The Country Justice
Passages and Quotes Relating to Justices of the Peace in 16th and 17th Century England
Source: The Country Justice, by Michael Dalton, from a facsimile of the 1655 edition, as produced in 1996 by The Legal Classics Library, Special Edition Copyright, Division of Gryphon Editions, New York.
Do not shy away if you have no interest in justices of the peace. The following passages contain many valuables!
- The first ordaining of Justices of Peace.
- Human Failings
- Advice to Judges from King James I
- Breach of the Peace
- Oath of Allegiance - Queen Elizabeth
- Oath of Supremacy - King James I
- Limits of Discretion
- Alehouses and Drunkenness
- Carrying of Guns and Other Weapons
- Forcible Entry, Duties of Justice of Peace
- Games and Sports
- Huy and Cry
- Keeping the Peace
- Compelling the Oath of Allegiance
- The Plague
- The Poor
- Hoghenhine - Stranger
- Church Attendance
- Benefit of Laws for Relief of the Poor
- Vagabonds and Rogues
- No Carrier Travel on Sunday
- Gleaning the Harvest
- Troy Weight and Averdepois Weight
- The Comparison of Corn, beer, and Ale Measures: Yes, a half gallon is a pottle!
- A Sheathed Sword with No Use or Profit
- Surety for the Peace and Surety for Good Behaviour
- Forcible Entry
- Forcible Detainer
- Unlawful Assemblies, Riots, Routs
- Justice Available to All - Magna Carta
- The Mirror - Who is it?
- High Treason
- Drunkenness is Not a Mitigation
- Self Defense
- The High Sheriff - Responsibility and Reward
- Gypsies (2)
- Huy and Cry (2)
- Punishment for those Attainted of Felony
- Testimony of Wife Against Husband
- Testimony of Children Against Parents
- False Testimony Taints Entire Testimony
- Number of Witnesses to Convict
- Examination of the Suspected Offender
- Admonishment to Tell the Truth - Torture of a Troubled Conscience
- Command to Arrest Must be a Warrant in Writing
- Better to Imprison Wrongfully than to Let the Felon Go
- Arrest of Barons or Peers of the Realm?
- False Imprisonment a Prerogative of the King?
- Magna Carta - Declaration of the Common Law
- False Latin - Words of Art
The Common Laws of this Realm of England, receiving principally their grounds from the Laws of God and Nature, (which Law of Nature as it pertaineth to man, is also called the Law of Reason) and being for their Antiquity, those whereby this Realm was governed many hundred years before the Conquest; the equity and excellency whereof is such, as that there is no humane Law within the circuit of the whole world, by infinite degrees, so apt and profitable, for the honorable, peaceable and prosperous government of this Kingdome, and so necessary for all estates, and for all causes, concerning Life, Lands or Goods, as these Laws be: These Laws (I say) even from their beginning, have continued a speciall care for the conservation of the peace of this Land. And to that purpose, at the Common Law (long before Justices of the Peace were made) there were sundry persons to whose charge the maintenance of this Peace was recommended, and who with their other Offices had (and yet still have) the conservation of the Peace annexed to their charges, as a thing incident to, and unseparable from their said Offices. And yet nevertheless they were and are called by the names of their Offices onely, the conservation of the Peace being included therein.
King Edward the first (according to the first Article of the sacred Oath received by him, and since by other Kings and Queens of this Realm at their several Coronations, the which is in these words, Servabis Ecclesiae Dei, Clero, & Populo, pacem ex integro, & concordiam in Deo secundum vires tuas; Quibus Rex respondit, Servabo) in his first Parliament holden An.3. of his reign Cap.1. hath established and commanded, that the peace of holy Church, and of the Land, shall be well kept and maintained in all points: The which peace of the Church is (and alwaies hath been by the ancient Lawes of this Land) protected and conserved by the King, the Archbishops, and Bishops of this Realm: And the Peace of the land is and alwaies hath been defended and maintained by the same King, and their temporal Justices or Officers lawfully appointed for the same, &c. Which temporal Justices, at the first were the conservators of the Peace, as aforesaid. But more especially in those times there also were in every County continually Justices of Oyer and Determiner, and also there were Justices Itinerants, the which had power not only to determine all manner of quarrels (as well real as personal) but also all offenses against the Peace, &c. as may appear in our Law-books, ....
For although by Chronicle Law in our Annals, it is reported that William the Conqueror ordained Justices of the Peace, about An. Do.1070. An. quarto of his reign; yet Justices of Peace had not their being almost three hundred years after, viz. untill Anno Do.1327. At which time Justices or Commissioners of the Peace were first created and ordained, that in every Shire of the Realm certain persons should be assigned (fc. by the Kings Commission) to keep the Peace: ....
But the Statute of 36 Ed.3.cap.12. is the first Statute that nameth them Justices of the Peace: ....
And here it shall not be amisse, shortly to put our Justices of peace in minde, how that justice may be perverted many wayes, (if they shall not arm themselves with the fear of God, the love of Truth and Justice, and with the authority and knowledge of the Lawes and Statutes of this Realm.) As namely,
1 By Fear; when fearing the power or countenance of another, they do not Justice, Deut.1.17. Ye shall not fear the face of man, for the judgement is Gods, who is, Capitalis Iusticiarius totius Mundi, Chief Justice of Heaven and Earth, and you are his lieutenants.
2 Favour; when they seek to please their friend, neighbour, or others. Deuter.ibid. Ye shall have no respect of person in judgement; Thou shalt not favour the person of the poor, nor honour the person of the mighty, but shalt judge justly, Lev.19.15.
3 Hatred or malice, against the party or some of his. Levit.19.18: Thou shalt not avenge, nor be mindful of wrong.
4 Covetousnesse; when they receive or expect fee, gift, or reward: for as the wise man saith, Rewards and gifts do blinde the eyes of the wise, and make them dumb that they cannot prove faults.
5 Perturbation of minde; as anger, or such like passion: James 1.20. The wrath of man doth not accomplish the righteousnesse of God.
6 Ignorance or want of true understanding, what is to be done: Ignorantia mater Erroris.
7 Presumption; when without Law (or other sufficient rule or warrant) they (presuming of their own wits) proceed according to their own wills and affections: There is more hope of a fool, then of him that is wise in his own conceit. Pro.26.12.
8 Delay; which in effect is a denying of justice: Negligentia semper habet comitem infortunium, & mora trahit periculum.
9 Precipitation, or too much rashnesse; when they proceed hastily without due examination and consideration of the fact, and of all material circumstances, or without hearing both parties; for the Law judgeth no man before it hear him, Iob 7.51.
And these King James his Majestie, of happy memory, hath shortly, yet fully observed in his charge lately given to the Judges, fc. charging them, That they do Iustice uprightly and indifferently, without delay, partiality, fear, or bribery, with stout and upright hearts, with clean and uncorrupt hands, and yet not to utter their own conceits, but the true meaning of the Law, not making Lawes, but interpreting the Law, (and that according to the true sense thereof, and after deliberate consultation,) remembering that their office is, Jus dicere, and not Jus dare.
Peace in effect (saith M. Fitzh.) is the amity, confidence, and quiet that is between men: And he that breaketh this amity or quiet, breaketh the peace.
Yet Peace (in our Law) most commonly is taken for abstinence from actual and injurious force, and offer of violence; and so is rather a restraining of hands, then an uniting of mindes. And for the maintenance of this Peace chiefly, were the Justices of Peace first made.
The breach of this Peace seemeth to be any injurious force or violence moved against the person of another, his goods, lands or other possessions, whether it be by threatning words, or by furious gesture, or force of the body, or any other force used in terrorem.
I (your name), doe utterly testifie and declare in my conscience, that the Kings Highnesse is the only Supreme Governor of this Realm, and of all other his Highnesse Dominions and Countries, as well in all Spiritual and Ecclesiastical things (or causes) as temporal, and that no forein Prince, Person, Prelate, State, or Potentate, hath, or ought to have any jurisdiction, power, superiority, preheminence, or authority, Ecclesiastical or Spiritual, within this Realm: And therefore I do utterly renounce and forsake all forein jurisdiction, powers, superiorities, and authorities, and do promise, that from henceforth I shall bear faith and true allegiance to the Kings Highnesse, his heirs, and lawfull successors, and (to my power) shall assist and defend all jurisdictions, priviledge, preheminence and authority granted or belonging to the Kings Highnesse, his heirs and successors, and united and annexed to the Imperial Crown of the Realm. So help me God, &c.
I (your name), do truly and sincerely acknowledge, professe, testifie and declare in my conscience before God, and the world, That our Sovereign Lord King James, is lawful and rightful King of this Realm, and of all other his Majesties Dominions and Countreys: And that the Pope, neither of himself, nor by any authority of the Church, or See of Rome, or by any other means with any other hath any power or authority to depose the King, or to dispose any of his Majesties Kingdomes or Dominions, or to authorize any forein Prince to invade or annoy him, or his Countries, or to discharge any of his subjects of their Allegiance and Obediance to his Majestie, or to give licence or leave to any of them to bear arms, raise tumult, or to offer any violence or hurt to his Majesties royal Person, State, Government, or to any of his Majesties subjects, within his Majesties Dominions. Also I do swear from my heart, that notwithstanding any declaration or sentence of excommunication or deprivation made or granted, or to be made or granted by the Pope or his successors, or by any authority derived, or pretended to be derived from him, or his See, against the said King, his heires or successors, or any absolution of the said Subjects from their obedience, I will bear faith and true Allegiance to his Majestie, his heirs and successors, and him and them will defend to the uttermost of my power, against all conspiracies and attempts whatsoever, which shall be made against his or their Persons, their Crown and Dignity, by reason or colour of any such sentence or declaration, or otherwise; and I will do my best endevour to disclose and make known unto his Majestie, his heires and successors, all treasons and trayterous conspiracies, which I shall know or hear of to be made against him or any of them. And I do further swear, That I do from my heart abhor, detest, and abjure, as impious and hereticall, this damnable doctrine and position, That Princes which be excommunicated or deprived by the Pope, may be deposed or murthered of their subjects, or any other whatsoever. And I do believe, and in conscience am resolved, That neither the Pope, nor any other person whatsoever, hath power to absolve me of this Oath, or any part thereof, which I acknowledge by good and full authority to be lawfully administered unto me, and do renounce all Pardons and Dispensations to the contrary. And these things I do plainly and sincerely acknowledge and swear, according to these expresse words by me spoken, And according to the plain and common sense and understanding of the same words, without any equivocation, or mentall evasion, or secret reservation whatsoever. And I do make this recognition and acknowledgement, heartily, willingly, and truly, upon the true faith of a Christian. So help me God.
Also the sayings of the right honourable, and late reverend Judge and Sage of the Law, in his fift part in Rookes case, and in his tenth part in Kigheleyes case) are worthy of observation, fc. That discretion is a knowledge or understanding to discern between truth and falshood, between right and wrong, between shadowes and substance, between equity and colourable glosses and pretences, and not to do according to our private wills and affections, for talis discretio discretionem confundit....
And (as Master Lambert well said) no way better shall the discretion of a Justice of Peace appear, then if he (remembering that he is lex loquens) shall contain himself within the lists of the Law, and shall not use his discretion, but onely where the Law permitteth, and the present case requireth.
So that now by these statutes, no person may come to tipple in any such Tavern, or in any Inne, Alehouse, or Victualing house, in the same Town where he dwelleth, nor within two miles thereof, except he be a traveller; ... But the Stat. 21 Ja. & 1 Caroli. seem to forbid all tippling in such house, wheresoever they be dwelling or abiding, and by whomsoever it be.
Now for to know a drunken man the better, the Scripture describeth them to stagger and reel to and fro, Job 12.25. Esa. 24.20. And so where the same legges which carry a man into the house, cannot bring him out again, it is a sufficient sign of drunkenness.
His Majesty, in his late speech in the Starre-chamber, hath justly excepted against the abundance of Alehouses, as being haunts and receits, for robbers, theeves, rogues, vagabonds, and other idle, loose, and sturdy fellowes, who loyter and inquire in these places where they may have a booty, or do a mischief to the neighboring inhabitants: & therefore here I thought good to put the Justices of peace in minde, that in allowing of Alehouses, they have regard as well to the person, as the place: for all persons, especially infamous or defamed are not fit to be allowed for Alehouse-keepers, neither are all places meet for an Alehouse.
And therefore Alehouses to be allowed, are meetest to be about the middest of Town; butnot be in any blinde, or by-corners (much lesse in woods or places remote from Towns) where theeves and rogues may be harboured: nor in places out of or distant from the Town; except upon the river side, and where there is great need, and the persons well known, ....
Affray, is in our Law a Skirmish or fighting between two or more: and is derived of the French word Effrayer, which signifieth to terrifie, or bring fear; and which the Law understandeth to be a common wrong; ....
Note that it is properly no affray, unlesse there be some weapons drawn, or some stroke given, or offered to be given, or other attempt to such purpose: for if men shall contend only in hot words, this is no affray, neither may the Constable for words only, lay hands upon them, unlesse they shall threaten to kill, beat, or hurt one another and then may the Constable arrest such persons (to go before some Justice of the Peace, to finde sureties for the keeping of the Peace) and yet such threatning is no affray.
So of such as shall carry any Gunnes, Dagges, or Pistols that be charged; or that shall go apparelled with privy Coats or Doublets, the Justice may cause them to finde sureties for the Peace, and may take away such weapons.
Barrator, cometh from the French (Barrat, est astutia) and in that tongue betokeneth a deceiver. In our Law a Barrator is a common wrangler, that setteth men at odds, and is himself never quiet but at brawl with one or other.
Also a common Barrator is he, who is either a common mover and stirrer up (or maintainer) of suits in Law in any Courts; or else of quarrels or parts in the Countrey.
As if in any Court of Record, County-Court, Hundred, or other inferiour Courts; any person by fraud and malice under colour of Law, shall themselves maintain (or stir up others unto) multiplicity of unjust and feigned suits, or informations, (upon penal Lawes,) or shall maliciously purchase a special supplicavit of the Peace, to force the other party to yield him composition; all such are Barrators.
In the County; and these are of three sorts:
1. Disturbers of the Peace, viz. such as are either common quarrellers or fighters in their own cause; or common movers or maintainers of quarrels and affrayes between others.
2. Common takers or detainers (by force, or subtilty) of the possessions of houses, lands, or goods which been in question or controversie.
3. Inventers and sowers of false reports, whereby discord ariseth, or may arise between neighbors; All these are Barrators.
Yea if one be Communis Seminator litium, he is a Barrator.
Or if any man of himselfe, be Communis oppressor vicinorum, (a common oppressor of, or wrangler with his neighbors or others) either by unjust, or wrangling Suits, or other oppressions, or deceits, he is a Barrator.
Or if one be Communis pacis perturbator, Calumniator, & Malefactor, he is a Barrator.
But all such persons must be Common Barrators, fc. not in one or two but in many causes.
Constable, this word is derived or deduced of two old Saxon words, Cuning, or Kining, which signifieth King, and stable: stability; shewing that these ancient Officers were reputed to be as the stability or stay of the King and Kingdome.
It appeareth by Fineux, 12 H. 7 fol. 18.a. that whereas the Sheriffes of the Counties, at the first had the government of their Counties committed to them, that afterwards by reason of the multitude of people, and for that it was too great a thing for one person, (fc. the Sheriffe) to undertake, therefore Hundreds were deduced and derived out of the Counties, and in every Hundred there was ordained a Conservator of the peace, who was called the (High) Constable; and after, Borroughs or Townes were made, and within every of them also was ordained a Conservator of the peace, who is called the pettie Constable (and in some places the Burrough head) and this was long before the times that Master Lambert speaketh of, fc. long before King Ed. 1 or King Ed. 3 which also may appear by the derivation of the word Constable, hic supra, and that they were in the time of the Saxons, so that it may seem, that as well the high Constables, as the pettie Constables, and their authorities, were by the Common Law; and that the old Statutes concerning them, are but a recitall of the ancient Common Lawes.
Every Justice of Peace, Sheriffe, and Escheator may seise all the goods of any outlandish persons, calling themselves Egyptians, that shall come into this Realm, within one moneth after their arrivall, and may also keep the one moity therof to his own use, making account to the King in the Exchequer for the other moity ....
What is Forcible Enty, and what is a forcible holding, or deteiner, see the other title Forcible Entry, hic cap. 77.
Every Justice of Peace, upon complaint to him made, or upon other notice to him given, of any Forcible entry into or Forcible holding, or deteiner of possession of any lands, tenements, or other possessions (or of any benefices or offices of the Church) contrary to these Statutes, without any examining, questioning, or standing upon the right or title of either party, ought in convenient time (at the costs of the party grieved) to do execution of these Statutes in manner and form hereunder following.
1 First, he ought to go to the place where such force shall be. And he may take with him sufficient power of the County, or Town, by his discretion, and the Sheriff also if need be to aid him for the better execution of this business; fc. as well for the arresting of such offenders, as also for the removing of the force, and for the conveying of them to the next Gaol. And whosoever (of that County) shall refuse to attend and assist the Justice of Peace herein, shall be imprisoned and make fine to the King.
2 He ought to arrest and remove all such offenders, as at his coming he shall see or finde continuing the force; and may take away their weapons, harness, and armour, and presently cause them to be prised, and after to be answered to the King as forfeited, or the value thereof. If the doors be shut, and they within the house shall deny the Justice to enter, it seems he may break open the house to remove the force.
But if such offenders being in the house, at the coming of the Justice shall make no resistance, nor make shew of any force, then the Justice cannot arrest, or remove them, except upon the inquiry after a force be found.
And if the Justice at his coming shall see or finde a force, and shall remove the offenders, yet he may not upon this his own view, restore the party ousted, to his possession again, without inquiry first made of the force by a Jury, as appeareth hereafter.
3 Also the Justice ought to make a record of such force by him viewed; which record shall be a sufficient conviction of the offenders; and the parties shall not be allowed to traverse it.
And this record (being made out of the Sessions by a particular Justice) the said Justice may keep by him: or he may make it indented, and certify the one part into the Kings Bench; or to leave it with the Clerke of the Peace; and the other part he may keep himself.
4 Also he ought to commit (immediately) to the next Gaol all such persons, as he shall finde and see continuing the force at his coming to the place; The said offenders there to remaine convict by his own eye, testimony and record, untill they have paid a fine to the King (or given security for the payment thereof:) for this sight and view of the force by the Justice (being a Judge of record) maketh his record thereof (in the judgement of the Law) as strong and effectuall, as if the offenders had confessed the force before him; and (touching the restraining of traverse) more effectuall, than if the force had been found by a Jury, upon the evidence of others.
... But such force must be in the presence or view of the Justice of peace, or else he can neither record it, nor yet commit the offenders.
There shall be no meeting of people out of their own Parishes on the Lords day (or Sunday) for any sport or pastimes whatsoever: nor any Bear-baiting, Bull-baiting, Enterludes, common Playes, or other unlawful exercises of pastimes, used by any within their own Parishes, upon pain that every person offending in any the premisses, do forfeit for every offence three shillings four pence, to be imployed to the use of the poor of the same Parish where the offence shall be committed.
King James of happy memory, Anno Domini 1618 publikly declared to his subjects, these recreations or exercises hereunder mentioned to be lawful, that is to say, Dauncing of men and women, Archery, Leaping, Vaulting, May games, Whitson Ales, Morisdances, and setting up Maypoles, and other sports therewith used. And commanded that no such honest mirth or recreation should be forbidden to his subjects upon the Sunday or holy dayes, after divine service (fc. Evening prayer) ended: Restraining and barring notwithstanding from this liberty all Recusants, and all such as absent themselves from Church upon those daies: Commanding each Parish by it self to use these Recreations, and only after Evening prayer ended. And prohibiting all unlawful games to be used upon Sunday, as Bear-baiting, Bull-baiting, Enterludes, and Bowling by the meaner sort.
Every Justice of Peace may from time to time (as well within Liberties, as without) enter into any common house or place, where any playing at Dice, Tables, Cards, Bowles, Coyts, Cales, Logats, Shove-groat, Tennis, Casting the Stone, Football, or other unlawful game, now invented, or hereafter to be invented, shall be suspected to be used; and may arrest the keepers of such places, and imprison them till they finde sureties by Recognisance, no longer to occupy any such house, play, game, alley, or place.
Also he may arrest and imprison (without bail) the players, till they be bound by themselves, or with sureties, by Recognisance to the Kings use, no more to play at, or haunt to any of the said places, or games.
Although these games aforenamed, are by Statute prohibited, as unlawful for some places, persons, and times, yet are they not unlawful or evil of themselves, but are matters of recreation and pleasure (though some of them more vain and more idle then others) and the King by his Prerogative may tolerate and licence the moderate use of all such games, as it shall seem good to his Majesty.
Note also that playing at Cards, Dice, and the like, are not prohibited by the Common Lawes of this Realm (except that one be deceived by false Dice, or false Cards, and then he that is deceived may have his Action of the case for such deceit:) neither are they malum in se, or of their own natures, for then none might be tolerated or licensed to use them; whereas the Statute doth except and tolerate certain persons, places, and times. And yet good Divines do hold divers of these recreations to be altogether unlawful, as being actions wherein we neither bless God, nor look to receive a blessing from God; nay, such as we dare not pray to God for a blessing on them, nor on our selves in the use thereof. But especially on the Sabbath day, all such recreations and games are holden unlawful; for if lawful works be forbidden on that day, much more unlawful sports (yea, such sports and games, which otherwise, and at other times are lawful.)
Huy and Cry, signifieth a pursuit of one or more that have committed felony, or fly therefore.
The party robbed, or some one of the company of one murdered or robbed, must speedily come to the Constable or the next Town, or to some other inhabitant dwelling neer the place where the felony was committed, and must give notice of the said felony, and to will him to raise Huy and Cry, or to make pursuit after the felon: And the Constable must forthwith make search in his Town; and if the felon be not there found, then to give notice to the next Town, &c.
Note that all Huy and Cries ought to be made immediately after notice given of the felony done, from Town to Town, and from County to County, and from horse-men, and foot-men; otherwise it is no lawful pursuit.
Every Justice of Peace (ex officio, and by the Commission, the first Assignavimus) may cause to be arrested all Night-walkers, be they strangers or other persons that be suspected, or that be of evil behaviour, or of evil fame: and more particularly all such suspected persons as shall sleep in the day time; and go abroad in the night; and all such as shall in the night season haunt any house that is suspected of bawdery; Or shall in the night time use other suspicious company; or shall commit any other outrages or misdemeanors; and may force them to finde surety for their good behaviour.
For as one saith, such Night-walkers (or Night-birds) are ominous, like the Whistler &c. an such night-walkings are unfit for honest men, and more suting to the Thief (the right Whistler) and to the beasts of the prey, which come forth of their dens, when man goes to his rest.
Any one Justice of peace may compel such as are between the age of fifteen years and threescore, to be sworn to keep the peace. ...
Every Justice of Peace hath authority and power given him (by the first Assignavimus, or clause in the Commission) to keep and cause to be kept the Kings Majesties Peace; by force of which words they have as well the ancient power touching the keeping of the Peace, which the ancient Conservators of the Peace had by the Common Law; as also all authority which the Statutes since have added thereto: And so they may cause to be kept all the Statutes and Lawes now in force; which had been made for the Peace, or keeping thereof: and more especially they may arrest, or cause to be arrested and sent to the Gaol, all murtherers, robbers, and felons, and all persons suspected of such things.
They may also suppress, and binde to the Peace, or good behaviour, all Affrayors, and all persons unlawfully and riotously assembled, or unlawfully wearing armour, or any weapons, by night or by day, or otherwise putting the people in fear, and all unlawful night-walkers and the like: All which may well be said to be disturbances or breaches of the Peace.
If any Affray, Forcible Entry, or other thing in disturbance of the Peace be made or committed in the presence, or within the view of a Justice of Peace, he hath power to record it, and to certify the same and also to commit the parties to Ward, presently upon the fact done: But if there be any mean, space, or time, then he cannot commit them to Ward, but he may record the same, and may (at any time make his Warrant to take them; and) binde them with Sureties, to their good behaviour, and for want of Sureties may send them to the Gaol.
If the Justice of Peace shall certify into the Kings Bench, that I.S. hath broken the peace in is presence, upon this certificate I.S. shall be there fined, without allowing him any traverse thereto.
Any two Justices of the peace (the one being of the Quorem) may require any person at the age of eighteen years or above (under the degree of a Baron or Baronness) to take the oath of Allegeance, and upon their refusal may commit them to the common Gaol, there to remain without bail till the next Assises, or Quarter Sessions.
If any person infected, or being, or dwelling in an house infected with the plague, shall be by any Justice of Peace (or other Officer) commanded to keep his house, and notwithstanding shall wilfully go abroad, and converse in company, having any infectious sore upon him, it is felony: and if such person shall not have such sore about him, yet for his said offence he shall be punished as a vagabond (by the appointment of any Justice of Peace, as it seemeth) and further shall be bound to his good behaviour, for one whole year.
If any person infected, or dwelling, or being in an house infected, shall contrary to the commandment or appointment of the Justice of Peace (or other Officer) wilfully attempt to go abroad, or to resist such their Keepers or Watch-men, then may such Watch-men with violence enforce them to keep their houses, and not be impeached for hurting them.
Poor are here to be understood (not vagabond beggers and rogues, but) those that labor to live and such as are old and decrepit, unable to work, poor widows, and fatherless children, and tenants driven to poverty, not by ryot, expence or carelesness, but by mischance, &c.
Two (or more) Justices of peace, whereof one to be of the Quorum, dwelling in or neer the Parish or division, &c. shall yeerly within one moneth after Easter, under their hands and seals, appoint four; three, or two substantial Housholders in every Parish, to be Overseers of the poor within the same parish, who shall join with the Church-wardens therein.
The Justices of Peace which have the appointing of these Overseers, must therein be carefull to chuse such men as in Every Town are fittest: fc. substantiall persons, having competency of wealth, wisdome, and a good conscience. And indeed this name and office of Overseers, may beseem the best, and not the meanest men (it being a name and office of great antiquity and excellency, as you may see 1 Cr. 23.4. Acts 20 28. & Acts 6.3, 5.) And though the persons are dignified according to the singularity of the subject; yet this is not the least office to be called Overseers of the poor. For as God himselfe hath a speciall respect to the miseries of the poor; so they be like God which provide for the necessities of the poor.
These Overseers and Church-wardens (or the greater part of them) with the consent of two or moe such Justices, shall take order from time to time, for setting their poor on work, putting out apprentices, and relieving their impotent as followeth.
1. First, for setting to work the children of all such, whose Parents shall not by the greater part of the said Overseers be thought able to keep and maintain their children; which children they, or the greater part of them, by the assent of two such Justices, may also put out to be apprentices, fc. the men children till their age of 24, and the women children till their age of 21 yeers, or the time of their marriage.
And all poor children of the age of 7 yeers or above so bound apprentices, may be taken and kept as apprentices by their Masters, any former statute to the contrary notwithstanding, See 1 Jac.cap.25. & 21 Jac.28. & 3 Car. 4. but such binding must be by indenture. ...
Note that the putting of poor children apprentices is holden to be one of the best waies of providing for the poor.
And one Justice of the peace may compell any person meet, to be bound as an apprentice.
2. For setting to work all such persons (married or unmaried) as, having no means to maintain them, use no ordinary and daily trade of life to get their living by.
Such also as can get no work, are by the Overseers to be set on work. ...
Now the placing of such apprentices, and the setting and holding the poor to work, is the more proper and true duty of Overseers, for otherwise their bare gathering or raising of a stock, is to little purpose.
3. For relieving such poor amongst them as are poor and impotent, or not able to work.
But this relieving of poor, and impotent persons, must be convenient and such as that they neither be forced to beg, or steal, nor so little as that it may be a lingring death to them.
And for these purposes the said Overseers are inabled to raise weekly, or otherwise (by taxation of every inhabitant, Parson, Vicar, and other, and of every occupier of lands, houses, tythes, mines, or saleable underwoods (proportioning them to an annual benefit, &c.) in the same Parish, such competent summes of money as they shall think fit, therewith to provide a convenient stock of some ware or stuffe, to set the poor on work, and also competent summes of money towards the necessary relief of their lame, impotent, old, blinde, and other poor not able to work: and for the putting out of such children (as aforesaid) to be apprentices.
And this last, fc. the putting forth and taking of Apprentices, may well be termed a special work, and Seminary of mercy.
But in putting forth of these Apprentices, there must be regard had, to the Master, the childe, and the Parents.
The Master, fc. his ability, and honesty: otherwise by some device or hard intreaty, they may provoke their Apprentices to depart, or run away.
Secondly, his Trade or Faculty, lest the Apprentice consume his time without learing anything: for the word Apprentice cometh of the word apprendre, id est, ad discere or discere, and sheweth that they are to be bound to, and brought up in, taught, and instructed by the Master in some Art, Mysterie, or Trade.
To these two, the Justice of Peace must have an eye.
And withal the Justices at their monthly meetings should do well (once in three or four quarters) to cause the Officers of every Town to bring them a note in writing of all the poor in the Town which are overburthened with children, and of the names and ages of their children; And also a note of the names of all those in their Parish that are fit to take Apprentices; and so from time to time to put out and place the children.
The childe, fc. to put them out timely, and while they are young and tractable (so as they be above the age of seven years) otherwise by reason of their idle and base educations, they will hardly keep their service, or imploy themselves to work.
Again, concerning Masters; all persons of ability, are compellable to take Apprentices, according to this Statute; yea if they be of ability, though they have but a house or sleeping place in the Town, they are chargeable.
Yea, every man who by his calling, and profession, or manner of living entertaineth and must have use of other servants of the like quality, must entertain such an Apprentice: wherein notwithstanding discretion, must be the guide upon consideration of circumstances.
And every able or wealthy person that liveth privately, though he hath no use of a servant, yet he must contribute, and may be taxed towards the putting forth of Apprentices, as to other charges for the provision of the poor.
And Clergy men are not here exempted, but may have Apprentices put to them; and this was the opinion of all the Judges, upon two several references to them lately made from the Kings Majesty (as I have been credibly informed). Or at least they are chargeable to contribute to the putting out of Apprentices.
The Father and Grand-father, and Mother, and Grand-mother, and the Children, and Grand-children of every poor impotent person, or other poor person not able to work, being of sufficient ability, shall relieve such poor persons in such manner as the Justices of Peace (of that County where such sufficient person dwelleth) at their General Quarter Sessions shall assesse; upon pain that every one failing therein, to forfeit twenty shillings for every moneth: the said foreiture to be levied by the Church-wardens and Overseers, or one of them, by Warrant from any two such Justices of peace (the one being of the Quorum) within their limits, by distress and sale as aforesaid: and in defect of distress, any two such Justices may commit the offender to prison, there to remain without bail, till the said forfeiture be paid. And the same forfeiture shall be imploied to the use of the poor of the same parish.
And the father also may be compelled to allow maintenance to his sons wife (the husband being absented) as was done in the case of one John Ball by Ord. 2.
Such persons as be of any parish, and have able bodies to work, if they refuse to work at such wages as is taxed, or commonly given in those parts, are to be sent to the house of Correction, and not to their place of birth, or last dwelling, by the space of a yeer. But if they have any lawful means to live by, though they be of able bodies and refuse to work, yet they are not to be sent to the house of correction.
None may be suffered to take relief at any mans door, though within the same parish, unless it may be by the order of the Overseers: neither may any be suffered to beg by the high-ways, though in their own parish.
Note (by an old Law) a stranger, or he which cometh guest-wise to an house, and there lieth the third night, is called an Hoghenhine (or Agenhine) and after the third night he is accounted one of his family in whose house he so lyeth: and if he offend the Kings peace, his Oast must be answerable for him. Termes de Ley.
And Minsh: verb. Hoghenhyne, third and Uncuth saith that Uncuth signifieth incognitus, and is used in ancient Saxon Laws for him that cometh to an Inne guest-wise, and lieth there for two nights at the most: and that by the Laws of Edward and of the Conqueror, Hospes trium noctium, if he did any harm, his Oast was answerable for the harm, as for one of his own family: and that if he tarried any longer, then he was called Hogenhyne, or Agenhyne, that is familiaris. So it seemeth in those times, that to lodge in one place three or four nights together was counted a setling.
If there be any subject of this Realm, be hee popish Recusant (convict, or not convict) or other person, that shall not repair every Sunday to some Church (both to Morning and Evening Prayers) and then and there to abide orderly during the time of prayer, Preaching, or other service of God there used, according to the Statute made, 1 Eliz. cap. 2. Then any one Justice of peace of that limit where the said party shall dwell, upon proof to him made of such default (by confession of the party, or oath of witness) may within one moneth next after such default, call the party before him, and if he shall not prove sufficient cause of his absence (to the satisfaction of the said Justice) the said Justice of peace may give Warrant under his hand and seal to the Church-wardens, to levy twelve pence for every such default, by distress and sale of the offenders goods, &c. ....
The benefit of this Law, and of the former Law, made for the setting to work, and relief of the poor, are both of them worthy of the care of the Justices of peace, and of their best endevours, for the due execution thereof; for by them,
1. Idleness is very much repressed: idleness, which of itself is the root of all evil.
2. Infinite swarms of idle Vagabonds are rooted out, which before wandred up and down, to the great danger and indignity of our Nation.
3. We our selves are now compelled but to relieve the poor of our own Parishes (whose conditions and estates we know) and to a certainty of gift, wherewith we are now taxed by our neighbors: whereas before we gave we knew not what nor to whom; and many times to such as were ready to have cut our throats, if opportunity had served them.
Any one Justice of peace may appoint all Rogues and Vagabonds which shall be taken begging, wandring, or misordering themselves, to be stripped naked from the middle upward, and to be whipped till their body be bloudy, 21 Jac. cap. 28. ...
A Vagabond is (as one saith) is he which hath neither certain house, nor stedfast habitation; buth liveth idly, and loytering .... ...
And yet Vagabond in its proper sense, is one that wandreth about: and a Rogue and a Vagabond seem to be all one; for the Latine words vagus and vagabundus, signifie the one and the other: So as whosoever wandreth about idly and loyteringly, is a Rogue or Vagabond, although he beggeth not.
And more particularly, all these persons hereunder mentioned, being above the age of seven yeers, and offending as hereunder is mentioned, shall by our lawes be adjudged Rogues, or at least shall be punishable as Rogues.
1. All persons above the age of seven yeeers, going about begging, upon any pretence or colour whatsoever: yea, although they be licenced by any subject, except it be in the cases hereafter mentioned.
2. All idle persons going about the Countrey, either using any subtill craft or unlawful games, or being fortune-tellers, or Juglers, or using any other like crafty science.
3. All Proctors, Patent-gatherers, or Collectors of Gaols, Prisons, or Hospitals, wandring abroad.
4. All Fencers, Bcarwards, common players of Enterludes, and Minstrels wandring abroad. 21 Jac. cap. 28.
5. All Pedlers, petty Chapmen, Tinkers, and Glassmen wandring abroad, 21 Jac. cap. 28. especially if they be unknown; or have not a sufficient Testimonial.
6. All wandring persons, common Labourers, being able in body using loytering, and refusing to work for reasonable wages, not having living otherwise then by labour to maintain themselves, are Rogues. And yet such persons as be of any parish, and have able bodies to work, and be no wanderers abroad out of the parish though they refuse to work at such wages as is taxed or commonly given in those parts, are not to be sent to their place of birth or last dwelling, &c., but to the house of Correction. See tit. Poor.
7. Poor persons appointed to ask relief in the Parish where they dwell, by the Overseers thereof, if they shall beg in any other sort then is so appointed them, or shall beg by the High-ways, though in their own Parish. ...
8. All persons wandring, and pretending themselves to be Aegyptians, or wandring in the habit and form of Aegyptians, not being Felons.
9. Souldiers or Mariners that shall beg (except as before hic cap. 40 & hic postea) or shall counterfeit any Certificate from their General, Governour, Captain, Lieutenant, Marshal, Deputy, or Admiral, shall be adjudged as Common Rogues, and shall have the like punishment. But Souldiers and Mariners in divers like cases shall incur the danger of Felony. See the title Felonies by Statute.
11. A Rogue that hath been punished according to this Statute, and hath a Testimonial, if through his or her default they do not accomplish the order appointed by the said Testimonial, then are they to be whipped again as Rogues, and so often as any default shall be found in them, &c.
12. A Rogue, &c. that shall go with a general passport, fc. which is not directed from Parish to Parish, is still to continue a Rogue, and may be punished by whipping again. ...
13. Servants departing out of service, ( fc forh of one Ciy, Town, or Parish to another, or out of one Hundred or County, to serve in an another) without a testimonial, &c or which shall be taken with any counterfeit or forged testimonial, shall be whipped as Vagabonds.
14. Persons infected, or dwelling, or being in any house infected with the Plague, that contrary to the commandment of any officer, shall wilfully go abroad and converse in company, shall be punished as Vagabonds.
15. So all persons being able to labour, and thereby relieve themselves and their families, that shall run away, or threaten to run away and leave their charge to the parish, &c. 21 Jac. cap. 28.
No Carrier with any Horse, nor Waggoner, Carter, nor Wainman, with any waggon, cart, or wain, nor any Drover with any Cattell, shall travell upon the Sunday, upon pain that every person so offending shall forfeit xx s. for every such offence.
But for the gleaning and leaving of the harvest &c. God commandeth that it be left for the poor, the fatherless, the widow, and the stranger, Levit. 19. 9 & 23. Deut. 22.24. And it were worthy the consideration of the Justices to take some course that such only might have the benefit of gleaning, and not farmers and tradesmen, that in many places in harvest time set their servants to that imployment, which is no better then to rob the poor of what properly belongs to them.
Two Justices of the peace (the one being of the Quorum) upon complaint by any competent Judge of Tythes, for any misdemeanor of the defendant in a suit of Tythes, (or for other duties of the Church) may cause him to be attached, and committed to Ward, there to remain without bail, untill he finde sufficient sureties (unto the said Justices) by recognisance to the Kings use, to obey the processe and sentence of that Judge.
Also upon complaint or certificate in writing by any Ecclesiastical Judge, that hath given definitive sentence in the case of Tythes against one which wilfully refuseth to pay the Tythes, or summes of money so adjudged, two such Justices of peace may cause the party to be attached, and committed to the next Gaol, there to remain without bail, till he finde such surety (as aforesaid) to perform that sentence.
And yet notwithstanding there always hath been, and still are, two kinds of weights used in England, and both warrantable: the one by Law, the other by custome (as it seemeth) but they are for several sorts of wares or commodities; for there is Troy weight, and Averdepois.
1 Troy weight is by Law; and thereby are weighed gold, silver, pearl, precious stones, silk, electuaries, bread, wheat, and all manner of grain, or corn, is measured by Troy weight.
2 Averdepois weight is by custome (yet confirmed also by statute;) and thereby are weighed all kind of Grocery wares, Physical drugs, Butter, Cheese, Flesh, Wax, Pitch, Tarre, Tallow, Wools, Hemp, Flax, Iron, Steel, Lead, and all other commodities not before named (as it seemeth) but especially every thing which beareth the name of garble, and whereof issueth a refuse, or waste.
Troy weight: Corn, Beer, and Ale Measures:
Pintes, Quarts, Pottles, Gallons, Firkins, Kilderkins, Barrels.
12 ounces maketh in measure one pinte.
Two pintes, or pounds, maketh the quart.
Two quarts maketh the pottle.
8 pintes, 4 quarts, or 2 pottles maketh the gallon.
8 quarts maketh the peck.
64 pintes, 32 quarts, 8 gallons, or 4 pecks maketh the bushell or firkin.
16 gallons or 2 firkins maketh the kilderkin, half barrell, or rondlet.
256 pintes, 128 quarts, 32 gallons, 4 firkins, 2 kilderkins, or 4 bushells maketh the coomb or barrell.
512 pintes, 256 quarts, 64 gallons, 8 firkins, 4 kilderkins, 2 barrells, or 8 bushels maketh the quarter or hogshead.
So the Pint and pound, firkin and bushell, barrell and coomb, hogshead and quarter are of like content.
... Now for a conclusion of these statutes and of the services of the Justices of Peace therein, I wish them that in all cases where the whole matter is (by Statute) committed to the Justices of peace (to one alone, or to two Justices, or moe) out of their Sessions, to hear and determine, &c. [...] that in every such case of such their judicial proceeding, they be led by no affection, but advisedly to examine and consider of, as well the fact itself, as of the circumstances, and then (in the fear of God, and according to law) to proceed and to see, or cause due and diligent execution of the punishment to be done upon the offenders, according to the quality and quantity of their offence, and as the Statutes themselves do direct; for law without due execution and punishment of the offenders, is as a sheathed sword without any use or profit.
If the Justice of peace shall perceive that this surety for the peace is demanded meerly of malice, or for vexation only, without any just cause of fear, it seemeth he may safely deny it. As in common experience we finde it, That where A shall upon just cause come and crave the Peace against B and hath it granted to him; when B shall come before the Justice, B likewise will crave the peace against A (and will perhaps surmise some cause) but yet will nevertheless be content to surcease his suit and demand against A so as A will relinquish to have the peace against him; here the Justice of peace shall do well (as I think) not to be too forward in granting the peace thus required by B but to perswade with him, and to shew him the danger of his oath that he is in fear (where indeed he neither doth fear, nor hath cause to fear) this oath shall discharge the Justice, and the fault shall remain upon such complainant.
And when the Justice hath so granted the peace to one that (in the Justices judgement) shall crave or require it only out of malice, or for vexation, the Justice may presently in good discretion binde him to the good behaviour, that so required the peace.
This surety of the good behaviour, or good abearing, is granted by the Justice of peace as well by the authority of the Commission of the peace, the first of Assign. as also by force of the statute 34 Ed. 3 cap. I.
And this surety for the good behaviour is of great affinity with that of the peace, and is provided and ordained chiefly for the preservation of the peace (as that other is) as you may observe out of the usual forms of the recognizances; yea by some opinions it differeth in little or nothing from that of the peace; but that there is more difficulty in the performance thereof; and the party so bound, may sooner fall into the danger of it, and of his recognizance. For the peace (say they) is not broken without an affray committed, battery, assault, imprisoning, or extremity of menacing; whereas the good abearing may be broken, and the parties recognizance forfeited without any of these, as namely,
1 By the extraordinary number of people attending upon the party bound. ...
2 Or by his wearing of harness, or other weapons more then usually he hath done, or more then be meet for his degree. ...
3 Or by using words or threatnings, tending or inciting to the breach of the peace.
4 Or by doing any other thing which shall tend to the breach of the peace, or to put the people in dread or fear, although there be no actual breach of the peace.
1 It is chiefly to be granted (by the Just. of P. out of their Sessions) in these cases following; viz. First, against common Barreters, common Quarrellers, and common breakers or perturbers of the peace. ...
2 Also it is grantable against Rioters. ...
3 Also against such as shall lie in wait to rob, or shall be suspected to lie in wait to rob, or shall assault, or attempt to rob another, or shall put passengers by the way in fear or perill.
4 Also again such as be generally feared (or suspected) to be robbers by the high-way.
5 Also against such as are like to commit murder, homicide, or other grievances to any of the Kings subjects in their bodies.
6 Also against such as shall practice to poison another. ...
7 The Justice of peace also upon his own discretion (and without complaint) may binde to the good behaviour any other person which in his presence or hearing shall misbehave himself in some outragious manner of force, fraud, and may commit such person to the Gaol if he refuse to be bound. Sir Francis Bacon, 11.
It is also grantable against such as be of evil name and fame, generally, but more specially against such as are defamed or detected in any of these particulars following:
1 First, against those that are greatly defamed or resorting to houses suspected to maintain Adultery, or Incontinency.
2 Also against the maintainers of houses commonly suspected to be houses of common Bawdrie. ...
3 Also against common whore-mongers, and common whores; for (by good opinion) Avoutry or Bawdery is an offence temporal, as well as spiritual, and is against the peace of the land.
Upon information given to a Constable, that a man and a woman be in adultery or fornication together (or that a man and a woman of evill report, are gone to a suspected house together in the night) the officer may take company with him, and if he finde them so, he may carry them to prison; or he may carry them before a Justice of Peace to finde sureties for the good behaviour.
4 Also against night-walkers, that be suspected to be pilferers or otherwise like to disturb the peace, or that be persons of evill behaviour, or of evil fame or report generally, or that shall keep company with any such, or with any other suspicious persons in the night. ...
Against such as shall by night evesdrop mens houses.
Against Night-walkers that shall cast mens gates or carts, &c. into ponds, &c. or shall commit other like misdemeanors or outrages in the night time.
5 Against suspected persons who live idly, and yet fare well, or are well apparelled, having nothing whereon to live; (except upon examination, they shall give a good account of such their living.)
6 Against common haunters of Ale-houses, or Taverns, and common gamesters; but more specially if they have not whereon to live.
7 Against common drunkards; and yet by the stat. 4 Jac. 5. such offenders must be thereof lawfully convicted: fc. by presentment of the offences at the Assises, Quarter Sessions of the peace, or in the Court Leet, and thereupon a due proceeding to conviction, &c.
Also the good behaviour seemeth grantable, against such as shall make false out-cries, or shall raise Huy and Cries without cause; for these are disturbances of the peace. ...
Also it seemeth grantable against Cheaters and Couseners.
Libellers (it seemeth) also may be bound to their good behaviour, as disturbers of the peace whether they be the contrivers, the procurers, or the publishers of the Libell: for such libelling and defamation tendeth to the raising of quarrells, and effusion of blood, and are speciall means and occasions tending, and inciting greatly to the breach of the peace.
Libellus, literally signifieth a little book.
By use it hath also two significations: First, it signifieth the original Declaration of any action in the Civil law.
Secondly, it signifieth a criminous report of any person, cast abroad, or otherwise unlawfully published, and is called an infamous Libell.
Another describeth it thus, Famosus libellus est qui impingit delictum aliquod notabile.
And yet this libelling may be done after divers sorts or manners.
1 By scandalous writings, be it in book, ballad, epigram, or rhyme, either in meeter or prose, as aforesaid.
2 By scandalous words, scoffs, jests, taunts, or songs, maliciously repeated or sung in the presence of others.
3 By pictures or signes, as by hanging of pictures of reproach, or signes or tokens of shame, or disgrace neer the place where the party thereby traduced, doth most converse: as the pictures of the Gallows, Pillory, Cucking-stool, Horns, or such like. ...
The Common Law being the preserver of the common peace of the land hath alwaies abhorred force as the capitall enemy thereto, Co. 3. 12. and yet, before the reign of King Richard the second, the Common Law seemed to permit any man to have entred into lands & tenements with force and arms, and also to have kept and detained them with force, where his entry was lawfull.
And at this day if a man doth enter into any lands or tenements with force, or multitude of people where his entry is lawfull, he is not punishable by action, either at the Common Law, nor by action upon any statute, for where the title of the plaintiff is not good, there he hath no cause of action although the defendant doth enter with force: but in such case he that entreth with force must be indicted upon the statute: or otherwise complaint may be made thereof to the Justices of peace: and as well upon such indictments, as upon such complaint, the offendor shall be punished; yet the party (ousted) shall not be restored without indictment, and the force thereby found. Vide antea tit. Forcible Entry.
And for the better restraining of such force and forcible entries into lands and tenements, and to inflict condigne punishment upon the offendors therein, it was first provided by the statute 5 Rich. 2. that no man should enter into any lands or tenements with force or multitude, though he had good right, or title to enter, but should enter onely in peaceable and lawfull manner. See Plo. 86.b.
But this statute provided no speedy remedy nor extended to holding with force, nor gave any speciall power therein to the Justices of Peace, but upon a generall enquiry, in a generall Sessions of the peace, and not otherwise, and therefore by another statute made 15 Rich. 2. it was further provided, that if any man should detain (or hold) with force, after such Forcible Entry made, upon complaint thereof made to any Justice of peace, the same Justice shall presently take and come with the power of the County, and shall go and view the same, &c. and if the same Justice do finde any holding the same forcibly, that then they should be imprisoned in the gaol by the same Justice, as convict by the record of the same Justice; there to remain untill they have made fine and ransome to the King.
Yet neither the former stat. extended to those that entred peaceably, and then held with force, nor yet doth give any remedy, if the parties who made the entry with force, be removed before the coming of the Just. of P. nor yet ordained any pain against the Sheriff, if he did not obey the precepts of the said Justices, for to execute the the said statute, when the said Justices would inquire of the same. And therefore the stat. of 8 H. 6. doth give remedy, first where any man shall enter with force, or shall enter peaceably and after detain, hold, or keep possession by force.
Also these two last stat. of 15 R. 2. and 8 H. 6. do inable any one Jus. of P. to give present remedy, viz. to remove the force, and commit the offenders, in cases of Forcible Entry, or holding against the aforesaid stat.
And the said stat. of 8 H. 6. extendeth further reaching the offenders if they were removed or gone before the coming of the Justices; giving the inquiry, and restitution, and also punishing the Sheriff that shall not obey the precepts of the Justice in this behalf.
Force in the common Law is most usually applied to the evil part, and signifieth unlawful violence used either to things or persons, Co.L. 161.b.
Our Law taketh knowledge of two manners of force; the one may be termed a force in judgment of Law, which is accounteth every private trespasse to be a force; so as if I do but passe over another mans ground without licence, he may have his action of trespasse against me, why or wherefore with force and arms, &c. See Co.L. 257.
The other manner of force is more apparent, and always carrieth some fearful shew and matter of terror with it.
This last sort of force is that which is prohibited by these statutes: and therefore note, that every force punishable by these statutes, must have one of these two badges, fc. it must be either Manu forti, with force or strong hand, or Multitudine, with multitude of people, Lambert 145. & 5 R. 2.c.7.
Manu forti, viz. either with apparent violence (in deed, or in word) offered to the person of another, as threatning speeches, turbulent behaviour, or actual violence, or else that they be furnished with offensive weapons (by them not usually born) whether they offer violence or fear or hurt to any other there or no, and this may be done by one person only. See after sub hoc tit.
Multitudine, fc. with company more then usually they have attending on them, 10 H. 7.12. Now by some opinions the Law calleth a multitude, when there be ten or moe in one company; Multitudinem decem faciunt. And yet Sir Edward Coke upon Littleton 257 saith, that he never read it restrained by the common Law to any certain number, but left to the discretion of the Judges, or Justices.
But note, that a forcible entry cannot be made without actuall entry, for the words of the statutes be, Whosoever doth enter, &c.
Note also, if one that hath right to enter upon land, shall goe with divers in his company, and with weapons, over the land whereto he hath right, to the Church, Market, or some other place; this is no entry with force, except he shall express his intent, that he doth enter there claiming the land.
Note also, that if a man shall enter with force (into house or land) although he obtaineth not nor getteth the actual possession thereby, yet shall he be imprisoned and fined for the onely entring with force (as it seemeth,) See the statute: but restitution is not to be made, but onely where there is a forcible putting out, or a holding out, of another out of his possession and found by a Jury.
If by fair means, a man (whose entry is lawful) shall perswade or intice them which are within the house, to come out, and then the door being open or shut by latch onely he shall enter peaceably, without multitude, offensive weapons, or other violence; this entry seemeth to be justifiable.
Forcible detainer is a violent act of resistance by strong hand of men weaponed with armes, or other account of fear in the same place or elsewhere, by which the lawfull entry of the Justices or of any other is barred or hindred.
And forcible detainer, must be understood of a forcible detaining or withholding of the possession of lands or tenements, and not of the person of a man, as before.
Note also, though the entry were at first peaceable, and lawful, yet if there be after a holding by force, it is punishable by the statute, except where there was at first a lawful and peaceable entry, and thereupon a lawfull possession, peaceably continued by the space of three years together, without interruption; for there a man may hold and keep such possession with force against all others (saving against the Kings officers).
If the Justice of peace shall come to the house or place, that is supposed to be holden with force, and there shall find the doors or gates shut, and he or they within shall deny him to enter, (or will not suffer him to enter) this is a forcible holding and detainer, though there be no weapons shewed or used and though there be but one person in the house or upon the ground.
It may easily and manifestly appear to all such as have been conversant in our Chronicles, how pernicious and dangerous to this kingdome, unlawfull assemblies have been in all precedent ages, yea, such as at the first were very small, and began upon very small occasion, yet not being repressed in time, grew to such greatnesse and height, that they afterwards put in hazzard the state and government of this Land: And therefore it is behovefull and good wisdome for all Justices of P. to indeavour by all good meanes to quench the beginnings and first sparks of such assemblies, as knowing, that for want of timely restraint, they may soon grow to the like danger again.
An unlawfull assembly, Riot, or Rout, is where three or more shall gather together, come, or meet in one place, to doe some unlawfull act with violence, and that unlawfull act must be Malum in se and not Malum prohibitum. As when three persons, or more, shall come and assemble themselves together, to the intent to doe any unlawfull act, with force or violence, against the person of another, his possessions, or goods, as to kil, beat, or otherwayes to hurt, or to imprison a man; to pull down a house, wall, pale, hedge or ditch; wrongfully to enter upon or into another mans possession, house, or land, &c. or to cut or take away corn, grasse, wood, or other goods wrongfully; or to hunt unlawfully in any Park or Warren, or to doe any other unlawfull act (with force or violence, against the P. or to the manifest terrour of the people; if they onely meet to such a purpose or intent, although they shall after depart of their own accord, without doing any thing, yet this is an unlawfull assembly.
If after their first meeting, they shall ride, goe, or move forward toward the execution of any such act (whether they put their intended purpose in execution, or not) this is a Rout.
And if they execute any such thing indeed, then it is a Riot.
And note, that any subject of this Realm, for any injury done to his person, or done to him in his lands, or goods, may pursue, and have the Justice of Law, against any other subject, be he bound or free, be it a woman or an infant, be they religious persons, or be they persons excommunicare,or outlawed, or other person whatsoever, without any exception, &c. for the K. (by the stat. of Magna Charta, ca. 29) saith, Nulli ven demus, nulli negabimus, aut differemus justitiam, vel remedium.
The book called the Mirrour of Justices (or Speculum Insticiariorum, written by M. Andrew Horne) ...
High Treason (called in Law, Crimen lesae Majestatis) was alwayes esteemed a grievous offence, done or attempted against the estate legall, viz. against the King (the head, life, and ruler of the Commonwealth) in his person, the Queen his wife, his Children, Realm, or Authority; as,
To compasse the death of the King, the Queen his wife, or of their eldest sonne and heir. ...
To compasse the death of the father or mother of the K. or of any of the Kings Children, although that such compassing be not brought to effect, yet it is Treason, ...
To compasse the death of an usurper of the Crown is Treason, for which the offendor may be arraigned in the time of another King, ...
To intend or imagine the death of the King, or Queen, though they bring it not to effect, fc. if they shall declare this by an open act, whereby it may be known, or to utter it by words or letters, is treason.
To intend to deprive, depose, or disinherit the King, is high Treason, if it may appear by any open act; for no Crown can be taken from a Kings head, without losse of his head and Crown both, sooner or later, as his Majestie hath observed in his just defence of the right of Kings. ...
And here the intent of the heart is enough, fc. if one shall intend, imagine, will, or seeke any such thing, whether the deed follow, or not, if it may be discovered, it is high Treason in the Kings case.
Misprison signifieth in our Law, neglect, negligence, or oversight, in not revealing a Treason, or Felony, when we know it to be committed, or about to be committed; so making a light account of such capitall offenses.
Felony, by some this word is derived, quasi felleo animo facium. L. et Co. 4.I 24. Ideo dicta est fellonia, quia fieri debet felleo animo, (with a minde as bitter as gall.) ...
So the Law at this day, under the word Felony, is included Petty treason, Murder, Homicide, Chance medley, se defendendo, Burglary, Robbery, Theft, Rape, Burning of houses, Petty larceny, Rescous and Escape, &c. Co.L. 391.
Yet note, in these former case of Homicide, committed by persons being Non compos mentis, or wanting discretion, such things happen by an involuntary ignorance, and therefore the Law accounteth such act of theirs to be no Felony.
But if a man that is drunk, killeth another, that is Felony of death; for it is a voluntary ignorance in him, in as much as such ignorance commeth to him by his own act and folly. Sir Edw.Coke L. 247 calleth a drunkard, voluntarius Daemon, and saith, that such a one hath no priviledge thereby, but what hurt or ill soever he doth, his drunkenness doth aggravate it.
Also a Man may be slain by other casualtry, then by the hands or means of another man; as by the fall of a House, Pit, or Tree, &c. upon him; or be killed by a Bull, Bear, or other Beast, or by a Horse, or Cart, &c. or be killed by some fall, which he himself taketh.
The thing which is the cause of such casual death, shall be forfeit to the King, praysed, and taken for a Deodand, and the price of the thing shall be disributed in alms to the poor, by the Kings Almner, for Deodand, est quasi Deo dandum, id est, in Eleemosinas erogandum. But the almner hath no interest, as it seemeth, in such Goods, but hath only the disposition of the Kings Alms, durante beneplacito, so that the King may grant them to any other.
Next what shall be forfeited and taken for a Deodand; The old Rule is, Omnia quae movent ad mortem, sunt Deodanda: And yet besides Deodands may be of some things that a man shall move or fall from, though the thing itself moves not: as to fall from a Ship, Cart, Mow of Corn or Hay, &c. So as Deodands are any Goods which do cause, or are occasion of the death of a Man by Misadventure. ...
Also when one man killeth another in the necessary defence of himself, or his, thereby to deliver himself, his possessions, or his goods, or some other persons, which he is bound to defend from peril, and which cannot otherwise escape, this is Homicide tolerated upon necessitie.
And here the sword is (as one saith) a Weapon of defence to keep off violence, and the use of it made lawfull by the Law of nature, ....
To kill an offendor, which shall attempt Feloniously to murder or rob me in my dwelling house, or in or neer any High-way, Cart-way, Horse-way, or Foot-way, or that shall attempt Burglary, or Feloniously to break my dwelling House in the night; this is justifyable by my self, or by any of my servants, or company, whom the said evill doers shall so attempt to rob or murder; or by any person being in my dwelling House, which the same evill doers shall attempt so to break by night.
And this being so found by verdict upon triall, we shall be all discharged without losse of life, lands, or goods, or pardon. ...
To kill a Thief or Murderer, (fc. one which goeth about to Rob, or Murder me) in the defence of my Person, my House, or goods, was no Felony, but justifiable by the Common Law, before the Stat. of 24 H. 8.c.5. (which Statute doth also declare the Law to be so, and doth enact it) .... And yet at the Common law there was this difference, fc. that he which killed a Thief which would have robbed him upon the High-way, should forfeit his goods; but he which killed one who would have Robbed or Murdered him in his house, should forfeit nothing.
Note, if one kills a true Man, in defence of his person, there ought to be so great a necessity, that it must be esteemed to be inevitable, or otherwise it will not excuse, but it is Felony, although that the other pursues him: and therefore he that shall be assaulted by a true man, must first flie as farre as he can, and till he be letted by some Wall, Hedge, Ditch, presse of people, or other impediment; so as he can flie no further without danger of his life, or of being wounded or maimed: and yet in such a case if he kill the other, he shall be committed till the time of his Triall, and must then get his Pardon for his life and his Lands, (which Pardon notwithstanding he shall have of course) but he shall lose and forfeit his Goods and Chattels, for the great regard which the Law had of a Mans life. ...
Also if a Thief assaults to rob or kill me, I am not bound to flie to a Wall, &c. as I must in case a true man assaults me.
Sir Francis Bacon taketh this difference in these former cases of Se defendendo, fc. when the Law doth intend some fault or wrong in the party that hath brought himself in the necessity; this he calleth necessitas culpabilis, and saith this to be the chief reason, why Se ipsum defendendo is not matter of justification, but he must sue out his Pardon, & shall forfeit his Goods, because the Law intends it hath a beginning upon an unlawful cause; for quarrels are not presumed to grow without some wrong in words or deeds, and so malice on either part; And it is hardly triable in whose default the quarrel began: But where I kill a Thief that assailes to rob me, (and the like) and I kill him, here there can be no malice or wrong presumed on my part.
Burglary is composed of two French words, Burg (a Village, or a Farmhouse) and Larron (a Thief;) and so in the natural signification, is nothing but the robbing of a House; but in our Law it is taken to be, when one or more in the night time, do break or enter into anothers dwelling-house, feloniously, wherein some person is, or a Church, or the Walls or Gates of a City, or walled Town with an intent to rob, or to do any other Felony, although he or they do not execute the same, or do take or carry away nothing, yet it is Felony of death, and the offendors shall not have the benefit of their Clergy. ...
And so the High Sherif, as he hath an Office of great antiquity, and of great trust and Authority (for the time) so withall, it is a place of great peril and charge; and if the rigour of Law should be laid upon them, then should they have a warm Office, and be well rewarded.
Buggery committed with Mankind or Beast, is Felony (without benefit of Clergy) 25 H. 8.6. 5 Eliz. 17. it being a sin against God, Nature, and the Law, and in ancient times such offendors were to be burned by the common Law. ...
1. Conjuration, or Invocation of any evil Spirit, for any intent, &c. or to be counselling, or aiding thereto, is Felony without benefit of Clergy. See Exod. 22.18 Deut. 18.11 et Levit. 20.27.
2. To consult, convenant with, entertain, imploy, feed, or reward any evil Spirit, to or for any intent or purpose, is Felony in such offendors, their aiders and counsellors.
3. To take up any dead body, or any part thereof, to be imployed or used in any manner of Witchcraft, is Felony in such offendors, their aiders and counsellors.
4. Also to use or practice Witchcrafts, Enchantment, Charm, or Sorcery, whereby any person shall be killed, pined, or lamed in any part of their body, or to be counselling or ayding thereto, is Felony: By the ancient common law such offendors were to be burned. Fit. 269.b. See the Law of God against Witches, Exod. 22.18, And against such as seek to Witches and Wizards, Levit. 19.31. & 20.6.
5. Also the second time to practice Witch-craft, &c. thereby to declare where any Treasure may be found, is Felony.
6. Or where any Goods lost, or stolne, may be found.
7. Or whereby any Cattel or Goods shall be destroyed or impaired.
8. Or to the intent to provoke any person to love.
9. Or to the intent to hurt any person in their body, though it be not effected: All these are Felony, fc. the second offense; and without benefit of Clergy.
Now against these Witches, (being the most cruel, revengeful, and bloody of all the rest) the Justices of Peace may not alwayes expect direct evidence, seeing all their works are the works of darkness, and no witnesses present with them to accuse them; & therefore for their better discovery, I thought good here to insert certain observations, partly out of the Book of discovery of the Witches that were arraigned at Lancaster, Anno 1612. before Sir James Altham, & Sir Ed: Bromley, Judges of Assise there; and partly out of M. Bernards Guide to Grand-Jurymen.
1 These Witches have ordinarily a Familiar or Spirit, which appeareth to them; sometimes in one shape, sometimes in another; as in the shape of a Man, Woman, Boy, Dogge, Cat, Foale, Fowle, Hare, Rat, Toad, &c. And to these their Spirits they give names, and they meet together to christen them (as they speak) Ber. 107.113.
2 Their sayd Familiar hath some big or little teat upon their body, and in some secret place, where he sucketh them. And besides their sucking, the Devil leaveth other marks upon their body, sometimes like a blew spot, or red spot, like a flea-biting; sometimes the flesh sunk in and hollow (all which for a time may be covered, yea taken away, but will come again, to their old form.) And these the Devils marks be insensible, & being pricked will not bleed, & be often in their secretest parts, and therefore require diligent and careful search. Ber. 112, 219.
These first two are main points to discover and convict these Witches; for they prove fully that those Witches have a Familiar, and made a League with the Devil. Ber. 60.
So likewise if the suspected be proved to have been heard to call upon their Spirit, or to talk to them, or of them, or have offered them to others.
So if they have been seen with their Spirit, or seen to feed some thing secretly; these are proofs they have a Familiar, &c.
3 They have often Pictures of Clay or Wax (like a Man, &c. made of such as they would bewitch) found in their House, or which they roast, or bury in the Earth, that as the Picture consumes, so may the parties bewitched consume.
4 Other presumptions against these Witches; as, if they be given to usuall cursing and bitter imprecations, and withall use threatnings to be revenged, and their imprecations, or some other michief presently followeth. Ber.61.205.
5 Their implicite Confession; as when any man shall accuse them for hurting them or their Cattel, they shall answer, You should have let me alone then; or, I have not hurt you as yet: these and the like speeches are in a manner of a Confession of their power of hurting. Ber. 206.
6 Their diligent inquiry after the sick party, or comming to visit him or her, unsent for; but especially being forbidden the house.
7 Their apparition to the sick party in his fits.
8 The sick party in his fits naming the parties suspected; and where they be or have been, or what they do, if truly.
9 The common report of their Neighbors, especially if the party suspected be of kin, or Servant to, or familiar with a convicted Witch.
10 The Testimony of other Witches, confessing their own Witch-crafts, and witnessing against the suspected, that they have Spirits or Marks; that they have been at their meetings; that they have told them what harm they have done, &c. Ber. 212.223.
11 If the dead body bleed upon the Witches touching it.
12 The testimony of the person hurt, upon his death.
13 The Examination and Confession of the Children (able & fit to answer) or Servants of the Witch, especially concerning these six observations, fc. If the party suspected have a Familiar, or any Teat, or Pictures; her threatnings & cursings of the sick party; her enquiry after the sick party; her boasting or rejoycing at the sick parties trouble: Also whether they have seen her call upon, speak to, or feed any Spirit, or such like, or have heard her foretel of this mishap, or speak of her power to hurt, or of her transportation to this or that place, &c.
14. Their own voluntary Confession, (which exceeds all other evidence,) fc. of the hurt they have done, or of the giving of their souls to the Devil, and of the Spirits which they have, how many, how they call them, and how they came by them.
15 Besides, upon the apprehension of any suspected, to search also their houses diligently, for Pictures of clay, or wax, &c. hair cut, bones, Powders, Books of Witchcrafts, Charms, and for pots or places where their Spirits may be kept, the smel of which place will stink detestably.
Now to shew you further some signes, to know whether the sick party be bewitched.
1 When a healthful body shall be suddenly taken, &c. without probable reason, or natural cause appearing, &c. Ber. 169.
2 When two or moe, are taken in the like strange fits, in many things.
3 When the afflicted party in his fits doth tell truly many things, what the Witch, or other persons absent are doing or saying, and the like.
4 When the parties shall do many things strangely, or speak many things to purpose, and yet out of their fits know not any thing thereof.
5 When there is a strength supernatural, as that a strong man or two, shall not be able to keep down a Child, or weak person, upon a bed.
6 When the party doth vomit up crooked pins, needles, nails, coals, lead, straw, hair, or the like.
7 When the party shall see visibly some Apparition, and shortly after some mischief shall befall him. Ber. 173.
But withall, observe with Mr. Bernard ca. 2. that divers strange diseases may happen only from natural causes, where he sheweth 8 such several diseases: therefore unless the compact with the Devil, be proved, or evinced by evident marks or tokens as abovesaid, it is not to be supposed that the Devil is the Agent.
And note, for the better riddance of these Witches, being duly proved to be such, there must good care be had, as well in their examinations taken by the Justices, as also in the drawing of their Indictments, That the same be both of them set down directly in the material points, &c.
That the Witch (or party suspected) hath used Invocation of some Spirit.
Or, That they have consulted or covenanted with their Spirit.
Or, That they imployed their Spirit, &c.
Or, That they have fed or rewarded their Spirit.
Or, That they have killed, or lamed, &c. some person,&c.
And not to indict them generally for being Witches, &c.
The difference between Conjuration, Witchcraft, and Inchantment, &c. is this, fc. Conjurers and Witches have personal conference with the Devil, or evil Spirit, to effect their purpose, See I Sam. 28.7. &c. The Conjurers believe by certain terrible words, that they can raise the Devil, and make him to tremble; and by impaling themselves in a circle (which, as one saith, cannot keep out a mouse) they believe that they are therein insconsed, & safe from the Devil whom they are about to raise; and having raised the Devil, they seem by prayers, and invocation of Gods powerful Names, to compel the Devil to say, or do what the Conjurer commandeth him.
The Witch dealeth rather by a friendly and voluntary conference, or agreement between him (or her) and the Devil or Familiar, to have his or her turn served, and in lieu thereof, the Witch giveth (or offereth) his or her soul, bloud, or other gift unto the Devil.
Also the Conjurer compacts for curiosity, to know secrets, or work miracles: and the Witch of meer malice to do mischief, and to be revenged.
The Inchanter, Charmer, or Sorcerer, these have no personal conference with the Devil, but (without any apparition) work and perform things (seemingly at the least) by certain superstitious and ceremoniall forms of words (called Charms) by them pronounced: or by Medicines, Herbs, or other things applied, above the course of nature, and by the Devils help, and Covenants made with him.
Of this last sort likewise are Soothsayers, or Wisards, which divine and foretell things to come, by the flying, singing, or feeding of Birds, and unto such questions as be demanded of them, they do answer by the Devil (or by his help) fc. they do either answer by voice, or else do set before their eyes in glasses, Chrystal stones, or Rings, the Pictures or Images of the persons or things sought for.
Egyptians; fc. if any person of the age of 14 yeares, or above, shall call himself and Egyptian; or shall be in the company of such, or shall disguise himself in apparrell, speech, or otherwise, like such, and shall be or continue in England one moneth, at one or severall times, it is Felony, without benefit of Clergy. St. I. 2. P & M. 4.
Note, that these manner of persons are besides all of them for the most part theeves, cut purses, cozeners, or the like, and therefore the Just. of P. shall doe well to be carefull, not only in the examining of them, but also to cause them to be wel searched for counterfeit Passes, stoln goods, and the like.
Note also (for the better prevention and apprehending of Felons) that upon all Homicides, Burglaries, Robberies, and other Felonies, and when men are put in great danger, huy and cry shall be levied, and every man shall follow the huy and cry, and whosoever doth not, and be thereof convicted, shall be attached to appear before the Justices of Gaol delivery ....
Yea, upon any Felony committed, all men generally shall be ready (at the commandment of the Sherif, and at the cry of the Country) to pursue and arrest Felons, upon pain to be grievously fined.
And such huy and cry and pursute shall be made from town to town, and from country to country; and shall be made by Hors-men & foot-men: and in case of Robbery, if (after notice thereof given to some dwelling neer) none of the Felons be taken within fortie dayes after the Felony committed, then the whole Hundred where the Robbery was done shall answer for the Robbery done, and the dammages ....
And for the better detecting and apprehending of such offenders in great Towns being walled, the Gates are to be shut from the Sun-setting, until the Sun-rising: and no man shall be lodged in the Suburbs from nine of the Clock until day, unless his Host will answer for him: And in all other Towns, Watch shall be kept from the Feast of the Ascension, until Michaelmas, from the Sun setting, until the Sun rising; And if any stranger do passe by them, he shall be arrested until the morning, &c. And if they will not obey the Arrest, then all men shall be ready to follow with Hue and Cry, until such night-walkers shall be taken; And for such arrests none shall be punished. And the Constables ought to see these Watches duly set and kept: and as well the Constables of Hundreds, and of franchises, as also the petty Constables of Towns, ought to make presentment to the Justices of peace at their Sessions (and to all other Justices thereto assigned) of the defaults of Watches, and of such as lodge strangers, for whom they will not answer: and the Justices of peace at their Sessions, shall punish such as be found in default. ....
The punishment of every person attainted of Felony, is fourfold; fc.
1 The offender shall lose his life, and be hanged between Heaven and Earth, as unworthy of both.
2 He shall lose his blood, as well in regard of his ancestry, as of his posterity; for his blood is corrupted, so as he hath neither ancestor, heir, nor posterity. ...
3 He shall forfeit his fee simple lands (from the time of the offence, &c.) wherein the King shall have Annum, diem, & vastum, to the intent that the offenders wife and children shall be cast out thereof, his houses rased, his trees rooted up, his medows plowed up, and all his land wasted and destroyed. And after the year, day, & wast, the lands shall go by escheat to the chief Lord of the fee: (But yet the lord may fine with the King for all fc. for the year, day, and the wast, and so have the land presently) quaere if the Lord may enter, it seemeth he cannot. ...
4 The offender shall forfeit and lose all his goods and chattels from the time of his attainder only.
The difference between attainder, and conviction, in case of Felony, is, the person attainted hath judgement of death given upon him: the person convict, before judgement prayeth his Clergy, and hath it, and so preventeth the judgement, &c. Or after verdict, confession, or utlary, the Felon is said to be convicted, til Judgement be given.
And so a man is properly said to be indited, when the offence is first found by the great Enquest, or other Jury of Enquirie.
2 Convicted, when the offender, having put himself upon his triall, is found guilty by a second Jury; here he is convict, before he hath judgement.
3 Attainted, when (after such conviction) Judgement is given against the offender, and thereby his lands are forfeited, and his blood corrupted.
The Justices of P. have authority (by the words of the Stat.) to bind by Recognizance all such as do declare any thing material to prove the Felony, to give evidence against the offender: And yet the Wife is not to be bound to give evidence, nor to be examined against her Husband; for, by the Laws of God, and of this Land, she ought not to discover counsell, or his offence, in case of Theft (or other Felony, as it seemeth.) ...
But for Children, I find in the book of the discovery of Witches at Lancaster Assises, Anno Dom. 1612. that the Son and Daughter of Elizabeth Device a Witch, were not onely examined by the Justices of Peace against their said Mother, and the said examinations certified and openly read upon the arraignment and triall; but the Daughter also was commanded, and did give open evidence against her Mother then prisoner at the Barre.
I find further in the said book of the discovery of Witches, that two children, the one about nine years of age, the other of fourteen, did upon their oaths give evidence against the prisoners upon their arraignment. ....
He that is examined, if part of that he speaketh be proved to be false, he is not to be credited in the residue of his information; and therefore we shall find in 16 Ed. 4. that a man who was produced as a witness in the Chancery, in his deposition he was found to swear falsely in part, and thereupon his testimony was utterly rejected.
By Gods law one witnesse shall not be sufficient against an offender, for any sin, trespas, or fault, Num. 35.30 Deut. 19.15. And to the same purpose was the Stat. 25 H. 8.c.14. And yet now by our Law one witnesse is sufficient, where the triall is by a Jury: for they are all sworn to try the particular matter wherewith the defendant is charged. So also one witnesse is sufficient to convict an offender before the Justice of peace in divers cases, the Justice of peace being so expressly therein enabled by statute.
The offender himself shall not be examined upon oath, for by the Common Law, Nullus tenetur seipsum prodere: Neither was a mans fault to be wrung out of himself (no not by examination only) but to be proved by others, untill the Stat. of 2 & 3. P. & M. cap. 10. gave authority to the Justices of peace to examine the Felon himself.
And here let me admonish all such as are to inform or bear witnesse against a prisoner, or any offender, before a Justice of peace, or other Magistrate, That they be well advised what they testifie upon their oaths, knowing that in such cases, if either they should not speak the truth, or should conceal any part of the truth, they should offend against God, the magistrate, the innocent, the common-wealth, & their own souls: fc. against
God, in despissing of him, taking his name in vain, and belying the truth.
Magistrate, in misleading and deceiving of him, and causing him to do injustice.
Innocent, in spoyling him of his name, goods, or life.
Common-wealth, fc. if the partie be nocent or guilty, and he clears him by false witnesse.
His own soul; for it is perjurie in him, at least, in the presence of God and good men.
And though he be not presently sensible of the sore, yet as one well saith, it will fester, and he shall then feel it most when no plaster shall be found to cure it: yea, a Hell will come to them, before they come to Hell; for a Conscience is
1 Testis, a witnesse accusing them.
2 Judex, a Judge judging and condemning them.
3 Carcer, a prison.
4 Tortor, an executioner; yea, no tongue can expresse the torture of a troubled conscience.
But the Justices of peace cannot command by word to arrest another being out of their presence; neither may one in the absence of the Justice arrest another upon his command by parol; but it must be by a precept or warrant in writing, by the greater opinion of the Justices.
...and the Justice of peace did so, (granting a warrant with a blank, where he neither knew the parties name, nor the matter) and for this the Just. was fined in the Star-Chamber, ....
Besides, this is no new thing, for there is such a President in the old book of Justices of P. (impress. 1561. fo. 41. a.) yea, it is the common practice at this day, and it seemeth to be very serviceable; and of two evils the lesse is to be chosen, fc. that an offender, or suspected person, should be imprisoned for a time (though sometimes wrongfully) than that one which hath committed Felony should escape unpunished.
An arrest is the apprehending & first restreining of a mans person, depriving it of his own will and liberty, and may be called the beginning of Imprisonment.
To this arrest all lay persons (under the degree of Barons or Peers of the realm) be subject, and that by warrant from the Justices of peace, as you may see here before ....
But the Justices of peace are not to grant their warrants for the peace, or the like, against any Nobleman: and yet, if a capias or attachment shall be awarded against a Baron or Peer of the Realm, from the Kings Justices at Westm. for a contempt, or in case of debt or trespas, the officer without any offence of law may execute the same, for that the officer is not to dispute the authority of the Court.
The liberty of a man is a thing specially favoured by the Common law of this Land; and therefore if any the Kings subjects shall imprison another without sufficient warrant of him, or his law, the party grieved may have his action, and shall recover dammages against the other; and the King also shall have a fine of him: for imprisonment of another without offence of the law, is one of the Kings royall prerogatives, and only annexed to the Crown.
Also by the Statute of Magna Charta, made 9 H. 3.c.29 no free-man shall be taken or imprisoned, &c. but by the lawfull judgement of his equals, (fc. upon his conviction (for some offence) by the verdict of a Jury of 12. good and lawfull men) or by the law of the Realm. ...
And by this Statute of Magna Charta, every arrest or imprisonment, and every oppression against the law of the Land, is forbidden; and if any Judge, officer, or other person, against the law, shall usurp any jurisdiction, and by colour thereof shall arrest, imprison, or oppresse any man, it is punishable by the Statute. ...
This Grand Charter is a declaration of the ancient Common law. Co. 10.48. And the Stat. of Magna Charta, et Charta Forestae for, their excellency, have since been confirmed by the authority of above 30. severall Parliaments. ...
Note that all jurisdiction ought to be either by Charter, or by Prescription. ...
But false Latin shall not make void an indictment. Co. 5. 121.
And to this purpose note, that false Latin may be said to be of three sorts.
First, words of Art, being words significant allowed by our Law, and known to the Sages of the law, although not allowed by the Grammarians, nor having the Countenance of Latine: As Messuage, Toft, gardin, bruere, Murder, Burglary, Feloniously, &c. these and the like are words of Art, and are allowed in our Law, yea the Civilians and Physicians do use the like: And every science have their vocabula artis.
The second sort are false writing or incongrue Latin, as wiginti for viginti, Septimginti, for Septinginta, prefato for praefate, &c. these two former sorts shall not avoid or make void any indictment, grant or deed.
The third sort are words insensible, especially if the words of art are written insensibly or falsly, as Murdredum for Murdrum, Burgariter, for Burglariter, feloniter for felonice. These words murdredum, burgariter, & feloniter (being no Latin words, nor allowed by law as words of art) if they shall be in any place to point materiall, they do make void the indictment: except where such words insensible be surplusage. ...
And yet quaere, for these words have the countenance of those other words of art, and do shew to the Court sufficiently what is thereby meant, and seem to be only the false writing of the Clerks, & therefore might be amended in case of an Indictment. ....
Posted: to Legal History and Philosophy of Law on Tue, Jul 9, 2019
Updated: Fri, Jul 12, 2019