall conclude the partie so, that he shall not be admitted to Trauerse or gain­say it by 21. H. 6.5. F [...]zh. Fol. 18.6 & upon the statute 15. R. 2. ca. 2.11. H. 7. ca. 15. & 33. H. 8. c. 6.

Greate cause hathe the Iustice of Peace therefore, to take [...]iligente héede, that he a­buse not this credite, either to y ^e oppressing of any subiect, by making an untrue Re­corde, or to the defrauding of the Prince, by suppressing anye true Record. Much more reason is there to holde, that two Iustices of peace, or more sirting in the execution of their authoritie in open Sessions must néeds [Page 74] be taken to be Iudges of Recorde.

Howe long time the aucto­ritie of the Commissioners of the Peace is to indure: and by what meanes it may be suspended, or determined.
CHAP. XIIII.

WE haue alreadie tou­ched, that the power of the Commissioners of the Peace, is not perpetuall, but nowe the place serueth to handel it at full. The Commissioners of the Peace, are to continue during only the plea­sure of the Prince, by whose pleasure they were at the first appointed: and therefore, by the determination of that pleasure, their au­ctoritie ceasseth also. Besids the which, there are other means to determine their Acto­ritie, as namely the Accession of an other office, the Presence of a higher power, and in some speciall case the wante of Adiourne­ment of their Commission.

The pleasure of the Prince may bée de­termined either by expresse word, or by im­plication, [Page 75] or by death. By expresse word.

The Queenes Maiestie therefore, maye discharge the Commissioners of the Peace by hir expresse Writte, vnder the gret Seale. L. 5. E. 4.32. If she sende a Super sedeas to al the Commissioners of the Peace, that will sus­pende all their auctoritie. But yet so, as it may be reuiued by a Procedendo, and there­fore it doth not vtterlie determine their au­ctoritie, as may be gathered by 12. lib. Ass Pl. 21.

Againe, when the Queenes Maiestie maketh other Commissioners of the same kind within the same Limites, it is impli­ed thereby, that the former Commissioners shall have no longer power, although there be neuer a worde spoken of the discharge of the for the repugnācie. By imply­cation of a new Com­mission. 3. Mar. Regi. Brooke. Tit. Commssion. 24. But yet if there be Iu­stice of the Peace by Commission in a whole Countie, and afterward the Queene maketh another man Iustice of the Peace, in one Towne of the saide Countie, onelie Chocke was of opinion. General and proper Iustices. 10. E. 4.7. that the power of the first Commissioners continu­ed still in that Towne, bycause that is not altogither contrariant. And Iudge Fineux helde so also (20. H. 7.8.) that if the Queene make a proper Iustice of the Peace within [Page 76] a speciall Libertie, yet maye the generall Iustices of the Peace of y ^e Shire medle there also, vnlesse there be wordes of Prohibition in the Patent as, ꝙ nulli alij Iusticiarij nostri se intromittāt &c. If the antient Cōmission of the Peace were to foure persōs, & afterward the Queene should make one man a full Iu­stice of y ^e peace through y ^t same limit, during his life, then shoulde the handes of the fours Commissioners be closed, saith Marrow.

And a newe Commission pro hac vice tā ­tum will determine the olde: So also, a new Cōmissiō to heare and determine Felonies, determineth the olde Commission of the Peace concerning Felonies, but not concer­ning the Peace: And a new Commission of the Peace, ad inquirendum tantum, is a deter­mination of the old Commission, ad audi­endum & terminandum, by Mar.

But it is plain by y ^e preamble of y ^e statute 2. &. 3. Phil. & Mar. ca. 18 y ^t the law was take, y ^t if a Cōmission of y ^e Peace was first grāted to certain w ^tin a towne, & after another Cō ­mission had bin granted to other within the whole shire, that this had bene a Supersedeas to the Cōmissioners within the said towne.

Nowbeit this determination of the olde Commission (that we speake of) groweth not immediately by the making of a newe [Page 77] Cōmission but either after y ^e reading or pro­clayming of the new Cōmission at the Session of the Peace, or at the full Countie, or else by holding of some Session by vertue of the new Commission (in al which cases the old Commissioners must take notice of the new Commission) or els after the giuing of notice of the new Commission vnto the old Commissioners: for otherwise al the meane actes of the olde Commissioners be good in Law. Mar.&. 21. H. 6. 29. &. 34 lib. Assi. Pl. 28.

And for as much as some Cities & Corpo­rate townes found thē selues gréeued with y ^e Law stāding, as hath bin remebred, it was specially ordained by the said Statute (2. & 3. Phi.&. Mar. ca. 18.) y ^t a Commission of the Peace and Gaole deliuerie made to a Citie or corporate towne (not being a Countie by it selfe) should not be determined by the ma­king of such an other Commission after to any of the Shire, Lath, Rape or Wapentake, in the which, that Citie or towne standeth.

Finally, it is to be noted, y ^t in al cases wher an auntient Commission of the peace is de­termined by a new, yet no Processe, or Suite (hanging before y ^e old Commissioners) shall be discontinued therby by the Statute. 11. H. 6. ca. 6 &. I. E. 6. ca. 7.

By y ^e death or demise of y ^e Prince also dieth [Page 78] the power of all the Commissioners of the Peace made by him: for he maketh the Iu­sticiarios suos, so that he being once deade, or hauing giuen ouer his Crowne, they are no more his Iustices, and the Iustices of the next Prince they shal not be, vnlesse he wil make them his. 4. E. 4.44. &. 1. E. 5.1. By death.

If sseacute;emeth, that some toke the Lawe to bée, that if a Iustice of the Peace were crea­ted a Duke, Marquesse, Earle, Vicount, or Baron, or elected an Archbishop, or Bishop, or made a Knight, or Iustice of any of the two Benches, or Serieant at the lawe, that then his Office of the Peace was determi­ned therby, bycause it could not be thought, that (his name being changed) he should re­maine the same person: Accession of a new of­fice or cal­ling. And so if he were made Shirife, that his Iusticeship ceased al­so, bicause (as Marrow faith) he could not be both a Iustice & an Officer to direct & serue, his owne Precepts: and so likewise was it thought of him, if he were made a Coroner, but not so if he were made an Vndershirife. And therefore, for the declaration of the Law in the most of these cases, it was ena­ded (1. E. 6. ca. 7.) that if a Iustice of the Peace were made Duke, Marquesse, Erle. Vicount, Baron, Archbishop, Bishop, Iustice of y ^e one Benche or other, Knight, Serieant at the [Page 79] Law, or Shirife, y ^e yet he shuld be Iustice of y ^e Peace still: But that acte was afterwarde upon good reason controlled in parte, and a newe law made (I. Mar. Parl. I. ca. 8.) by whi­che it was ordered, that no man shoulde ex­ercise the office of a Iustice of the Peace, du­ring only the time that he is Shirife of the same Countie, wherein he is also Iustice of the peace.

Furthermore, if the Iustices in Eire (be­ing of a higher power than Iustices of the Peace) doe (after proclamation ther of firste made) come into any Countie and sit there by vertue of their auctorities, then ceaseth the auctoritie of the Commissioners of the Peace by Mar. By the presence of a higher power. And he thinketh so likewise if the kings bench bpō proclamation therof made, shoulde remoue into any Countie. But aske of this, for if it should be so, then it may be some question also what is wrought by the comming of the Iustices of the Nis [...] ­prius into the Countrie, who doe ordinarily bring Commission of Oyer, & Determiner, and of Gaole deliuerie with them.

Lastly, it Iustices of the Peace, that haue a Commission has vice tantum, do sit by ver­tue of their Commission, & do not Adiourne the same, it séemeth that their Commission is determined therby, Brokke. Tit. Commis­sion. 11. By want of adjourne­ment.

That al the autctoritie of the Iustices of the Peace is exercised, eiy ther out of the Sessons, or at, (or by reason of) the Sessions, of the Peace. &c.
CAP. XV.

HItherto I haue dila­ted that which lyeth in y ^e first part of the Definition of the Iu­stices of peace, I haue withal giuen you a Theoricque (or In­sight, its it were) of their whole Office, in the wing what it is, when it began, how it is endowed, by what meanes it is maintained, and after what fort it may be determined. A summe of that which in saide.

But now, for as much as all the power of the Iustices of the Peace is directed to that end whiche is disclosed in the latter parte of the same Definition, namelye, For the conseruation of the Peace, & for the ex­ecution of their Commission and of the Sta­tutes committed to their charge, it is méete, [Page 81] that I enter into the Practicque of their Of­sice & dutie, & shew you from pointe to point how the fame is to be done & administred.

And for y ^e more lightsome procéeding here­in, I will set swrth the power of the Iustices of the Peace by a Distribution thoughe not Essential yet such as may suffice to conueigh my whole meaning.

Whether therefore, the Iustices of the Peace, doe (by vertue of the Commission, or Statutes) enquire, or Heare and Deter­mine by the may of I [...]sdietion or else doc keep (or cause to be kepte) the Peace or doc punishe and execute, by waye of Coertion. And whether the same also be done, by their Regular power, or Absolute auctoritie: It is always pradised and done, either out of the Sessions of the Peace, or else at (or by reason of) the Sessions of the Peace. A partition of that whi­ch foloweth in both these bookes.

And that which is done out of the Sessi­ons is either such as one Iustice alone maye doc, or else it requireth the helpe I presence of other Iustices with him. And therefore first of that whiche one Iustice alone maye doe out of the Sessions. The summe of that whi­che is here­after con­teinedin this f [...]st booke.

Of Suertie of the Peace, and the Good Abearing: and ofsundrie things incident vnto the lame. And what one Iustice of Peace out of the Ses sions may do therin.
CHAP. XVI.

FDr as much as the Conseruation of the Peace standeth, partlye in prouiding that it be not broken, and partlye in punishing such as haue alreadie biolated and broke it: and for that any one Iustice of the Peace is sustici­ently armed with audoritie (out of the Ses­sopms) to preuent the breache of the Peare, both by taking Suertie for the kéeping of it, and for the good behauiour also of offenders, I thinke good, first to shem what Suertie of the Peace is: then to open howe it maye bée commaunded: after that to declare, how the same commaundement shall be executed I brought to effect: fourthly, to disclose what shal become of the Suerty when it is taken: and lastly, to describe the Suerty of the good behauiour or good Abearing, I to conferre the handling therof with that of the Peace. The partes of this Chapter.

The auntient Normans had a manner of Suertie of the Peare, whiche they named Treues (the same that we cal Truce) I which [Page 83] they bsed to giue after this order. He of whom it was demanded, did (in ope Court) take hun by the hande, that demaunded it, I did withall solemnely sweare, that neither he, nor anye of his, shoulde doe him harme. But or Bouernours, knowing that euill men be more restrayned by los se of goods, than by conscience of an oath, haue dsed to take sure bonds, and that to the Prince, for the securitie of such as be in feare. And there­fore, I wil at this day cal Suertie of y peace, An acknowledging of a bond tothe Prince, taken by a Iudge of Recorde, for the keeping of the Peace. What suerty of the Peace, is. And it is called Suertie of is the word Securitas, bicause the partie that was in seare, is thereby the more quiet and secure.

This Suertie may a Iustice of the Peace commaunde, either as a Minister when hée is willed to do it by a higher auctoritie: or as a Iudge when he doth it of his owne power deriued from his Commission He doth it as a minister, when the writte of Supplicauit, (which in old time was called breue de minis as appeareth by y ^e Register) directed out of y ^e Chauncerie is deliuered into his hands: for then he only is to direct his Precept to come pel the partie vpon that writ to find Suertie for the Peace. Suertie of Peace taken vpon a Sut­plicauit by a Iustice of the Peace Minister. 21. H. 7.20. Fineux.

Suertie of the Peace, taken by a Iustice of the Peace 23 A Iustice of the Peace may also by ber­tue of his Office and as he is a Iudge, com­maunds this Suertie to be founde, and that [Page 86] either of his owne motion and disreation, or else at the requeste and prayer of an o­ther.

For he maye cause a Commune Barret­tour, Ryotter one that maketh an Affray, or other person to him Suspected, to finde Su­crtie of the Peace [...] E. 4.3. Curia And if hée sée menne contending in hotte wordes, and threatening the one to hurte (or kill) the other, he may of Disereation and oughte of Duety (as I thinke) to commaunde them to finde Suerty of the Peace, and thereby prouide for their mutuall fafetie. By his owne discreation. For as he is put in trust with the care of the Peace: so oughte he both to imploy his witte, and to vse hys auctoritie, to preunt the Breache of the ssame. And if a man that was bound to kéepe the Peace, haue broken his bounde, the Iustice of Peace oughte of Discreation to bynde hym of nelne. 21 E. 4. 40. & Mar­row.

And his authoritie is so little to bée con­trolled in this matter, that, Mayster Mar­row is of the opinion, that if a Iustice of the Peace shoud procure one man to demaund Suerty of the Peace againste an other, and hée hum selfe shoulde graunte a Warrant for it, by whyche the partie is arrested, yet no [Page 87] Action woulde lye againste that Iustice for so doing: bycause he might haue graunted it without anye demaunde made: and then it shall not bée sayde but that he sawe cause to prouoke the partie to aske it and himselfe to graunt it.

I doc on on the other fide remember, that a Iustice of the Peace, was putte out of the Commission of the Peace by order in the Starre Chamber, for that Peace offered vn­to hym by one that was commanded (by an other Iustice of the Peace in the same Share) to finde Suertie of the Peace, to whome (as the [...]artie alleaged) he durst [...] not go to offer it, for feare that he would ex­ecute vppon him the malice that he bare a­gainst him.

In commaunding this Suertye, at the suite of an other, or of his owne discreation, sundrie things are wiselie to be considered, first, for whom, and against whom, then for what cause and how it ought to be required or commanded, and lastly by what meanes it shall be enioyned. Suertie, at the request of an other.

The wife, if the be thretned to be killed, or to be outragiously chastised, by hyr husbād, may with g [...]d reason demaunde the Peace [Page 88] against him. For whom, and againste whom, [...] ­cr [...]e of the Peace lyeth. Fitz. Nat. Br. Fo. 80. &. 239. And I do not doubt but a Iustice map in suche a case cōmaunder it vpon his own discreation.

The husbande also maye demaunde the Peace against his owne wife in such a case: and any man may demaunde it against the wife of an other. Mar.

A man attainted of Treason. Or Felonie, or conuicte of Heresie, or Abiured, a Dumbe man, or an Infant, (though within 14 yeres of age) or a Villaine against his Lord, maye demaunde and ought to haue, Suertie of the Peace, Mar. And I doe not finde any strong reason why the Lord against his dillaine, or an other mā against a dumbe mā or against an infant aboue the age of 14 yeares, ought not vpon good cause to haue it, thoughe the two last can not well be bound themselues. But a madde man shall not haue Suertie of the Peace, at his owne request ( as Mayster Marrow thought) bycause he hath no discre­tion to aske it: and therefore (if there bée rause) he oughte to bée prouided for by the discreation of the Iustice, as I thinke.

A man attainted in a Premunire, or that is an A [...]ren borne, and no Denizein, oughte not to haue this Suertie at his desire, as M. Marrow taketh it: But perhappes he would haue changed his opinion, in the case of [Page 89] Premunire, if he had liued at this time, vp­on the Statute [...]. Elrzab [...] [...] for, such a mā may not now be killed, as though he were out of the protection of the [...]: And as touching the A [...]e [...], some think there ought to be a difference betwéene suche an A [...]ren, as is of the En [...] of the Qu [...] and him that is of hir Amity: for the Statutes ( Mag. Cart. ca. 30.9. E. 3 ca. I 4. E. [...] S [...]. ca [...]. and sundrie others) do all vse that difference in Merchant straungers, and doe prouide, that such of the as be not Enrmies, of the Realm, may both safely come into the Realme, and farry here, and go hence, at their pleasures.

But the case may well be doubted of, be­cause the Commission it self séemeth to au­thorise the Iustice of Peace, no further thā to prouide for the Duéenes people, of whi­che number no A [...]en séemeth to be. But may any Ahen may not be bound to the Peace, I do not for.

Furthermore, one Iustice of the Peace, (faith [...]. Mar. ow) may graunt this Suert [...]e to any man, against one of his fellow Iusti­ces. But, as M. Marrcw requireth a Discre­tion in a [...] of the Peace, when Suertie is craued of him against a Shirife, Coroner, Escheator, or such other Officer, (whom he witheth not to be bound to keep the Peace [Page 90] versus cunctum populum, but onely towardes him that prayeth it, least otherwise it shuld argue the to be unworthie of such Offices:) so muche more he ought to vse good discreat­ion, in graunting it against his fellow Iustice, least otherwise he both bring the Of­fice in contempt, and himselfe to reproofe by it. But I doubt not, but that one Iustice of Peace (if he will) may pray suretie of the Peace at the hands of his fellow Iustice a­gainst an other person, & the recognisance may then be according to the cōmon forme, with an & praecipuè versus, &c.

Neitherto of those, for whom, and against whom the Iustice of Peace may grant this Surety when it shal be required, which wil suffice to give light what to doe in like cases. Suretie of the Peace a­gainst a Lord But som others ther be perhaps with whom he may not wel medle. As if any mā haue cause to require y ^e peace against a Lord, he for so small a cause is not to be arrested (as I take it) by warrant from a Iustice, nor yet by a Supplicauit out of the Chaunce­rie.) But the Lord Chauncelor may in such case graunt to the partie a Subpoena against that Lord for it, as it seemeth by 35. H 6. Fitz. Tit. Subpoena. 20. For such an opinion the law hath had of the peaceable disposition of Noble men, that it hathe béene thought y­nough, [Page 91] to take one of their promises vpō Ho no [...] that he would not breake the Peace a­gainst a man. If we may beléeue the report of M. Brooke T [...]. Contempts. 6. to be true.

The cause for which this Suretie of the peace may be required or commanded, ap­péereth in the first Assig [...] of the Com­mission of the Peace, in these wordes, Et ad omnes [...]lios qui aliquibus de populo nostro, (de cor poribus suis vel de incendio domorum suarū) mi­nas fecerint, ad sufficiente securitate de pace &c. inueniendam, &c. which M Fitz. so. 8. constru­eth thus. For what causes Surety of the Peace may be re­quired. He that is the thretned, that he shal be hurt in his bodie, or that his house or goods shal be brent, may demaunde Suretie of the peace for his safegard in that behalfe. But (faith the court 17. E. 4. 4) if a man wil de­mand the Peace, because he is in feare that an other man will take & imprison hym, it ought not to be graunted: & one yéeldeth the reason to be, because he may have a Writte de homine replegiando, or an Action of false imprisomnent, and may thereby recover the damages of his imprisonment.

The same reason might be made against the demand of the Peace, where a man is threatned with Batterie, and yet it is cleare, that in suche a case the Suretie of Peace ought not to bée denyed him: & truly [Page 92] to threaten imprisonment, is within the words Minas de corporibus, no lesse than Bat­terie it selfe, and like harme may happen by hard imprisonment, & cruel beating. It shal bée good therefore to enquire of this matter.

The Peace being thus for good cause re­quired, it is the common manner to cracte an Dathe of the party, whereby the Iustice may be the better informed and induced to thinke, that the party doth not aske it for malitious veration of an other, but of very feare, & for the néedfull safetie of hym­selfe and his. How Sure­tie of the peace is to be required By Oathe. And M. Fitzh. (in his Nat. Bre. Fol. 79) laboureth to shew, that the Iustices of the Peace ought not (without such an Dathe) to graunt this Suretie of the Peace at any mans sute. Forasmuch as not onely the Iudges of the Kyngs Bench do yet take an othe in such cases, but the antient course of the Law was such in the Chauncerie it selfe also, although it be now adayes other­wise used there. And that a Iustice in this case may the better Iudges of this Feare, let him hearken what M. Bracton Fol. 16. saith: Me [...]us est (saith he) praesentis, vel futuripe­riculi causa mentis trepidatio, talis enim debet esse metus, qui in se contineat mortis periculum, vel corporis cruciatum. And therefore, if a Iustice of the Peace, doe pereceiue, that the [Page 93] peace is demaunded against such a person, as for his impotencie is not like to breake the Peace, he may safely deny it, sayth M. Marrow: But, Satius est peccare in alteram partem as I suppose, leaft (if he bée staine that demaunded it) the Iustice be worthily blamed, for that he prouided not for his life and safetie. And besides, the common forme of the Recognisance, is to bind a man from procuring hurte, which any impotent man is able to do.

It resteth, that I shewe, by what meane this Suretie may be enioyned: and that is, either by Word, or by Writing under Seale. By what meanes Suretie of the Peace, shall be en­ioyned By Word. For a Iustice of the Peace, may by word onelie commaunde a man (being in his presence) to finde Suretie of the Peace. 9. E. 4. 3. for, séeing that he is a Iudge of Re­cord (saith M. Fitzh. Fol. 8.) his Precept by mouth is stronger than his Precept in Wri­ting.

So if the Peace be demaunded againste one that is in his presence, hée may com­maund the [...]wor [...]fe, or other knowen Offi­cer, or his own seruant (if they be then pre­sent also) to arrest the partie to finde thys Suretie 14. H. 7. 8. & Mar. But, if [...]yther the Officer, Seruant or Party be absent, then it is requisite to make a Warrant (or Pre­cept) [Page 94] in writing: The forme wherof may be thus in Englishe: for I sée no cause yet why it should be directed in Latine to a Co­nestable or Bortholder, that (by all presūp­tion) understandeth no Latine. By writing, or a Precept for the Peace

It is méete, that the precept for the peace, do expresly containe the cause of the Peace, within it: for otherwise, how can the Offi­cer or Party, take knowledge, that Suretie, must be prouided for it: Yea (by the way let me say it) euery Precept (made by a Iustice of the Peace) ought to comprehende the speciall matter vppon which it procée­deth, euen as all the Queenes Writtes doe beare their proper cause in theyr mouth with them.

And, as for the Forme that is now com­monly vsed (To aunsweare to such things as shall be objected) it was not fetched out of the olde and learned Precedents, but lately brought in by such as eyther knewe not, or cared not, what they writte.

The Warrant of the Peace is the better also, if it beare Date of the place where it was made: for if a man be to pleade suche a Precepte for his excuse in an Action of [Page 97] false imprisonment brought againste him, he oughte (in his Plea) to shewe the place where the Warrant was made. 14. H. 8.18.

And this Precept may also be directed to any indifferent person, by name, though he be no Officer at all: for so it séemeth to bée permitted in the Oath of the Iustices of the Peace, and so is the Booke also 14. H. 8. [...]8.

The commanding of Suretie of the Peace hath thus appeared: and nowe the execution, and bringing of that commande­ment to effect, must next be disclosed. How the commaun­dement of the Peace shall be executed.

The execution of this Precept standeth, partely in seruing the Precept it selfe: and partely in taking the Recognisaunce, if the partie doe come with Sureties, and that there be no let in the way.

And because (for the moste parte) there is but one and the same manner of doing, whe­ther the Precept come from the Iustice of the Peace, as he is a Minister or as hée is a Iudge, I also will handle them togither, no­ting, by the may, those few differences that shall arise betwéene them.

If suche a Precept be made iointly to twaine, yet the one alone may serue it: If it be directed to the Shirife, he may commaund his Baylife, Vndershirife, or other (sworne and knowne) Officer, to serue it, without [Page 98] writing any Precept. The seruing of the Pre­cept for the peace. But if he wil cōmand another mā (that is no such Officer) to serue it, he must giue him a writte Precept, for o­ther wise a Wnt of false imprisonment wil lye for the Arrest But if it be directed to the Baylife, or to a seruāt of a Iustice of y ^e peace, or other stranger, they muste serue it them­selues, for they can commaunde none other to do it, neither by word nor Precept. Mar.

A sworne and known Officer nédeth not to shew this Warrant, whe he doth serue if vpō a mā 8. E. 4.14: & 20. H. 7.13. &c for his Office doth after a sort auctorize him. But if the Iustice wil set his seruā to serue it, y ^e seruant must shewe the Warrant (if y ^e party demaunde it) and otherwise the party may make resistaunce, 8. E. 4.14. A Iustice of the Peace (saith M. Brooke Titulo Peace. 9.) may make this Warrant returnable before him­self, & the Baylife néedeth not to carry y ^e par­tie before any other Iustice. But Iudge Fi­neux (21. H. 7.20) saith, y ^e if a Iustice of the Peace do make a Warrāt of y ^e Peace Ex of­ficio, (y ^t is, without any Writ of Supplicauit directed vnto him) thē the partie may choose to appeare before him, or any other Iustice in the Shire, and that he shall punishe the Baylife in false imprisonmēt, if he do other­wise compell him: But that other wise it is in the execution of the Writ of Supplicauit: [Page 99] for he, to whose hands it is first deliuered, is aucthorized to execute & returne the Writ alone. And thervpon M. Fitz. (in his Nat. br. Fo. 81.) affirmeth, that if such a Writ of Sup­plicauit bée deliuered to y ^e shirife, the he may both execute it alone, & also take Suertie by Recognusance (thogh otherwise, being but a Conseruator he could not do it) because the Writ doth enable him so to do: yet y ^e opinion of Littleton, 9. E. 4.31. is to y ^e contrary of that.

The officer ought also to require the par­tie to come & finde Suertie of the Peace be­fore that he do arrest him, by the opinion 5. E. 4.13. And in truth, the common forme of the Precept is, And if he refuse so to doe, that then he shal conuey him to the Gaole: and therefore, if he wil willingly come and finde Suertie, the Officer may neyther ab­solutely arrest him, nor take fée of him.

And this may be the cause, that when one vpon such Warrant commeth to a Iustice of the Peace to find such Suertie, the Iustice néedeth not againe to demaunde suertie of him, but may commit him, if he do not offer Suertie as the opinion is. 14. H. 7.9.

If a Baylife do arrest a man for the peace, before that he haue any Warrant, & then af­ter ward do procure a Warrant for it, this is valawfully done, and will not excuse [Page 100] him in an Action of false imprisonmēt, ibi­de [...]. But if the Baylife do cause one by force of a Warrant, to come and finde Suretie of the Peace, & when the partie commeth, the Iustice will no binde him, yet the Baylife is excused.21. H. 7.22.

If Suretie of the Peace be required at the handes of a Iustice of the Peace (that dwel­leth out of the Countie) against a mā with­in the Countie, the Iustice may graunte a Precept to be serued in the Countie, but when the partie shall be therevpon warned and commaunded to finde Suretie the Offi­cer may not haue him out of the Countie to the Iustice of Peace that made the Warrāt, Marr. For, a Iustice of y ^e Peace hath no au­tozitie, but in the Countie where he is Iustice by 13. E. 4.8. & Coment. Plowd. 37 & ther­fore it may be doubted also whether suche a Warrāt be good, or no. The Case was there, that a Iustice of Peace in one Countie pur­sued a Felon, & tooke him in an other Coun­tie, wherevpon it was holden, that he ought to be committed to the Gaole of the Coun­ty wherein he was taken, and not of the Countie, wherein he which tooke hym was a Iustice, for that, he (being out of hys countie had no more authoritie, than a priuate man. But I thinke tha Baylife may [Page 101] not dispute the sufficiencie or insufficiencie of such a Warrant, bicause he that awar­deth it is a Iudge of Recorde 14. H. 8.18.

That whych hath béene hitherto saide is of the execution of the foriner parte of the Warrant for the Peace, that is so saye, to warne and cause the partie to come and finde Surety for the Peace. But if it falout, that he refuse to come and put in such Sure­ty then may the Officer, by vertue of hys Warrant conuey him to prison. For (if you remember) the [...]rdes are, And if he shall refuse, then, &c. And now for our better in­struction, let vs sée what an Arrest is.

Budee in his Greeke Commetaries, is of the opinion, that the Freeh word (Arrest) whych wyth them signifieth a Decree, or Iudgement of Court, tooke beginning of the Greeke [...] that is, placitum and (as we might say) the Pleasure (or wil) of a Court. What [...] Arrest i [...].

And albeit that it were not out of our [...] way, to thinke that it is called Arrest, be­cause it stayeth (or resteth) the partie, yet I beléeue rather that we receiued the name from the Normane lawes, because wée vse it in the same sense wyth them: For com­monly wyth vs an Arrest is taken for the execution of the commaundement of some Courte, or of some Officer in Iustice. But [Page 102] howsoeuer the name beganne, An Arrest is a certaine restraint of a mans person, depri­uing it of his own wil and libertie, and bin­ding it to become obedient to the will of the Lawe: and it may bée called the begin­ning of Imprisonment. The Precepts and Writs of the higher Courts of Lawe, do vse to expresse it by two sundry wordes, as Ca­pias and Attachias, which signifie, to take (or catch) holde of a man. But this our Precept noteth it by the wordes Duci facias (cause him to be conueyed, &c.) for that the Officer hath (after a sorte) taken him before, in that he commeth vnto him, and requireth him to goe to some Iustice of the Peace.

To this Arrest al persons (vnder the de­grée of Lords, (or Péeres) of the Realme) be subiect: And Ecclesiasticall persons (if they bée not attendant vpon diuine seruice) may bée arrested for the Peace also: Mar.

The ende therefore is, that if the partie wil not come to finde Suertie of the Peace, the Officer may (vpon that Warrant) arrest and carry him to the Gaole, where hée shall remaine, vntill that hée will fréely offer, & finde it. Deliuerie of him that is impriso­ned for re­fusing to finde Suertie But it is good to be enquired whe­ther the Release, or Death of him that pray­ed the Peace will not bée sufficient cause to deliuer such a prisoner: and if it shall bée, [Page 103] then by what order hée shall bée deliuered. For as it séemeth to some, y ^t any Iustice of the Peace, may (vppon his offer) take the Suertie and deliuer him: so it may bée some doubt, whether hée may bée deliuered (vpon the death, or release of the partie) wythout the helpe of a Sessions, or Gaole deliuerie.

It appeareth 4. E 4.16. and by the opini­on of Bryan. 2 H. 7.2. & 4. that if such an im­prisoned person had a sute hanging in the Common place aforehand, he might by a Writ of Priuilege be discharged of y ^e same, if they partie, at whose sute he was arrested for the Peace, were not ready in Court at the day of the returne of the Writ when hée should be called to pray y ^e Suertie of y ^e peace there again against him, & saith, that it had bin alwaies their cōmon course so to do: but diuers other there were of a cōtrary opinio, & it séemeth a hard case, y ^t without any suffi­cient notice of such a remouing of the par­tie, a mā shold be defeated of his Suertie so.

But now, if the partie shal yéelde to finde Suertie of the Peace, then may he at his li­bertie, if the Precept procéede Ex offici [...], and without the Writ of Supplicauit, go to any Iustice of the Peace, to offer this Suertie. To what Iustice bee that is ar­rested may goe.

Herevppon it happeneth often, that such persōs, (choosing rather to be bound by any other, thā him that maketh y ^e Warrāt) [Page 104] hauing any suspitiō of such a precept awar­ded or likely to be awarded, do offer them­selues, & become bounde before some other Iustice. And therevpon do procure a Super­sedeas from him to be discharged of any o­ther Arrest to be made. Yea, & many times (hearing of such Precepts, and mis [...]iking to be boūd in the Countrie) they go vp to West minister, and giue Suretie of the Peace there, either in y ^e Kings Bench for a time only (as the maner of that Court is (or in the Chaū ­ce [...]ie for euer (as they vse it there) and doe wythall procure a super sedeas from the Court where they are bounde, to close the handes of the Countrie Iustices. And there­fore it is not amisse to say somewhat of this matter of supersedeas also.

If a Iustice of the Peace then will (by a Supersedeas) discharge a Precept of the Peace, that was made by his felow Iustice, he shal do wel to take the Recognusance ac­cording to the day of apparance (if ther be a­ny) & after the forme of y ^e former Precept (if there be any). Supersedeas by a Iustice of the Peace For, as it is good reason, that hauing taken Suertie for the Peace, he may by this Supersedeas saue the partie from fin­ding other Suertie for the same cause: So is it againste reason, that he shoulde giue the partie anye other daye of apparaunce [Page 105] than the Precept had, and thereby discharge a matter of Recorde that was made by one of equall aucthoritie with hym. Fitzh. Fol. 9. Much lesse may the Supersedeas of a Iu­stice of the Peace, discharge a Precept of his fellow Iustice procéeding by vertue of a Sup­plicauit, for that it is of an higher auctoritie. Mar.

This Supersedeas sente by a Iustice of the Peace, is sufficiēt, although it neither name the Suerties, nor contain the sūmes in which they are boūd: But yet it is y ^e better form to expresse the both, as well bycause the higher Courts vse so to doe: as also if the Bailife, Constable, or other Officer (to whom it is deliuered in discharge of his Warrant) bée called at the nexte Sessions by the suite of him that sought to haue the Peace, to shewe how he hath executed his Warrant, and hée come in and shew foorth the Supersedeas, the partie that is bounde may be called there­vpon, at the day that appeareth to be limi­ted vnto him by y ^e Supersedeas, for it is vnder the seale of a Iustice, and doth testifye that the partie is bound and hath founde suertie, to appeare at a certaine day, and if he make default, that being Recorded shall bée suffi­cient to cause him to forfaite the penaltie of the Recognisance, although the Iustice that [Page 106] made it out, shal happen not to bring in the Recognusance it selfe, according as he now ought to doe by the Statute. 3. H. 7. ca. 1. And this may be gathered vpon the opinion. 2. H. 7.1 and maye bée séene by this form of it here vnder written.

Thus muche of the Supersedeas issuing from a Iustice of the Peace, the which ought to with-holde and stay the procéeding of his [Page 108] fellowe Iustices in the saide cause: in so muche that if anye Officer by any of their Warrants hauing this Supersedea deliue­red to him, wil neuerthelesse vrge the par­tie to finde new Suerty for the peace, he may refuse to giue it, and (if he be committed to prison for suche his refusall) he maye (as I thinke) haue his action of False Imprison­mente againste the Officer vppon the same.

Much more then will a Supersedeas, that commeth out of the Chauncerie, or Kings Benche, or from anye Iustice of the Kings Bench, discharge such a Precept for y ^e Peace awarded from any Iustice of the Peace. Supersedeas out of an higher court. And therefore, if the Iustice of the Peace (to whō such a Supersedeas shal be deliuered) wil not thervpon surcease, an Attachment may be awarded against him, for his comtempt, and he may be imprisoned, and fined, for it. It is good counsell therefore, that M. Fitz (in hys Nat. Br. Fo. 238) giueth, where he willeth the Iustices of the Peace (after such a Super­sedeas receiued) to forbeare to make anye Warrant to arrest the partie. & it they haue awarded it, then to make their owne Super­sedeas to the Shirife and other Officers, ther­by commaunding them to surcease to exe­cute it.

This impediment of Supersedeas (lying after this sort as you haue séene in the waye to the Iustice of the Peace) thus passed o­uer, let vs nowe suppose the partie serued with the precepte, to come before some Iu­stice of the Peace, and let vs enter into the taking of the Recognusance of him, for that is one part of the execution of the Warrant for the Peace, and may doe seruice whether the partie come to him that made the Pre­cept, or to any other. The taking of the Re­cognusance, for the Peace.

If the Iustice of the Peace deale in thys matter, as a Iudge, and by vertue of the Commission, then the number of the Suer­ties, the summe of their bonde, their suffici­entie in goods or landes, the time how long he shall be bounde, and some other such cir­cumstances, are referred wholie to his own consideration, and if he be deceiued in the abilitie of the Suerties, hée maye compell the parties to put in others: Marrow.

The Commune manner is, to take two Suerties, desides the partie himselfe: and good reason it is that those shuld be such as haue their names registred in the Booke of Subsidie: for albeit that here and there some maye be sufficient, that were not as­sessed to the Queene, yet it standeth not well togither that hée shoulde become [Page 110] bounde to the Prince in tenne or twentie poundes, that was not in the Subsidie found worth any thing at all.

But if he commmaunde the Peace as a Minister in execution of the Writts of Sup­plicauit, then he must behaue himselfe as the Writte it selfe directeth him: and that hath not bene alwayes after one manner: for some forme commaundeth him to take suf­ficiente Manucaptors in any peine (or sum) to bée reasonably set by himselfe, so that hée will bée aunswerable for it at his owne pe­rill: and some willeth him to take sufficient Suertie in a summe certainelye prescribed vnto him, as a hundred poundes, in all, or e­uerie of them in twentie pounds, as it may bée séene at large, in the Register of Writtes Fo. 89.

A Iustice of the Peace (saith Maister Mar­row) maye take this Suertie by a Gage, or Pledge, which shall not be forfaited therby, but paunded onely, that the partie shall (vn­der a certaine peine) kéepe the Peace, whi­che peine he shall forfaite, it he breake the Peace. And (by his opinion) a Iustice of the Peace may also take this Suertie by an ob­ligation made to himselfe, by the name of Iustice of the Peace: For so shall it bée (saith hée) advsum Domini Regis: But if it were [Page 111] made vnto him without his name of Iustice of the Peace, that then it coulde not bée to the vse of the King, vnlesse it had the words, advsum Domini Regis. Maister Fitzharbert, on the other side (in his Nat. Bre. Fo. 81.) hol­deth, that suche an Obligation taken to the King, by a Iustice of the Peace, is nothing worth: for a man can not bée bounde to the Prince (sayeth he) but onelye by matter of Recorde, vnlesse he will afterwarde come into a Courte of Recorde and cònfesse it to bée his déede, & pray that it may bée Enrolled there.

But the new Statute (33. H. 8. ca. 39) hathe made a plaine law in these cases, & willeth y ^t all Obligations and Specialities (made for any cause touching the King) shal bee made in his own name, by the words Domino Re­g [...], & to none other person to his vse: & it or­daineth further, that such bonds shal bee of the nature of a Statue Staple: and that if a­ny person take any obligation otherwise, he shal bee imprisoned at the pleasure of the King, or of his honorable Counsell.

The safe way therfore, is to take this Su­ertie by Recognusance as is cōmonly vsed, & that also by the words Dominae Reginae and then (vpon the forfeiture therof) the Queene shall haue execution accordingly.

Now, if a Recognusance be ment to be taken for the Peace, by a Iustice of the Peace, and yet do not containe within it, or in the condition thereof, that it was ta­ken For the keeping of the Peace, it sée­meth to be voide, as being then taken, co­ram non Iudice bicause a Iustice of the Peace hath not power to take Recognusances ge­nerallie, but for matters concerning his Office specially. And therefore Maister Mar­row addeth further, that if the Recognusance bée, That the Recognusor shall not mayme, nor beate A. yet it is not good, bicause it oughte to be For the keeping of the Peace, and that may be broken otherwise, as by burning y ^e house of A. or such like misde­meanour.

Although this Recognusance do not com­prehende any day, in which the Recognusor shall appeare, but bée generally to kéepe the Peace, yet it is good inough in Law: for the chiefe matter is, The keeping of the Peace, & the time referred to the discretion of the Iustice, and so is it, by Maister Marrow, if a day of his apparance be put into the Recog­nusance, and no person be named in it, be­fore whom the partie ought to appeare: for he may then (saith he) appeare where he wil before that Iustice of the Peace which tooke [Page 113] the Recognusance of him.

And if the Recognusaunce be in xx. [...]. to be leuied only of the goods, or only of y ^e lāds, of the Recognusor, it séemeth to bée good y­nough: for peraduenture the wordes, Of the goods only or Landes only, shal be taken to bée void, séing that the verie acknowledge­ment of the sum of xx. [...]. (before a Iudge en­abled to take it) both maketh it a debt, and implyeth the ordinarie meane of Law to come by it.

If this Recognusance be taken, To Keepe the Peace againste one speciall partie onlye, M. Marrow thinketh it good: but aduize well of it, for the wordes in the Commission of the Peace bée, to take suertie Erganos, & po­pulum nostrum.

But, for the better eschewing of Error & hard dealing in making this Recognusance of the Peace, it is good to vse the receiued forme, which is thus:

And this may bée wel done also, by a single Recognusance in Latine, with a conditiō ad­ded in English, for the kéeping of the Peace, and for the day and place of the parties ap­parance at the Quarter Sessions.

The Suertie (or Recognusance) of y ^e Peace, thus cōmaunded, & accaōplished, order draw­eth me to disclose, how y ^e Iustice of the peace is to demeane himselfe with it. What shall be done, with the Recognusace.

If the Suertie were taken, by vertue of a Supplicauit, then must the Iustice of y ^e Peace (being in this case but a Minister) make re­tourn of y ^e Writ, & a Certificat of his doing, into the Court frō whence y ^e Supplicauit did procéed, for help wherein, I wil set him down that which I haue séene put in practise vpon [...] Writ of that kinde. The return [...] of a Suppli­cauit.

First, let him note vpon the backe of the Supplicauit thus:

Then may that Scedule be thus:

And if a Certiorari be directed out of the Chauncerie to the Iustice of the Peace for this Recognusance, because it was not sente vp togither with the Certificat, (as there was no necessitie that it should) then that Writ also may be thus aunsweared. The returne of a Certio­rari.

Vpon the backe of the Writte, thus:

The which Scedule may be thus: ‘Memorandum, quod 20. die Iun. &c.’ (reciting the whole Recognusance to the end therof.) Then, ‘ In cuius rei testimonium ego praedictus W. L. sigillum meum apposui: Dat. &c.’

And this may serue also, where a Certio­rari is brought to a Iustice of the Peace, to remoue a Recognusance of the Peace taken by him Ex officio, without any such Writ of Supplicauit, as you may reade in the Regi­ster, Fol. 90.

But if the Recognusāce be not thus remo­ued from the Iustice of y ^e Peace, then may he kéep it till the Certiorari come to him for it.

On the other side, if y ^e Recognusance were take by vertue of his Office, than (whether it were by his own discretion, or at the sute and desire of another) he must send, or bring it in at the next Sessions, to the Custos Ro­tulorum, so that the Recognusor may be ther called, and if he make default, then the same default to be recorded, as is appointed by y ^e Statute. 3. H. 7. ca 1. The certify­ing of the Recognusace and release to the Ses­sions.

And here againe, some difficulties doe a­rise, y ^e may make the Iustice of Peace some­times doubtfull, howe to holde, certifie, or sende in the Recognusaunce. For sundrie meanes there are, by which this Recognu­sance of the Peace may (before any forfey­ture therof made) be after a sort discharged, and therfore let vs consider them apart, and withal giue some aduise what shal bée beste to do therein.

The Iustice of Peace, that of his owne motiō compelleth one to giue Suertie of the Peace vntil a certaine day, may by like dis­creation before that day, may by release it Fitzh. Fo. 10. Release of the Peace by a Iustice of Peace. And if it shoulde fortune to be made to kéepe the Peace generally, without any day limitted, then would it be construed that it was to continue during the life of the partie bound, and then could no man release it, by Fitz. & 21. E. 4 40 If (at the suite of A.) y ^t Re­cognusance should bée taken, To keepe the Peace against A only and none other, then may A. release it either before the same Iu­stice, or anye other that will certifie the Re­lease, which certificate being of Record, wil discharge it, for to release it by his déede, is nothing worth. Mar.

And so if it bee versus cunctum populum, & praecipue versus A. yet may A. after that sorte [Page 119] release it (as I thinke) notwithstanding the opinion 21. E. 4.40. for albeit y ^e it séeme popu­lar, so y ^e others should haue equal interest w ^t A in it, yet was it taken specially for his sa­fetie, as the word Praecipu [...] doth argue plain. And M. Brooke saith truely, that it is so vsed at this day.

But whether the Recognusance bée at the suite of A. or by the méere motion of the Iustice in the behalfe of A. the Queene can not release or pardon it (before that it bée for­feited) both for the mischiefe that may come to A therby, by Fineux his opinion 11. H. 7. 12 & for that the Recognusance being taken according to y ^e cōmon forme, as is before set down, it is not properly a debt to y ^e Queene vntil it bée forfeited, as appeareth 11. H. 4.43: 1. H 7.10. But being forfeited, she (and none other) may pardon the forfeiture, for then it is become hir proper debt. Now in these cases, y ^e Recognusance may not bée Cancel­led, least peraduenture y ^e Peace was broke (& consequetly y ^e Recognusance forfeited) be­fore the time of the Release made, Fitz. Fo. 10. & therfore it shal be best in such cases to send to the Sessions the Recognusance & the Re­lease togither: & that may bée done in a fewe Lines vnder the Recognusaunce it selfe:

First for the release of the Iustice, thus:

And for the release of the Partie before the same Iustice that tooke it, thus:

But if the release be made before an other Iustice which hath not the Recognusaunce, then this later forme must be fremed accor­dingly.

Furthermore, if a man be bounde before a Iustice of the Peace, to kéepe the Peace a­gainst all the Queenes people, & to appeare at the next Quarter Sessions, and doe after­warde procure a Supersedeas; oute of the Chauncerie, testifying, that he hath founde [Page 121] suertie there against al the Queenes people for euer, this will discharge his aparance at the Sessions, because the graunting of this Supersedeas is the Acte of the Quéene, which is the fountaine of Iustice, and controlleth all other authoritie, Fitz. Fol. 9. Certifying of the Recog­nusance, & Supersedeas. But if that Supersedeas should testifie, that he hath foūd Suertie in the Chauncerie, but onelie vntill a certaine day (which day is after those Sessions) then M. Fitzh. thinketh, that his ap­parance at the Sessions shall not be dischar­ged by the Supersedeas. In both these cases also, I would aduise y ^e Iustice of the Peace, to send in the Recognusance and the Super­sedeas also, if it commeth to his hands, for peraduenture the Recognusaunce was bro­ken before the Supersedeas purchased: or, if. it were not, yet he shall be excused, and the Recognusor neuer a whit the more endan­gered thereby.

Lastly, the death of the Prince dischargeth the Recognusance of the peace. 1. H. 7.2. Cur. So doth the death of the Recognusor: & so also doth the death of him at whose sute it was taken, if so be, that it were made to kéepe the Peace against him alone.

But although the Mainpernours or Suer­ties die, yet the Recognusance liueth: for, if the Peace be broke after their deaths, their [Page 122] executors shal be charged with it. Certifying of the Re­co [...]sance, though it be discharged by death. 21. E. 4.40. Neither (in the former cases) is the Recog­nusance discharged by such death, if it were forfaited before.

And therefore, here againe my counseld is, to sende in the Recognusance to the Cu­stos Rotulorum, for other wise, how shall the Iustice of Peace be assured, that he doth not defraude the Queene of a forfaiture, that was growen vnto hir.

Thus haue I both bound the party to the Peace, & conueyed the Recognusance from the Iustice of the Peace to the Custos R [...]ulo­rum, readie to be called vpon at the Quarter Sessions: So that I might forthwith pro­céede to treate of the good Abearing: But, beacuse I haue tolde you (out of M. Mar. and by 21. E. 4. 40.) that if the Recognusāce of the Peace be forfeited, and that forfaiture bée leuied, so that the Recognusance is vtterly determined, yet (of Discrtion) the par­tie is to bée compelled to finde new Suer­tie or else to be sent to prison, because it app­éreth euidētly, that he hath broken peace, and is a stubborn offendor against the law, I thinke it fit to run swiftly ouer some few things that may enfourme a Iustice of the Peace, concerning suche forfaitures, to the end, that he may therevpon compell the of­fendor accordingly. Causes of forfaiture, so that the partie shall be compel­led to giue new Suerties

The Condition of this Recognusaunce (of what good forme soeur you make it) standeth upon two points: the one, for ap­parance at a time, the other, for kéeping the Peace in the meane while. Of th firste of these I haue, said somwhat already in thys Chapiter: concerning the second point, this is generall, that whatsoeuer Act is a breach of the Peach, the doing therof doth als be­get a forfeiture of the Recognusance that is made for keeping of the Peace: and what actes shall amount to a breach of the Peace, I will hereafter shew, in the next Chapiter of this Booke, where I shall (to an other end) haue méete place for it. In the meane space, take thus much here.

If a man bée bound to kéepe the Peace a­gainst A & doe afterward threaten A to his face, that he wil beate him, hie hath forfaited his Recognusance. And an Action of Tres­passe lieth at the Common law against him y ^e shall threaten one to beate him, as appée­reth in diuers Books cases. 3. H. 6 18: 37. H. 6. 20. & shall suppose it to be Contra pacem. But other wise it is, if A be not presente at that threatning, by good opinion. 18. E. 4. 28. yet if (in the absence of A.) he doth threaten, that he will beate him, & then do after ward lie in await to beate him, he hath in that case also [Page 124] brokē his Recognusance. 22. E. 4. 35. per Cur.

Like forfeiture is it, he that is bound do but commaund or procure an other to break the Peace vpon any man, or to do any other vnlawfull acte against the Peace, if that it be done indéede. 7. H. 4. 34. & Brooke Tit. Peace. 20. tempore. H. 8.

For closing vp of this parte (concerning the Preuention of the breach of the Peace) it remayneth, that I entreate of the Suertie of good Abearing, which is of great affini­tie with that of the Peace, as being proui­ded for preseruation of the Peace, as that o [...] ther is: for in the Commission of the Peace, they are bothe conueyed vnder this one tract of speach, (Ad securitatem de pace & bono ge­stu suo erga nos & populum nostrum inuenien­dum) against such as doe threaten hurte to mens bodies, or Fier to their houses, which things are now commonly preuented by Suertie of the Peace only. Of the suer­tie of the good Abea­ring, and where it lyeth. And by the Booke 2. H. 7.2. Suertie of the good Abearing is set forth to rest in this point chéefly, That a man demeane hymselfe well in his prote and company, doyng nothyng that may bee cause of the breach of the Peace, or of put­ting the people in feare, or trouble: and that it doeth not consiste in the obseruation of things that concerne not the Peace. And [Page 125] that it shoulde differ from Suertie of the Peace, in this, that where the Peace is not broke without an affray, or battery, or such like, this Suertie de bono gestu, may be broke by the number of a mās company or by his or their weapons o harnesse. Herewithall also doe certaine Precedentes of the Kings Bench agrée, which in Suertie of the good Abearing (takē at the sute of some one per­son) do mingle the words Amodo bene se ge­ret erga Dominum Regem, & cunctum populum suum, & praecipuè erga T. B. with those other wordes that are commonly put in the Re­cognusāce for the Peace, as the Peace, as in y ^e new Booke of Entrees Fol. 416. any man may plainely sée.

But all this notwythstanding, me thin­keth that a man may reasonably affirme, that the Suertie of good Abearing shoulde not be restrained to so narrow bounds. For first, the Statute (34. E. 3. ca 1.) enableth the Wardeins of y ^e Peace, to take of all the that be not of good fame (where they shall bee foūd) sufficient suertie & mainprise of their good abearing towards the king & his peo­ple. So that, if a mā be desamed, he may by vertue hereof be bounde to his good Behauiour, at the discretion of the Wardeins and Iustices of the Peace. But then the doubte [Page 126] resteth in this, to vnderstande concerning what matters this defamation muste be, & that (as I thinke) may be partely gathered out of the aside Statute also. For, after it hath first giuen power to the Wardeins of the Peace, to arrest and chastice offendors (S. against the Peace, Riotors and Baretors:) then it willeth them, to enquire of suche as hauing bene robbers beyond the sea, were come ouer hither, and would not labour as they were wont: and lastly, it auctorizeth them, to take suertie of the good behauior of such as be desamed, namely (as I think) for any of those former offences for so it stā ­deth wel togither, y ^e they shall both punishe such as haue alredy so offéded, & shal also pro uide, that the others shal not likewise offed. Moreouer, it séemeth to me, that these sta­tutes first (1. Mar. Parl 1. ca. 3.) which giueth this Suertie of good Abearing against such as distube a Preacher, then (5. Eliza. ca. 21.) that prouideth the same against the takers of fish in Ponds, or of Déere in Parkes, and lastly (23. Eliza. ca. 1.) whiche graunteth it a­gainst such as wilfully absent theselues frō the church by the space of 12. months. haue this meaning, that a partie (so bound) may afterward forfaite his Recognusance, if he eftsoones offend against the said Statutes.

Besids this, you may see (admitted by y ^e o­pinid [Page 127] of y ^e Court. 13. H. 7.10) y ^t if a man do in the night season, haūt a house that is suspe­ded for Bawdene, or do vse suspitious cōpa­ny, the may the Cōstable arrest his to find suerties of his good abearing: For, Bawde­rie is not méerely a spirituall offence, but mixed, and but sounding little againste the Peace of the land 27. H. 8.14 Fitz. & 1. H. 7.6.

And therfore, it shal not be amisse at this day (in my sleder opiniō) to grant Suertie of y ^e good Abearing against him y ^e is suspected to haue begotte a Bastard child, to the end y ^e he may be forth comming when it shall bée borne: for other wise, there will be no Puta­tiue father found, when that the two Iusti­ces of the Peace, shall (after the birth, & by vertue of the statute 18. Eliza. ca. 3.) come to take order for his punishmet. And for some aduise by the way in cōceiuing rightly this suspition, marke what M. Bracton writeth: Oritur suspitio ex fama, & ex fama & suspitio­ne, oritur grauis praesūptio: Fama verò suspitione induces; oriri debet apud bonos & graues, id (que) nō semel, sed saepius. Oritur etiam suspitio, ex facto praecedente, cui standum est donec probetur cōtra­rium: nam qui semel est malus, semper preasumi­tu ess malus, in eodem genere mali.

But the further that this bond of y ^e good Abearing doth extende, the more regarde [Page 128] there ought to be in the awarding of it: and therfore, although the Iustices of the Peace haue power to grant it, eyther by their own Discretion, or uppon the complaint of o­thers, euen as they may that of the Peace: pet I wish rather, that they doe not com­maunde it, but onely upon sufficient cause, séene to themselues, or upon the sute & com­plaint of diuers, and the same very honest and credible persons.

And here, forasmuch as one Iustice of the Peace (alone, and out of the Sessions) may (both by the first Clause of the Commissiō, and also by the opinion of M. Fitz. & 9. E 4. 3.) graunt thys suertie of the good Abea­ring, (although the common manner bée, that two such Iustices do ioin in that doing, whereof also M. Fitz hath very good liking) I wil not sticke to set forth here, the cōmon formes, as wel of the Precept, as of the Re­cognusance, for the same: wherein, if I shal­vse the names of two Iustices, you muste take that also to be done according to y ^e com­mon fashion, & not of any necessitie in law. For, as I woulde more gladly vse the assi­stance of a fellow Iustice in this behalfe, if I may conueniently have it: so (if that may not be had) I woulde not greatly feare (when good cause shal require) to vndertake [Page 129] the thing my selfe alone.

Thaue knowen it doubted, whether the Suertie of the good Abearing (commaunded vpon complaint) may be released by any spe­ciall person, or no, bicause it séemeth more po­pular, than the Suertie of the Peace. Release, of the good Abeari [...] But if it may (as it seemeth all one to me) then may the forme of such a Release be easily made, by that which is before concerning the Peace, v­sing the words, Securitatem de se bene geren­do, in steade of the wordes, Securitatem pa­cis.

And the like imitation may bée vsed also, for a Supersede as of the good Abearing, if at the least that be grauntable by Iustices of the Peace.

I might here, without breach of Order pro­secute the preseruation of y ^e Peace, by the pre­uēting of such as be riotouslly assembled, & by [Page 132] handing the Statute of Northampton, which séemeth (by plaine speache) to be prouided for preuention of the breache of the Peace also: But bicause the first shall haue his proper place, and the latter is commonly put in vre at this day, after the Peace broken by forci­ble Entrie, I will spare to speake of any of them, till I come to treate of those matters by them selues.

Of the breach of the Peace without a multitude against the person, and how it may be stayed, or pu­nished by one Iustice of Peace out of the Ses­sions.
CAP. XVII.

The Preuention Of The Breach Of Y ^E Peace Hath Appeared, AsWell In The Suertie Of The Peace, As Of The Good Abearing: & Therefore Mine Owne Order Re­Quireth, That I Nowe Declare What One Iustice Of The Peace May Doe (Out Of The SesSions) For PunisHment Of [Page 133] such as doe breake the Peace. Breache of the Peace without a multitude.

For, our law is no lesse carefull this way to conserue the Peace, both by staying them that doe any way aduenture towardes the breache thereof, and by punishing them that doe acually enter into the verie violation of the same, than it was prouident to sée it pre­serued before it came to any neare shewe of disturbance, or greater euill.

But because the breache of the Peace (as the law is taken at this day, whether it be by word, or other acte, (and that also whether it be to the person, or to his goods, or lands,) may be aswell committed by one onely, or by two vpon a side (both which we hold to be done without a multitude, though two in precise speache doe make a number) as by thrée or more in one companie (which the lawe properly calleth a multitude.) it shall be good to intreate by it selfe first of that breache of the Peace which may be commit­ted without a multitude, and then to prose­cute the other. If there withall we put the Iustice of Peace in remembraunce, that by what way soeuer the may preuent or punishe the breache of the Peace in one person, the same meanes may he also bse against any multitude so offending.

The breache of the Peace that may be [Page 134] practised against the person, climbeth to the destruction of the person, by sundry degrées: as by Threates, Assray or assault and violent and malicious striking and beating, woun­ding, mayheming and killing. The matter of manacing and threatning is sufficiently touched in the last Chapter.

The wordes Affray and Assault, bée in­differently vsed of many men, euen in our booke cases, but yet there wanteth not a iust difference betweene them in myne opini­on. Affray and Assault.

For, Affray, is deriued of the french effray­er which signifieth to terrifie, or bring feare: and is the more heynous trespasse, for it is in lawe vnderstood to bée a common wrong done, and therfore is inquirable & punishable in the Turne of Shirife and in a Léet, by 4. H. 5.10. and 8. E. 4.5. Otherwise it is of an assault, as it séemeth by those bookes. Yet it may be done, without word, or blowe, giuen: as if a man shall shewe him selfe furnished with armour or weapon, which is not vsual­ly worne and borne, it will strike a feare in­to others that be not armed as he is: and therefore, both the Statute of Northampton (2. E. 3. ca. 3) made aganist the wearing of ar­mour and weapon, and the Writte therevp­on grounded, doe speake of it, by the wordes, [Page 135] effray delpays, and interrorem populi.

An Assault, as it is fetched from an other fountaine, namely from the Latine Assul­tus which denoteth a leaping (or flying) vp­on a man: So it can not bée perfourmed, without the offer of some hurtfull blowe, or at the least some fearfull speache. And ther­fore, to rebuke a Collector with fowle wordes, so that he departed for feare with­out doing his office, was taken for an As­sault, 27. lib. Assis. plac. 11. And to strike at a man (although he were neither hurt, nor hit, with the blowe) was adiudged an Assault, 22. libr. Assis. pl. 60. For this Assault both not alwayes necessarily emplie a hit­ting: and therefore, in Trespasse of As­sault and Batterie, a man may bée fouunde guiltie of the Assault, and get bée excused of the Batterie: 40. Ed. 3.40. and 45. Ed. 3. 24.

Manacings then, Affrayes, Assaultes in­iurious and violent handelings, and mis­entreatings of the person, batteries, ma­licious strikings, &c. bée breaches of y ^e Peace, and doe drawe after them the forfaiture of a Recognusance, knowledged for the kéeping of the Peace. What actes be breaches of the Peace and what not.

And therefore (for example) if a man doe imprison an other without warrant, or doe [Page 136] thrust him into a water (or river) whereby he is in danger of drowning, or doe raushe a woman against hir wil, or doe commit man­slaughter or burglarie, or robberie, vpon the person of an other, or do cōmit treason against the person of the Prince, who as he is y ^e head of his people, so are they also wounded in his hurte, he hath broken the Peace. Marr.

But concerning the manacing, assault or batterie of the person of one, this is to be no­ted by the way, that it is not in all cases a violation and breache of the Peace: for some are allowed to haue priuately, a natural, and some a C [...]le power (or auctoritie) ouer o­thers, so that they may excuse themselves if but (in reasonable manner) they correct and chastise them for their offences, without im­putation of any such breach. After the one forte, the parent is suffered (with moderati­on) to threaten and chastice the childe within age. By reason of the other fort of power, the husband is not punishable (so that it be not outragiously) if he chastice his wife, Master his seruant, the Schoolemaster his scholers, & a Gaoler (or his seruant, by his commaun­dement) his vnruly prisoners and the Lord may beate his villaine. But these things must neuerthelesse be done in conuenient place, and therefore not in the presence of the [Page 137] Prince, as it is thought 27. lib. Ass. pl. 49. This power of the husbande ouer the wife, seemeth to be permitted by the words of the Supplicauit that is sette downe for hir in the Register. 89. when she standeth in neede of the Peace against him, where it is said, That he shall be bounde to doe her no corporall harme, but with this exception, Aliter quàm ad virum ex caussaregiminis & Castigationis vxoris suoe, licitè & rationabiliter per [...]net: Wherein it agréeth with the Ciuil Lawe, which yeldeth to the husband that power, so that he vse it Modice, moderately. And sayth M. Peter Martyr vpon the 1. to the Corin­thians. c. 11. ver. 3. The husband may Corripe­re & castigare vxorem eadem charitate qua Christus Ecclesiam verberat, nimirū vt melior fiat, &c. The power of the Master & Schoole­maister, ouer the Seruaunt, and Scholer, is affirmed by M. Marrow, and confirmed by some opinion in the booke 21. E. 4. 6. & 53. Whereunto I may also adde the minde of those that made the Statute (33. H. 8. cap. 12.) concerning malicious striking in the kings house: for they do therein specially ex­empt the Maister that striketh his Seruaunt, with his hand, fist, small staffe, or sticke, for his correction for any offence. Howbeit in these cases, I doe aduise both husbande and [Page 138] maister not to prouide so much howe they may escape the breach of a Recognusance or punishment of our lawes, as to foesee that they kéepe the lawe of God, and doe nothing against honestie: the one as knowing that the wife is his owne fleshe, and the other as considering that he also hath a Maister in heauen.

Euerie man also maye take his kins­man that is madde, and may put him in a house, and binde and beate him with roddes, without breache of the Peace. 22. lib. Aff. plac. 56.

A Constable or other Officer, or any other, being of their companie, that shal be driuen to strike any person, for the better executing of their Office or charge (as in many cases they may lawfully doe) breaketh not the Peace nor shal be in any perill of forfeiting any Recognusance of the Peace, by reason of any such assault or batterie, as may bée well inferred upon the booke cases 17. E. 4. 5: 2. E. 4. 6. & 8: 4. H. 7. 1: & 14. H. 7. 8. For suche Actes bée iustifiable. And sée for this purpose also M. Stamforde. Fo. 13. 14. 15. Besides this, if a man be inforced to repulse violence (done unto his owne person, or to the person of his wife, father, mother, childe, kinsman, mai­ster, [Page 139] seruant, or to his goodes being in his pos­session,) either by threatning or striking a­gaine: his so doing is also iustifiable, as may be séene in Marr. 33. H. 6. 18: 19. H. 6. 3: 9. E. 4. 48: & 35. H. 6. 50. But a Fermer or Tenant can­not iustifie suche an acte in defence of his Lanlorde, nor a Commoner in defence of the Maior, or Bayliffes of a corporate Towne.

If one man also hurt or kill an other at Fence play, or at the Title, Turneament, or Barriers (in pefence of the Quéene, and by hir licence) or in a wager of Battell for the trial of a cause according to the auncient Lawes of this Realme, it is no breach of the Peace at all, Marr.

Thus farre of those breaches, that maie bring daunger to a Recognusance of the Peace: for some others there bée, whiche are in a degrée against the Peace, so that an En­ditement Contrapacem may bée founde vp­on them, but yet no forfaiture of such a Re­cognusance shall ensue of them. Breaches of the Peace, that make no breache of bond for the Peace.

As if a man (so bounde) doe take a mans goodes wrongfullie, (so that it bée not from his person) or doe Rauish a Warde from the possession of his Garden: or do a Trespasse in an others mans corne, or grasse: or do Dis­seasse [Page 140] an other of his landes: or do enter in­to landes, where he ought to bring his A­ction, it will bréede no forfaiture of his bonde.

Therefore let vs nowe come to the paci­fying and punishing of the Breache of the Peace upon the person, by one Iustice of the Peace out of the Sessions.

A Iustice of the Peace, is undoubtedly (for this purpose) endowed with no lesse po­wer, thā euerie Pr [...]uate man, or any Consta­ble hath: as it is plaine by 14. H. 7. 8 & 9. E. 4. 3. And therefore it may not be thought He­terogeneum (or besides my purpose) if I shal shew what both a Priuate man and Consta­ble may do in this case: yea rather I choose to vtter this matter vnder their names, to y ^e end that I may with y ^e one labour bewray the duties, both of them and of the Iustice of the Peace him selfe in this behalfe.

The Lawe looketh, that euerie Priuate person, whom it shall happen to be present at an Affray, Assault, or Batterie (for now I will confounde those names) should doe his parte to departe them that fight together: and it doth (to that ende) enable him also with some portion of auctoritie. The duty of a stander by at an Affray.

For, if two be fighting, every Stander by, may lawfully, and shall do well to put them [Page 141] in sunder, and if he take hurt thereby, he shal haue his remedy by Action against him that did the hurt. To parte them.

But yet he (being but a Priuate man) may doe no hurt, if they resist him, for they also stall then haue Action for it against him: wherein his case differeth (as you shall sée anone) from the case of an Officer.

And if an Affray be in the high streate, and one commeth towardes it with harnesse, or weapon, to take with the one partie, euerie man that séeth it may stay him til the Affray bée ended.

Any man also may stay the Affravours, vntill the storme of their heate be calmed, and then may he deliuer them ouer to the Constable to imprison them, till they finde Suertie for the Peace: but he him selfe may not commit them to prison, vnlesse the one of them be in perill of death by some hurt: for then may any man carrie the other to the Gaole, till it be knowen, whether he so hurt, will liue or dye, as appeareth by the Statute 3. H. 7. ca. 1. To stay them.

But as the kéeping of the Peace is more speciallie recommended to the charge of Iu­stices of peace, Cōstables, petit-Constables, Borsholders, Tithing men, and such like Of­ficers: so be they also therefore armed with [Page 142] a larger measure of auctoritie? And there fore if a Constable, or such other Officer doe sée a man, endeuouring to make an Affray, he may cōmaunde him to auoide vpon paine of imprisonment: and if the Affray bée great, or dangerous, he may make Proclamation, and may commaunde the parties to pryson for a small time, till their heate be passed o­uer, & then he must deliuer the without any fine taking. The Officers duetie in an Affray. But if twoo doe vse onely hoate woordes, one against the other, the Officer may laie no handes vpon them, vnlesse they doe also drawe weapon, or doe otherwise of­fer to strike: If they once fight togither, then may the Officer departe them, and if he happe to bée hurte in that doing, he maye haue an Action of Trespasse for it: but if a­ny of them bée hurte by him in the resistance, no Action lieth for them: For, the Officer ought to doe his beste to departe them: in so muche as if it bée presented at the Sessions of the Peace, that he was present at an Af­fray, & did not vse his indeuour to put them in sunder that fought togither, he shall bée f [...]ed for it: Otherwise it is, if he were not present, but were onely tolde of the Affray. Marr.

If any of the parties bée in daunger, by reason of a hurte receyued in the Affray then [Page 143] ought the Officer arrest and carrie the other to the Gaole, vntill he shall finde suertie to appeare at the Gaole deliuerie. Fitzh. 72: 38. E. 3. 6. & 22: [...]b. Aff. pl. 56.

And if twoo men bée fighting in a house (the doores shut) then may the Officer break open the doores to see the Peace kept, though neyther of them have taken hurte.

And yet when the Constable hath taken an Affrayor he may not imprison him in his house, but in the S [...]ockes, and that not aboue suche a reasonable tyme as he may prouide to conuey him to the Gaol [...] till he find suer­tie of the Peace. 3. H. 4. 9: & 22. E. 4. 35.

And herein he differeth from a Gaoler, or the Shirife (who hath y ^e charge of the Gaole) for he may make a Gaole of his house: and so cānot a Constabe or Iustice of the Peace doe. And by the Statute (5. H. 4. ca. 10.) the Iustice of Peace must sende his prisoners to the common Gaole.

If one doe make an Affray vpon the Iustice of Peace, Constable, or suche other Officer, he maye not onely defende him selfe, but maye also apprehende the offen­dour, and sende him to the Gaole, till he wil finde suertie of the Peace. 5. H. 7. 6. And the Iustice, or Constable maye (if néede bée) commauno assistance of the Queenes people, [Page 144] for the pacifying of an Affray, 3. H. 7. 10.

If he that maketh an Affray do flie into a house when the Iustice of Peace (or Consta­ble cōmeth to arrest him, they may (in fresh sute) breake open the doores, and take him, Mar. Or if he flie thence, they may make fresh sute and arrest him, though it be in an other Countie, by the opinion of some men. 13. E. 4. 9. And it shoulde séeme (by the reason of that Booke) that in this case also, they may breake open the doores to apprehend him, be­cause the Prince hath an interest in the mat­ter, and then a mans house shall be no refuge for him, as it shoulde be in Debt or Trespas, where the interest is but onelie to some par­ticular partie.

Now, if the Constable do arrest one, that hath hurt an other, and do voluntarily suffer him to Escape, and then he that was hurte [...]ieth thereof within the yeare and day, the Constable shal make a great Fine, and that to the valewe of his goodes, in the opinion of some. 11. H. [...]. 12. & Stanford. 35. 1. But the of­fence shall not have suche Relation to the stroke, as to make the escape to become Fe­lonie thereby. Commentar. Plowd. 263.

Of the breach of the Peace without a multitude, or with a multitude, by forcible entrie into landes or tenements &c. And what one Iustice of the Peace out of the Sessions may doe therein.
CAP. XVIII.

BEfore the trouble­some reign of King Richard the second, it séemeth that the com­mon Law permitted any person which had good right or title to enter into any lād, to winne the possession thereof by force, if other­wise he could not haue obtained it. And still at this day, if in a common Action or endite­ment of Trespassle for entring into any land, the Defendant will make Title therevnto, the whole matter of the Force alleadged a­gainst him wil rest altogither vpon the vali­ditie of his Title, as appeareth 7 H. 6. 13. and 40. And a man maye also at this daye re­taine wyth force his owne goodes and cat­tailes agaynste an other, 19 H. 6. 31. & 9. E. 4. 18. But after the rebellious insurrecon of [Page 146] the velleins & other of the commons whiche happned in the fourth yeare of that Kinges reigne. The Parliament in 5 R. 2. cap. 7. (thinking it necessarie to prouide against all occasions of any further vproare or newe breach of the Peace) did ordaine among other thinges, That from thenceforth none shoulde make any entrie into any landes or tenements, although his entrie into the same were lawfull, but onely in peaceable and easie maner, and not with strong hande, nor with multitude of peo­ple, vpon paine of imprisonment, and to be raunsommed at the Kings will.

But because this Statute gaue no quicke remedie in this point, nor any special power therein to the Iustices of the Peace of the countrie, whereas the experience of that bu­sie time required a great deale more spéede in suppressing such disorder: After that they had in 13. of that king c. 7. Stat. 1. taken order that Iustices of Peace shold be made of new in all the Counties of England of the most sufficient Knights, Esquiers & men of law of the same Countie. And that they should be sworne to keepe & put in execution all Statuts & ordinaunces touching their offi­ces. The in 15 R. 2. c. 2 they caused it to be fur­ther enacted, That when such forcible entrie [Page 147] should be made into landes or tenementes, or into Benefices, or Offices of the Church, and complaint thereof come to any Iustice of the Peace, he should take sufficiēt power of the Countie, and go to the place where the forcible entrie was made: & if he found any that held such place forciblie after such entrie made, the same should be taken and put in the nexte Gaole, there to abide con­uicted by the Recorde of the same Iustice, till they had made fine, and raunsome to the King, And that aswell the Shirife, as all others of the Countie, shoulde attende vpon the saide Iustice, to go and arrest: such offendours, vpon pair [...]e of imprisonment, and to make fine to the King.

Now againe, for asmuch as this laste Statute did not extende to those that en­tred Peaceablie, and then helde with Force: nor against the offendors if they were re­moued before the comming of the Iustices, nor yet any paine therein ordained against the Sherife that did not obey the preceptes of the Iustices in this behalfe: it was not onelie ordayned by a thribe Acte ( made 8. Hen. 6. cap. 9.) That the sayde for­mer Statutes shoulde be holden and due­lye executed, But it was adjoyned also thereunto, That if anye from thence­forth [Page 148] forth shoulde make suche forcible entrie into lands, tenements, or other possessions, or should them holde forcibly, after com­plainte thereof made wythin the same Countie to any of the Iustices of the Peace thereby the parties greeued, that the Iu­stice so warned should in conuenient time cause the last said Statute duely to bee exe­cuted at the costes of the sayde party.

And whether the perfons (making suche entries) were present, or auoided before the Iustices comming, the same Iustices (or Iu­stice) in some good towne next to the said tenements, or in some other conuenient place at his discretion, shoulde haue power to enquire by the people of the same coun­tie, as well of them which made suche for­cible entries into landes or tenementes, as of them whiche held the same with force: And if it be found before any of them, that any doth contrary to this Statute, then the sayd Iustices (or Iustice) shall doe the saide landes or tenements to be reseised, and shal put the partie (so put out) in full possession of the same. And when the saide Iusti­ces (or Iustice) make suche enquirie, they shall directe their Precept to the Shirife, commaunding him on the Kings behalfe, to cause to come before them and euerie of [Page 149] them, sufficient and indifferent persons, dwelling nexte aboute the same landes or tenementes, whereof [...]ucrie man shall haue landes or tenementes of the cleare yerely value offourtie shillings at the least, and the Shirife shall returne twentie shil­lings in issues vpon euerie one of them at the firste Precept retournable, and at the seconde fourtie shillings, and at the thirde fiue pounde, and at euerie daie after, the double. And euerie Shirife of Countie, and Bayly of Fraunchise, that shall not duely make execution of the saide Precepts, shall forfaite to the King twentie poundes for e­uerie defaulte, and shall moreouer make fine and raunsome to the King. And aswell the Iustices or Iustice aforesaid, as the Iusti­ces of Assises, may heare and determine such defaultes of Shirifes or Baylies, aswell by Bill at the suite of the partie grieued for him selfe, as for the King onely, by way of Enditement, and vpon suche due attayn­der, he whiche sueth for himselfe and for the King, shall haue the one moietie of the saide twentie poundes togeather with his costes and expenses: and suche Processe shalbe agaynst: suche so attaynted, as lieth against: anie person endited, or sued, by writte of Treapasse with force and Armes [Page 150] against the Peace. And the Maiors, Iu­stices of the Peace, Sherifes and Baylifes, that are in Cities, or Bourowes (ha­uing fraunchise) shall haue like power in the articles aforesayde, as the Iustices of Peace, and Shirits in the Counties haue.

But they which kepe by force their pof­fessions in any lands or tenements, where­of they or their auncesters, or they whose estate they haue therein, haue continued their possession in the same by three yeares or more, shall not be endamaged by this Statute.

This last Statute I have the rather ex­emplified at large, because it contayneth a full direction in this businesse, yet because I have séene some other things that [...]ende to some little explanation, of some of the pointes of the same, which be good to be con­sidered of, I thinke that they also may be well bestowed here.

This Statute therefore enableth any one Iustice of the Peace to deale in this matter upon occasion geuen, and is made, as well against such as enter with force, as against those that enter Peaceablie, and then holde in with force. But whether the Iustice be bounde to ermine the goodnesse [Page 151] of his title that entreth, and accordind to the same to make or deny restitution, it hath bene oft times made a question, which surely in mine opinion shoulde carrie no great doubt with it. For séeing that the Statute 5. R. 2. cap. 7. prohibited all en­tries with force although they were other­wise lawfull, and the Statute 15. R. 2. ca. 2. rehearsing the same, geueth authoritie to euerie Iustice of Peace vpon any suche forcible entries, presently to committe the offendors there found to the Caole, and this Statute meaning to supplie some other de­fectes in the former, geueth speciall reme­die to the partie gréeued by the aide of the same Iustice, by restoring of him to his pos­session againe: I see not why the Iustice of Peace (who perhappes shall haue but little skill in Lawe to discerne and iudge of the Litle, and yet be a fitte man to suppresse all force, and able enough to restore a pos­session) shoulde be tyed to the discussing of the right or title of either of the parties. And therefore 22. H. 6. 18. admitteth this case, That if A. shoulde disseyse B. and B. shoulde enter agayne and put out A. by force and strong hande, yet shoulde A. be restored to his possession at the handes of the Iustice of Peace, although his first [Page 152] entire were very vnlawfull. And that there­upon notwithstanding the restitution made, B. may have an Assise, or else may enter vp­on him againe, so as he doe it in peaceable manner. And I doe little doubte, but that a Lessée for years, or a Copieholder beyng put out with force, and the Lessor or Lorde disseised thereby, the Lessée: or Copieholder ought to haue restitution by the helpe of a Iustice of Peace upon this Statute.

Now whereas the wordes bée After com­plaint &c. that dothe not alwaies in [...]orce a necessitie of Complaint, by the partie grie­ued. For if a forcible entrie bée committed, the Iustice may inquire of it, and also make restitution, vpon any informacion or other knowledge thereof, though no complaint be made vnto him by the partie gréeued, as it is holden 7. E. 4. 18. Complaint.

It seemeth further that it should not bée altogither requisite to the punishing of the offenders by imprisonment and fine, that the partie gréeued shoulde be actually put out of possession. For all the saide Statutes doe specially prohibite the forcible cntrie it selfe yet to haue restitution vpon this Statute, the putting out must néedes be founde also. And therefore if y ^e case be that after the death of A. a stranger entreth into his landes and [Page 153] holdeth the same by force against his heire, before be had gotten any possession in déede, the heire of A. in this case (sayth Marr.) shall neuer haue restitution because he neuer had any other possession than a possession in law, but no actuall possession.

And by his opinion also, If a man claimed a rent or common in lande, that is so holden with such force that he can not distraine for the one, nor vse the other, this a force re­moueable by this statute, but the partie can haue no restitution here made vnto him.

One person alone may commit this forci­ble entrie, so also may he be punishable for deteining of the possession by force. Entring or holding with force. And it sée­meth that this entrie or deteyning must be with some offens [...]ue weapōs, as with bowes, billes, swordes, stones, harnesse or such like, yet Marr. is of opinion, that if the Iustice of Peace come and finde the doores shut, and they within denying him to enter, this is a deteyning with force, and he may thereupon commit them.

If it be founde that diuers persons haue made a forcible entrie to the vse and behouse of a stranger that is absent, although he doth after agrée vnto it, but entreth not him selfe, this is no force in him, for sayth 2. H. 7. 16. A forcible entrie can not be without an entring [Page 154] actually.

EnquirieThe enquirie is to be of Iurours that must have landes or tenements of the yearly va­lue of xl. s by yeare at the least aboue all re­prises. And Marr. is of opinion, that if it be not so, the partie grieued may stay the resti­tution for that cause. But how he can hinder the restitution that the Iustice of Peace is to make vpon such a verdit, otherwise than by causing the record thereof to be remoued into the Kinges Benche I doe not well perceiue.

After the forcible entrie, or the deteyning with force, or both be founde by the enquest, the Iustice of Peace ought either by him­selfe to put the partie grieued in possession a­gaine, or els he may direct his precept to the Shirife to restore him. Restitution But if that Iustice of the Peace which made the enquirie, doe hap­pen to dye before he make restitution, whe­ther the other Iustices of the Peace may at their Quarter Seassions, hauing the recorde of that Enquirie deliuered vnto them, award a writ of Restitution to the Shirife or no, if may be some doubt, (albeit Marr. be of that o­pinion,) bicause it séemeth that they haue no authoritie to deale with that Recorde. But this is certain, that of that presentment were receiued into the Kings Benche, the partie grieued, then might well enough haue [Page 155] restitution awarded him out of that Court. 7. E. 4. 18. & 4. H. 7. 18.

And in some cases there may be double or crosse restitution made sayth Marr. As if it be found that I my selfe was seised vntil A dis­seysed me with force, whome also B. disséised w ^t like force: in this case if A. haue restituti­on against B. the may I also pray myrestitu­tion against A. But if I first haue restitution, then (sayth he) A. hath lost y ^e aduantage of his.

And if it were found by one Inquirie that I my selfe was saised vntill A. disseised me with force, and by any other Iurie found that the sayd A. was saised vntil by me disseised with force, then euery of vs (sayth he) may pray restitution, against the other. And he shall be in the worst case that hath the first restitution, for the other also (sayth he) shall haue his restitution after.

If two Iointenants were put out by force and one of them onely would Complaine & séeke for restitutiō, though this special matter were founde by the Inquest, yet shoulde he that sued for it haue restitution: And this would not worke any seuerance of the Join­ture betwene them, Marr.

Restitution is not to be made but one­ly to the partie which was put out. And threfore if the father were put out by [Page 156] force, and dyeth after enquirie and before re­stitution, his heire shall neuer haue restitu­tion vpon this statute, no more than the ex­ecutors of Lessee for yeres that was put out, shall haue any restitution, Marr.

If a writ of restitution be awarded to the Shirife, and he returneth that he is so resi­sted that he can not bring the partie into his possessiō, he is to be amerced for that returne, sayth Marr. for he may take the power of the countie to execute the precept.

The case may be such, that the force is not punishable by any Iustice of Peace, vpon this statute, nor any restitution can be made at all. As if the house or lands be in one Coū ­tie, and the men (forcibly arrayed for defence thereof) be in a house or lands, that is in the Countie adioyning, no Iustice of Peace can medle with this matter vppon this Sta­tute. No more can they if the place it selfe ex­tend into two Counties, and the parties re­moue their force (before the comming of the Iustice) out of that Countie wherein he is a Iustice, Mar. For Iustices of the Peace haue no power out of their owne Counties, but in certeine especiall cases giuen vnto them by Statutes.

Lastly, vpon the prouisoe in the latter end of this Statute concerning their holding [Page 157] with force, which haue had possession by the space of three yeares or moe, there ariseth some matter of doubt in mine opinion, how farre the benefite of that clause ought in good equitie to be extended. three yeares possession. For I finde a diffe­rence taken 14. H. 7.28. betwene an action brought vppon the statute, & an inditement founded thereupon. In the action (sayth M. Fineux) it will be a good barre for the de­fendant to pleade, that he hath kept possessi­on by thrée yeares space, yea though he hath done so all that time by force. But vppon an inditement, possession by twentye yeares space togither by force, shall be no plea at all against the king, nor hinder the partie of his restitution out of the kings benche. Which opinion hath bene and still is receiued for lawe, as I haue learned. Yet if we consider well the reason of the inserting of that pro­uisoe vnto the statute, perhaps the diuersi­tie will not fall out in all respectes to be so reasonable, as it séemeth at the first shew to be plausible. For when this statute had in ge­nerall tearmes brought within the penaltie of 15. R. 2 ca. 2. all such as should deteine any lands or teneme ts with force, after that they had entred into the same in peaceable ma­ner: yet was it thought conuenient (as in truth it was) to except out of that punish­ment [Page 158] met all those, who hauing made their entries in peaceable maner, especially vpon good title, had continued that possession by thrée yeares space, before any forcible deteyner of y ^e same, And therefore such persons bée not onely to take aduauntage of that clause in actions brought against them vppon the statute (in myne opinion,) but against the King, to es­chue the punishment of a forcible defence committed, and against the partie grieued, to kéepe him from any restitution at the handes of the Iustice of the Peace also. And therefore M. Marr. speaketh generally, that if the thrée yeares possession bée founde by the Inquirie, then [...] forcible deteyners shall haue the aduantage of it, against the King also, which séemeth to be a very reasonable opinion, especially (as I haue sayd) in case where the deteynors did enter peaceably and by good Title. For so farre extendeth the speache of all the Iustice opinions, 22. H. 6. 18 And otherwise I sée not how that may wel stande which M Fineux him selfe afterward 21. H. 7. 39. affirmeth, saying, that A mans house is his Castle, which he may defende with force against any priuate armie that shall inuade him. Neuerthelesse in the prin­cipll case 14. H. 7. 28. being as it is there put of a wrongfull entrie, and that with force, [Page 159] and of the continuance of that possession with force also by diuers yeares, I sée no great rea­son why such a disorder person should by any continuing of his wrong, take bene­fite by this prouisoe eyther against the King vpon an Inditement, or against the partie grieued to stay his restitution or to conclude him in an action brought vppon this Sta­tute.

But nowe, whether such as bée Indited map bée admitted to their Trauers before the same Iustice of the Peace or no, & where or before whom this Trauers is to be made or receyued, I will not take vppon me here to discusse. Tender of Trauers. This séemeth vppon both the Statutes to be playne, that such persons as the Iustice of the Peace doth finde and see, continuing the force at his comming, may be immediatly committed by him to the next Gaole without any gainesaying, there to remayne conuict of that offence by the one­ly recorde of the same Iustice, till they shall haue made fine and raunsome to the King for the same. But vppon the enquirie, it sée­meth that he hath no further power giuen vnto him by this last statute, than to make restitution onely. And therefore the su­rest maye in this case is, to deliuer ouer the [Page 160] Inditement either to the Custos Rotulorum, or to the Istices of Gaole deliuerie, as in other cases they were in olde time by the sta­tute of 4. E. 3. ca. 2 appointed to doe, or rather into the kings Benche, referring the further proceeding thereupon vnto their power an authoritie.

And againe, as touching the Assessement of the fines vppon the offendors by him com­mitted to the Gaole, some doe thinke, that the selfe same Iustice that committed them, should haue sufficient authoritie also to put them to their fine, and vpon pleuges founde for the payment of it, to deliuer them out of prison againe. Assesing the fine. For (say they) he is the onely Iudge of that offence, and onely hath the cu­stodie of that Record, and knoweth best how to rate the fine according to the greatnesse of the trespasse. And as he is bounde by his othe and dewtie, (in their opinion) to make out estreites of all Jssues and amercements growing due to the Quéene by such an In­quirie, so ought he also to estreit this fine & send it vp into the Eschequer, that from that Court the Shirife may be commaunded to leuy it to the Quéenes behoofe. Yet to auoide all doubt, it séemeth here also y ^e better course, to referre that matter to the Quarter Sessi­ons, or rather to the comming of the Iusti­ces [Page 161] of Gaole deliuerie into the Countrie.

These things thus saide, I will (for the more complete furniture of the Iustice of the Peace in this seruice againste forcible Entries) arme him with these feme prece­dents following.

The Mit [...]imus to the Gaole testifying the holding with force.

RObert Bing, one of the Iustices of the Peace of oure Soueraigne Lady the Queenes Maiestie within hir Countie of Kent, to the keeper of hir Maiesties Gaole at Maidstone in the said Countie, and to his deputie & deputies there, and to euery of them, greeting. Vpon complaint made vn­to me by C. D. of Ightham in the said coun­tie Yeoman, that one A. B. &c. and other Malefactors had forcibly, and with strong hād entred into his house, &c. in Ight. afore­said, & him expulsed, and the same yet hold with force, I wente this present daye to the said house, and there found the said A. B. &c. forcibly holding the saide house, &c. wyth bowes and arrows, coates of plate, and long piked staues, to the great disturbance of hir Maiesties Peace, and againste the forme of the Statutes in that behalfe ordained: And therfore I send you by the bringers hereof, the bodies of the said A. B. &c. conuicted of [Page 162] the said forcible holding by my Recorde, commaunding you and euery of you, in hir Maiesties name, that yee receiue them, and safely keepe them in your said Gaole, vntill that they shal haue made their fine & raun­some to the Queene, & be deliuered thence by order of the Law: hereof faile ye not vp­on the petill that wil fall thereon. Yeouen at Wrotham vnder my Seale, this 2. daye of September in the xxiij. yeare of our saide soueraigne Ladie Elizabeth, &c.

And for his Inquirie, vpon suche a force, as foloweth:

And vppon default of apparance of these Iurors, an Alias may be awarded, & after y ^e Pluries infinite, til they come, but so that at the day of the second Writ rl.&. must be re­turned, at the third Writ C.&. and at eue­tie day after, the double.

I will now come to the performance of y ^e promise which I made, cōcerning y ^e statute of Northampton: for that also is now of late dayes chiefly put in vre for the punishment of Forcible Cntries. The execu­tion of a Writ vpon the Statute of Northam. That Law (in effecte, & for this purpose) is thus: No man what­soeuer (except the Kings seruants and Mi­nisters, in his presence, or in executing his precepts, or their Offices, and such as shall assistthem: and except it be vpon crye, or proclamation made for armes, to keepe the Peace, & that in places where such actes do hape) be so hardy to come before the kings Iustices, or other his Ministers doing theyr offices, with force and armes: Nor bring a­ny force in affray of the Countrie: nor goe, [Page 166] nor ride armed, by night, or by day in faires or Markets, or in presence of the Iustices or other ministers, nor in my place elsewhere, vpon paine to forfeite his Armoure to the King, and his bodie to prison at the Kings pleasure. 2 E. 3. ca. 3.

Vpon this Statute, he that is put out, or holden out of his land with force, vseth to have at this day a Writ directed out of the Chauncerie, eyther to the Shirife onely (as M. Fitz in his Nat. Br. Fol 249. rehearseth it, for I finde if not in the Register of Writs) or else Custodibus pacis, ac Vicecomiti, & corū cuiliber (as the common maner is) comman­ding, that Proclamation be made upon this Statute, and that if any bée afterward found offending against the same, that then they shall be committed to Prison (there to re­maine vntill that some other commaunde­ment be given concerning them) and that their armour and weapon shall be prised, and the same aunsweared to the vse of the Ruéene.

But, forasumuch as that Iustice of Peace, (to whome this Writ shall be delivered) is to make execution of the same, as a Mini­ster onelie, and is to Certifie hys dwing therein, I thinke good to lend him these few helps towards it.

At his comming to the place, where the force is supposed by this Writ. he may cause the Oyes for silece to be made, with this, or such an other Proclamation.

Then may he reade the Writ, as declare the effect thereof in English.

After that let the Oyes bée made againe, and therevpon may this Proclamation fol­low.

This done, the Iustice may enter, and search whyther there be any force of armor or weapon worne or borne againste this Proclamation: or otherwise he may en­quire thereof by a Iurie (for so the Writ it selfe doth warrant him to do) and if any such be sounde, he ought to imprison the of­fendors, and to seise and praise the armoure and weapon so foūd with them, But if (vpō the Proclamation made) they do depart in peaceable maner, then hath he no warrant by the Writ to commit them to prison.

And what weapons be offensiue in the case of this Statute, he shall the better dis­cerne, if he take with him these fewe lines drawen oute of M. Bractons Booke, Fol. 162. where he speaketh of the like violent dissei­sine, shus: Est euam vis armata, non solum si quis venerit cum telis, verumetiam omnes [Page 169] illos dicimus armatos, qui habent cum quo noce­re possunt. Telorum autem appellatione, amnia in quibus singuli homines nocere possunt, accipiun­tur: Sed si quis venerit sine armis, & in ipsa con­certatione ligna sumpserit, fustes, aut lapides, ta­lis dicetur vis armat a. Si quis autem venerit cū armis, armis tamen ad deijciendum non vsus fue­rit, et deiecerit, vis armata dicitur esse facta. Suf­ficit enim terror armorum, vt videatur armis de­tecisse.

But nowe let me shew him a Forme of Certificat (or returne) of this Writ into the Chauncerie and then make an ende.

Vpon the Writte it selfe these words may bée Endorsed.

Executio istius Brcuis patet, in quadam Sce­dula eidem Breui consuta.

By this you have séene, what one Iustice of the Peace ought to do in execution of this Statute as a Minister: and by the same you [Page 171] maye also sée, what he maye doe therein of himselfe, Ex efficio, as a Iudge, and with­out any Writte, brought vnto him, if one Iustice maye deale therein as a Iudge.

For not onely by the plaine wordes of the Statute of Northampton, the Wardeins of the Peace, haue power (within their Wardes) and are commaunded to execute this Acte vpon a prins. But also by expresse speach in the Commission it selfe, eucrye Wardein of the Peace hathe the Statute of Northampton committed to his charge. So that both in the matter and manner, the do­ing is all one, sauing that if he doe it as a Iudge he nedeth notto make any proclama­tion, the Statute being a prohibition in it selfe, nor yet to sende any Certificat into the Chauncerie but only to make his owne Re­cord of that which he shal do in this behalfe, and thereout to sende some estreit into the Eschequer, that the Queene may bée answe­red of the Armour or of the value there of. And here prehappes the redemption of the imprisonment maye bée at the same Iustices discreation, as in the former Statutes of 15. R. 2: & 8. H. 6. it séemeth to bée.

Of other breaches of the Peace, with a multitude, as by Riot, Route, or other vnlawful As­semblie &c.
CHAP. XIX.

OVr Parliaments sée­ing well that the as­semblie of many for breach of the Peace, offereth more daun­ger and hurt, both ge­nerallye to the Com­mune wealth where­in it happeneth, and perticularly to him a­gainst whom it is bent, than the force of a­ny one or two turbulent persons can bring, haue no lesse carefully endeauoured to sup­presse the one, than wisely foreséene to pre­uent and punish the other. And therfore, not onely the Commission giueth power to en­quire of Conuenticles againste the Peace, but sundrie Statutes also haue deuised ma­ny meanes and paines to méete with, and to punish the same, wheras before they wet punishable only, as other trespasses, though [Page 173] sometimes by a greater, and sometimes by a smaller fine, as the case it selfe required. Conuen­ticles.

Vnlawfull Connenticles bée not al of one fort: for sometimes those are called Con­uenticles, wherein many do impart with o­thers their meaning to kil a man, or to take one an others part in al things, or such like: Champerties also, Maintenances, Conspi­racies, Confederacies, and giving of Liue­ries to other than to Meniall Seruauntes and officers, bée contained vnder the worde Conuenticles saith Mar. And it appeareth, (27. lib. Assi. Pl. 44.) to bée one of the Articles enquirable in the Kings bench whether any persons take others to their Auowment and Protection, and receiue of them rentes (or o­ther giftes) yearely in the name of Chyuage (or rther Cheifage) bycause they séeme to take vpon them to bée their Cheifes, heades, or leaders. Chyuage.

But, for as much as all these couenaunts may bée without any apparant shewe of As­semblie against the Peace (thoughe other­wise they bée finable offences vnder y ^e name & calling of Conuenticles as Mar. thinketh) I will leaue them, and resorte to those o­rther that bring manifest terror to the Sub­ject.

Of these some consist of a number of peo­ple [Page 174] gathered togither disorderly for y ^e cause of some one or of a fewe persons, and do not bréede any generall or present danger to the Estate or Couernement, and yet bée against law, and be called Riots, Routs, and Vnlaw­ful asseblies against the law, against which the Statutes 13. H. 4. ca. 7:2. H. 5. ca 8: & 19. H. 7. ca. 13 were specially prouided: and before that, the penaltic of the Statute of Nort. 2. E. 3. ca. 3 ordained to bée laide vpon them by 2. R. 2. ca. 6. But others there bée that sauour of a more generall disobedience, and bée (ei­ther in regarde of the number or quarrell) a verie Seede of Rebellion if not the Weede it selfe, and are therefore also sometimes cal­led Rumors, great Ridings, Routs & Riots, a­gainst the Peace 5. R. 2. ca. 6:7. R. 6.&17. R. 2. ca. 2. sometimes Assemblies of people in great number, in manner of insurrection [...]. H. 5. ca. 9. and sometimes Rebellio is Infur­rections and Rebellious Assemblies 15. R. 2. c. 2:8. H. 6. ca. 14: and 1. Mar. Parl. 1. ca. 12. Of all whiche (so farrefoorth as the Iusices of peace haue interest in them) I wil intreat, but yet severally, and so, as either one, or moe of the Iustices of Peace have to do with them, and that out of the Sessions.

They of the first kinde bée, as I haue said, commonly called Riottes, Vnlawful Assem­blies [Page 175] and Routes. But concerning the pro­per difference that is betwéene each of these thrée, all men do not throughly agrée. And therefore (reiecting al diversities of opiniōs) I wil folow y ^e whiche I take to bee most co­lourable & most cōmōly receiued at this day: wherin neuerthelesse I submit my self vnto y ^e experience of y ^e Starchamber as to the best direction Y ^e the Iustices of Peace can haue to follow in this case.

Riot seemeth to come of the French word Riotte. Rioter, which signifieth to braule, or scolde, for commonly Riottes in deede do follow of braulling in worde. Riotte. And it is taken to bee, Where there is an vnlawful assemblie of me (gathered togither) to commit an vnlawful act, & they do excecute it in deed: as to beate a man, or to enter vpō a possession forcibly, or such like: y ^e fact is properly called a Riot.

An Vnlawful Aslebly is, y ^e cōpany of thrée Vnlawful persons (or more) gathered togither to doe Assembly. such an vnlawfull acte, althoughe they do it not in deede. Vnlzwful Assembly.

Our Rout is y ^e very same which y ^e Germans do yet cal Rot, meaning a band or great cō ­panie of me gathered togither & going about to execute, or executing in déed, any Kiot or vnlawful act. Route. And (sayth Mar.) it is said pro­perly of y ^e multitude y ^e assemble theselues in [Page 176] such disorderly sort, for their cōmon quarel. As if the inhabitants of a Towneship do as­semble to pull downe a hedge or pale, to haue their Common, where they oughte to haue none, or to beate a man, that hath done them some publike offence or displeasure. But the Statute of 18. E. 3. Sta. 1. Whiche gi­ueth processe of vtlagarie againste suche as bring Routes into the presece of the Iustices or in Affray of the people: And the Statute of 2. R. 2. ca. 6. that speaketh of riding in great Routes to make entrie into lands & to beate others, and to take their wiues &c. doe séeme to vnderstande it more largelie. And it is a Route whether they put their purpose in ex­ecution or no, if so bée that they doe go, ride, or moue forward after their méeting. Broo. Tit. Riotte. 4. & 5. So as it séemeth a Route should bée a speciall kinde of Vnlawfull As­semblie. And a Riot, the disordered fact com­mitted generally by anye vnlawful Assem­blie.

Howsoeuer that bée, two things are com­mune both to Riotte, Route, and Vnlawfull Assemblie: the one, that thrée persons (at the leaste) be gathered togither, for so is it com­monly taken at this daye, as I haue lear­ned. Things Commune, and consi­derable, in Riottes &c.

The other, that their being togither doe [Page 177] bréede some disturbance of the Peace, either by signification of Speach, shew of Armour, turbulent Gesture, or actuall and crpresse Violence so that either the peaceable sort of men bée vnquieted and feared by the Facte, or the lighter sort and busie bodies embold­ned by the Example.

And, in these matters, not onelye the Facte it selfe, but also the Manner of doing the same, fallcth sometimes iustly into con­sideration: in so muche as, the lawfulnesse, or vnlawfulnesse, of the thing it selfe that is done or intended, doeth not alwaies excuse or accuse the parties to a Riotte, Route, or Vnlawfull Assemblie, but so, that the Order and Circumstance of the doing, muste also bée brought into indgement with it.

And therefore (sayeth Maisler Marrow) the manner of the doing of a lawfull thing may make it vnlawfull: As, if many in one companie (riding, or going, to the Sessions, Faire, Market, or Church it selfe) will ride, or goe armed, to the terrour of the people. And cōtrariwise, an Assemblie to do a wrōg (sateth he) maye bée so handled, that it shall proue none of chese offences: as, if I gather mécte companie togither, to carrie awaye a péece of Timber (which will not bée moued without a good many) whereto I pretends [Page 178] right, though in lawe it bée an other mans. And so also to doe an vnlawfull thing, as if many doe méete to play at bowies, tables, or Cardes, & do vse no missebehauior agaist y ^e Peace, they are not punishable in this de­grée. And yet, if he y ^e carieth the péece of tim­ber away, wil vse dreadful words, as to say, y ^e he wil carrie it in spight of him that hath it, or y ^e he wil haue it, though he die for it, or suche like, his doing may their proue a Riot The maner and hand­ling of a thing, may make it ei­ther blame­worthie or blamelesse..

Furthermore, y ^e intetiō & purpose, of those y ^e be assebled, is worthie y ^e weighing. For, to vse harnesse on Didsomer night in Lōdon, or on Day day in y ^e coūtry, for sporteonly, is no such offence, séeing no terror followeth of it, & the words in terrore populs séeme to bée ma­terial in an Inditemet of this kinde. So, if y ^e Shirite or his Bailie do leuy people to serue y ^e Queenes writs of Capias, or if a Cōstable do gather assistāce of me with weapō to part an Assray, it maketh no Riot. 3. H. 7. 1 & 10. So if amā (hearing y ^e another wil fetch him out of his house & beate him) do assemble cōpanie with force, it wil bée no vnlawful assemblie 21. H. 7. 39. And so also if many bée assébled, & none of them knoweth to what ende, it can make no Rout nos Riot (as M. Mar. thought) til y ^e intent bée knowen. For if the maister intend to make a Riot, & take his vsuall ser­uants with him, not foretelling thé what he [Page 179] intedeth, & the cōmitteth an outrage w ^t the, this is no Riot in thé: for although he shal bée punished, they shal bée excused. But other­wise it is, if he make thé priuy to his purpose. Mar. & in y ^e report of Daliso. And in y ^e former case, it is not material whether his number of seruants bée aboue his degrée, or no, so lōg as they bée his Menials or houshold me. And if a nūber of women, or infants (vnder y ^e age of discretion) do assemble theselues for theit own cause, this is no vnlawful asseblie pu­nishable by these Statutes: But if a man of discreation cause them to assemble to cōmit an vnlawful act, then it is otherwise sayeth Mar. And I remeber, y ^e not many yeres since wome were punished in y ^e Starchamber, and y ^e worthily, for y ^t (hauing put off their séemely shamefastnesse, & apparelling thē selues in y ^e attire of me) the assebled in gret nūber, & in Riottous maner pulled downe an inclosure.

If many be at an Alehouse, a Christmasse dinner, or Churcbale, & (without any intetiō of an Affray) they sodainly fall togither by y ^e eares, & make it Lapitharū conutniū, yet this is no Riot, vnles they betake themselues to parts, for so it wil easily become a Riottous assembly. And if 12. Iurours (being commit­ted to their kéeper) do fal out & fighte, sire as against sixe, this maketh no Riot saith Mar. [Page 180] bycause they were lawfully assembled, and were compelled to bée in companye toge­ther.

Finally, if the Maior and Communal­tie of a town do assemble and make a Route in their common quarrell, this offence shal bée iudged and punished in their Na [...]rail persons, & not in their bodie politicke Mar.

Thus farre you sée, what these offences bée, and in what manner they may bée com­mitted: now therefore beholde what power one Iustice of the Peace hath ouer them.

One Iustice of the Peace, can neither make enquirie of a Route or Riotte when it is done, nor assesse anie Fine nor yet award anye processe for it, nor otherwise meddle with it (in the nature of a Route or Riotte) but only as a Trespasse against the peace, or upon the Statutes of Northampton or of For­cible Entries before treated of. The power of one lu­stice of the Peace, in Riotte &c.

And therfore if he heare of any Route or of any intention of a Riot, he alone, or with his seruants may go to y ^e place, & such as he fin­deth Riottously assembled & armed, he may arrest to finde Suertie of their good abearing, and may committe them to warde, if they refuse to giue it, and take their weapons frō them: And if he come to the place, and doe not finde the yet come thither, he may leaue [Page 181] his Seruauntes there, to make suche ar­rest when they shall come: So also, if he bée sicke, he may send his seruants to y ^e place to arrest them. And this is the iudgemente of all the Courte, in the case of Sir Thomas Greene 14. H. 7. 8. grounded vpon the words both of the Commssion of the Peace, and of the Statute. 24. E. 3. ca. 1 as I take it. But if one Iustice of the Peace alone will take vp­on him to Recorde a Riotte that he séeth, the partie shall not bée concluded thereby, for he may trauerse it: and if the Iussice wil cōmit one to warde pretending vntruelye y ^t he did a Riot, where he did none, an Action of tres­passe lieth for y ^e party against him. Fitz. Fo. 18.

So that (vppon the whole matter) one Iu­stice of the Peace alone may do somewhat to preuet a Route or a Rior, before it be done, and for the staye of it whilest it is a doing, but nothing in effect to punish it as a Riotte or Route, when it is committed and done: For (as Iudge Fineux saith) (in that case of Sir Thomas Greene) y ^e Statute which I take to bée that of [...]4. of E. 3. ca. 1. was giucn as a hastie remedie, & for to preuent a mischiefe, being imminent and before the eye, & ther­fore the law shall largelie construe the au­ctoritie of a Iustice of Peace in that behalfe: So that he shall neither néede to make anie [Page 182] Precept in wrting, nor to expecte the com­ming of his Companions, nor to bée present in his own person, but may vse al reasona­ble meanes for preuention and staye of the euil. And yet the ordinary power of punish­ing Routes & Riots resteth not in his hand, but rather belongeth to two Iustices of the Peace, as it shal hereafter appeare. In the meane time, I will adioine somewhat out of the Statutes of our owne age, the whiche séeing further into the perilles that ensue of these vnlawful conuentions, haue also pro­uided further, as wel in pollicie to preuente them, as in seueritie to punish them.

The statutes (1. Mar. Parl. 1. ca. 12: & 1. El. ca. 17.) do make thrée degrées of Riottous & Se­ditious Assemblies, in certaine special cases, the first, consisting of the commune number of thrée petsons, and being vnder the nūber of twelue: the seconde of twelue persons (or more) and the thirde of fortie persons & vp­ward: Al which are to bée punished diuersly, according to the number, intent, acte, & ob­stinacie, of the parties assembled: wherein there is some imitation of an auntient law that King Ina made against théeues, whose degrées in offence the seuered & punished by their nūber also, saying thus: þeofar we ha­taþ oððe seofan menn: fram seofan hloþ [Page 183] oþ fif & þrittig: and syþþan here: y ^t is, ‘Théeues we call them vntill the number of seauen mem: from seuen, a Troupe, vntil 35: and an Armie, aboue that number. Rebellious and vnlawe­ful assem­blies.’ But I will procéede.

One Iustice of the Peace therfore, maye (by vertue of these Statutes) make procla­mation in the Queenes name, that the per­sons (assebled in offence of these lawes) shal seuer themselues, and departe to their dwel­lings peaceably: and withal may (at his dif­creation) assemble hir Maiesties subiectes to take the: and may also take them indéede if they disobey, & shal bée vnpunished for y ^e hur­ting, mayming, or killing of any of them, if they make resistance. Proclama­tion. He also is to take the declaratiō of any person, that (being moued to any such assembly) wil within 24. houres after reueale the same vnto him.

Here I must stay and for a time, goe no further with these asseblies, bicause the po­wer of one Iustice of the Peace fayleth mee, & ertendeth no further in them: the rest shal bée disclosed, when order shall lead vs to in­treate of the aurtoritie of two Iustices.

VVhat other things one Iustice of the Peace alone, may do out of the Sessions, by ver­tue of Statutes menti­oned in the Commission.
CAP. XX.

BEFDKE that I shall descende to shewe suche further partes of power as bée giuen to one Iu­stice of the Peace by latter Statutes, it shall not bée amisse to take in my waye, that remnaunte of hys aucthoritye whyche lyeth in the firste Assignauimus of the Commission, and hath not bene yet fully applyed to the pra­ctise.

The whole consisteth of such members as I haue alredy shewed, namely of y ^e Statute [Page 185] made at Winchester. 13. E. 1. of the Statute made at Northampton. 2. E. 3. ca. 3. the Statute made at Westminster. 5. E. 3. ca. 14. the Statute mentioned to be made at Cambridge, (but mistaken for Canterburie) 12. R. 2. the Sta­tutes 1. H. 4. ca. 7: & 2. H. 4. ca. 21: of Liueries: and the Statute 3. H. 5. ca. 6. & 7. of counter­feting and other falsifying of money.

Of this laste Statute, as also of that at Northampton. I haue heretofore saide what I thought. Concerning Winchester & West­minster, I say shortly, that by the forme of the Commission as it is, one Iustice of the Peace may put the articles of them in exe­cution: First, by commaunding fresh sute, hue and crie, and search to be made by the Shirffes and Baylifes, & others, after thefts and robberies: watches to be kept for arre­sting of suspected persons and night-wal­kers: and highwayes to be enlarged: Then by séeing, that two Constables be in each Hundred and Franchise: by forbidding Fairs and Markets to be holde in Church yards: by compelling such as be betwéene the age of fiftéene yeares and thréescore, to be sworne to the Peace (for that also is in the Articles vppon the Statute of Winton) & lastly, by charging the Constables to arrest such as shal be suspected to be Drawlatches, [Page 186] Wastours, or Robertsmen, that is to say, ei­ther myching or mightie théeues, for the meaning muste remaine, howsoeuer the word be gone out of vse.

The Statute of Canterburie (made chiefly for Artisicers and Labourers, and partly for Victualers) is repealed for the first, and run­neth for the last in a generalitie. And as for that law, & those of H. the 4. concerning Li­ueries, I sée not what one Iustice of the Peace may well do towardes the execution of them, further than by commaunding the to be obserued. For, the forfeiture groweth, either by Attainder vppon enquirie, or by Record of the Iustices in their presence, as the Statutes themselues do appoint. And these bothe doe require two Iustices, as the very wordes thereof, and of the second Assignammus in their Commission, being in the plurall number, doe plainely pur­porte.

For, I do not thinke that any other ma­ner of execution of these lawes by one Iu­stice of the Peace, ought to bée gathered by any general words of the first Assignauimus. I know, that M. Fitz. in his Nat. Br. Fol. 82. saith, that albeit a Iustice of the Peace hath none expresse auctoritie within his Com­mission to take a Recognusaunce of the [Page 187] Peace, yet of Congruence it followeth, that he may take it, because he hathe aucto­ritie in plaine wordes, to cause the Peace to bee kept, and to compell men to finde Suertie for the same. And it is a Rule of Lawe, Concesso vno aliquo, etiam id con­cedi videtur, sine quo prius concessum habers nequit: But howe farre these things may bée drawen, I will not determine, remem­bring, that also is an other Kule, In generali concessione non ventunt ca, quoe quis non esset verisimiliter in specie conces­surus.

But as I haue saide heretofore, A newe reforming of the present forme of the Com­mission woulde easily remoue from vs all these doubts.

This I do not like at al, that one Iustice of the Peace, shoulde take vppon him to binde an offendor agaynste anie Penall Lawe, (being wythin the power of Iustices of the Peace, but yet neyther comprehen­ded in their Commission, nor committed to the charge of anye one of them) to ap­peare at the Sessions, to aunsmeare to his faulte. For, although I haue séene sundrye olde Precedents of Attachments to be made from one Iustice of the Peace agaynste [Page 188] Labourers, to be before the Iustices at their Sessions, to aunsweare to their contempts: yet I am not persuaded that the like maye be done against the offendors of other Sta­tutes, vnlesse it be specially therein so ap­pointed: no more than it might haue bene done in that case of Labourers it selfe, had not the Statute of Labourers (25. E. 3. ca. 6.) expresly commaunded it.

And I doubt not, but they of the last Par­liament were also of this minde with me: For, if they had thought it generally lawful so to doe, they woulde not haue so specially prouided for it, as you shall anone sée in the notes of the Statutes, (23. Eliza.) againste Slaunderous newes, and against the taking of Pheasants and Partriges. And surely, much harme followeth of it, for it falleth out moste commonly in experience, that those Iustices whiche be moste busie to take such bondes, bée no lesse readie to release them: and so (playing faste and loose) they kéepe (as it were) priuie Sessions wythin their own houses, in which, both y ^e Queene looseth hir Fine and the common wealth an example: and if the offendor loose also, then that (belike) falleth to the share of him that worketh the deliuerance.

And therefore, it were better (as I wéene) [Page 189] that such offendors were first Endited, and then that Processe were orderly awarded a­gainst them, vntill that eyther they yéelded themselues, or were taken, or outlawed.

There is an other thing also, whereof I thought méete to admonishe the Iustices of Peace, in this place. Many of them doe vse to giue out their Precepts to attach persons suspected of Felonie, to haue them brought before them, which thing is neyther newly deuised, nor done without colour: for they haue such a Precedent in the olde Booke of Iustices of the Peace Fol. 41. and there is no doubt, but that if a Felonie bée done, euery man may arrest whomsoeuer he suspecteth of it. But for all that, the whole Courte (14. H 8. 18.) condemneth such Precepts, be­cause, if the Baih [...]e which serueth the War­rant, haue suspition in the partie, he may of himselfe without the Warrant arreste him: and if he haue not, the Warrant of the Iustice of Peace is no war­rant to arrest him, vnlesse he be endited before.

VVhat other things one Iustice of the Peace may do, out of the Sessions, by the power of other Statutes, not mentioned in the Commission.
CHAP. XXI

SEing the whole po­wer of one Iustice of the Peace (as wel in the very businesse of the Peace it selfe, as in the execution of some Statutes men­tioned in the Cōmis­sion) hath now at length bene rehearsed. Any one Iu­stice of the Peace. It is cōuenient to summe vp such other partes of power also as other Statutes haue putte into his hands, which done, we wil no lon­ger treate of one Iustice alone, but wil asso­ciate some other vnto him.

Euerie Iustice of the Peace is a Conser­uatór of Riuers wythin his Countie: and (when he may attende it) oughte to suruey [Page 191] the Weares in Riuers, that they be of rea­sonable widenesse, and shall suruey the of­fences of taking Salmons in any Waters (out of the Countie of Lancaster) betwéene the Natituitie of the Virgine Marie, and S. Martins day, and (there) betwéene the feasts of S. Michaell, & the Purification of the said Virgine: and taking yong Salmons at Myll Pooles, or other places, from the mid­dest of Aprill till midsommer: and of ca­sting Nettes into any Waters, (by whych the fry of any fish may be taken) and punish the same by burning of their Nets and en­gins. Conserua­tor of Ri­uers. Westminst. 2. ca. 47: 13 R. 2. ca. 19. & 17. R. 2. ca. 9.

One Iustice of the Peace may take vpon him to heare and order the controuersies, betwéene Maisters and seruants, touching their departure, & may alow of the reason, & sufficience of the cause, for which a Master may put away his reteyned seruant, or the seruant may departe before the ende of hys terme: and may (in Day time or Daruest) vpon request, and for the sauing of Corne, graine, or hay, cause suche Artificers, and persons (as be méete to labour) by his dis­cretion to serue by the day, for the getting, cutting, inning, or carying therof, according to the skil and qualitie of the person, & may [Page 192] (vppon his refusall) imprison him in the Stockes by the space of two dayes and one night. Appretices. seruants, and laboures. And his testimoniall vnder his hand and seale to such as may passe in Day and haruest time, from one Shire to another, is sufficient. And he also vpō complaint made, may commit that partie to warde, that in his iudgement shall bée thought méete, and yet shall refuse to be bound as an Appren­tice, according to the intent of the Statute, there to remaine vntill he bée contented so to be bound. And also may by his discreti­on vpon the complaint of the Apprentice, take order betwéene his Maister and hym, and for want of conformity in the Maister, may binde him to appeare at the next Sessi­ons before the Iustices 5. Eliz. ca. 4.

If any such person, as is declared to bée a Roage Vagabonde, or sturdy Beggar, by the Statute (14. Eliz. ca. 5.) being aboue the age of fourtéene yeares, shall bée taken begging, or wandring, or missusing hym­selfe, contrary to that Acte, and be brought before a Iustice of the Peace, he is present­ly to committe him to the common Gaole, or to such other place, as shall be by the Iu­stices of the Peace, (or thrée of them) at their generall Sessions appointed therfore: to remaine there (without bayle, or main­prise) [Page 193] till the next Session of Peace, or ge­nerall Gaole deliuerie, whiche shall firste happen. Roages and vagabonds.

And the Register booke of the Pore with­in each diuision of the Iustices of Peace, is to remaine with one of the Iustices of that diuision. poor people And eyther of those two Iu­stices before whom the Collectours for the poore are appointed to make their accompt, may commit him (that shall refuse or neg­lect to make his accompt, by the space of 14. dayes after request to him thereof made) to the next Gaole, there to remaine wythout baile or mainprise, til he hath made it, and payed the surplussage of his receit 14. Eliza. ca. 5. Learne if the Register Booke is to haue continuance still.

Vpon information to anye Iustice of Peace of any vnlawfull hunting by night, or with painted faces, or other disguising (in Forrest, Parke, or Warrein) of anye person to bée suspected thereof, that Iustice may make a Warrant to the Shirife, Con­stable, Baylife, or other Officer, to take the partie, and to haue him before him, or any other Iustice of the Peace in that Coū ­tie, who may examine him of that hunting, and of the doers in that behalfe, and if he do wilfully conceale that hunting, or any per­son [Page 194] with him defectiue therein, then the same concealement shal be Felonie in such concealour, but if he confesse the truth of all that he shall be examined in that behalfe, then his offence of Hunting, shall bée but Trcspasse and Finable at the nexte generall Sessions of Peace there. 1. H. 7. Hunting. cap. 7.

Euerie Iustice of the Peace maye (as well wythin Liberties, as without) enter into any common house or place, where a­nye playing at the Bowles, Coytes, Cloth, Cayles, halfe-bowles, Lennis, Dice, Cardes, Lables, or at anye other game prohibited by anye former Sta­tute (of whych sorte be Footeball, and casting of the stone by 12. R. 2. ca. 10.) or play­ing at any vnlawfull game (alreadie in­nented, or hereafter to be inuented) shall be suspected to be vsed against this Statute: and may arrest as well the kéepers of suche places, as the players there, and imprison them vntill thosc kéepers finde Suerties to the Duéeees vse (to be bounde by a Re­cognusaunce, or otherwise) no longer to occupie anye suche play or place, and that the persons founde there playing, bée in like forte bounde by themselues, or [Page 195] wyth Suerties (at the discreation of the taker) no more to playe, or haunte, at, or to, anie of the sayde places, or at any of the saide games. Vnlawfull games. And euerie Iustice of the Peace, finding or knowing anye per­son (not exrepted by this Statute) to vse anye vnlawfull game, contrarie to thys Acte, maye committe hym to warde, there to remayne wythout bayle or mainprise, vntill he become bounde by Obligation to the Quéenes vse (in a summe to be thought reasonable to that Iustice) that he shall not from thence­forth vse suche vnlawfull games. 33. H. 8 cap. 9.

Anye one Iustice of Peace (by the large wordes of the Statute) maye en­quire, heare, and determine, by hys discretion, as well by examination as otherwise, the offences committed in Tilemaking, and assesse the Fine there­in limited. Tyle. And maye call before hym (at anye time or place) suche as haue beste knowledge in Tilemaking, and ap­point them Searchers of the sayde defaultes, 17. Edward. 4. cap. 4. But learne whether it bée so to bée taken or no.

If anye Souldiour, seruing the Duéene in hir Warres, doe sell, gyue a­way, wilfully purloine, erchaunge, alter, or put away, any Horsse, Gelding, Mare, or Harnesse, wherewith be shal be set forth, or which being taken from any other soul­diour, shall be appointed vnto him, and doe escape the punishment, which the Lieute­nant, high Admirall, the Kings Deputie the Viccadmirall, Wardein, & Captaine, & their Deputies, in their absence may laye vppon him, by this Staute, then vppon com­plaint and due proofe of the offence to bée made by the owner, hys executors or Ad­ministrators, to any Iustice of Peace, where suche offendour shall bée founde, he shall be by him committed to Warde, there to remayne (wythout baile or main­prise) till he shall haue satisfied the owner, his executours or Administrators, of such Horse, Gelding, Mare, or Harnesse so sold, gyuen awaye, &c. vnlesse hée bring with hym before the same Iustice, sufficient te­stitmonie from the sayde Lieutenaunt, or anye of the persons aboue named (in writing vnder their Seale) testifying, that the saide Horsse or Harnesse, was loste in the Quéenes seruice againste the wyll of that Souldiour, or was taken by [Page 197] anye of them from hym for anye reaso­nable respecte, and appointed to some o­ther to serue wythall 2. and 3. Edwardi 6. cap. 2. Souldiours selling horse or harnesse.

If anye person (to whome anye Ag­nus Dei, Crosse, Picture, Beade, or such superstitious thing from the Sea of Rome, or the auctoritie thereof, shall bée offered or deliuered) doe disclose the name and dwelling (or place of resorte) of suche offe­rer or deliueredr, to any Iustice of Peace of that Shire, where hée, to whome suche of­fer or deliuerie is, shall bée restant; then that Iustice muste (wythin fourtéene dayes next after) declare the same to some one of the Quéenes priuie Counsell. Agnees Der. 13. Elizab. cap. 3.

Euerye Iustice of Peare maye (wyth­in one Moneth after the speaking or re­porting) committe to Warde, anye per­son, beyng vehemently suspected of say­ing, or reporting of any slaunderous news or thles, agaynste the Quéenes Maiestie, (vnlesse he do put in Suerties to appeare at the nexte Quarter Sessions, or Gaole deliuerie) there to remayne, till he shall finde Suerties for surhe hys apparance. Slaunde­rous newes. And maye also (wythin one Moneth after suche speaking, or reporting) re­reyue [Page 198] the accusation thereof, and putte the same, and the names of the Wit­nesses in writing, and certifie it at the next Quarter Sessions, or Gaole deliuerie. 23. Elizab. ca. 2.

If anye offendor (confrarie to the Statute prouided againste the Distur­bers of anye Preacher) shall bée arrested and brought before a Iustice of the Peace, then be (vppon due accusation there vpon hadde by the sayde arrestor, or othet per­son) shall foorthwyth committe the partie so taken to safe custodie, by his discreti­on. Disturbing of Preachers And wythin fire dayes nexte after the accusation, he and one other Iu­stice of Peace sall, &c. 1. Mar. Parlia. 1. ca. 3. But enquire, if all thys Statute bée not repealed by 1. Elizab. cap. 2. in generall worbes at the latter enbe there­of

Euerie Iustice of the Peace may (with­in one Moneth after the arriuall) seaze all the gwdes of anye outlandishe persons (calling themselues Egiptians) that shall come into thys Kealme: and maye also kéepe the one moitie thereof to hys owne bse, makyng accompte to the Quéene in the Escheaquer for the other moifie. Egiptians.

And euerie person that can prooue by two credible witnesses before him that so sea­zeth, that any of those goodes were craftily, or feloniously taken from him, shall be in­continently restored thereto before the par­tie that so seazed them, vppon paine of the double valewe thereof to be forseifed to such proouer. 22. H. 8. cap. 10. But note, that after the Moneth, the offence is made Felo­nie, and then it séemeth, the Quéene is to haue the goodes wholly. 1. & 2. Phil.&. Mar. ca. 4.

If any one Iustice of the Peace do ioyne with the Clearke of the Peace in taking the Inroilment of an Indenture of bar­gaine and sale of lands, fenements, or he­redifaments, lying in that Countie where he is Iultice, it is sufficient as it séemeth by the wordes of the Statute. Inrollmer 27. H. 8. cap. 16.

Euery Iustice of Peace maye eramine & search (by his discrefion) such as doe seel or set soorth so be solde any Candels, and other workes of Ware, at higher price than af­ter the rate of foure pence the pounde, ouer the common price of plaine Ware, betwéen Merchant & Merchant: and may also punish [Page 200] them by forfeiture of the worke fette foorth to sale, and of the balewe of that whiche is solde, and by Fine to the King. Warke of Waxe 11. H. 6. ca. 12. as it séemeth by the large words of the Sta­tute.

Anye one Iustice of Peace, is war­ranted to fette on the Pillorie, in the nexte Market Towne to the place of offence, a­ny person that hath broken the Assise of Fe­well, and is conuicted thereof, and not a­ble to pay the forfeiture, there to be at elea­uen of the clocke vppon the Market daye, wyth a Billet or Fagot bounde to some parte of hys body. Assises of Fewel. 7. E. 6. ca. 7. but consider, whether a Iustice of Peace, maye conuicte him of the saide forfeiture or no: for it see­meth by the wordes of the Statute, that hée is to be rather a Minister, than a Iudge in that case.

If any person (aboue firetéene yéeres of age) doe by the space of twelue Moneths, forbeare to repaire to some Church, Chap­pell, or vsuall place of common Prayer, contrarie to the tenor of the Statute (1. Eli. ca. 2.) then any one Iustice of Peace of the Countie where such offendor shall dwell or be, may make Certificat thereof in wri­ting into the Kings Bench, to the ende, that the offendor maye there vppon bée bounde [Page 201] in 200.lb at the leaft with sufficient suerties to the good behauiour for y ^t this so lōg obsti­nacie, besides the other penalties 23. Repayre to the Church. Eliz. cap. 1.

Euerie Iustice of Peace maye eramine offences against the Statute made for pre­seruation of Phesants, and Patriches, & a­gainst hauking in Corne (if the same offen­ces bée not before lawsully hearde, or deter­mined otherwise) and may take bond of the offendor with good suerties for his apparāce af the nerf general Seisions of the Peace, to aumswere to the saide offence, and to pay the penaltie, or receiue the punishmet due ther­fore: and may also after conuiction and pu­nisment of suche offender, in taking or killing Phesāts or Patriches, take like bo ^sd of him & suerties, that for the space of two yeares, he shall not offende against the saide Statute. Phesants, & Patriches. 23. El. ca. 10.

If séemeth that one Iustice of the Peace, may (vpon complaint of the partie gréeued) eramine the Shirife, Vndershirife, and Plain­tife, concerning the taking or entering of plaintes in their Conntie Courtes & bookes against the Statute: And if he finde therby any fault or offence committed, that shall stande for a sufficiente conuiction and at­tainder, without any further enquirie or ex­amina [Page 202] mination: So may be also eramine the Bai­lic of the Hundred for not warning of the Defendant in such a plaint, according to his precept from the shirife or Vndershinte, and if thereby he finde a default and offence, that also shall stand for a sufficient condemnati­on. Plaints in the Countie Courts. And the saide Iustice must Certific those eraminations within a quarter of a yeare into the Eschequer.

And further the Custos Rotulorum or y ^e El­beft of y ^e Quorum in his absece, ought (at the General Sessrions after S. Michael) appoint two Iuslices of the Peace (the one being of y ^e Quorun to haue the ouer fighte and controle­ment of the said Shirifes &c. and of y ^e amerce­mets. And that one of those Iustices may ex­amine and (without further enquirie) con­uict the gatherers of the same, if they gather any more money than is contained in their lawfull Esfreites. 11. H. 7. ca. 15.

The Cerificate of one Iustice of Peace (ioyned with the Customer of the place) of the vnlading and felling of Corne, Graine, or Cattell, carried by Water from one place to an other of thys kealme vnto the Customer and Controller of the place where the same was imbarked, is suffi­ciente and ynough vppon the Statute [Page 203] of forestalling. Certificar of selling Corne. 5. Edward. 6. cap. 14: &. 13. Eliz. cap. 25.

One Iustice of peace maye take out of Sanctuarie certayne abiured persons thi­ther and others being indited of some kind of offences mentioned in the Statute, done after they become Sanctuarie men, & maye commit them to the Gaole in the Countis where the inditement is founde, til they bée tried. Sanctuarie pers [...]. 22. H. 8. ca. 14.

Euerie person finding or seacute;eing anye to offende the Statutes made againste the shooting in Crossebowes and Handgunnes, maye arreste and bring, or conuey him to the next Iustice of the Peace of the Countie, wherein be was founde offend, who (vp­on due examination and proofe thereof bée­fore him made) may by his difscreation com­mit him to the Gaole, there to remane tpll be shall truely pay the one moitie of the for feyture of this Statute, to the Quéene, and the other moitie to such [...] bringer or cō ­ueyer. Crosfe­bowes and handguns. 33. H. 8. cap. 6. Here therfore thys Iustrce of Peace hauing (as it séemeth) the whole matter committed to hym selfe in thys case, is to bée verye circumspecte therein, leaste hée too hastelye con­bemne the guiltlesse, or negtigently [...] [Page 204] suffer the offendor to escape, for vpon the offence sufficiently proued, it is necessarie that in his Mittimus or precept to y ^e Gaoler there be contained the names of al the par­ties, the offence, and how long hée is to bée helde in prison. And further he is to make a Record of this matter, and send the Estreit thereof into the Eschequer, wherby the Ba­rons may haue intelligence of the same, to haue the Quéenes dutie leuied to hir vse. The forme of this Mittimus may bée easely drawne by some other Precedents in thys Booke.

Euerie person (other than such as are au­ctorifed by value of 100. th. in landes) ought, if he bée auctorised to shoote, and do inhabite in the Countrey, present his name to y ^e next Iustice of Peace adioyning. And there vpon the Iustice ought to present and recorde the same before the Iustices of the Peace at the next quarter Sessions 2 E. 6. ca. 14 But learn of others, whether this matter is to haue co­tinuaunce still, or else did onely extended to suche persons as had licence at that time.

The Superuisors for amendement of y ^e highwayes, ought within one moneth after any offence done by any againste the Actes (2. & 3. Ph. & Ma. ca. 8: & 5. Eli. ca. 13.) present that offence to the next Iustice of the Peace: [Page 205] And there vpon he ought to certifie the same at the next Generall Sessions within the same Countie. Highwaies. 5. El. ca. 13.

Euerie Iustice of Peace (as it séemeth) within the Shires next adioyning to the ri­uer of Thamis, within their seuerall iurisdi­ction, hath power vpon complaint made vn­to him by the Duerséers and Rulers of the Whirrymen and Waterme or two of the, or the maisters of any such seruaunts, both to examine, heare, and determine all offen­ces committed against the Statute, and to set at large him that shall bée imprisoned, by the ouerséers & rulers, if there bée iufte cause, and also by his discreation to punishe the o­uerséers and Rulers, that shall vniustlye punishe anye person. Thamis. 2. &. 3. Phi. & Mar. cap. 16.

Euerie Iustice of Pease (before whom a­ny person, arrested for Manflaughter or Fe­lome, or suspition thereof) shall bée brought, ought (before he committe him to prison) to take the examination of such prisoner, and the information of those that bring him, and to put the same (or so much thereof as shall bée materiall to proue the Felonie)in wri­ting within two dayes after, and to take Bonde of all such as doe declare any thyng material to proue the offence, to appeare at [Page 206] the nexte General Gaole deliuerie, & to glu [...] euidence there against the partie. Examinatiō of Felons to be commit­ted. 2. &. 3. Ph. & Mar. ca. 10.

This bond spoken of in this Statute, and in some such like, séemeth to bée met of a Re­cognusāce, to bée acknowleged to y ^e Queenes vse with Condition for the person maunce of that, for which the Statute appointeth it to be taken, For (as before hath bene saide) euen as in the case of Suertie of the Peace & Good Abearing. The forme of the bond mentioned in this last Statute. The Iustice of the Peace taketh vsually a Recognusance, and is well warranted so to doe, being made a Iudge of Recorde as touching matters of the Peace though he hath no ful words for him neither in any Statute nor in his Commission. So being auctorified by this Statute to deale in this matter, he may be wel said to hauether­in inclosed by a very good Congruence, po­wer also to Recorde the acknowledging of a sum of money to bée forfeited to y ^e Queene, vpon not performing the Condition of the same.

There also you may sée (if I bée not decei­ued) the time when the examination of the Felon himselfe, was first warranted by our Law. For at the Common Lawe, his faulte [Page 209] was not to bée wrong out of himself but ra­ther to be proued by others.

And bycause that some Iustices of Peace do vpon this Statute vse to take the infor­mation of the bringers of the suspected per­sons vpon their Oathes, and other some doe receiue it without any Oath at al:Let vs sée by the way what is wont to bée saide for ei­ther side, that a man may the better sée what way to incline and follow. Whether the exami­nation ought to be vpon Oath or no.

They that take the information, or exa­mination (for this Statute doth vse both the wordes) without any oath, do say, that if the makers of this Statute had ment that an Oath shuld bée take, then wold they haue ex­pressed the same, euen as the Statutes for Bankcrupts (54. H. 8. ca. 4: & 13. Eliz. ca. 7.) the Statute of Accomptantes in the Exchea­quer (5. R. 2. ca. 13) The Statute of Labou­rers (2. H. 5. ca. 4) and the Statute of choosing Knights of the Parliament 8. H. 6. ca. 7. haue done: in all which Statutes, Examination by Oath is giuen in plaine words.

But they of the other side seeme strong­ly to defence their exacting of the Oathe, by the example of the Iustices of the higher Courtes, and doe alleage, that whereas the Statute (5. H. 4. ca. 8) ordained (without any mention of Oath) that in Actions of Debte [Page 210] vpō arrerages of accōptes, the Iustices should haue power to examine the Attorneys and others, the Iustices of y ^e Bench do vse in that case to minister an Oath to the examinate, as it may appeare. 19 H. 6. 4: & 35. H. 6. 5 The like (say they) hath bene done in olde time vpon the Statute (18. E.) that giueth the ex­amination of a woman couert in leuying of a Fine: for (25. E. 3. 44.) a woman couert, par­tie to a Fine, was examined & sworne, whe­ther she were of ful age, or no: & the like also (as they say) is done daily, in al the examina­tions of Sūmoners, Viewers; Shirifs, Clear­kes, and of other officers, that doe happen in the Courtes at Westmin. And M Brooke. Tit. Exami. 32 is of opinion y ^e euery exami­nation is vpon oath. And the Statute 2. E. 6. cap. 13. that giueth power to the Ordinary to examine a man for his personall tithe, ex­cepteth an Oathe, as though else he mighte haue done it by exacting one.

Besides this, they adde a reason, allead­ging, y ^e if these informers bee examined vpō Oath, then although it should happe them to die before the Prisoner haue his Triall, yet their information may bée giue in euidence, as a matter of credite, whereas otherwise it wold be of little or no weight at all, & therby offéders shold the eassier escape vnpunished.

And lastlye (say they) the precise penning [Page 211] of some particular Statutes, is no sufficient warrante to vnderstande all other Statutes accordinglye, vnto whiche opinion my selfe coulde bée easily brought to subscribe.

Thus mighte (and woulde) I conclude this parte concerning the power of one Iu­stice, sauing onely that this Statute doeth giue me occasion to extende my spéeth a lit­tle further. For, whereas it requireth that the Iustice of Peace should in taking the ex­amination, make choise of suche things as bée material to proue the offence, it séemeth necessarie that he (being perhappes vnskil­full in the lawes of the lande) shoulde bée somewhat instructed what actes those bée, that doe amount to Manslaughter or Felony ment within this Statute, & what other acts (though they carie som reseblāce) of y ^e same) yet do not reach so far. What Actes be Man­slaughter, or Felonie. And hereby he shall y ^e better know, whe to cōmit y ^e partie y ^e shal be brought before him, & when he shal not néed to meedle with him at all. But now I will only deliuer him (so shortlye as I can) those few helpes y ^e do redily come to my hand for knowledge of sundrie Manslaughters & Fe­lonies at y ^e Cōmon Law, leauing y ^e Felonies made by Statutes to appeare vnto him in y ^e rehearsal of y ^e charge of y ^e Sessiōs of y ^e Peace in the next booke whe I shal come vnto it.

The Statute 1. & 2. Ph. & Mar. cap. 13. concerning the Baylemente of prisoners (which gaue the occasion of the making of this presente Acte) séemeth to distinguishe Murder and other more capital crimes from Manslaughter and Felonie. Felonies touching the person. And it is certain, that in comon spéech Manslaughter is taken to bée a speciall manner of wilfull killing without any malice forethoughte off. And Felonie is not commonlye vnderstoode to extende so farre as vnto Murder. Yet séeing the principal consideration of this Statute is (in mine opinion) rather to bée practised in case of Murder than in these other lesse offi­ces, I wil adueture (though y ^e Statute haue not the words) to mingle them togither, and make it here (as in truth it is) a chiefe kinde of Manslaughter and Felonie. For as in olde time euerie killing of a man was of y ^e Effect calied Murder bicause death ensued of it (for of the Hebrew worde Moth (saith Postellus) commeth the Latine Mors, which the Sax­ons (our Elders) called Morþ Morth and Morþor Morthor as we yet sound it: so was that wilful man­ner of sleying w ^t malice prepensed lōg since and most properly called Felonie, because it was done Fe [...]eo animo, in malicious heate & displeasure, and per Feloniā as the Statute at [Page 213] Marlebridge. 52. H. 3. ca. 25. doth fearme it.

Foure sortes of Manslaughter.Not euerie Manslaughter deserueth pu­nishment (saith M Bracton) for inexpressing that Homicidium corporale facto committitur quatuor modis s. Iusticia, Iusticia. necessitate, casu velvo­luntate there withall he addeth that the firste of these is no sin at all, if it bée done sincere­ly, and without delight in shedding of bloud.

And therefore neither is the Iudge that by Iustice condemneth the guiltie to death, and commaundeth the minister to do execution, nor the lawful Officer y ^t executeth the iuste cōmandement according to his warrāt, guil­tie of any offence, for which vpō examinatiō either of thē ought to bée cōmitted to prison.

But if the Officer wil behead or otherwise execute him that is condemned to bée hāged, or if a priuate man without warrant whyll hang or kill such a condemned or outlawed person, this will bée a Felonious acte stret­thing to Murder, by good opinion 35. H. 6. 58: & 27. lib. Ass. Pl. 41.

And though the law hath bene takē hereto­fore, y ^e one might iustifie y ^e killing of a man attained vpō a Premunire, yet now y ^e same being prohibited by 5. El. ca. 1. if one that hath killed such a person were broughte before a Iustice of Peace, he might boldly committe him as a Felon.

In the seconde sorte of Manslaughter (ac­cording to M. Bracton) as there be manny dif­ferences, so is the law also diuerse in the cō ­sideration of them. For if a Iustice of the Peace within his Countie, or Maior, Bay­liffe, or other heade Officer of any Citie or Towne Corporate, within the same towne or Citie, or any other, hauing the Quéenes Commission or letters, doe lawfully vpon good cause raise or assemble any number of men for the suppressing of any such persons, as shall bée vnlawfully assembled contrarie to the Statute. 1. Mar. Parl. 1. ca. 12 And by re­son of their still continuing together after proclamation made, bée driuen to set vppon them, and therby anye of the stubburne per­sons bée slain. This slaughter done vpō this Necessitie is so iustifiable both in the Iustice himselfe & euery other of his company, that they ought not in any maner to be molested for it. 1. Mar. Parl. 1. ca. 12.

So if the Shirife or any other do by war­rant or vpon hue and crie made, arrest one indited of Felony, which doth resist & is slain therby. This fact done vpon this Necessitie is Iustifiable 22. Lib. Ass. P. 55. & Tit. Coron. Fitz. 288. 289. 290. For all these former cases tend to the commendable aduauncement of Law and Iustice.

By the olde Statue. 21. E. 1. De Malefa­ctoribus [Page 215] in parcis &c. If any Forester, Par­ker, or Warrener, or such as bée in their cō ­panye (after hue and crie made vpon offen­ders within their charge to yeelde themsel­ues, whiche they refusce to doe but flie and make resistaunce) doe (not hauing any ma­lice prepensed) kill anye of them, this is no Felonie, nor the partie to bée imprisoned or to forfeit any thing for it.

So if prisoners doe assaulte their kéeper, and in his defence he striketh anye of them to the death. 22 lib. Ass P. 55.

And so it is if any do attempt to robbe or murder one in his mansion house or dwel­ling place, or nighe any common highway, Carteway, horsewaye, or footewaye, or Fe­loniously to breake into his dwelling house in the night time, and in this their attempt, the partie or his seruauntes then with hun do kil any of y ^e misdoers (though y ^e law was somewhat doubtful before) it is now made out of questiō by y ^e Statute 24. H. 8. C. 5. y ^e hée shall not forfeit anything for that facte, but shal go. quit For in these cases of Necessitie he defendeth himself and his goods againste Kobbers and other notorious euil doers.

But he y ^e in an Astray is of necessitie dri­uen to kill the other in defence of his owne life, after that he hath fled as farre as he can, [Page 216] Is not so priuileged, for although it bee not accounted Felonie yet Statute of Gloue. cap. 9: willeth that suche an one be impri­soned til the comming of y ^e Iustices of Gaole deliuerie, and there (putting himselfe vppon God and the Countrey)the whole matter is to bee found by the verdite. And then y ^e king shall graunt him a pardon of Course, but hee shall forfeite all his goods 43. lib. Ass. Pl. 3. for hauing killed the Kings lawful subiect. And therefore the Iustice of Peace, may wel vn­der the name of Manslaughter in this Sta­tute take vpon him (as I thinke)to cōmitte suche an offender and to take eramination and bonde of the informers according to the Statute.

The like is to be done (as it feemeth to me) in case one kill an other by misaduenture a­gainst his wil, as by casting a stone, or shoo­ting an arrow, or felling of atree vnaduised­ly, or such like 11. H. 7. 23.

That Manslaughter which is committed with an euill intente, or in doing an other vnlawful or euil thing, though that whiche is done was not premeditate, is doubtlesse within the words and meaning of this Sta­tute. [...]oluntate. And so much the more, is that which is done in such a case of malice prepensed as I thinke.

For, if two do sodainly fall out, and ther­vpon draw their weapons, and one killeth the other, this is Manslaughter apparantly within the compasse of this Lawe.

So if one be in the company of him that of malice prepensed setteth vpon another to murder him, and doth of a fodaine take the murderers part, so that the other partie is slaine, this is Manslaughter in him accor­ding as the word is commonly understoode.

And so is it if two play at fence, or runne at the Eilte togither, and one of them bee slaine: For their first Acte was unlawfull, vnlesse it had beene by the Queenes licence, saith Fineux. 11. H 7. 23.

And if A doth assult B. and striketh him, and whilest B. defendeth himselfe, C. com­meth to parte them, and is slaine by A. this is Felonie in A. But if they both hadde ap­pointed the place of purpose, to méete there, to fight one with the other, and C. were slaine in seeking to appease them, then wil it be Felonie in both the other. 22. E. 3. Coro. Fitzh. 262 and in Dalizons reportes.

If the mother destroy hir childe newely borne, this is Felonie of the death of a man, thougt the child haue no name, nor be bap­fized Coron. Fitzh. 418. And the Iustice of Peace may deale accordingly. But if a [Page 218] childe be destroyed in the mothers belly, is no manslayer nor Felone to be imprisoned vpon this Statute, Coron. Fitz. 146. & 263.

The husband minding to make away his wife, did by the aduise of B offer hir a poy­soned Apple to eate, & the not misfrusting any thing, gaue the same to hir litle daugh­ter that stoode by in the presence of hir hus­bande, which childe he loued well ynough: y ^t child died thereof. And this was adiudged Murder in the husbande, because he offred y ^e poyson, & then had a wicked intet to kil ons therewith, & he was the originall occasiō of this death: But no offence at al in the wife, for the was btterly ignorant of the euill, & simply gaue it hir childe, taking it to haue bin very good meate. 18. El. Plow. Com. 474.

And if a man lay poyson for Kats, & an o­ther taketh it at vnwares, and dyeth there­of, this is not any wayes to bée layed to the others charge, ibid.

If a mad man or a naturall foole, or a lunatike in the time of his lunacie, or a childe y ^e apparantly hath no knowledge of good nor euil, do kil a mā, this is no seloni­ous acte, nor any thing forfeited by it. 21. H. 7. 31. & 3. H. 7. 1. for they cānot be said to haue any vnderstanding wil. But if vpō exami­natiō it fal out, y ^e they knew what they did, & y ^e it was ill, the seemeth it to be otherwise.

If it appeare, that the partie woanded or poysoned liued a yeare and a daye after the facte, then is it too late for y ^e Iustice of Peacs to cōmit the offendor to prison, for then it cānot be though, that he died by y ^e meanes, as it sémeth Cor. Fitz. 303. But it is plaine by 3. H. 7. cap. 1. That if any man be woun­ded in perill of death, the trespassor ought to be arrested, & put in safe képing till perfecte knowledge be had, whether the party woū ­ded wil liue or dies & vpō such matter with­in the yeare and day, the Iustice of Peace shal do wel to cōmit him. But this is a ge­neral learning in al cases of Murder or Mā ­slaughter, y ^e the party hurt, must be dead in fruth before it be in iudgement of Lawe fa­ken to be either of those offences: for Volun­tas at this day is not construed for the déede it self, as in time past it hath bin put in vre.

Hitherto of Manslaughter, y ^e dealeth only with y ^e Perso: other Felonies stretch to goods also as Robbery y ^e had y ^e name at the first of Robe, because he y ^e with force spoiled a mā, toke his robes or goods frō him. Felonies touching the person and goods. Robberie. And in this kinde of Felonie, y ^e law hath no cosideratiō of y ^e balue of y ^e thing take, because it is take frō y ^e person so y ^e it is Robberie though it be but worth a peny. And Braeton calleth hiut Fure improbum & pradone qui rapit rem alienā.

And if a man without any title take my goodes againste my will lying in a place where I am present, or do manace to kyll me if I giue him not my purse, by meanes whereof I deliuer it vnto him, it is Robbe­rie. Coron. Fitzh. 178 and 115.

So, if Théues assaulte me in the highe way for my purse, and I cast it downe into a Bush, (as I flie from them) of purpose to saue it, and they take it up.

Certaine persons tooke a man, and com­pelled him (by manace of killing) to sweare vppon a Booke, to bring them certaine mo­ney, and therevpon he brought it them:this was taken to be Robberie. 44. E. 3. 14 But if a man lie in awaite to robbe me in the high way, and draweth his sword vpon me, wil­ling me to deliuer my purse, and I defends my selfe, so as he hath not his wil, or I take him either by fight, or by hue & crie, it is not now take to be any Felonie saith Stamford, because he hathe not taken anye thing from me: and so is ther an opinion. 9. E. 4. 26. But the Lawe was holden to be otherwise. 27. Ass. Pl 28.&13. E. 4. 7.

And now seing the benefite of Clergie is taken away from Pickpurses, and Cutpur­ses, by 8. Elizab. ca. 4. let them also stand in this rancke. [Page 221] A Burglour, whome Britton calleth a Burgessor, that by night breaketh into a house (Wyth intent to Robbe, kill, or doe o­ther Felonie) though he cary nothing away, is a Felone, 22. Assi. P. 95: & 27. Assi. P. 38. So if he do but breake open the house feloniou­sly by night, though he enter not in, (sayeth Staf. Fo. 30.) But if this be done by day it is not taken to be Felony at this day without some further felonious acte done (sayth he) yet the Booke Tie. Coron. Fitzh. 178. & 185. do not make any difference. Burglarie. And the Sta­tute. 1. E. 6. ca. 12. taketh awaye Clergie and Sanctuarie, in case where one is conuicte or attainted of Breaking any house by day or by night, where anye person being in the same, shall be thereby put in feare (not spea­king king of any other fact.) And Britton defineth a Burgeslour to be he that feloniously in the time of peace breaketh open Churches, or other house or the walles or gates of Ci­ties or Burghs, whereof perhappes they had their first name, or rather may be deriued of Bowre that is a Chamber, or inner rouine, and Laron a Théfe.

Burning of a house malitiously and wil­fully, was Felonie at the common Lawe, as appéreth by Bracton, West. 1. ca. 15:10. E. 4. 14:&3 H. 7. 10. Burning of houses. And Brit. (Fol. 16.) sayth, that [Page 222] such as burne houses or corne feloniously, ought to be burned. And one burned a barn felon:ously by night which was adioyning to a house: and it was holden Felonie at the Common Law. 11 H 7. 1. And if a mans wicked intent were onelie to burne y ^e house of A. and thereby the house of B. is also bur­ned, the burning of this laste house is Felo­nie, because it ensueth of the fire that was firste kindled, Plowed. Com. 475.

Dther Felonies there be of Goods onely, called Larcinie of the Latine worde Latro­cinium, and it is punishable eyther by beath or by discretion of the Iustices, which diffe­rence groweth by the value of the thing sto­len: for if it ercéde not twelue pence, the fact is but Petit Larcinic, and the offendor is not to die for it, W. 1. ca 15. Britton F. 22. Cor. Fitz. 404 406. although y ^e Inditement shal suppose the facte to be done Felonicè as in the case of Mayheme. 27. H. 8. 22. Felonic of goods.

But it sémeth by 8. E. 2. Coron. Fitzh. 415. that if he be conuide of one petite Larcinie, and after committeth an other, and is con­uicte thereof, and so a third, when all these valued togither, do amount about ru. pence, the for y ^e last he shal suffer death, & Brit ma­keth y ^e third offence alwayes death. And if diuers ioine in the stealing of goods, any [Page 223] thing amounting aboue the value of twelue pence, it is Felonic punishable by death in them all Coron. 404

Bracton destneth Furtum to bée Contra­ctatio re [...]al [...]ens fraudnlents, animo surandi, in­uito ilbo, cuires illa fuerit.

The wife therefore can not the be accounted a Felone, though she steale the goods of hir hushand 21. H. 6. Coron. Fitz. 456. And if shée steale an other mans goodes by the compul­sion of hir busbande, it is no Felonic in hir 27. Ass. Pl. 40. But if she doe it at his com­maunbement onelie, Bracton saith it shall not ercuse hir. And the wife may of hir self commit Larcinie, and shall suffer for it Co­ron. 383.

In some case a man may be banged for taking his owne goodes, as if he first deliuer them to one, to kepe, and craftily of purpose to charge him, he stealeth them from hym, this is Felonie, by 7. H. 6. 43. 13. E. 4. 10. & 5. H. 7. 18.

If a man steale out of an [...] manne [...] ground, wilde beastes whych be accompted Nullius in bonis, as Déere, Conies, Phesāts, or Doues, being abroade at their libertic, or Fish in a riuer, this is no Felonte, 22. Ass. Pl. 95. But if he take yong Pigeons in the house, or yong Boshauks y ^e cānot flie out of [Page 224] their ayrie, or fishe out of a pond or truncke, it is Felonie. 18. 4. 8.

To steale Béese, Foockes, Dennes, Pea­cocks, or Turkies, is Felome, for they b [...] accounted in bonis.

So is it of a tame Déere, if the stealer knewe it to be tame: and also the fleshe of any Déere that is killed by an other, the ta­king away of such a thing with a felonious imtent, is Felonie for they be also then rec­koned in bonis and baluable. But so to take away a Bore with Charters of lande in it, or a Warde, is no Felonie, for they be not personall, but reall goodes, whereof there can be no Felonie committed. 10. E. 4. 15.

And therefore alse, if with a felonious in­tent one cutte down and steale away a trée, or corne that is standing, or robbe an D [...] ­chard of the fruit growing there, it is no Felonie being at that time in manner par­cell of the ground, whereof there can be no Felonie committed: but if the trée or corne were cutte downe, or the fruit gathered be­fore by an other, and lefte there, and then one stealeth them, it is Felonie, for at that time they were very personall Cattels, 18. H 8. 2: & Coron. Fitzh. 119. & 256.

If a man clippe the wooll from my shéeps backe, or doe kill my shéepe, and steale the [Page 225] skinnes, leauing the bodies behinde, this is Felonie of goods, Dalizon. For the verye shéepe themselues were my goodes, & might be stollen.

But the firste finder and concealor of tre­sure founde, [...]lthough he kéepe it wyth a fe­lonious intent, or he that stealeth a wrecke of the Sea, or waued goodes, whilest they bée in that nature, séemeth not to bée chargeable in Felonie, by 22 Ass. Pl. 99. be­cause the owner thereof is not knowen as yet.

If a man deliuer his goodes to another to kéepe, and hée doe fraudulenfly and wilsul­ly consume them or conuerte them to hys owne vse, this is no Felonie, because pri­ma contractatio, and firste possession was not inuito domino, but of his owne deliuerie. 13 E. 4. 10.

And yet it is holden, if I bargaine with one to carry certaine bales of Woade to Crambrooke, and he carrteth them to Can­terburie, and breaketh the Bales, and taketh out the Woade, & conuerteth it to his own vse, that is Felonie. So if I deliuer a [...]un of Wine to him to carry, and he taketh the Wine out of the [...]unne, it is Felonie. For here it may be saide, that neyther the verie Woad, nor the Wine were deliuered hym [Page 226] in that kinde. But if he sell the [...]unne of Wine, or the Bailes of Woad togither, as he receiued them, then is it no Felonie, be­cause he had them in that sorte of the deliue­rie of the owner 13. E. 4. 9. & 10.

But if an Inkéeper sct a péece of plate be­fore his guest to drinke in, and hée carryeth it away with him, this is Felonie. For here the guest had no possessiō by the owner, but onelie the vse of the thing 13. E. 4. 9.

So is it the guest do steale the shéets in which he lyeth, and be taken ere he goeth out of the house, as in the Dall, after that he is come out of the Chamber, Coron. Fit. 204. & Dalizon.

If a shepheard steale the shéepe, or a But­ler the Plate, or an other manne any other thing that is in his charge and kéeping, it séemeth by the Iustices (3. H 7. 12.) that it shoulde not be Felonie, vppon the former reason, whiche séemeth to haue bene the antient lawe of the lande also. For Glan­uill in his 10. Booke cap. 13. sayth, Qnod Fur­tum non est, vbi initium habueru su [...]detencionis per dominn rei. But because in some of these cases of Seruants, there grew much incon­uenience vnto Maisters, therfore 21. H. 8 ca. 7. made it Felonie, if Seruants of the age of eighteene yeares that had anye goodes of [Page 227] their Maisters deliuerie to kéepe to their vse, shoulde fraudulently conuert the same to their owne vses, to the intente to steale them, if it amounted aboue to the valewe of fortie shillings, wherein Apprentices be excepted. And this statute being afterwarde discontinued, was reuiued 5. Elizab. cap. 10. whereof more shal be séene when wée come to the charge. But thus much for this place and purpose, to giue some little direction to the Iustice of Peace,) may at thys tyme suffise.

VVhat things any twoo Iustices of the Peace may doe out of the Sessions.
CAP. XXII.

THe auctoritie and po­wer of one Iustice of the Peace (without y ^e Sessions) thus peru­sed & passed ouer, let vs eramine the like power of twoo, boshe in generalitie, and in particular.

It is vniuersally true, the whatsoeuer thing one Iustice of the Peare alone is per­mit [Page 228] mitted so doe, eyther for the conseruasion of the Peace, or in the execution of the Cō ­mission or Statutes, the fame also may bée no lesse lawfully performed by two (or mo) Iustices, except it bee in a very fewe cases, where some Statutes do séeme specially to appropriate the execution thereof to some one certaine Iustice, eyther in respede that he is Next to the place, Eldest of the Quo­rum, or such like.

But we will proceede by particularities, The power of twoo Iu­sticcs of the Peace, in pu­nishing os Riots, &c. and because the first place (of right) belon­geth to the Peace, (as where in the office of this Iusticer chiefly consisseth) lette us here supply in two Iustices that power in puni­shing Riots, Routs, and vnlawsull Aisem­blies, whyche wée sayde before to bée wan­ting in one: And that shall wée the better doe, if wée firste of al lay open the Statute of King Henry the fouth, contayning a moste ample auctoritie, as well for the re­pressing, as for the Recording of the same, and then adioyne somewhat out of some o­ther Statutes.

IF any Riot, Assemblie, or Rout of people a­gainste the lawe be made, the Iustices of Peace or 3. or 2. (at the least) of them, dwel­ling most highest to the place, & the Shirif [Page 229] (or Vndershirif) of the Countie, shal come with the power of the Countie (if neede be) to arest them, and shall arrest them, & shal haue power to record that which they shall find so done in their prefencc against the law: And by that Record such offēdors shall be conuicted in maner and fourme as is cōteined in the Statute of Forcible entries, ( viz. 15. R2. c2,) And if such trespassers be de parted before their coming, then these Iu­stices of Peace, or thre, or two of them, shall diligently enquire within a moneth after such Riot, Assemblie, or Reut made:and ther­of shall heare and determine according to the lawe of the lande: and if the trueth may not be found in the maner as aforsaid, then with in a month then next following the said Iustices and Shirif (or vndershirif) shal certifie before the King & his Councel all the dedes & circumstāces therof, which Certificate shall be of like force as the ver­dit of twelue mē &c, And if such offendors do trauerse the matter so certified, then the Ccrtificat and Trauerfe shall be sent into the Kings Bēch to be tried & determined as law requireth. And that the same Iustices and Shirife shall doe execution of this Sta­tute, euery one vpon paine of one hundred pound, to be payed to the King, as ofte as [Page 230] they shall bee founde in defaulte. 13. H. 4. cap 7.

Whereunto the Statute (19. H. 7.) ad­deth that it the saide Riotte, Maintenāce & embra­cerie. Route, or vn­lawful assemblie, be not founde by the saide Iury, by reason of anye maintenaunce or embracerie of the saide Iurours: then the same Iustices and Shirife (or Vndershirife) shall also certife the names of the main­tainours and embraceours in that behalfe (if anye bee) wyth theyr misdemeanours that they knowe, vppon payne of euerye of the said Iustices & Shirif (or vndershirif) to forfeit twentie powndes (if they haue no reasonable excuse) for not certifying the same: which Certificate so made, shal be of like force as before &c. And euery person duely prooued to bee a mainteynor or em­bracer in the same, shall forfeite twen­tie powndes to the King, and shall be com­mitted to warde, there to remayne by the discreation of the Iustices. 19. H. 7. cap. 13.

Hereunto also the Statue (2. H. 5.) adioyneth further, Assistance. that the Kings liege people (beeing sufficient to trauaile) shall bee assistant to these Iustices, Shirife (or Vndershirife) when they shall [Page 231] bee reasonably warned, to ryde wyth them in aide to resiste suche Riots, Routs and assemblies, vppon payne of impri­sonment, and to make fine and ransome to the King. Prouided alwayes that the saide Iustices, Shirife (or Vndershirife) shall doe their sayde offices at the Kings costes, in going, tarrying, and re­tourning, by payment thereof to bee made by the Shirife by Indenture be­tweene him and them, of the sayde pay­ment. At the Kings char­ges And that suche Rioters attayn­ted of greate and hainous Riots shall haue one whole yeares imprisonment at the leaste, without beeing lette oute of prison by Bayle, Maineprise, or in anye other manner during the years aforesa;ide [...] & that the Rioters attainted of petite Riots, shall haue imprisonment as beste shall seeme to the King and to his Councell. And that the fines of suche Riotours at­tainted, shall bee by the same Iustices en­creased and putte in greater summes than they were wonte to bee putte in suche cases before that tyme in ayde and sup­portation of the costes of the Iustices and o­ther Officers aforesaide in this behalfe. 2. H. [...]. ca. 8.

Nowe, if it bee witnessed by twoo Iusti­ces of the Peace, and the Shirife, by Letters vnder their Scales, to the Lord Chaunce­lour of Englande, that any murders, man­slaughters, batteries, robberies, assemblies of people in great number in maner of Insur­rection, or other rebellious Riots, haue bene done and that suche offendours haue with­drawen themselues, to the intent to auoide the execution of the common Law, then the Lord Chauncelour may make a Writte of Capias, and therevpon (if neede be) a Pro­clamation, &c. 2. H. 5. cap. 9. Capias and Proclama­tion. which Statute was made to endure till the nexte Parlia­ment, and so discontinued: but it was re­uiued by 8. H. 6. and made prepetuall: which moreouer ordayneth, that (beefore thys Writ of Capias shall bee awarded) two Iu­stices of the Peace, and the Shirife of the Shire, where such Riot is supposed, ought to witnesse, that the common voice and fame runneth in the said Countie, of the same Riots. 8. H. 6. ca. 14.

The Letter (or Text) of these Lawes, béeing thus laide downe, lette vs also sée what exposition and helpe M. Marrow and others doe bring to some partes there­of, namely, to that of king Henry the fourth.

Vnder the wordes, Power of the Coun­tie, the Iustices, Shirife, or Vndershirife, oughte to haue the aide and attendaunce of knightes, and of all maner of Gentlement, yeomen, Labourers, Seruauntes, Appren­tises, and Willaines. And so likewise of In­fants, that bée aboue fiftéene yeares of age. For all of that age were boude to haue har­nesse by the Statute of Winchester. But wo­men, men entred into the ministerie, and such as bée decrepite, or doe labour of anye continuall infirmitie, shall not bée compel­led to affende. And it resteth in the discreat­tion of the Iustices and Shirife or Vndershi­rife. Now many, or how fewe, they wil haue to assist them, in making the arrest. But yet after such arrest made, the Power of y ^t coun­tie, is bounde to goe with the Shirife to the Gaole to aide him thither also: whiche is o­therwise in the case of a Felon taken by Hue and Cry, for there when the Countrie hath deliuered him y ^t Shirife, they are dischar­ged, Mar.

This auctoritie of assembling the power of the countie, and of arresting & impriso­ning Riotters til due execution of law were done vpon them, was once before this time (namely 2. R. 2. 6.) committed to some, & was by & by after resumed in the same yeare of [Page 234] the same kings raigne, as a thing too gré­uous to be suffered, that any man should be imprisoned without an Inditement (or Sine leg ali indicio parium suoruns as magna Carta speaketh) first had against him.

But nowe, if information bée made to two Iustices of the Peace, that certain per­sons bée riotously assemb;ed at Dale, and they (assisted wyth the Shirife or Vndershi­rife) doe gather people to suppresse it, and when they come to the place, they finde no Riote there, yet are they excusable for the assemblie of Power made by them, because they did it vpon information. And if they do it without information, and find a Riot indéede when they come, then shall they not onelie bée ercused for making suche assem­blie of their owne heads, but may also law­fully procéed to punish the offēdors. Fitz 17.

And that punishment muste be grounded either vpon their Recorde of the thing done in their owne presence, or else by enquirie vpon the oath of other men. And therefore if two Iustices of the Peace (assisted with the Shirife or Vndershirife do sée a Riotte, they may command the Riottors to be arrested, & and the parties shall bée so concluded there­by y ^e they shal neuer be receiued to Trauerse [Page 235] (or deny) it: But otherwise it is, if they do not sée it themselues 14. H. 7. (as M. Fitz. Tit. Iustice del peace 9. reporteth) who saith moreouer (in his booke of Iustices of y ^e peace, Fo. 18.) that if they doe so recorde a Riote, as though they had séene it, the parties shall bée stopped thereby, although there were neuer any such Riot by them committed: for (saith he) the view of a Riot, is neuer to be trauer­sed. Likewise, if the Iustices of Peace bée di­sturbed by Riotors in cōming to their Sessi­ons, they may (without any Inquirie) make their record of it Fitz. 17: & 7. E. 4. 18. Recording of the Riot

The Record which these Iustices ought to make, must bée by writting, and muste re­maine with the one of them: and the [...] and none other Iustices) ought to impri [...]n the Riotors, and to assesse their fine, & cause y ^e same to be estreated into the Escheaquer. If they sée the Riot, & the Riotors escape, yet they ought to Record it: but then they can­not arrest the Riotors at another time, nei­ther can they make any Processe upon that Record, neither ought it to be kept amongst the Records of the Peace but it must be sent into the Kings Bench, that processe may be there made vpon it. And in y ^e case y ^e parties are not to be admitted to their Trauerse there, but must of necessity make fine for it. [Page 236] If these Iustices come to sée one Riotte, and another Riotte is made in their presere, they may Recorde that. So if the Iustices & the Shirife, or Vndershirife be assembled at a place for an Arbitrement, or such other pris uate cause, and a Riotte appeareth to bée co­mitted in their presenc, they may Recorde it also. But if the Riottours (séeing them cō ­ming) do flie into another Countie, and doe committe a Riotte there, these Iustices can not Recorde that Riotte. If the Riottours make a Riotte vpon the Iustices and Shirife that do come of putpose to arrest them, they may Recorde that. And it séemth that they may like wife do so (though M Marrow de­nyedit) if they come for an other cause and such a Riotte bée done vpon them. If a mā be slain in the Riot, or Maymed, or if Rescous bée done to an officer, the Re­cord must be, Riotosè occidit, or Riatosè May­bemauit, or Riotosè rescussit, & not Felonicé nor simply Rescussit: for their polver in this case is restrayned to the Riot only, & therfore the parties may (not withstādoing their Recorde) plcade not guilty, to the Felonie, or Refcous, though not to the Riot it self.

If they make a Recorde of a Riotte, & doe imprison the partie till he haue made Fine, and it do after ward appeare by the Recorde [Page 237] it selfe, that the Acte which they recorded is no Riot, yet be the parties without remedy. and if a man bée bound to the Peace, & such a Recorde of a Riotte is after wardes made a­gainst him, and others, hée shall not iusti­fie, nor pleade, not guiltie, in a Scire facias, vpon his Recognusance. Mar.

But althoughe these Iustices, Shirife or Vndershirife, doe not goe to sée the Riotte, yet maye the the Iustices enquire of it within the moneth after it:and they all are allo to make Certificat within a moneth af­ter that, arcording to the forme of thc Sta­tute. And although this Statute saye, that the same Iustices shall doe it, yet if other: Iustices of the peace there doe it, that is suf­ficient. Mar. Enquirie of the Riottes, and certify. So that if two Iustices and the shirife goe to sée a, Riotte, and other two Iu­stices make the Enquirie, now the one sorte or the other of them, with the shirife or Vn­dershirife may Certifie it.

If this enquirie bée not made within the moneth, yet it is good, but then no good Certificat can bée made thereof: So if the Enquirie bée within the moneth, and the Certificat not made Within a moneth after, that is not good Mar.

But if the Iustices doe enquire within the moneth, and doe giue daye to the lurie [Page 238] to yéeld their Verdite after the moneth, that is good ynough. If the Enquest find, that the Riot was made by ry. persons, wher in déed it was made by Cpersons, it may be creati­fied so, and then the Cretificat (& not the In­ditement) shalbe take: but if they barie only in the day, then the Inditement shall be pre­fered to, if the Certificat. And if the Inditement be of ry. persons, & the Certificat of ry. per­sons in harnesse, the Certificat shal be pre­ferred. So, if the Inditement speake only of a Riotous assault, batterie, and mayheming.

If foure Iustices, the shirife and Vnder­shirife, goe to fée a Riote, and two of those Iustices and the Shifife joyne in one Certi­ficat, and the other two joyne with the vn­dershirif in an other Certificat, that Cer­tificat (wherevnto the Shirife is partie) shall bée preferred: for in hys presence the Vndershirife hathe non autoritie. But yet if the Certificat bée otherwile equall, then the best shall be taken for the Queene. If (after the Riote séene, and the Enquirie made) one of the Iustices be putte out of the Commission, then cannot be Cretifi. But If he Recorded the Riot vpon the view thereof, and the Rioters had escaped, yet the might he Certifi Mar.

The force of this Certificat is, but only to put the parties to answere: and forasmuch as it is of the nature of a declaration agaist them, it ought to comprehende the certaine yeare and day, thought peraduenture (as M. Mar. holdeth) it néedeth not to erpresse the Additions of the parties, being not within the words of the Statute, 1. H. 5. Ca. 5.

Furthermore, wheras this Statute spea­keth of the paine of C. lb to be layed vppon the next Iustices: Yet if other then the next Iustices doe perfourme the office, that shall ercuse them that be the nexte justices to the place. And that in y ^e cause why I have taken leaue to place there things before, under the audoritie of any two justices generally. Next Iusti­ces. Yea, all the justices of Peace within the commission, how far off soellre they dwel, dught (if they have notice of suche a Riotte, Rout, 02 Assembly,) to supply y ^e defaulte of the next Iustices. For so it was now lately adiudged in the starre Chamber. Howbite that paine of an hundred pound was layds vpon the next Iustices onlie, and theresidue were fined by discertiō of that Court. Last­ly, euery of these Iusticcs shal be ercosed of this penaltie, by the not cōming of the shi­rief: But yet they ought (in this seruice) to sende for the shirife, and not he for the, Mar.

Thus muche of the Riottes after this cō ­sideration: now a little for the furtherance of the Iustices in their execution, and then then other matters.

The Certificat to the Queene & hir Coū sell ought to be made by the two Iustices the Shirife or Vndershirife, Whiche may be done in English, after the order of a Letter, and as the case shall require.

But the Record of the Iustices, and the Shirife or Vndershirise (if they will procée & that may) may be in this manner.

MEmorandum quod 20. die Septem. anneregni Dominea nostra Elizabe. der gratia &c. 23. Questiled;tus est nobis Georgio Multō & Wilhel­mo Lambard, duobus Iuiticiariorum &c. essig­matorū, & Thomae C.sub vicecomiti comitatus ciusdem, quidam G. H. de Ightham in dist. comi­tatu Yeoman, Quod A. B. C. D. E. F. &c.& alij malefastorcs & pacis dicte Domina Reginae per­inrbatores ignoti domurn eiusdem G. H. apud Ig, pradicu. riotosé fregerht, et ibidem in ipsum G. H. insultum fecerunt, ac ipsum vulneraucrunt cōtra pacem dicta Domina Reginae ac proinde pctyt 4 nobis sibi in hac parte remedinm apponi: Quthus guidem quarimonia & petitione anditis, nos dict. G. M. W. L. & T. C. ipso codem dicto die ad do­muns pradictans accessimus in propriss persouis noctris, ac tunc & ibidem inuenimus prafatos A. B. C. D. &c. ad numerum septem per sonarum mo­do gucrrino arraiatos, vz. gladijs pugionibus, lori­sis [Page 243] galeis, arcubus & sagittis, riotose in simul ag­gregatos domum proefatam fregisse. multa mala in ipsum G. H. ibidem comminantes in magnam pa­eis dictoe Dominoe Reginoe perturbationem ac po­pali sui terrorem, necnon in contemptum Statute de Riotis, Routis, & congregationibus populorum Anno 13. H. 4. olim regis Anglioe, progenitoris dictoe Dominoe Reginoe, & diti ac prossist. Ac propte­reanos proefati G. M. W. L. & T. C. corpora dict [...] rum A. B. C. D. &c. arrestari, Ac proximoe Gaols dictoe Dominoe Reginoe in comitatu praedicto duci ficimus, per Recordum hoc nostrum connict. in praesentia nostra. In cuius reitestimontnssnos Praefati G. M. W. L & T. C. huic dicto records nostro, sigillae nostra apposuimus, Datum apud I. praedict. die & anno supradictis.

And nowe wishing the two Iustices of Peace in this matter to looke backe into y ^e which hath bene satd before of forcible en­tries and Kiots in the person of one Iustice, let vs make spéede to other statutes.

Any two Iushces of the Peace, may im­prison forx. dayes, the Naister that giueth: & for x. daies, the seruant that taketh more wages than after the rates thereof made: & may imprison for a whole yeare, suche seruaunt, as shall bée Conuicted before them by his owne confession, or by the Dathes of two honest men, to haue made [Page 244] any assault vpon his maister, maisiresse, or other person hauing the charge of him, or of the worke: and they maye appoint any wo­man (being vnmarried, of the age of twelue yeares, and vnder fortie) that is out of ser­uice, and that they shal thinke méete to serue to bée retained by their disrreatiō, and may vpon hir refusall commit hir to Warde, till she wil be so bound to serue 5. Eh. ca. 4. Seruanes & Labourers.

Any two Iustrces of Peace, may licence such as be deliuered out of Gaoles, to begge for their fées, or to trauel to their Countrie, or friendes: and may giue licence for fortie days to a Roge that is marked: & may make testimoniall to a Seruingman, that is tur­ned away from his matster, or whose mai­ster is deade: 14 Eliz. ca. 5: & 18. Eliz. ca. 3. Begge for sees. Roag. Seruingme.

Such two Iustices may certifie at y ^e quar­ter Setsions that a Citie, or Towne Corpo­rate, of the Shire (being no countie of it self) is surcharged with poore, togither with the names and number of them, that order may bée taken there for their reliefe: they maye Licence diseased persōs (liuing of almes) to trauell to Bathe, or to Bucstone, for ease of their griefe. 14. Eliz. ca. 5. Surcharged with poore. Licence to go to Bach or Bucstone.

By the ouersight of two such Iustices, and twelue discréete men of the Hundred, and Hundreds adioyning, any persō (within the [Page 245] Wealde of Kent) may make in his own lād a new highway, more commodious thā the olde, 14. H. 8. ca. 6. Chiungea high way.

Two such Iustices may once euery yeare appoint Ouerseers for that whole yeare fol­lowing of cloath to bée made or solde, in a­ny towne (not being Corporate) and maye charge them vpon their oathes, to sée execu­tion of some partes of the Statute. 3. E. 6. ca. 2. yet in force. Appoint Ouerseers of Cloth.

Within sire dayes after accusation had, that any person hath disturbed a Prea­cher, and after his committing to safe custo­die by one Iustice of the Peace, one other Iustice of that shire muste ioine with him in the eramination of the Offender, & maye procéede to finde him guiltie by his owne confession, or two witnesses, and therevpon commit him to the next Gaole, for thrée mo­nethes. 1. Mar. Parl. 1. ca. 3. quoere of the cotntinu­ance of this Statute, as before. Disturbe & Preacher.

Any two Iustices of the Peace of the Countie, where any Logwood (alias Biock­wood) shal be founde (in whose handes soe­uer it bée) maye openly burne the same, as forfeited. 23. El. ca. 9. Logwood.

VVhat things, some twoo Iustices of the Peace may doe out of the Sessions.
CAP. XXIII.

IT falleth out many times that the Sta­tute lawes regarding some Iustices aboue others, either for the opiniō of the abilitis or learning that they should haue (being of the Quorum) or for the aduantage and faci­litie that they haue to dispatch the affaire by meanes of their nearenesse and dwelling, or for the indifferencis that they are likely to vse in the handling of the cause (as being neyther of kindred nor alliance to any of the parties) doe many times make choise of two Iustices, and doe either altogither close the hands of the rest, or else do chiefly reposs the trust in these that bée so chosen & elected.

Among those of this kind, the Bailement of prisoners worthily craueth the first place, whether you respect the weight of the mat­ter that it concerneth, or the length of the discourse that it requireth, the one tending to desired libertie, and the other compre­hending [Page 247] great varietie.

This sauing then, or deliuerie of a per­son out of prison, before he hath satisfied the Law, is vttered by thrée termes in our Sta­tute lawes, that is to saie, Bailement, Main­prise (or manucaption) and Repleuine. Difference betweene Bailement, Mainprise & Repleuine. And they bée indifferently vsed to erpresse that suertie whiche the prysoner is to finde in such a case: For that which Bracton and the statute of W. 1. cap. 15. made 3. E. 1. doe speake of setting at libertie of accessaries by the woordes Replegiari, and of letting out by sufficient Pleuin: Britton and the Re­gister doe erpresse by finding of Mainprise: the Statute 5. E. 3. cap. 8. by letting to Baile: that of Marlebrige cap. 27: made 52. H. 3. by tradi in ballium vel Replegtari. And the Sta­tute of 1. E. 3. ca. 9. making mention of y ^e writ De Homine Replegiando to bée directed to the garden of a Forest, declareth the effect ther­of to bée, that hée should Repleuy the pryso­ner by good Mainprise. The Statute 23. H. 6. ca. 10. that cōmaundeth the Shirife to let out of prison (such as he hath arrested vpon En­ditements of trespasse) vpō reasonable suer­tie of sufficient persons, calleth the same a letting to Baile or Mainprise. And lastly 1. 8 c 2. Ph. & Mar. &c. 13. séemeth to make al the thrée wordes [...] and of the same significatiō.

Yet it séemeth that Replevine had his or­ginall of the word Pledges which denoteth them that vndertake for the partie, that hée shall abide to bée iustifyed by Lawe. And is vsed in diuerse other cases, as in Reple­vine of Cattell vpon a distresse. Replevine of Franchises in a quo Warranto, Replevine of Lande vppon a Grande Cape, in olde time, and Replevijng of the person of a man in case of Villenage and this our case.

Bailement is deriued from the French tearme Bailler. And that also commeth of y ^e Gréek ( [...]) they both signifiyng to De­haer into hand: For he that is Bailed is ta­ken (or kepte) out of prison and deliuered (as it were) into the handes of his friendes as Suerties for him, whereof also the worde Manucaptio (or Maineprise which is all one) giueth good euidence, the one mentioning the deliuery, the other the receiuing. And in this respecte, the Booke of the Norman Cu­stomes calleth Bailement a liue prison, for that the partie is therby become prisoner to his friends that do vndertake for him. But Bailmet & Mainprise haue bin take to differ in y ^e practse of our common law, for he which is properly Bailed by y ^e Iustices of any court hath bene neuerthelesse reputed to be a pri­souer ther fril, & his suerties to be (as it wer) [Page 249] his speciall gardeins, other wise it hath bin thought of him that is let to Mainprise, as may be séene by the Booke cases 33. E. 3: & 36. E. 3. Coron. Fitzh. 12.& 13: 7. H. 6. 42: 31. H. 6. 10: 38. H. 6. 23: 9. E. 4. 2: & 21. H. 7. 33. But at this day how long he shall he adiudged to be aprisoner, Erin Custodia Mariscalli Ma­riscalcioe, & c. that is Bailed in the Kings Bench, the custome of the Courte it selse must rule the matter: for it differeth some­what (if I be not deceiued) from those opi­nons. Howbeit, forasmuch as in our course (concerning Iustices of the Peace) it is not so néedefull to siay vppon the difference be­twéene them, as to procéede to disrlose the vse and maner of them: Let vs therefore ex­amine the power of the Iustices of Peace in this behalfe.

It séemety, that Iustices of the Peace might (after the statute of 34. Ed. 3. cap. 1. (that made them complete Iudges) haue letten to baile such persons as were indited of Felonie before them in their Sessions, as the Iustices of the Kings Bench vse to doe, but not such as were arrested for suspition of Felonie, and not endited thereof before them, because before the enditement they were no Iudges ouer them: And for helpe herein, it was ordayned (1. R. cap. 3.) that [Page 250] euery Iustice of Peace might lette to Baile any suspectes of Felonie. But that Law be­gatte some inconueniences, and therefors it was soone after repealed (by 3. H. 7. cap. 3.) whiche lefte power to twoo Iusti­ces of the Peace (the one beeing of the Qorum) to lette anye prisoners (main­pernable by the Lawe) to baile to the nexte generall Sessions, or the nexte Gaole deliuerie, and willeth, that they shall then certifie suche baile taken, vp­on paine to forféite for euerye defaulte (therevppon recorded) tenne poundes, to the Kyng 3. H. 7. cap. 3. And here againe there sprang vppe an other inconnenience: for then Iustices of Peace woulde not sticke to borrowe one an others name, (as manye yet still doe) and by that meanes defraude the good meanyng of the Statute: Wherevppon it was last­ly further prouided (by 1.& 2. Phil. & Mar) as followeth:

That no Iustice nor Iustices of Peace, Bailement of prisoners, and exami­nation be­fore they bee bailed. shoulde lette to baile anye person con­trarie to the sayde Statute of West. 1. cap. 15. And that no person, beeing arrested for Manslaughter, or Felonie, or for suspiti­on of eyther of them, (beeing baileable [Page 251] by the Lawe) shoulde bee bailed, by a­nye Iustice of Peace, if it bee not in open Sessions, or by twoo Iustices of the Peace at the leaste (the one of them bee­ing of the Quorum,) and the same Iusti­ces to bee present togither at the tyme of the saide Bailement: and that they shall certifie (in writing, subscribed, or signed, wyth their owne handes) the sayde baile­ment or Mainprise, at the nexte generall Gaole deliuerie, to bee holden wythin that Shire, where that person shall be ar­rested, or suspected: And that the saide Iu­stices, or one of them, (beeing of the Quorum,) when suche prisoner is brought bcefore them for Manslaughter or Felo­nie, shall bcefore anye bailement) take the examination of that prisoner, and the information of them that bring hym, of the facte and circumstaunces thereof, and the same, or so muche thereof, as shall bee materiall to prooue the Felonie, shall putte in writing beefore they make that Bailement: whiche examination and bailement, the saide Iustices shall certifie at the nexte Gaole deliuerie with­in the limittes of their Commission: And the saide Iustices shall haue auctoritie [Page 252] by this Acte, to binde all such by Recognu­saunce (or Obligation) as doe declare any thing materiall to proue the saide Murder, or Manslaughter, offences, or Felonies, or to be Accessorie or Accessories to the same, as is aforesaide, to appeare at the saide nexte Gaole deliuerie, where the triall thereof shall bee, then and there to giue euidence against the partie, at the time of his triall, and shall certifie all and euerie suche bond, in like maner, as is aboucsaide of the Baile­ment and examination 1. & 2. Phil. & Mar. cap. 13.

This Statute of Bailement I haue reci­ted the moze at large, because it both com­prehendeth some such other things as must concurre with the Bailement of the priso­ner, and giueth me occasion to sette downe the Statute of W. 1. and to shewe what per­sons be baileable by the Law: for, to either of these it referreth it selfe (as you haue seeacutene) and is also restrained by them.

Nowe by the Statute of W. 1. cap. 15. Prisoners that bee before outlawed or haue abiured prouours: felons taken wyth the maner: those that haue broken the Kings prison: notorious and proclaymed theeues: those that are appealed of prouours, so long as the prouours bee liuing (if they be not of [Page 253] good same:) those which are taken for felo­nious burnings, or for falsifying the Kings mony or his Seale: or which are taken vp­on excommunication, or for open euill or for treason touching the King himselfe, or for the death of a man, or by the comman­dement of the King himselfe, or of hys pri­uie Counsell, or by the (absolute, and not ordinarie) commaundement of the Kings Iustices, or for the Forest: be not repleui­sable by the common Writ nor without Writ by Shirifes, nor other gardines of pri­sons. But hee that is taken for light suspiti­on: or is indited of petite Larcinie, (not be­ing giltie before of other Larcinie:) those that be charged with the receit of theeues, or felons, or of commaunding, or force, or aide: or charged wyth Trespasse, that tou­cheth not losse of life, nor member: and he that is appealed by a Prouour (beeing no common theefe nor defamed) after the death of the prouour, is baileable by that Statute.

Againe, the Statute 23. H. 6. cap. 10. pro­hibiteth those that bee in prison by condē ­nation, execution, Capias vtlagatum, excom­munication: for Suertie of the Peace: or by speciall commaundement of any Iustice, to be bailed, by Shirife, keeper of prison, or o­ther [Page 254] ther Officer or Minister, But willeth and cō ­maundeth that all those that be Arrested by force of any Writ, Bill or Warrant, in any action Personall, or because of any endite­ment of Trespasse, to be let out of prison vp­on reasonable suerties of sufficient persons hauing sufficiēt within the Counties where they bee to bee lette to Baile or Mainprise, to keepe their dayes in suche places as the saide Writtes, Billes or Warrantes shall re­quire.

Both these last Statutes (as appeareth) were at the firste ment to giue a rule vnto Shirifes and other meaner Officers, in what cases to let their prysoners to Baile, and in what not, But as the Statute of W. 1. is by the expresse letter of 1. & 2. of ph. & Mar. sette foorth as a line whereby the Iustices of Peace are to guide themselues: so it séemeth to mée that they ought to haue an eie vnto the other Statute also, for asmuch as, cer­taine other persons bée therein also men­eioned not to bée Baileable by lame, and so within the reach of these berie wordes that lir in the Statute 1. & 2. Phil. & Mar. cap. 13.

This Statute of 1. & 2. Ph. & Mar. sée­meth (as hath bene faide befoze this) to di­stinguish betwéene Murder, & Manslaugh­ter [Page 255] making this offence Baileable, but not the other: So as it shoulde restraine (as it were) the generall woordes (death of a man) in the Statute of W. 1. to cause them to bée vnderstood of Murder onely. Manslaugh­ter baileable, and not Murder. And be­sides it maketh mencion of the Bailement of Acceslones whereof the Statute 2 & 3. Ph. & Mar. cap. 18. hath neuer a woorde. I will be therefore a little bolde to remem­ber here some fewe cases of these matters, to giue (as my manner hath bene) some glimmering of lighte to the vnacquain­ted Iustices of Peace with the groundes of our Lawe, how to difcerne and know them asunber, the better thereby to graunt or denie the sute for Baile that shall bée made vnto them.

The sundríe construction of the woordes Murder and Manslaughter, and how they be commonly vnderstoode at this daie, hath appeared alredie.

Nowe if one doe suddenly (without a­nye occasion of present quarrell offered) [...]rawe his swoorde, and therewithall kil­leth an other, that standeth by him, this cannot bée thought but to haue bene done of a pretensed purpose, and therefore hath bene taken to bée Murder. Dalison in his Keportes.

So is it taken if two fall out, and doe ap­point a place to fight togither, and there the one of them killeth fhe other, ibid.

If a man assaulteth the Maister vppon malice prepensed to kil him, and he killeth the sruant, against whome he had no ma­lice at all, yet is this Murder, Plowd. Com. Fol. 101.

But if y ^e Maister assaulteth one vpō such malice, and the servant (not foreknowing this matter) taketh then his Maisters part, and Killeth the partie, it is but Man slaugh­ter in him, though Murder in the Mailter, ibid. Fol. 100.

If one lieth in awayte to kill one, and an other cōmeth there by, and so by mistaking hym for the partie, whole bloude was thir­sted for, he is slaine, this is Murder: for it was grounded vpon malice prepensed, as in the case that hath béene remembred here­tofore of the intent in the husband to poyso his wife, whereby in a maner againste hys will, his childe was poysoned, ibid. Fol. 474.

Brooke Chiefe Iustice was of opinion, 4. & 5. Phil.& mar. That in all cases, where a man alone, or wyth other, commeth to doe an unlawfull acte to an other, as to beate him or diseise him of his lande, &c. and kil­leth hym in that doing, it is Murder: But [Page 257] if a sfranger be killed there, that then that is but Māslaughter. And Dallison agréeth with the first part of this opinon.

And he further reporteth, that if a maiden seruant conspire with a man to robbe his maistresse & so they kill hir, this is but Mur­der in the man, though petit Treason in the maiden.

Accessories to all maner of Felonies be baylable by the statute W. 1. in these words, (Those that be charged with the receit of Theeues or Felones, or of commaūdement, or offorce or aide thereunto.) Accessories. And M. Stam­forde. F. 71. affirmeth that those also which be charged with abbetment, consent or pro­curement, be within the equitie of the same wordes.

This statute therefore séemeth to make thré sortes of acccessories, some to be before the offence committed, as Commaunders, abbetters, consenters, and procurers: some at the déede doing, as those that then giue force or aide thereunto: and a thirde sorte of those that receiue the Felones, and comfort them after the fact done.

But for as much as the second sort of these men be at this day accompted as déepe offen dors as the very doer him selfe is, there fore (in myne opinion) in all such cass where he [Page 258] is not to be bailed by lawe, these men also ought to remaine in prison still, not withstan­ding the words of this statute.

Now to know sucb an Accessorie (as the law is taken at this day) and him also from a principall, let these cases folowing suffise.

If one procure or commaunde an other to kill a man, but is not present when the other killeth him, he is taken to be bat an Access [...] ­rie. But if he be present at the very time, he then is taken to be a principall murderer. 7. H. 4. 27. & 4. H. 7. 18.

And if hunters that haue agréed to kill such as shall resist them, do come into a parke, & one of them runneth vpon a man that rebu­keth them, and killeth him, it is Murder in all the hunters that be in the parke, although some of them doe not sée, & all be principals, as Dalison reporteth.

So if diuers come to doe a Murder, & one of them onely striketh and killeth the man, & the other be but present abbetting him and ready to ayde him if néede were, they be all taken to be principall Murderers at this day. For their presence is a terrour vnto the partie slaine, and the greater occasion of his present death Plowd. Com. Fo. 98.

If a man commaund one to poyson an o­ther, and he killeth him with a sword, yet the [Page 259] Cōmaūder is Accessorie to this Murder. Da.

So if B procureth one to kil A in the field, and he killeth him in a Church, or to kil him such a day, and he killeth him an other day, B. is Accessorie to the killing: but if after such procurement, and before the execution there of, B. groweth penitent, & chargeth him not to commit the fact, and he notwithstanding performeth it, now B is not Accessorie at al Plow. Com. 475.

And if B commaund one to beate an other, and he vpon that beateth him so as he dieth of it, B is Accessorie to this Murder. 3. E. 3 Coro. Fitz. 314.

If B commaundeth A. to robbe a Golde­smith of his plate as he rideth to Sturbridge faire, and he breaketh his house by night in Cheapefide, and robbeth him of his plate, B. is no Accessrie to this Burglarie. ibidem.

So is it if B cōmaund A. to burn y ^e house of C & he burneth the house of D then B is no Accessorie to y ^e burning. But if he had bur­ned the house of C. & by that fire the house of D had bene burned also, then were B. Acces­sorie to that burning of the house of B. because that burning followed of the fire which was kindled by his commaundement. ibidm.

To make receeiuers cōorters & aiders of Fe lonies, after the fact cōmtted to be offenders [Page 260] and Accessories: It is requsite (sayth M. Stamf F. 41.) that they haue knowledge of the felonie done, and it must be with an euill en­tent, for if he aide him by his good word and suit for his de liuerauce, or writeth in his be­halfe for that purpos, he shall not be accom­pted an Accessorie, 26 AiT. pl. 47.

If a man doe giue a morfall wound to an other vpon the first day of Augusft, and a third person (knowing of the wounde) receiueth him two dayes together, and then he depar­teth, and after he that was hurt, dyeth vpon the tenth day of August, this Keceipt maketh him no Accessorie, for all the time of the Re­ceipt it was no slonie: But other wise it is, if he had receiud him continually, till the death and after Dalison.

If a man pursue and take a Felon which hath stlen his goods, and he taketh his goods from him, and then suffereth him to goe at large this maketh him no Acccssorie. But if he agrée with bim, and take money of him, to the end that he shall not gine euidence a­gaintnst him, then is he an Accessorie to that Felonie, by the opinion of Iustice Hales (M, 6. E. 6.) because it is a comforting of him.

A wife may be Accessrie to a felonie with out hir hus band, by recciuing Felons into y ^e house the husbande not knowing of it, or [Page 261] wayuing the house to soone as he knoweth of it. 15. E. 2. Coron. Fitzh. 383. But the wife shal not be accompted Accessorie to the felonie of hir hus band, by comforting him, &c. neither is she bounde to discouer him, Britton. F. 47.

But now to reture to Baylement. He which (within the yeare) is acquited of mur­der or manslaughter at the Queenes sute, must be remitted to prison or let to Main­prise, vntill the ende of the yeare, and the partie grieued may in that meane time com­mence the Appeale. 3. H. 7-ca. I.

Further, mée thinketh that I may set downe this as a rule (euen at the common law) conerning Bailements. That Iustices of the peace can not meddle with Baile­ment of any prisoner, except he be prisoner for such cause, as whereof the Iustices of the peace be competent Iudges, Which al­so was the cause that one Iustice of y ^e Peace by force of the Commission onely could not that haue bailed suspectes of Felonie, before that they were indited thereof (as I folde you,) For out of their Sessions, and till in­ditement, they toere no Iudges of the mas­ter.

And on the other side, it sémeth that two Iustices of the peace (the one of them being [Page 262] of the Quorum) may (out of the Sessions) baile such as come into prison by the processe of the Sessions made vpon penall lawes, not forbidding baile, because they be competent Iudges of al those matters, insomuch as two such Iustices may heare & determine them.

Sundrie doubts (I confesse) may be made concerning the busiesse of Baile, which I am not able to dissolue, & therefore am not much willing to moue. Dnely this J will say for all, that it becommeth Iustices of the Pear to be bery circumspect in graunting Baile, both for feare of wrong by denying it to him that is rcple uisable, and for feare of daunger to the seruice it selfe by giuing it where it is not grantable. And therfore I adnise them, to consider strst, whether y ^e power of Baile (whe it is required) be not take from them by some of these former satutes: & then, whether that particular statute it selfe against which y ^e pri­soner is charged to offend) Doe not spesally prohibite the same: fbr you sall mé méete with many statutes, which doe not only take baile frō the offenders against them, wpon their so­lemne conuiction after Iudgemcnt, but also vpon the Record of some one or Iustices of the Peace, by exammaion, proofe by wit­nesles, or such other triall had before them.

for exāple, take a fewe of each kind, seeing [Page 263] it would proue froublesom to rehearse the all.

• 1. He that is conutcttctc before the Iusti­ces of the Peace, vpon the sfatut of Liuerices, thall be committied to prison for one whole yeare without Baile or Mainprise. 8. H. 6. C. 4.
  Liuerics.
• 2. He that is cōuicted before them, for abu­sing a licence of transporting bictuall, shall like wife be committcd by them, and shal re­maine there a whole yeare without Baile, or Mainpnse. 1. & 2. Phil. Mar. ca. 5.
  Licence te transporte.
• 3. He y ^e is conuicted before them for offci­ding the sfatute made against forstalling, &c shall be committed to the gaole for two mo­neths without Baile or Mainprise. 5. E. 5. c. 14.
  Forstalling
• 4. And be that is cōuicted before them for offence against the statute of Mustcrs shal be awarded to eu romaine in p [...]ison without Baile or Mainprise, till he haue paited the forfai­ture, 4. &. 5 phil & Mar. ca. 3.
  Mustens [...]

• 1. Againe if any one Iustice of the Peace shal find or know any to baue exercised any bnlawful games, he may cōmit him without Baile or Mainprise, till he will become bound no more to vse vnlalniful games. 33- H. 8. ca. 9.
  Gamer [...]
• 2. [...]o, he that is conuicted before two Iu­stices of y ^e peace to haue refused to srue for such wages as is by order appointed, shal re­maine in prison wout Baile or Mainprise, till he wil be boūd to serue accor dingly. 5. El. ca. 4.
  Seruaune.
• [Page 264]3. He that is committed by two Iusti­ces of the Peace for kéeping a common Ale­house, of his owne audoritie, shal remaine in prison thrée daies, & without baile or main­prise. 6. E. 6. ca. 25.
  Alehouse
• 4. And the reputed father or mother of a Bastard childe, that will not perfourme the order set downe by two Iustices of y ^e peace thereto auctorised, shall be committed, and shal remaine in prison without baile or main prise, till he or she will be bound, &. c. 18. El. c. 3.
  Bastarde

Nów (for an ende of Bailement) I will shewe you one hiforme of a Baile, and an other of a Liberate.

Memor andum, qùod decimo die mensis Octo­bris, Annoregni &c. coram nobis G. M. & W. L. duobus Iusticiariorum &c. assignatorum, venerunt A. B. & C. D. de E. in dicte comitatu Yeomen, & ceperunt in balliù F. G. &c. Labo­rer, (captum, & detentù in prisona. pro suspicione Cuiusdam felonia, éTC) vs (que) ad proximam gene­ralem Gaolae deliberationem in comittatu praedi­cto tenendam: Et assump serunt super super se, scilicet quilibet corum sub poena, 20. lib. de bonis et catal­lis, terries et tenementis corū et curuslibet corums ad opus dictae D. Reginae Leuandarums, si pradi­ctus F. G. ad candem proximam Gaols delibera­tionem [Page 265] personaliter non comparebit coram Iusti­ciarijs dicta Dominae Reginae ad dictam Gaolam deliberandam assignatis, adrespondendum dict [...] Domimae Reginae tunc & ibidem de et super om­nibus quaeilli obijcientur. Datum sub sigillis no­stris, die et anno supradictis. The Baile

GEORGE M. and W. L. two of the Iu­stices of &c. The Liberate. To the keeper of her Maiesties prison in in Maydstone, &c. greeting. Foras­much as F. G. &c Labourer, hath before vs found sufficient mainerprise to appeare be­fore the Iustices of Gaole deliverie at the next generall Gaole deliverie to be holden in the said Countie, there to aunswere to such things as shal be then on the behalfe of our said Soueraigne Ladie obiected against him, and namely to the felonious talking of to sheepe (for the suspition whereof he was taken & cōmitted; to your said Gaole) we commaunde you on the behalfe of our said Soueraigne Ladie, that (if the said F. G doe remaine in your said Gaole for the said cause, & for none other) then you forbeare to grieue or detaine him any longer, but that you deliver him thence and suffer him to go at large, and that vpon the paine that will fall thereon. Yeouen at Ightham afore­said, vnder our Seales, this tenth day of O­ctober, &c.

The authoritie of some two Iustices of the Peace goeth yet further: for the common manner is, that two Iustices of the Peace (the one of them being of the Quorum) doe ioyne in graunting suerite for the good a bearing: but thereof I have already spoken my minde. The good Abearing

Two Iustices of the Peace (the one be­ing of the Quorum) may prohibite & remove common Aleselling, & may also allow the same, taking bonde with suretie by Reco­ngnusance for good rule to be kept in such Ale. house &c, by their discretion. Alchouses And they may also commit & imprison for three days those that kéepe common Ale seling of their own heads, against prohibition, or without al­lowance thereof, and after take recognu­sance of them with two suerties that they shall kéepe none. 5. E. 6. ca. 25.

And heare, séeíing that the order of the Conditions of these bondes is partely refer red to discretion, I will (for the better brideling) of thes nurseries of naughtinesse) leave with you that forme of the firste of them, which I have knowen practised by that Honourable Iusticer, the lorde Will­liam Cobham, nowe Lorde. Warden of the Fiue Portes.

The Condicion of this Recognusance is [Page 267] suche, That whereas the withinbounden A. B. is admitted and allowed by the with­innamed Lorde cobbam, and William Lam­bard (two of the Queenes Maiesties Iusti­ces of the Peace within the Countie of Kent within written) to keepe a common Ale­house or Tippling house, and to vse com­mon felling of Ale or Beere, onely within the nowe house of him the said A. B. (and notelsewhere) scituate in the High streate of the Towne of M. within written, and called the signe of the Hart: If therefore, he the sayde A. B. during suche time as he shall keepe suche common Alchouse there, shall not suffer any vnlawfull play, at the Tables, Dice, Cardes, Tennis, Bowles, Closh, Coytes, Loggets, or other vnlaw­full games to be vsed in his sayde house or in his garden, orcharde, or other his, grounde, or place: Nor dresse, or causc, or suffer, to bee dressed, anye fleshe to bee eaten vpon any daye forbidden by the Lawes or Statutes of this Realme of En­glande: Nor wittingly and willingly ad­mit, orreceiue, into his sayd house or any parte thereof, any person notoriously defa­med of or for theft, incontinencie, or drun­kennesse, or that shall be before hande no­tified to him the said A. B. by the Constable [Page 268] or Borsholder of M. aforesaid, for the time being, or by the Deputie of either of them, to be an vnmeete person to be rcceiued in­to a common Alehouse: Nor keepe or lodge there, any straunge person (aboue the space of one day and one night togeather) without notice thereof first giuen to the Confiable or Borsholder, or the Deputie of the one of them, there: And finally, if he the said A. B. during all the time that he shall keepe common felling of Ale or Beere in the said house, shall and will there vse and maintaine good order and rule. That then this present Recognusance &c. or elfe, &c. For, euerls place is not méete:

Two Iustices of the peace (to that the one Be of the Quorum) map (by examination, or Inquirie) heare and determine the faultes of heade Dissicers in cities, Boroughs, and market lowness, that doe not twice pearely view and examine Weightes, and Measures, and brake and burne the defediue: as also the defaults of Buyers and sellers by other meightes and measures than they ought to doe, and may brake and burne the desectiue weightes and measures, and amerce and fine the offendours by their discretion, and make processe against them, as if they were indisted of Trespasse against the peace. 11. H. 7. ca. 4. & 12. H. 7. ca. 5. Weightes & Measures

Two suche Iustices, may give licence to Fencers, Beareweards, Common players in Enterludes, Minstrels, Iuglers, Pedlers, Tin­kers, and Petiechapmen, to goe abroade so as they shall not be taken as koges. 14. Eli zab. ca. 5. Pedlers, Tin­kers, Fen­cers, Players &c.

Sute may be commenced against a high Constable in the name of two of the next Iu­stifices of the Peace to the place (if it be out of citie, Borough and Lowne corporate,) for not suing a negligent Collector of the money for the poore within the time limitted by the Statute: and they shall euerie halfe years take the account of such Collector, and may take order with the Surplusage of such colle­ction, and may also commit him to prison for refusing to account, or to bring in his sur­plusage contrarie to the Statute 14. Elizab. cap. 5. Poore

Two Iustices of the Peace (the one being of the Quorum) may imprison such as doe ref­use to give towardes the reliefe of the poore, or doe discourage other to give. poore And the Bi­shop, or his Chauncelour, shall call the two Justices of the Peace next inhabiting to any Hospitall, to assist them in taking the account of such as have had the collection of the reue­nues and profites of such Hospitall, and they thrée may charge the accomptant (under pe­naltie [Page 270] to loose such summe of money as they shall thinke méete) to account, & not to delay it, and foorth with to employ the Surplusage to the bse of the Hospital 14. Elizab. cap. 5. Hospitall

Two Iustices of Peace (the one being of the Quorum) in, or next to the limits where the parish church is, in which a Bastard child (left to the charge of the Parsh) shalbe borne, ought to take order by their discretion, as wel for the reliefe of the Parish and the keping of the childe, as also for the punishment of the mother and reputed father therof 18. Eli. ca. 3. Barstard childe

Two Iustices of Peace (the one being of the Quorum) vpon complaint by any compe­tent Iudge of Tithes, for any misdemeanour of y ^e defendant in a sute of Lithes, may cause him to be attached, or committed to warde, till he finde suertie unto them by Kecognu­sance to the Kings use, to obey the Processe and Sentence of that Iudge 27. H. 8. ca. 20. Tithes

And also vpon complaint in writing by an Ecclesiasticall Iudge that hath given defini­tive sentence in case of Lithes (against one which wilfully refuseth to pay the Lithes, or summes of money so adiudged) two such Iustifices may cause the partie to be attached, and committed to the next Gaole, till he finde such suertie as is aforesayd to performe that sentence 32. H. 8. ca. 7.

Two Iustices of Peace, dwelling next a­ny Citie or Towne, where any Ketaylour of wollen cloth shall present unto them any defective cloth against this Statute being cō ­ferred with the Statute 4.&5. Phil. & Mar. ca. 5. shall cause the same to be cut into thrée equall partes, whereof the one to be to the Queene, the other to the Presentours, and the third to the Iustices them selues 5. Ed. 6. cap. 6. Cloth.

No Fisherman shall be taken to serue as a Mariner by the Queenes Commission, but by the choice of two Iustices of the Peace ad­ioyning to the place where he is to be taken 5. Elizab. ca. 5. Fisherman

Two Iustices of the Peace (not being of kinred, alliance, counsell, or sée, to the Lord (or owner of a woode) appointed by the more parte of the Iustices of Peace at their Ses­sions, vpon complaint of the Lorde made unto them, may divide & set out the fourth parte of it, if the Lord and Commoners ther­of (being first called before them) can not a­gree vpon it. 35. H. 8. ca. 17:& 13. Eliz. ca. 25. Divide the fourth parts of a wood.

Two Iustices of the Peace whereof the one to be of the Quorum (appointed by the Custos in the Coū ­Rotulorum or by the Eldest of the Quorum in his absence) are to ouversée & controle the Shi­rifes bookes and amercements, & the estreits [Page 272] of the said amercements, are to be made by Indenture betwene them and the Shirife or undershirife, & to be sealed with their seales; And they may vpon suggestion make proces as in an action of Trespasse against the offen­dors & against the Statute to aunswere before them. 11. H. 7. ca. 15. Amercern [...] in tie coūtie Court.

And here also, is place for those private Actes, wherein any power is gi­ven to two Iustices of the Peace, as,

5. E. 6. ca. 24. For the making of Couerlets & Der­nikes, in Norwich. Norwich.

35. H. 8. ca. II. Forwages of the knights of Parle met.

II. H. 7. ca. 9. For recognusances to be taken of Les­sces in Northumberland. Wales Northumber­land. Vniuersities.

2. 8. c. 3. Phil. & Mar. ca. 15: & 13. Elizab. Cap. 21. For prohibition of purueiances, within fiue miles of either of the vniuersities.

14. H. 8. ca. 6. & 26. H. ca. 7. For laying out new high waies, in Kent and Sussex. Kent, & Sus­sex. Cardiffe

23. Eliz. ca. II. For the repairing of Cardiffe bridge.

VVhat things, three, or moe, Iustices of the Peace may do out of the Sessions.
CAP. XXIIII

THe Auctoritie as well of any two Iustices of the Peace generally, as of some certayne two susfices special­ly, being thus at some length unfolded, it re­maineth that (for an ende) we speake somewhat of thréee, and the greater number.

Thrée Iustices of the Peace (one of them being of the Quorum) may discharge out of prison, any person committed thither for his offence in not declaring to a Iustice (within 24. houres) that he was moved to ioyne in a­ny unlawful Assembly contrary to the sta­tnte. 1. Mar. 1. Parl. ca. 12 &1. Eliz. ca. 17. Vnlawfull Assemblie

It is requisite that the Certisicat (that is to be made to the heade Officer of a Citie or Towne corporate, where a childe is to be put Apprentice to a Marchaunt, Hercer Draper, Botosmith, Ironmonger, Imbrode, [Page 274] derer or Clothier, that the father or mother of such childe may dispende fortie shillings frée­hold by yeare) be bunder the handes and seals of thrée Iustices of the Peace where y ^e lands lye. 5. Eliz. ca. 4. Certifie for an Apretile.

Thrée Iustices of the Peace (the one of the being of the Quorum) may with the Surplus­age of the collections and forfaitures, by their discretions settle the Koges (borne, or aby­ding for the most parte of thrée yeares, in that Shire) to worke, there to be holden to worke by ouerfeers, 14. Eliz. ca. 5. Roges.

The Bishop & his Chauncelour, and thrée such Iustices of the Peace, haue power to era­mine, how money or other reliefe (appointed by King Henrie y ^e eight, or any other, to the bse of y ^e Poore, or of amending of Highwayes or Bridges) is bestowed, and to cal to account the deteiners thereof, &c. 14. Elizab. cap. 5. Money giue to the poore, high wayes, or bridges.

If séemeth, that thrée such Iustices of the Peace may out of the Sessions take informa­tion and accusation by the oathes of two ho­nest persons, against such as shal depraue the Sacrament of the body and bloud of our Lord and Sauiour lesus christ, against the Sta­tute: and cramine them, what other witnes­ses were then by:and to bynd them al by Ke­cognusance, to give in euidenee at the day of triall. 1. E. 6. ca. 1. but enquire of this matter. Depraue the Sacrame of the Lords supper.

Foure Iustices of the Peace (where of one to be of the Quorum) may (where a decayed Bridge is, & where it can not be proued who, or what lands, be chargeable to the repairing therof) fare the inhabitants, make collectors, and appoint ouerséers, for the amendement of the same &c. 22. H. 8. ca. 5. Foure [...] ­ccs. Bridges.

Sire Iustices of the Peace, may in sundrie shires take order for common Gaoles, wher­of the Shirite shal have the custody, and to the which murderers & felons &c. shal be sent:and may be & performe diuers incidentes thereto by the Statuts. 23. H. 8. ca. 2:& 13 Eliz. ca. 25. Sixe Iufuo. Gaole.

Sire Iustices of the Peace (two of the be­ing of the Quorum) may for a whole yeare af­ter the expiration of any Commission of Se­wers, cxecute the lawes of the Comissioners of Sewers, vnlesse that a new Commission of Sewers be published within the yere. 13. El. &c. 9 Sewers.

To this Title also, do these particuler Statutes belong.

13. El. ca. 23: & 23. El. ca. 12. For pauing the streete by Alegate.

34. H. 8. ca. For establishing Iustices of the Peace in Wales &c.

27. H. 8. c. 5 For Iustices of the Peace in Cheshire, &c.

23. H. 8. ca. 2: & 5. Eliz. ca. 24: & 13. Eliz. ca. 25. For the appointing & building of Gaoles, in sundry shires.

18. El. ca. 20. For amending of Bridges within fiue milis of Oxford.

18. Eliz. ca. 10. For the reparation of the ferry called the Kings ferrie in the Isle of Shepey in Kent.

Of the reward, & punish­ment, of Iustices of the Peace, for things done, not done, or misledone, out of the Sessions of the Peace.
CAP. XXV.

OF Reward and Pu­nishmet (as said Soiō) all Common weales doe consist: for as the care of equitie and Iu­stice wareth cold, vn­lesse there be rewarde readie for vertue: So the negligence of euill men must néedes be corrected by seueritic and chastisement of paines. And therefore, albeit the meaning of our Parliamentes hath alwayes béene, that choise should be made of such persons for this Office of the Peace, as néeded no re­warde for their trauaile in that behalfe, yet to the ends that they shoulde with the more alacritie and chéerefulnesse procéede in their affaires, they do nowe and then cast them a trifle, rather to let them knowe that they [Page 277] doe beholde their well doing, than that they ffande in néede of any recompence. Reward

Hereupon euerie Iustice of Peace, stting in ececution of the Statute of Labourers & Seruauntes, shall haue fiue shillings the day (for thrée daies togither)out of the forfeitures that grow by the same Statute 5. Eliz ca. 4. Seruauntes.

And if any persons (commaunded by two Iustices, of Peace to appeare, to be made an ouerséer to sée Statute of Cloth making kept) doe (without reasonable excuse) refuse to come and to take vpon him that office, he is to forfeit for euery such refusall fortie fhil­lings: and thereof those Iustices are appoin­ted to haue the one halfe by the, Statute, 3. E., 6. ca. 2. Ouerseers of Cloth.

Those two Iustices of Peace also hert ad­joyning, to whome any Cloth (faultie against the statutes) shall be presented, may cut the same into thrée equall peeces, and shall haue to them selues the one of the same, by the Ad 5. E. 6. ca. 6: & 4. E. 5: Phil.& Mar. ca. 5. Faulty cloth.

And euery Iustice of the Peace, is allowed to retaine to his owne bse, the one moitie of all straungers goods, calling them selucs E­giptians that he shall lawfully seise, by ver fue of the Statute. 22, H. 8. ca. 10. Egiptians.

The Iustice, or Iustices of the Peace, that doe ioyne with Clerke of the Peace, in [Page 278] taking & Conusance of an Indenture of bar­gaine & sale of land to be Inrolled, shall haue ry. [...]. therfore, if the land excéede not in value [...]l. [...]. by the yeare, and y. [...]. vj. [...]. if it do excéd that value, by the Statute 27. H. 8. ca. 16. Inrolloment of bargaune and sale.

The Queenes highnesse shall beare the costes that the Iustices of Peace shall sustain in the cxecution of the Statute of Riots, [...]. made 13. H. 4. ca. 7: by 2. H. 5. cap. 8. Riot.

And y ^e Iustices of the Peace shal make executiō of [...] Statute of forcible Cntries, at the costs & charges of the party gréeued. 3 H. 6 ca. 9 Forcible lourd

And twelue pence is giuen to the two Iu­stices of Peace for euery Recognusaunce ta­king, of him that is allowed to képe a com­mon Alehouse, by Statute 5. E. 6. ca. 25. Alchouse.

On the other side also, the Statutes doe nowe and then correcte the dulnesse of these Iustices with some strokes of the rodde or spurre. Punishmét. And therefore euen at the [...]rst it was ordayned, that if the Wardeins of the Peace did not look vnto the execution of the Sta­tute vpon such as should ride or go armed in any place putting the Country in feare, then the Iustices assigned by the king should enquire of their defaulte, and punishe them, Star. North. 2. E. 3. cap. 3 Ride armed.

And the Statute of Riots &c.(13. H. 4. c. 7) layeth C. it. forfeiture vpon those Justices of

Peace that shal dwell nighest to the Riot, &c. if thay doe not put that Statute in execution. Riots.

And those Iustices of the Peace, and Shirife, or Vndershirife, which (in sending their Cer­tificat to the Queen & hir counsel, concerning such a Riot) do not with all certifie the names of y ^e mainteinors & embraceors in that behalf, with their misdemeanors that they knowe, shall euerie of them forfeite twentie pounds, bnlesse they haue reasonable excuse for not certifying the same. 19. H. 7. ca. 13. Certificat.

That Iustice of the Peace whyche seiseth the goodes of any Egyptians, and doth not in­continently restore such part thereof as shall be proued before hym, to haue bene craftily or felonioufly taken, shall forfeite the double thereof, to such prouer. 22, H. 8. cap. 10. Egyptians.

That Iustice of Peace which doth not (v­pon request made) giue attendance vpon the Queencs Lieutenante of the Shire, for the suppreffion of anye Rebellion, or vnlawfull assmblie, shal suffer a yeres imprisonment, vnlesse there be cause of reasonable excuse. 1. Mar. Parl. 1. cap. 12: & 1. Elizab. cap. 17. Rebellious assemblie.

If any Iustice of Peace shall be proued to be in dcfault, about thc execution of the Act of the Poore, by two sufficient witreffes béefore the Iustices of Assise, at their nexte generall Gaole deliuerie, he shal loose o. tt. 14. Eli. cap. 5 Poorch

That next Iustice of Peace which faileth in presenting the name of him that preseteth it to him, according to the Statute of shooting in Crosbowes, or Gunncs, shall forfaite [...] shillings. 2. E. 6. ca. 14. Gunnes and Crosbowes. But enquire of the con­tinuance of this, as before in the 21. Chapter.

That Iustice of Peace, whyche doeth not (wythin fouretéene dayes, after matter vtt [...] red to hym concerning any Agneus Dei, &c.) signifie the same to some one of the Queenes priuie Counsell, shall incurre the paines of the Acte. 16. R. 2 of. Premunire 13. Eli. ca. 2. Agnils Dei.

That Iustice of the Peace, whyche (hauing taken any examination concerning Plaintes in the Shirifes Courte) doeth not Certifie the same into the Escheaquer within one quarter of a yeare after, shall loose fortie sillings for his default, 11. H. 7 qa. 15. Certifie in to the Es­cheaquer.

Those Iustices of the Peace, which do grant any Baile contrarie to the Law, or do not cer tifie the Baile & examination of the Felonie, according to these Statutes, shall paye suche Fine, as the Iustices of Gaole deliueris shall thinke méete 1.& 2. Phil. & Mar. cap:. 13: & 2.& 3. Phil.& Mar. ca. 10. Baile and scrisie.

Euerie Iustice of Peace, y ^e (dwelling with in 7. miles London) doth not (vpon request) assist the Colledge of Phisitions of London in the execution of the Statute. 32. H. 8. ca. 8 shall [Page 281] bée punished, as one that runnth in contept of the Queene. 1. Mar. ca. 9. Phisition.

And how that Iustice of the Peace shal be punished, that shal take vpon him the office, not hauing twentie pounds in lands, it hath lands. bene shewed alreadie. ca. 6. Not. XX. pounds in lands.

The description of the Sessions of the Peace.
CAP. I.

AS a man that hath re­seaed hurt in his bo­die by a stroke wher of he bléedeth freshe­ly, will be contented for the present to ad­mitte the helpe of any meane Leche or Sur­geon (comming next to hande) for the staun­ [...]hing [Page 285] of his blood, & binding up of the wound, and yet would more gladly have vsed the conference of diuers expert Surgeons for do­ing the same if the danger of the hurt would have graunted the time that will be lost in calling them together: So also the common councell of this Realme, finding that the be­die of it may be déepely wounded in some one member, and perceiuing that some e­uills must be resisted at the verie first, (least otherwise they grow past helpe, and ware incurable) hath many times thought it good to committe to one, or to a fewe Iustices of the Peace (for that they be readie, and at hande) the sfopping of the blood (as it were) and first dressing of the wounde, by repres­sing of force, and other outrages, that doe soudainly arise: and hath yet neuerthelesse (when as the tyme and matter will permit) politikely established an assemblie, and con­ference of all the Iustice at certaine tyme [...] in full Court, and open Session.

And as it is true, thatif the publiqus peace shoulde not be preserued by taking of Suertie, before it be broken, If suche as doe violate the commune tranquilitis shoulde not be committed to prison, when they have broken it, If seditious talebea­rers (the sowers of Kebellion) shoulde not [Page 286] bée snapt vppe and restreyned, If finally riotous assemblies should not be dispersed, and forcible inunasions withstoode and re­moued, the hurte bodie woulde bléede to deathe, and too late and in baine woulde it bée to summone a session for remedie. So when the bridele is once cast vpon the heade of the offender, then, and not before is the matter readis for the sitter. And great and many are the profittes, that woulde followe of these Sessions, if they were often kept, and duely ordered.

I will for this tyme call a Session: of the Peace An assemblie, of any two (or moe) Iustices of the Peace (one of them being of the Quorum) at a certaine daye (and place within the limittes of their Com­mission) appointed, to enquire by a Iu­ric, or otherwise, to take knowledge, and therevpon to proceedc to heare and de­termine, according to their power, of the matters within their Commission, and Statutes referred to their charge. The descri­ption of 2 Session of the peace.

And this Description excludeth all méetings, that are onely for Enquirie, in se much as to enquire, and not to heare and determine, is but a halfe doing, and not [Page 287] worthye the name of a Session of the Peace.

It shutteth out also, such assemblics as doe consist of two Iustices of the Peace, méeting onely to enquire, heare, and de­termine of a Riotte, by vertue of fhe Sta­tute 13. H. 4. for that may they doe (as al­so the former) though neyther of them bée of the Quorum. So that it is but a parti­cular seruice layde vppon two Iustices and the Shirife, by this Statute, and the Record thereof shall not (as I thinke) remayne a­mongest the Recorder Of the Sessions Of the Peace, as hath bene sayd already.

And therfore the assemblie that I meane, is a méeting of such Iustices for the executi­on of their generall auctoritie: and albeit that happily some one matter bée the mo­tiue and thiefe cause of their comming to­gither, yet if they deale with that and o­thers (witthin their Commission and charge) let it on Gods name passe for a Ses­sion of the Peace according to my mea­ning.

These Sessions of the Peace then, bés grounded, chiefely vppon the wordes of the thirde Assignauimus in the Commission, the which (béeing, duos vestrum, quoruus aliqucm, &c.) doe very necessarily require [Page 288] the presence of one of the Quorum: for the wordes of the seconde Assignauimus, doe give no power to heare and to determine, but onely to make enquirie. Which thrée thinges, namely, to Enquire, Heare, and Determine, doe (in effect) comprehends whatatsoeuer belongeth to these Sessions: So that euerie thinge, whereof I shall hereafter intreate, will concern, eyther the Information of the Iustices by enquirie, and other méete meane: Dr the Hea­ring and tryall of the cause: Dr the Iudge­ment and execution (which is the deter­mining) given and done dponit. A partition of that which fol­loweth in this booke. And therefore, in this pathe ( God wil­ling) will I freade, and by it you shall trars me to the ende.

VVho shall appoint the Sessions of the Peace: and how: and where.
CAP. II

THe Iustices of the Peace, doe (at their Sessions)take know­ledge of causes with in their Iurisdicti­on, eyther by the Dath Of lnquirours, or by the present­ment or declaration of other men: And this Inquirie is firste prepared, by the apparance of the Officers and Countrie, & by the Arti­cles giuen in charge: and then performed, by the presentment (or Jnditement) of them that had the charge to make it.

The vsuall manner of calling the Offi­cers and Countie togither for this feruice, is by a Precepte to the Shirife, wherein both the disposition of the Iustices is notified for) the holding of a Session, and feruice and attendaunce of those others is cornmaunded to bée thereat with them, which they be wel warranted to directe vnto hun, by the laste Assignauimus of theic Commmission, and the [Page 290] Mandauimus that followeth thervpon. The Forme thereof hath bene like this:

Thomas Randolphe, & Thomas Wotton, duo Iusticiarierum Do. Reg. ad pacem in Co­mitaiu Kancia conseruandam, necnon ad di­uersa, felonias, transgrossiones, & alia malefacta in dicto Comitatu perpetrata, audienda & ter­minanda assignatorum, Vicecomiti eiusdem Co­mitatus, Salutem: Ex parte dictae Dominae Re­ginae tibi praecipimus, quod non omittas propter aliquam libertatem in Balliua tua quin cam ingrediaris, & venire facias coram nobis vel socijs mostris Iusticiarijs pacis &. (tali die &c) proximè futuro apud Maidstone in Comitatu pradicto, 24. liberos & legales homines de quo­libet hundrede in Balliua tua, tam infra liber­tates quàm extra, ad faciendum & exequen­dum tunc & ibidem ea qua ex parte dictae De­minae Reginae eis iniungentur: Scire facias e­tiam omnibus Coronatoribus Comitatus tui, Se­ueschallis Constabularijs, Subconstabularijs, & Balliuis, infra Hundreda praedicta, quod sint tumc ibi ad faciedum & perimplendum ea qua ex par­te Dicta Dominae Reginae eis tunc & ibidem s­militer pracipientur: Et tu ipse tunc sis ibidem ad faciendum & exercendum ea quao ad officium tuum pertinent, & habeas ibi tunc nomina Iura­torum, Cosronatorum, Seneschallorum, Constabu­larierum, & Balliuorum praedictorum, & hoc [Page 291] praceptum. Precept, to summon the Ses­sions. Dat. fsub sigillis nostris apud Bough­ton Maleherbe in comitatu pradicto. 16. die O­ctobris, Annoregni dicta Domina nostre Reginoe Eliz. dei gratia &c. 23.

This precepte may bée made by any two Iustices of the Peace, so that the one of them bée of the Quorum for two such may holde a Session of the Peace, as it doth plainely ap­peare by the Commission: and therefore (as Maister Marrowe saith) it sufficeth not to have it runne vnder the name of the Custos Rotulorum alone, séeing that he hath no more auctoritie in this behalfe, thā one of his fel­lowes hath: for the worus of the said Māda­uimus in the Commission to the Shirife be, Coram vobis, sen aliquibus vostrum, venire fa­ciat, tot, & tales &c Ypa, if two such Iustica make a precept for a Session of the Peace, all their fellow Iustices, can not discharge it by their Supersedeas, but a Supersdeas out of the Chaunccrie wil discharge it, sayth Fitz­herberf.

And if one Iustice of the Peace alone woulde take vpon him to holde a Session of the Peace that was alreadie summoned by suche two Ius;tices, and wyll make the Stile of the Session in the names of hym slefe and the other Iustice, all pre [Page 292] sentmentes so taken before him may bée auoided: if the Sessions bée in trueth holden by two suel sufficient Iustices only, and the Stile (or Title) thereof bée made in the names of thrée, then al the presentments before them shall stand good. For it will not helpe the partie to saie, that one of fhe thrée was not there, when it shall appeare that was of them (the one being of the Quorum) were present, which will suffise. Marr.

Touching the time of holding the Session of the Peace, I wil forbeare to speake, till I shal come to divide the Sessions. The time.

But the place of howing them is arbi, trable, and at the pleasure of the Iustices themselves so that it bée méete for accesse: And although the precept doe appointe the Session to bée holden in some one Eowne by name, yet may the Iusces kéepe it ina­ny other Eowue, and all the presentments shall bée good that shall bée taken where they holde it: But, no amerciament, can bée fet vppon any man for his defaulte of appa­ranee there, bicause he had no warning of it, faith Marr. The place.

So if [...] Iudices make a precept for a Session to bée holden in dwne Eowne, and [...] other Iustices shoulde make an o­ther Precept for an other Session to bée hol­den [Page 293] at an other Towne (or in an other parte of the same Towne) the same daye: then presentments taken before eyther of them shall bée good. Marr. And then al­so it séemeth, that he whiche serueth at the one Session, as a Iuror, or Officer, shall bée excused for his defaulte at the other, by­cause they bée bothe the Queencs Courtes and of equall auctoritie.

And albeit that these Sessìons bée cōmon­lie and most orderlie, summoned by a Pre­cept in writing, yet is not altogither of necesstie to haue it so to make a lawfull Session: for if [...] such Iustices of the Peace doe gette men to serue, and doe holde a Ses­sion without any Precepte before directed, all Presentmentes made before them by twelue men shall bée of force in Lawe: But there againe, no man shal loose any thing for his default, by cause none had notice of their sitting, Marr.

VVhat persons ought to appeare at these Sessions, & therin of the Custos Rotulorum the Recordes of the Sessions, and the Clerke of the Peace, and how the Iurors ought to bee qualifi­ed and ordred.
CAP. III.

FOr the better prepa­ration towards thys Enquirie, let vs per­vse the persons, that are to attende and do seruice at the Ses­sions.

The Iustices of the Peace bée so necessarie, as without theme (though all others should appeare)no Sessi­on can bée kept:and, yet if any of them be ab­sent, their fellow Iustices cānot amerce the, as the Iustices of Assise may do for their ab­sence at the Gaoledeliuerie: for, Inter paresnō est potestas and the auctoritie of all the Iusti­ces [Page 295] of the peace at the Sessions is equall, so that like power hath) he which is not of the Quorum, with him that is, excepte it bée in speciall cases set foorthe in the Commission and Statutes. And therfore, it was holden (3. H. 7. Fitzh. Tit. Iustice del Peace. 3) that, if One which is not of the Quorum, wil bée so bolde as to rebuke one that is of the Quorum he & his companions may not committe him to prison for it. The Iuftices.

The Recognusors that stand bound to the kéeping of the Peace, and to appeare at the Sesions and such like, bée commonly tyed to the Quarter Sessions, wherevnto I am not yet come:And those prisoners that are sente by Iustices of the Peace for felonie or man­slaughter, or suspition therof, or bée lette to Baile for Mainprise vpon any such offence, be reserued till the Gaole deliuerie, wherewith I have not to do:The rest of that kinde, and the Rogues &c, maye bée broughte foorth at e­uerie Sessions of the peace. The Recog­nusors. The Prisoners.

But two sortes of men there are, that owe theyr Drdinarie attendaunce at these Sessions, that is to say the Officers(or Mini­sters) of the Courte, and the Iurors of the Countre.

Amongst the Officers, the Custos Rotu­lorun [Page 296] hath worthily the firste place, bothe for that hée is alwayes a Iustice of the Quorum in the commission, and amongst them of the Quorum, a manne (for the moste parte) especially piked out for wise­dome, countenance, and credite: And yet in this behalf hée beareth the person of an Officer; and ought to attend: for the words in the Commission bée to him by name, Quod ad dies & loca predicta brenia, prac [...] ­pta, processus, & indictamenta praedicta coram vobis & dictis soci [...]s venire faciatis. The [...] Rotulorum

And as his berie name she weth, he hath the custodie of the Rolles, (or Recordes of the Sessions of the Peace: and whether the custodie of the Commission of the Peace it selfe doe perteine to him alone, it hath bene made some question: For M. Marrowe sayth, that seeing the other Iustices maye holde a Session without him, it is méete they shoulde then haue the Commission with them. Who shall Keepe the Commission of the Peace But Chocke in the Booke (9. E. 4. 2.) holdeth, that a Iustics of the Peace (in ma­king any Iustification by vertue of his Df­fice) nédeth not to the we the Commifsion of the Peace, because (saith he) the kéepyng thereof belongeth to the Custos Rotulorum; and for the same cause also, the Bailie of a Iustice of the Peace shall not bée driuen [Page 297] to she we the Commission, as it séemeth, 20. H. 7. 7. And truely, since it is suche a thing, as can remaine but in the handes of one at once, it séemeth moste reasonable, that hée which is put in truste with the reste of the Records, should be credited with the custo­die of the Commission also.

But vnder the name of the Recordes of Sessions of the Peace, I do not compre­hende all manner of recordes concerning the Peace, but those onely whyche oughte to be at the Sessions of the peace: as Billes, Plaints, Information, Inditemets, Present­ments, the Roolles of Processcs, Trialles, Iudgements, and Executions, and all other the Actes, of the Sessions of the Peace them selues: And furthermore, the Peace & good Abea­ring, Recognusances concerning Felones, and Alehouse képers, and suche like as ought to be certified or brought to the Selssi­ons of the Peace, must bé numbered amon­gest the Recordes of the Sessions of the Peace: For of all these there may be vse at the Sessions, and therefore the Custos Rotu­lorum, or some for him, ought to bé readie to shew them. The Re­cordes of the peace. And although it were before time at the libertie of a Iustice of y ^e Peace, [Page 298] to certifie a Recognusaunce of the Peace to the Custos Rotulorum, (as you may see 2. H. 7. [...].) Yet now, by the Statute (3. H. 7. cap. 1.) he ought to certifie, send, or bring it to the nexte Sessions of the Peace, that the par­tie may be called, and to the ende also, that his default (if he make any may be recor­ded: and by such record of his default, he is concluded to say, that he appeared there, 13. E. 4.

As for Precepts for Suertie of the Peace, special Records for conuictions of forcible cntries, Riots, & such like, as he made out of the Sessions of y ^e Peace by particular Iu­stices; & be to remaine with theselues, & not appointed to be certified thither, I can not recken them in the number of the Recordes of the Sessions of the Peace: no more than I can well doe the Inrolments of bargains and sales, and such other Recordes lying in the charge of the Custos Rot [...]lorum; or Clark of the Peace.

But M. Brooke (Tit. Commission. 11.) ad­deth, that the Records of the Iustices of the Gaole Deliuerie do remaine amongest the Records of the Peace also: ho wheit, I think he meant notit of all the Recordes of the Gaole deliuerie: for, as the Iustices of Gaole deliuerie haue their proper Clearke, whiche [Page 299] maketh vp, & kéepeth the Records of things determined by that Cōmission: so the same Iustices (being withal Iustices of Peare) do leaue wyth the Clarke of y ^e Peace, Indire­mets, & such causes of the Peace, as be not determined, but hāg in mocesse, to the end offendors may be more spéelig;vily Iusticed.

And it appeareth 13. H. 4. 10. that Hanford Iustice of Gaole deliuerie at his departure called the Clarke of y ^e Peace, & willed him to take y ^e name of a prisoner that had bene sent thither for Felonie, without any suffi­cient proofe, & to cause it to be inquired of at the next Sessions of the Peace.

The Office of the Custos Retulorum was of auntient time giuen by the discretion of the Lord Chauncelour, vntil that (aboute the latter and of the raigne of king H y ^e 8.) sundrie persons (no lesse vnworthie to oc­cupie the Office, than gréedie to haue the place) did by labour and friendship obtaine at that kings handes, graunts of the same by his Letters Patents, for terme of their liues: by meanes whereof, so many cuilles did shortly ensue, both to the hindraunce of Iustice, and to the disherison of the Kings subiects, that y ^e last Parliament of his raign, viz. 37. H. 8. cap. 1. did somwhat restrain that course: and though it did ordain, that none [Page 300] should thencefoorth bee appointed custos Rotulorum in any Shire (a fewe place of Priuiledge onelie excepted) wythout a Bil signed with the Kings hande, yet it tooke further order, that the same Bill assigned, shoulde bee but as a Warrant to the Lorde Chauncelour to assigne in the Commissi­ons of the Peace, the same person to be Cu­stos Rotulorum, only vntill the King should (by an other Bill, signed with his hande) make appointment of another for the same Office. The gifte of the Office of the Cu­stos Rotulorū. But neyther this ordinaunce had any long life: for wythin a feme yeares af­ter, it was thought so preiudiciall to the po­wer of the Lord Chauncelour, and so trou­blesomea matter to sue to the King for bils so signed, that by the Parliament (3. E. 6. ca. 1.) the Lord Chauncelor was wholy resto­red to his aūtient auctoritie in naming the Custos Rotulorum againe (excepte in suche priuiledged places) without expecting any such Bill: and, that the Custos appointed by the discreation of the Lord Chauncelour shoulde enioy the same Office to be occu­pied by himselfe, or his sufficient Deputie, in as ample maner, as if that Statute (37. H. 8. cap. 1.) had neuer bene made.

The Clearke of the Peace oweth his af­tendance at these Sessions also: for he rest [Page 301] deth the Inditements, & se [...]ueth the Court: he enrolleth the Actes of the Sessions, and braweth the Processe. Clearke of the Peace.

He also must deliuer Letters to such as bée acquited of felonie, and will begge for their fées 22. H. 8. cap. 12. He must record the burning of Roags thorow the eares 18. Eliz. ca. 3. and muste like wise record the Procla­mations of Rates for seruants wages, and inroll the discharge of Apprentices 5. Eliza. ca. 4. He is appointed to kéepe the counter­pane of the Indenture of Armour 4. & 5. Phil. & Mar. cap. 2. He kéepeth the Register Booke of licences giuen to Badgers and La­ders of corne, 5. Eliz. cap. 12. and of those that are licenced to shoote in Gunnes 2. E. 6. cap. 14.

And he is bounde (vnder the paine of xl. shillings) to certifie into the Kings Bench, transcripts of Inditements, Vtlawries, Attainders, and Conuictions, had before the Iustices of the Peace within the time li­mited by the Statute 34. H. 8. cap. 14. All whiche things hée can not doe, if hée hée present: so that he is an Officer to this Courte, and the Clearke of the Iustices, as the Statute 12. R. 2. cap. 10. nameth him, and not (as M. Marrow thought) the Clearke of the Custos Rotulorum onelie. And you maye [Page 302] reade (2. H. 7. 1.) that if a Recognusance of the Peace bée brought in to the Custos Rotulorū, and the partie grieued wil not sue forward, then the Clearke of the Peace, who is the Clarke and Attornie of the King (saith that Booke) shall call vpon it for the Kings ad­uauntage: and I am sure, that the saide Statute (37. H. 8. cap. 1.) ralleth his place an Office also.

Howbeit the nomination and appoint­met of him hath long time belonged to the Custos Rotulorum, and he is to enioy his Df­fice so long as the Custos Rotulorum kéepeth his place, and may exercise it by himself, or by a Deputie sufficiently instructed in the Lawe, and admitted by the Custos Rotulo­rum. The nomi­nation of the Clearke of the Peace

And this Office was also (for a time) gyuen by the kings Letters Patents for termc of life, as that of the Custos Rotulo­rum was, vntill the sayde Statute 37. H. 8. cap. 1. recontinud the auntient or­der of giuing it to the Custos Rotulorum onelie.

Furthermore, the Coroners, as the com­mon forme of the Precept sheweth, and the Statute (27. H. 8. cap. 5.) presumeth, ought to be present at the Sessions: But yet that is not, for to certifie their Inquisitions, [Page 303] for that ought (by 1. & 2. Phil. & mar. cap. 12.) to bée done at the general Gaole deliuerie: nor yet to receiue any Approuour, for ney­ther that belongeth to the Iustices of Peace 9. H. 4. 1. but it is onelie (saith M. Marrow) because the Coroners be parties to the Exi­gents, and be Iudges of the Vtlawries: Howbeit, they are (besides that) Conserua­tours of the Peace, and may (in cases) com­mit men to prison, and therefore ought to be at the Sessions, to obiect against them. The Coro­sars.

The Shirife also, ought to attende at these Sessions, for the double duetie that he beareth: the one, as Shirife to retourne the Precept, to take the charge of Prisoners, and to serue the courte otherwise: as hée hath in charge by the Mandauimus that is métioned in the Commission to haue bene sent vnto him: the other, because he also hath Care of the the Peace. The Shirife.

The Bailifes of Franchises, and the Con­stables of Hundreds, are to serue also, y ^e one as Ministers, & the other as Iurours, & ther­fore ought to giue their attendaunce. Bailifes and Constables.

And euery of these (excepte it bée the Custos Rotulorum, for thereof I doubt) maye without controuersie bée amerced, if they make defaulte: But the Ordinarie oweth not his attendaunce here at any Sessions of [Page 304] the Peace, as he doth at the generall Gaole Dehuerie, in the opinion of M. Marrow. The Ordi­narie. I [...] ­déede, he is not warned by the commune Precept, and therefore cannot so conueni­ently take knowledge of the Sessions of the Peace. Howbeit, if he come, I thinke that he ought to serue, when he shall bée called.

But especiallye there oughte to appears suche Iurours as be retourned by the Shi­rite, and warned by his Baylifes, whether it bée for Enquiri or triall. Iurours for Inquirie and tnall. And in thys be­halfe, both the Commission, the commune forme of the Precept, and the Law it selfe (11. H. 4. cap. 9.) willeth, that they shoulde be, probi & legales homines: for if any of them be discredited in Lawe, as by Attainder in Conspiracie, Attaint, decies tantum, Sub­ornation of Periurie, or such like, they bée not Probi, and their presentment is voide by it, vnlesse there bée twelue besides them that are not so blemished.

Againe, if they bée outlawed, abiured, cō ­demned in a Premunire, or attainted of treason, felonie, or such like, then bée they not Legales and their presentment is mere­ly voide also, as it may be gathered vppon the case 11. H. 4. 41.

And women, infants vnder fouretéens yeres of age, Aliens, and such bée within [Page 305] orders of the Ministerie or Cleargie, can­not be empanelled amongst others.

And generally these Iurours ought also, either to be inhabiting wythin the Shire, or else to haue lands there: for the Commissi­on willeth, that they shoulde be suche, Per quos rei veritas melius sciri poterit, whiche muste néedes be vnderstoode of such as haue cause to knowe the Countrie, And the pre­cept is vsually according to the same forme. But specially (in the Countie Palatine of Lancaster) ech of them ought to haue to the yearely value of fiue pound, by the Statute 33. H. 6. cap. 2.

If any of the Iurours returned be thréescore and tenne yeares of age, or haue anye continuall infirmitie, or be otherwise decrepite, yet that shall not excuse him for not appearing, if the Iustices will require his seruice, but he driuen to his Action & gainste the Shirife for retourning of hym, vppon the Statute of W. 2. cap. 38. Marr.

And if he haue a Charter of Exemption, he ought to she we it to the Shirife, againste whome (if he will notwithstanding empa­nell him) he may haue his Action vpon the Case, and hath none other remedie by 18. H. 8. 5. Cur. which may be truely said, as to the sauing of his issues: but by some other books [Page 306] and namely 42. Ass. Pl. 5.& Marr. he is to be discharged vpon his apparance, & specially where he hath in his Charter of Cremptiō these wordes, Licet tangat nos, vnlesse there want others that he sufficient to serue.

Nowe, though some of the Cnquest of Cnquiry be of affinitic (or consanguinitie) with any party grieued, that procureth any inditement, yet that hindreth not their pre­sentment: howheit it is no discreation for the Iustices to suffer any surhe to bée empa­nelled amongest them.

The common manner in Kent (agréeing with the forme of the Precept) is to return particular I [...]ries for the Hundreds, and one generall Iurie for the body of the Sh [...]re: this laste is made vppe wyth vs, (for the moste parte) of the Constables onelie: and those others (if they be not filled at the first) are wonte to bée renued wyth the lyke, from Scssions to Sessions. Generall and parti­cular Iuries. But that vsage is no small hinderaunce to the seruice (as many doe thinke) by reason that (those particular Iuries béeing seldome serued with full apparance) the whole Cnquirie standeth onelie vppon their labour that are empanelled for the bodie of the Shire, that is to say, vppon one man of each Hundred, (at them moste) who cannot be thought to sée [Page 307] so much as a whole Iurie maye and dothe. And therefore, they think, that it were good to make vppe some of the particular Iuries also, (when they be not full) de circumstan­bus, out of other Hundreds, by which mean, eyther the whole Shire, or (at the leaste) a great many parts therof, might be perused.

To this opinion M. Marr. séemeth to en­cline, saying, that in default of those which are returned, the Iustices may take a Iurie de circumstantibus: And herevnto also the Statute (3. 0 H. S. ca. 12.) she weth some further consent, in that it giueth power to the Iu­stices, by their discretion to commaund the Shirife, or his Deputis, to adde, alter, or di­minish, the names of the pannell, which, if he refuse to do it, he shal forfeit xx.l. for the same contempt. Neither is it to be obiected, that men being all of one Shire, maye not take knowledge of things done in diuers Hundreds: Séeing they haue diuers occasi­ons of méeting togither, as at the Countre Courts, the Shirifs furnes, the Assises, & ge­nerall Duarter Sessions. And if a Iurie of one Hundred would make presētmēt of an offence done within any parte of the Shire, out of theyr own Hundred, this were good in Law. Besides which, if M. Marr. mixture be followed, fewe of them that doe appeare, [Page 308] shall lose their labour, whereas nowe the moste of them doe come in vaine.

But these men bée not truely Jurours til they bée sworne, as their name pretendeth, and otherwise their presentment is betterly voide. How they of the Iurie muste be sworne and ordered.

And yet if it should by any oversight hap­pen, that they or some one of them were not sworn at all, if the Record make men­tion that they be sworne, their presentment is of force ynough, for the Record may not bée gainsayed.

Each Iurie of Enquirie ought to containe 12. in number at the leaste, and if there bée 18. or moe, it shall not bée amisse: Bea the common order wyth us is, to have them of an odde number, as 17. 19. 02 21. to the end (as it séemeth) that if they shoulde dissent in opinion somewhat equallye, yet there shoulde bée alwayes one to weigh downe the side, and caste the ballance. The num­ber of Iu­rours. But if 12. of them, doe agrée, the gaine-saying of the residue can not hinder the present­ment.

The Iustices ought not to commit these Iurours to anye kéeper: nor to kéepe them wythout meate or drincke: nor to carrye them out of the Town. And yet they maye adiourne them to an other place, to gyue [Page 309] their Verdite, and that may bée then taken by any two Iustices, though neyther of th [...] be of the Quorum, faith Marr.

If these Iurours doe wilfully conceale offences (presentable) & y be complayned of by Bill, then may the Iustices choose an En­quest of persons, (whereof euerie one may dispend fortie shillings by yere) to enquire of their concealement: and if anye suche concealement bée founde within the yeare, euerie one of the first Enquest shall bée a­merced in full Sessions, by the discretion of the same Iustices: 3. H. 7. ca. 1. Conceale­ment.

And because the lurours of those dayes were yet wilfull in their concealementes, it was prouided wythin eight yeares after, that the Iustices of Peace should determine rauses upon information without any such presentment. But, In vitium, ducit culpae fu­ga, sicaret arte, and therefore that ordināce endured not long, as you shall hereafter perceiue.

Finally, these Iurours ought not to disco­ver their owne doings: for it is a parte of their oath, that they shal kéepe the Queenes Counsel, and their fellowes. And we reade in Fitzh. ( Tit. Coron. 207. & 272.) that to indite a man of Felonie, and then to shew abroade to others, what they haue done [Page 310] therein, hath bene taken for Felonie: Now­beit that offence is nowe taken to be finea­ble onelie.

Of the Articles that are to bee given in charge at the Scssions of the Peace.
CAP. IIII.

IT was the auntient maner, that twice in the yeare at the Shi­rifes Turne (why­che was sometime a Court of greate au­thoritie, and called the Shirremoote) the Bishop of the Diocesse, and the Alderman (or Carle) of the Shire, shoulde be present: the the one to informe the people in the lawes of God, and the other to instructe them in the lawes of the lande, Archaionom in legibus Canuti, Cap. 17.

And it were to be wished, that as there is commonly at euerie Assises, a Sermon (vt­tered by some learned man) so also the like [Page 311] might be at each generall (or Duarter) Ses­sions of the Peace. For, séeing that the lawes of men must be obeyed for God, it doth of necessitie ensuc, that he which will séeke to haue man obeyed rightly, must first cause God to be preached truly.

The Iustices of the Peace (saith M. Fitz) for therepartes be bounde to enforme the people: And (no doubt) the charge is gi­uen, aswel to instruct those that be ignoreāt, least they offende vnwares, as to enquire of those that haue alreadie fallen into daun­ger by offence: and thereof it is, that many Statutes do expresly commaund, that they shall be openly read (or declared)at the Ses­sions, as you shall sée in place for it.

But the manner of giuing the charge, and receiuing the Verdite at this day, diffe­reth from that whyche the Iustices in Eire were wont to vse: for you maye sée, in M. Bracton (Fol. 116) that first one of the Iusti­ces did open before the whole assemblie, the benefites of the seruice in hande, the commodities of kéeping the Peace: and the euilles of the contrarie: and that then the Articles of the charge were read by one and one to the Iurours, who receiuing the same at the handes of the Iustices) did also make aunsweare in the yéelding [Page 312] vp of their Verdite, to each Article seueral­ly, and by it selfe. The aunti­ent order, of giuing the charge in Eire.

Which custome, as it had many profits: so is it worthie (in mine opinion) to be re­continued, and brought in vre againe: ney­ther oughte the multitude of the Articles (nowe inquirable) to discourage any man in this behalfe: For, if those Lawes whych be leaste seruiceable (either for the presente time, or for the place, or other iust respect) were onelie touched or runne ouer, by way of thorte Article: then would there bée the more time affoorded, for spéeche that mighte bée well spente, as well in discourse of ex­hortation, or dehortation, as in the larger handling of suche other Statutes, whereof there is greater vse and necessitie. And this libertie, the Iustices in Eire themselues did vse also, as the same M. Bracton in the same place reporteth.

The points of the charge that wée haue in hande, may bée reduced to a fewe heads, and that after sundrie sorts of distribution: of which (for examples sake) I will shewe you some: first thus, The pointes of the charge diui­ded.

Al y ^e matters inquirable, bée either Eccle­asticall or Temporall: and these Temporall, be either high treason, petite treasons, felo­nies, or otherwise punishable and finable [Page 313] offences: Or thus,

All these pointes, doe either cōcerne God, the Prince, or Subiect: Or thus,

All these Articles bée offensiue, either a­gainst the first, or the seconde Table of the ten Commaundements of God: Or thus,

All these matters bée inquireable, eyther by vertue of the Commission of the Peace, and of the Statutes therein conteyned, or else by power of the Statutes not compre­hended within the Commission: Or thus,

All these Lawes doe prohibite thinges contrarie to some of the foure Cardinall (or principall) vertues, Prudence, Iustice, Forti­tude, or Temperance.

They may also be diuided, by the barietie of the punishments, and by some other Ac­cidentall respects: all whiche I leaue to the choice of suche as shall give them in charge, and will now for this time set downe the Articles themselues, after the order of the first diuision, pointing out in the first place the Ecclesiasticall causes, and then pursuing the Temporall.

In whiche doing, first, I will omitte all such Statutes, as doe concerne, but onely some one, or a few particular places: know­ing that I write to the most part, who haue not to doe with them. The manner of this Charge.

Secondly I will purposely pretermit the rehearsall of the punishments, conteyned in the Statutes that I am to run thorow: a [...] ­well bicause those doe rather perteine to the Iustices, than to the lurours, as also for that I haue an auncient Precedent of the Iustices in Eire to make for me, who (in their charge) did only deliuer the Articles in offence, without any mention of the paines due vnto the same, As it appeareth in the small volume of the old Statutes, vnder the Title, Capitula Itineris.

And thirdly, I will neither recite all the other partes of each generall Statute by it selfe, nor yet comprehend them wholie and fullie with others: bicause the firste of the se waies wonld be very long, through the ofte­iteration of the same things: and the other would bée so crooked I comberous (through the barietie and difficultie of the exceptiōs) that the hearer would bée many times loste before I should come to the ende.

I know that M. Fitzh. was of the opinion, that the Iustices of Peace, ought at their Quarter Sessions, and may at their priuate Sessions, giue in charge to the Enquest, all such matters as they haue power to deter­mine: and this he vrgeth, aswel by the Dath of the Iustices (who are sworne to do right in [Page 315] all causes within their Commission, or the Statutes) as by the ignorāce of the Iurours, who cannot bée instructed but by the charge: which if it bée so, I sée not (for my part) how either these Iustices (that are bound to vtter all) can bée discharged, or the Iurours (that ought to heare all) can be enfourmed, with­out this, 02 some such compendious & plaine waie, that may bothe shortly for the time, & lightsomely for the order, comprehende the substaunce of that which belongeth to their Enquirie.

Howbeit, as I thinke it the best for the Iustices, to rehearse all such pointes, whereof the Iurie may make presentment before them: so yet, I holde them discharged (in my slender opinion) if they vnfold onely the ar­ticles of their Commission, and of such other Statutes as doe expressie auctorize them to make enquirie.

For as there bée sundrie Lawes that doe giue to Iustices of the Peace a certaine spe­ciall (02 particular) power in them, and doe not yet yéelde vnto them any auctoritie to enquire vpon the same, of which sorte be the Statutes 27. H. 8. c. 20: & 32. H. 8. c. 7. of Tythes: The Statute 35. H. 8. ca. 17. of Woodes: The Statute 23. El. ca. 9. of Logwood, and sundrie others: So also there be diuers others, that [Page 316] do aforde to the Iustices of Peace the power of hearing and determining and yet doe not exprestie giue them the name of Inquine.

And, for as much as they may heare and de­termine of these, by Information (giuen to themselves & by them commaunded to the Iurie) it séemeth to me, that they bée not so necessarily boúd to giue them in charge, but that they be well inough discharged if they lie open, and be readie to receiue the infor­mations and presentments that shall bée of­fered vpon them: And of this kinde bée the Statutes of Highwaies (5. El. c. 13:& 18. El. ca. 9. (the statute of Fighting in Churche, or Churchyarde (5. E. 6. ca. 4) the Statute of Informours (18. El. ca. 5.) and sundrie others, whereof it shall be superfluous to make re­hearsall.

Neuer the lesse, bicause I will not, that my fantasie shall either stand against his iudge­ment, or be preiudiciall to other mens pro­fite, I haue contended (what I may)to deli­uer the principall & most seruiceable partes, not only of the Commission and of suche Lawes as doe specially conteyne their In­quirie within them, but also of al such other Statutes as may be hearde and determined by Iustices of the peace at any their Sessi­ons, and that in so narrowe a roome, as (if I [Page 317] be not, after some proofe, deceiued) they may be distinuly read ouer in a couple of houres, or litle more, so that the yeares of the Kings and the other Notes, be left vnread and pas­sed ouer.